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CRIMINAL APPEAL NOS. 701-702 OF 2020; MARCH 27, 2023

ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA versus KAPIL WADHAWAN & ANR. ETC.

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.


Since there exists vacuum in the application and details of Section 167 CrPC,

we have opted for an interpretation which advances the cause of personal liberty. The

accused herein were remanded on 14.05.2020 and as such, the chargesheet ought

to have been filed on or before 12.07.2020 (i.e. the sixtieth day). But the same was

filed, only on 13.07.2020 which was the 61st day of their custody. Therefore, the right

to default bail accrued to the accused persons on 13.07.2020 at 12:00 AM, midnight,

onwards. On that very day, the accused filed their default bail applications at 8:53 AM. Circumvention of harassment during investigation guidelines from Madras High Court : Rajini Vs. The Superintendent of Police, In the present case in hand, the petitioner has complained of

harassment by the police based on a complaint and seek for this Court's

intervention by way of a direction. The learned Government Advocate

submitted that the Respondent police had issued notice under Section 41-

A as complaint against the Petitioner had been received by the

Respondent. When a complaint had been received by the Respondent

police and notice under Section 41-A had been issued by the Respondent

police the Petitioner herein is a law abiding citizen of this country and is

duty bound to respect the notice issued by the Respondent police and

appear before the police officer concerned. The term 'harassment' by

itself has a very wide meaning and hence, what could be harassment to

the petitioner may not be the same to the police officer.

9. In order to circumvent such situations, the following

guidelines are issued:

a)While summoning any person named in the complaint or any

witness to the incident complained of, the police officer shall summon

such person through a written summon under Section 160 Cr.P.C., in case

of witnesses and Section 41-A Cr.P.C., in case of complaints against any

person (accused) specifying a particular date and time for appearing

before him for such an enquiry/investigation.

b)The minutes of the enquiry shall be recorded in the general

diary/station diary/daily diary of the police station.

c)The police officer shall refrain himself or herself from harassing

persons called upon for enquiry/investigation.

d) The Petitioner shall co-operate with the pending investigation

with the Respondent police.

e) The Respondent is directed not to summon the Petitioner at odd

hours.

f)The guidelines stipulated for preliminary enquiry or registration

of FIR by the Hon'ble Supreme Court in Lalita Kumari Vs. Government

of Uttar Pradesh and others [2014 (2) SCC (1)] shall be strictly adhered

to.



Magistrate Can Also Summon Persons Not Named In Chargesheet/ FIR As An Accused: Allahabad High Court

Yuvraj Naag vs. State Of U.P. Thru. Prin. Secy. Home, Lko And Another [CRIMINAL REVISION No. - 471 of 2023]


At the outset, the Court referred to the Supreme Court’s ruling in the cases of Nahar Singh (supra), Dharam Pal vs. State of Haryana 2005 SCC Online SC 1781 and Kishun Singh v. State of Bihar (1993) 2 SCC 16 wherein the Top Court had opined that it is the duty of Magistrate while taking cognizance of an offence, to go to the root of the matter by identifying the offender and once the Court has done so, it is its duty to take action against such persons irrespective of the person being mentioned in any police report.


The Court further noted that irrespective of the conclusion drawn in the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section 2(i) of Section 173, the Court can apply its independent mind and summon an accused.


In view of this, the court was of the opinion that there was no illegality or irregularity in the impugned order warranting interference by the Court and hence, the instant criminal revision was dismissed.


In related news, the Allahabad High Court in April this year observed that a Magistrate taking cognizance of an offence on the basis of a police report in terms of Section 190 (1)(b) of CrPC, can issue a summons to a person even on the basis of the statement under Section 164 CrPC, even though such a person is not arraigned as an accused in the police report or in the FIR.



Case Title: Santhakumari & Ors. v State of Tamil Nadu & Anr.

The Bench placed reliance on the judgment in Manharbhai Muljibhai Kapadia & Anr v. Shaileshbhai Mohanbhai Patel & Ors., (2012) 10 SCC 517, and, wherein it has been held as under:


“…by virtue of Section 401(2) of the Code, the suspects get right of hearing before Revisional Court although such order was passed without their participation. The right given to “accused” or “the other person” under Section 401(2) of being heard before the Revisional Court to defend an order which operates in his favour should not be confused with the proceedings before a Magistrate under Sections 200, 202, 203 and 204. In the revision petition before the High Court or the Sessions Judge at the instance of complainant challenging the order of dismissal of complaint, one of the things that could happen is reversal of the order of the Magistrate and revival of the complaint. It is in this view of the matter that the accused or other person cannot be deprived of hearing on the face of express provision contained in Section 401(2) of the Code. The stage is not important whether it is pre­process stage or post process stage.”


Thereafter, in Bal Manohar Jalan v. Sunil Paswan, (2014) 9 SCC 640, the Supreme Court had held that an accused person cannot be deprived of hearing in view of the express provision contained in Section 401(2) of CrPC.


In view of the aforementioned precedents, the Bench concurred with the view that a prospective accused must be heard in proceedings under Section 401 of CrPC.


Accordingly, the Bench has set aside the order of High Court allowing the revision petition without hearing the prospective accused and has remitted the matter back to the High Court to be decided afresh.





Trial Court Cannot Direct Life Sentence Should Extend To Remainder Of Life Without Remission : Supreme Court


[Case Title: Narendra Singh @ Mukesh @ Bhura v. State of Rajasthan SLP (Crl) No. 7830 of 2021]

We, therefore, reiterate that the power derived from Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal only by the Supreme Court and not by any other court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convict's life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior court."



Magistrate empowered to discharge the accused in summons case by Delhi high court .


Delhi High Court

Arvind Kejriwal & Ors vs Amit Sibal & Anr on 16 January, 2014


5. ...In any case, the appropriate stage at which these aspects are required to be considered is the stage of framing of Notice under Section 251 of Cr.P.C. Such a view is taken as trial court is not expected to mechanically frame Notice under Section 251 of Cr.P.C. and has to apply its mind to find out as to whether a prima facie case is made out or not and in the event of finding that no case is made out for proceeding against a particular accused, trial court would be well within its right to drop the proceedings qua such an accused.


6. On this aspect, pertinent observations of Apex Court in Bhushan Kumar & Anr. Vs. State (NCT of Delhi) & Anr. MANU/SC/0297/2012 : AIR 2012 SC 1747 are as under:-


"17. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge-sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code."


7. Further, on this aspect, the dictum of the Apex Court in Krishan Kumar Variar v. Share Shoppe MANU/ SC/0330/2010 : (2010) 12 SCC is as under:-


"4. In our opinion, in such cases where the accused or any other person raises an objection that the trial court has no jurisdiction in the matter, the said person should file an application before the trial court making this averment and giving the relevant facts. Whether a court has jurisdiction to try/entertain a case will, at least in part, depend upon the facts of the case. Hence, instead of rushing to the higher court against the summoning order, the person concerned should approach the trial court with a suitable application for this purpose and the trial court should after hearing both the sides and recording evidence, if necessary, decide the question of jurisdiction before proceeding further with the case.


The summons cases are generally of two categories namely cases instituted upon complaints and those instituted otherwise than upon complaints which would include cases based on police reports. The warrants cases are also of the aforesaid two categories. The proceedings before the Magistrate commence with the issuance of process under Section 204 Cr.P.C. in respect of all the aforesaid categories. At the stage of issuance of process under Section 204 Cr.P.C., the Magistrate has to be satisfied that "there is sufficient ground for proceeding in the matter". There is a difference in the trial of warrants cases and summons cases by the Magistrate which is noted below:


(i) In warrants cases, whether instituted upon complaint or otherwise, the accused is entitled to seek discharge from the Magistrate under Section 239 Cr.P.C. if no prima facie case is made out against him. On the other hand, if the Magistrate is satisfied that there is ground for presuming that the accused has committed an offence, the charge is framed against the accused under Section 246 Cr.P.C. Section 239 Cr.P.C. is reproduced hereinbelow:


"Section 239. When accused shall be discharged.-If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."

(ii) In summons cases, no formal charge is framed as in warrants cases. However, the substance of accusation is put to the accused under Section 251 Cr.P.C. which is technically akin to the framing of a charge in warrants case. The accused is entitled to the hearing at the stage of framing of notice under Section 251 Cr.P.C. The Section pre-supposes that the learned Magistrate must consider whether such allegations are raised which amount to an offence. If no offence is made out, then there are no particulars of offence which have to be read over to the accused and therefore proceeding cannot proceed beyond Section 251 Cr.P.C. which is implied from a reading of Section 251 Cr.P.C. Section 251 Cr.P.C. is reproduced below:


"Section 251. Substance of accusation to be stated.- When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.

(iii) In summons cases instituted otherwise than upon complaints which would include cases based on police reports, the Magistrate has power under Section 258 Cr.P.C. to stop further proceedings. The provisions of Section 251 read with Section 258 Cr.P.C. clothe the learned Magistrate in a case instituted on the basis of a police report with the power to discontinue proceedings at the stage of Section 251 Cr.P.C., if there be no sufficient allegations or materials to justify continuance of proceedings for an offence. Section 258 Cr.P.C. is reproduced hereunder:


"Section 258. Power to stop proceedings in certain cases. - In any summons- case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge."

(iv) In summons cases instituted upon complaints, there is no provision in the Code of Criminal Procedure to discharge the accused at the stage of framing of notice under Section 251 Cr.P.C. even if no prima facie case is made out against him. The consequence of this is that even if the accused is able to satisfy the Magistrate that no prima facie case is made out against him, the Magistrate has to continue the trial against him.


7. If the Magistrate cannot discharge the accused at the stage of framing of notice, the whole proceedings at the stage of framing of notice under Section 251 Cr.P.C. shall be reduced to mere formality and the accused would be compelled to approach the High Court to challenge the notice which would lead to multiplicity of litigation. It is for this reason, the Supreme Court in Bhushan Kumar (supra) and Krishan Kumar Variar (supra) has observed that the accused should approach the Trial Court instead of rushing to the higher Court. The Supreme Court has not restricted the directions in the aforesaid two cases to be applicable only to the warrant cases and therefore, the same are applicable to all summons cases including those arising out of complaints. In Bhushan Kumar (supra), the Supreme Court has specifically referred to Section 251 Cr.P.C. which deals only with summons cases. Relying on the aforesaid judgments, this Court, in Raujeev Taneja (supra) and Urrshila Kerkar (supra), has directed the accused to urge his objections before the Trial Court at the stage of framing of notice under Section 251 Cr.P.C.


8. This Court is in complete agreement with the view taken by this Court in Raujeev Taneja (supra), Urrshila Kerkar (supra) and S.K.Bhalla (supra) that at the stage of framing of notice under Section 251 Cr.P.C., the learned Magistrate is not expected to mechanically frame notice under Section 251 Cr.P.C. and has to apply its mind to find out whether the prima facie case is made out or not. The learned Magistrate has to frame the notice under Section 251 Cr.P.C. only upon satisfaction that a prima facie case is made out. However, in the event of finding that no case is made out against the accused, the learned Magistrate would be well within his right to drop the proceedings against the accused. This Court also agrees with the view taken by Sunil Gaur, J. in Raujeev Taneja (supra) and Urrshila Kerkar (supra) that the judgment of the Supreme Court in Adalat Prasad (supra) would not stand in the way of the Trial Court to do so because the discharge of an accused at the stage of framing of notice under Section 251 Cr.P.C. does not amount to recall/review of the summoning order as defined in Section 362 Cr.P.C. The two stages in the criminal trial are different. The first is the stage of issuance of process under Section 204 Cr.P.C, when the Magistrate has to satisfy that there are sufficient grounds for proceeding in the matter. The second is the stage of framing of charge/notice when the Court has to be satisfied that a prima facie case is made out against the accused. However, since Section 258 Cr.P.C. does not empower the Magistrate to discharge the accused in summons cases instituted upon complaints, this Court considers it necessary to issue directions in this regard in exercise of inherent powers under Section 482 Cr.P.C. read with Section 483 Cr.P.C. and Article 227 of the Constitution.


9. The provisions contained in the Code of Criminal Procedure are not exhaustive. In administering justice as prescribed by Code of Criminal Procedure, there are necessarily two shortcomings: First; there are cases and circumstances, which are not covered by the „express provisions of the Code‟, wherein justice has to be done. The reason is that the Legislature can foresee only the most natural and ordinary events; and no rules can regulate for all time to come, so as to make express provision against all inconveniences, which are infinite in number, and so that their dispositions shall express all the cases that may possibly happen. Second; the prescribed rules of procedure may be abused, or so used as to give a mere formality, the significance of substantive effect and thus obstruct, instead of facilitating, the administration of justice as in the present case.


10. It cannot be said that, in the above circumstances, Courts have no power to do justice or redress a wrong merely because no express provision of the Code can be found to meet the requirements of a case. All Courts, whether civil or criminal, possess, in the absence of express provision in the Code for that purpose, as inherent in its very constitution, all such powers as are necessary to do the right and to undo a wrong in the course of the administration of justice. This is based on the principle, embodied in the maxim „quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest' - when the law gives a person anything, it gives him that, without which, it cannot exist. The High Court has, in addition thereto, and in view of its general jurisdiction over all the criminal Courts subordinate to it, inherent power to give effect to any order of any such Court under the Code, and to prevent the abuse of process of any such Court, or otherwise to secure the ends of justice.


However, at the stage of framing of notice under Section 251 Cr.P.C., the Court has to satisfy after considering the material on record and hearing the accused that the offence has been committed which can be legally tried. The prosecution may be barred by limitation or bad for sanction or otherwise not sustainable. No adverse order can be passed without giving the affected party, an opportunity of being heard. It would be incumbent upon the Magistrate to drop the proceedings, if he is satisfied that no offence is made out for which the accused could be lawfully tried. If there is no offence for which the accused could be tried, it is implied that the Magistrate has no jurisdiction to proceed with the trial. For framing of notice under Section 251 Cr.P.C., the principles of natural justice require an opportunity of being heard to be given to the affected parties. Even otherwise, the principle of audi alteram partem, mandates that no one shall be condemned unheard.


. If the Trial Court has to frame the notice under Section 251 Cr.P.C. where no prima facie case is made out against the petitioners, the hearing at the stage of notice under Section 251 Cr.P.C. would be a mere farce and would result in failure of justice. In warrant cases whether arising out of police report or complaint, the learned Magistrate is empowered to discharge the accused if no prima facie case is made out against him under Section 239 Cr.P.C. whereas in summons cases, such a power is given to the Magistrate only in cases other than complaint cases meaning thereby that the Magistrate has to frame the notice and proceed with the matter even if no prima facie case is made out against the accused. As such, the denial of the remedy of discharge to the accused in summons cases at the stage of notice under Section 251 Cr.P.C. is clearly discriminatory and therefore, this case is squarely covered by the principles laid down by the Supreme Court in Maneka Gandhi (supra)


18. The power of the Trial Court to discharge the accused at the stage of notice under Section 251 Cr.P.C. is based not only on sound logic but also on a fundamental principle of justice as a person against whom no offence is disclosed cannot be put to face the trial. Added advantage is that the High Court will have the benefit of the considered opinion of the Magistrate, and it can always exercise its inherent power if it feels that the Magistrate had gravely erred but to ask this Court to interfere at the very threshold of the prosecution does not appear appropriate because it practically amounts to shifting of the prosecution case from the competent court of the Magistrate to this Court.


20. In view of the authoritative pronouncements of the Supreme Court in Bhushan Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra) and of this Court in Raujeev Taneja (supra), Urrshila Kerkar (supra) and S.K.Bhalla (supra), the accused are entitled to hearing before the learned Metropolitan Magistrate at the stage of framing of notice under Section 251 Cr.P.C in all summons cases arising out of complaints and the Magistrate has to frame the notice under Section 251 Cr.P.C. only upon satisfaction that a prima facie case is made out against the accused. However, in the event of the learned Magistrate not finding a prima facie case against the accused, the Magistrate shall discharge/drop the proceedings against the accused. Since there is no express provision or prohibition in this regard in the Code of Criminal Procedure, these directions are being issued in exercise of power under Section 482 read with Section 483 Cr.P.C. and Article 227 of the Constitution to secure the ends of justice; to avoid needless multiplicity of procedures, unnecessary delay in trial/protraction of proceedings; to keep the path of justice clear of obstructions and to give effect to the principles laid down by the Supreme Court in Bhushan Kumar (supra), Krishna Kumar Variar (supra) and Maneka Gandhi (supra).


21. Applying the aforesaid principles to this case, the petitioners are permitted to urge the pleas raised in this petition before the learned Metropolitan Magistrate at the stage of framing of notice under Section 251 Cr.P.C. whereupon the learned Metropolitan Magistrate shall consider them and pass a speaking order. The learned Magistrate shall frame the notice under Section 251 Cr.P.C. only upon satisfaction that a prima facie case is made out against the petitioners. The learned Magistrate shall be empowered to discharge/drop the proceedings against the petitioners if no case is made out against them. Needless to say, if the learned Magistrate chooses to frame notice under Section 251 Cr.P.C., the petitioners would be at liberty to avail the remedies as available in law.


Harendra Rai v state of Bihar According to the general procedure, facts need

to be proved by adducing evidence in the

Court of law, and the evidence must be

produced in accordance with the procedure

mentioned in the Indian Evidence Act, 1872.

The doctrine of judicial notice, as provided

under Section 56, is an exception to this rule We are concerned with Section 56 of the

Evidence Act, which deals with the authority

of a Court to accept certain facts, which are

either of common knowledge or from sources

which guarantee the accuracy or are a matter

of authoritative official record or court record,

without the need to establish such fact. The

judicial notice of any fact is taken when the

facts cannot reasonably be doubted.

65. This Court, in its various pronouncements,

has taken support of Section 56 of the

Evidence Act to do substantial justice in

respective matters. Some of them are being

reproduced hereinafter to get a better picture

of how judicial notice is taken:

a) In the case of State of Kerala v. Unni3

, in

paragraph 27 it has been held as follows:

“27. Judicial notice can be taken of the

fact that each village would not have a

chemical laboratory where the process of

analysis of ethyl alcohol can be carried

out.” For example, if a sample is taken in a

village, by the time sample is sent for and is

analysed, the volume of ethyl alcohol may

increase. Although we are informed that some

chemical is mixed when a sample is taken, no

material has been placed in that behalf.

(Emphasis added)

b) In the case of Prabhakara v. Basavaraj K.4

,

it was observed in paragraph no. 21 as

follows:

“21. A relief can only be on the basis of the

pleadings alone.

Evidence is also to be based on such

pleadings. The only exception would be when

the parties know each other's case very well

and such a pleading is implicit in an issue.

Additionally, a Court can take judicial note

of a fact when it is so apparent on the face

of the record. (Emphasis added)

c) In the case of Ved Mitter Gill v. UT,

Chandigarh5

, in paragraph 26, it was held

as follows:

“26.………………………………………... The

links of the escaped undertrial prisoners with

the Babbar Khalsa International, a known and

dreaded terrorist organisation was also clearly

expressed in the impugned order, as one of

the reasons, for it being impracticable, to hold

an inquiry against the appellant/petitioners.

It is a matter of common knowledge, and it

would be proper to take judicial notice of

the fact, that a large number of terrorists

came to be acquitted during the period in

question, on account of the fact that

witnesses did not appear to depose against

them on account of fear, or alternatively,

the witnesses who appeared before the

courts concerned for recording their

deposition, turned hostile, for the same

reason.” (Emphasis added)

d) In the case of Joseph M Puthussery vs

T.S. Jhon and others6

, this Court was

dealing with an appeal filed under Section

116 A of the Representation of People Act,

1951, against the order of a single bench of

the High Court declaring the election of the

appellant as Member of Kerala Legislative

Assembly from No. 106, Kallooppara

Constituency as void on the ground that he

was guilty of the corrupt practice within the

meaning of sub-Section 4 of Section 123 of

the Act. While evaluating the findings

recorded by the High Court, this Court

considered the scope of Section 56 of the

Evidence Act in paragraph 65 and observed

as follows:

“65. The High Court has summarily described

"Crime" Magazine to be a yellow journal.

Whether "Crime" magazine is a yellow

journal is a matter of opinion and not of

fact. It is impossible to conclude that an

opinion of this sort is a judicially

noticeable fact for the purposes of

Section 56 or Section 57 of the Evidence Act,

1872. There is nothing in the impugned

judgment which indicates that any evidence

was led, much less considered as to whether

Crime" magazine is a yellow journal and

hence magazine could not have been relied

upon by the appellant in forming a belief that

the contents of the magazine were not

untrue.” (Emphasis added)

66. The law, in respect of taking judicial notice of

any fact, may be summarised in the following

manner:

(i). The doctrine of judicial notice, as provided

under Section 56, is an exception to general

rules of evidence applicable for proving any

fact by adducing evidence in the Court of

law.

(ii). According to Section 56 of the Evidence Act,

judicial notice of any such fact can be taken

by the Court, which is well-known to

everyone, which is in the common

knowledge of everyone, which is

authoritatively attested, which is so

apparent on the face of the record, etc


(iii). Except in the rarest of rare cases, judicial

notice of any fact is generally not taken in

criminal matters in the normal course of

proceeding, and the case is decided on the

basis of oral, material and documentary

evidence adduced by the parties to find out

the guilt or innocence.

Issue of conduct of accused in criminal case :

In a very interesting case of Anant

94

Chintaman Lagu v State of Bombay7

, this

Court, while holding the accused of that case

guilty of murder, has touched on the aspects

of relevancy of conduct of the accused

subsequent to the incident in question, and

its inference by the Court to decide the guilt

and innocence of the accused. Relevant

extracts from the aforesaid judgement are

quoted herein below:

“…A criminal trial, of course, is not an

enquiry into the conduct of an accused for

any purpose other than to determine

whether he is guilty of the offence charged.

In this connection, that piece of conduct can

be held to be incriminatory which has no

reasonable explanation except on the

hypothesis that he is guilty. Conduct which

destroys the presumption of innocence can

alone be considered as material…

***

What inference can be drawn from his

conduct after the death of Laxmibai is a

matter to be considered by us. And in this

connection, we can only say at this stage

that if some prior conduct is connected

intrinsically, with conduct after death, then

motive of the appellant would be very clear

indeed...

***

These arguments, however, are of no avail, in

view of the appellant’s entire conduct now

laid bare, which conduct has been proved to

our satisfaction to have begun not after the

death of Laxmibai but much, earlier. This

conduct is so knit together as to make a

network of circumstances pointing only to

his guilt…”

72. In the case with which we are dealing, there is

no iota of doubt that the accused-Respondent

No.2 was instrumental in making all possible

efforts to wipe out the evidence against him

and the Prosecution machinery as also the

Presiding Officer of the Trial Court, if we may

say so, was used as a tool of his highhandedness.

73. The obvious question pops up in the mind of

any prudent person, as to why he was

instrumental, when he was not guilty of the

offence to which he was being tried. The

obvious answer to this would reasonably come

to mind of any prudent person that his guilty

mind was fearful about the result. All these

aspects leave no room for doubt that the

subsequent conduct of Respondent No.2 is

one of the major circumstances pointing

towards his guilt for the incident that

occurred at 9AM on 25.3.1995.

74. We may quote a Latin Maxim which aptly

means that a person who receives advantage

must also bear the burden, “qui sentit

commodom, sentire debit et onus” (FIR was not marked as an exhibit in this case because of machinizations and influence of the accused and all witness turned hostile .) SC furtrher held since FIR is a public document and went onto hold : Now, what is to be seen is that any public document does not stand proven by the mere

fact of its production. It is proved in the usual

manner of proof when an objection to it is

taken. The Court usually accepts a fact as

proved when, after considering the document

and the evidence before it, concludes that

what is stated in the document is believable

based on what the document, on the face of it,

states along with what a witness to the

document states about the contents and how

the document was prepared/authored.

84. According to the common practice of Trial

Court and also according to the General Rules

(Criminal) as applicable in the case, all the

papers and documents filed and produced

during any inquiry and trial of a criminal case

are marked as ‘Paper No.’ and at the stage of

evidence, when any article, weapon, material

or document is admitted as evidence, it is

marked as an exhibit, be it in any manner

whatsoever either by use of alphabets or by

use of numbers (generally as Ex-Ka for

prosecution evidence and Ex-Kha as defence

evidence).

85. At the stage of evidence, when any

document/paper is formally produced for

being treated as a piece of evidence, the Court

looks at two basic aspects. Firstly, the

existence of the document on the Court’s

record and, secondly, the proof of its

execution or its contents being sufficiently

deposed to by a witness having requisite

knowledge thereof, whereafter, the document

in question is marked as exhibit. At the stage

of exhibiting any document as a piece of

evidence, the truth of what is stated in the

document is not considered. It is left open to

final evaluation at the trial after crossexamination, and the entire testimony of the

witness about the existence and contents of

the document is weighed in conjunction with

various other factors emerging during a trial.

At the final evaluation stage, the Trial Court

concludes whether the document speaks the

truth and decides what weight to give it for

final decision. In other words, its evidentiary

value is analysed by the Courts at the time of

final judgment.

In this view of the matter, the marking of a

piece of evidence as ‘exhibit’ at the stage of

evidence in a Trial proceeding is only for the

purpose of identification of evidence adduced

in the trial and for the convenience of the

Court and other stakeholders in order to get a

clear picture of what is being produced as

evidence in a Trial proceeding.

In the present case, considering the failure of

State machinery and failure of the Trial Court

to ensure a fair trial from the perspective of

the victim side, the aspect of non-marking of

the FIR and Bayan Tahriri as an exhibit, nonproduction of the formal witnesses, i.e., the

Constable Clerk and Investigating Officer to

prove the lodging of FIR/Bayan Tahriri and

the flimsy rejection of application filed by

Kishori Rai seeking his examination as a

witness along with the examination of

Nagendra Singh and Sanjeev Kumar Singh

(who had signed said written

statement/Bayan Tahriri as attesting persons)

as witnesses in the Trial proceeding do not

vitiate the genuineness of the FIR and Bayan

Tahriri, and we refuse to give any discount to

the accused persons for non-exhibition

thereof.

The above view finds support from the

judgement of this Court in the case of Ram

Bihari Yadav vs State of Bihar & Ors14

,

relevant extract whereof is quoted herein

below:

“Para 13. Before parting with this case, we

consider it appropriate to observe that though

the prosecution has to prove the case against

the accused in the manner stated by it and

that any act or omission on the part of the

prosecution giving rise to any reasonable

doubt would go in favour of the accused, yet

in a case like the present one where the record

shows that investigating officers created a

mess by bringing on record Exh. 5/4 and GD

Entry 517 and have exhibited remiss and/or

deliberately omitted to do what they ought to

have done to bail out the appellant who was a

member of the police force or for any

extraneous reason, the interest of justice

demands that such acts or omissions of the

officers of the prosecution should not be taken

in favour of the accused, for that would

amount to giving premium for the wrongs of

the prosecution designedly committed to

favour the appellant. In such cases, the story

of the prosecution will have to be examined de

hors such omissions and contaminated

conduct of the officials otherwise the mischief

which was deliberately done would be

perpetuated and justice would be denied to

the complainant party and this would

obviously shake the confidence of the people

not merely in the law enforcing agency but

also in the administration of justice.”

91. Now further issue crops up about the

treatment of the FIR/Bayan Tahriri as dying

declaration and in this respect various earlier

pronouncements of this Court have clarified

the position of law that the statement by an

injured person recorded as FIR can be treated

as a dying declaration and such a statement

is admissible under Section 32 of the Indian

Evidence Act. It was also held that the dying

declaration must not cover the whole incident

or narrate the case history. Corroboration is

not necessary for this situation.


SC also summarized as principles

of appreciation of ocular evidence in a

criminal case, which we can usefully

reproduce hereinafter:

“APPRECIATION OF ORAL EVIDENCE

Para 25. The appreciation of ocular evidence

is a hard task. There is no fixed or straightjacket formula for appreciation of the ocular

evidence. The judicially evolved principles for

appreciation of ocular evidence in a criminal

case can be enumerated as under:

I. “I. While appreciating the evidence of a

witness, the approach must be whether

the evidence of the witness read as a

whole appears to have a ring of truth.

Once that impression is formed, it is

undoubtedly necessary for the Court to

scrutinize the evidence more

particularly keeping in view the

deficiencies, drawbacks and infirmities

pointed out in the evidence as a whole

and evaluate them to find out whether it

is against the general tenor of the

evidence given by the witness and

whether the earlier evaluation of the

evidence is shaken as to render it

unworthy of belief.

II. If the Court before whom the witness

gives evidence had the opportunity to

form the opinion about the general

tenor of evidence given by the witness,

the appellate court which had not this

benefit will have to attach due weight to


the appreciation of evidence by the Trial

Court and unless there are reasons

weighty and formidable it would not be

proper to reject the evidence on the

ground of minor variations or infirmities

in the matter of trivial details.

III. When eye-witness is examined at length

it is quite possible for him to make some

discrepancies. But Courts should bear

in mind that it is only when

discrepancies in the evidence of a

witness are so incompatible with the

credibility of his version that the Court

is justified in jettisoning his evidence.

IV. Minor discrepancies on trivial matters

not touching the core of the case, hyper

technical approach by taking sentences

torn out of context here or there from

the evidence, attaching importance to

some technical error committed by the

investigating officer not going to the root

of the matter would not ordinarily

permit rejection of the evidence as a

whole.

V. Too serious a view to be adopted on

mere variations falling in the narration

of an incident (either as between the

evidence of two witnesses or as between

two statements of the same witness) is

an unrealistic approach for judicial

scrutiny.

VI. By and large a witness cannot be

expected to possess a photographic

memory and to recall the details of an

incident. It is not as if a video tape is

replayed on the mental screen.

VII. Ordinarily it so happens that a witness

is overtaken by events. The witness

could not have anticipated the

occurrence which so often has an

element of surprise. The mental

faculties therefore cannot be expected to

be attuned to absorb the details.

VIII. The powers of observation differ from

person to person. What one may notice,

another may not. An object or

movement might emboss its image on

one person's mind whereas it might go

unnoticed on the part of another.

IX. By and large people cannot accurately

recall a conversation and reproduce the

very words used by them or heard by

them. They can only recall the main

purport of the conversation. It is

unrealistic to expect a witness to be a

human tape recorder.

X. In regard to exact time of an incident, or

the time duration of an occurrence,

usually, people make their estimates by

guess work on the spur of the moment

at the time of interrogation. And one

cannot expect people to make very

precise or reliable estimates in such

matters. Again, it depends on the timesense of individuals which varies from

person to person.

XI. Ordinarily a witness cannot be expected

to recall accurately the sequence of

events which take place in rapid

succession or in a short time span. A

witness is liable to get confused, or

mixed up when interrogated later on.

XII. A witness, though wholly truthful, is

liable to be overawed by the court

atmosphere and the piercing cross

examination by counsel and out of

nervousness mix up facts, get confused

regarding sequence of events, or fill up

details from imagination on the spur of

the moment. The sub-conscious mind of

the witness sometimes so operates on

account of the fear of looking foolish or

being disbelieved though the witness is

giving a truthful and honest account of

the occurrence witnessed by him.

XIII. A former statement though seemingly

inconsistent with the evidence need not

necessarily be sufficient to amount to

contradiction. Unless the former

statement has the potency to discredit

the later statement, even if the later

statement is at variance with the former

to some extent it would not be helpful to

contradict that witness.”


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