Case BriefsSupreme Court

Supreme Court: The bench of KM Joseph* and PS Narsimha, JJ has reiterated the test laid down for invoking the power under Section 319 CrPC and has held that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319[1] CrPC should be exercised. The power cannot be exercised in a casual and cavalier manner.

The Court took note of the test laid down in Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, wherein it was held that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C.

It was further explained that in Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.

“105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.”

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[Ramesh Chandra Srivastava v. State of UP, CRIMINAL APPEAL NO. 990 OF 2021, decided on 13.09.2021]

_________________________________________________

For appellant: Advocate Gaurav Srivastava,

For State: Advocate Adarsh Upadhyay,

For respondent 2: Advocate Sansriti Pathak


[1] 319. Power to proceed against other persons appearing to be guilty of offence.—(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then—

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.


*Judgment by: Justice KM Joseph

Know Thy Judge| Justice K.M. Joseph

Cyril Amarchand MangaldasExperts Corner


Introduction


Personal liberty and the rule of law find their rightful place under Articles 21 and 22 of the Constitution of India, which include measures against arbitrary and indefinite detention. Even with the option of an elaborate judicial procedure to deal with matters regarding grant of bail, the system is somehow unable to meet the parameters of an archetypal system, giving rise to the notion that the bail system is unpredictable[1].

 

Recently, the Bombay High Court in Sameer Narayanrao Paltewar v. State of Maharashtra[2] (Paltewar judgment) has reiterated the mandate of the law to protect accused persons against the “incalculable harm to the reputation and self-esteem of a person”[3] caused by an arrest.

 

A peculiar provision of law dealing with the grant of anticipatory bail under Section 438 of the Code of Criminal Procedure Code, 1973 (CrPC) allows the State to make an application requesting the presence of the accused applicant seeking anticipatory bail at the time of final hearing of the Anticipatory Bail Application (‘ABA’) and passing of final order by the relevant court. The same law also authorises the court to compel the presence of such accused if the court considers it “necessary in the interest of justice”. The obvious problem with this provision is that if the ABA is rejected, the police not only can locate, but may also arrest  the accused.

 

While interpreting the powers under Section 438(4) of the CrPC (as exercised by the Sessions Court), the Bombay High Court has now directed that while orders mandating physical presence at final hearing may be passed, the Sessions Court should also ensure that should the ABA be rejected at such final hearing, the applicant shall be protected against arrest for a stipulated period to allow him/her time to approach the High Court and re-agitate a request for anticipatory bail.

 


Backdrop


Prior to 1973, criminal procedure in India[4] did not envisage the concept of ‘anticipatory bail’/’bail apprehending arrest’. The Law Commission of India in its 41st Report on the CrPC first identified the necessity for provisions regarding grant of anticipatory bail as:

 

“[…] sometimes influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. […] Apart from false cases, where there are reasonable grounds […], there seems no justification to require [an accused person] first to submit to custody, remain in prison for some days and then apply for bail.”[5]

 

The initial idea of providing for anticipatory bail was to avoid the situation where a person needed to obtain a bail after being arrested, even while reasonable grounds existed for the same prior to arrest. In 1973, Sections 436, 437 and 439 of the CrPC dealing with the grant of bail were streamlined and the new provision of Section 438 of the CrPC for anticipatory bail was introduced.

 

It is only through judicial interpretation that the law in relation to anticipatory bail (and bail in general) was thereafter developed to align itself with the constitutional objectives of protecting personal liberty and to strike a fine equilibrium between the “freedom of person” and “interest of social order”.

 

While Section 438 of the CrPC originally read to allow the High Court or Sessions Court to grant anticipatory bail at their discretion, it intentionally did not prescribe standards or thresholds for the same. The law on anticipatory bail has since been modified to provide for various aspects, with the State of Maharashtra amending the CrPC (as it applies to Maharashtra) in 1993 to include sub-section (4) to Section 438, which states as follows:

(1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the court, if on an application made to it by the Public Prosecutor, the court considers such presence necessary in the interest of justice.

 

For the rest of India, Section 438 of the CrPC has since been amended[6] to include sub-section (1-B) which incorporates the identical language as above.

 


Paltewar judgment – Brief overview


The case arises out of a dispute between the applicant and the original complainant, who were directors of a company operating a hospital. The original complainant filed a complaint against the applicant for offences punishable under Sections 406, 409, 420, 465, 467, 468 and 471 of the Penal Code, 1860 (IPC) and Section 66-C of the Information Technology Act, 2000.

 

During the investigation into such complaint, the applicant had filed an ABA before the Sessions Court, Nagpur. In such an ABA, the Public Prosecutor moved an application seeking presence of the applicant in the Sessions Court at the time of final hearing of the anticipatory bail application and the same was allowed.

 

Aggrieved by the order of the Sessions Court in granting the request of the prosecution and compelling his personal presence at the final hearing, the applicant accused filed an application under Section 482 of the CrPC before the Bombay High Court invoking its inherent jurisdiction.

 

The main issue that arose for determination before the Bombay High Court was in relation to the fate of an accused in the State of Maharashtra who is directed to remain present in the Sessions Court pursuant to a direction under Section 438(4) of the CrPC (as it applies to Maharashtra), and the consequences that may arise if such application for anticipatory bail is rejected.

 


Interim protection


While the applicant had been granted interim protection under Section 438(1) of the CrPC by the Sessions Court, the Bombay High Court further granted interim protection stating that if the ABA before the Sessions Court is rejected during the pendency of the High Court proceedings, then the interim protection granted against arrest would extend for a further period of 72 hours to allow the applicant to approach the High Court.

 

However, while such interim order effectively protected the applicant, the Bombay High Court proceeded with the hearing in the matter as a substantial question of law was involved.

 

In its analysis of Section 438(4) of the CrPC (as applicable in Maharashtra), at the outset, the Bombay High Court reiterated that an order directing an accused person to appear at the final hearing can be passed only when interim protection is already operating in favour of an accused[7].

 

The Paltewar[8] judgment recorded that in case the applicant is not granted interim protection in an ABA and the Sessions Court still directs him/her to remain present in the court on the date fixed for final hearing, by virtue of proviso to sub-section (1), it is open for the investigating officer to effect arrest of the applicant. The direction under sub-section (4), if considered as an independent and irrespective of interim protection, will prove to be a mouse trap and not a protection of personal liberty of the citizen. Being under the directions of the court, the applicant would be obliged to proceed towards the court while the investigating officer can wait at the entrance gate of the court premises.[9]

 


Analysis on Section 438(4) of the CrPC


At the outset, the Bombay High Court has clarified that Section 438(4) of the CrPC has already passed constitutional muster inter alia in Vijaya Ramesh Ramdasi v. State of Maharashtra[10] and Goyappa Jalagiri v. State of Maharashtra[11]. While dealing with the same, however, the Bombay High Court clearly observed that applications seeking personal presence of an accused cannot be moved callously by the prosecution neither can it be routinely allowed by the Sessions Court. It was further observed that a direction under Section 438(4) of the CrPC can be issued seeking the presence of the accused before the court at the stage of final hearing of the application but only if the accused’s interim order of protection from arrest was in operation.

 

Understanding the lacunae from the point of view of an accused, the Bombay High Court relied on State of Maharashtra v. Kachrusingh Santaramsingh Rajput[12] and catena of other Supreme Court judgments to state that the very purpose of introducing Section 438 in the CrPC, and the new form in which it was brought into force in the State of Maharashtra, was to strike a balance between the interest of the State to investigate through police into offences according to established procedure of law and the individual liberties of a person accused of serious crimes.[13]

 

In the Paltewar[14] judgment, the Bombay High Court also observed that when the Sessions Court allows an application that seeks the presence of the accused, it should provide sufficient reasons for allowing the same. The Sessions Court’s reasons must elaborate why the presence of the accused was important in the “interest of justice”, for example, specifying if there was possibility of absconding by the accused, etc.

 

The court further threw light on the expression “in the interest of justice” by stating that it has to be construed in the interest of both the prosecution as well as the accused and the court is obliged to strike a balance between the interests of the two. As the same was not done in the Paltewar[15] judgment, the Bombay High Court had quashed and set aside the order allowing the applicant’s presence.

 


Right to approach the High Court


It is well settled now that both the High Court and the Sessions Court have concurrent jurisdiction to deal with ABAs for directions under Section 438 of the CrPC and it is open to a person to move either of these two courts. It is, however, a generally accepted practice, as recorded in the Paltewar[16] judgment, to approach first the Sessions Court and thereafter the High Court for such relief.

 

Where a person chooses to move the Sessions Court in the first instance, a revision will lie in the High Court against the order of the Sessions Court on the application for issue of directions under Section 438 of the CrPC.

 

It is in light of this statutory intention, that the Bombay High Court stated that in the absence of any interim order of protection operating in favour of the accused during pendency of the application for anticipatory bail before the Sessions Court, the right available to the accused to move the High Court will stand frustrated if he/she is arrested and such arrest will obviously be facilitated by the direction of the Sessions Court under Section 438(4) of the CrPC[17]

 

In light of the above, even though the order under Section 438(4) of the CrPC (as applicable in Maharashtra) in the Paltewar[18] judgment was set aside, the Bombay High Court put down the following guidelines for Sessions Courts to follow when passing such orders:

 

(a) While filing the application under Section 438(4) of the CrPC (Maharashtra Amendment), the prosecutor has to state cogent reasons while seeking the obligatory presence of the accused before the Sessions Court at the time of final hearing of the ABA.

(b) The Sessions Court shall consider the application by the prosecutor and pass a reasoned order as to why the presence of the accused is necessary “in the interest of justice” at the time of final hearing of an ABA.

(c) If the Sessions Court rejects the application, it shall mandatorily extend the interim protection operating in favour of the accused for a minimum period of three (3) working days on the same conditions on which interim protection was granted during pendency of an ABA or on such further conditions as the Sessions Court may deem fit, in the interest of justice.

(d) If the Sessions Court considers it appropriate to grant extension of protection for more than three (3) working days, it shall record the reasons for the same, but in any event, it should not be more than seven (7) days.

(e) The accused should abide by the conditions imposed by the Sessions Court while granting extension of interim protection, failing which such interim protection shall cease to operate instantly.

 


Conclusion


The Paltewar[19] judgment expands on a very important point under the jurisprudence in relation to bails, specifically anticipatory bails. It is seen in a lot of cases that the accused, who is facing a potential arrest, is not provided with a protective order for a reasonable period of time when the presence under Section 438(4) of the CrPC is sought by the Sessions Court. With freedom jeopardised, the accused is pushed closer to a probable arrest.

 

The Paltewar[20] judgment has now made it mandatory to protect the applicant against any untoward impact of such requirement to be personally present, which would give a lot of security to the public at large.

 


† Partner, Cyril Amarchand Mangaldas.

†† Principal Associate, Cyril Amarchand Mangaldas.

††† Associate, Cyril Amarchand Mangaldas.

[1] Government of India, Law Commission of India, Report No. 268 Amendments to Criminal Procedure Code, 1973 Provisions Relating Bail, 23-5-2017.

[2] 2021 SCC OnLine Bom 2192.

[3] Joginder Kumar v. State of U.P., (1994) 4 SCC 260.

[4] Under the Code of Criminal Procedure, 1898.

[5] Government of India, Law Commission of India, 41st Report, The Code of Criminal Procedure, 1898 – Volume I, dated 24-9-1969 at Para 39.9.

[6] Code of Criminal Procedure (Amendment) Act, 2005, S. 38, with effect from 23-6-2006.

[7] Vijaya Ramesh Ramdasi v. State of Maharashtra, Bombay High Court, Criminal Application No. 569 of 2001,

decided on 20-3-2001 .

[8] 2021 SCC OnLine Bom 2192.

[9] 2021 SCC OnLine Bom 2192.

[10] Criminal Application No. 569 of 2001.

[11] Criminal Application No. 4370 of 2004.

[12] 1994 SCC OnLine Bom 73 : (1994) 3 Bom CR 348.

[13] 2021 SCC OnLine Bom 2192, para 17.

[14] 2021 SCC OnLine Bom 2192.

[15] 2021 SCC OnLine Bom 2192.

[16] 2021 SCC OnLine Bom 2192.

[17] 2021 SCC OnLine Bom 2192, para 26.

[18] 2021 SCC OnLine Bom 2192.

[19] 2021 SCC OnLine Bom 2192.

[20] 2021 SCC OnLine Bom 2192.

Case BriefsHigh Courts

Delhi High Court: Yogesh Khanna, J., reiterated that there is no provision in the Criminal Procedure Code to amend a criminal complaint, but amendment can be allowed if the amendment is sought before taking of cognizance.

Petitioner (Aroon Purie, Editor-in-Chief, India Today) filed an application for amendment challenging the order dated 26-02-2020 whereby the trial court directed to issue notice against the petitioner for offences under Sections 500/501/502 read with Section 120-B IPC.

Factual matrix

India Today Magazine in its edition dated 30-04-2007 had published a news item under the title “Mission Misconduct”. The said item asserted allegations, against the complainant, of soliciting sexual favour leading to a probe that revealed financial irregularities and fudging of bills. It was also reported that consequently, the official (complainant) is back in India is facing disciplinary action.

Petitioner’s arguments

(a)       As per Section 7 of the Press and Registration of Books Act, 1867, normally an editor, printer can only be prosecuted. The petitioner is the editor-in-chief and therefore could never be prosecuted. The news item itself shows the petitioner is editor-in-chief and not an editor.

(b)       The news item merely reported the facts and hence it cannot be said to be defamatory. Facts were accurate and reflected the public record and hence no defamation case could be made out.

(c)        Violation of Section 196(2) CrPC: It was argued that it prohibited any Court from taking cognizance of an offence of conspiracy, other than criminal conspiracy to commit an offence punishable with death or imprisonment for life or rigorous imprisonment for two years or above. Such cognizance can be taken only in a case where the State Government or the District Magistrate has consented in writing and since there is no consent of the State Government or by the District Magistrate, the cognizance in the present case is barred under Section 196(2) CrPC.

(d) Challanege was also based on the grounds of violation of Section 197 CrPC. It was contended that necessary sanction for prosecution was not obtained.

(e) Lastly, it was asserted that the instant petition under Section 482 CrPC was maintainable despite availability of the remedy under Section 397 CrPC.

Complainant’s story

As per the complainant, information about allegation of “sexual harassment at work place” was conveyed to him only in the form of a show cause notice. On the basis of his reply, the Ministry of External Affairs conveyed to the complainant that they would not pursue the matter further at that stage. Thus, without any basis, India Today went ahead with the publication of an unsubstantiated and unverified defamatory story and splashed it all over the world through the medium of the internet.

Act of Defamation was done on 30-04-2007 on which date there were no charges of any financial irregularities or of fudging of bills, etc, against the complainant. Such charges were created and disciplinary action initiated and pursued by the Department under the shadow of a democles sword in the form of the publication of the defamatory news story which ignited the flame and the resultant fire engulfed the whole unblemished service career, jeopardized his chances of promotion and, above all, assassinated his precious reputation.

As per the complainant, the so-called complaint dated 10.07.2005 (2006) never existed and was subsequently planted. Further, it was alleged that on the date of publication of story in India Today dated 30-04-2007, no show cause notice much less the memorandum of charges were issued to him.

Whatever information with regard to any allegations was available to the accused/officers of the MEA, who were privy to such classified/confidential information; they rather provided such classified information to India Today in an unauthorized manner and in violation of the GOI Conduct Rules applicable to them, which specifically prohibits sharing any information about service matters of its officer with the media. Thus the assertion the news story on 30-04-2007 was only reporting of a fact which was in public record, was completely misleading.

Analysis, Law and Decision

(a) The High Court was of the opinion that the argument that as per Section 7 of the Press and Registration of Books Act, 1867, normally an editor can only be prosecuted cannot be adhered to. It was reiterated that it is matter of evidence in each case and if the complaint is allowed to proceed only against the editor whose name is printed in the newspaper against whom there is a statutory presumption under Section 7 and in case such editor succeeds in proving that he was not the editor having control over the selection of alleged libelous matter published in the newspaper, the complainant would be left without any remedy left to redress the arguments against the real culprits.

(b) On the second issue, the Court said that the assertions that the news item merely reported facts which were accurate and reflected public records and cannot be held to be defamatory, cannot be accepted. Rather such assertion and who was responsible for its publication and has it came to the fore of editors require critical examination and hence evidence of these issues is required.

The ingredients of Section 499 IPC clearly point out towards the imputation published in any form which also include newspaper. In case the petitioner seeks the protection of an exception under Section 499, that stage is yet to come, meaning thereby the submissions made by the petitioners are not applicable at this stage.

It was noted that as per record available before the Court, the story by the petitioner against the complainant, was allegedly published much prior to the issue of show cause notice. Subsequent to this, the complainant was exonerated from all the allegations vide an order dated 04-04-2008, but as per the complainant, with the publication of the article in question, the complainant was allegedly defamed in the eyes of his wife, his family, his friends and colleagues and society, in India and all over the world. Till date the defamatory article allegedly haunts him and that is the reason the complainant has been vigorously pursuing litigation.

(c) Further, the Court doubted whether Section 196(2) CrPC will be applicable in the present case. Anyhow, in this case, the Magistrate after due process of law and after applying her mind to the facts and circumstances of the complaint, has taken cognizance and thus has consented in writing to the initiation of the proceedings against the petitioner vide a summoning order dated 20.04.2013, hence this objection was not relevant at this stage.

(d) With respect to the objection qua violation of Section 197 CrPC, the High Court expressed that in the present matter, petitioner was neither a judge nor a public servant, therefore no sanction was required to initiate criminal action by the Magistrate against the petitioner.

Relying on the Supreme Court decision in State v. Battenapatla Venata Ratnam, (2015) 13 SCC 87, the Court opined that as the allegations against the government official are of leaking of the confidential information of complainant to block his career, and allegedly for their own pleasure, hence, prima facie, at this stage, per allegations, sanction was not required.

(e) On the question of maintainability of the instant petition, the Court was of the view that allegations and counter allegations in the present matter raised disputed questions of facts and cannot be dwelled into by the High Court under Section 482 CrPC.

All the defenses raised in the instant petition, can very well be taken up by the petitioner during the course of trial, said the High Court.

Whether amendment can be allowed at the instant stage

In the present case, the trial court had already taken cognizance of the complaint and proceeded with the trial. As per the High Court, the amendment which was now sought is illegal and against the provisions of law.

In the present matter, the amendment were sought when the Magistrate had already taken cognizance of the complaint and had proceeded with trial. The High Court relied on the Supreme Court decision in S.R. Sukumar v. S. Sunaad Raghuram, (2015) 9 SCC 609, wherein it was held that, there is no provision in CrPC to amend criminal complaint, but amendment can be allowed if the amendment is sought before taking cognizance.

Therefore, the present petition was dismissed as no ground to interfere under Section 482 CrPC was found. [Aroon Purie v. State, Crl. MC No. 3492 of 2013, decided on 07-04-2021]


Advocates before the Court:

[CRL.M.C. 3492/2013 CRL.M.As. 12820/2013 & 18912/2014]

For the Petitioner: Mr. Siddharth Luthra, Senior Advocate with Mr.Hrishikesh Baruah, Mr. Pranav Jain.

For the Respondents: Mr. Amit Ahlawat, APP for State. Mr.SS.Ahluwalia, Advocate for R2/ Amicus Curie.

[CRL.M.C. 4636/2013, CRL.M.A.Nos.16659/2013, 17386/2020]

For the Petitioner: Mr. Ajay Digpaul, CGSC with Mr. Kamal R.Digpaul, Advocate

For the Respondents: Mr. S.S. Ahluwalia, Advocate/ amicus curie and Mr. Mohit Bansal, Advocate.

[CRL.M.C. 1762/2014, CRL.M.A.Nos.5882/2014, 17297/2020, 17299/2020]

For the Petitioner: Mr. Hrishikesh Baruah, Mr. Ajay P.Tushir, Mr. Shailendra Singh, Mr. Pranav Jain, Mr. Shahrukh, Advocates.

For the Respondents: Mr. Amit Ahlawat, APP for State. Mr.S.S.Ahluwalia, Advocate/ amicus curie and Mr. Mohit Bansal, Advocate for Mr. O.P.Bhola

Case BriefsHigh Courts

Punjab and Haryana High Court: Gurvinder Singh Gill, J., observed that,

Right to appeal against conviction is an invaluable statutory right vested upon a convict by Criminal Procedure Code which cannot be allowed to be defeated by imposing any condition for availing such right.

“..depriving a convict of his right to appeal by imposing any pre-requisite for availing his statutory right to challenge conviction in a higher Court would amount to depriving his liberty without adhering to the established procedure of law.”

Petitioners were arrayed as accused in the complaint filed by the respondent under Section 138 of Negotiable Instruments Act, 1881.

It was alleged that the cheques drawn by the accused upon their presentation in the bank by the complainant for their encashment were dishonoured.

In light of the above background, accused were tried by the Judicial Magistrate and directed to pay compensation.

Accused, on being aggrieved by the above decision preferred appeals before the Sessions Court, wherein at the time of admission of appeals, impugned orders dated 28-2-2020 were passed, wherein following was stated:

“Criminal Appeal received by entrustment. As there are fairly arguable points involved in the adjudication of the present appeal, hence, the present appeal is admitted for hearing, subject to just exceptions and to deposit of 20% of the compensation amount in view of latest amendment in Section 148 of Negotiable Instruments Act (applicable w.e.f. 01.09.2018), within one month from today. It is registered as Criminal Appeal. Now notice of this appeal be issued to the respondent through ordinary process as well as speed post on furnishing of speed post charges and copies of grounds of appeal within a week for 02-07-2020. Trial Court Record be also called for that date.”

Counsel representing the complainant argued that the lower Appellate Court having passed the orders in question in exercise of jurisdiction under statutory provisions of Section 148 of the Act, the same cannot be called to question.

Analysis, Law and Decision

The language of Section 148 of the NI Act would show that the amended provisions vest the Appellate Court with a discretion to direct deposit of an amount not less than 20% of the compensation amount as awarded by the trial Court. Although the word ‘may’ has been used in the Section but the Supreme Court in Surinder Singh Deswal v. Virender Gandhi, (2019) 11 SCC 341 has interpreted the said provisions to mean that issuance of such a direction is more in the nature of a mandate.

In view of the above-stated Supreme Court decision, power of Appellate Court, though discretionary is supposed to be a ‘rule’ and said discretion should be exercised in all the cases unless there are some exceptional circumstances

In the instant case, there were no exceptional circumstances before the lower Appellate Court so as to justify non-deposit of an amount as provided under Section 148 of the Act.

Section 148(2) of the Act would show that it is provided in unambiguous terms that the amount is required to be deposited within a period of 60 days which may further be extended by another 30 days.

In the instant case, lower Appellate Court having granted only 1 month’s period for depositing the amount, the same is contrary to the above-stated provisions.

Right of Appeal

Section 374 CrPC does not prescribe any condition for admission of an appeal.

Provisions of the statute which vests a convict with a valuable right to challenge his conviction are not circumscribed by any conditions.

Nor does any provision of the Negotiable Instruments Act, 1881 refer to any pre-condition for availing a valuable right of the first appeal.

Further, the Bench expressed that Section 148 of the Act just vests the Appellate Court with the power to direct the appellant to deposit an amount not less than 20% of the compensation amount but under no circumstances the same can be interpreted to be a condition pre-requisite for availing the right of appeal.

Imposition of any condition at the time of suspending of sentence may be a different matter and the trial Court may in its wisdom, impose such a condition failing which the order suspending sentence may be vacated.

Supreme Court in Babu Rajirao Shinde v. State of Maharashtra, (1971) 3 SCC 337, observed that a convicted person must be held to be at least entitled to one appeal as a substantial right.

High Court also made another significant observation:

Even though the Negotiable Instruments Act, 1881 is a special Act and could override provisions of Cr.P.C., but there is no such specific provision in the Act which could be interpreted to mean that availing of right to appeal by a person convicted for an offence under the Act, has been made subject to some conditions.

While parting with the decision, Court held that:

(i) The condition made in the impugned orders wherein the admission of appeal has been made subject to deposit of 20% of the compensation amount is set aside and it is ordered that the appeals shall stand admitted before the lower Appellate Court. The petitioners are, however, directed to deposit an amount equivalent to 20% of the amount of compensation awarded by the trial Court within 60 days from today.

(ii)  In case the aforesaid amount is deposited within 60 days from today, the bail already granted vide order dated 28.2.2020 by lower Appellate Court shall continue subject to any such fresh conditions as may be imposed by lower Appellate Court.

(iii)  In case bail of any of the petitioner has been cancelled on account of non-deposit of the amount or has already been taken into custody, he shall be released forthwith on bail subject to any such conditions as may be imposed by the lower Appellate Court. He shall, however, deposit the amount of 20% within 60 days from today.

(iv) In case of failure to deposit the amount in question within a period of 60 days from today, it shall be open to the lower Appellate Court to cancel bail and to hear the appeal on merits, provided, however, subject to any such general directions issued by the High Court in the matter of hearing of cases, having regard to the present circumstances of spread of pandemic COVID-19.[Sudarshan Kumar v. Manish Manchanda, 2020 SCC OnLine P&H 2321, decided on 15-12-2020]


Advocates who appeared before the matter:

Vaibhav Sehgal, Advocate, counsel for the petitioner(s).

Nitin Thatai, Advocate for the respondent (s)

Case BriefsSupreme Court

Supreme Court: Interpreting Section 167(2) CrPC, the 3-judge bench of UU Lalit, MM Shantanagoudar and Vineet Sarah, JJ has said that the Courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21. It said,

“The history of the enactment of Section 167(2), CrPC and the safeguard of ‘default bail’ contained in the Proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with rule of law.”

Going into the legislative intent, the Court noticed that Section 167(2) was enacted providing for time limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail.

“… the intent of the legislature was to balance the need for sufficient time limits to complete the investigation with the need to protect the civil liberties of the accused.”

Section 167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period, failing which the accused can no longer be detained. This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of further remand. This also ensures that the Court takes cognizance of the case without any undue delay from the date of giving information of the offence, so that society at large does not lose faith and develop cynicism towards the criminal justice system. Hence,

“Section 167(2) has to be interpreted keeping in mind the threefold objectives expressed by the legislature namely ensuring a fair trial, expeditious investigation and trial, and setting down a rationalized procedure that protects the interests of indigent sections of society. These objects are nothing but subsets of the overarching fundamental right guaranteed under Article 21.”

Further, in case of any ambiguity in the construction of a penal statute, the Courts must favour the   interpretation which leans towards protecting the rights of the accused, given the ubiquitous   power disparity between the individual accused and the State machinery. This is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused.

The Court, hence, concluded as follows:

  • Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), CrPC read with Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency.
  • The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court.
  • Where the accused fails to apply for default bail when the right accrues to him, and subsequently a chargesheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the CrPC.
  • Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.

Earlier this month, in Bikramjit Singh v. State of Punjab2020 SCC OnLine SC 824, the 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

[M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, 2020 SCC OnLine SC 867, decided on 26.10.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph, JJ has held that the right to default bail is not a mere statutory right under the first proviso to Section 167(2) CrPC, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.

Right to default bail

Explaining the law on grant of default bail, the Court said that so long as an application for grant of default bail is made on expiry of the period of 90 days, which application need not even be in writing, before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed.

“So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.”

Power of the Court to extend the period of 90 days up to a maximum period of 180 days

The Court was dealing with the question relating to extension of time from 90 days to 180 days under Section 167 of the Code of Criminal Procedure, 1973 as amended by the Unlawful Activities (Prevention) Act, 1967 (UAPA). It, hence, discussed at length, the scheme of the statutes.

Section 167 CrPC

Section 167 CrPC makes it clear that whenever a person is arrested and detained in custody, the time for investigation relating to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, cannot ordinarily be beyond the period of 15 days, but is extendable, on the Magistrate being satisfied that adequate grounds exist for so doing, to a maximum period of 90 days. The first proviso (a)(i) to Section 167(2) of the Code goes on to state that the accused person shall be released on bail if he is prepared to and does furnish bail on expiry of the maximum period of 90 days, and every person so released on bail be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.

Section 43-D(2)(b) of UAPA

Under the first proviso in Section 43-D(2)(b), the 90 day period indicated by the first proviso to Section 167(2) of the Code can be extended up to a maximum period of 180 days if “the Court” is satisfied with the report of the public prosecutor indicating progress of investigation and specific reasons for detention of the accused beyond the period of 90 days.

“Court” under UAPA

Before the National Investigation Agency Act, 2008 (NIA Act) was enacted, offences under the UAPA were of two kinds – those with a maximum imprisonment of over 7 years, and those with a maximum imprisonment of 7 years and under. Under the Code as applicable to offences against other laws, offences having a maximum sentence of 7 years and under are triable by the Magistrate’s Courts, whereas offences having a maximum sentence of above 7 years are triable by Courts of Sessions.

However, this Scheme has been completely done away with by the NIA Act as all scheduled offences i.e. all offences under the UAPA, whether investigated by the National Investigation Agency or by the investigating agencies of the State Government, are to be tried exclusively by Special Courts set up under that Act.

“In the absence of any designated Court by notification issued by either the Central Government or the State Government, the fall back is upon the Court of Sessions alone.”

Hence, for offences under the UAPA, the Magistrate’s jurisdiction to extend time under the first proviso in Section 43-D(2)(b) is non-existent, “the Court” being either a Sessions Court, in the absence of a notification specifying a Special Court, or the Special Court itself.

[Bikramjit Singh v. State of Punjab, 2020 SCC OnLine SC 824, decided on 12.10.2020]

Case BriefsHigh Courts

Orissa High Court: B. P. Routray, J dismissed the criminal revision petitions being devoid of merit.

The case, in a nutshell, is that a mining lease in favour of the accused petitioner’s late father Mr Patnaik over an area for Manganese for 20 years and Iron Ore Mining lease was granted for 30 years in 1959. However, in the year 1967 Mr Patnaik surrendered the mining lease for Manganese but continued for Iron Ore and applied for renewal of the lease in 1988 for the break-up area, but without the de-reservation proposal though there were forest areas within the applied area. However, no renewal of fresh lease was granted in his favour after 1989, but the period was further extended for one year. The petitioner accused is alleged to apply for a lease on behalf of his father in 1991 to the Government in the Department of Steel and Mines for grant of working permission pending renewal of mining lease which was granted without any approval by the Ministry of Environment and Forest. The father of the petitioner died in 1995. The Ministry of Environment and Forest in its letter dated 3.9.1998 communicated the permission for DRP (De-reservation Proposal).

In the meantime accused requested the Government in Steel and Mines Department for 20 years renewal of the mining lease, however, without submitting the application in proper form and submitted another proposal for by enclosing a forged will. He was charged under offences under Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,1968, Sections 379/120-B of the Indian Penal Code, Sections 21 of the Mines and Minerals (Development and Regulations) Act, 1957 (hereinafter in short called “MMDR Act”), Section 3-A of the Forest Conservation Act, 1980 and Section 58 of the Mineral Conservation and Development Rules, 1988. The instant criminal revision petition is filed to challenge the order dated 19.07.2019 passed by the learned Special Judge (Vigilance), Keonjhar.

Counsel U.C. Patnaik, G. Mukherjee, S. Panda, R. K. Mohanty and Sumitra Mohanty represented the petitioner’s side. The petitioners have submitted that cognizance taken on the report of Vigilance Police is bad in the eye of law as per Section 22 of MMDR Act. It was further submitted that the complaint at the instance of the Vigilance Police and initiation of the proceeding thereof by taking cognizance of the offences by the court is vitiated as per Orissa Minerals (Prevention of Theft, Smuggling & Illegal Mining and Regulation of Possession, Storage, Trading and Transportation) Rules, 2007. It was further submitted that the provisions of the MMDR Act or MCD Rules never mean to constitute the offence of theft. It was also submitted that the two co-accused have retired from service in 1994 and 1996 respectively and therefore, initiation of any judicial proceeding against them after four years of their retirement is not permissible in view of the provision contained in Rule 7(2)(c) of the OCS (Pension) Rules, 1992.

Counsel for the respondent Sangram Das submitted that the Vigilance Officials have been duly empowered and authorized to conduct enquiry and investigation in respect of all such offences by the Notification of Government. As per Sections 22 and 23B of the MMDR Act, in its Notification dated 19-12-2009 has named the Director of Mines and two Joint Directors authorizing them to exercise the powers of detection/seizure and confiscation, etc. in connection with illegal mining activities for all type of minerals covering the entire State of Odisha. Hence the argument of the petitioners holds no value. It was further submitted that where a person without any lease or license or authority extract minerals and remove and transport them with an intent to remove dishonestly, is liable to be punished of committing such offence under Sections 378 and 379 of the IPC. The argument regarding retirement stands vitiated as the same is barred under Section 7(2)(c) of the OCS (Pension) Rules, 1992, and is not found acceptable. It is because Rule 7 has a limited field of application and cannot be extended to put an absolute bar against criminal prosecution.

The Court relied on the judgment titled Fani Bhusan Das v. State of Odisha, 2018 SCC Online 310 and held that the provision of the CrPC shall have an overriding effect and shall prevail notwithstanding any provision in the Pension Rules, and therefore, the provisions of OCS (Pension) Rules, 1992 would not give any relief to the petitioners.

In view of the above, the petition is dismissed being devoid of merits. [Jitendra Nath Patnaik v. State of Odisha, 2020 SCC OnLine Ori 559, decided on 06-08-2020]

Hot Off The PressNews

As reported by Economic Times, the Ministry of Home Affairs in consultation with the Bureau of Police Research and Development is considering amendments to the criminal laws of the country. The laws under consideration for amendment are Penal Code, 1860, Code of Criminal Procedure, 1973 and Evidence Act, 1872.

Some of the proposals being looked at are:

  1. Diluting the right of appeal to avoid inordinate delays in certain cases, like the 2012 Nirbhaya gangrape case, where the convicts are using legal remedies to seek relief from capital punishment. A ministry official clarified that any amendments to CrPC or revision process would be legally examined as the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 confers to the Supreme Court the power to hear an appeal from any judgment, final order or sentence in a criminal proceeding of a high court for certain cases.
  2. Adopting certain features of the inquisitorial system which is followed in Germany and France to make the current adversarial system more effective. For example, in the inquisitorial system, the investigation is supervised by the judicial magistrate which leads to a higher rate of conviction
  3. Classifying crimes as blue-collar, white-collar, red-collar, green-collar and black-collar crimes under Penal Code, 1860 to equip the police to deal with complex dynamics of internal security.
  4. Setting up modus operandi bureaus at national and state levels to study the technique of crimes and mentality of criminals.
  5. Setting up of National Police University and Forensic Science University with affiliated colleges in every state. This was suggested by Home Minister, Amit Shah to create skilled manpower to tackle complex cases with advanced forensic capabilities instead of the use of third-degree and torture to solve cases.

A home ministry official said that the new laws should be in accordance with the democratic aspirations of people and provide speedy justice to women, children and weaker sections of society. Suggestions have been sought from all states and union territories, the official added.


[Source: Economic Times]

Case BriefsHigh Courts

Madhya Pradesh High Court: Recently, an application was made under Section 482 CrPC against the order in which the plea of applicants under Section 311 CrPC for recalling witnesses who were already examined and re-examined. The reason given by the applicant was that the counsel who was earlier engaged by the applicants could not put several questions on the material aspects, therefore, they had to change their counsel and because of the inability of their earlier counsel, they pleaded that they were being denied the fair trial. The applicants also took a plea under Section 138 of the Evidence Act which talks about the order of examination of witnesses and re-examination.

To this, it was responded by the counsel from the State that although the free and fair trial is the cardinal principle of criminal jurisprudence, but the applicants had engaged the counsel of their own choice and the applicants were given full opportunity to cross examine the witnesses.

The Court went on to examine both the provisions relied upon by the applicants and their inter-connection. The Court observed that a reading of the provision shows that the expression ‘any’ has been used as a prefix to ‘court’, ‘inquiry’, ‘trial’, ‘other proceeding’, ‘person as a witness’, ‘person in attendance though not summoned as a witness’, and ‘person already examined’. It simply means all that is required to satisfy the court in relation to such evidence that it appears to the court to be essential for the just decision of the case. While Section 138 of the Evidence Act provides for the order of examination of witnesses in the Court. So, the re-examination will be conducted as per the order prescribed under Secion 138 at the desire of ‘any’ person referred to in Secion 311 CrPC and most importantly, at the satisfaction of the Court suggested by Section 311 CrPC that is, paramount for the just decision of the case. In all, the Court meant to convey that such power of allowing re-examination must be used sparingly as well as judiciously with utmost care and caution, only with the purpose of finding the truth or obtaining proper proof of such facts.

The Court citing  Hoffman Andreas v. Inspector of Customs, (2000) 10 SCC 430 explained as to when and under what circumstances such powers must be used. It was held in this case that but illness and death of the counsel was in the facts and circumstances considered to be a valid ground for recall of witnesses.

Another principle that the Court emphasised upon is that it’ll always be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. It even warned that justice will be prejudiced if a retrial is followed on every change of a counsel and would be detrimental to the interests of the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.

It even went on to deal with the possibility that if the counsel is physically or mentally unfit to deal with the case, the interests of justice would suffer badly. The Bench suggested that the Advocates Act and the other relevant rules be reviewed in order to ensure the fitness of the counsel in larger interest of the society and also to avoid such pleas as presented in the case before it. The Court persuaded that the Law Commission and the Bar Council of India must look into it. [Paijaram v. State of M.P., M.Cr.C. No.11624/2016, decided on 20.01.2017]