INDEX

1.
2.

Whether Second Application For Anticipatory Bail Is Barred?

Obscene acts done or viewed in privacy do not constitute an

offence: bombay hc. Wp no:127/2016. Amardeep singh chudha

3.

vs ??? .
If writ jurisdiction invokable for grant of pre arrest bail?

4.

Factors borne in mind while arguing bail application

5.

How far principle of parity can be invoked in bail?

6.

Effect of investigation into a non-cognizable offence without

order of magistrate.

7.

Whether Cr.P.C.
laundering?

8.

Whether sec. 279, 338 & 304a IPC will lie against a cyclist?

9.

Death after 62 days of fight- culpable homicide or murder?

is

applicable

for

investigating

money

10.

Plea of alibi nature of when to be proved?

11.

Criminal
trial

investigation

investigation/reinvestigation or further investigation.

12.

Second fir in the same transcation of offence not permissible.

13.

Amended of criminal complaint allowed-yes

14.

Important sc decisions on cognizance of offence

15.

Exemption from personal appearance .

16.
17.

What is the meaning of "complaint" ? what is the procedure

prescribed by code, when a complaint is filed in court?
Can an accused may be convicted of an offence which is not

18
19.
20

specified in the charge sheet on which he has been tried ?-yes.

Case Diary; Importance & Relevance
Principles governing section 106 of the Indian Evidence Act
Wife died in her matrimonial home; 4 broad categories

fresh

21

Courts not powerless to allow amendment to a Complaint

under Domestic Violence Act: SC

22

Facebook postings against police- no offence

23

SC Upheld the validity of Criminal Prosecution &

Punishment for causing Defamation - in
Subramanian Swamy case.

24

Court cannot record any findings on merits while

appointing Arbitrator u/s 11(6)of the Act

25

An injured witness is generally reliable but even an injured witness may implicate
some innocent persons on account of enmity and Vendetta.

26

Whether counter cases are to be decided by same Judge? Yes.

27

Procedure to be followed by Magistrate when one case is

triable by session court and counter case is triable by
Magistrate ?

28

When Session Judge can try offences which are not exclusively
triable by Court of Sessions?

29

WHETHER SECOND APPLICATION FOR ANTICIPATORY BAIL IS BARRED

?
As a general rule, it can be stated that a second application for anticipatory
bail is not barred. Even though the principle of res judicata is not directly
applicable in a criminal case, especially in a bail application, there is a strong
line of thinking that the courts are bound by the doctrine of judicial
discipline. Therefore, the general proposition that a second bail application
for pre-arrest bail is not legally barred is controlled by certain riders.
# Pre-arrest Bail
Primarily, it has to be established by the applicant in the second application
that there is a material change in the fact situation which makes him entitled
to seek the relief. In otherwords, the applicant should establish a change in
the circumstances sufficient to persuade the court to invoke its extraordinary
jurisdiction in favour of him.
The change of circumstances can be in many ways. For example, his earlier
application must have been disposed of by the court considering the
submission of the Prosecutor that he was not involved in any offence at that
time or that he was involved only in bailable offences.
Another instance could be that the petitioner might have been accused of a
non-bailable offence of a grave nature and therefore the court must have felt
that his custodial interrogation was essential for a proper investigation. If the
petitioner subsequently shows that though he is involved in a non-bailable
offence, the gravity of the offence is much lesser than that had been initially
alleged against him and there is no reason for any custodial interrogation,
then he may legitimately claim a relief under Section 438 Cr.P.C.

These are some of the instances the petitioner may rely on to urge that there
is a material change in the fact situation enabling him to seek a pre-arrest
bail through a subsequent application. In the absence of any such plea raised
or fact established at the time of hearing, no doubt, an applicant is legally
not entitled to seek pre-arrest bail by way of a second application.
Recently a learned Single Judge of Kerala High Court in Muhammed Ziyad v.
State of Kerala, 2015 (4) KLJ 22 has deprecated the practice of filing
successive bail applications without any legal justification.
Full Bench of the Calcutta High Court in Sudip Sen v. State of W.B., 2010
Cri.L.J. 4628 reiterated the well settled principle that there is no general bar
or impediment in moving a second application for bail, whether it be prearrest bail or regular bail.
In paragraph 31 the court summed up the discussion. The point relevant is
quoted hereunder:(c) A person will be entitled to move the High Court or the court of Session,
as the case may be, for the second time. He can do so only on the ground of
substantial change in the facts and circumstances of the case due to
subsequent events. However, he will not be entitled to move the second
application on the ground that the Court on earlier occasion failed to
consider any particular aspect or material on record or that any point then
available to him was not agitated before the Court.
Three Judge Bench of the Supreme Court in Kalyan Chandra Sarkar v. Rajesh
Ranjan, AIR 2005 SC 921 considered the legality and propriety of successive
bail applications. Relevant portion is quoted hereunder:19. The principles of res judicata and such analogous principles although
are not applicable in a criminal proceeding, still the Courts are bound by the
doctrine of judicial discipline having regard to the hierarchical system

prevailing in our country. The findings of a higher Court or a coordinate

bench must receive serious consideration at the hands of the Court
entertaining a bail application at a later stage when the same had been
rejected earlier.
In such an event, the courts must give due weight to the grounds which
weighed with the former or higher court in rejecting the bail application.
Ordinarily, the issues which had been canvassed earlier would not be
permitted to be re-agitated on the same grounds, as the same it would lead
to a speculation and uncertainty in the administration of justice and may
lead to forum hunting.
20. The decisions given by a superior forum, undoubtedly, is binding on the
subordinate fora on the same issue even in bail matters unless of course,
there is a material change in the fact situation calling for a different view
being taken. Therefore, even though there is room for filing a subsequent bail
application in cases where earlier applications have been rejected, the same
can be done if there is a change in the fact situation or in law which requires
the earlier view being interfered with or where the earlier finding has
become obsolete.
This is the limited area in which an accused who has been denied bail earlier,
can move a subsequent application. Therefore, we are not in agreement with
the argument of learned counsel for the accused that in view the guaranty
conferred on a person under Article 21 of the Constitution of India, it is open
to the aggrieved person to make successive bail applications even on a
ground already rejected by courts earlier including the Apex Court of the
country.
In the light of the principles of law stated in the binding precedent by the
Supreme Court, there cannot be any doubt that successive bail applications
without showing any change in the fact situation or circumstance requiring

the invocation of the extraordinary jurisdiction of the High Court or Court of

Sessions under Section 438 Cr.P.C. can only be regarded as an abuse of the
process of court.
{The above passage on Anticipatory Bail is quoted from a recent Order of the
Kerala High Court in the matter of Vineeth Vs. State of Kerala dated 1
October, 2015 authored by Justice A. Hariprasad.]
Obscene acts done or viewed in privacy do not constitute an
Offence: Bombay HC
A Division Bench of the Bombay High Court recently held that any obscene
action done or viewed in privacy would not constitute an offence under
section 294 of the Indian Penal Code.
The factual matrix leading to the petition being filed before the High Court
involved a complaint being made to the Assistant Commissioner of Police,
Andheri, by Mr. Jagjit Girmile, who is a Journalist by profession. Mr. Girmile
had informed the ACP that a private party was going on in his neighboring
flat, wherein some women dressed scantily were dancing and making
obscene gestures to the customers, who were showering money on them.
Pursuant to this information, the Police officials organized a raid, by
arranging two panch witnesses.
During the raid, Police officials noticed that music was being played, and six
women, scantily dressed, were dancing, while the men were consuming
liquor. They also found men showering money on these women.
The he Police then took charge of articles in the flat and issued notices to six
women and the owner of the flat to report to the police station for further
action. An FIR was later registered under Section 294, read with Section 34 of
the Indian Penal Code. Section 294 lays down the punishment for obscene
acts or words in public, and section 34 deals with common intention.
The petitioners had now approached the High Court for quashing of this FIR.
The question that arose for the Courts consideration was whether any
obscene act in a private place causing no annoyance of others constitutes an
offence punishable under section 294 of IPC.
The petitioners had argued that the flat in question cannot be said to be a
public place where anyone could have access. Agreeing with this contention,
the Court noted that the main ingredient of Section 294 of IPC is the
commission of an obscene act at a public place.
It noted that the FIR does not reflect any annoyance being caused to the
public because of the alleged activities going on in the flat. It further

observed that an apartment in a building owned by some private person

meant for private use, cannot be said to be a public place.
In the case in hand, even if the averments made in the F.I.R. lodged
meticulously after conducting raid at the spot of incident are taken at their
face value and accepted in their enterity, do not prima facie constitute an
offence punishable under section 294 of I.P.C. Obscene act alleged in the
F.I.R., as per averments made in the F.I.R., was not being conducted at a
public place and that too to the annoyance of others, the Bench comprising
Justice A.M. Badar and Justice Naresh H. Patil hence observed.

IF WRIT JURISDICTION INVOKABLE FOR GRANT OF PRE ARREST BAIL

The Supreme Court of India in Km. Hema Mishra Vs. State of U.P.; AIR 2014
SC 1066 : (2014) 4 SCC 453 : 2014 (1) SCR 465 : JT 2014 (2) SC 26 : 2014 (1)
SCALE 342 : 2014 AIR SCW 624 held that object of ss.41(a), 41(b), 41A of the
Code of Criminal Procedure, 1973 is to check arbitrary or unwarranted arrest
and protect the right to personal liberty guaranteed u/Article 21 of the
Constitution of India.
A bench comprising of Justice K. S. Radhakrishnan and Justice A. K. Sikri
observed that s.438 has been specifically omitted and made inapplicable in
the State of U.P. still, a party aggrieved against whom FIR is lodged and/or
charge-sheet is filed in court can invoke the jurisdiction of High Court
u/Article 226 of the Constitution for quashing of proceedings.
# Pre Arrest Bail
The considerations, however which have to weigh with the High Court to
decide as to whether such proceedings are to be quashed or not are entirely
different than that of granting interim protection against the arrest. Since the
grounds on which such an FIR or charge sheet can be quashed are limited,
once the writ petition challenging the validity of FIR or charge- sheet is
dismissed, the grant of relief, incidental in nature, against arrest would
obviously not arise, even when a justifiable case for grant of anticipatory bail
is made out.
Though the High Courts have very wide powers u/Art.226, the very vastness
of the powers imposes on it the responsibility to use them with
circumspection and in accordance with the judicial consideration and well
established principles, so much so that while entertaining writ petitions for
granting interim protection from arrest, the Court would not go on to the
extent of including the provision of anticipatory bail as a blanket provision.
Thus, such a power has to be exercised very cautiously keeping in view, at
the same time, that the provisions of Article 226 are a device to advance
justice and not to frustrate it.

# Facts of the Case

An FIR was lodged against the appellant under sections 419/420 IPC. The
appellant filed writ petition seeking quashing of FIR, deferment of arrest until
collection of credible evidence sufficient for filing charge sheet by following
amended proviso to Sections 41(1)(b) r/w Section 41A Cr.P.C. The High Court
dismissed the writ petition. The instant appeal was filed challenging the
order of the High Court.
While dismissing the appeal, Justice K.S. Radhakrishnan held that since the
provisions similar to Section 438 Cr.P.C. being absent in the State of Uttar
Pradesh, the High Court is burdened with large number of writ petitions filed
under Article 226 of the Constitution of India seeking pre-arrest bail.
Section 438 was added to the Code of Criminal Procedure in the year 1973,
in pursuance to the recommendation made by the 41st Law Commission, but
in the State of Uttar Pradesh by Section 9 Criminal Procedure (Uttar Pradesh)
Amendment Act, 1976, Section 438 was specifically omitted, the legality of
which came up for consideration before the Constitution Bench of this Court
in Kartar Singh case wherein the Court held that the deletion of the
application of Section 438 in the State of Uttar Pradesh by Section 9 of the
Amendment Act does not offend either Article 14, Article 19 or Article 21 of
the Constitution of India and the State Legislature is competent to delete
that section, which is one of the matters enumerated in the concurrent list,
and such a deletion is valid under Article 254(2) of the Constitution of India.
Therefore, as per the Constitution Bench, a claim for pre-arrest protection is
neither a statutory nor a right guaranteed under Article 14, Article 19 or
Article 21 of the Constitution of India. Therefore, there is no concept of
anticipatory bail as understood in Section 438 of the Code in the State of
Uttar Pradesh.
In this case, FIR was lodged for offences, under Sections 419 and 420 IPC
which carry a sentence of maximum of three years and seven years
respectively with or without fine. Benefit of Section 41(a) Cr.P.C. must be

available in a given case, which provides that an investigating officer shall

not arrest the accused of such offences in a routine manner and the arrest be
made, only after following the restrictions imposed under Section 41(b).
Amended provisions make it compulsory for the police to record the reasons
for making arrest as well as for not making an arrest in respect of a
cognizable offence for which the maximum sentence is upto seven years.
Section 41 and 41A make it compulsory for the police to issue a notice in all
such cases where arrest is not required to be made under Clause (b) of subsection (1) of the amended Section 41. But, all the same, unwillingness of a
person who has not been arrested to identify himself and to whom a notice
has been issued under Section 41A, could be a ground for his arrest.
Legislation has laid down various parameters, warranting arrest of a person,
which itself is a check on arbitrary or unwarranted arrest and the right to
personal liberty guaranteed under Article 21 of the Constitution of India.
There is unanimous view that in spite of the fact that Section 438 has been
specifically omitted and made inapplicable in the State of Uttar Pradesh, still
a party aggrieved can invoke the jurisdiction of the High Court under Article
226 of the Constitution of India, being extraordinary jurisdiction and the
vastness of the powers naturally impose considerable responsibility in its
application.
All the same, the High Court has got the power and sometimes duty in
appropriate cases to grant reliefs, though it is not possible to pin-point what
are the appropriate cases, which have to be left to the wisdom of the Court
exercising powers under Article 226 of the Constitution of India.
When the Court declined to decide on the rights of the parties and expressly
held that they should be investigated more properly in a civil suit, it could
not, for the purpose of facilitating the institution of such suit, issue directions
in the nature of temporary injunctions, under Article 226 of the Constitution.
The language of Article 226 does not permit such an action and once the
Court finds no merits in the challenge, writ petition will have to be dismissed
and the question of granting further relief after dismissal of the writ, does not

arise. Consequently, once a writ is dismissed, all the interim reliefs granted
would also go.
Justice A.K. Sikri while supplementing the judgment held that in the absence
of any provisions like Section 438, Cr.P.C. applicable in the State of Uttar
Pradesh, there is a tendency on the part of the accused persons, against
whom FIR is lodged and/or charge-sheet is filed in the Court to file Writ
Petition for quashing of those proceedings so that they are able to get
protection against the arrest in the interregnum which is the primary motive
for filing such petitions.
It is for this reason that invariably after the lodging of FIR, Writ Petition under
Article 226 is filed with main prayer to quash those proceedings and to claim
interim relief against pre-arrest in the meantime or till the completion of the
trial. However, the considerations which have to weigh with the High Court to
decide as to whether such proceedings are to be quashed or not are entirely
different than that of granting interim protection against the arrest.
Since the grounds on which such an FIR or charge sheet can be quashed are
limited, once the Writ Petition challenging the validity of FIR or charge-sheet
is dismissed, the grant of relief, incidental in nature, against arrest would
obviously not arise, even when a justifiable case for grant of anticipatory bail
is made out. It is for this reason, in appropriate cases, the High Court is
empowered to entertain the petition under Article 226 of the Constitution of
India where the main relief itself is against arrest.
Obviously, when provisions of Section 438 of Cr.P.C. are not available to the
accused persons in the State of Uttar Pradesh, under the normal
circumstances such an accused persons would not be entitled to claim such
a relief under Art. 226 of the Constitution. It cannot be converted into a
second window for the relief which is consciously denied statutorily making it
a case of casus omissus. At the same time, the High Court cannot be
completely denuded of its powers under Article 226 of the Constitution, to
grant such a relief in appropriate and deserving cases; albeit this power is to

be exercised with extreme caution and sparingly in those cases where arrest
of a person would lead to total miscarriage of justice.
There may be cases where pre-arrest may be entirely unwarranted and lead
to disastrous consequences. Whenever the High Court is convinced of such a
situation, it would be appropriate to grant the relief against pre-arrest in such
cases. What would be those cases will have to be left to the wisdom of the
High Court. The High Court is not bereft of its powers to grant this relief
under Art. 226 of the Constitution.
There may be imminent need to grant protection against pre-arrest. The
object of this provision is to relieve a person from being disgraced by
trumped up charges so that liberty of the subject is not put in jeopardy on
frivolous grounds at the instance of the unscrupulous or irresponsible
persons who may be in charge of the prosecution. An order of anticipatory
bail does not in any way, directly or indirectly; take away from the police
their right to investigate into charges made or to be made against the person
released on bail.
The purposes for which the provisions of anticipatory bail are made are quite
obvious. One of the purposes of the arrest is that the accused should be
available to the investigating machinery for further investigation and
questioning whenever he is required. Another purpose is that the trial should
not be jeopardized and for this purpose the restrictions on the movements of
the accused are necessary. The genuineness of the alleged need for police
custody has to be examined and it must be balanced against the duty of
courts to uphold the dignity of every man and to vigilantly guard the right to
liberty without jeopardizing the state objective of maintenance of law and
order.
The High Court would not be incorrect or acting out of jurisdiction if it
exercises its power under Art.226 to issue appropriate writ or direction or
order in exceptional cases at the behest of a person accused of an offence
triable under the Act or offence jointly triable with the offences under the
Act. Though the High Courts have very wide powers under Art.226, the very

vastness of the powers imposes on it the responsibility to use them with

circumspection and in accordance with the judicial consideration and well
established principles, so much so that while entertaining writ petitions for
granting interim protection from arrest, the Court would not go on to the
extent of including the provision of anticipatory bail as a blanket provision.
Thus, such a power has to be exercised very cautiously keeping in view, at
the same time, that the provisions of Article 226 are a devise to advance
justice and not to frustrate it.
The powers are, therefore, to be exercised to prevent miscarriage of justice
and to prevent abuse of process of law by authorities indiscriminately
making pre-arrest of the accused persons. In entertaining such a petition
under Art.226, the High Court is supposed to balance the two interests. On
the one hand, the Court is to ensure that such a power under Art.226 is not
to be exercised liberally so as to convert it into Section 438, Cr.P.C.
proceedings, keeping in mind that when this provision is specifically omitted
in the State of Uttar Pradesh, it cannot be resorted to as to back door entry
via Art.226.
On the other hand, wherever the High Court finds that in a given case if the
protection against pre-arrest is not given, it would amount to gross
miscarriage of justice and no case, at all, is made for arrest pending trial, the
High Court would be free to grant the relief in the nature of anticipatory bail
in exercise of its power under Art. 226 of the Constitution. It is again clarified
that this power has to be exercised sparingly in those cases where it is
absolutely warranted and justified.
# Case Law Reference
1.
2.
3.
4.

Kartar Singh v. State of Punjab (1994) 3 SCC 569 = 1994 (2) SCR 375
Balchand Jain v. State of M.P. (1976) 4 SCC 572 = 1977 (2) SCR 52
Smt. Amarawati & Ors. v. State of U.P. (2005) Cri.L.J. 755
Lal Kamlendra Pratap Singh v. State of Uttar Pradesh & Ors. (2009) 4
SCC 437 = 2009 (4) SCR 1027
5. Som Mittal v. State of Karnataka (2008) 3 SCC 753 & (2008) 3 SCC 574
= 2008 (3) SCR 130

6. Satya Pal v. State of U.P. 2000 Cri.L.J. 569; Ajeet Singh v. State of U.P.
2007 Cri.L.J. 170
7. Lalji Yadav & Ors. v. State of U.P. & Anr. 1998 Cri.L.J. 2366
8. Kamlesh Singh v. State of U.P. & Anr. 1997 Cri.L.J. 2705
9. Natho Mal v. State of U.P. 1994 Cri.L.J. 1919
10.
State of Orissa v. Madan Gopal Rungta AIR 1952 SC 12 = 1952
SCR 28
11.
Joginder Kumar v. State of U.P. & Ors. 1994 Cr L.J. 1981

8 FACTORS BORNE IN MIND WHILE ARGUING BAIL APPLICATION

Among other circumstances, the factors which are to be borne in mind while
considering an application for bail are:Whether there is any prima facie or reasonable ground to believe that the
accused had committed the offence ,Nature and gravity of the accusation;
Severity of the punishment in the event of conviction; Danger of the accused
absconding or fleeing, if released on bail; Character, behaviour, means,
position and standing of the accused; Likelihood of the offence being
repeated;
Reasonable

apprehension

Danger,

course,

of

of

of

the

justice

witnesses

being

being

thwarted

by

influenced;
grant

of

and
bail.

# Case Laws on Bail

In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 while
dealing with the courts role to interfere with the power of the High Court to
grant bail to the accused, the Court observed that it is to be seen that the
High Court has exercised this discretion judiciously, cautiously and strictly in
compliance with the basic principles laid down in catena of judgments on
that point.
In Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 it has
been clearly laid down that the grant of bail though involves exercise of
discretionary power of the Court, such exercise of discretion has to be made
in a judicious manner and not as a matter of course. The heinous nature of
crimes warrants more caution as there is a greater chance of rejection of bail
though, however, dependent on the factual matrix of the matter.

In the said case, reference was made to Prahlad Singh Bhati v. NCT of
Delhi, (2001) 4 SCC 280 and thereafter the court proceeded to state the
following principles:(a) While granting bail the court has to keep in mind not only the nature of
the accusations, but the severity of the punishment, if the accusation entails
a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the
apprehension of there being a threat for the complainant should also weigh
with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt
of the accused beyond reasonable doubt but there ought always to be a
prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the
element of genuineness that shall have to be considered in the matter of
grant of bail, and in the event of there being some doubt as to the
genuineness of the prosecution, in the normal course of events, the accused
is entitled to an order of bail.
It is a well settled principle of law that while dealing with an application for
grant of bail, it is the duty of the Court to take into consideration certain
factors and they basically are,
(i) the nature of accusation and the severity of punishment in cases of
conviction and the nature of supporting evidence,
(ii)

reasonable

apprehension

of

tampering

with

the

witnesses

for

apprehension of threat to the complainant, and

(iii) Prima facie satisfaction of the court in support of the charge.
# See Also : Chaman Lal v. State of U.P., (2004) 7 SCC 525
[The above referred cases are extracted from a recent decision of the
Supreme Court of India in Neeru Yadav Vs. State of U.P. dated September 29,
2015 in which the Apex Court set aside the bail order after it is cleared that
the High Court has totally ignored the criminal antecedents of the accused.]

HOW FAR PRINCIPLE OF PARITY CAN BE INVOKED IN BAIL

The word parity connotes a state when a person is placed on the same
footing as the other person. The word parity means the state or condition
being equal or on a level; equality; equality of rank or status. If bail is
granted to one accused it should also be granted to the other accused whose
case stands on identical footing.
Parity cannot be the sole ground for granting bail even at the stage of
second or third or subsequent bail applications when the bail applications of
the co-accused whose bail application had been earlier rejected are allowed
and co-accused is released on bail.
The principle of consistency or demand for parity is only a factor to be
considered and not a governing consideration. Bail is granted on the totality
of the facts and circumstances of a case. Parity cannot be a sole ground but
is one of the grounds for consideration of the question of bail.
The principle of grant of bail on parity cannot be allowed to be carried to an
absurd or illogical conclusion so as to put a Judge in tight and strait jacket to
grant bail automatically.
There may be cases where a Judge may not simply take a different view from
the Judge who granted bail earlier to a co-accused but there may be
exception where the conscience of the Judge revolts in granting bail, in such
a situation the Judge may choose to depart from the rule of parity by
recording his reasons.
Read Also : Purna Chandra Rath Vs. State of Orissa [Orissa High Court, 25
Sep 2015]
# Parity cannot be the sole ground for grant of bail.
It is one of the grounds for consideration of the question of bail. There is no
absolute hidebound rule that bail must necessarily be granted to the coaccused, where another co- accused has been granted bail.

Even at the stage of subsequent bail application when the bail application of
the co-accused whose bail had been earlier rejected is allowed and coaccused is released on bail, even then also the Court has to satisfy itself that,
on consideration of more materials placed, further developments in the
investigations or otherwise and other different considerations, there are
sufficient grounds for releasing the applicant on bail.
If on careful scrutiny in a given case, it transpires that the case of the
applicant before the Court is identically similar to the accused on facts and
circumstances who has been bailed out, then the desirability of consistency
will require that such an accused should also be released on bail.
A Judge is not bound to grant bail to an accused on the ground of parity even
where the order granting bail to an identically placed co-accused contains no
cogent reasons or if the same has been passed in flagrant violation of well
settled principle of law and ignores to take into consideration the relevant
facts essential for granting bail. Such an order can never form the basis for a
claim of parity.
It will be open to the Judge to reject the bail application of the applicant
before him as no Judge is obliged to pass orders against his conscience
merely to maintain consistency. The grant of bail is not a mechanical act.
Merely because some of the co-accused, whom similar role has been
ascribed, has been released on bail earlier and State has not moved the
higher Court against the order in question for cancellation, the power of the
Court cannot be fettered to act against conscience.
See Also : Preeti Bhatia v. Republic of India reported in (2015) 61 Orissa
Criminal Reports 131: 2015 (1) Orissa Law Reviews 662

EFFECT OF INVESTIGATION INTO A NON-COGNIZABLE OFFENCE

WITHOUT ORDER OF MAGISTRATE
Section 190 (1) Cr.P.C., which deals with cognizance of offences by the
Magistrate. The same reads as under:190. Cognizance of offence by Magistrate- (1) Subject to the provisions of
this Chapter, any Magistrate of the first class, and any Magistrate of the
second class specially empowered in this behalf under sub-section (2), may
take cognizance of any offence(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or
upon his own knowledge, that such offence has been committed
Thus, cognizance can be taken by the Magistrate upon (a) receipt of a
complaint disclosing facts constituting commission of an offence (b) upon a
police report disclosing such facts or (c) on his own knowledge.
A bare perusal of Clause (b) above, would show that the Magistrate can take
cognizance of any offence, irrespective of whether it is a cognizable offence
or a non-cognizable offence, upon a police report disclosing such facts as
would constitute commission of an offence.
The foundation of the jurisdiction of the Magistrate for taking cognizance of
an offence does not depend upon the validity or otherwise of an investigation
carried out by the police. It depends only upon the set of facts and
circumstances placed before the Court, from which the Court comes to a
conclusion that they constitute commission of an offence.
It would, therefore, not be correct to say that cognizance of an invalid police
report is prohibited necessarily in law and is, therefore, a nullity.
In H.N. Rishbud and Inder Singh Vs. The State of Delhi, AIR 1955 SC 196, the
Full Bench of the Supreme Court inter-alia observed as under:
A defect or illegality in investigation, however serious, has no direct bearing
on the competence or the procedure relating to cognizance or trial. No doubt

a police report which results from an investigation is provided in Section 190,

Cr.P.C. as the material on which cognizance is taken. But it cannot be
maintained that a valid and legal police report is the foundation of the
jurisdiction of the Court to take cognizance.
While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190(1) are
conditions requisite for taking of cognizance, it is not possible to say that
cognizance on an invalid police report is prohibited and is therefore a nullity.
Such an invalid report may still fall either under Clause (a) or (b) of Section
190(1), (whether it is the one or the other we need not pause to consider)
and in any case cognizance so taken is only in the nature of error in a
proceeding antecedent to the trial.
If, therefore, cognizance is in fact taken, on a police report vitiated by the
breach of a mandatory provision relating to investigation, there can be no
doubt that the result of the trial which follows it cannot be set aside unless
the illegality in the investigation can be shown to have brought about a
miscarriage of justice
# Therefore, even if investigation was invalid for want of order of the
Magistrate under Section 155(2) Cr.P.C., the police report based upon such
an investigation is not nullified and does not become non est merely on
account of this procedural lapse in the investigation and it is very much
permissible for the Court to take cognizance even of a non-cognizable
offence, on the basis of the evidence collected during such an investigation,
unless some prejudice is shown to have been caused to the accused for want
of requisite order under Section 155(2) of the Code.
Assuming that provisions of Section 155(2) Cr.P.C. are mandatory and the
police report based upon facts discovered during such an investigation
cannot form the basis for taking cognizance under Section 190(1)(b) Cr.P.C.,
a cognizance can still be taken, on the basis of such a report, under Section
190(1)(a) Cr.P.C.
Complaint has been defined in Section 2(d) Cr.P.C. as under:-

2(d) complaint means any allegation made orally or in writing to a

Magistrate, which a view to his taking action under this Code, that some
person, whether known or unknown, has committed an offence, but does not
include a police report.
Explanation-A report made by a police officer in a case which discloses after
investigation, the commission of a non-cognizable offence shall be deemed
to be a complaint; and the police officer by whom such report is made shall
be

deemed

to

be

the

complainant.

Definition of complaint given in the Code of Criminal Procedure, 1898, did

not include the above referred explanation. The purpose of adding the
explanation in the Code of Criminal Procedure, 1973, was to make it possible
for the Court to take cognizance of a non-cognizable offence even on the
basis of a police report, by treating it as a complaint.
If the report made by a police officer is to be treated as a complaint, it is
immaterial whether the investigation was carried out on receipt of
information disclosing commission of cognizable as well as non- cognizable
offence and during the course of investigation, commission of only a noncognizable offence was found or it was carried out on the basis of complaint
which disclosed commission only of a non-cognizable offence and was
conducted without obtaining requisite orders from the Magistrate under
Section 155(2) of the Code.
Section 190(1) Cr.P.C. does not say as to who can make complaint. The
complaint can be oral and need not necessarily be in writing. It is also not
necessary that the complaint should be made only by the victim of the
crime. Since the Magistrate takes cognizance of the offence, the proceedings
on taking cognizance would be initiated even though the persons who had
committed the offence were not known at that time.
The complainant can also be a public servant. The police officer, who is a
public servant, is competent to make a complaint and there is nothing in law
which prevents a Court from taking cognizance on a complaint made by a
police officer, if it discloses the commission of an offence.

There is no provision in the Code of Criminal Procedure, which prevents a

Magistrate from taking an invalid police report into consideration and taking
cognizance on the basis of the facts disclosed in such a report.
In fact, even before enactment of the Code of Criminal Procedure, 1973, it
was held in a number of decisions including A. Kanniah and Ors. Vs. State,
AIR 1967 Madras 390, Kantilal Takhatmal Jain and Anr. Vs. State of
Maharastra, AIR 1970 Bombay 225 and Public Prosecutor Vs. A.V. Ramiah
1958 Cr.L.J. 737, that where a police officer carries investigation into a noncognizable offence without the order of the Magistrate and files a charge
sheet, such a charge sheet can be treated as a complaint. The judicial
pronouncement has been given statutory recognition by adding the
explanation to the definition of complaint in the Code of Criminal Procedure,
1973.
Moreover, the explanation attached to this Section clearly pre- supposes a
situation that where initially a charge sheet has been filed for both a
cognizable as also a non-cognizable offence and thereafter the proceedings
in the cognizable offence are dropped, the same shall be deemed to be
treated as a complaint and the police officer by whom such a report is made
shall be deemed to be the complainant.
Proceedings for the cognizable offence having been dropped/discharged, the
charge sheet has to be treated as a complaint under Section 2 (d) Cr.P.C. and
the police officer who has filed the charge sheet has to be treated as the
complainant. It was on this complaint that cognizance under Section 323 IPC
had been taken which the Magistrate was empowered to do so under Section
190 (1) (a) Cr.PC.
Sub-clause (4) of Section 155 Cr.P.C. inter alia reads as follows:
(4) Where a case relates to two or more offences of which at least one is
cognizable, the case shall be deemed to be a cognizable, notwithstanding
that the other offences are non-cognizable. The bar of Section 155 (2) of the
Code

is

not

attracted.

Under Section 460 Cr.P.C., there are certain category of irregularities which

do not vitiate the proceedings, i.e., those proceedings which are erroneously
done but in good faith. Such proceedings are not liable to be set aside on the
ground that the Magistrate was not empowered to do so and clause (e) of
Section 460 Cr.P.C. includes the power as under: (e) To take cognizance of an offence under clause (a) or clause (b) of sub
section

(1)

of

Section

190.

The cognizance on a complaint filed by a public servant, in discharge of his

official duties can be taken without examining him and other witnesses.
[The above discussion on Investigation is extracted from a recent judgment
of the Delhi High Court in Vijay Kumar Wadhawan Vs. State Govt of Nct of
Delhi dated 1 October, 2015 authored by Justice Suresh Kait]

WHETHER CR.P.C. IS APPLICABLE FOR INVESTIGATING MONEY

LAUNDERING ?
The Madhya Pradesh High Court Indore Bench on October 20, 2015 in an
Order titled Vijay Madanlal Choudhary Vs. Union of India opined that the
procedure which has been prescribed under the Cr.P.C. is required to be
followed while investigating the offence under Prevention of Money
Laundering Act , 2002 (PMLA).
# Prevention of Money Laundering Act, 2002
Justice Prakash Shrivastava also observed that Section 4 of the Money
Laundering Act read with Second Schedule of the Cr.P.C., makes it clear that
the offences under PMLA are cognizable offences.
The important legal aspects of the Prevention of Money Laundering Act ,
2002 described in the Order are given below:
# If the offence under PMLA is cognizable offence or it is non-cognizable
offence?
In terms of Section 2(l) of the Cr.P.C., non-cognizable offence is one in which
a police officer has no authority to arrest without warrant, whereas in terms
of Section 2(c) of the Cr.P.C. cognizable offence is one in which a police
officer may, in accordance with the First Schedule or under any other law for
the time being in force, arrest without warrant.
In terms of Section 4 of PMLA offence of money laundering is punishable with
rigorous imprisonment for a term not less than 3 years extending to 7 years
and with fine.
The Second Schedule to the Cr.P.C. relates to classification of offences under
other laws and in terms of the Second Schedule of the Cr.P.C. an offence
which is punishable with imprisonment for 3 years and upward but not more
than 7 years, is a cognizable and non-bailable offence.
Section 45 of the Money Laundering Act also provides that offences under
the PMLA are cognizable and non-bailable. So far as the second proviso to
sub-section 1 of Section 45 of Money Laundering Act is concerned, that

relates to the taking cognizance of offence by the Special Court and from
that it alone cannot be inferred that the offence is not cognizable.
Considering the provisions of Section 4 of Money Laundering Act read with
Part-II of First Schedule to Cr.P.C., the Court concluded that the offence under
PMLA is cognizable.
# Whether Cr.P.C. is required to be followed while investigating the offence
under PMLA ?
Whether the procedure prescribed in Cr.P.C. for investigation of cognizable
offence i.e. Section 154 of the Cr.P.C. relating to registering the FIR,Section
157 & 167 relating to investigation, Section 172 of the Cr.P.C. relating to
maintaining the case diary is required to be followed while investigating the
offence under the Prevention of Money Laundering Act, 2002?
Section 71 of Money Laundering Act gives overriding effect to the Act and
provides as under :71. Act to have overriding effect.-The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in any other law
for

the

time

being

in

force.

Section 65 of the Money Laundering Act relates to applicability of the Cr.P.C.

and provides as under :65. Code of Criminal Procedure, 1973 to apply.- The provisions of the Code
of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not
inconsistent with the provisions of this Act, to arrest, search and seizure,
attachment,

confiscation,

proceedings

investigation,
under

prosecution

and

all

this

other
Act.

Since Money Laundering Act is a special act and the provisions of this Act
have been given overriding effect, therefore, they will prevail in case if there
is any inconsistency with the general Act. In terms of Section 65 of Money
Laundering Act, the provisions of PMLA relating to arrest, search and seizure,
attachment,

confiscation,

investigation,

prosecution

and

all

other

proceedings under Money Laundering Act have the overriding effect and the

provisions of the Cr.P.C. not inconsistent with the provisions of Money

Laundering Act in this regard, only are made applicable.
So far as the search and seizure is concerned, Section 16 and 17 starting
with the non-obstante clause provide a detailed power of survey and
procedure of search & seizure.
Section 19 of Money Laundering Act provides for power to arrest.
In respect of attachment, Section 5 of Money Laundering Act provides for
attachment of property involved in money laundering and for confiscation
Section 8(5) of Money Laundering Act gives the power.
Section 45 of Money Laundering Act provides for the prosecution by Special
Court on complaint in writing made by the specified officer.
In terms of Section 46 of the Money Laundering Act, the provisions of Cr.P.C.
are applicable in the proceedings before the Special Court.
So far as the issue of investigation is concerned, the Money Laundering Act
does not contain any provision parallel to Section 154 of the Cr.P.C. for
registration of FIR, Section 157 of the Cr.P.C. relating to sending the report to
the Magistrate, Section 167 Cr.P.C. relating to the procedure when
investigation cannot be completed within 24 hours and Section 172 of the
Cr.P.C. relating to maintaining the case diary.
If the offence is registered against a person under the Money Laundering Act
then the investigation is to be carried out by following some reasonable
procedure. Such a course is also necessary keeping in view the issue of
personal liberty and fair and proper investigation.
Under the provisions of Money Laundering Act, the investigating officers are
not the police officers but since for investigation of offence Provisions of
Cr.P.C. are held to be applicable, therefore, they are required to follow the
same.
Keeping in view the provisions of Section 65 of Money Laundering Act and
also the fact that there is no procedure prescribed in Money Laundering Act
for investigation of the offence, the procedure which has been prescribed

under the Cr.P.C. is required to be followed while investigating the offence

under Money Laundering Act.
# Whether the Court of Additional Sessions Judge is the Special Court within
the meaning of Section 43 of PMLA?
Section 43 of Money Laundering Act empowers Central Government to
designate one or more courts of Sessions as Special Court or special courts
for notified areas and places for trial of the offences punishable under
Section 4.
The Central Government vide notification dated 1.6.2006 issued under
Section 43(1) of the Money Laundering Act has designated the Courts of
Sessions at Gwalior, Indore, Bhopal, Sagar and Jabalpur as Special Courts for
trial of offences punishalbe under Section 4 of the Act.
Exercising the power under Section 43 of Money Laundering Act, Central
Government vide Notification dated 1.6.2006 has designated the Sessions
Court at Gwalior, Indore, Bhopal, Sagar and Jabalpur as Special Court,
therefore, the Additional Sessions Judge who in terms of Section 9 of Cr.P.C. is
covered within the meaning of Court of Sessions, is empowered to try the
offences under Section 4 of Money Laundering Act being the designated
Court.
The Central Government has not confined the designation of the Special
Court to Sessions Judge only but it has notified Sessions Court as
designated court, therefore, the contention of the petitioner that the
Additional Sessions Judge is not the designated court, cannot be accepted.
# Power of arrest under PMLA
Section 19 of Money Laundering Act deals with the power of arrest under
Money Laundering Act by the specified officer and provides as under :19. Power to arrest.-(1) If the Director, Dy. Director, Assistant Director, or
any other officer authorized in this behalf by the Central Government by
general or special order, has on the basis of material in his possession reason
to believe (the reason for such belief to be recorded in writing) that any
person has been guilty of an offence punishable under this Act, he may

arrest such person and shall, as soon as may be, inform him of the grounds
for such arrest.
(2) The Director, Deputy Director, Assistant Director or any other officer shall,
immediately after arrest of such person under sub-section(1), forward a copy
of the order, along with the material in his possession, referred to in that subsection, to the Adjudicating Authority, in a sealed envelope, in the matter, as
may be prescribed and such Adjudicating Authority shall keep such order and
material for such period, as may be prescribed.
(3) Every person arrested under sub-section (1) shall within twenty-four
hours, be taken to a Judicial Magistrate or a Metropolitan Magistrate, as the
case may be, having jurisdiction:
Provided that the period of twenty-four hours shall exclude the time
necessary for the journey from the place of arrest to the Magistrates Court.
Under sub-section 1 of Section 19 the specified officers on the basis of the
material in possession, having reason to believe which is to be recorded in
writing that the person has been guilty of offence under the Act, has power
to arrest such person and he is required to inform the grounds for such arrest
at the earliest and in terms of sub-section 3 of Section 19, the arrested
person is required to be produced to the jurisdictional judicial magistrate or
metropolitan magistrate within 24 hours excluding the journey time from the
place of arrest to the Magistrates Court.
Exercising the rule making power under Section 73, Central Government has
framed the rules namely THE PREVENTION OF MONEY-LAUNDERING (THE
FORMS AND THE MANNER OF FORWARDING A COPY OF ORDER OF ARREST
OF A PERSON ALONG WITH THE MATERIAL TO THE ADJUDICATING AUTHORITY
AND ITS PERIOD OF RETENTION) RULES, 2005 which required the arresting
officer to forward a copy of order of arrest and the material to the
adjudicating officer in sealed cover.
By virtue of the aforesaid provisions, the specified officers under Money
Laundering Act are empowered to arrest a person by following the prescribed

procedure under Section 19 of Money Laundering Act read with the rules
mentioned above.
So far as issue of grant of bail is concerned, Section 45(i) of Money
Laundering Act which again starts with the non-obstante clause, relates to
the power to grant bail and reads as under :45. Offences to be cognizable and non-bailable.-(1) Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no
person accused of an offence punishable for a term of imprisonment of more
than three years under Part A of the Schedule shall be released on bail or on
his own bond unless(i) the Public Prosecutor has been given an opportunity to oppose the
application for such release; and
(ii) Where the Public Prosecutor opposes the application, the court is satisfied
that there are reasonable grounds for believing that he is not guilty of such
offence and that he is not likely to commit any offence while on bail;
Provided that a person who is under the age of sixteen years or is a woman
or is sick or infirm, may be released on bail, if the special court so directs:
Provided further that the Special Court shall not take cognizance of any
offence punishable under section 4 except upon a complaint in writing made
by(i) the Director; or
(ii) any officer of the Central Government or State Government authorised in
writing in this behalf by the Central Government by a general or a special
order made in this behalf by that Government.
In the present case nothing has been pointed out to show that the
respondents have acted in contravention of the aforesaid provision relating
to arrest as contained in Section 19 or the bail has been rejected in violation
of Section 45 of the Act. Hence, it cannot be held that the petitioner is in
illegal custody. The Special Court, which has been found to be the competent
Court, has already rejected the application for bail, hence no ground is made
out for issuing the writ of Habeas Corpus.

For the reasons mentioned above, the Court ruled that no case is made out
for quashing the offence which has been registered against the petitioner
under Money Laundering Act and so far as the issue of investigation is
concerned, the parties are required to take appropriate steps in terms of
Paragraph 22 & 23 of the judgment.

WHETHER SEC. 279, 338 & 304A IPC WILL LIE AGAINST A CYCLIST ?
The Kerala High Court on 28 September 2015 in an Order titled Jamaludheen
C. G. Vs. Station House Officer, Minicoy Police Station, Lakshadweep held
that if proved, the offences under Sections 279, 338 and 304A IPC will lie
even against a cyclist.
# Cyclist
Petitioner is the accused in CC No.13/2014 of the Judicial First Class
Magistrates Court, Androth, which has arisen from Crime No.6/2006 of
Minicoy Police Station. Originally, the crime was registered for the offences
punishable under Sections 279 and 338 IPC. Later, the rider of the motor bike
died while undergoing treatment at the hospital in connection with the
accident in question and consequently, the offence under Section 304A IPC is
also incorporated.
According to the petitioner, he was only a cyclist, who was pedalling a
bicycle, which allegedly hit on the motor bike and, therefore, he can only be
termed as a pedestrian on the road. The further argument is that as the
cycle was not automatically propelled, offences under Sections 279, 338 and
304A IPC will not lie.
The allegation against the petitioner is that all of a sudden, he came by
pedalling a bicycle from the pocket road to the main road and caused the
same to hit on the motor bike that was being ridden by the deceased
through the main road. Consequently, he suffered extensive injuries and he
died.
It cannot be said that in such a case, the offences under Sections 279, 338
and 304A IPC will not lie. If a pedestrian is causing such an accident, the
offence under Section 279 IPC will not lie. At the same time, in such case, the
other

two

offences

will

lie.

Justice B. Kemal Pasha said.

Matters being so, this Crl.M.C. is too premature and the same is only to be
dismissed and, the Court do so. In the result, this Crl.M.C. is dismissed.

Penal Code, 1860 Ss. 302/34 or Ss. 304 Pt. I/34 and Ss. 307/34 & S. 452
[S. 300 Thirdly] Culpable homicide or murder:
Death occurred 62 days after occurrence and proximate cause of death was
septicaemia due to injuries caused in the incident. As per evidence of doctor
who examined deceased in hospital, deceased was discharged from hospital
in good condition and he survived for 62 days. No opinion was elicited from
the doctor who examined deceased in hospital or the doctor who conducted
post-mortem that head injury sustained by deceased was sufficient in
ordinary course of nature to cause death. Having regard to fact that
deceased survived for 62 days and that his condition was stable when he
was discharged from hospital, court cannot draw inference that intended
injury caused was sufficient in ordinary course of nature to cause death so as
to attract S. 300 Thirdly IPC. Therefore, conviction of appellant, altered from
S. 302 to S. 304 Pt. I. [Sanjay v. State of U.P., (2016) 3 SCC 62]
Evidence Act, 1872 S. 11 Plea of alibi Nature of When to be
proved:
Word alibi means elsewhere. Plea of alibi is not one of the General
Exceptions contained in Ch. IV IPC. It is rule of evidence recognised under S.
11, Evidence Act. However, plea of alibi taken by defence is required to be
proved only after prosecution has proved its case against accused. [Darshan
Singh v. State of Punjab, (2016) 3 SCC 37]
Criminal Trial Investigation Fresh investigation/Reinvestigation
or further investigation:
The extraordinary power of constitutional courts in directing CBI to conduct
investigation in a case must be exercised sparingly, cautiously and in
exceptional situations, when it is necessary to provide credibility and instil
confidence in investigation or where incident may have national or
international ramifications or where such order may be necessary for doing

complete

justice and

for

enforcing

fundamental

rights.

Each

of

the

determinants is complete and independent by itself to justify exercise of such

power and is not interdependent on each other. In facts and circumstances of
instant case, CBI unhesitatingly entrusted with the task of undertaking a de
novo investigation in the incident of brutal assassination of appellants
husband who was a sitting MLA, in broad daylight under public gaze, by rival
candidate. [Pooja Pal v. Union of India, (2016) 3 SCC 135]

Criminal Procedure Code, 1973 Ss. 154 and 173(8) and 300 FIR
Second FIR Permissibility of:
There can be no second FIR in the event of any further information being
received by investigating agency in respect of the same offence or same
occurrence, or, same transaction giving rise to one or more offences for
which charge-sheet has already been filed by investigating agency. Recourse
available with investigating agency in said situation is to conduct further
investigation, normally with leave of court as provided under S. 173(8) CrPC.
[Awadesh Kumar Jha V. State of Bihar, (2016) 3 SCC 8]
Amended of criminal complaint allowed- CrPC 1973 sec 200 there is no
provision to amend criminal complaint but amendment can b allowed if its
sought before taking cognizance of complaint by magistrate--2015 AIR (SC)
2757

IMPORTANT SC DECISIONS ON COGNIZANCE OF OFFENCE

# 1. S.R. Sukumar Vs. S. Sunaad Raghuram, (2015) 42 SCD 746
Cognizance of offence means taking notice of the accusations and applying
the judicial mind to the contents of the complaint and the material filed
therewith. It is neither practicable nor desirable to define as to what is meant
by taking cognizance. Whether the Magistrate has taken cognizance of the
offence or not will depend upon facts and circumstances of the particular
case.
# 2. Narsingh Das Tapadia vs. Goverdhan Das Partani, AIR 2000 SC
2946
It was held that the mere presentation of a complaint cannot be held to
mean that the Magistrate has taken the cognizance.
# 3. Subramanian Swamy vs. Manmohan Singh, (2012) 3 SCC 64
Apex Court explained the meaning of the word cognizance holding that
In legal parlance cognizance is taking judicial notice by the court of law,
possessing jurisdiction, on a cause or matter presented before it so as to
decide

whether

there

is

any

basis

for

initiating

proceedings

and

determination of the cause or matter judicially.

# 4. S.K. Sinha, Chief Enforcement Officer vs. Videocon International
Ltd., (2008) 2 SCC 492- Considering the scope of expression cognizance
it was held as under:- The expression cognizance has not been defined in
the Code. But the word (cognizance) is of indefinite import. It has no esoteric
or mystic significance in criminal law. It merely means become aware of
and when used with reference to a court or a Judge, it connotes to take
notice of judicially. It indicates the point when a court or a Magistrate takes
judicial notice of an offence with a view to initiating proceedings in respect of
such offence said to have been committed by someone.
# 5. R.R. Chari vs. State of Uttar Pradesh, 1951 SCR 312

A three Judge Bench of Supreme Court while considering what the phrase
taking cognizance mean, approved the decision of Calcutta High Court in
Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Abani
Kumar Banerjee, AIR 1950 Cal. 437 wherein it was observed that:
What is taking cognizance has not been defined in the Criminal
Procedure Code and I have no desire now to attempt to define it. It seems to
me clear, however, that before it can be said that any Magistrate has taken
cognizance of any offence under S.190(1)(a), Criminal P.C., he must not only
have applied his mind to the contents of the petition, but he must have done
so for the purpose of proceeding in a particular way as indicated in the
subsequent provisions of this Chapter, proceeding under S. 200, and
thereafter sending it for enquiry and report under S. 202. When the
Magistrate applies his mind not for the purpose of proceeding under the
subsequent sections of this Chapter, but for taking action of some other kind,
e.g., ordering investigation under Section 156(3), or issuing asearch warrant
for the purpose of the investigation, he cannot be said to have taken
cognizance of the offence
# 6. Jamuna Singh vs. Bhadai Sah, (1964) 5 SCR 37
When on a petition of complaint being filed before him a Magistrate applies
his mind for proceeding under the various provisions of Chapter XVI of the
Code of Criminal Procedure, he must be held to have taken cognizance of the
offences mentioned in the complaint. When however he applies his mind not
for such purpose but for purposes of ordering investigation under s. 156(3) or
issues a search warrant for the purpose of investigation he cannot be said to
have taken cognizance of any offence.
# 7. Nirmaljit Singh Hoon vs. State of West Bengal, (1973) 3 SCC 753
Under s. 202 Cr.P.C., Magistrate, on receipt of a complaint, may postpone
the issue of process and either inquire into the case himself or direct on
inquiry to be made by a Magistrate subordinate to him or by a police officer
for ascertaining. its truth or falsehood. The inquiry by the Magistrate
envisaged at this stage is for ascertaining the truth or falsehood of the

complaint, that is, for ascertaining whether there is evidence in support of

the complaint so as to justify the issue of process. Unless, therefore, the
Magistrate finds that the evidence led before him is self-contradictory, or
intrinsically untrustworthy, process cannot be refused if that evidence makes
out a prima facie case. In a revision against such refusal, the High Court also
has to apply the same test.
# 8. Devarapally Lakshminarayana Reddy vs. V. Narayana Reddy, AIR
1976 SC 1672
Elaborating upon the words expression taking cognizance of an offence by
a Magistrate within the contemplation of Section 190 Cr.P.C., the Court held
as under:But from the scheme of the Code, the content and marginal heading of
Section 190 and the caption of Chapter XIV under which Sections 190 to 199
occur, it is clear that a case can be said to be instituted in a court only when
the court takes cognizance of the offence alleged therein. The ways in which
such cognizance can be taken are set out in clauses (a), (b) and (c) of
Section 190(1). Whether the Magistrate has or has not taken cognizance of
the offence will depend on the circumstances of the particular case including
the mode in which the case is sought to be instituted, and the nature of the
preliminary action, if any, taken by the Magistrate. Broadly speaking, when
on receiving a complaint, the Magistrate applies his mind for the purposes of
proceeding under Section 200 and the succeeding sections in Chapter XV to
the Code of 1973, he is said to have taken cognizance of the offence within
the meaning to Section 190(1)(a). It, instead of proceeding under Chapter
XV, he has, in the judicial exercise of his discretion, taken action of some
other kind, such as issuing a search warrant for the purpose of investigation,
or ordering investigation by the police under Section 156(3), he cannot be
said to have taken cognizance of any offence.
# 9. CREF Finance Ltd. vs. Shree Shanthi Homes (P) Ltd., (2005) 7
SCC 467

Cognizance is taken of the offence and not of the offender and, therefore,
once the court on perusal of the complaint is satisfied that the complaint
discloses the commission of an offence and there is no reason to reject the
complaint at that stage, and proceeds further in the matter, it must be held
to have taken cognizance of the offence. One should not confuse taking of
cognizance with issuance of process. Cognizance is taken at the initial stage
when the Magistrate peruses the complaint with a view to ascertain whether
the commission of any offence is disclosed. The issuance of process is at a
later stage when after considering the material placed before it, the court
decides to proceed against the offenders against whom a prima facie case is
made out. It is possible that a complaint may be filed against several
persons, but the Magistrate may choose to issue process only against some
of the accused. It may also be that after taking cognizance and examining
the complainant on oath, the court may come to the conclusion that no case
is made out for issuance of process and it may reject the complaint.
A perusal of the above decision would show that Apex Court has emphasized
upon the satisfaction of the Court to the commission of offence as a
condition precedent for taking cognizance of offence. However, in the facts
of the said case, Court was of the view that the cognizance was taken by the
Magistrate once the Magistrate applied his mind on the contents of the
complaint and on the satisfaction that prima facie case existed.

EXEMPTION FROM PERSONAL APPEARANCE

SUPREME COURT OF INDIA
Before :- D.K. Jain, Asok Kumar Ganguly and H.L. Dattu, JJ.
Criminal Appeal No. 1854 of 2008. D/d. 14.1.2011.
TGN Kumar Appellant
Versus
State of Kerala & Ors. - Respondents
A. Criminal Procedure Code, Section 205 - Exemption from personal
appearance of accused - Section 205 of Criminal Procedure Code confers a
discretion on the court to exempt an accused from personal appearance till
such time his appearance is considered by the Court to be not necessary
during the trial - While considering an application under Section 205 of the
Code, the Magistrate has to be bear in mind the nature of the case as also
the conduct of the person summoned - He shall examine whether any useful
purpose would be served by requiring the personal attendance of the
accused or whether the progress of the trial is likely to be hampered on
account of his absence.
Further held :(1). Satisfication whether or not accused deserves to be exempted from
personal attendance has to be of the Magistrate, who is the master of the
court in so far as the progress of the trial is concerned and none else.
(2). Order of the Magistrate should be such which does not result in
unnecessary harassment to the accused and at the same time does not
cause any prejudice to the complainant.
(3). High Court cannot lay down directions for the exercise of discretion by
the Magistrate under Section 205 by High Court - 2001(4) RCR (Crl.) 137 2005(2) RCR (Crl.) 860 : 2005(2) Apex Criminal 98 relied.[Paras 7, 8 and 18]
B. Negotiable Instruments Act , Section 138- Criminal Procedure Code,
Section 205 - Complaint under Section 138 of Negotiable Instuments Act Summoning order issued by Magistrate - Accused approached High Court for
exemption from personal appearance - High Court granted exemption in
exercise of power under Section 482 of Criminal Procedure Code - Order of
High Court set aside - It was the discretion of Magistrate whether to grant
exemption or not.[Para 7]
C. Negotiable Instruments Act , Section 138 - Criminal Procedure Code,
Section 205 - Criminal Personal appearance - Complaint under Section 138 of

Negotiable Instruments Act - Summoning order issued to accused by

Magistrate - On being summoned by the Magistrate, the accused preferred a
petition before the High Court under Section 482 of Criminal Procedure Code
praying for dispensing with her personal appearance before Magistrate - High
Court granted exemption and in exercise of power under Section 482
Criminal Procedure Code issued rules of guidance to be followed by Criminal
Courts below to deal trials under Section 138 - Rules of guidance set aside Held :(1). Satisfication whether or not an accused deserves to be exempted from
personal attendance has to be of the Magistrate, who is the master of the
court in so far as the progress of the trial is concerned and none else.
(2). High Court cannot lay down general directions for the exercise of
discretion by the Magistrate under Section 205 - 2009(2) RCR (Crl.) 803 :
2009(3) RAJ 230 relied.[Paras 7, 8, 9, 17 and 18]
D. Criminal Procedure Code, Section 313 - Criminal Procedure Code, Section
205 - Examination of accused under Section 313 Criminal Procedure Code In a summons case, when the personal appearance of the accused has been
dispensed with under Section 205 of the Code, a discretion is vested in the
Magistrate to dispense with the rigour of personal examination of the
accused under Section 313 of the Codes - 2000(4) RCR (Crl.) 542 relied.
[Paras 13 and 14]

What is the meaning of "Complaint" ? What is the procedure

prescribed by Code, when a complaint is filed in Court?
Section 2(d) of Code defines the term "Complaint" as "Complaint means any
allegation made orally or in writing to a Magistrate with a view to his taking
action under this Code, that some person known or unknown has committed
an offence but does not include police report."
Explanation : A Report made by a Police Officer in a case which discloses,
after investigation the commission of a non-cognizable offence shall be
deemed to be complaint and police officer by whom such report is made
shall be deemed to be a complainant.
In Bhimappa Basappa v. Laxman Shivarayappa, AIR 1970 SC 1153, it was
observed that the word `complaint' has wide meaning since it includes even
an oral allegation. It may therefore be assumed that no form is prescribed
which the complaint must take. It may only be said that there must be an
allegation which prima facie discloses the commission of offence with the
necessary facts for Magistrate to take action.
So following are essentials for complaint within the meaning of Section 2(d)
of Code:
(i) Allegation of commission of an offence.
(ii) Allegation may be made orally or written.
(iii) Allegation made to a Magistrate.
(iv) Allegation made with a view of his taking action under the Cr.P.C.
(v) Allegation may be against a person known or unknown.
(vi) It must not be a police. But report by a police officer, which after
investigation discloses commission of non-cognizable offence shall be
deemed

to

be

complaint.

PROCEDURE WHEN COMPLAINT IS FILED : Sections 200 to 204 of Code of

Criminal Procedure lays down procedure to be adopted by Magistrate on
receiving a complaint.

According to Section 200 the procedure to be adopted by a Magistrate on

receiving

complaint

is

Examination of complainant. A Magistrate taking cognizance of an offence on

complaint shall examine upon oath the complainant and the witnesses
present, if any, the substance of such examination shall be reduced to
writing and shall be signed by the complainant and the witnesses, and also
by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need
not examine the complainant and the witnesses
(a) if a public servant acting or purporting to act in the discharge of his
official duties or the Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another
Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another
Magistrate under Section 192 after examining the complainant and the
witnesses, the latter Magistrate need not examine them.
Where Magistrate not competent to take cognizance of the case. Section 201
provides that if the complaint is made to a Magistrate who is not competent
to

take

cognizance

of

the

offence,

he

shall

(a) if the complaint is in writing, return it for presentation to the proper court
with

an

endorsement

to

that

effect;

(b) if the complaint is not in writing, direct the complainant to appear before
the proper Court.
In Tula Ram v. Kishore Singh AIR 1977 SC 2401, it was held that "After a
complaint being filed Magistrate has two alternatives (a) Either to examine
the complainant and to proceed under Chapter XV of Code or (b) Direct the
Police to Investigate under Section 156(3) of Code, without himself taking
cognizance.
(a) Where Magistrate chooses to take cognizance he has to comply with
requirement of Section 200 and record the evidence of complainant and his
witnesses and then either straightaway issue the process against accused

under Section 204 or he can postpone the issue of process and direct an
enquiry by any other person or an investigation by police under Section 202.
Magistrate after considering the statement of complainant and the witness or
result of enquiry or investigation if not satisfied that there are sufficient
grounds, he can dismiss the complaint.
(b) Where Magistrate does not take cognizance of matter, he can refer the
complaint for Police Investigation under section 156(3) and receives report of
police, then either discharge the accused or straightaway issue the process
Section 202(1) of Code says "Any Magistrate on receipt of a complaint of an
offence of which he is authorised to take cognizance or which has been made
over to him under Section 192, if thinks fit, postpone the issue of process
against the accused, and either inquire into the case himself or an
investigation to be made by police officer or by such other person as he
thinks fit for the purpose of deciding whether there is sufficient ground for
proceeding.
According to Section 203, if after considering the statements on oath, of any
complainant and of the witnesses and the result of the enquiry or
investigation, if any, under Section 202, the Magistrate is of opinion that
there is no sufficient ground for proceeding, he shall dismiss the complaint,
and in every such case he shall briefly record his reasons for so doing.
In Debender Nath v. State of W.B. AIR 1972 SC 1607 Supreme Court held
order of dismissal of a complaint under Section 203 of Code has to be made
on

judicially

sound

grounds

Section 204 of Code then provides for issuance of process against accused,
when taking cognizance of the offence, is of opinion that there is sufficient
ground for proceeding.
In Pepsi Food Ltd. and others v. Special Judicial Magistrate and Other 1998
Supreme Court Cases (Cri) 1400 Supreme Court held "Summoning of an
accused in a criminal case is a serious matter. Criminal law cannot be set
into motion as a matter of course. The order of Magistrate must reflect that
he has applied his mind to facts of case and the law applicable thereto."

CAN AN ACCUSED MAY BE CONVICTED OF AN OFFENCE WHICH IS NOT SPECIFIED IN THE

CHARGE SHEET ON WHICH HE HAS BEEN TRIED ?

The fundamental principle underlying Sections 218 to 221 is that an accused

person can be convicted of particular offence only if he was charged with the
same. Exceptions to this principle are laid down by Sub-section (2) to Section
221 and Section 222 of Code.
Section 221 of Code says : (1) If a single act or series of acts is of such a
nature that it is doubtful which of several offences the facts which can be
proved will constitute, the accused may be charged with having committed
all or any of such offences, and any number of such charges may be tried at
once; or he may be charged in the alternative with having committed some
one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears
in evidence that he committed a different offence for which he might have
been charged under the provisions of Sub-section (1), he may be convicted
of the offence which he is shown to have committed, although he was not
charged with it.
So provisions of Section 221 are clear enough to enable the court to convict
an accused person even of an offence with which he had not been charged, if
the court is of opinion that provision of Sub-section (1) apply to case, that is
to say if a single act is or a series of acts are of such a nature that it is
doubtful which of several offences, the facts of which can be proved, will
constitute, then accused can be charged with having committed all or any of
such offences and any number of such charges can be tried at once and by
virtue of provisions of Sub-section (2), the accused though charged with one
offence and it appears in evidence that he committed a different offence for
which, he might not have been charged, he can be convicted of the offence
which is shown to have committed.
In Nanak Chand v. State of Punjab, AIR 1955 SC 274, : Supreme Court held
that Section 221 is entirely dependent on the provisions of Sub-section (1) of

Section 221. The provisions of Sub-section (1) can apply only in cases where
there is no doubt about the facts which can be proved but a doubt arises as
to which of several offences have been committed on the proved facts in
which case any number of charges can be framed. In these circumstances if
there had been an omission to frame a charge, then under Sub-section (2)
the conviction could be arrived at on the evidence although no charge had
been framed.
Then Section 222 of Code says: When a person charged with an offence
consisting of several particulars, a combination of some only of which
constitutes a complete minor offence, and such combination is proved, but
the remaining particulars are not proved he may be convicted of the minor
offence, though he was not charged with it. [Section 222(1)].
When a person is charged with an offence and the facts are proved which
reduce it to minor offence, he may be convicted of the minor offence, though
he was not charged with it. [Section 222(2)].
When a person is charged with an offence, he may be convicted of an
attempt to commit such offence, although the attempt is not separately
charged. [Section 222(3)].
Nothing in this Section shall be deemed to authorise a conviction of any
minor offence where the conditions requisite for the initiation of proceedings
in respect of that minor offence have not been satisfied.[Section 222 (4)].

CASE DIARY; IMPORTANCE & RELEVANCE

Contents

Case Law Reference on Case Diary

1. Bhagwant Singh Vs. Commr. of Police (1983) 3 SCC 344

2. Queen Empress Vs. Mannu ILR (1897) 19 All 390

3. Khatri Vs. State of Bihar (1981) 2 SCC 493

4. Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1

5. C. Muniappan Vs. State of Tamil Nadu (2010) 9 SCC 567

6. Ganga Singh Vs. State of M.P., (2013) 7 SCC 278

7. Surjit Sarkar Vs. State of West Bengal, (2013) 2 SCC 146

Section 172 Cr.P.C. mandates writing and maintenance of the case

diary.

Sub-section (1) stipulates that police officer making investigation shall,

on each day, enter proceedings relating to investigation in the diary
including the time at which he began and closed his investigation, the
place or places visited by him and a statement of circumstances
ascertained during his investigation, i.e. record of the proceedings.

There were judgments that hold that `record of proceedings would not
include statements recorded under Section 161 Cr.P.C., for the reason
that the said statements are not protected, whereas the case diaries
are made available to the accused only when pre-conditions are
satisfied. (See page 813 of Sarkars Code of Criminal Procedure, Tenth
edition, 2012).

Amendment made by the Code of Criminal Procedure (Amendment)

Act, 2008, w.e.f. 31 st December, 2009, inserting Sub-section (1A),
therefore, assumes significance.

The Sub-section mandates that statement of witnesses recorded during

the course of investigation under Section 161 Cr.P.C. shall be inserted

in the case diary. The said Sub-section has to be read along with Subsection (1B) which mandates that the case diary would be a volume
and duly paginated.

The phrase, shall be a volume and duly paginated ensures sanctity

and purity of the case diary. The word, inserted used in Sub-section
(1A) does not refer to physical insertion by placing copies of the
statements recorded under Section 161 Cr.P.C. in the case diary.

The expression inserted mandates incorporation of the statement

itself in the case diary, rather than a mere mention that a statement
under Section 161 Cr.P.C. of a particular person has been recorded.

What the person had stated and alluded to in his statement under
Section 161 Cr.P.C. must be inserted and recorded in the case diary
itself.

The case diary has to be a volume and paginated, and cannot be a

loose- leaf diary from which papers can be removed, changed or
interpolated. This is the unambiguous legislative mandate of Subsection (1B).

The aforesaid legislative amendments, w.e.f. 31 December, 2009,

reveal the importance and relevance of the case diary as they assure
solemnity and inviolability of the record as to the manner in which the
investigation was conducted.

The court can ascertain that the case as projected is true and false or
misleading

statements

are

not

made.

It

161

Cr.P.C.

are

reflects

the

line

of

investigation.

Statements

under

Section

not

evidence.

The

depositions of witnesses on oath in the court are evidence under the

Evidence Act.

Under Section 172(2) of the Cr.P.C., a criminal court is empowered to

send for the case diary and the diary can be used by the court not as
evidence in the case but to aid it in such inquiry or trial.

Under sub-section (3) to Section 172, neither the accused nor his
agents are entitled to call for diaries or nor they entitled to see them,
but where the police officer makes use of the case diary to refresh his
memory or the court uses them for purposes of contradicting the police
officer, provisions of Section 161 or 145 of the Evidence Act apply.

See Also : Laxmi @ Laccho Vs. State NCT of Delhi {Delhi High Court, 11 Feb
2016}
Section 172 Cr.P.C. after its amendment w.e.f. 31st December, 2009 with
incorporation of Sub-Sections 1A and 1B reads as under:Section 172 Diary of proceeding in investigation (1) Every police
officer making an investigation under this Chapter shall day by day enter his
proceeding in the investigation in a diary, setting forth the time at which the
information reached him, the time at which he began and closed his
investigation, the place or places visited by him, and a statement of the
circumstances ascertained through his investigation.
(1A) The statements of witnesses recorded during the course of investigation
under section 161 shall be inserted in the case diary.
(1B) The diary referred to in subsection (1) shall be a volume and duly
paginated.
(2) Any Criminal Court may send for the police diaries of a case under inquiry
or trial in such Court, and may use such diaries, not as evidence in the case,
but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such
diaries, nor shall he or they be entitled to see them merely because they are
referred to by the Court but, if they are used by the police officer who made
them to refresh his memory, or if the Court uses them for the purpose of
contradicting such police officer, the provisions of section 161 or section 145,
as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall
apply.

# Case Law Reference on Case Diary

# 1. Bhagwant Singh Vs. Commr. of Police (1983) 3 SCC 344
Importance of recording entries in the case diary with promptness and
sufficient details mentioning of relevant facts in chronological order with
complete objectivity is highlighted.
# 2. Queen Empress Vs. Mannu ILR (1897) 19 All 390
The early stages of the investigation which follows on the commission of a
crime must necessarily in the vast majority of cases be left to the police, and
until the honest, the capacity, the discretion and the judgment of the police
can be thoroughly trusted, it is necessary, for the protection of the public
against criminals, for the vindication of the law and for the protection of
those who are charged with having committed a criminal offence that the
magistrate or judge before whom the case is for investigation or for trial
should have the means of ascertaining what was the information, true, false,
or misleading which was obtained from day to day by the police officer who
was investigating the case and what such police officer acted.
# 3. Khatri Vs. State of Bihar (1981) 2 SCC 493
The case diary cannot be used as evidence, but is an aid in the trial or
inquiry. This is for the reason because the case diary can be referred to by
the Court but the accused or his agents are not entitled to call for such diary
and are not entitled to see it except when the case diary is used by the
police officer to refresh is memory or the court uses it for contradicting a
police officer in the trial or inquiry, and provisions of Section 145 or 161 of
the Indian Evidence Act apply.
The bar under Sub-section (2) to Section 172 Cr.P.C. is a limited bar and does
not apply to civil proceedings or proceedings under Articles 32 and 226 of
the Constitution of India, particularly when the party calling for the case
diary is neither an accused nor an agent.
Rejecting the contention that the principle behind Section 172 Cr.P.C. is to
exclude the report of investigation altogether in other proceedings for it
would jeopardize secrecy of investigation, the Supreme Court affirmatively

observed that for truth to emerge, all relevant facts to the inquiry must be
brought before the court and nothing should be shut out, otherwise the
opinion formed may be distorted or incomplete, which might result in
injustice.
A judgment should not be founded on partial or speculative presentation of
facts as it would affect the integrity of the judicial system and public
confidence. In exceptional cases, where weighty and compelling competing
interest requires withholding or secrecy, legislature has provided for
exceptions but the exclusion should be strictly interpreted and not
expansively construed.
# 4. Manu Sharma Vs. State (NCT of Delhi), (2010) 6 SCC 1
Reference was made to Section 172 Cr.P.C. and several earlier judgments, to
elucidate that the right of an accused in relation to the police file and general
diary is a limited and a controlled one, but still the accused has been
provided with definite rights under the provisions of Cr.P.C. and the
constitutional mandate to face the charge against him by a fair investigation
and trial. Fairness in action on both accounts is essential.
Reference was made to Section 91 of the Evidence Act, which empowers the
court to summon a document or thing and Section 207 Cr.P.C., which requires
that the court without delay and free of cost should furnish to the accused
copies of the police report, first Information report, statements and
confessional statements of persons recorded under Section 161 Cr.P.C. whom
the prosecution wishes to examine as witnesses, of course, excluding any
part of statement or documents as contemplated under Section 173(6)
Cr.P.C.
It was observed:The right of the accused with regard to 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 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 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.
It will be difficult for the Court to say that the accused has no right to claim
copies of the documents or request the Court for production of a document
which is part of the general diary subject to satisfying the basic ingredients
of law stated therein.
A document which has been obtained bona fide and has bearing on the case
of the prosecution and in the opinion of the Public Prosecutor, the same
should be disclosed to the accused in the interest of justice and fair
investigation and trial should be furnished to the accused. Then that
document should be disclosed to the accused giving him chance of fair
defence, particularly when non-production or disclosure of such a document
would affect administration of criminal justice and the defence of the
accused prejudicially.
The concept of disclosure and duties of the Prosecutor under the English
system cannot, in our opinion, be made applicable to the Indian criminal
jurisprudence stricto sensu at this stage. However, we are of the considered
view that the doctrine of disclosure would have to be given somewhat
expanded application.
As far as the present case is concerned, we have already noticed that no
prejudice had been caused to the right of the accused to fair trial and nonfurnishing of the copy of one of the ballistic reports had not hampered the

ends of justice. Some shadow of doubt upon veracity of the document had
also been created by the prosecution and the prosecution opted not to rely
upon this document. In these circumstances, the right of the accused to
disclosure has not received any setback in the facts and circumstances of the
case. The accused even did not raise this issue seriously before the trial
court.
# 5. C. Muniappan Vs. State of Tamil Nadu (2010) 9 SCC 567
An order of acquittal or benefit of doubt need not ensue, when evidence de
hors such lapses is reliable, credible and sufficient to convict the accused. Of
course, extra caution and prudence is required while evaluating the
evidence. The Court should examine as to whether the lapses or defects in
investigation, be it in the form of negligence or omission etc., had affected
the object of finding out the truth. This is the litmus test, which should be
applied in each case.
# 6. Ganga Singh Vs. State of M.P., (2013) 7 SCC 278
It was observed that court should not acquit the accused on the ground that
there were some defects in investigation, but if the defects in the
investigation were as such as to cast a reasonable doubt about the
prosecution case, then the accused is entitled to acquittal because of such
doubt.
# 7. Surjit Sarkar Vs. State of West Bengal, (2013) 2 SCC 146
After referring to several earlier decisions, it has been held that deficiencies
in investigation by way of omission and lapses by the investigating agency
cannot themselves justify total rejection of the prosecution case and where
prosecution evidence de hors such lapses, when carefully scrutinised and
evaluated, does not affect the object of finding of truth.
At the same time, it cannot be accepted as a broad proposition that in no
case shoddy or defective investigation would not result in acquittal.
Investigation must be precise and should not be having glaring loopholes,
which create doubt as to whether the offence was committed by the person
charged or not. This is impermissible.

PRINCIPLES GOVERNING SECTION 106 OF THE INDIAN EVIDENCE ACT

Section 106. Burden of proving fact especially within knowledge When any
fact is especially within the knowledge of any person, the burden of proving
that

fact

is

upon

him.

Illustrations
(a) When a person does an act with some intention other than that which
the character and circumstances of the act suggest, the burden of
proving that intention is upon him.
(b)A is charged with travelling on a railway without a ticket. The burden of
proving that he had a ticket is on him.
The Supreme Court in the decision reported as (2006) 12 SCC 254 State of
Rajasthan Vs. Kashi Ram succinctly recapitulated the principles governing
Section 106 of the Indian Evidence Act as under:
The provisions of Section 106 of the Evidence Act itself are unambiguous and
categoric in laying down that when any fact is especially within the
knowledge of a person, the burden of proving that fact is upon him.
Thus, if a person is last seen with the deceased, he must offer an explanation
as to how and when he parted company. He must furnish an explanation
which appears to the court to be probable and satisfactory.
If

he

does

so

he

must

be

held

to

have

discharged

his

burden.

If he fails to offer an explanation on the basis of facts within his special

knowledge, he fails to discharge the burden cast upon him by Section 106 of
the

Evidence

Act.

In a case resting on circumstantial evidence if the accused fails to offer a

reasonable explanation in discharge of the burden placed on him, that itself

provides an additional link in the chain of circumstances proved against him.
Section 106 does not shift the burden of proof in a criminal trial,
which is always upon the prosecution.
It lays down the rule that when the accused does not throw any light upon
facts which are specially within his knowledge and which could not support
any theory or hypothesis compatible with his innocence, the court can
consider his failure to adduce any explanation, as an additional link which
completes

the

chain.

The principle has been succinctly stated in Naina Mohd., Re. [AIR 1960 Mad
218 : 1960 Cri LJ 620].

WIFE DIED IN HER MATRIMONIAL HOME; 4 BROAD CATEGORIES

Contents

See the decisions on Death of a Wife reported as

Death of a Wife : The Delhi High Court in the decision reported as Mukesh
Vs. State, (2010) 2 JCC 1563 authored by Pradeep Nandrajog, J. noted the
various decisions of the Supreme Court on the issue of onus on the accused
under Section 106 of the Indian Evidence Act and held:
Having examined the decisions of the Supreme Court on the point of
death of a wife in her matrimonial house, we deem it appropriate to
classify the said judicial decisions into undernoted 4 broad categories for
the reason we are finding considerable confusion in the minds of the
subordinate Judges as to the correct position of law:

I
In the first category fall the decisions where it is proved by the
prosecution that the husband was present in the house when
the wife suffered a homicidal death and rendered no
explanation as to how his wife suffered the homicidal death.
# See the decisions on Death of a Wife reported as
1. State of Rajasthan v. Parthu (2007) 12 SCC 754
2. Amarsingh Munnasingh Suryavanshi v. State of Maharashtra
AIR 2008 SC 479
3. Ganeshlal v. State of Maharashtra (1992) 3 SCC 106
4. Prabhudayal v. State of Maharashtra (1993) 3 SCC 573
5. Dynaneshwar v. State of Maharashtra (2007) 10 SCC 445
6. Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC
681
7. Bija v. State of Haryana (2008) 11 SCC 242
8. State of Tamil Nadu v. Rajendran (1999) 8 SCC 679;

II

In the second category are the decisions where the prosecution could
not prove the presence of the husband in the house when the wife
suffered a homicidal death but the circumstances were such that it
could be reasonably inferred that the husband was in the house and
the husband failed to render any satisfactory explanation as to how his
wife suffered a homicidal death.

The circumstances wherefrom it could be inferred that the husband

was in the house would be proof that they lived in the house and used
to cohabit there and the death took place in such hours of the night
when a husband was expected to be in the house i.e. the hours
between night time and early morning.

See the decisions reported as

1. State of U.P. v. Dr. Ravindra Prakash Mittal(1992) 3 SCC 300
2. Narendra v. State of Karnataka (2009) 6 SCC 61.
III

In the third category would be proof of a very strong motive for the
husband to murder his wife and proof of there being a reasonable
probability of the husband being in the house and having an
opportunity to commit the murder.

In the decision reported as Udaipal Singh v. State of U.P. (1972) 4 SCC

142 the deceased wife died in her matrimonial home in a room where
she and her husband used to reside together.

The accused- husband had a very strong motive to murder the

deceased which was evident from the letter written by him to his
mistress, which letter clearly brought out the feeling of disgust which
the accused had towards the deceased.

The accused had the opportunity to commit the murder of the

deceased as there was evidence to show the presence of the accused

in the village where the house in which the deceased died was situated
at the time of the death of the deceased.

Noting the facts that the accused had a strong enough motive and an
opportunity to murder the deceased, noting that there was no
evidence that the appellant was seen in his house by anybody, the
Supreme Court convicted the accused.

IV

In the fourth category are the decisions where the wife died in her
matrimonial house but there was no evidence to show presence of the
husband in the house at the time of the death of the wife and the time
when the crime was committed was not of the kind contemplated by
the decisions in category II and was of a kind when husbands are
expected to be on their job and there was either no proof of motive or
very weak motive being proved as in the decision reported as Khatri
Hemraj Amulakh v. State of Gujarat AIR 1972 SC 922 and State of
Punjab v. Hari Kishan 1997 SCC Cri. 1211.

COURTS NOT POWERLESS TO ALLOW AMENDMENT TO A COMPLAINT

UNDER DOMESTIC VIOLENCE ACT: SC
The Apex Court in KUNAPAREDDY @ NOOKALA SHANKA BALAJI VS.
KUNAPAREDDY SWARNA KUMARI has held that a complaint or petition under
Domestic Violence Act can be amended and court is not powerless to allow
such amendment applications.
The Bench comprising of Justices A.K Sikri and R.K. Agrawal dismissed an
appeal against High Court Judgment which had upheld the Trial Court order
allowing amendment of the complaint under Domestic Violence Act to
include additional prayers.
AMENDMENT ALLOWED TO AVOID MULTIPLICITY OF LITIGATION
Rejecting the contention that court cannot allow amendment to a complaint
under DV Act, the Apex Court held: it cannot be said that the Court dealing
with the application under DV Act has no power and/or jurisdiction to allow
the amendment of the said application. If the amendment becomes
necessary in view of subsequent events[escalation of prices in the instant
case] or to avoid multiplicity of litigation, Court will have power to permit
such an amendment. It is said that procedure is the handmaid of justice and
is to come to the aid of the justice rather than defeating it. It is nobodys
case that respondent no. 1 was not entitled to file another application
claiming the reliefs which she sought to include in the pending application by
way of amendment. If that be so, we see no reason, why the applicant be not
allowed to incorporate this amendment in the pending application rather
than filing a separate application. It is not that there is a complete ban/bar of
amendment in the complaints in criminal Courts which are governed by the
Code, though undoubtedly such power to allow the amendment has to be
exercised sparingly and with caution under limited circumstances.
EVEN CRIMINAL COURTS NOT POWERLESS

Referring to S.R.Sukumar vs. S. Sunaad Raghuram (2015) 9 SCC 609, the

Court said: even in criminal cases governed by the Code, the Court is not
powerless and may allow amendment in appropriate cases. One of the
circumstances where such an amendment is to be allowed is to avoid the
multiplicity of the proceedings.
Affirming the Judgment of High Court, the bench observed:If the power to
amend the complaint/application etc. is not read into the aforesaid provision,
the very purpose which the Act attempts to sub-serve itself may be defeated
in many cases.

Manik Taneja & another - Vs- State of Karnataka & another

Facebook postings against police - criticising police on police's official face book page F.I.R lodged by police
HELD- Facebook is a public forum - it facilitates expression of public opinion- posting of
one's grievance against government machinery even on government Facebook page
does not by itself amount to criminal offence - F. I.R. Quashed.- 2015 (7) SCC 423:
(Supreme Court)

SC Upheld the validity of Criminal Prosecution & Punishment for causing

Defamation - in Subramanian Swamy case
Subramanian Swamy
Vs.
Union Of India, Ministry of Law & Ors.
The constitutional validity of Sections 499 and 500 IPC for 'defamation' and
Sections 199(1) to 199(4) of CrPC was challenged in this batch of writ
petitions.
Sec.499 deals with Defamation and stipulates that
Whoever, by words either spoken or intended to be read, or by signs
or by visible representations, makes or publishes any imputation
concerning any person intending to harm, or knowing or having reason
to believe that such imputation will harm, the reputation of such
person, is said, except in the case hereinafter expected to defame that
person.
Sec.500. stipulates punishment for defamation
whoever

defames

another

shall

be

punished

with

simple

imprisonment for a term which may extend to two years, or with fine,
or with both.
Section 199 CrPC provides for prosecution for causing defamation.
Challenging the validity of above said provisions, it was contended before the
Apex Court that:
i.

The word defamation as used in Article 19(2), can only include a Civil
action, but not a criminal proceeding.

ii.

Even if defamation is conceived to include a criminal offence (as per

Article 19(2)) it has to be understood in association of the words
incitement to an offence

iii.

The intention of Article 19(2) is to include a public law remedy in

respect of a grievance that has a collective impact but not to take in its
ambit an actionable claim under the common law by an individual.

iv.

Defamation of a person is mostly relatable to assault on reputation by

another individual and such an individual cavil cannot be thought of
being pedestalled as fundamental right and therefore the criminal
defamation cannot claim to have its source in the word defamation
used in Article 19(2) of the competition.

v.

The words incite to cause an offence should be read to give

attributes and characteristics of criminality to the word defamation.
It must have the potentiality to lead to breach of peace and public
order.

vi.

The intention of clause (2) of Article 19 is to include a public law

remedy in respect of a grievance that has a collective impact but not
as an actionable claim under the common law by an individual and
therefore the word defamation is required to be understood in that
context.

Apex Court rejected the petitioners plea that defamation can only get
criminality if it incites to make an offence.
It was also urged that defamation of a private person by another person is
unconnected with the fundamental right conferred in public interest by
Article 19(1)(a) and a fundamental right is enforceable against the state but
cannot be invoked to serve a private interest of an individual.
On the above said submission Apex Court opined that the restricted meaning
sought to be given to the term defamation is unacceptable and
insupportable.
It was also contended before the Apex Court that right to freedom of speech
and expression which includes, freedom of press should be given higher
status and the individuals right to have his / her reputation should yield to
the said right.

Apex Court held that reputation of an individual is a basic element of Article

21 of the constitution and balancing of fundamental rights is a constitutional
necessity and further the legislature in its wisdom has kept the penal
provision alive under the legislative.
The Apex Court opined that
i.

Freedom of speech and expression is a highly treasured value under

the Constitution and voice of dissent or disagreement has to be
respected and regarded and not to be scuttled as unpalatable criticism.
The test of reasonableness cannot be determined by laying down any
abstract standard or general pattern. It would depend upon the nature
of the right which has been infringed or sought to be infringed.

ii.

Right to freedom of speech and expression is absolutely sacrosanct.

Simultaneously, right to reputation conjoined with right to life as is
understood in the expansive horizon of Article 21 has its own
significance. That is why the legislature in its wisdom has not thought
it appropriate to abolish criminality of defamation in the obtaining
social climate.

iii.

Reputation of an individual is a basic element of Article 21 of the

Constitution and balancing of fundamental rights is a constitutional
necessity and further the legislature in its wisdom has kept the penal
provision alive whereas criminal defamation has an adverse effect on
the freedom of speech and expression.

Apex Court drew the distinction of defamation and criminal defamation

and held that rights of freedom of expression comes with the constitutional
fraternity and fundamental duty.
Apex Court observed that keeping in view the constitutional value, the
legislature has not repealed Section 499 and kept the same alive as a
criminal offence.
The Apex Court did not agree with the submission that the existence of
criminal defamation is absolutely obnoxious to freedom of speech and
expression. Court held that neither it disturbs the concept of Right to

Expression nor any other of the Articles of the Constitution nor its very
existence can be regarded as an unreasonable restriction.
While dealing with the issue that whether Section 499 of IPC either in the
substantive sense or procedurally violates the concept of reasonable
restriction the Apex Court opined that neither the main provision nor the
Explanation nor the Exceptions remotely indicate any vagueness.
The Apex Court held that what is public good is a question of fact depending
on the facts and circumstances of the case. There cannot be any hard and
fast rule to decide the quantum of criminal defamation. Therefore the
provision

along

with

Explanations

and

Exceptions

cannot

be

called

unreasonable, for they are neither vague nor excessive nor arbitrary.
The Apex Court further held that one cannot be unmindful that right to
freedom of speech and expression is a highly valued and cherished right but
the Constitution conceives of reasonable restriction. In that context criminal
defamation which is in existence in the form of Sections 499 and 500 IPC is
not

restriction

on

free

speech

that

can

be

characterized

as

disproportionate. Right to free speech cannot mean that a citizen can

defame the other. Protection of reputation is a fundamental right. It is also a
human right. Cumulatively it serves the social interest.
The Apex Court held that the legislature has exercised its legislative wisdom
and it is inappropriate to say that it expresses the notion of the majority. It
has kept the criminal defamation on the statute book as in the existing social
climate it sub serves the collective interest because reputation of each is
ultimately inhered in the reputation of all.
While dealing with the procedural part, i.e. Section 199 CrPC, the Apex Court
held that in matters of criminal defamation the heavy burden is on the
Magistracy to scrutinise the complaint from all aspects. The Magistrate has
also to keep in view the language employed in Section 202 CrPC which
stipulates about the resident of the accused at a place beyond the area in
which the Magistrate exercises his jurisdiction. He must be satisfied that

ingredients of Section 499 CrPC are satisfied. Application of mind in the case
of complaint is imperative.
In view of above said observations, findings, Apex Court upheld the
constitutional validity of Sections 499 and 500 of the Indian Penal Code and
Section 199 of the Code of Criminal Procedure.
The Apex Court, while upholding the constitutional validity of the provisions
in question, gave the liberty to the petitioners to challenge the issue of
summons before the High Court either under Article226 of the Constitution of
India or Section 482 CrPC, and for the said purpose, eight weeks time was
granted to the petitioners. The interim protection granted by Apex Court was
extended for a period of eight weeks.
However, the Apex Court made it clear that, if any of the petitioners had
already approached the High Court and was unsuccessful before the Apex
Court, then he will face trial and put forth his defence in accordance with law
before the trial court.
Judgement in pdf with file name : subramaniam swamy defamation case

Court cannot record any findings on merits while

appointing Arbitrator u/s 11(6)of the Act
Rajesh Verma
Vs.
Ashwani Kumar Khanna
The appellant-owner and the respondent-tenant had entered into an
agreement whereby it was inter-alia agreed that the owner on tenants
vacating the shop would demolish the shop and construct the new one in its
place on or before 31-03-2015 and then sell the new shop to the tenant on
the agreed price as was mentioned in the said agreement.
Clause 14 of the said agreement contained arbitration clause for making
reference to the sole arbitrator in the event of any dispute arising between
the parties in relation to the agreement in question.
The disputes arose between the parties in relation to implementation of the
terms of the agreement, which led to filing of an arbitration petition by the
tenant u/s 11 of the Arbitration and Conciliation Act before the High Court.
High Court allowed the said petition and appointed one advocate as a Sole
Arbitrator to decide the disputes amongst them.
The owner challenged this order of the High Court before the Apex Court and
contended that:
i.

High Court has exceeded its jurisdiction, as the High Court virtually
proceeded to decide the main disputes itself by recording findings on
such issues.

ii.

High Court while allowing the tenants petition u/s 11 of the Act, should
have sought owner-appellants consent for nominating the Arbitrator.

Apex Court observed and opined that:

i.

Impugned order shows that Single Judge of the High Court has
elaborately discussed the issues touching the merits of the controversy

relating to the agreement. Apex Court held that such elaboration on

factual issues was wholly uncalled for and should not have been made.
ii.

High Court judge should not have recorded any finding on merits while
making reference u/s 11 of the Act.

iii.

Jurisdiction of the court u/s 11 of the Act is limited and is confined to

examine that whether there is an arbitration agreement between the
parties and if so, whether any dispute has arisen between them out of
such agreement which may call for appointment of an arbitrator to
decide such disputes.

Apex Court held that in this case High Court exceeded its jurisdiction and
court directed that Arbitrator while deciding the disputes between the parties
would not in any manner be influenced by any findings, observations of the
High Court.
In the facts and circumstances of this case Apex Court nominated a Retd.
High Court Judge as Sole Arbitrator for deciding the disputes between the
parties and partially allowed the appeal.
Judgment in pdf with file name : Rajesh verma arbitrator appointment.pdf

An injured witness is generally reliable but even an injured witness

may implicate some innocent persons on account of enmity and
Vendetta.
Supreme Court - 03 Jun 2016
Indira Devi & Ors.
Vs.
Vs. State Of Himachal Pradesh
Shriram victim lodged FIR against all the three appellants who are ladies
and against Brij Lal (Husband of appellant No 1) and Dev Raj (Husband of
appellant No. 3) u/s 147, 148, 307 IPC read with Section 149 IPC and u/s 25
Arms Act. Sessions Court accepted the prosecution case and punished all the
five accused u/s 307 IPC read with Section 149 IPC. Accused Brij Lal was held
guilty u/s 25 of the Arms Act also.
In appeal High Court affirmed the order of conviction and sentences which
was imposed by the Trial Court. This order of the High Court came under
challenge before the Apex Court.
It was contended by the appellants (ladies) that courts below have failed to
notice and appreciate the vital contradictions in respect of overt act alleged
against the lady accused persons.
It was contended that the Courts below have erred in fact and in law in
applying Section 149 IPC against lady accused persons for convicting them
for the offences allegedly committed by the two male accused persons.
The Apex Court noticed the following contradictions in the statement of
ComplainantIn FIR, complainant victim disclosed that there was a land dispute between
him

and

his

brother

Brij

Lal

(Accused)

In FIR complainant - victim alleged that Brij Lal, accused was having gun
which he fired at his left jaw and his another brother Dev Raj (accused)
assaulted

him

with

axe

at

the

right

arm.

During the course of Trial victim complainant deposed and made the
following improvements:
That appellant No. 2 Fullan Devi attacked him with a darat (sharp cutting
weapon) which hit on his left hand and the other two lady accused also gave
him

beatings

with

kicks

and

fist

blows.

Dev Raj accused allegedly run away with the gun. In the next breath he
added that Dev Raj ran away and only Brij Jal remained at the spot and Brij
Lal

further

assaulted

him

as

result

of

he

fall

down.

Apex Court opined that:

Trial Court misdirected itself and placed full reliance upon the statement
deposition

of

victim

complainant.

The Trial Court committed an error in ignoring the contradictions and failed to
consider that whether complainant injured should be believed only in part
qua the male accused persons and not in respect of the appellants lady
accused

persons.

Apex Court concluded that an injured witness is generally reliable but even
an injured witness can also falsely implicate some innocent persons on
account of enmity and vendetta.
Apex Court opined that medical evidence shows that Injury No. 2 is not by a
sharp cutting weapon like Darat and besides being a simple injury which
might have been caused on account of fall.
Apex Court observed that:
there is no corresponding injury on the person of victim to support the
allegation

of

assault

by

the

lady

accused

persons.

In initial version complaint had not levelled any specific allegations against
the

lady

accused

appellants.

There is no convincing medical evidence in support of allegations of assault

by

the

lady

accused

persons.

Apex Court held that High Court also erred in not analysing the evidence with
care and caution.

With the above said observations and findings Apex Court held that
judgment and order against the lady accused appellants is vitiated not only
on facts but also in law.
The conviction and sentence imposed against the appellants lady accused
persons, was set aside and they were acquitted from all the charges by
extending them the benefit of doubt. Appeals filed by the appellants lady
accused persons were allowed
Judgments in Pdf with file name: indira devi

WHETHER COUNTER CASES ARE TO BE DECIDED BY SAME JUDGE?

It is expected that when there are counter cases the same Judge should try
both the cases and decide both one after the other. In Nathi Lal vs. State
of U. P. 1990 Supp SCC 145 = 1990 SCC (Cri) 638 the Apex Court
enunciated the principle that both the counter cases should be tried by the
same Judge one after the other and judgments in both the criminal cases
should be pronounced on the same day.
File is in pdf format with file name: trial of cross cases

PROCEDURE TO BE FOLLOWED BY MAGISTRATE WHEN ONE CASE IS

TRIABLE BY SESSION COURT AND COUNTER CASE IS TRIABLE BY
MAGISTRATE ?

There can be no dispute about the proposition that the counter cases
arising out of the same incident have to be tried together. If two
persons have lodged report in respect of the same incident giving
different versions and two separate criminal cases are registered on
the basis of these complaints it is necessary to ensure that both the
criminal cases are tried by the same learned judge to ensure that
conflicting decisions are not rendered in respect of the same
incident. In a situation where one of the criminal cases involves an
offence exclusively triable by the Court of Session whereas the other
pertains to the offence triable by the Magistrate the Magistrate is
obliged to commit the counter case to the Court of Session for being
tried along with the sessions case arising out of the same incident
by resorting to the provisions of section 323 of the Criminal
Procedure Code 1973 (for short cr. P. C. ) {Section 323 CrPC:
Procedure when, after commencement of inquiry or trial, Magistrate
finds case should be committed- If, in any inquiry into an offence or
a trial before a Magistrate, it appears to him at any stage of the
proceedings before signing judgment that the case is one which
ought to be tried by the Court of Session, he shall commit it to that
Court under the provisions hereinbefore contained and thereupon
the provision of Chapter XVIII shall apply to the commitment so
made}- If due to inadvertence the counter case is not committed for
trial by the concerned magistrate the power of calling for the said
case can be exercised by the Court of session. This dictum is no
longer res integra. In Nathi Lal vs. State of U. P. 1990 Supp SCC 145
= 1990 SCC (Cri) 638 the Apex Court enunciated the principle that
both the counter cases should be tried by the same Judge one after
the other and judgments in both the criminal cases should be
pronounced on the same day. However the judge has to take
precautions to ensure that he is not influenced by the evidence or
the arguments advanced in the counter case. These principles
governing

the

procedure

for

deciding

the

counter

cases

are

approved by the Supreme Court in the matter of Sudhir vs. State of

M. P. (2001)2 SCC 688 at page 692. In that case it is laid down that
section 323 of the Criminal procedure Code is enacted for meeting
such contingencies and can be resorted to by the Magistrate for
committing a counter case to the Court of Session although the trial
is not for the offences exclusively triable by the Court of session. It
is further clarified that in such a situation the Sessions Judge has
jurisdiction to try the counter case not involving offences exclusively
triable by the Sessions Court.

WHEN SESSION JUDGE CAN TRY OFFENCES WHICH ARE NOT

EXCLUSIVELY TRIABLE BY COURT OF SESSIONS?
In this context, we may point out that a Sessions Judge has the power to try
any offence under the Indian Penal Code. It is not necessary for the Sessions
Court that the offence should be one exclusively triable by a Court of
Sessions. This power of the Sessions Court can be discerned from a reading
of Section 26 of the Code. When it is realised that the Sessions Judge has the
power to try any offence under the Indian Penal code and when a case
involving offence not exclusively triable by such court is committed to the
Court of Sessions, the Sessions Judge has to exercise a discretion regarding
the case which he has to continue for trial in his court and the case which he
has to transfer to the Chief Judicial Magistrate. For this purpose we have to
read and understand the scope of Section 228(1) in the light of the above
legal position. The sub-section is extracted below:
"If, after such consideration and hearing as aforesaid, the Judge is of opinion
that there is ground for presuming that the accused has committed an
offence which (a) is not exclusively triable by the Court of session, he may, frame a charge
against the accused and, by order, transfer the case for trial to the Chief
Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the

offence in accordance with the procedure for the trial of warrant- cases
instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge
against the accused."
The employment of the word "may" at one place and the word "shall" at
another place in the same sub-section unmistakably indicates that when the
offence is not triable exclusively by the Sessions Court it is not mandatory
that he should order transfer of the case to the Chief Judicial Magistrate after
framing a charge. In situations where it is advisable for him to try such
offence in his court there is no legal obligation to transfer the case to the
Chief Judicial Magistrate. One of the instances for not making the transfer is
when a case and counter case have been committed to the Sessions Court
and one of those cases involves an offence exclusively triable by the
Sessions Court and the other does not involve any such offence.
Sudhir & Ors. Etc. vs State Of M.P. Etc. on 2 February, 2001
File is in pdf format with file name: Sudhir vs M.P.