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Redressal of the problems faced by prosecution

Difference between dismissal and rejection of complaint

Rajan vs State Of Kerala on 10 September, 2021 (kerela High court)

Dismissal of a complaint under Section 203 Cr.P.C can only be at the post cognizance stage. But there is a power in every Magistrate to reject the complaint even at the pre-cognizance stage if the complaint on the face of it does not make out the offence alleged in the complaint. In such a case, the law does not oblige the Magistrate to proceed to Section 200 Cr.P.C or the subsequent sections. In such a case, the Magistrate undoubtedly has the power to reject the complaint at the threshold. Although complaints are being dismissed by the Magistrates at the pre-cognizance stage, such dismissal is made without noticing the real distinction between a dismissal of the complaint under Section 203 Cr.P.C at the post cognizance stage and a rejection of the complaint under the pre-cognizance stage. Such dismissal at the pre-cognizance stage can only be treated as rejection of the complaint.

Stay not to be for more than 6 months , extendable only by a speaking order for a further period of 6 months and so on. Order framing of charge is not a purely interlocutory order but an immediate order

Asian Resurfacing Of Road Agency ... vs Central Bureau Of Investigation on 28 March, 2018

in all pending

cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.

Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution.

However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re- appreciate the matter. Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period.

Though no mandatory time limit may be fixed, the decision may not exceed two-three months normally. If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order, as already indicated.

Mandate of speedy justice applies to the PC Act cases as well as other cases where at trial stage proceedings are stayed by the higher court i.e. the High Court or a court below the High Court, as the case may be. In all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended bya speaking order on above parameters.

Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts. The trial courts may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced.

Whether order of framing charge is an interlocutory order? Answer it is an immediate class of order which is neither final nor interlocutory.

At this juncture it is important to consider the 3-Judge bench decision in Madhu Limaye (supra). A 3-Judge bench of this Court decided that a Section 482 petition under the Code of Criminal Procedure would be maintainable against a Sessions Judge order framing a charge against the appellant under Section 500 of the Penal Code, despite the prohibition contained in Section 397(2) of the Code of Criminal Procedure. This was held on two grounds. First, that even if Section 397(1) was out of the way because of the prohibition contained in Section 397(2), the inherent power of the Court under Section 482 of the Code of Criminal Procedure would be available. This was held after referring to Amar Nath v. State of Haryana, (1977) 4 SCC 137, which was a 2-Judge Bench decision, which decided that the inherent power contained in Section 482 would not be available to defeat the bar contained in Section 397(2).

“On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 alsoThe second ground on which this case was decided was that an order framing a charge was not a purely interlocutory order so as to attract the bar of Section 392(2), but would be an “intermediate” class of order, between a final and a purely interlocutory order, on the application of a test laid down by English decisions and followed by our Courts, namely, that if the order in question is reversed, would the action then go on or be terminated. Applying this test, it was held that in an order rejecting the framing of a charge, the action would not go on and would be terminated and for this reason also would not be covered by Section 397(2).

, “shall be deemed to limit or affect the inherent powers of the High Court”, But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party.”

The second ground on which this case was decided was that an order framing a charge was not a purely interlocutory order so as to attract the bar of Section 392(2), but would be an “intermediate” class of order, between a final and a purely interlocutory order, on the application of a test laid down by English decisions and followed by our Courts, namely, that if the order in question is reversed, would the action then go on or be terminated. Applying this test, it was held that in an order rejecting the framing of a charge, the action would not go on and would be terminated and for this reason also would not be covered by Section 397(2).

According to us, despite what is stated in paragraphs 25, 29 and 32 supra, the ratio of the judgment is to be found in paragraph 38, which is an exposition of the law correctly setting out what has been held earlier in Madhu Limaye (supra). A judgment has to be read as a whole, and if there are conflicting parts, they have to be reconciled harmoniously in order to yield a result that will accord with an earlier decision of the same bench strength. Indeed, paragraph 30 of the judgment sets out a portion of paragraph 10 of Madhu Limaye (supra), showing that the Court was fully aware that Madhu Limaye (supra) did not approve Amar Nath (supra) without a very important caveat – and the caveat was that nothing in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. We, therefore, read paragraph 38 as the correct ratio of the said judgment not only in terms of the applicability of Section 482 of the Code of Criminal Procedure, but also in terms of how it is to be applied.

Ingredients of Section 420 , 409 and 477A IPC :

N.Raghavender vs State Of Andhra Pradesh Rep. By Cbi on 13 December, 2021 (SC 3 judges bench) (CBI was criticized in this case in last para for poor investigation)

Before we advert to the relevant evidence on record, we deem it appropriate to brace ourselves with the relevant statutory ingredients necessary to bring home the guilt of an accused when charged under Sections 409, 420 and 477A IPC.

Ingredients necessary to prove a charge under Section 409 IPC:

41. Section 409 IPC pertains to criminal breach of trust by a public servant or a banker, in respect of the property entrusted to him. The onus is on the prosecution to prove that the accused, a public servant or a banker was entrusted with the property which he is duly bound to account for and that he has committed criminal breach of trust. (See: Sadupati Nageswara Rao v. State of Andhra Pradesh).

42. The entrustment of public property and dishonest misappropriation or use thereof in the manner illustrated under Section 405 are a sine qua non for making an offence punishable under Section 409 IPC. The expression ‘criminal breach of trust’ is defined under Section 405 IPC which provides, inter alia, that whoever being in any manner entrusted with property or with any dominion over a property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property contrary to law, or in violation of any law prescribing the mode in which such trust is to be discharged, or contravenes any legal contract, express or implied, etc. 9 (2012) 8 SCC 547 Page | 28 shall be held to have committed criminal breach of trust. Hence, to attract Section 405 IPC, the following ingredients must be satisfied:

(i) Entrusting any person with property or with any dominion over property;

(ii) That person has dishonestly mis-appropriated or converted that property to his own use;

(iii) Or that person dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law or a legal contract.

43. It ought to be noted that the crucial word used in Section 405 IPC is ‘dishonestly’ and therefore, it pre-supposes the existence of mens rea. In other words, mere retention of property entrusted to a person without any misappropriation cannot fall within the ambit of criminal breach of trust. Unless there is some actual use by the accused in violation of law or contract, coupled with dishonest intention, there is no criminal breach of trust. The second significant expression is ‘mis-appropriates’ which means improperly setting apart for ones use and to the exclusion of the owner.

44. No sooner are the two fundamental ingredients of ‘criminal breach of trust’ within the meaning of Section 405 IPC proved, and if such criminal breach is caused by a public servant or a banker, merchant or agent, the said offence of criminal breach of trust is punishable under Page | 29 Section 409 IPC, for which it is essential to prove that:

(i) The accused must be a public servant or a banker, merchant or agent;

(ii) He/She must have been entrusted, in such capacity, with property; and

(iii) He/She must have committed breach of trust in respect of such property.

45. Accordingly, unless it is proved that the accused, a public servant or a banker etc. was ‘entrusted’ with the property which he is duty bound to account for and that such a person has committed criminal breach of trust, Section 409 IPC may not be attracted. ‘Entrustment of property’ is a wide and generic expression. While the initial onus lies on the prosecution to show that the property in question was ‘entrusted’ to the accused, it is not necessary to prove further, the actual mode of entrustment of the property or misappropriation thereof. Where the ‘entrustment’ is admitted by the accused or has been established by the prosecution, the burden then shifts on the accused to prove that the obligation vis-à-vis the entrusted property was carried out in a legally and contractually acceptable manner.

Ingredients necessary to prove a charge under Section 420 IPC:

46. Section 420 IPC, provides that whoever cheats and thereby dishonestly induces a person deceived to deliver any property to any person, or to make, alter or destroy, the whole or any part of valuable security, or anything, which is signed or sealed, and which is capable of being converted into a valuable security, shall be liable to be punished for a term which may extend to seven years and shall also be liable to fine.

47. It is paramount that in order to attract the provisions of Section 420 IPC, the prosecution has to not only prove that the accused has cheated someone but also that by doing so, he has dishonestly induced the person who is cheated to deliver property. There are, thus, three components of this offence, i.e., (i) deception of any person, (ii) fraudulently or dishonestly inducing that person to deliver any property to any person, and (iii) mens rea of the accused at the time of making the inducement. It goes without saying that for the offence of cheating, fraudulent and dishonest intention must exist from the inception when the promise or representation was made.

48. It is equally well-settled that the phrase ‘dishonestly’ emphasizes a deliberate intention to cause wrongful gain or wrongful loss, and when this is coupled with cheating and delivery of property, the offence becomes punishable under Section 420 IPC. Contrarily, the mere breach of contract cannot give rise to criminal prosecution under Section 420 unless fraudulent or dishonest intention is shown right at the beginning of the transaction. It is equally important that for the Page | 31 purpose of holding a person guilty under Section 420, the evidence adduced must establish beyond reasonable doubt, mens rea on his part. Unless the complaint showed that the accused had dishonest or fraudulent intention ‘at the time the complainant parted with the monies’, it would not amount to an offence under Section 420 IPC and it may only amount to breach of contract.

Ingredients necessary to prove a charge under Section 477-A IPC:

49. The last provision of IPC with which we are concerned in this appeal, is Section 477A, which defines and punishes the offence of ‘falsification of accounts’. According to the provision, whoever, being a clerk, officer or servant, or employed or acting in that capacity, wilfully and with intent to defraud, destroys, alters, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in possession of his employer, or has been received by him for or on behalf of his employer, or wilfully and with intent to defraud, or if he abets to do so, shall be liable to be punished with imprisonment which may extend to seven years. This Section through its marginal note indicates the legislative intention that it only applies where there is falsification of accounts, namely, book keeping or written accounts.

50. In an accusation under Section 477A IPC, the prosecution must, therefore, prove—(a) that the accused destroyed, altered, mutilated or Page | 32 falsified the books, electronic records, papers, writing, valuable security or account in question; (b) the accused did so in his capacity as a clerk, officer or servant of the employer; (c) the books, papers, etc. belong to or are in possession of his employer or had been received by him for or on behalf of his employer; (d) the accused did it wilfully and with intent to defraud.

Whether right of the accused to produce any document, would accrue to him only after the accused enters the defence and after recording of the evidence by the complainant/prosecution? Proper stage is at the closure of prosecution evidence after proceedings of Section 313 .

Gauhati High Court

Guwahati Sub-Divisional Market ... vs Suresh Sikaria on 25 June, 2013

11. Apparently, in terms of the provision of Section 294 of CrPC, if any document is necessary or desirable for the defence of the accused, the question of invoking the provision of Section 294 CrPC, would not arise at any stage unless the stage is set for the accused to take his defence. The section begins with the sentence where any document is filed before any Court by the prosecution or the accused, the particulars of every such documents shall be included in the list and the prosecution on the accused, as the case may be shall be, or their pleader shall be called upon to admit or deny the genuineness of each such documents.

12. Though there is no indication of the stage at which the provisions of Section 294 can be resorted to, but by adopting the principle laid discussed by the Apex Court in Debendra N ath P adhi (Supra ), it will have to be contrived that inherent limitations as to the stage or point of time of its exercise, commensurate with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused.

Therefore, before the accused enters into his defence, the complainant has to adduce evidence to establish the charge, then only question of submitting documents in defence on behalf of the accused, would arise. I would hasten to add here that the accused cannot be denied the right to introduce any documents in his defence during cross-examination of the prosecution witness.

14. In a criminal trial, the burden is on the prosecution to prove the accusations against the accused beyond reasonable doubt. Both prosecution and the accused would follow the procedure prescribed under the code of Criminal Procedure 1973 during trial. Accordingly, an accused after framing of a charge or explaining of the offence alleged has to wait for the next stage to follow. Skipping the steps by jumping the procedure provided under the law, however, would not be legally permissible. After the charge is framed or the offence alleged is explained to the accused in a criminal trial, the prosecution is called upon to establish the charge by adducing its evidence. At this stage, the defence will have every right to cross examine the prosecution witnesses in support of its defence stand. It is needless to emphasize and point out the scope of cross-examination of a witness on behalf of the accused facing the charges. On the conclusion of the recording of the evidence of the prosecution witnesses, the trial Court shall as per provision of Section 313 Code of Criminal Procedure 1973, examine the accused and record his statement of defence by putting all such incriminating materials arising against the accused. At this stage of the trial, if the accused has any defence to take, he may do so by stating his defence stand to the trial Court. Though, Section 294 CrPC do not specify the stage of the trial at which the provision can be resorted to by filing such documents on behalf of the accused for admission by the prosecution but such a stage would be apparent only when the incriminating materials are established by the prosecution evidence against the accused. However, there is no bar in showing and confronting any documents in defence of the accused, to the prosecution witnesses, during cross-examination. More so, allowing the defence to introduce its documents in defence for admission by the prosecution under Section 294 of CrPC, at any stage of the proceeding, would also unnecessarily entail delay in disposal of the lis.

15. In view of the above discussion, this Court is of the view that the accused cannot be permitted to file documents as per provision of Section 294 CrPC in his defence, at any stage of a proceeding, calling upon the prosecution to admit such documents before adducing the prosecution evidence and without taking his own defence stand. An application under Section 294 CrPC can be submitted on behalf of the accused on the conclusion of the recording of the prosecution evidence and after recording of the statement of the accused in terms of the provision of Section 313 CrPC. However, it must be made clear that the accused, may, if so advised, confront the prosecution witnesses with the documents so submitted by him during trial at the appropriate time.

Nevertheless, the accused after giving his own reply to the incriminating materials appearing against him, in the case by giving his own defence stand, will be at liberty to file application under Section 294 CrPC, with a prayer for a direction by the Court to call upon the prosecution to deny or admit the genuineness of the documents in his defence.

16. In view of the above, the impugned order dated 9.5.2012 passed by the learned trial Court is set aside and the matter is remitted to the trial Court with a direction to consider application under Section 294 of CrPC, filed by the respondent/opposite party, only after recording his statement under Section 313 CrPC. However, the respondent/opposite party shall not be debarred from using those documents indicated in his application under Section 294 CrPC, during cross-examination of the complainant's witnesses.

WHETHER PROSECUTION CAN BE ALLOWED TO FILE DOCUMENTS EVEN AFTER CHARGES ARE FRAMED? Answer is yes , with a requirement that a copy of such document is to be sent to the accused person , well in advance. This case also held that sketch map is not a public document and succinctly laid down the law after comparison of Apex court cases with regard to exhibtion of documents. Its a must read for the prosecutors.

State Of Gujarat vs Ashokkumar Lavjiram Joshi on 6 April, 2018

Ordinarily, the documents like the sketch or map of the scene of offence etc. are not a part of the charge-sheet. Such documents can be supplied to the accused even at a later stage, i.e., during the course of the trial. It is a matter of common knowledge that the documents like FSL reports etc., at times, are not part of the charge-sheet because ordinarily such documents are received at a late stage.

In such circumstances, I am not in agreement with the view of the court below that the provisions of section 207 of the Cr.P.C have not been complied with. It is always open for the prosecution to produce such a piece of document in the course of the trial. However, the only obligation is that a copy of the same should be provided to the accused.

[1] Section 173(5) of the Cr.P.C. is not mandatory in the sense that as there is no specific prohibition, it cannot be held that the additional document cannot be produced even in the course of the trial while the evidence is being recorded of the prosecution witnesses.

[2] If the prosecution, for any good reason, has thought fit not to provide certain documents to the accused at the stage of framing of the charge or there is some omission on its end in this regard, then such document can always be relied upon in the course of the trial and can be produced subsequently.

[3] In contradistinction to the provisions of Section 173 of the Code, where the legislature has used the expression documents on which the prosecution relies upon are not used under Section 207 of the Code. In such circumstances, the provisions of Section 207 of the Code will have to be given a liberal and relevant meaning so as to achieve its object.

[4] Section 173(7) of Cr.P.C. gives a discretion to the police officer to provide copies of all or any of the documents (including statements of witnesses) to the accused, if he finds it convenient.

[5] However, under Section 207 of Cr.P.C., it is mandatory for the court to provide copies of the investigation papers.

[6] Though the legal provision laid down as above, in actual practice, it is the police officer who provides copies of the papers of the investigation to accused persons after filing of the charge-sheet.

[7] As per Section 173(5) of Cr.P.C., the police officer is required to send to the court only those documents on which the prosecution proposes to rely and only those R/SCR.A/2349/2018 JUDGMENT statements of witnesses whom the prosecution proposes to examine. Moreover, under Section 173(6) of Cr.P.C., the police officer can request the court to exclude certain statements or their parts from the copies to be given to the accused person by the court, for the reasons mentioned in that section.

[8] Section 207 of Cr.P.C. describes copies of what documents or statements have to be given to the accused persons. Basically, these include the charge- sheet, the F.I.R., statements of witnesses, confessions and other documents of investigation on which the prosecution proposes to rely. While giving the documents to the accused, the court may not give copies of those statements for which the police officer has made a request under above-mentioned Section 173(6); however, the court may decide to give copies of such statements also if it considers necessary.

[9] Section 207 of Cr.P.C. further provides that if a particular document is very voluminous, the court may allow only inspection of the document instead of giving copy thereof to the accused person.

[10] One of the established facets of a just, fair and transparent investigation is the right of an accused to ask for all such documents that he may be entitled to under the scheme contemplated by the Code of Criminal Procedure.

[11] The right of the accused to receive the documents/ statements submitted before the Court is absolute and it must be adhered to by the prosecution and the Court must ensure supply of the documents/statements to the accused in accordance with law. The accused has a statutory right of confronting the witnesses with the statements recorded under Sections 161 and 164 of the Code. The accused has statutory right of confronting the expert witnesses too with their opinions.

[12] The words all documents or relevant extracts thereof, on which the prosecution proposes to rely will cover not only the opinion, but also the ground or the reasons for such an opinion given by the State expert i.e. Handwriting Expert, Ballistic Expert, Serologist Report, R/SCR.A/2349/2018 JUDGMENT etc. The expert has to be examined and he would have to state before the Court his grounds for such an opinion. Those grounds should be supplied to the accused if they are sent by him to the Investigating Officer, and that would be in the nature of a statement obtained from him, as if it were under Section 162 of the Cr.P.C.

[13] The right of the accused with regard to the disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial . On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the court. But certain rights of the accused flow both from the codified law as well as from the equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the court under Section 91 of the Code to summon the documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely.

[14] The duty of the Sessions Court to supply copies of the charge-sheet and all the relevant documents relied upon by the prosecution under Sections 207 and 208 Cr.P.C. is not an empty formality and has to be complied with strictly so that the accused is not prejudiced in his defence even at the stage of framing of charge. The fact that many of the accused persons were not provided with copies of the charge-sheet and the other relevant documents, as indicated in Sections 207 and 208, Cr.P.C., seriously affects the right of an accused to a free and fair trial.

[15] The principal of Natural Justice are an integral part of a fair trial. Article 21 of the Constitution of India and the Universal Declaration, mentioned above, both guarantee a fair trial to the accused. Even if the Code does not contain any provision for providing "all" the evidence collected by the investigating agency, such a provision has to be read into the Code. For, the principle of Natural Justice - audi alteram partem - would have to be read into the Code. It is trite to state that an opportunity of hearing means effective and substantial hearing. Truncated evidence, half hidden evidence given to the accused or placed before the Court, do not amount to effective hearing. Thus, under the principle of audi alteram partem the accused would have the right to access the evidence which is in his favour, but which the prosecution is unwilling to produce in the Court and whose disclosure does not harm the public interest.

[16] The investigating agency and the prosecution both represent the State. Every action of the State is legally required to be fair, just and reasonable". In case, the investigating agency and the prosecution withhold any evidence in favour of the accused from the accused, they are not being fair, just and reasonable with the accused. Therefore, their action would be in violation of Art. 14 of the Constitution of India. Article 21 of the Constitution of India also requires that the procedure established by law should be fair and reasonable. A procedure which permits the withholding of evidence which is in favour of the accused from the Court and from the accused, cannot be termed as "fair and reasonable". Thus, such a procedure would be in violation of Art. 21 of the Constitution of India. Therefore, Section 172(3) would have to be interpreted in such a way as to make it commensurative with the Constitutional spirit.

[17] If the prosecution wants to rely upon the grounds of the opinion given by an expert in respect of any test as a piece of evidence against an accused, that has to be supplied to the accused under section 173(5) of the Cr.P.C. "

Exhibition of Documents in criminal cases :

There is some apparent confusion in the judgment of supreme court cases mentioned below , so confusion is being sorted out and law is being laid out more properly to avoid any sort of confusion.

R.V.E.Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P.Temple and another, AIR 2003 SC 4548.. (It must be stated here that the said decision is rendered in a Special Leave Petition arising out of a civil suit. However, the said decision will be relevant in so far as proof or admissibility of documents in evidence is concerned. Law of evidence as regards proof and admissibility of documents is the same which is applicable to both civil and criminal trials.) Apex Court in the case of Bipin Shantilal Panchal vs. State of Gujarat & Anr., 2001 Cr.L.J 1254.

Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.

The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal.

When an objection is raised, in the course of recording evidence in a trial, to a document's admissibility, the court can make a note of the objection and exhibit the objected document tentatively.

* If the objection relates to any piece of oral evidence, the court can similarly record the objected part of the evidence with a note of it· * The note must stipulate that the objection shall be decided at the last stage/final judgment. If it's sustained, the court can exclude such evidence from consideration. No illegality in adopting such a course.

The procedure suggested has twin advantages. First, the

trial court's time is saved at the evidence stage. And, it can continue with the examination of the witnesses obviating the need for their waiting for long hours.

* Secondly, when the same objection is re-argued in Appeal/Revision against the trial court's judgment, the superior court can decide the correctness of the trial court's view with ease. For, the objected document/evidence is on record.

* The Supreme Court makes the above points as a procedure for trial courts to follow whenever the situation arises. However, If the objection is to stamp duty deficiency of a document, the court has to decide it before proceeding further.

Objection to the admissibility of evidence should ordinarily be made, when it's tendered, not subsequently. A document inadmissible in evidence, though brought on record, must be excluded from consideration.

* Objection to a document's admissibility may be classified into two classes. One, the document itself is inadmissible in evidence. Two, the mode of proof is irregular.

* Just because a document has been exhibited, objection to its admissibility is not excluded; and it can be raised even in Appeal/Revision.

* When the objection pertains to the mode of proof, it

should be raised before the evidence is tendered. Once the document is exhibited, objection to its mode of proof can't be raised at a subsequent stage. It's a rule of fair play.

* The omission to make such objection is fatal because by his failure the party entitled to object allows the opposite party to presume that he's not serious about the mode of proof.

* A prompt objection enables the court to apply its mind and pronounce its decision on admissibility then and there.

* If the objection to mode of proof is raised immediately, the opposite party may mark the document through correct mode with the court's permission. This practice is fair to both parties.

Bipin Shantilal Panchal (supra) articulates marking the documents tentatively and deciding their admissibility at the final stage; but Venkatachala (supra) instructs to decide the objection then and there. Although the problem is procedural, it is of extreme importance; for, the trial judge has to manage this mid-trial crisis effectively, if at all, he is to bring the trial process to an end as quickly as possible.

. Bipin Panchal (supra) is a three- Judge Bench decision while Venkatachala (supra) is a two- Judge Bench ruling. Besides, the former is anterior in point of time to the later.

The learned Judges in Bipin's case highlight advantages of deciding objections to admissibility at a later stage. In fact, the procedure suggested by their Lordships ensures against the delay in completing the trial, scuttling the scope for appeals on Interlocutory orders when the trial progresses.

Section 136 of the Indian Evidence Act, 1872 empowers the judge to question relevancy of evidence. U/s 165 the Judge may ask any question at any time about any fact relevant or irrelevant, which is meant to discover or to obtain proper proof of relevant facts. These provisions don't prescribe that objections to admissibility should be decided immediately.

It is true that Bipin's case was about a delayed trial under the Narcotic Drugs Psychotropic Subsistence (NDPS) Act, 1985. That's in the context of a criminal case. Can it be applied to trials under the civil law? Answer to this question is available in para (28) of Venkatachala's case (supra) itself, although it couldn't take note of Bipin's case. I supply below a summary therefrom:

Whether a civil case or criminal case, the anvil for testing

the terms "proved", "disproved", and "not proved" as defined in section 3 of the Evidence Act is one and the same.

* Assessing the result of the evidence derived by applying the rule makes the difference. That's the probative effect of the evidence in civil and criminal cases and are not always the same.

* To be specific, the pre-ponderance of probability is the proof norm in civil cases while proof beyond reasonable doubt the standard in criminal cases. Except for this, no difference in the matter of exhibiting the documents.

New Bail guidelines and important aspects:

Satender Kumar Antil vs Central Bureau Of Investigation on 11 July, 2022

Taking note of the continuous supply of cases seeking bail after filing of the final report on a wrong interpretation of Section 170 of the Code of Criminal Procedure (hereinafter referred to as “the Code” for short), an endeavour was made by this Court to categorize the types of offenses to be used as guidelines for the future.

The guidelines are as under:

Categories/Types of Offences A) Offences punishable with imprisonment of 7 years or less not falling in category B & D.

B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.

C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc. D) Economic offences not covered by Special Acts.


1) Not arrested during investigation.

2) Cooperated throughout in the investigation including appearing before Investigating Officer whenever called.

(No need to forward such an accused along with the chargesheet (Siddharth Vs. State of UP, 2021 SCC online SC 615) CATEGORY A After filing of chargesheet/complaint taking of cognizance

a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.

b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.

c) NBW on failure to failure to appear despite issuance of Bailable Warrant.

d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.

e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.

CATEGORY B/D On appearance of the accused in Court pursuant to process issued bail application to be decided on merits.

CATEGORY C Same as Category B & D with the additional condition of compliance of the provisions of Bail under NDPS S.37, 45 PMLA, 212(6) Companies Act 43 d(5) of UAPA, POSCO etc.” Needless to say that the category A deals with both police cases and complaint cases.

The trial Courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications. The caveat which has been put by learned ASG is that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit, something we agree with.

The suggestions of learned ASG which we have adopted have categorized a separate set of offences as “economic Offences” not covered by the special Acts. In this behalf, suffice to say on the submission of Mr. Luthra that this Court in Sanjay Chandra vs. CBI, (2012) 1 SCC 40 has observed in para 39 that in determining whether to grant bail both aspects have to be taken into account:

a) seriousness of the charge and

b) severity of punishment.

Thus, it is not as if economic offences are completely taken out of the aforesaid guidelines but do form a different nature of offences and thus the seriousness of the charge has to be taken into account but simultaneously, the severity of the punishment imposed by the statute would also be a factor.

A bail is nothing but a surety inclusive of a personal bond from the accused.

It means the release of an accused person either by the orders of the Court or by the police or by the Investigating Agency. (An impetus has been casted by supreme court to follow arnesh kumar v. state of bihar guidelines wherever it is applicable) (Inder mohan goswami v. state of uttaranchal was also referred and approved for guidance of the trial courts)

(Court in Pankaj Jain v. Union of India was also referred which is an authority on exercise of discretion under sectoin 88 crpc.)

No requirement of arrest of accused at the time of filing of chargesheet , this practice is deprecated by the Apex Court.

.The scope and ambit of Section 170 has already been dealt with by this Court in Siddharth v. State of U.P., (2021) 1 SCC 676. This is a power which is to be exercised by the court after the completion of the investigation by the agency concerned. Therefore, this is a procedural compliance from the point of view of the court alone, and thus the investigating agency has got a limited role to play. In a case where the prosecution does not require custody of the accused, there is no need for an arrest when a case is sent to the magistrate under Section 170 of the Code. There is not even a need for filing a bail application, as the accused is merely forwarded to the court for the framing of charges and issuance of process for trial. If the court is of the view that there is no need for any remand, then the court can fall back upon Section 88 of the Code and complete the formalities required to secure the presence of the accused for the commencement of the trial. Of course, there may be a situation where a remand may be required, it is only in such cases that the accused will have to be heard. Therefore, in such a situation, an opportunity will have to be given to the accused persons, if the court is of the prima facie view that the remand would be required. We make it clear that we have not said anything on the cases in which the accused persons are already in custody, for which, the bail application has to be decided on its own merits.

Suffice it to state that for due compliance of Section 170 of the Code, there is no need for filing of a bail application. This Court in Siddharth v. State of U.P., (2021) 1 SCC 676, has held that:

“There are judicial precedents available on the interpretation of the aforesaid provision albeit of the Delhi High Court.

5. In High Court of Delhi v. CBI [High Court of Delhi v. CBI, 2004 SCC OnLine Del 53 : (2004) 72 DRJ 629], the Delhi High Court dealt with an argument similar to the contention of the respondent that Section 170 CrPC prevents the trial court from taking a charge-sheet on record unless the accused is taken into custody. The relevant extracts are as under : (SCC OnLine Del paras 15-16 & 19-20) “15. Word “custody” appearing in this section does not contemplate either police or judicial custody. It merely connotes the presentation of accused by the investigating officer before the Court at the time of filing of the charge-sheet whereafter the role of the Court starts. Had it not been so the investigating officer would not have been vested with powers to release a person on bail in a bailable offence after finding that there was sufficient evidence to put the accused on trial and it would have been obligatory upon him to produce such an accused in custody before the Magistrate for being released on bail by the Court.

16. In case the police/investigating officer thinks it unnecessary to present the accused in custody for the reason that the accused would neither abscond nor would disobey the summons as he has been cooperating in investigation and investigation can be completed without arresting him, the IO is not obliged to produce such an accused in custody. (it is not the law that IO has to arrest the accused in every cognizable and non bailable offence , rather powers of arrest should be used rather sparingly.)

Therefore, it should be impressed upon all the courts that they should accept the charge-sheet whenever it is produced by the police with any endorsement to be made on the charge-sheet by the staff or the Magistrate pertaining to any omission or requirement in the charge-sheet. But when the police submits the charge-sheet, it is the duty of the court to accept it especially in view of the provisions of Section 468 of the Code which creates a limitation of taking cognizance of offence. Likewise, police authorities also should impress on all police officers that if charge-sheet is not accepted for any such reason, then attention of the Sessions Judge should be drawn to these facts and get suitable orders so that such difficulties would not arise henceforth.” In this connection, we would only say that Section 436, 437, 438 and 439 of the Code are to be read in consonance. Reasonableness of the bond and surety is something which the court has to keep in mind whenever the same is insisted upon, and therefore while exercising the power under Section 88 of the Code also the said factum has to be kept in mind. This Court in Hussainara Khatoon & Ors v Home Secretary, State of Bihar, 1980 (1) SCC 81, has held that:


63.We have already dealt with the relevant provisions which would take care of categories A and B. At the cost of repetition, we wish to state that, in category A, one would expect a better exercise of discretion on the part of the court in favour of the accused. Coming to category B, these cases will have to be dealt with on a case-to-case basis again keeping in view the general principle of law and the provisions, as discussed by us.

Now we shall come to category (C). We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigor imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigor as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigor, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code.

Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail.

Supreme Court Legal Aid Committee v. Union of India (1994) 6 SCC 731 guidelines were reiterated.

.We may clarify on one aspect which is on the interpretation of Section 170 of the Code. Our discussion made for the other offences would apply to these cases also. To clarify this position, we may hold that if an accused is already under incarceration, then the same would continue, and therefore, it is needless to say that the provision of the Special Act would get applied thereafter. It is only in a case where the accused is either not arrested consciously by the prosecution or arrested and enlarged on bail, there is no need for further arrest at the instance of the court. Similarly, we would also add that the existence of a pari materia or a similar provision like Section 167(2) of the Code available under the Special Act would have the same effect entitling the accused for a default bail. Even here the court will have to consider the satisfaction under Section 440 of the Code.


66.What is left for us now to discuss are the economic offences. The question for consideration is whether it should be treated as a class of its own or otherwise. This issue has already been dealt with by this Court in the case of P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, after taking note of the earlier decisions governing the field. The gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence. After all, an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another. Therefore, it is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis

Law which will govern category D is P chdambaram case (supra) , Sanjay Chandra v. CBI (2012) 1 SCC 40

Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427


73.In conclusion, we would like to issue certain directions. These directions are meant for the investigating agencies and also for the courts. Accordingly, we deem it appropriate to issue the following directions, which may be subject to State amendments.:

a) The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.

b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.

c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail.

d) All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.

e) There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.

f) There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth (supra).

g) The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.

h) The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions.

After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.

i) While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.

j) An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh (supra), followed by appropriate orders.

k) Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.

l) All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within a period of four months.

74.The Registry is directed to send copy of this judgment to the Government of India and all the State Governments/Union Territories. Summoning order should not be made lightly , relevant for the purpose of section 406 , 420 , 471 . Important when giving opinion whether the charge is made out or not or is the proceeding is of civil nature:

Deepak Gaba vs State Of Uttar Pradesh on 2 January, 2023

Apex Court held “the court should be watchful of the difference between civil and criminal wrongs, though there can be situations where the allegations may constitute both civil and criminal wrongs. The court must cautiously examine the facts to ascertain whether they only constitute a civil wrong, as the ingredients of criminal wrong are missing. A conscious application of the said aspects is required by the Magistrate, as a summoning order has grave consequences of setting criminal proceedings in motion. Even though at the stage of issuing process to the accused the Magistrate is not required to record detailed reasons, there should be adequate evidence on record to set the criminal proceedings into motion. The requirement of Section 204 of the Code is that the Magistrate should carefully scrutinize the evidence brought on record. He/she may even put questions to complainant and his/her witnesses when examined under Section 200 of the Code to elicit answers to find out the truth about the allegations. Only upon being satisfied that there is sufficient ground for summoning the accused to stand the trial, summons should be issued.17 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.

22. While summoning an accused who resides outside the jurisdiction of court, in terms of the insertion made to Section 202 of the Code by Act No. 25 of 2005, 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.18 In the present case, the said exercise has not been undertaken. Magistrate need not record reasons for framing a charge :

Bhawna Bai vs Ghanshyam on 3 December, 2019

(3 judges SC Bench)

In the present case, upon hearing the parties and considering the allegations in the charge sheet, the learned Second Additional Sessions Judge was of the opinion that there were sufficient grounds for presuming that the accused has committed the offence punishable under Section 302 IPC read with Section 34 IPC. The order dated 12.12.2018 framing the charges is not a detailed order. For framing the charges under Section 228 Crl.P.C., the judge is not required to record detailed reasons. As pointed out earlier, at the stage of framing the charge, the court is not required to hold an elaborate enquiry; only prima facie case is to be seen. As held in Kanti Bhadra Shah and another v. State of West Bengal (2000) 1 SCC 722, while exercising power under Section 228 Crl.P.C., the judge is not required record his reasons for framing the charges against the accused. Upon hearing the parties and based upon the allegations and taking note of the allegations in the charge sheet, the learned Second Additional Sessions Judge was satisfied that there is sufficient ground for proceeding against the accused and framed the charges against the accused- respondent Nos.1 and 2. While so, the High Court was not right in interfering with the order of the trial court framing the charges against the accused-respondent Nos.1 and 2 under Section 302 IPC read with Section 34 IPC and the High Court, in our view, erred in quashing the charges framed against the accused. The impugned order cannot therefore be sustained and is liable to be set aside.

Duty of IO to be present in the court and bring witnesses:

In Shailendra Kumar v. State of Bihar [(2002)1 SCC 655] it was observed as under: (SCC pp. 657-58, para 9) "9. In our view, in a murder trial it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded by the court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that the accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Additional Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the Sessions Judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on the part of any witness to remain present, it is the duty of the court to take appropriate action including issuance of bailable/ non-bailable warrants as the case may be. It should be well understood that prosecution cannot be frustrated by such methods and victims of the crime cannot be left in a lurch."

(Emphasis supplied) Thus:-

(a) It is a duty of the trial court to inform the Investigating Officer, before it starts taking evidence;

(b) It is a duty of Investigating Officer to remain present before the trial court;

(c) It is a duty of the Investigating Officer to bring prosecution witnesses, to the court;

(d) It is a duty of Sessions Judge to secure presence of witnesses and by summons if they are not remaining present, bailable and then non-bailable warrant can be issued;

(e) Disposal of appeal does not mean, disposal for statistical purposes, but, effective and real disposal to achieve the object of any trial;

(f) Even the trial court can pass an oder to stop the payment of salary or pension of Investigating Officer or Doctor or other Government Officers, who are avoiding to give evidence in court, after summons are issued for their presence.

It is high time for the Judges of the trial court, to learn the art of securing presence of crucial prosecution witnesses.

No order of acquittal shall be passed by the trial court for want of evidence of Investigating Officer or Doctor or other Government Officer, if these witnesses are alive and getting salary or pension. The Court has all the power to stop the payment of salary or pension to them, if they are avoiding the court.

In view of the aforesaid decision, it was the duty of the trial court to arrive at a just decision. The criminal court is an effective instrument for dispensing the justice and the Presiding Judge must cease to be a silent spectator or a mere evidence recording machine in the trial. It was the duty of the trial court to find out the truth and administer justice and it was a duty of the Investigating Officer to remain present in the trial court and it is the duty of the Investigating Officer to keep the witnesses present before the trial court. There is a failure in performance of the duty by the Investigating Officer as well as by the Public Prosecutor as also by the learned trial court in bring the evidence on record, though it is available i.e. the depositions of the aforesaid three doctors and the Investigating Officer ought to have been recorded by the learned trial court.

Relying on Above Jharkhand High Court in

Paresh Mandal And Ors vs The State Of Jharkhand And Ors on 10 April, 2013 Made the judgement part of its order and mandated the trial courts to follow the guidelines laid down by SC strictly. The trial court should secure the presence of witnesses, by issuance of summons, then by bailable warrant and then by issuing non-bailable warrant. Resort can also be had to section 87 of Crpc for securing presence of witness . Additional evidence can also be taken in appellate court vide section 391 of Crpc.

Whether its important to forward the accused along with the chargesheet reading 170 with section 173 (2) Siddharth vs State of UP is an authority on this and below judgment is clarificatory.

In Aman Preet Singh Vs. C.B.I. through Director : 2021 SCC OnLine SC 941, after referring the judgement of Delhi High Court in Court on its own Motion vs. Central Bureau of Investigation (2004) 72 DRJ 629 , the Hon'ble Supreme Court had held as under:

The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge sheet forthwith and proceed in accordance with the procedure laid down under Section 173, Cr.P.C. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.

11. Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

Vijay Rajmohan vs State Represented By The ... on 11 October, 2022 (issues :While the first issue pertains to whether the order of sanction is illegal due to non-application of mind by the DoPT for acting as per dictation of CVC, the second issue pertains to whether the criminal proceedings could be quashed for the delay of about two years in the issuance of the sanction order. )

the legal regime obtained by virtue of the five legislations on the subject of corruption, operates as integrated scheme. The five legislations being the Cr.P.C, DSPE Act, PC Act, CVC Act, and Lokpal Act, must be read together to enable the authorities to sub-serve the common purpose and objectives underlying these legislations. The Central Vigilance Commission, constituted under the CVC Act is specifically entrusted with the duty and function of providing expert advice on the subject. It may be necessary for the appointing authority to call for and seek the opinion of the CVC before it takes any decision on the request for sanction for prosecution. The statutory scheme under which the appointing authority could call for, seek and consider the advice of the CVC can neither be termed as acting under dictation nor a factor which could be referred to as an irrelevant consideration. The opinion of the CVC is only advisory. It is nevertheless a valuable input in the decision-making process of the appointing authority. The final decision of the appointing authority must be of its own by application of independent mind. The issue is, therefore, answered by holding that there is no illegality in the action of the appointing authority, the DoPT, if it calls for, refers, and considers the opinion of the Central Vigilance Commission before it takes its final decision on the request for sanction for prosecuting a public servant.

Grant of sanction being an exercise of executive power, it is subject to the standard principles of judicial review such as application of independent mind; only by the competent authority, without bias, after consideration of relevant material and by eschewing irrelevant considerations. As the power to grant sanction for prosecution has legal consequences, it must naturally be exercised within a reasonable period.

In the first place, non-compliance with a mandatory period cannot and should not automatically lead to the quashing of criminal proceedings because the prosecution of a public servant for corruption has an element of public interest having a direct bearing on the rule of law. This is also a non-sequitur.

Accountability has three essential constituent dimensions.

(i) responsibility, (ii) answerability and (iii) enforceability.

In conclusion, we hold that upon expiry of the three months and the additional one-month period, the aggrieved party, be it the complainant, accused or victim, would be entitled to approach the concerned writ court. They are entitled to seek appropriate remedies, including directions for action on the request for sanction and for the corrective measure on accountability that the sanctioning authority bears. This is especially crucial if the non- grant of sanction is withheld without reason, resulting in the stifling of a genuine case of corruption. Simultaneously, the CVC shall enquire into the matter in the exercise of its powers under Section 8(1)(e) and (f) and take such corrective action as it is empowered under the CVC Act.

38. The second issue is answered by holding that the period of three months, extended by one more month for legal consultation, is mandatory. The consequence of non-compliance with this mandatory requirement shall not be quashing of the criminal proceeding for that very reason. The competent authority shall be Accountable for the delay and be subject to judicial review and administrative action by the CVC under Section 8(1)(f) of the CVC Act.

In facts of the present case, the CBI made the application for sanction for prosecution on 08.09.2015, and the same was granted on 24.07.2017, i.e., after one year and ten months. As the Appellant did not question the legality of the delay either before the Trial or the High Court but chose to confine the challenge only to the appointing authority acting under the dictation of the CVC, there was no occasion for CBI to respond to the submission of delay. The submission was raised for the first time before this Court. Though the learned ASG submitted that this plea should not be permitted to be raised, without standing on a technicality, we would have proceeded to examine the matter if the necessary material were on record of the case. As there is no material placed on record to examine the accountability of the appointing authority for not deciding the request for sanction within time, we leave it to the Appellant to seek appropriate remedy based on principles that we have laid down hereinabove.

For the reasons stated above, we dismiss the Criminal Appeal arising out of SLP (Crl) No.1568 of 2022 arising out of the Judgment of the High Court of Madras.

451 CrPc is revisable , its the view predominantly of most high courts, the following judgment explains it lucidly :

S.V.Chandran vs The State on 24 October, 2018 (Madras High Court)

An application under Sec. 451 Cr. P.C. has to be decided by the Court after hearing the parties seeking the release of the property in question. The parties are allowed to adduce evidence and it is only after hearing them that the Court passes the order thereby giving the custody of the property to one of them who may be adjudged by the Court to be best entitled for the same. To say that such an order is revisable by the Court on the termination of the proceedings or in between is no reason to call the order interlocutory order. Till such an order is made, it is final between the parties and the Magistrate cannot arbitrarily or without proper justification change the same during the course of the proceedings. The argument of the petitioner that such an order becomes final on the termination of the proceedings cannot be accepted because even that order is subject to determination by a Civil court. Therefore, in the light of the decision of the Supreme Court in Madhu Limaye's case (1978 Cri LJ 165) , it can be held that this kind of order is final between the parties deciding their entitlement to the property in question finally at that stage. Therefore such an order is necessarily subject to revision by the Court and revision against the same is competent before a Court of Session.

In any case, after perusing the various judgments, which are brought to the attention of this Court, this Court is of the view that the orders passed under Section 451 of Cr.P.C. cannot be characterised as an interlocutory order essentially. It depends upon the property seized and properties produced before the Court. Some may lose its value by passage of time; some may perish due to exposure to rain and sun or due to efflux of time and in such event, the Magistrate is empowered to dispose of the properties, pending finalisation of the trial. In such circumstances, it should be considered that the order to be passed under Section 451 of Cr.P.C. is almost like final orders touching upon valuable right to property of the petitioner.

Any decision rendered by the Courts, exercising power under Section 451 of Cr.P.C. will affect the rights of the petitioner to have his property returned and in such circumstances to turn the petitioner away on the ground that the revision case is not maintainable, will not secure the ends of justice. More so, such orders passed under Section 451 of Cr.P.C. are also not appealable.

Issuance of BW/NBW or proclaimation or attachment must be based on speaking order and not made in a mechanical manner , lest they be quashed in revision proceedings:

Jharkhand High Court

Md. Rustum Alam @ Rustam vs The State Of Jharkhand on 27 April, 2020

The Hon'ble Supreme Court in the case of Raghuvansh Dewanchand Bhasin versus State of Maharashtra reported in (2012) 9 SCC 791 has held that issuing non-bailable warrant of arrest directly involves curtailment of liberty of a person. The Hon'ble Supreme Court took note of the earlier judgment in the case of Inder Mohan Goswami versus State of Uttaranchal reported in (2007) 12 SCC 1. Paragraph 12 of the judgment rendered in the case of Raghuvansh Dewanchand Bhasin (supra) is quoted hereunder: -

12. In Inder Mohan Goswami v. State of Uttaranchal, a Bench of three learned Judges of this Court cautioned that before issuing non-bailable warrants, the courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously. Enumerating some of the circumstances which the court should bear in mind while issuing non-bailable warrant, it was observed (SCC pp. 17-18, paras 53-55)

53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:

It is reasonable to believe that the person will not voluntarily appear in court; or the police authorities are unable to find the person to serve him with a summon; or it is considered that the person could harm someone if not placed into custody immediately.

54. As far as possible if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.

55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.

In view of what has been discussed and held above, I find that none of the provisions, as envisaged in Sections 73, 82 and 83 of the Code has been complied with by the Court below. Non-compliance of the mandatory provisions of law renders the impugned orders, by which order issuing non- bailable warrant of arrest, proclamation under Section 82 of the Code and attachment order, in terms of Section 83 of the Code have been passed in this case, are bad and, thus, are quashed and set aside.

Furnishing of documents both relied and unrelied is the right of accused , the judgment deals with proper application and stage where the draft rules have not been framed by HC and SG as of yet.

Supreme Court of India

P. Ponnusamy vs The State Of Tamil Nadu on 7 November, 2022 (3 judges bench 1 dissenting)

in P. Gopalkrishnan v. State of Kerala (2020) 9 SCC 161 where it was held that

“furnishing of documents to the accused under Section 207 of the 1973 Code is a facet of right of the accused to

a fair trial enshrined in Article 21 of the Constitution.

As stated earlier, the requirement of disclosure elaborated on in Manoj, not only was premised on the formulation of draft rules, but normatively premised on the ratio of the three-judge bench decision in Manu Sharma (supra). In these circumstances, the proper and suitable interpretation of the disclosure requirement in Manoj (supra) would be that:

(a) It applies at the trial stage, after the charges are framed.

(b) The court is required to give one opportunity of disclosure, and the

accused may choose to avail of the facility at that stage.

(c) In case documents are sought, the trial court should exercise its

discretion, having regard to the rule of relevance in the context of the

accused’s right of defence. If the document or material is relevant and

does not merely have remote bearing to the defence, its production may

be directed. This opportunity cannot be sought repeatedly – the trial

court can decline to issue orders, if it feels that the attempt is to delay.

(d) At the appellate stage, the rights of the accused are to be worked out

within the parameters of Section 391 CrPC.

Order dated 20.04.2021 in Suo Motu WP (Crl) No. 1/2017, reported as Criminal Trials Guidelines Regarding

Inadequacies and Deficiencies, In re. v. State of Andhra Pradesh and Ors., (2021) 10 SCC 598.


18. That the accused, has a right to fair trial, was not in doubt; but what is

reiterated is that this right is manifested in the fair disclosure requirement

elaborated above. While the concern of delay in conclusion of trial undoubtedly

weighs heavily in the mind of the judge, it cannot entail compromise of the right

of the accused to fair investigation and trial. Doctrine of residual Doubt and Doctrine of Prudence :

Supreme Court of India

Sudam @ Rahul Kaniram Jadhav vs The State Of Maharashtra on 1 October, 2019

this Court elaborated upon the concept of “residual doubt”—which simply means that in spite of being convinced of the guilt of the accused beyond reasonable doubt, the Court may harbour lingering or residual doubts in its mind regarding such guilt. This Court noted that the existence of residual doubt was a ground sometimes urged before American Courts as a mitigating circumstance with respect to imposing the death sentence, and noted as follows:

“33. In California v. Brown [93 L Ed 2d 934 : 479 US 538 (1987)] and other cases, the US courts took the view, “residual doubt” is not a fact about the defendant or the circumstances of the crime, but a lingering uncertainty about facts, a state of mind that exists somewhere between “beyond a reasonable doubt” and “absolute certainty”. The petitioner's “residual doubt” claim is that the States must permit capital sentencing bodies to demand proof of guilt to “an absolute certainty” before imposing the death sentence. Nothing in our cases mandates the imposition of this heightened burden of proof at capital sentencing.

But, in between “reasonable doubt” and “absolute certainty”, a decision-maker's mind may wander, possibly in a given case he may go for “absolute certainty” so as to award death sentence, short of that he may go for “beyond reasonable doubt”. Suffice it to say, so far as the present case is concerned, we entertained a lingering doubt as to whether the appellant alone could have executed the crime single-handedly, especially when the prosecution itself says that it was the handiwork of a large group of people. If that be so, in our view, the crime perpetrated by a group of people in an extremely brutal, grotesque and dastardly manner, could not have been thrown upon the appellant alone without charge-sheeting other group of persons numbering around 35. All the element test as well as the residual doubt test, in a given case, may favour the accused, as a mitigating factor.” (emphasis added) 18.4 While the concept of “residual doubt” has undoubtedly not been given much attention in Indian capital sentencing jurisprudence, the fact remains that this Court has on several occasions held the quality of evidence to a higher standard for passing the irrevocable sentence of death than that which governs conviction, that is to say, it has found it unsafe to award the death penalty for convictions based on the nature of the circumstantial evidence on record. In fact, this question was given some attention in a recent decision by this Bench, in Md. Mannan @ Abdul Mannan v. State of Bihar, R.P. (Crl.) No. 308/2011 in Crl. A. No. 379/2009 (decision dated February 14, 2019), where we found it unsafe to affirm the death penalty awarded to the accused in light of the nature of the evidence on record, though the conviction had been affirmed on the basis of circumstantial evidence

Principle of prudence, enunciated by Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] is sound counsel on this count which shall stand us in good stead—whenever in the given circumstances, there is difference of opinion with respect to any sentencing prop (sic)/rationale, or subjectivity involved in the determining factors, or lack of thoroughness in complying with the sentencing procedure, it would be advisable to fall in favour of the “rule” of life imprisonment rather than invoking the “exception” of death punishment.” 18.8 The Court in Bariyar (supra) further observed that the irrevocable punishment of death must only be imposed when there is no other alternative, and asserted that in cases resting on circumstantial evidence, the doctrine of prudence should be invoked:

“167. The entire prosecution case hinges on the evidence of the approver. For the purpose of imposing death penalty, that factor may have to be kept in mind. We will assume that in Swamy Shraddananda (2), this Court did not lay down a firm law that in a case involving circumstantial evidence, imposition of death penalty would not be permissible.

But, even in relation thereto the question which would arise would be whether in arriving at a conclusion some surmises, some hypothesis would be necessary in regard to the manner in which the offence was committed as contradistinguished from a case where the manner of occurrence had no role to play. Even where sentence of death is to be imposed on the basis of circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case. ( in this case only evidence against the appellants was , last seen theory , solitary extra judicial confession and motive to commit offence and case was based on circumstantial evidence. This became basis to commute the sentence notwithstanding barbarity of the offence) (Also refer to Manoj vs State of MP for detailed discussion of right of accused to get all relied and unrelied upon documents and death sentencing guidelines ) Ground of discharge for sessions judge and magistrate in warrant trial are different while former requires “not sufficient ground for proceeding” the latter can discharge when it is “groundless” . Can be used in an argument to frame a charge before the magistrate. High court compared many supreme court judgments hence requirement of consulting them separately does not arise.

Allahabad High Court

Ajeet Singh vs State Of U.P. And Another on 26 November, 2021

The aforestated sections indicate that the Code contemplates discharge of the accused by the court of sessions under Section 227 in a case triable by it, cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. The three sections contain somewhat different provisions in regard to discharge of the accused. As per Section 227, the trial judge is required to discharge the accused if "the Judge considers that there is not sufficient ground for proceeding against the accused". The obligation to discharge the accused under Section 239 arises when "the Magistrate considers the charge against the accused to be groundless". The power to discharge under Section 245(1) is exerciseable when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted would warrant his conviction". Sections 227 and 239 provide for discharge being made before recording of evidence and the consideration as to whether the charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the parties to be heard. On the other hand, the stage for discharge under Section 245 is reached only after the evidence referred to in Section 244 has been taken.

11. Despite the slight variation in the provisions with regard to discharge under the three pairs of sections, the settled legal position is that the stage of framing of charge under either of these three situations, is a preliminary one and test of "prima facie" case has to be applied -- if the trial court is satisfied that a prima facie case is made out, charge has to be framed.

The nature of evaluation to be made by the court at the stage of framing of charge came up for consideration in Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another3, and referring to the earlier decisions in State of Maharashtra Vs. Som Nath Thapa4, and State of M.P. Vs. Mohanlal Soni5, it was held that at that stage the Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged and it is not expected to go deep into the probative value of the material on record. The relevant observations made in the judgment are as follows :-

"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.

14. In the context of trial of a warrant case, instituted on a police report, the provisions for discharge are to be governed as per terms of Section 239 which provides that a direction for discharge can be made only for reasons to be recorded by the court where it considers the charge against the accused to be groundless. It would, therefore, follow that as per the provisions under Section 239 what needs to be considered is whether there is a ground for presuming that the offence has been committed and not that a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offences alleged would justify the framing of charge against the accused in respect of that offence, and it is only in a case where the Magistrate considers the charge to be groundless, he is to discharge the accused after recording his reasons for doing so.

17. The provisions of discharge under Section 239 of the Code fell for consideration in K. Ramakrishna and others Vs. State of Bihar and Another12, and it was held that questions regarding the sufficiency or reliability of the evidence to proceed further are not required to be considered by the trial court under Section 239 and the High Court under Section 482. It was observed as follows:

"4. The trial court under Section 239 and the High Court under Section 482 of the Code of Criminal Procedure is not called upon to embark upon an inquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not. However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting of evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed. As observed by this Court in Rajesh Bajaj v. State NCT of Delhi13, the High Court or the Magistrate are also not supposed to adopt a strict hypertechnical approach to sieve the complaint through a colander of finest gauzes for testing the ingredients of offence with which the accused is charge. Such an endeavour may be justified during trial but not during the initial stage."

18. The ambit and scope of exercise of power under Sections 239 and 240 of the Code, are therefore fairly well settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be "groundless". The section mandates that the Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, i.e. either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage - the only consideration at the stage of Section 239/240, is as to whether the allegation/charge is groundless.

19. This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution- the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the accused can be said to be "groundless'.

The test which may therefore be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever.

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