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Supreme Court Annual Digest...

Supreme Court Annual Digest 2023-Code Of Criminal Procedure (CrPC)

LIVELAW NEWS NETWORK

4 Jan 2024 11:55 AM IST

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

Code of Criminal Procedure Code, 1973 - Chapter XII - The Investigating Officer is the person tasked with determining a direction, the pace, manner and method of the investigation. (Para 38 - 43) 2023 LiveLaw (SC) 358

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

Chapter XXV - Provisions as to accused persons of Unsound Mind

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

Section 4 - Trial of offences under the Indian Penal Code and other law

Code of Criminal Procedure, 1973; Section 4 (2) - Co-operative Societies Act, 1960 (Maharashtra); Section 81(5B) - the police have an independent power and even duty under the CrPC to investigate into an offence once information has been drawn to their attention indicating the commission of an offence. This power is not curtailed by the provisions of the 1960 Act. There is no express bar and the provisions of Section 81(5B) do not by necessary implication exclude the investigative role of the police under the CrPC. (Para 27) 2023 LiveLaw (SC) 652

Section 41 - When police may arrest without warrant

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

Section 41A - Notice of appearance before police officer

Code of Criminal Procedure, 1973; Section 41A - Prevention of Money Laundering Act, 2002 - Section 41A of the CrPC, 1973 has got no application to an arrest made under the PMLA 2002. (Para 35) 2023 LiveLaw (SC) 611

Section 53A - Examination of person accused of rape by medical practitioner

Code of Criminal Procedure, 1973; Section 53A - Failure to subject the accused to medical examination by a medical practitioner - A serious flaw- Medical examination of an accused assumes great importance in cases where the victim of rape is dead and the offence is sought to be established only by circumstantial evidence. (Para 24-29) 2023 LiveLaw (SC) 744

Section 54A - Identification of person arrested

Code of Criminal Procedure, 1973; Section 54A - Test Identification Parade - An accused is under an obligation to stand for identification parade. An accused cannot resist subjecting himself to the TIP on the ground that he cannot be forced or coerced for the same. If the coercion is sought to be imposed in getting from accused evidence which cannot be procured save through positive volitional act on his part, the constitutional 38 guarantee as enshrined under Article 20(3) of the Constitution will step in to protect him. However, if that evidence can be procured without any positive volitional evidentiary act on the part of the accused, Article 20(3) of the Constitution will have no application. The accused while subjecting himself to the TIP does not produce any evidence or perform any evidentiary act - The accused concerned may have a legitimate ground to resist facing the TIP saying that the witnesses had a chance to see him either at the police station or in the Court, as the case may be, however, on such ground alone he cannot refuse to face the TIP. It is always open for the accused to raise any legal ground available to him relating to the legitimacy of the TIP or the evidentiary value of the same in the course of the trial. However, the accused cannot decline or refuse to join the TIP. (Para 35) 2023 LiveLaw (SC) 703

Code of Criminal Procedure, 1973; Section 54A - This Section is restricted to identification of persons only. So, this Section has no application where the question of identification of articles arises. (Para 33) 2023 LiveLaw (SC) 703

Section 82 - Proclamation for person absconding

Code of Criminal Procedure, 1973; Sections 82 and 438 - Anticipatory bail can be granted to a proclaimed offender only in an exceptional and rare case. (Para 16) 2023 LiveLaw (SC) 739

Code of Criminal Procedure, 1973; Sections 82, 83 - The High Court by its impugned order even while granting bail to the accused issued detailed and elaborate guidelines with respect to the manner of issuing proclamations under Sections 82 and 83 Cr.P.C. The impugned order has inadvertently or otherwise entirely overlooked Form 5 and 6 and the important provisions of Sections 83 Cr.P.C. and 174A IPC. Therefore, to the extent, they issue directions to the State and to all Courts within the territories of Punjab, Haryana and Union Territory of Chandigarh; are hereby set aside. However, to the extent that the order grants bail to the accused, is left undisturbed. 2023 LiveLaw (SC) 638

Section 100 - Persons in charge of closed place to allow search

Code of Criminal Procedure, 1973; Section 100 (4) - Plea of unreliability of the testimony of the independent witness - It is a general provision relating to search and applies to a closed place, as for example, a residence, office, shop, a built-up premises etc, where a search is required to be conducted by the investigation. It is in this context that sub-section (4) of Section 100 Cr.P.C. provides that to maintain the purity of the process, before undertaking a search, a couple of independent and respectable inhabitants of the locality where the place to be searched is located, be joined as witnesses to the search. (Para 24 – 25) 2023 LiveLaw (SC) 813

Section 102 - Power of police officer to seize certain property

Code of Criminal Procedure, 1973; Section 102 - Company's bank account cannot be frozen for criminal investigation against an unrelated party. 2023 LiveLaw (SC) 412

Code of Criminal Procedure, 1973; Section 102, 104 - the power under Section 104 of Cr.P.C. cannot be invoked to impound a passport. The reason is that the provisions of the PP Act which deal with the specific subject of impounding passports shall prevail over Section 104 of Cr.P.C. Moreover, under Section 102 (1) of Cr.P.C., the Police have the power to seize the passport but there is no power to impound the same. Even if the power of seizure of a passport is exercised under Section 102, the Police cannot withhold the said document and the same must be forwarded to the Passport Authority. It is, thereafter, for the Passport Authority to decide whether the passport needs to be impounded. (Para 8) 2023 LiveLaw (SC) 565

Section 154 - Information in cognizable cases

Code of Criminal Procedure 1973; Section 154 - Principles of natural justice are not applicable at the stage of reporting a criminal offence - Code of Criminal Procedure, 1973 does not provide for right of hearing before the registration of an FIR. (Para 30) 2023 LiveLaw (SC) 243

Code of Criminal Procedure, 1973; Section 154 - Delay in registering FIR - The immediate lodging of an FIR removes suspicion with regard to over implication of number of persons, particularly when the case involved a fight between two groups. When the parties are at loggerheads, the immediate lodging of the FIR provides credence to the prosecution case. (Para 31) 2023 LiveLaw (SC) 186

Code of Criminal Procedure, 1973; Section 154 - Registration of an FIR - Mandatory nature of Section 154(1) of the Code – Explained. (Para 14-18) 2023 LiveLaw (SC) 396

Code of Criminal Procedure, 1973; Section 154 - Registration of FIR is mandatory under Section 154 of Cr.P.C., if the information discloses commission of cognizable offence. 2023 LiveLaw (SC) 639

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

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

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

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

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

Section 161 - Examination of witnesses by police

Code of Criminal Procedure, 1973; Section 161 and 162 - Statement given to police during investigation under Section 161 cannot be read as “evidence”. It has a limited applicability in a Court of Law as prescribed under Section 162 Cr.P.C. No doubt statement given before police during investigation under Section 161 are “previous statements” under Section 145 of the Evidence Act and therefore can be used to cross examine a witness. But this is only for a limited purpose, to “contradict” such a witness. Even if the defence is successful in contradicting a witness, it would not always mean that the contradiction in her two statements would result in totally discrediting this witness. (Para 19) 2023 LiveLaw (SC) 941

Section 162 - Statements to police not to be signed: Use of statements in evidence

Code of Criminal Procedure, 1973; Section 162 - There is nothing in Section 162 of the CrPC which prevents a Trial Judge from looking into the papers of the chargesheet suo motu and himself using the statement of a person examined by the police recorded therein for the purpose of contradicting such person when he gives evidence in favour of the State as a prosecution witness. The Judge may do this or he may make over the recorded statement to the lawyer for the accused so that he may use it for this purpose - The proviso would prevent the Court from using statements made by a person to a police officer in the course of investigation for any other purpose than that mentioned in the proviso but it does not in any other way affect the power that lies in the Court to look into documents or put questions to witnesses suo motu. (Para 45-48) 2023 LiveLaw (SC) 744

Code of Criminal Procedure, 1973; Section 162 - Witnesses to the panchnamas and the seizures acted as mere attestors to the documents and did not disclose in their own words as to how these objects were discovered, i.e., at whose instance and how. Ergo, no lawful validity attaches to these proceedings recorded by the police in the context of collection of all this evidence. (Para 32) 2023 LiveLaw (SC) 814

Section 164 - Recording of confessions and statements

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

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

Code of Criminal Procedure, 1973 - Section 167 of the Cr.P.C. is a bridge between liberty and investigation performing a fine balancing act. (Para 77) 2023 LiveLaw (SC) 611

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Default bail can be cancelled on merits - there is no absolute bar that once a person is released on default bail under Section 167(2) Cr.P.C., his bail cannot be cancelled on merits and his bail can be cancelled on other general grounds like tampering with the evidence/witnesses; not cooperating with the investigating agency and/or not cooperating with the concerned Trial Court etc. [Para 11] 2023 LiveLaw (SC) 37

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

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Grant of Default Bail - deemed to be released under provisions of Chapter XXXIII of the Cr.P.C., which includes Section 437 and 439 also - deeming fiction under Section 167(2) Cr.P.C. cannot be interpreted to the length of converting the order of default bail, which is not on merits as if passed on merits. [Para 8.1] 2023 LiveLaw (SC) 37

Code of Criminal Procedure, 1973; proviso to Section 167(2) - Grant of Default Bail - the merits brought out in the chargesheet and attending circumstances are relevant, as the bail was granted due to default of the investigating officer without Court's adverting to the merits but strong grounds are necessary to cancel the bail and mere filing of the chargesheet itself is not sufficient. [Para 9.2, 9.4, 9.7] 2023 LiveLaw (SC) 37

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Grant of Default Bail - Order granting bail shall be deemed to be under Section 437(1) or (2) or Section 439(1) of the Cr.P.C. and that order can be cancelled when a case for cancellation is made out under Section 437(5) or 439(2) Cr.P.C. [Para 9.6, 9.7] 2023 LiveLaw (SC) 37

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

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

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

Code of Criminal Procedure, 1973; Section 167 - Prevention of Money Laundering Act, 2002; Section 19 – The Court, while remanding any person arrested by the ED, has a foremost duty to verify and ensure that the arrest is valid and lawful. In the event the Court fails to discharge this duty in right earnest and with the proper perspective, the order of remand would fail on that ground itself. (Para 16) 2023 LiveLaw (SC) 844

Code of Criminal Procedure, 1973; Section 167 - Prevention of Money Laundering Act, 2002; Section 19 - An order of remand has to be challenged only before a higher forum as provided under the Cr.P.C. when it depicts a due application of mind both on merit and compliance of Section 167(2) of the CrPC, 1973 read with Section 19 of the PMLA 2002. (Para 66) 2023 LiveLaw (SC) 611

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

Code of Criminal Procedure, 1973; Section 167 - The word “custody” under Section 167(2) of the CrPC, 1973 shall mean actual custody. (Para 60) 2023 LiveLaw (SC) 611

Code of Criminal Procedure, 1973; Section 167 - The words “such custody” occurring in Section 167(2) of the CrPC, 1973 would include not only police custody but also that of other investigating agencies. (Para 85) 2023 LiveLaw (SC) 611

Code of Criminal Procedure, 1973; Section 167(2) - Accused cannot claim the benefit of default bail, when he did not challenge the first extension of time granted for investigation and the second extension was granted in his presence and when the chargesheet was subsequently filed within the period of extension. 2023 LiveLaw (SC) 297

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

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

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

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

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

Section 173 - Report of police officer on completion of investigation

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

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

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

Code of Criminal Procedure, 1973; Section 173 and 482 - Quashing of FIR - High Court has observed that the Investigating Officer will give opportunity to the accused to explain the material collected against him during the investigation before submission of the final report - Such approach is very strange and contrary to law. 2023 LiveLaw (SC) 950

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

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

Code of Criminal Procedure, 1973; Section 173, 190, 200 - On the receipt of the police report under Section 173 Cr.P.C., the Magistrate can exercise three options - Firstly, he may decide that there is no sufficient ground for proceeding further and drop action - Secondly, he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process - Thirdly, he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200 - Even in a case where the final report of the police under Section 173 is accepted and the accused persons are discharged, the Magistrate has the power to take cognizance of the offence on a complaint or a Protest Petition on the same or similar allegations even after the acceptance of the final report - Magistrate is not debarred from taking cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of the police report - Magistrate while exercising his judicial discretion has to apply his mind to the contents of the Protest Petition or the complaint as the case may be. 2023 LiveLaw (SC) 730

Section 190 - Cognizance of offences by Magistrates

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

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

Section 197 – Prosecution of Judges and public servants

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

Code of Criminal Procedure, 1973; Section 197 - Although a person working in a Nationalised Bank is a public servant, yet the provisions of Section 197 of the CrPC would not be attracted at all as Section 197 is attracted only in cases where the public servant is such who is not removable from his service save by or with the sanction of the Government. (Para 45) 2023 LiveLaw (SC) 614

Code of Criminal Procedure, 1973; Section 197 - Prevention of Corruption Act, 1988; Section 19 - In the prosecution for the offences exclusively under the PC Act, 1988, sanction is mandatory qua the public servant. In cases under the general penal law against the public servant, the necessity (or otherwise) of sanction under Section 197 of the CrPC depends on the factual aspects. The test in the latter case is of the “nexus” between the act of commission or omission and the official duty of the public servant. To commit an offence punishable under law can never be a part of the official duty of a public servant. It is too simplistic an approach to adopt and to reject the necessity of sanction under Section 197 of the CrPC on such reasoning. The “safe and sure test”, is to ascertain if the omission or neglect to commit the act complained of would have made the public servant answerable for the charge of dereliction of his official duty. He may have acted “in excess of his duty”, but if there is a “reasonable connection” between the impugned act and the performance of the official duty, the protective umbrella of Section 197 of the CrPC cannot be denied, so long as the discharge of official duty is not used as a cloak for illicit acts. (Para 49) 2023 LiveLaw (SC) 614

Section 200 - Examination of complainant

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

Section 202 - Postponement of issue of process

Code of Criminal Procedure, 1973; Section 202 - Negotiable Instruments Act, 1881; Section 138 - As far as complaints under Section 138 of the NI Act are concerned, for the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses. 2023 LiveLaw (SC) 706

Code of Criminal Procedure, 1973; Section 202(1) - In a case where one of the accused is a resident of a place outside the jurisdiction of the learned Magistrate, following the procedure under Section 202(1) is mandatory. (Para 4) 2023 LiveLaw (SC) 702

Code of Criminal Procedure, 1973; Section 202(1), 203 - After taking recourse to Section 202(1) of the Cr.P.C., before dismissing a complaint by taking recourse to Section 203 of the Cr.P.C., the Magistrate has to consider the statements of the complainant and his witnesses. (Para 5) 2023 LiveLaw (SC) 597

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

Section 204 - Issue of process

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

Code of Criminal Procedure, 1973; Section 256 - Where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. 2023 LiveLaw (SC) 153

Section 207 - Supply to the accused of copy of police report and other documents

Code of Criminal Procedure, 1973; Section 207, 208 - Accused must know and understand the material against him in the charge sheet. That is the essence of Article 21 of the Constitution of India. (Para 19) 2023 LiveLaw (SC) 708

Code of Criminal Procedure, 1973; Section 207, 208 - When a copy of the report and the documents are supplied to the accused under Section 207 and/or Section 208, an opportunity is available for the accused to contend that he does not understand the language in which the final report or does not understand the language in which the final report or the statements or documents are written. But he must raise this objection at the earliest. In such a case, if the accused is appearing in person and wants to defend himself without opting for legal aid, perhaps there may be a requirement of supplying a translated version of the charge sheet and documents or the relevant part thereof concerning the said accused to him. It is, however, subject to the accused satisfying the Court that he is unable to understand the language in which the charge sheet is submitted - When the accused is represented by an advocate who fully understands the language of the final report or charge sheet, there will not be any requirement of furnishing translations to the accused as the advocate can explain the contents of the charge sheet to the accused. If both the accused and his advocate are not conversant with the language in which the charge sheet has been filed, then the question of providing translation may arise. The reason is that the accused must get a fair opportunity to defend himself. (Para 19) 2023 LiveLaw (SC) 708

Section 211 - Contents of charge

Code of Criminal Procedure, 1973; Section 211, 215 - In a given case, even if the charge is not framed in the language of the Court, the omission to frame the charge in the language of the Court shall not be material unless it is shown that the accused was misled and it resulted in failure of justice. (Para 14.a) 2023 LiveLaw (SC) 708

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

Section 216 - Court may alter charge

Code of Criminal Procedure, 1973; Sections 216 and 386 - Alteration or addition of charges - In view of the wide powers conferred by Section 386 of Cr.P.C., even an Appellate Court can exercise the power under Section 216 of altering or adding the charge. However, if the Appellate Court intends to do so, elementary principles of natural justice require the Appellate Court to put the accused to the notice of the charge proposed to be altered or added when prejudice is likely to be caused to the accused by alteration or addition of charges. Unless the accused was put to notice that the Appellate Court intends to alter or add a charge in a particular manner, his advocate cannot effectively argue the case. (Para 12) 2023 LiveLaw (SC) 870

Section 222 - When offence proved included in offence charged

Code of Criminal Procedure, 1973; Section 222 (2) - Court can consider whether the accused has committed any other offence which is a minor offence in comparison to the offence for which he is tried. (Para 13) 2023 LiveLaw (SC) 510

Section 227 - Discharge

Code of Criminal Procedure, 1973; Section 227 - The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression “the record of the case” used in Section 227 Cr.P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency. (Para 11) 2023 LiveLaw (SC) 874

Code of Criminal Procedure, 1973; Section 227 and 228 - At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only. (Para 8) 2023 LiveLaw (SC) 874

Code of Criminal Procedure, 1973; Section 227 and 228 - The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. (Para 12) 2023 LiveLaw (SC) 874

Code of Criminal Procedure, 1973; Section 227, 228 and 397 - The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be cognizant of the fact that trial court was dealing with an application for discharge. (Para 15) 2023 LiveLaw (SC) 874

Code of Criminal Procedure, 1973; Section 227, 239 - An interlocutory application seeking discharge in the midst of trial would also not be maintainable. (Para 15) 2023 LiveLaw (SC) 595

Section 228 - Framing of charge

Code of Criminal Procedure, 1973; Section 228, 240 - If the accused does not understand the language in which the charge is framed, the Court will have to explain the charge to him in the language which he understands. (Para 14.b and 14.c.) 2023 LiveLaw (SC) 708

Section 235 - Judgment of acquittal or conviction

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

Section 272 - Language of Courts

Code of Criminal Procedure, 1973; Section 272 - The power under Section 272 is not a power to decide which language shall be used by the investigating agencies or the police for the purposes of maintaining the record of the investigation. At the highest, for that purpose, the provisions regarding the law governing the Official Language of the State may apply subject to the provisions contained in such enactment. In a given case, while prescribing a form as required by Sub-section (2) of Section 173, the State Government may provide that the charge sheet must be filed in the official language of the State. Therefore, Section 272 deals with only the language of the Courts under CrPC. 2023 LiveLaw (SC) 708

Code of Criminal Procedure, 1973; Section 272, 167, 173 - A charge sheet filed within the period provided either under Section 167 of CrPC or any other relevant statute in a language other than the language of the Court or the language which the accused does not understand, is not illegal and no one can claim a default bail on that ground - With the availability of various software and Artificial Intelligence tools for making translations, providing translations will not be that difficult now. In the cases mentioned aforesaid, the Courts can always direct the prosecution to provide a translated version of the charge sheet. (Para 19) 2023 LiveLaw (SC) 708

Code of Criminal Procedure, 1973; Section 272, 173, 465 - There is no specific provision in CrPC which requires the investigating agency/officer to file it in the language of the Court determined in accordance with Section 272 of CrPC. Even if such a requirement is read into Section 173, per se, the proceedings will not be vitiated if the report is not in the language of the Court. The test of failure of justice will have to be applied in such a case as laid down in Section 465 of CrPC. (Para 18) 2023 LiveLaw (SC) 708

Section 277 - Language of record of evidence

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

Section 279 - Interpretation of evidence to accused or his pleader

Code of Criminal Procedure, 1973; Section 279 - Where evidence is recorded in the language of the Court which is not understood by the accused or his pleader, there is an obligation on the part of the Court to explain the evidence to the accused or his lawyer, as the case may be. (Para 14.g) 2023 LiveLaw (SC) 708

Section 306 - Tender of pardon to accomplice

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

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

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

Code of Criminal Procedure, 1973; Section 311 - Power to recall witnesses under Section 311 Cr.P.C. ought to be exercised sparingly and mere hostility by a witness, per se, would not be a sufficient ground to infer misuse of concession of bail. (Para 31) 2023 LiveLaw (SC) 924

Code of Criminal Procedure, 1973; Section 311 - Recalling the witnesses for an effective, fair, and free adjudication of the trial – Apex Court is vested with vast and ample powers to have such recourse not only under Article 142 of the Constitution but also under Section 311 Cr.P.C., be it on the request of the prosecution or suo moto. Such Constitutional or statutory power is not limited by any barriers like the stage of inquiry, trial, or other proceeding. A person can be called and examined though not summoned as a witness, or can be recalled, or reexamined so as to throw light upon the imputations. Section 311 Cr.P.C., of course, does not intend to fill the lacunae in the prosecution's case and cause any serious prejudice to the rights of an accused. The exercise of power under this provision is intended to meet the ends of justice and to gather overwhelming evidence to scoop out the truth. (Para 28) 2023 LiveLaw (SC) 924

Code of Criminal Procedure, 1973 - Sections 311, 367 and 391 - Appellate Courts can exercise all powers vested in the Trial Court in an attempt to arrive at a just and fair decision. In the present case, unfortunately the Trial Court as well as the High Court failed to exercise their powers under the aforesaid provisions to summon the witnesses of the charge-sheet to prove the police papers. Despite applications being filed to summon persons who were not shown as witnesses to the charge-sheet, the Trial Court repeatedly rejected the said applications in 2006 and again in 2008 on the flimsy grounds that were not named in the charge-sheet or that the Public Prosecutor had not filed such application in gross violation of Section 311 CrPC. (Para 112, 113) 2023 LiveLaw (SC) 664

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

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

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

Section 313 - Power to examine the accused

Code of Criminal Procedure, 1908; Section 313 - Although there is a requirement by law to disclose the aspects required to adjudicate in a criminal matter such duty cannot unreasonably and unwarrantedly step over the fundamental right of privacy. (Para 36) 2023 LiveLaw (SC) 932

Code of Criminal Procedure, 1908; Section 313 - In such a statement, the accused may or may not admit involvement or any incriminating circumstance or may even offer an alternative version of events or interpretation. The accused may not be put to prejudice by any omission or inadequate questioning. The right to remain silent or any answer to a question which may be false shall not be used to his detriment, being the sole reason. (Para 34.5 & 6) 2023 LiveLaw (SC) 932

Code of Criminal Procedure, 1908; Section 313 - Such a statement, as not on oath, does not qualify as a piece of evidence under Section 3 of the Indian Evidence Act, 1872; however, the inculpatory aspect as may be borne from the statement may be used to lend credence to the case of the prosecution. The circumstances not put to the accused while rendering his statement under the Section are to be excluded from consideration as no opportunity has been afforded to him to explain them. (Para 34.9 & 10) 2023 LiveLaw (SC) 932

Code of Criminal Procedure, 1908; Section 313 - The Court is obligated to put, in the form of questions, all incriminating circumstances to the accused so as to give him an opportunity to articulate his defence. The defence so articulated must be carefully scrutinized and considered. Non-compliance with the Section may cause prejudice to the accused and may impede the process of arriving at a fair decision. (Para 34.11 & 12) 2023 LiveLaw (SC) 932

Code of Criminal Procedure, 1908; Section 313 - The object, evident from the Section itself, is to enable the accused to themselves explain any circumstances appearing in the evidence against them. The intent is to establish a dialogue between the Court and the accused. This process benefits the accused and aids the Court in arriving at the final verdict. (Para 34.1 & 2) 2023 LiveLaw (SC) 932

Code of Criminal Procedure, 1908; Section 313 - The process enshrined is not a matter of procedural formality but is based on the cardinal principle of natural justice, i.e., audi alterum partem. The ultimate test when concerned with the compliance of the Section is to enquire and ensure whether the accused got the opportunity to say his piece. (Para 34.3 & 4) 2023 LiveLaw (SC) 932

Code of Criminal Procedure, 1908; Section 313 - This statement cannot form the sole basis of conviction and is neither a substantive nor a substitute piece of evidence. It does not discharge but reduces the prosecution's burden of leading evidence to prove its case. They are to be used to examine the veracity of the prosecution's case. This statement is to be read as a whole. One part cannot be read in isolation. (Para 34.7 & 8) 2023 LiveLaw (SC) 932

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

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

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

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

Code of Criminal Procedure, 1973; Section 313 - Settled principles summarized. (Para 15) 2023 LiveLaw (SC) 168

Code of Criminal Procedure, 1973; Section 313 - To enable an accused to explain the circumstances appearing in the evidence against him, all the incriminating circumstances appearing against him in the evidence must be put to him. But where there has been a failure in putting those circumstances to the accused, the same would not ipso facto vitiate the trial unless it is shown that its non-compliance has prejudiced the accused. Where there is a delay in raising the plea, or the plea is raised for the first time in the Apex Court, it could be assumed that no prejudice had been felt by the accused. (Para 44) 2023 LiveLaw (SC) 815

Code of Criminal Procedure, 1973; Section 313 - Trial courts cautioned against recording statements in a casual and cursory manner. What holds importance is not the mere quantity of questions posed to the accused but rather the content and manner in which they are framed. (Para 31) 2023 LiveLaw (SC) 629

Code of Criminal Procedure, 1973; Section 313 (5) - Once a written statement is filed by the accused under Section 313(5) of the Code of Criminal Procedure, 1973 and the Trial Court marks it as exhibit, such statement must be treated as part of the statement of the accused under Section 313(1) read with Section 313(4) Cr.P.C. (Para 17) 2023 LiveLaw (SC) 168

Section 317 - Provision for inquiries and trial being held in the absence of accused in certain cases

Code of Criminal Procedure, 1973; Section 317 (2) - Splitting of the Trial - When the High Court permitted splitting of the trial, two important aspects were not noted by the High Court. The first one was that the Magistrate was not satisfied that the police have made sufficient efforts to procure the presence of all the accused. The second factor which is more important is the order of further investigation. Therefore, this was not the stage at which the High Court could have permitted splitting of the case. (Para 5) 2023 LiveLaw (SC) 1016

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

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

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

Code of Criminal Procedure, 1973; Section 319 - Supreme Court lays down procedural guidelines to prevent abuse. 2023 LiveLaw (SC) 128

Code of Criminal Procedure, 1973; Section 319 - The contention that a summoned person must be given an opportunity of being heard before being added as an accused to face the trial is clearly not contemplated under Section 319 Cr.P.C - The principle of hearing a person who is summoned cannot be read into Section 319 Cr.P.C. - The lateral entry of a person summoned in exercise of power under Section 319 Cr.P.C. is only to face the trial along with other accused. (Para 32-34) 2023 LiveLaw (SC) 576

Code of Criminal Procedure, 1973; Section 319 - The merits of the evidence has to be appreciated only during the trial, by cross examination of the witnesses and scrutiny of the Court. This is not to be done at the stage of Section 319 - Scope and ambit discussed. (Para 4-5) 2023 LiveLaw (SC) 573

Code of Criminal Procedure, 1973; Section 319, 190 - The exercise of power under Section 319 Cr.P.C. is not at the initial stage where cognizance is taken of the offence and the summoning order is passed before committal of the matter to the Sessions Court. That power exercised under Section 190 of the Cr.P.C. is quite distinct from the power exercised by the Trial Court/Sessions Court under Section 319 Cr.P.C - Scope of Section 319 CrPC discussed. (Para 22-27) 2023 LiveLaw (SC) 576

Code of Criminal Procedure, 1973; Section 319, 227 - When power is exercised the under Section 319 Cr.P.C. to summon a person to be added as an accused in the trial to be tried along with other accused, such a person cannot seek discharge as the court would have exercised the power under Section 319 Cr.P.C. based on a satisfaction derived from the evidence that has emerged during the evidence recorded in the course of trial and such satisfaction is of a higher degree than the satisfaction which is derived by the court at the time of framing of charge. (Para 24) 2023 LiveLaw (SC) 576

Section 320 - Compounding of offences

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

Section 323 - Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed.

Code of Criminal Procedure, 1973; Section 323 - High Court directed the Magistrate to undertake the exercise of committal in pursuant to a decision to be taken as to whether a charge can be added under Section 307 IPC only after the conclusion of the entire evidence of prosecution witness - It is not mandatory for the Magistrate to wait for the completion of the entire evidence of the prosecution witness, which is inclusive of cross-examination - Section 323 Cr.P.C. gives a discretion to the Court to exercise its power at any stage of the proceeding before signing judgment - The power under Section 323 Cr.P.C. may be invoked by the Magistrate at any stage of the proceeding prior to signing of the Judgment - The said power may be invoked even after the deposition or the examination-in-chief of a witness. The key requirement for the invocation of the power under the Section 323 is that the learned Magistrate concerned must feel that the case is one which ought to be tried by the Court of Sessions. 2023 LiveLaw (SC) 742

Section 362 - Court not to alter judgment

Code of Criminal Procedure, 1973; Section 362 - Court not to alter judgment – Refusal of Bail - Section 362 which prohibits modification of a judgment or final order, will not be applicable in an order for refusal of bail. An order for refusal of bail however, inherently carries certain characteristics of an interlocutory order in that certain variation or alteration in the context in which a bail plea is dismissed confers on the detained accused right to file a fresh application for bail on certain changed circumstances. Thus, an order rejecting prayer for bail does not disempower the Court from considering such plea afresh if there is any alteration of the circumstances. Conditions of bail could also be varied if a case is made out for such variation based on that factor. Prohibition contemplated in Section 362 of the Code would not apply in such cases. (Para 5) 2023 LiveLaw (SC) 945

Section 366 - Sentence of death to be submitted by Court of Session for confirmation

Code of Criminal Procedure, 1973; Section 366 - 368 - In a reference for confirmation of the sentence of death, the High Court is under an obligation to proceed in accordance with the provisions of Sections 367 and 368 resply of the CrPC. Under these Sections the High Court must not only see whether the order passed by the Sessions Court is correct but it is under an obligation to examine the entire evidence for itself, apart from and independently of the Sessions Court's appraisal and assessment of that evidence - The Court must examine the appeal record for itself, arrive at a view whether a further enquiry or taking of additional evidence is desirable or not, and then come to its own conclusion on the entire material on record whether conviction of the condemned prisoner is justified and the sentence of death should be confirmed - In this case, the court found serious lapses on the part of the defence in not proving major contradictions in the form of material omissions surfacing from the oral evidence of the prosecution witnesses - remit the matter back to the High Court for deciding the death reference. (Para 2, 57-60) 2023 LiveLaw (SC) 744

Section 378 - Appeal in case of acquittal

Code of Criminal Procedure, 1973; Section 378 - Appeal against acquittal- Scope of interference - Unless such a finding is found to be perverse or illegal/impossible, it is not permissible for the appellate Court to interfere with the same. 2023 LiveLaw (SC) 171

Code of Criminal Procedure, 1973; Section 378 - Scope of interference in an appeal against acquittal is limited - Unless the High Court found that the appreciation of the evidence is perverse, it could not have interfered with the finding of acquittal recorded by the Trial Court. (Para 21) 2023 LiveLaw (SC) 46

Code of Criminal Procedure, 1973; Section 378(2) - the judgment of the Calcutta High Court, which proposed a mechanism for filing of appeals before the HC against acquittals in CBI cases, should not be treated as a mandate. 2023 LiveLaw (SC) 558

Code of Criminal Procedure, 1973; Section 378(3) - The Supreme Court upheld a judgment of the Uttarakhand High Court which dismissed an application filed by the CBI seeking leave to appeal against order passed by the trial court acquitting three policemen who were charged of murder while patrolling, on the ground that the circumstances found do not constitute a complete chain as to indicate that in all human probability it were the accused persons who committed the crime. (Para 32) 2023 LiveLaw (SC) 542

Code of Criminal Procedure, 1973; Section 378, 386 - An appellate court, in the case of an acquittal, must bear in mind that there is a double presumption in favour of the accused. When two views are possible, the one favouring the accused is to be leaned on. (Para 17-18) 2023 LiveLaw (SC) 751

Code of Criminal Procedure, 1973; Section 378, 386 - The judgment of acquittal can be reversed by the Appellate Court only when there is perversity and not by taking a different view on reappreciation of evidence. If the conclusion of the Trial Court is plausible one, merely because another view is possible on reappreciation of evidence, the Appellate Court should not disturb the findings of acquittal and substitute its own findings to convict the accused. (Para 24) 2023 LiveLaw (SC) 781

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

Section 385 - Procedure for hearing appeals not dismissed summarily

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

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

Code of Criminal Procedure, 1973; Section 385 and 386 - Criminal revision petition needs to be considered on merits even in the absence of a party or their counsel. (Para 6) 2023 LiveLaw (SC) 689

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

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

Code of Criminal Procedure, 1973; Section 389 - Negotiable Instruments Act, 1881; Section 148 - When Appellate Court considers the prayer under Section 389 Cr.P.C. of an accused who has been convicted for offence under Section 138 of the Negotiable Instruments Act, it can consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount - If the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded. When an accused applies under Section 389 of the Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception or not. (Para 7-10) 2023 LiveLaw (SC) 776

Code of Criminal Procedure, 1973; Section 389 - the Appellate Court should not reappreciate the evidence at the stage of Section 389 of the Cr.P.C. and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach. (Para 33) 2023 LiveLaw (SC) 389

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

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

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

Section 397 - Calling for records to exercise powers of revision

Code of Criminal Procedure, 1973; Section 397 - The power and jurisdiction of Higher Court under Section 397 Cr.P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. (Para 13) 2023 LiveLaw (SC) 874

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

Code of Criminal Procedure 1973; Section 406 - This Court has allowed transfers only in exceptional cases considering the fact that transfers may cast unnecessary aspersions on the State Judiciary and the prosecution agency. Thus, over the years, this Court has laid down certain guidelines and situations wherein such power can be justiciably invoked. 2023 LiveLaw (SC) 268

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

Code of Criminal Procedure, 1973; Section 406 - That most of the accused and witnesses are from A state is not a ground to transfer case from B state to A state. (Para 12) 2023 LiveLaw (SC) 284

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

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

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

Section 426 - Sentence on escaped convict when to take effect

Code of Criminal Procedure, 1973; Section 426(2)(b) - Insofar as a life convict is concerned, in law, no part of the sentence remains unexpired. The remission granted by the Government to a life convict, cannot be taken to mean that there is some portion of the life sentence that remains unexpired in the same sense as in the case of other convicts. A life sentence is a sentence for life. What remains unexpired of such a sentence is known only to God (if you believe) and to the Government, if there is a policy of remission. Therefore, Section 426(2)(b) cannot be taken to have included within its fold, the case of a life convict, since in the case of life convict no portion of the sentence remains unexpired, in the technical sense. 2023 LiveLaw (SC) 647

Code of Criminal Procedure, 1973; Sections 426 and 427 - If an escaped convict already serving life term is subsequently convicted, subsequent sentence will run concurrently with previous life sentence. 2023 LiveLaw (SC) 647

Section 432 – Power to suspend or remit sentences

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

Section 433 - Power to commute sentence.

Code of Criminal Procedure, 1973; Section 433 (2) - Grant of Remission - Presiding Judge should give adequate reasons while giving opinion under Section 432 (2) Cr.P.C. 2023 LiveLaw (SC) 33

Section 436A - Maximum period for which an undertrial prisoner can be detained

Code of Criminal Procedure, 1973; Section 436A and 439 - Prevention of Money Laundering Act, 2002; Section 45 - Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the NDPS Act, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years. (Para 28) 2023 LiveLaw (SC) 934

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

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

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

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

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

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

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

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

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

Code of Criminal Procedure, 1973; Section 438 - Anticipatory Bail - Self-Contradictory orders passed by the High Court - On the one hand, the application for anticipatory bail is rejected and, on the other hand, the interim protection is granted for a period of two months - Appeal allowed and interim protection direction set aside. 2023 LiveLaw (SC) 566

Code of Criminal Procedure, 1973; Section 438 - Anticipatory Bail - The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome. (Para 19) 2023 LiveLaw (SC) 514

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

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

Code of Criminal Procedure, 1973; Section 438 - Central Goods and Service Tax Act, 2017; Section 69 - Power to Arrest – Anticipatory Bail - If any person is summoned under Section 69 of the CGST Act, 2017 for the purpose of recording of his statement, the provisions of Section 438 Cr.P.C. cannot be invoked. No First Information Report gets registered before the power of arrest under Section 69(1) of the CGST Act, 2017 is invoked and in such circumstances, the person summoned cannot invoke Section 438 Cr.P.C. for anticipatory bail. The only way a person summoned can seek protection against the pre-trial arrest is to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India. (Para 16) 2023 LiveLaw (SC) 552

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

Code of Criminal Procedure, 1973; Section 438 - the High Court fell in grave error in proceeding on the basis of the undertaking of the accused and imposing payment of Rs.22,00,000/- (Rupees twenty-two lakh) as a condition precedent for grant of bail. (Para 29) 2023 LiveLaw (SC) 496

Code of Criminal Procedure, 1973; Section 438 - the process of criminal law cannot be pressed into service for settling a civil dispute. (Para 27) 2023 LiveLaw (SC) 496

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

Code of Criminal Procedure, 1973; Section 438 - Willingness of accused to deposit money as bail condition must be considered only in cases involving public money; not in private cases. (Para 26) 2023 LiveLaw (SC) 496

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

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

Code of Criminal Procedure, 1973; Section 439 – Bail - An order granting bail in a mechanical manner, without recording reasons, would suffer from the vice of nonapplication of mind, rendering it illegal. (Para 19) 2023 LiveLaw (SC) 560

Code of Criminal Procedure, 1973; Section 439 – Bail - The primary considerations which must be placed at balance while deciding the grant of bail are: (i) The seriousness of the offence; (ii) The likelihood of the accused fleeing from justice; (iii) The impact of the release of the accused on the prosecution witnesses; (iv) Likelihood of the accused tampering with evidence. (Para 18) 2023 LiveLaw (SC) 560

Code of Criminal Procedure, 1973; Section 439 – Bail - While considering an application for grant of bail, a prima-facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis à vis the offence/s alleged against an accused. (Para 22) 2023 LiveLaw (SC) 560

Code of Criminal Procedure, 1973; Section 439 - Bail was allowed by the High Court weighing the fact that the accused has filed a settlement arrived at with the victim's son that too in respect of an offence under Section 302 IPC. The State ought to have approached this Court against the order of bail granted by the High Court but surprisingly, no steps were taken. Accordingly, the impugned order is quashed and accused was directed to surrender forthwith before the trial Court. A copy of this order forwarded to the Secretary (Home), Government of Gujarat for his perusal and appropriate action. (Para 7 – 12) 2023 LiveLaw (SC) 728

Code of Criminal Procedure, 1973; Section 439 - The offence alleged in the instant case is heinous and would be a onslaught on the dignity of the womanhood and the age old principle of where women are respected Gods live there would recede to the background and the guilty not being punished by process of law or accused persons are allowed to move around freely in the society or in spite of there being prima facie material being present they are allowed to move around freely in the society before guilt is proved and are likely to indulge in either threatening the prosecution witnesses or inducing them in any manner to jettison the criminal justice system, then the superior court will have to necessarily step in to undo the damage occasioned due to erroneous orders being passed by courts below. (Para 17) 2023 LiveLaw (SC) 707

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

Section 464 - Effect of omission to frame, or absence of, or error in, charge.

Code of Criminal Procedure, 1973; Section 464, 465 - While deciding whether there is a failure of justice occasioned due to error, omission, or irregularity in the trial, the Court is required to consider the fact whether the objection could and should have been raised at an earlier stage in the proceedings. (Para 16) 2023 LiveLaw (SC) 708

Section 482 - Saving of inherent power of High Court.

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

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

Code of Criminal Procedure, 1973; Section 482 – Accused not filing petition to quash FIR / chargesheet has no relevance in deciding bail application. (Para 25 - 28) 2023 LiveLaw (SC) 554

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

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

Code of Criminal Procedure, 1973; Section 482 - At the stage of deciding an application under Section 482 Cr.P.C., it is not permissible for the High Court to go into the correctness or otherwise of the material placed by the prosecution in the chargesheet - The Court would exercise its power to quash the proceedings only if it finds that taking the case at its face value, no case is made out at all - The factors which the Court is required to take into consideration, while quashing the proceedings under Section 482 CrPC and while considering an application for discharge are totally different - Whether the testimony of the witnesses is trustworthy or not has to be found out from the examination-in-chief and the crossexamination of the witnesses when they stand in the box at the stage of such trial - Such an exercise, in our considered view, is not permissible while exercising the jurisdiction under Section 482 Cr.P.C. (Para 3-9) 2023 LiveLaw (SC) 642

Code of Criminal Procedure, 1973; Section 482 - Cheque complaint against partner of a firm - Powers under Section 482 of the Code can be exercised by the High Court in case when it comes across unimpeachable and incontrovertible evidence to indicate that the partner of the firm did not have any concern with the issuance of cheques. 2023 LiveLaw (SC) 695

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

Code of Criminal Procedure, 1973; Section 482 - Delay in the registration of the FIR, by itself, cannot be a ground for quashing of the FIR. However, delay with other attending circumstances emerging from the record of the case rendering the entire case put up by the prosecution inherently improbable, may at times become a good ground to quash the FIR and consequential proceedings. (Para 33) 2023 LiveLaw (SC) 624

Code of Criminal Procedure, 1973; Section 482 – High Court can act on Section 482 petition to quash FIR even if chargesheet has been filed during its pendency. (Para 11) 2023 LiveLaw (SC) 731

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

Code of Criminal Procedure, 1973; Section 482 - If the question as to whether the debt or liability being barred by limitation was an issue to be considered in such proceedings, the same is to be decided based on the evidence to be adduced by the parties since the question of limitation is a mixed question of law and fact. It is only in cases wherein an amount which is out and out non-recoverable, towards which a cheque is issued, dishonoured and for recovery of which a criminal action is initiated, the question of threshold jurisdiction will arise. In such cases, the Court exercising jurisdiction under Section 482 CrPC will be justified in interfering but not otherwise. 2023 LiveLaw (SC) 752

Code of Criminal Procedure, 1973; Section 482 - In a case where the offence of defamation is claimed by the accused to have not been committed based on any of the Exceptions and a prayer for quashing is made, law seems to be well settled that the High Courts can go no further and enlarge the scope of inquiry if the accused seeks to rely on materials which were not there before the Magistrate. This is based on the simple proposition that what the Magistrate could not do, the High Courts may not do. However, this does not undermine the High Courts' powers under section 482, Cr. PC and that its inherent power is always available to render real and substantial justice. The High Courts on recording due satisfaction are empowered to interfere if on a reading of the complaint, the substance of statements on oath of the complainant and the witness, if any, and documentary evidence as produced, no offence is made out and that proceedings, if allowed to continue, would amount to an abuse of the legal process. This too, would be impermissible, if the justice of a given case does not overwhelmingly so demand. (Para 46) 2023 LiveLaw (SC) 860

Code of Criminal Procedure, 1973; Section 482 - It is no part of the business of any of the courts to ascertain what the outcome of the trial could be, ~ conviction or acquittal of the accused. The small window that the law, through judicial precedents, provides is to look at the allegations in the FIR and the materials collected in course of investigation, without a rebuttal thereof by the accused, and to form an opinion upon consideration thereof that an offence is indeed not disclosed from it. Unless the prosecution is shown to be illegitimate so as to result in an abuse of the process of law, it would not be proper to scuttle it. (Para 17) 2023 LiveLaw (SC) 494

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

Code of Criminal Procedure, 1973; Section 482 - Quashing of FIR - the complainant had named the appellant and alleged complicity based on a misconception and therefore, at this stage, having realized the same, has indicated that he does not wish to prosecute the complaint as against the appellant. Therefore, the FIR as against the appellant, would not be appropriate and all further action unnecessary. 2023 LiveLaw (SC) 620

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

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

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

Code of Criminal Procedure, 1973; Section 482 - The protection against vexatious and unwanted prosecution and from being unnecessarily dragged through a trial by melting a criminal proceeding into oblivion, either through quashing a FIR/Complaint or by allowing an appeal against an order rejecting discharge or by any other legally permissible route, as the circumstances may be, in the deserving case, is a duty cast on the High Courts. (Para 23) 2023 LiveLaw (SC) 1019

Code of Criminal Procedure, 1973; Section 482 - Though it is clear that there can be no blanket rule that a second petition under Section 482 Cr.P.C. would not lie in any situation and it would depend upon the facts and circumstances of the individual case, it is not open to a person aggrieved to raise one plea after the other, by invoking the jurisdiction of the High Court under Section 482 Cr.P.C., though all such pleas were very much available even at the first instance. Permitting the filing of successive petitions under Section 482 Cr.P.C. ignoring this principle would enable an ingenious accused to effectively stall the proceedings against him to suit his own interest and convenience, by filing one petition after another under Section 482 Cr.P.C., irrespective of when the cause therefor arose. Such abuse of process cannot be permitted. (Para 11) 2023 LiveLaw (SC) 935

Code of Criminal Procedure, 1973; Section 482 - Trend of projecting a purely civil financial dispute as a criminal matter with a view to intimidate and in abuse of the criminal process - In “Priyanka Srivastava Vs. State of U.P.”, (2015) 6 SCC 287, this Court had noticed that taking recourse to criminal law by bypassing statutory remedies to bring the financial institutions on their knees, has the inherent potentiality to affect the marrows of economic health of the nation. Further, in “Vijay Kumar Ghai & Anr. Vs. State of W.B. & Ors.” (2022) 7 SCC 124, this Court quashed the criminal proceedings being abuse of law in a purely civil financial dispute and being a case of forum shopping. Despite these judgments, continuation of such a trend appears extremely disturbing. 2023 LiveLaw (SC) 500

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

Code of Criminal Procedure, 1973; Section 482 - When it comes to quashing of the FIR or criminal proceedings, the criminal antecedents of the accused cannot be the sole consideration to decline to quash the criminal proceedings. An accused has a legitimate right to say before the Court that howsoever bad his antecedents may be, still if the FIR fails to disclose commission of any offence or his case falls within one of the parameters as laid down by this Court in the case of Bhajan Lal, then the Court should not decline to quash the criminal case only on the ground that the accused is a history sheeter. Initiation of prosecution has adverse and harsh consequences for the persons named as accused - The right to not to be disturbed without sufficient grounds as one of the underlying mandates of Article 21 of the Constitution - The requirement and need to balance the law enforcement power and protection of citizens from injustice and harassment must be maintained. It goes without saying that the State owes a duty to ensure that no crime goes unpunished but at the same time it also owes a duty to ensure that none of its subjects are unnecessarily harassed. (Para 34) 2023 LiveLaw (SC) 624

Code of Criminal Procedure, 1973; Section 482 - Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the 2 initiation/registration of the case as well as the materials collected in the course of investigation. (Para 30) 2023 LiveLaw (SC) 624

Code of Criminal Procedure, 1973; Section 482 - Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. (Para 26) 2023 LiveLaw (SC) 618

Code of Criminal Procedure, 1973; Section 482 - Whenever an accused comes before the Court invoking either the inherent powers under Section 482 Cr.P.C. or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the Cr.P.C. or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged. 2023 LiveLaw (SC) 613

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

Code of Criminal Procedure, 1973; Section 482 - While exercising power under Section 482 Cr.P.C., the High Court was legally bound to see if allegations / accusations constitute any offence or not. (Para 7) 2023 LiveLaw (SC) 1072

Code of Criminal Procedure, 1973; Section 482, 397 - The principles to be borne in mind with regard to quashing of a charge / proceedings either in exercise of jurisdiction under Section 397 Cr.P.C. or Section 482 Cr. P.C. or together. (Para 17) 2023 LiveLaw (SC) 494