Case BriefsSupreme Court

Supreme Court: In a case relating to brutal custodial violence dating back to 1985, the bench of Ashok Bhushan* and Ajay Rastogi, JJ has held that

“The custodial violence on the deceased which led to the death is abhorrent and not acceptable in the civilized society. The offence committed by the accused is crime not against the deceased alone but was against humanity and clear violations of rights guaranteed under Article 21 of the Constitution.”

Background

In the year 1985, the deceased was brutally assaulted in the Police Station when he went there along with the informant to register a case. As per the facts of the case, when in-charge of the Police Station saw the deceased, he threatened him and said on the next time, he would cause fracture of the hands and legs of the son of the deceased by assaulting him as the later had filed a case against him before the Legal Aid.

When the deceased replied that on being assaulted, his wife and son had filed the case before the Legal Aid and that he did not know anything in that respect, in-charge of the Police Station as well as the Senior Inspector, mercilessly assaulted the deceased with sticks, leaving him unable to walk. The informant, who was the prime witness to the case, was also assaulted and was not allowed to help the deceased and later, when the Police Officers forcefully took the deceased to the hospital, he was kept chained to a chair for the entire night.

Next day, the sweeper had cleaned the blood and stool from the Veranda of the Police Station where the deceased was mercilessly beaten. The deceased succumbed to his injuries after he was taken to the hospital.

Analysis

On the guilt of the accused

The Court took note of the following factors and affirmed the guilt of the accused Police Officers:

  • In spite of Varandah of the Police Station washed in the morning by the sweeper, the scientific officer, who visited the police station found the blood stains in the Varandah.
  • The evidence of PW.1 i.e. the informant could not have been discarded merely because he was an agnate of the deceased. In the long cross-examination, PW.1 could not be shaken.
  • Wooden lathi and batten are the weapons which are usely possessed by the police and the submission cannot be accepted that the injuries cannot be caused by wooden lathi and batten which may cause death. It depends on the manner of use of the wooden lathi and batten.

On whether the offence committed in the present case is compoundable or not

It was submitted before the Court that on the date when the offences took place, i.e. 04.5.1985, offences under Section 324 IPC were compoundable which subsequently have been made non-compoundable. Further, both the appellants were now more than 75 years of age and acting under the order of this Court dated 17.12.2020, the appellants had deposited amount for compensation  to be paid to the legal heirs. Hence, it was the offences be compounded.

In the present case, the accused was already convicted for offence under Section 324 IPC. By Cr.P.C. (Amendment) Act, 2005, offence under Section 324 IPC has been made non-compoundable offence. Prior to the aforesaid amendment, offence under Section 324 was compoundable.

The Court, hence, agreed that on the date when offence was committed, i.e., 04/05.05.1985, the offence under Section 324 IPC was compoundable. It was, however, of the opinion that the offence under Section 324 in the facts of the present case can be compounded only with permission of the Court.

Sub-Section (5) of Section 320 provides that “no composition for the offence shall be allowed without the leave of the Court.”

Thus, the composition of the offence in the facts of the present case is not permissible only on the agreement on the request of the appellant which may be also accepted by the legal heirs of the deceased but composition is permissible only by the leave of the Court.

The grant of leave as contemplated by sub-section (5) of Section 320 is not automatic nor it has to be mechanical on receipt of request by the appellant which may be agreed by the victim. The statutory requirement, makes it a clear duty of the Court to look into the nature of the offence and the evidence and to satisfy itself whether permission should be or should not be granted. The administration of criminal justice requires prosecution of all offenders by the State.

“The prosecution by the State is the policy of law because all the offences are against the society. The offenders have to bring to the Courts and punish for their offences to maintain peace and order in the society. It is the duty of the prosecution to ensure that no offender goes scot-free without being punished for an offence.”

The Court, hence, clarified that the nature of offence, and its affect on society are relevant considerations while granting leave by the Court of compounding the offence. The offences which affect the public in general and create fear in the public in general are serious offences, nature of which offence may be relevant consideration for Court to grant or refuse the leave.

“When we look into the conclusion recorded by the trial court and the High Court after marshalling the evidence on record, it is established that both the accused have mercilessly beaten the deceased in the premises of the Police Station. Eleven injuries were caused on the body of the deceased by the accused. As per the evidence of PW-1, which has been believed by the Courts below, the victim was beaten mercilessly so that he passed on, stool, Urine and started bleeding.”

Hence, present is a case where this Court is not to grant leave for compounding the offences under Section 324 IPC as prayed by the counsel for the appellants. The present is a case where the accused who were police officers, one of them being in-charge of Station and other Senior Inspector have themselves brutally beaten the deceased, who died the same night. Their offences cannot be compounded by the Court in exercise of Section 320(2) read with subsection (5).

“The Police of State is protector of law and order. The people look forward to the Police to protect their life and property. People go to the Police Station with the hope that their person and property will be protected by the police and injustice and offence committed on them shall be redressed and the guilty be punished. When the protector of people and society himself instead of protecting the people adopts brutality and inhumanly beat the person who comes to the police station, it is a matter of great public concern. The beating of a person in the Police Station is the concern for all and causes a sense of fear in the entire society.”

Sentencing and compensation

Looking to the facts that both the appellants are more than 75 years of age now, the Court reduced the sentence awarded for conviction under Section 324 IPC to six months instead of one year and a compensation of Rs.3.5 Lakhs each be paid to the legal heir of the deceased in addition to the compensation awarded by the High Court.

[Pravat Chandra Mohanty v. State of Odisha, 2021 SCC OnLine SC 81, decided on 11.02.2021]


*Judgment by: Justice Ashok Bhushan

Appearances before the Court by

For appellants – Senior counsels R. Basant and Yasobant Das,

For State of Odisha – Advocate Ravi Prakash Mehrotra

For the legal representatives of the deceased – Advocate Priyanka Vora

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of S. Sunil Dutt Yadav and P. Krishna Bhat, JJ., emphasized on the importance of jurisdictional police to register FIR and conduct further investigation of the case.

The facts of the case are such that the instant writ petition was filed in the nature of Habeus Corpus under Article 226 of the Constitution of India, praying to issue a writ or order or direction for production of her son Suresh who was unlawfully taken away by SHO, Gogi Police Station i.e Respondent 3 in the instant case.

On the notice by the Court, Suresh was produced before the Court on 03-11-2020 and it was admitted by Respondent 3 that the petitioner Tarabhai had approached him in the police station with a grievance that her son had been abducted and thereafter he was not found. Inspite of Respondent 3 being conscious that the incident reported was cognizable in nature he did not register an FIR.

Counsel representing the defaulting respondent 3 submitted that a lenient view must be taken for the said violation of the procedure notwithstanding the serious implications for the liberty of Suresh and that his client is prepared to file an undertaking to do some community service to atone for the same.

The Court observed that the entire development in the case after Suresh going missing discloses to us a very disturbing facet of the functioning of the police stations in this area in the state. The Court further observed that the problem primarily is one of police officers not complying with the procedure prescribed under the Code of Criminal Procedure, which places a high premium on the guarantee of liberty of the individuals.

The Court thus held that if the facts disclosed to Respondent 3 amounted to an offence taking place within the limits of his police station, then he should have proceeded with the investigation of the case and if the offence disclosed took place outside the jurisdiction, then he was obliged to transfer the FIR to the jurisdictional police station for further investigation of the case. The Court further stated that Respondent 3 has overlooked the mandate of law in as much as he has not made an entry in the Station House diary regarding the substance of the petitioner and her son Suresh.

The Court directed the respondent 3 to comply with the undertaking by cleaning the front of his police station for a period of one week and further directed the Superintendent of Police, Kalaburagi District to hold a Workshop/ Orientation course to all the police officers working within the Kalaburagi District on the subject of “Zero FIR” and other provisions under the CrPC, 1973 pertaining to registration of FIR and investigation of cases.

In view of the above, and Suresh being produced before the Court, writ petition was disposed off.[Tarabai v. The State of Karnataka,  2020 SCC OnLine Kar 2286, decided on 17-12-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: In a 2:1 verdict, the bench of RF Nariman, Navin Sinha and Indira Banerjee, JJ has held that

  • That the officers who are invested with powers under section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) are “police officers” within the meaning of section 25 of the Evidence Act, 1872, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
  • That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

Here are the key takeaways from the judgment that runs into 308-pages.


Nariman, J (for himself and and Sinha, J)


NDPS Act is to be construed in the backdrop of Article 20(3) and Article 21

Several safeguards for maintaining the balance between the power of the State to maintain law and order, and the fundamental rights, are contained in the NDPS Act, which is of an extremely drastic and draconian nature. Hence, the interpretation of a statute like the NDPS Act must be in conformity and in tune with the spirit of the broad fundamental right not to incriminate oneself, and the right to privacy.

“Statutes like the NDPS Act have to be construed bearing in mind the fact that the severer the punishment, the greater the care taken to see that the safeguards provided in the statute are scrupulously followed.”

Confessions under Section 25 of the Evidence Act

  • Section 25 is to be viewed in contrast to section 24, given the situation in India of the use of torture and third-degree measures. Unlike section 24, any confession made to a police officer cannot be used as evidence against a person accused of an offence, the voluntariness or otherwise of the confession being irrelevant – it is conclusively presumed by the legislature that all such confessions made to police officers are tainted with the vice of coercion.
  • The interpretation of the term “accused” in section 25 of the Evidence Act is materially different from that contained in Article 20(3) of the Constitution. The scope of the section is not limited by time – it is immaterial that the person was not an accused at the time when the confessional statement was made. Whereas a formal accusation is necessary for invoking the protection under Article 20(3), the same would be irrelevant for invoking the protection under section 25 of the Evidence Act.
  • Section 26 of the Evidence Act extends the protection to confessional statements made by persons while “in the custody” of a police-officer, unless it be made in the immediate presence of a Magistrate.

Section 67 of the NDPS Act vis-à-vis Sections 161 to 164 of the CrPC

“Enquiry” in section 67 is not same as “investigation”

Section 67 is at an antecedent stage to the “investigation”, which occurs after the concerned officer under section 42 has “reason to believe”, upon information gathered in an enquiry made in that behalf, that an offence has been committed.

“Examination” under Section 67 cannot be equated “statement” under Section 161 CrPC

Under section 67(c) of the NDPS Act, the expression used is “examine” any person acquainted with the facts and circumstances of the case. The “examination” of such person is again only for the purpose of gathering information so as to satisfy himself that there is “reason to believe” that an offence has been committed. This can, by no stretch of imagination, be equated to a “statement” under section 161 of the CrPC.

Availability of safeguards under Sections 161 to 164 of the CrPC to the accused

Under section 163(1) of the CrPC, no inducement, threat or promise, as has been mentioned in section 24 of the Evidence Act, can be made to extort such statement from a person; and if a confession is to be recorded, it can only be recorded in the manner laid down in section 164 i.e. before a Magistrate, which statement is also to be recorded by audio-video electronic means in the presence of the Advocate of the person accused of an offence. This confession can only be recorded after the Magistrate explains to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him. The Magistrate is then to make a memorandum at the foot of the record that he has, in fact, warned the person that he is not bound to make such confession, and that it may be used as evidence against him. Most importantly, the Magistrate is empowered to administer oath to the person whose statement is so recorded. Hence,

“It would be remarkable that if a police officer, properly so-called, were to “investigate” an offence under the NDPS Act, all the safeguards contained in sections 161 to 164 of the CrPC would be available to the accused, but that if the same police officer or other designated officer under section 42 were to record confessional statements under section 67 of the NDPS Act, these safeguards would be thrown to the winds.”

Can an officer designated under Section 53 of the NDPS Act be said to be a Police Officer

A “police officer” does not have to be a police officer in the narrow sense of being a person who is a police officer so designated attached to a police station. In a series of judgments, a broad view has been accepted, and never dissented from, that

“… where a person who is not a police officer properly so-called is invested with all powers of investigation, which culminates in the filing of a police report, such officers can be said to be police officers within the meaning of section 25 of the Evidence Act, as when they prevent and detect crime, they are in a position to extort confessions, and thus are able to achieve their object through a shortcut method of extracting involuntary confessions.”

It was further held that to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.


Banerjee, J (Dissenting)


A crime under the NDPS Act is a crime against society and not just an individual or a group of individuals. While the safeguards in the NDPS Act must scrupulously be adhered to prevent injustice to an accused, the Court should be vigilant to ensure that guilty offenders do not go scot free by reason of over emphasis on technicalities. Substantial justice must be done. Every piece of evidence should be objectively scrutinized, evaluated and considered to arrive at a final decision.”

  • Any statement made or document or other thing given to an authorised officer referred to in Section 42 of the NDPS Act or an officer invested under Section 53 with the powers of an Officer in Charge for the purpose of investigation of an offence under the said Act, in the course of any inquiry, investigation or other proceeding, may be tendered in evidence in the trial of an offence under the said Act and proved in accordance with law.
  • A statement recorded under Section 67 of the NDPS Act can be used against an accused offender in the trial of an offence under the NDPS Act.
  • When a statute has drastic penal provisions, the authorities investigating the crime under such law, have a greater duty of care, and the investigation must not only be thorough, but also of a very high standard. There are inbuilt safeguards in the NDPS Act to protect a person accused of an offence under the said Act, from unnecessary harassment, or malicious or wrongful prosecution.
  • If the provisions of the Cr.P.C were to apply to investigations under the NDPS Act, it would not have been necessary to invest any officer under the NDPS Act with the powers of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act, by notification in the Official Gazette. The provisions of Section 50(5) and 51 of the NDPS Act would also not have been necessary.
  • Section 53A covers any statement made and signed by any person, before any officer empowered under Section 53 for the investigation of offences, during the course of any proceedings by such officer, under the NDPS Act, be it an inquiry or investigation. This provision makes it abundantly clear that the principles embodied in Sections 161/162 of the Cr.P.C have no application to any inquiry or other proceeding under the NDPS Act, which would include an investigation.
  • The NDPS Act, being a special statute, and in any case a later Central Act, the provisions of the NDPS Act would prevail, in case of any inconsistency between the NDPS Act and the Evidence Act. The Evidence Act would however apply to a trial under the NDPS Act in other respects, unless a contrary intention appears from any specific provision of the NDPS Act. The previous statement of a witness, even if admissible in evidence cannot be used against the witness unless the witness is confronted with the previous statement and given an opportunity to explain.
  • The principles of Section 163 of the Cr.P.C. are implicit in the provisions of the NDPS Act relating to inquiry and investigation though the said Section may not apply to such inquiry or investigation. This is because the bar of Article 20(3) of the Constitution of India has to be read into every statute in spirit and substance. There can be no question of obtaining any statement by any inducement, promise or threat.
  • The powers of a police officer are far greater than those of an officer under the NDPS Act invested with the powers of an Officer in Charge of a Police Station for the limited purpose of investigation of an offence under the NDPS Act. The extensive powers of the police, of investigation of all kinds of offences, powers to maintain law and order, remove obstruction and even arrest without warrant on mere suspicion, give room to police officers to harass a person accused or even suspected of committing an offence in a myriad of ways. The police are, therefore, in a dominating position to be able to elicit statements by intimidation, by coercion, or by threats either direct or veiled.

“The powers of NDPS officers being restricted to prevention and detection of crimes under the NDPS Act and no other crime, they do not have the kind of scope that the police have, to exert pressure to extract tailored statements.”

  • Officers under the NDPS Act, invested under Section 53 with the powers of an Officer in Charge of a Police Station, for the purpose of investigation of an offence under the NDPS Act, do not exercise all the powers of police officers. They do not have the power to file a police report under Section 173 Cr.P.C which might be deemed a complaint. There is no provision in the NDPS Act which requires any officer investigating an offence under the said Act or otherwise making an inquiry under the said Act to file a report. Officers under the NDPS Act not being police officers, Sections 161/162 of the Cr.P.C have no application to any statement made before any officer under the NDPS Act, in the course of any inquiry or other proceedings under the NDPS Act.
  • There can be no doubt that the mandatory provisions of the NDPS Act to ensure fair trial of the accused must be enforced. However, over-emphasis on the principles of natural justice in drugtrafficking cases can be a major hindrance to the apprehension of offenders. In offences under the NDPS Act, substantial compliance should be treated as sufficient for the procedural requirements, because such offences adversely affect the entire society. The lives of thousands of persons get ruined.

[Tofan Singh v. State of Tamil Nadu, 2020 SCC OnLine SC 882, decided on 29.10.2020]

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar, J., while dismissing a criminal petition for enlargement on bail, said, “There are prima facie materials against the petitioner; Section 37 of the NDPS Act is very much attracted.”

Brief Facts

1. That the Police Inspector received credible information on 11-6-2020 that about six persons living in a house were possessing narcotic substances such as ganja, MDMA, ecstasy tablets and LSD strips and they were about to sell those substances.
2. That subsequently, the Police Inspector conducted a raid on that house, seized the substances and arrested those persons.
3. That the present criminal petition is instituted to enlarge the petitioners on bail, on the ground (i) non-compliance of standing instructions; FSL report pending (ii) no registration of FIR prior to search (iii) contraband substances were not seized from the ‘conscious possession’ of the accused.

Observations

1. The panchanama discloses recording of reasons by the police officer for not being able to apply for search warrant and also compliance of proviso to Section 42(1) of the NDPS Act. It further states that the search was made in the presence of a gazetted officer, therefore there is due compliance of all the requirements envisaged under NDPS Act.

2. With respect to the contention that, the substances seized were not in the ‘conscious possession’ of the accused, the Court said,

“If a bag containing contraband is found in the house of the accused, it goes without saying that the first impression of an ordinary prudent man is that the bag belongs to the accused and he must be aware of its contents. If he takes a stand that he was not aware of the contents, the burden is on him to establish it.”

3. Ben Okoro v. State of Karnataka, Crl. P. No. 8644 of 2017, In this case, bail was granted to the accused taking note of the fact that the qualitative and quantitative report was not obtained within 15 days as per standing Instruction No. 1/1988.

4. Kelsi Katte Mohammed Shakir v. Superintendent of Customs, Crl. P. No. 5402 of 2018, The position in the above-mentioned case was reiterated.

5. However, in Nonso Joachin v. State of Karnataka, following the Supreme Court decision in Supdt., Narcotics Control Bureau, Chennai v. R. Paulsamy, (2000) 9 SCC 549, The Court said,

“If the investigation officer could not obtain the FSL report within 15 days, it is not so significant that too when there are other materials indicating the existence of prima facie materials about the involvement of the petitioners in commission of offences.”

6. The Court while citing, Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the Court made the following observation,

“The focus is on the duty of Station House Officer once he receives information about commission of offence, that means the information should disclose a crime being already committed. And in such a situation, if the crime is cognizable, the Station House Officer is bound to register FIR without wasting time. But the secret information does not disclose a crime being committed, it only alerts the police about a crime which is about to occur. The police officer who receives such information has to proceed to spot for preventing the crime or to take such other measures that the situation demands. Thereafter if he prepares a report, it may be treated as FIR for further course of action.”

Decision
Observing that there are prima facie materials against the petitioner, the Court dismissed the instant criminal petition on the lack of merits. [Tasleem N.P v. State of Karnataka, 2020 SCC OnLine Kar 1533, decided on 01-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission India has taken suo motu cognizance of media reports that a 13-year-old girl belonging to Scheduled Caste was gang-raped and killed when she had gone to relieve herself on the farmland owned by one of the accused on 15-08-2020. Reportedly the victim was tortured before strangled to death. It is mentioned in the news report that there is a toilet in the victim’s house but it’s not functional.

The Commission has issued notices to the Chief Secretary and DGP, Government of Uttar Pradesh calling for detailed reports in the matter within 06 weeks including disbursement of the statutory relief as per rules framed under provisions of the SC/ST (POA) Act to the family of the victim, action taken against the guilty and the status of the FIRs registered in the matter. The Chief Secretary is also expected to sensitize the district authorities in the State to create awareness that the toilets should not be constructed for mere fulfillment of the government records, they are to be actually made functional.

The Commission found it appropriate to forward a copy of the news item to the Secretary, Union Ministry of Jal Shakti, which is the Nodal Ministry for the ‘Swachchh Bharat Abhiyan.’ It is expected from the Ministry to issue guidelines to all the States and Union Territories to ensure that the toilets are not only constructed but also used to make the country clean and save the women from the heinous crimes committed by anti-social elements when they go out to relieve themselves. He is also expected to respond within 6 weeks.

According to the media reports, both the accused have been arrested by the police. The Senior Superintendent of Police, Kheri has reportedly stated that the FIR has been registered under relevant sections of IPC and POCSO Act. He has further added that the National Security Act will be slapped against the accused who were arrested by the police within few hours after the incident.


National Human Rights Commission

[Press Release dt. 17-08-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, India has taken suo motu cognizance of a media report that an Inspector of Govind Nagar police Station, Kanpur, Uttar Pradesh asked a 16 years old girl to dance in lieu of registering an FIR against the nephew of her landlord who has been molesting her. The girl with her family lives in a rented accommodation in Dabauli West area of Govind Nagar.

The Commission has issued a notice to the Director-General of Police, Uttar Pradesh calling for a detailed report within 6 weeks in the matter including action taken against the delinquent police officer and the status of the FIR registered on the complaint submitted by the victim’s family.

Reportedly, the girl’s family earns a livelihood by doing some Jagran parties, etc and they had tried to lodge a complaint against the nephew of their landlord accusing him of molesting the girl besides forcibly evacuating them from the rented portion of the house, a few days ago.

According to the media report, the Circle Officer of Govind Nagar, Kanpur has denied the allegations stating that there is no substance in the charges and prima facie, it appears that the girl has made the video viral in order to create pressure on the police. He has also stated that an investigation into the matter is underway.


National Human Rights Commission

[Press Release dt. 17-08-2020]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of A. Hariprasad and N. Anil Kumar JJ., disposed of writ petition by holding that Vigilance and Anti-Corruption Bureau is a specialized police force and exercised the same powers as that of a police officer.

In the present case, the petitioner had been alleged to have abused his official position by demanding illegal gratification from the respondent while being on duty as a public servant. The bribe was for receiving land tax for three acres of land and upon various negotiations, the complainant paid the agreed amount. Allegations against the petitioners were that they abused their official positions and committed criminal misconduct by demanding and accepting bribe. Allegations were also raised regarding the commission of criminal conspiracy and causing the disappearance of evidence. The issues framed under the writ petitions questions whether the Vigilance and Anti-Corruption Bureau (“VACB”) is a police force constituted under the State Government’s legislative power conferred by the Constitution of India and whether they have any lawful authority to register First Information Reports (FIR), investigate crimes, submit charge sheets and prosecute the alleged offenders?

 The advocates representing the petitioner, D. Kishore and Mini Gopinath submitted that the registration of FIR and submission of final report in both cases by the Deputy Superintendents of Police, VACB was without any lawful authority since they are not “police officer” within the meaning of Section 17 of the Prevention of Corruption Act, 1988. They also put forth that there is no law laying down the formation of VACB. Thus, registration of FIR, arrest, investigation, filing of chargesheet and prosecution of offenders cannot be permitted to be done by the officers of VACB.

The respondent State being represented by its chief secretary submitted that all the police personnel working in the VACB continues to be police officers and can exercise all the powers vested in them under various statutes and rules. They put forth that VACB is headed by a Director, who is one of the senior-most police officers in the rank of Director General of Police. Director, VACB exercises the power of superintendence over the investigations conducted by all the officers having powers to investigate. All the police officers, as well as policemen working in VACB, are drawn from the Police Department.

The Court upon perusal of all the facts and evidences stated that the Vigilance Officers were well within their rights to file FIR and submit final reports. It held that Police Act, 1960 was enacted in accordance with the authority under List II in the 7th Schedule to the Constitution of India. The Court laid down that “The police officers who worked in the erstwhile Vigilance Department derived power and authority from the Police Act, 1960. Likewise, the same statute empowers to investigate those who at present work in VACB. Therefore, we find no merit in the challenge against Ext.P4.” [K. Karunanidhi v. State of Kerala, 2020 SCC OnLine Ker 539, decided on 10-02-2020]

Case BriefsHigh Courts

Punjab and Haryana High Court: Rajbir Sehrawat, J., addressed the petition filed under Sections 482 and 483 of CrPC for quashing of FIR registered under Sections 406, 420 & 120-B Penal Code, 1860 and the orders whereby the warrants of arrest were issued against the petitioner.

Contentions

Petitioner’s counsel submitted that the petitioner has instructed him to restrict the petition only qua challenge to the warrants issued by the Magistrate against the petitioner in the said FIR. Adding to his contentions, counsel for the petitioner stated that the Magistrate had issued warrants in a mechanical manner.

Magistrate had no reason to exercise his discretion to decide whether the petitioner was evading his arrest or not. The exercise of discretion by the Magistrate stands vitiated, being in the negation of law as is laid down by the Supreme Court in State v. Dawood Ibrahim Kaskar, (2000) 10 SCC 438.

He further stated that since, the police had not disclosed any reason even in their application, therefore, the arrest of the petitioner would be in violation of the provisions of Section 41(1)(b)(ii) of CrPC. If the Magistrate could not have authorized police custody, due to absence of valid reasons then the Magistrate could not have been issued warrant authorizing arrest of the petitioner.

Respondent’s counsel stated that the petitioner is involved in a heinous crime of huge fraud. Since the police was unable to arrest the petitioner despite repeated attempts and the raids at the known addresses of the petitioner, therefore, the investigating officer had rightly applied for the arrest warrant against the petitioner.

Further, he stated that, Magistrate is not required to record any reasons for issuing warrants of arrest against an accused. Hence, the Magistrate has not committed any illegality.

Court’s Analysis & Decision

On a bare perusal of the provisions of CrPC, the Court stated that the police officer has almost omnipresent power to arrest. He can arrest a person even on having a suspicion that such person has committed a cognizable offence.

Adding to the above point, the Court stated that, in certain circumstances, the police officer is required to record reasons for arresting a person or is required to have a satisfaction qua the necessity of arrest, however, all these requirements are intrinsic to the arresting officer.

Thus for the purpose of arresting police officer has all-pervasive powers without any assistance from the Court or Magistrate.

Limiting factors for the above said the power of arrest without warrant is the existence of some reasons for the exercise of such power.

Chapter XII of CrPC which deals with Investigation of Crime also does not contemplate any assistance of a Magistrate or a court; to the police officer, qua investigation of a crime.

Section 167 CrPC requires that after arrest if investigation is not conducted within 24 hours then the person shall be produced before the Magistrate. Even the Magistrate is prohibited from permitting police custody for more than 15 days in all.

Section 73 of CrPC confers a power upon the Chief Judicial Magistrate and a Magistrate of First Class to issue warrants against any person who is ‘evading arrest’.

Under the above-said Section, the Magistrate can issue warrants of arrest against a person:-

(a) Who is an escaped convict
(b) Proclaimed offender
(c) Person accused of ‘non-bailable’ offence and is ‘evading arrest’.

Decision

High Court noting the above observations along with the contentions of both the counsels for the parties found the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, to be befitting in the facts of the present case, in the cited case following was held by the Supreme Court,

“…before arresting the accused, alleged to have committed a cognizable and non-bailable offence punishable with imprisonment up to seven years, the police officer has to record reasons qua his satisfaction that the arrest of the said person is necessary for the purpose mentioned in the Section.”

“…even at the time of authorizing detention of a person, who has already been arrested by the police, Magistrate would not go by ipse dixit of the language, which might be reproduced in the record of the police. He has to apply his independent mind as to whether the reasons are sufficient to sustain the satisfaction qua requirements of getting such person arrested. Only if the reasons are found sufficient, the person arrested by the police can be authorized to be put in further custody of the arresting officer.”

High Court also observed and stated that, before the Magistrate had taken cognizance of any offence, power of issuance of arrest warrants under any provision of CrPC, on an application of a police officer, cannot be invoked by the Magistrate as a routine manner.

It is clear from the above-said analysis that,

 “only for arresting a person; the police do not require any warrant as such. Hence, it would not lie in the mouth of the police to allege before the Magistrate, without there being any specific reasons or any barrier in their way, that the accused is evading arrest.”

Thus, the application moved by the police officer is silent qua any reason, which requires assistance from the court for arresting the petitioner.

No reason, whatsoever, has been spelt out in the application, even qua the requirements of arrest as mentioned in Section 41 CrPC, to justify the arrest of the petitioner, except to say that the petitioner is evading arrest. It is upon this application that the impugned warrants of arrest have been issued against the petitioner.

Hence, nothing has been noted either in the order passed by the Magistrate, from which it can be discernible that the Magistrate has some reasons or material to justify the discretion exercised by him.

Court found the impugned warrant issued by the magistrate not sustainable. Hence the present petition is found to be partly allowed by quashing the warrants of arrest and consequent order impugned in the petition. [Gurjeet Singh Johar v. State of Punjab, 2019 SCC OnLine P&H 2606, decided on 08-11-2019]

Case BriefsForeign Courts

Malaysia Court of Appeal: A Full Bench of Mohtarudin Baki, Ahmadi Haji Asnawi, Abdul Rahman Sebli, JCA dismissed an appeal made against three incriminating offences and upheld the decision made by the High Court of Malaysia,

The appellant was interrogated by the Superintendent of Police. He and his team were directed by the appellant to a place behind a steel cupboard at the temple where the drug, the firearm and the ammunition were discovered. The information that the appellant gave under Section 27 of the Evidence Act 1950, was that he kept the three incriminating exhibits at the temple. However the appellant denied this testimony and pleaded that it was the police themselves who found all the above things, and they were not discovered as a result of information given by him. Section 27 of the Evidence Act 1950, provides that “When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.” High Court ruled that a prima facie case had been established against the appellant in respect of all the above three charges, because all the above things were found as a result of information given by the appellant. Aggrieved appellant filed the appeal before the Court in respect of conviction and sentence regarding all three charges.

Appellant denied the testimony of Superintendent of Police that he pointed towards the steel cupboard where the incriminating exhibits were found. He claimed that when the police conducted a search at the temple premises, he remained in the police car with a policeman and was brought to the temple premises only to be photographed beside the steel cupboard. He also claimed that High Court had not given a maximum evaluation to the prosecution’s evidence and his explanation and had made an error in ruling that his witnesses were not credible and had made a wrong finding on exhibits seized.

This Court pointed out that the High Court had carefully analyzed the prosecution’s evidence and had correctly applied the law to the facts and had provided careful analysis of the appellant’s explanation and the judge was mindful of his duty under Section 182 A(1) of the Criminal Procedure Code, 1935 and had sufficiently considered the defence put up by the appellant before finding him guilty of the offences charged. Court placed reliance on the decision of Supreme Court of India in Prakash Chand v. State, (1979) 3 SCC 90 where it was held that “where an accused person pointed out the place where stolen articles or weapon which might have been used in the commission of the offence were found hidden, the same would be admissible as conduct, under Section 8 of the Evidence Act 1872.”

The Court dismissed the appellant’s appeal and affirmed the decision of the High Court and held that there was no merit in the complaint and there was absolutely no basis to find that the High Court had not seen and heard the witnesses or explanations made by the appellant.[Prabhagaran A/L Kegobalu v. Public Prosecutor, 2019 SCC OnLine MYCA 2, decided on 11-06-2019]

Case BriefsHigh Courts

Karnataka High Court: H.B. Prabhakara Sastry, J. dismissed the petition under Section 438 of Code of Criminal Procedure for an offence punishable under Sections 307, 504, 506 read with Section 34 of Indian Penal Code, 1860.

The facts of the case were that petitioner and the complainant had a quarrel with respect to the headphone. The petitioner, one night, assaulted the victim with a knife and inflicted several injuries upon him. It was the nearby public that rescued the victim from the fight and he was rushed to the hospital. The complainant received the phone call regarding the incident and rushed to the hospital and found the injured victim in ICU. The complaint was thus registered against the petitioner for offence punishable under Sections 307, 504, 506 read with Section 34 of Indian Penal Code, 1860.

Srinivasa C., Advocate for the petitioner submitted that complaint was an exaggerated version of the simple altercation. It was further submitted that the accused and victim were relatives and were very much interested in living in a coordinated harmony. Therefore, prayed for the grant of the bail.

Divakar Maddur, High Court Government pleader argued that accused and victim were known to each other prior to the incident but the statement of the victim, who had attributed direct overt act against the petitioner as the one who stabbed him and caused several injuries with the help of the knife. It was further submitted that as the investigation was in process, the enlargement of the bail was not warranted and thus prayed for the dismissal of the present application.

The High Court after submission by the parties held that statement of the victim, that too, stated to have given in the hospital in the presence of the doctor to the police officer cannot be discarded at the stage of the investigation. Moreover, the investigation is said to be in progress. As such apprehension expressed by the prosecution that the enlargement of the accused on the relief of the bail may hamper the case cannot be ignored and hence rejected the present petition.[Mohd. Waseem v. State of Karnataka, Criminal Petition No. 3215 of 2019, decided on 23-05-2019]