Supreme Court Quarterly Digest On Code Of Criminal Procedure [Jan – Mar, 2024]

Sections 61, 70, 204, 437 - 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

Section 82(1) - 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 82 and 83 - 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 - 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 125 - 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 156 (3) - 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 161 - 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

Section 167 and 173 - 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

Section 172 – 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 – 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) - 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. 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. Although the accused or his agents have no right to seek production of the case diaries as per Section 172(3) of the Code of Criminal Procedure, whenever the police officer uses it to refresh his memory, the accused will get a right to access it for the purpose of cross-examination. (Para 22, 26 & 27) Shailesh Kumar v. State of U.P., 2024 LiveLaw (SC) 162

Section 172 (3) - 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 173 – 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 – 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) – 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) – 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) – 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) - 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 178 (8) - 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 178 (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

Section 197 - Fabrication of records cannot be a part of the official duty of a public servant. (Para 25) 2024 LiveLaw (SC) 42

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) 2024 LiveLaw (SC) 42

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

Section 202 – 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 – 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 202(1) – 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 242(3) - 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 313 – 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

Section 313 - 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 319 - 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 319 – 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 - 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 357(1) - 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 378 - 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 - 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 Cri.L.J. 1335

Section 389 - Writ petition aggrieved by non-consideration and non-disposal of criminal appeal is not maintainable. If priority has not been given to the criminal appeal by the High Court for early hearing, for whatever reason, the same is also part of the judicial process and cannot be made amenable to a challenge in a writ petition under Article 32 citing breach of Article 21. A judicial decision rendered by a Judge of competent jurisdiction in or in relation to a matter brought before him does not infringe a Fundamental Right. If the petitioner wishes to be released on bail pending the criminal appeal, cannot invoke the writ remedy but has to take recourse to an application under Section 389(1) of the Code of Criminal Procedure. (Para 3) Ganpat @ Ganapat v. State of Uttar Pradesh, 2024 LiveLaw (SC) 147

Section 391 – 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 432 - 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 - 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 - 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) - 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 435 - 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 438 – 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 – 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 – 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 – 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

Sections 438 and 439 - 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 439 – 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

Section 439 (2) – 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

Section 439 – 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

Section 482 – 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 and 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

Section 482 - 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 - 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 - 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 - 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 – 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 - 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 - 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 - 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 - 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 - 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