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  • Writer's pictureLLC
    • Feb 6
    • 56 min read

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