Cr.P.C

Bail (Section 437 Cr.P.C )

• Mere initial grant of anticipatory bail for lessor offence did not entitle the respondent (accused) to insist for regular bail even if he was subsequently found to be involved in the case of murder. There is no question of cancellation of bail earlier granted.

                     AIR 2001SC 1444 = 2001(2)PLJR205SC

                     Prahlad Singh Bhati Vs NCT Delhi

• Bail should not be granted on sole ground of long incarceration and that there was no likelihood of trial being concluded.

                     2004 SCC(Crl)1977

                     Kalyan Chandra Sarkar Vs Rajesh Ranjan

Section 438 Cr.P.C

• An interim order restraining arrest, if passed while dealing with an application u/s 438 Cr.P.C will amount to interference in the investigation, which can not, at any rate be done u/s 438 of the Code.

                      AIR 2005 SUPREME COURT 1057 1057 1057 1057

                      Adri Dharan Das v. State of West Bengal

Cognizance

• Following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide myriad kinds of cases wherein such power should be exercised:

  (a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

  (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

  (c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

  (d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

  (e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

  (f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

  (g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. [305D-H; 306A-E]

  State Of Haryana And Ors vs Ch. Bhajan Lal And Ors

  1992 AIR 604 =  1990 SCR Supl. (3) 259 = 1992 SCC(Cri) 426

Common object & Common intention

• "Common object" is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful.

                       AIR 2005 S.C. 1096

                       Sunil Kumar v. State of Rajasthan

Compromise

                CRIMINAL APPEAL NO.2015 OF 2008
                (SPECIAL LEAVE PETITION (CRL) NO.4483 of 2008)
                Puttaswamy  Vs  State of Karnataka & Another
                Judgment Of Hon'ble SC dated 11 December, 2008

Inquest (Section 174 Cr P C)

• The Section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely whether it is suicidal, homicidal, accidental or by some machinery, etc.

                       AIR 2003 S.C. 1164 = 2003 SCC(Cri) 641

                       Amar Singh  v. Balwinder Singh

• That the object the proceedings under Section 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under S. 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report.

                                    AIR 1975 S.C. 1252 = 1975 SCC(Cri)427

                                    Podda Narayana v. State of A.P.

                                    2010(4) SCC(Cri) 11

                                    Aqeel Ahmad Vs State of UP

Investigation

Section 88 Cr.P.C.

Section 88 Cr.P.C is an enabling section which vests a discretion in the magistrate to exercise power under the said section asking the person to execute a bond for appearance only in bailable cases or in trival cases and it can not be resorted to in a case of serious offence.

                     2000(2)PLJR 686 Pat HC(DB)

Section 105A – 105L and 166A & 166B Cr.P.C.

These provisions are not ordinary law of land and are applicable only to offences which have international remifications. The are not applicable for the offences which are local in nature and committed within state.

                      2010(2)SCC(Crl)1070

                      State of MP Vs Balram Mihani & ors

Section 149

• The pivotal question is applicability of Section 149, IPC. Said provision has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of such an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage.

                               AIR 2005 S.C. 1096

                                    Sunil Kumar v. State of Rajasthan

• Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at the time of or before or after the occurrence. The word 'knew' used in the second limb of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated.

                          AIR 2005 S.C. 1096

                          Sunil Kumar v. State of Rajasthan

Section 154 Cr.P.C.

• Two FIR, relating to same incident, being counter version is permissible in law. But second FIR against same accused with different version is hit by section 162 Cr.P.C.

                   2005 SCC(Crl)211

Section 156(3) Cr.P.C.

• Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII, Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor thesame

      although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3), Cr.P.C. to order registration of a criminal offence and/or to direct the officer-in-charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary  for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3), Cr.P.C., we are of the opinion that they are implied in the above provision.

                    AIR 2008 SUPREME COURT 907

                    Sakiri Vasu v. State of U. P.

• The learned Magistrate directed carrying out of an investigation by the investigating officer and submit a report to it. If an investigation was to be carried out in terms of Section 156(3) of the Code, the same could not have been equated with an enquiry as the two expressions have differently been defined in Section 3(h) and 3(i) of the Code. In any event, the learned Magistrate did not have any jurisdiction to recall the said order.

    Dharmeshbhai Vasudevbhai vs State Of Gujarat And Ors, SC on 5 May, 2009

Section 167 Cr.P.C.

• Police Remand. Within the first 15 days of arrest, the magistrate may remand the accused either to judicial custody or police custody for given number of days. But once the period of 15 days expires, the magistrate can not pass orders for police remand.

                  2010(3)SCC(Crl)223

                  Devendra Kumar Vs State of Haryana and other

                  2001(1)PCCR 128 SC

• On expiry of the period specified in paragraph (a) of proviso to sub-section (2) of S. 167 if the accused files an application for bail and offers also to furnish the bail, on being directed, then it has to be held that the accused has availed of his indefeasible right.

                   AIR 2001 S.C. 1910 = 2001 AIR SCW 1500

                   Uday Mohanlal Acharya v. State of Maharashtra

Section 190 Cr.P.C

• Omission to write word 'cognizance taken' makes no difference if the magistrate fix the case for recording statement of complainant.

                   2005 SCC (Crl) 1697

Section 195 Cr.P.C

• Section 195(1)(b)(ii) Cr.P.C would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it had been produced or given in evidence in a proceeding in any court ie during the time when the document is in custodia legis.

                    2005(4)SCC(cri)1101 Para 33

                    Iqbal Singh Marwah Vs Meenakshi Marwah

• The bar contained in section 195(1)(b)(ii)Cr.P.C is not applicable to a case where forgery of the document was committed before the document was produced in a court.

                    1998(1)East.Cr.C.894SC

                    Sachidanand Singh and anor Vs State of Bihar

Section 197 Cr.P.C

• The relevant time, as held in S.A. Venkataraman Vs. State (AIR 1958 SC 107), is the date on which the cognizance is taken. If on that date, the appellant is not a public servant, there will be no question of any sanction. If he continues to be a public servant but in a different capacity or holding a different office than the one which is alleged to have been abused, still there will be no question of sanction.

Abhay Singh Chautala vs C.B.I.

2011(3) SCC(Cri) 1 = 2011(7) SCC 141

• Assaulting student using unfair means by SDO, who was incharge to conduct fair examination. Sanction u/s 197 Cr.P.C is necessary.

                    2001(1)PLJR 15 Patna HC

• Sanction order issued in the name of Governor is a public document.

                    2006(1)SCC(Crl)41

Section 202 Cr.P.C

• In enquiry u/s 202 Cr.P.C, the accused has no right to take part in proceeding nor has the magistrate any jurisdiction to permit him to do so. It would not be open to magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued, nor can he examine any witnesses at the instance of such person...This does not mean that he is precluded from being present when an enquiry is held by a magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on.

                  AIR 1963SC1430 para 7

                  Chandradeo Singh Vs Prakash Chandra Bose

                  2004 SCC(Cri)1077 para 9

• Examining all the witnesses cited in the complaint petition (in a case exclusively triable by court of session) is not a condition precedent for taking cognizance and issue of process against the persons named in the complaint.

                   2010(3)SCC(Crl)452

                   Sheojee Singh Vs Nagendra Tiwari & others

Section 205 Cr.P.C

• While dealing with an application in terms of section 205 Cr.P.C., the court has to consider whether any useful purpose would be served by requiring the personal attendance of the accused or whether progress of trial is likely to be hampered on account of his absence.

                   2005 SCC(Crl)1020

• Section 205 Cr.P.C.- Principles, case law discussed with illustrative instances.

                       2009(3) PLJR 673

Section 227 Cr.P.C.

• The 'ground' in the context (of section 227Cr.P.C) is not a ground for conviction, but a ground for but putting the accused on trial.... The court therefore need not undertake an elaborate inquiry in shifting and weighing the materials. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidenciary material on record, if generally accepted, would reasonably connect the accused with the crime.

                1989(1)SCC715

                2006(2)SCC(Cri)209

Section 227-228 Cr.P.C.

• Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction.

                     Strong suspicion against the accused, if the  matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at                     the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is                       not open to the Court to say that there is no sufficient ground for proceeding against the accused.ccused.ccused.

                               If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination                     or rebutted by the defence evidence, if any, cannot show that the accused comitted the offence, then there will be no sufficient ground for proceeding with the trial.

                     We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the                     conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an                     order under S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S. 228 and not under S. 227.

                 AIR 1977 SUPREME COURT 2018

                 State of Bihar v. Ramesh Singh

Section 228 Cr.P.C.

• The employment of word 'may' at one place and 'shall' at another place in same sub section (1)(a) of section 228 Cr.P.C unmistakably indicates that when an offence is not triable exclusively by sessions court, it is not mandatory that he should order transfer of case to CJM after framing of charge.

                  2001(1)PCCR 244 SC

                  sudhir and others Vs State of MP

Section 233(3) Cr.P.C.

• The power to summon any witness or recall and re-examine any person already examined is the discretionary power of the court, in case such evidence appears to it to be essential for a just decision of the case... The provision of sub-section 3 of section 233 can not be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged, to be juxtaposed as a defence witness.

When such frivolous and vexatious petitions are filed, a judge is not powerless. He should have used his discretionary power and should have refused relief on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.

         2006(3)SCC(Crl)337

         2010(2) SCC(Crl)1318: C.Magesh & Ors Vs State of Karnataka

Section 258 Cr.P.C.

• Accused not arrested. NBW issued against him not executed and it was reported that he has vacated his address and his where about is not known. Then the proceeding dropped u/s 258 Cr.P.C.......Magistrate can revive proceeding if his address is subsequently detected.

                       2009(2)PLJR190SC

Section 293 Cr.P.C.

• A junior scientific officer (ballistic) of CFSL is also a Govt. Scientific expert u/s 293 Cr.P.C

                       2005(1)PLJR 79 SC Para 6

Section 311 Cr.P.C.

• The section(old section 540) is in two parts. The first part gives a discretionary power but the later part is mandatory. The use of the word 'may' in the first part and of the word 'shall' in the second part firmly establishes this difference. Under the first part which is permissive, the court act in one of the three ways (a) Summon any person as witness (b) examine any person present in court although not summoned and (c) recall or re-examine any witness already examined.

The second part is obligatory and compels the court to act in these three ways or any one of them, if the just decision of the case demands it.

As the section stands, there is no limitation on the power of the court arising from the stage to which the trial may have reached provided the court is bona-fide of the opinion that for just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of accused only. The action may equally benefit the prosecution.

AIR 1968 SC 178

Jamatraj Kewalji Govani v. State of Maharashtr

• Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case can not be dubbed as “filling in a lacuna in the prosecution case” unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice.

              2006(3)SCC(Crl)300

                     2009(4) PLJR 176 ; 2007(1) PLJR 216

Section 319 Cr.P.C.

• For invocking section 319 Cr.P.C, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence, that other person could as well be tried along with the already arraigned accused.

But even then, what is conferred on the court is only a discretion as could be discerned from the word “the court may proceed against such person.” The discretionary power so conferred should be exercised only to achieve criminal justice....It must be remembered that there is no compelling duty on the court to proceed against other person.

Unless the court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned, we would say that the court should refrain from adopting such a recourse of action.

               2000 S.C.Cr.R. 445

               Michael Machado and other Vs CBT & Other

• Fresh examination in chief and not there presentation for the purpose of the cross examination of the newly added accused is the mandate of section 319(4)Cr.P.C

The mandate of the law of fresh trial is mandatory whereas mandate that newly added accused could be tried to-gather with the accused is directory.

'Could be' can not, under these circumstances be held to be 'must be'

                2002 Cr.L.J. 2806 SC

                Shashikant Singh Vs Tarkeshwar Singh

• Person arrayed as an accused in a complaint case, if not summoned by the magistrate to face trial at the stage of taking cognizance after conducting an enquiry u/s 202 Cr.P.C, go out of reach of section 319 Cr.P.C. as they do not fall within term “not being the accused”

                 2009(3) PLJR 382

                 2004(2) PLJR 225

                 AIR 1990 SC 2158

• A person who has been dropped by the police during investigation is a “person not being an accused” u/s 319 Cr.P.C. He may be summoned if evidence against him comes during trial.

                  2009(3) PLJR 399

                  AIR 1983 SC 67

       2000(3)SCC 262 Michael Machadeo and another Vs CBI and another

Section 320 Cr.P.C

Offence u/s 324 IPC committed before amendment in 320 Cr.P.C. The amendment will be prospective and the said offence u/s 324 IPC is compoundable.

                               2010(3)SCC(Cri)22Cri)22

                               Hira bhai Jhaver bhai Vs State of Gujrat

Section 321 Cr.P.C.

Section 321 Cr.P.C contemplates consent by the court in a supervisory and not an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made , after independent consideration by the public prosecutor and in furtherance of public interest.

                               2001 SCC(Cri) 59ri) 59

                               Sheonandan Paswan Vs State of Bihar

Section 357 Cr.P.C

Compensation u/s 357 may be awarded to victim even without imposing fine.

Before awarding compensation u/s 357 Cr.P.C, opportunity of being heard should be given to accused.

                               2004 SCC (Cri) 1085) 1085

Sentence of imprisonment can be granted for default in payment of compensation awarded u/s 357(3) Cr.P.C

                               2010(3)SCC(Cri)127

Section 464 Cr.P.C.

• In view of S. 464, Cr. P.C., it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself.

                    AIR 2004 SUPREME COURT 1990

                    Dalbir Singh v. State of U.P.

Section 468 Cr.P.C.

• Date relevant for computation is the date when the complaint is filed or criminal proceeding are initiated and not the date when the court takes cognizance or issue process.

                    2007(3)SCC(Crl)388