Code of Criminal Procedure Case Laws by Legal Jurist

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Lalita Kumari v. Govt. of U.P

One writ petition, under Article 32 of the Constitution, was filed by Lalita
Kumari (minor) through her father, viz., Shri Bhola Kamat for the
issuance of a writ of Habeas Corpus or direction(s) of like nature against
the respondents for the protection of his minor daughter who has been
kidnapped. The grievance in the said writ petition was that on
11.05.2008, a written report was submitted by the petitioner before the
officer in-charge of the police station concerned who did not take any
action on the same. Thereafter, when a representation to Superintendent
of Police was moved, an FIR was registered. According to the petitioner,
even thereafter, steps were not taken either for apprehending the
accused or for the recovery of the minor girl child.
A two‑Judge Bench of SC in, Lalita Kumari vs. Government of Uttar

Pradesh & Ors. (2008) 7 SCC 164, after noticing the disparity in
registration of FIRs by police officers on case to case basis across
the country, issued notice to the Union of India, the Chief Secretaries
of all the States and Union Territories and Director Generals of
Police/Commissioners of Police to the effect that if steps are not taken
for registration of FIRs immediately and the copies thereof are not
handed over to the complainants, they may move the Magistrates
concerned by filing complaint petitions for appropriate direction(s) to
the police to register the case immediately and for apprehending the
accused persons, failing which, contempt proceedings must be initiated
against such delinquent police officers if no sufficient cause is shown.
Pursuant to the above directions, when the matter was heard by the very
same Bench in Lalita Kumari vs. Government of Uttar Pradesh & Ors.
(2008) 14 SCC 337. In view of the conflicting decisions of Supreme
Court on the issue, the said bench, vide order dated 16.09.2008,
referred the same to a larger bench.
Ensuing compliance to the above direction, the matter pertaining to
Lalita Kumari was heard by a Bench of three‑Judges in Lalita
Kumari vs. Government of Uttar Pradesh & Ors. (2012) 4 SCC 1 wherein,
Supreme Court, after hearing various counsel representing Union of
India, States and Union Territories and also after adverting to all
the conflicting decisions extensively, referred the matter to a Constitution
Bench.
ISSUE INVOLVED
Whether under Section 154 CrPC, a police officer is bound to register an
FIR when a cognizable offence is made out or he (police officer) has an
option, discretion or latitude of conducting some kind of preliminary
inquiry before registering the FIR?
The follow directions were issued by the Constitution Bench of Supreme

Court:
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i) Registration of FIR is mandatory under Section 154 of the

Code, if the information discloses commission of a cognizable
offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable
offence but indicates the necessity for an inquiry, a preliminary
inquiry may be conducted only to ascertain whether cognizable
offence is disclosed or not.
iii) If the inquiry discloses the commission of a cognizable offence,
the FIR must be registered. In cases where preliminary inquiry
ends in closing the complaint, a copy of the entry of such closure
must be supplied to the first informant forthwith and not later than
one week. It must disclose reasons in brief for closing the complaint
and not proceeding further.
iv) The police officer cannot avoid his duty of registering offence if
cognizable offence is disclosed. Action must be taken against
erring officers who do not register the FIR if information
received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify the veracity
or otherwise of the information received but only to ascertain
whether the information reveals any cognizable offence.
vi) As to what type and in which cases preliminary inquiry is to be
conducted will depend on the facts and circumstances of each case.
The category of cases in which preliminary inquiry may be made are
as under:
a) Matrimonial disputes/family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example, over 3 months delay in
reporting the matter without satisfactorily explaining the reasons
for delay.
The aforesaid are only illustrations and not exhaustive of all
conditions which may warrant preliminary inquiry.
vii) While ensuring and protecting the rights of the accused and
the complainant, a preliminary inquiry should be made time
bound and in any case it should not exceed 7 days. The fact of
such delay and the causes of it must be reflected in the General
Diary entry.
viii) Since the General Diary/Station Diary/Daily Diary is the record
of all information received in a police station, we direct that all
information relating to cognizable offences, whether resulting in
registration of FIR or leading to an inquiry, must be mandatorily and
meticulously reflected in the said Diary and the decision to conduct a
preliminary inquiry must also be reflected, as mentioned above.

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The Code contemplates two kinds of FIRs. The duly signed FIR under
Section 154(1) is by the informant to the concerned officer at the police
station. The second kind of FIR could be which is registered by the police
itself on any information received or other than by way of an informant
[Section 157(1)] and even this information has to be duly recorded and
the copy should be sent to the Magistrate forthwith.
State of Orissa v. Sharat Chandra Sahu (1996)

A wife made a complaint in writing to the Women‘s Commission setting
out therein that her husband had contracted a second marriage and had
thus committed an offence punishable under Section 494 IPC. It was also
alleged that ever since the marriage with her, he had been making
demands for money being paid to him which amounted to her harassment
and constituted the offence punishable under Section 498-A IPC.
The Women‘s Commission sent the complaint to the police station
where case was registered against the husband. The police investigated
the case and filed a charge-sheet in the Court of Sub-Divisional Judicial
Magistrate, who, after perusal of the charge-sheet, framed charges
against the husband under Section 498-A as also under Section 494 IPC.
The husband in response filed a petition under Section 482 of the
Code of Criminal Procedure in the High Court for quashing the
proceedings and the charges framed against him. The High Court partly
allowed the petition with the findings that since the wife had not herself
personally filed the complaint under Section 494 IPC, its cognizance could
not have been taken by the Magistrate in view of the provisions contained
in Section 198(1)(c) of CrPC. Consequently, the charge framed by the
Magistrate under Section 494 IPC was quashed but the charge under
Section 498-A IPC was maintained and the petition under Section 482
Criminal Procedure Code to that extent was dismissed.
It is this Judgment which has been challenged before the Supreme
Court by the State of Orissa. The SC held that the judgment of the High
Court so far as it relates to the quashing of the charge under Section 494
IPC, is wholly erroneous and is based on complete ignorance of the
relevant statutory provisions. It observed that the section 155(4) of Cr.PC
clearly provides that where the case relates to two offences of which one
is cognizable, the case shall be deemed to be a cognizable case
notwithstanding that the other offence or offences are non-cognizable.
Madhu Bala v. Suresh Kumar (1997)

A woman filed a complaint against the three persons, who are her
husband, father-in-law and mother-in-law before the Chief Magistrate,
Kurukshetra alleging commission of offences under Sections 498A and
406 of the IPC by them. On that complaint, the Magistrate passed an
order under Section 156(3) of the Cr.PC directing the police to register a
case and investigate into the same. Pursuant to the said direction Police
registered a case and on completion of investigation submitted charge

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sheet (police report) against the three persons under Section 198A and
406 IPC. The Magistrate took cognizance upon the said charge-sheet and
thereafter framed charge against them under Section 406 IPC only as,
according to the Magistrate, the offence under Section 498A IPC was
allegedly committed in the district of Karnal. Against the framing of the
charge the defendants moved the Sessions Judge in revision, but without
success.
Thereafter the plaintiff filed another complaint against the three
defendants under Section 498A IPC before the Chief Judicial Magistrate,
Karnal and on this complaint the magistrate passed a similar order under
Section 156(3) of the Code for registration of a case and investigation. In
compliance with the orders FIR was registered by the Karnal Police
Station and on completion of investigation charge-sheet was submitted
against the three under Section 498A IPC. On that charge sheet the
Magistrate took cognizance of the above offence and later on framed
charge against them in accordance with Section 240 of Cr.PC.
Issue before the court: Whether under section 156(3) a Magistrate can
ask police to file a FIR/registration of a case?
While the above two cases were being tried the defendants filed
petitions under Section 482 of the Cr.PC before the Punjab & Haryana
High Court for quashing of their proceedings on the ground that the
orders passed by the CJMs of Kurukshetra and Karnal directing
registration of cases in purported exercise of their power under Section
156(3) of the Code were patently wrong and consequently all actions
taken pursuant thereto were illegal. The contention so raised found favour
with the High Court; and by the impugned judgment it quashed the
orders of the CJMs of Kurukshetra and karnal, pursuant to which cases
were registered by the police on the complaints of the appellant, and the
entire proceedings of the two cases arising therefrom. According to the
High Court, under Section 156(3) of the Cr.PC a Magistrate can only
direct investigation by the police but he has no power to direct
registration of a case.
The Supreme Court observed as under:
“whenever a Magistrate directs an investigation on a complaint the
police has to register a cognizable case on that complaint treating the
same as the FIR and comply with the requirements of the above
Rules. It, therefore, passes our comprehension as to how the direction of
a Magistrate asking the police to “register a case” makes an order of
investigation under Section 156(3) legally unsustainable. Indeed, even
if a Magistrate does not pass a direction to register a case, still in view of
the provisions of Section 156(1) of the Code which empowers the
police to investigate into a cognizable case and the Rules framed under
the Indian Police Act, 1861 it (the police) is duty bound to formally
register a case and then investigate into the same. The provisions of the
Code, therefore, do not in any way stand in the way of a Magistrate to

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direct the police to register a case at the police station and then
investigate into the same. In our opinion when an order for investigation
under Section 156(3) of the Code is to be made the proper direction to
the police would be to register a case at the police station treating the
complaint as the first information report and investigate into the same.”
The impugned judgment and orders of the High Court was set aside
by SC and directed the concerned Magistrates to proceed with the cases
in accordance of law.
Sakiri Vasu v. State of U.P. (2008)

[Father demanding CBI investigation in the death case of son (Major in
Indian Army, dead body found in Railway Station); inquiries held by Army
held that it was a case of suicide]
The Supreme Court observed that it has been held by this Court in
CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para
8) that no one can insist that an offence be investigated by a particular
agency and agreed with the view in the aforesaid decision. An aggrieved
person can only claim that the offence he alleges be investigated
properly, but he has no right to claim that it be investigated by any
particular agency of his choice.
In this connection we would like to state that if a person has a
grievance that the police station is not registering his FIR under Section
154 Cr.P.C., then he can approach the Superintendent of Police under
Section 154(3) Cr.P.C. by an application in writing. Even if that does not
yield any satisfactory result in the sense that either the FIR is still not
registered, or that even after registering it no proper investigation is held,
it is open to the aggrieved person to file an application under Sec 156(3)
Cr.P.C. before the learned Magistrate concerned. If such an application
under Sec 156(3) is filed before the Magistrate, the Magistrate can direct
the FIR to be registered and also can direct a proper investigation to be
made, in a case where, according to the aggrieved person, no proper
investigation was made. The Magistrate can also under the same
provision monitor the investigation to ensure a proper investigation.
We are of the view that although Section 156(3) is very briefly
worded, there is an implied power in the Magistrate under Section 156(3)
Cr.P.C. to order registration of a criminal offence and /or to direct the
officer in charge of the concerned police station to hold a proper
investigation and take all such necessary steps that may be necessary for
ensuring a proper investigation including monitoring the same. Even
though these powers have not been expressly mentioned in Section
156(3) Cr.P.C., we are of the opinion that they are implied in the above
provision.
We often find that when someone has a grievance that his FIR has
not been registered at the police station and/or a proper investigation is
not being done by the police, he rushes to the High Court to file a writ
petition or a petition under Section 482 Cr.P.C. We are of the opinion that
the High Court should not encourage this practice and should ordinarily

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refuse to interfere in such matters, and relegate the petitioner to his

alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C.
before the concerned police officers, and if that is of no avail, by
approaching the concerned Magistrate under Section 156(3).
The Magistrate has very wide powers to direct registration of an FIR
and to ensure a proper investigation, and for this purpose he can monitor
the investigation to ensure that the investigation is done properly (though
he cannot investigate himself). The High Court should discourage the
practice of filing a writ petition or petition under Section 482 Cr.P.C.
simply because a person has a grievance that his FIR has not been
registered by the police, or after being registered, proper investigation
has not been done by the police. For this grievance, the remedy lies
under Sections 36 and 154(3) before the concerned police officers, and if
that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or
by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a
writ petition or a petition under Section 482 Cr.P.C.
It is true that alternative remedy is not an absolute bar to a writ
petition, but it is equally well settled that if there is an alternative remedy
the High Court should not ordinarily interfere.
Supreme Court or the High Court has power under Article 136 or
Article 226 to order investigation by the CBI. That, however should be
done only in some rare and exceptional case, otherwise, the CBI would be
flooded with a large number of cases and would find it impossible to
properly investigate all of them.
In the present case, there was an investigation by the G.R.P.,
Mathura and also two Courts of Inquiry held by the Army authorities and
they found that it was a case of suicide. Hence, in our opinion, the High
Court was justified in rejecting the prayer for a CBI inquiry.
D.K.Basu v. State of West Bengal, (1997)

Certain letters received about the cases of custodial violence and custodial
deaths by police were treated as writ petitions in public interest by the
Supreme Court. These petitions were decided by a 2-Judge Bench. The
Supreme Court observed as under:
1. Custodial violence, including torture and death in the lock-ups,

strikes a blow at the rule of law, which demands that the powers of
the executive should not only be derived from law but also that the
same should be limited by law. The protection of an individual from
torture and abuse by the police and other law-enforcing officers is a
matter of deep concern in a free society.
2. Custodial death is perhaps one of the worst crimes in a civilised
society governed by the rule of law. The rights inherent in Articles
21 and 22(1) of the Constitution require to be jealously and
scrupulously protected.

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3. In spite of the constitutional and statutory provisions aimed at

safeguarding the personal liberty and life of a citizen, growing
incidence of torture and deaths in police custody has been a
disturbing factor. Experience shows that worst violations of human
rights take place during the course of investigation, when the police
with a view to secure evidence or confession often resorts to third-
degree methods including torture and adopts techniques of
screening arrest by either not recording the arrest or describing the
deprivation of liberty merely as a prolonged interrogation.
In this case, following important guidelines were issued by the Court as

preventive measures to be followed as requirements in all cases of arrests
and detention:
(1) The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and clear
identification and name tags with their designations. The particulars of all
such police personnel who handle interrogation of the arrestee must be
recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall
prepare a memo of arrest at the time of arrest and such memo shall be
attested by at least one witness, who may either be a member of the
family of the arrestee or a respectable person of the locality from where
the arrest is made. It shall also be countersigned by the arrestee and
shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in
custody in a police station or interrogation centre or other lock-up, shall
be entitled to have one friend or relative or other person known to him or
having interest in his welfare being informed, as soon as practicable, that
he has been arrested and is being detained at the particular place, unless
the attesting witness of the memo of arrest is himself such a friend or a
relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be
notified by the police where the next friend or relative of the arrestee
lives outside the district or town through the Legal Aid Organisation in the
District and the police station of the area concerned telegraphically within
a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have
someone informed of his arrest or detention as soon as he is put under
arrest or is detained.
(6) An entry must be made in the diary at the place of detention

regarding the arrest of the person which shall also disclose the name of

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the next friend of the person who has been informed of the arrest and the
names and particulars of the police officials in whose custody the arrestee
is.
(7) The arrestee should, where he so requests, be also examined at the

time of his arrest and major and minor injuries, if any present on his/her
body, must be recorded at that time. The “Inspection Memo” must be
signed both by the arrestee and the police officer effecting the arrest and
its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained

doctor every 48 hours during his detention in custody by a doctor on the
panel of approved doctors appointed by Director, Health Services of the
State or Union Territory concerned. Director, Health Services should
prepare such a panel for all tehsils and districts as well.
(9) Copies of all the documents including the memo of arrest, referred to
above, should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during

interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State
headquarters, where information regarding the arrest and the place of
custody of the arrestee shall be communicated by the officer causing the
arrest, within 12 hours of effecting the arrest and at the police control
room it should be displayed on a conspicuous notice board.
The Supreme Court directed that failure to comply with the above
requirements shall apart from rendering the official concerned liable for
departmental action, also render him liable to be punished for contempt
of court and the proceedings for contempt of court may be instituted in
any High Court of the country, having territorial jurisdiction over the
matter.
State of Haryana v. Dinesh Kumar, (2008)

Two appeals in relation to the recruitment as Constable-Drivers in the
Haryana Police which have been decided differently by two co-ordinates
benches of the same HC were taken up for hearing before SC as issues to
be decided in the appeals were common to both.
Issue before the court was what constitutes “arrest” and “custody” in
relation to a criminal proceeding?
In these cases the applicants while filling their application forms
answered the both questions, whether they have ever been arrested and
whether ever been convicted by the Court of any offence, in negative.
In the first of the two appeals, the applicant in this appeal had not
surrendered to the police but had appeared before the Magistrate with his

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lawyer of his own volition and was immediately granted bail. Admittedly,
therefore, the respondent had not surrendered to the police but had
voluntarily appeared before the Magistrate and had prayed for bail and
was released on bail, so that as per the respondent’s understanding at no
point of time was he taken into custody or arrested.
As to the second of the two appeals, the applicants in response to
the query whether they have been convicted by the Court in any offence,
had quite truthfully answered that they had not been convicted by any
Court of any offence, since they had been acquitted of the charges
brought against them. With regard query whether they have ever been
arrested, the applicants appeared before the Ilaka Magistrate and were
released on their personal bonds without being placed under arrest or
being taken into custody. The information disclosed by them was held to
be suppression of the fact that they had been involved in a criminal case
though the tenor of the query was not to that effect and was confined to
the question as to whether they had been arrested.
One of the common questions which, therefore, need to be
answered in both these appeals is whether the manner in which they had
appeared before the Magistrate and had been released without being
taken into formal custody, could amount to “arrest” for the purpose of the
query in Column 13A (whether they have ever been arrested).
The same High Court in these two appeals took two different views
of the matter. While, on the one hand, one bench of the High Court in
Dinesh Kumar case held that since the accused had neither surrendered
nor had been taken into custody, it could not be said that he had actually
been arrested, on the other hand, another bench of the same High Court
dismissed similar writ petitions filed by Lalit Kumar and Bhupinder,
without examining the question as to whether they had actually been
arrested or not. The said bench decided the writ petitions against the writ
petitioners upon holding that they had withheld important information
regarding their prosecutions in a criminal case though ultimately they
were acquitted.
In our view, the reasoning given in Dinesh Kumars case in that
context is a possible view and does not call for interference under Article
136 of the Constitution. Conversely, the decision rendered in the writ
petitions filed by Lalit Kumar and Bhupinder has to be reversed to be in
line with the decision in Dinesh Kumar’s case. When the question as to
what constitutes “arrest” has for long engaged the attention of different
High Courts as also this Court, it may not be altogether unreasonable to
expect a layman to construe that he had never been arrested on his
appearing before the Court and being granted bail immediately. The
position would have been different, had the person concerned not been
released on bail. We would, in the facts of these cases, give the benefit of
a mistaken impression, rather than that of deliberate and wilful
misrepresentation and concealment of facts, to the appellants in the
second of the two appeals as well, while affirming the view taken by the
High Court in Dinesh Kumar’s case.

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Accordingly, although, we are of the view that the legal position as

to what constitutes arrest was correctly stated in the writ petitions filed
by Lalit Kumar and Bhupinder, we confirm the order passed in Dinesh
Kumar’s case and extend the same benefit to Lalit Kumar and Bhupinder
also.
The court reiterated the decision of this Court in Niranjan Singh v.
Prabhakar (AIR 1980) where it was held that a person can be stated to be
in judicial custody when he surrenders before the Court and submits to its
directions. The SC observed that It is no doubt true that in the instant
case the accused persons had appeared before the concerned Magistrates
with their learned advocates and on applying for bail were granted bail
without being taken into formal custody, which appears to have swayed
one of the benches of the Punjab and Haryana High Court to take a
liberal view and to hold that no arrest had actually been effected.
The said view, in our opinion, is incorrect as it goes against the very grain
of Sections 46 and 439 of the Code.
Arnesh Kumar v. State of Bihar, (2014)

(498A IPC. Husband or relative of husband of a woman subjecting her to
cruelty.)
The judgment arises from an appeal preferred by a husband who
apprehended his arrest in a case under Section 498-A of the IPC and
Section 4 of the Dowry Prohibition Act, 1961. The husband’s attempt to
secure anticipatory bail was failed and hence he knocked the door of
Supreme Court by way of SLP.
The SC in this case ruled on the principles for making arrest and detention
under the Cr.PC. The SC in its ruling has issued certain directions to be
followed by the police authorities and the Magistrates while making arrest
and/or authorizing detention of an accused.
The Supreme Court, in its Ruling, emphasized on the need for caution
while exercising the drastic power of arrest, which has for years, been
treated as a tool for harassment and oppression in the hands of the police
authorities and has greatly contributed to police corruption in India. Citing
statistics to demonstrate the misuse of the power of arrest by the police
authorities, the Supreme Court proceeded to set out certain objective
criteria to be applied before making arrest under the Cr.P.C.
The Supreme Court held that no arrest should be made only because the
offence is non-bailable and cognizable. Neither should arrest be made in a
routine, casual and cavalier manner or on a mere allegation of
commission of an offence made against a person. Arrest should only be
made after reasonable satisfaction reached after due investigation as to
the genuineness of the allegation. Dealing with Section 41 (1) of the
Cr.P.C., which provides for conditions precedent to making arrest, the
Supreme Court emphasized that for making arrest, the police must be
satisfied that all the conditions set out in the provision are met viz.,:

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Arrest is necessary:
• to prevent such person from committing any further offence; or
• for proper investigation of the case; or
• to prevent destruction or tampering with evidence by the accused;
or
• to prevent such person from influencing the witnesses; or
• to ensure presence of the accused in the court.
Police must, in any case, record reasons for making, or not making the
arrest in a particular case.
Further, the Supreme Court laid down the circumstances in which the
Magistrate might authorize detention of the accused. As per Article 22(2)
of the Constitution of India and Section 57 of the Cr.P.C, an accused must
be produced before the Magistrate without unnecessary delay and in no
circumstance beyond 24 hours, excluding the time necessary for the
journey. An accused may be kept in detention beyond 24 hours of his
arrest, only when authorized by the Magistrate2. The Supreme Court held
that when an accused is produced before the Magistrate, the police officer
effecting the arrest must furnish the facts, the reasons and the
conclusions for arrest and the Magistrate, only upon being satisfied that
the conditions of Section 41of Cr.P.C. are met and after recording its
satisfaction in writing, may proceed to authorize the detention of an
accused.
The Supreme Court, further, clarified that even in terms of Section 41 A

of the Cr.P.C., where arrest of an accused is not required, the conditions
precedent to arrest as envisaged under Section 41 of Cr.P.C. must be
complied with and shall be subject to the same scrutiny by the
Magistrate. The Supreme Court, in its Ruling, further condemned the
practice of police mechanically reproducing reasons contained in Section
41 Cr.P.C. for effecting arrest in case diaries being maintained by the
police officers.
In light of the above, the Supreme Court has issued the following
directions to all the State Governments:-
• To instruct the police officers to not mechanically arrest the accused
under Section 498 A of I.P.C. without satisfying themselves that the
conditions of arrest are met;
• All police officers to be provided with the check-list of conditions
precedent prescribed under Section 41(1)(b)(ii) of Cr.P.C. This
checklist is to be duly filed and forwarded to the Magistrate while
producing the accused for further detention;
• The Magistrate shall then peruse the report provided by the police
officer and only after recording its satisfaction in writing, may
authorize detention;
• The decision to not arrest the accused should be forwarded to the
Magistrate within two weeks from the date of institution of the case.

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The period may be extended by the Superintendent of police for

reasons to be recorded in writing;
• The notice of appearance in terms of Section 41 A Cr.P.C. should be
served on the accused within two weeks from the date of institution of
the case. The same may be extended by the Superintendent of police
for reasons to be recorded in writing.
• Failure to comply with the directives set out above may render police
officers/Magistrates liable for departmental action and proceedings for
contempt of court to be instituted before the High Court having
territorial jurisdiction.
• Authorising detention without recording reasons as aforesaid by the
Judicial Magistrate concerned shall be liable for departmental action by
the appropriate High Court.
State v. Captain Jagjit Singh (1962)

(Section 436, 498 of Cr. PC)
The respondent who was a former Captain of the Indian Army and was
employed in the delegation in India of a French Company was prosecuted
along with two others for conspiracy and passing on Official Secrets to a
foreign agency under ss.3 and 5 of the Official Secrets Act. The
respondent applied for bail to the Sessions Judge; but his application was
rejected by the Additional Sessions Judge, Delhi. Thereupon the
respondent applied under Section 498 of the Code of Criminal Procedure
to the High Court, and the main contention urged before the High Court
was that on the facts disclosed the case against the respondent could only
be under Section 5 of the Act, which is bailable and not under Section 3
which is non bailable. The High Court was of the view that it was
hardly possible at that stage to go into the question whether
Section 3 or Section 5 applied; but that there was substance in
the suggestion on behalf of the respondent that the matter was arguable.
Consequently the High Court took the view that as the other two persons
prosecuted along with the respondent had been released on bail, the
respondent should also be so released, particularly as it appeared that
the trial was likely to take a considerable time and the respondent
was not likely to abscond. The High Court, therefore, allowed bail to the
respondent. Thereupon the State made an application for special leave
which was granted.
The error in the order of the High Court is that it did not consider
whether the offence for which the respondent was being prosecuted
was a bailable one or otherwise. Even if the High Court thought that it
would not be proper at that stage, where commitment proceedings were
to take place, to express an opinion on the question whether the offence
in this case fell under Section 5 which is bailable or under Section 3 which
is not bailable, it should have proceeded to deal with the application on
the assumption that the offence was under Section 3 and therefore not
bailable. The High Court, however, did not deal with the application for
bail on this footing, for in the order it is said that the question whether

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the offence fell under Section 3 or Section 5 was arguable. It follows from
this observation that the High Court thought it possible that the offence
might fall under Section 5. This, in our opinion, was the basic error into
which the High Court fell in dealing with the application for bail before it,
and it should have considered the matter even if it did not consider it
proper at that stage to decide the question whether the offence was
under Section 3 or Section 5, on the assumption that the case fell under
Section 3 of the Act. It should then have taken into account the various
considerations, such as, nature and seriousness of the offence, the
character of the evidence, circumstances which are peculiar to the
accused, a reasonable possibility of the presence of the accused not
being secured at the trial, reasonable apprehension of witnesses
being tampered with the larger interests of the public or the State, and
similar other considerations, which arise when a court is asked for bail in
a non-bailable offence. It is true that under Section 498 of the Code of
Criminal Procedure, the powers of the High Court in the matter of
granting bail are very wide; even so where the offence is non-
bailable, various considerations such as those indicated above have to
be taken into account before bail is granted in a non-bailable offence.
This, the High Court does not seem to have done, for it proceeded
as if the offence for which the respondent was being prosecuted
might be a bailable one.
The only reasons which the High Court gave for granting bail in this case
were that the other two persons had been granted bail, that there
was no likelihood of the respondent absconding, he being well-
connected, and that the trial was likely to take considerable time. These
are however not the only considerations which should have weighed
with the High Court if it had considered the matter as relating to a non-
bailable offence under Section 3 of the Act.
Moti Ram v. State of M.P. (1978)

(Bail jurisprudence-Enlargement on bail with or without sureties-Scope of
Ss. 440(1), 441, 445 read with s. 389(1) of the Cr.PC, 1973 -Criteria to
guide in quantifying the amount of bail and acceptance of surety whose
estate is situate in a different district or State, explained.)
Justice Frankfurter said: “there is no surer way to misread a
document than to read it literally”.
The accused who was a poor mason was convicted. The apex court had
passed an order for bail in his favour to the satisfaction of the Chief
Judicial Magistrate. The direction of SC did not spell out the details of the
bail, and so, the magistrate ordered that a surety in a sum of Rs 10,000
be produced and further refused to allow his brother to become a surety
as his property was in the adjoining village. He went on appeal once more
to the apex court and Justice Krishna Iyer condemned the act of the CJM,
and said that the judges should be more inclined towards bail and not jail.

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He appealed again to modify the original order “to the extent that
petitioner be released on furnishing surety to the tune of Rs 2,000 or on
executing a personal bond or pass any other order or direction as this
Hon‘ble Court may deem fit and proper”.
Legal issues in consideration before the Court:

(1) Can the Court, under the Code of Criminal Procedure, enlarge,
on his own bond without sureties, a person undergoing incarceration for
a non bailable offence either as undertrial or as convict who has appealed
or sought special leave?
(2) If the Court decides to grant bail with sureties, what criteria should
guide it in quantifying the amount of bail, and
(3) Is it within the power of the Court to reject a surety because he or
his estate is situate in a different district or State?
SC observed as under:
We should suggest that the Magistrate must always bear in mind that
monetary bail is not a necessary element of the criminal process and
even if risk of monetary loss is a deterrent against fleeing from
justice, it is not the only deterrent and there are other factors
which are sufficient deterrents against flight. The Magistrate must
abandon the antiquated concept under which pre-trial release could be
ordered only against monetary Bail. That concept is out-dated and
experience has shown that it has done more harm than good. The new
insight into the subject of pre-trial release which has now been developed
in socially advanced countries and particularly the United States should
now inform the decisions of the Magistrates in regard to pre-trial release.
Every other feasible method of pre-trial release should be exhausted
before resorting to monetary bail. The practice which is now being
followed in the United States is that the accused should ordinarily be
released on order to appear or on his own recognizance unless it is shown
that there is substantial risk of non-appearance or there are
circumstances justifying imposition of conditions on release. . . If a
Magistrate is satisfied after making an enquiry into the condition and
background of the accused that the accused has his roots in the
community and is not likely to abscond, he can safely release the accused
on order to appear or on his own recognizance. . .
Thus, the legal literature, Indian and Anglo-American, on bail

jurisprudence lends countenance to the contention that bail, loosely
used, is comprehensive enough to cover release on one‘s own bond
with or without sureties.
Supreme Court Directives

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• An accused person should not be required to produce a surety

from the same district especially when he is a native of some other
place
• Bails covers release on one’s own bond, with or without sureties
• Bail should be given liberally to poor people simply on a personal
bond, if reasonable conditions are satisfied
• The bail amount should be fixed keeping in mind the financial condition
of the accused
• When dealing with cases of persons belonging to the weak categories in
monetary terms - indigent young persons, infirm individuals or women
- court should be liberal in releasing them on their personal
recognizance
Gurcharan Singh v. State (Delhi Admn.) (1978)

(Constitution Art. 136-When SC would interfere with order cancelling bail
by High Court. Cr.PC 1973-Sections 437, 439 and 497-Bail-Principles for
grant of-Cancellation of.)
The prosecution is launched against the appellant accused who are

ranging, from the Deputy inspector General of Police to the Police
Constables on the ground that they were party to a criminal conspiracy to
kill Sunder and caused his death by drowning him in Yamuna River
pursuant to the conspiracy. Sunder was said to be a notorious dacoit who
was wanted in several cases of murder and dacoity alleged to have been
committed by him in Delhi and elsewhere. It is stated that by May 1976
Sunder became a security risk for Sanjay Gandhi. The appellants were
arrested in connection with the prosecution.
The Magistrate declined to release them on bail. Thereafter, they
approached the Sessions Judge under s. 439(Z) of, the Cr.PC 1973. The
Sessions Judge granted bail to the 4 appellants. Thereafter the State
moved the High Court under s.439(2) against the order of the Sessions
Judge for cancellation of the bail. The Sessions Judge while granting the
bail held that the arguments of the prosecution that if the appellants were
released on bail they would misuse their freedom to tamper with the
witnesses was not quite convincing. The learned Judge further held that
there was little to gain by tampering with the witnesses who have
themselves already tampered with their evidence by making contradictory
statements in respect of the same transaction. The learned Judge also
held that there was inordinate delay in registering the case and that there
was little probability of the appellants fleeing from justice or tampering
with the witnesses and also having regard to the character of evidence
the court was inclined to grant bail to the appellants.
The High Court while setting aside the orders of the Sessions Judge
observed, that considering the nature of the offence, character of the
evidence, including the fact that some of the witnesses during preliminary
enquiry did not fully support the prosecution case, the reasonable
apprehension of witnesses being tampered with and all other factors

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relevant for consideration for grant or refusal of bail in a non-bailable

offence punishable with death or imprisonment for life there was no
option but to cancel the bail.
Dismissing the appeal, HELD :

(1) The change in language u/s. 437(1) does not affect the true legal
position. Under the new Code as well as the old one an accused after
being arrested is produced before the Magistrate. There is not a provision
in the code Whereby an accused is for the first time produced after initial
arrest before the Court of Sessions or before the High Court. It is not
possible to hold that the Sessions Judge or the High Court certainly
enjoying wide powers will be oblivious of the considerations of the
likelihood of the accused being guilty of an offence punishable with death
or imprisonment for life.
(2)A Court of Sessions cannot cancel a bail which has already been
granted, by the High Court unless new circumstances arise during the
progress of the trial after the accused person has been admitted to bail by
the High Court. If, however, a Court of Sessions had admitted an accused
person to bail the State has two options. It may move the Sessions Judge
if certain new circumstances have arisen which were not earlier known to
the State. The State may as well approach the High Court being the
superior court under s. 439(2) to commit the accused to custody. This
position follows from the subordinate position of the court of Sessions vis-
a-vis the High Court. Under s. 397 the High Court and the Sessions Judge
have concurrent powers of revision. However, when an application under
that section has been put in by person to the High Court or to the
Sessions Judge no further application by the same person shall be
entertained by either authority.
(3)Chapter XXXIII contains provisions in respect of bail and bonds.

Section 436 provides for invariable rule for bail in case of bailable
offences subject to the specified exception under sub-s.(2). Section 437
provides as to when bail may be taken in case of non-bailable offences. It
makes a distinction between offences punishable with death or
imprisonment for life on the, one hand and the rest of the offences on the
other hand.
(4)With regard to the first category if there are reasonable grounds for
believing that an accused has been so guilty in other non-bailable cases
judicial discretion will always be exercised by the court in favour of
granting bail subject to s. 437(3) with regard to imposition of conditions,
if necessary. In case of non-bailable offences punishable with death or
imprisonment for life reasons have to be recorded for releasing a person
on bail. The only limited enquiry by the Magistrate at that stage relates to
the materials for the suspicion. The position would naturally change on
investigation progress and more facts and circumstances come to light.

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The over-riding considerations in granting bail are the nature and gravity
of the circumstances in which the offence is committed, the position and
the status of the accused with reference to victim and the witnesses, the
likelihood of the accused fleeing from justice, of repeating the offence, of
jeopardising his own life being faced with a grim prospect of possible
conviction in the case, of tampering with the witnesses, the history of the
case as well as of its investigation and other relevant grounds which in
view of so many variable factors, cannot be exhaustively set-out.
The State v. Captain Jagjit Singh, [1962] (3) S.C.R., 622,referred to.
(5)Ordinarily, the High Court would not exercise its discretion to interfere
with an order of bail granted by the Sessions Judge in favour of the
accused.
In the present case, the Sessions Judge did not take into proper account
the grave apprehension of the prosecution that there was likelihood of the
appellants, tampering with the prosecution witnesses. In the peculiar
nature of the case and the position of the appellants in relation to the eye
witnesses it was incumbent upon the Sessions Judge to give proper
weight to the serious apprehension of the prosecution with regard to the
tampering with the eye witnesses. The manner in which the above plea
was disposed of by the Sessions Judge was very casual. The facts and
circumstances of each case will govern the exercise of judicial discretion
in granting or cancelling bail. The High Court has correctly appreciated the
entire position and the Sessions Judge did not at the stage the case was
before him. This court would not, therefore, be justified u/Art. 136 of the
Constitution in interfering with the discretion exercised by the High Court
in cancelling the bail.
The Court, however, directed that the Magistrate without loss of further
time, should pass an appropriate order under s. 209 Cr.PC and that Court
of Sessions would thereafter commence trial at an early date and examine
all the eye witnesses first and such other material witnesses thereafter as
may be produced by the prosecution as early as possible and that trial
should proceed day to day as far as practicable. The Court also observed
that after the statements of the eye witnesses and the said Panch witness
have been recorded it would be open to the accused to move the Sesions
Judge for admitting them to bail.
Sanjay Chandra v. Central Bureau of Investigation, (2012)

(2G scam case)
In this case the Court extensively dealt with the issue of granting or
refusing the grant of Bail, that is, circumstances under which only Bail
should be refused, and ordinarily, as a general rule, Bail should be given.
1. Purpose of Bail

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• In bail applications, generally, it has been laid down from the earliest
times that the object of bail is to secure the appearance of the accused
person at his trial by reasonable amount of bail. The object of bail is
neither punitive nor preventative. Deprivation of liberty must be
considered a punishment, unless it can be required to ensure that an
accused person will stand his trial when called upon. The courts owe
more than verbal respect to the principle that punishment begins after
conviction, and that every man is deemed to be innocent until duly
tried and duly found guilty.
• From the earliest times, it was appreciated that detention in custody
pending completion of trial could be a cause of great hardship. From
time to time, necessity demands that some un-convicted persons
should be held in custody pending trial to secure their attendance at
the trial but in such cases, `necessity’ is the operative test. In this
country, it would be quite contrary to the concept of personal liberty
enshrined in the Constitution that any person should be punished in
respect of any matter, upon which, he has not been convicted or that in
any circumstances, he should be deprived of his liberty upon only the
belief that he will tamper with the witnesses if left at liberty, save in the
most extraordinary circumstances.
• Apart from the question of prevention being the object of refusal of
bail, one must not lose sight of the fact that any imprisonment before
conviction has a substantial punitive content and it would be improper
for any court to refuse bail as a mark of disapproval of former conduct
whether the accused has been convicted for it or not to refuse bail to
an unconvicted person for the purpose of giving him a taste of
imprisonment as a lesson.
2. Both the seriousness of the charge and the severity of the punishment
should be taken into consideration while determining the bail
application
3. Right to bail is not to be denied merely because of the sentiments of

the community against the accused
• The grant or refusal to grant bail lies within the discretion of the Court.
The grant or denial is regulated, to a large extent, by the facts and
circumstances of each particular case. But at the same time, right to
bail is not to be denied merely because of the sentiments of the
community against the accused. The primary purposes of bail in a
criminal case are to relieve the accused of imprisonment, to relieve the
State of the burden of keeping him, pending the trial, and at the same
time, to keep the accused constructively in the custody of the Court,
whether before or after conviction, to assure that he will submit to the
jurisdiction of the Court and be in attendance thereon whenever his
presence is required.

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4. Article 21 violated when undertrial prisoners are detained in jail custody

to an indefinite period
• When the under trial prisoners are detained in jail custody to an
indefinite period, Article 21 of the Constitution is violated. Every
person, detained or arrested, is entitled to speedy trial.
Shri Gurbaksh Singh Sibbia v. State of Punjab (1980)

(Anticipatory Bail- Sec. 438 of Cr.PC, Scope of Judicial balancing of
personal liberty and the investigational powers of the Police, explained.)
The accused, Sri Gurbaksh Singh Sibbia was a Minister of Irrigation and
Power in the Government of Punjab. Grave allegations of political
corruption were made against him and others whereupon applications
were filed in the High Court of Punjab and Haryana under section 438 of
the Cr. PC, praying that the appellants be directed to be released on bail,
in the event of their arrest on the aforesaid charges.
Considering the importance of the matter, a learned single Judge referred

the applications to a Full Bench, which by its judgment in 1977 dismissed
them.
Allowing the appeals in part, the Supreme Court, HELD:

1. The High Court and the Court of Session should be left to exercise their
jurisdiction under section 438 by a wise and careful use of their discretion
which by their long training and experience, they are ideally suited to do.
The ends of justice will be better served by trusting these courts to act
objectively and in consonance with principles governing the grant of bail
which are recognised over the years, than by divesting them of their
discretion which the legislature has conferred upon them, by laying down
inflexible rules of general application. If they err, they are liable to be
corrected.
2. Section 438(1) of the Code lays down a condition which has to be

satisfied before anticipatory bail can be granted. The applicant must show
that he has "reason to believe" that he may be arrested for a non-bailable
offence. The use of the expression "reason to believe" shows that the
belief that the applicant may be so arrested must be founded on
reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not
enough for the applicant to show that he has some sort of a vague
apprehension that someone is going to make an accusation against him,
in pursuance of which he may be arrested. The grounds on which the
belief of the applicant is based that he may be arrested for a non-bailable
offence, must be capable of being examined by the court objectively,
because it is then alone that the court can determine whether the
applicant has reason to believe that he may be so arrested. Section
438(1), therefore, cannot be invoked on the basis of vague and general
allegations, as if to arm oneself in perpetuity against a possible arrest.

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Otherwise, the number of applications for anticipatory bail will be as

large, as, at any rate, the adult populace. Anticipatory bail is a device to
secure the individual's liberty; it is neither a passport to the commission
of crimes nor a shield against any and all kinds of accusation, likely or
unlikely.
Secondly, if an application for anticipatory bail is made to the High Court
or the Court of Session it must apply its own mind to the question and
decide whether a case has been made out for granting such relief. It
cannot leave the question for the decision of the Magistrate concerned
under Section 437 of the Code, as and when an occasion arises. Such a
course will defeat the very object of Section 438.
Thirdly, the filing of a First Information Report is not a condition
precedent to the exercise of the power under Section 438. The imminence
of a likely arrest founded on a reasonable belief can be shown to exist
even if an F.I.R. is not yet filed.
Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so
long as the applicant has not been arrested.
Fifthly, the provisions of Section 438 cannot be invoked after the arrest of
the accused. The grant of "anticipatory bail" to an accused who is under
arrest involves a contradiction in terms, in so far as the offence or
offences for which he is arrested, are concerned. After arrest, the accused
must seek his remedy under Section 437 or Section 439 of the Code, if he
wants to be released on bail in respect of the offence or offences for
which he is arrested.
3. However, a "blanket order" of anticipatory bail should not generally be

passed. This flows from the very language of the section which requires
the appellant to show that he has "reason to believe" that he may be
arrested. A belief can be said to be founded on reasonable grounds only if
there is something tangible to go by on the basis of which it can be said
that the applicant's apprehension that he may be arrested is genuine.
That is why, normally, a direction should not issue under Section 438(1)
to the effect that the applicant shall be released on bail "whenever
arrested for which ever offence whatsoever". That is what is meant by a
'blanket order' of anticipatory bail, an order which serves as a blanket to
cover or protect any and every kind of allegedly unlawful activity, in fact
any eventuality, likely or unlikely regarding which, no concrete
information can possibly be bad. The rationale of a direction under
Section 438(1) is the belief of the applicant founded on reasonable
grounds that he may be arrested for a non-bailable offence. It is
unrealistic to expect the applicant to draw up his application with the
meticulousness of a pleading in a civil case and such is not requirement of
the section. But specific events and facts must be disclosed by the
applicant in order to enable the court to judge of the reasonableness of
his belief, the existence of which is the sine qua non of the exercise of
power conferred by the section.

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Apart from the fact that the very language of the statute compels this
construction, there is an important principle involved in the insistence that
facts, on the basis of which a direction under Section 438(1) is sought,
must be clear and specific, not vague and general. It is only by the
observance of that principle that a possible conflict between the right of
an individual to his liberty and the right of the police to investigate into
crimes reported to them can be avoided.
A blanket order of anticipatory bail is bound to cause serious interference

with both the right and the duty of the police in the matter of
investigation because, regardless of what kind of offence is alleged to
have been committed by the applicant and when, an order of bail which
comprehends allegedly unlawful activity of any description whatsoever,
will prevent the police from arresting the applicant even if the commits,
say, a murder in the presence of the public. Such an order can then
become a charter of lawlessness and weapon to stifle prompt
investigation into offences which could not possibly be predicated when
the order was passed. Therefore, the court which grants anticipatory bail
must take care to specify the offence or offences in respect of which alone
the order will be effective. The power should not be exercised in a
vacuum.
4. An order of bail can be passed under section 438(1) of the Code

without notice to the Public Prosecutor. But notice should issue to the
public prosecutor or the Government Advocate forthwith and the question
of bail should be re-examined in the light of the respective contentions of
the parties. The ad-interim order too must conform to the requirements of
the section and suitable conditions should be imposed on the applicant
even at that stage.
6. Equally the operation of an order passed under section 438(1) need not
necessarily be limited in point of time. The Court may, if there are
reasons for doing so, limit the operation of the order to a short period
until after the filing of an F.I.R. in respect of the matter covered by the
order. The applicant may in such cases be directed to obtain an order of
bail under Section 437 or 439 of the Code within a reasonably short
period after the filing of the F.I.R. as aforesaid. But this need not be
followed as an invariable rule. The normal rule should be not to limit the
operation of the order in relation to a period of time.
7. Clause (1) of Section 438 is couched in terms, broad and unqualified.

The legislature conferred a wide discretion on the High Court and the
Court of Session to grant anticipatory bail because it evidently felt, firstly,
that it would be difficult to enumerate the conditions under which
anticipatory bail should or should not be granted and secondly; because
the intention was to allow the higher courts in the echelon a somewhat
free hand in the grant of relief in the nature of anticipatory bail. That is

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why, departing from the terms of Sections 437 and 439, Section 438(1)
uses the language that the High Court or the Court of Session "may, if it
thinks fit" direct that the applicant be released on bail. Sub-section (2) of
Section 438 is a further and clearer manifestation of the same legislative
intent to confer a wide discretionary power to grant anticipatory bail. It
provides that the High Court or the Court of Session, while issuing a
direction for the grant of anticipatory bail, "may include such conditions in
such directions in the light of the facts of the particular case, as it may
think fit" including the conditions which are set out in clauses (i) to (iv) of
sub-section (2). The proof of legislative intent can best be found in the
language which the legislature uses. Ambiguities can undoubtedly be
resolved by resort to extraneous aids but words, as wide and explicit as
have been used in Section 438, must be given their full effect, especially
when to refuse to do so will result in undue impairment of the freedom of
the individual and the presumption of innocence. It has to be borne in
mind that anticipatory bail is sought when there is a mere apprehension
of arrest on the accusation that the applicant has committed a non-
bailable offence. A person who has yet to lose his freedom by being
arrested asks for freedom in the event of arrest. That is the stage at
which it is imperative to protect his freedom, in so far as one may, and to
give full play to the presumption that he is innocent. In fact, the stage at
which anticipatory bail is generally sought brings about its striking
dissimilarity with the situation in which a person who is arrested for the
commission of a non-bailable offences asks for bail. In the latter situation,
adequate data is available to the Court, or can be called for by it, in the
light of which it can grant or refuse relief and while granting it, modify it
by the imposition of all or any of the conditions mentioned in Section 437.
8. The amplitude of judicial discretion which is given to the High Court

and the Court of Sessions, to impose such conditions as they may think fit
while granting anticipatory bail, should not be cut down, by a process of
construction, by reading into the statute conditions which are not to be
found therein like those evolved by the High Court. The High Court and
the Court of Session to whom the application for anticipatory bail is made
ought to be left free in the exercise of their judicial discretion to grant bail
if they consider it fit so to do on the particular facts and circumstances of
the case and on such conditions as the case may warrant. Similarly, they
must be left free to refuse bail if the circumstances of the case so
warrant, on considerations similar to those mentioned in Section 437 or
which are generally considered to be relevant under Section 439 of the
Code.
Generalisations on matters which rest on discretion and the attempt to

discover formulae of universal application when facts are bound to differ
from case to case frustrate the very purpose of conferring discretion. No
two cases are alike on facts and therefore, Courts have to be allowed a
little free play in the joints if the conferment of discretionary power is to

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be meaningful. There is no risk involved in entrusting a wide discretion to

the Court of Session and the High Court in granting anticipatory bail
because, firstly these are higher courts manned by experienced persons,
secondly their order are not final but are open to appellate or revisional
scrutiny and above all because, discretion has always to be exercised by
courts judicially and not according to whim, caprice or fancy. On the other
hand, there is a risk in foreclosing categories of cases in which
anticipatory bail may be allowed because life throws up unforeseen
possibilities and offers new challenges. Judicial discretion has to be free
enough to be able to take these possibilities in its stride and to meet
these challenges.
9. It is true that the functions of judiciary and the police are in a sense
complementary and not overlapping. 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. In fact, two of the usual conditions incorporated in a
direction issued under section 438(1) are those recommended in Sub-
section (2)(i) and (ii) which require the applicant to co-operate with the
police and to assure that he shall not tamper with the witnesses during
and after the investigation. While granting relief under Section 438(1),
appropriate conditions can be imposed under Section 438(2), so as to
ensure an uninterrupted investigation. One of such conditions can even be
that in the event of the police making out a case of a likely discovery
under Section 27 of the Evidence Act, the person released on bail shall be
liable to be taken in police custody for facilitating the discovery. Besides,
if and when the occasion arises, it may be possible for the prosecution to
claim the benefit of Section 27 of the Evidence Act in regard to a
discovery of facts made in pursuance of information supplied by a person
released on bail.
10. Since denial of bail amounts to deprivation of personal liberty, the

Court should lean against the imposition of unnecessary restrictions on
the scope of section 438, especially when no such restrictions have been
imposed by the legislature in the terms of that section. Section 438 is a
procedural provision which is concerned with the personal liberty of the
individual, who is entitled to the benefit of the presumption of innocence
since he is not, on the date of his application for anticipatory bail,
convicted of the offence in respect of which he seeks bail. An over-
generous infusion of constraints and conditions which are not to be found
in Section 438 can make its provisions constitutionally vulnerable since
the right to personal freedom cannot be made to depend on compliance
with unreasonable restrictions.
There are several considerations, too numerous to enumerate the

combined effect of which must weigh with the court while granting or
rejecting anticipatory bail. The nature and seriousness of the proposed

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charges, the context of the events likely to lead to the making of the
charges, a reasonable possibility of the applicant's presence not being
secured at the trial, a reasonable apprehension that witnesses will be
tampered with and "the larger interests of the public or the state" are
some of the considerations which the court has to keep in mind while
deciding an application for anticipatory bail.
State (Delhi Administration) v. Sanjay Gandhi, (1978)

One Shri Amrit Nahata had produced a film called 'Kissa Kursi Ka', which
portrayed the story of the political doings of the Sanjay Gandhi and his
mother, Smt. Indira Gandhi, the former Prime Minister of India. The
Board of Censors declined to grant a certificate for exhibition of the
film whereupon, Shri Nahata filed a writ petition in this Court for a Writ of
mandamus. In 1975 a direction was given by the Court that the film be
screened to enable the Judges to see whether the censorship certificate
was refused rightly. In order to prevent this Court from exercising its
constitutional jurisdiction and with a view to preventing the film from
being publicly exhibited, the accused and his co-accused Shri Vidya
Charan Shukla, who was then the Minister for information and
Broadcasting, entered into a conspiracy to take possession of the film and
to destroy it. The Supreme Court was informed that it was not possible to
screen the film for evaluation by the Judges. The raid on the Gurgaon
premises of the Maruti Limited yielded incriminating material to show that
some boxes contained the spools of the film 'Kissa Kursi Ka' which were
burnt and destroyed in the factory premises.
The accused who was arraigned in a prosecution for offences u/Ss. 120B
r/w Ss. 409, 435 and 201 I.P.C. instituted by the Central Bureau of
Investigation in the Court of the Chief Metropolitan Magistrate, Delhi was
granted anticipatory bail, by the High Court of Delhi. When the Committal
Proceedings commenced in the Court of the Chief Metropolitan Magistrate,
Delhi, the two approvers in the case turned hostile, resiled from their
statements made to the police u/s 161 of Cr.P.C., and retracted the
confessions made to the Chief Metropolitan Magistrate. An application
filed for cancellation of the respondents bail was dismissed by a learned
single Judge of the Delhi High Court.
Allowing the appeal in part, the Supreme Court held:

Rejection of bail when bail is applied for is one thing; cancellation of bail
already granted is quite another. It is easier to reject a bail application in
a non-bailable case than to cancel a bail granted in such a case.
Cancellation of bail necessarily involves the review of a decision already
made and can by and large be permitted only if, by reason of supervening
circumstances, it would be no longer conducive to a fair trial to allow the
accused to retain his freedom during the trial.

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The objective fact that witnesses have turned hostile must be shown to
bear a causal connection with the subjective involvement therein of the
respondent. Without such proof, a bail once granted cannot be cancelled
on the off chance or on the supposition that witnesses have been won
over by the accused. Inconsistent testimony can no more be ascribed by
itself to the influence of the accused than consistent testimony, by itself,
can be ascribed to the pressure of the prosecution. The prosecution,
therefore, can establish its case in an application for cancellation of bail
by showing on a preponderance of probabilities that the accused has
attempted to tamper or has tampered with its witnesses. Proving by the
test of balance of probabilities that the accused has abused his liberty or
that there is a reasonable apprehension that he will interfere with the
course of justice is all that is necessary for the prosecution to do in order
to succeed in an application for cancellation of bail.
SC held in the present case the evidence points in one direction only,
leaving no manner of doubt that the respondent has misused the facility
afforded to him by the High Court by granting anticipatory bail to him.
Mohan Singh v. State of Bihar (2011)

In this case the accused was charged with conspiracy for murder under
sections 120B of IPC and of extortion under section 387 of IPC and was
convicted by the lower courts. The accused filed an appeal before the SC
where points were raised relating to errors in framing of charge.
The purpose of framing a charge is to give intimation to the accused of

clear, unambiguous and precise notice of the nature of accusation that
the accused is called upon to meet in the course of a trial (SC judgement
in V.C. Shukla v. State 1980 supp SCC 92).
SC held in view of such consistent opinion of this Court, we are of the

view that no prejudice has been caused to the appellant for non-
mentioning of Section 302 I.P.C. in the charge since all the ingredients of
the offence were disclosed. The appellant had full notice and had ample
opportunity to defend himself against the same and at no earlier stage of
the proceedings, the appellant had raised any grievance.
Apart from that, on overall consideration of the facts and circumstances of

this case we do not find that the appellant suffered any prejudice nor has
there been any failure of justice.
In the instant case, in the charge it has been clearly mentioned that the
accused-appellant has committed the murder of Anil Jha. By mentioning
that the accused has committed the murder of Anil Jha all the ingredients
of the charge have been mentioned and the requirement of Section 211,
sub-section (2) has been complied with. Therefore, we do not find any
substance in the aforesaid grievance of the appellant.

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Ajay Kumar Parmar v. State of Rajasthan 2012

In respect of an incident of rape, an FIR was lodged. The Dy.S.P. recorded
the statement of the prosecutrix, wherein she narrated the facts alleging
rape against the accused. The prosecutrix appeared before the Chief
Judicial Magistrate and lodged a complaint stating that the police was not
investigating the case properly. She filed an application that her
statement be recorded under Section 164 Cr.P.C. The prosecutrix had
signed the said application. It was also signed by her lawyer. However,
she was not identified by any one. The prosecutrix appeared before the
Judicial Magistrate itself and her statement under Section 164 Cr.P.C.
was recorded. After completing the investigation, charge-sheet was filed
before the Judicial Magistrate. The Judicial Magistrate refused to take
cognizance of the offences on the basis of the statement of the
prosecutrix, recorded under Section 164 Cr.P.C.
Aggrieved, the public prosecutor filed a revision before the Learned

Sessions Judge, wherein, the aforesaid order was reversed on two
grounds, firstly, that a case under Sections 376 and 342 IPC was
triable by the Sessions Court and the Magistrate, therefore, had no
jurisdiction to discharge/acquit the appellant on any ground whatsoever,
as he was bound to commit the case to the Sessions Court, which
was the only competent court to deal with the issue. Secondly, the
alleged statement of the prosecutrix under Section 164 Cr.P.C. was not
worth reliance as she had not been produced before the Magistrate by the
police.
The revisional court as well as the High Court held that the statement
under Section 164 Cr.P.C. had not been recorded correctly. The said
courts set aside the order of the Judicial Magistrate not taking the
cognizance of the offence. Hence, appeal was filed before the SC by the
accused.
In view of the above, it is evident that this case is squarely covered by

the judgment of the three Judge bench in Jogendra Nahak &Ors. v. State
of Orissa & Ors., AIR 1999, which held that a person should be produced
before a Magistrate, by the police for recording his statement under
Section 164 Cr.P.C. The Chief Judicial Magistrate who entertained the
application and further directed the Judicial Magistrate to record the
statement of the prosecutrix, was not known to the prosecutrix in the
case and the latter also recorded her statement, without any attempt at
identification, by any court officer/lawyer/police or anybody else.
SC observed in view of the judgment in Sanjay Gandhi v. Union of India,

AIR 1978 SC it is evident from the aforesaid judgment that when an
offence is cognizable by the Sessions court, the Magistrate cannot probe
into the matter and discharge the accused. It is not permissible for him to

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do so, even after considering the evidence on record, as he has no

jurisdiction to probe or look into the matter at all. His concern should be
to see what provisions of the Penal statute have been mentioned and in
case an offence triable by the Sessions Court has been mentioned, he
must commit the case to the Sessions Court and do nothing else.
Thus, we are of the considered opinion that the Magistrate had no

business to discharge the appellant. In fact, Section 207-A in the old
Cr.P.C., empowered the Magistrate to exercise such a power. However, in
the Cr.P.C. 1973, there is no provision analogous to the said Section 207-
A. He was bound under law, to commit the case to the Sessions
Court, where such application for discharge would be considered. The
order of discharge is therefore, a nullity, being without jurisdiction.
More so, it was not permissible for the Judicial Magistrate to take into
consideration the evidence in defence produced by the appellant as it has
consistently been held by this Court that at the time of framing the
charge, the only documents which are required to be considered are the
documents submitted by the investigating agency along with the charge-
sheet. Any document which the accused want to rely upon cannot be read
as evidence. If such evidence is to be considered, there would be a mini
trial at the stage of framing of charge. That would defeat the object of the
Code. The provision about hearing the submissions of the accused as
postulated by Section 227 means hearing the submissions of the accused
on the record of the case as filed by the prosecution and documents
submitted therewith and nothing more. Even if, in a rare case it is
permissible to consider the defence evidence, if such material
convincingly establishes that the whole prosecution version is totally
absurd, preposterous or concocted, the instant case does not fall in
that category.
The court should not pass an order of acquittal by resorting to a

course of not taking cognizance, where prima facie case is made out by
the Investigating Agency. More so, it is the duty of the court to
safeguard the right and interests of the victim, who does not
participate in discharge proceedings. At the stage of application of Section
227, the court has to shift the evidence in order to find out whether
or not there is sufficient ground for proceeding against the accused.
Thus, appreciation of evidence at this stage, is not permissible. (P.
Vijayan v. State of Kerala & Anr., AIR 2010 SC 663; and R.S. Mishra v.
State of Orissa &Ors., AIR 2011 SC 1103).
The scheme of the Code, particularly, the provisions of Sections 207 to

209 Cr.P.C., mandate the Magistrate to commit the case to the Court of
Sessions, when the charge-sheet is filed. A conjoint reading of these
provisions makes it crystal clear that the committal of a case exclusively
triable by the Court of Sessions, in a case instituted by the police is

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mandatory. The scheme of the Code simply provides that the Magistrate
can determine, whether the facts stated in the report make out an offence
triable exclusively, by the Court of Sessions. Once he reaches the
conclusion that the facts alleged in the report, make out an
offence triable exclusively by the Court of Sessions, he must commit the
case to the Sessions Court.
The Magistrate, in exercise of its power under Section 190 Cr.P.C., can
refuse to take cognizance if the material on record warrants so. The
Magistrate must, in such a case, be satisfied that the complaint, case
diary, statements of the witnesses recorded under Sections 161 and 164
Cr.P.C., if any, do not make out any offence. At this stage, the
Magistrate performs a judicial function. However, he cannot appreciate
the evidence on record and reach a conclusion as to which evidence is
acceptable, or can be relied upon. Thus, at this stage appreciation of
evidence is impermissible. The Magistrate is not competent to weigh the
evidence and the balance of probability in the case.
Abdul Karim v. State of Karnataka (2000)

Veerappan is operating in the forest that has been his hideout for 10
years or more along with secessionist Tamil elements. Veerappan was a
dreaded criminal and despite various attempts over a number of years he
could not be apprehended. Veerappan and his associates are alleged to be
responsible for killing of a large number of people (over 100) including
police personnel, forest personnel and others besides being responsible
for causing injuries to a large number of people and loss of property to
the tune of crores of rupees. Various charges relating to murder, ambush,
attempt to overawe the Government of Karnataka, killing of elephants,
smuggling of sandalwood etc. from the forest, possession of arms and
ammunition, opening of fire on task force personnel, have been framed
against accused who are said to be the associates of Veerappan. Cases
filed against them are under the provisions of Terrorist and Disruptive
Activities (Prevention) Act (TADA) and other penal provisions, i.e., Indian
Penal Code, Arms Act and Explosive Substances Act. Veerappan abducted
Rajkumar, a very popular film actor of Karnataka, from his farmhouse
along with three others.
There were apprehensions that in case any harm is caused to Rajkumar,

there may be backlash on Tamils in Karnataka and it may lead to
problems between the two linguistic communities in the States. The
people may indulge in acts of violence. Soon after the abduction of
Rajkumar and others, the two State Governments decided to accept the
demands of Veerappan to release those in respect of whom TADA charges
and detention orders under the National Security Act have been
withdrawn. The decision was taken in the meeting between the Chief
Ministers of the two States. Applications under Section 321 Cr.P.C seeking
consent of court to withdraw TADA charges were filed to facilitate

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ultimately the release of accused persons from judicial custody so

as to meet Veerappan‘s demand. The arrangement was that once
TADA charges are withdrawn, the accused in judicial custody will
move bail applications in cases of offences under IPC and other
penal enactments the Public Prosecutor will concede and will not
oppose the grant of bail. The court will grant the bail and, thus,
accused will come out from judicial custody and, thus, this demand of
Veerappan would be met.
Special Judge designated for the trial of TADA offences allowed the
application filed by Special Public Prosecutor and accorded consent to
withdrawal of the charges relating to offences punishable under the TADA
Act against the accused.
The SC observed it is true that the power of the court under Section 321
is supervisory but that does not mean that while exercising that power,
the consent has to be granted on mere asking. The court has to examine
that all relevant aspects have been taken into consideration by the
Public Prosecutor and/or by the Government in exercise of its executive
function.
The law as it stands today in relation to applications under Section 321 is

laid down by the majority judgment delivered by Khalid, J. in the
Constitution Bench decision of this Court in Sheonandan Paswan v. State
of Bihar [(1987) 1 SCC 288]. It is held therein that when an application
under Section 321 is made, it is not necessary for the court to assess the
evidence to discover whether the case would end in conviction or
acquittal. What the court has to see is whether the application is made in
good faith, in the interest of public policy and justice and not to thwart or
stifle the process of law. The court, after considering the facts of the case,
has to see whether the application suffers from such improprieties or
illegalities as would cause manifest injustice if consent was given. When
the Public Prosecutor makes an application for withdrawal after taking into
consideration all the material before him, the court must exercise its
judicial discretion by considering such material and, on such
consideration, must either give consent or decline consent. The section
should not be construed to mean that the court has to give a detailed
reasoned order when it gives consent. If, on a reading of the order giving
consent, a higher court is satisfied that such consent was given on
an overall consideration of the material available, the order giving consent
has necessarily to be upheld. Section 321 contemplates consent by the
court in a supervisory and not an adjudicatory manner. What the court
must ensure is that the application for withdrawal has been properly
made, after independent consideration by the Public Prosecutor and in
furtherance of public interest. Section 321 enables the Public Prosecutor
to withdraw from the prosecution of any accused. The discretion
exercisable under Section 321 is fettered only by a consent from the court

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on a consideration of the material before it. What is necessary to satisfy

the section is to see that the Public Prosecutor has acted in good faith and
the exercise of discretion by him is proper.
The law, therefore, is that though the Government may have ordered,
directed or asked a Public Prosecutor to withdraw from a prosecution, it is
for the Public Prosecutor to apply his mind to all the relevant material
and, in good faith, to be satisfied thereon that the public interest will be
served by his withdrawal from the prosecution. In turn, the court has to
be satisfied, after considering all that material, that the Public Prosecutor
has applied his mind independently thereto, that the Public Prosecutor,
acting in good faith, is of the opinion that his withdrawal from the
prosecution is in the public interest, and that such withdrawal will not
stifle or thwart the process of law or cause manifest injustice.
The application and order under Section 321 is a result of panic

reaction by overzealous persons without proper understanding of the
problem and consideration of the relevant material, though they
may not have any personal motive. It does not appear that anybody
considered that if democratically-elected governments give an
impression to the citizens of this country of being lawbreakers, would it
not breed contempt for law; would it not invite citizens to become a law
onto themselves. It may lead to anarchy. The Governments have to
consider and balance the choice between maintenance of law and order
and anarchy. It does not appear that anyone considered this aspect. It
yielded to the pressure tactics of those who according to the Government
are out to terrorise the police force and to overawe the elected
Governments. It does not appear that anyone considered that with their
action people may lose faith in the democratic process, when they see
public authority flouted and the helplessness of the Government. The
aspect of paralysing and discrediting the democratic authority had to be
taken into consideration. It is the executive function to decide in the
public interest to withdraw from prosecution as claimed, but it is also for
the Government to maintain its existence. The self-preservation is the
most pervasive aspect of sovereignty. To preserve its independence and
territories is the highest duty of every nation and to attain these ends
nearly all other considerations are to be subordinated. Of course, it is for
the State to consider these aspects and take a conscious decision. In the
present case, without consideration of these aspects the decision
was taken to withdraw TADA charges. It is evident from material now
placed on record before this Court that Veerappan was acting in
consultation with secessionist organisations/groups which had the object
of liberation of Tamil from India. There is no serious challenge to this
aspect. None of the aforesaid aspects were considered by the
Government or the Public Prosecutors before having recourse to
Section 321 Cr.P.C.

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Zahira Habibulla H. Sheikh v. State of Gujarat (2004)

("Best Bakery Case"/Gujarat riots case)
In 2002 a business concern known as "Best Bakery" at Vadodara was
burnt down by an unruly mob of large number of people. In the ghastly
incident 14 persons died. The attacks were stated to be a part of
retaliatory action to avenge killing of 56 persons burnt to death in the
Sabarmati Express. Zahira was the main eye-witness who lost family
members including helpless women and innocent children in the
gruesome incident. Many persons other than Zahira were also eye-
witnesses. Accused persons were the perpetrators of the crime. After
investigation charge sheet was filed in June 2002.
During trial the purported eye-witnesses resiled from the statements

made during investigation. Faulty and biased investigation as well as
perfunctory trial were said to have marred the sanctity of the
entire exercise undertaken to bring the culprits to books. By judgment
the trial Court directed acquittal of the accused persons.
One of the appeals before SC is by Zahira who claims to be an eyewitness

to macabre killings allegedly as a result of communal frenzy. She made
statements and filed affidavits after completion of trial and judgment by
the trial Court, alleging that during trial she was forced to depose falsely
and turn hostile on account of threats and coercion. That raises an
important issue regarding witness protection besides the quality and
credibility of the evidence before Court. The other rather unusual question
interestingly raised by the State of Gujarat itself relates to improper
conduct of trial by the public prosecutor. Last, but not the least that the
role of the investigating agency itself was perfunctory and not impartial.
Though its role is perceived differently by the parties, there is unanimity
in their stand that it was tainted, biased and not fair. While the accused
persons accuse it for alleged false implication, the victims' relatives like
Zahira allege its efforts to be merely to protect the accused.
The state also filed applications for permissions to adduce additional

evidence and for examination of certain persons as witness and to bring
on record a document and to treat it as corroborative piece of evidence.
The SC directed re-trial by a Court under the jurisdiction of Bombay High

Court and appointment of another Public Prosecutor and kept it open to
the affected persons to suggest any name which may also be taken into
account in the decision to so appoint.
Mohd. Hussain v. State (Govt. of NCT of Delhi) (2012)

In appeal an issue was referred by a two-Judge Bench of SC in Mohd.
Hussain v. State (Govt. of NCT of Delhi), (2012) 2 SCC 584 for deciding
whether the matter requires to be remanded for a de novo trial in
accordance with law or not?

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The two-Judge Bench [Mohd. Hussain v. State (Govt. of NCT of Delhi),

(2012) 2 SCC 584] that heard the criminal appeal, was unanimous that
the appellant was denied the assistance of a counsel in substantial and
meaningful manner in the course of trial although necessity of counsel
was vital and imperative and that resulted in denial of due process of law.
In their separate judgments, the learned Judges agreed that the appellant
has been put to prejudice rendering the impugned judgments
unsustainable in law. They, however, differed on the course to be adopted
after it was held that the conviction and sentence awarded to the
appellant by the trial court and confirmed by the High Court were vitiated.
As noted above, H.L. Dattu, J. ordered the matter to be remanded to the
trial court for fresh disposal in accordance with law after providing to the
appellant the assistance of the counsel before the commencement of the
trial till its conclusion if the accused was unable to engage a counsel of his
own choice. On the other hand, C.K. Prasad, J. for the reasons indicated
by him held that the incident occurred in 1997; the appellant was
awarded the sentence of death more than seven years ago and at such
distance of time it shall be travesty of justice to direct for the appellant's
de novo trial.
The three judge bench answered the reference by holding that the matter
requires to be remanded for a de novo trial.
‘Speedy trial’ and ‘fair trial’ to a person accused of a crime are integral
part of Article 21. There is, however, qualitative difference between the
right to speedy trial and the accused’s right of fair trial. Unlike the
accused’s right of fair trial, deprivation of the right to speedy trial does
not per se prejudice the accused in defending himself. The right to speedy
trial is in its very nature relative. It depends upon diverse circumstances.
Each case of delay in conclusion of a criminal trial has to be seen in the
facts and circumstances of such case. Mere lapse of several years since
the commencement of prosecution by itself may not justify the
discontinuance of prosecution or dismissal of indictment. The factors
concerning the accused’s right to speedy trial have to be weighed vis-a-
vis the impact of the crime on society and the confidence of the people in
judicial system. Speedy trial secures rights to an accused but it does not
preclude the rights of public justice. The nature and gravity of crime,
persons involved, social impact and societal needs must be weighed along
with the right of the accused to speedy trial and if the balance tilts in
favour of the former the long delay in conclusion of criminal trial should
not operate against the continuation of prosecution and if the right of
accused in the facts and circumstances of the case and exigencies of
situation tilts the balance in his favour, the prosecution may be brought to
an end. These principles must apply as well when the appeal court is
confronted with the question whether or not retrial of an accused should
be ordered.

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The appellate court hearing a criminal appeal from a judgment of

conviction has power to order the retrial of the accused under Section 386
of the Code. That is clear from the bare language of Section 386(b).
Though such power exists, it should not be exercised in a routine manner.
A de novo trial or retrial of the accused should be ordered by the
appellate court in exceptional and rare cases and only when in the opinion
of the appellate court such course becomes indispensable to avert failure
of justice. Surely this power cannot be used to allow the prosecution to
improve upon its case or fill up the lacuna. A retrial is not the second
trial; it is continuation of the same trial and same prosecution. The
guiding factor for retrial must always be demand of justice. Obviously, the
exercise of power of retrial under Section 386(b) of the Code, will depend
on the facts and circumstances of each case for which no straitjacket
formula can be formulated but the appeal court must closely keep in view
that while protecting the right of an accused to fair trial and due process,
the people who seek protection of law do not lose hope in legal system
and the interests of the society are not altogether overlooked.
Mohd. Ajmal Amir Kasab v. State of Maharashtra (2012)

(Mumbai Terror attack 26/11)
Mohammed Ajmal Mohammad Amir Kasab, who was a Pakistani national,
had earned for himself five death penalties and an equal number of life
terms in prison for committing multiple crimes of a horrendous kind in
India. Some of the major charges against him were: conspiracy to wage
war against the Government of India; collecting arms with the intention of
waging war against the Government of India; waging and abetting the
waging of war against the Government of India; commission of terrorist
acts; criminal conspiracy to commit murder; criminal conspiracy, common
intention and abetment to commit murder; committing murder of a
number of persons; attempt to murder with common intention; criminal
conspiracy and abetment; abduction for murder; robbery/dacoity with an
attempt to cause death or grievous hurt; and causing explosions
punishable under the Explosive Substance Act, 1908. He was found guilty
of all these charges besides many others and was awarded the death
sentence on five counts, life-sentence on five other counts, as well as a
number of relatively lighter sentences of imprisonment for the other
offences.
In SC in appeal the counsel for appellant said that the he was not made
aware of his Constitutional right to counsel under Article 22(1) of the
Constitution at the time of his arrest and production before the Judicial
Magistrate in remand proceedings. He stated that until the appellant was
produced before the Additional Chief Metropolitan Magistrate for recording
his confession he was not informed of such a right.

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Every accused unrepresented by a lawyer has to be provided a lawyer at

the commencement of the trial, engaged to represent him during the
entire course of the trial. Even if the accused does not ask for a lawyer or
he remains silent, it is the Constitutional duty of the court to provide him
with a lawyer before commencing the trial. Unless the accused voluntarily
makes an informed decision and tells the court, in clear and unambiguous
words, that he does not want the assistance of any lawyer and would
rather defend himself personally, the obligation to provide him with a
lawyer at the commencement of the trial is absolute, and failure to do so
would vitiate the trial and the resultant conviction and sentence, if any,
given to the accused (see Suk Das v. UT of Arunachal Pradesh,1986).
But the failure to provide a lawyer to the accused at the pre-trial stage
may not have the same consequence of vitiating the trial. It may have
other consequences like making the delinquent magistrate liable to
disciplinary proceedings, or giving the accused a right to claim
compensation against the State for failing to provide him legal aid. But it
would not vitiate the trial unless it is shown that failure to provide legal
assistance at the pre-trial stage had resulted in some material prejudice
to the accused in the course of the trial. That would have to be judged on
the facts of each case.
The appellant’s refusal to accept the services of an Indian lawyer and his
demand for a lawyer from his country cannot be anything but his own
independent decision. The demand for a Pakistani lawyer in those
circumstances, and especially when Pakistan was denying that the
appellant was even a Pakistani citizen, might have been impractical, even
foolish, but the man certainly did not need any advice from an Indian
court or authority as to his rights under the Indian Constitution. He was
acting quite independently and, in his mind, he was a “patriotic” Pakistani
at war with this country.
On March 23, 2009, the appellant finally asked for a lawyer, apparently
convinced by then that no help would come from Pakistan or anywhere
else. He was then immediately provided with a set of two lawyers.
In the aforesaid facts we are firmly of the view that there is no question
of any violation of any of the rights of the appellant under the Indian
Constitution. He was offered the services of a lawyer at the time of his
arrest and at all relevant stages in the proceedings. We are also clear in
our view that the absence of a lawyer at the pre-trial stage was not only
as per the wishes of the appellant himself, but that this absence also did
not cause him any prejudice in the trial.
Hardeep Singh v. State of Punjab (2014)

A reference was made to the constitutional bench of five judges of SC
arising out of a variety of views having been expressed by Supreme Court

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and several High Courts of the country on the scope and extent of the
powers of the courts under the criminal justice system to arraign
any person as an accused during the course of inquiry or trial as
contemplated under Section 319 of the Cr.P.C.
Following questions answered by the Bench:

(i) What is the stage at which power under Section 319 Cr.P.C. can be
exercised?
(ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could
only mean evidence tested by cross-examination or the court can exercise
the power under the said provision even on the basis of the statement
made in the examination-in-chief of the witness concerned?
(iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been
used in a comprehensive sense and includes the evidence collected during
investigation or the word "evidence" is limited to the evidence recorded
during trial?
(iv) What is the nature of the satisfaction required to invoke the power
under Section 319 Cr.P.C. to arraign an accused? Whether the power
under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied
that the accused summoned will in all likelihood convicted?
(v) Does the power under Section 319 Cr.P.C. extend to persons not
named in the FIR or named in the FIR but not charged or who have been
discharged?
In this reference what the Bench was primarily concerned with, was the
stage at which such powers can be invoked and, secondly, the material on
the basis whereof the invoking of such powers can be justified. To add as
a corollary to the same, thirdly, the manner in which such power has to
be exercised, also has to be considered.
The Court delivered a well-structured point wise judgment for the above
issues which reads as follows:
Question Nos.1 & III Q.1 What is the stage at which power under Section
319 Cr.P.C. can be exercised?
AND Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C.
has been used in a comprehensive sense and includes the evidence
collected during investigation or the word "evidence" is limited to the
evidence recorded during trial?
A. In Dharam Pal's case, the Constitution Bench has already held that
after committal, cognizance of an offence can be taken against a person
not named as an accused but against whom materials are available from
the papers filed by the police after completion of investigation. Such
cognizance can be taken under Section 193 Cr.P.C. and the Sessions

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Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes
available for summoning an additional accused.
Section 319 Cr.P.C., significantly, uses two expressions that have to be

taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing
of charge, an inquiry can only be understood to be a pre-trial inquiry.
Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398
Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C.
Materials coming before the Court in course of such enquiries can be used
for corroboration of the evidence recorded in the court after the trial
commences, for the exercise of power under Section 319 Cr.P.C., and also
to add an accused whose name has been shown in Column 2 of the
chargesheet.
In view of the above position the word 'evidence' in Section 319 Cr.P.C.
has to be broadly understood and not literally i.e. as evidence brought
during a trial.
Question No. II Q.II Whether the word "evidence" used in Section 319(1)
Cr.P.C. could only mean evidence tested by cross-examination or the
court can exercise the power under the said provision even on the basis
of the statement made in the examination-in-chief of the witness
concerned?
A. Considering the fact that under Section 319 Cr.P.C. a person against
whom material is disclosed is only summoned to face the trial and in such
an event under Section 319(4) Cr.P.C. the proceeding against such
person is to commence from the stage of taking of cognizance, the Court
need not wait for the evidence against the accused proposed to be
summoned to be tested by cross-examination.
Question No. IV Q.IV What is the nature of the satisfaction required to

invoke the power under Section 319 Cr.P.C. to arraign an accused?
Whether the power under Section 319 (1) Cr.P.C. can be exercised only if
the court is satisfied that the accused summoned will in all likelihood be
convicted?
A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently

impleaded is to be treated as if he had been an accused when the Court
initially took cognizance of the offence, the degree of satisfaction that will
be required for summoning a person under Section 319 Cr.P.C. would be
the same as for ?framing a charge. The difference in the degree of
satisfaction for summoning the original accused and a subsequent
accused is on account of the fact that the trial may have already
commenced against the original accused and it is in the course of such
trial that materials are disclosed against the newly summoned accused.
Fresh summoning of an accused will result in delay of the trial - therefore

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the degree of satisfaction for summoning the accused (original and

subsequent) has to be different.
Question No.V Q.V Does the power under Section 319 Cr.P.C. extend to
persons not named in the FIR or named in the FIR but not chargesheeted
or who have been discharged?
A. A person not named in the FIR or a person though named in the FIR
but has not been chargesheeted or a person who has been discharged can
be summoned under Section 319 Cr.P.C. provided from the evidence it
appears that such person can be tried along with the accused already
facing trial. However, in so far as an accused who has been discharged is
concerned the requirement of Sections 300 and 398 Cr.P.C. has to be
complied with before he can be summoned afresh.
In view of the above, the law can be summarised to the effect that as
‘trial’ means determination of issues adjudging the guilt or the innocence
of a person, the person has to be aware of what is the case against him
and it is only at the stage of framing of the charges that the court informs
him of the same, the ‘trial’ commences only on charges being framed.
Thus, we do not approve the view taken by the courts that in a criminal
case, trial commences on cognizance being taken.
Since after the filing of the charge-sheet, the court reaches the stage of
inquiry and as soon as the court frames the charges, the trial
commences, and therefore, the power under Section 319(1) Cr.P.C. can
be exercised at any time after the charge-sheet is filed and before the
pronouncement of judgment, except during the stage of Section 207/208
Cr.P.C., committal etc., which is only a pre-trial stage, intended to put the
process into motion. This stage cannot be said to be a judicial step in the
true sense for it only requires an application of mind rather than a judicial
application of mind.
At this pre-trial stage, the Magistrate is required to perform acts in the

nature of administrative work rather than judicial such as ensuring
compliance of Sections 207 and 208 Cr.P.C., and committing the matter if
it is exclusively triable by Sessions Court. Therefore, it would be
legitimate for us to conclude that the Magistrate at the stage of Sections
207 to 209 Cr.P.C. is forbidden, by express provision of Section 319
Cr.P.C., to apply his mind to the merits of the case and determine as to
whether any accused needs to be added or subtracted to face trial before
the Court of Sessions.
In our opinion, the stage of inquiry does not contemplate any evidence in
its strict legal sense, nor the legislature could have contemplated this
inasmuch as the stage for evidence has not yet arrived. The only material
that the court has before it is the material collected by the prosecution

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and the court at this stage prima facie can apply its mind to find out as to
whether a person, who can be an accused, has been erroneously omitted
from being arraigned or has been deliberately excluded by the
prosecuting agencies. This is all the more necessary in order to ensure
that the investigating and the prosecuting agencies have acted fairly in
bringing before the court those persons who deserve to be tried and to
prevent any person from being deliberately shielded when they ought to
have been tried. This is necessary to usher faith in the judicial system
whereby the court should be empowered to exercise such powers even at
the stage of inquiry and it is for this reason that the legislature has
consciously used separate terms, namely, inquiry or trial in Section 319
Cr.P.C.
Accordingly, we hold that the court can exercise the power under Section
319 Cr.P.C. only after the trial proceeds and commences with the
recording of the evidence and also in exceptional circumstances as
explained herein above.
Thus, in view of the above, we hold that power under Section 319 Cr.P.C.
can be exercised at the stage of completion of examination in chief and
court does not need to wait till the said evidence is tested on cross-
examination for it is the satisfaction of the court which can be gathered
from the reasons recorded by the court, in respect of complicity of some
other person(s), not facing the trial in the offence.
Mehmood Nayyar Azam v. State of Chhattisgarh (2012)

In the case at hand, a doctor, humiliated in custody, sought public law
remedy for grant of compensation and the High Court, despite no factual
dispute, has required him to submit a representation to the State
Government for adequate relief pertaining to grant of compensation after
expiry of 19 years with a further stipulation that if he is aggrieved by it,
he can take recourse to requisite proceedings available to him under law.
The appellant was arrested in respect of the alleged offence under Indian
Penal Code, 1860 and the Electricity Act, 2003. There was a direction by
the Magistrate for judicial remand and thereafter instead of taking him to
jail the next day he was brought to the police station; and then self-
humiliating words were written on the placard and he was asked to hold it
and photographs were taken. The photographs were circulated in general
public and were also filed by one of the defendants in a revenue
proceeding. The High Court, in categorical terms, found that the plaintiff
was harassed.
The question before the SC in appeal was that whether the appellant
should be asked to initiate a civil action for grant of damages on the
foundation that he had been defamed or this Court should grant

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compensation on the bedrock that he had been harassed in police

custody.
The inhuman treatment can be well visualized when the appellant came
out from custody and witnessed his photograph being circulated with the
self-condemning words written on it. This withers away the very essence
of life as enshrined under Article 21 of the Constitution. Regard being had
to the various aspects which we have analysed and taking note of the
totality of facts and circumstances, we are disposed to think that a sum of
Rs.5.00 lacs (Rupees five lacs only) should be granted towards
compensation to the appellant and, accordingly, we so direct. The said
amount shall be paid by the respondent State within a period of six weeks
and be realized from the erring officers in equal proportions from their
salary as thought appropriate by the competent authority of the State.
Mrs. Neelam Katara v. Union of India (2003) (HC Delhi)

The Ms.Neelam Katara filed the petition pertaining to the tragic homocidal
death of her son, Nitish who had gone to attend the marriage of his friend
in UP in 2002. The son of a sitting Member of the Rajya Sabha came to be
a suspect in the homicidal death of Nitish Katara.
The Delhi HC in this case issued certain directions pertaining to witness

protection in public interest. Certain guidelines were issued by the court
to the police on providing protection to witnesses to curb the menace of
their turning hostile leading to acquittal of accused in heinous crimes.
Given the financial constraints which we have in this country, it may not
be possible to have a Witness Protection Program on the extended scale
at which it is being implemented in the United States of America, Canada,
Australia or for that matter in the United Kingdom. But a beginning has to
be made.
Society has an interest in the administration of justice and it may be true

that let a 100 accused escape but let not an innocent be punished, but
this cannot be stretched to mean an escape route should be provided to
the accused to hijack administration of justice and secure his innocence,
not as a result of a fair adversarial litigation but as a result of ‘might
being right.' At least, in two categories of cases, namely, organised crime
and a crime punishable with the capital sentence or imprisonment for life,
witness protection is required. It has been coming to the notice of this
court that in heinous crimes the witnesses and sometimes the victim turn
hostile. There is strong material from which it can be guessed that cause
is fear and compulsion.
Till a suitable Legislation is brought on the Statute book, we direct that
following guidelines shall operate for protection of the witnesses.
These guidelines shall be known as '"'Witness Protection Guidelines":

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"Witness" means a person whose statement has been recorded by the

Investigating Officer under Section 161 Cr.P.C. pertaining to a crime
punishable with death or life imprisonment.
"Accused" means a person charged with or suspected with the
commission of a crime punishable with death or life imprisonment.
"Competent Authority" means the Member Secretary, Delhi legal Services
Authority.
ADMISSION TO PROTECTION:
The Competent Authority, on receipt of a request from a witness shall
determine whether the witness requires police protection, to what extent
and for what duration.
FACTORS TO BE CONSIDERED:
In determining whether or not a witness should be provided police
protection, Competent Authority shall take into account the following
factors:
i) The nature of the risk to the security of the witness which may emanate
from the accused or his associates.
ii) The nature of the investigation or the criminal case.
iii) The importance of the witness in the matter and the value of the
information or evidence given or agreed to be given by the witness.
iv) The cost of providing police protection to the witness.
OBLIGATION OF THE POLICE:

(1) While recording statement of the witness under Section 161 Cr.P.C., it
will be the duty of the Investigating Officer to make the witness aware of
the "Witness Protection Guidelines" and also the fact that in case of any
threat he can approach the Competent Authority. This the Investigating
Officer will inform in writing duly acknowledged by the witness.
(2) It shall be the duty of the Commissioner of Police to provide security
to a witness in respect of whom an order has been passed by the
Competent Authority directing police protection.
We further direct that the respondent State shall give due publicity
to the guidelines framed. We make it clear that the guidelines framed by
us would not be in derogation of the powers of the concerned criminal
court, if it forms an opinion that a witness requires police protection to so
direct.
Ajay Pandit @ Jagdish Dayabhai Patel v. State of Maharashtra

(2012)
Death sentence has been awarded by the High Court of Bombay to Ajay
Pandit @ Jagdish Dayabhai Patel for double murder, in separate incidents.
The Bombay High Court heard both the appeals together and rendered a
common judgment in 2005 confirming the order of conviction and
enhancing the sentence of life imprisonment to death and ordered to be
hanged till death against which this appeal has been preferred.

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Appeal was made before the SC in which the court had to examine
whether the High Court properly appreciated the purpose and object of
Section 235(2) Cr.P.C. and applied the same bearing in mind the fact that
they were taking away the life of a human being.
Three Judges Bench of SC in Malkiat Singh v. State of Punjab; (1991) 4

SCC 341 indicated the necessity of adjourning the case to a future date
after convicting the accused and held as follows:
“On finding that the accused committed the charged offences, Section
235(2) of the Code empowers the Judge that he shall pass sentence on
him according to law on hearing him. Hearing contemplated is not
confined merely to oral hearing but also intended to afford an opportunity
to the prosecution as well as the accused to place before the Court facts
and material relating to various factors on the question of sentence and if
interested by either side, to have evidence adduced to show mitigating
circumstances to impose a lesser sentence or aggravating grounds to
impose death penalty. Therefore, sufficient time must be given to the
accused or the prosecution on the question of sentence, to show grounds
on which the prosecution may plead or the accused may show that the
maximum sentence of death may be the appropriate sentence or the
minimum sentence of life imprisonment may be awarded, as the case
may be.” Supreme Court in a recent judgment in Rajesh Kumar v. State
through Government of NCT of Delhi, (2011) examined at length the
evaluation of sentencing policy and the concept of mitigating
circumstances in India relating to the death penalty. The meaning and
content of the expression “hearing the accused” under Section 235(2) and
the scope of Sections 354(3) and 465 Cr.P.C. were elaborately
considered.
The Court held that the object of hearing under Section 235(2) Cr.P.C.
being intrinsically and inherently connected with the sentencing
procedure, the provisions of Section 354(3) Cr.P.C. which calls for
recording of special reason for awarding death sentence, must be read
conjointly. The Court held that such special reasons can only be validly
recorded if an effective opportunity of hearing as contemplated under
Section 235(2) Cr.P.C. is genuinely extended and is allowed to be
exercised by the accused who stands convicted and is awaiting the
sentence.
SC observed that we find from the records that the High Court has only
mechanically recorded what the accused has said and no attempt has
been made to elicit any information or particulars from the accused or the
prosecution which are relevant for awarding a proper sentence. The
accused, of course, was informed by the Court of the nature of the show-
cause-notice. What was the nature of show cause notice? The nature of
the show-cause-notice was whether the life sentence awarded by the trial

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court be not enhanced to death penalty. No genuine effort has been made
by the Court to elicit any information either from the accused or the
prosecution as to whether any circumstance exists which might influence
the Court to avoid and not to award death sentence. Awarding death
sentence is an exception, not the rule, and only in rarest of rare cases,
the Court could award death sentence. The state of mind of a person
awaiting death sentence and the state of mind of a person who has been
awarded life sentence may not be the same mentally and psychologically.
The court has got a duty and obligation to elicit relevant facts even if the
accused has kept totally silent in such situations. In the instant case, the
High Court has not addressed the issue in the correct perspective bearing
in mind those relevant factors, while questioning the accused and,
therefore, committed a gross error of procedure in not properly
assimilating and understanding the purpose and object behind Section
235(2) Cr.P.C.
In such circumstances, we are inclined to set aside the death sentence

awarded by the High Court and remit the matter to the High Court to
follow Section 235(2) Cr.P.C. in accordance with the principles laid down.
The conviction awarded by the High Court, however, stands confirmed.
154th Report of the Law Commission on The Criminal Procedure

Code. CHAPTER XIII, PLEA BARGAINING
Gian Singh v. State of Punjab (2012)

The issue before the three judge bench of SC was whether Section 320 of
the Cr.PC creates a bar or limits or affects the inherent powers of the
High Court under Section 482 of the Cr.PC.
The position that emerges from the above discussion can be summarised
thus: the power of the High Court in quashing a criminal proceeding or
FIR or complaint in exercise of its inherent jurisdiction is distinct and
different from the power given to a criminal court for compounding the
offences under Section 320 of the Code. Inherent power is of wide
plenitude with no statutory limitation but it has to be exercised in accord
with the guideline engrafted in such power viz; (i) to secure the ends of
justice or (ii) to prevent abuse of the process of any Court. In what cases
power to quash the criminal proceeding or complaint or F.I.R may be
exercised where the offender and victim have settled their dispute would
depend on the facts and circumstances of each case and no category can
be prescribed. However, before exercise of such power, the High Court
must have due regard to the nature and gravity of the crime. Heinous and
serious offences of mental depravity or offences like murder, rape,
dacoity, etc. cannot be fittingly quashed even though the victim or
victim’s family and the offender have settled the dispute. Such offences
are not private in nature and have serious impact on society. Similarly,
any compromise between the victim and offender in relation to the

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offences under special statutes like Prevention of Corruption Act or the

offences committed by public servants while working in that capacity etc;
cannot provide for any basis for quashing criminal proceedings involving
such offences. But the criminal cases having overwhelmingly and pre-
dominatingly civil flavour stand on different footing for the purposes of
quashing, particularly the offences arising from commercial, financial,
mercantile, civil, partnership or such like transactions or the offences
arising out of matrimony relating to dowry, etc. or the family disputes
where the wrong is basically private or personal in nature and the parties
have resolved their entire dispute. In this category of cases, High Court
may quash criminal proceedings if in its view, because of the compromise
between the offender and victim, the possibility of conviction is remote
and bleak and continuation of criminal case would put accused to great
oppression and prejudice and extreme injustice would be caused to him
by not quashing the criminal case despite full and complete settlement
and compromise with the victim. In other words, the High Court must
consider whether it would be unfair or contrary to the interest of justice to
continue with the criminal proceeding or continuation of the criminal
proceeding would tantamount to abuse of process of law despite
settlement and compromise between the victim and wrongdoer and
whether to secure the ends of justice, it is appropriate that criminal case
is put to an end and if the answer to the above question(s) is in
affirmative, the High Court shall be well within its jurisdiction to quash the
criminal proceeding.
State of M.P. v. Deepak (2014)

The appeal before SC was preferred by the State of Madhya Pradesh
against the judgment and order by the High Court in the petition filed
under Section 482 of the Cr.PC for compounding/quashing of criminal
proceedings arising out of crime under Section 307/34 of IPC and criminal
case pending before the Chief Judicial Magistrate.
It was on behalf of the State in the present case accused persons are
habitual offenders and they had threatened the complainant and
extracted the compromise which was not voluntary. The learned counsel
also referred to the injuries suffered by the complainant which are
described in the report as a result of the medical examination carried out
on the person of the complainant immediately after the incident. He
pleaded that the offence under Section 307 of IPC was, prima facie, made
out and for such a heinous crime the High Court should not have
exercised its discretion under Section 482 of the Cr. PC and quashed the
proceedings as the offence in question was non-compoundable under
Section 320 of the Code.
SC observed that after examining the facts of this case and the medical
record, we are of the opinion that it was not a case where High Court

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should have quashed the proceedings in exercise of its discretion under

Section 482 of the Code.
We are not prepared to say that the crime alleged to have been
committed by the accused persons was a crime against an individual, on
the other hand it was a crime against the society at large. Criminal law is
designed as a mechanism for achieving social control and its purpose is
the regulation of conduct and activities within the society. Why Section
307 IPC is held to be non-compoundable, is because the Code has
identified which conduct should be brought within the ambit of non-
compoundable offences. Such provisions are not meant just to protect the
individual but the society as a whole. The High Court was not right in
thinking that it was only an injury to the person and since the accused
persons (sic victims) had received the monetary compensation and
settled the matter, the crime as against them was wiped off. Criminal
justice system has a larger objective to achieve, that is, safety and
protection of the people at large and it would be a lesson not only to the
offender, but to the individuals at large so that such crimes would not be
committed by anyone and money would not be a substitute for the crime
committed against the society. Taking a lenient view on a serious offence
like the present, will leave a wrong impression about the criminal justice
system and will encourage further criminal acts, which will endanger the
peaceful coexistence and welfare of the society at large.”
SC observed that in some cases offences under Section 307 IPC are
allowed to be compounded, whereas in some other cases it is held to be
contrary. This dichotomy was taken note of by referring to those
judgments, in the case of Narinder Singh & Ors. v. State of Punjab & Anr.,
(2014) 6 SCC 466, and by reconciling those judgments, situations and
circumstances were discerned where compounding is to be allowed or
refused. In this said judgment Supreme court observed as under:
Offences under Section 307 IPC would fall in the category of heinous and
serious offences and therefore are to be generally treated as crime
against the society and not against the individual alone. However, the
High Court would not rest its decision merely because there is a mention
of Section 307 IPC in the FIR or the charge is framed under this provision.
It would be open to the High Court to examine as to whether
incorporation of Section 307 IPC is there for the sake of it or the
prosecution has collected sufficient evidence, which if proved, would lead
to proving the charge under Section 307 IPC. For this purpose, it would
be open to the High Court to go by the nature of injury sustained,
whether such injury is inflicted on the vital/delegate parts of the body,
nature of weapons used, etc. Medical report in respect of injuries suffered
by the victim can generally be the guiding factor. On the basis of this
prima facie analysis, the High Court can examine as to whether there is a
strong possibility of conviction or the chances of conviction are remote

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and bleak. In the former case it can refuse to accept the settlement and
quash the criminal proceedings whereas in the latter case it would be
permissible for the High Court to accept the plea compounding the
offence based on complete settlement between the parties. At this stage,
the Court can also be swayed by the fact that the settlement between the
parties is going to result in harmony between them which may improve
their future relationship.
While deciding whether to exercise its power under Section 482 of the
Code or not, timings of settlement play a crucial role. Those cases where
the settlement is arrived at immediately after the alleged commission of
offence and the matter is still under investigation, the High Court may be
liberal in accepting the settlement to quash the criminal
proceedings/investigation. It is because of the reason that at this stage
the investigation is still on and even the charge-sheet has not been filed.
Likewise, those cases where the charge is framed but the evidence is yet
to start or the evidence is still at infancy stage, the High Court can show
benevolence in exercising its powers favourably, but after prima facie
assessment of the circumstances/material mentioned above. On the other
hand, where the prosecution evidence is almost complete or after the
conclusion of the evidence the matter is at the stage of argument,
normally the High Court should refrain from exercising its power under
Section 482 of the Code, as in such cases the trial court would be in a
position to decide the case finally on merits and to come to a conclusion
as to whether the offence under Section 307 IPC is committed or not.
Similarly, in those cases where the conviction is already recorded by the
trial court and the matter is at the appellate stage before the High Court,
mere compromise between the parties would not be a ground to accept
the same resulting in acquittal of the offender who has already been
convicted by the trial court. Here charge is proved under Section 307 IPC
and conviction is already recorded of a heinous crime and, therefore,
there is no question of sparing a convict found guilty of such a crime.”
It is clear from the reading of the passages extracted above, that offence
under Section 307 is not treated as a private dispute between the parties
inter se but is held to be a crime against the society. Further, guidelines
are laid down for the Courts to deal with such matters when application
for quashing of proceedings is filed, after the parties have settled the
issues between themselves.
When we apply the ratio/principle laid down in the said case to the facts
of the present case, we find that the injuries inflicted on the complainant
were very serious in nature. The accused was armed with sword and had
inflicted blows on the forehead, ear, back side of the head as well as on
the left arm of the complainant. The complainant was attacked five times
with the sword by the accused person out of which two blows were struck
on his head. But for the timely arrival of brother of the complainant and

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another lady named Preeti, who rescued the complainant, the attacks
could have continued. In a case like this, the High Court should not have
accepted the petition of the accused under Section 482 of the Code.
As a result of the aforesaid discussion, this appeal is allowed and the

order of the High Court is set aside. The concerned Magistrate shall
proceed with the trial of the case.

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Lalita Kumari v. Govt. of U.P

A two‑Judge Bench of SC in, Lalita Kumari vs. Government of Uttar

The follow directions were issued by the Constitution Bench of Supreme

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i) Registration of FIR is mandatory under Section 154 of the

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State of Orissa v. Sharat Chandra Sahu (1996)

Madhu Bala v. Suresh Kumar (1997)

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Sakiri Vasu v. State of U.P. (2008)

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refuse to interfere in such matters, and relegate the petitioner to his

D.K.Basu v. State of West Bengal, (1997)

1. Custodial violence, including torture and death in the lock-ups,

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3. In spite of the constitutional and statutory provisions aimed at

In this case, following important guidelines were issued by the Court as

(6) An entry must be made in the diary at the place of detention

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(7) The arrestee should, where he so requests, be also examined at the

(8) The arrestee should be subjected to medical examination by a trained

(10) The arrestee may be permitted to meet his lawyer during

State of Haryana v. Dinesh Kumar, (2008)

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Accordingly, although, we are of the view that the legal position as

Arnesh Kumar v. State of Bihar, (2014)

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The Supreme Court, further, clarified that even in terms of Section 41 A

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The period may be extended by the Superintendent of police for

State v. Captain Jagjit Singh (1962)

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Moti Ram v. State of M.P. (1978)

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Legal issues in consideration before the Court:

Thus, the legal literature, Indian and Anglo-American, on bail

Supreme Court Directives

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• An accused person should not be required to produce a surety

Gurcharan Singh v. State (Delhi Admn.) (1978)

The prosecution is launched against the appellant accused who are

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relevant for consideration for grant or refusal of bail in a non-bailable

Dismissing the appeal, HELD :

(3)Chapter XXXIII contains provisions in respect of bail and bonds.

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Sanjay Chandra v. Central Bureau of Investigation, (2012)

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3. Right to bail is not to be denied merely because of the sentiments of

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4. Article 21 violated when undertrial prisoners are detained in jail custody

Shri Gurbaksh Singh Sibbia v. State of Punjab (1980)

Considering the importance of the matter, a learned single Judge referred

Allowing the appeals in part, the Supreme Court, HELD:

2. Section 438(1) of the Code lays down a condition which has to be

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