Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi and Abhay S. Oka*, JJ has held that under Section 167 of the Code of Criminal Procedure, 1973 (CrPC), it is mandatory to produce the accused at the time when the Court considers the application for extension and that the accused must be informed that the question of extension of the period of investigation is being considered.

The Court observed,

“The accused may not be entitled to know the contents of the report but he is entitled to oppose the grant of extension of time on the grounds available to him in law.”

Background

Accused were charged under Sections 3(1), 3(2), 3(3), 3(4), 3(5), and 4 of the Gujarat Control of Terrorism and Organised Crime Act, 2015 and were arrested on different dates. Reports were submitted by the Public Prosecutor seeking extension of time up to 180 days to complete the investigation. The prayer for extending the time up to 180 days was allowed by the Special Court on the very day on which the applications were filed.

Being aggrieved by the said orders of the Special Court, separate applications under Section 482 of CrPC were preferred by the appellants. By the impugned common Judgment dated 15.09.2021, the Gujarat High Court rejected the said applications.

It is the case of the appellants that the Special Court passed orders on the reports submitted by the learned Public Prosecutor by which time to complete investigation was extended up to 180 days, the presence of  none of the accused was procured either physically or through video conference and that they were not even informed about the reports submitted by the Public Prosecutor.

Law in question – Explained

Section 167 CrPC has been amended in relation to the cases involving offences punishable under the 2015 Act. By virtue of sub-section (2) of Section 20 of the 2015 Act, a proviso has been added in addition to the existing proviso to sub-section (2) of Section 167 of CrPC which permits the Special Court established under the 2015 Act to extend the period of 90 days provided to complete the investigation up to 180 days. The Special Court is empowered to extend the period up to 180 days on a report of the Public Prosecutor setting out the progress of the investigation and the specific reasons for continuing detention of the accused beyond the period of 90 days.

In a case involving the offences punishable under the 2015 Act, the Special Court is authorized to detain the accused person in custody for a period not exceeding 90 days. The proviso added by sub-section (2) of Section 20 of the 2015 Act to sub-Section (2) of Section 167 of CrPC enables the Special Court to extend the said period to a total of 180 days on the basis of a report of the Public Prosecutor setting out the progress of the investigation and incorporating the specific reasons for the detention of the accused beyond the period of 90 days.

Thus, unless the Special Court exercises the power under the proviso added by the 2015 Act to sub-section (2) of Section 167 of CrPC, on the expiry of the period of 90 days, the accused will be entitled to default bail. When the Special Court exercises the power under the proviso added to sub-section (2) of Section 167 of CrPC and extends the time up to 180 days, the accused will be entitled to default bail only if the charge sheet is not filed within the extended period.

Failure to produce accused before Special Court at the time of considering extension application – Effect of

Clause (b) of sub-section (2) of Section 167 of CrPC lays down that no Magistrate shall authorise the detention of the accused in the custody of the police unless the accused is produced before him in person. It also provides that judicial custody can be extended on the production of the accused either in person or through the medium of electronic video linkage.

Thus, the requirement of the law is that while extending the remand to judicial custody, the presence of the accused has to be procured either physically or virtually. This is the mandatory requirement of law. This requirement is sine qua non for the exercise of the power to extend the judicial custody remand.

The reason is that the accused has a right to oppose the prayer for the extension of the remand. When the Special Court exercises the power of granting extension under the proviso to sub-section (2) of Section 20 of the 2015 Act, it will necessarily lead to the extension of the judicial custody beyond the period of 90 days up to 180 days. Therefore, even in terms of the requirement of clause (b) of sub-section (2) of Section 167 of CrPC, it is mandatory to procure the presence of the accused before the Special Court when a prayer of the prosecution for the extension of time to complete investigation is considered.

The requirement of the report under proviso added by sub-section (2) of Section 20 of the 2015 Act to clause (b) of sub-section (2) of Section 167 of CrPC is two-fold:

  • Firstly, in the report of the Public Prosecutor, the progress of the investigation should be set out; and
  • Secondly, the report must disclose specific reasons for continuing the detention of the accused beyond the said period of 90 days.

Therefore, the extension of time is not an empty formality. The Public Prosecutor has to apply his mind before he submits a report/ an application for extension. The prosecution has to make out a case in terms of both the aforesaid requirements and the Court must apply its mind to the contents of the report before accepting the prayer for grant of extension.

On the submission that the accused has no say in the matter, the Court observed that accepting the same would make the requirement of giving notice by producing the accused an empty and meaningless formality. Moreover, it will be against the mandate of clause (b) of the proviso to sub-section (2) of section 167 of CrPC.

“It cannot be accepted that the accused is not entitled to raise any objection to the application for extension. The scope of the objections may be limited. The accused can always point out to the Court that the prayer has to be made by the Public Prosecutor and not by the investigating  agency.   Secondly, the accused can always point out the twin requirements of the report in terms of proviso added by sub-section (2) of Section 20 of the 2015 Act to sub¬section (2) of Section 167 of CrPC.  The accused can always point out to the Court that unless it is satisfied that full compliance is made with the twin requirements, the extension cannot be granted.”

The logical and legal consequence of the grant of extension of time is the deprivation of the indefeasible right available to the accused to claim a default bail.

“The grant of the extension of time takes away the right of the accused to get default bail which is   intrinsically connected with the fundamental rights guaranteed under Article 21 of the Constitution. The procedure contemplated by Article 21 of the Constitution which is required to be followed before the liberty of a person is taken away has to be a fair and reasonable procedure. In fact, procedural safeguards play an important role in protecting the liberty guaranteed by Article 21.”

Hence, the failure to procure the presence of the accused either physically or virtually before the Court and the failure to inform him that the application made by the Public Prosecutor for the extension of time is being considered, is not a mere procedural irregularity. It is gross illegality that violates the rights of the accused under Article 21.

Ruling on facts

In the case at hand, the reports were submitted by the Public Prosecutor nearly a week before the expiry of the period of 90 days. In every case, period of seven days or more was available for completion of the period of ninety days. The orders were passed by the Special Court on the reports of the Public Prosecutor on the very day on which reports were submitted.

In such circumstances, the Court held that there was no reason for such hurry. The Special Court could have always granted time of a couple of days to the prosecution to procure the presence of the accused either physically or through video conference. Hence, in the facts of the present case, the grant of extension of time without complying with the requirements laid down by the Constitution Bench had deprived the accused of their right to seek default bail and had resulted in the failure of justice.

The Court, hence, held that the orders passed by the Special Court of extending the period of investigation to be illegal on account of the failure of the respondents to produce the accused before the Special Court either physically or virtually when the prayer for grant of extension made by the Public Prosecutor was considered. Consequently, the Court directed the accused to be enlarged on default bail.

[Jigar v. State of Gujarat, 2022 SCC OnLine SC 1290, decided on 23.09.2022]


*Judgment by: Justice Abhay S. Oka


For appellants: Senior Advocate Nitya Ramakrishnan

For Respondent: SG Tushar Mehta and ASG Aman Lekhi

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a criminal appeal filed challenging the extension of the remand period from 90 days to 180 days and for grant of bail to the appellants, P.N. Prakash and RMT Teekaa Raman, JJ. held that for extending the period of remand, materials must be placed before the court to show the progress of the investigation and reasons for the remand or extension of remand; and it was reiterated that the ‘indefeasible right’ of the accused to be released on bail is a right which is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed.

The Court noted that the ninety days remand envisaged by Section 167 of Code of Criminal Procedure was to expire on 31.12.2021 and anticipating that it would not be possible to complete the investigation before the date, the public prosecutor filed a report under the first proviso to Section 43-D(2) of Unlawful Activities Prevention Act (‘UAPA’) for the extension of the remand period. The Special Court by order dated 03.01.2022 accepted the report of the public prosecutor and extended the remand to a further period of 90 days from 31.12. 2021.Further, the appellants submitted that the order dated 03.01.2022 was passed without hearing the accused.

The Court on perusal of the relevant records has observed that the report under first proviso to Section 43-D(2) of UAPA has been filed by the public prosecutor, therefore, the contention of the appellants that Special Public Prosecutor had not filed any report in terms of proviso to Section 43-D(2) is factually incorrect.

The Court placed reliance on the decision in Selvanathan v. State, 1988 SCC OnLine Mad 335 wherein it was held that “the accused will not be entitled to a copy of the requisition for remand” and observed that when a request for remand under Section 167 of CrPC with a report is filed by the public prosecutor under the proviso to subsection (2) of Section 43-D of UAPA, for extending the period of remand, materials must be placed before the court to show the progress of the investigation and reasons for the remand / extension of remand, and for this several material particulars and trajectory of the investigation would be disclosed including the names of some suspects whom the investigation agency would have to nab. Further, if the copies of these documents are furnished to the accused, then, it would be easy for those who are in the radar to just escape from the clutches of law.

It was also viewed that the decision in Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 wherein it was stated that the accused would be heard, has been reviewed by a Constitution Bench of the Supreme Court in Sanjay Dutt v. State through CBI, Bombay (II), (1994) 5 SCC 410, wherein the Court has held that “the requirement of notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein and production of the accused at that time in the court informing him that the question of extension of the period for completing the investigation is being considered, is alone sufficient for the purpose, further, it was also held that the ‘indefeasible right’ of the accused to be released on bail is a right which ensures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed”. It was observed that the Special Court has substantially complied with the directions of the Supreme Court in Sanjay Dutt’s case (supra).

The Court observed that the NIA completed the investigation and filed a final report on 29.03.2022, and on the same day, the appellant filed an application seeking default bail. The present appeal challenging the order dated 03.01.2022 has been filed only on 04.04.2022. Therefore, after the filing of the final report on 29.03.2022, the indefeasible right for default bail stood extinguished.

Placing reliance on the ruling in State of Punjab v. Okara Grain Buyers Syndicate Ltd., (1964) 5 SCR 387 wherein it was held that “even if the language used in the two enactments were identical which is not even the case here the same conclusion would not necessarily follow having regard to the differing scopes of the two pieces of legislation” thus, the observations in Sanjay Kumar Kedia v. Narcotics Control Bureau, (2009) 17 SCC 631 cannot be mechanically applied to the present case. Thus, the criminal appeals were dismissed being devoid of merits.

[T. Keeniston Fernando v. State of Madras, 2022 SCC OnLine Mad 4771, decided on 28.09.2022]


Advocates who appeared in this case:

For Appellants: Advocate. Radhakrishnan

Advocate P. Pugalenthi

For Respondents: Special Public Prosecutor R. Karthikeyan

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: In application by Swami Chinmayanand Sarawati, former Union Minister for State, invoking extraordinary power of the Court under Section 482 of Code of Criminal Procedure (CrPC) assailing the legality and validity of the order passed by the Trial Court, whereby the Magistrate has declined to accord permission to the application under section 321 CrPC filed by the Public Prosecutor, Rahul Chaturvedi, J. upheld the rejection of the said application, and observed that Court must see that the application moved by the public prosecutor for withdrawal of the prosecution has been properly made in a good faith and in the interest of public tranquility and justice and not to just thwart or stifle process of law.

In this case the complainant, impressed by the spiritual and socio-political qualities of the applicant, developed affinity towards him and expressed her willingness and desire to turn as a ‘Sanyasini’, later she accused the applicant of establishing physical relationship with her by administering some intoxicants in her food and taking her obscene audio-visual videos and porn photographs. Moreover, during that time she was impregnated twice and was aborted. Thus, she accused the applicant under Sections 376 and 506 of the Penal Code.

The Court observed that the applicant by means of application under Section 482, had challenged the charge sheet as well the summoning order, and as soon as the said Section 482 application was rejected, an Under Secretary of the U.P Government wrote a letter to the District Magistrate (DM), whereby directing the Public Prosecutor to withdraw the prosecution against the applicant in the larger interest of public and the interest of justice.

The Court observed that the application given by the public prosecutor in the court of the Chief Judicial Magistrate clearly shows his non-application of mind and that he has applied an independent mind, and this is simply a farce hoax and mirage to cover up the mandatory requirement of the law, that the public prosecutor shall apply his judicial mind while filing application under section 321 CrPC. It was also viewed that this is the biggest misfortune, anomaly, ridiculousness and absurdity on the part of the public prosecutor dancing to the tune of the State Government, conveniently rushed to the court concerned within three days from receipt of the letter of the DM

The Court observed that any crime is said to be committed not against just any individual but against the entire society. Since the entire society is endangered by the offence of an accused, and the entire society cannot practically sue the accused, the State arrogates power and responsibility to initiate prosecution against the offender. Further, Section 321 CrPC enables the public prosecutor to withdraw from prosecution any person in respect of the offences for which he is tried, with the consent of the Court wherein he or she thinks that such withdrawal will lead to a larger public interest.

The Court referred to the ruling in Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288, wherein it was held “that the withdrawal should be in the interest of administration of justice, and it is the duty of the court to see that the public prosecutor applies his free mind and not just act as mere mechanical agent of the State Government”.

The Court while examining what constitutes public interest, viewed that an exhaustive definition of the public interest is difficult to prepare, however, it can be evaluated in the light of the facts and circumstances of the case. Further, if the public prosecutor concludes that the prosecution should be withdrawn, then it is incumbent upon him to apply in the court with adequate and tangible reasons spelled out in the application. Moreover, if he defers from the decision of the State Government and concludes that the case ought not to be withdrawn, then he has got two options:

(a) Either to ask the State Government to relieve him from a particular case, or least he shall have to resign.

(b) To forward the application by giving his own reasoning with the considered opinion that such application is not sustainable on the ground set out by him in the application.

The Court further observed that a public prosecutor is not supposed to dance to the tune of the State Government, nor he is supposed to act as a post office or act under the dictate and command of the State Government and he must act objectively as he is also an officer of the Court. Further, the Court is also free to assess, whether a prima facie case is made out or not and if the Court is satisfied then after assigning a reason, it can reject the same, but it cannot be said that the public prosecutor’s action will be illegal, if he receives a communication/instruction from the State Government.

The Court further took note of the rulings in Subhash Chander v. State (Chandigarh Admn.), (1980) 2 SCC 155, Abdul Karim v. State of Karnataka, (2000) 8 SCC 710, wherein it was held that “an application under section 321 CrPC could not be allowed only on the ground that the State Government has taken a decision for withdrawing the prosecution and such an order could not be passed after examining facts and circumstances of the case”, thus, observed that the Court must see as to whether the application has been made in good faith and in the interest of public policy and justice and not to thwart or stifle the process of law. Further, the Court, after considering the facts and circumstances of each case, must see whether the application suffers from improprieties or illegalities as would cause a manifest injustice, if consent was given.

The Court further cited Rajender Kumar Jain v. State, (1980) 3 SCC 435, wherein it was held that it shall be duty of the public prosecutor to inform the grounds for withdrawal to the Court, and it shall be duty of the Court to authorize a search of the reason, which prompt the public prosecutor to withdraw from the prosecution as both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of Section 321 CrPC.

The Court also observed that before instructing a public prosecutor for withdrawal from the prosecution, the State Government should also consider the matter carefully.

Thus, the Court viewed that the Under Secretary while issuing the impugned letter to the DM has not spelled out a single good reason for the alleged withdrawal of the prosecution against the applicant.

Further, placing reliance on the decision in State of Kerala v. K. Ajit [Criminal Appeal No. 698 of 2021 decided on 28th July 2021, Aishwarya Chaudhary v. State of Uttar Pradesh (Application 482 No. 44691 of 2018 decided on 15.05.2019, Abdul Kareem (supra) and Rahul Agarwal v. Rakesh Jain, (2005) 2 SCC 377, it was observed that there is no quarrel to the legal preposition that under section 321 CrPC the consent of the Court connotes a supervisory and not adjudicatory manner, and the Court must see that the application moved by the public prosecutor for withdrawal of the prosecution has been properly made in a good faith and in the interest of public tranquility and justice and not to just thwart or stifle process of law. Further, normally the courts cannot question the decision of the public prosecutor under this Section unless it concludes that the public prosecutor has not applied his mind, or his decision is biased, coloured, tainted or motivated one and not sub-serving the public policy and the court has a special duty in this regard as it is an ultimate depository of legislative confidence in granting its consent to withdraw from the prosecution.

However, the Court considered the applicant’s old age and medical problems, and on humanitarian approach viewed that, if the applicant surrenders before the Magistrate on or before 30th October 2022 and applies for bail, his bail application shall be adjudicated and decided strictly in accordance with law and till the said date from today, no coercive action shall be taken against the applicant in the case.

[Swami Chinmayanand Saraswati v. State of UP, 2022 SCC OnLine All 670, decided on 30.09.22]


Advocates who appeared in this case:

Counsel for Applicant: – Advocate Rajrshi Gupta

Advocate Dileep Kumar

Advocate Manish Singh

Advocate Raj Kumar Singh Chauhan

Counsel for Opposite Party: – Advocate Anurag Kumar Pandey

Advocate Rafat Raza Khan

Advocate Sundeep Shukla

Advocate Veerendra Kumar Shukla

Punjab and Haryana High Court
Case BriefsHigh Courts

   

Punjab and Haryana High Court: While granting bail to the accused booked under Protection of Children from Sexual Offences Act, 2012 (‘POCSO’), Rajbir Sehrawat, J., stated that the accused cannot be forced to suffer incarceration without any effective proceedings being conducted against him by the Court.

Facts:

The petitioner was booked under Sections 363, 366-A and 34 of the Penal Code, 1860 and under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’). Petitioner has been in custody for more than 4 years in this case and yet not even a single witness was examined by the Public Prosecutor since then.

Even after the order of the Court passed dated 21-07-2022, directing the State to examine the prosecutrix on the next date fixed before the Trial Court and answering as to why other prosecution witnesses were not produced in these 4 years, the prosecutrix was partly examined and no other witness were yet examined.

Observations and Analysis:

The Court said “the petitioner has already been in custody for more than four years in this case. Despite that, not even a single witness has been examined by the prosecution so far. The liberty of the petitioner cannot be jeopardized by casualness of the prosecution, particularly, when the allegations are that the prosecutrix had gone with the petitioner and remained with him for full one week; during which she visited several places and stayed in Hotels. Even if the petitioner is guilty, that has to be so held by a court of law by conducting Trial in right earnest and due promptitude. However, prosecution has abjectly failed in doing its duty of conducting prosecution proceedings appropriately. At this stage, the petitioner is not required for any investigation purpose. He cannot be forced to suffer incarceration without any effective proceedings being conducted against him by the Court.”

The Court granted bail to the petitioner without commenting on the merits of the case.

The Court said that the Public Prosecutor and the Investigating Officer of the case have not performed their duties with due promptitude, therefore, they deserve to be put under some coercive conditions so as to compel them to complete the process of the trial as soon as possible.

Therefore, the Court directed The Director (Prosecution), Punjab and the Senior Superintendent of Police to send a report qua stopping the salaries of these two officers on or before 15-10-2022.

[Bunty v. State of Punjab, 2022 SCC OnLine P&H 2357, decided on 12-09-2022]


Advocates who appeared in this case:

For the Petitioner: Mr. Gurpreet Singh, Advocate

For the Respondent: Mr. Sandeep, Additional Advocate General, Punjab

Mr. Madan Singh, ASI

Case BriefsSupreme Court

Supreme Court:  The Division Bench comprising Ajay Rastogi and Bela M. Trivedi, JJ., reversed the impugned judgment of the Madras High Court and held that when the delay in appointment is attributable to the State, it would not deprive the employees of their right to become the member of the Pension Scheme, 1978 merely on the ground that the Scheme was not applicable to their year of appointment, particularly when other candidates who participated in the common process of selection were availing the same.

The Court remarked,

“The premise on which the High Court has proceeded is not sustainable for the reason that the appellants along with other applicants had participated in the self-same selection process pursuant to advertisement dated 9th September 2001”

Background

The undisputed facts of the instant case were that 53 vacancies for Assistant   Public   Prosecutor   Grade-II were advertised by the Tamil Nadu Public Service Commission in the year 2001.   After undertaking the process for selection, 51 persons, including those who were lower in order of merit to the appellants, were appointed by the Government by order dated 24-09-2002.

Pertinently, the names of the appellants were withheld for want of further verification.   The   Commission on verification granted clearance to both the appellants and intimated the same to the State Government on 03-09-2002 (much before the appointments were made on 24-09-2002).   Despite all the formalities being completed, without any reasonable cause or justification, the State Government had withheld the appointments of the appellants, and finally, both the appellants were appointed on 23-08-2005 and 23-04-2004 respectively.

Meanwhile, vide notification dated 06-08-2003, an amendment was made under the Tamil Nadu Pension Rules, 1978. Pursuant to which the State Government introduced a new Contributory Pension Scheme applicable to the Government employees who were recruited on or after 01-04-2003.

Issue Involved

The grievance of the appellants was that their names were cleared by the Commission much earlier than the date of appointment of the other 51 candidates by the order dated 24-10-2002, but the State Government failed to include their names while appointments of other selected candidates, including those who were lower in order of merit.

Therefore, the appellants contended that their names were withheld for two-three years by the State without any reasonable cause/justification, and the delay in appointments could not be attributable to them in any manner. The appellants argued that because of their later appointments, the Government had denied them the benefits of the Scheme, 1978 which was applicable to the employees appointed on or before 01-04-2003.

Analysis and Findings

The Court observed that when those who are lower in order of merit to the appellants were appointed and no justification had been tendered by the State as to why the names of the appellants were withheld for two-three years, the delay in making appointments could not be held to be attributable to the appellants in any manner.

Hence, the Court found that in the given circumstances, when all other candidates who had participated along with the appellants were appointed on 24-09-2002 including those who were lower in the order of merit, there was no reason for withholding the names of the appellants. The Court held,

“Merely because they were appointed at a later point of time, would not deprive them of claiming to become a member of Tamil Nadu Pension Rules, 1978, which is applicable to the employees who were appointed on or before 1st April, 2003.”

In light of the above, the Court set aside the finding recorded by the High Court. The State was directed to treat the appellants to be a member of the Tamil Nadu Pension Rules, 1978 for all practical purposes and benefits as members of the Rules, 1978 to which the appellants were entitled, including retiral benefits.  [P. Ranjitharaj  v. State of Tamil Nadu,  2022 SCC OnLine SC 508, decided on 25-04-2022]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: While deciding the instant matter which revolved around the interplay and interpretation of Sections 306 and 308 of the CrPC, C. Hari Shankar, J., observed that pardoning an accomplice under Section 306 (1) CrPC, and his conversion into an approver, must mandatorily be followed by his examination as a witness under Section 306 (4) of CrPC. However, during the course of such statement, if the Public Prosecutor is able to discern that the approver is not abiding by the conditions, subject to which pardon was tendered to him, i.e. making a full and true disclosure of all facts within his knowledge; or the approver is concealing something essential; or is tendering false evidence, then the Public Prosecutor would so certify under Section 308 (1) of CrPC.

As per the facts, a case was registered against the respondent under various provisions of IPC and Prevention of Money Laundering Act, 2002. The respondent filed application under Section 306 of CrPC, for grant of pardon, which was allowed by the Special Judge, CBI. Later on the petitioner (Directorate of Enforcement) moved an application for revocation of the pardon. However, the Special Judge, in his Order dated 05-03-2020, disposed off the application moved by the petitioner on the ground that the application is premature and there is no merit in the interpretation of Sections 306 and 308 implying that pardon granted to any person can be revoked at any stage, even before the approver is examined before Session Court/Trial Court. The ED therefore challenged the impugned Order in the instant case. Appearing on behalf of the petitioners, Aman Lekhi, ASG, contended that the Special Judge has misconstrued the scheme of Sections 306 and 308 of CrPC and has erred fundamentally in holding that the statement of the approver is required to be recorded, before deciding on the issue of revocation of the pardon extended to him. R.K. Handoo on behalf of the respondent submitted that at the first instance, the application of the petitioner, before the learned Special Judge, was itself not maintainable, as the CrPC does not contemplate revocation of pardon tendered to an accused; pardon, once granted cannot be revoked, cancelled or withdrawn.

Perusing the rival contentions and referring to various Supreme Court decisions, especially State v. Jagjit Singh, 1989 Supp (2) SCC 770 and Bipin Behari Sarkar v. State of West Bengal, AIR 1959 SC 13, the Court observed that examination of the approver, as a witness under Section 306 (4) is intended, inter alia to ascertain whether the approver is abiding by the conditions of his pardon, or is an untrustworthy witness. It was further observed that a holistic and conjoint reading of Sections 306 and 308 reveals an “inexorable sequence”, in which the most mandatory step is the examination, of the approver, as a witness, under Section 306 (4).

The Court therefore observed that ex facie, the view adopted by the Special Judge in the impugned order is in sync with the law laid down in multiple Supreme Court decisions and as well as the statutory scheme of Sections 306 and 308 of the CrPC, and does not merit any interference. Thus endorsing the view expressed by the Special Judge, the Bench therefore decided to dismiss the instant petition. [Directorate of Enforcement v. Rajiv Saxena, 2020 SCC OnLine Del 719 , decided on 08-06-2020]

Patna High Court
Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Ashwini Kumar Singh, J. dismissed an application filed under Section 482 CrPC against the order of Additional Sessions Judge whereby prosecution’s application under Section 311 CrPC was dismissed.

The applicant was the informant in a case registered under Section 302 IPC. During the trial, the Public Prosecutor filed an application under Section 311 submitting that the Investigating Officer and the doctor concerned were not examined, and their non-examination would cause prejudice to the prosecution’s case. However, such application was dismissed by the trial court. The present petition was filed against the said order.

The High Court perused all the material available on record and found that the trial court kept open the prosecution case for about three years, but the said witnesses did not turn up. The prosecution was not diligent in pursuing the trial. Therefore, the order challenged in the petition did not suffer any fault. Right to speedy trial is enshrined in Article 21 of the Constitution. This apart, the Court categorically observed that the petitioner had no locus in the matter. A private person may instruct the Public Prosecutor and may submit written arguments with the permission of the court after the evidence is closed. However, a private person, even if the informant, had no locus to pursue an application under Section 311 in the court below, or to challenge the order which may have been passed on an application filed by the prosecution under Section 311 CrPC. Accordingly, the petition was dismissed. [Sriram Singh v. State of Bihar, 2018 SCC OnLine Pat 1163, dated 06-07-2018]

Case BriefsSupreme Court

Supreme Court: In the matter where apart from the constitutional validity of the law on criminal defamation under Section 500 IPC and Section 199 CrPC, but also the concept of fair criticism, discernment and dissection of activities of the State Government and disapproval of views taken in the matters of administration and policy decisions, it was vehemently argued by the petitioner that the office of the Public Prosecutor has its own independence; and the Public Prosecutor has been conferred an independent role under the provisions of the CrPC and he cannot become a post office in the hands of the authorities to file prosecutions for criminal defamation without scrutinizing whether a case is made out or not.

Mr. G.S. Mani, appearing for the petitioner, argued that the citizenry right to criticize cannot be atrophied by constant launching of criminal prosecution for defamation on each and every issue to silence the critics because when criticism in a vibrant democracy in this manner is crippled, the democracy which is best defined as the “Government of the People, by the People, for the People” would lose its cherished values.

Mr. Ranjit Kumar, Solicitor General submitted that apart from the Public Prosecutor who has a definitive role under Section 199(2) of the CrPC, the sanctioning authority also has a significant and sacred role under sub-section (4) of the said provision and, therefore, a complaint cannot be filed in a routine manner to harass a citizen.

The bench of Dipak Misra and C.Nagappan, JJ, after hearing the arguments from both sides,  issued notice to the respondents i.e. the Public prosecutor and Chief Minister of Tamil Nadu among others and listed the matter on 24.08.2016. [A. VIJAYAKANTH v. PUBLIC PROSECUTOR, DHARMAPURI DISTRICT, 2016 SCC OnLine SC 708, Order Dt. 15.07.2016]