Supreme Court Annual Digest 2024: BNSS & Cr.PC

BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 | SUPREME COURT ANNUAL DIGEST 2024

CORRESPONDING CR.P.C. SECTIONS and COMPARISON SUMMARY of The BHARATIYA NAGARIK SURAKSHA SANHITA, 2023, (BNSS) and The CODE OF CRIMINAL PROCEDURE, 1973, (CrPC)

Section 35 - When police may arrest without warrant

[A new subsection 7 is added: “No arrest shall be made without prior permission of an officer not below the rank of Deputy Superintendent of Police in case of an offence which is punishable for imprisonment of less than three years and such person is infirm or is above sixty years of age.”]

Section 41 and 41A Cr.P.C. - Supreme Court asks Police Chiefs to take action against erring officials for arrests in violation of Section 41/41A Cr.P.C. and Supreme Court guidelines. Satender Kumar Antil v. Central Bureau of Investigation, 2024 LiveLaw (SC) 600

Section 63 - Form of summons

[A new clause (ii) “in an encrypted or any other form of electronic communication and shall bear the image of the seal of the Court or digital signature” is added.]

Sections 61, 70, 204, 437 Cr.P.C. - An accused cannot be taken into custody when he voluntarily surrenders before the Court even though the Court which has taken cognizance of the chargesheet has not issued a summoning order against him. Bail application filed by such an accused, who voluntarily surrendered even in the absence of a summoning order, cannot be entertained. (Para 10) Souvik Bhattacharya v. Enforcement Directorate, Kolkata Zonal Office - II, 2024 LiveLaw (SC) 122 : (2024) 3 SCC 597

Section 72 - Form of warrant of arrest and duration.

[No change]

Section 70 CrPC - If the accused does not appear after a summons is served or does not appear on a subsequent date, the Special Court will be well within its powers to issue a warrant in terms of Section 70 of the CrPC. Initially, the Special Court should issue a bailable warrant. If it is not possible to effect service of the bailable warrant, then the recourse can be taken to issue a nonbailable warrant. (Para 23 (e)) Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383 : AIR 2024 SC 2512

Section 75 - Warrant may be directed to any person

[No change]

Section 73 Cr.P.C. - Issue of non-bailable warrant – Held, 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) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337 : AIR 2024 SC 2420 : 2024 CriLJ 2322

Section 84 - Proclamation for person absconding

[In subsection (4), IPC sections are replaced by punishments related to corresponding BNS sections. the offence punishable for imprisonment of ten years or more, etc., is mentioned.]

Section 82 Cr.P.C. - Proclaimed Offender - Anticipatory Bail - A proclamation under Section 82, Cr.P.C., does not invariably bar the consideration of anticipatory bail applications. Asha Dubey v. State of Madhya Pradesh, 2024 LiveLaw (SC) 889

Section 82 Cr.P.C. - An accused would not be entitled to pre-arrest bail if the non-bailable warrant and the proclamation under Section 82(1) Cr.P.C. is pending against him. (Para 5) Srikant Upadhyay v. State of Bihar, 2024 LiveLaw (SC) 232 : AIR 2024 SC 1600

Section 85 - Attachment of property of person absconding

[The words "of property " is added in clause (b) of subsection (1).]

Section 82 and 83 Cr.P.C. - Mere filing of an anticipatory bail application by the accused could not be treated as his appearance before the court which had initiated proceedings under Section 82/83 Cr.P.C. against the accused. (Para 20) Srikant Upadhyay v. State of Bihar, 2024 LiveLaw (SC) 232 : AIR 2024 SC 1600

Section 91 - Power to take bond or bail bond for appearance.

[The words “or bail bond” are added in heading and words "bond with or without sureties" are replaced by "bond or bail bond".]

Section 88 Cr.P.C. - A bond furnished according to Section 88 is only an undertaking by an accused who is not in custody to appear before the Court on the date fixed. Thus, an order accepting bonds under Section 88 from the accused does not amount to a grant of bail;. (Para 23 (f), Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383 : AIR 2024 SC 2512

Section 88 Cr.P.C. - In a case where the accused has furnished bonds under Section 88 of the CrPC, if he fails to appear on subsequent dates, the Special Court has the powers under Section 89 read with Sections 70 of the CrPC to issue a warrant directing that the accused shall be arrested and produced before the Special Court; If such a warrant is issued, it will always be open for the accused to apply for cancellation of the warrant by giving an undertaking to the Special Court to appear before the said Court on all the dates fixed by it. While cancelling the warrant, the Court can always take an undertaking from the accused to appear before the Court on every date unless appearance is specifically exempted. When the ED has not taken the custody of the accused during the investigation, usually, the Special Court will exercise the power of cancellation of the warrant without insisting on taking the accused in custody provided an undertaking is furnished by the accused to appear regularly before the Court. When the Special Court deals with an application for cancellation of a warrant, the Special Court is not dealing with an application for bail. Hence, Section 45(1) will have no application to such an application. (Para 23 (g). Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383 : AIR 2024 SC 2512

Section 88 Cr.P.C. - When an accused appears pursuant to a summons, the Special Court is empowered to take bonds under Section 88 of the CrPC in a given case. However, it is not mandatory in every case to direct furnishing of bonds. However, if a warrant of arrest has been issued on account of nonappearance or proceedings under Section 82 and/or Section 83 of the CrPC have been issued against an accused, he cannot be let off by taking a bond under Section 88 of the CrPC, and the accused will have to apply for cancellation of the warrant. (Para 23 (h), Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383 : AIR 2024 SC 2512

Section 94 - Summons to produce document or other thing

[Regarding the production of documents, the words "electronic communication, including communication devices which is likely to contain digital evidence " are added, and the words "either in physical form or in electronic form, require" are related to summoning a person possessing a document. In subsection (3) (a) corresponding sections of Indian Evidence Act, 1872 are replaced by the sections of the Bharatiya Sakshya Adhiniyam, 2023, the word "telegram" is excluded.]

Section 91 Cr.P.C. - Courts cannot issue processes under Section 91 Cr.P.C. to compel the production of things / documents based on the application made by the accused at the stage of framing of charges. The accused's entitlement to seek an order for the production of things or documents under Section 91 of Cr.P.C. would ordinarily not come till the stage of defence. (Para 6) State of Rajasthan v. Swarn Singh @ Baba, 2024 LiveLaw (SC) 136

Section 106 - Power of police officer to seize certain property

[No change]

Section 102 (1) Cr.P.C. – Grounds to challenge seizure – The order of seizure can be challenged on the ground that the seizing officer lacked jurisdiction to act under Section 102(1) Cr.P.C. or that the seized item does not satisfy the definition of 'property' or on the ground that the property which was seized could not have given rise to suspicion concerning the commission of a crime, in order for the authorities to justify the seizure. (Para 13) Shento Varghese v. Julfikar Husen, 2024 LiveLaw (SC) 371 : AIR 2024 SC 2984

Section 102(1) & 102(3) Cr.P.C. – 'Seizure orders' – Substantive power on the police to seize property linked to a crime – Whether non-compliance with the procedural formality of reporting such seizure forthwith to the Magistrate would vitiate the seizure? – Held, the validity of the power exercised under Section 102(1) Cr.P.C. is not dependent on the compliance with the duty prescribed on the police officer under Section 102(3) Cr.P.C. The obligation to report the seizure to the Magistrate is neither a jurisdictional pre-requisite for exercising the power to seize nor is the exercise of such power made subject to compliance with the reporting obligation. Hence, the act of seizure (seizure order) would not get vitiated by virtue of such delay in reporting to the magistrate. (Para 13, 14 & 24) Shento Varghese v. Julfikar Husen, 2024 LiveLaw (SC) 371 : AIR 2024 SC 2984

Section 102 (3) Cr.P.C. – Interpretation of the expression 'shall forthwith report the seizure to the Magistrate' – The expression 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. Hence, 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) Shento Varghese v. Julfikar Husen, 2024 LiveLaw (SC) 371 : AIR 2024 SC 2984

Section 144 - Order for maintenance of wives, children and parents

["minor" is replaced by "child"]

Section 125 Cr.P.C. – A divorced Muslim woman is entitled to file a petition for maintenance against her ex-husband under Section 125 of the Code of Criminal Procedure. This right of a Muslim woman is in addition to the right under the Muslim Women (Protection of Rights on Divorce) Act 1986. Mohd Abdul Samad v. State of Telangana, 2024 LiveLaw (SC) 452 : AIR 2024 SC 3665 : 2024 CriLJ 3460

Section 125 Cr.P.C. - The approach of the State of taking the side of the husband in a maintenance case, to say the least, is very strange. In fact, the counsel, who appeared for the State, was under a duty and obligation to act as an officer of the Court and to assist the Court in arriving at a correct conclusion. (Para 7 & 8) Asiya Khan v. State of Uttar Pradesh, 2024 LiveLaw (SC) 140

Section 173 - Information in cognizable cases

[By adding the words "irrespective of the area where the offence is committed”, the scope is expanded to lodge an FIR. This corresponds to the concept of 'zero FIR' By adding the word "by electronic communication," thereby it is made contemporary. Clause (ii) is added in subsection (1); this is known as eFIR. Subsection (3) is newly added regarding preliminary inquiry to ascertain whether there exists a prima facie case and proceed for investigation on the prima facie case for the cognizable offences which are made punishable for three years or more but less than seven years". In subsection (4), the words "failing which such aggrieved person may make an application to the Magistrate." are added.]

Section 154 Cr.P.C. - Delay in registration of FIR – The FIR suffers from a serious delay of three years which is totally unexplained. The unexplained inordinate delay in bringing allegations to the police's attention despite knowledge of previous inquiry, adds a layer of scepticism to the authenticity of the claims. Deepak Kumar Shrivas v. State of Chhattisgarh, 2024 LiveLaw (SC) 129 : 2024 Cri LJ 1388 : (2024) 3 SCC 601

Section 174 - Information as to non-cognizable cases and investigation of such cases

[Clause (ii) in subsection (1) is added regarding forwarding the daily diary report of non-cognizable cases fortnightly to the Magistrate]

Section 155 Cr.P.C. - Object and purpose of police investigation – Includes the need to ensure transparent and free investigation to ascertain the facts, examine whether or not an offence is committed, identify the offender if an offence is committed, and to lay before the court the evidence which has been collected, the truth and correctness of which is thereupon decided by the court. (Para 26) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337 : AIR 2024 SC 2420 : 2024 CriLJ 2322

Section 155 Cr.P.C. - Police Officer seems to be under an impression that the accused has to appear before him and prove his innocence. Such an approach cannot be countenanced. Md Tauhid v. State of Bihar, 2024 LiveLaw (SC) 106

Section 175 - Police officer's power to investigate cognizable case

[A new proviso to subsection (1) is added. Sub-section (4) is newly added to protect public servants in the course of discharge of public duty against undue harassment, and subsection (3) is also amended according to sub-section (4) of section 173]

Section 156(3) Cr.P.C. – The petitioners, mother and brother of the deceased, who died in 2016 under suspicious circumstances, contended that her death was not a simple case of suicide, as initially reported by the local police. They alleged that respondent No. 7, her husband and a senior judicial officer, influenced the investigation to avoid the registration of an FIR. The appellants sought a fresh investigation, citing six ante-mortem injuries on the deceased's body and suggesting the respondent's influence compromised the initial inquiry. The High Court had dismissed their plea, directing them to pursue alternate remedies under Section 156(3) of the Cr.P.C. However, the appellants argued that, given respondent No. 7's judicial position, they had no hope of an impartial inquiry if overseen by a subordinate magistrate. The Supreme Court, recognizing the serious nature of the allegations and the need to maintain public confidence in judicial impartiality, allowed the appeal. It ordered the Central Bureau of Investigation (CBI) to conduct an independent and thorough investigation, including filing an FIR if warranted, and to submit its report expeditiously. The Court clarified that it had not commented on the merits but emphasized that its observations should not influence the CBI's investigation. The appeal was allowed. Mandakini Diwan v. High Court of Chhattisgarh, 2024 LiveLaw (SC) 672

Section 156(3) Cr.P.C. – To direct for registration of FIR – Held, no offence was made out in the complaint. Hence, the decision of the Metropolitan Magistrate in dismissing the application filed under Section 156(3) is correct and unassailable. (Para 17) State of GNCT of Delhi v. Praveen Kumar @ Prashant, 2024 LiveLaw (SC) 422

Section 156(3) Cr.P.C. – Magistrate empowered to order investigation – Held, the Trial Court after having been prima facie satisfied, had exercised its judicial discretion directing investigation under Section 156(3) of CrPC Further held, such order being just, legal and proper, the High Court should not have interfered with the same, more particularly while exercising limited powers under Section 482 of CrPC. (Para 10) Sas Infratech Pvt. Ltd. v. State of Telangana, 2024 LiveLaw (SC) 412

Section 156(3) & 190 Cr.P.C. – Magistrate power to take cognizance – When the Magistrate in exercise of his judicial discretion directs investigation under Section 156(3) of CrPC, he cannot be said to have taken cognizance of any offence. It is only when the Magistrate after applying his mind prefers to follow the procedure under Chapter XV of CrPC by resorting to Section 200, he can be said to have taken cognizance of the offence. (Para 8) Sas Infratech Pvt. Ltd. v. State of Telangana, 2024 LiveLaw (SC) 412

Section 156 (3) Cr.P.C. - Whether prior sanction is mandatory for a Magistrate to forward a complaint against a public servant for investigation as per Section 156(3) CrPC. This issue was referred to a larger bench in 2018 in the case Manju Surana v. Sunil Arora. The issue was of wide relevance and was arising in several matters frequently, an earlier decision on the question referred is solicited. Shamim Khan v. Debashish Chakraborty, 2024 LiveLaw (SC) 305

Section 156 (3) Cr.P.C. - An affidavit is necessary with the application under Section 156 (3) Cr.P.C. - Directions in Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287 are mandatory. Ramesh Kumar Bung v. State of Telangana, 2024 LiveLaw (SC) 213

Section 176 - Procedure for investigation

[In clause (b) of subsection (1), audio-video electronic means are added. In subsection (2), the words, "forward the daily diary report fortnightly to the Magistrate" are added. Sub-section (3) is newly added, which stipulates forensic experts visit the crime scene as mandatory for offences punishable for seven years or more]

Section 157 Cr.P.C. - A mere delay in forwarding the FIR to the jurisdictional magistrate would not be fatal to the prosecution's case unless it is shown by the accused that the delay had caused prejudice to his case. Rama Devi v. State of Bihar, 2024 LiveLaw (SC) 776 : AIR 2024 SC 5148 : (2024) 10 SCC 462

Section 179 - Police officer's power to require attendance of witnesses

[In the first proviso, "sixty-five years" is replaced by "sixty years" and the words "or a person with acute illness" are added. One new proviso is added. Thus, the scope of the provision is expanded]

Section 160 Cr.P.C. - The proceedings arose from remarks made by the petitioner on social media regarding her exclusion from a decision-making process despite being invited by the Manipur State Transgender Welfare Board. Upon the petitioner expressing regret for her remarks and undertaking not to make similar comments in the future, the Court encouraged the respondent State to show leniency. The Advocate General for Manipur agreed to quash the proceedings, acknowledging the incident as a one-time, bona fide mistake. Consequently, the Court quashed the notice issued under Section 160 Cr.P.C. and all subsequent proceedings. The Writ Petition was disposed of accordingly, with the Court appreciating the State's magnanimity. Thangjam Santa Singh @ Santa Khurai v. State of Manipur, 2024 LiveLaw (SC) 752

Section 180 - Examination of witnesses by police

[No change]

Section 161(1) & 162(1) Cr.P.C. – 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. 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. (Para 63) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344 : AIR 2024 SC 2297 : 2024 CriLJ 2377

Section 161 Cr.P.C. - If the PWs had failed to mention in their statements about the involvement of an accused, their subsequent statement before court during trial regarding involvement of that particular accused cannot be relied upon. Prosecution cannot seek to prove a fact during trial through a witness which such witness had not stated to police during investigation. The evidence of that witness regarding the said improved fact is of no significance. (Para 26) Darshan Singh v. State of Punjab, 2024 LiveLaw (SC) 13 : AIR 2024 SC 627 : (2024) 3 SCC 164 : 2024 CriLJ 1601

Section 181 - Statements to police and use thereof

[Heading of the section is changed. BSA sections replace corresponding Indian Evidence Act sections]

Section 162 Cr.P.C. - FIR Manipulation – Investigation Tainted by Delay in FIR Recording – Reiterated that when the police deliberately delay recording the First Information Report (FIR) after receiving information about a cognizable offense, and the FIR is prepared after on-site deliberation, consultation, and discussion, such an FIR cannot be considered the actual FIR but a statement made during the investigation, thereby falling under Section 162 Cr.P.C. Failure to promptly record the FIR raises doubts about the authenticity of the investigation, as it leaves room for fabrication of evidence and false clues. Deliberate delay in FIR registration taints the investigation. FIR prepared after consultation and deliberation is inadmissible as it is hit by Section 162 CrPC. Non-production of the Daily Diary (Roznamcha) can suggest fabrication and concealment of material facts. FIR delayed and investigation tainted. Allarakha Habib Memon v. State of Gujarat, 2024 LiveLaw (SC) 562 : AIR 2024 SC 4201

Section 162 Cr.P.C. - Obligation to Record FIRs - The Court emphasized that police officers must record information about cognizable offenses, regardless of territorial jurisdiction. Refusing to do so constitutes a dereliction of duty. Allarakha Habib Memon v. State of Gujarat, 2024 LiveLaw (SC) 562 : AIR 2024 SC 4201

Section 183 - Recording of confessions and statements

[The newly added first proviso to Section 183(6)(a) provides that statements are to be recorded by a woman Magistrate as far as practicable. A newly added second proviso to Section 183(6)(a) provides for mandatory recording of a statement of witness by Magistrate relating to the offences punishable with imprisonment for ten years or more, imprisonment for life, or with death. The fourth proviso to Section 183(6)(a) provides for the recording of the statement of a temporarily or permanently mentally or physically disabled person through audio-video electronic means]

Section 164 - Admissibility and Utility of Statements - A statement recorded under Section 164 CrPC is not a substantive piece of evidence but holds significant evidentiary value for corroboration and contradiction under Section 157 of the Indian Evidence Act, 1872. Such statements, recorded by a Judicial Magistrate, carry greater credibility than statements under Section 161 CrPC and are not constrained by the limitations of Section 162 CrPC. The primary objectives of recording a statement under Section 164 CrPC are to deter the witness from retracting or altering their version and to ensure accountability under law. These statements gain importance, especially when witnesses are susceptible to influence due to their association with the accused or the influence of the accused. The reliability and weight of these statements depend on the witness's consistency and the surrounding circumstances, including any retraction and its reasons. The ultimate test of such statements lies in the trial process, where their reliability is assessed in conjunction with other evidence. Vijaya Singh v. State of Uttarakhand, 2024 LiveLaw (SC) 928

Section 187 - Procedure when investigation cannot be completed in twenty-four hours

[A new insertion into Subsection (2) of Section 187 of BNSS provides that the Magistrate to whom an accused person is forwarded under this section may, irrespective of whether he has or has no jurisdiction to try the case, after taking into consideration the status of the accused person as to whether he is not released on bail or his bail has not been cancelled, authorise, from time to time, the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time during the initial forty days or sixty days out of the detention period of sixty days or ninety days, as the case may be, as provided in sub-section (3)]

Section 167(2) – Power to extend remand beyond 90 days – Under section 43D power is given to 'the court' to extend and authorise detention of the accused beyond a period of 90 days. As per section 2(1) (d), 'The court' would mean jurisdiction of a normal criminal Court and also includes a Special Court constituted under Section 11 or Section 22 of the NIA Act. Hence, the Chief Judge cum City Sessions Court had the jurisdiction to pass the order of extension of detention beyond 90 days. Held, the jurisdictional Magistrate would be clothed with the jurisdiction to deal with the remand of the accused albeit for a period of 90 days only under Section 167(2) of CrPC, because for authorising remand beyond 90 days, an express order of the Sessions Court or the Special Court, as the case may be, would be required by virtue of Section 43D (2) of UAPA. Hence, order of extension of remand by Chief Metropolitan Magistrate beyond the period of 90 days, was illegal. (Para 33, 35, 36, 37) State of West Bengal v. Jayeeta Das, 2024 LiveLaw (SC) 312 : AIR 2024 SC 2161

Section 167 and 173 Cr.P.C. - 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. (Para 23) Central Bureau of Investigation v. Kapil Wadhawan, 2024 LiveLaw (SC) 58 : AIR 2024 SC 905 : 2024 Cri LJ 1082

Section 167(2) - Default Bail - Terrorism cases should not to be taken lightly. (Para 13) State of NCT of Delhi v. Raj Kumar @ Lovepreet @ Lovely, 2024 LiveLaw (SC) 10 : AIR 2024 SC 244 : (2024) 2 SCC 632

Section 192 - Diary of proceedings in investigation

[No change]

Section 172 Cr.P.C. – Diary of proceedings – Every police officer making an investigation under Chapter XII Cr.P.C. is required to enter his proceedings in the investigation in a diary day by day. Sub-section (IA) of Section 172 requires that the statements of the witnesses recorded during the course of investigation under section 161 have to be inserted in the case diary; and sub-section (1B) of Section 172 requires that such diary shall be a volume and duly paginated. (Para 11) Dablu Kujur v. State of Jharkhand, 2024 LiveLaw (SC) 227

Section 172 Cr.P.C. - While it is the responsibility and duty of the Investigating Officer to make a due recording in his case diary, there is no corresponding right under subsection (3) of Section 172 of CrPC for accused to seek production of such diaries, or to peruse them, except in a case where they are used by a police officer maintaining them to refresh his memory, or in a case where the court uses them for the purpose of contradicting the police officer. In such a case, the provision of Section 145 or Section 161, as the case may be, of the Evidence Act, shall apply. (Para 22) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Section 172 Cr.P.C. – A case diary is maintained by an Investigating Officer during his investigation for the purpose of entering the day-to-day proceedings of the investigation. While doing so, the Investigating Officer should mandatorily record the necessary particulars gathered in the course of investigation with the relevant date, time and place. Under sub-section (1-A) and (1-B) of Section 172 of CrPC, the Investigating Officer has to mention, in his case diary, the statement of witnesses recorded during investigation with due pagination. Sub-section (1-A) and (1-B) were inserted by Act 5 of 2009 with effect from 31/12/2009. The object of these sub-sections is to facilitate a fair investigation since a statement made under Section 161 of CrPC is not expected to be signed as mandated by Section 162 of CrPC. (Para 20) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Section 172 (3) Cr.P.C. - Evidence Act, 1872; Section 145 and 161 - Whenever a case is made out either under Section 145 or under Section 161 of the Evidence Act, the benefit conferred thereunder along with the benefit of Section 172(3) of CrPC has to be extended to an accused. Thus, the accused has a right to cross-examine a police officer as to the recording made in the case diary whenever the police officer uses it to refresh his memory. Though Section 161 of the Evidence Act does not restrict itself to a case of refreshing memory by perusing a case diary alone, there is no exclusion for doing so. Similarly, in a case where the court uses a case diary for the purpose of contradicting a police officer, then an accused is entitled to peruse the said statement so recorded which is relevant, and cross-examine the police officer on that count. What is relevant in such a case is the process of using it for the purpose of contradiction and not the conclusion. To make the position clear, though Section 145 read with Section 161 of the Evidence Act deals with the right of a party including an accused, such a right is limited and restrictive when it is applied to Section 172 of CrPC. Suffice it is to state that the said right cannot be declined when the author of a case diary uses it to refresh his memory or the court uses it for the purpose of contradiction. Therefore, held that Section 145 and Section 161 of the Evidence Act on the one hand and Section 172(3) of CrPC on the other are to be read in consonance with each other, subject to the limited right conferred under sub-section (3) of Section 172 of CrPC. (Para 27) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Section 193 - Report of police officer on completion of investigation

[Section 193(2) extends this requirement to complete the investigation within two months, offences under the Provisions of Protection of Children from Sexual Offences Act also [Sections 4, 6, 8, 10, and 12 of POCSO Act, 2012] in addition to offences of rape and gang rape. Section 193(3)(i) of the BNSS provides that reports to Magistrate can also be forwarded through electronic communication. The newly inserted clause (i) of sub-section 193(3) (i) of BNSS provides that the report shall also contain 'the sequence of custody in the case of electronic devices'. Clause 193(3)(ii) of BNSS provides that the police officer shall, within 90 days, inform the progress of investigation by any means including electronic communication to informant or the victim. Subsection (8) is newly inserted, which mandates the police officer investigating the case to submit such number of copies of police report for supply to the accused. Proviso to the same authorises electronic communication for this purpose. The new proviso to subsection (6) provides for further investigation during the trial with the permission of the Court]

Section 173 (8) Cr.P.C. - Courts should refrain from ordering further investigation when the party requesting further investigation under Section 173 (8) CrPC has not whispered about anything new in its evidence and has based its application for further investigation without averring fresh materials. K. Vadivel v. K. Shanthi, 2024 LiveLaw (SC) 757

Section 173 (2), 190 & 204 Cr.P.C. – There is an inherent connect between the chargesheet submitted under Section 173(2) of the Code, cognisance which is taken under Section 190 of the Code, issue of process and summoning of the accused under Section 204 of the Code, and thereupon issue of notice under Section 251 of the Code, or the charge in terms of Chapter XVII of the Code. The details set out in the chargesheet have a substantial impact on the efficacy of procedure at the subsequent stages. The chargesheet is integral to the process of taking cognisance, the issue of notice and framing of charge, being the only investigative document and evidence available to the court till that stage. (Para 20) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337 : AIR 2024 SC 2420 : 2024 CriLJ 2322

Section 173 (8) Cr.P.C. – The requirement of “further evidence” or a “supplementary chargesheet” as referred to under Section 173(8) of the Code, is to make additions to a complete chargesheet, and not to make up or reparate for a chargesheet which does not fulfil requirements of Section 173(2) of the Code. (Para 13) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337 : AIR 2024 SC 2420 : 2024 CriLJ 2322

Section 173 (2) Cr.P.C. – Contents of chargesheet – The need to provide lead details of the offence in the chargesheet is mandatory as it is in accord with paragraph 122 of the police regulations. The investigating officer must make clear and complete entries of all columns in the chargesheet so that the court can clearly understand which crime has been committed by which accused and what the material evidence available. Statements under Section 161 of the Code and related documents have to be enclosed with the list of witnesses. Substantiated reasons and grounds for an offence being made in the chargesheet are a key resource for a Magistrate to evaluate whether there are sufficient grounds for taking cognisance, initiating proceedings, and then issuing notice, framing charges etc. (Para 20, 31 & 31) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337 : AIR 2024 SC 2420 : 2024 CriLJ 2322

Section 173 Cr.P.C. – Power of Magistrate to act on Police report – 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 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. (Para 14) Dablu Kujur v. State of Jharkhand, 2024 LiveLaw (SC) 227

Section 173 Cr.P.C. – Police report – 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. (Para 13) Dablu Kujur v. State of Jharkhand, 2024 LiveLaw (SC) 227

Section 173 (2) Cr.P.C. – Mandatory requirements of police report – It is found that the investigating officers while submitting the chargesheet/Police Report do not comply with the requirements of the Section 173(2). Though 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, the mandatory requirements required to be complied with by such officers in the Police Report/Chargesheet are laid down in Section 173. It is incumbent on the part of the Investigating Officer to strictly comply with the requirements of Section 173(2). Only the report forwarded by the police officer to the Magistrate under Section 173(2). 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. (Para 12 & 13) Dablu Kujur v. State of Jharkhand, 2024 LiveLaw (SC) 227

Section 173 (2) Cr.P.C. – Directions issued and particulars listed for compliance in a police report on completion of investigation – Report of police officer on the completion of investigation shall contain (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 Cr.PC. (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 IPC. (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 Cr.PC. 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 Cr.PC. 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). (Para 17) Dablu Kujur v. State of Jharkhand, 2024 LiveLaw (SC) 227

Section 173 (2) Cr.P.C. – Right to default bail on grounds of incomplete police report – 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. (Para 15) Dablu Kujur v. State of Jharkhand, 2024 LiveLaw (SC) 227

Section 173 (8) Cr.P.C. - Protest Petition - An application seeking further investigation can be treated as a protest petition if the application prima facie establishes the commission of the offences, and such an application can't be technically rejected because procedural recourse of filing a protest petition is not followed. Although the proper course for the complainant would have been to file a protest petition instead of filing it under Section 173(8) for further investigation, a petition should not be rejected merely because it is filed under the wrong caption. XXX v. State, 2024 LiveLaw (SC) 110

Section 173 (8) Cr.P.C. - Protest Petition - Maintainability of a second complaint or second protest petition - the principles governing such maintainability depend on the manner and grounds on which the earlier complaint against the negative final report was dismissed. There's no bar on the maintainability of the second complaint against the negative Final Report/Charge Sheet if the magistrate believes that the core of both complaints is different. If the earlier disposal of the complaint was on merits, the second complaint on “almost identical facts” that were raised in the first complaint would not be maintainable. There's no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances i.e., where the earlier dismissal order suffers from any infirmity. Subrata Choudhury @ Santosh Choudhury v. State of Assam, 2024 LiveLaw (SC) 856 : AIR 2024 SC 5690

Section 173 (8) Cr.P.C. - It would be impermissible under the law for a Judicial Magistrate to take cognizance of a supplementary charge-sheet submitted after further investigation if it doesn't contain any fresh oral or documentary evidence, would be impermissible under the law. While submitting the supplementary charge-sheet as a result of an order of further investigation under Section 173 (8) Cr.P.C., the Investigating Officer shall mention new evidence found to substantiate the conclusions drawn by him. Otherwise, such supplementary charge-sheet lacks investigative rigour and fails to satisfy the requisites of Section 173 (8) Cr.P.C. The provision for submitting a supplementary report infers that fresh oral or documentary evidence should be obtained rather than reevaluating or reassessing the material already collected and considered by the investigating agency while submitting the initial police report, known as the chargesheet under Section 173(2) CrPC. (Para 26 & 27) Mariam Fasihuddin v. State by Adugodi Police Station, 2024 LiveLaw (SC) 53 : AIR 2024 SC 801 : 2024 Cri LJ 1033

Section 210 - Cognizance of offences by Magistrates

[The words "including any complaint filed by a person authorised under any special law" and "submitted in any mode including electronic mode" are added in clause (a) and (b) of subsection (1)]

Section 190 Cr.P.C. - Criminal cases cannot be allowed to proceed based on vague and obscure complaints. Kailashben Mahendrabhai Patel v. State of Maharashtra, 2024 LiveLaw (SC) 753

Section 190(1)(a) Cr.P.C. – To treat Protest Petition as complaint – Once additional evidence was being relied upon which had been filed along with the Protest Petition then the only option open was to treat it as a private complaint proceeded to take cognizance under Section 190(1)(a) CrPC after following the due procedure in Chapter XV of the CrPC. Held, CJM took into consideration not only the Protest Petition but also the affidavit filed in support of the Protest Petition for taking cognizance and summoning the accused. Magistrate ought to have treated the Protest Petition as a complaint and followed the provisions and the procedure prescribed under Chapter XV of the CrPC. (Para 5, 7 & 11) Mukhtar Zaidi v. State of Uttar Pradesh, 2024 LiveLaw (SC) 315

Section 215 - Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

[BNS sections replace corresponding IPC sections. The words "or of some other public servant who is authorised by the concerned public servant so to do" are added]

Section 195 Cr.P.C. - Bar under Section 195(1)(b) - De Novo Trial - Whether appellant has locus standi to prefer this appeal? Whether the High Court rightly held the proceedings to be barred under Section 195(1)(b) of the Cr.P.C.? Whether the High Court was justified in ordering de novo steps against the appellant? The Court reaffirmed that locus standi under Article 136 of the Constitution can be extended to third parties with a bona fide interest in the matter, provided the appeal advances substantial justice. The Court held that the appellant, a socially spirited individual connected to the matter, had locus standi to maintain the appeal, especially given the grave allegations of interference with judicial processes. The Court observed that the High Court erred in quashing the proceedings based on Section 195(1)(b). The initiation of the proceedings stemmed from judicial directions and not from a private complaint. The Court emphasized that judicial or administrative orders by a subordinate court are sufficient to overcome the statutory bar under Section 195(1)(b). The Court upheld the High Court's direction for a de novo trial, citing the principles in Nasib Singh v. State of Punjab, (2022) 2 SCC 89 and emphasizing that retrial is permissible in exceptional circumstances to avert miscarriage of justice. Locus standi under Article 136 is context-dependent and must be exercised with vigilance to prevent abuse. The bar under Section 195(1)(b) Cr.P.C. applies only when offences are committed with respect to documents in judicial custody and not prior. Retrial is justified in rare cases where procedural or substantive lapses lead to miscarriage of justice. M.R. Ajayan v. State of Kerala, 2024 LiveLaw (SC) 905

Section 195 Cr.P.C. bar not applicable when forgery was committed on document before it was given as evidence in Court. Arockiasamy v. State of Tamil Nadu, 2024 LiveLaw (SC) 717

Section 217 - Prosecution for offences against the State and for criminal conspiracy to commit such offence

[No change]

Section 196 & 196A Cr.P.C. – Under section 196, a jurisdictional court shall take cognizance only upon a complaint made by the order of, or under the authority from the Government, or a District Magistrate, or such other officer as empowered by the Government for the aforesaid purpose. The compliance under section 196 mandatory, failing which a Court cannot take cognizance. Section 196A only deals with specified classes of criminal conspiracy. Section 196-A(1) speaks of the object of the conspiracy qua an illegal act other than an offence, a legal act by illegal means, or an offence to which Section 196 applies. For taking cognizance of such an offence, a complaint can only be made either by an order of the Government, or under its authority, or by an officer empowered by it. In the case of Section 196-A, cognizance of a complaint can be taken by a Court only after satisfying itself of the due compliance of Section 196-A(1) with respect to competence of the authority. Though Sections 196 and 196-A seem to be similar insofar as the authority competent to convey a complaint is concerned, under Section 196 a District Magistrate can lodge it by himself, whereas, the same provision is not available under Section 196-A. Hence, Section 196-A of CrPC, 1989 is pari materia to Section 196A. Held, the appellant may comply with the mandate of Section 196-A by seeking appropriate authorization or empowerment as the case may be. If such a compliance is duly made, then the Trial Court shall undertake the exercise of taking cognizance, and proceed further with the trial in accordance with law. (Para 15, 16 & 17) National Investigation Agency v. Owais Amin @ Cherry, 2024 LiveLaw (SC) 389 : AIR 2024 SC 2919

Section 218 - Prosecution of Judges and public servants

[The BNS sections replace the corresponding IPC sections. A second proviso to 218(1)(b) is added, which provides that such Government shall take a decision within a period of one hundred and twenty days from the date of receipt of the request for sanction, and in case it fails to do so, the sanction shall be deemed to have been accorded by such Government. This will curb the tendency to help an accused public servant by such delay tactics.]

Section 197 Cr.P.C. – Objective of - Protection of Public Servants – Scope and Applicability - Legal Principles - The protection under Section 197 CrPC is intended to safeguard public servants from vexatious or frivolous prosecution for acts performed in their official capacity. However, its applicability depends on the specific facts and circumstances of each case. The provision aims to protect honest and responsible public servants from unwarranted criminal proceedings for actions undertaken in the discharge of their official duties, ensuring they are not demoralized in performing their duties. Om Prakash Yadav v. Niranjan Kumar Upadhyay, 2024 LiveLaw (SC) 989

Section 197 Cr.P.C. – Interpretation of "Official Duty" - Reasonable Connection Test - Excess of Duty - Quality of the Act - The expression “acting or purporting to act in the discharge of official duty” must be interpreted to strike a balance—construing strictly for the scope of duties but liberally for the nature of the act once connected to official responsibilities. For Section 197 to apply, there must be a direct and reasonable connection between the alleged act and the official duty, such that the public servant can reasonably claim the act was performed in virtue of their office. Acts exceeding official duties may still attract protection if a reasonable nexus exists between the act and the official capacity. The quality of the act must be evaluated. An opportunity provided by an official position does not suffice unless the act is integrally connected to official duties. Om Prakash Yadav v. Niranjan Kumar Upadhyay, 2024 LiveLaw (SC) 989

Section 197 Cr.P.C. – Prohibited Acts - Limitations of Protection - Actions such as lodging false cases, fabricating evidence, conducting illegal detentions, or engaging in criminal conspiracies do not fall under the protective umbrella of Section 197, as they lack reasonable connection with official duties. The provision is not a shield for public officials to misuse their office for unlawful purposes. The protection must not extend to acts that are a facade for illegal activities. In conclusion, the applicability of Section 197 CrPC is determined by examining whether the act complained of has a reasonable nexus with the discharge of official duties. If such a connection is absent, the protection cannot be claimed, as misuse of the provision would undermine its intent. Om Prakash Yadav v. Niranjan Kumar Upadhyay, 2024 LiveLaw (SC) 989

Section 197 Cr.P.C. – Requirement of Sanction – Determination and Timing - Legal Principles - Sanction May Arise at Any Stage - Role of Defence in Establishing Official Duty - Consideration Beyond Allegations in Complaint - Caution Against Premature Quashing - The need for sanction may not always be evident at the stage of the complaint or police report but could become apparent as facts emerge during the proceedings. Hence, the requirement for sanction can be determined at any stage of the case, depending on the circumstances that unfold. In some cases, a conclusive determination on the requirement of sanction may necessitate granting the defence an opportunity to present evidence. The accused may bring forth material during the trial to demonstrate that the acts complained of were integrally connected with their official duties, warranting protection under Section 197 CrPC. Courts are not restricted to the allegations in the complaint when deciding the issue of sanction. They may examine the entire material on record at the stage when the question arises for consideration. Courts should avoid prematurely staying or quashing criminal trials at the initial stages, as doing so could lead to loss or damage to crucial evidence that may be critical to the adjudication of the case during the trial. In conclusion, the question of sanction is dynamic and context-specific, requiring a careful examination of the evolving facts and evidence to ensure justice while protecting the legitimate interests of public servants. Om Prakash Yadav v. Niranjan Kumar Upadhyay, 2024 LiveLaw (SC) 989

Section 197 Cr.P.C. – Sanction for Prosecution – Scope and Applicability - The appellant, a District Town Planner (Enforcement), was accused of unauthorized demolition of a building belonging to the respondent college. The demolition was undertaken pursuant to a notification declaring the area as controlled and subsequent restoration orders issued under the relevant statute. The respondent's allegations of malafide intent and illegal demolition were challenged by the appellant on the grounds of the demolition being within the scope of her official duties. Held, The appellant acted within her authority and in discharge of official duties. The pendency of an application for regularization of construction did not bar the demolition since it was carried out under lawful orders. The initiation of criminal proceedings without prior sanction under Section 197 CrPC vitiates the process, rendering the complaint and summoning order invalid. Liberty was, however, reserved for the respondent to seek appropriate sanction in accordance with law. Appeals Allowed. Summoning order and consequent trial proceedings quashed. Gurmeet Kaur v. Devender Gupta, 2024 LiveLaw (SC) 983

Section 197 Cr.P.C. - Validity of subsequent sanction for prosecution under the Prevention of Corruption Act, 1988, based on the same material previously considered - Quashing of criminal proceedings under Sections 420, 467, 468, 471, and 120B of the Indian Penal Code, 1860 - Held, the Supreme Court upheld the High Court's view that a subsequent sanction based on the same material as an earlier declined sanction is not legally sustainable. The Court set aside the High Court's quashing of charges under Sections 420, 467, 468, 471, and 120B IPC, noting the chargesheet had been filed after investigation and the High Court did not consider the merits of these charges. The matter was remitted to the High Court for reconsideration of the charges under the IPC. Appeals partly allowed. The judgment underscores the principle that a subsequent sanction for prosecution cannot be sustained if it is based on the same materials considered during the earlier refusal. It also emphasizes the necessity of judicial scrutiny of the merits of charges under the IPC before quashing proceedings. State of Telangana v. C. Shobha Rani, 2024 LiveLaw (SC) 955

Section 197 Cr.P.C. - Applicability - Both the respondents, being civil servants, were public servants removable only with the sanction of the Government. Their alleged acts—allocation of water (by the second respondent) and allotment of land (by the first respondent)—were purportedly committed in the discharge of their official duties, thereby necessitating prior sanction under Section 197 CrPC. The Court upheld the High Court's decision quashing the orders of cognizance against the respondents due to the absence of prior sanction under Section 197 CrPC. The appeals by the Directorate of Enforcement were dismissed, affirming the High Court's view that prior sanction was necessary for prosecuting the respondents, who were public servants acting in the discharge of official duties. Directorate of Enforcement v. Bibhu Prasad Acharya, 2024 LiveLaw (SC) 940

Section 197 Cr.P.C. - Legal Principles - The protection under Section 197 CrPC aims to safeguard public servants from frivolous prosecution for acts performed in good faith during official duties, while not shielding acts of corruption or malfeasance. The requirement of sanction applies only when there is a reasonable connection between the alleged act and the discharge of official duties. Directorate of Enforcement v. Bibhu Prasad Acharya, 2024 LiveLaw (SC) 940

Section 197 Cr.P.C. - Timing of Sanction Plea - The Court reaffirmed that the issue of prior sanction can be raised at any stage of the proceedings, including post-cognizance. Directorate of Enforcement v. Bibhu Prasad Acharya, 2024 LiveLaw (SC) 940

Section 197 Cr.P.C. - Fabrication of records cannot be a part of the official duty of a public servant. (Para 25) Shadakshari v. State of Karnataka, 2024 LiveLaw (SC) 42 : AIR 2024 SC 590

Section 197 Cr.P.C. does not extend its protective cover to every act or omission of a public servant while in service. It is restricted to only those acts or omissions which are done by public servants in the discharge of official duties. (Para 23) Shadakshari v. State of Karnataka, 2024 LiveLaw (SC) 42 : AIR 2024 SC 590

Section 223 - Examination of complainant

[The newly added first proviso to Section 223(1) provides that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. A new sub-section (2) of Section 223 provides that a Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in the course of the discharge of his official functions or duties unless—(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such a public servant is received.]

Sections 200, 203 and 227 – Discharge - The version of PW-1 is that the accused repeatedly kicked on chest with a stick. In the post-mortem, no injury was found on the chest or any other part of the body of the deceased. The expert testimony of the doctor who performed the autopsy of the deceased cannot be completely ignored while deciding the guilt of an accused. Therefore, taking the evidence of the witnesses as it is, there was no material to proceed against the accused in the private complaint. (Para 11 & 12) Ramalingam v. N. Viswanathan, 2024 LiveLaw (SC) 45 : AIR 2024 SC 757 : (2024) 4 SCC 808

Section 225 - Postponement of issue of process

[No change]

Section 202 Cr.P.C. - Scope of Inquiry - At the stage of the issuing process under Section 202 Cr.P.C., the court is not required to determine whether the accused will ultimately be convicted or acquitted. The inquiry is limited to ascertaining whether there are sufficient grounds for proceeding with the case. The Magistrate must focus on the existence of a prima facie case, based on the allegations in the complaint and the evidence presented, without engaging in detailed evaluation of the merits. The accused has no right to be heard at this stage, and the Magistrate's discretion must be judicially exercised. Grounds for quashing the issuance of process include: lack of essential ingredients of the offence, patently absurd allegations, capricious exercise of discretion, or fundamental legal defects in the complaint. Delhi Race Club (1940) Ltd. v. State of Uttar Pradesh, 2024 LiveLaw (SC) 603 : AIR 2024 SC 4531

Section 202 and 482 Cr.P.C. - Issuance of Process and Application of Mind by Magistrate - The issuance of summons in a criminal case is a serious matter and cannot be done mechanically. The Magistrate must apply their mind to the facts alleged in the complaint, consider the evidence, and ensure that sufficient grounds exist for proceeding further. This requires a careful evaluation of whether the complaint discloses an offense and whether the accused is prima facie answerable. Vicarious liability of corporate office bearers cannot be assumed unless explicitly provided for in the statute, and direct allegations against them must be demonstrated. The process of summoning can be challenged under Section 482 of CrPC if it is shown that the Magistrate failed to exercise due discretion and formed an opinion without sufficient material. The Magistrate's order must reflect a subjective satisfaction based on proper scrutiny. Delhi Race Club (1940) Ltd. v. State of Uttar Pradesh, 2024 LiveLaw (SC) 603 : AIR 2024 SC 4531

Section 202 Cr.P.C. – Issue of summon – The Magistrate cannot issue the summons until there is satisfaction that the material was sufficient to pass the summoning order. The learned Magistrate, being not satisfied that the material on the record of the complaint, was sufficient to pass the summoning order, had called for the police report under Section 202 of the Cr.PC. Once the Magistrate has called for the police report under Section 202 of the Cr.PC, then the magistrate couldn't issue summon unless the report is submitted by the police. The order issuing process has drastic consequences and requires application of mind. The learned Magistrate was not justified in passing the order to issue a summons. Shiv Jatia v. Gian Chand Malick, 2024 LiveLaw (SC) 169 : AIR 2024 SC 1186 : 2024 Cri.L.J. 1360

Section 202 (1) Cr.P.C. – Postponement of issue of process – Section 202(1) was amended with effect from 23rd June 2006. The requirement of postponing the issue of the process is applicable only when one of the accused stays outside the jurisdiction of the court. The mandate of postponing the issue of the process introduced with effect from 23rd June 2006 was not applicable on the date of filing of the complaint in 2004. Shiv Jatia v. Gian Chand Malick, 2024 LiveLaw (SC) 169 : AIR 2024 SC 1186 : 2024 Cri.L.J. 1360

Section 202 Cr.P.C. – Summons - A Magistrate, while issuing the summoning order, shall not act in a casual manner; rather they should be satisfied that there exists a sufficient ground for proceedings against the accused. The recording of the satisfaction of the Magistrate while issuing the summons should not be in a cryptic manner but only when a prima facie case is made out from the allegations. Detailed reasoning is not required from the Magistrate while issuing summons, but the Magistrate also needs to record satisfaction that there exists a sufficient ground for proceedings. (Para 18) Sachin Garg v. State of U.P, 2024 LiveLaw (SC) 75

Section 226 - Dismissal of complaint

[No change]

Section 203 & 204 Cr.P.C. – Schedule offence – In absence of scheduled offence, there cannot be any proceeds of crime within the meaning Section 2(1) (u) of the PMLA. Proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property. Existence of the proceeds of crime is a condition precedent for the applicability of Section 3 of the PMLA. If there are no proceeds of crime, the offence under Section 3 of the PMLA is not made out. Hence, there is no need of the Special Court to apply its mind in accordance with Section 203 r.w 204 of the Cr.PC to find out whether a prima facie case is made out or not. (Para 4, 6 & 7) Yash Tuteja v. Union of India, 2024 LiveLaw (SC) 310

Section 227 - Issue of process

[The new proviso to sub-section (1) of Section 227 provides that summons or warrant may also be issued through electronic means.]

Section 204 Cr.P.C. – After a summons is issued under Section 204 of the CrPC on taking cognizance of the offence punishable under Section 4 of the PMLA on a complaint, if the accused appears before the Special Court pursuant to the summons, he shall not be treated as if he is in custody. Therefore, it is not necessary for him to apply for bail. However, the Special Court can direct the accused to furnish bond in terms of Section 88 of the CrPC. (Para 23 (c)) Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383 : AIR 2024 SC 2512

Section 204 Cr.P.C. – Issue of summons – Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issue of summons and this is not a prerequisite for deciding the validity of the summons. Nevertheless, the summons should be issued when it appears to the Magistrate that there is sufficient ground for proceeding against the accused. The Magistrate in terms of Section 204 of the Code is required to exercise his judicial discretion with a degree of caution, even when he is not required to record reasons, on whether there is sufficient ground for proceeding. (Para 17) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337 : AIR 2024 SC 2420 : 2024 CriLJ 2322

Section 204 Cr.P.C. – Setting aside of summoning order by the High Court is challenged – For summoning of an accused, prima facie case made out on the basis of allegations in the complaint and the pre-summoning evidence led by the complainant is sufficient – Held, the Session Court and High Court, have erred in not taking into account certain facts which makes a prima facie case against the accused for the offences for which they were summoned. Hence, prima facie case made out for issuing process against the accused to face trial. (Para 12.1 & 15) Aniruddha Khanwalkar v. Sharmila Das, 2024 LiveLaw (SC) 332 : AIR 2024 SC 2802

Section 228 - Magistrate may dispense with personal attendance of accused

["pleader" is replaced by "advocate".]

Section 205 Cr.P.C. – In a case where the accused appears pursuant to a summons before the Special Court, on a sufficient cause being shown, the Special Court can grant exemption from personal appearance to the accused by exercising power under Section 205 of the CrPC. (Para 23 (d)) Tarsem Lal v. Directorate of Enforcement, 2024 LiveLaw (SC) 383 : AIR 2024 SC 2512

Section 205 Cr.P.C. – Dispense with personal appearance of accused – Section 205 states that the Magistrate, exercising his discretion, may dispense with the personal attendance of the accused while issuing summons, and allow them to appear through their pleader. Held, 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) Sharif Ahmed v. State of Uttar Pradesh, 2024 LiveLaw (SC) 337 : AIR 2024 SC 2420 : 2024 CriLJ 2322

Section 239 - Court may alter charge

[No change]

Section 216 Cr.P.C. does not give any right to the accused to file a fresh application seeking his discharge after the charge is framed by the court, more particularly when his application seeking discharge under Section 227 has already been dismissed. Unfortunately, such applications are being filed in the trial courts sometimes in ignorance of law and sometimes deliberately to delay the proceedings. Once such applications, though untenable, are filed, the trial courts have no alternative but to decide them, and then again such orders would be challenged before the higher courts, and the whole criminal trial would get derailed. Suffice it to say that such practice is highly deplorable, and if followed, should be dealt with sternly by the courts. (Para 11) K. Ravi v. State of Tamil Nadu, 2024 LiveLaw (SC) 624 : AIR 2024 SC 4074

Section 216 Cr.P.C. - Power of courts to alter charge – It is permissible for Courts to alter charges but it can only be done by careful analysis of evidence and the reasons for the same must be recorded in the judgment. The “proof” of “common intention” is necessary to alter conviction from Section 149 to 34 of IPC. In the present case no charge under Section 34 of the IPC was laid against the accused by the Prosecution but when the charge under Section 149 IPC was dropped, the trial Court decided to conveniently alter the charge and with the aid of Section 34 IPC, ordered for conviction of the accused. Held, common intention of the appellants is not established by the prosecution. Further held, the Court while altering the charge from Section 149 to Section 34 IPC omitted to furnish any reasons. Hence, the appellants are entitled to benefit of doubt and their conviction is unsustainable. (Para 17, 19, 20, 21) Madhusudan v. State of Madhya Pradesh, 2024 LiveLaw (SC) 418

Section 216 Cr.P.C. – Charges framed against accused for offence of Bigamy – Held, order framing charge is erroneous on the face of the record because no person other than the spouse to the second marriage could have been charged for the offence punishable under Section 494 IPC simplicitor. Defect in framing of charge is curable and can be altered at any stage as per the provisions of Section 216 CrPC. Further held, allowing the proceedings of the criminal case to be continued against the appellants with defect in charges framed, would tantamount to gross illegality and abuse of the process of Court. Hence, all subsequent proceedings sought to be taken against the appellants are quashed and set aside. (Para 16, 21) S. Nitheen v. State of Kerala, 2024 LiveLaw (SC) 385

Section 250 - Discharge

[New subsection (1) provides that the accused may prefer an application for discharge within a period of sixty days from the date of commencement of the case under Section 232 - Commitment of case to Court of Session when offence is triable exclusively by it.]

Section 227 Cr.P.C. – While considering the application for discharge, only that document is to be considered which forms part of the charge sheet, and not the ones which were never part of the charge sheet. Rajnish Kumar Biswakarma v. State of NCT of Delhi, 2024 LiveLaw (SC) 937

Section 227 Cr.P.C. - Application of judicial mind at the stage of considering discharge - A judge is required to sift through the evidence presented by the prosecution to ascertain whether there is sufficient ground to proceed against the accused. The judge must not act merely as a post office for the prosecution but must exercise judicial discretion to determine whether a prima facie case exists. (Para 20) Karnataka EMTA Coal Mines Ltd. v. Central Bureau of Investigation, 2024 LiveLaw (SC) 606 : AIR 2024 SC 5081

Section 227 Cr.P.C. - Principles - The judge has the power to sift and weigh evidence to determine if a prima facie case is made out. If the materials disclose a grave suspicion, a charge can be framed; however, mere suspicion or weak evidence would justify a discharge. The judge must avoid conducting a mini-trial and should focus on whether the evidence, taken at face value, presumes an offense has been committed. (Para 20) Karnataka EMTA Coal Mines Ltd. v. Central Bureau of Investigation, 2024 LiveLaw (SC) 606 : AIR 2024 SC 5081

Section 227 Cr.P.C. – Discharge of accused in criminal cases – When an application for discharge is filed under Section 227, Cr.PC, the Court concerned is bound to disclose the reason(s), though, not in detail, for finding sufficient ground for rejecting the application or in other words, for finding prima facie case, as it will enable the superior Court to examine the challenge against the order of rejection. (Para 22) Ram Prakash Chadha v. State of Uttar Pradesh, 2024 LiveLaw (SC) 475 : AIR 2024 SC 3540

Section 251 - Framing of charge

[The time limit for framing the charge is added as being within a period of sixty days from the date of first hearing. This section also allows charges to be read and explained, to the accused “present either physically or through audio-video electronic means.”]

Section 228 Cr.P.C. - Framing of charge – Requirements – The standard of test and judgment which is finally applied before recording a finding of conviction against an accused is not to be applied at the stage of framing the charge and just a very strong suspicion, based on the material on record, would be sufficient to frame a charge. The strong suspicion should be the one emerging from the materials on record brought by the prosecution. It is within the jurisdiction of the Court concerned to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused concerned has been made out. Held, the question of framing the charge would arise only in a case where the court upon such exercise satisfies itself about the prima facie case revealing from “the record of the case and the documents submitted therewith” against the accused concerned. Hence, the intention embedded is to ensure that an accused will be made to stand the ordeal of trial only if 'the record of the case and the documents submitted therewith' discloses ground for proceeding against him. Further held, there is no ground for a prima facie case revealed from the materials produced by the prosecution. (Para 14, 15, 19 & 32) Ram Prakash Chadha v. State of Uttar Pradesh, 2024 LiveLaw (SC) 475 : AIR 2024 SC 3540 : 2024 Cri LJ 3639

Section 228 Cr.P.C. - Framing of charge – Even 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. (Para 43) Puneet Sabharwal v. CBI, 2024 LiveLaw (SC) 260 : AIR 2024 SC 2046

Section 258 - Judgment of acquittal or conviction

[New addition to subsection (1) for time bound disposal - After hearing arguments and points of law (if any), the Judge shall give a judgement in the case, “as soon as possible, within a period of thirty days from the date of completion of arguments, which may be extended, to a period of forty-five days for reasons to be recorded in writing”.]

Sections 235, 353 and 354 - Applicability of - Judgment and Sentence - Whether a successor judge is required to re-hear the case on conviction after the transfer of the presiding officer who pronounced the conviction. The Supreme Court dismissed the appeal, upholding the High Court's decision that a successor judge is not obligated to re-hear the case on the point of conviction once the judgment has been pronounced by the predecessor judge. The Court affirmed that the appellant can only be heard on the quantum of sentence under Section 235(2) of the Cr.P.C., not on the conviction already finalized under Section 235(1). The judgment of conviction delivered by the predecessor judge was legally valid and binding. The trial court became functus officio regarding the conviction, leaving only the quantum of sentence to be determined by the successor judge. Harshad Gupta v. State of Chhattisgarh, 2024 LiveLaw (SC) 800

Section 235 Cr.P.C. - Court cannot convict one accused and acquit another when similar or identical evidence is pitted against two accused persons. Yogarani v. State by the Inspector of Police, 2024 LiveLaw (SC) 731 : AIR 2024 SC 4641

Section 265 - Evidence for prosecution

[The new proviso to subsection 265(3) of the BNSS states that evidence of a witness may be recorded by audio-video electronic means at the designated place to be notified by the State Government.]

Section 242 (3) Cr.P.C. - Evidence Act, 1872; Section 138 – The general rule is that witnesses shall be examined in the order laid down in Section 138 of the Indian Evidence Act, 1872. An exception to this rule is Section 242(3) Code of Criminal Procedure, 1973 under which, in a warrant case, the learned Magistrate, by recording reasons, can permit cross-examination of a witness to be postponed till a particular witness or witnesses are examined. Held, recording only the examination-in-chief of 12 prosecution witnesses without recording cross-examination is contrary to the law. (Para 6 & 7) Ekene Godwin v. State of Tamil Nadu, 2024 LiveLaw (SC) 261

Section 330 - No formal proof of certain documents

[Two new provisos are added. Time limit of thirty days for acceptance or denial of the genuineness of the document, provided the Court may relax the time limit as stated in the first proviso. And the second proviso states that experts should be called only if he is disputed by any parties during the trial. The words “may be prescribed by the State Government” is replaced by “the State Government may, by rules, provide”]

Section 294 Cr.P.C. - Admissibility of Evidence without Formal Proof - Fair Trial Doctrine - High Court's Error in Remanding - The case arises from the brutal murder of the appellant's parents on April 22, 1998, allegedly by four accused. The Trial Court convicted the accused based on evidence, including formally admitted documents under Section 294 CrPC. The High Court remanded the case for retrial from the stage of cross-examination of a key witness (PW2), citing procedural irregularities due to the defense counsel's admission of prosecution documents without cross-examination. Held, Once documents are admitted under Section 294 CrPC, further formal proof is unnecessary unless the court requires it, thereby preventing unnecessary delays under the guise of fair trial violations. Documents whose genuineness is admitted by the defense can be read as substantive evidence without formal proof. The Court found that the High Court erroneously interpreted procedural fairness by equating admitted documentary evidence with a denial of fair trial. The remand order was held unnecessary since the defense repeatedly admitted the documents' genuineness over several years. Appeals allowed; the High Court's order was set aside. Shyam Narayan Ram v. State of U.P., 2024 LiveLaw (SC) 821

Section 294 Cr.P.C. - Calling upon the accused to admit or deny the genuineness of the documents produced by the prosecution alongwith the list under Section 294 of Cr.P.C., could not be said to be in any way prejudicial to the right of the accused, nor could it be said to be compelling him to be a witness against himself as contemplated under Article 20(3) of the Constitution of India. However, the Court deleted the observations made in paragraph 56 of the impugned order, which suggested that deliberate denial of a document's genuineness could be considered an aggravating circumstance during sentencing. The petitioner is allowed to raise all legally permissible contentions during the trial. (Para 2 - 4) Ashok Daga v. Directorate Of Enforcement, 2024 LiveLaw (SC) 480

Section 294 Cr.P.C. – No formal proof of certain documents – The essential ingredient of Section 294(1) 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. In this case, it is nobody's case that the appellant-accused was called upon to admit or deny the genuineness of the WhatsApp chats. (Para 21) Pankaj Singh v. State of Haryana, 2024 LiveLaw (SC) 274

Section 335 - Record of evidence in absence of accused

[No change]

Section 299 Cr.P.C. - Evidence Act, 1872; Section 33 – Record of evidence in absence of accused – 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. Held, despite ample efforts made, the witness cannot be traced and produced in the witness box for deposition during trial after the accused had been arrested. Hence, the statement earlier recorded was fit to be read as a piece of substantive evidence against the accused. (Para 31, 38 & 39) Sukhpal Singh v. NCT of Delhi, 2024 LiveLaw (SC) 359 : AIR 2024 SC 2724

Section 340 - Right of person against whom proceedings are instituted to be defended

["Pleader" is replaced by "Advocate".]

Section 303 and 304 Cr.P.C. - Right to Legal Aid – Fundamental Right under Article 21 – Duty of Trial Courts - The right to legal aid is a fundamental right guaranteed under Article 21 of the Constitution of India. Section 303 of the Code of Criminal Procedure (CrPC) ensures every accused the right to be defended by a pleader of their choice, while Section 304 mandates the provision of free legal aid to accused persons lacking sufficient means to engage an advocate. It is the duty of the trial court to inform the accused of their right to free legal aid in cases where they have not engaged counsel or are unable to afford one. Failure to fulfill this obligation infringes upon the accused's constitutional right to a fair trial. Ashok v. State of Uttar Pradesh, 2024 LiveLaw (SC) 941

Section 341 - Legal aid to accused at State expense in certain cases

["Pleader" is replaced by "Advocate"]

Section 304 CrPC - Legal Aid - Duty of Courts - Public Prosecutors and Legal Aid Advocates in Ensuring Fair Trial - Court's Duty to Provide Legal Aid - Continuity and Competence of Legal Representation - Courts must ensure accused persons are informed of their right to free legal aid at all material stages, including remand, framing of charges, and recording of evidence. Public Prosecutors must highlight the need for legal aid when an accused is unrepresented and ensure the trial proceeds lawfully and fairly. They must assist the Court in framing questions during the accused's examination and highlight any omissions. Legal aid advocates must possess adequate experience and knowledge of criminal, evidentiary, and procedural laws. In cases involving potential life or death sentences, only advocates with at least ten years of criminal practice should be appointed. State Legal Services Authorities must ensure training and effective monitoring of legal aid advocates. The same legal aid advocate should represent the accused throughout the trial unless compelling reasons necessitate a change. Courts may appoint senior advocates for complex cases to ensure effective representation. Effective legal aid is integral to Article 21 of the Constitution. Providing inadequate or incompetent legal aid infringes on the accused's fundamental rights. The judgment emphasizes the need for effective implementation of legal aid measures and directs its dissemination to all State Legal Services Authorities. Ashok v. State of Uttar Pradesh, 2024 LiveLaw (SC) 941

Section 348 - Power to summon material witness, or examine person present

[No change]

Section 311 of Cr.P.C – Protection of Child from Repeated Testimony – a child should not be repeatedly called to testify to protect them from further trauma. Mechanical recall of the victim would defeat the protective purpose of the POCSO Act. Madhab Chandra Pradhan v. State of Odisha, 2024 LiveLaw (SC) 615

Section 311 Cr.P.C. - A conjoint reading of Section 311 CrPC and Section 165 of the Evidence Act makes it clear that the trial Court is under an obligation not to act as a mere spectator and should proactively participate in the trial proceedings, so as to ensure that neither any extraneous material is permitted to be brought on record nor any relevant fact is left out. It is the duty of the trial Court to ensure that all such evidence which is essential for the just decision of the case is brought on record irrespective of the fact that the party concerned omits to do so. (Para 48) Gaurav Maini v. State of Haryana, 2024 LiveLaw (SC) 471 : AIR 2024 SC 3601

Section 311 Cr.P.C. – 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 uninhibited power to put questions to the witness either during the chief examination or cross-examination or even during re-examination for this purpose. 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. (Para 69, 73 & 74) Anees v. State Govt of NCT, 2024 LiveLaw (SC) 344 : AIR 2024 SC 2297 : 2024 CriLJ 2377

Section 351 - Power to examine the accused

[No change]

Section 313 Cr.P.C. - Failure to Comply with Section 313 CrPC – Prejudice to the Accused – Material Circumstances Not Explained – Acquittal on Procedural Grounds - When material circumstances appearing in evidence are not put to the accused under Section 313 of the Code of Criminal Procedure (CrPC) in a language understood by him, it causes prejudice, impairing his ability to decide whether to lead a defense. In this case, the failure to put critical evidence, including the date and place of the alleged crime, to the appellant during his examination violated the procedural safeguards under Section 313, CrPC. Despite the passage of over 15 years since the incident and the appellant's incarceration for more than 12 years, the defect cannot be rectified at this stage. Consequently, the appellant is entitled to acquittal. The imposition of the death penalty by the Trial Court, overlooked by both the Trial Court and High Court despite the procedural lapse, was held to be a grave miscarriage of justice, warranting acquittal. Ashok v. State of Uttar Pradesh, 2024 LiveLaw (SC) 941

Section 313 Cr.P.C. - Role of the Public Prosecutor – Duty to Ensure Compliance with Section 313, CrPC – Fair Trial Obligations Under Section 313(5) of the Code of Criminal Procedure, 1973 (or Section 351(5) of the Bharatiya Nagarik Suraksha Sanhita, 2023), the Court may seek the assistance of the Public Prosecutor and defense counsel in preparing questions for the accused's examination. The Public Prosecutor plays a crucial role in ensuring a fair trial by drawing the Court's attention to the necessity of putting all incriminating material before the accused. It is the Public Prosecutor's duty to be present during the accused's examination and actively assist the Court in compliance with legal requirements. Ashok v. State of Uttar Pradesh, 2024 LiveLaw (SC) 941

Section 313 Cr.P.C. – Conviction of accused challenged on grounds of violation of Section 313 – Section 313 embodies principle of natural justice viz., audi alteram partem, empowering the Court to examine the accused thereunder to give the accused concerned an opportunity to explain the incriminating circumstances appearing against him in the prosecution evidence. Questioning under Section 313(1)(a), Cr.PC, is discretionary but the questioning under Section 313(1)(b) thereof is mandatory. Held, if a fatal non-compliance in the matter of questioning resulted in 'material prejudice' to any convict in a criminal case, the trial concerning that convict should stand vitiated. The examination of the appellant under Section 313, Cr.PC, reveals that both the incriminating circumstances were not directly or even indirectly put to the appellant while being examined under Section 313, Cr.PC. Held, the twin incriminating circumstances were not put to the appellant while he was being questioned under Section 313, Cr.PC, and they ultimately culminated in his conviction, it is clear that the appellant was 'materially prejudiced' and it had resulted in blatant miscarriage of justice. The failure as above is not a curable defect and it is nothing but a patent illegality vitiating the trial qua the appellant. Hence, the conviction of the appellant could not be sustained. (Para 19, 20, 24 & 26) Naresh Kumar v. State of Delhi, 2024 LiveLaw (SC) 443 : AIR 2024 SC 3233 : 2024 CriLJ 3224

Section 313 Cr.P.C. - Evidence Act, 1872– Admissibility of statement of accused under Section 313(1) as evidence – Section 313(4) of the Cr.PC provides that the answers given by the accused in his examination under Section 313(1) of the Cr.PC may be taken into consideration in the trial. But the conviction cannot be based solely on the statements made by an accused under Section 313(1) but in conjunction with the evidence adduced by the prosecution. (Para 6) State of Himachal Pradesh v. Raghubir Singh, 2024 LiveLaw (SC) 403 : AIR 2024 SC 2395

Section 313 Cr.P.C. - Evidence Act, 1872 – Cross-examination of the prosecutrix – The case of accused made out in statement under Section 313 of Cr.PC was that they was in a physical relationship with the victim and were paying money to the victim for maintaining a sexual relationship was not put to the prosecutrix in cross-examination. Held, while appreciating the evidence adduced by the prosecution, answers given by the accused in the examination under Section 313(1), that they maintained a physical relationship with the prosecutrix by paying her money can be considered. In the cross-examination, the case put to the prosecutrix was that she had voluntarily accompanied the accused and there was no suggestion given by the accused that the sexual intercourse with the consent of the prosecutrix. Further held, the evidence of the prosecutrix in her examination-in-chief that the accused committed sexual intercourse with her has not been shaken. Conviction granted by the High Court is upheld. (Para 10 & 12) State of Himachal Pradesh v. Raghubir Singh, 2024 LiveLaw (SC) 403 : AIR 2024 SC 2395

Section 313 Cr.P.C. – It is only after the prosecution discharges its duty of proving the case beyond all reasonable doubt that the false explanation or non-explanation of the accused could be taken into consideration. (Para 21) Raja Naykar v. State of Chhattisgarh, 2024 LiveLaw (SC) 60 : AIR 2024 SC 695 : (2024) 3 SCC 481

Section 313 Cr.P.C. - Statement recorded u/s. 313 CrPC cannot form the sole basis of conviction. Mere omission to take a specific plea by accused when examined u/s 313 CrPC, is not enough to denude him of his right if the same can be made out otherwise. (Para 33) Darshan Singh v. State of Punjab, 2024 LiveLaw (SC) 13 : AIR 2024 SC 627 : (2024) 3 SCC 164

Section 358 - Power to proceed against other persons appearing to be guilty of offence

[No change]

Section 319 Cr.P.C. - Applicability of - Standard for Invoking Section 319 - Criteria for summoning additional accused based on evidence - Role of Cross-Examination - The second respondent filed an application under Section 319 CrPC, relying on the deposition of two prosecution witnesses (PW-2 and PW-4), alleging that the appellant struck the deceased with a spade. The trial court rejected the application. However, the High Court reversed this decision and summoned the appellant as an additional accused. The Court reiterated that the test under Section 319 CrPC is whether the evidence, if unrebutted, would lead to conviction. It emphasized that the satisfaction required for invoking Section 319 CrPC is higher than a prima facie case needed for framing charges. Since the application under Section 319 CrPC arose after the cross-examination of the witnesses, the Court held that the omissions in their cross-examination, amounting to contradictions, must be considered. The allegations in the examination-in-chief were contradicted in cross-examination. No prima facie case or satisfaction necessary under Section 319 CrPC could be recorded. The Supreme Court held that the High Court erred in allowing the application under Section 319 CrPC and reinstated the trial court's order rejecting the application. The appeal was allowed, and the High Court's order was set aside. The observations on evidence were confined to the scope of Section 319 CrPC and would not affect the trial on merits. Hetram @ Babli v. State of Rajasthan, 2024 LiveLaw (SC) 930

Section 319 Cr.P.C. - Whether an application under Section 319 Cr.P.C. must be decided solely on the basis of the examination-in-chief without awaiting cross-examination. Held, the Supreme Court allowed the appeal, setting aside the High Court Order that directed the trial court to decide an application under Section 319 CrPC based on the examination-in-chief alone. The Court held that there is no mandatory requirement to decide the application before cross-examination. The Trial Court retains discretion in this regard, and a refusal to appear for cross-examination by prosecution witnesses cannot justify delaying the trial. The Court clarified that the Constitution Bench in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 permits reliance on examination-in-chief for a prima facie finding under Section 319 CrPC but does not mandate that cross-examination be bypassed. The Trial Court was correct in rejecting the application for lack of admissible evidence and acquitting the accused under Section 232 CrPC. The appeal was allowed, the High Court's order was set aside, and the Trial Court's order acquitting the accused was restored. Asim Akhtar v. State of West Bengal, 2024 LiveLaw (SC) 814 : AIR 2024 SC 5744

Section 319 Cr.P.C. - Order to summon additional accused passed after acquittal/conviction of co-accused is unsustainable. Devendra Kumar Pal v. State of U.P., 2024 LiveLaw (SC) 687

Section 319 Cr.P.C. – Summon order challenged – Sanction under Section 19 of PC Act is Necessary to Summon Public Servant as Additional Accused – Held, courts cannot take cognizance against any public servant for offences committed under the PC Act on an application under section 319 of the CrPC, without first following the requirements of Section 19 of the P.C Act. The correct procedure should have been for the prosecution to obtain sanction under Section 19 of the P.C Act from the appropriate Government, before formally moving an application before the Court under Section 319 of CrPC. Hence, on absence of the sanction the entire procedure remains flawed. High Court's order of setting aside the order of Summon is upheld. (Para 11) State of Punjab v. Partap Singh Verka, 2024 LiveLaw (SC) 461 : AIR 2024 SC 3299

Section 319 Cr.P.C. – Legality of summon order – Power under Section 319 can only be excercised if evidence against the accused is strong and reliable i.e. much stronger evidence than mere probability of his complicity. 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. Held, deposition of PW-1, not being an eye-witness, is not sufficient enough to invoke the extra-ordinary jurisdiction under Section 319 to summon the appellants. There are no other witnesses or documentary evidence against the appellants. The higher degree of satisfaction that is required for exercising power under Section 319 Cr.P.C. is not met. Hence, the trial Court committed a serious error in allowing the application under Section 319 and issuing summons to the appellants. Summon order is set aside. (Para 16, 23, 24 & 25) Shankar v. State of Uttar Pradesh, 2024 LiveLaw (SC) 345

Section 319 Cr.P.C. – Discretionary powers of High Court –The materials on record could not be said to have satisfied the threshold envisaged under Hardeep Singh v State of Punjab & Ors., i.e., 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. The High Court failed to appreciate that the discretionary powers under Section 319 of the CrPC ought to have been used sparingly where circumstances of the case so warrant. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Code of Criminal Procedure. Only where strong and cogent evidence occurs against a person from the evidence laid before the court that such power should be exercised and not in a casual and cavalier manner. (Para 7 & 10) N. Manogar v. Inspector of Police, 2024 LiveLaw (SC) 196

Section 319 Cr.P.C. - High Court overturned the Trial Court Order; and accordingly impleaded the Appellants' as accused person(s) in the Underlying Proceedings on the satisfaction of a prima-facie finding that the materials on record i.e., (i) vague allegations emanating from the underlying complaint; (ii) the Complainant's statement under Section 161 of the CrPC; and (iii) the Complainant's examination-in-chief, are sufficient to proceed against the Appellant(s). Held, the High Court failed to appreciate that the discretionary powers under Section 319 of the CrPC ought to have been used sparingly where circumstances of the case so warrant. The Trial Court Order was well reasoned and did not suffer from any perversity. Moreover, the materials on record could not be said to have satisfied the threshold i.e., more than a prima facie case, as exercised at the time of framing of charge but short of evidence that if left unrebutted would lead to conviction. (Para 9 & 10) N. Manogar v. Inspector of Police, 2024 LiveLaw (SC) 196

Section 319 Cr.P.C. - Demand of money for extending benefits during custody - Application filed under Section 319 Cr.P.C. against the police officials - All the witnesses have equivocally narrated the incidents that took place at different places regarding threats, demand of huge sum of money, torture etc. - According to them, the amount was being demanded for the following benefits to be extended: (i) firstly, not to physically torture; (ii) not to ask for further police remand; (iii) to help get bail; and (iv) to give good treatment during custody. Held, there appears to be prima facie evidence on record to make it a triable case as against the police officials. (Para 8 - 14) Gurdev Singh Bhalla v. State of Punjab, 2024 LiveLaw (SC) 28 : (2024) 3 SCC 142

Section 360 - Withdrawal from prosecution

["by the Delhi Special Police Establishment under the Delhi Special Establishment Act 1946 (25 of 1946)" is replaced by "under any Central Act," and a new proviso is added which provides further that no Court shall allow such withdrawal without giving an opportunity of being heard to the victim in the case.]

Section 321 – Permission for withdrawal of the prosecution against an accused is challenged – Held, the Trial Court's has taken a casual approach towards the accusations against the then sitting Member of Legislative Assembly in allowing withdrawal of his prosecution and merely because an accused person is elected to the Legislative Assembly cannot be a testament to their image among the general public. Matters of a gruesome crime akin to the double murder in the present case do not warrant withdrawal of prosecution merely on the ground of good public image of an accused named in the charge sheet after thorough investigation. Contrary to the Trial Court's view, such withdrawal cannot be said to be allowed in public interest in cases of involvement of influential people. Hence, it is of paramount importance to ensure progression of the trial without further delay. (Para 12) Shailendra Kumar Srivastava v. State of Uttar Pradesh, 2024 LiveLaw (SC) 476 : AIR 2024 SC 3727

Section 395 - Order to pay compensation

[No change]

Section 357 and 389 Cr.P.C. - Penal Code, 1860; Sections 120B, 419, 420 - Prevention of Corruption Act, 1988 – Sections 13(1)(d), 13(2) – Whether the suspension of the substantive sentence by the High Court extended to the sentence of fine imposed on the respondent. Whether the respondent could avoid imprisonment for default of fine payment despite partial compliance. Held, a fine is a distinct form of punishment under Section 53 of the IPC, and its suspension is within the ambit of Section 389 CrPC. The High Court's order suspending the respondent's sentence implicitly covered the fine, given the substantial embezzlement allegations. However, to balance justice and ensure compliance, the Court modified the suspension to be conditional upon the deposit of ₹15,00,000. The Court clarified that a sentence of fine is as significant as imprisonment, and its suspension should be assessed case-wise, considering the accused's rights under Article 21 of the Constitution. Imposing an impossible financial condition for suspension could undermine the right to appeal. Central Bureau of Investigation v. Ashok Sirpal, 2024 LiveLaw (SC) 840

Section 357 Cr.P.C. - The appellant, convicted under Sections 409 and 201 of the IPC and sentenced to four years and six months of rigorous imprisonment, was ordered by the High Court to deposit 50% of the Rs. 2.86 crore compensation to obtain bail and suspension of sentence. The Supreme Court, referencing the principles of Section 357 Cr.P.C. and the case of Dilip S. Dahanukar v. Mahindra Co. Ltd. (2007), found the High Court's condition unjustified and allowed the appeal, removing the requirement to deposit 50% of the compensation. Nikhil v State of Maharashtra, 2024 LiveLaw (SC) 478

Section 357 Cr.P.C. – Victimology – Impugned order to pay compensation in lieu of Punishment – Held, the High Court having once affirmed the conviction and awarded sentence of four years could not have further diluted the order of sentence by asking the accused persons to pay compensation. Further held, 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. Hence, the High Court fell into error. 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. If payment of compensation becomes a consideration for reducing sentence, itt 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 21, 23, 25, 26) Rajendra Bhagwanji Umraniya v. State of Gujarat, 2024 LiveLaw (SC) 378 : AIR 2024 SC 3172

Section 357 Cr.P.C. – Victimology – Object – The idea of victim compensation – Theory of Victimology seeks 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. The object of victim compensation is to rehabilitate those who have suffered any loss or injury by the offence which has been committed. The sole factor for deciding the compensation to be paid is the victim's loss or injury as a result of the offence and the convict's capacity to pay, and has nothing to do with the sentence that has been passed. (Para 22, 24) Rajendra Bhagwanji Umraniya v. State of Gujarat, 2024 LiveLaw (SC) 378 : AIR 2024 SC 3172

Section 357 (1) Cr.P.C. - A victim of a crime cannot be treated merely as a prosecution witness. Section 357(1) of Cr.P.C. empowers the court to order that the fine amount recovered be given to any person as compensation who has suffered any loss or injury caused due to that offence. There may be times when the situation may demand that a substantive amount of compensation be paid to the victim and the convict may not be financially that strong to bear that burden. For such situations, Section 357A was therefore introduced in Criminal Procedure Code for this reason, where compensation to the victims may be paid out of State funds, as the State had the responsibility to protect the victim against the offence that had been committed against the victim of the crime. (Para 19) Neeraj Sharma v. State of Chhattisgarh, 2024 LiveLaw (SC) 7 : AIR 2024 SC 271 : (2024) 3 SCC 125

Section 396 - Victim compensation scheme

[ Compensation to be in addition to fine under section 65, section 70 and subsection (1) of section 124 of the Bharatiya Nyaya Sanhita, 2023 [under section 326A or section 376D of Indian Penal Code]

Section 357A and 357B - The appellant was convicted by the Sessions Court for gang rape (Section 376-D IPC), outrage of modesty (Section 354 IPC), and sexual offences against a minor under the POCSO Act, receiving a cumulative sentence of 20 years imprisonment with fines. The High Court dismissed his application for suspension of sentence and bail under Section 389 CrPC. Aggrieved, the appellant approached the Supreme Court. Whether the appellant should be granted suspension of sentence and bail. Whether the Sessions Court erred in not awarding victim compensation under Section 357A CrPC and POCSO Rules. Held, the Supreme Court allowed the appeal, granting suspension of sentence and bail, citing: The appellant had already served over half of his sentence. Co-accused had been granted similar relief by the High Court. Low probability of sentence enhancement by the High Court. The Court also directed : Sessions Courts to mandatorily consider awarding victim compensation under Section 357A CrPC and POCSO Rules in cases involving sexual offences, particularly against minors and women. High Courts to ensure implementation of victim compensation schemes, such as Maharashtra's "Manodhairya Scheme." Expedited consideration of interim compensation for the victim in the present case under the POCSO Rules. The Court emphasized the need for uniform and prompt implementation of victim compensation schemes across the judiciary. Appeal allowed, and the appellant was granted bail. Directions were issued for enhancing victim compensation mechanisms. Sahiba Noor Mohammad v. State of Maharashtra, 2024 LiveLaw (SC) 860

Section 398 - Witness protection scheme

[Newly Added - “Every State Government shall prepare and notify a Witness Protection Scheme for the State with a view to ensure protection of the witnesses”.]

Vulnerable Witnesses Deposition Centres (VWDCs) - All the High Courts to take necessary steps for setting up of VWDCs in all districts. This exercise must be completed on or before 30 April 2024. (Para 2) Smruti Tukaram Badade v. State of Maharashtra, 2024 LiveLaw (SC) 43

Section 415 - Appeals from convictions

["a Metropolitan Magistrate or Assistant Sessions Judge" excluded.]

Section 374 - After reappreciating the evidence, the appellate court must record reasons for either accepting the evidence of the prosecution or for disbelieving the evidence of the prosecution. The Court must record reasons for deciding whether the charges against the accused have been proved. In a given case, if the conviction is confirmed, the Court will have to deal with the legality and adequacy of the sentence. In such a case, there must be a finding recorded on the legality and adequacy of the sentence with reasons. (Para 13) In Re: Right to Privacy of Adolescents, 2024 LiveLaw (SC) 587 : AIR 2024 SC 4004

Section 374 Cr.P.C. - When a Court deals with an appeal against an order of conviction, the judgment must contain (i) a concise statement of the facts of the case, (ii) the nature of the evidence adduced by the prosecution and the defence, if any, (iii) the submissions made by the parties, (iv) the analysis based on the reappreciation of evidence, and (v) the reasons for either confirming the guilt of the accused or for acquitting the accused. The appellate court must scan through the evidence, both oral and documentary, and reappreciate it. (Para 13) In Re: Right to Privacy of Adolescents, 2024 LiveLaw (SC) 587 : AIR 2024 SC 4004

Section 374 Cr.P.C. - Appeal against conviction – Held, Conviction is confirmed. The impugned judgments do not suffer from any infirmity warranting any interference. (Para 49 & 50) Sukhpal Singh v. NCT of Delhi, 2024 LiveLaw (SC) 359 : AIR 2024 SC 2724

Section 418 - Appeal by the State Government against sentence

[The words "the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other" are excluded.]

Section 377 Cr.P.C. - Enhancement of sentence – Held, enhancement in sentence is not justified nearly 35 years after the incident. (Para 14) State of Himachal Pradesh v. Raghubir Singh, 2024 LiveLaw (SC) 403 : AIR 2024 SC 2395

Section 419 - Appeal in case of acquittal

[The words "the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other" are excluded.]

Section 378 Cr.P.C. - While deciding an appeal against the acquittal, it would be impermissible for the Appellate Courts to reverse a well-reasoned judgment rendered by the trial court. A clear finding ought to be recorded by the Appellate Court while reversing the trial court's judgment. Ramesh v. State of Karnataka, 2024 LiveLaw (SC) 718

Section 378 Cr.P.C. – Appeal against acquittal – Scope of interference by an appellate Court – Grounds for reversing the judgment of acquittal recorded by the trial Court: (i) That judgment of acquittal suffers from patent perversity; (ii) That the same is based on a misreading/omission to consider material evidence on record; (iii) 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. Held, none of these essential mandates governing an appeal against acquittal were adverted to by the High Court. Hence, impugned judgment reversing acquittal into conviction, as recorded by the trial Court is contrary to the principles established by law. (Para 39, 41 & 42) Babu Sahebagouda Rudragoudar v. State of Karnataka, 2024 LiveLaw (SC) 316 : AIR 2024 SC 2252 : 2024 CriLJ 2021

Section 378 Cr.P.C. - Power of appellate court in reversal of acquittal – Unless the finding of acquittal is found to be perverse or impossible, interference with the same would not be warranted. Held, no perversity or impossibility could be found in the approach adopted by the learned trial Judge. The elaborate exercise of the trial Judge, has been washed away by the High Court in a totally cursory manner. The judgment of High Court is based on conjectures and surmises. Impugned judgment of High Court is quashed and accused persons are acquitted. (Para 9, 14, 19 & 23) Ballu @ Balram @ Balmukund v. State of Madhya Pradesh, 2024 LiveLaw (SC) 271 : AIR 2024 SC 1678

Section 378 Cr.P.C. - Limitation Act, 1963; Section 5 r/w. 2 & 3 - Delay that occurred in preferring an appeal against acquittal can be condoned under limitation act. Mohd Abaad Ali v. Directorate of Revenue Prosecution Intelligence, 2024 LiveLaw (SC) 141 : AIR 2024 SC 1271 : 2024 CriLJ 1335

Section 378 Cr.P.C. - Power of the High Court to re-appreciate the evidence – There is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, such power is a qualified power. For re-appreciating evidence, the court must consider, whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence or whether the finding of the Trial Court is illegal or affected by an error of law or fact or whether the view taken by the Trial Court is a fairly possible view. (Para 25) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115 : 2024 CriLJ 1137 : AIR 2024 SC 1252 : (2024) 3 SCC 544

Section 378 Cr.P.C. - Appeal from acquittal – Principles of deciding – Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive i.e. inclusive of all evidence, oral or documentary. Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge. If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed. If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal. If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts. In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court. (Para 36) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115 : AIR 2024 SC 1252 : 2024 Cri.L.J. 1137 : (2024) 3 SCC 544

Section 378 Cr.P.C. - Reversing the order of acquittal into conviction – The High Court had erred in reversing the decision of acquittal, without arriving at any finding of illegality or perversity or error in the reasoning of the Trial Court. Setting aside an order of acquittal, which signifies a stronger presumption of innocence, on a mere change of opinion is not permissible. A low standard for turning an acquittal into conviction would be fraught with the danger of failure of justice. In reversing the order of acquittal, what is required is an illegality or perversity in order of trial court. (Para 34 & 39) Mallappa v. State of Karnataka, 2024 LiveLaw (SC) 115 : AIR 2024 SC 1252 : 2024 Cri.L.J. 1137 : (2024) 3 SCC 544

Section 430 - Suspension of sentence pending the appeal; release of appellant on bail

["or bail bond" added.]

Section 389 Cr.P.C. – Suspension of Sentence and Bail - High Court's Misreading - The appellant, convicted and sentenced to a maximum of four years, sought bail pending disposal of his appeal. The Court granted relief, citing the principle that in cases involving fixed-term sentences where appeals are unlikely to be heard before completion of the sentence, suspension of sentence and bail should normally be granted. The Supreme Court clarified that the High Court incorrectly interpreted its precedent in Atul alias Ashutosh v. State of Madhya Pradesh, 2024 LiveLaw (SC) 93. The precedent does not mandate that bail is conditional upon the accused serving half of their sentence but emphasizes early relief in deserving cases where full sentence completion is likely before appeal disposal. Nanhe Lal Verma v. State of Madhya Pradesh, 2024 LiveLaw (SC) 925

Section 389 Cr.P.C. - Suspension of sentence cannot be denied merely because another trial is pending against the accused. Jitendra v. State of Uttar Pradesh, 2024 LiveLaw (SC) 782

Section 389 Cr.P.C. – Suspension of substantive order of sentence of life imprisonment – Held, if a sentence imposed by trial court is for a fixed term, ordinarily, the appellate court may exercise its discretion to suspend the operation of the same liberally unless there are any exceptional circumstances emerging from the record to decline. However, when it is a case of life imprisonment, the only legal test which the Court should apply is to ascertain whether there is anything 'palpable' or 'apparent on the face of the record' on the basis of which the court can come to the conclusion that the conviction is 'not sustainable in law' and that the convict has very fair chances of succeeding in his appeal. Further held, the offence is prima facie established against the appellant before the trial court. Hence, the High Court is at no fault in declining to suspend the substantive order of sentence of life imprisonment. (Para 7 & 8) Bhupatji Sartajji Jabraji Thakor v. State of Gujarat, 2024 LiveLaw (SC) 438

Section 389 Cr.P.C. – Compensation to victim for grant of suspension of sentence – “Blood Money” – The convicts have offered to pay compensation to the victim for grant of suspension of sentence, which when she refused to accept, was directed to be deposited in the court. Held, the compensation was in a way kind of “Blood Money” offered by the convicts to the victim for which there is no acceptability in our criminal justice system. (Para 13) Shivani Tyagi v. State of U.P., 2024 LiveLaw (SC) 333

Section 389 Cr.P.C. – Suspension of sentence pending an appeal by convicted person – Section 389 deals with the suspension of execution of sentence pending the appeal against conviction and release of appellant(s) on bail. In the case of short-term imprisonment for conviction of an offence, suspension of sentence is the normal rule and its rejection is the exception. The provision mandates for recording of reasons in writing leading to the conclusion that the convicts are entitled to get suspension of sentence and consequential release on bail. (Para 3 & 4) Shivani Tyagi v. State of U.P., 2024 LiveLaw (SC) 333

Section 389 Cr.P.C. – Suspension of sentence pending an appeal by convicted person – Grounds of suspension of sentence in heinous crimes – Likelihood of delay and sufferance of incarceration for a particular period, cannot be grounds for invoking power under Section 389 Cr.PC. It is because disposal of appeals against conviction within a short span of time may not be possible in a number of pending cases. However, in cases of inordinate delay in consideration of appeal and long incarceration undergone, the power under Section 389 can be invoked. (Para 9 & 11) Shivani Tyagi v. State of U.P., 2024 LiveLaw (SC) 333

Section 389 Cr.P.C. – Suspension of sentence in heinous crimes – Principle of proportionality – Held, if the appropriate punishment is not awarded or if, after conviction for a heinous crime, the court directs the suspension of the sentence without valid reasons, the purpose of criminal justice system fails. (Para 6) Shivani Tyagi v. State of U.P., 2024 LiveLaw (SC) 333

Section 389 Cr.P.C. - No specific prayer for bail in appeal petition – Held, the plea for bail in the context of the present appeal is implicit. Since the appeal, in substance, is against the judgment by which prayer for bail was refused, merely based on the manner of framing of reliefs or prayers in the subject-petition, the actual relief sought by the appellant would not stand eclipsed. (Para 16) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280 : AIR 2024 SC 2169 : 2024 CriLJ 2001 : (2024) 6 SCC 591

Section 389 Cr.P.C. - When there is a fixed term sentence and especially when the appeal is not likely to be heard before completing the entire period of sentence, normally suspension of sentence and bail should be granted. Atul @ Ashutosh v. State of Madhya Pradesh, 2024 LiveLaw (SC) 93 : (2024) 3 SCC 663

Section 432 - Appellate Court may take further evidence or direct it to be taken

[No change.]

Section 391 Cr.P.C. – A party who was not diligent in producing evidence at the trial stage of a criminal case cannot seek to produce the same in appeal. The power to record additional evidence at the appellate stage should not be exercised in a routine and casual manner. Such a power shall only be exercised when non-recording of the evidence may lead to failure to justice. Power to record additional evidence under Section 391 CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal. (Para 9) Ajitsinh Chehuji Rathod v. State of Gujarat, 2024 LiveLaw (SC) 64 : AIR 2024 SC 787

Section 442 - High Court's powers of revision

["pleader" is replaced by "advocate".]

Section 401 - Under Section 401 (3) Cr.P.C., the High Court lacks the authority to convert an acquittal into a conviction in revision proceedings. Instead, the High Court should have remitted the matter to the appellate court for re-evaluation. C.N. Shantha Kumar v. M.S. Srinivas, 2024 LiveLaw (SC) 660

Section 446 - Power of Supreme Court to transfer cases and appeals

[not exceeding one thousand rupees" is excluded.]

Section 406 Cr.P.C. - The Central Bureau of Investigation (CBI) filed a Transfer Petition seeking to transfer certain criminal proceedings from the State of West Bengal. During the hearing, it was observed that the petition contained disparaging allegations against the judiciary of West Bengal, suggesting a hostile environment in the state's courts. The Court expressed disapproval of such remarks from a central investigative agency. Central Bureau of Investigation v. State of West Bengal, 2024 LiveLaw (SC) 732

Section 455 - Commutation of sentence of death in case of appeal to Supreme Court.

[No change.]

Section 415 Cr.P.C. - Age of the convict at the time of the commission of an offence would be of relevance along with other mitigating circumstances while commuting the sentence of the death penalty. Rabbu @ Sarvesh v. State of Madhya Pradesh, 2024 LiveLaw (SC) 730

Section 458 - Execution of sentence of imprisonment

[No change.]

Section 418 (1) – Proportionality of sentence with respect to the offence committed – To claim enhancement of punishment for conviction for the offence – Held, it is the solemn duty of the Court to strike a proper balance awarding sentence proportionate to the gravity of the offence committed by the accused concerned upon his conviction for serious offence(s). The offence under Section 494 I.P.C., has to be treated as a serious offence, hence, the imposition of 'imprisonment till the rising of the court' is not a proper sentence falling in tune with the rule of proportionality. Further held, imposition of sentence of 'imprisonment till the rising of the court' upon conviction for an offence under Section 494 I.P.C., on them was unconscionably lenient or a flea-bite sentence. Hence, it appropriate to use our judicial discretion to modify the sentence imposed under the impugned judgment to six months each, making the nature of the sentence as simple imprisonment for the said period. (Para 14, 15, 17 & 19) Baba Natarajan Prasad v. M. Revathi, 2024 LiveLaw (SC) 474 : AIR 2024 SC 3348 : (2024) 7 SCC 531 : 2024 Cri LJ 3281

Section 473 - Power to suspend or remit sentences

[In sub-section (5) the word “male” is excluded.]

Section 432 Cr.P.C. - Remission of Sentence – Principles and Procedure – Right to Consideration - Reasonableness of Conditions - Cognizable Offences and Breach of Conditions - Cancellation of Remission - Natural Justice – Judicial Review - Government's Power to Grant Remission - Held, under Section 432(1) of the CrPC and Section 473(1) of the BNSS, the appropriate Government may remit a convict's sentence wholly or partially, either unconditionally or subject to reasonable conditions. A convict has no inherent right to remission but is entitled to a fair consideration of their case in accordance with the law and applicable policy. Conditions imposed must be reasonable. Arbitrary conditions violate Articles 14 and 21 of the Constitution. The cancellation of remission impacts the convict's liberty and requires adherence to natural justice. A show cause notice specifying grounds must be served, allowing the convict to respond and be heard before a reasoned order is passed. Convicts can challenge remission cancellations through remedies under Article 226 of the Constitution. Registration of a cognizable offence is not sufficient grounds for cancellation. Each case must be assessed on its facts, and only serious breaches supported by substantive evidence justify cancellation under Section 432(3) of the CrPC or Section 473(3) of the BNSS. Minor breaches are insufficient. Mafabhai Motibhai Sagar v. State of Gujarat, 2024 LiveLaw (SC) 819 : AIR 2024 SC 5470

Section 432 Cr.P.C. - A woman deserves respect howsoever high or low she may be otherwise considered in society or to whatever faith she may follow or any creed she may belong to. Can heinous crimes, inter alia, against women permit remission of the convicts by a reduction in their sentence and by granting them liberty? These are the issues which arise in these writ petitions. (Para 1) Bilkis Yakub Rasool v. Union of India, 2024 LiveLaw (SC) 22 : AIR 2024 SC 289

Section 432 Cr.P.C. - If a criminal is curable, he ought to be improved by education and other suitable arts, and then set free again as a better citizen and less of a burden to the state. This postulate lies at the heart of the policy of remission. In addition, there are also competing interests involved– the rights of the victim and the victim's family to justice vis-a-vis a convict's claim to a second chance by way of remission or reduction of his sentence for reformation. (Para 1) Bilkis Yakub Rasool v. Union of India, 2024 LiveLaw (SC) 22 : AIR 2024 SC 289

Section 432 Cr.P.C. - Reasons for grant or refusal of remission should be clearly delineated in the order by passing a speaking order. (Para 55 (h) Bilkis Yakub Rasool v. Union of India, 2024 LiveLaw (SC) 22 : AIR 2024 SC 289

Section 432 Cr.P.C. - Remission: Scope & Ambit - Discussed. (Para 22 - 39) Bilkis Yakub Rasool v. Union of India, 2024 LiveLaw (SC) 22 : AIR 2024 SC 289

Section 432 Cr.P.C. - The factors that govern the grant of remission namely: i. Whether the offence is an individual act of crime without affecting the society at large? ii. Whether there is any chance of future recurrence of committing crime? iii. Whether the convict has lost his potentiality in committing crime? iv. Whether there is any fruitful purpose of confining this convict any more? v. Socio-economic condition of the convict's family. (Para 48) Bilkis Yakub Rasool v. Union of India, 2024 LiveLaw (SC) 22 : AIR 2024 SC 289

Section 432 Cr.P.C. - The question regarding maintainability of a PIL challenging orders of remission is kept open to be considered in any other appropriate case. (Para 27) Bilkis Yakub Rasool v. Union of India, 2024 LiveLaw (SC) 22 : AIR 2024 SC 289

Section 432 Cr.P.C. - The policy of remission applicable would therefore be the Policy of the State which is the appropriate Government and which has the jurisdiction to consider that application. The policy of remission applicable at the time of the conviction could apply and only if for any reason, the said policy cannot be made applicable a more benevolent policy, if in vogue, could apply. (Para 55 (d) Bilkis Yakub Rasool v. Union of India, 2024 LiveLaw (SC) 22 : AIR 2024 SC 289

Section 432 Cr.P.C. - When an application for remission is granted under the provisions of the Constitution, the following among other tests may apply to consider its legality by way of judicial review of the same. (i) that the order has been passed without application of mind; (ii) that the order is mala fide; (iii) that the order has been passed on extraneous or wholly irrelevant considerations; (iv) that relevant materials have been kept out of consideration; (v) that the order suffers from arbitrariness. (Para 55 (i) Bilkis Yakub Rasool v. Union of India, 2024 LiveLaw (SC) 22 : AIR 2024 SC 289

Section 432 Cr.P.C. - While considering an application for remission, there cannot be any abuse of discretion. In this regard, it is necessary to bear in mind the following aspects as mentioned in Laxman Naskar v. State of West Bengal, (2000) 2 SCC 595, namely, - (i) Whether the offence is an individual act of crime without affecting the society at large? (ii) Whether there is any chance of future recurrence of committing crime? (iii) Whether the convict has lost his potentiality in committing crime? (iv) Whether there is any fruitful purpose of confining this convict any more? (v) Socio-economic condition of the convict's family. (Para 55 (e) Bilkis Yakub Rasool v. Union of India, 2024 LiveLaw (SC) 22 : AIR 2024 SC 289

Section 432 Cr.P.C. - A consideration for remission must be by way of an application under Section 432 of the CrPC which has to be made by the convict or on his behalf. In the first instance whether there is compliance of Section 433A of the CrPC must be noted inasmuch as a person serving a life sentence cannot seek remission unless fourteen years of imprisonment has been completed. (Para 55 (b) Bilkis Yakub Rasool v. Union of India, 2024 LiveLaw (SC) 22 : AIR 2024 SC 289

Section 432 Cr.P.C. - The application for remission under Section 432 of the CrPC could be only before the Government of the State within whose territorial jurisdiction the applicant was convicted (appropriate Government) and not before any other Government within whose territorial jurisdiction the applicant may have been transferred on conviction or where the offence has occurred. (Para 55 (a) Bilkis Yakub Rasool v. Union of India, 2024 LiveLaw (SC) 22 : AIR 2024 SC 289

Section 432 Cr.P.C. - The guidelines under Section 432(2) with regard to the opinion to be sought from the Presiding Judge of the Court which had convicted the applicant must be complied with mandatorily. While doing so it is necessary to follow the requirements of the said Section which are highlighted, namely, (i) the opinion must state as to whether the application for remission should be granted or refused and for either of the said opinions, the reasons must be stated; (ii) the reasons must have a bearing on the facts and circumstances of the case; (iii) the opinion must have a nexus to the record of the trial or of such record thereof as exists; (iv) the Presiding Judge of the Court before or by which the conviction was had or confirmed, must also forward along with the statement of such opinion granting or refusing remission, a certified copy of the record of the trial or of such record thereof as exists. (Para 55 (c) Bilkis Yakub Rasool v. Union of India, 2024 LiveLaw (SC) 22 : AIR 2024 SC 289

Section 432 (2) Cr.P.C. - The Jail Advisory Committee which has to consider the application for remission may not have the District Judge as a Member inasmuch as the District Judge, being a Judicial Officer may coincidently be the very judge who may have to render an opinion independently in terms of sub-section (2) of Section 432 of the CrPC. (Para 55 (g) Bilkis Yakub Rasool v. Union of India, 2024 LiveLaw (SC) 22 : AIR 2024 SC 289

Section 477 - State Government to act after concurrence with Central Government in certain cases.

[The word "concurrence" replaces "consultation". The words "the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or" are excluded.]

Section 435 Cr.P.C. - State Government to act after consultation with Central Government in certain cases - Held, there has also to be consultation in accordance with Section 435 of the CrPC wherever the same is necessitated. (Para 55 (f) Bilkis Yakub Rasool v. Union of India, 2024 LiveLaw (SC) 22 : AIR 2024 SC 289

Section 479 - Maximum period for which an undertrial prisoner can be detained

[Section 436A Cr.P.C. - “or life imprisonment is added." One new proviso is added to subsection (1), which states about the bail of first-time offenders. Two new subsections (2) and (3) are added, which are about bail for individuals having multiple pending investigations, inquiries or trials for more than one offence, and applications by the superintendent of jail where the accused person is detained, respectively. “bail” is added in place of “his personal bond with or without sureties," “also” is used in place of “further”.]

Section 479 BNSS - Implementation of - Release of undertrial prisoners subjected to prolonged incarceration - Identification and Reporting - Role of Undertrial Review Committees (UTRC) and Legal Services Authorities in identifying eligible undertrial prisoners - Non-compliance by certain States and Union Territories in submitting required reports to facilitate the release of eligible prisoners - Gender-Specific Considerations - Women Prisoners - Section 479 of BNSS provides for the release of undertrial prisoners who have served one-half of the maximum sentence for their alleged offense. For first-time offenders, release is mandated after serving one-third of the maximum period, subject to conditions. Cases involving heinous crimes (punishable by death or life imprisonment) are excluded from these provisions. Jail Superintendents and Legal Services Authorities must ensure continuous monitoring of undertrial prisoners to identify those eligible for release under Section 479. States/UTs must furnish detailed reports in a prescribed format, ensuring clarity and accuracy in the identification and processing of eligible cases. Special attention must be given to women prisoners to ensure they benefit from the provisions of Section 479. The order underscores the judiciary's commitment to uphold the right to liberty by ensuring timely implementation of legislative provisions aimed at addressing prolonged undertrial incarceration. It mandates proactive efforts by all stakeholders to ensure justice reaches the most marginalized prisoners. In Re-Inhuman Conditions In 1382 Prisons, 2024 LiveLaw (SC) 908

Section 479 BNSS - The Supreme Court, in the ongoing case concerning inhuman conditions in Indian prisons, addresses the issue of overcrowding and undertrial prisoners. It highlights that over 4 lakh undertrials constitute more than 75% of the incarcerated population, many of whom face prolonged detention despite being presumed innocent. The Court emphasizes the application of Section 479 BNSS, which allows for the release of undertrials who have served one-third or one-half of the maximum sentence for their respective offenses. The Court directs the implementation of Section 479 by urging state authorities to identify eligible undertrials and process their release, with a focus on easing jail overcrowding. Further, the Undertrial Review Committees (UTRC) in each district are tasked with actively coordinating the identification and release of undertrials. The Court also instructs that reports be filed by the Chief Secretaries of all states and union territories, ensuring proactive and effective steps towards reducing overcrowding and improving conditions for undertrials. In Re-Inhuman Conditions In 1382 Prisons, 2024 LiveLaw (SC) 836

Section 479 BNSS - Undertrial Prisoners - The Court applied the provisions of Section 479(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), in conjunction with Section 436A of the Code of Criminal Procedure, 1973, regarding the detention of undertrial prisoners. The Court observed that the appellant had not been convicted for any offense in the past and had undergone detention for a period exceeding one-third of the maximum imprisonment for the alleged offense under the Customs Act, 1862. The Court held that the first proviso to Section 479(1) of the BNSS applied, entitling the appellant to be released on bail. The appeal was allowed, and the appellant was directed to be produced before the Special Court within one week for bail. The Special Court was instructed to release the appellant on appropriate terms, ensuring cooperation with the courts for the early disposal of the case, including both the scheduled offense and the offense under the Prevention of Money-Laundering Act (PMLA). Badshah Majid Malik v. Directorate of Enforcement, 2024 LiveLaw (SC) 835

Section 479 BNSS - Provision capping maximum undertrial term applies to PMLA. Badshah Majid Malik v. Directorate of Enforcement, 2024 LiveLaw (SC) 835

Section 479 BNSS - Maximum period for detaining undertrial prisoners - Implementation of - Inhuman conditions in prisons - The Court directed that this provision, which allows for the release of first-time offenders who have served one-third of the maximum imprisonment period, shall apply to all undertrials regardless of when their cases were registered. The Court mandated the Superintendents of Jails across India to expedite the processing of applications for bail based on this new legislation within two months. Additionally, it ordered State Governments and Union Territories to submit comprehensive affidavits detailing the number of undertrials eligible for release, applications made, and actual releases. Re-Inhuman Conditions in 1382 Prisons v. Director General of Prisons, 2024 LiveLaw (SC) 632

Section 436A Cr.P.C. - In the facts of this case, the appellant will complete 3½ years of incarceration on 26th May, 2024. Thus, he will complete half of the prescribed sentence. In this case, obviously the trial has not started, as the charge has not been framed. This Court has held that Section 436A of the Code of Criminal Procedure, 1973 (for short "CRPC") will apply even to a case under the PMLA. But the Court can still deny the relief owing to the ground such as where the trial was delayed at the instance of the accused. As stated earlier, here there is no occasion for the appellant to cause the delay in trial, as even charge has not been framed. Moreover, there is no other circumstance brought on record which will compel us to deny the benefit of Section 436A of the CRPC to the appellant. Ajay Ajit Peter Kerkar v. Directorate of Enforcement, 2024 LiveLaw (SC) 400

Section 436A Cr.P.C. - Guidelines and standard operating procedure for implementation of the scheme for support to poor prisoners - Directions. Satender Kumar Antil v. Central Bureau of Investigation, 2024 LiveLaw (SC) 151

Section 480 - When bail may be taken in case of non-bailable offence

[In first proviso "is under the age of 16 years" is replaced by "child". In third proviso, "or for police custody beyond the first fifteen days" added. The words "without sureties" are excluded.]

Section 437 Cr.P.C. - Bail - Serious Offences - Rape and Murder - Commencement of Trial - Whether discrepancies between the victim's FIR and statement under Section 164 CrPC justify granting bail in a serious offence like rape - Conditions to be imposed on bail to prevent interference with witnesses or tampering with evidence - The petitioner (victim) challenged the High Court's order granting bail to Respondent No. 2 (accused) in a case involving offences under Sections 376D and 342 IPC. The High Court granted bail based on discrepancies between the FIR and the victim's Section 164 CrPC statement. Held, once a trial has commenced in serious offences, bail should not be granted based on evaluation of evidence, as it may influence the trial's outcome. While upholding the High Court's decision to grant bail, the Supreme Court imposed additional conditions to ensure fair trial conduct. This judgment underscores the principle that granting bail in serious offences like rape, based on preliminary evaluation of evidence, can adversely impact the trial. Courts must balance the rights of the accused with the need to preserve the integrity of the trial process. X v. State of Rajasthan, 2024 LiveLaw (SC) 949

Section 437 Cr.P.C. - High Courts should not impose time-bound schedules for the conclusion of trials when rejecting bail applications. Sangram Sadashiv Suryavanshi v. State of Maharashtra, 2024 LiveLaw (SC) 936

Section 437 Cr.P.C. - Bail condition that accused shall furnish bail bonds 6 months after passing of order can't be imposed. Nanhak Manjhi v. State of Bihar, 2024 LiveLaw (SC) 845

Section 437 Cr.P.C. - Imposition of a condition for the petitioner to close his YouTube channel as a prerequisite for bail which involved allegations under the Tamil Nadu Prohibition of Harassment of Women Act, 2002, and the Information Technology Act, 2000. The Court found this condition to be unwarranted and extraneous to the bail decision. Felix Jerald v. State, 2024 LiveLaw (SC) 761

Section 437 Cr.P.C. - Higher thresholds for granting bail in stringent penal statutes like the PMLA, UAPA, and NDPS Act cannot be a tool to keep an accused incarcerated without trial. V. Senthil Balaji v. Deputy Director, 2024 LiveLaw (SC) 750

Section 437 Cr.P.C. - Long custody will enure to benefit of accused for bail when delay in trial isn't his fault. Modh. Enamul Haque v. Directorate of Enforcement, 2024 LiveLaw (SC) 740

Section 437 Cr.P.C. - Travesty of justice if a prisoner can't get benefit of bail order due to inability to furnish local surety. Ramchandra Thangappan Aachari v. State of Maharashtra, 2024 LiveLaw (SC) 715

Section 437 Cr.P.C. - Pre-trial process itself shall not become a punishment - the Supreme Court set aside a bail condition to the effect that the bail bonds be furnished by the accused after completion of 6 months in custody from the date of the order. The condition in effect put on hold the implementation of the bail order for six months. Vikash Kumar Gupta v. State of Bihar, 2024 LiveLaw (SC) 688

Section 437 Cr.P.C. - To avoid trial process itself being the punishment' : Supreme Court grants bail to undertrial; reaffirms right to speedy trial. Balwinder Singh v. State of Punjab, 2024 LiveLaw (SC) 680

Section 437 Cr.P.C. - Bail cannot be denied on the ground that trial is expedited. Rup Bahadur Magar @ Sanki @ Rabin v. State of West Bengal, 2024 LiveLaw (SC) 656

Section 437 Cr.P.C. - Once a court concludes that an accused is entitled to bail, the implementation of the bail order cannot be postponed. Such a postponement would violate the accused's fundamental rights under Article 21 of the Constitution of India. Jitendra Paswan Satya Mitra v. State of Bihar, 2024 LiveLaw (SC) 655

Section 437 Cr.P.C. -Accused need not furnish multiple sureties against multiple bail orders - Courts can do away with the condition of local surety if its insistence delays the release of the accused from jail and renders the bail order ineffective. Girish Gandhi v. State of Uttar Pradesh, 2024 LiveLaw (SC) 593 : AIR 2024 SC 4396

Section 437 Cr.P.C. - Matrimonial Disputes - Condition that the husband must fulfill all the physical and financial requirements of the wife. Held, Such an impracticable requirement infringes on personal liberty and the right to dignity. Bail conditions should be reasonable and proportionate, particularly in matrimonial disputes, to allow the accused to comply and foster reconciliation between the parties. (Para 8) Sudeep Chatterjee v. State of Bihar, 2024 LiveLaw (SC) 540

Section 437 Cr.P.C. - The maxim lex non cogit ad impossibilia (the law does not compel a person to do the impossible) emphasized in relation to onerous bail conditions. A court should not impose conditions that are impracticable or impossible for the accused to comply with, particularly in cases of anticipatory bail. (Para 1) Sudeep Chatterjee v. State of Bihar, 2024 LiveLaw (SC) 540

Section 437 Cr.P.C. - An order granting a stay to the operation of the order granting bail during the pendency of the application for cancellation of bail should be passed in very rare cases. (Para 11) Parvinder Singh Khurana v. Directorate of Enforcement, 2024 LiveLaw (SC) 502 : AIR 2024 SC 3572 : 2024 CriLJ 3652

Section 437 Cr.P.C. - Liberty granted to an accused under the order granting bail cannot be lightly and causally interfered with by mechanically granting an ex­parte order of stay of the bail order. (Para 13) Parvinder Singh Khurana v. Directorate of Enforcement, 2024 LiveLaw (SC) 502 : AIR 2024 SC 3572 : 2024 CriLJ 3652

Section 437 Cr.P.C. - The Court dealing with the application for cancellation of bail can always ensure that notice is served on the accused as soon as possible and that the application is heard expeditiously. An order granting bail can be stayed by the Court only in exceptional cases when a very strong prima facie case of the existence of the grounds for cancellation of bail is made out. The prima facie case must be of a very high standard. (Para 12) Parvinder Singh Khurana v. Directorate of Enforcement, 2024 LiveLaw (SC) 502 : AIR 2024 SC 3572 : 2024 CriLJ 3652

Section 437 Cr.P.C. - When an application for cancellation of bail is filed, the High Court or Sessions Court should be very slow in granting drastic interim relief of stay of the order granting bail. (Para 10) Parvinder Singh Khurana v. Directorate of Enforcement, 2024 LiveLaw (SC) 502 : AIR 2024 SC 3572 : 2024 CriLJ 3652

Section 437 Cr.P.C. - Special courts power to grant bail in cases of inordinate delay – If a bail application is made to the Special Court with a grievance regarding inordinate delay in the disposal of pending cases, the Special Court will be empowered to exercise power to grant bail. (Para 11.1) Frank Vitus v. Narcotics Control Bureau, 2024 LiveLaw (SC) 441 : AIR 2024 SC 3418 : (2024) 8 SCC 415 : 2024 CriLJ 3297

Section 437 (3) Cr.P.C. – Bail – Object of imposing conditions of bail – It is to ensure that the accused does not interfere or obstruct the investigation in any manner, remains available for the investigation, does not tamper with or destroy evidence, does not commit any offence, remains regularly present before the Trial Court, and does not create obstacles in the expeditious conclusion of the trial. (Para 7) Frank Vitus v. Narcotics Control Bureau, 2024 LiveLaw (SC) 441 : AIR 2024 SC 3418 : (2024) 8 SCC 415 : 2024 CriLJ 3297

Section 437 (3) Cr.P.C. – Bail conditions – Held, bail conditions cannot be fanciful, arbitrary or freakish and must be within the four corners of Section 437(3). The bail conditions must be consistent with the object of imposing conditions. While imposing bail conditions, the Constitutional rights of an accused, who is ordered to be released on bail, can be curtailed only to the minimum extent required. In case of the accused whose guilt is yet to be established, the presumption of innocence is applicable and such person cannot be deprived of all his rights guaranteed under Article 21. Further held, Courts must show restraint while imposing bail conditions. Hence, while granting bail, the Courts can curtail the freedom of the accused only to the extent required for imposing the bail conditions warranted by law and cannot be so onerous as to frustrate the order of bail itself. (Para 7 & 7.1) Frank Vitus v. Narcotics Control Bureau, 2024 LiveLaw (SC) 441 : AIR 2024 SC 3418 : (2024) 8 SCC 415 : 2024 CriLJ 3297

Section 437 (3) Cr.P.C. – Constitution of India; Article 21 – Validity of bail condition – The condition of dropping pin on google map – Bail condition of dropping a PIN on Google Map gives an impression that the condition will enable to monitor the movements of the accused on a real­time basis, which will be violative of the right to privacy guaranteed under Article 21 of the Constitution of India. Held, this cannot be a condition of bail and deserves to be deleted and ordered accordingly. (10, 10.2) Frank Vitus v. Narcotics Control Bureau, 2024 LiveLaw (SC) 441 : AIR 2024 SC 3418 : (2024) 8 SCC 415 : 2024 CriLJ 3297

Section 437 (3) Cr.P.C. - Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 & 52 – Applicability of Section 437(3) in cases of NDPS Act – Once a case is made out for a grant of bail in accordance with Section 37, the conditions of bail will have to be in terms of Section 437(3) of the CrPC. The reason is that because of Section 52 of the NDPS Act, the provisions of the CrPC apply to the arrests made under the NDPS Act insofar as they are not inconsistent with the NDPS Act. (Para 4) Frank Vitus v. Narcotics Control Bureau, 2024 LiveLaw (SC) 441 : AIR 2024 SC 3418 : (2024) 8 SCC 415 : 2024 CriLJ 3297

Section 437 (3) Cr.P.C. – Validity of Bail condition – The condition of furnishing certificate of the embassy – It is not necessary that in every case where bail is granted to an accused in an NDPS case who is a foreign national on the ground of long incarceration of more than 50% of the minimum sentence, the condition of obtaining a 'certificate of assurance' from the Embassy/High Commission should be incorporated. It will depend on the facts of each case. Held, grant of such a certificate by the Embassy/High Commission is beyond the control of the accused to whom bail is granted. Therefore, when the Embassy/High Commission does not grant such a certificate within a reasonable time, the accused, who is otherwise held entitled to bail, cannot be denied bail on the ground that such a condition, which is impossible for the accused to comply with, has not been complied with. Hence the condition is deleted. (Para 11.1 & 12) Frank Vitus v. Narcotics Control Bureau, 2024 LiveLaw (SC) 441 : AIR 2024 SC 3418 : (2024) 8 SCC 415 : 2024 CriLJ 3297

Section 437 Cr.P.C. - Bail prayers are not to be indefinitely adjourned. Satyendar Kumar Jain v. Directorate Of Enforcement, 2024 LiveLaw (SC) 430

Section 437 Cr.P.C. - In the matters relating to liberty of a citizen every single day counts. Keeping the matter for regular bail pending for a period of almost 11 months deprives the petitioner of his valuable right of liberty. Amandeep Singh Dhall v. Central Bureau of Investigation, 2024 LiveLaw (SC) 399

Section 437 Cr.P.C. - Bail order is challenged – Held, respondent having been enlarged on bail conditionally and the conditions so stipulated having not been violated – There are no overwhelming material on record to set aside the order granting bail which outweighs the liberty granted by the High Court. Further held, the appellant-state having not sought for cancellation of the bail would be a prime reason for the court to not entertain the appeal. Hence, interference in impugned bail order is not warranted. (Para 16, 17) Union of India v. Mrityunjay Kumar Singh, 2024 LiveLaw (SC) 367

Section 437 Cr.P.C. - Grant of interim bail/release – Interim bail is granted as per facts of each case – While examining the question of grant of interim bail/release, the courts always take into consideration the peculiarities associated with the person in question and the surrounding circumstances and to ignore the same would be iniquitous and wrong – Further held, once the matter is sub-judice and the questions relating to legality of arrest are under consideration, a more libertarian view is justified, in the background that the 18th Lok Sabha General Elections are being held – The 18th Lok Sabha General Elections is an intervening factor which has prompted the court to consider the interim bail application of the appellant – The appellant is directed to be released on interim bail. (Para 8, 14 & 15) Arvind Kejriwal v. Directorate of Enforcement, 2024 LiveLaw (SC) 363

Section 437 Cr.P.C. - Cancellation of Bail – Grounds – Misuse of liberty – Participation in protest and expression of strong views – Non-violation of bail conditions. A. Duraimurugan Pandiyan Sattai @ Duraimurugan v. State, 2024 LiveLaw (SC) 313

Section 437 Cr.P.C. - Bail condition restraining political activities violates fundamental rights, can't be imposed. Siba Shankar Das v. State of Odisha, 2024 LiveLaw (SC) 259

Section 437 Cr.P.C. - An accused, while joining investigation as a condition for remaining enlarged on bail, is not expected to make self-incriminating statements under the threat that the State shall seek withdrawal of such interim protection. Bijender v State of Haryana, 2024 LiveLaw (SC) 209

Section 437 Cr.P.C. - Bail cannot be cancelled merely due to non-appearance of accused before court. Krishna Sharma v. State of West Bengal, 2024 LiveLaw (SC) 65

Section 437 Cr.P.C. - Cancellation of Bail - Merely because the accused did not appear personally could not have been a ground for cancellation of bail. The parameters for grant of bail and cancellation of bail are totally different. The bail already granted may be cancelled, if it is found that the person who has been granted the benefit of bail has violated any of the conditions or misused the liberty by influencing the witnesses or tampering with the evidence. Krishna Sharma v. State of West Bengal, 2024 LiveLaw (SC) 65

Section 437 Cr.P.C. - Delays in the disposal of bail applications - Need for expeditious delivery of judgments - Bail applications should ideally be disposed of within two weeks, and anticipatory bail applications within six weeks. Despite these guidelines, the Court noted persistent delays and directed all courts to strictly adhere to the issued directions. The High Courts were left with the discretion to devise mechanisms for monthly checks on pending cases. (Para 5 – 9) Rajanti Devi @ Rajanti Kumari v. Union of India, 2024 LiveLaw (SC) 50

Section 482 - Direction for grant of bail to person apprehending arrest

[No Change]

Section 438 Cr.P.C. - Accused in custody can seek anticipatory bail for another case. Dhanraj Aswani v. Amar S. Mulchandani, 2024 LiveLaw (SC) 675

Section 438 Cr.P.C. – Anticipatory bail - Custodial interrogation is one of the effective modes of investigating into the alleged crime. It is equally true that just because custodial interrogation is not required that by itself may also not be a ground to release an accused on anticipatory bail if the offences are of a serious nature. However, a mere assertion on the part of the State while opposing the plea for anticipatory bail that custodial interrogation is required would not be sufficient. The State would have to show or indicate more than prima facie why the custodial interrogation of the accused is required for the purpose of investigation. (Para 12) Ashok Kumar v. State of Union Territory Chandigarh, 2024 LiveLaw (SC) 223

Section 438 Cr.P.C. – Pre-arrest/Anticipatory Bail – Grant of pre-arrest bail to a police officer facing allegations of manipulating the investigation so as to favour an accused would send out a wrong signal in society and would be against public interest. Presumptions and other considerations applicable to a layperson facing criminal charges may not carry the same weight while dealing with a police officer who is alleged to have abused his office. Considering the position held by the respondent, even if he was suspended from service, the possibility of his tampering with the witnesses and the evidence was sufficiently high. Bail order is liable to be set aside. (Para 9 & 10) State of Jharkhand v. Sandeep Kumar, 2024 LiveLaw (SC) 205

Section 438 Cr.P.C. – Pre-arrest/Anticipatory Bail – Court must record reasons for grant of Bail – An order of bail, bereft of any cogent reason, could not be sustained. Though grant of bail is discretionary, it calls for exercise of such discretion in a judicious manner and not as a matter of course. The High Court did not deem it necessary to record as to what weighed with it while granting pre-arrest bail to the respondent, hence, bail order is set aside. (Para 5, 6 & 7) State of Jharkhand v. Sandeep Kumar, 2024 LiveLaw (SC) 205

Section 438 Cr.P.C. – Bail / Anticipatory Bail – Considerations by Court while dealing with a bail petition – Similar considerations would apply even for grant of anticipatory bail – The nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors relevant in the facts and circumstances of the case. (Para 7) State of Jharkhand v. Sandeep Kumar, 2024 LiveLaw (SC) 205

Section 438 Cr.P.C. - Application for anticipatory bail was not decided for a period of more than four years. The Judges are not deciding the matter on merits but find an excuse to shunt the case on different grounds. Held, decide the matter pertaining to bail / anticipatory bail as expeditiously as possible. (Para 4 - 6) Amol Vitthal Vahile v. State of Maharashtra, 2024 LiveLaw (SC) 159

Section 438 Cr.P.C. – Anticipatory bail granted on the condition is totally alien to the principles governing bail jurisprudence and is nothing short of perversity. State v. B. Ramu, 2024 LiveLaw (SC) 128

Section 438 Cr.P.C. - Anticipatory bail cannot be granted merely because the accused is willing to pay an interim compensation. State of Jharkhand v. Md. Sufiyan, 2024 LiveLaw (SC) 54

Sections 438 and 439 Cr.P.C. - Bail Applications - Applicants must include : details and copies of previous bail orders. Information on pending bail applications in any court, with a clear statement if none are pending. Bail applications in the same FIR should be heard by the same Judge, unless there are specific circumstances. The application indicates whether it is the first, second, or subsequent one for clarity. The court registry should attach a system-generated report on decided or pending bail applications for the specified crime case. This procedure applies to private complaints as well, with cases assigned specific numbers. The Investigating Officer or State Counsel should inform the court of relevant orders, and counsels must conduct themselves as officers of the Court. These suggestions aim to streamline proceedings and prevent anomalies in bail applications during ongoing trials or sentence suspension. (Para 20 & 21) Kusha Duruka v. State of Odisha, 2024 LiveLaw (SC) 47 : AIR 2024 SC 790

Section 483 - Special powers of High Court or Court of Session regarding bail

[No Change]

Section 439 Cr.P.C. - The High Court exceeded its jurisdiction by imposing unreasonable conditions while granting bail, including the demolition of a wall at the appellants' expense and the transfer of possession of disputed property to the complainant. The Court emphasized that conditions imposed under Sections 437(3) and 439 of the CrPC must be reasonable and directly related to securing the accused's presence during trial. The Court underscored that courts should not interfere in civil disputes while adjudicating bail applications, reaffirming that bail proceedings are not meant to resolve property disputes. Ramratan @ Ramswaroop v. State of Madhya Pradesh, 2024 LiveLaw (SC) 846

Section 439 Cr.P.C. - Transfer of investigation to CBI while rejecting bail - The Supreme Court allowed the appeal against the High Court's order, which transferred the investigation to the Central Bureau of Investigation (CBI) while rejecting the bail application of the appellants. The Court held that such a transfer of investigation was improper during bail proceedings. Considering the post-mortem report and testimony of the medical officer (PW-3), along with the absence of criminal antecedents as per the State's affidavit, the Court found merit in granting bail. The High Court's direction for a de-novo investigation by CBI was set aside. The appellants were directed to be produced before the Trial Court within one week and granted bail on appropriate conditions until the conclusion of the trial. Appeal allowed. Abhishek v. State of Rajasthan, 2024 LiveLaw (SC) 830

Section 439 Cr.P.C. - The condition imposed by the High Court requiring the accused to arrange accommodation and reside in Delhi till the conclusion of the trial is unreasonable and cannot be considered a valid bail condition. Akbal Ansari v. State (NCT of Delhi), 2024 LiveLaw (SC) 829

Section 439 Cr.P.C. - Delay in Trial — Absence of Criminal Antecedents — Judicial Directions on Expedited Trials - The appellants sought bail after being incarcerated for 2 years and 9 months with significant delays in the trial. Of the 72 originally listed witnesses, only 3 had been examined, and the list was subsequently reduced to 22-24 witnesses. The High Court denied bail, emphasizing the need for expedited trial disposal. The trend of High Courts directing trial courts to conclude trial within a set time frame instead of granting bail, without considering the trial courts' case backlogs is impermissible. The Supreme Court granted leave to appeal, criticizing High Court orders that pressure trial courts to expedite proceedings contrary to High Court Bar Association, Allahabad v. State of U.P., 2024 LiveLaw (SC) 177. In the absence of criminal antecedents, prolonged incarceration and delays justified granting bail. Rup Bahadur Magar @ Sanki@ Rabin v. State of West Bengal, 2024 LiveLaw (SC) 793

Section 439 Cr.P.C. - If an accused approaches the High Court directly without first seeking relief from the Trial Court, it is generally appropriate for the High Court to redirect them to the Trial Court at the threshold. Nevertheless, if there are significant delays following notice, it may not be prudent to relegate the matter to the Trial Court at a later stage. Bail being closely tied to personal liberty, such claims should be adjudicated promptly on their merits, rather than oscillating between courts on mere procedural technicalities. (Para 45) Arvind Kejriwal v. Central Bureau of Investigation, 2024 LiveLaw (SC) 694

Section 439 Cr.P.C. - Bail decisions must consider relevant factors such as the nature of accusations, the accused's role, potential tampering of evidence, and risk of flight. It was held that the learned Single Judge erred by not adequately addressing these factors. Moreover, despite the respondent's six-month incarceration, the economic offense's gravity, involving the siphoning of Society funds affecting numerous individuals, justified canceling bail. The Court underscored that bail orders based on irrelevant or insufficient material are open to interference. Although bail was revoked, the Court granted liberty to the respondent to reapply for bail if circumstances change, ensuring the trial court remains uninfluenced by the present judgment. Manik Madhukar Sarve v. Vitthal Damuji Meher, 2024 LiveLaw (SC) 619 : AIR 2024 SC 4078

Section 483(3) BNSS - Bail - Cancellation of - As a normal rule, the ex-­parte stay of the bail order should not be granted. The said power can be exercised only in rare and very exceptional cases where the situation demands the passing of such drastic order. Where such a drastic ex­-parte order of stay is passed, it is the duty of the Court to immediately hear the accused on the prayer for continuation of the interim relief. When the Court exercises the power of granting ex-­parte ad interim stay of an order granting bail, the Court is duty bound to record reasons why it came to the conclusion that it was a very rare and exceptional case where a drastic order of ex-­parte interim stay was warranted. (Para 20) Parvinder Singh Khurana v. Directorate of Enforcement, 2024 LiveLaw (SC) 502 : AIR 2024 SC 3572 : 2024 CriLJ 3652

Section 483(3) BNSS - Bail - Cancellation of - In an application made under Section 439(2) of the CrPC or Section 483(3) of the BNSS or other proceedings filed seeking cancellation of bail, the power to grant an interim stay of operation of order to bail can be exercised only in exceptional cases when a very strong prima facie case of the existence of the grounds for cancellation of bail is made out. While granting a stay of an order of grant of bail, the Court must record brief reasons for coming to a conclusion that the case was an exceptional one and a strong prima facie case is made out. (Para 20) Parvinder Singh Khurana v. Directorate of Enforcement, 2024 LiveLaw (SC) 502 : AIR 2024 SC 3572 : 2024 CriLJ 3652

Section 439 Cr.P.C. – To set aside Bail order – Grant of bail in serious offences like murder – The power to grant bail under Section 439 CrPC although is discretionary power of the court, it has to be exercised in a judicious manner and not as a matter of course. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. Held, it is evident that the High Court failed to assign any reasons for the exercise of its discretion in favour of the accused, knowing fully well that he is involved in a serious offence like murder and was absconding for a couple of years. Further held, here an order refusing or granting bail does not furnish the reasons that inform the decision, there is a presumption of the non-application of mind which may require the intervention of this Court. Hence, bail order is set aside. (Para 14 & 16) State of Jharkhand v. Anil Ganjhu, 2024 LiveLaw (SC) 459

Section 439 Cr.P.C. - The High Court took notice of the fact that the petitioner had been in custody since 11th May 2022, and only one witness had been examined so far. In such circumstances, the High Court deemed it fit to order the release of the petitioner on bail, but only for a period of two months. Held, it is an incorrect order. If the High Court was of the view that the petitioner's right to a speedy trial had been infringed, then the High Court should have ordered the release of the petitioner on bail pending the final disposal of the trial itself. There was no good reason for the High Court to limit the period of bail. (2 - 5) Kishor Karmakar v. State of Odisha, 2024 LiveLaw (SC) 436

Section 439 Cr.P.C. - The High Court ordered the release of the petitioner on bail, but subject to the condition that the surety shall be the victim. It is the case of the petitioner that it was practically impossible to ask the victim to stand as a surety. In such circumstances, the petitioner preferred an application seeking modification of the condition. The modification application was rejected by the High Court. In such circumstances, the petitioner is before the Supreme Court. Held, it is very unfortunate to note that because of such an absurd condition imposed by the High Court, the petitioner, although ordered to be released on bail way back in July 2023, is still languishing in jail. The condition imposed by the High Court requiring the victim to stand as a surety is stayed from its operation. The petitioner is ordered to be released on bail subject to the terms and conditions that the trial court may deem fit to impose. (Para 2 - 9) Sharwan Kumar Yadav @ Sharwan Yadav v. State of Bihar, 2024 LiveLaw (SC) 435

Section 439 Cr.P.C. – Considerations for setting aside Bail order – Considerations 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. This list is only illustrative and not exhaustive. (Para 28) Ajwar v. Waseem, 2024 LiveLaw (SC) 392 : AIR 2024 SC 2885

Section 439 Cr.P.C. – Parameters for granting Bail – The parameters are: 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. Further, 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 26 & 28) Ajwar v. Waseem, 2024 LiveLaw (SC) 392 : AIR 2024 SC 2885

Section 439 (1) Cr.P.C. – Power of cancellation of Bail – It is equally well settled that 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. Held, the respondents do not deserve the concession of bail. Hence, the bail orders are quashed and set aside. (Para 27 & 35) Ajwar v. Waseem, 2024 LiveLaw (SC) 392 : AIR 2024 SC 2885

Section 439 Cr.P.C. - National Investigation Agency Act, 2008; Section 21(2) – Jurisdiction of High Court to entertain Bail application – The jurisdiction of the High Court to consider the question of bail is coordinate with that of the Sessions Court and it has evolved as a matter of practice that an accused seeking bail ought to approach the Sessions Court before approaching the High Court. Further, the High Court adopted proper course while exercising jurisdiction under Section 439 of the 1973 Code to refer the matter to a Division Bench to decide the bail plea in accordance with Section 21(2) of the 2008 Act. (Para 12) Shoma Kanti Sen v. State of Maharashtra, 2024 LiveLaw (SC) 280 : AIR 2024 SC 2169 : 2024 CriLJ 2001 : (2024) 6 SCC 591

Section 439 Cr.P.C. - Expeditious adjudication of bail matters - High Court's duty to ensure timely justice - Supreme Court's directive to High Court of Bombay - Constitutionality of Article 21 - Liberty of citizen paramount - Urgency in deciding bail applications emphasized. (Para 3 - 6) Amol Vitthal Vahile v. State of Maharashtra, 2024 LiveLaw (SC) 159

Section 439 (2) Cr.P.C. – Cancellation of Bail order - The exercise of jurisdiction by the learned Single Judge in cancelling the bail granted by another Single Judge of the same High Court, by examining the merits of the allegations, tantamounts to judicial impropriety/indiscipline. The application for cancellation of bail filed on merits as opposed to violation of the conditions of the bail order should have been placed before the same learned Single Judge who had granted bail to the accused. The act of reviewing the orders granting bail to the accused by another Single Judge is uncalled for and amounts to gross impropriety. (Para 10) Himanshu Sharma v. State of Madhya Pradesh, 2024 LiveLaw (SC) 157 : 2024 Cri LJ 1482 : (2024) 4 SCC 222

Section 439 Cr.P.C. – Grounds for cancellation of bail - Bail granted to an accused can only be cancelled if the Court is satisfied that after being released on bail, (a) the accused has misused the liberty granted to him; (b) flouted the conditions of bail order; (c) that the bail was granted in ignorance of statutory provisions restricting the powers of the Court to grant bail; (d) or that the bail was procured by misrepresentation or fraud. None of these grounds existed while cancellation of bail granted by another bench. (Para 12) Himanshu Sharma v. State of Madhya Pradesh, 2024 LiveLaw (SC) 157 : 2024 Cri LJ 1482 : (2024) 4 SCC 222

Section 439 Cr.P.C. – Section 43D(5) of the UAP Act modifies the application of the general bail provisions in respect of offences punishable under Chapter IV and Chapter VI of the UAP Act. Bail must be rejected as a 'rule', if after hearing the public prosecutor and after perusing the 'final report' or 'Case Diary', the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied, that the Courts would proceed to decide the bail application in accordance with the 'tripod test' (flight risk, influencing witnesses, tampering with evidence). The restrictions, on granting of bail in section 43D(5) are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail. The conventional idea in bail jurisprudence 'bail is the rule, jail is the exception' does not find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D(5) - 'shall not be released', in contrast with the form of the words as found in Section 437(1) CrPC - 'may be released', suggests the intention of the Legislature to make bail, the exception and jail, the rule. (Para 17, 18 & 20) Gurwinder Singh v. State of Punjab, 2024 LiveLaw (SC) 100 : AIR 2024 SC 952 : (2024) 5 SCC 403

Section 497 - Order for custody and disposal of property pending trial in certain cases

[In subsection (1), the words, “or the Magistrate empowered to take cognizance or commit the case for trial”, "investigation," and “or the Magistrate” are added. New subsections (2), (3), (4), and (5) are added, which stipulate the process of disposal, destruction, confiscation, or delivery of the property.]

Section 451 Cr.P.C. - Mines and Minerals Act, 1957 - Proceedings for confiscation - Release of seized vehicle - Keeping a vehicle like a Tipper Lorry idle is not serving anybody's interest. It is resulting in damage to the stationary vehicle which is kept within the Magistrate Court complex. Public spaced is also occupied. (Para 6) Perichi Gounder v. State of Tamil Nadu, 2024 LiveLaw (SC) 498

Section 451 Cr.P.C. – Custody and disposal of the property pending an inquiry or trial – When any property is produced before any criminal court during the course of inquiry or trial, it is the criminal court which would have the jurisdiction and the power to pass appropriate orders for the proper custody of such property or for selling or disposing of such property. The appellant without approaching the concerned court under Section 451 of CrPC, directly approached the High Court under Article 226/227 of the Constitution of India. Held, when there is a specific statutory provision contained in the CrPC. empowering the criminal court to pass appropriate order for the proper custody and disposal of the property pending the inquiry or trial, the appellant could not have invoked the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India seeking release of his vehicle. (Para 5 & 6) Khengarbhai Lakhabhai Dambhala v. State of Gujarat, 2024 LiveLaw (SC) 289 : AIR 2024 SC 2139 : 2024 CriLJ 2092

Section 510 - Effect of omission to frame, or absence of, or error in, charge

[No change]

Section 464 Cr.P.C. - Conviction cannot be challenged based on conversion of charges unless 'failure of justice' is proved. Baljinder Singh @ Ladoo v. State of Punjab, 2024 LiveLaw (SC) 748 : AIR 2024 SC 4810 : 2024 Cri LJ 4411

Section 528 - Saving of inherent powers of High Court

[No change]

Section 482 Cr.P.C. - Change of law can legitimately be regarded as a vital change in circumstance clothing the high court with the power, competence and jurisdiction to entertain the subsequent petition notwithstanding the fact that the earlier petition was withdrawn without obtaining any leave, subject to the satisfaction recorded by the high court that the order prayed for in the subsequent petition ought to be made, inter alia, either to prevent abuse of the process of any court or to secure the ends of justice. (Para 19) Muskan Enterprises v. State of Punjab, 2024 LiveLaw (SC) 1051

Section 482 Cr.P.C. - Distinction between quashing proceedings under Section 482 CrPC/Article 226 and discharge applications under the Code of Criminal Procedure - Whether the High Court erred in dismissing a writ petition for quashing criminal proceedings on the grounds of infructuousness post-filing of the charge-sheet - Held, the Supreme Court set aside the impugned one-line order of the High Court, which dismissed the writ petition for quashing criminal proceedings as infructuous upon the filing of a charge-sheet. The filing of a charge-sheet does not render such a writ petition infructuous. The Court emphasized the broader scope of a quashing petition, which allows challenges on grounds like abuse of process of law and reliance on documents beyond the charge-sheet. Such grounds are not available in discharge applications. The High Court's failure to consider the merits of the writ petition warranted interference. Appeal allowed. Mukesh v. State of Uttar Pradesh, 2024 LiveLaw (SC) 960

Section 482 Cr.P.C. - Penal Code, 1860; Sections 376(2)(n), 503, and 506 - Quashing of FIR - breakup in a consensual relationship - Allegations of Rape and Criminal Intimidation - Legal Provisions - The relationship between the appellant and the complainant was consensual and lacked the ingredients of coercion or false promises to marry. The complainant, an educated adult, willingly engaged in the relationship despite its eventual breakdown, which cannot retrospectively criminalize consensual acts. The continuation of proceedings would constitute an abuse of the process of law. A consensual relationship does not amount to rape unless consent was vitiated by false promises or coercion. Allegations of criminal intimidation require clear evidence of threats causing alarm or coercion, which was absent in this case. The Court allowed the appeal and quashed the criminal proceedings, observing that a breakup in a consensual relationship does not constitute grounds for criminal prosecution. The FIR and associated proceedings were declared an abuse of judicial process. Prashant v. State of NCT of Delhi, 2024 LiveLaw (SC) 904 : AIR 2025 SC 33

Section 482 Cr.P.C. - Whether the High Court was correct in quashing criminal proceedings based on affidavits indicating a settlement without verifying their genuineness and securing the personal presence of the victim. Whether affidavits executed by an illiterate victim without proper endorsement explaining their contents can be relied upon in quashing criminal proceedings for serious offences. Held, the Supreme Court set aside the High Court's order quashing criminal proceedings and remanded the matter for further inquiry into the authenticity of the alleged settlement and affidavits. In cases involving serious offences under IPC and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the High Court must verify the genuineness of any alleged settlement before exercising powers under Article 226 of the Constitution or Section 482 of Cr.P.C. The personal presence of the victim, particularly an illiterate one, is critical for the Court to verify whether affidavits or settlements are genuine and made with informed consent. In absence of an endorsement indicating that the contents of an affidavit were explained to the affirming party, especially when illiterate, such affidavits cannot be relied upon without further inquiry. The case was remanded to the High Court for fresh consideration, requiring the personal presence of the appellant and an inquiry into the affidavits. The High Court was directed to consider whether the settlement was genuine and, if so, whether the power to quash proceedings could be exercised in light of the seriousness of the allegations. Appeal partly allowed. The High Court's judgment was set aside, and the matter was remanded for further proceedings. XYZ v. State of Gujarat, 2024 LiveLaw (SC) 887

Section 482 Cr.P.C. - Whether a compromise between the accused and the complainant in a case involving serious offenses under the POCSO Act can justify quashing criminal proceedings under Section 482, Cr. P.C. Whether such offenses can be treated as private disputes capable of settlement. Held, offenses under the POCSO Act, particularly those involving allegations of pressure to prevent reporting of crimes, cannot be treated as private disputes or minor compoundable offenses. A compromise between the accused and the complainant's family cannot justify quashing proceedings when the alleged offense has serious societal implications. The power under Section 482, Cr. P.C., cannot be invoked to quash proceedings for heinous offenses, as deterrence and societal interest must be prioritized. The POCSO Act was enacted to safeguard children from sexual offenses, and offenses under its purview are not merely private matters but have significant social ramifications. The statement of the complainant indicating pressure from the accused to refrain from lodging a report further justifies the continuation of criminal proceedings. Reliance was placed on Gian Singh v. State of Punjab and State of Madhya Pradesh v. Laxmi Narayan to emphasize that heinous offenses cannot be quashed solely on the basis of compromise. The appeal was allowed, and the High Court's order quashing the FIR and criminal proceedings was set aside. The investigation and proceedings were directed to continue in accordance with the law. The Court reiterated that a victim's parent cannot settle disputes involving serious offenses on behalf of the victim. Courts must safeguard children's interests and ensure justice is not compromised by private settlements. Ramji Lal Bairwa v. State of Rajasthan, 2024 LiveLaw (SC) 865

Section 482 Cr.P.C. - A petition under Section 482 CrPC does not become infructuous upon the submission of a charge sheet; however, the Court must consider the investigation's outcome before quashing proceedings. Somjeet Mallick v. State of Jharkhand, 2024 LiveLaw (SC) 797

Section 482 Cr.P.C. - Quashing of FIR and criminal proceedings under Sections 406 and 420 IPC - Applicability of Section 482 CrPC in cases involving allegations of criminal breach of trust and cheating - Evaluation of materials collected during investigation - Held, the High Court erred in quashing the FIR without examining the materials collected during the investigation. FIR quashing should consider the police report under Section 173(2) CrPC. Allegations reflecting dishonest conduct or potential misappropriation require investigation rather than premature quashing. Somjeet Mallick v. State of Jharkhand, 2024 LiveLaw (SC) 797

Section 482 Cr.P.C. - Quashing of FIR - Whether the High Court erred in quashing the FIR and subsequent proceedings without considering the materials collected during the investigation. Whether allegations in the FIR disclosed prima facie commission of cognizable offences under Sections 406 and 420 IPC. Held, the High Court must examine materials collected during the investigation before deciding on quashing petitions under Section 482 CrPC. At the stage of quashing an FIR or criminal proceedings, the court must take allegations in the FIR and investigation materials at face value to determine if a prima facie case is made out. FIR need not be an exhaustive document detailing all imputations; it is sufficient if it discloses the gravamen of a cognizable offence. Somjeet Mallick v. State of Jharkhand, 2024 LiveLaw (SC) 797

Section 482 Cr.P.C. - Quashing of Criminal Proceedings – Criminal cases of a predominantly civil character can be quashed if resolved amicably by the parties. Jurisdiction under Section 482 CrPC should be exercised to prevent abuse of process and secure justice. When the likelihood of conviction is remote and continuation of proceedings causes undue prejudice, quashing is justified. K. Bharthi Devi v. State of Telangana, 2024 LiveLaw (SC) 775 : AIR 2024 SC 5027 : (2024) 10 SCC 384

Section 482 Cr.P.C. - Quashing of Criminal Proceedings – Predominantly Civil Nature of Dispute – Settlement Between Parties – In cases where the possibility of conviction is remote, continuing criminal proceedings would cause undue prejudice and oppression to the accused. In this case, the dispute involved a loan transaction between the accused and the bank, which was resolved through settlement, including payment under a One-Time Settlement (OTS) scheme. The Court noted that the criminal proceedings predominantly had a civil character, and there was no specific role attributed to the appellants, who were the spouses of the main accused. The Court held that the High Court erred in not exercising its jurisdiction under Section 482 of the Code of Criminal Procedure to quash the criminal proceedings. Consequently, the criminal proceedings against the appellants were quashed, and the appeal was allowed. K. Bharthi Devi v. State of Telangana, 2024 LiveLaw (SC) 775 : AIR 2024 SC 5027 : (2024) 10 SCC 384

Section 482 Cr.P.C. - There is no prohibition against quashing criminal proceedings even after the charge sheet has been filed. Kailashben Mahendrabhai Patel v. State of Maharashtra, 2024 LiveLaw (SC) 753

Section 482 Cr.P.C. - The Supreme Court set aside the High Court's order declaring the appellant's petition to quash the First Information Report (FIR) as infructuous following the appellant's arrest. The Court criticized the High Court's approach, stating that the writ petition for quashing the FIR should have been addressed on its merits, regardless of the appellant's detention status. Vidhu Gupta v. State of U.P., 2024 LiveLaw (SC) 735

Section 482 Cr.P.C. - FIRs can be quashed even after a charge-sheet is filed if continuing the proceedings would be an abuse of the process of law. Shaileshbhai Ranchhodbhai Patel v. State of Gujarat, 2024 LiveLaw (SC) 635

Section 482 Cr.P.C. - Inherent Jurisdiction of High Court – Scope of Powers - This provision enables the court to quash criminal proceedings at various stages—whether at the stage of issuing process, committal, or framing of charges—prior to the commencement of trial. Quashing should only be exercised with caution. The High Court must ensure that the material produced by the accused is of "sterling and impeccable quality," ruling out the prosecution's case without needing to conduct a trial. This power may be exercised even when a discharge application is pending before a trial court. Further, the court reiterated that the inherent powers under Section 482 can be used by the High Court to prevent abuse of the process of law or secure the ends of justice. Specifically, criminal proceedings may be quashed if the allegations are absurd, inherently improbable, or based on mala fides. (Para 18) Karnataka EMTA Coal Mines Ltd. v. Central Bureau of Investigation, 2024 LiveLaw (SC) 606 : AIR 2024 SC 5081

Section 482 Cr.P.C. - The accused was not an adolescent, but his age was about twenty-five years on the date of the commission of the offence, and the victim was only fourteen years old. When such offences of rape and aggravated penetrative sexual assault are committed, by exercising its jurisdiction under Article 226 of the Constitution of India and/or Section 482 of the Cr.PC, the High Court cannot acquit an accused whose guilt has been proved. Even if the accused and the victim (who has now attained majority) were to come out with a settlement, the High Court could not have quashed the prosecution. (Para 21 & 23.1) In Re: Right to Privacy of Adolescents, 2024 LiveLaw (SC) 587 : AIR 2024 SC 4004

Section 482 Cr.P.C. – Power to quash chargesheet – The power under Section 482 of the Cr.P.C. has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. Section 482 of the Cr.P.C. does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. If the Court is convinced by the fact that the involvement by the complainant of her husband and his close relatives is with an oblique motive then even if the FIR and the chargesheet disclose the commission of a cognizable offence the Court with a view to doing substantial justice should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. Held, if the criminal proceedings are allowed to continue against the Appellant, the same will be nothing short of abuse of process of law & travesty of justice. The High Court should have exercised its inherent power under Section 482 of the Cr.P.C. for the purpose of quashing the criminal proceedings. (Para 20, 21, 31 & 36) Achin Gupta v. State of Haryana, 2024 LiveLaw (SC) 343 : 2024 CriLJ 2307 : AIR 2024 SC 2548

Section 482 Cr.P.C. – Quashing of chargesheet – Object – The court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out, prima facie, whether there is any grain of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge, more particularly when a prosecution arises from a matrimonial dispute. (Para 25) Achin Gupta v. State of Haryana, 2024 LiveLaw (SC) 343 : 2024 CriLJ 2307 : AIR 2024 SC 2548

Section 482 Cr.P.C. – Quashing of chargesheet – Stages at which the power to quash can be used – There is nothing in the words of Section 482 of the Cr.P.C. 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 would be a travesty of justice to hold that the proceedings initiated against a person can be interfered with at the stage of FIR but not if it has materialized into a chargesheet. (Para 22) Achin Gupta v. State of Haryana, 2024 LiveLaw (SC) 343 : 2024 CriLJ 2307 : AIR 2024 SC 2548

Section 482 Cr.P.C. – Quashing of FIR – Second FIR on the same set of allegations – Held, respondent had been misusing their official position by lodging complaints one after the other. Further, their conduct of neither appearing before the Trial Court nor withdrawing their first complaint, would show that their only intention was to harass the appellant by first making him face a trial at both the places. Second FIR quashed. (Para 11 & 12) Parteek Bansal v. State of Rajasthan, 2024 LiveLaw (SC) 317

Section 482 Cr.P.C. – Quashing of Charge – Appellants have not made out a case for interference with the order on charge and the order of framing charge. The Court is only required to consider judicially whether the material warrants the framing of charge without blindly accepting the decision of the prosecution. (Para 43) Puneet Sabharwal v. CBI, 2024 LiveLaw (SC) 260 : AIR 2024 SC 2046

Section 482 Cr.P.C. – Categories of cases wherein quashing power could be exercised to prevent abuse of the process of any court or to secure the ends of justice are: (1) Where the allegations made in the first information report or the complaint, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence. (5) Where the allegations made in the FIR or complaint are absurd and inherently improbable to reach a conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar to the institution and continuance of the proceedings and/or where there is provision providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is mala fide. (Para 32) Shiv Prasad Semwal v. State of Uttarakhand, 2024 LiveLaw (SC) 251

Section 482 Cr.P.C. - Quashing of FIR – 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) Apoorva Arora v. State, 2024 LiveLaw (SC) 243 : AIR 2024 SC 1775 : 2024 Cri LJ 1781

Section 482 Cr.P.C. - Constitution of India; Article 226 – Exercise of extraordinary power to quash proceedings – Such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. Some instances where such power can be exercised is: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Held, present case would squarely fall under categories (1), (3) and (5) and even if the allegations made in the FIR and the material on which the prosecution relies, are taken at its face value, there are no sufficient grounds for proceeding against the accused. (Para 17 & 18) Ms. X v. Mr. A, 2024 LiveLaw (SC) 242 : 2024 CriLJ 1894

Section 482 Cr.P.C. - Quashing of Criminal Proceedings - Rape - Lodging a case after 34 years and that too on the basis of a bald statement that the prosecutrix was a minor at the time of commission of offence, could itself be a ground to quash the proceedings. No explanation whatsoever is given in the FIR as to why the prosecutrix was keeping silent for a long period of 34 years. The material on record shows that the relationship was consensual, in as much as the son who is born out of the said relationship has been treated by the accused as his son and all the facilities, including cash money, have been provided to him. Rajaram Sharma v. State of Uttar Pradesh, 2024 LiveLaw (SC) 40

Section 482 Cr.P.C. – Inherent power of court – High Court should have exercised power under Section 482 to stop the abuse of the process and to secure the ends of justice. Although the 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 but are given a cloak of criminal offence. Criminal proceedings cannot be taken recourse to as a weapon of harassment. (Para 5 & 6) Naresh Kumar v. State of Karnataka, 2024 LiveLaw (SC) 228

Section 482 Cr.P.C. - Quashing of FIR – Offence of Rape - A relationship may be consensual at the beginning but the same state may not remain so for all time to come. Whenever one of the partners show their unwillingness to continue with such relationship, the character of such relationship at it was when started will not continue to prevail. In the instant case, we do not think the relationship had remained consensual to justify quashing of the criminal complaint at the threshold. Rajkumar v. State of Karnataka, 2024 LiveLaw (SC) 214

Section 482 Cr.P.C. - Quashing of FIR – Law with regard to exercise of jurisdiction under Section 482 of Cr.P.C. to quash complaints and criminal proceedings - Discussed. (Para 9, 10 & 21) A.M. Mohan v. State, 2024 LiveLaw (SC) 197

Section 482 Cr.P.C. - Quashing of FIR – The entire case of prosecution is based on unauthorizedly and illegally collected sample of meat. Hence, the High Court was right when it interfered by quashing the First Information Report. (Para 9) Joshine Antony v. Asifa Sultana, 2024 LiveLaw (SC) 195

Section 482 Cr.P.C. - High Court could not have stayed the investigations and restrained the investigating agencies from investigating cognizable offences as alleged in the FIRs and the Enforcement Case Information Report (ECIR), particularly when the investigations were at a very nascent stage. The inherent powers under Section 482 of Cr.PC do not confer any arbitrary jurisdiction on the High Court to act according to whims or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. In a way, by passing such orders of staying the investigations and restraining the investigating agencies from taking any coercive measure against the accused pending the petitions under Section 482 Cr.PC, the High Court has granted blanket orders restraining the arrest without the accused applying for the anticipatory bail under Section 438 of Cr.PC. (Para 20) Directorate of Enforcement v. Niraj Tyagi, 2024 LiveLaw (SC) 114 : AIR 2024 SC 1161 : 2024 Cri.L.J. 1306

Section 482 Cr.P.C. - Iudicial comity and judicial discipline demands that higher courts should follow the law. The extraordinary and inherent powers of the court do not confer any arbitrary jurisdiction on the court to act according to its whims and caprice. (Para 24) Directorate of Enforcement v. Niraj Tyagi, 2024 LiveLaw (SC) 114 : AIR 2024 SC 1161 : 2024 Cri.L.J. 1306

Section 482 Cr.P.C. - If the charge sheet is filed against the accused during the pendency of the petition for quashing of the FIR, the High Court is not restrained from exercising its inherent jurisdiction and could still examine if offences alleged to have been committed were prima facie made out or not on the basis of the F.I.R., charge sheet and other documents. Mamta Shailesh Chandra v. State of Uttarakhand, 2024 LiveLaw (SC) 86

Section 482 Cr.P.C. - Allegations made by the complainant do not give rise to the offences for which the accused has been summoned for trial. A commercial dispute, which ought to have been resolved through the forum of Civil Court has been given criminal colour by lifting from the penal code certain words or phrases and implanting them in a criminal complaint. No case at all has been made out that would justify invoking the machinery of the Criminal Courts. The dispute, per se, is commercial in nature having no element of criminality. The Magistrate here failed to apply his mind in issuing summons and the High Court also failed to exercise its jurisdiction under Section 482 of the 1973 Code to prevent abuse of the power of the Criminal Court. (Para 18) Sachin Garg v. State of U.P, 2024 LiveLaw (SC) 75

Section 482 Cr.P.C. - When the High Court was called upon to invoke power under Section 482 Cr.P.C. to quash a criminal case, it was incumbent upon the High Court to consider the question whether the allegations would constitute the offence(s) alleged against the person-accused. (Para 6) Rajaram Sharma v. State of Uttar Pradesh, 2024 LiveLaw (SC) 40

Section 482 Cr.P.C. - In the instant case, we find initiation of criminal proceedings before a forum which had no territorial jurisdiction by submitting incorrect facts and giving frivolous reasons to entertain such complaints. A closer look at the respondent's actions reveals more than just an inappropriate use of jurisdiction. The core issue of the dispute, which involves financial transactions and agreements, clearly places it in the realm of civil and commercial law. Yet, the respondent chose to pursue criminal charges in a quest to abuse the criminal justice system with a motive to seek personal vengeance rather than seeking true justice. This unnecessary turning of a civil matter into a criminal case not only overburdens the criminal justice system but also violates the principles of fairness and right conduct in legal matters. The apparent misuse of criminal proceedings in this case not only damages trust in our legal system but also sets a harmful precedent if not addressed. Dinesh Gupta v. State of Uttar Pradesh, 2024 LiveLaw (SC) 33 : AIR 2024 SC 574