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Whether examination of all witnesses cited in the complaint is sine qua non for taking cognizance by a Magistrate in a case exclusively triable by the Court of Sessions.

The Supreme Court of India in a case of Shivjee Singh Vs Nagendra Tiwary and others through Bench consisting of Justice G.S. Singhvi, Justice Asok Kumar Ganguly, DECIDED ON July 6, 2010.

CASE IN BRIEF:- Code of Criminal Procedure, 1973 - s.202(2), proviso- Interpretation of - Whether examination of all witnesses cited in the complaint is sine qua non for taking cognizance by a Magistrate in a case exclusively triable by the Court of Sessions - Held, No - Even though in terms of the proviso to s.202(2), the Magistrate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order if he is satisfied that there exists sufficient ground for doing so - Examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to s.202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint - Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process.


FACTS OF THE CASE:- The appellant's son was said to have been killed by respondent nos.1 to 4. After conducting investigation, the police submitted final form with the finding that they had no clue about the culprits. Thereupon, the appellant filed a protest petition, which, at the instance of the Judicial Magistrate, was converted into a complaint. The appellant examined himself and two out of the four witnesses cited in the protest petition-cum-complaint. After considering the statements of the appellant and the said two witnesses, the Judicial Magistrate took cognizance against respondent Nos.1 to 4 for offence under Section 302 read with Section 120B IPC and Section 27 of the Arms Act and directed issue of non-bailable warrants against them. Respondents challenged the order of the Judicial Magistrate by filing petition under Section 482 CrPC. The High Court held that the Judicial Magistrate could not have taken cognizance against the respondents without requiring the appellant to examine all the four witnesses named by him and remitted the matter to the concerned court for passing appropriate order after making further inquiry in the light of proviso to Section 202(2) CrPC. Before this Court, it was contended by the appellant that the proviso to s.202(2) Cr.P.C. is not mandatory in character and the High Court committed serious error by remitting the matter to the Judicial Magistrate for further enquiry only on the ground that all the witnesses named by the appellant had not been examined. The appellant contended that non- examination of two witnesses cited in the protest petition-cum-complaint did not preclude the Judicial Magistrate from taking cognizance against respondent nos.1 to 4 since he felt satisfied that a prima facie case was made out against them. The question which thus arose for consideration in the present appeal was whether examination of all witnesses cited in the complaint is sine qua non for taking cognizance by a Magistrate in a case exclusively triable by the Court of Sessions.


WHAT SUPREME COURT OBSERVED:-

By its very nomenclature, Cr.P.C. is a compendium of law relating to criminal procedure. The provisions contained therein are required to be interpreted keeping in view the well recognized rule of construction that procedural prescriptions are meant for doing substantial justice. If violation of the procedural provision does not result in denial of fair hearing or causes prejudice to the parties, the same has to be treated as directory notwithstanding the use of word `shall'.

Chapter XIV of CrPC enumerates the conditions for initiation of proceedings. Chapters XV and XVI contain various procedural provisions which are required to be followed by the Magistrate for taking cognizance, issuing of process/summons, dismissal of the complaint, supply of copies of documents and statements to the accused and commitment of case to the Court of Sessions when the offence is triable exclusively by that Court. An analysis of Sections 200, 202, 203, 204, 207, 208 and 209 Cr.P.C. which form part of these Chapters shows that when a complaint is presented before a Magistrate, he can, after examining the complainant and his witnesses on oath, take cognizance of an offence. This procedure is not required to be followed when a written complaint is made by a public servant, acting or purporting to act in discharge of his official duties or when a Court has made the complaint or if the Magistrate makes over the case for inquiry/trial to another Magistrate under Section 192. Section 202(1) empowers the Magistrate to postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person which he thinks fit for the purpose of deciding whether or not there exists sufficient ground for proceeding. By Amending Act No.25 of 2005, the postponement of the issue of process has been made mandatory where the accused is residing in an area beyond the territorial jurisdiction of the concerned Magistrate.
Proviso to Section 202(1) lays down that direction for investigation shall not be made where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions or where the complaint has not been made by a Court unless the complainant and the witnesses have been examined on oath under Section 200. Under Section 202(2), the Magistrate making an inquiry under sub-section (1) can take evidence of the witnesses on oath. If the Magistrate thinks that the offence complained of is triable exclusively by the Court of Sessions then in terms of proviso to Section 202, he is required to call upon the complainant to produce all his witnesses and examine them on oath.

The object of examining the complainant and the witnesses is to ascertain the truth or falsehood of the complaint and determine whether there is a prima facie case against the person who, according to the complainant has committed an offence. If upon examination of the complainant and/or witnesses, the Magistrate is prima facie satisfied that a case is made out against the person accused of committing an offence then he is required to issue process. Section 202 empowers the Magistrate to postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a police officer or such other person as he may think fit for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 203, the Magistrate can dismiss the complaint if, after taking into consideration the statements of the complainant and his witnesses and the result of the inquiry/ investigation, if any, done under Section 202, he is of the view that there does not exist sufficient ground for proceeding. On the other hand, Section 204 provides for issue of process if the Magistrate is satisfied that there is sufficient ground for doing so. The expression "sufficient ground" used in Sections 203, 204 and 209 means the satisfaction that a prima facie case is made out against the person accused of committing an offence and not sufficient ground for the purpose of conviction.

The use of the word `shall' in proviso to Section 202(2) is prima facie indicative of mandatory character of the provision contained therein, but a close and critical analysis thereof along with other provisions contained in Chapter XV and Sections 226 and 227 and Section 465 would clearly show that non-examination on oath of any or some of the witnesses cited by the complainant is, by itself, not sufficient to denude the concerned Magistrate of the jurisdiction to pass an order for taking cognizance and issue of process provided he is satisfied that prima facie case is made out for doing so. Significantly the word `all' appearing in proviso to Section 202(2) is qualified by the word `his'. This implies that the complainant is not bound to examine all the witnesses named in the complaint or whose names are disclosed in response to the order passed by the Magistrate. In other words, only those witnesses are required to be examined whom the complainant considers material to make out a prima facie case for issue of process. The choice being of the complainant, he may choose not to examine other witnesses. Consequence of such non-examination is to be considered at the trial and not at the stage of issuing process when the Magistrate is not required to enter into detailed discussions on the merits or demerits of the case, that is to say whether or not the allegations contained in the complaint, if proved, would ultimately end in conviction of the accused. He is only to see whether there exists sufficient ground for proceeding against the accused.

Even though in terms of the proviso to Section 202(2), the Magistrate is required to direct the complainant to produce all his witnesses and examine them on oath, failure or inability of the complainant or omission on his part to examine one or some of the witnesses cited in the complaint or whose names are furnished in compliance of the direction issued by the Magistrate, will not preclude the latter from taking cognizance and issuing process or passing committal order if he is satisfied that there exists sufficient ground for doing so. Such an order passed by the Magistrate cannot be nullified only on the ground of non-compliance of proviso to Section 202(2).

Examination of all the witnesses cited in the complaint or whose names are disclosed by the complainant in furtherance of the direction given by the Magistrate in terms of proviso to Section 202(2) is not a condition precedent for taking cognizance and issue of process against the persons named as accused in the complaint. In the present case, the High Court committed serious error in directing the Judicial Magistrate to conduct further inquiry and pass fresh order in the light of proviso to Section 202(2). Since the matter is more than 12 years old, the concerned Magistrate is directed to pass appropriate order in terms of Section 209. It is further directed that after committal of the case, the Sessions Judge, to whom the matter is assigned, shall conduct and complete the trial within a period of 9 months.

POLICE CANNOT REFUSE TO INVESTIGATE ON THE GROUND OF JURISDICTION EXPLAINED

In a case before Supreme Court of India, in Rasiklal Dalpatram Thakkar Vs. State of Gujarat & Ors. Through Bench consisting of Justice Altamas Kabir, Justice Cyriac Joseph , Decided On: November 6, 2009. Code of Criminal Procedure, 1973: s.156(3) - Investigating agency cannot decide not to investigate a complaint forwarded to it under s.156(3) on the ground that offence complained of was allegedly committed outside its territorial jurisdiction. A police officer in charge of a police station can, without the order of a Magistrate, investigate any cognizable offence which a Court having jurisdiction over such police station can inquire into or try under Chapter III of the Code of Criminal Procedure. Sub-section (2) of Section 156 ensures that once an investigation is commenced under Sub-section (1), the same is not interrupted on the ground that the police officer was not empowered under the Section to investigate. It is in the nature of a "savings clause" in respect of investigations undertaken in respect of cognizable offences. In addition to the powers vested in a Magistrate empowered under Section 190 Cr.P.C. to order an investigation under Sub- section (1) of section 202 Cr.P.C., Sub-section (3) of Section 156 also empowers such Magistrate to order an investigation on a complaint filed before him. Sub-section (4) only indicates that an inquiry or trial of an offence of criminal misappropriation or criminal breach of trust can be conducted by a Court within whose jurisdiction the offence had been committed or any part of the property forming the subject matter of the offence is received or retained or was required to be returned or accounted for by the accused person. The said provisions do not account for a stage contemplated on account of an order made under Section 156(3) Cr.P.C.

A glance at the material before the Magistrate would indicate that the major part of the loan transaction, in fact, took place in the State of Gujarat and that having regard to the provisions of Sub-section (2) of Section 156 Cr.P.C., the proceedings of the investigation could not be questioned on the ground of jurisdiction of the officer to conduct such investigation. It was open to the learned Magistrate to direct an investigation under Section 156(3) Cr.P.C. without taking cognizance on the complaint and where an investigation is undertaken at the instance of the Magistrate a Police Officer empowered under Sub-section (1) of Section 156 is bound, except in specific and specially exceptional cases, to conduct such an investigation even if he was of the view that he did not have jurisdiction to investigate
the matter.

It is the settled law that the complaint made in a criminal case follows the place where the cause arises, but the distinguishing feature in the instant case is that the stage of taking cognizance was yet to arrive. The Investigating Agency was required to place the facts elicited during the investigation before the Court in order to enable the Court to come to a conclusion as to whether it had jurisdiction to entertain the complaint or not. Without conducting such an investigation, it was improper on the part of the Investigating Agency to forward its report with the observation that since the entire cause of action for the alleged offence purportedly arose in the city of Mumbai within the State of Maharashtra, the investigation should be transferred to the concerned Police Station in Mumbai. Section 156(3) Cr.P.C. contemplates a stage where the Magistrate is not convinced as to whether process should issue on the facts disclosed in the complaint. Once the facts are received, it is for the Magistrate to decide his next course of action. In this case, there are materials to show that the appellant had filed his application for loan with the Head Office of the Bank at Ahmedabad and that the processing and the sanction of the loan was also done in Ahmedabad which clearly indicates that the major part of the cause of action for the complaints arose within the jurisdiction of the Chief Metropolitan Magistrate, Ahmedabad. It was not, therefore, desirable on the part of the Investigating Agency to make an observation that it did not have territorial jurisdiction to proceed with the investigation, which was required to be transferred to the Police Station having jurisdiction to do so.

The Magistrate was fully justified in rejecting the Final Report submitted by the Economic Offences Wing, State CID (Crime) and to order a fresh investigation into the allegations made on behalf of the Bank. The High Court, therefore, did not commit any error in upholding the views expressed by the Trial Court. Section 181(4) Cr.P.C. deals with the Court's powers to inquire or try an offence of criminal misappropriation or of a criminal breach of trust if the same has been committed or any part of the property, which is the subject of the offence, is received or retained within the local jurisdiction of the said Court.

The powers vested in the Investigating Authorities under Sections 156(1) Cr.P.C., did not restrict the jurisdiction of the Investigating Agency to investigate into a complaint even if it did not have territorial jurisdiction to do so. Unlike as in other cases, it was for the Court to decide whether it had jurisdiction to entertain the complaint as and when the entire facts were placed before it.

CRIMINAL CONSPIRACY EXPLAINED; SANCTION TO PROSECUTE EXPLAINED; FRAMING OF CHARGE EXPLAINED

In a case before Supreme Court of India, in State of Madhya Pradesh Vs Sheetla Sahai & Ors. through the Bench consisting of Justice S.B. Sinha, Justice Cyriac Joseph, Decided on August 04, 2009, Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the relevant provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused. A criminal conspiracy must be put to action inasmuch as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed there under only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy.

What is necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. While saying so, this Court is not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence. Ex facie, there is no material to show that a conspiracy had been hatched by the respondents.

Abuse of official position necessary to convict on criminal misconduct

Even under the Prevention of Corruption Act, an offence cannot be said to have been committed only because the public servant has obtained either for himself or for any other person any pecuniary advantage. He must do so by abusing his position as public servant or holding office as a public servant. In the latter category of cases, absence of any public interest is a sine qua non. The materials brought on record do not suggest in any manner whatsoever that the respondent Nos. 1 to 7 either had abused their position or had obtained pecuniary advantage for the respondent Nos. 8, 9 and 10, which was without any public interest.

What to be considered for framing of charge or conviction

There cannot be any doubt whatsoever that the tests for the purpose of framing of charge and the one for recording a judgment of conviction are different. A distinction must be borne in mind that whereas at the time of framing of the charge, the court may take into consideration the fact as to whether the accused might have committed the offence or not; at the time of recording a judgment of conviction, the prosecution is required to prove beyond reasonable doubt that the accused has committed the offence.

Materials brought on record even if given face value and taken to be correct in their entirety disclose commission of an offence or not must be determined.

In this case, the probative value of the materials on record has not been gone into. The materials brought on record have been accepted as true at this stage. It is true that at this stage even a defence of an accused cannot be considered. But, this Court is unable to agree with the submission that where the entire materials collected during investigation have been placed before the court as part of the charge sheet, the court at the time of framing of the charge could only look to those materials whereupon the prosecution intended to rely upon and ignore the others which are in favour of the accused. The question as to whether the court should proceed on the basis as to whether the materials brought on record even if given face value and taken to be correct in their entirety disclose commission of an offence or not must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. If such a construction is made, Sub-section (5) of Section 173 of the Code of Criminal Procedure shall become meaningless.

Charges be framed when two views are possible, if only one view is possible accused cannot be asked to go for trial.

The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself has placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial.


They were members of the Committee constituted by the authorities, viz., the Minister or the Secretary. At that stage, it was not possible for them to refuse to be a Member of the Committee and/ or not to render any opinion at all when they were asked to perform their duties. They were required to do the same and, thus, there cannot be any doubt whatsoever that each one of the respondent Nos. 1 to 7 was performing his official duties. For the purpose of attracting the provisions of Section 197 of the Code of Criminal Procedure, it is not necessary that they must act in their official capacity but even where a public servant purports to act in their official capacity, the same would attract the provisions of Section 197 of the Code of Criminal Procedure. Thus, in the instant case, sanction for prosecution in terms of Section 197 of the Code of Criminal Procedure was required to be obtained.

SANCTION IN WHAT CASES NEEDED / NOT NEEDED DISCUSSED WITH LAW AND CITATIONS

Section 197 - Sanction for prosecution - Whether public servants act in their official capacity or purport to act in their official capacity such action would attract the provisions of Section 197 - Thus sanction for prosecution was required to be obtained - Prevention of Corruption Act, 1988 - Sections 13, 19. In this appeal on the basis of the facts of the case and contentions raised on both sides, the main question that arose for consideration was whether sanction for prosecution in terms of Section 197 Cr.P.C. was required to be obtained.

In a case before Supreme Court of India, In Rakesh Kumar Mishra v. State of Bihar and Others [(2006) 1 SCC 557], held: "12. It has been widened further by extending protection to even those acts or omissions which are done in purported exercise of official duty; that is under the colour of office. Official duty, therefore, implies that the act or omission must have been done by the public servant in the course of his service and such act or omission must have been performed as part of duty which further must have been official in nature. The section has, thus, to be construed strictly, while determining its applicability to any act or omission in the course of service. Its operation has to be limited to those duties which are discharged in the course of duty. But once any act or omission has been found to have been committed by a public servant in the discharge of his duty then it must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is not entitled to indulge in criminal activities. To that extent the section has to be construed narrowly and in a restricted manner. But once it is established that an act or omission was done by the public servant while discharging his duty then the scope of its being official should be construed so as to advance the objective of the section in favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction shall stand frustrated. For instance a police officer in the discharge of duty may have to use force which may be an offence for the prosecution of which the sanction may be necessary. But if the same officer commits an act in the course of service but not in the discharge of his duty and without any justification therefore then the bar under Section 197 of the Code is not attracted..."

The said principle has been reiterated by this Supreme in B. Saha v. M.S. Kochar [(1979) 4 SCC 177] in the following terms: "17. The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be". In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision. As pointed out by Ramaswami, J., in Baijnath v. State of M.P., "it is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted". 18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him."

MAGISTRATE HAS NO POWER TO RECALL HIS ORDER - NO COMPROMISE – INVESTIGATION CANNOT BE WITHDRAWN

In a case before Supreme Court of India, in Dharmeshbhai Vasudevbhai & Ors. Vs State of Gujarat & Ors. through the Bench consisting of Justice S.B. Sinha, & Justice Cyriac Joseph, Decided on May 5, 2009. Magistrate recalling his order for investigation passed u/s 156(3) - Held: Ordinarily, Magistrate has no power to recall his order - When an order is passed under s.156(3), investigation must be carried out - Interference by Magistrate with exercise of statutory power of investigation by police is not envisaged under the Code.

The City Co-operative Bank filed a complaint petition in the court of the Judicial Magistrate alleging commission of offences punishable u/ss 406, 420, 423, 465, 477, 468, 471, 120-B, 124 r/w 34 IPC by the respondents - accused. The Magistrate by order …… directed u/s 156(3) CrPC the complaint to be registered and sent to the Police Station concerned for investigation. However, subsequently, on complainant's application informing the court that a compromise had been arrived at between the parties, the Magistrate ordered to withdraw the inquiry. The appellants, who were depositors in the Bank, filed writ petitions challenging the orders of the Judicial Magistrate. The High Court having dismissed the writ petitions, the depositors filed the appeals.

When an order is passed under sub-s. (3) of s. 156 of the Code of Criminal Procedure, 1973, the investigation must be carried out. Only when the investi-gating officer arrives at a finding that the alleged offence has not been committed by the accused, he may submit a final report. On the other hand, upon investigation if it is found that a prima facie case has been made out, a charge-sheet must be filed. Interference with the exercise of statutory power of investigation by police, far less direction for withdrawal of any investigation which is sought to be carried out, is not envisaged under the Code. Magistrate's power in this regard is limited. Even otherwise, he does not have any inherent power. Ordinarily, he has no power to recall his order.

In the instant case, the Magistrate directed carrying out the investigation by investigating officer and submit a report. If the investigation was to be carried out in terms of s. 156(3) of the Code, the same could not have been equated with an enquiry as the two expressions have differently been defined in ss. 2(g) and 2(h) of the Code. In any event, the Magistrate did not have any jurisdiction to recall the said order. The High Court, therefore, was not correct in refusing to consider the contention that the Magistrate had no jurisdiction in that behalf. The High Court, apart from exercising its super-visory jurisdiction under Articles 227 and 235 of the Constitution of India, has a duty to exercise continuous superintendence over the Judicial Magistrates in terms of s.483 of the Code. When an order passed by a Magistrate which was wholly without jurisdiction was brought to the notice of the High Court, it could have interfered there with even suo motu.

BOTH SUPREME COURT AND HIGH COURT WOULD NOT DIRECT QUASHING OF CASE INVOLVING CRIME AGAINST THE SOCIETY

In a case before Supreme Court of India, in Smt. Rumi Dhar Vs State of West Bengal and another, through the Bench consisting of Justice S.B. Sinha and Justice Dr. Mukundakam Sharma Decided on April 8, 2009

Code of Criminal Procedure, 1973: s.239 - Discharge - Accused persons charged for defrauding the bank, falsification of account and forgery of records - Charges also framed - Meanwhile some settlement arrived at in the debt recovery suit before Tribunal - Payment made by accused in terms of settlement - Application for discharge by accused -Held: Trial Court rightly dismissed application for discharge - Settlement with the creditor would not exonerate the accused from prima facie charge in a criminal case - While considering application for discharge u/s.239, it is for trial court to go into details of allegations made against each of accused persons to form opinion as to whether any case was made out - The High Court, in exercise of its jurisdiction under s. 482 and Supreme Court, in terms of Article 142 of Constitution would not direct quashing of case involving crime against the society particularly when both the courts below found that a prima facie case was made out against the accused for framing charge - Appellant allegedly took part in conspiracy in defrauding the bank. Serious charges of falsification of accounts and forgery of records were also alleged. It is now a well settled principle of law that in a given case, a civil proceeding and a criminal proceedings can proceed simultaneously. Bank is entitled to recover the amount of loan given to the debtor. If in connection with obtaining the said loan, criminal offences were committed by the persons accused thereof including the officers of the bank, criminal proceedings would also indisputably be maintainable. When a settlement is arrived at by and between the creditor and the debtor, the offence committed as such would not come to an end. The judgment of a tribunal in a civil proceeding and that too when it is rendered on the basis of settlement entered into by and between the parties, would not be of much relevance in a criminal proceeding having regard to the provisions contained in Section 43 of the Evidence Act.

The judgment in the civil proceedings would be admissible in evidence only for a limited purpose. It is not a case where the parties entered into a compromise in relation to the criminal charges. In fact, the offence alleged against the accused being an offence against the society and the allegations contained in the first information report having been investigated by the CBI, the bank could not have entered into any settlement at all. The CBI did not file any application for withdrawal of the case. Not only a charge sheet was been filed, charges were also framed. At the stage of framing charge, the appellant filed an application for discharge. One of the main accused was the husband of the appellant. The complicity of the accused persons was, thus, required to be taken into consideration for the purpose of determining the application for discharge upon taking a realistic view of the matter. While considering an application for discharge filed in terms of Section 239 Cr.P.C., it was for the trial court to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all was been made out or not as a strong suspicion in regard thereto shall subserve the requirement of law.

ANTICIPATORY BAIL – IMPOSING OF CONDITIONS TO GRANT, ONLY AS STATED IN SECTIONS 438(2) AND 437(3) OF CRPC

In a case before Supreme Court of India, in Munish Bhasin & Ors. Vs State (Govt. of N.C.T. of Delhi) & Anr. Decided by JUSTICE R.V. Raveendran JUSTICE J.M. Panchal, The question which arose for consideration in this appeal was whether High Court was justified in imposing condition requiring the appellant to pay a sum of Rs. 3,00,000/- for past maintenance and a sum of Rs.12,500/- per month as future maintenance to his wife and child while granting anticipatory bail to him and his parents with reference to the complaint filed by his wife for alleged commission of offences punishable under ss. 498A and 406 read with s. 34 IPC. Supreme court held:- While exercising discretion to release an accused under Section 438 of the Code of Criminal Procedure, 1973 neither the High Court nor the Session Court would be justified in imposing freakish conditions. The Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and sub-section (3) of Section 437 of the Code. Normally, conditions can be imposed

(i) to secure the presence of the accused before the investigating officer or before the Court,
(ii) to prevent him from fleeing the course of justice,
(iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or
(iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc.

To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under section 438 of the Code. While imposing conditions on an accused who approaches the Court under section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. The conditions to be imposed under section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under section 438 of the Code. The case of the appellant is that his wife is employed and receiving a handsome salary and therefore is not entitled to maintenance. Normally, the question of grant of maintenance should be left to be decided by the competent Court in an appropriate proceedings where the parties can adduce evidence in support of their respective case, after which liability of husband to pay maintenance could be determined and appropriate order would be passed directing the husband to pay amount of maintenance to his wife. The record of the instant case indicates that the wife of the appellant has already approached appropriate Court for grant of maintenance and therefore the High Court should have refrained from granting maintenance to the wife and child of the appellant while exercising powers under section 438 of the Code.

Bride burning is a shame of our society

The Supreme court in Ashok Kumar v. State of Rajasthan reported in (1991) 1 SCC 166 has laid down as under: "... ... ...Bride burning is a shame of our society. Poor never resort to it. Rich do not need it. Obviously because it is basically an economic problem of a class which suffers both from ego and complex. Unfortunately, the high price rise and ever increasing cost of living coupled with enormous growth of consumer goods effacing difference between luxury and essential goods appear to be luring even the new generation of youth, of the best service, to be as much part of the dowry menace as their parents and the resultant evils flowing out of it. How to curb and control this evil? Dowry killing is a crime of its own kind where elimination of daughter-in-law becomes immediate necessity if she or her parents are no more able to satiate the greed and avarice of her husband and their family members, to make the boy available, once again in the marriage market. Eliminate it and much may stand resolved automatically. ... ... ..."

IT IS THE DUTY OF POLICE OFFICER TO REGISTER FIR IN COGNIZABLE OFFENCE

Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) Cr.P.C. that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of Cr.P.C. only thereafter. Suresh Chand Jain v. State of M.P. and Anr., [2001] 2 SCC 628;

A WORD OF CAUTION BY HIGHEST COURT REGARDING CASE LAW

While deciding the cases on facts, more so in criminal cases the court should bear in mind that each case must rest on its own facts and the similarity of facts in one case cannot be used to bear in mind the conclusion of fact in another case (See: Pandurang and Anr. vs. State of Hyderabad (1955 1 SCR 1083).

It is also a well established principle that while considering the ratio laid down in one case, the court will have to bear in mind that every judgement must be read as applicable to the particular facts proved or assumed to be true.

Since the generality of expressions which may be found therein are not intended to be expositions of the whole of the law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides, and not what logically follows from it. (1) Quinn vs. Leathem (1901) AC 495 (2 ) State of Orissa vs. Sudhansu Sekhar Misra (AIR 1968 SC 647) (3) Ambica Quarry Works Vs. State of Gujarat (AIR 1987 SC 1073

In Megh Singh Vs. State of Punjab - (2003) 8 SCC 666, supreme Court held that in criminal law one additional or different fact may make a world of difference between the conclusions in two cases or between two accused in the same case.

SEVERAL PROVISIONS OF KARNATAKA POLICE MANUAL

1194. Information coming under any of the following headings received at a Police Station, shall be registered in the First Information Report book (Form 126), which is the book prescribed under Section 154, Criminal Procedure Code:
(1) cognizable cases including those referred to the Police by Magistrates for investigation or inquiry under Sections 156 (3) and 202 Criminal Procedure Code;
(2) fires, missing of cattle and all other occurrences where there is reason to suspect the commission of a cognizable offence;
(3) non-cognizable cases endorsed to the Police by Magistrates for investigation or inquiry under Sections 155 (2) and 202 Criminal Procedure Code;
(4) cases under Sections 41, 102, 107 to 110 of the Code of Criminal Procedure, only one First Information Report being issued if more than one person is involved in a case;
(5) reports made to Magistrates with a view to action being taken under Sections 144 and 145 of the Code of Criminal Procedure.
(6) cases under Section 182 or 211 I.P.C. when it is proposed to prosecute the complainant for false complaint, although not investigated under Section 155 (2) of the Code of Criminal Procedure.

Note:- Cases received on transfer from other Police Stations should be re-registered at the receiving Station.

1195. Every report of a cognizable offence should be registered in the First Information Report book, even if it appears to be untrue, exaggerated or of civil nature.

1196. If the Officer-in-charge of a Police Station receives an oral report of a cognizable offence during his tour, he should take down the report in writing and have it signed or marked by the person who made it. He should then send it, with an endorsement duly signed by him, to the Police Station, where it will be treated as a written report and registered in the First Information Report book. In the meantime, he will himself commence the investigation.

1197. Every effort must be made to secure the most precise description of the stolen property from the complainant at the time when the first information is recorded. If the complainant is unable to furnish a list of property when he gives the first information, he shall be required to supply the list in writing as soon as possible after the arrival of the investigating officer at the spot.

1198. A First Information Report once recorded, shall in no circumstances be withheld or cancelled by the Station House Officer.

1199. Cases entered in the First Information Report book will each be given a consecutive number, and this number will constitute the crime number for the purpose of subsequent references.

1200. As soon as the report has been entered in the First Information Report book, the substance of the report must be briefly recorded in the Station House Diary.

1201. The registration of a cognizable offence shall be made by the Police Inspector/Sub-Inspector, if he is present at the Police Station when a report is made. Once the report has been entered in the First Information Report, the investigation of the offence will be commenced at the scene of occurrence with the least possible delay, and the PI/Sub-Inspector will himself proceed to the spot. If there are reasons that render this impossible or unnecessary, he will depute a PSI/Head Constable to take up the investigation, and he will note in the First Information Report why he did not himself take up the investigation. In the absence of the PI/Sub-Inspector, the senior most officer present will record the first information and take up the investigation till relieved by the PI/Sub-Inspector or any other officer.

1202. The First Information Report shall invariably be written before the investigating officer proceeds to make an investigation. But, if a report of a serious crime is received by the Officer-in-charge of a Police Station, he must leave post-haste to the scene of offence directing the officer whom he places in-charge of the station or the station writer, as the case may be, to register the case. For example, if a Station House Officer is informed that a serious breach of the peace is occurring in his jurisdiction or that a drunkard is running amuck with a weapon after inflicting serious injuries on persons, it is the duty of the Station House Officer to proceed to the scene at once and prevent the commission of further offences. He should not delay proceeding to the scene for the sake of issuing a First Information Report, which could be left to one of his subordinates.

1203. If the first informant appears at an outpost with or without a report, a First Information Report should not be issued by the Head Constable or Constable in-charge as he is not a Station House Officer as defined in Section 2 (o) of the Code of Criminal Procedure. He will enter the substance of the report in the Outpost Diary, send the first informant with a note in which he should record the date and the time at which the first informant appeared at the Outpost and the date and time at which he left for the Station, where the First Information Report will be issued. He will then proceed to the scene of occurrence and will take steps to arrest the accused and recover stolen property, if any, pending the arrival of the Station House Officer to conduct the investigation.

REPORTING OF HEINOUS CASES :

153. The Superintendent of Police, should inform the Range Inspector General of Police, Director General of Police, C.OD., Training, Special Units and Economic Offences, Director General and Inspector General of Police by teleprinter or Wireless message, as soon as he comes to know of the occurrence of any crime of heinous nature. In the case of the Commissionerate the Deputy Commissioners of Police will inform the Commissioners of Police. The following constitute offences of a heinous nature :-

1) Dacoity ;
2) Highway robbery ;
3) Murder ;
4) Culpable homicide ;
5) H.B. and theft of articles valued above Rs. 25,000/- ;
6) Theft of articles valued above Rs.50,000/- ;
7) Communal rioting
8) Disturbances, riot or affray specially grave in nature ;
9) Disturbance involving the use of firearms ;
10) Case in which fire is opened by a Government Servant ;
11) Case of manufacture of counterfeit currency notes and coins ;
12) Case of possessing of bombs or manufacturing or use of bombs or explosives even though non-political in character ;
13) Poisoning cases involving loss of human life
14) Abduction or kidnapping of women and children in an organised manner ;
15) Assault on the police, except where it is of a very trivial nature;
16) Case of death or grievous injury alleged to have been caused by a police officer whether in his public or private capacity or to have occurred to any persons (including suicide) while in police custody, or alleged police torture ;
17) Fast, Bundh, Hartal, Satyagraha or strike of any kind and agrarian trouble;
18) Serious fire accident involving loss of property worth Rs.10,000/- and above or involving loss of human life or both ;
19) Serious accident or natural calamity including floods and earth-quakes in which loss of human lives or serious damage to property are involved.
20) Railway accident except where it is trivial ;
21) Road accidents involving loss of human life ;
22) Rape ;
23) Dowry death Offence ;
24) Offences under SC/ST (Prevention of Atrocities) Act/PCR Act ;


CRIME REPORTING BY POLICE IN KARNATAKA HOW DONE



AS PER KARNATAKA POLICE MANUAL

HEINOUS CRIME REPORT :

172. Immediately after visiting the scene in a heinous crime, and in any case not later than a week of the issue of the F.I.R. the Sub-Divisional Police Officer should send a detailed report in Form No.9 in duplicate to the Superintendent of Police, who will forward one copy to the Range Inspector General. A grave crime report should be sent by the Sub-Divisional Police Officer in a heinous crime even if it has not been investigated by him and even if it is treated as false or as a mistake of fact. The Sub-Divisional Police Officer should frame the grave crime report himself.

PROGRESS REPORT
173. Progress reports in Form No.10 should be sent in duplicate every week till the final disposal of the case to the Superintendent of Police, who will forward a copy of it to the Range Inspector General of Police. It is open to the Superintendent and the Range Officers to order the discontinuance of progress reports in any particular case.

174. Detailed progress reports received by the Range Inspector General of Police should be filed in his office, where a watch should be maintained over the progress and disposal of cases. Copies of grave crime reports and their progress reports should not be sent to the office of the Director General.


WEEKLY DIARY :

175. The Sub-Divisional Police Officer should prepare and maintain a diary in Form No.13. The diary should be written in ink in his own handwriting with his initials on each page and it should be written day-to-day, the entries for the previous day being made on the morning of the following day. The diary should contain details of all movements and every type of duties performed by him whether of a routine nature or not and whether in headquarters or on tour.

176. The Sub-Divisional Police Officer will send a weekly report which is a true copy of the diary maintained as per Order No.175 in Form No.13. The weekly report should commence from Monday of the week. Two copies of the weekly report should be made out with an abstract in Form No.17 and forwarded to the Superintendent of Police along with a forwarding note in Form No.18. The Superintendent of Police should retain one copy and forward the 2nd copy with the abstract in From No.17 and forwarding note in Form No.18 to the Inspector General of Police of the Range. The copies of the Weekly reports should be sent to the concerned officers with the superscription "Weekly Report" and they should be opened by the addressees only and none else on their behalf.

177. All the case diaries received from the Inspectors should be scrutinised by the Sub-Divisional Police Officer and necessary instructions should be passed upon them and communicated to the Investigating Officer. The Sub-Divisional Police Officer shall maintain a crime register in Form No.20 to watch the receipt of the case diaries and the progress reports. Columns 3 to 13 of the crime register should be personally written by the Sub-Divisional Police Officer.


REGISTRY OF CASES REPORTED AT POLICE STATIONS OTHER THAN THE JURISDICTION OF THE POLICE STATION


1204. When an offence committed within the railway police jurisdiction is reported to a local district Police Station or vice-versa, the Station which receives the report shall forthwith inform the Police Station having jurisdiction by telephone, wireless or telegram, which shall be followed up by the First Information Report transferring the case. The police receiving the information first should take up the investigation and continue it till the arrival of the police having jurisdiction.

1205. If a crime committed in the jurisdiction of another Police Station within the State is reported to the Station House Officer of a Police Station, a First Information Report should be issued and its substance entered in the Station House Diary.

1206. If the place of occurrence is near and is easily accessible from the Station House, the Station House Officer will at once proceed to the spot, take up investigation and continue it till relieved by the police having jurisdiction. Simultaneously, action will be taken to send immediate intimation to the police having jurisdiction over the place. When the investigation is taken over by the latter, the First Information Report should be transferred.

1207. If the place of occurrence is far off, immediate intimation should be sent to the police having jurisdiction over the place by the quickest possible means and the First Information Report transferred to them simultaneously. If any of the persons, who are reasonably believed to have taken part in the offence, are found in the limits of the station where the offence is reported and if the offence alleged against them is of a serious nature and there is reasonable apprehension that they will abscond unless immediately taken into custody, they should be arrested and produced before the court having jurisdiction, intimation of their arrest being promptly sent to the Police Station within the jurisdiction of which the offence occurred.

1208. If a report relates to a cognizable offence that was committed outside the State, it will be entered in the Station House Diary and a certified copy of the entry will be given to the person who made the report and he will be referred to the Station House Officer within whose jurisdiction the offence took place. If any of the persons who are reasonably believed to have taken part in the commission of the offence are found in our State territory, and if the offence alleged against them is of a serious nature and there is reasonable apprehension that they will abscond unless immediately taken into custody, they will be arrested and produced before the court having jurisdiction, intimation of their arrest being promptly sent to the Police Station within the jurisdiction of which the offence occurred.

REGISTRATION OF CASES WHEN STATION LIMITS OF OCCURRENCE ARE DOUBTFUL

1209. The police to whom a cognizable offence is first reported shall register the case and take up the investigation, where the offence has been committed close to a boundary between stations and it is at first doubtful in which station limits it occurred. The station which should retain the crime should be subsequently settled. It is of little importance whether a crime committed close to a boundary line is registered in this or that station. What is necessary is that the police who first hear of it should take up the case and endeavor to detect it.


KARNATAKA LAND LAWS

CASE LAW ON LAND LAWS