Chapter–1

First Information Report

What is First Information Report?
Criminal law occupies a predominant place among the agencies of social control and
is regarded as a formidable weapon that society has forged to protect itself against anti-
social behavior. Criminal Procedure is an in separable part of the price and the
effectiveness of the latter depends much upon the proper implementation of the former.
The criminal law has been described as one of the most faithful mirrors of the
modern society reflecting the fundamental values on which the latter rests.
Broadly speaking, the investigation of an offence consists of—
1. Proceeding to the place of offence.
2. Ascertainment of the facts and circumstances of the case.
3. Discovery and arrest of the suspected offender.
4. Collection of evidence relating to the commission of the offence which may
consist of—
(1) Examination of various persons (including the accused) and the reducing of
their statements into writing if the Police Officer making the investigation
think fit.
(2) Search of places or seizure of things considered necessary for the
investigation or trial.
5. Formation of the opinion as to whether on the materials collected there is a case
to place the accused before a Magistrate for trial, and if so taking the necessary
steps for the same by the filing of charge sheet (challan) under section 173
Cr.P.C.; Supreme Court in H.N. Rishbud v. State of Delhi Cr.L.J. 526 AIR 1955
SC (196).
The Principal agency for carrying out investigation of offence is the Police, and the
Police can proceed to investigate—
(a) On the information received from any person as to the commission of any
cognizable offence.
(b) Even without any such information, but if they have reason to suspect the
commission of any cognizable offence.
(c) On receiving any order (to investigate) from any Judicial Magistrate empowered
to take cognizance of any offence under section 190 Cr.P.C.
F.I.R. is the abbreviated form for “First Information Report”. The word F.I.R. has not
been defined in the Cr.P.C. In fact it is the information relating to the commission of a
cognizable offence that reaches the officer-in-charge of the Police Station first in point
of time.
F.I.R. is a very valuable document. It is of utmost legal importance, both from the
point of view of the prosecution and the defence. F.I.R. constitutes the “foundation” of
the case in the first instance and whole of the case is built on it. If the foundation is
weak, then the prosecution case will tumble down. If on the other hand, if it is strong it
will endure the attacks of the accused and his counsel.
The First Information Report only sets the law in motion but does not prove the
commission of the offence. The report cannot be said to be substance evidence. Basant
Ram v. State of HP, 2013(5) RCR (Cri.).
On receipt of such information, the S.H.O. of the Police Station is legally required to
draw up a regular F.I.R. in a form prescribed by the State Government vide Section 154
Cr.P.C. When any information disclosing a cognizable offence is laid before the officer-
in-charge of Police Station, he has no option but to register the case on the basis
thereof; State of Haryana v. Ch. Bhajan Lal AIR 1992 SC 604, 1992 Cr.L.J. 527.
 The information that is usually called F.I.R. is the one which is given in writing or
which is reduced in writing under section 154 Cr.P.C, although the word ‘First
Information Report’ is not used in the Code.
First Information Report (F.I.R.) is not defined in the Code of Criminal Procedure
but these words are understood to refer to the information recorded under section
154(1) Cr.P.C. The report containing the information received first in point of time by an
officer in charge of a Police Station about the commission of cognizable offence is
usually mentioned in practice as the First Information Report or popularly called as FIR.

Section 154 Cr.P.C. reads as follows:

“Information in cognizable cases.—(1) Every information relating to the
commission of a cognizable offence, if given orally to an officer-in-charge of a police
station, shall be reduced to writing by him or under his direction and be read over to
the informant; and every such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving it, and the substance thereof
shall be entered in a book to be kept by such officer in such form as the State
Government may prescribe in this behalf:
1
[Provided that if the information is given by the woman against whom an offence
under section 326A, section 326B, section 354, section 354A, section 354B, section
354C, section 354D, section 376, 1[section 376A, section 376AB, section 376B, section
376C, section 376D, section 376DA, section 376DB], section 376E or section 509 of the
Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then
such information shall be recorded, by a woman police officer or any woman officer:
Provided further that––
(a) in the event that the person against whom an offence under section 354,
section 354A, section 354B, section 354C, section 354D, section 376, 1[section
376A, section 376AB, section 376B, section 376C, section 376D, section 376DA,
section 376DB], section 376E or section 509 of the Indian Penal Code (45 of
1860) is alleged to have been committed or attempted, is temporarily or
permanently mentally or physically disabled, then such information shall be
recorded by a police officer, at the residence of the person seeking to report
such offence or at a convenient place of such person’s choice, in the presence
of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c) the police officer shall get the statement of the person recorded by a Judicial
Magistrate under clause (a) of sub-section (5A) of section 164 as soon as
possible.]
(2) A copy of the information as recorded under sub-section (1) shall be given
forthwith to the informant.
(3) Any person aggrieved by a refusal on the part of an officer-in-charge of a police
station to record the information referred to in sub-section (1) may send the susbstance
of such information, in writing, and by post to the Superintendent of Police concerned
who, if satisfied that such information discloses the commission of a cognizable offence,
shall either investigate the case himself or direct an investigation to be made by any
police officer subordinate to him in the manner provided by this Code, and such officer
shall have all the powers of an officer
in-charge of the police station in relation to that offence.”
F.I.R. is thus always based upon the earliest version of a cognizable case. In the
words of their Lordships of Privy Council in Emp. v. Kh. Nazir Ahmed 1945 PC 18, the
object of F.I.R. “is to obtain early information of alleged criminal activity to record the
circumstances before there is time for them to be forgotten and embellished”.

In nutshell F.I.R. is:

1. First in point of time.
2. Disclosing a cognizable offence, in the nature of a complaint or accusation or at
least a crime for moving the police into matter and starting of investigation
under section 156 Cr.P.C. under Chapter XII of the Cr.P.C.
 3. It must relate to cognizable case on the face of it and not merely in the light of
subsequent events, 1956 Cr.L.J. 1099.
A cognizable offence is one in which a police officer may in accordance with the
First Schedule of Cr.P.C. or under any other law arrest without a warrant, vide section
2(c) Cr.P.C. The offences as cognizable or non-cognizable are specified in Column 4 of
First Schedule of Cr.P.C. for offences under the Indian Penal Code and Column 2 of 1 st
Schedule II Part Classification for offences against other laws.

Who can Lodge F.I.R.

(1) Any person who is aware of the facts and circumstances of the offence can set
the Law in motion. He need not necessarily be the victim or the injured or an eye
witness.
(2) The person in possession of the hearsay evidence is required to subscribe his
signature to it and mention the source of his information so that it does not amount to
irresponsible rumour. The rule of law is, if general law is broken, any person has a right
to complain whether he has suffered an injury or not.
Sometimes it so happens that accused after commission of crime goes to Police
Station and lodges an F.I.R. The procedural legal provision as well as the provision of
the Indian Evidence Act are mentioned as under—
 Section 162 Cr.P.C. does not hit such F.I.R.
 Section 25 of the Indian Evidence Act “No confession made to a Police Officer
shall be proved as against a person accused of any offence may it be before or
after investigation”.
 If the information is non-confessional, it is admissible against the accused as an
admission under section 18/21 of the Indian Evidence Act and is relevant.
 For corroborating the statement of the maker under section 157 of the Indian
Evidence Act.
 For contradiction of the evidence of person giving the information under section
145 of the Indian Evidence Act.
 For refreshing informer.s memory under section 159 of the Indian Evidence Act.
 For impeaching the credit of an informer under section 155 of the Indian
Evidence Act.
 For providing the informer.s conduct under section 8 of the Indian Evidence Act.
 Under section 32(1) of Indian Evidence Act (Dying Declaration).
 Under section 6 Evidence Act when the injuries are being caused in the presence
of S.H.O. in a Police Station.
 Under section 160 Evidence Act when the informer fails to recall his memory the
facts, but he is sure the facts were correctly reported in the F.I.R. at the time he
wrote it and read it.
 F.I.R. is a public document prepared under section 154 Cr.P.C. and a certified
copy of it can be given in evidence under section 77 of Indian Evidence Act.
 The F.I.R. by an accused person cannot be treated as evidence against any co-
accused, as it was lodged by the accused and not by a witness.
But if information is received that injured had been shot and had been removed to
Hospital, it is sufficient for registration of case, as held, so in 52 Cr.L.J. 857 (1951) Mad.
It was held further that the fact that information was meager and failed to indicate
whether injured had been shot as a result of accident or the voluntary or wrongful act of
some one else could not affect its character as F.I.R. This view also finds corroboration
from 1922 Pat. 535. In this case a person had reported at P.S. that he had seen a
woman with her head cut. The officer did not make a record of the fact but subsequently
treated the information lodged by the father of the woman as F.I.R. It was held that
unrecorded information was in fact an F.I.R. and that information given by father, not
being F.I.R. could not be taken into consideration as it would be a statement during the
investigation of case and as such inadmissible in evidence.
In State of Assam v. U.N. Raj Khowa 1975 Cr. L.J. 354, relating to murder of his wife
and daughters, the Session Judge, in his D.O. Letter saying that enquiries be made
regarding the death/disappearance of these women was held to be vague and not
treated as F.I.R. as it is hit by S. 162 Cr.P.C. In case of Dulal Chandra Ghosh 1988
Cr.L.J. 1835, Police was informed that deceased had been murdered and it was
apprehended that there may be an attack as a reprisal. On this information the Sub-
Inspector went to spot and started investigation. He recorded statement of complainant,
held inquest and got the case registered on it. Held that it could not be F.I.R. and was
hit by S.162 Cr.P.C. as statement recorded during investigation.
The investigating officer had gone to the village of occurrence, where there was no
electricity in the night, on the basis of some vague information of violence having
broken out. There, he has categorically denied having questioned the witnesses or
recorded their statements. The F.I.R. recorded in Police Station after reaching there is
not hit by S. 162 Cr.P.C.; Pattad Amarappa 1989 SC 2004.
Where messages are transmitted between Police Officers inter se; it can be treated
as F.I.R. if the object is to narrate the circumstance of the crime with a view to initiate
investigation; Jagdish 1992 Cr.L.J. 991 (MP).
As such every case depends upon it own circumstances and the Police Officer should
exercise his own judgment and diligence to test the information whether it is clear,
definite and based upon tangible facts to disclose commission of cognizable or suspicion
of commission of a cognizable offence—
 By S.H.O. on his own knowledge or information when a cognizable offence is
committed. As on officer-in-charge he can register a case himself and is not
bound to take down in writing any information.
 Under the order of Magistrate under section 156(3) Cr.P.C. when a complaint is
forwarded to officer-incharge without taking cognizance; Kanak Singh v.
Balabhadra Singh, 1988 Cr. L.J. 579 (Gujarat). If information is only hearsay,
then S.H.O. should register case only if person in possession of hearsay
subscribes his signature to it and mentions the source of his information so that
it does not amount to irresponsible rumor. The information must be definite, not
vague, authentic, not baseless, gossip or rumor, clearly making out a cognizable
case.
(3) The information is only by a Medical Certificate or Doctor’s Memo about the
arrival of injured, then he (S.H.O.) should enter it in daily diary and go to hospital for
recording the detailed statement of injured.
An information of this nature is usually given:—
1. By the complainant who is an aggrieved person or somebody on his behalf.
2. By any person who is aware of the offence, not necessarily that he must be
having a personal knowledge, 1974 S.C. 1936 Hallu.
(a) as an eyewitness account.
(b) as an hearsay account. Held in 1977 Cr. L. J. (N.O.C.) 244 Mafizudding
Sheikh F.I.R. is admissible no matter whether it is hearsay or otherwise. The
normal rule contained in sec. 60 Evidence Act is that hearsay
evidence is inadmissible but an information lodged under section 154 Cr.P.C.
is not evidence. It is only for the purpose of corroborating or contradicting
the informant.
Provided the person in possession of the hearsay is required to subscribe his
signature to it and mention the source of his information so that it does not
amount to irresponsible rumour (In re Krishna, 11 Cr.L.J. 286, 32 Mad. 258).
The rule of law is, if General Law is broken, any person has a right to
complain whether he has suffered an injury or not.
3. By the accused himself.
4. By officer-in-charge of police station on his own knowledge or information. See
observations of their Lordships in State of W. B. v. S.N. Basik, 1963 S.C. 147,
that there was no reason why the police, if in possession through their own
knowledge, or by means of credible though informal intelligence which genuinely
leads them to belief that a cognizable offence has been committed should not of
their own motion undertake an investigation into the truth of the matters
alleged.
 The Officer-in-charge can register F.I.R. of his own motion, in his name as informant,
was recognized in Kh. Nazir Ahmed’s Case Supra. Even when a cognizable offence is
committed in view of officer-in-charge, he can register case himself and is not bound to
take down in writing any information. See Jayantila 45 Cr. L.J. 691 (Bom.).
F.I.R.–Lodging of–Categorical Statement by informant, a prosecution witness that he
had given report to police on 1st of October–Explanation by Investigation Officer that
2nd of October being public holiday he has sent documents on 3rd October–Found to be
acceptable–Further letter written by informant to Superintendent of Police on 3rd
October indicating that several persons had already been arrested–Thus F.I.R. lodged
on 1st October cannot be said to be fabricated. Ramesh Laxman Gavli v. State of M.P.,
1999 Cr.L.J. 4603.
F.I.R.–Based on dying declaration–In said dying declaration deceased had not only
mentioned limited number of persons who had attacked him but had also clearly
involved other persons who were accomplices of named accused, who all came in a
group and mounted assault on him–Thus Non-Mentioning of names of remaining
accused by deceased in his dying declaration pales into insignificance. Ramanbhai
Naranbhai Patel & Others v. State of Gujarat, 1999 Cr.L.J. 5013.
F.I.R.–Incident of burning of shed in front of house–Mere information to police about
said incident without disclosing how shed had caught fire and who had set it fire–does
not constitute a First Information Report–Report should contain Information relating to
commission of cognizable offence. Shri Cruz Pedro Pacheco v. State, 1999 Cr.L.J. 4628
(Bom).
A First Information Report is not meant to be encyclopedic. While considering the
effect of some ommissions in the F.I.R on the part of the informant a court must take
into consideration the probable physical and mental condition of the imformant. The
court must weigh with the court is as to whether there was a possibility of false
implication of the accused. To test the veracity of the correctness of the contents of the
report, the court applies certain well-known principles of caution. Animireddy V.
Ramana v. Public Prosecutor, HC of AP, 2008(2) Crimes 63 (SC).

Who is to Write F.I.R.

An F.I.R. is always to be written by an Officer-in-charge of a police station.
According to section 2(o) of Cr.P.C. “Officer-in-charge”of a police station includes
“when an officer-in-charge of police station is absent from the Station House or unable
from illness or other cause to perform his duties, the police officer present at the
Station House who is next in rank to such officer and is above the rank of constable or
when the Govt. so directs, any other police officer present.”
According to section 36 Cr.P.C. “Police officer superior in rank to officer-in-charge of
a police station may exercise the same powers through the local area to which they are
appointed, as may be exercised by such officer within the limits of his police station.
So all Dy S.P.’s, Inspectors and other Officers superior in rank to officer-in-charge
can register F.I.R’s at a police station.
The question, however, arises if the word ‘may’ in section 36 Cr.P.C. means ‘must’
and thereby suggest that the recording of the information as contemplated under
section 154 Cr.P.C. is not purely discretionary with the officers superior in rank to an
officer-in-charge of a police station. This point was discussed in 1956
Cr. L.J. 904 Devaiya v. State of Coorg. It was held, “In my opinion it is correct to say
that police officers superior in rank to an officer-in-charge of a police station may or
may not record information which is given to them regarding the commission of
cognizable offence because to accept such a proposition may lead to absurdities and
ultimately to failure of justice.” It has been further held that in such cases officer should
adopt the following course:—
1. He should record the information himself in cases where he intends to take
action on the F.I.R.
2. If he does not intend to take action, and as such is not inclined to record the
information, he should make arrangements to cause the production of the
informant before the officer-in-charge of police station, so that he may record
 F.I.R. as required under section 154 Cr.P.C. Also see 1932 Cal 851 (“may
exercise”, does not mean must exercise).
In case State v. Ram Singh, 1973 Cr.L.J. 150, a Head Constable was murdered in
police station by a Constable. There was no officer above the rank of a constable
present in the Thana. A report made in Daily Diary by one of the constables present was
not treated as F.I.R., being not made to officer-in-charge. In Hussain Khan, 1976 Cr.L.J.
821 incident First informed to Border Security Force police was not treated as F.I.R. as
they had no power to investigate.
Sometimes it so happens that information is given by the informant to police officer
who is out in the Illaqa or to an incharge of a police post. Strictly speaking these officers
are not officers incharge of a police station and such informations lodged with them are
not reports under section 154 Cr.P.C. These officers record the statements of the
informants and send these on to officer-in-charge of a police station for recording
F.I.R.‘s. These statements are, however, admissible in evidence under section 157 of the
Evidence Act. The High Courts have emphasized the need of production of such written
reports in evidence as being a ‘First Information Report’ given to a police officer. See
Ranjit Jhena v. State, 1950 Sau 11, and 1944 Sind 33.
Thus report given to another person than the officer-in-charge of a police station, if
he is not a police officer as discussed above will not be considered as an F.I.R. In 1953
Cr.L.J. 1667 (All) Nardeo Singh v. State, “A verbal report made to Tehsildar who
casually happened to be in the village was not held to be F.I.R.
under section 154 Cr.P.C. a First Information Report is a report which is made to an
officer-in-charge of a police station”.
Inspector General Vigilance exercises powers in the whole of the State to which he
is appointed. He exercises the powers of officer-in-charge of police station in terms of
sec. 36 Cr.P.C. and can investigate or further investigate under section 173 (8) Cr.P.C.
cases on direction by the State Govt. There is no conflict of section 3 of the police Act
and section 173(8) Cr.P.C. State Government is competent to depute any officer higher
in rank to officer-in-charge of police station, if he has jurisdiction over the area of police
station. Supreme Court in 1980 Cr. L.J. 98, State of Bihar v. J.A.C. Saldana.
An information to Police Post at Nimaz was not given, where occurrence took place
but was given to officer-in-charge of police station Jetaran, Held by Rajasthan High
Court in Mangal Singh, 1985 Cr. L.J. 602 that F.I.R., is only that which is given to
officer-in-charge of police station.
F.I.R.–What is–Alleged murder of deceased due to multiple injuries taking place
during afternoon time–No intimation to police ‘however’ given about commission of
cognizable offence till police arrived in occurrence village and conducted enquiry–
Written report given by mother of deceased on third day of incident relating to murder
of her daughter–No other information received by police–Said written report has to be
treated as F.I.R. Sukanta Behera v. State of Orissa, 1998 Cr.L.J. 1941.
F.I.R.–Petition by wife seeking directions to police officers to register criminal case
against her husband–Allegations of demand of dowry and commission of offences under
section 406, 498A of the Penal Code against husband and his family members–Police
officers already making investigations on complaint alleging same offences of wife–
Report of police officers showing that dispute was of civil nature and no action at level
of police necessary-Facts showing that prima facie there was difference of mind
between husband and wife-alleged demand of dowry appearing to be after thought–
Directions to police for registration of criminal case against husband and his family
members-Cannot be given. Mrs. Ritu Sareen v. State of Punjab & Other, 1998 Cr.L.J.
1305 (P&H).
F.I.R.–Evidence of witness lodging incident and she herself went to the police station
in Metador alongwith dead body of victim and lodged F.I.R on same day–Mere fact that
copy of F.I.R was received by concerned Magistrate three days after incident–No
conclusion can be drawn on such ground that F.I.R was not lodged on same day after
incident or that it was antedated. Madru Singh v. State of MP, 1997 Cr.L.J. 4389 (SC).
F.I.R.–Death of person lodging F.I.R–Contents of F.I.R–Could be used for purpose of
corroborating or contradicting person lodging F.I.R if he had been examined but not as
substantive piece of evidence. Harkirait Singh v. State of Punjab, 1997 Cr.L.J. 3954
(SC).
Ante timed F.I.R–No material showing as to when and by whom time was written in
F.I.R–F.I.R cannot be said to be post investigation document. Lakhu Singh v. State of
Rajasthan, 1997 Cr.L.J. 3638 (Raj.).
Section 154–First Information Report is a report giving information of the
commission of a cognizable crime which may be made by the complainant or by any
other person knowing about the commission of such an offence–It is intended is set the
criminal law in motion–F.I.R is not a substantive piece of evidence and can only be used
to corroborate the statement of maker under section 161 of Evidence Act or to
contradict him under section 145 of Evidence Act–It can neither be used as evidence
against the maker at the trial if he himself becomes an accused nor to corroborate or
contradict other witnesses. Ravi Kumar v. State of Punjab, AIR 2005 SC 1999.
Section 154–F.I.R–Complaint lodged with police–Police whether can make an
enquiry before registering the case–Where the information recorded in the complaint is
uncertain, indistinct and not clearly expressed which creates a doubt as to whether the
information laid before the officer-in-charge of the police station discloses commission
of a cognizable offence therefrom, some enquiry should proceed before the registration
of an F.I.R. Satish Kr. Goel v. State, 2000 Cr. L.J. 2176 (Delhi).
Complainant being a lady and nobody ready to accompany her to police in the dark
night. Therefore, she had to wait till the morning to come to police station. F.I.R was
lodged in the morning. It has been held that there were no delay in lodging the F.I.R.
State of Punjab v. Mohinder Singh & Others, 2007(4) Crimes 91 (SC).
Section 154 (3)–F.I.R.–Information which disclosed cognizable offence given to
police refused to take notice of the same:–
(i) Aggrieved person may send the information in writing to S.P. who if satisfied
that such information discloses the commission of offence, shall either
investigate the case himself or direct an investigation to be made by any police
official subordinate to him.
(ii) Complainant is also given right under section 190 read with section 200 Cr.P.C
to lay complaint with Magistrate. Magistrate has discretion to inquire into
complainant or to direct the police to investigate into the offence and to submit
a report.
(iii) If Magistrate that complainant does not disclose any offence to take further
action, he is empowered to dismiss the complaint. In case he finds that
complaint/evidence recorded prima facie discloses offence, he is empowered to
take cognizable of the offence and may issue process to the accused.
(iv) High Court has also power under section 482 Cr.P.C for issuing appropriate
direction in case of any in action on the part of the police authorities. However,
this power has to be used sparingly and in exceptional cases. Sigma Interactive
India Pvt. Ltd. v. State of Punjab, 2006 (2) RCR (Cri) 874.
Sections 154 and 482–Report regarding commission of cognizable offence lodged
with police–Police making preliminary enquiry and found little substance in the
complaint–Not a fit case to direct the police to register F.I.R. because no useful purpose
would be served in facts of the case. Sanjeev Kumar v. Commissioner of Police, 2002 Cr.
L.J. 2178.
Sections 154, 482.–F.I.R.–Lodged regarding commission of offence–F.I.R can not be
quashed on the ground that information did not disclose all ingredients of offence–
Informant is not obliged to reproduce ingredients of the Section–It is only after a
complete investigation that it may be possible to say whether any offence is made out on
the basis of evidence collected by the investigation agency. S.P. CBI v. Tapan Kr. Singh,
AIR 2003 SC 4140.
Sections 154, 156, 173–Criminal offence–Investigating agency is the master of the
investigation – It is the statutory right of the investigating agency to investigate the
circumstances of an alleged cognizable offence without requiring any authority from the
judicial authorities or the court – It is the authority of the investigating agency to form
an opinion whether on the material collected by it during the investigation warrants it
to place the accused before the Magistrate for trial–The submission of either a charge-
sheet, or a final report is dependent on the nature of the opinion, so formed by the
investigating agency. Sarwan Singh v. State of Punjab, 2004 Cr. L.J. 4038.
Sections 154 & 156–Cognizable offence–Report made to police–It is obligatory upon
the police to investigate cognizable offence and took the offender–Whether the police
fails in its duty to register and investigate a cognizable offence, the aggrieved person
may complaint to the concerned Magistrate–Magistrate is not always bound to take
cognizance–He may either take cognizance under section 190 or may forward the
complaint to the police under section 156(3) Cr.P.C for investigation–Once he takes
cognizance he is required to embark upon the procedure embodied in Chapter XV–On
the other hand, if on a reading of complaint he finds that the allegations therein clearly
disclose commission of a cognizable offence and forwarding of complaint under section
156(3) Cr. P.C. to the police for investigation will be conducive to do justice and
valuable time of Magistrate will be saved in inquiring into the matter which was the
primary duty of police to investigate. Ram Babu Gupta v. State of U.P. & Others, 2001
Cr. L.J. 3363 All. (FB).
Section 154–F.I.R–Law has not fixed any time for lodging the F.I.R–Purpose of
immediate lodging is two folds—
(i) It affords commencement of the investigation without any time lapse.
(ii) It expels the opportunity for any possible concoction of a false version– Delayed
F.I.R is itself not fatal–Even a promptly lodged F.I.R is not an unreserved
guarantee for the genuineness of the version incorporated therein. Ravinder
Kumar v. State of Punjab, AIR 2001 SC 3570.
Section 154–Conduct of Investigating agencies–Sting operations conducted by the
law enforcement agencies themselves have not been recognised as absolute principles
of crime detection and proof of criminal acts. Such operations enforcement agencies are
yet to be experimented and tested in India and legal acceptance thereof by Indian legal
system is yet to be answered. Rajat Prasad v. CBI, 2014 Cr.L.J. 2941.
Section 154–Confirmation of–It is true that in the present case, there is no direct
evidence which prove that the rape and murder of the deceased child was committed by
the appellant. There are no witnesses available or record who have testified having
witnesses the appellant committing the crime. However, all the circumstances point
towards the appellant as being the author of the crime in the present case. The unusual
behaviour of the accused in taking the deceased child to the backyard of the mill,
sending of his employee for lunch at the same time and also the opening the mill in the
odd hours of the night the very same evening points towards the guilt of the accused.
Held, charged under section 376/302/201 IPC proved. Ramesh v. State, AIR 2014 SC
2852.
Section 154–Power of Trial Court–It is well accepted in criminal jurisprudence that
F.I.R. may not contain all the details of the occurrence or even the names of all the
accused. It is not expected to be an encyclopedia even of facts already known. There are
varities of crimes and by their very nature, details of some crime can be unfolded only
by a detailed and expert investigation. This is more true in crimes involving conspiracy,
economic offences or cases not founded on eye-witness accounts. The fact that police
chose not to send up a suspect to face trial does not affect power of the trial court under
section 319 of the Cr.P.C. to summon such a person on account of evidence recorded
during trial. Hardei v. State of U.P., 2016 Cr. L.J. 2255.
Section 154–Requirement–There is no requirement that the F.I.R. must be in the
handwriting of the informant. In the instant case, the F.I.R. had been proved in the
evidence of the police officer who stated that the informant came with a written report
and he wrote the chik recorded as GD on the F.I.R. There is no circumstances which
suggest that F.I.R. was Ante timed. It is also proved that police constable went to the
scene of crime and seized the articles before the registration of the F.I.R. Himanshu
Mohan Rai v. State of U.P., 2017 Cr. L.J. 2250 SC.

Jurisdiction Essential
1. The Officer-in-charge of police station who is to register the case should have
territorial jurisdiction in that area in which occurrence takes place. If he has
 not, then on receipt of information he should not register the F.I.R. but should
write in the Daily Diary Register, or on a separate sheet and forward it to the
S.H.O of the police station in whose jurisdiction the occurrence had taken place
for starting investigation under section 156 Cr. P.C., but in the meanwhile as
required by Punjab Police Rules 25.3 “take all possible lawful measures to
secure the arrest of the offender and the detection of the offence”. The sending
of report or statement recorded by an officer of another Thana to the police
station having jurisdiction was recognized in Vijai Bahadur 1974 S.C.1900.
2. If after registration of case by officer-in-charge and commencement of
investigation, it is found that offence had taken place in the jurisdiction of
another police station, an information shall be at once sent to the officer-in-
charge of that police station and he shall under take investigation by
proceeding to the spot without delay. If he does not dispute his jurisdiction then
the previous Investigating Officer shall be relieved of the investigation and the
case will be transferred to other police station and an F.I.R. will be registered
there. The offence registered in the original police station will be cancelled by
the Superintendent of Police. The relieved officer will record in the case diary
as to what he had done and sign it giving the date and hour of his relief. The
relieving officer shall receive the Case Diary and certify thereon that he
acknowledges the case to have occurred within his station limits, (Ref. Punjab
Police Rules 25.4, 25.7).
 3. If the Jurisdiction is disputed by the police officer, thus summoned, then both
officers shall jointly carry on the investigation under the orders of senior
officers and neither shall leave until the question of jurisdiction has been
settled and acknowledged. The case record shall however, be kept at police
station where originally case was registered till the decision of question of
jurisdiction. (Ref. Punjab Police Rules 25.5).
4. If the case can be lawfully investigated in two thanas having jurisdiction, the
investigation can be transferred from one thana to another by order of
Suprintendent of Police within district and through District Magistrate to
another district provided it is found that case can be more successfully
investigated there. (Ref. Punjab Police Rules 25.8).
According to Madhya Pradesh Police Regulation the procedure prescribed is in
Rules 715 to 726. If the officer-in-charge finds the offence to have occurred in another
police station, he will inform the officer-in-charge of that thana but will continue
investigation till Territorial Jurisdiction is decided. If the other SHO who proceeds to
the spot admits jurisdiction, then he will take over. In case of disputed jurisdiction, both
officers will investigate till matter is decided by the Suprintendent of Police. In case
jurisdiction is of another District, the matter will be decided by the S.P’s concerned or
D.M. of the District.
The provisions regarding jurisdiction contained in sections 177, 178 to 184 Cr.P.C.
and 462 Cr. P.C. are guiding factors (See Chapter XIII).
Section 154–Territorial jurisdiction–Cruelty to wife – Offence partly committed at
Ghaziabad and partly at Delhi – F.I.R lodged by wife at Ghaziabad – Wife resided at
Delhi and apprehended danger while going to Ghaziabad – On request of wife,
Ghaziabad police transferring F.I.R to Delhi – No illegality – Part of cause of action
arose within jurisdiction of Delhi courts also. Mahindra Kr. Narendra v. State, 2005 (1)
Crimes 1 (Delhi).
Section 154–Police registering F.I.R on telephone message–Not illegal even if
sufficient details were not converged–F.I.R is not an encyclopedia which must disclose
all facts and details. S.P. CBI v. Tapan Kr. Singh, AIR 2003 SC 4140.
Sections 154 and 162–F.I.R–Information conveyed to police on telephone and DD
entry made–It cannot be treated as F.I.R even if the information disclosed commission
of cognizable offence. Damodar v. State of Rajasthan, AIR 2003 SC 4414.
Section 154 Cr.P.C.–Territorial jurisdiction–F.I.R registered at police station where
offence was not committed–Registration cannot be sustained–However, competent
police officer and relevant police station at liberty to investigate further if steps taken
by the concerned in this regard. T. Shyam Sunder v. Dr. N. Jayanth Kumar, 2006(2) RCR
(Cri.) 929.
No delay in lodging the F.I.R. was treated if there was some delay and the same was
satisfactorily explained. State of Punjab v. Atma Singh & Others, 2009 (2) Crimes 441
(SC).
Section 154–It is the duty of a Judge to sustain the judicial balance and not to think
of an order which can cause trauma to the process of adjudication. It should be borne in
mind that the culture of adjudication is stabilized when intellectual discipline in
maintained and further when such discipline constantly keeps guard on the mind. Held
Appeal set aside and investigation further be proceed in accordance with law. The State
of Telangana v. Habib Abdullah Jeelani, AIR 2017 SC 373.
Section 154–Evidentiary value–When the name of the accused person does not figure
in the F.I.R. despite the witnesses knowing the accused persons, it casts a serious doubt
in the case of the prosecution. Krishnagowda v. State of Karnataka, AIR 2017 SC 1647.

Suo-Motto Registration of F.I.R. under section 154 Cr.P.C.

Following are some of the instances in which Police Officers have to prepare F.I.R.s
on their own initiative and have to play the part of the complainant—
(1) When they receive secret, anonymous, telegraphic and telephonic information
about the commission of a cognizable offence.
 (2) When they get some direct knowledge about the commission of a cognizable
offence.
(3) When an occurrence of cognizable offence is exclusively detected by them.
(4) When a cognizable offence is committed in their very presence.

Report to be given to an Officer-in-charge of Police Station

First Information Report is the report given to an officer-incharge of a Police Station
and is duty to reduced it, if it is an oral report, to writing or to get it reduce to writing
under his direction. Section 2(O) of the Code of Criminal Procedure says that the term
Officer-in-charge of a Police Station include when such officer is absent from the Station
House or is unable to perform his duties, the officer next in rank to him above the rank
of a constable or the constable, if the State Government so directs, present in the Police
Station.
Officers posted in Out posts are not officers-in-charge of Police Station within the
meaning of Section 154 Cr.P.C.; Mangal Singh v. State of Rajashthan 1985 Cr.L.J. 602
(RAJ-DB).

How to Record F.I.R.?

If the information is given orally, it should be recorded in plain and simple language
as nearly as possible in the informant.s own words. Technical or legal expressions, high-
flown language or lengthy sentences should not be used. No oath should be
administered to the informant but the statement should be read over to him and he
should sign it or affix his thumb-impression to it. The report should show that this has
been done.
 If it is received in writing, it need only be attached to that copy of the F.I.R. form
which is to be sent to the court.
 The practice of sending away a complainant who wishes to make an oral report,
to go and bring a written one should be strongly discouraged. The officer-in-
charge must be made to fulfill his responsibility in this regard. Another common
practice of HCs or ASIs temporally in-charge, deferring the registration of the
case also be watched and discouraged.
 Various columns of the F.I.R. form should be filled-in and signed by the officer-in-
charge. The narrative statement should be signed by the informant first and then
by the officer recording it.
 Each report should bear a consecutive number in the order of its arrival at the
Police Station. The report first received at the Police Station no matter when the
crime occurred, after midnight on the morning of the first day of the year.
 Shall be numbered I. A reference to such a report should always be made in the
station G.D.
 F.I.R. should be promptly recorded as any delay leads to suspicion and vitiates
the F.I.R. Note the time at which recording of F.I.R. is done. If there is any delay
in recording F.I.R. it should be explained.
 The promptness with which the F.I.R. is lodged justifies the inference that the
report is not a concocted story (1946 Cr.L.J. 526). Delay is viewed with suspicion
unless the explanation is plausible. The following are the usual reasons for
delayed information.
(a) Physical : The informed may be sick or old or crippled or might be
suffering from defective eyesight.
(b) Geographical : The distance might be long, the roads may be bad and rocky
through forests, unavoidable rivers etc.
(c) Seasonal : There might be heavy rains or storm etc.
(d) Psychological : People may be ignorant about the need to report the matter
to the Police.
(e) Circumstantial : Sometimes the offence might not have been noticed for
several days and even if noticed people might not show any
interest in the offence.
  Accuracy is the watchword. F.I.R. is not an encyclopedia and hence it need not
be detailed; but necessary particulars shall not be omitted.
 Time of occurrence should be noted. If the villagers do not have clocks or
watches, by tactful questioning the actual time may be arrived at. For example,
the cock-crow hour, train passed that way etc.
 Modus operandi should be elicited and mentioned in the F.I.R.
 Neither minimize nor exaggerate the facts of the occurrence. Be faithful and
truthful in recording them. Preparation of incorrect record is punishable under
section 218 I.P.C.
 Do not interpolate or insert anything such as time, date etc. after the F.I.R. has
been written. A First Information Report is a most important document and often
forms the basis of the case for the prosecution. Care should, therefore be taken
to avoid all additions, alterations etc. If unavoidable, they must always be
initialed and dated. Such corrections, if any, must be made before the F.I.R. has
been signed by the informant.
 Avoid scoring out what has been written in the F.I.R. In unavoidable
circumstances a line should be drawn across the words to be scored out still
keeping it legible and the officer recording the F.I.R. should initial it there.
 The writing size of letters, paragraphing etc., should be uniform throughout.
 Note the injuries found on the person of informant or witnesses and mention the
same in F.I.R.
 Value of property should be mentioned correctly as per claim of the informant as
stolen or destroyed. Do not lessen the value. The special identifying marks, if
any, on any item or items of stolen property, together with their detailed
description, value, etc. should be clearly noted. The complainant should be asked
to furnish a full list of the stolen property. If he is unable to do so, the reason
should be recorded.
 By tactful questioning, the identity of the accused, the type of weapon used, if
any, language spoken etc. should be elicited and mentioned in the F.I.R. The
circumstances of identification must be clearly brought out. The condition of the
light, the line of visibility and the distance from which identification was made.
The names of the suspects, if any or any accused recognized during the
occurrence should be specified. If a particular person be suspected, the facts on
which the suspicion is based should be clearly set down. The informant should be
required to distinguish between what he professes to know personally and what
he heard.
 The names of the eye witnesses and those to whom the complainant or informant
reported the names of the accused immediately after the occurrence should be
obtained and recorded for purposes of corroboration. If no information is
available in the F.I.R. on those points, the defence may characterize any
subsequent information on the point as fabrication or afterthought.
 The informant need not have direct personal knowledge of the incident reported
by him. When hearsay information definitely reveals the commission of a
cognizable offence, the officer-in-charge should record it at once and not wait for
the statement of the aggrieved person or any eye witness. Whether the informant
has personal knowledge of the occurrence or only hearsay information about it
should be clearly indicated while recording the report.

Omission of the Names of Accused in F.I.R.

(1) If name of an accused is not mentioned in F.I.R. although known to the maker,
case against him is doubtful.
(2) Action can be taken against persons not named in F.I.R.
(3) Absence of name of accused in F.I.R. goes strongly in favour of accused and can
be taken into consideration while determining probabilities of the case.
(4) Where the complaint or any other eye witness having had opportunities to see
the offenders who are known to the complainant or witness, gives the first information
and in doing so omits the names of certain persons who are taken or placed on trial by
the Police before the court such omission will be a circumstance in favour of accused.
The inference arising from the fact that the names of the accused are not mentioned
in the First Information Report must vary from case to case.

Statutory Duty to Register the F.I.R.

Whenever a citizen comes to the Police Station with the complaint, it is incumbent
on the Police Officer concerned to receive and register the same and proceed further in
accordance with the provisions of the Cr.P.C. Refusal to record the complaint at the
Police Station that it has no territorial jurisdiction over the place of the crime is
certainly a dereliction of duty on the part of the Police Official concerned because any
lack of territorial jurisdiction could not have prevented from recording the information
and forwarding the same to the Police Station having jurisdiction over the area in which
the crime was said to have been committed.
In case of complaints lodged against public servants regarding accumulation of
disproportionate assets beyond the known sources of income, falsification of account,
misappropriation of Government money, misuse or abuse of public money, preliminary
enquiry may be conducted to find out the truth of the allegations before the registration
of an F.I.R.

Do’s and Don’ts in Registering F.I.R.

DO’s
(1) F.I.R. should be lodged immediately.
(2) It should be recorded in first person.
(3) Attitude/Behavior towards the victim should be sympathetic.
(4) Technical words should be avoided and as far as possible, the language of the
informer/complainant should be used.
(5) Written complaint should be taken.
(6) Written statement should be duly signed or thumb impressed.
(7) Only a report of cognizable offence should be lodged as F.I.R.
(8) Authentic information should be mentioned in F.I.R.
(9) Place, Date and Time of occurrence should be mentioned in the F.I.R.
(10) Arrival and Departure of the informer should be mentioned in the F.I.R. as well
as Daily Diary Register.
(11) Delay, if any, in registering the case should be covered in F.I.R.
(12) 11 “Ws” should be strictly followed.
(13) Description and Role of every accused involved in the Commission of offence
should be covered in F.I.R.
(14) Kind of physical damage and property destroyed should be mentioned in the
F.I.R.
(15) Weapon of offence used and observation of Scene of crime should be mentioned
in the F.I.R.
(16) Telephone number, if any, of the complainant should also be mentioned.
(17) Four copies of F.I.R. should be prepared simultaneously by carbon paper
process.
(18) F.I.R. should be lodged in neat and clean handwriting and be kept in safe
custody being a permanent record.
(19) A copy of F.I.R. should be sent to Ilakka Magistrate concerned immediately.
(20) A copy of F.I.R. should be provided to the complainant free of cost.
DON’Ts
(1) Complainant should not be puzzled.
(2) Harsh language should not be used.
(3) Aggression should be avoided.
(4) Unnecessary details should be avoided.
(5) Over-writing/scoring should be avoided.
 (6) Offence should not be minimized.
(7) Do not forget to take thumb-impression or signature of the informer.
(8) F.I.R. should not be lodged on the basis of telephone telegram or hearsay rumor
without verifying the facts and getting the signature of the
informer/complainant.

Supply of Copy of F.I.R. forthwith

Sub-section (2) of section 154 makes it mandatory on the part of the person
concerned registering the F.I.R. to supply a copy of the F.I.R. to the complainant and it
is endorsed in the Official Register, kept in the Police Station. Besides, sub-section (2) of
section 154, State regulation in this regard warrant that the original F.I.R. be made
with certain carbon copies, out of which one should be given to the informant forthwith
and free of cost, and a specific endorsement with signature of informant of this effect be
made at the foot of the F.I.R. copy kept in the F.I.R. book.

Refusing to Sign the F.I.R.

When a person refuses to sign the report of the nature of first Information made by
him to the police officer, that person can be prosecuted under section 180 I.P.C.
To bring the offence home to the accused what is required to be provided is—
(1) That the informant made the particular statement.
(2) That he was required to sign that statement by the public servant.
(3) That the accused refused to sign that statement.
The officer-in-charge of a Police Station is a public servant legally competent to
require the informant to sign the statement made by him.

Tests of F.I.R.
The broad principles is that ‘F.I.R.’, is First in point of time disclosing a cognizable
offence. Sometimes controversy arises as to which report (when there are more than
one reports) should be treated as F.I.R. It is, therefore of utmost importance for a police
officer to know as to which statement should become the basis of F.I.R. to avoid the
technicalities of law as every report after F.I.R. would be in course of investigation and
as such would be inadmissible in evidence
under section 162 Cr.P.C.
The following are the acid tests to determine whether a particular information of an
offence is admissible as F.I.R. or is hit by sec. 162 Cr.P.C.–(For detailed report see 1954
Cr.L.J. 610 at page 614 comments by Hon’ble Justice Rama Swamy J. based upon
analyses by Mr. Y.A. Rao in his “Law of pre-trial Statements and Depositions”)
Section 154–Maintainability of F.I.R.–Information received in inquiry under section
174 Cr.P.C. which was limited to the extent of ascertaining whether the death is natural
or unnatural. Death cannot be categorized as information disclosing a cognizable
offence and does not amount to F.I.R. under section 154 Cr.P.C. Manoj Kumar Sharma
v. State of Chhattisgarh, 2017 Cr. LJ 418 (SC).

F.I.R. to be on definite information

A police officer should register an F.I.R. on the information which is definite and
clear to show that cognizable offence has been committed. Vague surmises and
suspicions do not constitute F.I.R. :
(a) Supposing a man comes to a police officer and tells him that there is shooting
incident in the house of A. Should he register case? The answer, is No. He
should enter a report in the Daily Diary and go to the house of A and record a
statement there if cognizable offence is disclosed. That will become F.I.R. and
not the First report, that being vague. It is only after recording some statement
that the police officer can come to know that a cognizable offence has been
committed. 1939 Madras 368.
(b) In a village, a riot accompanied with arson and looting was going on M
happened to pass through that village. He came to police station and gave some
vague information about the incident. A Police Superintendent rushed to the
 village and recorded a statement. This was held to be F.I.R. and not the former
report vide 1942 Oudh 60.
In such cases a police officer reasonably requires more information before
registration of case and such more information becomes the basis of F.I.R.
(c) A confidential information which discloses only surmises and not the
commission of a cognizable offence and where the police officer does not wish
to disclose the name of the informer should not become the basis of F.I.R.
It is also, sometimes that a police officer receives a report that certain persons were
going to commit dacoity. He, however, does not want to disclose the name of the
informer. The mere report is a surmise and as such does not become F.I.R. see 1941 B
146. A mere confidential information which informs the assembling of certain B. C’s at a
particular place and not the commission of an offence need not be recorded under
section 154 Cr.P.C. 1954 Cr.L.J. 188 (All) Dwarka v. State.
In 58 Cal. 1812 two statements made by complainant were too vague to disclose any
cognizable offence. S.I. held an enquiry and recorded a third statement of the
complainant where it was alleged that the woman might have been killed by the culprits
for ornaments. Held the third statement was F.I.R. First two being vague.
If, however, the suspicion or information is well authentic and based upon cogent
reasons and grounds which lead to irresistible conclusion of the commission of
cognizable offence, then a case should be registered.
F.I.R.–What is–Second report of incident after oral complaint–Oral complaint
disclosing cognizable offence and police investigation starting on its basis–Written
report has to be considered cannot be used for corroboration of evidence of informant.
(Golla) Jalla Reddy & Others v. State A.P., 1996 Cr.L.J. 2470 (SC).
More often a Ruqqa of Doctor disclosing the arrival of injured at hospital is received.
It does not disclose the commission of a cognizable offence and is vague and indefinite
about injured, accused and other particulars. No case should be registered on it. It
should be recorded in the Daily Diary and the S.H.O. should go to the Hospital, record
the statement of the injured there and get a case registered on such statement. This
view finds support from 1956 Cr. L.J. 1099. One Madhavan told police that he heard
that a woman had been taken to hospital with injuries. He did not know how the injuries
happened to be caused and who inflicted them. S.I. went to hospital and recorded F.I.R.
on the statement of injured. Held that the statement of Madhavan was not an F.I.R. to
attract sec. 154 Cr.P.C. statement must be an information and secondly it must relate to
cognizable case on the face of it and not merely in the light of subsequent events. The
Ruqqa of Doctor would be of course be entered in Daily Diary Register on receipt.
But if information is received that injured had been shot and had been removed to
hospital, it is sufficient for registration of case, held, so in 52 Cr. L.J. 857 (1951) (Mad.).
It was held further that the fact that information was meagre and failed to indicate
whether injured had been shot as a result of accident or the voluntary or wrongful act of
some one else could not affect its character as F.I.R. This view also finds corroboration
from 1922 Pat. 535. In this case a person had reported at P.S. that he had seen a
woman with her head cut. The officer did not make a record of the fact but subsequently
treated the information lodged by the father of the woman as F.I.R. It was held that
unrecorded information was in fact an F.I.R. and that information given by father, not
being F.I.R. could not be taken into consideration as it would be a statement during the
investigation of case and as such inadmissable in evidence.
In State of Assam v. U.N. Raj Khowa, 1975 Cr.L.J. 354, a case relating to murder of
his wife and daughters by Sessions Judge, his D.O. letter saying that enquiries be made
regarding the death/disappearance of these women was held to be vague and not
treated as F.I.R. as it was not definite to disclose commission of cognizable offence.
The statement recorded during investigation and in inquest cannot be treated as
F.I.R as it is hit by sec. 162 Cr. P.C. In case Dulal Chandra Ghosh, 1988 Cr.L.J. 1835,
police was informed that deceased had been murdered and it was apprehended that
there may be an attack as a reprisal. On this information the Sub-Inspector went to spot
and started investigation. He recorded statement of complainant in inquest and during
investigation and got the case registered on it. Held that it could not be F.I.R. and was
hit by sec. 162 Cr.P.C. being during investigation.
 Where the investigating officer had gone to the village of occurrence where there
was no electricity in the night on the basis of some vague information of violence having
broken out there, has categorically denied having questioned the witnesses or recorded
their statements, the F.I.R recorded in police station after reaching there is not hit by
sec. 162 Cr.P.C. Pattad Amarappa, 1989 S.C. 2004.
Where message are transmitted between police officers inter se; it can be treated as
F.I.R. if the object is to narrate the circumstances of the crime with a view to initiate
investigation. Jagdish 1992 Cr.L.J. 981 (MP).
As such every case depends upon its own circumstances and the police officer
should exercise his own judgement and diligence to test the information if it is clear,
definite and based upon tangible facts to disclose commission of cognizable or suspicion
of commission of a cognizable offence.

F.I.R. in Conspiracy Cases

In conspiracy cases, a definite information which justifies registration of case, is
fairly after making some enquiries. So it is not every information that some persons are
conspiring to do an illegal act that an F.I.R. should be registered. According to P.N.
Rama Swami, J. as held in Re. M. Rangarajulu, 1958 Cr.L.J. 906. “A police man passes
through three stages in conspiracy cases; hears something of interest affecting the
public security and which puts him on the alert; makes discreet enquiries, takes
soundings and sets up informations and is in the second stage of enquiry or lookout and
finally gathers sufficient information enabling him to hit upon something definite and
that is the state when first information is recorded and then investigation starts. Hence
a preliminary enquiry made by the C.I.D. police into relative information floating about
as to the existence of the conspiracy, the names and other details of the conspirators
not being known at the time is not investigation carried out under section 156 Cr.P.C.”
F.I.R. need only be registered when information is definite about conspirators and
their acts disclosing commission of cognizable offence.

F.I.R. in Corruption Cases

In case of corruption, not registered on traps laid, but on complaints, always a
suitable preliminary enquiry into the allegation, is required. Such preliminary enquiries
are relevant before the registration of case and are permissible under law. But as soon
as it became clear to enquiring officer that the public servant appeared to be guilty of
severe misconduct, it was his duty to lodge F.I.R. and proceed futher in the
investigation according to Chapter XIV (nowXII) Cr.P.C. Sirajuddin 1971 Cr.L.J. 523
(SC); 1964 (1) Cr.L.J. 140 (SC) State of U.P. v. Bhagwant. In V. Balurkar v. State of
Maharashtra, 1975 Cr.L.J. 517 (F.B.). The Bombay High Court treated the complaint
sent to Anti Corruption Department as F.I.R. disclosing demand of bribe and payment to
be made by complainant since officers of Anti Corruption Department had been given
powers of S.H.O.

F.I.R. in Murder Cases

In murder cases, the following types of F.I.R’s are recorded by police:
(i) When it contains direct evidence of murder on the basis of ocular evidence.
(ii) When the police registers the case minimizing the offence from murder to 307
or under section 364 I.P.C. to avoid its despatch to Magistrate which otherwise
is essential if case is really registered for murder. This is invariably in those
cases in which the informant give the facts and to show that the case was
registered promptly.
(iii) When only a dead body, identified or unidentified, is recovered with cause of
death which is clear and the injuries are apparent the neck is cut etc., i.e. in
Blind murder cases.
(iv) When only inquest is held to discover the cause of death and the case is
registered after the report of Medical Officer, or after the receipt of report of
chemical examiner etc. with regard to poison given to the deceased. Only a
report is recorded in Daily Diary at the first instance.
(v) When the death is under suspicious circumstances and investigation is
necessary which otherwise cannot be done without the registration of case.
 This is mainly in cases where dead body is not available, but the circumstances
indicate the cognizable offence has occurred.

F.I.R. on Authentic Information

The information parted to the police officer for registration of a case must be
authentic. It should not be gossip but should be traced to an individual who should be
responsible for imparting information. It may be hearsay but the person in possession of
hearsay should mention the source of information and take responsibility for it. An
irresponsible rumour should not result in registration of F.I.R.
As held in 1951 Mad 812, the gossip and rumour are not statements relating to a
crime; they are rather statements about statement relating to crime and involve on
assertion about the crime and have no shape or form and as such do not amount to
information. In Fateh Sher v. Emp. 1913 P.L.R. 813, first report was made by a person
who had no personal knowledge but had derived his knowledge from an unknown
person. It was held as inadmissible.
A statement casually given to Sub-Inspector is not F.I.R. See. 23 Cr.L.J. 506.

F.I.R. on Telegram or Telephone

Legally the case should not be registered:
(a) as there is always a doubt about its authenticity.
(b) as it does not satisfy the tests of sec. 154 Cr.P.C. being not an oral statement
reduced into writing, read over, admitted correct and signed by the informant.

F.I.R. on Telegram
There are conflicting views of the High Courts on the point whether on a telegram, a
case should be registered or not.
Madras and Calcutta High Courts are of the view that telegram cannot form a
statement contemplated in sec. 154 Cr.P.C. and as such it does not become F.I.R. The
fuller statement of sender in confirmation of telegram becomes the F.I.R. See 1938 M
798 following (1914) MWN 382 and 36 Cr.L.J. 911(Cal).
In Sailender Kumar, 1959 Cr.L.J. 237 (Tripura), it was advised that steps should be
taken to verify on receipt of telegram that sender in fact sent it and wanted to make
report; it was only than that telegram should be registered as F.I.R.
The Lahore High Court in Charan Singh v. Emp. 35 P.L.R. 363, took a different view.
It was held by their Lordship that original telegram which was thumb marked by the
sender and the authentic of which was very well confirmed could very well from basis of
F.I.R. It was further held that it was immaterial whether a written report is sent through
a massage or through telegraph and that every statement recorded after the receipt of
telegram would be hit by sec. 162 Cr.P.C. this view also finds support from Wilayat
Khan v. State 1953 Cr.L.J. 662 (SC) where an omission of accused’s name in telegram
given immediately after murder was held to be a strong circumstance in favour of the
accused.

F.I.R. on Telephonic Message

In 1931 Sind 13 a telephonic message of Doctor saying that a person with hatchet
wounds has been received in hospital was not considered as F.I.R. The later statement
of injured was taken as F.I.R. but a similar message in 1930 Lah. 457 was held to be
F.I.R. and the later statement as dying declaration under section 32 of the Evidence Act.
In Shwe Pru 1941 Rang 209, the telephonic message disclosing commission of
cognizable offence was considered to be F.I.R. In Mehr Vajsi 1965 (I) Cr.L.J. 696
(Gujarat) a telephonic message to S.H.O. by an eye witness that a person had been
assaulted with an axe at a particular place was held to be F.I.R. and not later statement
of injured recorded in hospital. In Sarup Singh v. State, 1964 Punjab 508, a cryptic and
purely hearsay telephonic message not disclosing the identity of the accused conveyed
at the instance of an eyewitness by a person who was not himself an eyewitness was not
held to be F.I.R. It was further laid down that telephonic or telegraphic message cannot
be treated as F.I.R. Similarly the Supreme Court in 1970 Cr.L.J. 1415 Tapinder Singh
held that a telephonic message that firing had taken place at Taxi Stand at Ludhiana
was held not to be F.I.R. being cryptic and anonymous oral message. In this case ASI
Flari Singh had written in the daily diary this telephonic call from a person who had
disclosed his identity and had proceeded to the spot. In Soma Bhai 1975 S.C. 1453, the
telephonic message by S.I. to Surat police station after hearing complainant orally was
not held to be F.I.R. being cryptic and for purposes of eliciting further instructions and
later statement recorded by S.I. was treated as F.I.R.
In 1987 Cr.L.J. 180, Deodan an anonymous telephonic call intimating murder could
not be F.I.R. and information given in hospital recorded during investigation. He was
not bound to treat the call as F.I.R. without requisite details or authenticity. In 1989
Cr.L.J. 1350, Tehal Singh, the Telephonic message was recorded from memory and it
was not verbatim, nor read over and admitted correct, nor his signatures obtained, such
report cannot be F.I.R. The statement recorded at the spot would not be hit by sec. 162
Cr.P.C. and can be relied on as F.I.R.
In 1981 C.L.R. 649, Randhir Singh v. Shah, where Telephonic Message received at a
police station was entered in the Daily Diary information convened vide the said
message disclosing commission of a cognizable offence. It was held that mere fact that
the entry in Daily Diary was not got signed by the information does not change its
character as a First Information Report.
Further held that F.I.R. amounts to an entry in the Diary maintained at a police
station made on basis of a telephonic message giving details regarding commission of a
cognizable offence may be regarded as F.I.R. in the case.
In 1953 Cr.L.J. 1301 (Trav Cochin) Chira Mal Varud v. State, it was held that since it
was not possible to take the signature of informant it is not usual to accept such
information received by phone or telegram as F.I.R. Similar view was taken in 1954
Cr.L.J. 678 (Saurashtra).
The authenticity of a telephonic call is more suspicious than a telegram and as such
it raises many difficulties. In 1953 Cr.L.J. 426, (1953. All 163, State v. Ram Bali and
Others) F.I.R. was registered on a telephonic call. The informant Gobri died before the
case came up in court. It was held that “Gobri the alleged maker of the report died a
few days after making report and could not be produced in court. As the report is not
signed by Gobri, there was no evidence that Gobri indeed had made the report. The fact
that a report was made is relevant but it cannot be said with confidence that it was
Gobri Chowkidar who made the report or that contents of the report were correct.”
In Jagdish 1976 Cr. L.J. 132, the question whether a telephonic message can be
considered as F.I.R. is to be decided with reference to the facts of each case. If
telephonic message is given by known person who discloses his identity and it contains
all the necessary facts which can constitute an offence and is reduced to writing by
Station House Officer, it can be treated as First Information Report.
F.I.R.–What is–Telephonic information given to police regarding occurrence–Said
information not containing details–Subsequent statement before police who proceeded
at spot upon receipt of said information–can be treated as F.I.R and is not with by sec.
162, Joy Deb Das Jogi v. State W.B., 1999 Cr.L.J. 1816.
F.I.R.–What is–Telephonic information to police station about cognizable offence
recorded in Daily Diary book–Said information though not mentioning names of
assistants but investigation stated on its basis–Would be treated as F.I.R. Sunil Kumar v.
State of M.P., 1997 Cr.L.J. 1183 SC.
F.I.R.–What is–Cryptic telephonic message recorded at police station is not F.I.R.–
Police station on receiving message reaching at place of incident and recording
statement of witness–Said statement of witness can be treated as F.I.R. Pyara & Others
v. State of Rajasthan, 1997 Cr.L.J. 1065 (Raj).
Sections 154–Police registering F.I.R. on telephone message–Not illegal even if
sufficient details were not converged–F.I.R. is not an encyclopedia which must disclose
all facts and details. S.P. CBI v. Tapan Kr. Singh, AIR 2003 SC 4140.
Sections 154 and 162–F.I.R.–Information conveyed to police on telephone and DD
entry made–It cannot be treated as F.I.R. even if the information disclosed commission
of cognizable offence. Damodar v. State of Rajasthan, AIR 2003 SC 4414.
Section 154–Telephonic message not F.I.R.–Telephonic message recorded at police
station to the effect that accused persons assaulted the complainant party without
disclosing the nature of offence and the manner in which the offence was committed in
cryptic in nature and cannot be treated as F.I.R. B.J. Markand v. State of Maharashtra,
2017 Cr.L.J. 578 SC.

Two F.I.R.’s Independent of Each Other

Generally and legally speaking every report made after F.I.R. will be inadmissible in
evidence, as having been hit by sec. 162 Cr.P.C. and such cannot be used for
corroboration purposes. The question of admissibility becomes still important as in
many cases there are more than one reports made to police and question arises which is
to be deemed under section 154 Cr.P.C. (therefore admissible in evidence) and which is
hit by sec. 162 Cr.P.C. (therefore unusable for purposes of corroboration). The crucial
phase in sec. 162(1) Cr.P.C. is “in the course of investigation” if this report is in course
of investigation then it is inadmissible for corroboration. To determine if it is in course
of investigation, the acid test is “if it is made as a step in pending investigation to be
used in that investigation.” If so, it comes under the mischief of sec. 162 Cr.P.C.
otherwise not. If it is independently made, not in relation to pending investigation, it is
admissible under section 157 of the Evidence Act for corroboration and can be used by
prosecution. Such a contingency arises when a report is given at two different dates and
time by two different persons to two different police officers at two different places and
one is earlier in point of time. The later report will be admissible as an independent first
information report and therefore can be used by prosecution. This view was adopted in
Emp. v. Lalhi AIR 1936 Pat. 11, Suba Choudhary, 1950 Pat. 44, 1957 All 755 Tika Ram
v. State.
In the last mentioned case F.I.R. was given by step father of victim at Chaulua
P. S. at 6 a.m. and investigation was taken up. Nell Ram, another relation of victim
lodged report at Etawah where injured was escorted at 8 a.m. Held later report was
also admissible.
More than one F.I.R. when are submitted, the first in order that persuades the police
to start investigation is real F.I.R. Subsequent F.I.R’s are not admissible being hit by
sec. 162 Cr.P.C. Vijaya Shankar 1989 Cr. L.J. (NOC) 151 (MP).
Two F.I.R’s were lodged regarding the same offence, one in Alwar (Rajasthan) and
the other in Ludhiana (Punjab). The Punjab and Haryana High Court was moved to
quash F.I.R. registered at Ludhiana under section 482 Cr.P.C. read with Article 22 of
the Constitution of India. It was held in Swaran Jit Jain, 1982( 1) C.L.R. 712 that—
(a) Investigation can proceed in both the States;
(b) High Court could not interfere as no Court has control over investigation.
Article 227 is confined to power of High Court of superintendence of all Courts
and Tribunals under its jurisdiction. The investigation agency is neither judicial
nor quasi judicial Tribunal.
(c) It is only when proceedings are instituted by either, then the question will arise
which Court should proceed in the matter in preference to the other;
This will be determine under section 186 Cr.P.C.
(i) if the Courts are subordinate to the same High Court, by that High Court.
(ii) if not, then by the High Court within the local limits of whose appellate criminal
jurisdiction the proceedings were first moved. And thereupon all other
proceedings in respect of that offence shall be discontinued, (for full discussion
see “List of Stolen Property,” and “sec. 162 Cr. P.C”)
Section 154–Two F.I.R’s cannot be registered in same set of facts–F.I.R. registered
and case taken up for investigation–If investigation officer comes into possession of
further information or material, he need not register a second or fresh F.I.R–Officer-in-
charge of a police station has to investigate not merely cognizable offence reported in
the F.I.R., but also other connected offences found to have been committed in the
course of same transaction or occurrence and he may file a second or more reports as
provided under section 173 Cr.P.C. Jasjit Singh Bhasin v. State of Punjab, 2006 (2) RCR
(Cri.) 814.
Section 154–Two F.I.R’s regarding same occurrence can be lodged i.e. one by
complainant and other by accused giving cross-version–However, two F.I.R’s cannot be
lodged against same accused. Rajeev Kr. Singh v. State of U.P., 2006 Cr. L.J. 248.
 Secton 154–Cross cases–Two F.I.R’s regarding same incident–Challan put up in both
the cases–Following procedure be adopted to try cross cases–
(i) Judge must try both cases one after the other.
(ii) After recording evidence and hearing arguments, judge must reserve the
judgement.
(iii) Thereafter the judge should proceed to record evidence and hear arguments in
second case.
(iv) The same judge must dispose of the matters by two separate judgments–Cross
cases be tried together by same court to avoid conflicting judgment over same
incident.
In cross cases, both the complaints cannot be said to be right–Either of them must
be false–In such a situation, legal obligation is cast upon the investigation officer to
make an endeavour to find out the truth. State of M.P. v. Mishri Lal, AIR 2003 SC 4089.
Section 154–Double Jeopardy–Accused hired a car and thereafter lodged F.I.R. that
car was stolen–Owner of car lodged F.I.R. that accused had cheated him–Plea that F.I.R.
in cheating case be quashed as it related to same matter not tenable–The case was
under investigation–I.O. can take notice of facts. Gulshan Kr. v. State of Punjab, 2002
(2) RCR (Cri) 366.
Section 154–Double Jeopardy–There cannot be two F.I.R against the same accused
in respect of the same case–But when there are rival versions in respect of the same
episode, they would normally take the shape of two different F.I.R’s and investigating
can be carried on under both of them by the same investigation agency. Kari Choudhary
v. Most Sita Devi, 2002 Cr.L.J. 923.
Section 154–Counter Case–F.I.R lodged with police–Police completing investigation
and filing report in court under section 173 (2)–Second or fresh F.I.R regarding same
offence which is not a counter case is not valid but that will not preclude the
investigating agency from seeking leave of court for making further investigation and
filing a report under section 173 (8) Cr.P.C. Iqbal Singh v. State of Punjab, 2006 (2)
RCR (Cri) 836.
Sections 154, 156 and 162–Cross Case–F.I.R lodged against accused–Accused can
lodge counter complaint if he has different version of same incident–If police refused to
register counter complaint, it is open to Magistrate to direct the police to register the
complaint and investigate. Upkar Singh v. Ved Prakash, AIR 2004 SC 4320.
Section 154 and 173 (8)–Cross Cases–F.I.R lodged in an offence–Police taking up
investigation–Cross F.I.R. in same incident cannot lodged–Police can, however, make
further investigation with permission of court and submit additional report. Naushad v.
State of U.P., 2005 Cr. L.J. 2772.
Section 154 (1)–More than one information given to police officer in respect of same
incident–The police officer need not enter everyone of them in Station House Diary–The
information first entered in Station House Diary is the F.I.R. postulated by sec. 154 Cr.
P.C.–Any other information received during investigation will fall under section 162 Cr.
P.C. and cannot be registered as F.I.R. and entered in Station House Diary as it would
in effect be a second F.I.R. T.T. Antony v. State of Kerala, AIR 2001 SC 2637.
Section 154 (1)–Second F.I.R–F.I.R. lodged under section 307 IPC–Death of victim
during investigation–No fresh F.I.R. under section 302 need to be registered–Proper
courses to alter the provision of law. T.T. Antony v. State of Kerala, AIR 2001 SC 2637.
There cannot be two F.I.R’s against same accused in respect of same case. However,
if there are two different versions in respect of the same incident, they would normally
take shape of two F.I.R and investigation could be carried on under both of them. A
cryptic information of incident could not be treated to be F.I.R. unless the detailed
description accompanied with it for treating the same as F.I.R. Marwadi v. State of MP,
2012(1) Crimes 184.
Section 154–Registration of F.I.R. (Second)–In the instant case, the substance of the
allegations in the two F.I.R’s, was different. The first F.I.R. deals with offences under
section 3 to 7 of the Immoral Traffic Prevention Act whereas second F.I.R. deals with
offences under section 419 and 420 I.P.C. which were alleged to have been committed
during the course of investigation of the case in the first F.I.R. The alleged offences
under the second F.I.R. in substances were distinct from the offences under the first
F.I.R. and they cannot be said to be in the form of the part of the same transaction with
the alleged offences under the first F.I.R. Institution of second F.I.R. was held legal.
Awadesh Kumar Jha @ Akhilesh Kr. Jha. v. State of Bihar, 2016 Cr. L.J. 1129.

Procedure
After consideration of above factors, when an officer-in-charge of police station
decides to write an F.I.R. he should do the following:
First he should show the arrival of the complainant along with his companions in the
Daily Diary i.e. Roznamcha, and also the purpose for registration of the case with a brief
note about the contents of the F.I.R. i.e. information supplied by him and then should
start writing F.I.R. in the F.I.R. Register No. 1 of police station. The report should be as
follows:
S.N. Ram Singh S/o Report 2-30 p.m. Ram Singh- came along with for
–R/O- of lodging F.I.R. about theft in his house
cognizable of his ornaments-that I, officer-in-charge
offence busied myself in writing F.I.R.
This is essential as sec. 154 Cr.P.C. lays down that the substance of the information
received shall be entered in a book to be kept by such officer in such form as the State
Govt. may prescribe in this behalf. The book prescribed is Daily Diary or Roznamcha
Register No. 2) as above said. According to sec. 44 of the Indian Police Act (No. V of
1861) Daily Diary is required to be kept for recording therein all complaints and
charges preferred, the names of the complainants, the offences charged, the weapons
or property taken from their possession and names of witnesses who should have been
examined. Punjab Police Rules 24.1 also lays down that substance of F.I.R. must be
entered in police station Daily Diary which is the book prescribed for the purpose. In
case the substance of the F.I.R. is not recorded in the Daily Diary in contravention of
the Rules and Law as referred to above, then it shows that F.I.R. was not recorded at
the given time and embellishments have been made in it.
In 1989, Cr.L.J. 572, the substance of F.I.R neither names of accused, nor of witness,
nor any other details of occurrence were recorded in Daily Diary. Held there was non-
compliance of sec. 154 and 24.1 PPR. Thus full facts of occurrence were not known at
the time of making of entry. However in State v. Hakam Chand, I.L.R. (1974) Delhi 419
and Balwant Singh 1978 P.L.R. 351, the irregularity committed by the investigating
agency in the preparation of the document and not recording the substance in the Daily
Diary, it was held that it would only ask the Court to shift the prosecution evidence with
utmost care; the F.I.R. being not substantive evidence. The guarantee that F.I.R. was
recorded at a certain time must, however, otherwise be present.
The officer-in-charge should then begin to write F.I.R. in the First Information
Report register at the dictation of the information. According to para 24.5 of Punjab
Police Rules, this register “shall be a printed book consisting of 200 pages (500 pages in
Punjab) (375 pages in Haryana) and shall be completely filled in before a new one is
commenced. Cases shall bear an annual Serial Number in such police station for each
calender year. Every four pages (Five pages in Punjab/Haryana) of Register shall be
numbered with the same number and shall be written at the same time by carbon
copying process. The original copy shall be a permanent record in police station. The
three copies shall be submitted (a) one to S.P. or other Gazetted Officer nominated by
him, (b) one to Magistrate empowered to take cognizance of the offence as is required
by sec. 157 Cr.P.C. (c) one to the complainant unless a written report in Form 24.2 is
received in which case cheque report prescribed will be sent. (d) One legible copy shall
be submitted to the District Crime Record Bureau at District Headquarters. Necessary
codes relating to First Information Report will be filled in for Computerisation purposes,
where required (in Punja/Haryana).”
After writing the report, it should be read over to the complainant who should sign
or thumbmark in token of its correctness and copy of it will be given to him under his
signatures. The other copies should be distributed as above. The seal of P. S. shall be
put on every copy and original. In 1988 Cr.L.J. 1412 Badhna there was no indication in
F.I.R. that it was read over to informant but in Court informant stated so, held it was not
an infirmity.
Special attention should be paid to the despatch of copy for Illaqa Magistrate by the
earliest as negligence in delay and despatch is often made use of by accused as case
having not been registered at the time shown by police. This is required by sec. 157
Cr.P.C. It was held in 1978 Cr.L.J. (N.O.C.) 287, State of Orissa v. Shanti Lata, it is duty
of police to forthwith send F.I.R. to Court. Non observance of this mandatory provision
creates doubt against prosecution case.

Special Report
The police is required to send the copy of F.I.R. to the Illaqa Magistrate immediately
after registration of the case under section 157 Cr.P.C. and under the rules framed by
police. A special report, primarily the copy of F.I.R. in cases of heinous nature like
murder, dacoity, and all specially reported cases (Para 24.5 Punjab Police Rules) is also
to be sent immediately after registration of such a case to the Illaqa Magistrate,
S.P./D.M. of the District. Even when a case is registered under minor offence, the
special report need to be sent, immediately graver offence requiring despatch of special
report, is made out. The Magistrate on its receipt gives the date and time of receipt on
it and this is guarantee of its being recorded by police at the specified date and time
given in it. In case of delay in its despatch to Magistrate, there are two presumptions:
See Kamaljit Singh 1980 Cr. L.J. 542.
(i) That it was not recorded at the time and date given in it and was antitimed or
antidated;
(ii) That the delay had been occasioned due to preliminary enquiries made by
police to find out culprits or to spin out a story, to introduce improvements and
embellishments and to set up distorted version. An unexplained delay in
sending F.I.R./Special Report evokes suspicion, 1987(1) Cr.L.J. 479.
In many a case, the delay is explained by police by coining any excuse as in 1973,
Recent Laws 35, it was held to be a usual story of punctured cycle. The explanation
must be satisfactory and acceptable. If no explanation is forthcoming, then it creates a
doubt in the minds of judicial officers as to the genuineness of F.I.R. (Gabriel 1977
Cr.L.J. 135 and in Recent Laws Appayya Naik, 1966 Cr.L.J. 483) :
(i) 1974 S.C 1983-1974 Cr.L.J. 1383 Om Parkash–F.I.R. recorded on
13.12.1968.–Reached to Magistrate on 16.12.68. Prosecution did not explain
delay. No question was put to investigating officer. Held that in absence of
definite evidence, it was not possible to fix the responsibility of delay, 14 and
15 being holidays, the magistrate might not have noticed it, being delivered
at his residence.
(ii) 1973 C.A.R. 25 Pala Singh (SC) 1973 [Link]. 59.–Occurrence 6 p.m. Special
Report reached to Magistrate 7.30 a.m. in City Jullundur, Police Station only
21/2 miles. Held by Supreme Court in appeal against acquittal that A.S.I,
reached spot, immediately S.I. reached, Inquest prepared and Investigation
started. Held that F.I.R. registered not with delay. Mere delay in reaching
Magistrate did not show investigation insupportable.
(iii) 1973 C.A.R. 359 Hazura Singh (SC)– Copy reached to Magistrate
next day. It does not follow that F.I.R. was not recorded at the time
purported to have been done.
(iv) 1968 Cr.L.J. 1263 Tripura, Bir Kumar Dele Dacoity on 21.1.64–F.I.R. on
22.1.64 reached to S.D.M.’s Court on 25.2.64. Held that the delay and the
latches on the part of I.O. in sending F.I.R to S.D.M.’s Court could not be in
the light of the facts of the case, be said to be fatal to the prosecution of the
case as F.I.R. was lodged on the very next day of the occurrence.
(v) 1974 Punjab Law Journal 145–F.I.R. registered at 7 p.m.–Reached to
Magistrate next day case held to be doubtful.
(vi) 1974 Punjab Law Journal 103, F.I.R. reached Magistrate with delay. Accused
not arrested though named in F.I.R. and present with police Inquest delayed.
Held case was doubtful.
 (vii) 1975 Supreme Court Cases 530 Datar Singh, F.I.R.’s despatch to Magistrate
not entered in the column of F.I.R. Held absence of entry as to when it was
sent to Magistrate assumes great significance and supports defence plea that
F.I.R. was drawn much later than alleged.
(viii) 1975 S. C. 1960-1975 Cr.L.J. 1732 Balkar Singh, F.I.R. allegedly written at 10
p.m. Special Report reaches Magistrate at 11 a.m. i.e. more than 12 hours
after F.I.R. whereas it should have been delivered during the night or at least
in the morning. F.I.R. lost its authenticity. Witnesses inimical–Accused
acquitted.
(iX) In State v. Mohan Singh, 1984 Cr.L.J. 1362, Special Report was sent with
3 days delay to the Magistrate when he was only 7 km. away when F.I.R. was
alleged to be recorded promptly, it was held that “to record the time and date
in F.I.R. register is an internal check only. Section 157 however requires to
send the F.I.R to Magistrate forthwith is an external check. The unexplained
delay in sending it to Magistrate casts a doubt that it was not recorded at the
actual time.”
(x) In 1982 (2) C.L.R. 605, Des Raj, F.I.R. was registered at 6 p.m. previous day,
it was held by Himachal High Court that copy of the F.I.R. was not sent to the
Magistrate as special report till 10 a.m. next day. No reason has been given
for this delay. Distance between the police station and the residence of the
magistrate is hardly a furlong. The delay is not sending the F.I.R. soon is a
serious matter. We would therefore look at the F.I.R. with suspicion.
(xi) In the State of U.P. v. Gokaran, 1985 Cr.L.J. 511, special report sent on 29th
March; Occurrence of the night between 27/28 March; Held by Supreme
Court, “it is not as if every delay in sending a special report would necessarily
lead to the inference that F.I.R. has not been lodged at the time stated or that
it was antitimed or antidated. When the steps in investigation by way of
drawing inquest and other panch names started soon after F.I.R.,
the delayed report received by Magistrate would not enable the
Court to doubt the investigation as tainted one nor could F.I.R. be
regarded as antitimed or antidated.”
(xii) In case Dalbir Singh, 1987 (2) Recent Criminal Reporter, F.I.R. recorded
initially at 3.25 p.m. under section 307, 148/149 IPC–Offence changed
Subsequent Report sent to Magistrate at 8 a.m. next day cannot be said that
there was delay in sending report to Magistrate.
(xiii) In case State of Kerala v. Des, 1986 Cr.L.J. 745, Late receipt of F.I.R. does
not show it was fabricated F.I.R. was registered without delay. Fabrication
was not believed as assailants mentioned in F.I.R. were fewer as spoken to by
witnesses. There was no inconsistency in basic concepts of case and delay
was explained.
(xiv) In Subhash, 1987 Cr.L.J. 991 SC, F.I.R. was sent to Magistrate not containing
Magistrate’s endorsement about time of receipt. Head Constable deposing
about time of receipt. General diary containing entry. Inference of antidating
cannot be drawn.
(xv) In Bal Krishan, 1987 Cr.L.J. 479 Delhi, in a murder case F.I.R. was sent to
Magistrate after two days. The delay was not explained. Held that
circumstances evoked suspicions. Accused was available for arrest in this
case. Police allowed him to go and arrested him next day. Defence suggestion
that police investigation was on a different line. Accused acquitted.
(xvi) Lallan, 1990 Cr.L.J. 463, Recording of F.I.R. within 2 hours of incident-
starting of investigation immediately-delay of a few hours in sending special
report to District Magistrate under section 157 Cr.P.C., not significant.
(xvii) Darshan Singh 1988, Cr.L.J. 909 (SC), Scene of occurrence 12½ miles
fromThana–F.I.R. lodged within one hour Plea that it was prepared later and
false time mentioned. No evidence brought on record that time of occurrence
mentioned in F.I.R. was precise time or that persons who lodged F.I.R.
covered the distance on foot. Held there was no delay.
(xviii) Lalla Ram, 1989 Cr.L.J. 572, Special Report sent to Magistrate on next day at
10 a.m. in Court when occurrence was of previous day at 5.30 p.m. when
F.I.R. was recorded. No explanation for delay. Held genuineness of time and
date of recording F.I.R. doubted.
(xix) 1991 Cr.L.J. 2014 (Mad), it is not correct to say that delayed transmission to
special report under section 357 Cr.P.C. spells out the fact that F.I.R. was not
lodged at the time stated therein and that investigation is not fair.
(xx) 1993 Cr.L.J. 39, Mere delay in despatched of F.I.R. to Magistrate is not a
circumstances which can throw out the prosecution case in entirety. Write
the statement of Constable who takes special report to Magistrate separately
under section 161 Cr.P.C.; the delay, if any should be explained in his
statement. The Constable should get the receipt of Magistrate with time and
date on the cover of the envelope and preserve it. Both going and return of
constable is to be recorded in Daily Diary (with cause of delay if any). Punjab
Police Rules 24.5 lays down the procedure in this respect saying inter alia—
(a) The F.I.R. shall be sent to the Magistrate immediately in the Court during
Court hours and at his residence thereafter.
(b) If Magistrate concerned is out of station then to be submitted to Duty
Magistrate.
(c) If Magistrate is not available after Court hours then the messenger will
leave at his residence giving the date and hour of delivery on the cover.
(d) If an account of difficulties in communication or other reasons the delivery
is delayed the reasons and delay shall be recorded on the cover.
(e) The Magistrate shall put his initial and the date and hour of receipt.
See Swaran Singh v. State, 1981 Cr.L.J. 364.
(xxi) Section 154–Murder–Some delay in furnishing the special report to
Magistrate–It is not fatal to prosecution case. Jajula v. Rao v. State of A.P.
AIR 2002 SC 2775.
(xxii) Sections 154–Criminal offence–Recording of F.I.R. and sending the special
report in the safe hands of Magistrate promptly goes a long way in proving
case of prosecution. Pardeep Kumar v. State of Haryana, 2005 (3) RCR (Cri)
958.
(xxiii) Sections 154, 157–Criminal offence–Delay of 24 hours in sending special
report to Magistrate–Sec. 157 Cr. P.C. requires sending of an F.I.R. to the
Magistrate forthwith which reaches promptly and without undue delay–
However, this lacuna on the part of the prosecution would not be the sole
basis for throwing out the entire prosecution case being fabricated if the
prosecution had produced the reliable evidence to prove the guilt of the
accused person. Rabindra Mahto v. State of Jharkhand, 2006 (1) J.T. 137
(SC).
(xxiv) F.I.R.–Criminal Procedure Code contemplates two kinds of F.I.R’s–The duly
signed F.I.R. under section 154(1) is by the informant to the concerned
officer at the police station. The second kind of F.I.R. could be which is
registered by the police itself on any information received or other than by
way of an informant [sec. 157(1)] and even this information has to be duly
recorded and the copy should be sent to the Magistrate forthwith. Lalita
Kumari v. Govt. of U.P., 2013 (4) RCR (Cri.) 979 (SC).
(xxv) Section 154–Photograph & CCTV footage–The opinion of the Central Forensic
Science Laboratory (CFSL) expert contained in the CFSL report
authenticates that there was no tampering or editing in both the exhibits and
that a bus having identical patterns as the one parked at Thyagraj Stadium is
seen in the CCTV footage, which includes the word “Yadav” written on one
side, “back side dent (left)” and absence of wheel cover on the front left side.
The contents of the report is also admitted to be true by its author. The High
Court, in order to satisfy itself, had got the CCTV footage played during the
hearing and found the same to be credit worthy and acceptable. Mukesh v.
State of (NCT of Delhi), AIR 2017 SC 2161.
F.I.R. When Written Report Received
According to Para 24.2 Punjab Police Rules, if a written report of a cognizable
offence is received at P.S. it shall be copied out in F.I.R. register and the original shall
be attached to the copy of F.I.R. The original be detached when a case is sent up for
trial and investigation is completed and will be attached with report
under section 173 Cr.P.C.
If an informant refuses to sign the F.I.R it is an offence under section 180 I.P.C.
and the officer-in-charge writing the report can file a complaint against the informant
under that section. The failure to sign it, however, will not make F.I.R. inadmissible in
evidence. Rattan Chand v. State, 1961 Cr.L.J. 461.
If a police officer refuses to enter a report made to him concerning the
commission of an offence and enters in the Diary a totally different and false report
from what was made to him he is guilty under section 177 I.P.C. (20 All 511). Thus for
insertion of anything false in the F.I.R. at his own instance, the police officer is liable
under section 177 and 218 of I.P.C.
If, however, what is dictated by informant proves to be false on investigation of the
case then the informant is liable to be prosecuted under section 182 or 211 I.P.C.
notwithstanding the fact of the statement of the informant was not on oath. It is never
recorded on oath. (See for details False F.I.R.).
After the completion of F.I.R. there should be another report by the officer-in-charge
in the Daily Diary to the following effect:—
S.N. Sub-Inspector Completion of F.I.R. No.–under section registered and completed on
the Writing F.I.R. 3 p.m. statement of Ram Singh. I, Sub-Inspector, busied
myself in investigation of the case. The articles if any, taken into
possession.
If he is already engaged in any other more important work than this, then he can
depute next senior officer and write the report that so and so officer was deputed. If any
thing is taken in possession at the time of writing F.I.R. then it should also be
mentioned in the Daily Diary and Karwai police underneath F.I.R. (Section 157 Cr.P.C.)
A Refusal to write F.I.R. is punishable departmentally for burking and legally
under section 217 I.P.C. An informant, aggrieved by the refusal of officer-in-charge to
register F.I.R. can send by post such information to the Superintendent of Police, who if
cognizable offence is made out from the writing, will either investigate himself or
depute a subordinate for investigation. (Section 154(3) Cr.P.C.)
Sometimes the nature of information imparted is such that an officer-in-charge of
P.S. has reason to suspect that the alleged offence has not been committed. He shall
then enter the substance of the information or intelligence in the Station Dairy. He shall
also record reasons for such a suspicion and shall also notify to the informant that he
will not investigate or cause the case to be investigated. (Punjab Police Rule 24.4,
Section 157 Cr.P.C.). This report in the Daily Diary can become F.I.R. and a case can be
registered on its basis if the supervising officer on perusal of the said report is of the
opinion that case should be investigated. The Daily Diary will be produced in Court later
on.
If F.I.R is not registered in the First instance and a report is only written in the Daily
Dairy, it is no excuse or ground on which the report which in fact really amounted to
F.I.R. should have been suppressed by the prosecution and not produced in Court.
Nanurain v. State, 1952 Cr.L.J. 1872 (Orissa).
Written report when discloses a cognizable offence, police holding a preliminary
enquiry cannot deny to register it as F.I.R. Tulsiram, 1993 Cr. L.J. 165 (MP).

Essentials of F.I.R.
First Information Report, or shortly F.I.R.; is as its name implies, the first report
containing information about the commission of a cognizable offence which starts the
Police on their investigation. It is a very important document in a Criminal case but it is
not referred to as such in the Criminal Procedure Code. The important characteristic
requirements of an F.I.R. are:
(a) That the information should be the first in point of time;
 (b) It should be an information definite and responsible and not merely rumor or
village gossip or hearsay of an indefinite variety;
(c) It must have been given to an officer-in-charge of a Police Station;
(d) It should relate to the commission of a cognizable offence;
(e) It should be the information which set the Police on their investigation in the
particular case;
(f) It should be given in writing or should be reduced to writing;
(g) It should have been read over to the person who made it and it should be signed
by such person;
(h) It should be entered in a book kept for the purpose.
An officer-in-charge in writing the F.I.R. should keep in view the fact that the record
made by him is truthful and according to the statement made by the informant. He
should avoid high flown language and technical words or his own impressions.
Ordinarily, it should be in the words of the complainant. F.I.R. should clearly and
distinctly make out a cognizable case. A police officer should remember Eleven W’s at
the time of writing F.I.R. Systematic and patient questioning by the police officer would
elicit relevant replies which should make an exhaustive self speaking F.I.R.
1st W:- What information have you come to convey?
The reply should be the crime which is to be reported.
2nd W:- In what capacity?
Write here whether as an eyewitness or hearsay.
3rd W:- Who...Who committed crime?
4th W:- Whom... against whom crime is committed?
5th W:-When? (Time)
6th W:-Where? (spot)
7th W:- Why? (Motive)
8th W:- Which Way?
Describe the actual occurrence, the part played by each accused and the weapons
etc. Modus operandi in burglary case should be very carefully noted.
9th W:- Witness or in whose presence.
10th W:- What was taken away by the accused e.g. any article etc.
11th W:- What traces were left by the accused, e.g. any article belonging to them,
foot marks, fingermarks and so on.

Importance of F.I.R.
First Information Report is the Bible of the case initiated on Police report. The
importance of the First Information Report cannot be under-estimated because it is the
first version coming to the knowledge of the Police and setting its machinery to motion.
It is for that reason that it has been provided under section 157 of the Code that the
First Information Report should be sent forthwith to the concerned Magistrate.
Provision of Law is to safeguard against any embellishment and concoction that may be
subsequently made in the First Information Report. The value of F.I.R. is that it is the
first report of an occurrence to the Police and as such it is entitled to the most careful
consideration by the courts of law. Its importance lies in the facts that it is presumed to
be an untutored, unplanned and thought out version of the incident just as it reaches
the Police.
If the information is given orally, it should be recorded in plain and simple language
as early as possible in the informer.s own words. Technical or legal expression, high
flown language or lengthy sentence should not be used. No oath should be administered
to the informant, but the statement should be read over to him and he should sign it or
affix his thumb-impression to it. The report should show that this has been done.
If it is received in writing, it should be signed by the complainant. The substance of
the report be entered in General Diary Register also.
A copy of the F.I.R. as recorded shall be given forthwith to the complainant free of
cost.
 The most common practice of sending away a complainant who wishes to make an
oral report to go and bring a written one should be strongly discouraged. The S.H.O.
must be made to fulfill his responsibility in this regard.
Each F.I.R. should bear a consecutive number in the order of it arrival at the Police
Station. This number runs for a year. Not more than four copies are prepared at a time
normally. If express F.I.R.s have to be prepared, required number of copies can be
prepared in Photostat process.
Great importance is attached to the F.I.R. by the courts for the following reasons:
(1) It is usually the information given immediately after the occurrence when
memory is fresh with no scope for fabrication on the part of the person giving it.
(2) There is also no chance for interested persons to interfere in the matter and
fabricate or concoct any stories.
(3) It is the first record of the case made immediately after the occurrence and
before the investigation starts.
(4) It indicates the version of the given case at the very outset, occurrence and the
material on which the investigation originally started. Chances of making
mistakes are less.

Description in F.I.R. of Culprits

An officer-in-charge should clearly and distinctly fix the identity of the criminal i.e.
the accused, the witnesses and animate or inanimate objects involved. A mistake or
doubtful identity will result in the failure of the case. There is no doubt that an
identification of a particular object or place depends mainly upon the faculty of human
observation and the power of description of an article. A person may feel a thing vividly
but may not be able to describe a thing. The observation is mostly based upon “small
minutiate” which it is very difficult to explain. There are also many other factors e.g.
visibility of a thing, duration of perception, the distance from where seen and the place
from where watched in order to determine the identity. So all these factors should be
kept in view describing the identity at the time of writing F.I.R.
It is very easy for a police officer to fix identity where the culprit is known one. But it
also requires a careful handling. Care should be taken to fully describe the man so that
if the informant is not available to dispose later e.g. in case of death of informant, when
F.I.R. would be admissible under section 32 (1) of the Indian Evidence Act, 1953 Cr.L.J.
1764 Lala Ram Surajmal v. State, there is no lacuna left to locate the man.
In a case reported in State v. Kanchan Singh and other, 1954 Cr.L.J. 264, the only
description of one Kanchan Singh accused given in dying declaration was that he was
resident of police station Kamasin. Parentage, caste or residence was not given.
Prosecution did not establish that there was no other Kanchan Singh in the area of that
police station. It was held that the description residence...within...police station
Kamasin was too slender to connect the accused with one meant by the deceased.
Even if the complainant is alive to depose about ‘A’ later in Court, when ‘A’ is not
fully described in F.I.R. then too a question arises if ‘A’ accused in dock was not
substituted for another. ‘A’ who was mentioned in F.I.R. a heavy duty casts upon the
investigator and the prosecutor then to establish that was the only ‘A’ meant by
informant and none else.
If the culprit is not known, then more care and vigilance is required to describe him
in F.I.R. It is unfortunate that complainant who is victim of Dacoity or Robbery or such
other crime, is expected to minutely observe the culprits and give their complete
description. Whatever description he picks up, is in the state of nervousness and
excitement. To overcome this, a police officer should pay more attention to the following
points which should be made out in F.I.R.–
(1) That the informant or another witness had not a hurried glimpse of the culprits
but had sufficient time and opportunity to fully observe the culprits.
(2) There was sufficient light to notice the colour, features, clothing, weapons of the
culprit, if the occurrence was in the dark hours of the night.
To make out a case for light, the reason should be natural and not faked one.
 (3) Any peculiarity about the accused in his features and built, and any prominence
displayed in commission of the crime; if the culprits and the witnesses were
involved in any talk, struggle etc. If no mention of peculiar mark in F.I.R. or in
statements of witness, later evidence in Court becomes doubtful. Kallu 1970
A.W.R. 23.
The description thus should be given as far as possible in detail if F.I.R., is
registered on the statement of any eye witness. Merely to mention that the culprits
were wearing Mundasas (muffled faces) is not sufficient. In such a case more reliance
could be placed on the subsequent identification as held in 18 Cr. L.J. 852. The Supreme
Court observed in Budhsen 1970 S.C. 1321 that it was unfortunate that Sub-Inspector
did not care for more information about the description of culprits by questioning the
informant.
Non-mention of the names of assailants in the F.I.R. is found to be caused by
threatening given by the accused and other villagers not to intermiddle in the matter–
Held the non-mention is not fatal to prosecution case. Prahlad AIR 1981 SC 1241.
The giving of description, however, depends upon the facts and circumstances of the
each case and to lay down a hard and fast rule is not advisable. In 1953
Cr. L.J. 159 (Ajm), Nand Kishore v. State, it was held “where the accused occupied only
a secondary role in the commission of an offence, the omission by the complainant who
identified the accused to give the full description in the F.I.R. does not render the
identification doubtful especially when the complainant had the full opportunity to see
the accused in broad day light and for a sufficient long time when the offence was
committed”. (See Chapter Identification also)
F.I.R. Omission in-Name of certain witness not mentioned in F.I.R. while name of
certain witness mentioned while recording details of incident on basis of oral complaint.
Informant rushing to police station for fear of life after having seen three murders
committed in ghastly manner claim of witness whose name is not mentioned, of having
seen occurrence can not be questioned–Disclosure of details of incident including names
of witness by informant in aforesaid circumstances, cannot be expected. Golla Jalla
Reddy and others v. State of A.P., 1996 Cr.L.J. 2470 SC.
F.I.R.–Name of the person not mentioned in F.I.R.–It is not necessary that the F.I.R.
must contain the name of an accused–The involvement of an accused can come to light
after the police record statements of witnesses and collect relevant materials. Rohtash
Kumar v. State of Haryana, 2013 Cri.L.J. 1518.
F.I.R.–Evidentiary value-Informant giving background of enmity between family of
deceased and family of one of accused–Further stating, that on fateful day at 5.00 p.m.
when his father, deceased and collies were in field, six accused persons came armed
with knives and spears and suddenly attacked his father–one of accused hacked
deceased with knife on head and another with spear on neck and then other accused
assaulted with knives and spears indiscriminately– This was followed by statement as to
manner of assault on informant by some of accused–Lastly he stated that certain eye
witness–witnessed the attack and certain other witness brought him to hospital.
Rejection of prosecution story on sole ground of absence of F.I.R of manner in which
accused actually assaulted deceased. Not proper as all material facts relating to
incident are there. Absence of names of certain accused-should also not have been
made one of grounds to discord testimony of witness. K.S. Bhaskara Reddy v. State of
A.P., 1998 Cr.L.J. 1628 SC.
Section 154–Murder–F.I.R lodged–Name of one of the accused not mentioned in
F.I.R, through informant knew his name and no reason for not mentioning the name in
F.I.R. given–Conviction of accused who was not named in F.I.R. set aside. Pardeep
Kumar v. State of Haryana, 2005 (3) RCR (Cri) 958.
Section 154–F.I.R.–Criminal trial–Names of witnesses did not appear in F.I.R–That
by itself cannot be a ground to doubt their evidence–There is no requirement of
mentioning the names of all witness in the F.I.R. State of M.P. v. Dharkole @ Govind
Singh, AIR 2005 SC 44.
Section 154–F.I.R.–When actual scribe not examined, it creates doubt about date
and time of lodging of the report–When F.I.R is doubtful then eye witness whose names
are mentioned in F.I.R cannot be relied upon. Gabbu v. State of M.P. 2004 Cr. L.J. 2001.
 Section 154–Murder case–Evidence of the person whose name did not figure in the
F.I.R as witness does not perforce become suspect–There can be no hard and fast rule
that the names of all witnesses more particularly eye-witnesses should be indicated in
the F.I.R. State of M.P. v. Man Singh, 2003 (3) Crimes 380 (SC).
Section 154–Murder–Accused not named in F.I.R–Merely because the accused was
not named in the First information report, though he was known to some of the
prosecution witnesses, no adverse inference can be drawn against the prosecution–
These can not be an inflexible rule that if a witness did not name an accused before the
police, his evidence identifying the accused for the First time in court cannot be relied
upon–In each case facts have to be examined. Dana Yadav v. State of Bihar AIR 2002 SC
3325.
Sections 154 and 173–Corruption case against public servant–Before registering
F.I.R, police officer can make preliminary enquiry to arrive at a conclusion that public
servant, prima facie committed the offence–Public servant is, however, not entitled to
opportunity of hearing at this stage. Prakash Singh Badal v. State of Punjab, 2004 (4)
RCR (Cri) 613.
Sections 154 and 173–Investigation–Recovery of counterfeit currency notes–The
Inspector of police who recovered the notes and arrested the accused himself
conducted the investigation–Accused acquitted inter alia on this ground–Police officer
who had registered the case should not normally investigate the case and it should be
investigated by some other officer for a fair and impartial investigation. S. Chandran v.
State, 2001 (3) RCR (Cri) 203 (Mad.)
Section 154–Murder–Police reached the spot within 15 minutes of commission of
offence–PW named the accused persons–Plea of accused that they were falsely
implicated due to enmity with PW repelled–There was hardly any scope for false or over
implication within a short time span of about half an hour. Mundrika Mahto v. State of
Bihar, AIR 2002 SC 2042.
Section 154–F.I.R lodged without delay–Statement of PW recorded within two hours–
Special report reached the Illaqa Magistrate without loss of time–If an F.I.R has been
lodged without any delay and special report has also been received by the Area
Magistrate with promptitude, it lends sufficient corroboration to the story of the
prosecution ruling out the possibility that a false story has been coined to the
disadvantage of the accused. State of Punjab v. Avtar Singh, 2002 (3) RCR (Cri) 822.
Section 154–Murder Case–F.I.R lodged immediately by son of deceased who was
perplexed to see condition of his father–He omitted to give names of 2/3 witnesses–No
ground to doubt prosecution evidence–Names of all the witness need not be mentioned
in the F.I.R and that by itself cannot be ground to doubt the prosecution evidence–
Merely because all minute details or the names were not mentioned in the F.I.R, the
F.I.R can not be rejected. Naushad v. State of Kerala, 2006 (2) RCR (Cri) 119.
Section 154–Death of victim after lodging F.I.R–It is to be treated as dying
declaration–Eye-witnesses account that deceased was in a condition to make dying
declaration–No reason to disbelieve on account of relationship. Babu Lal v. State of M.P.
2003 (4) Crime 405 (SC).
Section 154–Omission to mention name of the accused in F.I.R.–In this case, the
complainant who lodged the FIR did not suspect the involvement of the accused and not
named in the complaint. It was held that merely because of this reason that the
complainant did not suspect the accused would not mean that he could not be named
prepetrator of the crime. Therefore, non-mentioning of the name of appellant accused in
the F.I.R. was of no significance. Tara Singh v. State through Home Secretary,
Uttarakhand, 2014 Cr. L.J. 2014.
Section 154–Preliminary inquiry before registration of F.I.R.–It was held that if no
cognizable offence is made out in the information given, then the F.I.R. need not be
registered immediately and perhaps the police can conduct preliminary verification or
inquiry for the limited purpose of ascertaining as to whether a cognizable offence has
been committed. But if the information given clearly mentions the commission of a
cognizable offence, there is no other option but to register an F.I.R. forthwith. In cases,
where preliminary enquiry ends in closing the complaint, a copy of the entry of such
closure must be supplied to the first informant forthwith and not later than one week.
There are some illustrative cases in which preliminary inquiry may be made as under–
(a) Matrimonial disputes/family disputes (b) Commercial offence (c) Medical negligence
cases (d) Corruption cases (c) Cases where there is abnormal delay/laches in initiating
criminal prosecution, for example over three months delay in reporting the matter
without satisfactorily explaining the reasons for delay. Lalita Kumari v. Government of
U.P., AIR 2014 SC 187.

Description of Articles in F.I.R.

Similarly in cases, where description of articles is involved, the police officer should
write in F.I.R.:—
1. The complete description of the articles stolen:–If however, it is not possible
for the informant to describe loss, the reason for so doing as it is more often seen that
confusion created in a dacoity or so by the removal, destruction or scattering of
properties is such that it does take some time for the house owner to make the full list
of the properties removed. Under such circumstances, a non mention of a particular
stolen article in F.I.R. is by itself no ground for disbelieving the owner when he
subsequently states that it was gone. 1952 Cr. L.J. 986 (UP), Kartar Singh v. State of
U.P. (See List of stolen property also).
2. How it is possible for the informant to identify and who other person would be
able to pick it up.
(a) e.g. due to some special mark, or if purchased by him from someone; goldsmith
who prepared; washerman who washed and so on with their distinctive marks of
handicraft etc.
(b) if there was any other article left with complainant similar to one stolen.
3. If there was any documentary evidence about the thing stolen, there must be a
reference to it and where it would be available.
Thus the description of anything which is to be fixed up later should be clear and
definite and not vague. There should not be scope for substitution. The spot, the places
should be fully described. According to Para 24.1 Punjab Police Rules special attention
shall be paid to the following matters and the results of the enquiries shall be clearly
recorded in the F.I.R.–
1. The source from which the information has been obtained and the circumstances
under which the informant ascertained the names of the offenders and witnesses
(if any are mentioned).
2. Whether the informant was an eyewitness to the offence.
Object of F.I.R.
Before discussing the scope of omission of certain material facts in F.I.R. and the
effect of delay, it is necessary for a police officer to know the object of F.I.R. Its
principal object is only “to make a complaint to the police to set the criminal law into
motion. Its secondary, though equally important object is to obtain early information of
an alleged criminal activity, to record circumstances before there is time for such
circumstances to be forgotten or embellished”. It should not be treated as the last word
of the prosecution in the matter. The Magistrate and the Judges while considering
omissions in the F.I.R. should not derive inference from them like mathematical
formulas, but should try to appraise them and find out their true effect in the light of all
the circumstances of the case and the materials on record. Every effort should,
therefore, be made to collect all evidence irrespective of the fact whether it was omitted
in F.I.R. earlier. The Judicial value of the omission will depend upon various factors. In
case the information is lodged by one who receive information from another, a fact gets
omitted sometimes and the omission does not adversely affect as held in State of
Rajasthan v. Kartar Singh, 1975 SC 1305. An F.I.R. is, however, not an indispensable
requisite for the investigation of a crime. The investigation can be stated even without
one. 1945 P.C. 18 AIR 1964 SC 221, 1952 Cal. 511 and Apren Joseph 1973 SC 1 Para
11.
It was held in Podda Narayana 1975 SC 1252-1975 Cr.L.J. 1262, that it was neither
customary nor necessary to mention every minute detail in the report. The F.I.R. was
given soon after occurrence and contained names of accused, deceased and the motive
but not the overt acts of each of the accused.
 F.I.R.–Registration of–Writ petition for issuance of direction to State Govt. to
register case of corruption against Chief Minister and others–Dismissal on ground that
no case is made out–Change in Government–Request by it is Supdt. of police (Vigilance)
to conduct enquiry in said matter–During investigation vigilance coming across fresh
material indicating commission of offence–Registration of F.I.R against then Chief
Minister and others not barred. [Link] v. State of Kerala & others, 2000 Cr.L.J.
2278.
F.I.R.–Not free from falsity–Full reliance is not warranted. K.B. Reddy v. State of
A.P.–1999 Cr.L.J. 2368.
F.I.R.–Is a public document–Accused is entitled to certified copy of F.I.R. (1999
Cr.L.J. 2879).
F.I.R.–Is not an encyclopedia of events–Non-mentioning of minute details therein-
would not mean not existence of said facts. Dharmendra Singh v. State of U.P. 1998
Cr.L.J. 2064 (All) H.C.
F.I.R–Non-mentioning of details and meticulous particulars–No ground to reject the
case of prosecution. State of U.P. v. Nahar Singh (dead) and others, 1998 Cr.L.J. 2006
(SC).
Section 154–F.I.R is not an encyclopedia of the fact concerning the crime–Merely
because of minute detail of occurrence were not mentioned in the F.I.R., the same
cannot make the prosecution case doubtful –Stress must be on prompt lodging of F.I.R.
S. Sudershan Reddy v. State of A.P. 2006 (3) RCR (Cri) 764 (SC).
Section 154–Evidentiary value of F.I.R–F.I.R is not a substantive piece of evidence–
Contents of F.I.R can only be used for corroboration or contradiction of the evidence of
the informant in the court. Keshav M. Sangle v. State of Maharashtra, 2006 (3) RCR
(Cri) 659.
Section 154–F.I.R need not be encyclopedia of the events-It is not necessary that all
relevant and irrelevant facts in details should be stated therein. Bishna@ Bhirwadeb
Mahato v. State of W.B., AIR 2006 SC 302.
Section 154–Information lodged with police disclosing cognizable offence–Police
officer has statutory duty to register the F.I.R and then to proceed with investigation–
Police officer should firrst register the case and then proceed with investigation
whether complaint has genuine or not. Sushma v. State of Haryana, 2005 (4) RCR (Cri.)
788.
F.I.R.–While registering of F.I.R. is mandatory, arrest of the accused immediately on
registration of F.I.R. is not at all mandatory. Registration of F.I.R. under section 154 of
the Code and arrest of an accused person under section 41 are two entirely different
things. It is not correct to say that just because F.I.R. is registered, the accused person
can be arrested immediately. Lalita Kumari v. Govt. of U.P., 2013(4) RCR (Cri.) 979
(SC).
F.I.R.–Registration of F.I.R. is mandatory and also that it is to be recorded in the
F.I.R. book by giving a unique annual number to each F.I.R. to enable strict tracking of
each and every registered F.I.R. by the superior police officers as well as by the
Competent Court to which copies of each F.I.R. are required to sent. Further, police is
not liable to launch an investigation in every F.I.R. which is mandatorily registered on
receiving information relating to commission of a cognizable offence. Cr.P.C. gives
power to police to close a matter both before and after investigation. A police officer
can foreclose an F.I.R. before an investigation under section 157 Cr.P.C. if it appears to
him that there is no sufficient ground to investigate the same. Lalita Kumari v. Govt of
U.P. 2013(4) RCR (Cri.) 979 (SC).
Section 154–Object of Registration of F.I.R.–The object sought to be achieved by
registering the earliest information as F.I.R. is inter alia two fold: one, that the criminal
process is set into motion and is well documented from the very start; and second, that
the earliest information received in relation to the commission of a cognizable offence is
recorded so that there cannot be any embellishment etc. later. Under the code, actions
of the police etc., are provided to be written and documented. The underpinnings of
compulsory registration of F.I.R. is not only to ensure transparency in the criminal
justice delivery system but also to ensure judicial oversight. Lalita Kumari v.
Government of U.P., AIR 2014 SC 187.
 Section 154 & 173(8)–F.I.R.–In the instant case, it was clear that offence of
abduction was committed by the accused. Subsequently offence of murder was
committed. It clearly indicates that these were two different and distinct offences. There
is no question of further investigation to be made in the crime of abduction by the
investigating agency relating to the offence of murder which was committed during the
subsistence of the investigation relating to abduction. Fresh offence cannot be
investigate as a part of pending case. Patter Ranjan v. State of Tamil Nadu, 2019 (3) Cr.
L.J. 2349 (SC).
Blind F.I.R.
In view of above discussion, sometimes a blind F.I.R. is intentionally given by a
police officer to avoid details of occurrence, names of accused and names of witnesses.
The giving of blind F.I.R is not desirable nor it was intended by law. Therefore every
case will have to be judged in the light of circumstances available at the pointed time,
how the patches were joined in the F.l.R.
In Inderjit 1986 Cr.L.J. 966, an F.I.R. recorded by Duty Constable in Hospital whose
duty was only to convey information about admission of persons with stab wounds to
police post was not deemed to be blind. F.I.R. though no assailants were mentioned
therein since there was no evidence if any relative accompanied injured, met or
conversed with duty constable. No adverse deduction from omission could be drawn.
1. Delay in lodging F.I.R. is ordinarily fatal. It presumes that the informant had
been taking time to involve his personal enemies or consulting his friends to hook up
false evidence or procuring false witnesses to support him and manufacturing some
plausible accusation against the accused. The longer the delay, the stronger is the
suspicion that the case is false wholly or in material particulars. It is, therefore,
essential that delay, should be satisfactorily explained in the F.I.R. as the delay is not
always the only ground for rejection of evidence. It is only a circumstance which puts
the Court on its guard (1983 Lah. 714). Supreme Court held in Apren Joseph Supra, no
duration of time in the abstract can be fixed as reasonable for giving information of a
crime to the police, the question of reasonable time being a matter for determination by
the Court in each case. The effect of delay in doing so in the light of the plausibility of
the explanation forthcoming for such delay according must a fall for consideration on all
the facts and circumstances of a given case.
F.I.R.– Delay in lodging–Informants were friends of deceased–F.I.R. not lodged
though they were at police station for 1½ hours- Held their conduct was highly
unnatural and intorable and was sufficient to hold that they did not see the incident.
Ashraf Hussain Shah v. State of Maharashtra, 1996 Cr.L.J. 3147.
F.I.R.–Murder case– F.I.R. lodged 7 hours after incident–Investigating Officer
recording it after obtaining opinion of doctor that injured witness was fit to make
statement–Special report handed over to Magistrate at place 10 kms away from place of
occurrence–No delay in lodging F.I.R. Mangal Singh & Others v. State of Punjab, 1996
Cr. L.J. 3258 (P&H).
F.I.R.–Delay in lodging–Accused persons causing injuries and committing murder at
about 10 a.m.–F.I.R. lodged at 6.07 p.m.–Distance of police station from place of
incident was 4 miles–Atmosphere of fear created by accused pursons while they kept
guard for hours after commission of said crime to ensure none could dare to go to lodge
F.I.R–Informant somehow managed to come out of his hiding in evening to reach police
station–Considering these circumstances. Delay in lodging. F.I.R.–Held, well explained
and not affecting prosecution case. Sita & Others v. State of U.P, 2000 Cr. L.J. 2818
(All).
F.I.R.–Delay–Explanation–Multiple Murders–Incidents took place in the evening–
Assistants keeping watch throughout the right on road to police station–Left the place at
5 a.m.–Distance from scene of occurrence to police station can be covered in about two
hours–F.I.R lodged at 7 a.m.–Delay cannot be said to be unexplained especially when
person lodging F.I.R. was not cross examined. State of U.P v. Nahar Singh (dead) and
Others, 1998 Cr. L.J. 2006 (SC).
F.I.R.–Delay in lodging with Magistrate- should not be viewed with unrealistic angle-
Delay of four hours–F.I.R could not be labelled as looked up. Harpal Singh v. Devinder
Singh, 1997 Cr.L.J. 356 (SC).
F.I.R.–Delay–Concerned persons making efforts to save life of victim who was
seriously injured–Resultant delay in recording Pedantic view is to be avoided. Harpal
Singh v. Devinder Singh, 1997 Cr. L.J. 2561 (SC).
F.I.R.–Delay in lodging–Witnesses, one of whom was father of injured, stating that
they were busy in attending to the injured whose condition was critical and arranging
blood for him as operation on injured lasted about five hours–Victim dying after
operation–Accused closely related to witnesses–Delay in lodging first information report
due to such reasons–Ground of delay in lodging F.I.R. Sanjeev Kumar v. State of Punjab,
1997 Cr. L.J. 3178 (SC).
Delay in lodging of First Information Report although by itself may not be a ground
to disbelieve the entire prosecution case, but each case must be judged on its own facts.
Gowri Shankara Swamigalu v. State of Karanataka & Anr, 2008(2) Crimes 81 (SC).
Delay in lodging the F.I.R, more often than not, results in embellishment and
exaggeration, which is a creature of an after thought. In this case, F.I.R was lodged by
the complainant more than one month after the alleged incident of forcible poisoning.
Court said a delayed report not only gets benefit of the advantage of spontaneity, the
danger of the introduction of coloured version, exaggerated account of the incident or a
concoted story as a result of deliberations and consultations, also creeps in, casting a
serious doubt on its veracity. State of AP v. M Madhusudhan Rao, 2008 (4) Crimes 350
(SC).

Effect of Delay
The receipt and recording of information report by the police is not a condition
precedent to the setting in motion of a criminal investigation. Nor does the statute
provide that such information report can only be made by an eyewitness. F.I.R. is not
even considered a substantive piece of evidence. It can only be used to corroborate or
contradict the informant’s evidence in Court. But this information when recorded is the
basis of the case set up by the informant. It is very useful if recorded before there is
time and opportunity to embellish or before the informant, before the informant’s
memory fades. Undue or unreasonable delay in lodging the F.I.R., therefore, inevitably
gives rise to suspicion which puts the Court on guard to look for the possible motive and
explanation for the delay and consider its effect on the trustworthiness or otherwise of
the prosecution version. No duration of time in the abstract can be fixed as reasonable
for giving information of a crime to the police, the question of reasonable time being a
matter for determination by the Court in each case. More delay in lodging the F.I.R.
with the police is therefore, not necessarily, as matter of law, fatal to the prosecution.
The effect of delay in doing so in the light of the plausibility of the explanation
forthcoming for such delay according must fall consideration on all the facts and
circumstances of a given case. AIR 1973 S.C. 1, 1973 Cr.L.J. 185 Apren Joseph v. State
of Kerala.
Whether the delay is so long as to throw a cloud of suspicion on the seeds of the
prosecution case must depend upon a variety of factors. Even a long delay can be
condoned if the witnesses have no motive for implicating the accused. On the other
hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of
the version of the prosecution AIR 1974 SC 606; 1974 Cr.L.J. 479, Ram Jag and Others.
F.I.R.–Offence taking place at 7 p.m.–Informant who was also on hit list alongwith
deceased immediately bringing police to place of occurrence then taking deceased to
hospital- Death of deceased in hospital at 7.55 p.m.–Informant then going to police
station and lodging report at 8.00 p.m.–Held, there was no delay in filing F.I.R. Sheelam
Ramesh and Others v. State of A.P., 2000, Cr.L.J. 51.
F.I.R.–Delay–Mere delay in lodging the F.I.R. is itself no ground for discarding the
prosecution case–Matter has to be looked into in the background of totality of the facts,
circumstances and evidence on record. Ranjit Das v. State of W.B., 2000 Cr.L.J. 1241.
It is true that witnesses cannot be called upon to explain every hour’s delay in filing
information and common sense view has to be taken in ascertaining whether the F.I.R.
was lodged after an undue delay so as to afford enough scope for manipulating
evidence. Ram Jag and others v. State of UP, AIR 1974 SC 606.
Section 154–Murder–Delay in lodging F.I.R.–Delay by itself is not a circumstance,
that could ensure to the benefit an accused–It is only unexplained and unwarranted
delay coupled with the likelihood of tailoring the evidence to suit the prosecution case–
Delay of six days caused by doctors who treated the deceased–Delay not fatal. Kesar
Singh v. State of Haryana, 2006 (2) RCR (Cri.) 745.
Section 154–Delay in lodging F.I.R–Case of the prosecution cannot be thrown out
simply on the ground that there is a delay in lodging the F.I.R but it puts the court on its
guard to look for the possible motive and explanation for the delay and consider its
effect on the truthfulness of the prosecution witnesses. Sanjay v. State of Haryana, 2005
(2) RCR (Cri) 561.
Section 154–Effect of delay in lodging FIR–If there is delay in lodging in FIR and that
delay in registering the FIR has been explained properly and jugment of conviction of
accused person cannot fail only for that reason; Dhanpal v. State NCT of Delhi, AIr 2020
SC 2002 : (2020) 5 SCC 705: 2020 Cr.L.J. 2322.
Section 154–Murder–Delay in lodging F.I.R–Delay ipso facto is not fatal to the case
of the prosecution–It is fatal when the prosecution introduces a false witness, who has
not witnessed the occurrence and involves an innocent person as an accused. Sukhchain
Singh v. State of Punjab, 2005 (2) RCR (Cri) 442.
Sections 154 and 482–F.I.R–Delay in registering F.I.R by police–Criminal offence–
Prosecution version that complaint was lodged with police same day of incident, but it
was entered in General Diary at first instance and F.I.R was registered after about 26
days–General Diary not produced–Delay in filing F.I.R is fatal. Subramani v. State, 2001
(1) Crimes 430 (Mad.)
Sections 154 and 157–Criminal offence–Consequence of delayed filing of F.I.R–Held–
(i) Object of insisting upon prompt lodging of the report to the police in respect of
commission of an offence is to obtain early information regarding the
circumstances in which the crime was committed, the names of the actual
culprits and the part played by them as well as the names of eye-witness
present at the scene of occurrence.
(ii) Delay in lodging the F.I.R quite often results in embellishment which is a
creature of after thought. On account of delay, the report not only get benefit of
the advantage of spontaneity, danger creeps in of the introduction of coloured
version, exaggerated account or concocted story as a result of deliberation and
consultation.
(iii) It is, therefore, essential that the delay in lodging the F.I.R should be
satisfactorily explained. Rajeevan v. State of Kerala, AIR 2003 SC 1813.
Section 154–Delay in lodging F.I.R.–Court has to look at the reason of delay–There
can be too many reasons–
(i) Rural people might be ignorant of the need for informing the police of a crime
without any lapse of time and it is also not too uncommon among urban people
also.
(ii) Lack of adequate transport facilities for the informers to reach the police
station.
(iii) Kith and kins of deceased might take some appreciable time to regain a certain
level of tranquillity of mind or sedativeness of temper for moving to the police
station.
(iv) Persons who are supposed to give such information themselves could be so
physically impaired that the police had to reach them on getting some nebulous
information about the incident.
(v) There can be no exhaustive catalogue of instances which could cause delay in
lodging the F.I.R. Ravinder Kumar v. State of Punjab, AIR 2001 SC
3570.
Section 154–Rape–Delay in lodging F.I.R–Delay in lodging the F.I.R cannot be used
as a ritualistic formula for doubting the prosecution case and discarding the same solely
on the ground of delay in lodging the F.I.R–Delay has the effect of putting the court in
its guard to search if any explanation has been offered for the delay, and if offered,
whether it is satisfactory or not–If the prosecution fails, to satisfactorily explain the
delay and there is possibility of embellishment in prosecution version on account of such
delay, the delay would be fatal to the prosecution–However, if the delay is explained to
the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and
discarding the entire prosecution case. State of H.P. v. Gian Chand, AIR 2001 SC 2075.
Section 154–Murder–Mere delay in lodging F.I.R. is not fatal–F.I.R cannot but to
termed to be the starting point and thus sets in motion of a criminal investigation.
Munshi Prasad v. State of Bihar AIR 2001 SC 3031.
 Section 154–Murder–Delay in lodging F.I.R as it was first anxiety of family to take
the injured to hospital for treatment–Secondly, there was compromise talk which failed
as condition of the victim was serious–Delay properly explained. Gurmit Singh v. State
of Punjab, AIR 2001 SC 2977.
Section 154–IPC Section 302–Delay in lodging F.I.R as victim was taken to hospital–
This is natural conduct–No adverse inference can be drawn against prosecution. Ashok
Kumar Panday v. State of Delhi, AIR 2002 SC 1468.
Section 154–F.I.R–Complaint lodged by petitioner against police regarding custodial
violence–Refusal to register complaint–It is serious violation of duties of police under
section 154 Cr. P.C. –It will also raise a presumption against bona fide of police. M.
Latchumanan v. UT of Pondicherry, 2005 Cr.L.J. 1691.
Section 154–Complaint lodged 8 days after death–Complainant was illiterate but
complaint contained all ingredients of offence even the sections of offence–Held, it was
well thought of and deliberate document–Not safe to rely. Baljeet Singh v. State of
Haryana, AIR 2004 SC 1714.
Sections 154 and 190–Police case and complaint case–Law does not prohibit or
prevent an informant in a police case to lodge a complaint on reasonable circumstances.
Santosh Kr. Biswal v. Sahadev Malik, AIR 2002 SC 182.
Section 154 (3)–F.I.R–Complaint lodged with police–Police whether can make an
enquiry before registering the case–Where the information recorded in the complaint is
uncertain, indistinct and not clearly expressed which creates a doubt as to whether the
information laid before the incharge of the police station discloses commission of a
cognizable offence therefrom, some enquiry should proceed before the registration of
an F.I.R. Satish Kr. Goel v. State, 2000 Cr. L.J. 2176 (Delhi).
Section 154–IPC Section 302–F.I.R–Report lodged with police by complainant that
her husband was murdered by four accused persons–No F.I.R registered–According to
police, enquiry was conducted which showed that deceased died of accident and
complaint was false–Police directed to register F.I.R–Contention of police cannot be
accepted–When allegations in the report show prima facie the commission of cognizable
offence, the police cannot be heard to say that they have enquired into matter and found
it to be false, and, therefore, the F.I.R was not registered–This is against the provision
of section 154 Cr.P.C. Gurmej Kaur v. State of Punjab, 2002 (1) RCR (Cri) 385).
F.I.R.–Delay in lodging the F.I.R.–Murder of 5 persons had been done in gruesome
manner at about mid night–No one dare to go to police station to lodge report–Report
lodged with police next morning–Delay plausibly explained and deserved acceptation.
Kanhaiya Lal v. State of Rajasthan, AIR 2013 SC 1940.
F.I.R.–Delay of 3 days in sending copy of F.I.R. to Magistrate–I.O. was not
questioned at all about the reason for delay–Also not shown that it caused any prejudice
to accused– Held, it will not vitiate the proceedings. Manga @ Man Singh v. State of
Uttarakhand, 2013(7) SCC 629.
F.I.R.–Mere delay in sending the First Information Report to a Magistrate cannot be
a ground to throw out prosecution case if the evidence adduced is otherwise found
credible and trustworthy. Gulram Mandal v. State of West Bengal, 2013(3) Cri. CC 191.
Section 154–Delay in filing F.I.R.–The informant father had mainly disclosed in the
FIR that his daughter aged 18 yrs had gone in search of her parents, was found dead in
the agricultural field and some person has incised her neck. Neither any accused was
named nor there was any infirmity. The incident was noticed by the informant father
after 4.00 pm and the written submission was done at 6.10 pm on the same day at
police station, about 7 km from the village. Looking the gravity of the offence and shock
of the family members of the deceased, no delay in reporting the matter to the police.
Lalit Kumar Yadav@Kuri. v. State of U.P., (2014) 11 SCC 129.
Section 154–Delay in lodging F.I.R.–The impact of the crime on the relations who are
eye witnesses, the shock and panic which would rule supreme at the relevant time and
other ancillary aspects are also to be kept in mind while looking the delay in lodging the
F.I.R. The word “earliest” cannot be put in the compartment of absolute precision. Om
Prakash v. State of Haryana, AIR 2014 Cr. L.J. 2567.
 Section 154–Delay in F.I.R.–Accused had committed rape with a married lady when
the husband of the victim was not in the village. He had returned on the following
evening of the incident. Further, the incident was occurred late in the night and there
was no elder person of the family present to go to the police station and lodge the
complaint regarding the incident. Hence, it was natural for the victim to wait for
husband to return. Moreover, the distance of the police station from the police of
residence was far away. Therefore, the accused could not get the benefit of delay in
filing the complaint. Mukesh v. State of Chhatisgarh, 2014 Cr. L.J. 4900.
Section 154–Delay in F.I.R.–In the instant case all the family members were killed
except her son who was away from the village. A seventy years old rural woman was
alive and present in the home. Held, that it cannot be accepted from a mother of
seventy years old rural woman to leave the dead bodies of family members at the spot
and go to the police station which is 10 km. away from place of occurrence to lodge a
complaint. Delay in registration of F.I.R. had been properly explained. State of M.P. v.
Chhaakki Lal, 2019 Cr. L.J. 1523 (SC).
Delay Fatal
‘F.I.R.’ in a criminal case is an extremely vital and valuable piece of evidence for the
purpose of corroborating the oral evidence adduced at the trial... on account of delay,
the report not only gets benefit of the advantages of spontaneity; danger also creeps in
of the introduction of coloured version, exaggerated account of concocted story as a
result of deliberation and confabulations. It is therefore, essential that the delay in
lodging of F.I.R. should be satisfactorily explained.
When an occurrence is not reported for more than 20 hours after the occurrence
even though the police station is only two miles from the place of occurrence, it is
unsafe to base conviction upon this evidence. 1972 Cr.L.J. 1296 (SC); Thulia Kali-1973
SC 591.
Occurrence at 6 p.m.–Statement in Hospital at 2.15 p.m.–In ordinate delay in F.I.R.–
Attempt to shift place of occurrence.–[Link]. interested conviction not upheld. 1973
C.A.R. 393, State of Punjab v. Sucha Singh.

Delay Explained
A delay of 12 hours of filing F.I.R. though an important circumstances is not of
consequence when the delay has been reasonably explained and there is nothing in the
evidence to indicate that the names of accused were incorporated in F.I.R. as a result of
confabulation (Road rough, night dark and assault brutal cannot collect his wits) AIR
1974 S.C. 2118; 1974 Cr.L.J. 1393.
F.I.R. lodged at a different police station despatched to police station having
jurisdiction. Reaching there late–Held delay was inevitable. 1973 C.A.R. 67.
Delay in lodging the F.I.R, if property explained, is not fatal to prosecution.
Bhagaloo Lodh v. State of AP., 2011(3) Crimes 10 (SC), Om Prakash v. State of Haryana
2011(4) Crimes 64 (SC).
F.I.R.–Delay in filing–Murder–Rushing to hospital to save victim’s life instead of first
going to police station is satisfactory explanation for delay in filing F.I.R. Raghbir Singh
v. State of Haryana, 2000 Cr.L.J. 2463 (SC).
Section 154–IPC Section 376–Rape–Report lodged with police after 4 days after
panchayat failed to give redress to prosecutrix–It is satisfactory explanation of delay.
Akhtar v. State of Haryana, 2002 Cr.L.J. 1844 (SC).
Section 154–Rape on poor Harijan girl by 6 accused persons–Accused threatened to
kill her if she disclosed–Victim kept mum out of fear–Matter came to notice of police
after four months due to loose of talk of accused persons–Held, delay properly
explained. Mekala Raji Reddy v. State of A.P., 2002 Cr.L.J. 3407.
Section 154–Delay in lodging F.I.R–There is no hard and fast rule that any delay in
lodging the F.I.R would automatically render the prosecution case doubtful–It
necessarily depends upon facts and circumstances of each case whether there has been
any such delay in lodging the F.I.R which may cast doubt about the veracity of the
prosecution case and for this a host of circumstances like the condition of the first
information, the nature of injuries sustained, the number of victims, the efforts made to
provide medical aid to them, the distance of the hospital and the police station etc. have
to be taken into consideration. Amar Singh v. Balvinder Singh, AIR 2003 SC 1164.
Section 154–Rape of a minor girl–Delay of 18 days in lodging F.I.R–Prosecutrix
belonged to conservative society of rural area–Father of prosecutrix was seriously ill–
Members did not want to create tension in his mind–No other person informed due to
shame of sexual assault and to avoid publicity–Held, it was satisfactory explanation of
delay. State of Punjab v. Ramdev Singh, AIR 2004 SC 1290.
Section 154–IPC Section 376–Rape on a married woman–Prosecutrix waited for her
husband for two days–Cannot be said that false report was lodged–A married women in
India would not do anything without informing her husband–Reluctance to go to the
police is because of society’s attitude towards such woman–It casts doubt and shame
upon her rather than comfort and sympathy with her–Therefore, the delay in lodging
complaint in such cases does not necessarily indicate that her version is false. Sri
Narayan Saha v. State of Tripura, 2004 (4) Crimes 50 (SC).
 Section 154–Rape–Delay of 3 days in lodging F.I.R–Prosecutrix a child of 10 yrs.–She
was threatened with dire consequences–Her mother noticed blood on her clothes after 3
days and report lodged to police–Benefit of delay cannot be given to accused–In such
like matters, where honour of entire family is at stake, family members will take some
time to deliberate and it requires a lot of courage to report the matter to the police–
Delay is natural in such like cases. Rajbir @ Fauji v. State of Haryana, 2004 (4) RCR
(Cri) 436.
To explain delay, there should, however, be a reasonable explanation.
Occurrence at 9 p.m., F.I.R. at 4 a.m., Received by Illaqa Magistrate 9 a.m., Explanation
for delay-Usual story of a punctured cycle. F.I.R. held lodged after investigation.
Harchand Singh v. State of Punjab, 1973 Recent Laws 35.
It is now admitted that the earliest or the First information of the occurrence is
highly useful for purposes of corroboration or contradiction. The promptness in lodging
report justifies the inference in the circumstances of the case that the report was not a
concocted story, 1971 S.C.C. (Cr.) 592 (Tara Chand)–Importance of an F.I.R. made
promptly cannot be minimised Nanhey 1973 S.C.C. (Cr.) 266–Where soon after
occurrence F.I.R. is lodged, it is difficult to believe that false story was cooked up. Bhag
Singh 1971 Cr.L.J. 903. Prompt lodging of F.I.R. eliminates the chances of fabricating a
false story and introduction of false witnesses. In State of Punjab v. Ramji Dass 1977
Cr.L.J. 705 (SC). F.I.R. within 10 minutes of occurrence containing necessary details-
names of accused-held reliable. See also Darghai 1973 SC 2695. The version would
appear to be tainted one if it is delayed. If there is a plausible and satisfactory
explanation of the delay then an adverse presumption to its truthfulness will not be
drawn.
In Prithichand, AIR 1989 SC 702, Rape on a minor girl resulting in her experiencing
great pain and profuse bleeding from Vegina–Girl narrating incident to mother and
other neighbouring ladies. Woman folk deciding to wait for return of father of victim–
Father returned and contacted Sarpanch who advised going to police station next
morning–F.I.R. lodged next morning–Held delay properly explained, no adverse
inference to be drawn.
It was held in Gurdev Singh 1963 P.L.R. 409 that due to delay in recording F.I.R.
“not only gets benefit of its spontaneity but danger also creeps in introduction of
coloured version, thought out stories and twists to actual facts. The interested parties
can be sounded and some of them shown as false witnesses. Likewise some innocent
persons can be roped in and named as culprits.” As held by Supreme Court in Thulia
Kali 1973 S.C. 501-1972 Cr. L.J. 1296, that it is, therefore essential that delay should be
satisfactorily explained, (delay of 20 hours-place of occurrence only 2 miles- was held
not be safe for conviction).
In Kanhaiya Lal, AIR 1989 SC 1515 in murder–All the inmates of the house of victim
going to hospital in bullock-cart–Medical officer not being found go to another hospital
in bullockcart, then lodges F.I.R.–Held, delay stands satisfactorily explained.
In Kunjan Nadar, 1990 Cr. L.J. (NOC) 6 (Ker.). The wife and two sons of the
deceased were the only inmates of the house of the deceased, and the relations of the
victim who reached the place of occurrence late and informed one who lodged F.I.R.,
the delay in lodging F.I.R. stands sufficiently explained.
The following cases will be of interest in this respect:
(a) 1953 Cr.L.J. 1465 (S.C.) Dalip Singh v. State of Punjab, Information after 6½
hours in lodging F.I.R. at a police station which was 12 miles from the spot in
case of murder was held to be prompt. The explanation being that informant’s
first thoughts were to attend to victims and also that distance was covered
partly on foot and partly in lorry.
(b) 1942B 71 (F.B.) Delay of two days in the case of a report of rape by the father
of the girl who had recently come to Bombay was held not to be damaging as
such delay “was not remarkable in the case of illiterate persons with no money
and friends in Bombay”.
(c) Delay of 3 days in a case of kidnapping was held not to be justified in rejecting
prosecution evidence as fathers are generally reluctant to report matter to
police. 1969 Cr.L.J. 1282.
 (d) Delay of 10 days in a case of rape was held to be reasonable by Supreme Court
in Harpal Singh 1981 Cr.L.J., as honour of family was involved and its members
had to decide whether to take the matter to Court or not.
(e) The informant was made to wait at police station till the coming of a particular
police officer to register the F.I.R.–Held, delay stands explained. Thakore Dolgi,
1992 Cr.L.J. 3959 (SC).
The explanation of delay as time spent in search of a lambardar (delay 4 hours) in 5
Cr.L.J. 547; injured taken to Hospital first, 1928 Lah. 17 (delay of 18 hours), delay of a
few hours in 1936 Pesh 109, of 12 hours in 1974 S.C. 2118 (Road rough, night dark,
assault brutal), delay of 5 hours in Dalbir Kaur 1977 S.C. 472 due to threats of and
shutting in house and starting at 6 a.m. informant being woman; delay of 10½ hours in
Sone Lall 1978 S.C. 1142 when occurrence at midnight and the accused so desperate
that they took away dead bodies of two sons and abducted third were held to be
satisfactory.
Delay of two days in 1936 All 747 of 15 hours in 1929 Lah. 496, of 30 hours in 1930
Cal. of 95 hours in 27 P.L.R. 22, of 5 hours in 1975 C.A.R. 264 (S.C.) Ram Narain was
held to be fatal when there was no satisfactory explanation.
See remarks of Hon. J. Chakravarti in Dhirander Nath v. State 1952 Cal. 621
“Where, however, F.I.R. besides being lodged by a person who had not seen the
occurrence at all was lodged about 18 hours after the occurrence, the merit of its being
a very early account of the incident and thus of being presumably authentic cannot be,
therefore, claimed for it to be the same extent as in ordinary cases.”
Murder at night–Police station 10 miles away–Lodging of F.I.R. within eight hours is
not delayed F.I.R.–Lakhinder Singh 1992 Cr.L.J. 3958 (SC).
F.I.R.–Delay in filing–Not always fatal–Delay of 11 days in case of riots taking place
on account of assassination of Prime Minister Indira Gandhi–Said delay in filing F.I.R.
justified as there was complete chaos and breakdown of law and order. 1974 Cr.L.J.
1393 (SC) and 1976 Cr.L.J. 1888 (SC) applied. Raj Bahadur alias Denny v. State 1996
Cr.L.J. 2364.
Section 154–Explanation for delay in lodging F.I.R.–In the instant case, the
prosecution had satisfactorily explained the delay in lodging the complaint, hence, the
prosecution case cannot be doubted on the small delay between the time of occurrence
and in registration of the F.I.R. Gajanan Dashrath Kharate v. State of Maharashtra,
2016 Cr. L.J. 1908.

Prompt F.I.R not Guarantee of Truth

It is true that the importance of a F.I.R. made promptly cannot be minimized. The
mere facts that it was immediately made after the incident cannot rule out any
embellishments in the version about the incident even by the prosecution. They could
certainly have quickly through out what version to give. 1971 S.C. 1891; 1971 Cr. L.J.
1411 Tara Chand.
Neatly written and detailed F.I.R. alleged to have been written within an hour of
murder held makes doubtful such fact of early reporting. Mere delay in lodging F.I.R. is
not enough for discarding the evidence of eyewitnesses, and all that is required is that
the testimony of eyewitness should be more carefully scrutinized. 1970 Cr. L.J. 272
Dhanna Singh, 1975 SCC 530 Datar Singh v. State of Punjab.
Delay-Lodging of F.I.R. is detrimental to prosecution but converse is not true. Mere
prompt lodging of an F.I.R. by itself would not necessarily lead to the inference that it is
true other attending circumstances must also be taken into account. Ram Singh, 1989
Cr. L.J. (NOC) 206 (MP).
Mere non-mention of name of witness does not render the prosecution version
fragile. There can be no hard and fast rule that names of witnesses, more particularly,
eye witnesses should be indicated in the F.I.R. [Link] & Others v. State of AP, 2008
(3) Crimes 325 (SC).
Lodging of a F.I.R. is necessary for setting the criminal law in motion. It can be
lodged by anybody. But it should not be too sketchy so as to make initiation of
investigation impossible. However, the F.I.R is lodged by a person who claims himself to
be aware of not only the commission of the offence, the name of the deceased and of
least one of the accused who had committed the same. Ramesh B. Devaskar & Others v.
State of Maharashtra, 2007(4) Crimes 140 (SC).
Once a criminal case is set in motion by lodging an information in regard to the
commission of the offence in terms of sec. 154 Cr.P.C. it may not always be held to be
imperative that all the accused persons must be named in the F.I.R is not an
[Link] of Maharashtra v. Mohd. Sajid Hussain etc., 2007 (4) Crimes 206
(SC).
When F.I.R. was lodged almost immediately after the occurrence had taken place by
a person who had no enmity/animosity with the accused clearly shows that he had not
been falsely implicted. Onkar Lal v. State of MP, 2009 (2) Crimes 410 (SC).
In order to determine whether the F.I.R was lodged at the time it is alleged to have
been recorded, the courts normally look for certain external checks. One of the checks
is the receipt of the copy of the F.I.R, called a special report, by the Illaqa Magistrate.
The second external check equally important is the sending of the copy of F.I.R
alongwith the dead body and its reference in the inquest report. In the present case, the
sequence of events clearly reveals that there was any unexplained and unreasonable
delay in lodging the F.I.R. Hence, it can not be said that the F.I.R was ante-timed and
brought into existence after some deliberatious. Paramjit Singh v. State of Punjab, 2007
(4) Crimes 302 (SC).
Although the officer-in-charge of a police station, is legally bound to register F.I.R in
terms of section 154 Cr.P.C., if the allegations made by them gives rise to an offence
which can be investigated without obtaining any permission from the Magistrate
concerned. However, it does not take away the right of the competent officer to make a
preliminary enquiry in a given case, in order to find out as to whether the first
information sought to be lodged had any substance or not. In this case, Superintendent
of Police himself has investigated into the matter and visited the spot and found that the
complaint was false and the same had been filed with an ulterior motive to later illegal
possession of the first floor of the house. It was held by the Court that police cannot be
directed to register F.I.R. Rajender Singh Katoch v. Chandigarh Admn., 2007 (4) Crimes
153 (SC).
Promptness in lodging the F.I.R. shows that there was no time for manipulation.
Prompt and early reporting of the occurrence by the informant with all its vivid details
gives an assurance regarding truth of its version. The allegations cannot be made that it
was after thought or having colourable version of the incidents. Rakesh v. State of MP,
2011(4) Crimes 193 (SC).
It is settled rule that there can be no second F.I.R. in respect of the same
offence/event. If the subsequent information is consequence of the first event, the same
can be incorporated in the first F.I.R. Chirra Shivraj v. State of AP, 2011(1) Crimes 92
(SC).
Section 154–Second F.I.R.–Ante-timed document–In the instant case, the informant
deposed that he was earlier informed by the police that accused who was his son-in-law
had lodged a confessional F.I.R. of having committed murder of his wife and his
daughter. He was a witness to inquest proceedings of both the victims. The informant
specifically deposed that he crossed the nearest police station but instead of lodging the
F.I.R. at nearest police station, he lodged it at a police station which did not even having
jurisdiction. The material facts and even the motive was not mentioned in the F.I.R. It
was held that the second F.I.R. was an outcome of manipulation, deliberation
connection and was ante timed document. Nangu Singh v. Dharmender with State of
U.P., 2016 Cr. L.J. 785.

Prompt F.I.R.
(1) A prompt F.I.R. largely eliminates the chances of embellishments in the
prosecution story and of false implication of accused persons.
(2) Criminal courts attach great importance to the lodging of a prompt F.I.R.
because the same greatly diminishes the chances of false implication of accused persons
as well as that of the informant being tutored.
The prompt and early reporting of the occurrence to the Police with all required
details gives an impression regarding truth of the prosecution version.
 Occurrence was at 7 p.m.; F.I.R. lodged at 10.00 p.m. at police station Baghapurana
at a distance of 7½ miles. The copy of F.I.R. was within the hands of Magistrate within
24 hours of the time when report was lodged. Held prompt lodging of the report
followed by prompt despatch of its copy to Magistrate eliminates the chances of any
time having been utilized to spin out false story and to introduce the names of false eye
witnesses. 1971 Cr.L.J. 903 Bhag Singh and Others.
The fact that the F.I.R. was lodged within 35 minutes of the occurrence at the police
station at a distance of 2 miles from the place of occurrence and the fact that in that
F.I.R. the names of the accused as the culprits as well as the names of the eyewitnesses
were mentioned lends corroboration to the testimony of the witness regarding the
participation of the accused in the occurrence. 1973 Cr.L.J. 1828; AIR 1973 SC 2695
Darghal.
F.I.R.–Rape Case–F.I.R. lodged promptly–Details of incident as narrated by witness
not finding place in F.I.R.–None of witnesses including prosecutrix herself is questioned
whether there is omissions or contradiction cannot be drawn.
P. Narasimha v. State, 1996 Cr. L.J. 2997 AP.
F.I.R.–Murder Case–F.I.R. lodged promptly and investigation commenced mere non-
mentioning of case number in inquest report or in post mortem report-non fatal.
Zero F.I.R.–In a case, the Delhi High Court directed the Commissioner of police to
issue a circular in the official gazette directing all police stations to register a Zero FIR
when a cognizance offence is reported even if it does not fall within its jurisdiction.
Thereafter, that Zero F.I.R. would be transferred to the police station which has
jurisdiction to investigate the matter. Kirti Vashisht v. State & Others, SCC online Del.
11713.
2. A care should always be taken that names of witnesses are mentioned in
F.I.R. If the name of witness does not appear in it and he is examined later on, the
presumption is that he was not present at the spot and that he was procured later on.
See 1934 Oudh 315, 1919 Lah. 69 and 1923 Lah.391 where omission was held to be
suspicious. It, however, depends upon the ciucumstances of each and every case as to
what value should be attached to this omission of names of witnesses. The Courts will
always look upon the evidence as suspicious if this omission is not borne out by tangible
and satisfactory explanation and the evidence of investigating officer as to how he came
to know the name of such a witness and as to what were the circumstances under which
his name was left out.
In Narpal Singh, 1977 Cr. L.J. 219 (SC), it was held that omission of the name of
witness in F.I.R. may be relevant fact but would not be sufficient by itself to entail
rejection of his testimony. In this case 5 murders had been committed and Supreme
Court held that informant may be agitated.
The following cases will throw light on this aspect of the case:
If it is not by an eyewitness, the omission of the name of the witness in F.I.R. will not
be fatal.
(a) In 1928 Lah. 657 the F.I.R. was by a chowkidar under the instructions of a
Lambardar.
The High Court held that Chowkidar may have neglected the instructions of the
Lambardar or it may be due to his mental lethargy that he did not mention the
name of the witness.
(b) Informant, not an eyewitness, had met the persons assembled at the deceased’s
house, none of whom was an eyewitness; held that in the circumstances it was
not necessary for the informant to have mentioned the names of witnesses in
the report, 1953 Cr.L.J. 1900 (H.P.) Findal v. State.
(c) Where it is mentioned that whole village was present, non-mention of names of
independent witnesses does not make their evidence suspicious. I.L.R. (1951)
51 Raj.712 (DB).
However, if witness is independent and reliable, his testimony cannot be rejected
solely on the ground that his name does not find mention in the F.I.R. (See (1951) I.
D.U. 455 (Pepsu) 1933 1005, 1941 Oudh 699, 1928 Lah. 507) unless the court should be
sure that witness had some motive for deposing against the accused (1946 Pat. 239).
 Hon’ble Justice A.H. Khan of Madhya Pradesh High Court has discussed this aspect
in legal terminology in case Khalak [Link] 1957 Cr.L.J. 1138 as follows:
“It is not necessary to given the name of eyewitnesses in F.I.R. according to sec. 154
Cr. P.C. under which an F.I.R. is made, what is required is that information “relating to
the commission of a cognizable offence” should be given. The words “relating to the
commission of a cognizable offence” do not and cannot mean that informant must give
details of all the elements of offence or give the name of witness. The fact, therefore,
that the name of witness is not mentioned in F.I.R. does not affect his evidence. It was
also held in 1958 Cr.L.J. 324, Tehsildar Singh v. State (Allahabad) that mere non-
mention of the name of witness in F.I.R., is not by itself to hold that the witness did not
see the occurrence.”
3. Care should be taken that all the material facts are mentioned in F.I.R.
Non-mention of a material fact will adversely affect the case and it would be argued that
there has been a development in the case and patches were fixed later due to ingenuity
of some other brain. It was held in Tehsildar Singh’s Case Supra by Allahabad High
Court that “where F.I.R. was prepared by an experienced police officer who had
personal knowledge of all the facts and who immediately after drafting F.I.R. was to
take up the investigation of crime, in such a case the prosecution cannot take shelter
behind the plea of confusion or forgetfulness or lack of intelligence:” Also held in 3958
Cr.L.J. 1402 (M.P.) Ram Lal Singh v. State, that an omission in F.I.R. deprives
prosecution, of the most valuable corroboration and thereby makes the story suspicious.
If, however, the F.I.R. is made by person who had information from another, it was
held State of Rajasthan v. Kartar Singh in 1970 Cr.L.J. 1144 (SC) that in such cases
sometimes facts get omitted which should have been mentioned and as such suspicion
cannot be attached to F.I.R.; Also see 1973 Cr.L.J. 481, Radha Kishan.
It does not, however, mean that each and every fact must fine mention in F.I.R. and
investigator should not be discouraged to collect evidence and put it before the Court
simply because such evidence was not referred to in F.I.R. For instance an “omission in
a report hurriedly under the pressure of events should not have the significance as one
in a report lodged after cool calculation” as held in 1958 Cr.L.J. 1266 Satya Vir v. State
and “also because that F.I.R. is not an encyclopaedia. It is not the beginning and ending
of every case. It is only a complaint to set the affairs of law and order in motion. It is
only at the investigation stage that all the details can be gathered and filled up. It was
so held in Arumugam v. Ponnalogu, 1958 Cr.L.J. 384 (Mad.) that acquittal merely on
ground of omission of their names in F.I.R. was not justified. In this connection the
attention of the investigation is drawn to the following rulings:–
(a) F.I.R. is not a document, in which each and every relevant fact should find
mention. It was held only to be information given to the police first with regard
to commission of crime and it being so, motive was not held to be its necessary
part. 1963 Cr.L.J. 1361 (Bilaspur) Lala v. State.
(b) The non-mention of fact would not discredit informant and other witnesses, at
the most. This case relied on 1944 Cat. 323 Bmp. v. Rahen Uddin Mandal,
where it was held that F.I.R. not being a substantive piece of evidence, it
cannot be used for discrediting witnesses other than informant. 1954 Cr.L.J.
678 (Sau) Nirmal Kumar Singh v. State.
Stating of minutest details in F.I.R. is not expected nor is possible. (1922 Cr.L.J.
3298, See also (1993) 1 Crimes 298). Omission therefore do not discredit informant and
other witnesses if their statements are consistent during trial. Ram Udgar Ghar 1987
(1) [Link]. 113.
However omission of material fact in F.I.R. affects the veracity of prosecution made
later in Court. Held in 1987 Cr.L.J.952, wherein prosecution witness stating that one of
accused Fired shotgun and other accused dealt blow in chest with farsa, no mention in
F.I.R. Veracity affected. Similarly in Basudev 1988 Cr.L.J. 1408. In F.I.R. non mention
ornaments removed from person when in Court deposed otherwise, and in F.I.R.
identification due to flashing of torches by accused when in Court it was by lantern
light. Held evidence unreliable.
Omission to refer to knife by which the deceased was done to death, in F.I.R.
normally is a serious lacuna in prosecution. But the informant an illiterate lady
immediately after her husband’s death when rushes to hospital and gives an oral
account of what had happened, she must be so purplexed that such omission may not
militate against the prosecution case. The court may conclude about the purplexed state
of mind, no matter the informant later in witness-box explains or not the omission as
emanating from the purplexed state of mind. State of Orissa v. Abdul Wahid, 1990
Cr.L.J. (NOC) 136.
4. At the time of recording F.I.R. care should always be taken that the names
of the accused occur in it and the part played by them is also mentioned. When
the name of an accused occurs in it and the part played by him is also mentioned. When
the name of an accused is not mentioned in F.I.R. that being the earliest opportunity to
name him, it ordinarily follows that inclusion of the name later is due to certain ulterior
motive. It casts doubts on the evidence of identification. The omission of the name of the
accused in F.I.R. will result in giving benefit of doubt to the accused unless and until
there is a strong and satisfactory explanation. In Bishan Das 1975 C.A.R. 654, the
explanation that the injured had become unconscious and regained conciousness next
day, after lodging of F.I.R. was accepted. This aspect of law has been discussed by their
lordships in 41 Cal. 980 as follows:
“Allegations therefore, against persons not mentioned in First Report as being
members of the attacking party are a mere after thought and none of such persons
should have been convicted. If the names of accused persons are not mentioned in F.I.R.
the case against them has subsequently developed and in consequence the evidence is
not entitled to weight.
In Jagdip 1974 SC, 1978, name of second accused was not mentioned in F.I.R. Held
it was hardly that the informant would have skipped reference to the facts alleged
against the second accused in the F.I.R. Accused was acquitted.
B.D.O. in office when demanded for remuneration by the accused, refused to pay
him any, it is alleged that thereon the accused 5 slapped the B.D.O. and left. His further
case is that in the process the B.D.O. substained bleeding injuries. But B.D.O. did not
refer to the bleeding injury either in the F.I.R. or to the police. Held the omission is
fatal. 1991 Cr. L.J. 1388.
Even if some material evidence is left out, during trial additional evidence which is
material can be given. The Court under section Cr.P.C. can summon such evidence. The
additional evidence can be allowed at any stage of the case, not to fill lacunas but to
keep the prosecutor or the accused on justifiable grounds in the interests of justice.
1983 (2) C.L.R. 378 Sukhdev Singh v. State.
In 1983 (2) C.L.R. 488 State v. Ramlal, a witness who was foreigner, was not being
served but he was essential for success or failure of the case, Delhi High Court allowed
this additional evidence and ordered him to be examined on commission under section
285 (3) Cr.P.C.
When, however, the F.I.R. is not by an eyewitness, then it is a satisfactory
explanation that all the names of the culprits were not mentioned in F.I.R. The Court
can rely upon the evidence of disinterested persons, even in view of the fact that name
of accused does not appear in F.I.R. if the witness involves him. See 1928 Lah. 880,
1916 Lah 215, 1932 Oudh 299, 1926 Lah.6. V 1971 Cr.L.J.539.
It was held in Padam Sain v. State 1969 P.L.R. 40, that omission of the name of the
accused by itself from F.I.R. is not always fatal, nor it is enough to justify that accused
was falsely implicated. The value which has to be attached to the F.I.R. has to be judged
in the light of the various circumstances including the nature of the crime, the position
of the informant and the opportunity which he had to witness the part which each of the
accused played. In Hallu and Others, 1974 S.C. 1936. The inference arising from the
facts that names of the accused are not mentioned in F.I.R. must vary from case to case.
Non-mention in this respect is not a ground for rejecting evidence of witness. 1987
Cr.L.J. 838 (SC).
In 1928 Pat 359,1928N 3222,1922 Lah 410,1951 Ass 151,1953 Cr.L.J.662(SC), the
names of the assailants were not mentioned. Held that the omission is a strong
circumstance in favour of an accused.
 In 1983 Cr.L.J. 985 Darshan Singh, Supreme Court held that non-mention of accused
in F.I.R. is for the prosecution to explain though no rule of law says that accused not
named in F.I.R. is entitled to acquittal.
In State of Punjab v. Sohan Singh 1974 S.C. 300, name of accused not in F.I.R.
existence of lantern by which identification was possible not mentioned in F.I.R.
Accused was acquitted. It, however, depends upon facts of each case. In 1978 Cr.L.J.
708, Attepalli Gopaiah, mere omission to name accused for causing injuries was not
held to be sufficient though “strict scrutiny” of their evidence was held to be called for.”
In Jnwar Singh, 1981 SC 373, Omission of names of same accused in F.I.R. was
taken as a circumstances to give them benefit of doubt, since no explanation was
forthcoming why informant failed to mention the some of the accused. But in Ram Bali
1988 Cr.L.J. 764, F.I.R. was lodged by Pardanashin woman and omission of the names of
some of the accused was not deemed sufficient for their acquittal since she, being
illiterate also was not expected to act with the same care and caution as a literate
elderly person is expected to do.
Omission of name of any of the accused persons in F.I.R. though claimed to be
recognised by witnesses-participation of accused persons not proved beyond reasonable
doubt. Subash Barmin 1988 Cr.L.J. 1251.
Similarly, The part played by each accused in commission of the offence should be
distinctly given. An officer, who writes F.I.R. should begin to describe the action of each
accused if he refers to these. The F.I.R. should be silent as regards actions of all if the
informant cannot describe any. See. 1954 All 684 Chandra Pal v. State “If the informant
mentions the part played by any particular dacoit in the commission of dacoity the
omission about details about other dacoits may have some significant. But if there are
no such details it would be difficult to underrate the value of F.I.R. on this ground.” It
was also held in 1955 Cr.L.J. 1979 Ramsakal v. State that the mere fact that witness
does not mention specific assault made by each accused in the F.I.R. though he does so
in Court in simply because F.I.R. contains a brief statements of facts, he cannot be
discredited.
In Bhajan Singh and Others v. State of Punjab, 1978 C.A.R. 330 (SC), the F.I.R. was
lodged by wife of injured but she had not given details as to which accused caused
which injuries. Held it does not affect her credibility. Her presence was established and,
“Her husband was in a critical condition and it is too much to expect that the report she
gave at that time should contain all details about weapons and the injuries that were
caused by the several accused.”
F.I.R.–Registration of–Any information disclosing cognizable offence conveyed to
officer-in-charge cannot be refused to be registered of ground that said information is
not reliable or credible. Palwinder Singh v. State of Punjab, 1997 Cr.L.J. 2813 (P&H).
F.I.R.–Recording of–F.I.R. not carrying signature or thumb impression of informant.
No explanation given for it by officer recording it–F.I.R. liable to be rejected. State of
Maharashtra v. Gulam Navi Shaikh and Others, 1997 Cr.L.J. 2377 Bom.
F.I.R. recorded–Investigating Officer not recording statement of witness–Feeling it
unnecessary, in view of F.I.R., to repeat same version in case diary–Non availability of
statement of that witness under section 161 would not cause prejudice to defence.
Meharban v. State of M.P., 1997 Cr.L.J. 766 SC.
F.I.R.–Report of incidence–Admissibility–Report sent by one of eye-witnesses
reaching to police station only after investigation was taken up-could not be regarded as
F.I.R. but it would be statement recorded under section 162 and therefore inadmissible
in evidence. B. Subba Rao v. Public Prosecutor, High Court of A.P. at Hyderabad, 1997
Cr.L.J. 4072 SC.
F.I.R.–Filing of–Validity–Recovery of illegal ammunition from accused–During
investigation of F.I.R., arms viz. U.S. Carbine Cal. 30M-1 recovered at the instance of
accused–It amount to commission of another offence- Filing of separate F.I.R. for the
second recovery–Would not amount to be of process of law- Filing of second F.I.R. thus
not barred. Ashwini Kumar Bhardwaj v. State of Rajasthan, 1997 Cr.L.J. 2350 (Raj.).
Police declined to register the F.I.R. after passport was missing. There is a
mandatory provision in the Passport Rules, 1980 to enclose a copy of F.I.R from the
police station where the loss is reported. Whether or not the passport is lost due to
commission of a cognizable offence, even if the passport is damaged in a flood or burnt
in the fire accident or lost or misplaced by inadvertence, registration of F.I.R is
requirement presumably to give credibility to the complaint of loss of passport, which is
important travel document, is recorded in the official records and there cannot be
better official record than record maintained by law enforcement agency. The court
issued a direction to police station to register the F.I.R. and issue a certified copy of the
same to the person concerned to enable him to obtain a duplicate passport. Mirza
Asghar Hussain v. Commissioner of police, Hyderabad, 2011(3) Crimes 57 (AP).
Police is duty bound to read over contents of report which was reduced to writing to
the informant and to receive acknowledgement about correctness of contents of report.
In the contrary, when a report is a written report given to police, there was no legal
obligation to read over contents to informant before registering the same. Narra Peddi
Raju v. State of AP, 2011(4) Crimes 639(AP).
The police officials ought to register the F.I.R whenever facts brought to its notice
making out a cognizable offence. In the case the police officials fails to do so, the
modalities are to be adopted as setout in sections 190 read with 200 Cr.P.C. A.
Padamsee v. Union of India, 2007 Cr.L.J. 3729.
Power of Magistrate to direct proper investigation under section 154(3). If a person
has a grievance that the police station is not registering his F.I.R under section 154
Cr.P.C., then he can approach the superintendent of police under section 154(3) Cr.P.C.
by an application in writing. Even if that does not yield any satisfactory result in the
sense that either the F.I.R. is still not registered, or that even after registering it, no
proper investigation is held, it is open to the aggrieved person to file an application
under section 156(3) Cr.P.C. before the Magistrate concerned. The Magistrate then, can
direct to police that F.I.R. should be registered and also can direct a proper
investigation. The Magistrate can also under the same provision monitor the
investigation to ensure a proper investigation. Sakiri Vasu v. State of U.P., 2007(4)
Crimes 338 (SC).
The police cannot be directed to register a crime in the manner the petitioner
requires or requests as the remedie are available under section 156(3) 200 Cr.P.C.
S.V.S Cable Network & Others v. Sri Venkateswara Cable Network & Others, 2010(1)
Crime 624(AP).
Section 154–Registration of F.I.R.–Advantage–The registration of the F.I.R. either on
the basis of information furnished by the informant under section 154(1) of the Code or
otherwise under section 157(1) of the Code is obligatory. The obligation to register the
F.I.R. has following advantages—
(a) It is the first step to access to justice for a victim.
(b) It upholds the Rule of Law inas much as the obligatory person brings forth the
commission of a cognizable crime in the knowledge of the state.
(c) It also facilitates swift investigation and sometimes even prevention of the crime.
In both cases, it only effectuate the regime of law.
(d) It leads to less manuputation in criminal cases and lessens incidents of “anti-
dated” F.I.R. or deliberately delayed F.I.R. making registration of a cognizable
offence mandatory would also held the society, especially, the poor in rural and
remote areas of the country; Lalita Kumari v. Government of U.P., AIR 2014 SC
187.

Is it necessary to produce all the witnesses named in F.I.R.?

It was held in Bhagwati 1976 S.C. 1449 that it would be unsound to lay down a
general rule to lay down “That every witness mentioned in F.I.R. must be examined by
the Prosecution in all circumstances and that the failure to do so would lead to the
rejection of the evidence of all others.”
It is not, it rests with the prosecution to withhold any witness, named in the F.I.R. in
the interest of justice. This right of prosecution has been conceded in Tehsildar Singh’s
Case Supra. There is no doubt that an adverse presumption is to be taken against the
prosecution in case a witness is kept back due to any oblique motive. (114 Ev. Act) but
“Where, however, the prosecution offers adequate explanation for the non-production of
all witnesses mentioned in the F.I.R. and if that explanation is found satisfactory by the
Court than obviously, the prosecution cannot, because of that circumstances alone incur
any disability.” Supreme Court in 1959 Cr.L.J. 537 Narain v. State of Punjab, has laid
down a test as to which witness will be a material one, whether mentioned in F.I.R. or
examined during investigation and which the prosecution should always examine
irrespective of the fact whether he is going to favour the defence or not. The test is
“whether he is a witness essential to the unfolding of the narration on which the
prosecution is based. Whether a witness is so essential or not would depend upon
whether he could speak to any part of the prosecution case or whether the evidence led
disclosed that he was so situated that he would have been able to given evidence of the
facts on which the prosecution relied. It is not that the prosecution is bound to call all
witnesses who may have seen the occurrence and as such duplicate the evidence. But
apart from this, the prosecution should call all material witnesses and if a material
witness has been deliberately or unfairly debt back, then a serious reflection is cast on
the propriety of the trial itself and the validity of the conviction resulting from it may be
open to challenge.”
It is, therefore, advisable to have always at least two witnesses on an important link
to avoid the future possibility that one is won over. Even according to sec. 134 Evidence
Act “No particular number of witnesses shall in any case be required for the proof of
any fact.” Therefore it is not always advisable to add to number of witnesses on a
particular fact though in a heinous offence. “Courts in practice feel a heavier load on
their conscience” since, “the spontaneous and independent observation of two or more
honest witnesses to the same effect would carry more conviction than observation of
any equally honest single witness.” As in State v. Karam Singh 1960 Cr.L.J. 230 (M.P.) it
was held that were there is single eyewitness the tests should be (i) the witness knows
the accused well enough, (ii) has seen the accused off and on for sometime, (iii) has no
defect of vision, (iv) that there was sufficient light for visibility, and finally, (v) the
mental state of witness has to be considered if he was upset or calm, whether he was
anxious to run away or willing to stay on.” In other cases the criteria is whether he is (i)
respectable, (ii) natural (iii) impartial, (iv) stands cross-examination well, (v) and has
been making a consistent, clear and convicting statement, if these tests are satisfied,
then evidence of a single witness is sufficient for conviction and a mention of a single
witness in F.I.R. will not be a handicap since “It is no part of the duty of the prosecution
to supply ammunition to the defence for the purpose of blowing up the prosecution’s
case by producing “all sorts of witnesses”, 1960 Cr L.J. 1462. In re Mettu Pantos ya. In
Shivaji 1973 C.A.R.410, it was held by Supreme Court that witnesses are to be weighted
and not counted since quality matters more and conviction can be sustained on sterling
testimony of a single witness conviction can be based on a single truthful eye-witness
1985 S.C. 866 Shrsvail. It is quality that matters. 1983 S.C. 126.
F.I.R.–Omission in–Effect–Father lodging F.I.R. in respect of incident of one son
killing another son-Non mention of name of eye-witness witnessing said ghastly
occurrence–Evidence of witness cannot be doubted for non-mention of his name in F.I.R.
in the context of circumstances aforesaid. Nirpal Singh v. State of Haryana.

Conviction on Solitary Witness

Conviction in case can be based on the testimony of a single witness without
corroboration provided the Court comes to conclusion that his evidence is honest,
trustworthy and completely above board. However, if witness is not wholly reliable then
the court has to look for corroboration in material particulars by testimony direct or
circumstantial vide Jose v. State of Kerala, 1973 S.C. 944 Balraj Singh 1976 Cr.L.J.1471
(Punjab).
The only witness statement was recorded 7 days after incident disclosing the
incident. Long delay in examining was not explained. Testimony was rejected 1986
Cr.L.J. 1226.
1990 Cr.L.J. 174, Varsing, case of setting on fire house. Evidence of single witness.
Evidence modulated for deliberate purpose of securing conviction. No evidence how fire
started, who lit tuwar sticks, and set house on fire. Role of each accused not described.
Testimony not believed (1976 SC 560 relied).
It is always essential to support the case given in F.I.R.?
After investigation of case if there are material contradictions and exaggerations in
evidence in Court from the version given in F.I.R. by the informant, then, that evidence
is bound to be seen with suspicion. The First report is more often considered to be true
and if there is inconsistency between the statement in F.I.R. and the evidence of
informant in Court, the case is bound to fail. In 51 Cr.L.J. 739 (Raj.), it was said in F.I.R.
that dead body was recovered as a result of search but the evidence disclosed that it
was recovered at the instance of the accused. The evidence was held not to be reliable.
If there are striking discrepancies between the statements in Court and between the
F.I.R. benefit of doubt goes to the accused (16 Cr.L.J. 99, 15 Cr.L.J. 630).
In 1976 S.C. 1156 Mitter Sen, the prosecution case was that the injuries to the
accused were caused by certain person in the exercise of right of defence of person. The
names of these persons were not mentioned in F.I.R. There was also no mention in
F.I.R. how accused came to receive injuries. Held evidence of prosecution cannot be
accepted on its face value and be relied upon implicity.
It was held in 1953 Cr. L.J. 29 (Mad.)Narayanana Reddi v. State that complete
variance between F.I.R. and the case for prosecution in regard to main charges but not
in regard to minor details or unimportant matters or side issues is enough to throw
doubt on the case as an unreliable one which will not commend itself to any tribunal.
The position of law being such, it apparently looks that story in F.I.R. should be
supported. The duty of investigator is to swift truth so it does not mean that he should
with hold true evidence even though it is in conflict with F.I.R. Under such
circumstances a very heavy duty in case on the prosecution to explain the reason for the
different version given by PW ‘s and F.I.R.
After all, the duty of an I.O. is to discover truth and not simply to obtain evidence for
the purpose of obtaining a conviction. 1933 All. 314 As held in 1915 Cal. 545 the
purpose of the criminal trial is not to support at all cost a theory but to investigate the
offence and to determine the guilt or innocence of the accused. As laid down in 1951
Mad. 861 W.N. Malla Redi v. State. “There is a duty cast on the investigating police to
scrutinize a First complaint in which a number of persons are implicated with rigorous
care and to refrain from building up a case on its basis satisfied by its truth”. Innocent
persons should not be sent for prosecution, 1963 PLR 763.
The fact remains that the version in F.I.R. does not ipso facto become the evidence
on the matter in the case: it is never per se statement of the case for prosecution. 1932
Oudh 99. It is not substantive piece of evidence which will always be admitted to be true
and it is therefore for the prosecution to explain in examination in chief any such
inconsistency as to why it should not adversely affect the merits of the case. The mere
discrepancy of this sort may be a circumstance of far-reaching importance but it does
not show that evidence of other witness is to be entirely ignored or that their version is
entirely to be rejected. It is, therefore, clear that police can show that F.I.R. is not
accurate. 39 Cr.L.J. 917 (DB) (Nagpur).
The following cases will amply clear this proposition of law:—
1. When the facts stated in F.I.R. are based upon hearsay, much importance cannot
be attached to the discrepancies which are to be found in it 1948 All 133.
2. Held F.I.R. not being a substantive piece of evidence, it cannot be used for
discrediting witnesses other than informant. 1975 S.C. 757 Shakar.
3. 1973 S.C. 476 Dharma Ram Bhazare. Informant in this case could not say with
what weapon and in what manner and who of the accused killed his parents and
brother. Held the F.I.R. can only discredit the testimony of informant whose
evidence has not been relied upon. The F.I.R. can by no means be utilized for
contradicting or discrediting the other witness who obviously could not have any
desire to spare the real culprit and to falsely implicate the informant.
It is, therefore, the privilege and the duty of investigating officer to examine all
aspects of a case to arrive at the truth. He, however, should not be over-zealous but
exercise his discretion judicially. The evidence of the complainant and his witnesses if
reliable is not be rejected merely on conjectures and flimsy theories. If there is rebuttal
of this evidence, it should be based upon some plausible and legal grounds which belie
the version of the informant. Otherwise it is always prudent and appropriate to put up
cases in Court.

Is later Version An F.I.R.

Supposing an investigation is started on F.I.R. which is found untrue. The later
version given during investigation is found true and challenge is put on that basis. Can
the later Version given in some statement serve as F.I.R.
The answer is No. F.I.R. will remain the one given earliest and on the basis of which
investigation was started. The later statement being during investigation, even if found
true cannot become F.I.R. see 1953 Cr.L.J. Jago v. State.

Two Version if required to be sent up together

Some times the version in F.I.R. is not correct and on investigation it is found that
some other accused not mentioned in F.I.R. committed crime. Should both versions be
sent up in the challan or only later version which is found to be correct? This question
arose in Amar Singh v. State 1954 Punj. 844 (Punjab). It was a murder case, in which
two versions came up before the police, the first being that accused Amar Singh and 7
others (not Nathu) had murdered Piara Singh; the second being that Nathu had
committed this murder. Both versions had different sets of witnesses. The police, as a
result of their investigation did not reach any definite conclusion as to which set of
accused was responsible for the murder and sent up both sets of accused before the
Lower Court leaving it to the Court to decide which versions to accept. The Magistrate
committed both the sets of accused for trial in Sessions Court, which convicted Amar
Singh and Chanan. The defence contended that the joint trial of these two sets of
persons was illegal and contrary to sec. 239 (now sec. 223) Cr.P.C. It was held to be
settled law that the infringement of sec. 239 Cr.P.C., if made out, constituted an
illegality as distinguished from an irregularity requiring conviction to be quashed. It
was also stressed that the word contained in section 239 (a) of the Cr.P.C. mean an
offence arising out of the same act or series of acts and cannot mean anything else. It
was held that it was not part of the duty of the Public Prosecutor to put both versions
before the Court, and that it is not for a trial Court to so conundrums to determine as to
who has committed the offence, but in all cases the function of the criminal Court is to
adjudicate between the State and the accused as to whether the accused in the
particular case is guilty of the offence with which he is charged.
In the present case, the prosecution were themselves not clear as to whether one set
of accused had committed the offence or the other set and the trial of two sets together
was consequently held contrary to the provisions of the Code which in Chapter XIX (now
XVII) and Section 223 to 230 (now 218 to 224) laid down provisions for joinder of
charges. In order to determine whether several persons can be jointly tried as having
committed the same offence or not, the Court has to look to the accusation i.e. the case
set out by the prosecution in the charge itself, and if it can be held that the accused
persons have committed the same offence in the course of the same transaction then
they can be joined together, not otherwise, and it is not considered necessary to
consider what the final result of the case would be. The trial was held to be illegal. It
was further held that prosecution is not entitled to put up contradictory cases before
the Court and ask it to choose. There are indications in the Code itself in Sections 169
and 170 that the police have to make up their mind as to whether the evidence is
sufficient or not and if sufficient against whom. (See Challan in Chapter VIII).
In State of Haryana v. Gulab, 1974 SC 1871. Harchand, 1974 SC 344 and Jamuna
Chaudhary, 1974 Cr. L.J. 890 and 1974 P.L.J. 103, it was held that version in police was
different from one given in Court; one set of witnesses condemned by the other set of
evidence produced by prosecution; their being contradictory versions-no reliance can be
placed.
Though only one set is to be put in Court when the other set is not believed, the
prosecution will have to show by leading evidence that, the other version was found
false. In 1990 Cr.L.J. 337, Moti Ram, nothing of the sort was done. No evidence was
produced that the other version was false. Even Investigating Officer did not say any
word in evidence except for mentioning in the report under section 173. The case
resulted in acquittal.
 The prosecution should come out with the whole and unvarnished truth and not put
up two versions together in Court.

F.I.R. by Accused
Sometimes, it so happens that accused after commission of crime goes to the police
station and lodges F.I.R. as already discussed, F.I.R. is admissible in evidence, but the
other provisions of law bar certain statements in the F.I.R. made by the accused to
become admissible.
Section 162 Cr.P.C. does not affect such an F.I.R. as investigation has not started by
them.
Section 25 Indian Evidence Act will be applicable to such statement if these are in
the nature of confession. Sec. 25 says that no confession made to a police officer shall
be proved as against a person accused of any offence, may it be before investigation or
after investigation. So confession to police officer, being inadmissible in evidence, the
part of statement in F.I.R. by accused which deals with confession will be inadmissible
in evidence and as such will have to be excluded from consideration. The conclusions of
law as given in Aghnoo's case 1966 S.C. 199 are:—
1. The entire F.I.R. by accused, is not inadmissible in evidence merely because it
has been lodged by the accused.
2. If the information is non-confessional, it is admissible against the accused as an
admission under section 21 Evidence Act and is relevant. See Faddi 1964 S.C.
1850 also.
3. If F.I.R. amounts to confessional statement then entire F.I.R. is hit by sec. 25
Evidence Act including preparations, motive etc. The confession includes all the
admissions of incriminating facts relating to the offence. It is not permissible to
separate parts.
4. Only portion relevant in such F.I.R. would be which comes in the ambit of sec. 27
Evidence Act for discovery of fact.
5. The formal part identifying the accused for giving F.I.R. will be relevant
under section 8 of Evidence Act for having come to the police station as conduct.
Entire case law was discussed in Aghnoo’s case. Entire F.I.R. being confessional
including opportunity, motive, preparations, intention etc. was held to be inadmissible
except the portion relating to recovery of dead bodies, weapons etc. which were
covered by sec. 27 Evidence Act. The test of severability was held to be not good in eyes
of law. All the previous rulings of making separate parts relevant, are, therefore, not
good law unless those separate parts are not incriminating in nature and have
absolutely no connection with confessional part of the F.I.R,, if read as a whole,
following Aghnoo’s case, it was held in re Natesan 1969 Cr.L.J. 83 that if statement in
F.I.R. amounts to confession, any incriminating fact mentioned therein, if it has got a
bearing whether directly or indirectly with the confession, such fact, even though it may
be an admission will be inadmissible. It can be used by Prosecution to show motive and
presence of accused at the spot. Thakardas, 1974 SCC 169. Similarly in Badri, 1973
Cr.L.J. 1478 the manner in which and how the murder was committed, whole F.I.R. was
held to be irrelevant. In Faddi 1964 S.C. 1850, the accused had lodged F.I.R. stating
that he saw the dead body of his son lying in well and put the blame of murder on some
other person. This F.I.R. as it contained no confession, was held to be relevant as
admission under section 21 Evidence Act and as conduct under section 8 Evidence Act.
The F.I.R. by an accused cannot be treated as evidence against any co-accused since
F.I.R. is lodged by the accused himself and not by a witness, 1941 Lah. 19 Mohammad
v. Emp.
Section 154–When the prosecution established beyond reasonable doubt that “Soon
before her death,” victim was subjected to cruelty and harassment by her husband and
her-in-laws in connection with demand of dowry. There is no reason to interfere with
the conviction of the accused. V.K. Mishra v. State of Uttarakhand, 2015 (3) Crimes 193.
Section 154–Accused entitled to copy of F.I.R.–An accused is entitled to get a copy of
the F.I.R. at an earlier stage than as prescribed under section 207 Cr.P.C. An accused
who has reasons to suspect that he has been roped in a criminal case and his name may
be finding place in a F.I.R., can submit an application through his representative/agent
etc. for grant of a certified copy before the police offer concerned or to the SP on
payment of such fee which is payable for obtaining such a copy from the Court. On such
application being made, the copy shall be supplied within 24 hours. Youth Bar
Association of India v. Union of India, AIR 2016 SC 4136.
Section 154–There is no prohibition to file second F.I.R. based on same incident and
allegations different from allegations made in first F.I.R.; J.P. Shrekumar v. State of
Kerala, 2018 Cr.L.J. 2749 SC.

Is it always essential to tender in evidence the F.I.R.?

The answer is Yes. It is the elementary duty of the Investigator and the Prosecution
to tender in evidence the copy of the F.I.R. Ouseph (1957 Cr.L.J. 1132) Kerala. When
examining an informant, if the F.I.R. is not tendered, the accused are denied the
opportunity of cross-examination of the F.I.R. 1972 Cr.L.J. 451 (SC) Damodar Prasad
and cannot be relied upon.
Generally, the absence of F.I.R. casts a cloud of suspicion and tends to weaken the
prosecution case. 1953 Raj. L.W. 348. It is, therefore, essential that prosecution should
not withhold the F.I.R. to avoid the deduction of adverse presumption against
prosecution i.e. if produced, it would not have supported the prosecution case. In 1952
Cr.L.J. 1373 Ajmer (Nanak Ram v. State). F.I.R. was withheld on the pretext that it was
not written as F.I.R. but as a report in the Daily Diary. Held that importance of F.I.R.
was not to reft initial version given. How the investigation developed the prosecution on
version can only be determined if F.I.R. is produced. The benefit of doubt was given to
the accused for non-production of F.I.R. in this case.
F.I.R.–In the instant case, the Supreme Court observed that it is find difficult to
concur with the submission on behalf of the applicants that the failure of the
prosecution to investigate the F.I.R. lodged by the accused with regard to the same
occurrence or to place their inquiry reports on record was merely a defective
investigation. The Supreme Court is of the considered view that the failure of the
prosecution to act fairly and place all relevant materials with regard to the occurrence
before the court enabling it to take first and fair decision has caused serious prejudice
to them. A fair criminal trial encompasses a fair investigation at the pre-trial stage, a
fair trial where the prosecution does not conceal anything from the court and
discharges its obligation in accordance with law impartially to facilitate a just and
proper decision by the Court in the larger interest of justice concluding with a fairness
in sentencing also. Anand Ramchandra Chougule v. Sidarai Laxman Chougala, AIR 2019
SC 823.
Informant must be Produced
It is an admitted principle of law that F.I.R is not a substantive piece of evidence. It
is, therefore, necessary that informant must be produced in Court for evidence to give
version for corroborating F.I.R. and for proving it. If the informant is not produced, the
F.I.R. cannot be taken into consideration. It was held in 1953 Cr.L.J. State v. Gajraj that
under such circumstances, Court cannot refer to F.I.R. Where F.I.R. was admitted in
Evidence by Lower Court as informant was not traceable and had disappeared. This
evidence was, however, rejected in appeal. Similarly in 1943 Cal. 647, the informant
had disappeared and was not available as witness when the case was heard. Held that
sec. 32 Evidence will have no application and F.I.R. cannot be treated as substantive
evidence.
F.I.R. becomes substantive evidence only when the informant dies before the matter
comes up before Court and in which he relates the circumstances resulting into his
death. It is then admissible as dying declaration under section 32 (1) Indian Evidence
Act and as part of informant’s conduct under section 8 of the Evidence Act. See 1943
Cal. 74 Lah. 103 and Lalla Ram v. State, 1953 Cr.L.J. 1764 Supra.

F.I.R. must be Proved

The original F.I.R. should be tendered in evidence. It should be proved by the
production of informant, if available and the writer of the F.I.R. The secondary evidence
can only be given if the original is lost or not available. The conviction, however, cannot
be vitiated if F.I.R. is not proved and the evidence is otherwise sufficient. Ramdeo Singh
1959 All 511. The F.I.R. without being proved, either by production of informant,
thereof or if both are not available by proving their handwriting cannot be taken into
consideration under any of the provisions of Evidence Act, 1962 Gujarat 214 Miyana
Hasan (except as dying declaration under section 32 (1) Evidence Act).

Where to write F.I.R.

The F.I.R. should always be written by the police officer where he comes across the
informant and where he is told the commission of a cognizable offence. It is not
necessary that he comes to Thana if an informant meets him outside and there give
F.I.R. It is also bad that he should First proceed to the spot, collect information and
then given F.I.R. The place where informant meets should not be changed. The
statement should be recorded there and then. If it is outside the area of police station
the statement should be sent to the Thana for the registration of the case. In 1953
Cr.L.J. 29 Narayana Reddi v. State, it was held that it is not proper to start investigation
on the spot, collect information and then select, collate, and bring into existence a
document on the morning of next day in order to suit the theory which the investigator
has made after going on the spot and made the basis of F.I.R. This procedure will be
wrong and as such hit by sec. 162 Cr.P.C. and such document will be inadmissible in
evidence.
If the informant comes to the Thana then F.I.R. should be given at the Thana then
and there. It is bad to hold up the Daily Diary and then proceed to the spot and later on
give F.I.R. from the spot but pretending it to be given from the police station.
There is, however, an interesting case, 1952 Cr.L.J. 1602 (Punjab) State v. Inder
Singh and Others. In this case an A.S.I. had not recorded F.I.R. at the police station
when occurrence was reported to him by informant Smt. Balwant Kaur at police station
Zira Distt. Ferozepur. He arrived at the spot and after assuring himself of the
truthfulness of the case, he recorded F.I.R. at the spot but showed it as having been
given from the police station. The learned Sessions Judge acquitted the accused on this
ground. The State went in appeal and the case was heard by Division Bench (Khosla J
and Falshaw J). It was held, “it was conclusively proved that report was recorded at the
spot. I would, however, go further than this and I am of the opinion that even in a case
in which the circumstances indicate that police officer concerned has recorded the
F.I.R. at spot and not at the police station it does not necessarily follow that whole
prosecution case is to be thrown aside” and then, “In the circumstances, I am of the
opinion that even if it were to be held in the present case that A.S.I. refrained from
writing down the story of Smt. Balwant Kaur at police station and went to the spot to
see the situation therefore himself before recording prosecution version, it does not
seriously affect the strength of the prosecution case or in any way detract from the
value of the evidence of the members of the family produced as witness.”
This, however, does not mean that F.I.R. should not be written at police station if
informant imparts information there, ordinarily it should be and must be at police
station if informant comes to the Thana. If a police officer adopts recourse of going to
the spot First, the possibility of evidence being manufactured by Investigating Officer
by procuring some clues of witnesses would have to be excluded. This requires a very
high standard of efficiency. For these very reasons Hon’ble Justice Passey condemned
the practice of recording F.I.R.’s at the spot in 1956 Cr.L.J. 651 (Pepsu) Naurang Singh
D. Singh v. State.

Use of F.I.R.
First Information Report is a Document and has to be proved like any other
document. If proved, according to law, F.I.R. forms part of the documentary evidence in
a case. The First Information Report, however is not a substantive evidence in a case
and can be used only to corroborate or contradict its maker.
The F.I.R. is filed by the informant while giving evidence. But it is not a substantive
evidence like dying declaration, judicial confession etc. However, it can be used to
corroborate the testimony of the person who had given it under section 157 Indian
Evidence Act. The defence could also use it to contradict or impeach him (U/s 145 IEA);
Parameswaran v. Kerala 2004 (2) KLT SN 124.
F.I.R. being not substantive piece of evidence it can be used in the following ways:–
 1. For Corroboration purposes i.e. to corroborate the statement of the maker
thereof under section 157 Evidence Act, but not of any other witness Sankar
1975 S.C. 757 or for the case of prosecution in general. Gunadhar (1952 Cr.L.J.
1343 Cal.) Sagar Chandra 1962 Cal. 85. See Abdul Gauj 1954 Cr.L.J. 323, where
F.I.R. was not full as it could be, it was held by Supreme Court, it cannot be
ignored altogether and can be used to corroborate the statement of the
eyewitnesses.
2. For contradicting the evidence of person giving the information in accordance
with sec. 145 Evidence Act. For this purpose the attention of the informant must
be drawn to the relevant portion where the contradiction occurs, lie should then
be asked whether he has any explanation in offer with regard to such
discrepancy or contradiction. Unless this procedure is adopted, it is not open to
defence to place any reliance on the alleged contradiction. 1944 Cal. 323 Supra.
Apren Joseph 1973 S.C. 1.
3. For proving as an admision against the informant under section 18 and 21
Evidence Act State v. Kulwant Singh 1958 Cr.L.J. 129, 1962 (I) Cr.L.J. 82 (Raj.)
State v. Shiv.
4. For refreshing informant’s memory under section 159 Evidence Act, 1937 L 475.
5. For impeaching the credit of an informant under section 155 Evidence Act, 1939
All 242.
6. For proving informant’s conduct under section 8 Evidence Act.
7. For establishing identity of accused, witnesses and for fixing spot and time as
relevant facts under section 9 Evidence Act (1968 M.P.45.)
8. In certain cases as F.I.R. can be used under section 11 Evidence Act (1988
Cr.L.J. 428).
The deduction from above is that an F.I.R. cannot be used as substantive or primary
evidence of the truth of its contents. It cannot be substituted for evidence given on oath.
Hence if there is no evidence other than that contained in F.I.R., the facts alone in F.I.R.
cannot be relied upon to convict the accused. An F.I.R. alone cannot be the basis of
conviction. 1953 Cr.L.J. 1001 Pedda.
Section 154–Alternative remedy–There is an alternative remedy available to the
complainant to approach the magistrate under section 156(3) Cr.P.C. and if he does so,
Magistrate will ensure, if prima facie he is statisfied, registration of the F.I.R. and also
ensure proper investigation in the matter and monitor the investigation. Sudhir Bhaskar
Rao Tambe v. Hemant Dhanga, (2016) 6 SCC 277.
Section 154–F.I.R Admissibility–No F.I.R. cannot discarded merely on the ground
that names of the accused persons were not mentioned therein. Latesh v. State of
Maharashtra, 2018 Cr.L.J. 1812 SC.
Quashing of F.I.R. See Chapter 3-Quashing of Investigation.

F.I.R. becomes Substantive Evidence

(A) Under section 32 (1) Evidence Act as during declaration when a person
deposing about the cause of his death has died.
(B) Under section 6 Evidence Act as ‘resgestae’, e.g. when the injuries are being
caused in the presence of S.H.O. in P.S. and the injured makes a statement to
the S.H.O. saying that accused was injuring him.
(C) Under section 160 Evidence Act when the informant who has written the F.I.R.
or read it, fails to recall to his memory those facts but is sure that the facts
were correctly represented in the F.I.R. at the time he wrote it or read it.
In Umrao Singh v. State 1961 Cr.L.J. 271 (M.P.), F.I.R. was not admitted as
substantive evidence under section 32 (1) Evidence Act, the informant being dead was
not examined. The court still held it to be admissible under section 8 Evidence Act and
used it to remove doubt as to name of eyewitness mentioned by the informant in the
F.I.R. In 1964 Orissa 26, the informant died long after occurrence due to natural death
but before start for trial. F.I.R. was held to be not admissible under section 32(1)
Evidence Act and also section 8 Evidence Act as substantive piece of evidence. (See
dying declaration chapter XXIII). In case Chandar Bhan 1971 Cr.L.J. 94, F.I.R. was
lodged by the deceased himself. His death took place fortnight after the attack due to
Tetanus. Held that the dying declaration contained in F.I.R. was not admissible as death
was not related directly to the injuries. However statement in F.I.R. giving the nature of
the offence, the names of the accused persons and the time and place of the occurrence,
showing what the complaint is about of explaining it, are so blended with the conduct of
the victim in lodging a First information report of the offence under consideration that
they are parts of ‘conduct’ which can be proved under section 8 Evidence Act.

F.I.R. a Public Document

As discussed earlier, an F.I.R. is a Public Document prepared under section 154 Cr.
P.C. (S.74 Evidence Act Channapsa 1980 Cr.L.J. 1022, Ram Jethamalani 1987 Cr.L.J.
570 (Del.) and a certified copy of it can be given in evidence under section 77 Evidence
Act. The accused can get a copy of the F.I.R. only under the orders of a Magistrate or
after the Court has taken cognizance of the case and not before.
In Bharumal 1937 Sind 303, it was held that a copy should be given to the accused if
he applies. Even before filing of charge sheet an accused can get copy of F.I.R. on
payment from Court as held by Bombay High Court in Emp. v. Manadeo 1942 B 121 and
Calcutta High Court in Panchanama 1971 Cr.L.J. 875. The Officer-in-charge of police
station, however, cannot give copy of the F.I.R. to the accused and in such a case if he
gives the copy he will be liable under section 29 Police Act (V of 1861) (1917 Puma
625).
(F.I.R. is a Public Document. Party entitled to certified copy- 1992 Cr.L.J. 2377 (Guj).

Are the statements made in F.I.R. privileged ones

The statements made during an investigation are absolutely privileged but the
statements made in F.I.R. stand on a different footing. These are not privileged ones.
The complainant comes to police with his own version and which is not result of any
interrogation. The statement, therefore, made in F.I.R. does not enjoy that immunity
and prosecution can be launched for deformity statements in F.I.R. The privilege,
however, can be claimed if the deponent can bring the statement under the purview of
exception 8 of sec. 499 I.P.C, to show that he had preferred the accusation in good faith.
1955 Saurastra 19.

False F.I.R.
It has often been seen that the informant sometimes seek help of police by putting
up totally false stories with a view to wreak vengeance on their enemies by prosecuting
the machinery of criminal law to this end. False versions are also put with other ends in
view viz. for getting insurance money by cooking up stories of murders and fires, for
grabbing other’s ornaments by putting false stories of thefts and also for gaming
illegitimate end by leading the police to a wrong track alleging false versions and many
other similar motives. In such cases, it is the primary duty of police to make a deep
probe into the matter and see, “that innocent persons are not charged or irresponsible
and false implication.” The story of informant should be scrutinized carefully and the
conclusion that the case is false should be based upon reliable evidence and
observations of investigating officer.
Once it is established that the case is false, F.I.R. is to be sent up for cancellation of
case. A final diary and final report as required under section 173 Cr.P.C. is drafted by
the officer-in-charge of the police station, laying emphasis on the following points:–
1. The brief facts given by the informant in F.I.R. be given in the 1st para.
2. The observations of the I.O. which belie the case of informant and which were
made by inspection of spot or other material exhibits relied by the informant and
the alleged accused.
3. Direct or indirect evidence and its details which lead to a definite conclusion of
witnesses and the nature of their evidence be given. Keeping in view the status,
position of witness vis-a-vis parties and why his evidence is more reliable than
the evidence relied upon by the informant. In relying upon indirect evidence the
circumstances with particular references to medical evidence, finger print
evidence or other similar evidence tendered by experts or based upon scientific
methods of investigation, contradictory positions in the case and how the facts
 given by complainant are not reconcilable, should be detailed. The evidence thus
marshalled should be mentioned in sub-paras.
4. How the evidence relied upon by informant is worthy of rejection should be
detailed with a particular reference to his unnatural and improbable conduct.
5. Why the informant was motivated to move the police.
6. In the final para the conclusion and the prayer that the case be cancelled as false
should be given with the following additional prayers.
(a) If any accused is arrested that he be discharged (Released if in custody,
released from bail bond if on bail etc.).
(b) If anything has been taken into possession and how it should be disposed of.
(c) That informant should be proceeded against under section 182 or 211 I.P.C.
(See Final Report Chapter IX)
After the report has been signed and after it has been agreed to by the Supervising
Officer and the Superintendent of Police, it should be forwarded to the Illaqa Magistrate
for his administrative orders that the case may be cancelled.
The Final disposal of the original case is thus necessary before it is decided to file a
complaint under section 182 or 211 I.P.C. by the police. The F.I.R. must be disposed of
according to law i.e. under section 173 Cr.P.C. and dismissed or held as false
information. The original case should not be pending when it is decided to lodge a
complaint for false information (relevant law can be seen in 40 Cr.L.J. 64, 40 Cr.L.J.,
449, 24 Cr.L.J. 862. 48 Bombay 360 and 38 Cr.L.J. 951).

Action Against Informant

In case of false F.I.R. the informant can be proceeded against under the following
provisions of law:
A. By police:
1. Under section 182 I.P.C.
or
2. Under section 211 I.P.C. (1966 Cr.L.J. 26 Albert)
B. By private person:
A private aggrieved person can only file a complaint, if on the same facts as given by
informant to police, another offence which is not covered by Sections 182 and 211 I.P.C.
is disclosed. Such like offences are of defamation; under section 297 I.P.C. etc. See
Basir Ulhaq, 1953 Cr. L.J. 1232 (SC).

Factors if complaint under section 182 I.P.C. or 211 I.P.C. should be filed
Complaints should always be filed
(i) If the positive knowledge of the informant is made out to show that there was
no just or lawful ground for levelling charge and furnishing information in F.I.R.
and that the informant knew or believed the information to be false.
(ii) If the information and changes made in F.I.R. are deliberately and maliciously
false.
(iii) If the intention to cause injury or annoyance to any person is made out by the
false facts of the case as given in F.I.R.
(iv) If the public servant is caused to take any action on this false F.I.R. which he
would not have taken if true facts were known to him.
Complaint should not be filed
1. If the informant has been activated by bonafide motives to lodge information
believing a certain information to be true either on hearsay or on good
information. 40 Cr. L.J. 157, 1953 Cr. L.J. 829 Abdul Shakoor.
2. If the informant had reasonable grounds for believing the information to be true.
(35 PR 1890).
3. Mere exaggeration of matters does not render informant liable for action under
section 182 or 211 I.P.C. (7 Cr.L.J. 116).
4. Mere suspicion on a person if the occurrence is true cannot be ground for this
action. 1953 Cr.L.J. 1598 Shankar Lall.
 5. If the facts in F.I.R. are found to be partly correct. 1937 P. 384, 38 Cr.L.J. 462.
6. If there was no intention to cause annoyance to any person. In case Shamboo
Nath 1959 All. 544. ulterior motive of making false report of burglary was to
suppress certain documents by pleading that they were stolen and not to annoy,
it was held that offence under section 182 was not made out. Annoyance to Sub-
Inspector in starting investigation was not held to be annoyance to any body as
envisaged in sec. 182 I.P.C.

Complaint under which section

The police officer should invariably file the complaint under section 182 I.P.C.
against the informant for false F.I.R. irrespective of the fact whether a particular person
has been falsely accused or offence in F.I.R. or not. Section 211 I.P.C. is an aggravated
form of section 182 I.P.C.
For a complaint under section 211 I.P.C, the police officer must be sure of proving
and making out the following:
(i) There is definite accusation against a defined person.
(ii) Charge is both false and malicious and of an offence.
The malice is essential to be proved in a complaint under section 211 I.P.C. though
not under section 182 I.P.C. Moreover for complaint under section 182 I.P.C. it is not
necessary to show that name of any person as accused was given by informant. If,
however, the accused is named in F.I.R. and specified charge is levelled against him the
offence is under section 211 I.P.C. and police cannot circumvent section 195 (l)(b)(i)
Cr.P.C. by putting a complaint under lesser offence under section 182 I.P.C. The net
result of cases, Abhinandan Jha 1968 S.C. 117 Narayan Ram Chandra 1972 Cr.L.J. 1446
(FB) (Delhi) State of Maharashtra v. Ramlakhan 1971 Cr.L.J. 1978 (Bombay) is as under:
1. The order of the Magistrate cancelling a case as false on report of police
under section 173 Cr.P.C. is a judicial order.
2. A complaint under section 182 I.P.C. can be filed, if offence under section 211
I.P.C. is not made out.
3. If an offence under section 211 I.P.C. is made out, the police can still file a
complaint, if no judicial proceeding are taken in the case; or no complaint is
filed by complainant.
4. If the accused is arrested and is discharged or bailed out during investigation
and case is later sent for cancellation under section 173 Cr.P.C, it is only
Magistrate who can file complaint under section 211 Cr.P.C. in view of section
195(1)(b)(i) Cr.P.C. as the proceedings are in relation to judicial proceedings.
An interesting question arose in Prem Singh 1984 (1) C.L.R. 119, where a challan
under section 326 I.P.C. was given in Court but the accused claimed that allegations
were false. He applied under section 340 Cr.P.C. to Court for filing a complaint under
section 182 I.P.C. Held that complaint filed by Court was not legal and valid as section
182 was not included in section 195 (i) clause (b) and as such section 340 Cr. P.C. was
not attracted. Complaint under section 182 I.P.C. was not to be filed by the Court.

Who should Lodge Complaint

1. A complaint under section 182 I.P.C. can be filed in Court only by the police
officer to whom the false information was given and not by the police officer who
ultimately investigates it or to whom it is subsequently referred for investigation.
Section 195 (1) (a) (i) Cr.P.C. requires that no Court shall take cognizance of any
offence punishable under section 172 to 188 I.P.C. except on the complaint in
writing of the Public servant concerned or of some other public servant to whom
he is subordinate.
The only public servant concerned for false information is he to whom it is given.
Thus the police officer who writes F.I.R. on information by informant given to
him can only file complaint under section 182 I.P.C. irrespective of the fact
whether he himself investigated it or not. In case he writes F.I.R. merely on
written report received under the orders of a higher police officer then he is not
the public servant concerned and the complaint should be filed by that higher
officer. Thus if information is first given to Sub-Divisional Magistrate who sent
 the complaint to the police for enquiry, it is only S.D.M. who can file and not
police (37 Cr. L.J. 324); original complaint to Railway Police, transferred to
District Police, which investigates and cancels, it is only the Railway police
officer, who can file complaint (48 Cr.L.J. 264) False report to Civil Surgeon-
later sent to S.P./S.H.O. Held only Civil Surgeons can file complaint under
section 182 I.P.C. Rulda Singh 1977 C.L.R. 154 (Punjab). Complaint filed before
CM found false complaint by SHO under section 182 I.P.C. not sustainable 1987.
1987 C.C Cases 765.
2. A successor of the police officer to whom false information was given can file a
complaint under section 182 I.P.C. (44 Cr. L.J. 508.).
3. Similarly a police officer to whom the police officer who was given false
information is a subordinate, can file a complaint (41 Cr.L.J. 368 and sec. 195 (1)
(a) (i) Cr.P.C.).
The subordinate must be administrative as laid down in sec. 195 (1)
Cr.P.C. The administrative subordination is to be seen at the time of making the
complaint and not when the original report was made which was subsequently
found false. Shiv Ram, 1978 C.L.R. 26 (H.P.)
4. All the public servants to whom copies of complaints or information are sent by
the informant; irrespective of the fact to whom it is addressed. 1966 Rajasthan
101 State v. Roopa.
5. By the public servant to whom the information is given, whether he enquires into
it himself or through the agency of police or others. 1962 S.C. 1206, Daulat Ram.
In Case the complaint is filed not according to sec. 195 (1) (a) (i) Cr.P.C by the
competent public servant, the entire proceeding are quashed and the Court errors in
taking jurisdiction.
A second complaint by competent public servant can be filed and it will not be a far
sec. 300 Cr.P.C. State v. Birda. 1966 Rajashtan, 40.
“Complaint under section 211 I.P.C. can be filed by the police officer concerned or
any other police officer if the offence under section 211 I.P.C. is not committed in or in
relation to any proceedings in any Court” “Section 195 (1) (a) (i) Cr.P.C. does not apply
to complaint under section 211 I.P.C. section 195 (1) (b)(i) applies to such complaints
and it lays down that complaint should be by Court if offence under section 211 I.P.C. is
committed in or in relation to any proceeding in Court.” It was held in Shes Bilas v.
State, 1959 Cr.L.J. as under.
“Section 195 (1) (b) (i) prevent taking of cognizance except on complaint
by Court only if the offence mentioned therein are alleged to have been
committed in or in relation to any proceeding in any Court. The prohibition
is, therefore, not an absolute prohibition and does not preclude the
Magistrate concerned from taking cognizance of the offences mentioned in
the clause without the complaint of the Court or the Superior Court if the
offences are not alleged to have been committed” in or in relation to any
proceeding in Court. “It cannot be denied that such offences can be
committed in or in relation to proceedings in Court and also otherwise.”
Thus where an offence punishable under section 193 and 196 I.P.C. is committed not
while any proceedings are pending in a Court but while the case is still in the
investigation stage, no complaint under section 195 (1) (b) (i) is necessary by a Court
before cognizance can be taken of the offence A.I.R. 1917 Lahore 267 and 26 Cal. 786,
1956 All. Cri. Rep. 115 (A.I.R. 1941 Bom 294 distinguished A.I.R. 1936 Lah. 238
dissented from) but where information to the police is followed by a complaint to the
Court based on the same allegations a complaint by the Court was necessary for the
prosecution of the informant under section 211 I.P.C. even in respect of a false charge
made to the police. Ram Lal v. State Cr.L. J. 1995 (Raj.).
Even when police sends final report to Magistrate under section 173 Cr.P.C.; it does
not follow that police cannot prosecute under section 211 I.P.C. No complaint of Court
is necessary in such cases as held in 1967 Kerala 242 but if there are any judicial
proceedings taken viz. on complaint filed by complainant who is dissatisfied with police
investigation; an accused is arrested during investigation but discharged or bailed but
out before case sent for cancellation, then it only the Court which can file complaint
under section 211 I.P.C. under section 195 (1) (b) (i) Cr.P.C, the proceedings being in
relation with Court, Narayan Ram Supra.
Similarly, if after an F.I.R. is found false by police, but the complaint is filed in Court
on the same facts by the complainant, then during the pendency of the complaint, the
proceedings under section 182 or 211 cannot be initiated against him. Walaiti Ram
Grover 1977 C.L.R. 149 (Punjab).
The Supreme Court has reiterated that a subsequent complaint would be
maintainable if there is the discovery of a new fact after disposal of the first complaint.
Om Prakash Singh v. State of Bihar, 2018 SCC Online SC 684.


Chapter–2
Non-Cognizable Cases and Police
“Non-cognizable offence” means an offence for which and “Non-cognizable case”
means a case in which, a Police Officer, has no authority to arrest without a warrant.”
Section 2(1)(l) Cr. P.C.
Whenever a complainant reports to an officer-in-charge of a police station the facts
of an offence which is non-cognizable, the officer-in-charge shall enter the substance of
that report in the Daily Diary Register No. 2 of police station kept under section 44 of
Indian Police Act No. V of 1861. This is prescribed by section 155 Cr.P.C.
According to P.P.R. 24.3, the instruction are that any information of a non-
cognizable offence “shall be briefly or intelligibly recorded in the Station Diary (Register
No. 2).” The report shall be read over to the informant who will sign, seal or thumb
mark, both foil and counterfoil. After this has been done, a copy of the entry in a Daily
Diary or made by copying process or otherwise and signed or sealed with the police
station seal of the Recording Police Officer shall be made over to the informant.
A Police Officer who refuses to write report in the Daily Diary or enters instead in
the Diary a totally different and false report, is guilty under section 177 I.P.C. The
punishment for entering a wrong and false report in the Daily Diary departmentally is
dismissal.

Sanction for Investigation Necessary

The investigation in a non-cognizable case cannot be started suo moto by the Police
Officer. He has to direct the informant to the court or to himself report the case to the
Magistrate for order under section 155(2) Cr.P.C. The Magistrate on receipt of this
report can order investigation under section 155(2) Cr.P.C. without himself taking
cognizance under section 190 Cr.P.C. i.e. he can do so without calling for a
complainant, recording his statement and so on.

Pre-requisites for Order of Investigation under section 155(2) Cr.P.C.

The Magistrate before passing order under section 155(2) Cr.P.C. for investigation
by the Police in a non-cognizable case must see whether or not there were reasonable
grounds for believing that an offence had been committed. An order without satisfaction
as such would be an order passed arbitrarily as held in Biroo v. State 1960 Cr.L.J. 1059.
It was further held therein “Permitting the police to investigate into a non-cognizable
offence and thereafter to prosecute the accused on a charge sheet by the Police is a
serious matter not only for the accused but also for the state, for employing police
agencies to do the work for private individuals who under the law are required to seek
their own remedy from a court of law is to unnecessarily waste public funds and the
time of public officers which apparently the law tried to safeguard.”
In no case, investigation in a non-cognizable case can be started without the orders
of a Magistrate having power to try such case or commit the same for trial. On
obtaining such orders the Police Officer is authorized to exercise the same powers in
respect of the investigation as an Officer-in-charge of a Police Station may exercise in a
cognizable case but he has no powers to arrest except under a warrant issued by a
magistrate. (Section 155 (3) Cr.P.C).

Powers of Police Officers Investigating Non-Cognizable Case

It is only that Police Officer to investigating who has been ordered to do so by the
Magistrate. In Hira Lal v. Emperor 16 P.R. 1918 the authority of Police Inspector who
had been ordered to investigation a case of non-cognizable nature to legally delegate
the authority to another I.O. was held to be questionable.
As held in 1943 Lah. 28, Durga Dass v. Emperor, it is any Police Officer who can be
ordered to investigate as the words “any Police Officer” in Sec. 155 (3) Cr.P.C. are
explicit on this point.
The Police Officer who is thus ordered to investigate “shall day by day enter his
proceedings in a case diary and submit these daily as prescribed for cognizable offence
cases. Case Diaries shall be submitted through Gazetted Officer concerned to the court
which has ordered investigation. No copies shall be prepared or kept by the Police.” See
Punjab Police Rule 25.11.
Such Police Officer is thus empowered to exercise his power under section 161
Cr.P.C. (8B 126) under section 162 Cr.P.C. for recording statements (1919 All. 276), for
making searches under section 165 Cr.P.C. (1931 Lah. 581) and send up a charge-sheet
or report that the evidence is insufficient (14 Cr.L.J. 661). Section 162 Cr.P.C. will apply
to such investigation. 1963 Gujarat 188 Miyabhai Pirhal.
He can, however, make no arrest without a warrant received from that court. He
must keep the diary under section 172 Cr.P.C. as provided in PPR. 25.11 and Hira Lal v.
Emp Supra and must send a report after investigation of this offence, (16 Cr.L.J. 161)
(B) and 14 Cr.L.J. 218 (All). Once a Police Officer takes up the investigation of a non-
cognizable case upon orders of a Magistrate the investigation becomes under the (Chap.
Xll Cr.P.C.) and he becomes invested with all the powers under (Chap. XII Cr.P.C.)
including the power to file a challan and no further permission to file a challan is
necessary, 1953 Cr.L.J. 1984 (Hyd.) State v. Prabhu Dyal.
Investigation without Sanction and its Effect
In some cases by mistake, a non-cognizable offence is registered as F.I.R.
(cognizable case) and investigated like a cognizable case. There are also cases where
after writing a report in the Daily Diary of such offence, a Police Officer looks into it and
holds preliminary investigation without an order of a Magistrate. Then in the former
case, a challan is sent up and in the latter a complaint is filed. The question arises if this
irregular conduct of the Police in investigating a non-cognizable case without legal
order under section 155(2) Cr.P.C. affects the merits of the case adversely or not or if
the illegality makes the case void ab nitio or if the Magistrate can refuse taking
cognizance on it.
I. If an investigation of non-cognizable offence is held without permission of
Magistrate under section 155(2) Cr.P.C. the whole proceedings of investigation become
void. The court cannot take cognizance for trial on any police report sent after such
investigation for trial.
In Abdul Halim 1961 Cal. 257, it was held that provisions of section 155(2) cannot be
rendered nugatory by regarding police report as a valid report under section 190(1)(b).
The same view also taken in State v. Ditta Ram, 1976 Cr.L.J. 392, Lal Chand 1964 P.L.R.
68 and Om Parkash 1964 P.L.R. 580 and Jawahar Singh 1974 C.L.R. (S.N. 10) Punjab.
(i) Section 155(2) of the New Code prohibits investigation by a Police Officer into a
non-cognizable offence without the order of a Magistrate. A violation of the
provision would stamp the investigation with illegality;
(ii) This defect in the investigation can be obviated and prejudice to the accused
avoided by the magistrate ordering investigation under section 202 of the Code;
(iii) The report of a Police Officer following an investigation contrary to
section 155 Cr.P.C. could be treated as a complaint under section 2(d) and
section 190(1)(a) of the code if at the commencement of the investigation the
police officer is led to believe that the case involved commission of a cognizable
offence or if there is doubt about it and investigation establishes only
commission of a non-cognizable offence;
(iv) If at the commencement of the investigation it is apparent that the case
involved only commission of a non-cognizable offence, the report followed by
investigation cannot be treated as a complaint under section 2(h) or section
190(a) of the Code. [Link] Hammed, 1981 Cr.L.J. 356.
In 1983 Cr.L.J. 1833 Avinash, prosecution under section 124 Bombay Police Act was
quashed, the offence being non-cognizable for which sanction under section 155(2) was
not taken.
In case cognizance is taken by the Court on police report in case in which
investigation is done without order under section 155(2) Cr.P.C. It is an illegality not
curable under section 533 Cr.P.C. (old) sec. 465 (new Code) as held in 1974 Cr.L.J. 185
Subhad Singh. The question again arises whether objection was taken at earlier stage to
such a cognizance or if prejudice is caused to the accused by such a trial if objection is
not taken earlier. It was no doubt held in HM Rishbud 1955 S.C. 196 that a defect or
illegality in investigation, however, serious has no direct bearing on the competence or
the procedure relating to the trial of case. Also in 1971 Cr.L.J. 164 (Punjab) State v.
Khazan Chand. But it is advisable that police should avoid sending reports on such
illegal investigations.
Information as to non-cognizable case and investigation of such cases–Police Officer
can not be allowed to investigate without obtaining prior permission of Magistrate
concerned–Report submitted by him disclosing non-cognizable offence– In such
eventuality-cannot be treated as complaint. Illies Ali v. State of West Bengal, 1997
Cr.L.J. 803 Cal.
Private complaint–Made under section 6 is cognizable offence for purpose of
investigation–Magistrate empowered to forward complaint to police for investigation
before taking cognizance under section 156(3)–Magistrate referring complaint to police
under section 155(2) instead of under section 156(3)–It would be mere irregularity–
Proceedings not liable to be quashed. Mrs. Annie Koshy v. State of A.P., 1998 Cr. L.J.
2565 A.P.
 Investigation by police–Procedure–Incident of fight–Nature of injuries sustained by
injured person making out case only for an offence under section 323 IPC, a non-
cognizable offence–Investigation carried out by police without obtaining order of a
Magistrate by registering the case for offence under section 324 I.P.C. a cognizable
offence- Not legal. Mamchand v. State, 1999 Cr.L.J. 1512 Delhi.
Investigation of non-cognizable case–Accused charge sheeted for offence u/s 145 of
Bombay Police Act which is a non-cognizable offence–No permission obtained from
Magistrate having power to try said offence–Prosecution initiated against accused–Not
legal. S.G Naik v. The Senior Inspector of Police & other, 2000 Cr.L.J. 4776 (Bom.).
Section 155—Case diary—Fact recorded in case diary cannot used as evidence—
Case diary prepared by I.O. cannot be evidence to impeach credibility of any witness
unless it was proved by the I.O.—Fact recorded in the case diary cannot be used as
evidence. Aneeta Bhatnagar Jain v. State of U.P., 2004 All L.J. 287.
Sections 155, 154, 150—Students indulging in criminal activities in college campus
(i.e. attacking staff, damaging property) —Police can enter college campus in without
permission of any body. Vijay Kumar v. State of Kerala, 2004 (3) RCR (Cri) 471.
Petition for quashing proceeding was filed in a criminal case on the ground that
police had proceeded to investigate non-cognizable offence without permission of
Magistrate. Initially, F.I.R. was registered under section 323 & 506 IPC. But the
supplementary medical report of injured showed that he had suffered fracture of thumb
and offence under section 325 IPC was added. After the supplementary medical report,
the non-cognizable report did not remain NCR. Charge-sheet for offences under sections
325, 506 & 323 IPC is maintainable and caused no illegality. Vinod v. State of
Uttaranchal, 2010(3) Crimes 568 (Uttarakhand).
Section 155–Method of Investigation–It is well settled that even if the investigation
is illegal or even suspicious, the rest of the evidence must be scrutinized independently
of the impact of it. The court must have predominance and pre-eminence in criminal
trial over the action taken by the Investigating officers. Criminal justice should not be
made a casually for the wrongs committed by the investigating officers in the case.
Dayal Singh v. State of Uttarakhand, AIR 2012 SC 3046.
Section 155–In a question of determination of test in connection with “police
officer”, court will have to keep in mind the crucial test whether an officer is a police
officer for the purpose of section 25 of the Evidence Act viz; the “influence or authority”
that an officer is capable of exercising over a person from whom a confession is
obtained. The term “police officer” has not been defined under the Code or in the
Evidence Act. Therefore, the meaning ought to assessed with the power, capacity to
influence, pressure or coercion on person, who are searched, detained or arrested;
Tofan Singh v. State of Tamil Nadu, 2014(1) Crimes 42 (SC).
Charge-sheet was filed for offences under section 323/341/34 I.P.C. against the
accused. While hearing on point of notice of offence, court agreed that no offence under
section 341 IPC was made out but served notice of offence under section 341/323/34
I.P.C. holding that he had no jurisdiction to review order & cognizance was taken. It
was held by the court that the foundation of the jurisdiction of the Magistrate for taking
cognizance of an offence does not depend upon the validity or otherwise of an
investigation carried out by the police. It depends only upon the set of facts and
circumstances placed before the court, from which the court comes to a conclusion that
they constitute commission of an offence. It would, therefore, not be correct to say that
cognizance of an invalid police report to be prohibited necessarily in law and is,
therefore a nullity. Therefore, even if the investigation was invalid for want of order of
the Magistrate under section 155(2) Cr.P.C. the police report based upon such an
investigation is not nullified and does not become infructuous merely on account of this
procedural lapse in the investigation and it is very much permissible for the court to
take cognizance even of a non-cognizable offence, on the basis of evidence collected
during such an investigation, unless some prejudice is shown to have been caused to the
accused for want of requisite order under section 155(2) of Cr.P.C. Rajeev Rastogi &
Others v. State, 2010 (1) Crimes 740 (Del.).
II. This rule is not applicable where while investigating a cognizable offence another
non-cognizable offence is also made out.
 Section 155(4) Cr.P.C. says that where a case relates to two or more offences of
which at least one is cognizable, the case shall be demeed to be a cognizable case, not-
withstanding that the other offences are non-cognizable. During the investigation of
cognizable offence, a Police Officer, can look into a non-cognizable offence and
investigation would not be rendered illegal inspite of express prohibition contained in
Sec 155 Cr.P.C. Shiva Swami v. Emp. 1927 B 410.
It was also so held in Ram Krishan Dalmia’s Case 1958 Cr.L.J. 83 (Punjab) that
where information is given to a Police Officer of a cognizable offence and the case is
registered regarding the offence, I.O. while investigating cognizable offence cannot be
possibly debarred from investigating any subsidiary and non-cognizable offence which
may arise out of the facts and can also include these later cases in his main report
under section 173 Cr.P.C. and no separate order of Magistrate under section 155(2)
Cr.P.C. is necessary. See also Parvin Chander Modi v. State of A.P., 1965 S.C. 1185
where this view was confirmed.
III. Similarly while investigating a cognizable case, if a non-cognizable offence is
made out, the police can send a complaint for the commission of non-cognizable offence
and the court can take cognizable on it irrespective of the fact that no sanction for
investigation under section 155(2) Cr.P.C. was taken for investigation of this non-
cognizable offence. This was so held in Joginder Singh Bali v. State, 1964 Punjab 65.
Also see Explanation attached to definition of Complaint in section 2(d) which reads:
“A report made by a police officer in a case which discloses after investigation, the
commission of a non-cognizable offence shall be deemed to be a complaint; and the
police officer by whom such report is made shall be deemed to be the complainant.”
The cognizable offence already registered will be cancelled in case non-cognizable
offence is made out. If both offences made out; then these can be included in single
challan under section 173 Cr. P.C. Even a challan for cognizable offence and a separate
report for non-cognizable offence can be sent, if required so section 155 (2) Cr. P.C.
does not operate as bar. 1967 Mad 4 and 1926 Mad 865; 1956 S.C. 1185.
IV. A Police Officer, however, cannot investigate into another and separate non-
cognizable offence in case he is not authorised by a Magistrate while investigating a
particular non-cognizable offence under particular orders. Durga v. Emp. 1943 Lah. 28.
A report in the Daily Diary is admissible in evidence being a Public Documents See
1930 L. 267. After close of investigation, the police officer must send a report to the
magistrate (1915 B 80). It is not necessary that charge sheet is always to be sent. He
can report that evidence is insufficient. See 13 Cr.L.J. 691. No further permission to file
a charge sheet is necessary. State v. Prabhu Dyal Supra.
V. If while investigating a non-cognizable case, in fact a cognizable offence is made
out, the police officer is duty bound to bring the offence at once on the Crime Register
i.e. Register No. 1 F.I.R and to Report to the Magistrate that he is dealing with the
offence under section 157 Cr.P.C. (For investigation of cognizable offences) and to act
accordingly.
Non-Cognizable offences–Two Criminal Offences (one cognizable and the other non-
cognizable) tagged together–Police has authority to investigate both offences–
Proceedings in cognizable quashed by higher court–Non-Cognizable offence will still be
treated as Cognizable offence even if proceedings in respect of Cognizable offence were
quashed by higher court. Cases are related with two offences under section 500 & 505
IPC. Shiv Kumar Agarwal v. State of Meghalaya, 2013 Cr.L.J. 421 (Gauhati).
Is an anticipatory order of a Magistrate sanctioning investigation into a non-
cognizable offence valid one?
In Supdt. Rev Legal Affairs v. Zahiruddin 1946 Cal 483 it was held that such an
order was legal and valid. The Police can move the Magistrate 1st class to order
investigation under section 155 Cr.P.C. before the offence is committed. Also see 49
C.W.N. 589 Nanda Lal v. King. This view was not accepted in 1949 Ah. 483 (F.B.)
Shyam Lal v. King which was later followed in Labha Shanker v. State 1953 Sau. 4,
which was a case of extortion. The complainant had not parted with money when an
anticipatory order was obtained for investigation. It was held that this order was invalid
and that before ordering an investigation into an offence under section 384 I.P.C. which
is non-cognizable offence, the Magistrate has to be satisfied that reasonable grounds
exist for believing that an offence has been committed otherwise he would be acting
arbitrarily in ordering investigation.
Note:—The offence under section 384 I.P.C. is cognizable under the Cr.P.C.
See Schedule 1st, which describes offences are cognizable and non-cognizable
in column IV. Offence under local and special laws, if punishable with less than
3 years are non-cognizable, if not otherwise provided in the Act itself.



Chapter–3
When to Start Investigation
An officer-in-charge of a police station can start investigation under section 156(1)
Cr.P.C. into a cognizable offence, without orders of a Magistrate after registration of
F.I.R. under section 154 Cr.P.C. The statutory right of police to start investigation is
admitted one. No sanction of court is necessary for exercising this right; under certain
circumstances, even the presence of F.I.R. is not a condition precedent. In Emp. v. Kh.
Nazir Ahmed 1945 P.C. 18 this right of police has been acknowledged and discussed.
The statutory right of police to investigate into the circumstances of any alleged
cognizable offence cannot be interfered with by the court in exercise of powers
under section 439 or 561A Cr.P.C. (now Sec. 401 or 482) State of W.B. v. S.N. Basak
1963 S.C. 447. In Abhinanda Jha v. Dinesh Misra 1968 S.C. 117, while considering the
provisions contained in chapter XIV (now Chapter XII) Cr. P.C., the Supreme Court
observed that “But the point to be noted is that the manner and method of conducting
the investigation are left entirely to the police and the Magistrate, so far as we can see,
has no power under any of these provisions, to interfere with the same. The Court has
no power to stop the investigation but only High Court can issue a writ of mandamus to
restrain the police from misusing its powers where High Court under Article 226
Constitution of India is convinced that power of investigation has been exercised by a
Police Officer malafide (Supreme Court S.N. Sharma in 1970 Cr.L.J. 764).
This point also arose in State of Bihar v. J.A.C. Saldhana 1980 Cr.L.J. 98 and Desai J
observed, “There is a clear cut and well determined sphere of activity in the field of
crime detection and crime punishment. Investigation of an offence is the field
exclusively reserved for the executive through the police department, the
superintendence over which vests in the State Government. It is duty of police to collect
evidence for pupose of proving the offence. The court only comes in when after
investigation it takes cognizance of offence under section 190. High Court cannot be
given directions to close investigation/case.”
Another case Bhagwant Singh (1983) 3 S.C.C. 344 is also to the same effect. It was a
case of bride burning and the police had given finding of suicide.
In State of West Bengal v. Sanpat Lall, 1985 Cr.L.J. 516, 1985 R.C.R. 202, the
Supreme Court held that order of High Court to entrust investigation to Special Officer
of C.B.I, was not without notice to Government. It was held, “It is for police to
investigate under scheme of law. It is not ordinarily subject to normal supervisory
power to give directions to investigating agency, court had, however, residuary power
to give direction investigating agency to where requirements of law are not being
complied with and investigation is not being completed.’’ It can give directions to
speedily complete it. But in 1988 SC 1323, Kashmiri Das Supreme Court while upsetting
the decision of Delhi High Court Cr. W.P. No. 361 of 1986 of dated 26.9.86–Trial Court
was directed to direct C.B.I. for proper investigation of case in exercise of powers under
section 173(8) Cr.P.C. It was a case of tortual death of person by police in police
custody. The police registered case under section 302 but converted it into 304 within
hours of registration of case even without waiting for Post Mortem Report. Case was
further converted to section 323/34. Held, police had acted in Partisan manner to shield
real culprits and even challan was given.
Investigation–Investigation by another agency when investigation by local police not
satisfactory–Further investigation by another agency is not precluded. CBI v. Rajesh
Gandhi, 1997 Cr.L.J. 63 SC.
Sections 156 and 173(8)–Investigation–Report by investigating authority–
Interference–Report filed by investigating authority stating that no offence was made
out against accused–Magistrate has power either to accept or decline to accept that
report–Interference by Govt. by directing investigation authority to submit charge-sheet
for offences which were held to be not made out impermissible–Govt. at most can direct
by virtue of section 3 of Police Act, the investigating authority to make further
investigation under section 173(8). M. Satyanarayanan [Link]. of A.P., 1997 Cr.L.J. 3741
(A.P.).
Transfer of investigation–Complaint lodge by petitioner that his son was taken by
police and killed–No action taken–Case registered on direction of High Court but with
no result–Allegation by petitioner that investigation was not done because of
involvement of a politician–Investigation transferred to crime branch. Ram Mehar v.
State of Haryana, 2006 (3) RCR (Cri.) 99.
Investigation of offence–Whether it is the requirement of law that accused be
arrested–Merely because a police officer has the right to arrest, it is not necessary to
arrest every person who is accused of having committed a non-bailable and cognizable
offence. 1991 SCC Cri. 330 relied. K.K. Mohandas v. State of Kerala, 2006 (3) RCR
(Cri.) 723.
F.I.R. under section 468, 471 I.P.C.–Charge-sheet submitted–High Court has power
under section 482 Cr.P.C. to quash F.I.R. even after filing of charge-sheet. Gian Chand
v. State of Punjab, 2003 (2) RCR (Cri.) 385.

When Court can Interfere in Investigation

The earliest case 1945 P.C. 18, it was observed by Privy Council “The functions of
police and judiciary are complementary, not overlapping and the combination of
individual liberty with a due observance of law and order is only to be obtained by
leaving each to exercise its own functions, always of curse, subject to the right of court
to intervene in an appropriate case when moved under section 491 Cr.P.C. to give
direction in the nature of habeas corpus.”
In Bhagwan Singh, 1983 SC 826, Supreme Court had to intervene and transfer
investigation to C.B.I, as police was turning a murder case of bride burning into suicide.
Otherwise as discussed earlier it is accepted law that court cannot interfere in
investigation (1963 S.C. 447), S.N. Sharma case 1970 SC 786, the power of police of
investigate is uncontrolled. Again in Kanal Singh, 1988 Cr.L.J. 578, it was held that
investigation being the exclusive field of the executive, it is not desirable to prevent the
police from investigating but in 1989 Cr.L.J. 1898, Patel, Gujarat High Court held that
police was trying to change suspicion of murder into suicide. So complainant alleging
murder was ordered to be registered as F.I.R. and investigation to be transferred to
C.I.D. (Crimes).
Thus, it is only in appropriate cases when investigation is mala fide, the court can
interfere to avoid miscarriage of justice only in exceptional cases. See 1988 S.C. 3323
referred to above.
The High Court can also not interfere in investigation under Article 227 Constitution
of India which empowers High Court superintendence only on Judicial or Quasi-Judicial
Tribunals; the investigating agency is none. Swaranjit Jain 1982 (I) C.L.R. 712.
The power of police to investigate cognizable case is not controlled by court. Even
the offences under section 417, 467 of forgery etc. which are cognizable can be
investigated by police inspite of the bar under section 195(1)(b)(ii). The bar will apply
only if document is given in court but if it is forged earlier to the institution of suit then
offence is already born prior to suit and the police has the right of investigation. This
point arose in Full Bench case of Punjab and Haryana High Court 1983 Cr.L.J. 713
Karnail Singh. The forged will was basis of mutation and declaration suit was filed later.
The right of police to investigate was conceded. Document forged outside court
presented in court. The bar under section 195 is not attracted and police can
investigate, 1989 P&H 19, 1988 Cr.L.J. 99.
There is only one exception when court can stop further investigation of a case.
Section 167(5) Cr.P.C. says that when a case is triable as a summons case and the
investigation is not concluded within a period of 6 months from the date of the arrest of
accused, the Magistrate shall make an order stopping further investigation unless, the
Investigating Officer satisfies him that continuation of investigation was necessary.
Session Judges can vacate such an order and sanction further investigation on
application of police under section 167(6) Cr.P.C.
There are certain offences in which sanction for prosecution under section 197
Cr.P.C. or some others provisions of Local and Special Law is required. For
investigation of these, however, the sanction is not necessary before starting of
investigation. Sanction for prosecution is always got after close of investigation and
before submission of charge-sheet. See 1945 Cal. 385. It was laid down in 1945 P.C. 18
Emp v. Kh. Nazir Ahmed that none can prohibit the police from investigating a case, the
court even cannot order the investigation to be stopped. Crown v. Mohd Sadiq Niwaz
1949 L. 204. Court has no inherent right under section 561A (now 482) Cr.P.C. to
interfere in investigation, it being statutory right of police to investigate cognizable
offences 1956 Pat. 528 : 1956 Cr.L.J. 1425. The proceedings before the police in
investigation are proceedings over which the police alone have full control and neither
the Magistrate nor even the High Court has power to interfere with such proceedings.
Parul Bola 1957 Cr.L.J. 713 (Cal).
It was held in A.K. Roy v. State of Bengal 1962, 135 that judiciary should not
interfere in matters which are within the province of police. The statutory right of police
to investigate should not be interfered with. See also 1962 (2) Cr.L.J. (Cal.) 655 State v.
Nirode Chandra.
The Magistrate has no control but has the opportunity to supervise investigation as
held in State v. Murh Dhar Goverdhan 1960 [Link]. 800 (Bombay). This deduction was
derived from the resume of the relevant provisions of the Code. “Chapter XIV (Now
Chapter XII) of the Code falls in Part V which deals with the information to the police
and then power to investigate. A Police Officer is empowered to investigate into any
cognizable offence without the order of a Magistrate. In respect of non-cognizable
offence, the police officer has no power without an order from a Magistrate to
commence the investigation.
Where a police officer has received information about or has reason to suspect the
commission of a cognizable offence, he must forthwith send a report of the same to a
Magistrate enpowered to take cognizance of such offence upon a police report and to
proceed in person or depute one of his subordinate officers to investigate the facts and
circumstances of the case and if necessary to take measures for the discovery and
arrest of the offenders (Section 157). A Magistrate receiving report from police officer
relating to the commission of a cognizable offence may direct an investigation or if he
thinks fit, at once, proceed or depute any Magistrate subordinate to him to proceed, to
hold a preliminary enquiry into or otherwise to dispose off, the case in manner provided
by Code (Section 159).
Power is also conferred upon certain Magistrates to record statements or
confessions in the course of investigation (Section 164). When a search is made by the
Investigating Officer, the record of the search must be sent to the nearest magistrate
empowered to take cognizance of the offence. (Section 165). If an investigation cannot
be completed within 24 hours, the I.O. must send the accused for remand to the nearest
Magistrate together with a copy of entries in the diary relating to the case and the
power is conferred upon the magistrate whether or not he has jurisdiction to try the
case to authorise the detention of the accused in such custody as the Magistrate thinks
fit (Section 167). If I.O. upon investigation comes to the conclusion that there is no
sufficient evidence or reasonable ground of suspicion to justify forwarding of the
accused to Magistrate, if such person is in custody, to release him on his executing a
bond with or without sureties, as such officer may direct, to appear, if and when so
required before a Magistrate empowered to take cognizance of the offence on a police
report and to try the accused or commit him for trial (Section 169). If it appears to the
I.O. that there is sufficient evidence or reasonable ground, the officer is bound to
forward the accused in custody to a Magistrate empowered to take cognizance of
offence upon a police report and to try the accused or commit him for trial (Section
170).
An I.O. must maintain a diary of his proceedings setting forth the time at which the
information reached him, the time at which he began and closed his investigation, the
place or places visited by him and a statement of the circumstances ascertained through
his investigation and a criminal court in course of a case under enquiry or trial in such
court, has the power to call for the police diaries for the purpose of aiding it during such
enquiry or trial (Section 172). It is also prescribed that every investigation shall be
completed without delay and as soon as it is completed, the I.O. shall forward to
Magistrate empowered to take cognizance of the offence on a police report, a report
setting forth the names of the parties, the nature of the information and the names of
the persons who appear to be acquainted with the circumstances of the case (Section
173).”

Quashing of Investigation
No court has control over investigation. It has only opportunity to supervise. No
court can quash investigation except High Court in exercise of its inherent powers
under section 482 Cr.P.C. The High Court cannot even appraise evidence collected by
the police in their investigation to quash the proceedings as held in Jehan Singh 1974
S.C. 1146. The High Court does not ordinarily enquires as to whether evidence is
reliable or not. So held in Hazari Lal Gupta 1972 S.C. 484. Further held “Where again
investigation into the circumstances of an alleged cognizable offence is carried on under
the provisions of Cr.P.C., the High Court does not interfere with such investigation
because it would then be impeding investigation and jurisdiction of statutory authority
to exercise powers under provisions of Cr. P.C. This power to quash as held by Supreme
Court in [Link] v. State of Punjab, 1960 Cr.L.J. 1239 can be exercised only in
proper case either to prevent the abuse of the process of any court or otherwise to
secure the ends of justice. Ordinarily criminal proceedings instituted against an accused
person must be continued under the provisions of the Code and the High Court would
be reluctant to interfere with the said proceedings at an interlocutory stage.” The
categories of cases where this power should be exercised are enumerated by Supreme
Court as under:
1. Where it manifestly appears that there is a legal bar against the institution or
continuance of the criminal proceedings in respect of the offence alleged.
Absence of the requisite sanction may for instance furnish cases under this
category.
2. Where the allegation in the F.I.R. even admitted in entirely do not make out
offence without appreciating evidence. In 1984 (2) C.L.R. 460 Darshan Singh,
case registered by police under section 4, 5 of Prize Charts and Money
Circulation Scheme (Banning) Act 1978. But no specific allegation of any
cognizable offence was made out, held, Police had no right to investigate under
section 157 Cr.P.C. and F.I.R. was quashed by High Court in exercise of its
inherent power under section 482.
3. Where allegation make out offence but there is either no legal evidence adduced
in support of the case or evidence adduced clearly or manifestly fails to prove the
charge.
Even if investigation has sufficiently gone for, accused is arrested, even if time for
challan has come, still investigation can be quashed.
This point arose in sec. 406 I.P.C. Cases, due to Misappropriation of Istri Dhan etc.
Division Bench of P&H High Court held in Vinod Kumar Sethi, 1982 (I) C.L.R. 638, it
can be quashed provided following circumstances exist:–
1. When F.I.R. even if accepted as true does not disclose reasonable suspicion of
cognizable offence.
2. When material collected in investigation so far does not disclose cognizable
offence.
 3. When continuation of investigation would amount to abuse of powers of I.O.
needing interference for justice.
4. High Court can still interfere to quash if satisfied that exercise of investigation is
mala fide.
The proceedings can be quashed only if the allegation in F.I.R., if accepted on their
face value do not constitute offence, 1977 C.L.R. (PB) 25 U.K. Batra. Misappropriation
of Istri Dhan is an offence under section 406 according to Supreme Court.
The High Court has the inherent power to quash the investigation under section 482
Cr.P.C. if F.I.R. does to disclose commission of offence, investigation can be quashed.
But it is not F.I.R. alone which is to be seen, if by the time other material has been
collected during investigation after registration of such an F.I.R. such material will be
looked into to quash the investigation. Held in Suresh Chandra 1988 Cr.L.J. 1175 by
Orissa High Court, ‘as under’. See also Hasan Ali Khan 1992 Cr.L.J. 1828.
1. If the F.I.R. does not disclose the commission of a cognizable offence against the
accused then the investigation commenced upon such F.I.R. is liable to be
quashed; even if accepted on its face value. 1989 SC 2222.
2. The High Court may quash such investigation either under section 482 Cr.P.C. or
Article 226 Constitution of India. See Rita Wilson 1992 Cr.L.J. 2400.
3. No such quashing of investigation would be made if by the time the
consideration is made by the High Court, materials have come to light as a result
of the investigation disclosing prima facie commission of an offence by the
accused.
Even in such case the investigation may be quashed if it is established that the
carrying of the investigation has resulted in miscarriage of justice.
Quashing investigation at an early stage on the ground that there are some
discrepancies between F.I.R. and the recorded statement of some of the witnesses is
improper. State of Bihar v. Raj Narayan Singh, 1991 Cr.L.J. 1416 (SC).
Delay in investigation ipso facto operates not as a person for quashing F.I.R. but,
when long after F.I.R the Government Servant (accused) is allowed to retire peacefully
and due to delay F.I.R. and consequent proceeding quashed by High Court, the order
should not be interfered only because 50 days after the quashing, Government accords
sanction for prosecution. State of A.P. v. Pavithram, 1990 Cr.L.J. 1306 (SC).
Ram Lal Yadav, 1989 Cr.L.J. 1013 (FB) All, held that the power of police to
investigate cannot be interfered with in exercise of its powers by High Court under
section 482 Cr.P.C. It is unfettered. These power come into play only after charge-sheet
is filed and not during investigation. This application was against the arrest of a person
in alleged violation of section 41(1)(a) Cr.P.C. The High Court held that only writ under
Article 226 Constitution of India could be filed.
Investigation by police officer–At the stage of investigation of prosecutrix and other
witnesses the I.O. could not have known the veracity or otherwise of the allegations–
Mere discrepancy in the documents was not sufficient for the trial court to have adopted
the extreme approach and directing departmental enquiry against the I.O.–Observation
and direction made by the trial court against the I.O., therefore, cannot be sustained
and set aside. State v. Chander Shekhar, 2012(1) JCC 476 (Delhi).
Fresh Investigation–Police investigating into the offence and filing final report under
section 173(8) Cr.P.C. Magistrate has no jurisdiction to direct “fresh” or “denovo”
investigation. However, once the report is filed, the Magistrate has jurisdiction to
accept the report or reject the same right at the threshold–Even after accepting the
report, it has the jurisdiction to discharge the accused or frame the charge and put him
to trial– But there are no provisions in Cr.P.C. which empower the Magistrate to disturb
the status of an accused pending investigation or when report is filed to wipe out the
report and its effect in law. Vinay Tyagi v. Irshad Ali & Deepak, 2013 Cr.L.J. 754.

Quashing of F.I.R. and Investigation

F.I.R can be quashed by High Court in exercise of its inherent powers under section
482 [Link] as investigation can be quashed as held in various High Court/Supreme
Court Rulings as above. There is no limitation for invoking the inherent power of the
Court. But an application must be filed within a reasonable time. Bata alias Bala Krishna
Behera. 1999 Cr.L.J. 1110. F.I.R. can only be quashed if no cognizable offence is
disclosed. In Subbasti Aggarwal 1989 Cr.L.J. 1752 Patna High Court held;
1. Pendency of Civil Suit or arbitration is no bar to criminal proceeding, they being
independent of each other.
2. F.I.R. at the initial stage must disclose some cognizable offence so that the police
may proceed with the investigation as it is prerogative of the police to
investigate.
F.I.R. as such cannot be quashed. Further it can be quashed only if it is shown that it
was registered malafide or without jurisdiction; and if it is found that the investigation
on basis of such report was not being properly conducted or it is with a view to harass
or promptitude.
F.I.R. against a police officer alleging wrongful arrest of the person concerned, but
the person concerned released immediately after his non-complicity transpired, there
was no wrong or malicious intention of police officer against him, held the F.I.R. against
police officer is liable to be quashed. Ram Babu Singh, 1993 Cr.L.J. 1253.
Case registered against petitioners on the allegation of forging documents and
transferring shares of a company in their favour–F.I.R. under section 420, 468, 471
I.P.C. did not show how, when and where were these documents forged and with whose
connivance were they forged and how these shares were illegally transferred in their
names–F.I.R. quashed. Harbans Singh v. State of Punjab, 2003 (1) RCR (Cri.) 65.
Complaint case regarding forgery of will dismissed by Magistrate–Thereafter F.I.R.
lodged by complainant on same facts–No Fresh material available with complainant–
F.I.R. quashed–It is misuse of process of law. Sawran Singh v. State of Punjab, 2002 (2)
RCR (Cri.) 847.
Cruelty and harassment to bribe on account of dowry–F.I.R. against husband, his
mother and three married sisters who lived at far off places–F.I.R. against them
quashed–Demand of dowry was for benefit of husband, others had no role to play. Smt.
Nirmala v. State of Haryana, 2002 (3) RCR (Cri.) 246.
F.I.R. under section 406 I.P.C.–Dowry articles–Misappropriation of disputed question
whether dowry articles were misappropriated or not–No ground to quash F.I.R.. Rishi
Anand v. Govt of NCT of Delhi, 2002 (2) RCR (Cri.) 273 (SC).
F.I.R. in theft of forest trees–F.I.R. quashed by High Court–Order of High court set
aside–High Court entered into factual arena and acted more as an investigating agency
at a stage when the F.I.R. was under investigation. State of Punjab v. Subhash Kumar,
2006 (2) RCR (Cri.) 64 (SC).
High Court has power to quash an F.I.R. or even complaint–It need not wait for
completion of investigation or taking cognizance by Magistrate–It is subject to
limitations laid down by Supreme Court as under–
(1) Where the allegations made in the First Information Report or the complaint,
even if they are taken at their face value and accepted in their entirety do not
prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any,
accompanying the F.I.R. do not disclose a cognizable offence, justifying an
investigation by police officers under section 156(1) of the Code except under an
order of a Magistrate within the purview of section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the F.I.R. or complaint and the
evidence collected in support of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where the allegations in the F.I.R. do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as contemplated under section
155(2) of the Code.
(5) Where the allegations made in the F.I.R. or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for proceeding against the
accused.
 (6) Where there is an express legal bar engrafted in any of the provisions of the
Code or the concerned Act (under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party. 1991(1) RCR (Cri.) 383 (SC),
2004 SCC (Cr.) 120 relied and 1992(3) ALT 454 approved. Girish Sarwate v.
State of A.P., 2005(1) RCR (Cri.) 758 (AP) (FB).
Quashing of F.I.R.–When an information is lodged at the police station and an
offence is registered, then the malafides of the informant would be of secondary
importance–It is the material collected during the investigation and evidence led in
court which decides the fate of the accused person–The allegations of malafides against
the informant are of no consequence and cannot by themselves be the basis for
quashing the proceedings. M/s Zandu Pharmaceutical Works Ltd. v. Md. Sharaful
Haque, AIR 2005 SC 9.
Quashing of F.I.R. and criminal proceedings–F.I.R. lodged with police–Allegation of
malafide against informant is no ground to quash F.I.R.–Malafides of the informant
would be of secondary importance–It is the material collected during the investigation
and evidence led in court which decides the fate of the accused person–The allegations
of malafides against the informant are of no consequence and cannot by itself be the
basis for quashing the proceedings. State of A.P. v. Goloconda L. Swamy, AIR 2004 SC
3967.
F.I.R. under sections 406, 409 I.P.C. against accused (ex sarpanch of village) that he
did not hand over entire record to new sarpanch–Not shown which record was in his
possession–Matters was 8 Years old–F.I.R. quashed. Zile Singh v. State of Haryana,
2002 (3) RCR (Cri.) 266.
Corruption case against public servant–Thirteen years delay in granting sanction by
Government–F.I.R. quashed–In cases of corruption, the amount involved is not material
but speedy justice is the mandate of the Constitution. Mahendra Lal Das v. State of
Bihar, AIR 2001 SC 2989.
Petition to quash charge-sheet and proceedings on plea that offence alleged to have
been committed was beyond territorial jurisdiction of Magistrate, Raipur in whose Court
charge-sheet was filed under section 498A/34 I.P.C. F.I.R. & diary statement of
witnesses showed that the crime had taken place either an Rajnandgaon or at place
where husband was working at Gujarat. Court said offence under section 498A I.P.C.
was not a continuing offence & the proceeding before the Magistrate at Raipur were
liable to be quashed. Prakash Pal & Others v. State of Chhatisgarh, 2011 (1) Crimes 59
(Chhatt.).
Section 482–Appeal against judgement of High Court where by petition for quashing
criminal proceedings against appellants pending before the trial court had been
dismissed. The Supreme Court said in order to lodge a proper complaint were mention
of the sections and language of those section is not be all end of the matter. What is
required to be brought to the notice of the court is the particulars of the offence
committed by each and every accused and the roll played by each and every accused in
committing of that offence. If the complaint is sadly vague. It would be an abuse of
process of law to allow the prosecution to continue against the accused on the basis of
vague and general complaint when it is silent about the precise acts of the appellants.
Proceedings quashed. Neelu Chopra v. Bharti, 2009 (4) Crimes 219 (SC).
Sections 482, 154(3), 156(3), 200 Cr.P.C.–Power of Magistrate to direct registration
of F.I.R.– The Magistrate has very wide powers to direct registration of an F.I.R. and to
ensure a proper investigation by monitoring investigations to ensure about proper
investigation. The High Court should discourage the practice of filing a writ petition or
petition under section 482 Cr.P.C. simply because a person has a grievance that his
F.I.R. has not been registered by the police, or after being registered, proper
investigation has not been done by the police. Sakiri Vasu v. State of U.P., 2007 (4)
Crimes 338 (SC).
Section 482–Power of High Court to interfere with the statutory power of
investigation by police into a cognizance offence–The power under section 482 can be
exercised by the High Court either suo motu or on an application to secure the end of
justice. High Court may make such orders as may be necessary to give effects to any
order under the Code or to prevent abuse of the process of any court. The High Court is
not expected to make any casual observations without having any regard to the possible
consequences that may ensue from such observations. D. Venkata-Subramniam v. M.K.
Mohan Krishnamachare, 2009 (4) Crimes 59 (SC).
Sections 482 & 362 Cr.P.C.– Application by complainant for modification/correction
of judgment passed in Criminal Procedure Code–Without hearing complainant, order on
petition quashing change should not be passed. Parmod Bagga v. State, 2008 (1) Crimes
577 (Del.).
Section 482 Cr.P.C.–Court has wide power to quash proceedings even in non-
compoundable offences notwithstanding bar under section 320 Cr.P.C. to secure ends of
justice. Satyanarain v. State of Haryana, 2010 (2) Crimes 288 (P&H).
Section 482 Cr.P.C.–Mutual petition to quash F.I.R. registered under sections 363,
366 & 376 I.P.C–Petitioner (girl) got married to Respondent in a temple & F.I.R. was got
registered by father of the girl. Name of the respondent were introduced in 164 Cr.P.C.
statement–Petitioners later agreed for divorce by mutual consent–Parties agreed to get
F.I.R. quashed–In view of no objection given by State, as a special case, there would be
of no use to keep the prosecution alive–F.I.R. directed to be quashed. Shankar Lal v.
The State, 2009(2) Crimes 265 (Delhi).
Section 482 Cr.P.C.–Quashing of F.I.R. registered under sections 363 & 366 I.P.C–
F.I.R. was lodged by father of the girl stating that her age was being 15 yrs. The girl in
her statement under section 164 Cr.P.C. stated that she was in love with the accused
and had gone with him by her own wish and will. The medical opinion showed the age of
the girl was 18 yrs. The father of the girl had given no objection to quashing of F.I.R. In
view of the same no allegations of offence under section 376 I.P.C–F.I.R. deserved to be
quashed. Sheokat Ali v. State of Rajasthan, 2011 (3) Crimes 493 (Raj.).
Section 482–Quashing of criminal case under sections 498A, 323, 506 & 324 I.P.C.
and under section 3 and 4 of Dowry Prohibition Act on the ground that parties had
settled their disputes. The Court held that for securing ends of justice quashing of F.I.R.
if found necessary then section 320 Cr.P.C. would not be a bar to exercise of power to
quash the proceedings–Proceedings deserved to be quashed. Rajeev Kumar v. State of
U.P., 2011 (4) Crimes 712 (All.).
Section 482 Cr.P.C–Petition to quash F.I.R. and investigation which was registered
under section 379 I.P.C. On a complaint that wooden logs kept in garden–Land were
taken away by petitioner (accused)–Plea of the petitioner (accused) was that there had
been a civil litigation between the parties on the same issue–Whether F.I.R. and
proceedings were liable to be quashed? It was held that the same cannot be quashed.
P.N. Shobha v. State, 2010 (4) Crimes 634 (Kar.).
Section 482–Quashing of F.I.R.–An application was filed under section 482
Cr.P.C. for defreezing of the bank account of the accused besides quashing of F.I.R. It
has been seen that the accused filed an earlier application seeking virtually the same
relief before the Division Bench and without press it was withdrawn. Single Judge
should not have entertained the application under section 482 Cr.P.C. in respect of the
same relief. High Court order was set aside. State of Maharashtra v. Avinash, 2017(4)
Crimes 392 SC.
Section 482–Quashing of Charges–Charges framed against accused could not be
quashed where notification was issued against the rules and in absence of approval of
cabinet. Mauvin Godinho v. State of Goa, 2018 Cr.L.J. 1717 SC.
Section 482–Quashing of charge-sheet–Preliminary enquiry was made by police but
some was not entered in the station diary. In such circumstances, High Court was not
held to be justified is quashing F.I.R. of the case. State of Lokayuktha Police v. H.
Srinivas, 2018(1) SCCri. 564.
Section 482–Quashing of F.I.R.–The case was registered for offences of forgery and
cheating and fabricating false documents against the accused. The accused filed
application under section 482 Cr.P.C. seeking quashing of F.I.R. It was revealed that
accused were absconding and warrants had been issued against them and the accused
have criminal antecedents. It was a case involving extortion, forgery and conspiracy as
such it was not in the interest of the society to quash the F.I.R. on the ground that a
settlement had been arrived at with the complainant. Declined to quash F.I.R. Prabhat
Bhai Aahir @ Prabhatbhai Bhimsinbha Karmur v. State of Gujarat, 2017(4) Crimes 166
SC.
Section 482–Quashing of F.I.R.–Magistrate may reject on consideration of the
material on record. The report of the investigating agency cannot be relied on by the
High Court while exercising powers under section 482 of the Code. High Court while
quashing the F.I.R. in the exercise of its inherent powers under section 482 of the Code
by relying on the investigation report and the findings has acted beyond its jurisdiction.
For the purpose of finding out the commission of a cognizable offence, the High Court
was only required to look into the allegations made in the complaint or the F.I.R. and to
conclude whether a prime facie offence had been made out by the complainant in the
F.I.R. or the complaint or not. Pratibha v. Rameshwami Devi, 2007(4) Crimes 76 SC.
Section 482–Quashing of F.I.R.–F.I.R. lodged upon discovery of new fact after
disposal of earlier complaint, cannot be quashed on ground that earlier proceedings
were quashed. Om Prakash Singh v. State of Bihar, 2018 Cr.L.J. 2909 SC.
Section 482–Quashing of Prosecution–Legal position is well settled that when a
prosecution at the initial stage is asked to be quashed, the test to be applied by the
Court is as to whether the uncontroverted allegations as made prima facie establish the
offence. It is also for the court to take into consideration any special features which
appear in a particular case to consider whether it is expedient and in the interest of
justice to permit a prosecution to continue. Abdul Rehman v. KM Anees UR Haq, 2012
SCC (Cri.) 93.
Section 482–Quashing of proceedings–Inherent power given under section 482
Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process
of Court is sought to be abused by a person with some obligue motive, the Court has to
thwart the attempt at the very threshold. When there are material to indicate that a
criminal proceeding is manifestly attended with malafide and proceeding is maliciously
instituted with an ulterior motive, the High Court will not hesitate in exercise of its
jurisdiction under section 482 Cr.P.C. to quash the proceeding. Vineet Kumar v. State of
U.P., AIR 2017 SC 1884.
Section 482–Quashing of F.I.R.–The alleged accused used to keep calling the wife of
the victim on her mobile and keep harassing her. The allegations were supported by the
statements of the mother and wife of the victim was recorded during investigation. It
was revealed that prior to the suicide there was an altercation between the victim and
the accused. High Court was not justified in entering into question whether the accused
had the requisite intention to aid or instigate or abet the commission of suicide. Set
aside the order of High Court and directed the concerned authorities to complete the
investigation as early as possible. Narayan Malhari v. Vinayak, 2019 Cr.L.J. 1290 (SC).
Section 482–Quashing of proceedings–High Court while exercising its power under
section 482 Cr.P.C. quashed the F.I.R. for the offence under section 307 and 34 I.P.C.
solely on the basis of a compromise between the complainant and the accused. High
Court failed to note and appreciate all points to scrutinize the entire conspectus of the
facts in proper perspective and mechanically quashed the F.I.R. Order of High Court set
aside. State of U.P. v. Laxmi, 2019 Cr.L.J. 1862 (SC).
Section 482–Inherent power–For quashing the proceedings, meticulous analysis of
factum of taking cognizance of an offence by the Magistrate is not called for.
Appreciation of evidence is also not permissible in exercise of inherent powers of the
allegations set out in the complaint do not constitute the offence of which cognizance
has been taken, it is open to the High Court to quash the same. Dhruvaram v. State of
Maharashtra, 2019 Cr.L.J. 1169 (SC).
Maintainability of an application to quash proceedings–It is well settled that an
application under section 482 of the Criminal Procedure Code, 1973 is maintainable to
quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of
process of court. D. Devaraja v. Owais Sabeer Hussain, (2020) Cr.L.J. 3745 : AIR 20210
SC 3292.
Consideration of the grant of bail to the approver by the High Court–In inherent
powers of the Court under section 482 of the Code, 1973, the High Court after
considering the status of witness can consider issue of grant of bail to the approver only
after being discharged from the case. Rajkumar Sahu v. State of Chhattisgarh, 2021
Cr.L.J. 1222 (Chh.).
Condition for exercise of power–If on the face of the complaint, the alleged act
appears to have a reasonable relationship with official duty, where the criminal
proceeding is apparently prompted by mala fides and instituted with ulterior motive,
power under section 482 of the Code, 1973 can be exercised to quash the proceedings
to prevent abuse of process of court. D. Devaraja v. Owais Sabeer Hussain, (2020)
Cr.L.J. 3745 : AIR 2021 SC 3292.
Effect of the legislative bar on inherent jurisdiction of the High Court–Despite the
legislative bar contained in section 306(4)(b) of the Code, 1973, the High Court can
consider the application for releasing approver on bail with certain conditions in its
inherent jurisdiction under section 482 of the Code in appropriate and reasonable case.
Rajkumar Sahu v. State of Chhattisgarh, 2021 Cr.L.J. 1222 (Chh.).
Validity of refusal to exercise jurisdiction by the High Court–The High Court after
having held that it was a recognized principle of law that sanction was a legal
requirement which empowers the Court to take cognizance clearly erred in law in
refusing to exercise its jurisdiction under Section 482 of the Code to set aside the order
of the Magistrate impugned taking cognizance of the complaint. D. Devaraja v. Owais
Sabeer Hussain, (2020) Cr.L.J. 3745 : AIR 2021 SC 3292.
Validity of quashing of proceedings–If the turtle seized was found not included in the
Wild Life (Protection) Act, 1972 and had already been freed on second day of its seizure,
then order of High Court quashing proceedings was held to be valid and proper. Titty
alias George Kurian v. Deputy Range Forest Officer, AIR 2021 SC 223.
Delay in Investigation
Petition to quash F.I.R. registered under section 406 and 498/34 I.P.C. Power of
quashing the criminal proceedings to be exercised sparingly and with circumspection
and in rarest of rare cases–Court could not enter into the investigation of facts. Madan
Mohan Sethi v. State (NCT of Delhi), 2008(1) Crimes 243 (Del.).
As laid down in section 173(1) Cr.P.C, the investigation in every case shall be
completed without unnecessary delay. No statutory limit has, however, been placed as
to the time within which it should be completed. An unfettered power to investigate
cases has been conferred on police. It is only when the investigation is mala fide that
High Court can issue a writ of Mandamus under Article 226 Constitution of India to
restrain the police from misusing its powers in further investigating the case. S.N.
Sharma 1970 S.C. 786. In Amal Chander 1973 Cr.L.J. 1756. Supreme Court further held
that “Simply because the police has made a great delay in investigation, it cannot be
inferred that investigation is malafide or tainted.”
In Bhabadeb Mendal, 1972 S.C. 1852 where the accused feels aggrieved because of
delay in investigation of cases against him, no writ of habeas corpus or any other relief
can be granted to him under Article 32. The remedy was to apply for bail. See Krishna
Bahadur 1971 Patna 237 where an accused had been in custody for 40 months and
investigation was still not finalized. Held delay was malafide, and writ for habeas corpus
lay but not plea for discharge.
Though no time limit has been fixed for completion of investigation except in section
167(5), investigation of summons cases (discussed) next (curbs on delay), it was held in
1986 Patna 324 (FB) Madhesh Wardhan Singh, that in all criminal prosecutions the
right to speedy trial is fundamental right under Article 21 Constitution of India. It is
admissible irrespective of nature of offence involved. It is applicable not only to
proceedings before court but also to police investigation preceeding it. It does not
conflict with Code except capital offence where outer time limit of 7 years was fixed for
concluding investigation and original trial.
F.I.R. was issued on 1977, the charge-sheet was filed only on 9th Feb, 1983 after a
lapse of five years, no explanation is forth-coming for this extraordinary delay. May be,
this being a case of misappropriation of public funds, the investigation may have taken a
longer time but it cannot certainly take more than 5 years having regard to the facts
and circumstances of the case-Right to speedy trial has been infringed–F.I.R. liable to
be quashed. Abdul Rehman Antulay, AIR 1992 SC 1701.
It was held in 1987 Cr.L.J. 187(SC) Raghbir Singh, that right to speedy trial is the
right to life and liberty under Article 21. But its infringement cannot be inferred merely
for delay in police investigation. It, however, depends upon facts and circumstances of
each case.
The right for speedy trial is a constitutional right conferred by Article 21, being right
to life and liberty. Therefore delayed trial is condemned in 1986 S.C. 289, 1990 Cr.L.J.
26.
But if trial is delayed due to conduct of accused, they having materially contributed
delay, being primarily responsible for it, they lost right and must be deemed to have
waived right to speedy trial. Ram Nath 1988 Cr.L.J. 324.
Extra-ordinary delay in filing charge-sheet, taking evidence and framing of charges-
Right to speedy trial has been infringed-Prosecution quashed. Biswanath Prasad Singh
1994 Cr.L.J. 242.

Curbs on Delay
Indirectly, however, the provisions contained in sections 167 and 467 to 473 Cr.P.C.
require, that investigation continued beyond certain periods will result in bail of
accused, in its stoppage and in refusal of court to take cognizance of cases. According
to section 167(2)(a), no Magistrate shall authorise the detention of the accused person
in custody for remand for a total period exceeding 60/90 days when the accused person
shall be released on bail. This will be irrespective of the offence whether it is of murder
or dacoity. This requires that to avoid release of accused on bail from the date of his
arrest beyond 60 days, challan under section 173 Cr.P.C. should be put in Court within
60 days of the arrest of the accused.
 Section 167(5) Cr.P.C. lays down that if in any case triable by a Magistrate as a
Summons Case (punishable upto 2 years) the investigation is not concluded within a
period of 6 months from the date on which accused was arrested, the Magistrate shall
make an order stopping further investigation into the offence unless the officer making
the investigation satisfies, the Magistrate that for special reasons and in the interests of
a justice the continuation of investigation beyond the period of 6 months if necessary. If
in such a case investigation is required to be continued beyond 6 months, then the
magistrate should be moved for sanction to continue investigation. There should be
special reason for that. The order of the Magistrate should also indicate special reasons.
In 1983 Cr.L.J. 30 Ram Briksh, challan was given in 186 days after commencement
of investigation; no special reasons given; cognizance of challan was refused. Session
Judge can vacate this order under section 167(6) Cr.P.C, if satisfied that further
investigation was necessary. All that is required is that investigation should be
completed within 6 months of the arrest of accused. This is indicated by drawing of
report under section 173 Cr.P.C. The mere filing of charge-sheet may be after 6 months
and that delay will not constitute breach of provision under section 167(5) Cr.P.C.
Pappa Rao 1985 Cr.L.J. 546 (Cal.) but in Dr. J.S. Parwana 1985 (2) C.L.R. 203, Punjab
High Court quashed the prosecution in a case under section 304A where sanction of
Magistrate was not obtained to continue investigation after 6 months and challan
presented after 8 months. However, in a D.B. Case Court on its own motion v. State and
Jai Bhagwan, 1985(2) R.C.R. 178 it was held as under:
(i) Even if investigation is continued after 6 months without obtaining sanction
under section 167(5) still challan can be given;
(ii) Conviction can still be passed on trial of such a case unless defence establishes
that because of such invalid investigation, a failure of justice has occasioned in
terms of section 464 Cr.P.C.
(iii) The Magistrate can refuse to look into evidence collected after 6 months of
investigation.
(iv) Application for continuance of investigation can still be made after expiry of 6
months.
Kerala High Court also quashed conviction under section 304A when final report
was filed by police after 6 years of incidence and no application for condonation of delay
in investigation was filed by police in a case under section 304A IPC 1990 Cr.L.J. 356.
The period of 6 months for continuing investigation will start from the date on which
the accused was arrested. In 1986 Cr.L.J. 1136, date of production of accused before
Magistrate and authorized detention was taken for determining the date. 1979 Cr.L.J. 1
and 1983 Cr.L.J. 1336 were dissented in this ruling.
In 1987 Cr.L.J. 170 Bhaskaran Nair, the date of surrender of accused was held to be
the target date. It was held that “‘Surrender” is included in arrest. It was further held
that completion of investigation within 6 months of arrest does not bar giving of challan
in court even after six months, though no permission for continuing enquiry was taken.
No prejudice to accused and the cognizance was held to be valid. 1981 Cr.L. J. 1289,
1982 Cr.L.J. 748, 1983 Cr.L.J. 1748 overruled.
High Court can order under inherent power the surrendering in court different from
one taking cognizance. F.I.R. in police station within Haridwar, but accused would be
under grave apprehension of life if he surrenders in court at Haridwar even under
police protection-High Court ordering him to surrender in Allahabad and staying non-
bailable warrant of arrest till his surrender. Ram Preet Singh, (1990) 1 Crimes 531 (All).
Under section 167(5) Cr.P.C., the Magistrate can give permission after expiry of six
months. Accused not entitled to be heard, Ravinder Pal, 1986 Cr.L.J. 1371.
The cognizance on challan given after 6 months is not barred. Even section 167(5)
does not bar it. Only provision which puts limitation on giving of challan is section 468.
It was, therefore, held in PP v. Sagam Pratap 1988 Cr.L.J. 1057 A.P. that court cannot
refuse cognizance on challan filed after 6 months continuing of investigation. The court
can ignore material collected beyond six months if sanction is not taken under section
167(5).
 All cases punishable upto 2 years or less should, therefore be finalised in
investigation within 6 months of the arrest of accused. Section 468 Cr.P.C. lays down
that no court shall take cognizance of an offence as specified below, after the period of
limitation which shall be;
(a) 6 months if the offence is punishable with fine only,
(b) one year, if the offence is punishable with imprisonment for a term not
exceeding one year,
(c) three years, if the offence is punishable with imprisonment for a term exceeding
one year but not exceeding 3 years.
The investigation of such offences should always be finished in time and challan
should be put in court for cognizance of Court. The commencement of period of
limitation and the exclusion of time and its extension are indicated in section 469
Cr.P.C. There is no time limit for other offences. (For delay further see Chapters IV and
IX).
Bail–Entitlement on expiring of 90 days–Computation of 90 days–Challan not
presented–Day of remand to judicial custody to be excluded and day of filing of the
charge-sheet to be included in computing that period of 90 days–Case remanded on 13-
10-2004-Charge-sheet filed on 11-1-2005–Date of charge sheet falls on 90 th day, not 91st
day. Katari P. Rao v. Chundari Bala N. Murthi, 2006 (2) RCR (Cri.) 489 (AP).
Section 167–Incomplete charge-sheet submitted by police–Submission of a proforma
as envisaged in section 173(2) by police without any accompaniments as envisaged in
section 173(5) does not indicate completion of investigation–Accused entitled to bail
under section 167(2) Cr.P.C. Punya Ram v. State of Maharashtra, 2006 (1) RCR (Cri.)
541.
Section 167–Accused has a right to be released on bail if challan is not put up with
60 days or 90 days, but right to file application for bail will expire as soon as charge-
sheet is filed. Smt. Amarawati v. State of U.P., 2005 Cr.L.J. 755.
Section 167(2)–Police not completing investigation within 60/90 days–It is duty of
court to inform the accused when brought before court for extending remand that he
has a right to apply for bail under section 167(2) proviso Cr.P.C.– But it confers no right
of automatic order of bail–It cannot be said that an accused can get an order of bail as a
matter of course or in a routine manner de hors the provisions of Section 437 (1) of
Cr.P.C. Bukke Ranuka v. State of A.P., 2006 (1) RCR (Cri.) 577.
Section 167(2)–Constitution of India, Article 21–Accused in custody–Challan not filed
within the period specified in section 167(2) Cr.P.C.–Accused gets an indefeasible right
to be released on bail–Held:–
1. Under sub-section (2) of section 167, a Magistrate before whom an accused is
produced while the police is investigating into the offence can authorise
detention of the accused in such custody as the Magistrate thinks fit for a term
not exceeding 15 days in the whole.
2. Under the proviso to aforesaid sub-section (2) of section 167, the Magistrate may
authorise detention of the accused otherwise than the custody of police for a
total period not exceeding 90 days where the investigation relates to offence
punishable with death, imprisonment for life or imprisonment for a term of not
less than 10 years, and 60 days where the investigation relates to any other
offence.
3. On the expiry of the said period of 90 days or 60 days, as the case may be, an
indefeasible right accrues in favour of the accused for being released on bail on
account of default by the Investigating Agency in the completion of the
investigation within the period prescribed and the accused is entitled to be
released on bail, if he is prepared to furnish the bail, as directed by the
Magistrate.
4. When an application for bail is filed by an accused for enforcement of his
indefeasible right alleged to have accrued in his favour on account of default on
the part of the Investigating Agency in completion of the investigation within the
specified period, the Magistrate/Court must dispose of it forthwith, on being
satisfied that in fact the accused has been in custody for the period of 90 days or
 60 days, as specified and no charge-sheet has been filed by the Investigating
Agency. Such prompt action on the part of the Magistrate/Court will not enable
the prosecution to frustrate the object of the Act and the Legislative mandate of
an accused being released on bail on account of the default on the part of the
Investigating Agency in completing the investigation within the period
stipulated.
5. If the accused is unable to furnish bail, as directed by the Magistrate, then the
conjoint reading of Explanation I and proviso to sub-section (2) of section 167,
the continued custody of the accused even beyond the specified period in
paragraph (a) will not be unauthorised, and, therefore, if during that period the
investigation is complete and charge-sheet is filed then the so-called indefeasible
right of the accused would stand extinguished.
6. The expression if not already availed of used by this Court in Sanjay Dutt’s case
(supra) must be understood to mean when the accused files an application and is
prepared to offer bail on being directed. In other words, on expiry of the period
specified in paragraph (a) of proviso to sub-section (2) of section 167 if the ac-
cused files an application for bail and offers also to furnish the bail, on being di-
rected, then it has to be held that the accused has availed of his indefeasible
right even though the Court has not considered the said application and has not
indicated the terms and conditions of bail, and the accused has not furnished the
same. Uday Mohanlal Acharya v. State of Maharashtra, AIR 2001 SC 1910.
Section 167 (5)–Offence triable as summon case–Investigation not completed within
six months sanction of Magistrate to continue the investigation not obtained challan
presented beyond six months–Proceeding quashed. Bhim Sain v. State of Haryana, 2002
(1) RCR (Cri.) 596.
Section 167 (2)(a) (i)–Accused arrested under section 307 I.P.C.–Challan put up after
expiry of 90 days–Accused applying for bail when challan had already been put up–Right
of accused for release u/s 167(2) Cr.P.C. is not defeated on presentation of challan.
Balwinder Singh v. State of Punjab, 2004 (1) RCR (Cri.) 1002.
Sections 468 and 473–Magistrate taking cognizance of offence after period of
limitation by condoning delay–In the case an order was passed by High Court, but there
was no stay of proceedings by High Court–Magistrate condoned the delay by
misunderstanding that there was stay–Order of Magistrate condoning delay set aside–
To misunderstand an order is the ground to condone delay. Ramesh Chandra Sinha v.
State of Bihar, AIR 2003 SC 3635.
Sections 468(2) and 473–Theft of electricity–Delay of four years in filing charge -
sheet–Order of Magistrate condoning delay without opportunity to accused set aside–
Magistrate ought to have given opportunity to accused before condoning the delay–
Neither the prosecution nor the magistrate stated that condoning of delay is essential in
the interest of justice. Sanjay Gupta v. State, 2004 Cr.L.J. 157.
Sections 167(2)–The right under section 167(2) Cr.P.C. to be released on bail on
default if charge-sheet is not filed within 90 days from the date of first demand is not an
absolute or indefeasible right–The right would be lost if charge sheet is filed and would
not survive after the filing of the charge-sheet–if before the consideration of the bail
application for being released on bail on the ground that charge-sheet was not filed
within 90 days, and charge-sheet was filed before consideration of bail application the
said right to be released on bail would be lost. Sadhuri Pragyana Singh Thakur v. State
of Maharashtra, 2011(4) Crimes 135(SC).
Section 167(2)–Petitioner was arrested in a case under NDPS Act and more than 10
kg. ganja was seized from him. The case was covered by section 167(2) as the offence
under section 20. NDPS Act was punishable by imprisonment upto 10 yrs. He was
arrested on 24.4.2010–Charge-sheet was filed on 24.6.2010 and on the same day, the
bail application was filed. It was held by the court that an indefeasible right accused in
favour of applicant and it could not be taken away by filing the charge-sheet and the
petitioner was released on bail. Ramesh Gautam v. State of Chhatisgarh, 2010(4)
Crimes 709 (Chhatt.).
Section 167(2)–Bail application was moved on default in filing a charge-sheet within
stipulated period. In this case, the petitioner was arrested on 27.10.2010 in murder
case and the bail application was moved on 27.10.2010 and charge-sheet was filed by
police on that date at 2 p.m. Trial Court has rejected the bail application seeking bail in
default. Chandra Pal v. State of U.P., 2011(4) Crimes 679 (All).
Section 167(2)–In this instant case, the bail was granted on 25.2.2011. The
petitioner approached the Court for furnishing the bond on 28.2.2011. By that time the
charge-sheet was submitted in presence of the accused who was produced from
custody. It was held by the court that the petitioner accused was not entitled to be
released on bail. Monotosh Ghose v. State, W.B. 2011(3) Crimes 636 (Cal.) & Gyan
Chand Aggarwal v. CBI, 2007(3) Crimes 118 (Chatt.).
Section 167(2)–Challan was filed during pendency of regular bail application before
High Court but challan was filed beyond statutory period– It was held by the High Court
that the Court will not direct accused to more before Magistrate for seeking bail for
non-filing of challan within statutory period but they could enlarge petitoner on bail
under section 167(2) Cr.P.C. Somnath v. State of Punjab, 2012(1) Crimes 123 (P&H).
Section 167(2)–In this case the petitioner was arrested in a case under section 363
and 366 I.P.C. and was in custody since 17.2.2011. Bail application was moved on
9.5.2011 claiming default bail. On the same day charge-sheet was also filed. The Court
said that right to be released on bail stood defeated when charge-sheet was filed and
denying bail suffered no illegality. Sukhai v. State of U.P., 2012(1) Crimes 314 (All).
Section 167(2)–Once the charge-sheet has been filed and cognizance of the offence
is taken, the Court cannot exercise its power under section 167(2). The power of
remand is to be exercised when investigation is not complete. After the cognizance, the
power of remand can be exercised in terms of section 309(2) Cr.P.C. Mithabhai Ritalal
Patel v. State of Gujarat, 2009 (2) Crimes 475 SC.
Section 167–Rejection of bail–Cognizance had been taken by ACJM on account of
completion of police report under section 173(2) containing particulars. Contention was
raised that police report filed in this case is not as per the legal requirement under
section 173(2) & (5) of Cr.P.C which entitled him for default bail. Plea rejected. No. call
for interference by Court. Narendra Kumar Amin v. CBI, 2015 Cr.L.J. 1334 (SC).
Section 167–Extention of remand–The act of directing remand of an accused is
fundamentally a judicial function. The Magistrate does not act in executive capacity
while ordering the detention of the accused. When the investigation is not completed
within 24 hours, Magistrate is empowered to see, whether remand is really necessary.
This requires the investigating agency to send the case diary along with remand report
so that the magistrate can appreciate the factual scenario and apply his mind on
request of police remand. It is obligatory on the part of the magistrate to satisfy himself
before committing the accused to custody and extending his remand. Manubhai R. Patel
v. State of Gujarat, 2013 Cr.L.J. 160 (SC).
Section 167–In the present case, on 90th day, there were no papers or charge-sheet
as per section 173 Cr.P.C. for the concerned magistrate to access the situation whether
on merits the accused was required to be remanded to further custody. The prescribed
period of 60 or 90 days of remand of accused to custody under section 167 Cr.P.C
cannot be extended by court. Accused entitled to bail under section 167(2) Cr.P.C.
Achpal v. State of Rajasthan, 2019 Cr.L.J. 401 (SC).
This case was thrown into focus certain important issues regarding the right of an
accused to be released on bail under section 167(2) of Cr.P.C. One of such issues
concerns the power of the magistrate to pass orders of remand even beyond the period
envisaged under section 167(2) Cr.P.C. In the instant case, despite charge-sheet having
been filed, no cognizance has been taken on the basis thereof. The magistrate has
continued to pass remand orders without apparently having proceeded to the stage
contemplated under section 309 Cr.P.C. In this case charge-sheet has been filed within
the time stipulated under section 167(2) Cr.P.C. but sanction to prosecute the petitioner
accused had not been obtained. The Apex Court observed that the power of remand is
vested in the court at the very initial stage before taking a cognizance under section
167(2) Cr.P.C. Once cognizance is taken, the power to remand shifts to the provisions of
section 309 Cr.P.C. under which the trial court is empowered to postpone or adjourn
proceedings, and for the said purpose, to extend the period the detention from time to
time. The court held that notwithstanding the fact that the prosecution had not been
able to obtain sanction to prosecute the accused, the accused was not entitled to grant
of statutory bail since the charge-sheet had been filed well within the period
contemplated under section 167(2)(a)(ii) Cr.P.C. Sanction is an enascing provision to
prosecute, which is totally separate from the concept of investigation. SLP dismissed.
Suresh Kumar Bhikam Chand Jain v. State of Maharashtra, Cr. No. 147/2013 SC.
Importance of the personal liberty of a person–The scheme of Code of Criminal
Procedure, 1973 clearly indicates that provisions of section 167 of Code of Criminal
Procedure gives due regard to the personal liberty of a person, hence, without
submission of charge sheet within 60 days or 90 days, as the case may be, an accused
person cannot be detained by the Police. S. Kasi v. State, through the Inspector of
Police, Samaynallur Police Station, Madurai District, (2020) Cr.L.J. 3588 : AIR 2020 SC
2921.
Nature of the provisions of section–The provisions of section 57 as well as section
167 of the Code of Criminal Procedure, 1973 are supplementary to each other and are
the provisions which recognises the right of personal liberty of a person as enshrined in
the Constitution of India. S. Kasi v. State, through the Inspector of Police, Samaynallur
Police Station, Madurai District, (2020) Cr.L.J. 3588 : AIR 2020 SC 2921.
No bar of filing a charge sheet even after a period of 60 days/90 days–The right of
prosecution to file a charge sheet even after a period of 60 days/90 days is not barred.
The prosecution can very well file a charge sheet after 60 days/90 days but without
filing a charge sheet they cannot detain an accused beyond a said period when the
accused prays to the court to set him at liberty due to non-filing of the charge sheet
within the period prescribed. S. Kasi v. State, through the Inspector of Police,
Samaynallur Police Station, Madurai District, (2020) Cr.L.J. 3588 : AIR 2020 SC 2921.
Nature of the right of prosecution to carry on investigation and submit a charge
sheet–The right of prosecution to carry on investigation and submit a charge sheet is
not a kin to right of liberty of a person enshrined under Article 21 of the Constitution of
India and reflected in other statutes including section 167 of the Code of Crminal
Procedure, 1973. S. Kasi v. State, through the Inspector of Police, Samaynallur Police
Station, Madurai District, (2020) Cr.L.J. 3588 : AIR 2020 SC 2921.
Sections 468 and 178–Police investigating an offence, but submitting report after
expiry of limitation–Magistrate taking cognizance without passing any order of
condonation of delay–Proceedings quashed–Order of Magistrate condoning delay
subsequent to taking cognizance is not valid. Amar Singh v. State of Punjab, 2003 (2)
RCR (Cri.) 679.
Sections 173(8) and 173(2)–Further investigation–Police investigating the case and
submitting challan–Magistrate even after taking cognizance–Magistrate cannot be made
so powerless that it becomes in capable of correcting a wrong and advancing the cause
of justice. Rajneesh Kr. Singhal v. The State (NCT of Delhi), 2001 Cr.L.J. 1192.
Section 173–Order for further investigation–The direction for investigation by the
Magistrate under section 202 Cr.P.C. while dealing with a complaint. Though is at a
post-cognizance stage, it is in the nature of an inquiry to inquire satisfaction as to
whether the proceedings initiated ought to be furthered or not. Such a direction for
investigation is not in the term nature of further investigation as contemplated under
section 173(8) of the Code. If the power of the Magistrate in such a scheme envisaged
by Cr.P.C to order further investigation even after the cognizance is taken, the accused
persons appear and charge is framed, is acknowledged or approved, the same would be
discordant with the state of law, as enunciated by the Court and also the relevant layout
of Cr.P.C. Amrutbhai Shambhubhai Patel v. Sumanbhai K. Patel, 2017 Cr.L.J. 1344.
Section 173–Further investigation–In the instant case, directions of the High Court
for re-investigation or refresh investigation was given. In drawing this conclusion court
has also drawn inspiration from the fact that sub-section (8) of 173 Cr.P.C. clearly
envisage that on completion of further investigating agency has to forward to the
Magistrate a “further” report or report if required under section 173 (8) of the Code.
Ramchandran v. R. Udhaya Kumar, AIR 2008 SC 3102.
Section 173(8)–Police making investigation and submitting challan–Police cannot
make further investigation without permission of Court–Police has no right of fresh
investigation or [Link] Gupta v. State of Punjab, 2002 Cr.L.J. 4165.
 Section 173(8)–Further investigation–Report submitted by police and cognizance
taken by Court–Police can conduct further investigation even after the court took
cognizance of offence–It would, however, be desirable that police should inform the
court and seek formal permission to make further investigation when fresh facts come
to light. Hasanbhai Qureshi v. State of Gujarat, AIR 2004 SC 2078.
Section 173(8)–Reinvestigation–F.I.R. under sections 407, 420, 473 I.P.C.–Police
investigating the case and submitting cancellation report–Magistrate came to a
conclusion that the investigation had not been done properly and ordering
reinvestigating–Order is valid–Magistrate has the power to order further enquiry by way
of further investigation/reinvestigation. Panna Lal v. State of Haryana, 2006 (3) RCR
(Cri.) 636.
Section 173(8)–Police investigating an offence and submitting charge-sheet–
Magistrate has jurisdiction–
(i) to accept the final form,
(ii) in the event of protest petition is filed to treat the same as a complaint petition
and if a prima facie case in made out, to issue processes,
(iii) to take cognizance of the offences against a person, although a final form has
been filed by the police, in the event he comes to the opinion that sufficient
materials exist in the case diary itself therefor,
(iv) to direct re-investigation into the matter.
(Popular Muthiah v. State represented by Inspector of Police, 2006 (2) Apex
Criminal 566 (SC).
Section 173(8)–Further investigation–It was held that once the magistrate takes the
cognizance and considering the materials on record submitted alongwith police report
forwarded by police under section 173(2) Cr.P.C., Magistrate in exercise of the power
under section 227 Cr.P.C. discharges the accused, thereafter, it will not be open for the
Magistrate to suo motu order for further investigation and directing I.O. to submit the
report. The power to order further investigation which may be available to the
Magistrate at the pre-cognizance stage. I.O. may file appropriate application under
section 173(8) Cr.P.C. Bikas Ranjan v. State, 2019 Cr.L.J. 2787 (SC).
Further Investigation (Section 173(8) Cr.P.C.)–It was held by the Supreme Court
that neither magistrate suo-motu, nor on an application filed by complainant/informant
can be directed further investigation only investigating agency can request, that too in
circumstances warranting further investigation. Athul Rao v. State of Karnataka, AIR
2017 SC 4021.
Further Investigation (Section 173(8) Cr.P.C.)–It was observed by the Supreme
Court that the power of magistrate to direct for further investigation has to be
cautiously used; Chandra Babu @ Moses v. State, 2015 (8) SCC 774.
Further Investigation (Section 173(8) Cr.P.C.)–When a report filed under section
173(2) Cr.P.C. by police, magistrate may exercise such powers with the aid of section
156(3) of the Criminal Procedure Code; Vinay Tyagi v. Irshad Ali, 2013(5) SCC 762.
Further Investigation (Section 173(8) Cr.P.C.)–It was observed by the Supreme
Court that the scheme for inquiry/trial provided under the code (Cr.P.C.) is quite clear.
The report submitted under section 173(2) Cr.P.C. before the competent court i.e.
magistrate having jurisdiction in the matter and the magistrate may take cognizance
under section 190 Cr.P.C. However, it is still open to Magistrate to direct further
investigation under section 173(8) Cr.P.C. Umesh Kumar v. State of Karnataka,
2013(10) SCC 591.
Investigation–The expression “fair and proper investigation in criminal
jurisprudence was to encompass two imperatives firstly the investigation must be
unbiased, honest, just and in accordance with law and, secondly, the entire emphasis
has to be to bring out the truth of the case before the court of competent jurisdiction.
Vinay Tyagi v. Irshad Ali, 2013 SCC 762.
It was held that criminal investigation is a lawful search for people and things useful
in reconstructing the circumstances of an illegal act or omission and the mental state
accompaning it. It is probing from the known to the unknown backward in time, and its
goal is to determine truth as far as it can be discovered in any post-factum inquiry.
Successful investigation are based on fidelity, accuracy and sincerity in lawful searching
for the true facts of an event under investigation and on an equal faithfulness,
exactness, and probity in reporting the results of an investigation. Pooja Pal v. Union of
India, (2016) 3 SCC 135.

Can the Police re-open investigation after the report under section 173 Cr.P.C.
in challaning the accused
This is permitted as laid in section 173(8) Cr.P.C. “Nothing in this section shall be
deemed to preclude further investigation in respect of an offence after a report under
sub-section (2) has been forwarded to the Magistrate and where upon such
investigation, the officer-in-charge of the Police Station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a further report or reports regarding
such evidence in the form prescribed; and the provisions of sub-section (2) to (6) shall,
as far as may be apply in relation to such report or reports as they apply in relation to a
report forwarded under sub-section (2).”
If fresh facts come to light, police can look into these to arrive at truth. Fresh
charge-sheet can be then filed. In 1952 Cr.L.J. 1635 (Orissa) Prosecuting Inspector
Kenojhar v. Mina Ketan Mahato it was held the police have the right to re-open the
investigation even after submission of charge-sheet under section 173 Cr.P.C. if fresh
facts come to light. Such “fresh investigation can be made even after commitment
proceedings had commenced and even after commitment proceeding had been
terminated,” and no prior permission of court was necessary. Similarly it was held in
1919 M. 751, 48 Cr.L.J. 774, 1932 L 103 that the number of investigations into a case is
not limited by law and when one has been completed, another may be begun on further
or fresh information received. Even after sending report under section 173 Cr.P.C. the
officer-in-charge of Police Station, a Suprintendent of Police can order for sending
charge-sheet against the accused court as held in 1966 Patna 268. It was further held
that there is no bar to the investigation by the Police after the submission of a final
report under section 173 Cr.P.C.
See 1983 (2) C.L.R. 377 Tek Chand, Police is authorized under section 173(8) to
further investigate and submit fresh challan if fresh and further oral or documentary
evidence comes to light.
The court seized of the case, will be informed about the re-opening of the
investigation by the Police.
In Deepak Dwarka Dass Patel, 1980 Cr.L.J. 29, Gujarat High Court held that it was
not necessary that there should be a fresh investigation and discovery of new material
for lodging an additional charge-sheet in the case. If the very material is misunderstood
by the Police Station Officer and if he has received proper light from the superiors he
can certainly file an additional charge-sheet though strictly speaking there may be any
further investigation and collection of new material. Investigation does not come to
stand still after challan under section 173.
Even after filing a charge-sheet I.O. or officer-in-charge may undertake a further
investigation. If he does so, further evidence collected by him shall be forwarded to the
Magistrate alongwith a further report. But the informant or accused cannot claim as of
right a direction from a court commanding further investigation. Shyama Charan Dubey
1990 Cr.L.J. 456. See also 1973 Cr.L.J. 1288, 1982 Cr.L.J. 707, 1984 Cr.L.J. 239 where
in revised charge-sheets’ are filed after further investigation under section 173(8)
Cr.P.C. (Further investigation after final report, see Final Report).
Party cannot choose investigation agency as C.B.I. court in writ jurisdiction can lay
responsibility of investigation on C.B.I. T. Sarojini Ammal, 1992 Cr.L.J. 3110 (Ker.).
In 1988 Cr.L.J. 1800, Kashmiri Devi, Challan had been given–Supreme Court on
application of Kashmiri Devi whose husband was killed in custody by police officer, had
directed trial court to direct C.B.I. for proper investigation of case in exercise of powers
under section 173(8); since police had acted in partisan manner in investigating the
case.
An offence under section 300 I.P.C. being not a notified offence under section 3,
Delhi Special Police Establishment Act, 1946, High Court cannot direct C.B.I. to conduct
investigation of a murder case under Article 226 of Constitution. Saroja 1991 Cr.L.J 755
(Mad).
Supreme Court refusing to direct C.B.I. to make a roving enquiry about flesh trade
and inhabitants of red light area. Vishal Jeet, AIR 1990 SC 1412.
The Court cannot prohibit further investigation under section 173(8) Cr.P.C. As
police enjoy unbridled powers of investigation. In the case 1989 Cr.L.J. 614, police
wanted to send material to forensic laboratory under section 173(8), court granted it
and said it cannot prohibit further investigation. In Ram Lal Narang’s case 1979 SC
1791, it was observed “the police have a statutory right and duty to investigate............
these rights are not circumscribed by any person of superintendence or interference by
the Magistrate...it would ordinarily be desirable that the police should inform the court
and seek formal permission to make further investigation.”
There are, however, legal disabilities as contained in Article 20(2) of the
Constitution of India and section 300 Cr.P.C. indirectly barring fresh investigation on
the same facts. Court has no power to order re-investigation after challan, on its own
initiative. It must try case as put up by police. The court cannot order police to re-
investigate a case even after a challan has been sent up. It was held in Jitendra Nath
1976 Cr.L.J. 1296 that sub-section (8) of section 173 of the new Code; which is a new
one has not been introduced for the purpose, of filing up lacuna if any in the prosecution
case and for the purpose to empower the Magistrate to order further investigation by
the police. In Emp. v. All 1932 Lah 611, the police had challaned an accused. The
accused moved the D.M. that the case was false against him and should be withdrawn.
D.M. directed the police to make further investigation. It was held on revision against
the order that police cannot hold further investigation on such an order and specially
with a view to find evidence in favour of the accused.
Section 173(8)–Further investigation–Police has a right to further investigate the
case even after submission of police report under section 173(2) Cr.P.C. Magistrate had
permitted for further investigation and not for re-investigation. The order of the
Magistrate suffered no illegality. Ikram Husain v. State of U.P., 2012 (1) Crimes 631
(All.)
Sections 173(8), 200 and 201–Criminal Case cannot be sent to police for re-
investigation–The same can be sent for further investigation on specific issues. Vinod
Kumar Dubey v. State of Rajasthan, 2012 (1) Crimes 460 (Raj.).
Section 173(8)–The law does not mandate taking prior permission from the
Magistrate for further investigation. It is settled law that carrying out further
investigation even after filing of charge-sheet is a statutory right of the police. The
material collected in further investigation cannot be rejected only because it has been
filed at the stage of trial. The facts and circumstances show that the trial court is fully
justified to summon witnesses examined in the course of further investigation. It is also
clear from section 231 Cr.P.C. that the prosecution is entitled to produce any person as
witness even though such person is not named in the earlier charge-sheet. Rama
Chaudhary v. State of Bihar, 2009(2) Crimes 229 (SC).
Section 173–From the plain reading of this section, it is evident that even after
completion of investigation under sub-section (2) of sec. 173 Cr.P.C., the police has
right to further investigate under sub-section (8) but not fresh investigation or re-
investigation Ramachandran v. R. Udhaya Kumar, 2008(2) Crimes 379 (SC).
Section 156 Cr.P.C.–Police Investigation–Once the investigation is transferred to
another agency, it will have power and jurisdiction to examine the witnesses afresh and
filing the charge-sheet. Uday Chakraborty v. State of W.B., 2010(3) Crimes 164 (SC).

Investigation in Cases Requiring Sanction

There are, however, certain offences under Local and Special Laws where only
officers of specified rank can investigate e.g. investigation of cases under Prevention of
Corruption Act No. (49 of 1988). Police Officer below the rank of D.S.P. shall not
investigate without the order of a Magistrate of First Class as provided in section 17. of
the same Act. Section 5A, similar provision under Prevention of Corruption Act (11 of
1947) as laid down in I.L.R. 1954 Punjab 75 Nishan Singh v. State does not require the
permission to be in any particular form nor even to be in writing. It should, however, be
in writing and in the name of a particular police officer. The Magistrate should apply his
mind while giving sanction. Mubarak Ali, 1955 SC 707.
Before giving permission under section 5A (now section 17) the Magistrate should
satisfy himself that there are good and sufficient reasons for authorizing an officer of
lower rank to conduct investigation. The reason should be disclosed on the face of the
order. Where the order does not show so, it is for the prosecution to establish that the
Magistrate in fact took into consideration relevant circumstances before granting such
permission, P.P. v. Shaik Sheriff 1965 A.P. 372. In such a case Magistrate granting
permission should be cited as a witness.
In case of investigation without permission, the trial of the case is not barried if no
prejudice is caused to the accused. See 1975 Cr.L.J. 526 (SC) H.N. Rishbud [Link] of
Delhi, wherein it was held that court can take cognizance as the illegality committed in
the course of investigation does not affect the competence and the jurisdiction of the
court for trial. The invalidity of investigation does not vitiate trial unless miscarriage of
justice has been caused thereby. 1964 SC 28.
In such cases, therefore, it is always essential to get the permission of the
Magistrate 1st class to enable a police officer below the rank of D.S.P. to start
investigation. In cases of corruption under Prevention of Corruption Act, the offence is
made out as soon as an attempt is made to obtain an illegal gratification under sections
7 to 15 of the Act. The case, therefore, be registered immediately and the trap for
passing on the bribe money to the accused should be only laid after F.I.R. The steps for
trap will be proceedings during investigation and as such if the trap is to be laid by an
officer below the rank of D.S.P., sanction should always be obtained first; otherwise it is
always legal to inform D.S.P. to arrange for raid. In State of M.P. v. Mubarak Ali 1959
S.C. 707 this raid was made by S.I. and hence the investigation was quashed. However,
it is not necessary to have two sanctions under section 5A (now sec. 17) Prevention of
Corruption Act, one for laying trap and the other for investigation. Once an order under
section 5A is made, that order covers the entire investigation as held by Supreme Court
in 1968 Cr.L.J. 1484, Sailendra Nath Bose. (See Chapter 22).

Investigation in Non-Cognizable Offences

The police officer can start investigation in a non-cognizable case under the order of
a magistrate under section 155(2), 202 Cr.P.C. and of Central or State Govt or D.M.
under section 196(3) Cr.P.C. (See Chapter 2).
Under section 196(3) Cr.P.C., State Govt. or D.M. can order a preliminary
investigation by a police officer not being below the rank of an inspector in respect of
the offence of any criminal conspiracy punishable under section 120B I.P.C other than a
criminal conspiracy to commit a cognizable offence punishable with death,
imprisonment for life or two years R.I. or upwards. Central or State Govt. can also order
preliminary investigation by an officer not below the rank of an Inspector in respect of
the offence punishable under Chapter VI or under sections 153A, 153B, 295A, 505 I.P.C;
a criminal conspiracy to commit such offence or any such abetment.

Investigation under section 156(3) Cr.P.C.

Any Magistrate empowered under section 190 Cr.P.C. may order an investigation
and the Police Officer can start investigation under section 156(3) Cr.P.C. The Session
Judge has, however, no such right, 11 Cr.L.J. 330 King v. Ali. Now the question arises
whether this power of Magistrate is to be exercised before taking cognizance of the
case or afterwards only. The words of section 156(3) Cr.P.C. are silent on this point.
According to section 190 Cr.P.C. a Magistrate takes the cognizance of the case upon
receiving a complaint of facts which constitute an offence. Then he is to proceed with
the complaint by examination of the complainant under section 200 Cr.P.C. and then by
proceeding under sections 202 to 204 Cr.P.C. The Magistrate can order investigation
under section 156(3) on a private complainant even if cognizance by him is barred
under section 195(1)(b)(ii). 1989 Cr.L.J. 760.
Section 156 (3)–Power of Magistrate–Direction by Magistrate asking police to
“register a case” Not illegal. Madhu Bala v. Suresh Kumar and another, 1997 Cr.L.J.
3757 SC.
 Whenever a Magistrate directs an investigation on a ‘complaint’, the police has to
register a cognizable case on that complaint treating the same as the F.I.R. and comply
with the requirements of the police rules. Therefore, the direction of a Magistrate
asking the police to “register a case” makes an order of investigation
under section 156(3) cannot be said to be legally unsustainable. Indeed, even if a
Magistrate does not pass a direction to register a case, still in view of the provisions of
section 156(1) of the Code which empowers the police to investigate into a cognizable
‘case’ and the rules framed under the Police Act, it is duty bound to formally register a
case and then investigate into the same. The provisions of the Code, therefore, does not
in any way stand in the way of Magistrate to direct the police to register a case at the
police station and then investigate into the same. When an order for investigation under
section 156(3) of the Code is to be made the proper direction to the police would be to
register a case at the police station treating the complaint as the First Information
Report and investigate into the same. Madhu Bala v. Suresh Kumar and another, 1997
Cr.L.J. 3757 (SC).
Private Complaint–Order of investigation under section 156(3)–Validity–Parties
dealing in business transaction of purchase and sale of commodity–Accused indebted to
complainant–He allegedly hurled filthy abuses and slapped–Complainant when demand
for money was made–Incident took place at shop of complainant–No medical evidence of
injury–No independent witness examined–No reason explained why accused visited
complainant particularly when he was indebted to him–Moreover offence could have
been proved by oral evidence of complainant himself with corroborative evidence before
court–Order directing investigation under section 156(3) liable to be quashed. Suresh
Kumar Gupta v. State of Gujarat, 1997 Cr.L.J. 3948 Gujarat.
Sections 155(2), 156(3), 200 and 482–Private Complaint–Made under section 6 of
Dowry Prohibition Act–Procedure-Offence under section 6 is cognizable offence for
purpose of investigation–Magistrate empowered to forward complaint to police for
investigation before taking cognizance under section 156(3)–Magistrate referring
complaint to police under section 155(2) instead of under section 156(3)–It would be
mere irregularity–Proceedings not liable to be quashed. Ms. Annie Koshy v. State of
A.P., 1998 Cr.L.J. 2565 (AP).
Interrogations–Interference–Fixation of venue, timings, questions and also manner
of putting such questions by High Court for carrying out interrogation under Act–
Amounts to uncalled interference with functions of statutory authorities under Act.
Dukhishyam Benupani, FERA v. Arun Kumar Bajoria, 1998 Cr.L.J. 841 (SC).
Section 156–Investigation by police–Non-production of necessary evidence and
material witness resulting in acquittal of accused–Reflects negligence on part of
investigation agency and is depreciable–Court requested Secretary to Government to
direct heads of police department and agencies in change of police training to see that
degree of professionalism and responsibility is ensured in respect of investigation of all
criminal cases–Investigating agency also directed to be informed that they would be
personally held responsible and accountable if requisite evidence is not forthcoming
before court. State v. Krishna & another, 1998 Cr.L.J. 165 (Karnataka).
Section 156–Investigation–Complaint filed by Asstt. Sub Inspector–He has himself
investigated the case and submitted final report–Investigation ought to have been
conducted by higher officer–Incurable infirmities and flaw committed by prosecution–
Accused entitled to be acquitted. Xavier v. State of Kerala, 1998 Cr.L.J. 3182 (Ker.).
Sections 156, 173(8)–Investigation–Powers of Magistrate–Cognizance of offence
taken by Magistrate on basis of charge-sheet submitted by police–Police neither
submitted final report seeking closure of case nor making application for formal
sanction for further investigation–Magistrate under section 173(8) cannot direct CBI to
further investigate into matter. Prithwis Kumar Nag v. State of W.B., 1998, Cr.L.J. 3502
(Cal.).
Sections 156, 157 and 190–Investigation by police–Necessity of grounds for
commencement of–Complaint not containing facts constituting offence though
containing allegations in vague manner that all accused has committed the alleged
offence–Complaint not satisfying requirement of clause (a) of section 190(1)–
Registration of F.I.R. and commencement of investigation would amount to abuse of
process of law. Mahant Baba Madhav Das v. State of Rajasthan, 1998 Cr.L.J. 4341
(Raj.).
Sections 156(3) and 482–F.l.R. and Investigation by police–Quashing of–Two
complaints in respect of same offence–Investigation already commenced in respect of
first one–Second complaint containing additional allegations which were not in first
one–Can be legally filed in Court–Registration of Second F.l.R. by police does not
amount to abuse of process of law. Manak Chand v. State, 1998 Cr.L.J. 1950 (Raj.).
Section 156 (3)–Second investigation–Validity–Case already instituted on basis of
first complaint–Order directing second investigation during pendency of first
investigation–Not proper. Thanchand v. State of Rajasthan, 1998 Cr.L.J. 3700 (Raj.).
Sections 156, 328 and 482–Quashing of Charge-sheet–Civil police investigating the
matter and submitting charge sheet–State Govt. directing for investigation by C.B.I,
C.I.D.–This can be no ground for quashing of charge-sheet–Cannot ipso facto render the
investigation done by civil police illegal. Sharafat alias Bhure v. The Station Officer
Police Station, Kotwali, Muzaffarnagar, 1999 Cr.L.J. 283 (All).
Section 156–Criminal investigation–Investigation not made in scientific manner-
State Government directed to constitute a committee to examine various aspects and
submit concrete suggestion for implementing scheme for scientific investigation–High
Court also expressed desirability to videograph the entire investigation. Dayashankar v.
State of U.P., 1999 Cr.L.J. 302 (All).
Section 156–Investigation–Territorial jurisdiction of police-F.I.R. alleging offence of
cheating–Accused persons went to place of first information and induced him to sign
agreement thereby made him to accept post dated cheques–Issuance and delivery of
post dated cheques took place at place of first informant–Subsequent refusal to honour
liability arising under the cheques–Police at place of first informant would have
territorial jurisdiction to register and investigate alleged offence of cheating. Vijayander
Kumar v. State of Rajasthan, 1999 Cr.L.J. 1849 (Raj.).
Investigation–Seizure of Contraband in foreign country–Police stating that “no
material has been thus far collected to connect the appellant with the contraband
consignment”–Such view of foreign police cannot foreclosure the investigating force in
India from arriving at right conclusion nor even police authorities in those countries
themselves from taking different view subsequently. Noor Saba Khatoon v. Mohd.
Quasim, 1999 Cr.L.J. 3972 (SC).
Section 156(3)–Complaint about cognizable offence–Magistrate ordering police to
register and investigate the case and report–Mere use of wood “report” in order would
not amount to interference in investigation. R.K. Mishra v. State of U.P., 1999 Cr.L.J.
576 (All).
Section 156–Investigation–Interference by court–Court should refrain from
interfering with the investigation unless it is done contrary to the procedural safeguards
and by violation of the rights of an accused. State of Maharashtra v. Yadav Kohachande,
2000 Cr.L.J. 959 (Bom.).
Investigation–Irregularity in–Remark by High Court against investigating officer
about serious lacuna and irregularity in investigation–No such particular omission or
lacuna referred, however–Supreme Court observed that Courts should make such
deprecatory remarks only when it is absolutely necessary–Supreme Court further
observed that court should bear in mind the time constraints of the police officers in the
present system, the ill-equipped machinery they have to cope with, and the traditional
apathy of respectable persons to come forward for giving evidence in criminal cases
which are realities the police force have to confront with while conducting investigation
in almost every case. State of W.B. v. Mir Mohd. Omar, 2000 Cr.L.J. 4047 (SC).
Sections 156(1)–Privately founded police investigation is vitiated- Financial crunch
of any state treasury is no ground for directing complainant to supply financial
assistance to police for conducting investigation. Naveen Chandra K. Majithia v. State of
Meghalaya, 2000 Cr.L.J. 4600 (SC).
Sections 156(3), 198–Complaint case–Magistrate has power to forward complaint to
police for investigation–However he cannot proceed straight away and take cognizance
of offence on receipt of final report from investigating officer–He has to follow
procedure laid down in Chapter 15 of Cr.P.C with regard to complaints filed after
acceptance of final report. Madhu v. Saseendra, 2000 [Link]. 2353 (Ker.).
Complaint Case–Power of Magistrate–Can he while forwarding a complaint direct
the investigation to be taken up by any agency other than the police station to which
complaint was to be forwarded–Question not considered as it was not pressed. Om
Prakash Chugh v. State of Haryana, 2000 Cr.L.J. 3486 (SC).
Sections 156(3) and 202(1)–Reference of Complaint to police for investigation–
Complainant and his witnesses not examined on oath–Reference can be said to be made
under section 156(3) and not under section 202. Smt. K. Vyaya Laxmi v. K. Laxmi
Narayana & Others 2000 Cr.L.J. 4490 (AP).
Sections 156(3) and 36–Investigation of offence–Any officers, who is superior in rank
to an officer-in-charge of a police station, can exercise the same powers of the officer-in-
charge of a police station and when he so exercises the powers he would do it in his
capacity as officer-in-charge of the police station under section 156(3), he can only
direct an officer-in-charge of a police station to conduct such investigation and not a
superior police officer, though such officer can exercise such powers by virtue of section
36 of the Code. CBI v. State of Rajasthan, AIR 2001 SC 668.
Sections 156(3) and 154–Criminal complaint filed before Magistrate–Order of
Magistrate to police for registration and investigation–There is no requirement of law
that applicant should first approach the police under section 154 Cr.P.C. Sobran Singh
v. State of U.P., 2005 Cr.L.J. 2028.
Sections 156(3) and 200–Criminal complaint–Request of complainant that offence be
investigated by police-Held where the complainant is in possession of the complete
details of all the accused as well as the witnesses who have to be examined and neither
recovery is needed nor any such material evidence is required to be collected which can
be done only by the police, no “Investigation” would normally be required and the
procedure of complaint case should be adopted. Gulab Chand Upadhyaya v. State of
U.P., 2002 Cr.L.J. 2970.
Sections 156(3), 169, 173(8) and 190(1)(b)–Police submitting a report
under section 169 Cr.P.C. that no case was made–Magistrate has no power to direct
police to submit a charge-sheet–It is, however, open to Magistrate to order further
enquiry but cannot direct that police must submit charge-sheet. M.C. Abraham v. State
of Maharashtra, 2003 (1) Crimes 302 (SC).
Sections 156(3) and 173–Criminal offence–Investigation–Police investigating the
offence and submitting report to Magistrate under section 173 Cr.P.C.–Magistrate has
power to direct the police to make further investigation. Ram Babu Gupta v. State of
U.P., 2001 Cr.L.J. 3363.
Sections 156(3) and 173(8)–Further investigation–Police submitting final report after
investigation–Power of the police for further investigation and submit a report under
section 173(8) is not affected by the power under section 156(3). State of Kerala v.
Sudhir, 2006 Cr.L.J. 5086 (Kerala).
Sections 156(3), 190 and 202–Complaint filed before Magistrate with a request that
complaint may be sent to police–Magistrate sending the complaint to police–Order of
Magistrate not valid–Complainant has no right to make a demand to refer the case to
the police–It is the discretion of the Magistrate–Discretion has to be exercised in a
judicial manner and not mechanically. P. Kannappan v. State of Kerala, 2006 (1) RCR
(Cri.) 165.
Sections 156(3), 169, 173(8) and 190(1)(b)–Police submitting a report under section
169 Cr.P.C. that no case was made–Magistrate has no power to direct to submit a
charge-sheet–It is, however, open to Magistrate to order further enquiry, but cannot
direct that police must submit charge-sheet. M.C. Abraham v. State of Maharashtra,
2003 (1) Crimes 302 (SC).
Sections 156(3) and 200–Complaint case–Magistrate can direct the police to register
F.I.R. and investigate in following circumstances–
(i) Where some “investigation” is required which is of a nature that is not possible
for the private complainant and which can only be done by the police upon
whom statute has conferred the powers essential for investigation.
 (ii) Where the full detail, of the accused are not known to the complainant and the
same can be determined only as a result of investigation, or
(iii) Where recovery of abducted person or stolen property is required to be made
by conducting raids or searches of suspected places or persons, or
(iv) Where for the purpose of launching a successful prosecution of the accused,
evidences is required to be collected and preserved. To illustrate by example,
cases may be visualized where for production before court at the trial (a)
Sample of blood soaked soil is to be taken and kept sealed for fixing the place of
incident; or (b) recovery of case property is to be made and kept sealed; or (c)
recovery under section 27 of the Evidence Act; or (d) preparation of inquest
report; or (e) witnesses are not known and have to be found out or discovered
through the process of investigation.
(v) Where the complainant is in possession of the complete details of all the
accused as well as the witness who have to be examined and neither recovery is
needed nor any such material evidence is required to be collected which can be
done only by the police no “investigation” would normally be required and the
procedure of complaint case should be adopted. Gulab Chand Upadhyaya v.
State of U.P., 2002 Cr.L.J. 2907.
Sections 156(3), 154 and 202–Criminal complaint regarding cognizable offence filed
before Magistrate–Magistrate without taking cognizance can direct the police under
section 156(3) Cr. P.C. to investigate and register F.I.R.–Even if there in no direction of
Magistrate, it is duty of police to register F.I.R., if complaint disclosed cognizable
offence. Mohd. Yousuf v. Smt. Afeq Jahan, 2006 (1) SCC 627 (SC).
Section 156(3)–Criminal complaint–Protest petition–Challan put up against accused
under section 307 I.P.C.–Accused filing a protest petition–Magistrate cannot treat the
protest petition as complaint and issue summoning order. Salim v. State of U.P., 2006
Cr.L.J. 1801 (All).
Section 156(3)–Criminal complaint filed before Magistrate–Magistrate can order
investigation under section 156(3) only at the pre-cognizance stage that is to say before
taking cognizance under sections 190, 200 and 204 and where a Magistrate decides to
take cognizance under the provisions of Chapter XIV, he is not entitled in law to order
any investigation under section 156(3) though in cases not falling within the proviso to
section 202 he can order an investigation by the police which would be in the nature of
an enquiry as contemplated by section 202 of the Code. Kamlesh Pathak v. State of
M.P., 2005 (3) RCR (Cri.) 391 (M.P.).
Police Investigation–Once the investigation is transferred to another agency, the
other agency will have power and jurisdiction to examine the witnesses afresh and filing
the charge-sheet. There are two reasons–
Firstly, it is settled principle of law that the statements under section 161 Cr.P.C.
recorded during the investigation are not substantive piece of evidence but can be used
primarily for a very limited purpose that is for confronting the witnesses. If some earlier
statements were recorded under section 161 Cr.P.C. then they must be on the police file
and would continue to be part of police file. However, if they have been filed on judicial
record they would always be available to the accused and as such no prejudice is caused
to anyone.
Secondly, when the case was transferred to C.I.D. for investigation it is obviously
meant that in the normal course, the authorities were not satisfied with the conduct of
the investigation by piece personal and considered it appropriate to transfer the
investigation to a specialized branch is C.I.D. Once the direction was given to conduct
the investigation afresh and in accordance with law. There is no error of jurisdiction or
otherwise in examining the witnesses afresh and filing the charge-sheet under section
173 Cr.P.C. Uday Chakaroborty & Others v. State of West Bengal, 2010(3) Crimes 164
(SC).
When CBI inquiry can be ordered–A Constitutional Court can direct the C.B.I. to
investigate into the case provided the court after examining the allegations in the
complaint reaches a conclusion that the complainant could make out prima facie case
against the accused. However, the person against whom the investigation is ordered has
to be impleaded as party and must be given a reasonable opportunity of being heard.
The court can direct the CBI investigation only in exceptional circumstances. State of
Punjab v. Davinder Pal Singh Bhullar, 2012 (1) Crimes 44 (SC).
Section 156(3) Cr.P.C.–Any Judicial Magistrate before taking cognizance of the
offence, can order investigation under section 156(3) Cr.P.C. If he does so, he is not to
examine the complainant on oath because he was not taking cognizance of any offence
therein. For the purpose of enabling the police to start investigation, it is open to the
Magistrate to direct the police to register on F.I.R. Further, it is the duty of the officer-
in-charge of police station to register the F.I.R. regarding the cognizable offence
disclosed by the complainant. Dilawar Singh v. State of Delhi, 2007 (3) Crimes 388 (SC).
Section 157(1)–In the instant case, copy of the F.I.R. was not sent to the Magistrate
at all as required under section 157(1) Cr.P.C. In such a case, in absence of any
explanation furnished by the prosecution to that effect, would definitely cast shadow on
the case of the prosecution. State of M.P. v. Kalyan Singh, 2011(6) SCC 349.
Section 156(3) Cr.P.C.–Private complaint filed by petitioner husband against wife
alleging wife for removing household belongings of complainant from the house–
Previously wife had got case registered under sections 406, 498A, 506 I.P.C. against
complainant and had obtained order under the Protection of Women from Domestic
Violence Act–Magistrate had dismissed application under section 156(3) and posted
complaint for examination of complainant. In revision, it has been decided that it is not
obligatory for police to straight away register an F.I.R. and then investigate cognizable
offence. Police could do a preliminary enquiry before proceeding to register an F.I.R.
Approach of Magistrate to opt for enquiry into complaint was not erroneous or illegal.
Gopal Krishan Dua v. State, 2009(3) Crimes 657 (Del.).
Section 156(3)–Direction for investigation–Normally in those cases wherein
immediate arrest and searches or pursuit of accused or property is called for–Court
should refer the matter for investigation. Mahendra Singh Shanabhai Chauhan v. State
of Gujarat, 2009(4) Crimes 472 (Guj.).
Sections 156(3) and 210 Cr.P.C.–Even if Investigating Officer submits final report,
victim is not remedyless. The victim has a right and he could still lodge complaint. Arun
Kumar Singh v. State of U.P., 2012(1) Crimes 294 (All.).
Sections 156(3) and 190 Cr.P.C.–Simply by sending a case for investigation on a
private complaint on submission of police report case cannot be treated as instituted on
police report–Report submitted under section 156(3) Cr.P.C. could not be treated as
police report under section 173(2) Cr.P.C. Anita Pawar v. Dharmender Sikarwar, 2010
(4) Crimes 436 (MP).
Section 156–Direction for investigation–Power under section 156(3) warrants
application of judicial mind. A litigant at his own whim could not invoke the authority of
the Magistrate. Therefore, applications under section 156(3) are to be supported by an
affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the
Magistrate under section 156(3) Cr.P.C. Priyanka Srivastava (Mrs.) v. State of U.P.,
2015 Cr.L.J. 2396.
Section 156–Direction for investigation–Power under section 156(3) Cr.P.C. can be
invoked by the Magistrate before taking cognizance and was in the nature of
peremptory reminder or intimation to the police to exercise its plenary power of
investigation beginning with section 156 and ending with report or charge sheet under
section 173. Direction for investigation was not warranted in the present case. Ramdevo
Food Products Pvt. Ltd. v. State of Gujarat, 2015 Cr.L.J. 2382.
Section 156–Direction for registration of F.I.R.–Proper investigation under section
156(3) includes direction to register F.I.R. by police. In the instant case, the order of the
Magistrate and the High Court declining to issue such direction was held erroneous.
Therefore, in the facts and circumstances, the Magistrate and the police officers were
directed to rectify there mistake by ensuring registration of appropriate F.I.R. Hemant
Yashwant Dhange v. State of Maharashtra, 2016 Cr.L.J. 1270.
Section 156–Investigation-Direction–Magistrate cannot act in a mechanical or casual
manner while exercising his powers under section 156(3) Cr.P.C. Where jurisdiction in
exercised on a complaint filed in terms of section 156(3) or section 200 Cr.P.C., the
magistrate is required to apply his mind. The application of mind by the magistrate
should be reflected in the order after weighing the facts. Anil Kumar v. M.K. Aiyappa,
2014 Cr.L.J. 1.
Section 156–Investigation–When a person relating with financial institution covered
under SARFAESI Act, invokes the jurisdiction under section 156(3) Cr.P.C. an attitude
of more case, caution and circumspection has to be adhered to issuing a direction
stating “as per the application” to lodged an F.I.R. creates a very unhealthy situation in
the society and also reflects the erroneous approach of the Magistrate. Priyanka
Srivastava v. State of U.P., 2015 Cr.L.J. 2396.
Section 156–Investigation–The Supreme Court has held that non-maintenance of
General Diary per se will not render the whole prosecution illegal, though it may have
consequences on the merits of the case, which is a matter of trial. State of Lokayukta
Police v. H. Srinivas SLP (Cr.) 5606-5609 of 2017 decided on 18.5.18.
The following questions and answers will, however, make the propositions deducible
from these elaborate.
Q. 1. Can a magistrate on receiving a complaint, order for registration of
case and investigation?
Ans. There is nothing illegal in ordering investigation by a Magistrate under section
156(3) Cr.P.C. without examining complainant on receipt of complaint and without
taking cognizance.
In Devarpalli v. Narayana Reddy 1976 S.C. 1672 Supreme Court held that the
Magistrate is not bound to take cognizance under section 190. He can send case to
police for registration and investigation under section 156(3) Cr.P.C. without taking
cognizance. No reasons are necessary to be given. 1988 Cr.L.J. 578.
The examination of complainant is not necessary. This power to order investigation
is different from the power to direct investigation under section 202(1) Cr.P.C. If the
Magistrate applies his mind for purposes of proceeding under section 200 and the
succeeding section in Chapter XV of the Code, he is said to have taken cognizance of the
offence within the meaning of section 190(1)(a). After that he cannot switch back to pre-
cognizance stage and avail of section 156(3). Even if an offence exclusively triable by
court of session is disclosed, the complaint can be still sent to police under section
156(3) by the Magistrate but without taking cognizance. See also 1972 S.C. 2639
Nirmaljit Singh Hoon; Ram Krishna 1978 Cr.L.J. 52.
The Magistrate after he sends complaint to police under section 156(3) has no
power to recall the complaint, discharge the accused or interfere with investigation or
direct it to be in a particular way; Devarpalli Supra and 1975 Cr.L.J. 1143 Kanai Lal
Aggarwal or to stop the investigation. 1970 S.C. 786 S.N. Sharma.
In Sarup Ram’s case 1977 Cr.L.J. 1420, Magistrate had adjourned the complaint for
recording the statement of complainant on the next date. On next date, he sent the
complaint for investigation under section 156(3) Cr.P.C. without recording
complainant’s statement. Held order was legal as no cognizance had been taken.
 The Magistrate can order registration of F.I.R. while sending case under section
156(3) Cr.P.C. but cannot order police to send challan. 1981 S.C. 986; 1985(2) R.C.R.
134.
The police is not bound to register the case when received from Magistrate
under section 156(3) Cr.P.C. Its report after investigation under section 156(3) Cr.P.C.
also will not have the status of report under section 173 Cr.P.C. The disagreement of
the police with the complaint on investigation under section 156(3) Cr.P.C. does not
debar the complainant from asking the court to act upon his complaint. He is not
required to put in fresh complaint or narazi petition since the report of police does not
amount to dismissal of his complaint or final adjudication in this case. See Tula Ram
1976 P.L.R. 502.
In this case police on receipt of complaint under section 156(3) had found the
complaint to be false. The Magistrate acted on the complaint, examined the complainant
under section 200 Cr.P.C. and one witness afterwards and summoned the accused. Held
the order was legal.
The case of Tula Ram went in Appeal to the Supreme Court on a certificate granted
by High Court under Article 134(1)(C) of Constitution. Held by Supreme Court Tula
Ram v. Kishore Singh, 1977 SC 2301; 1977 Cr.L.J. (S.C.) 463 as under–
(1) That a Magistrate can order investigation under section 156(3) only at pre-
cognizance stage i.e. before taking cognizance under sections 190, 200, 204 and
where a magistrate decides to take cognizance under the provisions of Chapter
14, he is not entitled in law to order any investigation under section 156(3)
though in cases not falling within proviso to section 202 he can order
investigation by the police which would be in the nature of an enquiry as
comtemplated by section 202 of the Code.
(2) Where a Magistrate chooses to take cognizance or adopt any of the
following alternatives–
(a) He can pursue the complaint and if satisfied that there are sufficient grounds
for proceeding he can straightaway issue process to the accused but before
he does so he must comply with provisions of sec. 200 and record the
evidence of complainant and his witness.
(b) The Magistrate can postpone the issue of process and direct an enquiry by
himself.
(c) The Magistrate can postpone issue of process and direct any other person or
an investigation by the Police.
(3) In case the Magistrate after considering the statements of the complainant and
the witness or as a result of the investigation and the enquiry ordered is not
satisfied that there are sufficient grounds for proceeding, he can dismiss the
complaint.
(4) Where a Magistrate orders investigation by police before taking cognizance
under section 156(3) of the Code and receives the report thereupon he can act
on the report and discharge the accused or straightaway issued process against
the accused or apply his mind to the complaint filed before him and take action
under section 190 described above (i.e. by summoning complainant and his
witness and then issuing process to accused.)
If the complaint is sent to police for enquiry and report under section 202 Cr.P.C.
then the Magistrate has no power to recall it and send it under section 156(3) Cr.P.C.
Similarly after receipt of report under section 202 Cr.P.C. he cannot send the complaint
for investigation etc. under section 156(3) Cr.P.C. This question arose in Jug Lal 1976
P.L.R. 480 and was held that Magistrate cannot switch back to section 156(3) Cr.P.C.
F.I.R. was quashed.
Even a search warrant can be issued without taking cognizance. 1961 (2) Cr.L.J. 39.
The Magistrate can also issued warrant for production before taking cognizance. If after
cognizance has been taken the Magistrate wants any investigation, it will be under
section 202 of the Code. Also see 1970 Mys 316.
Q. 2. Is the police empowered to investigate, arrest and finally send a charge
sheet on orders under section 202 Cr.P.C. for report or is it merely to report?
 Ans. The answer to these questions warrants a detailed discussion of law as there is
conflict of rulings on this point. Under section 202 Cr.P.C. a Magistrate after taking
cognizance of case and recording a statement of the complainant can direct an
investigation to be made by a police officer for purposes of ascertaining whether or not
there is sufficient ground for proceeding against the accused named in the complaint.
It has been held in the following cases that the police can only make a report as
desired under section 202 Cr.P.C. and cannot arrest or send charge sheet itself.
(a) Isaf Nasya v. Emp. 1928 Cal. 24. In this case complaint was filed before D.M.
Rungpore under section 366 I.P.C. After recording complainant’s statement
under section 200 Cr.P.C. D.M. passed on the case for enquiry to police adding
that in case of evidence, a charge-sheet may be sent to the Magistrate
concerned. The police submitted a charge-sheet as a result of an investigation. It
was held that order of D.M. was illegal and that D.M. should pass appropriate
orders under section 203 and 205 Cr.P.C. on the report of the Police (followed in
1949 Cal. 58 and 1952 Cr.L.J. 552 (Cal).)
(b) This ruling at ‘a’ was followed by Bombay High Court in Nur Mohd v. Emp.,
1929 B 72 where it was held that the only action that police can take is to make
a report the magistrate and has no power to arrest the accused or send him up
for trial on a charge-sheet.
(c) 1928 Pat. 359 Ulfat Khan v. Emperor Hon’ble Justice Jowala Parshad held that
having once taken cognizance on a complaint the Magistrate cannot act
otherwise than under section 200 to 203 Cr.P.C. and he can direct the police to
make enquiry under section 202 Cr.P.C. but he cannot direct the police to treat
the complaint as F.I.R.
There are, however, following rulings which support the proposition that police can
exercise its powers of investigation, arrest and submission of charge-sheet when
ordered to make enquiry under section 202 Cr.P.C.
(a) On a complaint to Magistrate that certain persons had robbed the complainant
of bottle of liquor and some cash, the Magistrate recorded the statement of the
complainant and ordered the police to take cognizance under section 379 I.P.C.
and make a quick enquiry and report by 8-2-22. The Police duly made the
enquiries, arrested accused and sent him upon a charge-sheet resulting in
conviction of the accused. The Sessions Judge acquitted the accused on the
ground that arrest was illegal. Govt. went in appeal and it was held by the D.B.
that even if the order was made under section 202 Cr.P.C. the Police had power
to arrest the accused and send up a charge-sheet as a Magistrate’s order under
section 202 Cr.P.C. directing the police to enquire into a cognizable case does
not debar the police from exercising their powers of arrest and investigation in
regard to the same subject matter as of complaint. 1923 Pat. 547 Emp. v. Bhola
Bhagat.
(b) It was held that police on receiving information in a complaint forwarded for
enquiry under section 202 Cr.P.C. can investigate under section 156 Cr.P.C.
Gopal Naik v. Alagirisami Naik 1931 Mad. 770.
(c) It was held that power given to the police by section 156 Cr.P.C. is not affected
when order to investigate under section 202 Cr.P.C. is made and though it is not
open to the Magistrate when a complaint has been made to him, to direct the
police to make a charge in the same case but it is open to police to do so if they
think proper. Rashid Ahmed v. Emp. 1932 Lah. 579.
(d) The power of the police to make the arrest, seize the articles and investigate
under section 156(1) Cr.P.C. can be exercised even when complaint is sent
under section 202 Cr.P.C. Mohammad Sultan Bhatt 1977 C.L.R. 88 (J&K).
It, therefore, follows from the above that consensus of opinion of different High
Courts is in favour of the view that an order under section 202 Cr.P.C. does not debar
police from exercising powers under section 156 Cr.P.C. of investigation, arrest and
challenging the accused. But in this connection the following observation will be useful–
1. The police should avoid registration of the case unless there is a clear and
specific order of Magistrate in this respect. It should also avoid arrest and
 submission of final charge-sheet i.e. challan as far as possible, unless and until
the accused is a desperate one and the fact warrant an immediate action. It is
always better to send report.
2. The Magistrate who take cognizance of the complaint should also avoid sending
complaints to police except for special reasons. In 1952 Cr.L.J. 1196 (VP) Kedar
Ram v. Ram Bharosa it was held “The Cr.P.C. gives the option of moving the
police or filing a complaint. Often the former is more expeditious and by filing
complaint the complainant incurs expenses, suffers delay, risks and
disappearance of clues and traces and allows the witness to remain unexamined
for some time. These are important in assessing the evidence. When
complainant comes to the court directly, even in a cognizable case, it is obvious
that he does not choose to go to the police and should not be driven back to
them unless it is in the public interest that the police should inquire or
investigate.”
The Punjab High Court has ordered that only such cases and cases in which there
were special reasons to do so shall be referred to the police under section 202 Cr.P.C.
(CH.1.B Rules and Orders of Punjab High Court Vol. III; P.R. 25.11). It is further laid
down that Superintendent of Police shall decline to accept for references in which
provisions of section 202 Cr.P.C. and the instructions of High Court referred to above
have not been strictly complied with.
Q. 3. Can the Magistrate order the police to send up challan on receiving the
complaint of a private person?
Ans. Answer is No. The Complaint can be sent for enquiry first and if offence made
out for challan. It is not open to Magistrate when a complaint has been made to him to
direct the police to make a charge. Rashid Ahmed v. Emp. Supra.
In 1953 Cr.L.J. 797 (ASS) Abdul Rahim v. Abdul Muktadin, it was held that even
when a complainant filed a complaint in court, having been dissatisfied with the report
of police investigation under section 173 Cr.P.C. the Magistrate should dispose off the
complaint in accordance with the provisions of Chapter 16 of the Code. An order
directing the police to send a charge-sheet without ordering a preliminary enquiry or
issuing summon to the accused person is illegal.
Q. 4. Should the magistrate send complaints against police for enquiry
under section 202 Cr.P.C. to the police?
Ans. Answer is that this procedure is not advisable. Though there is no bar to resort
to this action yet the enquiry against police officer should be conducted by the
Magistrate himself. See 20 Cr.L.J. 728 (Oudh). In 1940 L. 208; 41 Cr.L.J. 618, it was
held that investigation by the police officer under section 202 where the accused is a
police officer is not illegal but the preponderous of view is that investigation by police
should not be ordered where the accused is police officer. InVikyamal 1971 Cr.L.J. 702
it was held to be unjust exercise of discretion by Magistrate if a complaint against a
police officer is sent to another police officer even though higher in rank to him.
Q. 5. Should the magistrate withdraw investigation after sending a
complaint to police under section 202 Cr.P.C. and summon accused himself?
Ans. No. This procedure is bad. Police investigation should be allowed to continue.
The Magistrate has opportunity to decide the matter on receipt of police report; 1956
Cr.L.J. 1425 : 1956 Pat. State v. Praywati.
 Q. 6. Can a Magistrate send a complaint to police under section 202 Cr.P.C.
for investigation after he has issued process to the accused?
Ans. The answer is he cannot. In 1923 M 1268 S. Vijay Raghva Charear v. Emp it
was held so. It was further held that any such order would be without jurisdiction and
illegal. Also see Kehar Singh v. Kirpal Kaur 1942 Lah. 256, 1952 Cr.L.J. 27 (Kutch)
Karsan Dass.
Q. 7. How the police should conduct enquiry under section 202 Cr.P.C. on
receipt of complaint?
Ans. 1. The police should make enquiries from the complainant and his witness.
2. The police also can make enquiries from independent sources for ascertaining
truth.
3. It was held in Delu Bux Shriff v. Jutmal Dungarwal 44 Cal. 1282 that there is no
harm if police calls the accused and his witness too and make enquiries from them. The
Magistrate making an enquiry under section 202 Cr.P.C. cannot allow accused to cross-
examine or to permit him to take part in the proceedings. The accused can only watch
proceedings. See Chandra Deo Singh 1963 SC 1430, wherein Supreme Court had laid
down the scope and object of inquiry under section 202 Cr.P.C. by a Magistrate.
4. The observations of the police officer from examination of spot or from other
circumstances are also relevant for purpose of this enquiry under section 202 Cr.P.C.
Q. 8. Procedure when a complaint is filed in court about the offence pending
investigation with police.
Ans. In case a private complaint is filed before a Magistrate and it is made appear
to the Magistrate that an investigation is in progress with the police about the same
offence which is subject-matter of enquiry or trial in court, then as laid down in section
210 Cr.P.C. the court shall:
(i) Stay the proceedings in complaint and call for a report on the matter from the
police officer conducting the investigation;
(ii) If police makes report under section 173 Cr.P.C. and accused are common in
both complaint and police challan then the court will amalgamate these and
hold enquiry or trial as if both cases were instituted on police report;
(iii) If police report does not relate to any accused in complaint case or if the
Magistrate does not take cognizance of any offence on the police report, he
shall proceed with the enquiry or trial on complaint.
In case a complaint is pending with the Magistrate and later a case is registered on
the same facts and investigation is pending, the Magistrate should stop proceedings on
the complaint till investigation is going on. In case Mathura Parshad 1982 P.L.R. 574,
F.I.R. registered after two years, was not quashed and it was held that proceedings on
complaint be stayed.
In Padmalochan Sahu 1981 Cr.L.J., 189, Orissa High Court desired that Court should
direct the Investigating Officer to submit his report contemplated
under section 210(1) Cr.P.C. within a particular reasonable time. On the failure of police
to file that report the court could have proceeded with the complaint case.
Q. 9. The police challans the accused in an offence which is cognizable. The
material placed before the court discloses the commission of a non-cognizable
offence. Can the Magistrate refuse the cognizance?
Ans. Answer is No. It is the duty of the Magistrate to take cognizance of that
offence treating the police report in such case as complaint under section 190(2)(a)
Cr.P.C. and follow the procedure prescribed for trial of such offences. Mahadevan 1957
Cr.L.J. 464, 1947 Bom. 440, 1926 Mad 865.

Investigation on orders under section 159 Cr.P.C.

A Magistrate on receiving the report under section 157 Cr.P.C. from an
officer-in-charge of a police station may direct investigation or if he thinks
fit at once proceed or depute any Magistrate subordinate to him to proceed
to hold a preliminary enquiry into or otherwise to dispose off the case as
required by section 159 Cr.P.C. The power under section 159 Cr.P.C. can
only be exercised by the Magistrate where the police sends report to him
under section 157(1) proviso that it has decided not to investigate. The
Magistrate can neither stop investigation nor it can depute a subordinate or
enquire himself if the police is already investigating under section 156(1)
Cr.P.C. S.N. Sharma 1970 Cr.L.J. 764 (SC) See also 1970 Cr.L.J. 913, State v.
Balaram Singh.
In case M. Butt 1973 Cr.L. J. 886 (All) the police was already
investigating a case on the basis of F.I.R. lodged by one party. The other
party moved a counter version before D.M. who ordered a subordinate
Magistrate to hold enquiry under section 159 Cr.P.C. It was held that the
order was illegal and D.M. could only order investigation by police under
section 156(3) Cr.P.C.

Can Investigation be dispensed with?

An officer-in-charge dispense with the investigation in the following cases:
1. Where information is against a person who is named and the case is not of
serious nature.
2. Where it appears to the officer-in-charge that there is not sufficient ground for
entering on an investigation. (Section 157(b) Cr.P.C.)
See also Punjab Police Rule 25.9 which reads:
1. Section 157(b) Cr.P.C. gives wide powers to an officer-in-charge of a police
station, to refrain from investigation in unimportant cases. It is the duty,
however, of every officer receiving a report to consider not only the intrinsic
importance of the offence alleged and the expressed wishes of the complainant
but the bearing which the report has or may have on the detection of other cases
or on the prevention of crime and the control of criminals. Various cases which
appear trivial in themselves may, if investigated, furnish a clue to the operations
of professionals criminals or afford valuable material at a later date for
preventive action. In practice it is seldom advisable for an officer-in-charge of a
police station to avail himself of the power to refuse investigation, which the law
gives him.
2. When at the time when a report of a cognizable offence is received, the
investigating staff of the police station concerned is already occupied with more
important cases, the investigation of which would suffer by being interrupted,
such report shall be duly recorded and investigation may be dispensed with.
Such action shall not be held to limit the discretion of the officer-in-charge of the
police station to investigate the case at a later date if he thinks it desirable to do
so.
3. If the informant is present when the first information report is recorded, he shall
be informed forthwith that no investigation will be made, and after noting this
fact in the first information report, his signature or thumb mark shall be taken on
it. If the informant is not present, he shall be informed in writing by postcard or
by the delivery of a notice by hand, and the fact that this has been done shall be
noted in the first information report.
4. When investigation is dispensed with a note shall be made in the first
information report stating whether the complainant desires an investigation or
not and full reasons shall be given for abstaining for investigation. All such cases
shall be brought to the notice of the Superintendent of Police personally, who
shall pass such orders on them as he may think fit in accordance with the
principle embodied in this rule.
The officer-in-charge must enter the report in the Daily Diary 1957 Cr.L.J. 826, In re
Shaik Kalesh. He cannot dispense with it on the ground that he intends to launch
security proceedings. Such reports by officer-in-charge will be based upon reasons for
not starting investigation and will be sent through his supervising officer to the Illaqa
Magistrate. The Magistrate on perusal of the report may direct the police officer to
investigate the case or hold preliminary enquiry himself. It, therefore, follows that this
is only in those cases where investigation is not being done by the police that it can be
ordered to investigate under section 159 Cr.P.C. by the Magistrate. But where the
investigation is already in progress the Magistrate has no such right as exercise of this
order to “direct” would be redundant. See Crown v. Mohd. Sadiq Nwaz 1949 S. 294: 50
Cr.L.J. 965 or after investigation by police, he cannot, hold his enquiry under section
159 Cr.P.C. into the same offence which has been investigated by police. See Abdul
Rehman v. Emp. 32, All. 30; 10 Cr.L.J. 424; 1899 A.W.N. 87.
The police of one police station can investigate in the jurisdiction of another police
station and there is no bar under section 157 Cr.P.C. to this effect. Natha Singh v. Emp.
16 Cr.L.J. 551, section 156(2) Cr.P.C.
Section 157 and 159 Cr.P.C.–Section 157 is designed to keep the Magistrate
informed of the investigation of cognizable offences so as to be able to control
investigation, and if necessary to give appropriate direction under section 159 Cr.P.C. It
is only incidental power of the Magistrate to give certain direction to the police. During
the course of investigation when the Magistrate has power to take cognizance on the
report submitted under section 173 Cr.P.C., it is deemed that he can give direction to
the police to enable them to complete the investigation. Therefore, the contention of the
counsel for the petitioner that the Magistrate has become funtus officio till the report
under section 173 Cr.P.C. is filed cannot be accepted. Kakulakuntla Ravi Kumar v. State
of AP, 2008(1) Crimes 315 (AP).
Section 157–Requirement–In the Madhya Pradesh Police Regulation, it has been
described that police is not required to send a copy of the F.I.R. to the Illaqua
Magistrate, but it is required to be sent to the District Magistrate. Court held that
Police Regulation 710 cannot override the statutory requirements under section 157(1)
Cr.P.C. which provide for sending the copy of the F.I.R. to the Illaqa Magistrate. Shivlal
v. State of Chhattisgarh, 2011(9) SCC 561.
Section 157–Omission in F.I.R.–Merely because an accused has not been named in
the F.I.R. would not necessary result in acquittal. Jitender Kumar v. State of Haryana,
2012 Cr.L.J. 3085 (SC).
Section 157–The expression “forthwith” as mentioned in section 157(1) Cr.P.C. does
not mean that the prosecution is required to explain delay of every hour in sending the
F.I.R. to the Magistrate. In a given case, if number of dead and injured persons is very
high, delay in dispatching the report is quite natural. The same is to be sent within
reasonable time, unexplained inordinate delay in sending the copy of F.I.R. to the
Magistrate may effect the prosecution case adversely. Delay provides legitimate basis
for suspicion of the F.I.R. Bhajan Singh @ Harbhajan Singh v. State of Haryana, AIR
2011 SC 2552.
Section 157–In cases where the date and time of the lodging of the F.I.R. is
questioned, the dispatch of F.I.R. becomes more relevant. But mere delay in sending the
report itself cannot lead to a conclusion that the trial is vitiated or accused is entitled to
be acquitted on this ground. Jafel Biswas v. State of West Bengal, 2019 Cr.L.J. 1300
(SC).



Chapter–4
Investigation
What is Investigation?
Investigation has been defined in section 2(h) Cr.P.C. as “investigation” includes all
the proceedings under this Code for the collection of evidence conducted by a police
officer or by any person (other than a Magistrate) who is authorised by a Magistrate in
this behalf.”
Investigation is true ascertainment of facts to arrive at a correct conclusion if and
who committed crime. The major phases of investigation are:–
(a) To ascertain and record the facts concerning the commission of crime;
 (b) To identify criminal and his accomplices if any;
(c) To arrest and apprehend criminals;
(d) To secure, preserve and evaluate evidence; and
(e) To put evidence in court in a legal and presentable form.
The purpose of investigation is to separate chaff from grain, extracting truth from
half truth, misconception of facts. Ires and garbled versions. It is to isolate facts from
fairy tales. An investigator is, therefore, required to secure all facts, trivial or important,
based upon oral or documentary evidence, in shape of physical traces and clues
available from crime scene or other different sources, informers, suspects, accused and
experts, with an impartial mind. According to Mr. Justice N.K. Sen of Calcutta High
Court (1960 Cr.L.J. 338), State v. Mohindra Nath “The object of investigation has been
and can never be the securing of a conviction by any means. The duty of an I.O. is to
investigate into the case and to find out if he can secure the offender or offenders
connected with the crime and to bring them to justice. It is never his business to
fabricate or to suggest statements or evidence in the case.” In the words of Mr. Justice
Tek Chand in 1960 Punjab 122, Kidar Nath, “Law does not permit perversion of its
process for the purpose of fretting out crime either by fear or force or by other means
equally objectionable. The practice still prevailing with some police officers of putting a
suspect through “Third Degree” treatment or subjecting him to what is called a
“sweating process” in the hope of discovering clues or obtaining confession, by
torturing his body or tormenting his mind is most dangerous or more often hampers
than helps in the discovery of truth. In criminal jurisprudence there is no room for such
procedure. It is the duty of police to locate the violator of law but not by employing
violence. Volution and violence cannot coexist.”
Investigation–Section 2(h)–“Investigation” includes all the proceedings for the
coflection of evidence conducted by a police officer under the scheme of the code,
investigation commences with lodgment of information relating to commission of an
offence. If it is cognizable offence, the officer-in-charge of the police station, has a
statutory duty to reduce the oral submission in writing and get the signature of the
informant. He shall enter the substance of the information in a book prescribed by the
State. The officer-in-charge has no escape from doing so of the offence mentioned
therein as a cognizable offence and whether or not such offence was committed within
the limits of that police station. Ashok Kumar Todi v. Kishwar Jahan, AIR 2011 SC 1254.
Investigation–Section 2(h)–Section 2(h) of the Criminal Procedure Code defines
“investigation” to include all the proceedings under the code for collection of evidence
conducted by police officer or by any person (other than a Magistrate) who is authorised
by Magistrate in this behalf. Manohar Lal Sharma v. Principal Secretary, 2014 Cr.L.J.
1015 (SC).

Custodial Torture
For purposes of investigation, torture of accused persons to effect recoveries or to
elicit confession should always be avoided. The easy method of resorting to torture in
custody is condemnable. In D.G. Vaghela 1985 Cr.L.J. 974, Gujarat High Court held, “it
must be recognized by all concerned that under our Constitution and in our system of
administration of justice, torture in any form for the purpose of investigation into crime
is not justified. It is, barbarous, in human which has got to be eliminated. To thwart this,
healthy provisions in our Constitution are created in Articles 20, 21, 22 in respect of
accused. Specific statutory provision is made in this behalf in section 54 Cr.P.C. It
enjoins upon the Magistrate to examine the body of accused when he complains torture
in custody. He can also order his medical examination without fee and with fee if he
wants to get himself examined by a private doctor.”
In Sunil Batra v. Delhi Administration 1978 Cr.L.J. 1741, Supreme Court held that
Articles 14, 19 and 21 Constitution of India out-lawed torture in India. Similarly when
police justified blinding of dacoits in custody in Bihar that it was welcomed by people,
the Supreme Court in 1982 Cr.L.J. 982 condemned it and ordered prosecution of police
officers.
 Torture in police custody entailing death of victim is violative of Article 21
Constitution of India-Such conduct cannot be justified by innovation of sovereign
immunity; S. Ribeiro (1990)1 Crimes 11 (Bom).
The investigation should always be completed as speedily as possible. Quick
investigation is necessary in the interest of prosecution as otherwise when the case
comes for trial the very delay in investigation may make it difficult for the prosecution
witness to remember the details with the result than even truthful witness would bungle
in cross-examination and the prosecution fail for that reason.
Custodial violence–Use of third degree methods by the police for extracting
information from a suspect–Amounts to negation of Article 21–Custodial death–State
vicariously liable to pay compensation to the relatives of the victim. Affected family
entitled to invoke the extraordinary writ jurisdiction. Smt. Kamala Devi v. Govt. of NCT
of Delhi, 2000 Cr.L.J. 4867 (Delhi).
Section 157–Delay in despatch of F.I.R.–F.I.R. not ante-timed–Mere delay in sending
F.I.R. to Magistrate–Does not render prosecution case doubtful. Lakhu Singh and
Others v. State of Rajasthan, 1997 Cr.L.J. 3638 (Raj.).
Articles 21 and 22 (1)–Custodial deaths–Any form of torture or cruel, inhuman or
degrading treatment–Fall within inhibition of Article 21. Whether it occurs during
investigation, interrogation or otherwise–Supreme Court issued the requirement to be
followed in all cases of arrest or detention till legal provisions are made in that behalf as
preventive measures. D.K. Basu v. State of West Bengal, 1997 Cr.L.J. 743 (SC).
Section 310 Cr.P.C.–Local inspection-Application for–Court is not duty bound to
make inspection. The State of Maharashtra v. D.T. Raut, 1998 Cr.L.J. 1333 (Bom.).
Article 226–Police atrocities–Pendency of civil dispute between parties–A man and A
woman taken to police station by police and interrogated on complaint made by one
party to said dispute–Police not acting with prescribed procedure of law and interfering
in civil matters–Directions given to District Suprintendent of Police to take notice of
allegations made and take suitable action. G. Picheswara Rao v. S.I. of Police, 1997
Cr.L.J. 1145 (AP).

Essential Qualities of Investigating Officer

For successful investigation, a police officer needs to possess many qualities. These
may inherent in him or may be acquired. It is often said “That the successful detective is
born and not made.” This dictum is, however, not correct. Any officer can cultivate good
qualities by hard work, devotion to duty, attention to details and by developing
confidence. There is no short cut to glory. “No great work at all has ever come into the
world save as the fruit of years of earnest unremitting toil.”
The investigator must be a keen observer having a camera eye. He must be well
versed in investigation technique and fully aware of his power which he derives from
different acts and rules. He must be resourceful and determined to meet any criminal
and any situation. He must be a man of integrity not to spare the criminal. He must be
efficient, honest and painstaking.
The most important qualification is the ability to make friends and secure the co-
operation of others. Such friends can be sources for useful information. There should be
no prejudices to make friends. They can be from any class, taxi drivers, waiters,
hawkers, kabarias, and can be made daily during investigation by coming into contact
with them and by earning their goodwill through courteous and impartial but firm
attitude. Most intricate cases are solved through useful and timely information from
these friends. A good turn done to a criminal will for ever win him over to an
Investigating Officer.
The investigator of crime must know every man in his Illaqa and every part of his
Illaqa. He must be an astute reasoner and logician. He must be a psychologist to read
people, motives and to arrive at just conclusions without prejudices. He must cultivate
the faculty of open mindedness, must be absolutely accurate and with his just acts must
win the confidence of all. In short, a good investigator besides being mentally and bodily
fit should possess a veritable encyclopedic knowledge, a good memory and be a student
of life. For reliance on scientific aid in his work, he must understand the requirements
of the chemist, pathologist, toxicologist, biologist, physicist and metallurgist. He must
be possessing faculty to reconstruct crime from the traces.
It will be interesting quote well-known police officer as to which quality they attach
more importance.
Duncan Mathison, Captain of Detectives at San Francisco, “A detective after all, is
only a police officer possessed of a sound judgement with the ability to apply it along
sound practical business lines to the solution of a criminal case. Whatever success, I
have met with has been accomplished by strict attention to duty and hard work. There is
no other formula for success.”
John Wilson Murray Inspector C.I.D. Toranto, “As a matter of fact the detective
business is plain, ordinary business, a railway manager’s business. It has its own
peculiarities because it deals with crime, with the distorted, imperfect, diseased
members of social body. A good detective must be quick to think, keen to analyses,
persistent, resourceful and courageous. But the best detective in the world is human
being, neither half devil nor half god, but just a man with the attributes or associates
that make him successful in his business.”
G.W. Walling Chief of New York Police, “He must be endowed with courage and
intelligence, have alacrity and adaptability and above everything a good memory.”
Major Arthur Griffths, “The best detective is he who has that infinite capacity for
taking pains which has been defined as the true test of genius. It is not by guesses or
sensational snap shots that crimes are unearthed but by the slow process of routine,
almost common place, inquiry after the most minute and painstaking investigation of
the traces-often of the most minute characteristic, left upon the theatre of the deed.”
W.T. Shore “In Outline, the qualifications that must be possessed and sedulously
trained by a detective officer are persistence, quick wittedness, memory, powers of
observation, accuracy, tact, all always supported by commonsense. Avoid annoyance,
pride, superior attitude, jealousy, non co-operation, prejudices, intimidation, high
handedness and torture. Be calm, patient, firm courteous and self-confident. Master
facts, situations and your subordinates who may not torpedo good work done by you,
made friends, win enemies, create good relations, good reputation for your honesty,
integrity devotion to duty and efficiency. Above all be humane and just “Success will
follow”.
Who to Start Investigation
It is always an officer-in-charge of a police station who is to register a cognizable
case and to start investigation of an offence which occurs within the limits of his
jurisdiction. If he cannot himself proceed to the spot of investigation then he is to
depute one of his subordinates for this purpose. If the officer deputed is below the rank
of A.S.I, then officer-in-charge is invariably to take up the investigation in hand and get
completed by himself or by one of his A.S.I’s. An investigation conducted by Head
Constable is always to be verified and completed by the officer-in-charge of police
station see P.P.R. 25.1 and 157 Cr.P.C. Similarly all officers superior in rank to an
officer-in-charge of a police station can conduct investigation under section 36 Cr.P.C.
section 168 Cr.P.C. further lays down “When any subordinate police officer has made
any investigation under this Chapter (XII), he shall report the result of such
investigation to the officer-in-charge of police station.” The officer so deputed enjoys all
the powers given to him as police officer under various provisions of law. It may be
material to point out in this connection that “No proceeding of a police officer in any
such case shall at any stage be called in question on the ground that the case was one
which such officer was not empowered under this section 156 Cr.P.C. to investigate”
(Section 156(2) Cr.P.C. (See details in Chapter III).
An officer superior in rank to officer-in-charge and having jurisdiction in that area
can investigate. Sections 36 and 156(2) Cr.P.C. immunize his investigation from any
illegality or absence of power.
A Police Officer who is an eye-witness of the occurrence should, however, not
investigate. It was held in Bhagwan Dayal 1968 Cr.L.J. 1028, that the practice of
investigation being conducted by the same officer, who happens to be an ocular witness,
is looked with disfavour. When the same officer who claims to have witnessed the
incident, investigates then his evidence has got be to be looked with great caution.
 Mr. Justice [Link] of Punjab High Court in Naresh Kumar 1984 (1) C.L.R. 653,
where A.S.I. Gurdial Singh was the complainant as well as the investigating officer in
case of red handed capture of accused in pursuit after he had snatched a gold chain and
attracted to spot by alarm raised by the victim, it was held that investigation should
have been handed over to senior officer, especially when accused had injuries on his
person. Reliance was placed on 1964 Cr.L.J. 497 Gopal Krishan, where it was held,
“where the complainant officer is going to be examined at the trial as a principal
witness conversant with the facts of the case, it is completely improper on the part of
the complainant officer to take upon himself the investigation of case.”
Section 156–Investigation by Police–Registration of case–Respondents armed with
deadly weapon demolished house of petitioner and deprived her of certain money and
gold ornaments–Complaint prima facie disclosing cognizable offence–Non registration of
case by police–Petition against–Complaint of petitioner directed to be investigated by
higher authority of State like [Link] of district. Maya Devi v. State of Punjab and
Others, 1997 Cr.L.J. 4507 (P&H).
Section 156–Investigation–Accused cannot have a say in who should investigate the
offence he is charged with–Decision to investigate or decision or agency which should
investigate, does not attract principles of natural justice. CBI v. Rajesh Gandhi, 1997
Cr.L.J. 63 (SC).
Section 156–Investigation of case–Offence of criminal breach of trust–Commissioner
of police failing to perform his duties in matter–Complainant can approach jurisdictional
Magistrate by filing private complaint to seek appropriate direction and have
cognizance of offence. It is not necessary that High Court should exercise jurisdiction
under Article 226 in each and every such case and issue direction to investigation
agency. M/s Mithals International v. Asstt. Commissioner of Police, Central Crime
Branch, Egmore, Madras. 1997 Cr.L.J. 1621 (Mad.).
Section 156, Cr.P.C. and Section 41(1)(a)–Investigation of offence–Whether it is the
requirement of law that accused be arrested–Merely because a police officer has the
right to arrest, it is not necessary to arrest every person who is accused of having
committed a non-bailable and cognizable offence. K.K. Mohandas v. State of Kerala,
2006 (3) RCR (Cri.) 723.
Section 156 Cr.P.C–Police Investigation–Once the investigation is transferred to
another agency, it will have power and jurisdiction to examine the witnesses afresh and
filing the charge-sheet. Uday Chakraborty v. State of W.B., 2010(3) Crimes 164(SC).
Defective investigation may not be taken into consideration if there was impeaching
evidence to establish the offence. V. Vinay Kumar v. State of AP, 2006 Cr.L.J. 1701 (AP).
Constitutional obligation of the Court as to investigation–Once from materials on
record conscience of Court is satisfied that police has not investigated the matter
properly or there is apparently remiss in investigation, Court has bounden constitutional
obligation to ensure that investigation is conducted in accordance with law. Amar Nath
Chaubey v. Union of India, AIR 2021 SC 109].
Investigation by Central Bureau of Investigation–If the conduct of investigating
authorities is not inspiring confidence from stage of arriving at scene of occurrence to
filing of charge-sheet in the case, then, it becomes nesessary to entrust further
investigation of case to Cnentral Bureau of Investigation. Naresh Kumar Mangla v.
Anita Agarwal, AIR 2021 SC 277.
Section 156–Investigation by police–Investigation cannot be ordered on the basis of
incriminating materials such as loose papers, electronic data not maintained in regular
course of business seized in raids conducted on an industry, more so when such
materials are not admissible in evidence. Common Cause & Others v. Union of India,
AIR 2017 SC 540.
Section 156–Investigation by police–In the Criminal Justice System, the investigation
of an offence is the domain of the police. The power to investigate into a cognizable
offence by the police officer is ordinarily not unpinged by any fetters. However, such
power has to be exercised consistent with the statutory provisions and for legitimate
purpose. In very exceptional cases, where the court finds that the police officer has
exercised his investigatory powers and process by the police officer or the investigation
by the police is found to be not bona fide or the investigation is tainted with animosity,
the court may intervene to protect the person and/or property rights of the citizens.
Manohar Lal Sharma v. Principal Secretary, AIR 2014 SC 666.

Defective Investigation
(i) In the case of a defective investigation, the court has to be circumspect in
evaluating the evidence–But it would not be right in acquitting an accused
person solely on account of the defect; to do so would tantamount to playing
into the hands of the investigating officer if the investigation is designedly
defective. 1995 (5) SCC 518 relied.
(ii) If primacy is given to such designed or negligent investigation to the omission
or lapses by perfunctory investigation or omissions, the faith and confidence of
the people would be shaken not only in the law enforcing agency but also in the
administration of justice. Zahira H. Sheikh v. State of Gujarat, 2006 (3) SCC
374 (SC).
In a faulty investigation, the court has full authority and power to order investigation
into a particular aspect of the matter, but it cannot direct the investigating officer to
investigate in a particular manner. Re State v. Pradeep, 2005 (4) RCR (Cri.) 713 (Delhi).
In cases of defective investigation, the court has to be circumspect in evaluating the
evidence but it would not be right in acquitting an accused person solely on account of
the defect and to do so would tantamount to playing into the hands of the investigating
officer if the investigation is designedly defective. Amar Singh v. Balwinder Singh, AIR
2003 SC 1164.
Investigation–F.I.R. lodged–Police Officer who registered F.I.R. can himself take up
investigation–Such investigation could only be assailed on the ground of bias or real
likelihood of bias on the part of the investigating officer. State rep. by Inspector of
Police (Vig.) and Anti Corruption v. Jayapaul, 2004 Cr.L.J. 1819.
Defective Investigation–Benefit of doubt–Delay of more than one month in
registration of F.I.R., not explained–Complainant remained silent after paying alleged
bribe to the accused–Investigating officers did not record the statement of alleged eye-
witness, nor visited the spot of offence–Held that the negligent investigation of the case
and inordinate and unexplained delay in reporting the offence to the police created
doubt about truth of prosecution story–Conviction set aside. Amarjeet Kaur v. State of
Punjab, 2013(4) RCR (Cri.) 551.
Defective or shoddy investigation–No acquittal of accused based on defective
investigation if the prosecution adduces evidence to establish the guilt of the accused
beyond reasonable doubt, the court cannot acquit the accused on the ground that there
are some defects in the investigation unless otherwise. Ganga Singh v. State of M.P.,
2013 Cr.L.J. 3966 (SC).
Defective investigation while granting acquittal must follow:–
(i) It cannot be accepted as a broad proposition of law that in no case defective or
shoddy investigation lead to an acquittal – It would eventually depend on the
defects pointed out– If the investigation results in the real culprit of an offence
not being identified, then acquittal of the accused must follow.
(ii) If the Investigating Officer leaves glaring loopholes in the investigation, the
defence would be fully entitled to exploit the lacunae–In such a situation, it
would not be correct for the prosecution to agrue that the court should gloss
over the gaps and find the accused person guilty. Surajit Sarkar v. State of
West Bengal, 2013 Cr.L.J. 1137 (SC).
Section 156–Investigation–The evidence adduced by the prosecution must be
scrutinized independently of lapes in the investigation or by the prosecution or
otherwise. The result of criminal trial would depend upon the level of investigation or
the conduct of the prosecution criminal trials should not be made casually for lapes in
the investigation. Ajay Kumar Singh v. Flag Officer, 2016 Cr.L.J. 4174.

Territorial Jurisdiction for Investigation

Section 156(1) Cr.P.C. lays down that any officer-in-charge of a police station, may,
without the order of the Magistrate, investigate any cognizable case which the Court
having jurisdiction over the local area within the limits of such station would have
power to enquire into or try under the provisions of Chapter XIII relating to the place of
enquiry or trial. The provisions as contained in sections 177, 179 to 184 and 462 Cr.P.C.
are guiding factors in this connection, (Dispute about jurisdiction see Chapter XIII of
Code), since they determine the jurisdiction of the court and as such of the officer-in-
charge also, See Cr.P.C. sections 177 to 184.
Section 184 Cr.P.C. cures irregularly if any proceeding took place in wrong local
areas unless it appears that such error has in fact occasioned a failure of justice.
Section 156(1) Cr.P.C. also cures it. See also H.N. Rishbud 1955 S.C. 196. In case State
of Punjab v. Piara Singh 1978 P.L.R. 309, S.H.O. captured a working still beyond his
jurisdiction and investigated the case. When challan came up before Court objection
was taken that the S.H.O. had no territorial jurisdiction and the investigation was illegal
and cognizance could not be taken. The Court acquitted the accused. Held on appeal
that section 156(2) cured this defect and the cognizance could be taken by Magistrate.
The acquittal was set aside. In addition to the above factors section 48 Cr.P.C. gives
power of arrest to a police officer beyond his territorial jurisdiction when section 166
Cr.P.C. gives power of search in such areas. The Officers of C.I.D. have power of
investigation in the whole State. The Officers of Special Police Establishment have such
powers in whole of India. (See Notifications).
1. According to P.P.R 25.8 (1) “If the case is one which the officer-in-charge of the
police station may lawfully investigate but which may also be lawfully and more
successfully investigated in another police station, such officer while continuing
his investigation shall refer the matter to the Superintendent who shall transfer
the case or not as he sees fit.
2. If it desired to transfer the case to a police station in another district, the
Superintendent shall refer the matter to the District Magistrate and move to act
according to the orders contained in Chapter 26, Volume III of the Rules and
Orders of the Punjab High Court.
3. When an investigation has been transferred from one district to another the
police files with the original first information report shall be forwarded to the
Suprintendent of the District to which the transfer is made.”
IPC Sections 406 and 498-A–Marriage solemnized at Jaipur and dowry articles
given–Wife residing at a matrimonial home at Gwalior (M.P.) –Wife came to reside at
Jaipur with her parents–F.I.R. under section 498A, 406 I.P.C. lodged at Jaipur–Held,
Jaipur court has no jurisdiction. Dinesh Kr. Sharman v. State of Rajasthan, 2006 (2) RCR
(Cri) 437.
Criminal Complaint lodged at police station which had no territorial jurisdiction–
S.H.O. investigating and filing report in the Court which had also no territorial
jurisdiction–Investigation can not be scrapped nor the prosecution be quashed–Court
should return the report to S.H.O. for forwarding the same to Magistrate empowered to
take cognizance of offence–Procedure of section 201 Cr.P.C. be followed though it is
applicable in complaint case and in police cases. 2004 (3) RCR (Cri.) 988 (SC) relied.
Malkiat Singh v. State, 2005 (4) RCR (Cri.) 411 (Delhi).
Territorial Jurisdiction–Acts of cruelty to wife at her matrimonial home at Mumbai–
Only one of the acts of cruelty at Chennai–All cases between parties transferred to
Chennai court. Ramesh v. State of TN, AIR 2005 SC 1989.
Territorial Jurisdiction–Proper and ordinary venue for the trial of a crime is the area
of jurisdiction in which, on the evidence, the facts occur and which alleged to constitute
the crime–Use of word “ordinarily” in section 177 Cr.P.C. indicates that the provisions is
a general one and must be read subject to the special provisions contained in the Code.
Y. Abraham Ajith v. Inspector of Police Chennai, AIR 2004 SC 4286.
Territorial Jurisdiction–If a part of cause of action arose in two different places, the
writ jurisdiction can be available in either of the places even in respect of the criminal
cases irrespective of the seat of the Government–The part of cause of action is sufficient
for the purpose of invocation of jurisdiction. Rajesh Gupta v. State of U.P., 2006 (2) RCR
(Cri.) 641 (All.).
Demand of dowry–Territorial Jurisdiction–Threats demanding dowry given to wife on
telephone at her parents house–Complaint under Dowry Prohibition Act–Court where
wife received threats has territorial jurisdiction–It is not necessary that the demand of
dowry can be made being present physically–Such demand can also be made over
telephone and threats can also be given for non-fulfillment of dowry over telephone.
Samir Francis v. State of Orissa, 2003 Cr.L.J. 2923.
Section 156–Investigation–At the stage of investigation, the I.O. has the territorial
jurisdiction to investigate the crime committed beyond the local territorial jurisdiction
but after the investigation is over, if the officer arrives at the conclusion that the cause
of action for lodging the F.I.R. has not arisen within the territorial jurisdiction, then he
will forward the case to the Magistrate concerned empowered to take cognizance of the
offence. Manoj Kumar Sharma v. State of Chhattisgarh, 2017 Cr. L.J. 418 (SC).

Steps for Investigation

On registration of case and after a decision that the investigation is not to be
dispensed with under section 157 Cr.P.C. the investigating officer shall proceed to the
scene of occurrence immediately. If he himself cannot, then, some of his subordinates
must be sent at once to the spot and it will be the duty of that officer, if he is not
competent to complete the investigation e.g. if he is a constable, to take all possible
steps to preserve the scene of crime from disturbance, to record particulars of and
secure the presence of potential witnesses, obtain information relating to the case and
arrest the culprit. Punjab Police Rules 25.10 and 157 Cr.P.C. It was held in H.N.
Rishbud v. State, AIR 1955 SC 196, “Thus under the Code investigation consists
generally of the following steps:–
(1) Proceeding to the spot,
(2) Ascertaining of the facts and circumstances of the case,
(3) Discovery and arrest of the suspected offender,
(4) Collection of evidence relating to the commission of the offence which may
consist of–
(a) the examination of various persons (including the accused) and the reduction
of their statement’s into writing, if the officer thinks fit,
(b) the search of places, seizure of things considered necessary for the
investigation and to be produced at the trial, and
(5) Formation of the opinion as to whether on the material collected, there is a case
to place the accused before a Magistrate for trial and if so taking the necessary
steps for the same by the filing of a charge-sheet under section 173 Cr.P.C.”
Held by Full Bench of Kerala High Court in 1987 Cr.L.J. 200, Dr. V. Rugmein, when
information regarding cognizable offence given, it will be F.I.R and all the steps taken
by police pursuant to such information will be investigation as defined under section
2(b) of Code, even though formal registration of F.I.R. takes place later.

Site Inspection in the Investigation of Crime

From crime to the criminal is a very difficult journey. Only those who get the right
start and continue their search for truth, patience and perservance reach their
distinction. A police man is a lawyer and a doctor in miniature and very often he in his
keenness on points of law and on points of medical jurisprudence forgets his own job.
His job is essentially different from that of lawyer and doctor and on these points he can
get assistance from other sources but on his own job he gets very little assistance from
other quarters. The work of investigation starts from the spot of occurrence. All
depends upon whether or not he takes a correct or incorrect step on the spot. The only
dictionary which an investigating officer can possibly consult to solve the puzzle of
crime is the site of the crime. In investigation work hundred
per cent. emphasis can be placed on the inspection of site.
Human actions whether or not they amount to crimes are governed by the time and
place factors. An Investigating Officer should never forget that the criminal who
perpetrated a particular crime selected his own time and his own place. The action of
the criminal mostly is the result of careful planning on his part and the selection of the
spot forms an essential part of it. The Investigating Officer should from the very start be
prepared to answer the question as to why that site was selected for the crime. The
answer may be that offender against law thought that round about the place he had his
own friends who would not come forward to depose against him or that the place was
such as could not provide any opportunity for any one to see the occurrence.
We live in a world of specialization. Disease is the business of a doctor, building the
job for an engineer and similarly the crime is the special subject for the specialist who is
known as the investigating officer. No untrained person or no layman should meddle
with it and people should be educated not to touch or to interfere with the spot of
occurrence and let it remain intact for the inspection of the investigating officer, who
has a mandate for the job from law and from the society. For this purpose meetings of
the village officers should be arranged in which it should be emphasized that they can
help the administration by arranging that all spots of crime are kept in tact. The village
officials themselves can be very helpful to the police if they themselves guard the spot
till such time as the investigating officer reaches the spot.
As soon as a crime is reported to an investigating officer, he should with all
promptitude despatch an intelligent assistant to the spot who should ensure that the
charge of the spot of occurrence is taken with all responsibility upon himself, in the
performance of these duties he has to behave like a human being appreciating the
feeling of the victims of the crime. Supposing murder has taken place and the dead
body is lying on the spot. The relations of the deceased would be keen to see the dead
body. In this situation he should with all politeness and sympathy keep them away.
Similarly in a case of burglary or dacoity the victims would be keen to look to their
property which remains; these victims have to be treated with kindness. The officer who
guards the place of occurrence should again hand over the spot intact to the
investigating officer on his arrival.
The investigating officer should be fully equipped with all sorts of information
regarding the topography and the geography of the environments of place. It is
presumed that before he reaches the spot he has his investigation bag with him which
contains all the instruments of the trade. The investigating officer has to proceed with
the inspection of the spot in the context of the story of the crime which he already has
in hand. Each item of the spot which he studies has to be time and again to be verified
with the facts which are already with him. When an investigating officer takes up this
attitude, it may be, he may be come to the conclusion that the spot contradicts the story
with him or it might confirm it. He should, however, be careful that he does not draw his
conclusions hurriedly but after careful thought and consideration. He should also be
cautious not to give expression to his conclusions, for possibly either he will loss the
confidence of those interested in the investigation or he might be given some alternative
theories which might just waste the time.
For the inspection of the spot, offences can be divided in two categories. Offences
which can be professional and those which usually are not professional. Offences
against person are usually not professional while offences against property are more of
usually professional type. Offences against person which also involve an element of
property can become professional. In the professional type of offences a careful
inspection of the spot may lead to the solution of many a crime. Thus the information
collected from such spots should be collected as accurately as possible as eventual
tabulation of such information collected from a number of spots may lead to laying of
hands by the investigating officer on the correct person responsible for those crimes.
Therefore visit scene promptly.

Prompt Inspecting of Scene is very important for the following Reasons

1. The methods used by scientists are very exact and provide definite conclusions
by examination of materials which are available on the scene of crime. The crime
leaves some evidence of his passing on the scene of crime when he approaches
it, commits the crime and escapes. He may leave any article, a hair, a piece of
cloth, his finger impressions and his foot prints, blood traces etc. On the other
hand something from the scene of crime may become attached to him like dust,
weeds or grass. It may be on his shoes, clothes, under finger nails etc. This is
due to the principle of exchange enunciated by Doctor, Locard, Criminologist. In-
charge of Police Laboratory at Lyons that “All contacts have mutual traces.” This
implies that when two object come into contact, something of the first is left on
the second and something of the second on the first. These one very useful to
 help in the words of Doctor H.S. Holden firmsly Director of the Metropolitian
Police Laboratory London “(1) to supply one or more links in a chain of evidence,
(2) to strengthen weak links in a chain of evidence, (3) to check the accuracy or
otherwise of the statements made either by a suspect or material witness and (4)
to assisting checking routine enquiries.”
‘Traces’ is easier to understand than to define but it is “Taken to mean anything
great or small which may yield useful evidence of scientific examination.” The
presence of the physical evidence may help to (1) determine the facts or crime,
(2) identify the criminal, (3) aid in the arrest and conviction of the criminal or
exoneration of innocent persons.
2. It helps to fix the identity of the criminal. Any trace can definitely be traced to
the accused to uncover his identity.
3. It helps to fix the identity of the spot. The clues such as blood traces, foot prints,
struggle marks, weapon marks help in determining the exact spot.
4. It helps to find out if witness are telling truth or not if the traces found on the
scene fit in with story told by them.
5. It helps to demoralize the accused who on being brought to scene can himself
see the traces left by him.
6. It helps the police officer to reconstruct the crime by ascertaining the
circumstances of crime. The police officer on examining clues may form his
theory how the crime was committed viz. the foot prints may tell the numbers of
criminals; vehicle marks may disclose the conveyance used; the blood, semen
and other traces may show struggle, causing of injuries etc. The nature of
victim’s injuries, the state of his or her clothing, and other tell tale marks speak
for themselves the exploits of criminal. The investigating officer must, however,
not be prejudiced. His conclusions can only be a conjecture or may be misleading
sometime. The story he imagines must be based upon facts and must be proved
well or ill founded by further facts.

Reaching the Spot

1. Ensure the scene of crime has not been interfered with. Contact the man who
reached the scene first.
2. Do not allow any unauthorized person to meddle in the inspection of scene. The
overzealous helper is usually the criminal’s good friend. Crowding and
thoughtless interfering always result in destruction of clues.
3. Do not leave inspection of scene to your subordinates, especially those who are
untrained.
4. Do not touch anything. The negligence in handling obliterates finger prints. Use
gloves or hankerchief. Nothing capable of bearing finger prints should be
handled without proper precautions.
5. Do not take anything to be trivial. The inspection must be through and minute.
Articles should be carefully examined and preserved.
6. Search should be clockwise or anti clockwise and systematically for clues and
traces such as hairs, fibres, blood etc.
7. Remember that scene of crime is not confined to the immediate location but
includes as much of the surrounding area as may be necessary to fully
understand the exact circumstances surrounding the commission of crime.
Search must be made along the line of approach and departure of culprits.
Special attention to be paid to all obstacles such as hedges, walls, barbed wire,
nearby ponds etc.
8. Always make search for traces in the presence of respectables who may later
appear as witness in court.
9. While searching for traces always think of:
(i) The sort of traces that may be available, keeping in view the type of crime.
(ii) Where these are most likely to be found out.
(iii) How best to preserve them intact and unaltered for examination by expert.
 10. Identity by Dog Tracking. In case of any trace left by accused in the shape of
any article touched by him or left by him, a Dog Squad be immediately
requisitioned. Police Dogs are used in Trailing and Tracking the culprits. A dog
alongwith his trainer is summoned. The Dog sniffs smell from articles touched
by culprit, or from articles left by him or from the perspiration of his feet left on
the ground. The smell remains for a few hours. The Dog follows the smell and
leads to capture of culprit. The trainer can give evidence in case of capture of
culprit. The evidence is relevant 1972 Cr.L.J. 362. There must be evidence that
Police Dog had scented the articles 1988 Cr.L.J. 89.
Dog tracking evidence is admissible but not of much weight Tracker dog’s
evidence cannot be likened to the type of evidence accepted for scientific
experts describing chemical reactions, blood test and the action of bacilli,
because the behaviour of chemicals, blood corpuscles and bacilli contains no
element of conscious volition or deliberate choice. Abdul Razzak AIR 1970 SC
283.
Evidence of sniffer dog–Conviction by Trial Court based upon circumstantial
evidence with a complete chain of a large number of circumstances–Evidence of
constable who deployed the police dog for tracking down the culprits of
murder–Held that criminal courts, need not bother much about the evidence
based on sniffer dogs due to inherent frailties adumbrated above although this
court cannot disapprove the investigating agency employing such sniffer dogs
for helping the investigation to track down criminals. Gade Lakshmi Managraju
@ Ramesh v. State of A.P., AIR 2001 SC 2677.
11. The possible traces and what they lead to and what expert should be addressed
to for their examination is indicated in the chart below to facilitate to search
them–
Trace Purpose Experts
1. Finger print (Crime against For fixing identity of criminal Director Finger person and property;
murder, Print Bureau
burglary, theft, dacoity etc.)
2. Foot Marks (Crime against For establishing presence of 1. Finger Print
person and property by accused at scene of crime Expert when ridge
unidentified culprit viz. murder, patterns are visible.
burglary, dacoity, robbery etc.) 2. Director Scientific
Laboratory when
comparison of
moulds is called
for.
3. Tool Marks (Burglary, wire For identification of weapons 3. Tracker
cutting cases, hatchet marks on and tools used Director
Scientific
skull in murder cases etc.) Laboratory
4. Teeth Marks, (on food, fruits, To identify criminal -do-
skin etc.) (Rape, sex, murders,
theft of eatables etc).
5. (a) Tyre Marks. Crime by (a) To identify vehicle -do-
motor vehicle etc.) (b) For speed and application Mechanic
(b) Skid marks of brakes
(c) Deviation marks (c) If driver tried to avoid
accident.
6. Mould Marks on counterfeit To identify mould used. Mint Master,
coin Calcutta
7. Different kinds of apparatus To identify criminals and if Mint Master and
used for counterfeiting coins. counterfeiting is possible.
Director Scientific
Laborartory.
8. Cut marks on articles (wire To identify instruments used Director Scientific
theft cases). by comparing striations on cut Laboratory
surfaces e.g. wire etc. Director Sc. Lab
9. Marks indicating strugggle To establish method to which -do-
crime was committed
[Link] out number on metals, For proving ownership -do-
resusciation of numbers, designs,
trade mark etc. (Car theft,
machinery or cycle theft etc.)
11. Marks of writing on blotting To prove forgery 1. Director Scientific
paper, carbon, charred Laboratory
documents, obliteration 2. Hand Writing eradication, etc. inks
and Expert
different kinds of Forgeries 3. Examiner of simulating old
document. Documents
[Link] form of dust, dirt, soil, 1. To establish trade of suspect 1. Director Sc. Lab.
ashes, animal and vegetable 2. To fix presence at scene 2. Agriculture material, grass
seeds found on 3. To chemically analysis ashes Expert
shoes, saw dust etc. for poisons etc. 3. Chemical examiner.
13. Portions of metal or filing in 1. To establish profession. 1.
Director Sc. Lab.
clothing etc. 2. To establish commission of 2. Mint master.
counterfeiting. 3. Metallurgist
[Link] stains, seminal stains To establish identity of Chemical examiner
(murder, hurt, rape cases). criminal, spot, contact etc.
[Link] stains, (abolition, 1. To indicate profession if on Director Scientific
theft etc.) clothes etc. Laboratory
2. Contact with materials of
various kinds paper, ink etc.
[Link], oil, Greece marks, 1. To establish identity of Director Sci. Lab.
glass pieces. vehicles.
2 Arson cases.
3. Instrument is used in
burglary and breaking etc.
[Link], human or animal (theft To prove presence, contact -do-
of animal, rape, murder, hurt, association.
gang cases, contact cases.)
18. Feather etc. (theft of birds To prove identity of different
-do-
furs etc.) kinds of birds.
19. Textiles, clothing, fibres. 1. To compare with cloth of Textile Expert
suspect.
2. To prove colour textile if torn etc.
3. To prove from particular cloth.
20. Wood splinters, asbestos To prove identity with stolen
Principal Forest
fibres, fragment of materials etc. articles. Institute for Wood;
Directors Sc. Lab for
others
21. Fire arms, cartridges empties, 1. To fix if fired from particular
Ballistic Expert Sc.
bullets powder stains stray weapon, direction, distance Lab.
pellets, Bullet marks for from which fired
direction, pellet marks indicating 2. If serviceable.
spread, signs of burning or 3. Components of powder
friction mark on clothing marks4. Type, make, mark of arms and
of power on hand etc. ammunition etc.
[Link] 1. To prove nature, type and Govt. Inspector of
quality, if dangerous, live or Explosive,
exploded.
[Link] 1. To prove height, build of Professor of
person. Anatomy Medical
2. Sex of person. College.
3. Race of person.
4. Age of person.
5. Cause of death etc.
[Link], postage, revenue To prove forgery. 1. Manager Govt.
etc. (forgery cases). Stamps and Security
Forgery of currency notes and Printing press, Nasik
its material. Road, Nasik
(Bombay).
[Link] and its If failed due to defect in 1. Principal
component parts. machinery or negligence of Engineering College
operator 2. Any Mechanic.
[Link] (may be in tumblers, To fix nature, type and Chemical Examiner
glass bottles, paper, phials, quantity used.
sweets, vomits, faeces etc.)
12. Such physical evidence should be preserved. It helps in identifying the criminal
and aids in his arrest. If the evidence is of such a nature that scientific
evaluation is necessary, it should be forwarded to the laboratory for necessary
tests. The nature of such evidence will determine the manner in which it is to
be handled, packed and despatched without obliterating and spoiling the prints,
stains, liquids, etc. (See Chapter XXVI).
13. The Officer when examining the scene should make very careful notes in
writing the scene and its condition. Memory alone must not be relied upon.
Record all facts, the time of day, date, location, the description of area,
weather, indoor in chronological order.
14. Crime Scenes may be photographed or sketched or both. A number of shots
should be taken to get all the possible useful information to make out how
crime was committed and what were the main spots of physical evidence. Close
ups should also be taken of the articles of evidence that leave bearing on the
case e.g. weapons etc. Special techniques should be used in photographing
finger prints, foot prints, tool marks etc.
15. Prepare a sketch which is another form of keeping the scene alive. The
importance of examination of scene and sketch cannot be better described than
in the words of Mr. Justice Khosla of Punjab High Court in Cr. Revision 1348
decided on 5.8.85 (Khushi Ram v. State). ”If more information on a number of
points had been available. It would have been possible to give a clear finding
one way or the other e.g., S.I. who went to the spot soon after the occurrence
should have noticed if there were any skid marks on the road showing the
places where the brakes were applied. A more accurate plan of spot should
have been prepared including the exact spot where the bus left the metalled
portion of road and also where it stopped. The place where the boy was run
over should have been indicated and also the place where the boy was sitting in
the original instance. None of this information appears on the plan which is
rough and hastily sketched. That being the case, I must give benefit of doubt to
the petitioner because I cannot hold that he was driving the bus rashly.”
For a good sketch, the following consideration should be kept in view:
(i) Determine the direction of the compass. Show it on sketch.
(ii) Don’t draw sketch partly from measurement with the tape and partly from
distances guessed at sight. Accuracy must be kept in view. Measure yourself.
(iii) Never depend upon memory to fill in certain details later at home or thana.
(iv) Prepare always a separate sketch.
(v) Scale must be drawn on sketch.
(vi) Nothing irrelevant should be shown on it. It should portray those items which
have a bearing on the investigation being conducted. “The inclusion of
unnecessary details will result in the cluttered or crowded sketch and tends to
hide or obscure the essential items.”
(vii) Dont’s forget to describe the following:
(a) The spot of occurrence.
(b) The direction from which culprits came.
(c) The direction in which they escaped or left.
(d) The places from where the witness saw.
(e) The points where traces were found like location of weapon, finger prints,
body, blood etc. The distance of these points should be shown from ‘two’
reference points thereon.
(viii) For a room show:
 (a) Direction of rooms and its dimensions.
(b) If walls are at right angle together with their thickness.
(c) Doors, windows and ventilators etc.
(d) Height, position of fire place and skylights etc.
(ix) In case of a larger portion of a building or land or village determine how much
of the space should be included in it. Do not make a vast sketch. Show all
material points.

As Regard Important Cases

(x) (a) In important cases; two plans should be prepared by a qualified police
officer or other suitable agency to be submitted with challan and to be kept
with police file.
(b) In case of heinous crime, viz murder, riot connected with land disputes, if
occurrence takes place outside Abadi, a plan should be got prepared from
Patwari who should give the details of land and the other important points.
The Patwari can show the points based on the statement of witness as to
where the witness were and what material traces they observed. This will
not be hit by section 162 Cr.P.C “The investigating officer should avoid to
be present with the Patwari to avoid the legal implications of section 162
Cr.P.C.”
(c) The notes can be made by I.O. in red ink what he observed on the map
prepared by Patwari or draftsman.
(d) The site plan without scale prepared by the Investigating Officer should
also be attached with challan in addition to the plan prepared by Patwari.
If occurrence in such cases happened Inside Village Abadi the plan can be got
prepared from a draftsman.
Legal Implications (Site Plan-relevant under section 9 Evidence Act).
Marks or points based upon statement of witness on plan prepared by Patwari or
draftsman but not in the presence of police officer are relevant.
The admissibility of such observation made by Patwari arose in Santa Singh v. State,
1956 Cr.L.J. 390 SC. It was held therein that this evidence was neither hearsay as PW’s
appear in case and state that they showed the places to the Patwari when Patwari
corroborates them, nor it is inadmissible under section 162 Cr.P.C. It was not unusual to
have a plan drawn by a draftsman and this is not done to avoid section 162 Cr. P.C. If
the draftsman is asked to prepare a sketch map of the place of occurrence, and if after
ascertaining from the witness where exactly the assailant and victim stood at the time
of the commission of the offence and the draftsman measures the distance between the
two places thus shown to him and puts down on the plan and further, it is legal evidence
and admissible. This pointing out should not be in the presence of police officer.

The Site Plan prepared by police officer will denote two things
1. What the investigating officer saw himself observed and found on the spot for
example blood or any other clues etc. Such evidence is the direct or the primary
evidence in the case and in is the eye of law the best evidence, admissible
under section 60 Evidence Act. This was so held in Rameshwar Dayal and
others v. State of U.P. by Supreme Court 1978 C.L.R. (SC) 247.
2. Statement contained in the site plan prepared by investigating officer not
relevant.
The I.O., if what he depicts on the plan is not based on officer’s personal observation
but on information received from others, it would not be admissible in evidence as being
hearsay and as being hit by section 162 Cr.P.C. Thus the description in the site plan of
what is said to have happened at a particular point shown in the plan, not being based
on the investigation officer’s observation, but on information received from others is
inadmissible in evidence as held in Satyavir 1958 Cr.L.J. 1266 (All).; 1958 Cr.L.J. 722
(All) Lakhan Singh. Spot shown on plan on pointing out of witness by police officer held
inadmissible in Kunnununal 1963 Kerala 54 as on pointing out of the marking of the
spot is really bringing on record the conclusions of the Sub-lnspector on the basis of the
statements made by the witness to him” iS held in 1962 SC 599, Toil Singh v. State of
U.P. The sketch map would be admissible so far as it indicates all that the Sub-Inspector
saw himself at the spot. As held in Ram Lal Singh v. State, 1958 Cr.L.J. 1402 M.P. “A
sketch map of the scene of happening especially if prepared early is an invaluable piece
of evidence; but it should show features and objects which are actually seen [and
whenever possible measured] by police officer and nut a gist of the statement under
section 162 Cr.P.C. Especially in regard to blood marks, qualitative measurements as to
numbers and size is essential, certainly they should wherever controversy is likely about
the location and nature, be sent for chemical and serological examination.” The notes on
the site plan are not substantive evidence. Whatever is shown on the site plan must be
deposed to by the witnesses; otherwise it will be inadmissible in evidence as held in
Dharam Singh v. State of U.P, 1964 (1) Cr.L.J. 78 (SC).

Relevant for Contradiction

These notes based upon the statements being inadmissible under section 162
Cr.P.C. could only be used for the purpose of contradicting the prosecution witnesses
concerned in accordance with section 145 Evidence Act, and for no other purpose as
held in Jit Singh 1976 SC 1421 : 1976 Cr.L.J. 1162. “Therefore where this was not done
and witness were never confronted and contradicted with this record [distances given
on site plan by police officer] the notes on the site plan could be used to contradict the
account given by the court in regard to distance from which they saw occurrence.

Inspection by Court
Under section 310(1) Cr.P.C. “Any Judge or Magistrate may, at any stage of any
enquiry or trial or other proceedings, after due notice to the parties, visit and inspect
any place in which an offence is alleged to have been committed or any other place
which it is in opinion necessary to view for the purpose of properly appreciating the
evidence given at such inquiry or trial, and shall without unnecessary delay record a
memorandum of any relevant facts observed at such inspection.”
The local inspection is of the topography of the plan in which the offence was
alleged to have been committed or its local peculiarities for the purpose of properly
appreciating the evidence which was already on record. In case State of H.P. v. Het
Ram 1976 S.C. 214, Judges had inspected spot on a date and time unconnected with the
time of incident for purpose of deciding if witnesses could identify accused in darkness.
Held this was quite illegal. Decision in 1974 Cr.L.J. 871 was reversed.
It was held in Kirsan Kumar, 1985 S.C. 1664, Normally a court is not entitled to
make a local inspection, and even if such an inspection is made, it can never take place
of evidence or proof but is really meant for appreciating the position at the spot.
According to Deva Saity v. State, 1959 Cr. L.J. 751 [Mys], the Magistrate should not
do anything which reduces him to the position of a witness. He should not conduct
investigation at the spot and make enquiries from people but only record his
observations. As held in Lalu 1960 Cr.L.J. 1579 absence of memorandum is an illegality
going to the very root of the case. In Adam Ahir 1970 Gujarat 185, failure to make
memorandum was not held to be having an effect of vitiating the trial unless it has
resulted in failure of justice or caused prejudice to accused in his defence.

Advantage of Plan
1. Plan gives the Judge a true impression of the premises where occurrence took
place. The position, the distance and other points can be cleared up and agreed
upon without necessiating a special visit to the spot.
2. The I.O. is saved a lengthy and complicated description of the scene.
3. The Supervising Officer or the Prosecutor and the Counsel can arrive at quick
and correct understanding of scene without framing a mental picture from a
written description.
4. It can be referred to as an aid to memory.
5. It helps to corroborate or contradict a witness.


 Chapter–5
Murder
Murder is the graver form of culpable homicide which is the killing of a human being
by a human being. Culpable homicide is defined under section 299 I.P.C. as “Whoever
causes death by doing an act—
(i) with the intention of causing death; or
(ii) with the intention of causing such bodily injury as is likely to cause death; or
(iii) with the knowledge that he is likely by such act to cause death,
commits the offence of culpable homicide.”
Culpable homicide, in itself is not punishable. It is punishable when it amounts to
murder as defined under section 300 I.P.C. and when it does not amount to murder
which is:
(a) when the act which causes death does not fall under the four clauses of section
300 I.P.C.
(b) and when the act is done under such circumstances as bring it within any of the
Exceptions to section 300 I.P.C.
The offence of Culpable Homicide not amounting to murder is punishable
under section 304 I.P.C. In that case, too, if the element of intention exists, and is
covered under any of the Exceptions to section 300 punishable under section 304 Part I,
otherwise section 304 Part II would be applicable.
Murder, as defined under section 300 I.P.C. is:
“Subject to certain exceptions, culpable homicide is murder, if the act by which the
death is caused is done:
1. with the intention of causing death;
2. with the intention of causing such bodily injury as the offender knows to be likely
to cause the death of the person to whom the harm is caused;
3. with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause
death;
4. with the knowledge that the act is so imminently dangerous that it must in all
probability cause death, or such bodily injury as is likely to cause death.”
The act of human being can be violence, poisoning, even breaking a false shocking
news wilfully to produce result of death. Act includes omission but omission must be
illegal omission i.e. a person does not do what he is legally bound to do e.g. to provide
necessaries of life to dependants, invalids, children, to give food to prisoners etc.
The act or omission must be the responsible, proximate and efficient cause of death
i.e. the death results from the act itself or from consequences naturally or necessarily
flowing from that act. No intervening or third person’s act should have intervened and
the cause should not be remote. It should be immediate.
Contributory causes or neglect in accelerating death do not matter. The fact that
death was ultimately due to supervention of gangrene and paralysis of intestines and
that if an operation had been performed immediately the deceased’s life might have
been saved cannot reduce the offence. 1964 Patna 128, 1968 Allahbad 791.
Intention or knowledge are necessary to constitute offence of culpable homicide.
This is deducible from the result, one desires to achieve otherwise these are invisible
and internal acts of mind. The court presumes intention from highly injurious act.
If death was neither intentional nor with knowledge then it may be due to a
negligent act or accidental act only, then the offence will be under section 304A I.P.C.
or no offence. It may amount to hurt only in spite of death when intention is only to
cause hurt and not death.
(Discussed further under Various Heads).
Suicide
Murder is always to be distinguished from suicide. Suicide is taking one’s own life
and is no offence under Indian Penal Code when complete. Its attempt is, however,
punishable under section 309 I.P.C. mere intention to commit suicide is no offence but
an act towards the commission of suicide by drowning, poisoning, shooting or stabbing
oneself is an offence as attempt. Mere running towards well before one actually reaches
it to throw himself into the well is mere prepartion and no offence. An intention to fast
unto death or initiating fast unto death are not punishable acts as attempt. An attempt
in such cases would be when in spite of condition of fastee being dangerous, the
offender refuses to take food and expresses wish to die. 1960 M.P.L.J. 194,1962 All.
262.
1987 Cr.L.J. 743, Maruti (Bombay), An attempt to commit suicide is no offence.
section 309 I.P.C. is violative of Article 21 Constitution of India. Right to live includes
right to die. Section is violative of Article 14 also, since section 309 treats all attempts
to commit suicide by the same measure without regard to circumstances in which it is
made.
But in 1988 Cr.L.J. 549, the Andhra Pradesh High Court held that section 309 is not
ultravires being violative of Articles 19 & 21 of Constitution or ground that right to live
impliedly includes right not to live i.e. right to die.
The second category of persons liable are who abet, instigate and facilitate the
commission of attempt to commit suicide by another whether as a result of such
abetment, (i) the person attempts to commit suicide or refuses to do so. Such persons
are liable under section 309/109 (ii) under section 309/114 I.P.C. if abettor is present;
and (iii) under section 309/116 I.P.C. in case of refusal of the person abetted to commit
suicide.
The third category of the persons liable are the abettors who abet persons under
eighteen years of age, any insane person, any delirious person, any idiot or any person
in a state of intoxication to commit suicide. They are punishable under section 305
I.P.C.
The abettors who abet persons other than enumerated in section 305 I.P.C. as above
i.e. the same person who commit suicide as a result of such abetment are punishable
under section 306 I.P.C.
The cases of abetment must be distinguished from causing death of another with his
consent and from cases of murder, in case of death with consent, it will be culpable
homicide not amounting to murder punishable under section 304 I.P.C. as the case falls
under Exception 5 of section 300 I.P.C. Such are known as mercy murders. Sati
murders, suicide pacts when one survives and other dies fall under section 306 I.P.C.
Section 306–Abetment of Suicide–It was held by the Supreme Court that no useful
purpose would be served by sending accused persons to jail as observed by the High
Court was improper and the approach of the High Court was held casual and fanciful
rather than just. In the instant case the accused was convicted under section 306 I.P.C.
and sentenced to 3 years. R.I. with fine & the accused was remained in jail only for a
period of four months & 20 days. Rajbala v. State of Haryana, 2015 Cr.L.J. 4360 (SC).
Section 306–Proof of abetment of suicide–Where the statement of deceased in her
dying declaration that she had consumed poisonus tablets by mistake was corroborated
by doctor who had examined her, the accused mother-in-law though behaved stoically in
the beginning but as soon as she realized the situation, she called her son and they took
the victim to hospital, it was clear that it was a case of accident and she had mistakely
consumed poisonus tablets. Though the cruelty aspect meted on deceased had been
proved beyond doubt but it could not be said the same led her to commit suicide or that
the accused abetted in commission of suicide. Section 306 read with section 114 I.P.C.
was set aside. Bhanuben v. State of Gujarat, 2015 Cr. L.J. 4664 (SC).
Section 306–Abetment of suicide–Absence of charge under section 306 IPC in a case
of suicide is not fatal when relevant and material facts are already part of the change
under sections 498A and 304B of I.P.C. Satish Shetty v. State of Karnataka, 2016 Cr.
L.J. 3147 (SC).
 Section 306–Abetment of suicide–In a case where the husband is involved in an
extra-marital relationship and the suspicion in the mind of wife cannot be regarded as
mental cruelty which would attract mental cruelty satisfying the ingredients of section
306 I.P.C. Hence, the said cruelty induced the wife to commit suicide not proved. K.V.
Prakash Babu v. State of Karnataka, 2017 Cr.L.J. 264 (SC).
Liability for abetment in commission of suicide–In the case of suicide, a person is
liable for abetment if the person has, inter alia, instigated the deceased for committing
suicide or has engaged in any conspiracy for committing suicide or intentionally aided
the commission of suicide. Uma Devi v. State Government of NCT of Delhi, (2020) 268
DLT 149 (Del.).
Section 306–Mandate of Section 306–To constitute abetment the detention and
involvement of the accused to aid or instigate the commission of suicide is imperative.
Any severance or absence of any of this constituents would militate against this
indictment. Remoteness of the culpable acts or omissions noted in the intention of the
accused to actualise the suicide would fall short as well of the offence of abetment
essential to attract the punitive mandate of section 306 I.P.C. Continguity, continuity,
culpability and complicity of the indicatable acts or omissions are the concomitant
indices of the abetment. Section 306 I.P.C, thus criminalises the sustained incitement
for suicide. Gurucharan Singh v. State of Punjab, AIR 2017 SC 74.
Section 306–Conviction–There was an illicit relationship between accused husband
with another woman. It leads wife to commit suicide within 4 months of marriage. Held,
accused is not entitled to any leniency on quantum of sentence. Sidding v. State 2018
Cr. L.J. 4212 (SC).

Previous View
Attempt to commit suicide (Section 309) was the matter of judicial abjudication in
various the High Courts. But in the P. Rathinam and another v. Union of India (26-4-94)
1994 II ADSC (Cr.) 133, the Supreme Court declares sec. 309 of the penal code as
ultravires. While declaring sec. 309 as unconstitutional, the Supreme Court Division
Bench has held that a person cannot be forced to enjoy the right to life to his detriment,
disadvantage or dislike. In its view one may rightly think that having attained all wordly
pleasures or happiness one had better do something to achieve in the life beyond. Thus,
the right to live does include the right not to lead a forced life. S.C. further said “section
309 of the penal code deserves to be effaced from the statute book to humanise our
penal laws. It is cruel and irrational provision, and it may result in punishing a person
again (doubly) who has suffered agony and would be undergoing ignomity because of
his failure to commit suicide... May it be said that the view taken by us would advance
not only the cause of humanitarianism, which is a need of the day but of globalisation
also, as by effacing sec. 309, we would be alternating this part of criminal law to the
global wavelength.”
Punishment for attempted suicide unconstitutional sec. 309 I.P.C. struck down.

Present View
On March 21,1996, the law was again changed back to its original position and
section 309 of I.P.C. was reinstated in the statute book. A constitution bench of the
Supreme Court in Gian Kaur v. State of Punjab, AIR 1996 SC 946 : 1996 Cr.L.J. 1660,
decided that right to die, if any, is inherently inconsistent with right to life and so the
decision in P. Rathinam v. Union of India, AIR 1994 SC 1844 was overruled.
It was held that The significant aspect of “Sanctity of life” is not to be overlooked.
Article 21 is a provision guaranting protection of life and personal liberty and by no
stretch of imagination can “extinction of life” be read to be included in “Protection of
life.” Whatever may be the philosophy of permitting person to extinguish his life by
committing suicide, we find it difficult to count continue. Article 21 to include within it
the right to die as part of the fundamental right guaranteed therein. “Right to life is a
natural right embodied in Article 21 but suicide is an unnatural termination or
extinction of life and, therefore, incompatible and inconsistent with the concept of
“Right to life.”

How to distinguish Suicide from Murder

 Motive plays an important part to determine if death was homicidal or suicidal. The
following are the motives to commit suicide:
1. Mental condition.
2. Prolonged illness.
3. Excessive drinks.
4. Failure in love and marriage.
5. Financial worries; unemployment.
6. Pregnancy in widows and young virgins.
7. Failure in life and frustration caused thereby.
8. Failure in Examination.
9. Cruelty and mode of employment resulting in strain, worries, overwork.
10. Jealousy, mostly in female suicides.
11. Age-greater strain due to old age.

Previous Conduct of the Deceased

There may be hysterial individuals who jump into pond, wells etc. There may be
extravagant boys and women, in a fit to frighten guardians make pseudo attempts at
suicide which may prove fatal.

Site of Injury
There are suicide wounds which cannot be produced by an assailant unless the
victim is unconscious.
(i) Wounds from accidents can be determined by mechanism of accidents.
(ii) In case of cutting wounds, the favourite sites for suicide are throat, left wrist,
places of vital organs on the left side, abdomen.
(iii) In case of firearms the sites are right temple, the mouth, the centre of the
forehead, the heart.
(iv) A stab wound in the back, incised wounds on palms, on outside of forearms
(including struggle) are indicative of murder.
Direction of Wounds
(i) The direction and distance from which a firearm is used may render it
impossible for it to have been self-inflicted.
(ii) A series of parallel incised wounds on left side of heart or neck show wavering
mind to commit suicide.
(iii) In homicide, wound on neck can be caused from below, upwards or in such
other direction as the case may be; in suicides cut generally starts from a point
high up on the left side of the neck, coming downwards;
In Vasant Laxman More 1974 S.C. 1967 : 1974 Cr.L.J. 1166 the accused took
the plea that his wife committed suicide and was not murdered. It was held,
“The position and nature of injury on neck militates against the possibility of
suicide. As stated by Taylor in his “Principles and Practice of Medical
Jurisprudence,” 12th Edition, suicidal injuries on the throat are generally
marked by tentative cuts at the beginning of main wound.” In the instant case,
injury was at the lower level with no tentative cuts and hence murder.
(iv) If there are series of cuts, these must be parallel to show suicide, if roughly
parallel and at some distance, it is homicide showing struggle.
The number of injuries is not always a safe criterion for determining who the
aggressor was. It cannot be stated as a universal rule that whenever the injuries are on
the body of the accused persons a presumption must necessarily be raised that the
accused persons had caused injuries in exercise of the right of private defence. No
explanation of the injuries by the prosecution may not be fatal in all cases. Santokh
Singh v. State of Punjab, 2009 (1) Crimes 397.
Injuries on the body of the accused persons and their number may not necessarily
raise a presumption that accused persons had caused injuries in exercise of right of
private defence–It has been established that the injuries so caused on the accused
probabilities the version of the right of private defence–Non-explanation of the injuries
sustained by the accused at about the time of occurrence or in the course of alteration
is a very important circumstance. Jesu Asir Singh v. State, 2007 (3) Crimes 333 (SC).
Sections 309, 300–Suicide or Murder–Injuries found on both legs of dead body–
Proving positively that it was case of homicidal smothering–Doctors stating that death
might be due to smothering even without seeing chemical Examiner’s report–Finding by
High Court in such case that deceased would have committed suicide–Liable to be set
aside. State of HP. v. Jeet Singh, 1999 Cr.L.J. 2025 (SC).
Section 309–Attempt to commit suicide–Proof–Accused mother alleged to have
thrown children into well and jumped into well thereafter–No evidence to show that
accused jumped into well after throwing children–Testimony of eye-witnesses shaky–
Extra judicial confession not proved–Accused not liable to be convicted. Kavita v. State
of Tamil Nadu, 1998 Cr.L.J. 3624 (SC).
Section 309–Suicide–Inference–Lesilature around neck of deceased– Body found on
Cot–Suicide cannot be inferred. Ram Kumar M. Pathak v. State of Gujarat, 1998 Cr.L.J.
4048 (SC).
Sections 300, 309–Murder or Suicide–Post Mortem report–Evidentiary value– Death
by hanging–Opinion of doctor in autopsy report that strangulation might be homicidal in
nature–Use of words “might be”–Does not necessarily exclude alternative situation of
suicide. Digaumber Gope v. State of West Bengal, 1997 Cr.L.J. 2072 (Cal).
Homicidal death and suicidal death–Death of woman by burning–Prosecution version
that it was case of homicidal death–Husband set up for trial under section 302 I.P.C.–
Court found that it was not a case of homicidal death and acquitted the accused under
section 302 I.P.C.–Court of its own convicted the accused under section 306 when it was
not a prosecution case and evidence was on record–The court can not find a person
guilty for an offence, which is not the case of the persecution, or the accused version,
the 3rd case can not be made out by the court. Shaik Mahaboob Basha v. State of A.P.,
2004 (3) RCR (Cri.) 235.
Section 309–Inference as to suicide–In this case, a suicidal note was recovered from
the place of incident in the presence of father of the deceased and the same was seized
by the I.O. at that point of time. The family members did not deny that the same was not
in the handwriting of the deceased. On the contrary, the I.O. had mentioned in his
deposition that the said witnesses had stated that the said note was in the handwriting
of the deceased only and for this reason, the I.O. had not made any attempt for expert
opinion or comparison of the said handwriting. Thus, prima facie the suicide not
appeared to be genuine. Thus the statements of the family members of the deceased
regarding suicidal note did not inspire confidence and appeared to be an afterthought.
Satish Nirankari v. State of Rajasthan, AIR 2017 SC 3051.

Other Circumstances
(i) Spot examination may disclose presence of strangers, struggle marks and other
clues indicating homicide, dragging, etc; presence of any letter written by
deceased indicating suicide, etc.
(ii) Position of body and lividity will show if body was moved after death.
(iii) If clothes have corresponding cuts, this shows homicide.
(iv) Position of blood stains; blood splashed on walls etc. will show the position of
the deceased and assailant if any.
(v) The place where the body is found–
(a) if rooms are locked from within-suicide; possibility still more if key inside.
(b) waste land; behind bushes and at distance from house with no other mark–
Suicide.
(c) in hanging, drowning or strangulation, see if the signs are anti mortem or
post mortem; otherwise signs are same whether the death is homicidal or
suicidal. Careful examination of rope, the place to which object of
determining whether the pull of rope was towards or away from the body–
the latter suggests homicide.
In these cases, therefore, Post Mortem Examination of dead body is
important to determine if death is suicidal or homicidal. In 1975 S.C. 1925
Kodati Puran Chandra Rao, the Supreme Court stressed the need of Post
Mortem Examination. It was a case of drowning. It was held, “Medical
Jurists have warned that in the case of a dead body found floating in water,
the medical man from mere external examination should not jump into the
conclusion that death was from drowning. Only internal examination can
reveal symptoms which may indicate with certainty as to whether the death
was from drowning or unlawful violence before the body was immersed in
water.”
(d) (i) Position of weapon–if weapon is gripped firmly in hand due to
instantaneous cadaveric rigidity, it is strong presumptive evidence of
suicide; finger print marks of another person on weapon of offence
indicate murder.
(ii) distance where the weapon lies whether away from dead body.
(iii) Absence of weapon–suggestive of homicide.
(e) Evidence of struggle marks, hair in hands, foreign matter in wounds–
indicate homicide.
(f) Letter or writing to commit suicide–it must be determined. If it is not
forgery.
(g) Self-administration of poison; opium is the sought after position for suicide;
its availability to the victim may lead to some presumptive evidence.
(h) Cases have occurred in which daughter-in-laws have been murdered by
setting their clothes on fire or by sprinkling kerosene, etc. upon them and
then lighting them. Later a theory of suicide or accidental fire is set up. The
symptoms are same in both suicidal or homicidal burns but the motive,
conduct, accessibility, selection of time and place, the shriekes, conduct of
the deceased and the offender, past history of relations, cruelty, etc., are
the most important to determine the real nature of the incident. (See Bride
Burning).
(i) Conduct of the deceased before the incident.
Foeticide/Infanticide
Culpable homicide relates to death of human being. The causing of death of a child
or foetus in the womb of the mother is not homicide but as given in Explanation 3 of
section 299, it may amount to cause the death of a living child, if any part of that child
has been brought forth, though the child may not have breathed or been completely
born. Its killing inside womb is dependent upon the fact of its development sufficiently
to respire for which the offence would be:
1. Under section 312 for causing abortion or miscarriage with consent of woman
when faetus is of 6 months of uterine age or less; if without consent of women
then offence is under section 313 I.P.C. when foetus is 7 months old or above
then it falls under section 315 I.P.C. If a woman dies while causing abortion, it
is not murder but an offence under section 314 I.P.C.
Except section 312 I.P.C, the offence under section 313 to 315 are cognizable.
Infanticide i.e. the murder of child will only be if the child has come out of the
womb, wholly or partially and whether it has breathed or not, it is killed with
criminal violence used against it. The offence is usually committed during the
process of the birth of child or immediately after its birth or within a few hours
after the birth of the infant.
Such an offence is committed by widow, virgins or woman living adulterous life
to conceal birth. The newly born child and killed as such is thrown in the drain,
canal, filth etc.
The post mortem of the child assumes a great importance to determine:
(a) If child was born alive, partially born alive or born dead or was still born;
(b) Uterine age of child or extra uterine age;
(c) If there are marks of violence or other unusual marks of violence;
(d) If injuries are anti mortem or post mortem;
(e) If child has respired or not;
(f) How long did the child survive after birth;
(g) Cause of death, whether accidental, homicidal or natural.
In 1989 Cr. L.J. 1173 Ganga Basnet, dead body or newly born child was found under
the cot. Held that in case of infanticide the doctor should find out data for arriving at
the two main conclusions germane to such cases that child was born alive and it met
with post natal violent death. The Doctor did not do so and only said that she was born
alive. Case resulted in acquittal.
In 1991 Cr. L.J. 1680 (Mad). Wife murdered by husband–autopsy on dead body
revealed the deceased had 20 weeks male baby in her uterus; as after 12 weeks of
conception foetus gets life, the offence in relation to the focus answers sec. 316 I.P.C.
In Vatchhalabhai in 1993 Cr.L.J. 702 (Bom.), where a person who attempted to cause
miscarriage of a pregnant woman but unsuccessful in the process and when pregnant
girl died several weeks later having developed scpticemia without it having been
established that the person was responsible for scpticemia, the person cannot be held
guilty under section 314 I.P.C.
Sections 314, 34–Death caused by act done with intent to cause miscarriage – “C,” a
person alleged to be having illicit relations with deceased– Took her to clinic of doctor
with intent to cause her miscarriage– Death of deceased caused by doctor while causing
abortion.
Doctor was not competent to terminate pregnancy nor his clinic was approved by
Govt. under section 4 of the Medical Termination of Pregnancy Act and was not having
basic facilities for abortion–Concurrent finding that said act was found to be done by
doctor in furtherance of common intention of ‘C’–Conviction of ‘C’ under section 314/34
I.P.C. was proper. Surendera Chauhan v. State of M.P., 2000 Cr.L.J. 1789 (SC).
In case death is natural or accidental and still for the concealment of birth, the child
is secretly disposed of the offence made out is under section 318 I.P.C. the child in such
a case must be 7 months or more of uterine age. In case of formal burial or proclaimed
birth, no offence under section 318 I.P.C. is made out.
 Death caused by miscarriage–Deceased had love affairs with accused and became
pregnant–Accused with consent of deceased administered crude mechanical means to
induce abortion–Accused did not inform the police–There is direct nexus between death
of deceased and act done by accused–Conviction of accused upheld. Telanga Munda v.
State of Bihar, 2001 Cr.L.J. 3094 (Patna).
Death of victim after termination of pregnancy–F.I.R. under section 314 I.P.C.–Trial
court did not rely upon evidence of prosecution and acquitted the accused–Revision
prosecution witness can not be re-appreciated in revisional jurisdiction and a reverse
finding can not be recorded that witnesses are reliable and their evidence warrant
conviction. Lazar B. Singh v. Joy Christopher, 2006 (2) RCR (Cri.) 344.
To prevent the child being alive–Allegation that accused (mother-in-law and others)
gave some medicine to bride to induce abortion–It induced bleeding but was treated in
the hospital–No offence under section 315 I.P.C. made out–For an offence under section
315 I.P.C. It must be established that the child has either been prevented from being
born or has died after his birth–In the instant case child was born alive–However, there
is an allegation that an attempt was made that child should not born alive, it would be
appropriate if the charge is modified to one under section 315 read with 511 and 34
I.P.C. Alka Sharma v. The State, 2006 (3) RCR (Cri.) 338 Delhi.
Abortion has been now legalized under the Medical Termination of Pregnancy Act,
1971, by Registered Medical Practitioners under certain conditions. It has been laid in:
3. When pregnancies may be terminated by registered medical practitioners.—(1)
Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered
medical practitioner shall not be guilty of any offence under that Code or under any
other law for the time being in force, if any pregnancy is terminated by him in
accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a
registered medical practitioner,—
(a) where the length of the pregnancy does not exceed twenty weeks, if such
medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty weeks but does not exceed
twenty-four weeks in case of such category of woman as may be prescribed by
rules made under this Act, if not less than two registered medical practitioners
are,
of the opinion, formed in good faith, that—
(i) the continuance of the pregnancy would involve a risk to the life of the
pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from
any serious physical or mental abnormality.
Explanation 1.—For the purposes of clause (a), where any pregnancy occurs as a
result of failure of any device or method used by any woman or her partner for the
purpose of limiting the number of children or preventing pregnancy, the anguish caused
by such pregnancy may be presumed to constitute a grave injury to the mental health of
the pregnant woman.
Explanation 2.—For the purposes of clauses (a) and (b), where any pregnancy is
alleged by the pregnant woman to have been caused by rape, the anguish caused by the
pregnancy shall be presumed to constitute a grave injury to the mental health of the
pregnant woman.
(2A) The norms for the registered medical practitioner whose opinion is required for
termination of pregnancy at different gestational age shall be such as may be prescribed
by rules made under this Act.
(2B) The provisions of sub-section (2) relating to the length of the pregnancy shall
not apply to the termination of pregnancy by the medical practitioner where such
termination is necessitated by the diagnosis of any of the substantial foetal
abnormalities diagnosed by a Medical Board.
(2C) Every State Government or Union territory, as the case may be, shall, by
notification in the Official Gazette, constitute a Board to be called a Medical Board for
the purposes of this Act to exercise such powers and functions as may be prescribed by
rules made under this Act.
(2D) The Medical Board shall consist of the following, namely:—
(a) a Gynaecologist;
(b) a Paediatrician;
(c) a Radiologist or Sonologist; and
(d) such other number of members as may be notified in the Official Gazette by the
State Government or Union territory, as the case may be.
(3) In determining whether the continuance of a pregnancy would involve such risk
of injury to the health as is mentioned in sub-section (2), account may be taken to the
pregnant woman’s actual or reasonable foreseeable environment.
(4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or,
who, having attained the age of eighteen years, is a mentally ill person, shall be
terminated except with the consent in writing of her guardian.
(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated
except with the consent of the pregnant woman.
It has been further laid down that no pregnancy would be terminated except with
the consent of woman and in case of woman less than 18 or insane woman, consent of
guardian was essential.
The pregnancy will be terminated only in a Govt. Hospital or place approved by
Government as laid in section 4.
In case one registered medical pracitioner is of opinion in good faith that
termination of pregnancy is immediately necessary to save the life of pregnant woman
he can cause such termination section 5(1). However if a person who is not registered
medical practitioner causes such termination, it will be an offence under Indian Penal
Code.

When it is murder
Ist Clause section 300–If the act by which death is caused is done.
With the Intention of Causing Death
Intention to cause death can be inferred from the circumstances as direct evidence
is not forthcoming:
(i) when there is no doubt about the effect cause or result achieved which is the
resultant death and no uncertainty about its cause e.g. the fatal do’s of
poisoning; the shot in the vital organ,
(ii) strong motive to eliminate the victim e.g. avarice, love, hatered, jealousy and
revenge,
(iii) previous attempts to take life and intimidation,
(iv) the character of weapon and the manner in which it is used,
(v) the part of the body hit i.e. vital organ injure, the number of blows and the
velocity with which these are caused,
(vi) conduct of accused in proclaiming death, drinking blood,
(vii) time and place of attack showing deliberation,
(viii) the position and condition of deceased etc.
A deliberate use of deadly weapon, deliberate administration of poison, a discharge
of firearm, a stab in the chest or abdomen, a cruel and brutal assault, all such cases aim
at intentional causing of death.

Cases
1. 1956 S.C. 171 Rawaipenta v. State of Hyderabad, where the accused set fire to
the cottage in which the deceased was sleeping, locked the door from outside to
prevent his rescue and further took active steps to prevent the villagers from
giving any help, it was held that intention to kill the deceased was clear.
2. Nathurali Adi Reddy v. State of Hyderabad 1956 Cr.L.J. 341 ; 1956 S.C. 177, if
the direction given by the accused to his Comrade is to fire indiscriminately as
 against the members of the hostile group, he would be clearly guilty, if his
direction brings about a shooting and death of any one or more.
3. 1967 Cr.L.J. 184 F.B. : 1967 Goa 11 Hayati Utsa, the accused had plunged knife
into the left Hemithorax of the deceased. Held in criminal cases intention, motive
or knowledge under which a person acts is an important consideration. Intention
being a state of mind can never be proved directly as a fact. Further a man is
presumed to intened the natural consequences of his acts. This is a subjective
investigation and intention is to be gathered from the surrounding circumstances
and also the conduct of the accused.
4. 1957 Cr.L.J. 597 (SC) : 1957 S.C 474 Brij Bhushan, injuries caused contused area
7' x 8' over the left buttock and upper of left thigh with 5 contusions varying in
length from 3’x 2’ and breadth 3/4’ x 1’ with abrasion rupee size near scrotum-
both the chambers of heart empty numerous injuries left little doubt that the
assailants intended to cause his death which was within a very short time of
assault. The doctor had not said that injuries were sufficient in the ordinary
course of nature to cause death. The Supreme Court formed its own opinion.
5. 1974 S.C. 2363 : 1975 Cr.L.J. 21 Bandarupalli. The accused caught the boy
alleged to have stolen their utensils. They tied his hands with a rope and tried to
extort confession from him. One of the accused poured kerosene on the boy after
which one of them lighted match and set fire to his clothes. Held the intention of
the accused was to kill the deceased.
6. 1975 S.C. 506 : 1975 Cr.L.J. 1320 Mohinder Singh and another. It was held that
the accused unit deceased with a brick and also with backside of an axe which he
carried as a result of which skull of the deceased cracked and he died though
there were other injuries also. Held unit was rightly convicted of murder.
7. 1974 S.C. 1803 : 1974 Cr.L.J. 1271 Laxman. Held that as many as 34 injuries had
been caused to the accused with an axe and sticks, the intention of assailants to
cause death could be inferred.
8. 1986 Cr.L.J. 488 (SC) Jaspal Singh. Held the nature of offence does not depend
merely on the location of injury caused by accused. The intention to commit
murder is to be gathered from all the circumstances and facts of the case–Knife
below given in groin and on the back of chest. 8 cm deep wound witnesses also
injured. Held to be offence under section 302.
9. 1986 Cr.L.J. 836 (SC) State of U.P. v. Ram Sagar beating with intention to cause
bodily injury with knowledge that it would cause death of victim. Offence is
murder.
Injuries inflicted by accused with axe resulted in instantaneous death of deceased–
Her evidence corroborated by medical report–Injuries inflicted on vital parts showing
that it was intentional killing on part of accused covered by firstly and thirdly clauses of
section 300–Accused liable to be convicted for murder. Daler Singh v. State of
Rajasthan, 1999 Cr.L.J. 1451 (Raj.).
Section 300 Clause I–Murder–Intention to cause death–Intention being the state of
mind of the offender, no direct evidence as a fact can be produced–It has to be gathered
from the available evidence and the surrounding circumstances in considering whether
the offence is cornered by clause I of section 300 I.P.C.–As far as clause II of the section
300 is concerned, it is enough if the accused had the intention of causing such bodily
injury as he knew to be likely to cause death of the person to whom the harm is caused–
Such intention may be inferred not merely from the actual consequences of his act, but
from the act itself also. Karu Malik v. State of Bihar, AIR 2001 SC 2266.
Section 302–Appellant convicted for murder of his wife and mother by setting them
on fire–Incident occurred in mid night–Daughter and son of appellant aged about 14 &
10 years. were eyewitnesses–Statement of two chidren witnesses were fully
corroborated by other witness who reached spot immediately after occurrence. No
explanation by accused how the victim suffered burn injuries–He is responsible for the
cause of death of his mother and wife under section 302 I.P.C. Nemichand v. State of
Rajasthan, 2009 (1) Crimes 156 (Raj.).
 Section 302–Appellant shot deceased in his head by his double barrel gun in his
house after appellant–Deceased and eye witness brother-in-law of deceased had
drinking Session–Conviction by Trial Court believing eye-witness–Prosecution case did
not receive corroboration from ballistic evidence –Though Doctor had found no exit
wound in head but no bullet or pellets were recovered from brain– Conviction under
section 302 Part I could not be sustained because of the conduct of eye-witness i.e. his
disappearance and not raising alarm or did not take deceased to hospital. Chand Singh
v. State of Punjab, 2010 (2) Crimes 806 (P&H).
Section 302–Deceased, wife of appellant was found lying with stab wounds outside
the house of PW3–She was removed by hospital by PW 19 PCR official– Both PW3 and
PW19 deposited that deceased told them that she was assaulted by her husband–Three
dying declaration were consistent and no reason to disbelieve them–Question of nature
of offence–Doctor who conducted post-mortem had no opinion regarding seriousness of
injuries and admitted that with proper medical or surgical intervention deceased could
have been saved–Report, however, showed it to be a case of indiscriminate assault not
directed towards any specific part of body–Weapon of offence was a kichen knife–
Deceased died after 13 days–Offence would fall under section 304 Part I I.P.C. and
sentenced. Jai Prakash v. State, 2010 (1) Crimes 731 (Del.).
Section 300–Murder–Injuries caused by knife–It was held that on the basis of
evidence of eye-witness seeing the accused attacking the deceased with knife, cannot
be taken technically stabbing or slicing. The post-mortem report stated that most of the
wounds were deep cut wounds and the same can be caused by knife. Therefore, to this
extent, the statement of eye-witnesses stood corroborated by medical evidence. Sheikh
Sintha @ Jaffar @ Sintha v. State, 2016 Cr. L.J. 2356 (SC).
Section 300–Murder-Intention–The accused person armed with deadly weapons
reached the place of occurrence to kill ‘x’. The villagess including men, women and
children gathered at the spot and tried to dissuade accused from carrying out their
objective to cause harm to ‘x’. Accused became furious and fired gunshots
indiscriminately causing death of a man and woman and injuries to a child aged 5 yrs.
The plea of the accused that their intention was to murder ‘x’, not villagers was not
accepted and not tenable. Brij lal v. State of Rajasthan, 2016 Cr. L.J. 4832 (SC).
Section 300–In this case, deceased was found in public toilet lying in pool of blood
with cut to her neck. The witness, mother-in-law of deceased stated that she heard the
cries of her daughter-in-law from the public toilet & thereafter she saw the accused
coming out of the public toilet with a blood-stained sickle in his hand and throwing that
sickle in the nearby dung pit after seeing the witness, ran away from the spot. Her
evidence was found reliable & truthful as the same was corroborated from the
prosecution witness including the seizure of blood-stained sickle from the spot &
matching of blood group. There was a strong motive to kill the deceased. Conviction
confirmed. Gandhi Doddabasappa @ Gandhi Baravaraj v. State of Karnataka, AIR 2017
SC 1208.

2nd Clauses Section 300

If it is done with the intention of causing such bodily injury as the offender knows to
be likely to cause the death of the person to whom the harm is caused.
This clause presupposes knowledge plus intention. It relates to personal knowledge
of the person accused of causing the injury regarding the particular victim being in such
a peculiar condition or state of health that intentional injury/harm caused to him is
likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way
of nature be sufficient to cause death of a person in normal health or condition.
In case a man is suffering from a diseased spleen and kick blow is given without
knowing that man has diseased spleen and he dies, the offence would be of grievous
hurt but if knowingly it is done though with a kick that spleen being deceased, would be
punctured resulting in death, it would be murder. See for distinction in clause (b) of
section 299 and clause 2 of section 300 in 1977 S.C. 45 State of A.P. v. Rayavarapu,
1968 Cr.L.J. 568 Rajmangal Singh. There were 16 injuries on the person of the deceased
but none on the vital part. The deceased died. According to doctor the deceased was
suffering from chronic suppurative disease of right lung and spleen. But for that the
injuries were not sufficient. Held case was not of murder.
Murder–Accused inflicting only one pipe blow on head of deceased–Deceased
operated but died 18 days later due to certain complications that set in–Accused cannot
be said to have intended to cause death or that particular injury–Conviction altered
from murder to one under section 304 Part II. I.P.C. Ganga Dass 1994 Cr.L.J. 237.
Murder–Only bone injury caused by cycle-chain on the head of deceased was
serious–Other injuries only bruises and abrasions. Though there was bitter enmity
between two groups. Only cycle-chain and clubs and no other deadly weapons were
used by assailants–Intention to cause death cannot be inferred–Conviction under section
302/34 altered to one section 304 Part II/34 of the Penal Code. Panchaiah 1994 Cr.L.J.
1213 (SC).
Section 300 IPC Clause II–Accused pouring inflammable liquid on deceased and
setting the victim on fire–Death occurred after a fortnight–It can not evacuate act of
accused out of contours of clause II of section 300 I.P.C–Interval of fourteen days
between the attack and her death is not a cause for mitigation of the offence
perpetuated by the offender. Patel Hiralal Jaitaram v. State of Gujarat, AIR 2001 SC
2944.
Section 300 Clause II/III–For cases to fall within section 300 (2) and (3) I.P.C., it is
not necessary that the offender intended to cause death, so long as the death ensues
from the intentional bodily injury or injuries sufficient to cause death in the ordinary
course of nature–Prosecution must prove the following facts before it can bring a case
under section 300 I.P.C.–First, it must establish quite objectively, that a bodily injury is
present–Secondly, the nature of the injury must be proved–These are purely objectively
investigations–Thirdly, it must be proved that there was an intention to inflict that
particular injury, that is to say, that it was not accidental or unintentional or that some
other kind of injury was intended. Shankar N. Bhadolkar v. State of Maharashtra, AIR
2004 SC 1966.
Section 302 I.P.C.–Prosecution of appellant for causing death of his wife by pouring
kerosene on her and setting her on fire–Conviction by trial court–In the instant case,
deceased was brought to hospital by her mother-in-law & father-in-law and she was
under their influence. The first dying declaration was recorded by Executive Magistrate
the deceased did not make any allegation against family members. This statement was
not supported by medical evidence as the injuries on her body was found on the upper
part of her body. The second dying declaration was recorded by a police officer after
getting the medical fitness after getting a fitness certificate from doctor was
corroborated by medical evidence & free from any suspicious circumstances–Deceased,
died after 21 days of recording of second dying declaration–No interference called on
conviction under section 302 Part II. Lekhram v. State of M.P., 2010(4) Crimes 200
(SC).
Section 300–In this case, the accused was suspecting the deceased lady to be a
sorcerer. He went to her house armed with hammer & assaulted the deceased on her
head. The injury sustained by the deceased, medically showed that there were only to
bruises on the temporal region. From the external injuries and taking into consideration
the weapon of offence, i.e. hammer, the degree of culpability on the accused would not
travel beyond section 304 part I I.P.C, Since the use of hammer was not with such
excessive force even to cause lacerated wound to the deceased. Deceased being an old
and fragile lady, even a mild blow caused fracture and injury to her inner brain. The
accused had no surest intention to commit murder. Though he had ultered words with
loud voice. He had possessed the knowledge that death may be the outcome of his act
which can safely be imputed to him. Conviction
under section 302 I.P.C. upheld. Rakesh v. State of U.P., 2015 Cr.L.J. 2418 (SC).
 Section 300–In this case, the accused persons caught hold the victim on account of
enmity and tried his hands behind his back, spalashed chilly powder on his face and
assaulted him with club of stones resulting into his death. It was not believed that the
whole story. A new story was stated and earlier incident was totally obliterated by the
I.O. The conviction of the accused was set-aside. Abdul Razak v. State of Karnataka,
2015 Cr. L.J. 2897 (SC).
Section 300–The accused persons armed with spears and lathis came to the field and
he inflicted injuries on neck of nephew of the complainant causing his death. The
testimony of eye-witness was consistent regarding participation and inflicting of injuries
by the accused persons. During the scuffle, other accused persons inflicted injuries on
complainant and his sister. Since the accused inflicted injuries on neck & scalp of
deceased with intention of causing death, conviction of accused under section 302 I.P.C.
Ahmed Shah v. State of Rajasthan, 2015 Cr.L.J. 1398 (SC).

3rd Clause Section 300 IPC

If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death.
1. Virsa Singh v. State of Punjab 1958 S.C.R. 495 : 1958 S.C. 465. The Supreme
Court said “To put it shortly the prosecution must prove the following facts before it can
bring a case under section 300.
First, it must establish, quite objective that a bodily injury is present;
Secondly, the nature of injury must be proved; These are purely objective
investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily
injury i.e. to say that it was not accidental or unintentional or that some other kind of
injury was intended. Once these three elements are proved to be present; the enquiry
proceeds further and,
Fourthly, it must be proved that the injury of the type just described made up three
elements set out above is sufficient to cause death in the ordinary course of nature. This
part of the enquiry is purely objective and inferential and has nothing to do with the
intention of the offender.
Once these four elements are established by the prosecution and of course the
burden is on the prosecution throughout the offence is murder under section 300, 3rdly.
It does not matter that there was no intention even to cause an injury of a kind that is
sufficient to cause death in the ordinary course of nature...” Also See 1989 Cr.L.J. 1918.
The import of this clause was discussed in detail by Hon’ble Justice Sarkaria in State
of Andhra Pradesh v. Raya Varapur Punnaya, 1976 Cr. L. J. (SC) 485 ; 1977 S.C. 45 :
1977 Cr. L.J. 1.
Wherein death resulted from 21 injuries caused on legs, arms only and not on
any vital part but injuries were cumulatively sufficient to cause death. Cases of
Raj Want Singh v. State of Kerala 1966 S.C. 1874 and Virsa Singh 1958 S.C. 465
and Anda v. State of Rajasthan were approved. In Anda’s case injuries were on
hands and legs, only lathis used which were not dangerous even but injuries
were sufficient in ordinary course of nature to cause death. Held Clause (3)
applied.
It was further held that single injury may not be individually sufficient and there
is direct casual connection between the act and death and injuries are sufficient
to cause death medically, it was murder.
2. 1974 S.C. 2328 : 1975 Cr.L.J. 16 Sudershan Kumar. In this case accused had
thrown acid on deceased and 35% of the body was burnt. The deceased died 12
days after and the injuries were collectively sufficient to cause death in the
ordinary course of nature. Held that the act of accused was preplanned and he
intended to cause injuries which he caused and which were sufficient in ordinary
course of nature to cause death and was guilty of murder.
3. 1972 Cr.L.J. 587 : 1972 S.C. 952 Gudar Dusadh. The accused gave a lathi blow
on the head of the deceased as a result of which the deceased fell down and died
 instantaneously and the injury was sufficient to cause death in ordinary course of
nature, it was held to be murder. The mere fact that the accused gave only one
blow would not mitigate the offence to be culpable homicide not amounting to
murder.
4. 1973 Cr.L.J. 965 Nafe Singh. The accused had caused injuries with a solitary
blow of Khunta 3’ thick and 3’ long on the head of the deceased fracturing
parietal and frontal bones of skull resulting in his death, held it was murder.
5. 1968 S.C 867 : 1968 Cr.L.J. 1023 Harjinder Singh. Scope of clause thirdly
considered. The accused gave an injury with knife which struck thing of
deceased cutting femoral artery and vein. It was held that the third ingredient as
in Virsa Singh’s case that the accused intended to cause particular bodily injury
was not proved as he had not aimed the blow on this part. Therefore the offence
fell under sec. 304 Part I. Also see Laxman Kalu Nikalji 1968 S.C. 1390.
6. 1972 S.C. 2574 : 1973 Cr.L.J. 36 Chahat Khan. When a person causes an injury
on vital part of the body, the intention to kill can be attributed to him. Two
injuries on head and neck, resulting in fracture of parietal bone. Case held to be
murder.
7. Section 300 Clause III–Culpable homicide when amount to murder–Accused
causing bodily injury–Even if the intention of accused was limited to the infliction
of a bodily injury sufficient to cause death in the ordinary course of nature, and
did not extend to the intention of causing death, the offence would be muder–
Illustration (C) appended to section 300 clearly brings out this point. Abdul
Waheed Khan v. State of A.P., AIR 2002 SC 2961.
8. Section 300 Clause III–Culpable homicide will be murder if following conditions
are satisfied–
(i) The act which causes death is done with the intention of causing death or is
done with the intention of causing a bodily injury.
(ii) The injury intended to be inflicted is sufficient in the ordinary course of
nature to cause death. It must be proved that there was an intention to inflict
that particular bodily injury which, in the ordinary course of nature, was
sufficient to cause death, viz, that the injury found to be present was the
injury that was intended to be inflicted.
(iii) Even it the intention of accused was limited to the infliction of a bodily
injury sufficient to cause death in the ordinary course of nature and did not
extent to the intention of causing death, the offence would be murder. Ruli
Ram v. State of Haryana, AIR 2002 SC 3360.
9. Section 300 Clause III–For cases to fall within clause (3), it is not necessary that
the offender intended to cause death, so long as the death ensues from the
intentional bodily injury or injuries sufficient to cause death in the ordinary
course of nature. Augustine Saldanha v. State of Karnataka, AIR 2003 SC 3843.
10. Section 300 Clause III–Accused giving Gandasa blow–Blow was so severe
that it fractured the bone and brain matter came out–It in murder–Offence would
fall within section 300 clause (3). Atrup v. State of Rajasthan, 2003 Cr.L.J. 4031.
11. These are few other cases on section 300, clause III. They are as under–
(i) Rajinder v. State of Haryana, 2006 (2) Apex Criminal 358 (SC)
(ii) Rajpal v. State of Haryana, 2006 (2) Apex Criminal 254
(iii) Khuman Singh v. State of M.P., 2005 (1) Apex Criminal 33 (SC)
(iv) Jagsir Singh v. State of Punjab, 2004 Cr.L.J. 3247
(v) Shankar Narayan Bhadolkar v. State of Maharashtra, AIR 2004 SC 1966
Section 300–Intention on the part of a person to commit murder must be
gathered from the backdrop of events and the circumstances attending
thereto and if proved, the rest of the enquiry would be purely objective and
the only question to be considered would be whether the injury is sufficient
in the ordinary course of nature to cause death. Murugan v. State, 2008(1)
Crimes 21 (SC).
 Section 300(3)–For cases to fall within clause (3), it is not necessary that
the offender intended to cause death, so long as the death ensues from
intentional bodily injury or injuries sufficient to cause death in the ordinary
course of nature. Daya Nand v. State of Haryana, 2008(2) Crimes 235 (SC).
Section 300(3)–It is not necessary that the offender intended to cause
death, so long as the death ensues from the intentional bodily injury or
injuries sufficient to cause death in the ordinary course of nature. Bhagwan
Bahadure v. State of Maharashtra, 2007(4) Crimes 170 (SC).
Section 300(3)–Even if the intention of accused was limited to the
infliction of a bodily injury sufficient to cause death in the ordinary course of
nature, and did not extend to the intention of causing death, the offence
would be murder. Santhanam v. State of Tamil Nadu, 2009 (2) Crimes 286
(SC).
Section 300(3)–Determinative factor in section 300(3) is the intentional
injury which must be sufficient to cause death in the ordinary way of nature–
It is immaterial whether the offender had knowledge that an act of that kind
will be likely to cause death. The offender’s subjective knowledge of the
consequences is irrelevant. The result of the intentionally caused injury must
be viewed objectively. The diverse factors need to be kept in mind such as
the force with which the blow has been dealt with, the type of weapon used,
the vital organ or the particular spot of the body targeted, the nature of the
injury caused, the origin and genesis of the crime and circumstances
attendant upon the death. Suchand Bouri v. State of West Bengal, 2009 (2)
Crimes 315 (SC).
Section 300–Nature of injury–Accused, arrived at the scene of occurrence with nine
armed men out of which three were equipped with knives and the rest were equipped
with sticks. It was apparent that sufficient amount of time had elapsed between the
initial altercation at the restaurant of the accused and subsequent arrival of accused
persons at the spot of crime. The evidence showed that the accused had inflicted knife
injury of such a nature upon the unarmed deceased that was sufficient in ordinary
course of nature to cause death. Conviction under section 302 I.P.C. was upheld. Saddik
@ Lalo Gulam Hussain Shaikh v. State of Gujarat, 2017 Cr.L.J. 149 (SC).
Section 300–The injuries found on the persons of the deceased were sufficient to
cause death in ordinary course of nature and that injuries caused with the iron rod. The
iron rod was recovered and corroborated the removal of iron rod from the store room at
the place of occurrence on the night. The medical evidence confirmed that injuries
could be caused with iron rod. The Conviction under section 302 I.P.C. upheld. Ram
Singh v. Sonia, AIR 2007 SC 1218.

4th Clause Section 300

This clause relates to knowledge merely. Such knowledge to cause death
makes it murder if:
(1) the act was imminently dangerous, or
(2) that it must in all probability cause death, or
(3) such bodily injury as is likely to cause death, and
(4) there is no lawful excuse for incurring the risk.
Knowledge is implied from extreme recklessness and doing an imminently
dangerous act, viz. beating cruelly to cure of ghost influence, jumping into well with
child who dies; administering Dhatura to rob and thereby causing death, seeing a crowd
of children on road and still running them over, etc.
I. 1968 S.C. 118 : 1968 Cr.L.J. 1025 State of M.P v. Ram Parshad. Clause for this
usually involved in these cases where there is no intention to cause the death of a
particular person, the clause may be used in these cases where mere is such callousness
towards the result and the risk taken in such that it may be stated that the person
known that the act is likely to cause death.
Death by setting clothes on fire.
Held 4th Clause applied.
 II. The Divine influence to please a God; drunkenness, etc. are no excuses to cause
death of another.
III. Accused, a Sub-Inspector cleaning loaded revolver without applying safety catch.
Accordingly goes off killing a man. Held Clause 4 of sec. 300 does not apply as it was
unusual to expect death in such a case. The degree of probability or likelihood of act
resulting in death is the highest under clause Janardan 1977 Cr.L.J. 68.
Clause (4) of sec. 300 would be applicable when the knowledge of the offender as to
the probability of death of a person or persons in general, as distinguished from a
particular person, being caused from his imminently dangerous act, approximates to a
practical certainty. Such knowledge is of the highest degree of probability, the act
having been committed by the offender without any excuse incurring the risk of causing
death or such injury as aforesaid. State of A.P. v. Raya Varapu Supra.
Medical evidence showing that due to asphyxia as result of throttling; guilty of
murder section 300 clause IV. State v. Dalal Hazara, 1987 Cr.L.J. 857.
Section 300 Clause IV–Accused quarreled with his brother and fired a gun shot at
him–The shot hit his brother’s wife who came in and died at the spot–Held, accused is
guilty of offence of murder–His act will fall within meaning of section 300 Clause
fourthly–Contention that offence would fall under section 304 Part-I as accused had no
intention to cause injury to brother’s wife–Contention not tenable–Act of accused to fire
with gun was imminently dangerous because firing could cause bodily injury to any
body–Act would thus came within section 300 clause IV. Sukhchain Singh v. State of
Punjab, 2005 (2) RCR (Cri.) 442.
Section 302–Appellant in a quarrel and fight rushed to his house, took out a gun and
from balcony of 1st floor fired gun shoot which hit deceased and victim died on spot–
Trial Court recorded conviction–Appeal–Autopsy surgeon found that direction of gun
shot was from lower side to upward side. Doctor found blackening and charring marks
on gun shot wound on deceased which suggested that it was caused from a close range
whereas distance between balcony from where shot was fired and place where
deceased was standing was 27 feet–Conviction
under section 302(4) could not be sustained. Pappu @ Gajraj v. State of M.P., 2010 (2)
Crimes 623 (M.P.).
Section 300–Conviction for murder–The accused person armed with hockey sticks
and swords were alleged to have assaulted the complainant and forcibly took away his
wife and killed her, the marriage of deceased with the complainant was not to the liking
of accused persons. The evidence of complainant/injured witness was found
trustworthy, reliable and was corroborated by medical evidence. His presence at the
place of incident and identifying the assailants was not doubtful. The photographs of
deceased with her description on its backside was recovered at the instance of accused
along with the recovery of weapon & blood stained seat cover. Held, conviction of
accused was proper. Ashwani Kumar @ Ashu v. State of Punjab, 2015 Cr.L.J. 2543 (SC).
Section 300–The accused persons came to shop of deceased and took out a dagger
and inflicted a blow on left flank of his deceased father-in-law followed by co-accused
inflicted knife blows on the right side and neck of the deceased. Both of them fled away.
The testimony of eye-witnesses wife and daughter of deceased was found cogent,
consistent and trustworthy. Medical evidence supported the inflicted injuries. Held,
conviction proper. Gurmit Singh v. State of Punjab, 2015
Cr.L.J. 4877 (SC).

When it is not Murder

Firstly: In case, the case falls under any one of the Five exceptions of section 300
I.P.C., the offence would be culpable homicide not amounting to murder and punishable
under section 304 Part I.

Exception I
If death was caused by offender whilst deprived of the power of self-control by grave
and sudden provocation of the person who gave such provocation or of any other person
by mistake of fact.
 The test is of loss of self-control. The condition of mind must be kept in view if it was
sufficient to upset an ordinary person, naturally or reasonably arising out of provocation
prompting an irresistible impulse of retaliation. No abstract standard of reasonableness
can be laid down.
The provocation can be:
1. By words e.g. Confession of adultery by wife, abuses keeping in view social
standing, habits, customs of people and the sense in which it was used, teasing
by using contemptuous and derogatory words, etc. Accused on being abused
reacting immediately with stick in his hand, no malice, no deliberation, not
murder but 304 ; 1989 Cr.L.J. 753. 1967 Cr.L.J. 169 : 1967 Punjab and Haryana
508, Atma Ram.
Deceased woman saying to husband that he should satisfy his lust by sleeping
with his sister–Sufficient for provocation.
The standard excated by courts in England in this respect is quit different from
that in India.
2. 1970 Punjab and Haryana 279 : 1970 Cr. L.J. 835 Amarjit Singh, Accused being
told by his father deceased that he must provide him money even if he had to get
his mother prostituted (wife also present). Held sufficient for provocation.
3. 1962 S.C. 605 : 1962 (1) Cr.L.J. 521 KM. Nanavati, wife admitting adultery to
husband–Sufficient for provocation–Accused regaining self-control by driving his
wife to Cinema, going to his ship, taking his revolver on a false pretext, doing
some office work and then went to deceased and killed her. Held though
provoked, lost self-control but regained it and thus benefit of exception cannot be
given.
4. Section 300, Exception I Section 304, Part II Murder–Sudden and grave
provocation–Accused’s wife had illicit relations with deceased–Deceased had
earlier abducted her on four or five occasions–Accused suffering long
provocation on subsequent similar attempt by deceased accused losing his self-
control out of sudden and grave provocation and beating deceased with blunt
side of iron rod on non-vital part of body–Death of deceased– Act of accused
would fall under Exception I to Section 300. Rajendram v. State of Tamil Nadu,
1997 Cr.L.J. 4344 (Mad).
5. Section 300, Exception I–Murder–Grave and sudden Provocation–Accused firing
gun shot at his neighbour and his own daughter on finding out their illicit
relations–Testimony of eye-witnesses found credible despite their inter se
relationship with deceased–F.I.R. also promptly lodged–However, since offence
was committed by accused on learning that his tender aged daughter was
revished by deceased and that they had sexual relations, provisions of Exception
I to section 300 would be attracted. Riyazat Ali v. State of U.P., 2000 Cr.L.J. 3055
(All.).
It can be by acts e.g. by trespass into another’s house or by adultery in view, seeing
wife in unison with paramour. The act so provoking must be illegal or improper.
1975 Cr.L.J. 114–Finding wife in illicit cohabitation- running after and killing–
liability under section 304 Part II.
There are, however, limitations upon this when benefit of this Exception is lost:
(i) When sometimes elapses between provocation and assault and there is time to
think over.
(ii) Premeditation and preparations made are acts inconsistent with the assumption
of self-control.
(iii) If it is vindictive, to take revenge.
(iv) If accused himself seeks provocation.
(v) Legal acts cannot give provocation.
(vi) No provocation, if other party is exercising its right of private defence of person
or property.
Accused and his wife walking together as seen by a witness; after the witness was
ahead to some distance from the couple she heard exchange of words in raised voice;
sometimes after husband inflicting nine incised wounds on vital part of the body of his
wife–Held, it is not on grave and sudden provocation. It answers in
under section 302 I.P.C.
As a sequel of quarrels between the spouses, husband gave a single blow on the
head of the deceased wife; 3½ hours after the quarrel, this gap of 3½ hours warrants
absence of suddenness, even if the provocation be grave–Held, the offence of murder is
not reduced to culpable homicide not amounting to murder. Murugan 1991 Cr.L.J. 1680
(Mad).
So, the defence of provocation rests upon the fact that provocation was grave and
sudden by reason of which the accused was deprived of his power of self-control. It is to
note that provocation is an external stimulus which can be objectively measured. But
loss of self-control is a subjective phenomenon. To keep into the mind of the accused is
seldom possible. The State of mind can be inferred from the surrounding circumstances.
Bichi Munda 1993 Cr.L.J. 145 (Ori).
Grave and sudden provocation–Brother of accused dying on account of consumption
of liquor admininstered by deceased–Indifferent, impertinent reply and indecent words
uttered by deceased against accused on being objected as to administration of liquor
resulting into death of his brother–Accused attacking deceased with knife lying nearby
which on being deprived off self-control by grave and sudden provocation by act of
deceased–Accused’s act covered under Exception I of Sec. 300–Conviction altered from
sec. 302 to sec. 304 Part I. Dayal v. State of M.P. 1994 Cr.L.J 10 (SC).
In Shri Murli alias Denny 1994 Cr.L.J. 1114 (SC)–Murder on sudden provocation–
Deceased a anti-social element in society abusing accused in a virulent manner–Accused
on being provoked stabbed deceased and reported the incident to police–No evidence
produced by prosecution as to manner in which quarrel ensued– Possibility of receiving
of injuries during grappling–Not ruled out–Acts of accused covered within Exception 1
to S. 300–Conviction altered from sec. 302 to sec. 304 Part I, I.P.C.
Jaggit Singh 1994 Cr.L.J. 233–Number of injuries on vital parts of body which were
very serious–Plea of Grave and sudden provocation–Not accepted.
Section 300 Exception I–Murder–Grave and sudden provocation–Quarrel between
accused and prosecution witness–Deceased intervening to defuse tension– Accused
armed with dangerous weapon attacking deceased–It was accused who provoked
situation which ultimately resulted in death–Accused not entitled to benefit of sec. 300,
Exception I.
Section 300 Exception 1 and Exception 4–Scope of Exception I and 4 of Section 300
I.P.C.–While in the case of Exception I there is total deprivation of self-control in the
case of Exception 4, there is only that heat of passion which clouds men’s sober reason
and urges them to do deeds which they would not otherwise do–There is provocation in
Exception 4 and in Exception I; but the injury done is not the direct cousequence of that
provocation. Lachman Singh v. State of Haryana, 2006 (3) RCR (Cri.) 904 (SC).
Section 300 Exception I and 4–Scope and distinction between Exception 1 and 4 of
Section 300 I.P.C. explained–Fourth Exception of Section 300 I.P.C. covers acts done in
a sudden fight–The said exception deals with a case of prosecution not covered by the
First exception–The exception is founded upon the same principle, for in both there is
absence of premeditation–But, while in the case of Exception I there is total deprivation
of self-control, in case of Exception 4, there is only that heat of passion which clouds
man’s sober reason and urges them to deeds which they would not otherwise do. Pappu
v. State of M.P., 2006 (2) Apex Criminal 625.
Section 300, Exception I–Accused killed their sister and thereafter her paramour in
a very short duration–Physical relationship between them was in knowledge of accused
for long time–Accused guilty of offence of murder under section 302 I.P.C.–Case would
not fall within section 300 Exception I–Accused could be deprived of their self-control
but deprivation was not of sudden nature to bring it within Section 300 Exception I–
Sudden nature of such deprivation is of paramount importance to establish that there
was hardly any time between the provocation and the occurrence to regain the self-
control and balance of their mind. Charanjit Singh v. State of Haryana, 2004 (4) Crimes
473.
 Section 300 Exception I–Accused found his wife and her paramour lying together
unclad–Accused lost his power of control and gave severe blows to both of them with
axe resulting in their death–Accused entitled to benefit of Section 300 Exception I–
Accused convicted and sentenced to 10 Years. RI and fine of Rs. 500/-. Ratilal Lakhabhia
Gamit v. State of Gujarat, 2004 (1) RCR (Cri.) 543.
Section 300 Exception I–Murder–Deceased party attacked the accused and caused
some minor and superficial injuries–This gave provocation to sons of accused–One of the
sons fired a gun shot and killed the deceased–Held, accused exceeded right of private
defence–Exception 1 to Section 300 IPC not attracted. State of M.P. v. Ramesh, 2005 (1)
RCR (Cri.) 52 (SC).
Section 300, Exception 1–Accused found his daughter and her lover in compromising
position–Accused inflicted Gandasa injuries and killed both of them at spot–Life
imprisonment to accused under section 304, Part I upheld–Plea that accused acted
under grave and sudden provocation and punishment less than life imprisonment be
awarded–Plea turned down–Life imprisonment imposed upon accused for murdering
young persons who were on threshold of their lives does not warrant any reduction.
Punna v. State of Punjab, 2005 (2) RCR (Cri.) 978.
Section 302–Appellant convicted for causing murder of his wife by inflicting knife
blow injuries–Appeal–Appellant, deceased and PW5 were living as tenant in one room in
house of PW2–Large number of cut injuries found on deceased supported theory that
appellant acted in grave and sudden provocation as appellant saw witness in
compromising position with wife–Offence come under section 304 Part 1 I.P.C. and 10
years imprisonment awarded. Harbhajan v. State of Rajasthan, 2007 (4) Crimes 209.
Section 302–Death by stabbing–Grave and sudden provocation–Trial for appellant
accused for causing death of deceased by stabbing him with knife when deceased threw
waste paper in his shop. Trial Court convicted and High Court affirmed it–Appeal to
Apex Court–Plea–Accused was deprived of power of self-control by grave and sudden
provocation which led him to commit offence–If nubbish is thrown into one’s house or
shop, one who naturally get very upset– Evidence showed that the accused had not
motive or intention to cause death of deceased since accused was not carrying knife
from before and only picked it up during scuffle with deceased–The position might have
been different right from beginning appellant accused had been carrying a knife with
intention to attack him– Incident occurred in a sudden fight and a heat of passion by a
sudden quarrel without appellant having taken undue advantage or acted in a cruel or
unusual manner–Appellant entitled to get benefit of Exception 1 & 4 and case came
under section 304 II I.P.C.–Impudgned judgement modified accordingly. Muthu v. State
by Inspector of Police, 2007(4) Crimes 240 (SC).
Section 302–Trial of appellant for causing death of deceased by assaulting on his
neck by means of a sickle–Trial Court convicted and High Court dismissed the appeal–
Appeal in Apex court–Testimony of eye-witness “w1” & “w2” indicated that on day of
incident appellant inflicted injuries on deceased–There was nothing substantial on
cross-examination which would cast a doubt that appellant was the author of injuries–
Prosecution said that deceased in the company of witness ‘w1’ had gone to field of
appellant to get bitter guard in spite of knowing that appellant was nurturing a feeling
that deceased and his own sister's son had facilitated elopment of “P” with her teacher–
Testimony of father of deceased established that his deceased son, in the company of
‘w1’ had stayed in the field of appellant for about 15 minutes and there was an
altercation between appellant and deceased appellant never knew and anticipated that
deceased would enter his field nor had prepared himself in advance to attack deceased.
Hence, there was no premeditation or preplan on the part of appellant–Evidence led by
prosecution clearly established that after verbal duel, appellant had picked up a sickle
which is on agricultural implement, lying an ground and delivered a blow on neck of
deceased–Deceased had offered grave and sudden provocation as a result of which
appellant in heat of moment had delivered a blow with sickle to deceased. No case of
prosecution that appellant acted cruelly and delivered successive blows. Hence,
provisions of Part II of sec. 304 had applicable to facts of case. Appeal allowed to 304 II
I.P.C. Chinnathaman v. State through Inspector of Police, 2008(1) Crimes 48 (SC).
 Section 302/34–Prosecution of accused persons for causing death of deceased
persons by strangulating them with a rope–Conviction by Trial Court–Appeal–High
Court, on the basis of post-mortom report that semen was found in the veginal swabs of
deceased ‘D’ which were sent for chemical examination, held that it was deceased ‘D’
who himself sneaked into the house of accused persons and must have had sexual
intercourse with ‘D’ and on seeing them in a compromising position, accused persons
must have killed them. It was a case of grave and sudden provocation and as such it
could not be a case of murder and would come under section 304 Part I read with
section 34 I.P.C. on the basis of First Exception to section 300 I.P.C. Appeal to Apex
Court–SC found no error in the approach of High Court– Appeal dismissed. State of
Punjab v. Jaglar Singh, 2011(3) Crimes 153 (SC).
Section 302–Appellant assaulted deceased, his brother with sharp edged weapon
and caused his death–Conviction based on circumstantial evidence–Evidence showed
that deceased was carrying weapon in his hand and had started hurling abusive
language (words) to accused–After first assault by wooden beam by deceased, accused
requested him to go home as he was drunk, deceased again came back with a chuppi
(knife) and assaulted accused–Accused however could not be said to have acted in good
faith for his right of private defence. Post mortem showed that accused had caused six
grave injuries on body of deceased by sharp edged weapon– Accused acted in sudden
provocation and did not intended to commit murder. Liable under section 304 II. Durga
Prasad Chettri v. State of Sikkim, 2011(2) Crimes 237.
Section 300–Applicability of Exception I–In the case of Exception 1, there is total
deprivation of self-control, in case of exception 4, there is only that heat of passion
which clouds men’s sober reason and urges them to deeds which they would not
otherwise do. There is provocation in exception 4 as in Exception 1, but the injury done
is not the direct consequence of that provocation. In fact, exception 4 deals with cases
in which notwithstanding that a blow may have been struck, or some provocation given
in the origin of the dispute or in whatever way the quarrel may have originated. The
homicide committed is their clearly not traceable to unilateral provocation, nor in such
cases could the whole blame be placed on one side. For if it were so, the exception more
appropriately applicable would be Exception 1. Naveen Chandra v. State of Uttaranchal,
AIR 2007 SC 363.
Section 300–In the instant case, there was sufficient material on record to infer the
reasonable possibility of a grave and sudden provocation. Though there was no
intention on the part of accused appellant to cause death but inquires on head proved
fatal and knowledge of such effect of injuries can be fastened against accused appellant.
The assault on deceased could be said to be on account of a sudden fight without
premediation, in heat of passion and upon a sudden quarrel. Therefore, conviction of
accused appellant under section 302 I.P.C. set aside and altered to section 304 Part I
I.P.C. Prabhakar Vithal Gholve v. State of Maharashtra, 2016 Cr.L.J. 2937 SC.

Exception 2
This Exception applies, if death of the other is caused by the offender exceeding the
right of private defence of person and property which is not justifiable under section
100 and 103 I.P.C. The right of defence is available to the offender but more harm than
necessary is done e.g. killing a lean and famished thief stealing bread.
Sections 300 Exception 2, 304 Part II–Murder–Complainant interfering with
possession of accused and thereby violating injunction order passed against him–
Accused hitting him with the bamboo stick–Weapon used was such that he cannot be
attributed knowledge that he had intention of causing death–No offence punishable
under section 302 thereby committed–Fact that offence took place on way to field and
not on field–Immaterial since in such cases, fight cannot be confined to one spot only–
Conviction altered from sec. 302 to sec. 304 II. Bhanwarlal v. State of Rajasthan, 1998
Cr.L.J. 3489 (Raj.).
Section 300–Exception 2, 103, 304 Part I–Murder–Deceased committing criminal
trespass but he was unarmed–No apprehensive that death or grievous hurt was likely to
be caused to accused–Accused causing two knife blows on chest of deceased in quick
succession–Accused exceeding right of private defence of property– Liable under
section 304-I and not under section 302. Deepa@Deepchand v. State of M.P., 1999
Cr.L.J. 413 (MP).
Right of Private defence–Availability–Field whereas occurrence of assault took place
was in exclusive possession of accused persons–Accused cannot be termed as
trespassers–Aquittal of accused under section 447 proper–Prosecution not liable to
prove that accused persons are aggressors–Accused suffering injuries on vital parts of
their bodies–No explanation for said injuries given by prosecution–Defence story that
incident took place on account of crop of accused being damaged by animal folk of
prosecution witnesses appearing probable–Accused entitled to right of private defence
of person and property–Acquittal of accused under section 304, 323, proper. State of
Rajasthan v. Pura & Others, 2000 Cr.L.J. 2615 (Raj.).
Murder–Exception exercise of right of private defence–Statement of accused giving
true and clear picture that after giving slap to brother of deceased when accused was
chesed and attacked not only with stones but by other instruments by prosecution party
and the deceased, who met him on the way and apprehending danger to his life he gave
blows to the deceased–In the circumstances, Plea of self-defence was proved–However,
accused having exceeded his right of self-defence, his conviction under section 302 was
converted to one under section 304, Part-II, I.P.C. Thomas George v. State of Kerala,
2000 Cr.L.J. 3475 (SC).
Section 300 Exception 2–Right of private defence–Murder–Deceased party entering
the land in possession of accused–Accused party went to place of occurrence armed
with deadly weapons and inflicting gandasi blow on person of deceased–Right of private
defense not available to accused–Arming with deadly showed pre-meditation and
intention of the accused person that they had the intention of doing more harm then
was necessary for purpose of self-defence–The offence committed by the accused person
will also not fail within Exception 2 of section 300 I.P.C. Jassa Singh v. State of Haryana,
AIR 2002 SC 520.
Murder–Right of private defence–Plea of self-defence taken by accused–Burden is on
accused to prove the plea. However, it is not necessary for the accused to have adduced
any positive defence evidence to substantiate his plea if the same is highly probablised
by prosecution evidence itself or by other material brought on record. Gurmit Singh v.
State of Punjab, AIR 2001 SC 2977.
Section 300 Exception 2–Right of private defence–Case of simple trespass on the
land of accused–Accused stabbed the deceased with spear in chest–Held accused
exceeded right of private defence–Accused could have stopped the deceased from
trespassing by inflicting lesser injury on legs–Accused guilty of offence under section
304 Part II–Only house trespass in the circumstances may give right to cause death.
Sitaram v. State of Haryana, 2005 (1) RCR (Cri.) 17.
 Section 300, Exception 2.–The existence of good faith is a must before accused
claims benefit of this exception. While acting in good faith, if the accused had exceeded
the right of self-defence and caused death of a person without pre-meditation and
further he had no intention to causing more harm than was necessary for the purpose of
the defence although infact more harm was caused, the benefit of Exception 2 to Sec.
300 may be available if the accused was not the aggressor. Rambir Singh v. State of
Haryana, 2009 (2) Crimes 418 (SC).
Section 300–In the instant case, the accused acted aggressively and fired shots from
the close range at the deceased. The incident look place in the house of complainant
and not in the house of accused. The complainant party were neither aggressor nor
were they carrying any weapons. In view of the facts or record the plea of self-defence
was not available to accused. Raj Singh v. State of Haryana, 2015 Cr. L.J. 2803 (SC).

Exception 3
It applies when a public servant exceeds his powers of arrest or seizure or other
powers conceded by law and uses violence and causes death without ill will while
discharging his lawful duties.
But, even lawful, must be moderate and proportionate to the circumstances of the
case e.g. killing while arresting an offender when later submits to custody, killing
without warning and using excessive force, etc. would make such a public servant
liable.
1994 Cr.L.J 920 (SC) S. Mohana Chandran–Death in Police custody–Accused brought
to police station–Police officials kicked him and dashed his head against wall 3 or 4
times causing injuries on head–No conflict between medical evidence and testimony of
eye-witness regarding manner of occurrence–Guilt of accused person beyond all
reasonable doubt–Conviction of accused under section 304 Part II was proper.
Nagatang Khui CCR 1994 IV Gau 2267–Custody death–Eldest son of the petitioner–
Missing from home since 30.8.92–Found in sub-jail–Final report–Drug addict–Nothing to
substantiate–Unnatural death caused due to injuries inflicted on the body–Post Mortem
Report–No affidavit filed by the Jail Superintendent–Can not avoid responsibility–Loss of
life–No amount adequate compensation awarded.
Section 300–Thirdly–For cases to fall within Clause (3), it is not necessary that the
offender intended to cause death, so long as the death ensues from intentional bodily
injury or injuries sufficient to cause death in the ordinary course of nature. Pappu @
Hari Om v. State of M.P., 2009 (2) Crimes 388 (SC).
Sections 302, 323/34–Appellants, three brothers two of whom armed with axe and
darat, and their mothers armed with Danda and chopped wood assaulted PW2 in a
dispute over path–Mother and brother of PW2 arrived hearing hue and cry of PW2 and
brother of PW2 was attacked on his head by axe and darat by two appellants who died
because of injuries–Conviction by trial court–Appeal–Defence plea was that accused
acted in exercise of their right of private defence–Appellants had sustained injuries in
same incident but prosecution did not explain those injuries–Appellants would be liable
for their individual acts–Only two of the appellants had caused fatal injuries to deceased
and death was caused when those appellants exceeded their right of private defence–
Liable to be convicted under section 304-I–Other two appellants were entitled to be
acquitted. Sikandar Pal v. State of H.P., 2010 (2) Crimes 104 (HP).

Exception 4
It applies when the death is caused without premeditation in a sudden fight. The
three essentials being, (a) without premeditation (b) in a sudden fight, in the heat of
passion, upon a sudden quarrel and (c) without taking undue advantage of the position
of victim or without acting in a cruel or unusual manner, 1971 Cr.L.J. 532 Bahal Singh.
Where the appellant accused stabbed the victim in sudden quarrel which led
appellant to give first slap to deceased who in turn slapped appellant and while the
deceased had no weapon, the appellant picked up a Kirpan and stabbed him therewith it
was held that appellant had no justification to pick up Kirpan and to strike vital part and
he took undue advantage of situation. No benefit of Exception IV. (See cases of free
fight under head Free Fight).
 Where injury caused by Musal on head resulting in death–Single blow only inflicted–
Parties closely related–No previous enemity–Trivial incidence causing hot exchange of
words–Sec. 304 Part I not sec. 302 attracted, 1994 Cr.L.J 398 Baijnath.
Sudden quarrel and fight between accused and deceased–Accused unarmed at initial
stage of quarrel–Suddenly leaving spot and returning with knife-Inflicting single knife
blow–No noticeable time lapse between departure of accused from Spot and his re-entry
with knife-Offence accounted culpable homicide not amounting to murder– Conviction
under section 302 altered to section 304 Part I, Indian Penal Code, Mathura Murmu
1994 Cr.L.J. 869 (Ori.).
Deceased and accused both quarrelling near Bus Stop for Rs. 5 they both proceeded
towards bridge–There deceased was pushed to fall from a height of 22½ feet and died–
Held, Exception 4 to sec. 300 I.P.C made out it is punishable under section 304 Part II
I.P.C.
Section 300, Exception 4, Section 304–Sudden quarrel in heat of passion–Setting
wife ablaze–Evidence of fact of relation between parties was not cordial–Quarrel
between two followed by husband beating wife was regular feature–Incident took place
when she refused to make tea and accused snatched kerosene and some spilled on his
clothes–He took step further and poured kerosene oil on her and set her ablaze–Not a
case of sudden quarrel or having not taken undue advantage– Accused/husband acted in
cruel manner–Subsequent conduct that he doused the fire and continued to look after
her at hospital–Does not point to his innocence–Conviction under section 302
maintained. Rawel Singh v. The State, 1997 Cr.L.J. 1195 (Delhi).
 Accused during altercation pushing deceased an result of which his head striked
against wall receiving fatal injury causing his death–Act of accused done in heat of
passion and without premeditation-No material showing accused taking undue
advantage or acted in cruel manner while inflicting injury–Exception 4 Section 300,
attracted– Conviction of accused under section 300 altered to one under section 304,
Part II. Surinder Kumar v. State of Punjab, 1997 Cr.L.J. 2872 (P&H).
Sudden quarrel between mother of accused and mother of deceased– Deceased
intervened in matter and caught hold of hair of another of accused and separated her
from his mother–Accused, present at the place of incident, went to his house and
brought axe–Thereafter without giving any warning inflicted axe blows on person
deceased–Act of accused shows that he premeditated that he would inflict injuries and
thereby intended to kill deceased–Consequently criminal act committed would not be
covered by Exception 4 of Sec. 300 but would be punishable under section 302.
Banarsi@Panha v. State of M.P., 1997Cr.L.J. 604 (MP).
Sudden quarrel–Domestic quarrel between ladies on question of throwing some
mango waste–Male member of their respective families coming out and taking part in
sudden fight–Blow given by accused in such scuffle by wielding a knife in sudden heat of
passion–Cannot be said to be out of premeditation–Exception 4 to Sec. 300, would be
alterated. Naresh J. Lohana v. State of Gujarat, 1998 Cr.L.J. 3574 (Guj.).
Quarrel took place between accused and his father–Accused inflicted dagger blows
on deceased step-mother and thereafter on his sister when they intervened in a quarrel–
Both victims were unarmed and had not caused any injury to accused–Not a case of
sudden fight–Accused acted in a cruel manner and had taken undue advantage–Case not
covered by Exception 4 of Section 300. Sikandar@ Mohd. Safiq v. State (Delhi Admn.),
1999 Cr.L.J. 2098 (SC).
Accused asked deceased to come to particular place to receive the watch–At that
place three associates of accused caught hold of deceased and accused gave a single
fatal blow on chest with knife–Total depth of wound was 19 cm–Said blow cannot be
said to be inflicted without premeditation–Thus it cannot be said that accused has not
been taken undue advantage or not acted in cruel or unusual manner–Exception 4 to
section 300 would not be attracted in facts and circumstances. Mahesh Balmiki@Munna
v. State of M.P., 1999 Cr.L.J. 4301 (SC).
Section 300–Exception 4–Necessary ingredients–Prosecution party ploughing their
land–Accused preventing them from doing so and then bringing some weapons from
their land and assaulting prosecution party causing death of one of them–Exception 4 to
Section 300 not applicable to such facts. Rajender Singh v. State of Bihar, 2000 Cr.L.J.
2199 (SC).
Sudden fight–Previous enmity between parties over possession of land admitted–
Accused were aggressors–Evidence showing that two accused wielding Pharsa for
causing fatal injury–Other persons ropped in by prosecution as accused due to enmity,
entitled to be acquitted–Accused having wielded Pharsa in heat of passion and caused
death of two victims–Their case would be covered by Exception 4 to Sec. 300. Rama
Shankar v. State of U.P., 2000 Cr.L.J. 3830 All.
Section 300 Exception 4–Exception 4 can be invoked if death is caused–
(i) Without premeditation.
(ii) In a sudden fight.
(iii) Without the offender’s having advantage or acted in a cruel or usual manner.
(iv) The fight must have been with the person killed.
(v) To bring a case within Exception 4, all the ingredients mentioned in it must be
found.
(vi) For the application of Exception 4, it is not sufficient to show that these was
sudden quarrel and there was no premeditation. It must be further be shown
that the offender has not taken undue advantage or acted in cruel or unusual
manner.
(vii) The expression “undue advantage” as used in the provision means “unfair
advantage”. Hachman Singh v. State of Haryana, 2006 (3) RCR (Cri) 904 (SC).
 Section 300 Exception 4–Sudden fight between accused and deceased–These was no
premeditation–Accused gave only one blow which he picked up–Prior to that he was not
armed–Fourth Exception of Section 300 will apply–Accused convicted under section 304
Part II IPC. Pappu v. State of M.P., 2006 (2) Apex Criminal 624 (SC).
Section 300 Exception 4–Murder arising out of sudden fight between parties–For
application of Exception 4 to Section 300 IPC, it is not sufficient to show that there was
a sudden quarrel and there was no premeditation–It must further be shown that the
offender has not taken under advantage or acted in cruel or unusual manner–The
expression “undue advantage” as used in the provision means “unfair advantage”. Smt.
Sandhya Jadhav v. State of Maharashtra, 2006 (4) JT 316 (SC).
Section 300 Exception 4–Double Murder–Fight took place between the opponent
parties–Both parties were armed and both inflicted injuries against the other–But no
evidence as which party provoked the other and how the fight was initiated–In such
circumstances a reasonable inference based on a high degree of probability could be
drawn that there was a sudden quarrel and free fight between the parties–Attack by
accused party on the deceased party cannot be said to be pre-meditated affair–Accused
party did not take under advantage of situation–Offence would fall under Exception 4 to
Section 300 IPC. D.S. Valake v. State of Maharashtra, 2005 (4) JT 307 (SC).
Section 300 Exception 4–In order to attract Exception 4 to Section 300 IPC,
following four mandatory ingredients are required to be established–
(a) It was a sudden fight (b) There was no pre-meditation (c) The act was done in a
heat of passion, and (d) The accused had not taken any undue advantage or acted in a
cruel manner. Chet Ram v. State of Haryana, 2005 (3) RCR (Cri.) 236.
Section 300 Exception 4–Murder–Sudden fight between accused and deceased
parties–Accused party gave blows on vital parts of unarmed persons with brutality–
Abdomens of two deceased person were ripped open and internal organs came out–No
material even to suggest that the accused persons apprehended danger of any kind,
much less a threat to life–Exception 4 to Section 300 I.P.C. will not apply. B.B. Khandare
v. State of Maharashtra, 2005 (1) Crimes 58 (SC).
Section 300, Exception 4–Murder as result of sudden fight–A “Sudden fight” implies
mutual provocation and blows on each side–The homicide committed is then clearly not
traceable to unilateral provocation nor in such cases could the whole blame be placed
on one side–A fight suddenly takes place, for which both parties are more or less to be
blamed. Prakash Chand v. State of H.P., AIR 2004 SC 4496.
Section 300, Exception 4–Culpable Homicide not amounting to murder–To avail the
benefit of Exception 4, the defence is required to probabilise that the offence was
committed without pre-meditation in a sudden fight in the heat of passion upon a
sudden quarrel and the offender had not taken any undue advantage and the offender
had not acted in a cruel or unusual manner–Sudden fight, though not defined under the
Act, implies mutual provocation. Sukhbir Singh v. State of Haryana, AIR 2002 SC 1168.
Section 300, Exception 4–Scuffle between accused and deceased over petty quarrel–
Accused fired at deceased as he tried to snatch the pistol–Offence not covered by
Section 80 I.P.C.–Offence would fall under section 300 exception–Conviction altered to
Section 300 Part II. Sukhbir Singh v. State of Haryana, AIR 2002 SC 1168.
There are few other cases on Section 300, Exception 4 which are as under: –
(a) Ravi Kumar v. State of Punjab AIR 2005 SC 1929
(b) Bhim Singh v. State of Haryana 2005 (2) RCR (Cri.) 136
(c) Sachchey Lal Tiwari v. State of U.P. AIR 2004 SC 5039.
Section 302 r/w 27 Arms Act–Exception 4 of Section 300 I.P.C.–Applicability of
conviction of appellant for causing death of deceased by a gun shot injury–Appeal
against conviction on plea that Exception 4 to Section 300 I.P.C. was attracted as
appellant had no intention to commit murder–Exception 4 to Section 300 I.P.C. requires
that no undue advantage be taken of other side–Appellant fired a shot from gun which
he was carrying–There was no provocation–shot from gun which was fired on vital part
of body whereas deceased was not carrying any arm–As deceased was not carrying any
arm and was merely opening door, appellant must have taken undue advantage of his
position–Hence, Exception 4 of Section 300 I.P.C. held not applicable – Appeal–No
merit. Anil v. State of Haryana, 2007(3) Crimes 15 SC.
Section 302–Prosecution of appellant accused for causing death of deceased by
stabbing him with a knife–Conviction by trial court. Appeal filed in Apex court after
rejecting by High Court relying upon decision of Sandhya Jadhav v. State of
Maharashtra held that heat of passion requires that there must be no time for passions
to cool down and parties have worked themselves into a ferry on account of verbal
alteration in beginning–It is a question of fact and whether a quarrel is sudden or not
must necessarily depend upon proved facts of each case–For Exception 4, it is not
sufficient to show that there was a sudden quarrel and there was no pre-meditation. It
must be further shown that offender has not taken undue advantage or acted in cruel or
unusual manner. The expression “undue advantage” as used in proviso means “unfair
advantage”. It appeared from evidence of witnesses that relationship between appellant
and deceased was strained and much before assault was made, there was exchange of
hot words and they were quarrelling with each other–Appeal allowed. Gali Venkataih v.
State of A.P., 2007(4) Crimes 271 (SC).
Section 302–Prosecution of accused for causing death of deceased by inflicting two
blows on his head by a wooden log–Altercation took place between parties, staff
members of a hotel on point of switching off lights–Incident was witnessed by
complainant–Complainant and hotel owner went to Police Station and reported the
matter–Conviction by trial court–After dismissed by High Court, appeal in Apex Court–
For bringing in operation of Exception 4 of Section 300 I.P.C., it has to be established
that act was committed without premeditation, in a sudden fight in heat of passion upon
a sudden quarrel without offender having taken undue advantage not having acted in a
cruel or unusual manner–Factual background showed that the matter comes under
section 304 I I.P.C. and not section 302 I.P.C. Ramesh Krishna Madhusudan Nayar v.
State of Maharashtra, 2008(1) Crimes 141 (SC).
Section 300, Exception 4–Where the offender takes undue advantage or has acted in
a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the
weapon is used or the manner of attack by the assailant is out of all proportion, that
circumstances must be taken into consideration to decide whether undue advantage has
been taken. Iqbal Singh v. State of Punjab, 2008(4) Crimes 40 (SC).
Section 300, Exception 4–The Fourth Exception covers acts done in a sudden fight. A
fight suddenly takes place for which both parties are more or less to be blamed. It may
be that one of them starts it, but if the other had not aggravated it by his own conduct it
would not have taken the serious turn it did. There is their mutual provocation and
aggravation and it is difficult to apportion the share of blame which attaches to each
fighter. The help of Exception 4 can be invoked if death is caused (a) without
premeditation, (b) in a sudden fight, (c) without the offender’s having taken undue
advantage or acted in a cruel or unusual manner, and (d) the fight must have been with
the person killed. To bring a case within, Exception 4, all the ingredients mentioned in it
must be found. ‘Fight’ occurring in Exception 4 to Section 300 I.P.C. is not defined. It
takes two to make a fight. Heat of passion requires that there must be no time for the
passions to cool down and in this case, the parties have worked themselves into a fury
on account of the verbal altercation in the beginning. A fight is a combat between two
and more persons whether with or without weapons. It is a question of fact and whether
a quarrel is sudden or not must necessarily depend upon the proved facts of each case.
Apart from pre-meditation, it must further be shown that the offender has not taken
undue advantage of acted in a cruel or unusual manner. The provision “undue
advantage” means “unfair advantage”. In this case, Exception 4 to Section 300 has no
applications. Sukhdev v. State of Punjab, 2007(3) Crimes 156 (SC) and Gopal v. State of
Maharashtra 2007 (4) Crimes 251 (SC).
Section 300, Exception 4–Where the offender takes undue advantage or has acted in
a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. Kulesh
Mondal v. State of West Bengal, 2007(4) Crimes 382 (SC); Shaikh Azim @ Vakil @ Kuku
v. State of Maharashtra, 2008 (3) Crimes 86 (SC).
Section 302–Quarrel Sudden and without any premeditation–Deceased totally
unconnected with main occurrence–Only two injuries found on the body of deceased–No
intention to cause death to the deceased. Offence under section 302 not made out–
Conviction made out under section 304(2) I.P.C. Elavarasan v. State, 2011(3) Crimes
132 (SC).
Section 302 & 326 I.P.C.–Appellant armed with axe caused injury on head of
deceased by axe and then assaulted her mother of deceased who tried to save
deceased–Conviction was made on the testimony of injured eye-witness and other
supporting witnesses–Witnesses admitted that there was no presious enemity between
families–Accused assaulted deceased from blent side of axe it appeal no further blow
was repeated. It would not be unreasonable to assume that some precipitating factors
must have arisen for accused to react and that he acted in a heat of passion–Case would
be convered under section 304 Exception 4. Nilya Bharali v. State of Assam, 2011 (3)
Crimes 459 (Gau.).
Section 300–In this case, group fighting took place and the injured accused who was
given deep knife blow on his back, had resorted by using licensed fire arm and killed
one of the rivals in the same incident. Injuries suffered by both sides were on record.
Held, it is the case of Exception 2 of section 300. Pathubhai Govind Ji Rathod v. State of
Gujarat, 2015 Cr. L.J. 1413 (SC).
Section 300–In this case, the scuffle took place in the heat of passion and the
accused was charged for the killing of the deceased. Considering the factual scenario of
the case on hand, the legal evidence on record and in the back ground of legal
principles, it was held that the accused did not take undue advantage of the deceased
and altered the change from 302 I.P.C. to section 304 I.P.C. Surian Singh v. State of
Punjab, AIR 2017 SC 1904.
Section 300–Murder–The accused persons armed with palsi and dau were alleged to
have attacked and inflicted injuries on the deceased. The evidence on record showed
that the accused had been objecting to the ingress and egrees the bullock cast in their
field and no sooner did the deceased try to enter their field a free fight ensued between
the parties. Thus, there was no pre-meditation on the part of the accused and the
incident was a sudden fight. Considering the injuries it cannot be said that accused had
taken undue advantage of the situation. The scuffle between the parties led to the
causing of injuries to the deceased and the incident was not a pre-meditated one. The
conviction of section 302 I.P.C. had been altered to 304 I.P.C. Dilip Kumar Mondal v.
State of West Bengal, 2015 Cr.L.J. 1321 (SC).
Section 300–The accused had weapons in their hands, and were used during
altercation in a sudden fight and there was no pre-meditation. Injuries as reflected in
the post-mortem report also suggest that accused have not taken “undue advantage” or
acted in a cruel manner under this situation and eye-witness with sequence of events
conviction under section 304 I.P.C. is attracted, not under section 304 I.P.C. Arjun v.
State of Chhattisgarh, AIR 2017 SC 1150.

Exception 5
Relates to Mercy Murder i.e. death with the consent of the victim e.g. when diseased
or old person, person in pain, etc. consents to be killed. The consent must be free.
Death by burning–Dying declaration recorded by police officer and also by Executive
Magistrate–Evidence showing deceased was in proper mental condition to make
declaration–Exception 5 to Section 300 also not attracted since age of deceased was
below 18 years–Conviction of accused for murder proper. Kartar Singh v. State of
Haryana, 1997 Cr.L.J. 4376 (P&H).
Secondly, it is not murder if case falls within Second Part of Section 299.
But not within Clauses 2 and 3 of Sec. 300 punishable under section 304 I.
1. 1968 Cr.L.J. 1030 : 1968 Andhra Pradesh 231 P.P. v. Abdul Rahim. The injury in
the chest. Nothing in record to show that injury was sufficient to cause death nor
any question put to the Medical Officer. Case fell under Second Part of Section
299 and punishable under section 304 Part I.
2. 1956 SC 654 : 1956 Cr.L.J. 1265 Kapur Singh, 18 injuries with Gandasa were
given on arms and legs to take revenge. The deceased dies later in Hospital.
Held injuries were given on non-vital part and not sufficient in ordinary course of
 nature to cause death and were only likely to cause death liable under section
304 Part I.
3. 1975 Cr.L.J. 695 Gulab Singh–Accused inflicting only one injury with lathi on the
head of deceased–Accused not directly involved in the controversy, but
interested only to help the other accused– No direct enemity between them.
Held– 304 IPC Part I applied.
4. 1975 Cr.L.J. 704 Shiv Singh–Accused inflicting blows on A–D flung herself on A.
Spear blow of accused accidently hit on right side back. Accused held guilty
under section 304 Part II.
5. 1975 S.C 179 : 1975 Cr.L.J. 243 Hardev Singh. ABC to kill K. K, received simple
injuries K’s mother overlay K. B gives Kirpan blow striking L’s mother on head
who dies–Held B liable under section 304(1).
6. In Kaliappan 1977 Cr.L.J. 341, (S.C.) injuries could have been fatal independently
but not necessarily according to medical report. Held conviction valid under
section 304(1).
7. Brushava Basiha 1988 Cr.L.J. 1416. Accused causing death of his wife. Blunt side
of axe used as weapon of offence. No previous enemity or ill feeling between
spouses. No injury caused on vital part of body. Intention or motive to cause
death could not be imputed to accused. Offence under section 304 Part I.
8. Sadhar Mahanta 1988 Cr.L.J. 1618. Scuffle between deceased and brother of
accused over lathi. Accused giving stick below on head of deceased. No evidence
that brother was severely attacked by deceased. Accused not entitled to right of
self-defence. However as accused had no premeditation to murder and all of
sudden be lost temper and gave one single blow to deceased, his conviction was
altered to one under section 304 Part I as injury was likely to cause death.
9. State of Karnataka v. S.B. Patil AIR 1990 SC 1047. There occurred an oral
altercation 2/3 days prior to the occurrence–on the date of the occurrence- the
deceased, a wrestler trespassed upon the house of the two accused persons (son
and father) there the deceased received punchured injuries and after coming out
on the street collapsed dead. It was found that having regard to the nature of the
weapons used and indiscriminate manner of assault, they can be attributed with
the knowledge that the assaults were thereby likely to cause death and the
offence comes not under section 302 but Section 304 Part II I.P.C.
Thirdly, it is not murder if case falls within 3rd Part of Section 299 and not
falling within 4th Clauses of Section 300- Punishable under section 304 II.
1. 1954 S.C. 652 : 1954 Cr.L.J. 1676 Chamru Budhwar only one blow on head-
fracture-Death- According to Doctor sufficient in the ordinary course of nature to
cause death. The Supreme Court held liable under section 304 Part II. In view of
the fact that accused gave one blow, it could not be held that he gave it with
such intention as fell under 3rd clause of Section 299.
2. 1955 S.C. 116 : 1955 SCR 140 Willie Slaney. Single blow on head with hockey-
fractured skull but the deceased live for 10 days after the incident. Held liable
under section 304 II.
3. 1968 S.C. 1390 : 1968 Cr.L.J. 1647 Kalu Nikalie. The injury was caused in the
chest but had not reached the lung. The artery had been severed. Held by the
Supreme Court that Laxman caused injury near clavicle and did not include
specifically cutting of artery. As such Sec. 300 Thirdly did not cover the case.
The act was done with the knowledge that Laxman was likely by such act to
cause death. The case fell within Part Third of Section 299–Punishable under
section 304 II.
4. 1973 Cr .L.J. 498 Nanku. The accused hit the deceased with an iron weapon on
the chest and back of the deceased. 10th rib was broken which resulted in the
laceration of the liver. Held the accused could have knowledge that by that act
the deceased was likely to die punishable under section 304 II.
5. 1987 S.C. 1222 Subhash v. State of U.P. Assault–No enmity–Occurrence on spur
of moment–Injuries on head not intended; offence is under section 304 Part II.
 6. 1986 Cr.L.J. 1656 Bhani Ram Sudden. Alteration between accused and
complainant. Accused catching hold of complainant deceased coming to rescue
him. Accused dealing one fatal blow on his head. Guilty under section 304 II.
7. Rajpal l990 Cr.L.J. 501. Accused assaulted the deceased on his denial to
compromise a family dispute. Only two injuries when assaulted by
6 accused. No intention to kill but they had knowledge that injuries would cause
death; case covered under section 304 Part II.
8. Sudden quarrel, accused beard pulled by deceased. Accused taking out Kirpan
worn by him and caused 10 injuries. Section 300 Exception 4 does not apply.
Offence falls under section 304 II, 1989 Cr.L.J. Karan Singh.
9. 1988 Cr.L.J. 502, Khara, Accused close relative of deceased. In course of
quarrel, only one lathi blow by A on head of deceased who died; others gave
blows on back and palm of deceased. No pre-plan, No Section 34.
A guilty under section 304 II, others 323.
10. 1988 Cr.L.J. 772 Saghir Ahmed. Knife injury on buttock of deceased causing
death. Buttock is not vital part of body. Other two injuries simple on legs. There
was no intention to cause death; offence under section 304 II.
11. Raman Bhai 1988 Cr.L.J. 982. Accused and deceased quarrelling near Bus Stop
for Rs. 5/- Accused giving pushes and fist blows to deceased. Both of them going
to bridge and there deceased falling from bridge from a height of 2½, because of
push and succumbed to injuries, held liable under section 304 Part II by
applying exception 4 to section 300.
12. Babu Khan 1988 Cr.L.J. 1441. Sudden provocation–Accused inflicting injury with
knife on heart. Held accused exceeded right, there was not an intention to kill
but knowledge of consequences of his act was there–Hence accused convicted
under section 304 Part I.
13. Single blow–Not necessarily conviction should always be under section 304 Part
II and not under section 302. Held in Dhanel Majhi 1988 Cr.L.J. 1566. ‘There is
no universal rule that where death occurs with a single blow at vital part, the
conviction could only under section 304 Part II and not under section 302. The
legal position is rather reverse. Ordinarily the action would warrant a conviction
under section 302 I.P.C. unless it is shown that the blow was dealt in a sudden
impulse without any pre-plan or determination which act would rule out any
intention on the part of accused to cause the death. It is only in the latter
circumstance that courts have learned in favour of the lesser charge being
applied.
14. Death occurred due to single blow without there being any pre-design or
pre-determination as a sudden and impulsive act, the offence more properly falls
under 304 Part II than that of sec. 302. Brabmum 1988 Cr.L.J. 1568.
A single pre-planned blow on the head of the victim may be of such a velocity on
such a vital part of the body that it is clear that it was inflicted with the intention
of causing bodily injury which was intended to be inflicted and was sufficient in
the ordinary course of nature to cause death and infact caused death, then
clause thirdly of sec. 300 is attracted and the offence is murder. 1991 Cr.L.J.
[Link] Charan.
15. An indecent joke cut by the accused with the wife of a P. W. leading to a quarrel:
the deceased trying to intervene: the accused giving a single blow on the chest
entailing death–Held, in order to bring, the case within Para 3 of section 300
I.P.C. it must be proved than there was an intention to inflict that particular
bodily injury with the ordinary course of nature was sufficient to cause death. Jai
Prakash (1991) 1 Crimes, 474 (SC).
The proper approach of court to determine if the offence was murder or culpable
homicide not amounting to murder was discussed in State of A.P. v. Raya Varappu 1977
SC 45. The courts should approach in three stages as under:
“Whether accused has done the act by which death was caused. Proof of such casual
connection between the act of the accused and death leads to the second stage for
considering whether that act of accused amounts to culpable homicide as defined under
section 299. If answer is affirmative, the stage for considering the operation of Section
300 is reached if facts bring it in the ambit of 4 clauses of Section 300. If answer is in
the negative then it is culpable homicide not amounting to murder and punishable
under Ist or 2nd Part of Section 304. If offence falls under any of the Exceptions, it is still
punishable under 1st Part of Section 304.”

When it is Hurt Only

Even if death results, the offence committed may be neither murder, nor culpable
homicide but of hurt only. This is only when the act is done without intention to cause
death and without knowledge that it was likely to cause death. For example a wife gives
a charm or potion to a husband without knowledge that it is a deadly substance and
without intention to cause death or bodily injury likely to cause death, it will be an
offence under section 304A, if death results and if only pain, etc. it will be an offence of
hurt.
If the blow strikes purely accidently in a quarrel the result of which could not be
foreseen by anyone (1923 Oudh 97) injuries resulting in rupture of spleen which was
not of a healthy man 1945 Lahore 43, 1968 Cr.L.J. 568 (Para 13) 19A.L.J. 295, husband
chastising wife (1952 Ajm 29) death even not remotely connected with injuries (1953
Cr.L.J. 1111). Simple injury with a Takwa on head and death due to knocking down of an
old man, (40 P.L.R. 562), a slap causing death (1960 Kerala) a lathi blow intended and
aimed to kill a particular person misses that person and falls on the head of another
person, causing his death, the conviction was held to be of grievous hurt only. 1952
R.L.W. 394.
1974 Cr.L.J. 126 (All.) Smt Sridevi–Wife causing multiple injuries to husband with
brick–Injuries simple though resulting in death–Injuries not sufficient to cause death–
Offence under section 323 I.P.C. only 1986 Cr.L.J. 427 makes Rao, Accused dealt kicks
and fist to wife after sudden quarrel. No intention to cause death. Liver was ruptured.
Held offence was under section 325 I.P.C. Fist blows on the abdomen of mother, death
due to rupture of spleen intention/knowledge to kill not made out, held in Thuru Tari
1986 Cr.L.J. 438, it was hurt only. Witness intervened given injuries when K was being
murdered. Held liability for that is under section 326/34–1987 Cr.L.J. 462. To cause
injury which may cause death is a simple hurt. Jagu v. State of Punjab 1987 CC. Cases
134. A child was beaten. He died. No visible injury on body, so beating could not be
severe. Spleen was found ruptured but accused not knowing enlarged spleen. Injuries
being simple–Case under section 323 (neither 325, nor 304) 1990 Cr.L.J. 2486 Parkash–
Squeezing testicles of victim, incident sudden; grievous hurt only 1988 SC 115.
Accused persons armed with blunt weapon like lathi and injuries caused by blunt
weapons on head and feet of victim who succumbed to the injuries; conviction instead of
under section 302 should be under section 325 I.P.C. Accused persons armed with
sharp weapons inflicting two incised wounds but medical opinion is than none of the
injuries fatal: conviction from Section 302 should be altered to one under section 326
I.P.C. AIR 1988 SC 2147 Rattan Singh.
Accused alleged to have formed into an unlawful assembly went on to attack
deceased–Death of deceased due to injuries on his leg; out of which one was fatal–
Principal eye-witness only stating that accused dealt axe blow on leg of accused–No
evidence to connect accused directly with that injury–Conviction of accused directly
with that injury–Conviction of accused for murder simpliciter, not proper– However,
accused convicted for offence of grevious hurt under section 326. 1994 Cr.L.J. 1233
(SC) N.R Phadke.
Injury caused on thigh by single arrow shot–Death of victim–Knowledge of likelihood
of causing grevious hurt and not death could be attributed–Accused convicted under
section 326 and not under section 302 I.P.C. 1994 Cr.L.J. 1171 Lachchmi Batri.
Weapon of offence, a wooden frame; injury in dieted on left leg near ankle with
arruval causing a cut, death ensued; guilty of hurt under section 326 I.P.C. 1989 Cr.L.J.
2248.
Section 324–Where the victim had suffered gunshot injury, it was evident that the
accused had fired at the victim without any pre-meditation and the injury suffered by
the victim was not on the vital part of his body. It was established that the victim had
sustained gunshot injury. The doctor on examination found two entry wounds over the
lateral aspect of left shoulder and interior aspects of upper part of left scapula region of
the victim. Prosecution filed to prove the intention to cause death of the victim. Held,
the accused was liable under section 324 IPC. Shyam Sharma v. State of M.P., 2017 (9)
SCC 362.

When Principal Offender Convicted for Murder but Others are

Liable for Hurt Only
In cases where several accused are sent up and only one of them causes fatal injury,
the question arises if all of them could be convicted for murder with the aid of section
34 I.P.C. or section 149 I.P.C.
The reply to this question, depends upon various factors if the other shared the
common intention of murder with him or if they had the common object of the unlawful
assembly or even knew that murder was the likely object. Such an intention or object
can be determined from the particular facts and the circumstances of each case.
1. 1975 S.C. 185 : 1975 Cr.L.J. 249 Ram Anjore and others. In this case, only Ram
Kumar had caused spear blow resulting in the death of Vishwa Nath. Other three
accused had given lathi blows to the members of the deceased party. Ram Kumar
was convicted under section 302 I.P.C. while other under section 323/149. The
Supreme Court held “So here the members of unlawful assembly were armed
with lathis and spears, the common object of which was to assault the victims,
the common object may not be to murder one of them, the members of the
assembly must have known that at least grievous hurt with a sharp cutting
weapon was likely to be caused by members of the assembly in prosecution of
the common object. Accused could have been convicted under section 326/149
but the High Court had adopted the safe course of convicting one accused under
section 302 and others under section 323/149.”
2. 1975 SC 1506 : 1975 Cr.L.J. 1320 Mohinder Singh and another. In this case
accused ‘U’ had hit deceased with a brick and ‘M’ with back side of an axe which
he carried as result of which skull of deceased cracked and he died though there
were other injuries also. The injuries given by the accused were not such as to
cause death of deceased. Accused ‘M’ was convicted
under section 325 I.P.C. by the Supreme Court as it was held that he did not
share common intention to murder with ‘U’, otherwise back side of axe could not
have been used.
3. 1973 Cr.L.J. 17: 1972 SC 2462 Ram Lall. There were two blows given on the
head of deceased out of which one proved fatal. It could not be established as to
whose blow had proved fatal since injuries, more than one, were caused on the
head. Held conviction was altered to section 325 I.P.C. of all. Also see 1968 SC
728 when one accused acquitted the other cannot be convicted
under section 302 I.P.C. in the absence of proof of exact nature of injuries
caused by each accused. Conviction under section 325 I.P.C.
Ashok Kumar 1977 S.C 109 : 1977 Cr.L.J. 164. Two blows on left side, one proving
fatal. Prosecution not establishing who gave fatal blow. Conviction changed to
324/25 from 302.
Section 325–Where two lathi blows on the head of injured victim was caused by the
accused, the x-ray report revealed that there was fracture of the frontal bone of the
head of victim and there was a callus. Having regard to the nature of injuries and the x-
ray report, Supreme Court has confirmed the conviction under section 325 I.P.C.
Sakharam v. State of M.P., 2015 Cr.L.J. 4369 (SC).
Section 325–Accused persons armed with lathis went to house of victim at midnight
and indiscriminately beat him with lathis causing injuries in neck, chest, hands,
buttocks and thighs, the injury report showed that though the injuries caused were 18
in number, they were not on vital parts of the body. It was true that accused acted in a
state of fury but it cannot be said that they caused those injuries with the intention to
cause death. Held liable under section 325 I.P.C. Fireman Ghulam Mustafa v. State of
Uttarakhand, 2015 Cr.L.J. 4372 (SC).
 Vicarious Liability for Murder
Common Intention
If a criminal act is done by several persons, in furtherance of the common intention
of all, each of such persons is liable for the act in the same manner as it were done by
him alone (section 34 I.P.C.). Common intention is different from same or similar
intention. In that case intention is one and same but is not shared by participants in
crime. Neither there is prearranged plan, nor there is agreement to act jointly in
furtherance of it. See for same or similar intention PandurangTukia v. State of
Hyderabad 1955 S.C. 216-(1955) I.S.C.R. 1063. Common intention requires a
prearranged-plan and there must be prior meeting of minds. It is further necessary that
all must be acting in concert, though act may be active or passive and they must be
present. Mere distance will not matter to connote presence.
1. 1970 Cr.L.J. 1138 : 1970 SC 1266 Hethuba. In this case, the accused had taken
the plea to have killed X in place of Y. The Supreme Court held that such a
mistake would not displace the common intention, if the evidence showed the
concerted action in furtherance of prearranged-plan. The dominant feature of
section 34 is the element of participation in action. The participation need not in
all cases be by physical presence. Common intention implies acting in concert.
There is a prearranged-plan which is proved either from conduct or from
circumstances or from incriminating facts. The prior concert or the prearranged-
plan is the foundation of common intention to establish liability and guilt.
2. 1971 SC 1112 : 1971 Cr.L.J. 824 Gaya Prasad RamLal. The accused had shouted,
“Maro, Maro.” The attack had started in narrow place surrounded by huts. The
other accused had given fatal knife blow. Held the attack was not
unpremediated. The suddenness is accentuated by the shout given by the
appellant. The ghastly attack in the narrow place could not be by combination of
circumstances be preceded by any commotion. Held section 34 applied.
3. 1972 Cr.L.J. 1621 (Delhi) Pritam Singh. When the accused caught hold of the
deceased and the accused gave knife blow on the vital part of victim’s body
killing him, showed common intention to act in concert. The nature of injuries,
nature of weapon showed the inference, whether he extorted his co-accused to
stab or not was inconsequential.
4. 1973 SC 863 : 1973 Cr.L.J. 636 State of U.P. v. Iftikhar. It is not necessary that
over act must be proved on behalf of all. The section 34 will be attracted if it is
established that criminal act has been done by any one of the accused in
furtherance of common intention. Further as it is difficult to prove the intention
of an individual it has to be inferred from his act or conduct and other relevant
circumstances.
The accompanying of the other accused armed with pistols, they having lathis,
coming together in body, and running away together after shooting, when no
explanation being given for their presence on spot lead to necessary inference of
a prior concert and prearrangement.
5. 1974 SC 514 : 1974 Cr.L.J. Tukaram Ganpat. Mere distance from the scene of
crime cannot exclude culpability under section 34. In Barendra Kumar Ghosh
1925 P.C.I. The Judicial Committee draw into the net those who only stand and
wait. “This does not mean that some form of presence, near or remote, is not
necessary or that mere presence, without more, at the spot of crime, spells
culpability. Criminal sharing, overt and covert, measureness active presence or
by distant direction, making out a certain measureless of jointness in the
commission of act, is the essence of section 34”.
6. 1974 SC 548 : 1974 Cr.L.J. 475 Shyam Narayan Dubey. Held, considering the
constant quarrels between parties, coupled with the fact that they surrounded
the deceased to block his eye, their call to other accused who emerged with
spears and lathis, indicated they had made preparation to kill and section 34
applied.
7. 1974 SC 2118 : 1974 Cr.L.J. 1393 Lalai. Deceased murdered at 10.30 p.m. by
one of the two accused with a Gandasa while sleeping on his cot, the other
 accused, his brother, without taking part in the assault stood by with a spear in
his hand so as to overcome any outside interference and both ran away together.
Held that these facts prove common intention.
8. 1977 Cr.L.J. 352 Harshad Singh 1977 SC 26. Four accused attacked the
deceased with knives. Three out of four were acquitted. Held by the Supreme
Court the plea or extrication to dissect the serious blows from others and to seek
to salvage those whose stabs have not proved fatal; is not available to escape
liability from section 34 I.P.C. “Conjoint Complicity is the inevitable inference
when a gory group animated by lethal intent accomplish their purpose
commutively.” Held fourth liable under section 302/34. Ram Udgar, 1987 Cr.L.J.
113.
9. (1991)2 Crimes 191 SC Malkiat Singh. Two accused persons who earlier at the
daytime left humiliated by the victims in a liquor shop, came at mid-night first
accused armed with gun and second with gandasa and mercilessly killed four
sleeping victims and tried to murder another. They came with preconcerted plan
to kill and avenge, they are guilty under section 302 read with section 34 I.P.C.
10. Balkar Singh AIR 1991 SC 1225. Two accused when have been found to
have shared common intention to cause death. Conviction from section 307
I.P.C. is to be converted to section 302 read with section 34 I.P.C.
11. 1990 Cr.L.J. 826 (All) Chandra Pal Singh. In furtherance of common intention
both the accused fired shots, but only one shot caused death of the victim- both
were convicted by aid of section 34 [Link].
12. Hariom 1993 Cr.L.J. 1383 (SC). Common intention can develop at the
spot. When other accused persons inflict knife injuries to victim, the accused
who carried lathi might not have common intention to murder, but when other
relatives of the victim come to rescue the victim, accused weilded lathi held
common intention to cause death to victim developed at the spot for first time.
Accused No. 1 caused fatal injury resulting in death–Accused No. 2 and 3 joined
assault when deceased fell down–No evidence of pre-concert or meeting of
minds for murder–No particular injury directly related to them–Held they are
guilty under section 325/34 and not 302/34–Deceased became victim as he came
in between offence is under section 304-I. Dharampal 1978 Cr.L.J. 1538.
When some persons start with prearranged-plan to commit a minor offence, they
may in the course of their committing the minor offence come to an
understanding to commit the major offence as well. Such as understanding may
appear from the conduct of the persons sought to be made vicariously liable for
the act of the principal culprit. A criminal court must satisfy itself as to prior
meeting of the minds of the principal culprit and his companions who are sought
to be constructively made liable in respect of every act committed by the former.
Held in Ram Bali 1988 Cr.L.J. 764 when several persons assaulting the victim,
then individual acts show that they were not refraining themselves from
committing homicide, the meeting of minds in the course of occurrence is writ
large in what they individually do. Their may not be principal offender but each
is vicariously liable for the act of others in committing homicide.
13. Tellu 1988 Cr.L.J. 1062. Assault on deceased by two accused. Direct evidence of
wife and neighbours. Mere fact that one of the accused was not connected with
crime does not absolve him of his constructive liability under section 34 of
murder when he was cousin of other accused giving fatal blow and had inflicted
injury on leg of deceased with knife. Conviction under section 302/34 upheld.
Motive though not proved did not matter in view of direct evidence.
14. In 1989 Cr.L.J. 2106, Mohanin, it was observed by Kerala High Court that mere
accompanying cannot infer common intention. It can happen that when some
persons act in concert to commit a minor offence they may during the
commission came to an understanding to commit a major offence. But
development of such an understanding must appear from their conduct or from
other incriminating evidence. The conduct or other evidence must not leave any
room for doubt regarding the developed common intention. 1978 Cr.L.J. 1534
(SC) followed.
 15. M.A. Abdulla AIR 1981 SC 452. Deceased caught from behind through shoulders
(a nelson hold) and other accused persons by sharp-edged weapons committed
murder by cutting the victim on various parts–One accused rushed with his
unsheathed sword but obstructed by a P.N.–Held this fact spell out his common
intention to murder and is liable to be convicted under section 302 read with 34
IPC.
16. Ashok Gavadi C.C.R. 1994 IV 2338 Bom. Murder-circumstantial evidence–
Appreciation of evidence–Illicit intimacy of the accused No. 1 with the deceased
and accused No. 2 established–Body to the deceased found at about 500 metres
from the house of the accused No. 1–Dragging marks–Strangulation mark-
Motive of the crime, illicit relation with accused
No. 2–Link of chain consistently proved by material and determinative evidence–
Whether both charges stands proved? (Yes).
Section 34–Common Intention–Common intention can be suddenly formed during
occurrence without any prior conspiracy and can generate on the spot itself and such
common intention can be reasonably inferred from the facts and circumstances of the
case and nature of injuries caused by the accused. Law is well settled that the court can
take recourse to sec. 34 even if that is not specifically mentioned in the charge. Mahant
@ Mahendra v. State of Chhattisgarh, 2008 (2) Crimes 281.
Section 34–Conviction for murder with aid of common intention of three accused
who were husband, wife and son–Incident occurred on spur of movement in the
agricultural field–Assault on deceased was caused by appellants father and son armed
with spade and lathi–Only due presence of a person at the scene of occurrence,
particularly, when he or she is family member of other accused persons, his or her,
common intention cannot be gathered if other family members, at the spur of the
moment, shared their common intention to commit the crime in which there appears to
be no evidence of sharing against that person. Umend Satnami v. State of Chattisgarh,
2008 (1) Crimes 171 (Chatt.).
Section 34–Both accused went jointly to the place of occurrence and they jointly
assaulted the deceased. The fact that A-2 also received injuries in his palm shows that
he took active part in snatching the knife from the hands of the deceased when he had
succeeded in snatching it from A-1 and this clearly shows that A-2 shared the common
intention with A-1 to cause injuries to the deceased. Conviction under section 302/34
I.P.C. is right. Shaik China Brahmam B. State of A.P., 2008 (1) Crimes 105 (SC).
Section 34–Section 34 has been enacted on the principle of joint liability in the doing
of a criminal act. The section is only a rule of evidence and does not create a
substantive offence. The distinctive feature of the section is the element of participation
in action. The liability of one person for an offence committed by another in the course
of criminal act perpetrated by several persons arises under section 34 if such criminal
act is done in furtherance of a common intention of the persons who join in committing
the crime. Direct proof of common intention is seldom available and, therefore, such
intention can only be inferred from the circumstances appearing from the proved facts
of the case and the proved circumstances. Hardeep Singh v. State of Haryana, 2008 (3)
Crimes 28 SC; Chaman v. State of Uttaranchal, 2009 (1) Crimes 149 (SC).
Section 34–This section does not say “the common intention to all” nor does it say
“an intention common to all”. Under the provisions of section 34, the essence of the
liability is to be found in the existence of a common intention animating the accused
leading to the doing of a criminal act in furtherance of such intention. Sewa Ram v.
State of U.P., 2008 (1) Crimes 78 (SC); Chimanbhai Jagabhai Patel v. State of Gujarat,
2009 (2) Crimes 34 (SC).
Section 34–In absence of sufficient evidence of common intention conviction under
section 34 is bad. Priya v. State of Haryana, 2008 (1) Crimes 129 (SC).
Section 34–Before a person is convicted by applying the doctrine of vicarious
liability, his participation in the crime as well as presence of common intention must be
established. Other factors should also be taken into consideration for arriving at the
said conclusion. Accused persons were not related to each other, they did not have any
family connection, they have different vocations. Nagaraja v. State of Karnataka, 2009
(1) Crimes 278 (SC).
 Relevancy of role of persons in common intention–Common intention consists of
several persons acting in unison to achieve a common purpose, though their roles may
be different. Once common intention is established, their role may be active or passive,
it is irrelevant. Subed Ali v. State of Assam, AIR 2020 SC 4657.
Inference as to common intentiton–There can hardly be any direct evidence of
common intention. It is more a matter of inference to be drawn from the facts and
circumstances of a case based on the cumulative assessment of the nature of evidence
available against the participants. Subed Ali v. State of Assam, AIR 2020 SC 4657.
Foundation for conviction on basis of common intention–The foundation for
conviction on the basis of common intention is based on the principle of vicarious
responsibility by which a person is held to be answerable for the acts of others with
whom he shared the common intention. The presence of the mental element or the
intention to commit the act if cogently established is sufficient for conviction of a person
without actual participation in the assault. Subed Ali v. State of Assam, AIR 2020 SC
4657.
Actively involvement in the physical activity of assault not necessary for conviction–
Under the provisions of section 34 of the Code, 1860, before a person is convicted on
the ground of common intention, it is not necessary that he must be actively involved in
the physical activity of assault. If the nature of evidence displays a prearranged plan
and acting in concert pursuant to the plan, common intention can be inferred. Subed Ali
v. State of Assam, AIR 2020 SC 4657.
Moment of emerging common intention–Under the provisions of section 34 of the
Code, 1860, a common intention to bring about a particular result may develop also on
the spot as amongst number of persons it is deducible from the facts and circumstances
of a particular case. Subed Ali v. State of Assam, AIR 2020 SC 4657.
Some relevant materials for drawing inference as to common intention–The coming
together of the accused to the place of occurrence, some or all of whom may be armed,
the manner of assault, the active or passive role played by the accused, are some of the
relevant materials for drawing inference as to common intention. Subed Ali v. State of
Assam, AIR 2020 SC 4657.

When no Common Intention Made Out

1. 1975 SC 12 : 1975 Cr.L.J. 32 Malkhan Singh. In this case Munshi Lall accused
while sitting on the back of cycle driven by Malkhan Singh had fired at Jai
Narain and injured him. The question was of liability of Malkhan Singh by virtue
of section 34. Held that Malkhan Singh did not injure: no evidence if he
instigated other accused in any way: mere fact that he continued to pedal the
cycle after the other accused fired pistol and that he too ran away with the
accused would not necessarily go to show that he shared common intention with
him.
2. 1975 SC 179 : 1975 Cr.L.J. 243 Hardev Singh. The accused had given blow to
mother of the injured who lay upon him to save him. This blow given with Kirpan
fell on the head of mother who died. The other accused had given only lathi
blows. Held the act of the accused to cause injury to mother was individual act
of Hardev Singh and there was no common intention to commit murder.
3. 1975 SC 1506 : 1975 Cr.L.J. 1320 Mohinder Singh. The blow on the head was
given by wrong side of axe by U accused resulting in the fracture of skull and
death. The other accused M caused injuries which were not such as to cause
death. Held common intention to murder was not made out as otherwise wrong
side of axe could not have been used. “It could not be said that the accused
persons went there with the intention to cause death of the deceased though
there was evidence that they would kill him.”
4. 1975 SC 199 : 1976 Cr.L.J. 201 Ram Parsad v. State of U.P. Four accused, two
of whom were armed with lathis went with bundles of grain to stack it in front of
Ram Chander’s hut on site claimed to be his own. Ram Chander objected on
which accused with lathis gave blows on head sufficient to cause death. Other
two gave fist or kick blows and ran away together. Held by Supreme Court that
two without arms were liable under section 323/34 as there was common
 intention to forcibly occupy land but not to murder. If they had been 5 then
position would have been different.
Also see 1975 Cr.L.J. 239 (All) where one with spear and two with lathis came
and assaulted. Injury with spear resulting in death. Held two other liable under
section 326/34 only.
5. 1977 Cr.L.J. 550 (SC) Karnail Singh. Two accused tried under section 302/34.
One acquitted. The other cannot be convicted under section 302/34 I.P.C. in the
absence of evidence to show that particular injury was caused on the deceased
by him. He, however, was convicted under section 326 I.P.C.
6. 1978 Cr.L.J. 153 : 1978 SC 34 Bhagwan Bua Singh. Accused only caught hold of
hand of deceased and said that he would be set right. No evidence that he aided
the other accused to give fatal blow to cause death. Held that conviction of
appellant under section 34 could not be sustained.
7. 1970 Current Law Journal 272 Dhanna Singh v. State. Two accused out of three
raising lalkara only–No injury caused by them–Held common intention doubtful.
8. In Gajjan Singh, 1976 SC 2069 : 1976 Cr.L.J. 160. Two accused going armed
with rifles along with others. Ajit Singh deceased happened to be there by
chance. Birkha Singh fired at Ajit Singh and killed. Held Gajjan Singh not liable
under section 302/34 as they did not go together with common intention to
murder Ajit Singh.
9. Appu v. State of Kerala, 1990 Cr.L.J. 36. Section 34 has been enacted to meet a
situation where members of party acted in furtherance of common intention of
all but it was difficult to establish exactly the part played by each. There may be
a case where a person was assaulted by two or more persons and identity of one
alone was established in Court. Never-the-less participation of one or more
accused was proved. In such a case on the ground that there is no evidence as to
which accused caused fatal blow, the accused against whom there is
unassailable evidence regarding his participation in crime cannot be let off
overlooking section 34 I.P.C.
10. Durga Singh, 1988 Cr.L.J. 1307. If there is common intention of the accused to
cause death, one of the accused cannot say that he wanted to inflict lesser
injuries. Two accused armed with axe. Preexisting enmity, presence of both the
accused on spot. Medical evidence that death was due to injuries caused by
spade and axe, both weapons recovered with blood on them–Death due to joint
endeavor. Both liable under section 302/34.
11. Tunu Purty, 1988 Cr.L.J. 1913. Sudden act of violence. No premeditation or
preconcert when arrived at place of occurrence. No knowledge, even inclination
that one of them would hit deceased on head with piece of stone lying in the
courtyard. Action was sudden act of one of the accused with which other could
not be associated. No common intention made out.
12. Munna, AIR 1993 SC 278. Two accused with the common intention to beat the
victim, beat him. Main accused all of a sudden stabs the victim causing his
death. Co-accused can be held guilty under section 326/34, not under
section 302/34 IPC.
Section 34–Even a part enmity by itself may not be a ground to hold for drawing any
inference of formation of common intention amongst the parties. Common intention was
formed for commission of an offence or not, it depends upon the facts of each case.
Nagaraja v. State of Karnataka, 2009 (1) Crimes 278 (SC).
Section 34–Indian Penal Code, save and except some matters does not contemplate
any vicarious liability on the part of a person, commission of an offence by raising a
legal fiction or by creating a vicarious liability in terms of the provision of a statute must
be expressly stated. The NID or Directors of the Company, thus, cannot be said to have
committed an offence only because they are holders of offices. Keki Hormurji Gharda v.
Mehervan Rustom Irani, 2009 (3) Crimes 243 (SC).
Section 34–The liability of one person for an offence committed by another in the
course of criminal act perpetrated by several persons arises if such criminal act is done
in furtherance of a common intention of the persons who joins in committing the crime.
Meeting of mind before committing the crime is necessary. Javed Alam v. State of
Chattisgarh, 2009 (1) Crimes 119 (SC).
Section 34–Common Intention–The position with regard to section 34 is crystal
clear. The existence of common intention is a question of fact. Since intention is a state
of mind, it is therefore very difficult, if not impossible, to get or procure direct proof of
common intention. Courts have to infer the intention from the act(s) or conduct of the
accused or other relevant circumstances of the case. However, an inference as to the
common intention shall not be readily drawn, the criminal liability can arise only when
such inference can be drawn with a certain degree assurance. Bengai Mandal v. State of
Bihar, 2010 (1) Crimes 49 (SC).
Section 34–It is necessary that intention of each one be known to rest and shared by
them–Deceased was called by appellants from his house, dragged towards temple where
other convict co-accused assaulted deceased with knife while appellants caught hold of
deceased–Common intention rightly held. Satya Prakash v. State of Chhattisgarh, 2010
(4) Crimes 35.
Section 34–Courts must keep in mind the five distinction between “common
Intention” on one hand and “mens rea” as understood in Criminal Jurisprudence on the
other. Common Intention is not alike or identical to mens rea. The later may be
coincidental with or collateral to the former but they are distinct and different. Nand
Kishore v. State of M.P., 2011(4) Crimes 71 (SC).
Section 34–The incident was pursuant to the common intention to kill Mohd. Yaseen
who resembled Jaggit Singh–The possibility of a hefty cash reward and accelerated
promotion acted as a catalyst and spurred the police party to rash and hasty action.
From the facts was not necessary to assign a specific role to each individual appellant
as the firing at the car was undoubtedly with a clear intent to annihilate those in it and
was resorted to in furtherance of the common intention of all the appellants. Section
302/34 I.P.C. was upheld. Satyavir Singh Rathi v. State through C.B.I., 2011 (3) Crimes
27 (SC).
Section 34–It provides the doctrine of constructive criminal liability which is well-
established in law. Mahesh v. State of M.P., 2011 (4) Crimes 200 (SC).
Section 34–Deceased was assaulted by co-accused armed with Moosar whereas
appellant had joined in assault by kicks and fists– In the post mortem no injury was
found on person of deceased to have been caused by kicks and fists–No one could any
offence in furtherance of common intention bare handed & without weapon. Conviction
of appellants could not be sustained. Vishwa Ram v. State, 2007 (3) Crimes 766.
 Section 34–302/34 IPC. Reason for occurrence was that accused were seeing girls in
courtyard of deceased with evil eyes which was objected to be deceased– Fatal injury
was attributed to accused who was juvenile. To determine common intention nature of
injury, background of incident, nature of weapons and other factors were to be
considered–Occurrence took place all of sudden. Except fatal injury caused by juvenile
accused, all other injuries were superficial–Appellants could not be said to have shared
common intention and were liable for their individual acts. Gurumukh Singh v. State of
Punjab, 2008 (3) Crimes 278 (P&H).
Section 34– Appellant arrived at place of occurrence and joined his brother co-
accused and caught hold of deceased by hair. Meanwhile co-accused fetched a bottle,
broke it and caused injury to deceased on chest–Appellant could not be said to have
shared common intention with co-accused in causing death of deceased. Section 34
I.P.C. not attracted. Ramesh Kumar @ Hameshi v. State of Delhi, 2010 (2) Crimes 586.
Common Intention–An act done in furtherance of common intention–How to gather
common intention–Held that–
(a) Common intention is gathered from the manner in which the crime has been
committed, the conduct of the accused soon before and after the occurrence,
the determination and concern with which the crime was committed, the
weapon carried by the accused and from the nature and injury caused by one
or some of them.
(b) Each case rests on its own facts and mere similarity of the facts in one case
cannot be used to determine a conclusion of facts in another. Gorudappa v.
State of Karnataka, AIR 2013 SC 1595.
Common Intention–Accused persons 15 in number–Came with weapons, assaulted
the deceased and took him inside the house where he was again assaulted by the
accused persons and after sometime, his body was dragged by the accused persons,
including the appellant and thrown near the hand pump–There was motive for the
accused persons to kill the deceased–It is clear case of Common Intention of the
accused. Kuria v. State of Rajasthan, 2012 Cr.L.J. 4707.
Section 300–Murder–Common intention–The accused persons, carrying weapon
being 315 bore country made pistol, caught hold the complainant’s son on account of
enmity and pushed him on ground near drain and accused shot at him. It was no where
the case of defence that the accused persons were not aware of the fact that one of
them carried the weapon. Moreover, there was no justifiable reason for the accused
persons to go 100-150 yards inside the field of complainant. It was held that all accused
shared a common intention & worked in tandem under section 320/34 I.P.C. Ranbeer
Singh v. State of U.P., 2015 Cr.L.J. 2311 (SC).
Section 302–Murder–Common intention–In this case, it was held by the Supreme
Court that the charge under section 302 read with 34 I.P.C. will not be affected in any
manner on the mere fact that evidence under section 120B has not been proved. The
prosecution has proved the charges that the accused persons with common intention
committed the crime under section 302/34 IPC. Shantanu Sitaram v. State of
Maharashtra, 2017 (4) Crimes 280 (SC).
Section 34–Murder–Common intention–On the accused disclosure, recovery of dead
bodies from covered gutters and personal belongings of the deceased from other places
had taken place. It casts a duty on the accused as to how they alone had the information
leading to recovery which was admissible under section 27 of Evidence Act. Giving a
false explanation or failure of the accused to give reasonable explanation is an
additional circumstance against accused. Charges were proved & persons convicted
under section 302/34 IPC. Suresh v. State of Haryana, (2015) 2 SCC 227.
Section 300–Murder–Common intention–In this case, it was held that common
intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged
plan. The totality of the circumstances must be taken into consideration in arriving at
the conclusion of common intention. In this case, initially settlement takes were on and
fight started only when the accused party was informed that their friend was cut by
complainant party and accused attacked on the deceased. It was said by the Court that
there may be similar intention in the minds of the accused to attack but cannot be said
that they had acted in furtherance of common intention to attract constructive liability
under section 324 I.P.C. alu@Bala Subramaniam v. State, 2016 Cr.L.J. 176 (SC).

When it is Still Murder (by virtue of Section 301 IPC)

“Section 301 culpable homicide by causing death of person other than
person whose death was intended–If a person, by doing anything which he intends or
knows to be likely to cause death, commits culpable homicide by causing the death of
any person, whose death he neither intends nor knows himself to be likely to cause, the
culpable homicide committed by the offender is of the description of which it would
have been if he had caused the death of person whose death he intended or knew
himself to be likely to cause.”
This section embodies the doctrine of transfer of malice or the transmigration of
motive. The principle is “it is common knowledge that a man who has an unlawful and
malicious intent against another and in attempting to carry it out injures a third person
is guilty of what the law deems malice against the person injured because the offender
is doing an unlawful act and has that what the judges call general malice and that is
enough”.
Accused when arms at one and kills another, he would be punishable for murder
under the doctrine of transfer of malice as embodied in section 301 I.P.C., Jaspal Singh
1991 Cr.L.J. 597 (SC).
‘A’ in order to kill first at ‘P’, but shot hits ‘C’ whose death he never intended, still it
is murder of C; punishable under section 302 I.P.C., 1980 S.C.C. (Cri.) 107 Hari
Shankar. So also 1965 SC 1260. Accused intending to kill ‘P’ killed ‘S’ who came in the
way. He took lorry at high speed to kill ‘P’. With the intention of hitting him and killing
him really resulted in causing the death of ’S’ and the fact that ‘S’ sustained the fatal
injury not as a result of direct hitting of lorry but due to the fall of pillar and its debris
on the body of ‘S’ would not also change the position since accused intention, in taking
the lorry was to kill ‘P’ and the overt act committed by the accused in furtherance of his
common intention was so imminently dangerous that it must in all probability cause
death or such bodily injury as was likely to cause death and hence the offence
committed by the accused would squarely fall under section 301 and would amount to
murder of ‘S’, Padam Nabhan 1988 Cr.L.J. 591.
Section 301–In this instant case, it was held that the accused knew that his act of
shooting the deceased person is likely to cause death of that person to whom harm is
caused, it cannot be believed that the accused did know about the likelihood of causing
death, though he may not know as to whom he is causing bodily harm. His act in totality
and in the light of evidence on record clearly prove the ingredients of section 300 IPC,
not under section 301 I.P.C. as the decision given by High Court. State of Rajasthan v.
Ram Kailash @ Ram Vilas, 2016 Cr. L.J. 1205 (SC).

Common Object (Section 149 I.P.C.)

Every member of an unlawful assembly as defined under section 143 I.P.C. is liable
vicariously for the act of the other members of the unlawful assembly if
(i) the offence is committed in the prosecution of the common object of that assembly by
any member thereof; even if that member is not identified and (ii) if the offence
committed was such as the members knew to be likely to be committed in prosecution
of the common object and any member thereof commits it; even if he cannot be fixed
(See Rioting).
The common object may be innocent in the beginning and the assembly lawful.
There may be cases where the occurrence may be if a chance encounter and the fatal
assault is a sudden, unanticipated and individual act of the unascertained assailant. In
that case, others are not vicariously liable for the act of that person. State of H.P. v.
Jashada Nandan Gupta, 1974 S.C. 753 : 1974 Cr.L.J. 625. In this case knife was used by
assailant to kill when it was not known if other accused had knowledge about the
possession of knife by that particular assailant.
When there is evidence of presence and participation in crime by members of an
unlawful assembly, they all may be roped by section 149 I.P.C. Nillam Setty, 1993
Cr.L.J. 408 (SC).
 Charge under section 302 read with 149 I.P.C. Benefit of doubt given to two and the
guilt proved beyond reasonable doubt against three persons. They deserved to be
convicted under section 302 read with 34 I.P.C. Ramakant, 1991 Cr.L.J. 2289 (All).
The common object of beating only can develop to murder if murder is the likely
object and in that case every member of the unlawful assembly will be vicariously liable
for murder. In case Bhajan Singh v. State of U.P., 1974 S.C. 1564 : 1974 Cr.L.J. 1029,
the accused were armed with spears, gandasa and lathis. It was held that even
assuming that unlawful assembly was formed originally only to beat, it was clearly
established in the evidence that the said object was well-knit with what followed as the
dangerous finale of the beating. It was not a case where something foreign or unknown
to the object took place all of a sudden. It was the execution of the same common object
which assumed the fearful character implicit in the illegal action undertaken by the
accused. “Every one was held liable for murder by virtue of section 149 which is a
substantive offence, although punishment is under the section to which it is tagged.”
Similarly in case Mehtab Singh v. State of M.P., Supreme Court in 1975 S.C. 274 :
1975 Cr.L.J. 290 held that “where some of the members of unlawful assembly started
abusing the chamars and others started pelting, it might be that their common object
was to cause hurt only, but when they went after the deceased and dragged him out of
room (one gave knife blow, the other hit with bed stead and others gave stick blows)
there could be no doubt that they developed common object to kill him.
It may be easier to prove a common object as a basis of vicarious liability
under section 149 I.P.C. than to establish a common intention within the meaning of
section 34 I.P.C. But as held in Chikkaranga Gowda’s case 1956 SC 731, every offence
committed by a member of an unlawful assembly will not be necessarily ascribed to or
vicariously fastened upon every member of that assembly using section 149 I.P.C.” The
likelihood of the causing of death by the nature of the actions of the members of the
assembly must be shown to be within the knowledge of a member who is to be made
vicariously liable for a death. Such knowledge may be inferred from the nature of the
actions committed by others in an unlawful assembly which the member, held
vicariously liable continues to associate himself with despite these actions seen by him
or known to him” as held in Santosh v. State of M.P., 1975 S.C.
654 : 1975 Cr.L.J. 602.

Extent of Liability
1987 Cr.L.J. 541, Gordhan. When a person is killed as a result of violence used by an
unlawful assembly, the nature of offence may take one or the other shape out of the
following:–
(1) If murder was in prosecution of common object of unlawful assembly, then all
the members liable under section 302 read with 149. It is immaterial who
caused fatal injury.
(2) If the members knew before hand that offence which actually was committed
was likely to be committed in prosecution of the common object, every member
will be again guilty under section 302 read with second part of section 149.
(3) If killing was not common object and author of fatal injury is known, only that
member will be individually liable for murder and act of his causing fatal injury
will be taken as an isolated act. The other will be liable under section 326 or
325 depending upon the type of weapon weileded with aid of section 149.
(4) If killing was not common object and author of fatal injury is not known then
none can be convicted under section 302/149. However members cannot
escape liability under section 326 or 325 with the aid of section 149.
(5) Four accused persons convicted if or murder with common object under
section 302 read with 149 I.P.C.–Held, unless there is a specific finding that
apart from the aforesaid four accused persons, others were involved in the
offence, the conviction of the four persons by aid of section 149 I.P.C. can not
be substained. AIR 1991 SC 1075, K. Naga Malleswara.
(6) Accused persons participated in riot-one accused carried spear and in
persuance of common object one victim was killed by spear, the accused
carrying spear convicted for murder, but other two who were members of the
 unlawful assembly were convicted under section 325/149 I.P.C., as the court
was not in a position to find positively who did cause the grevious hurt. Tharu
v. State of M.P., 1991 Cr.L.J. 454 (SC).
Dalbir Singh v. State of Punjab, 1987(2) Recent C.R. 56. Accused forming the
unlawful assembly, committing murder. In such a case it is not necessary to go into
question as to which of accused inflicted what particular injury.
Mansaram, 1990 Cr.L.J. (NOC) 35 (MP), where five accused person armed with
lathis going to the house of the victim to ask for explanation as to why the stones were
pelted from victim’s house to a girl and the inmates of house of the accused, during
alteration one accused by lathi blow fractured the skull of the victim died–Held the
object of causing death was not shared by others, the others acquitted of the charge
under section 149 IPC.
Section 149 I.P.C. will, however, be not applicable in case of a sudden mutual fight
between two parties. The accused in such a case can be convicted only for the injuries
caused by him by his individual act. Puran v. State of Rajasthan, 1976 S.C. 912 : 1976
Cr.L.J. 674.
When charge framed under section 34 or 149 I.P.C., can one or more of the accused
be convicted under section 302 I.P.C. when other acquitted or some of them acquitted.
There are cases in which charge is framed under section 34 I.P.C. or in case of
participation of 5 or more persons, charge is framed under section 149 I.P.C. The
accused whether named or traced out later are jointly tried but some of them, though
named, are acquitted. The question arises whether the others can still be convicted for
murder with or without the aid of section 34 or 149 I.P.C. and without there being a
separate charge.
In Nanak Chand’s Case, 1955 S.C. 27 : 1955 Cr.L.J. 721. Nanak Chand accused was
charged under section 148 and 302/149 I.P.C. alongwith 6 others. There was no distinct
or separate charge against him under section 302 I.P.C. The Session Judge held charge
of rioting was not proved and he convicted Nanak Chand and three others under section
302/34. In High Court three others were also acquitted and Nanak Chand alone was
convicted under section 302 IPC. It was held by Supreme Court that a person charged
with an offence read with section 149 cannot be convicted of the substantive offence
without a specific charge being framed. It was an illegality and his conviction was
quashed.
This case was explained in Willie Slaney’s Case 1956 S.C. 116 and it was held if
necessary information showing concert and participation in the joint criminal action by
all is conveyed the accused in other ways, then failure to frame a specific charge does
not result in illegality.
Omission to frame charge under section 149, conviction cannot be maintained under
the main offence read with section 149. This question arose in 1990 Cr.L.J. Teja. The
accused were charged under section 148 and separately under section 302. There was
no specific charge under section 149. In such a case the accused was only required to
separately defend himself against the charge by showing that either he did not cause
any injury, or even if he inflicted any, he did not intentionally do so or did not have the
knowledge that the injury would result in death. He was not required to defend the
specific charge of common object to kill. Thus before persons are held guilty under
section 149 vicariously for the act of another member of unlawful assembly the charge
must bring out the precise common intention. In any case from the entire reading of the
charge particular common intention must at least be inferred and made out although
may not have been expressly mentioned. When the charge did not mention that the
common object of the members of unlawful assembly was to kill nor could it make out
from the charge that the members knew that deceased was likely to be killed in
prosecution of common intention/object the conviction under section 302 read with
section 149 could not be maintained. Accused held guilty under section 326 read with
section 348.
The following cases are helpful–
1. 1974 S.C. 323 : 1974 Cr.L.J. 354 Sukh Ram. Three accused tried for murder
under section 302/34. Two of them specifically named in the charge acquitted. Held
conviction of third under section 302/34 not illegal.
 “Where the charge specifically mentioned that murder was committed by the three
accused individuals but the evidence was led to show that the appellant along with two
unknown persons had committed the crime, and it was fully established that the
appellant was amongst the three assailants and that the pistol was fired at the deceased
in furtherance of common intention of all the three, no prejudice could be said to have
been caused to the appellant by reason of his conviction u/s 302 read with sec. 34 even
though the two accused specifically named in the charge had been acquitted.
2. 1974 S.C. 1967 : Cr.L.J. 1033 Khem Karan. The fact that a large number of
accused have been acquitted and the remaining who have been convicted are less than
five cannot vitiate the conviction under section 149 read with substantive offence if
there are other persons who might not have been identified or convicted but were party
to the crime and together constituted the said number”.
3. 1974 S.C. 1256 : 1974 Cr.L.J. 929 Bhoor Singh. Charge was framed under section
148 and 302/149 I.P.C. Some of the accused acquitted and others convicted under
section 302/34 I.P.C. though there was no specific charge under section 34 against
them. The accused so convicted, however, were made aware of circumstances, showing
concern and participation in joint criminal action in their statement under section 342
Cr.P.C. Held no prejudice was caused and no illegality in conviction in absence of
charge under section 34 I.P.C.
Charge under section 148, 302/149. Accused acquitted of charge under section 148.
4. 1975 S.C. 1917 : 1975 Cr.L.J. 1666, Dharampal. In this 14 out of 18 accused were
acquitted on ground of benefit of doubt. Charge against all was under section 148 and
302 read with 149 I.P.C. It was held that remaining four could be convicted under
section 302/149 I.P.C. The proposition of law were laid down as under:–
(i) If only five known persons are alleged to have participated in an attack but
court find that two of them were falsely implicated, it would be quite logical
and natural to infer or presume that participants were less than five in number.
(ii) On the other hand, if the court holds that the assailants were actually five in
number, but there could be a doubt as to the identity of the two of the alleged
assailants and therefore acquits two of them, the others will not get benefit of
doubt about the identity of the two of accused so long as there is a firm finding
based on good evidence and sound reasoning that the participants were five or
more in number.
(iii)Where a large number of known persons (such as eighteen in the instant case)
are alleged to have participated and the court acts on the principle that it is
better to err on the side of safety, so that no injustice is done to a wrongly
implicated accused and benefit of doubt is reaped by a large number with the
result that their acquittal out of abundant caution, reduces the number of these
about whose participation there can be no doubt to less than five, it may not be
really difficult at all to reach the conclusion that having regard to undeniable
facts, the number of participants could not be less than five.
(iv) An accused can get a benefit of doubt about his participation. If the court holds
that the convicted persons were certainly members of an unlawful assembly
which must have consisted of more than five persons, there can be no principle
of law or justice, which could stand in the way of the application of section 149
I.P.C. For convicting those found undoubtedly guilty of participation in carrying
out the common object of the unlawful assembly.
5. 1975 S.C. 2211 : 1975 Cr.L.J. Anur Hussain. Anur Hussain and 12 others tried for
murder of 4 persons under section 302/148/149. Sessions acquitted 10 of them and
convicted appellant and two others under section 302/34. High Court acquitted two
others. Held conviction of appellant under section 302 was not bad though only minor
injury was ascribed to him.
6. Consistent prosecution case that certain named persons who were members of an
unlawful assembly committed murder and sought to be roped by
section 149 I.P.C. Some acquitted and there remained persons less than five against
whom murder charge stood proved–Held, they may be convicted on charge under
section 302 read with section 34 I.P.C. Nethala, AIR 1991 SC 2214.
 7. Where almost all injuries on the body of deceased being incised wounds, opined to
have been caused by sharp cutting weapon–No contusions found–Three out of six
accused said to have lathis with them entitled to be acquitted–Remaining three accused
having a sharp cutting weapon liable to be convicted under section 302/34 and not
under section 302/149 I.P.C. Jadu Yadav, 1994 Cr.L.J. 1209 (SC).
Section 149–If a body of persons go armed to take forcible possession of the land, it
would be right to say that they had the knowledge that murder is likely to be committed
and the case would fall under section 149. Kishan Chand v. State of U.P., 2007 (4)
Crimes 224 (SC).
Section 149–If consists of two parts–The first part means that the offence must be
one which is committed with a view to accomplish the common object. In order that the
offence may fall within the first part, the offence must be connected immediately with
the common object of the unlawful assembly of which the accused was member. Even if
the offence committed is not in direct prosecution of the common object of the
assembly, it may yet fall under section 141 if it can be held that the offence was such as
the members knew was likely to be committed and this is what is required in the second
part of the section. Positive knowledge is necessary. Maranadu v. State through
Inspector of Police, Tamil Nadu, 2008 (4) Crimes 16 (SC).
Section 149–Remaining accused persons not having any knowledge that the accused
appellant was carrying a country made pistol or that he would go to shot the deceased.
The evidence on record clearly established that the pistol was concealed and was not
visible to anyone. Therefore, the common object of the assembly was not to commit
murder of the deceased. State of U.P. v. Gajadhar Singh, 2009 (1) Crimes 348 (SC).
Section 149–In the instant case all the assailants came together and participated in
the crime in which ‘D’ was killed and two persons were injured–The assailants tried to
break open the door of the house but could not succeed, thus they fired from the
ventilator and that is why two persons got injured–After commission of the offence a
large number of persons gathered at the place of occurrence–The assailants ran away–
The offence was committed at mid-night–Inference can safely be drawn that assailants
had an object to commit murder of persons on the victim’s side and they participated in
the crime. Onkar v. State of U.P., 2012 (1) Crimes 233 (SC).
Section 34 or 149 I.P.C. not applicable when accused exercise self defence and
exceed it.
In cases where accused persons invoke the right of private defence of person or
property then they do not commit any offence by virtue of sections 96 to 106 I.P.C. An
unlawful assembly is only constituted when the common object of the assembly falls
under any of the clauses of section 141 I.P.C. There are cases, however, when the
assembly lawful in its inception, does not exceed the right of private defence of person
or property. Then question arises if the individual member of that assembly who
exceeds the right is only liable or all are liable for his act by aid of section 34 or 149
I.P.C. It was held in case of Ram Parsad Ahir, 1959 Allahabad 790 “where all the four
accused were at first lawfully exercising the right of private defence they were not
committing any illegal act. In order to attract section 34 I.P.C. a criminal act has to be
done by a number of persons. If a number of persons are doing a lawful act.
Section 34 IPC has no application.”
Common object–Common object can be formed on the spur of the moment–Course of
conduct adopted by the members of common assembly is a relevant factor–At what
point of time common object of unlawful assembly was formed would depend upon the
facts and circumstances of each case. This concept of constructive liablility must not be
so stretched as to lead to false implication of innocent bystanders–Quite often, people
gather at the scene of offence out of curiosity–They do not share common object of the
unlawful assembly. Subal Ghoral v. State of West Bengal, 2013 Cr.L.J. 3626 (SC).
Section 330–Murder–Common object–Accused persons while forming unlawful
assembly were alleged to have committed murder of 8 persons in a barbaric and brutal
manner including merciles killing of child aged only 1½yrs. The testimony of the eye-
witnesses revealed that the accused persons armed with deadly weapons were hiding in
bushes and when the deceased came near the place of occurrence. They attacked them
shouting “kill them”, “hack them”. This version was duly corroborated by the evidence
of witness who was hiding in nearby bushes to save his life. Factum of unlawful
assembly proved and conviction under section 302/149 I.P.C. was held prefer.
Muthuramalingam v. State, 2017 Cr. L.J. 1040 (SC).
Section 302–Murder–Unlawful assembly–The accused persons were alleged to have
formed unlawful assembly and assaulted the informant party causing injuries to
witnesses and murder of two. The version of the complainant regarding fatal assault on
the deceased immediately after the attack on the complainant was not supported by any
other witnesses. It was also not clear by any witness that how the said two persons were
killed. It was held that in absence of liable evidence, the conviction of accused cannot
be sustained though the medical evidence revealed the brutal murder. Conviction under
section 302/149 I.P.C. set aside. Ajit Kumar @ Ajit & Others v. State of Kerala, 2017 Cr.
L.J. 1462 (SC).
Section 302–Murder–Unlawful assembly–The accused persons were alleged to have
surrounded the deceased while he was returning home from his duty and one accused
poured petrol over him and another accused burnt him by igniting a match stick. The
dying declaration recorded before the police & Executive Magistrate were found
consistent the assault and role of the accused. The sequence of narration certainly
showed that the accused were waiting in ambush. Though only two of the accused
persons set the deceased on fire but others by surrounding the deceased definitely
ensured that the would not be allowed to escape. The intention of entire assembly was
clear and facts established their presence, preparedness and participation. Conviction
upheld High Court order set aside. State of U.P. v. Ashok, 2015 Cr.L.J. 3973 (SC).
 Section 149–Absence of motive–It is settled legal position that even if the absence of
motive, as alleged is accepted, that is of no consequence and pales into insignificance.
When direct evidence and trustworthy evidence of witnesses as to commission of an
offence is available on record, the motive part loses its significance. Therefore, if the
genesis of the motive of the occurrence is not proved, the ocular testimony of the
witnesses as to the occurrence cannot be discarded only on the ground of absence of
motive, if otherwise the evidence is worthy of reliance. Saddik @ Lalo Ghulam Hussain
Sheikh v. State of Gujarat, 2017 (1) SCC (Cri.) 206.
Section 149–The law does not say that the prosecution must examine all the eye-
witnesses cited by the prosecution. When the evidence of two eye-witnesses was found
worthy of acceptance to prove the case then it was not necessary for the prosecution to
examine any more eye-witnesses. It is for the prosecution to decide as to how many and
who should be examined as their witnesses for proving their case. Nand Kumar v. State
of Chhattisgarh, 2015 Cr. L.J. 381 (SC).
Section 149–To attract the provisions of section 149 I.P.C., once membership of an
unlawful assembly is established, it is not incumbent on the prosecution to establish
whether any specific overt act has been assigned to any accused. In other words, mere
membership of the unlawful assembly is sufficient and every member of an unlawful
assembly is vicariously liable for the acts done by other either in the prosecution of the
common object of the unlawful assembly or such which the members of the unlawful
assembly knew were likely to be committed. Bharwad Navghambhai Jakshibhai v. State
of Gujarat, 2016 (1) Crimes 420 SC.
Section 302–Murder–Common object–The accused persons armed with lathis, farsa
and hand made bombs came to house of deceased and started abusing deceased and his
family members and exhorted that they would not leave the deceased alive. The main
accused threw handmade bomb on chest of deceased despite objection. The prosecution
had been able to establish the accused presence and also his active participation as a
member of unlawful assembly. There was ample evidence that all the accused persons
had formed an unlawful assembly and there was common object to assault the
deceased. Since the accused persons were the aggressors and all of them armed with
letal weapons had gone to the house of deceased. Held, accused deserved to be
convicted under section 302/149 I.P.C. Jodhan v. State of MP, 2015 Cr. L.J. 3291 (SC).
Section 302–Murder–It was contended that axe was not sent for forensic
examination. That may be true and the investigating officer may have committed lapse
in this regard, but the statement of doctor does show that this injury can be caused by
an axe and furthermore recovery of axe, which has been stated to by the I.O., has not
been subjected to any cross-examination. Even otherwise on the statements of Pw1, 2
and 3 above, we are of the considered opinion that prosecution has proved its case
beyond reasonable doubt. Laxminath v. State of Chhatisgarh, AIR 2019 SC 1052.
Self-Defence
Nothing is an offence which is done in exercise of the right of self-defence of person
or property (Section 96 I.P.C).
Every person has right to defend his own person and person of another against
offences affecting human body which offences are from section 299 to 377 I.P.C.
Every person has right to defend his property as well as the property of another
against offences of theft, robbery or dacoity, mischief and trespass. House breaking is
an aggravated form of trespass (Section 97 I.P.C).
This right is not unlimited. It is not a right of revenge against past grievances. The
limitations over this right as imposed under section 99 I.P.C. are (a) Right does not arise
if there is time to have recourse to the help of public authorities; which depends upon (i)
if there was prior knowledge of the attack (ii) whether information was reliable (iii)
whether after such knowledge of information there was time and opportunity to report
to authorities which further depends upon proximity of police station and means of
conveyance.
In case attack is sudden, or there are no facilities to have recourse to public
authorities or when recourse being had, there is either no help or it is delayed, then in
all such cases right to defend is not lost, (b) There is no right of private defence against
an act of public servant or under his direction if done in good faith under colour of office
though not strictly justifiable under law, if such act does not reasonably cause the
apprehension of death or grievous hurt. The act of the public servant must be legal and
within the jurisdiction of the public servant and the said public servant is carrying the
token or uniform showing him to be public servant or discloses his identity to the other
side, (c) More harm than necessary cannot be inflicted in exercise of this right. In case
more harm is caused, the offender is liable for exceeding the right of defence.
Subject to the above said limitations death can only be caused in exercise of the
right of defence of person against the following seven kinds of assaults; when the
assault is for murder, grievous hurt, rape, for satisfaction of the unnatural lust,
kidnapping or abduction, for wrongful confinement when help of public servant cannot
be obtained and act of throwing or administring acid which may reasonably cause the
apprehension that grievous hurt will otherwise be the consequence of such act (Section
100 I.P.C.).
Subject to the above said limitation death only be caused in exercise of the self
defence of property against offences of (a) Robbery (b) House breaking by night
(c) Arson (d) Theft, mischief or trespass when grievous hurt or death is apprehended.
(Section 103 I.P.C.).
The right of private defence of person arises when a reasonable apprehension of
danger to the body arises and continues as long as the reasonable apprehension of the
danger to the body continues. This apprehension will arise:–(a) when the offence is
being committed (b) when an attempt to commit offence is made
(c) when a threat is even extended but such threat must be imminent and present i.e.
the threatner can execute his threat into action there and then.
Mere protest, or abuses or when the quarrel has ceased or threatener retreated, no
right of defence arises (Sections 101, 102 I.P.C.).
Right of private defence is available only to one who is suddenly confronted with
immediate necessity of averting and impending danger not of his creation. The
necessity must be present, real or apparent. AIR 1988 SC 83, Laxman Sahu.
In Partap v. State of U.P., 1976 S.C. 1966 : 1976 Cr.L.J. 197, the case was that
following the threatening gesture made by Raj Kumar to break Pultu’s head with the
spade and the call being given by Puttuhall Lai’s the appellant came there armed with a
gun and immediately thereafter the deceased came running proclaiming that he will
break the heads of and settle the scores with everyone of accused party. It was then the
appellant fired and killed the deceased. The threat was seemed to be imminent, the
deceased being within a striking, distance and poised for attack, (Paras 13 & 20). As
held in George Dominic Varkey, 1971 S.C. 1208, the apprehension is in the mind of
person exercising the right of private defence and the apprehension is to be ascertained
objectively with reference to events and deeds at that crucial time and in the total
situation of surrounding circumstances. In this case a quarrel started and while the
deceased bent down to pick up a stone, the accused assaulted the deceased which
resulted in death. It was held that accused was entitled to stay and there was real and
imminent danger to his life.
The right of private defence of property commences when reasonable apprehension
of danger to property commences. The right continues in case of theft–(a) till offender
has effected retreat with property, or (b) till assistance of public authorities has been
obtained, or (c) the property has been recovered which is only in hot pursuit. In case the
offender abandons the property in hot pursuit then the right ceases. The right to arrest,
however, may begin as directed under section 43 Cr.P.C. and force even in justifiable
under section 46 Cr.P.C. In cases of Robbery: (a) as long as offender causes or attempts
to cause death, hurt or wrongful restraint, or (b) as long as fear of instant death or
instant hurt or instant wrongful restraint or mischief.
In cases of house breaking by night- as long as trespass began by house breaking
continues (Section 105 I.P.C.).
In exercising the right of defence to cause death under section 100 and 103 I.P.C.
risk of harm can even be incurred. No offence in that case would be committed sec. 106
I.P.C. This right even can be exercised against those who are incapable of committing
crime by virtue of exceptions from sec. 82 to sec. 86 or by reason of any misconception
on the part of that person. (Section 98 I.P.C.).
In case, 1988 Cr.L.J. 990 Krishan Lal, the accused was forcibly dispossessed of the
land in his occupation. His bullocks were unyoked by the deceased party. The accused
went to his residence, brought a gun and fired at the persons who were trying to
dispossess him. The lapse of 15 minutes time of his running from the spot and bringing
of gun to prevent and trespassers in accomplishing the task of trespass cannot be said
to be retributive action under the circumstances of the case. The accused had a right to
resist his dispossession by using force against the complainant party who had come in
number for dispossessing him. No offence-the right of self-defence however, does not
become available and does not extend till such time when he actually recovers the
possession by use of force.
An immoral woman stabbed the deceased when he waited to rape her, held it was in
self-defence of person under section 100 I.P.C. and no murder. 1989 Cr.L.J. 621.
Dragging out a 25 years old married lady out of her house gives rise to her
husband’s right of private defence to kill the invader. Prakash Chander, 1991 Cr.L.J.
2566 (Raj).
1989 Cr.L.J. 1714 (Bombay), Quarrel between deceased and accused. Deceased
strong and stout but unarmed sitting on chest of accused. Three blows inflicted by
accused with knife last being deadly. Held accused exceeded right of self-defence.
Conviction under section 304 Part II.
Section 302–Appellant fired gun shot at deceased and caused death. Trial Court
found that gun was fired in exercise of right of his self-defence and convicted him under
section 304 Part I I.P.C. Appeal–F.I.R. lodged in cross case showed that in order to save
his own life by exercising right of private defence appellant caused gun shot fire. In the
cross case death of two persons namely mother and uncle of appellant had taken place–
Appellant had sustained several injuries including injuries on his face– Facts and
circumstances showed that reasonable apprehension occurred in the mind of appellant
that he would be killed and the caused gun shot fire was done in the exercise of right of
his private defence–Conviction was liable to be set aside. Ziledar Singh v. State of M.P.,
2010 (4) Crimes 406 (MP).
Section 302/34–Appellant murdered deceased by beheading him and took away the
head part in a bag–Evidence showed that deceased armed with Tangia and wire hunter
went to house of Appellant No. 1 and was the aggressor–Existence of right of private
defence could be established by preponderance of probability. Right commences as
soon as a reasonable apprehension of danger to body arose–No evidence at all if
Appellant No. 2 was involved in this assault either individually or with Appellant No. 1
in common intention–Conviction of Appellant No. 2 was liable to be set aside. Appellant
No. 1 armed with sabbal assaulted deceased when he attacked deceased after deceased
had fallen on ground. Appellant No. 1 was liable under section 304 II I.P.C. Rati Ram v.
State of Chhatisgarh, 2009 (2) Crimes 538.
Section 96–Right of self-defence–The accused reasonably apprehended as danger to
his life when the deceased and his brothers started strangulating him after pushing him
to the floor. It was held that a mere reasonable apprehension is enough to put the right
of self-defence into operation and it is not necessary that there should be an actual
commission of the offence in order to give rise to the right of private defence. Suresh
Singhal v. State (Delhi Administration), 2017 (2) SCC (Cri.) 123.
Section 96–Right of Self defence–The right of self-defence or private defence falls in
one basket and use of excessive force or retaliatory force falls in another basket.
Therefore, while a victim of aggression has a right of private defence by using excessive
force or retaliatory measures, then he becomes an aggressor and commits a punishable
offence. When the state uses such excessive or retaliatory force leading to death, it is
referred to as an extra-judicial killing or an liquidation. It was held that use of excessive
force in the state by police or armed forces is not permissible. Extra-Judicial Execution
Victim Families Association (EEVFAA) v. Union of India, 2016 Cr.L.J. 3769 (SC).
Section 97–Plea of self defence–The occurrence took place near residence of
accused, not near the place of residence of complainant. There were exchange of fire
shot between both the parties resulting into death of deceased person on the side of
complainant and that of brother of the accused. FSL report disclosed that there were
two sets of catridges recovered. The plea of self-defence was accepted since the death
of deceased person had occured due to firing resorted to as part of self-defence. Held,
conviction can be under section 304 I.P.C., not under section 302 I.P.C. Rajinder Singh
v. State of Haryana, 2015 Cr.L.J. 1330 (SC).

Burden on Accused to Prove Plea of Self-Defence

1. When a person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the General Exceptions in the Indian
Penal Code or within any special exception or proviso contained in any part of the same
Code, or in any law defining the offence, is upon him and the Court shall presume the
absence of such circumstances (Section 105 Evidence Act).
The burden of proof is not so heavy on the accused as on the prosecution to prove its
case. As held in Partap v. State of U.P., 1976 Cr.L.J. 697 : 1976 S.C. 966, while the
prosecution is to prove its case beyond a reasonable doubt, the accused can discharge
his onus by establishing a mere preponderance of probability. In the case of Rishi Kesh
Singh, 1970 All. 51 (F.B.) which view was endorsed in Partap’s case Supra, it was laid
down that even if plea of self-defence, whether taken specifically or not, the accused
can show when both sides have led evidence, from any evidence on record whether
tendered by self-defence. The accused can discharge his onus by establishing a mere
preponderance of probability. Mohan Singh v. State of Punjab, 1975 S.C. 2161. Plea of
self-defence can be suggested even. Bai Fatima, 1975 Cr.L.J. 1079 (SC).
The court consider the plea of self-defence if not taken even. Munshi Ram, 1968 S.C.
702, if the same could legitimately arise from the evidence and material on record.
But it was held 1989 Cr.L.J 1226, Ram Manohar (M.P.), “an accused is not bound to
take any specific plea of self-defence or examine witnesses to prove it, he can get the
benefit by referring to circumstances appearing in prosecution evidence. However an
ingenuity of lawyer cannot create the right of self-defence; nor does it allow accused to
take false plea or one plea after the other. Though burden to prove defence may not be
string out as for the prosecution but the law does not recognize mere ipse dixit of the
accused or vociferous argument of the counsel to be sufficient to meet the aforesaid
test. He must discharged the burden to prove it effectively.”
In Munney Khan v. State of M.P., (1970) 2 SCC 480 and also Dular Mahato, 1993
Cr.L.J. 165 (SC). The right of private defence being available only against an offence, an
aggressor has no right of private defence. This would seen to be so even if the person
exercising the right of private defence has the better of his aggressor provided of
course he does not exceed his right because the moment he exceeds it, he commits an
offence. There is also no right of private defence in cases where there is time to have
recourse to the protection of public authority. This right of private defence is a
defensive right circumscribed by the statute available only when the circumstances
justify it.
Section 99–Nature of injuries–The accused persons armed with deadly weapons
alleged to have obstructed the complainant party from collecting crop of soyabeen and
struck blows on the deceased and injured persons. The complainant party was about
300 feet away from the disputed land. As such no right of private defence arose in
favour of accused persons. Moreover, there was no evidence to show any injury on the
person of accused. On the other hand, the injuries on deceased showed that skull was
broken as a result of injuries and bone matter had come out through the sharp cutting
gaping wound. Held, accused defence cannot be accepted and conviction was held
proper. Pannalal v. State of M.P., 2015 Cr. L.J. 3286 (SC).
Section 100–Right of self defence–Where the two accused sustained injuries and the
doctor had opined that the said injuries were possible by falls, the complainant party
where neither the aggressors nor there was any pre-meditation to cause the said
injuries considering the facts & circumstances and the nature of injuries caused, the
High Court observation that complainant party acted in private defence is right and
acquitted the charges; Raj Singh v. State of Haryana, 2015 Cr. L.J. 2803 (SC).

Murder Trial
In cases of murder, the most important document are F.I.R., the Inquest Report and
the Post Mortem Report. The F.I.R. assumes importance as it contains the earliest
version of the case. The court has to carefully scrutinize the document to see:–
(i) What the earlier version was;
(ii) What improvements and additions have been made;
(iii) If it corroborates the prosecution case in material particulars;
(iv) If it contradicts the evidence of informant or the prosecution case;
and
(v) To test the evidentiary value of the informant.
The F.I.R. is the only document that reaches the Magistrate after its registration by
the police. The Police, therefore, cannot make changes in it and the time and date at
which it reaches the Magistrate further ensures if F.I.R. was recorded at the particular
time, was delayed, was fabricated or not.
Similarly the Inquest Report which reaches Medical Officer along with dead body for
Post Mortem Examination, is the only other document which is handled by the Agency
other than police at the earliest stage and in which improvements, embellishments,
fabrications cannot be made afterwards. The Medical Officer initials the papers of
inquest.
The third important document is the Post Mortem Report which determines the
cause of death, the nature of injuries and has a great corroborative value. This
document passes from the hands of doctor to that of police and the Medical Officer
cannot make interpolations in it later.
(See relevant Heads in other Chapters)

Bride Burning Cases

This crime is very rampant. The newly wedded brides are killed by husbands or
parents-in-law for greed. Anti-social evil dowry, greed for money and the helplessness of
the girl in the house of in-laws are main causes of this crime which is committed in
secrecy. Very often this crime is given the shape of suicide by the girl or case of
accidental fire.
The Supreme Court held in Shri Bhagwanti Singh, 1983 Cr.L.J. 1081 that “The greed
for dowry and indeed the dowry system as an institution, calls for the severest
condemnation. It is evident that legislative measures such as the Dowry Prohibition Act
have not met with the success for which they were designed. Where the death in such
cases is due to a crime, the perpetrators of the crime not infrequently escape from the
names is of the law because of inadequate police investigation. It would be of
considerable assistance if an appropriately high priority was given to the expeditious
investigation of such cases, if a special magisterial machinery was created for the
purpose of the prompt investigation of such incidents, the efficient investigative
techniques and procedures were adopted taking into account the peculiar features of
such cases. A female police officer of sufficient rank and status in the police force
should be associated with the investigation from its very inception.”
The case, therefore, requires a deep and thorough investigation to bring the culprits
to Book.
The relevant law concerning this crime is:—
I. The Dowry Prohibition Act 1961
Section 3 If any person, after the commencement of this Act, gives
or takes or abets the giving or taking of dowry, he shall be
punishable with imprisonment for a term which shall not be
less than five years, and with fine which shall not be less
than fifteen thousand rupees or the amount of the value of
such dowry, whichever is more.
Section 4 If any person demands, directly or indirectly, from the
parents or other relatives or guardian of a bride or
bridegroom, as the case may be, any dowry, he shall be
punishable with imprisonment for a term which shall not be
less than six months, but which may extend to two years and
with fine which may extend to ten thousand rupees.
Section 5 Any agreement for the giving or taking of dowry shall be
void.
Section 6 Where any dowry is received by any person other than the
woman in connection with whose marriage it is given, that
person shall transfer it to the woman.
Section 7 Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974).
Section 8 The Code of Criminal Procedure, 1973 (2 of 1974), shall
apply to offences under this Act as if they were cognizable
offences.
II. Married woman is absolute owner of Istri Dhan and can deal with it
in any manner. Husband has no right to it.
H u s b a n d o r h i s p a r e n t s a r e
l i a b l e f o r b r e a c h o f t r u s t
i f t h e y m i s a p p r o p r i a t e t h e
p r o p e r t y o f w i f e ( g i v e n f o r
h e r u s e e x c l u s i v e l y l i k e
c l o t h i n g , c a s h , o r n a m e n t s
e t c ) . T h e y a r e b o u n d t o
r e t u r n i t . T h e o f f e n c e i s
p u n i s h a b l e u n d e r s e c t i o n
4 0 6 I . P . C . N o l i m i t a t i o n
f o r i t e x c e p t u n d e r s e c t i o n
4 6 8 C r . P . C .
This is due to pronouncement of law in Pratibha Rani v. Suraj Kumar,
1985 Cr.L.J. 817 : 1985 S.C. 628 by Supreme Court of India, earlier
law as laid in 1982 Punjab 312 (FB). 1979 C.L.R. 212 was overruled.
III. The Criminal Law (Second) Amendment Act, 1983 which has
introduced Chapter XXA in the Indian Penal Code.
498A. Husband or relative of husband of a woman subjecting
her to cruelty.—Whoever, being the husband or the relative of the
husband of a woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may extend to three
years and shall also be liable to fine.
Explanation.—For the purpose of this section, “cruelty” means—
 (a) any wilful conduct which is of such a nature as is likely to drive
the woman to commit suicide or to cause grave injury or danger to
life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to
coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or is on account of
failure by her or any person related to her to meet such demand.]
Section 7 has added section 113A in the Evidence Act. Where
question is that a woman has committed suicide within seven years of
marriage, on abetment by her husband or relations of her husband,
and that such persons have subjected her to cruelty, the court will
presume that such suicide was abetted by such persons. Offences
cognizable-if information to officer-in-charge Thana by aggrieved
person or woman’s relation etc. Even in suicide by woman within 7
years of marriage or doubtful death within 7 years of marriage
inquest must be held under section 174 Cr.P.C, if so desired (Section
3).
IV. Dowry Prohibition Amendment Act, 1986 has introduced section 304B in the
Indian Penal Code.
Dowry Death:–Where death of a woman is caused by any burns or bodily
injury or occurs otherwise than under normal circumstances within 7 years of
her marriage and it is shown that soon before her death she was subject to
cruelty of harassment by her husband or any relation of her husband for or in
connection with demand for dowry, such death shall be called Dowry Death,
and such husband or relative shall be deemed to have caused her death.
No conviction under section 304B (dowry death) in respect of offence prior to
enforcement of section 304B is permissible. Section 304B is not retrospective
in operation. Soni Debraj Bhai, 1991 Cr.L.J. 3135 (SC).
Actually. Section 304B raises a presumption of culpability against the husband
or relative neither to unknown to our jurisprudence. This section provides that
such husband or relative shall be deemed to have caused her death and shall
be punishable with imprisonment for a minimum of 7 years, but which may
extend to life imprisonment. Stree Atyachar Virodhi Parishad, (1989) 1 Crimes
443 (SC).
Wife dying within 7 years of marriage by burn injuries but no iota of evidence
that the deceased wife was pestered for dowry, no presumption under section
113B available–Dowry death not proved. 1991 Cr.L.J. (NOC) 15 (Ker), State of
Kerala v. M. Pillai.
Explanation, for purposes of such section, Dowry shall have the same meaning
as in Dowry Prohibition Act 1961. Amendment of 1st Schedule Indian Penal
Code.
304-B Imprisonment Cognizable Non-Bailable Court of
not less than Sessions
7 years and may
extend to life
imprisonment
Section 113 B Evidence Act (Introduced)
Presumption as to dowry death.—When the question is whether a person
has committed the dowry death of a woman and it is shown that soon before
her death such woman has been subject by such person to cruelty or
harassment for, or in connection with any demand for dowry, the court shall
presume that such person has caused the dowry death.
Death shall have the same meaning as in section 304B I.P.C.
V. Abetment to commit suicide, punishable under section 306 I.P.C.
Mostly the cases are registered under section 306 I.P.C. when a bride commits
suicide by burning herself or by any other means convenient to her. The
investigation of these cases is difficult and complicated as direct evidence is
not available. The circumstantial evidence is most important and the
Investigating Officer should marshall the circumstances in a legal manner.
Abetment as defined under section 107 I.P.C. is:–A person abets the doing of a
thing, who–
First, instigates any person to do that thing; or
Secondly, engages with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or illegal omission takes place
in pursuance of that conspiracy and in order to doing of that thing; or
Thirdly, intentionally aids by any act or illegal omission, the doing of that
thing.
Instigate according to Concise Oxford Dictionary is defined as “urge or incite;
bring about by persuasion and in Webster it has been defined as ‘urge’
forward, provoke with synonymous of stimulate, urge, spur, provide, tempt,
incite, impel, encourage.
The word ‘urge’ in common parlance would mean to go, to urge forward or to
provoke, incite or encourage to do an act.
Thus evidence of abetment should be very clear. In Raj Kumar, 1983 (1) C.L.R.
660, the only evidence was that deceased threatened to commit suicide if the
accused persons did not agree to her demand. Accused had omitted to prevent
the deceased from doing that act; rather saying that she could go ahead with
her plan. Held it did not amount to abetment. An omission, to amount to
abetment should be illegal omission.
In 1983 (I) C.L.R. 123 Han Singh, accused saying that she could die by taking
poison, if she liked and beating by accused were held not to amount to
abetment.
In 1985 (I) C.L.R. 468, Delhi High Court held “it was the course of torture,
humiliation and oppression which the victim had been undergoing at the
hands of accused which led her to commit suicide. Such a course does amount
to abetment.
In case Mohinder Singh, 1984 (I) C.L.R. 666, it was held that direct evidence
in cases under section 306 is not easily available but circumstances proved on
file viz. (1) accused used to maltreat and torture deceased for insufficient
dowry; (2) they were absent when police and relations of deceased arrived; (3)
no report was lodged to police by them; (4) they did not take the dead body of
deceased to Hospital; (5) they did not perform her death rites;
Held sufficient for conviction. It was further held that when an unnatural
death takes place in the house the onus shifts to the accused to explain as to
how it takes place.
So, ingredient’s necessary to attract 304-B IPC are as follows:–
(i) death of a woman is either burns or bodily injury or otherwise
than under normal circumstances;
(ii) it should be within 7 yrs. of marriage;
(iii) it should also be shown that soon before her death she was
subjected to cruelty or harassment. Such harassment or cruelty
should pertain to demand for dowry. 1991 Cr.L.J. 2579 (Del).
Ravi Kumar.
Most important circumstances in cases under section 306 I.P.C. and Murder of
wife is the conduct of accused before and after death of the bride. Long
course of torture, cruelty as defined under section 498A I.P.C.; greed for
dowry; letters of the bride written before death about her being fed up with
life due to maltreatment of husband or parents-in-law; dying declaration made
before death; motive, confession, Medical evidence, Post Mortem are
important links to prove the crime.
Sanjeev Parakh, CCR (1994) IV M.P. 2919–304B and 498A.–Dowry death- wife
committed suicide within four months of her marriage–Dowry demands–
Torture–Vomit of deceased cleaned up–Things rearranged– Deceased firstly
removed to private hospital and thereafter admitted in the Govt. Hospital in
unconscious state–Husband did not give fire to funeral pile–Sufficient ground
for persuing the commisssion of offence– Whether trial court rightly framed
the charge against petitioner? (Yes).
Hemchand, CCR 1994 IV SC 814.–Dowry death–Unnatural death–Took place
within 7 years.–Subjected to cruelty or harassment–Extreme punishment of
imprisonment for life–No direct evidence connecting the accused–Two sets of
medical evidence–Taken into consideration in balancing the sentence to be
awarded–Whether correct? (Yes).
In case 1985 (2) C.L.R. 246 Chanchal Kumari, it was held that direct evidence
in such cases is not easily procurable. Evidence is generally of circumstantial
nature. It was further held that taking one’s life itself is slow process because
one is compelled to think over one’s ending life.
In 1993 Cr.L.J. 253, Kishore Kumar–Unnatural death of wife within 7 yrs. of
marriage; enough evidence of dowry demand and consequent prosecution–
charge under section 304B is to be drawn no matter that autopsy report
indicating death by poisoning has been negatived by C.F.S.L.
Section 305–Abetment to suicide committed by minor or insane person etc.–In
this case the accused were alleged to have abetted a minor boy aged about 18
years. to climb on an electiricity pole for repair. Deceased boy fall from pole
due to electrocution and died. Held–It was not a case of suicide when decased
was asked to climb on pole to repair electricity connection. Suicide means the
act of taking one’s own life, which is also termed as self-killing, self-slaughter.
A finding of suicide must be on evidence of intention–Matter was remanded
for framing charges as permissible under law. Rajendra Sharma v. State
Chhatisgarh through SHO, 2011 (4) Crimes 588 (Chatt.).
Section 306–Abetment of Suicide–There must be direct or active act by
accused which deceased to commit suicide. Deceased brother of appellant
committed suicide by drowing in river. Wife of deceased narrated instances of
quarrels and disputes relating to family property and such quarrels had taken
place two days prior to incident. Suicide could not be said to have a direct
result of quarrel-charges framed by trial court was liable to be quashed.
Nihaluddin@Munna v. State of Chhatisgarh, 2012 (1) Crimes 494 (Chhatt.).
Section 306–Accused married a girl in April 2008 and then married the
deceased girl in June 2008 having their relationship and affairs– Evidence had
been shown that brother and mother of the accused had told wife of the
accused to go and beat deceased and thrown the clothes of deceased outside
the house–Abetment of suicide could not be proved and conviction liable to be
set aside. Arjun Kumar Dhriblahre v. State of Chhatisgarh, 2010 (3) Crimes
160.
Section 306–Abetment to Suicide. Four accused used to tease deceased girl
studying in school–15 days prior to the incident, deceased received a letter
that writer of letter would not allow deceased to get married to any other
person–She committed suicide by jumping in village well–It was proved that
letter was written by appellant accused. Held–Proof or direct or indirect acts
to commission of suicide. There was to be positive action proximate to the
time of occurrence or part of accused which led or compelled the person to
commit suicide–Conviction set aside. Sidhartha v. State of Maharashtra, 2011
(2) Crimes 150.
Section 306–Abetment to suicide–Hardwood spoken by accused to deceased
on sudden annoyance caused by accused does not amount to instigation.
Instance was done in 1982 and put the evidence in 1985– Acquittal is valid.
State of M.P. v. Dhanesh Sharma, 2011 (1) Crimes 680.
Section 306–Petition to quash charge-sheet on the allegation that a victim
deceased student of class IX was given beating by petitioners teacher and
Principal–Held–Merely scolding student for her fault and asking her to get out
of class room or to inform her parents that they should withdraw child from
school by itself was not sufficient to constitute abetment proceeding quashed.
Ms. Jageswari Singh v. Judicial Magistrate, 2010 (3) Crimes 595.
 Section 306 and 498A–Deceased wife of accused committed suicide by setting
herself on fire–Deceased had suffered 50 to 60% burn injuries and dying
declaration was recorded by Magistrate–Earlier dying declaration recorded by
police described incident to be an accident and exonerated accused– Later
dying declaration recorded by the Magistrate did not inspire confidence as
Magistrate recorded it without getting condition of mental state of deceased
verified from doctor–Landlord of premises stated otherwise–Acquittal was
upheld. State of H.P. v. Umardeen, 2012 (1) Crimes 238 (HP).
Abetment of Suicide–Suicide by a person–He left a suicide note stating that his
wife and 3 others were responsible for his death. This would not make out an
offence of abetment. Jagdeep Kaur v. State of Punjab, 2013(4) RCR (Cri.) 1013
SC.
Abetment of Suicide–Husband charged with offence under section 306 I.P.C.–
It was husband who informed the parents of deceased and village Panchayat–
Bona fide conduct of accused would suggest their innocence. The fact of the
case was this a woman committed suicide after 11/12 years of marriage. She
had a son and daughter. Brother of the deceased narrated that the accused
had been harassing the deceased as she was not beautiful–Brother never
visited to the house of his sister 2 years prior to occurrence–Conviction set
aside. Labh Singh v. State of Punjab, 2012(4) RCR (Cri.) 1016 (P&H).
Section 306–Abetment of suicide–Absence of charge under section 306 IPC in a case
of suicide is not fatal when relevant and material facts are already part of the charge
under section 498A and 304B I.P.C. Satish Shetty v. State of Karnataka, 2016 Cr. L.J.
3147 (SC).
Section 306–Abetment of suicide–In this case deceased wife was alleged to have
committed suicide on account of cruelty committed by accused husband and her-in-
laws. There was no allegation of any kind of physical torture. Cruelty against accused
was sketchy & not convincing. Though mother-in-law used to rob her money which she
earned as wages but the said fact had not been established. The accused husband may
have been involved in an illicit relationship but there was no acceptable evidence on
record to establish high degree of mental cruelty as mentioned in section 498A I.P.C.
Hence, the conviction of accused under section 306/498A I.P.C. was not sustained and
set-aside. Ghusabhai Raisanghhai Chorasiya v. State of Gujarat, 2015 Cr.L.J. 3613 (SC).
Section 306–Abetment of suicide–In this case, there was a suspicion, in the mind of
wife that her husband is involved in an extra-marital relationship. It was held that on
the sole basis of this kind of allegation it can not be regarded as mental cruelty
satisfying the ingredients of section 306 I.P.C. K.V. Prakash Babu v. State of Karnataka,
2017 Cr.L.J. 264 (SC).
Section 306–Proof of the wilful conduct aclerating the woman to commit suicide or
to cause grave injury or danger life, limb or health whether mental or physical is the
sine qua non for entering a finding of cruelty against the person charged. Gurucharan
Singh v. State of Punjab, AIR 2017 SC 74.
Section 306–Abetment of suicide–To constitute abetment of detention and
involvement of the accused to aid or instigate the commission of suicide is imperative.
Any severance or absence of any of this constituents would militate against this
indictment. Remoteness of the culpable acts or omissions rooted in the intention of the
accused to actualize the suicide would fall short as well as of the offence of abetment
essential to attract the punitive mandate of section 306 I.P.C. Contiguity, continuity,
culpability and complicity of the indictable acts or omission are the concomitant indices
of abetment. Section 306 I.P.C, thus criminalise the sustained incitement for suicide.
Gurucharan Singh v. State of Punjab, AIR 2017 SC 74.
Section 306–In this case the court cocurrently found on record that the in-laws did
harass the woman but the court observed that harassment is something of a lesser
degree than cruelty. Also, court found on the facts, taken as a whole, that assuming the
presumption under section 113A would apply, it has been fuly rebutted, for the reasons
that there is no link or intention on the part of the in-laws to assist the victim to commit
suicide. Held, acquitted under section 306/498A I.P.C. Heera Lal v. State of Rajasthan,
AIR 2017 SC 2425.
Offence under section 306/498A I.P.C.
Offence of abetment of suicide by married woman. Past event of cruelty taking place
prior to amendment can be considered. That does not amount to giving retrospective
operation to amendment provision.
Evidence of cruelty given by near relations of deceased cannot be disbelieved.
Vasanta Tulsha Ram, 1987 Cr.L.J. 901. Ashok Kumar. v. State of Punjab, 1987 (1)
Recent C.R. 480 presumption under section 113A. Bride committing suicide. Allegation
that husband abetted her to commit suicide by consuming Durgane Phosphorus
compound. At the time of inquest, relations of bride made no such mention that she was
subjected to cruelty by husband for bringing inadequate dowry held to be an after
thought. In absence of allegation of cruelty, no presumption can be drawn of abetting
the deceased to commit suicide. Accused waiting till next day for his in-laws for
disposing dead body. Held it is a circumstances to render prosecution story doubtful.
In Gurbachan Singh, 1990 Cr.L.J. 562 Supreme Court held that presumption under
section 113A Evidence Act as to abetment of suicide by a married woman was held to
have retrospective effect, as the provision is procedural. It was a case of suicide and
harassment and torture by in-laws for bringing in-sufficient dowry. Father complained
of constant torture and taunts to her daughter. Father informed about death of woman
with delay, delay also in giving medical assistance. No burn injuries on finger tips of any
member of accused family which belied case of accidental death. Held she committed
suicide at instigation of her husband and in-laws.
1988 Cr.L.J. 1048, Jagdish Chander, question when presumption under section 113A
would be deduced was discussed. In this case husband was taking liquor daily despite
constant protests from wife in the habit of coming late at night. There was, however, no
evidence that wife was subjected to cruelty. Merely the protest could not be cruelty for
raising presumption.
Oral evidence about torture in peculiar circumstance of the case may be not reliable
withholding of letters written by deceased to her parents etc. may cause prejudiced to
the accused, non examination of the brother or mother too disproves torture. In such a
case, presumption of cruelty cannot be raised. 1990 Cr.L.J. (NOC) 138 Madhu Sudan
Hazara.
Death within 7 years of marriage. Body ought to be subjected to post mortem and
inquest vide. section 174(3) Cr.P.C. In 1988 Cr.L.J. 1399, Gower Chand the lapse of
police to hold so was held to be depreciable. The investigation was faulty and failure of
police to hold inquest etc. compelled High Court to order that investigation be taken up
by C.B.I., C.I.D.
Section 498A is attracted where even a kept mistress is harassed by the “husband”
and subjected to cruelty. They were living as husband and wife and even accused that
they had been always quarrelling and even on the day she committed suicide, they had
quarrelled. The quarrels had led the woman to commit suicide and is right covered
under harassment. Van Garala, 1988 Cr.L.J. 1538.
Section 498A–Wife’s harassment/suicide–Territorial jurisdiction–Wife sent back to
her father’s house after maltreating her for dowry–Wife falling ill after her return to her
father’s house due to mental shock caused by cruelty of husband and his relations. The
Court within whose jurisdiction wife resided with her father had jurisdiction to try the
offence as the offence was partly committed outside court jurisdiction when she was
maltreated and continued to be committed within court’s jurisdiction where she had
been left with her father. Vijay Rattan 1988 Cr.L.J. 1588.
In view of Explanation (a) to section 498A I.P.C., Levelling of false allegations
regarding the incapability of the wife to conceive a child by the husband in divorce
petition would amount to cruelty under section 498A I.P.C., 1991 Cr.L.J. 2049 Renu.
In Girja Shankar, 1989 Cr.L.J. 242, the wife was starved and maltreated. Held there
was abetment to commit suicide. Abetment can be by conducted. Direct evidence of
abetment is not necessary. It can be from circumstances.
The difference between sections 498A and 306–Lies between the two sections is that
of intention under section 498A cruelty committed by the husband or relations drag the
woman to commit suicide while under section 306 suicide is abetted and intended. In
this case there was strong motive to eliminate the deceased which impelled them to
perpetrate acts of cruelty. Conviction under section 306 held to be proper.
For conviction under section 306 I.P.C., it must be first proved that the woman had
committed suicide. In 1989 Cr.L.J. 809, there was no evidence that wife had committed
suicide. No note left by her for suicide, it was not clear from evidence whether she
herself had set fire to her clothes or it was accidental fire. Her husband and parents
took her to hospital without delay and got best treatment. So no conviction under
section 306, but there was evidence of harassment of wife for bringing dowry. Repeated
demands for dowry, conviction held under section 498A I.P.C.
Bitter relationship between the spouses, wife filing suit for restitution of Conjugal
Rights; suit eventually compromised and wife began to live with husband on being
assured by husband’s lawyer that her safety would be secured. But husband demanding
rupees one thousand to be brought; pressurisation on wife an employee of a bank to
bring money from parents; wife expressing that in this situation she would prefer death
to life; husband replying she could provide him relief quicker by dying on the same day;
dialogue in presence of wife’s lawyer; wife actually committed suicide. Held, husband is
guilty under section 306 I.P.C. (1989) 2 Crimes 193 Brij Lal.
P. Bakshapati, 1989 Cr.L.J. 1186, In all dowry death cases, the standards the
appreciation of evidence has to be in the light of presumption contained in sec. 113A. In
this case the taking of drink and coming late much against the will of the wife may not
per se amount to cruelty but the acts coupled with beating and demands of dowry and
harassment to bring money clearly attract the term cruelty as defined under section
498A.
On the following facts and circumstances, Apex Court held husband guilty for
abetment to commit suicide by wife:–
(a) ill treatment to wife as a sequel to dowry demand;
(b) wife seeking police protection apprehending danger to her life;
(c) divorce deed subsequently executed but not acted upon;
(d) wife’s effort to get transfer to a distant school frustrated by husband;
(e) pressure for dowry steeped up after death of father of the deceased wife;
(f) severe beating to wife one day prior to her suicide.
1991 Cr.L.J. 1897 (SC), State of Punjab v. Iqbal Singh.
Snatching a minor child from the custody of the mother and removing some other
place is cruelty answering Explanation (a) to sec. 498A I.P.C. and police of both places
have jurisdiction to investigate the offence. (1991) 1 Crimes 298, Vijay Kumar Sharma.
P.P. v. Tota Basava, 1989 Cr.L.J. 1330. Death of Bride on account of asphaxia due to
hanging within 3 years of marriage, is otherwise than under normal circumstances as in
sec. 113B Evidence Act. Even if she has committed suicide still death comes within
scope of sec. 304B I.P.C. when cruelty or harassment by her husband or any relative of
her husband in connection with any demand for dowry is proved.
Deceased bride suffering from 100% burn, death not reported, door of the house
open, water tap near the place where dead body was seen-accidental fire not
established, protruding tongue caught behind teeth does not necessarily establish
asphyxial murder before burn–Held the deceased committed suicide due to cruelty
meted to her. (1990) 2 Crimes 190, State of M.P. v. Lallu.
In cases under section 306 I.P.C. alternative or second charge under section 498A
I.P.C. can be framed. By invoking inherent power High Court may order compounding
of an offence under section 498A I.P.C. in the greater interest of keeping matrimonial
place and amity. 1991 Cr.L.J. 749.T. Venketalakshmi.
VI. Murder in itself is punishable under section 302 I.P.C. In such cases there can
be direct evidence of murder. Also there is circumstantial evidence to prove
murder. These cases are just like other cases of murder. The cases should be
distinguished from suicide or accidental death. Medical evidence plays
important part in such like cases to prove or disprove murder. (Discussed in
various other Chapters under different heads).
 In case 1983 Cr.L.R. (SC) 446 Vir Bhan Singh, deceased Bride was murdered
but given the shape of suicide by hanging. The Supreme Court held:–
The Medical Evidence showed that it was not possible for the deceased to
hang herself when she had severe type of injuries to stomach and liver,
husband and mother-in-law were throughout present in the house and no
outsider had come; the relations of the deceased were insisting to show the
dead body but were refused and only shown after great insistence and by the
time the body was decomposed.
The conviction for murder was upheld.
VII. In case Murder of wife by burning, 1985 Cr.L.J. 1651 G. Veera Brahmam v.
State of A.P. It was held by Karnataka High Court:
“The accused husband charged of burning his wife to death had strong motive
to get rid of his wife. The relation between the two spouses were very much
strained on account of illicit relations of the husband with another woman.
The accused was in exclusive company of his wife in his own house and no one
else was present when the occurrence took place. The neighbours who rushed
to the spot on hearing cries of the deceased were not allowed by the accused
to enter the house but had to effect entry by forcing open a door. The accused,
was found standing near the deceased in normal and unperturbed condition
by the witnesses. The accused did not give answer to any of the questions put
by the neighbours by subsequently give false statement to the police that his
wife had caught fire while working in the kitchen accidentally. No effort was
made by the accused to call for a doctor or to take his wife to the doctor or to
the hospital. A bottle of kerosene, match box and a burnt match stick were
found in the dining room of the house of the accused. In his examination under
section 313 Cr.P.C. the accused changed his earlier statement of accidental
burning to suicide. The probability of the wife committing suicide was almost
negatived by the threats which as per accused version the wife gave to the
accused on the fateful day.
Held, that the various circumstantial links established nexus between the
accused and the crime.
Murder was held to be proved”
VIII. The accused was tried for murder of woman by pouring kerosene oil. The
defence was that stove had burst.
Held in Surender Kaur, 1987 Cr.L.J. 537 (SC) recovery of stove with its lid
removed and burnt match sticks from the kitchen of the accused’s house
clearly showed that kerosene in stove was poured over victim and then lighted
match sticks had been applied. It could not be a case of accidental fire in view
of extensive burn injuries and presence of kerosene in clothes. No reason for
suicide. The dying declaration showed that accused had abused and beaten in
the morning. Held conviction was proper.
IX. Bride Burning. State of Delhi v. Laxman Kumar, 1986 S.C. 250–In this case
dying declaration of wife recordered by investigation officer was not accepted
as time and signature of deponent were absent. Not recorded in form of
question and answers. Credibility to make declaration doubtful.
Still acquittal of accused set aside because of circumstantial evidence-
witnesses rushed to spot-put out firegave information to police-good
neighbours could not be inimical to accused.
Defence, plea was, she caught fire due to kerosene stove to warm food and
milk. Kerosene stove in open space. Evidence was that there was gas stove in
kitchen. No evidence why it was not used. She was pregnant. She could not go
in nylon saree to open place in cold. Could not squirt on floor. Defence version
not acceptable. Relations were strained. Accidental theory over ruled. (Why
she did not use gas stove).
X. 1986 Cr.L.J. 1963 Ashok Kumar. Death of female in her in law’s house.
Discovery of bones and earrings of deceased at accused’s instance; fact that
 accused was in police custody on date of offence concealed by prosecution.
Evidence of discovery is unreliable.
Suspicious circumstances by themselves not enough to wife murder. Evidence
should contain other circumstances.
XI. Bride Burning–Murder or suicide Indar Kaur 1986 Cr.L.J. 744.
Where in prosecution of murder of wife there was a dying declaration before
the Magistrate on next day of occurrence in which deceased after stating that
her husband had come in the noon and had quarrelled with her, and after he
left for his business place her mother-in-law and grandmother-in-law came in
her room. She implicated both by ascribing specific acts, catching hold of her
and pouring kerosene oil on her shirt and legs and lighting the match stick.
Statement supported by medical evidence and dying declaration was
corroborated by witnesses residing in houses across road. Before ASI no role
was given of accused by deceased but dying declaration before Magistrate
clear. Role of ASI was held to be not above board, statement at the time of
admission made to Doctor about accidental burning on stove disbelieved as
husband and other relation, were accompanying her, she must have been
pursuaded or information given by relation. Held guilty of murder.
XII. Bride Burning
Shakuntala v. State 1987 (2) Recent C.R. 71. Accused charged with causing
death by sprinkling kerosene oil. No evidence of harassment by deceased
having brought meagre dowry or about strained relations of accused. Dying
Declaration without corroboration and recorded by Head Constable and
endorsed by doctors. Magistrate never called though there were 3 days time
between occurrence and death and deceased had 100% injuries of dangerous
nature. Material discrepancies in statement of doctors. Dying declaration
could not be relied upon.
Deceased pregnant. No evidence she resisted when kerosene oil sprinkled.
Prosecution story doubtful as a mother is a most attached to her child and
goes to any extent to save the life of child though it is in womb. The case could
be of suicide or accidental death. Accused acquitted.
XIII. Circumstantial evidence in wife’s murder. Husband’s plea of suicide rejected.
Circumstances:–Medical evidence of manual strangulation associated with
strangulation by ligature, anti mortem and homicidal in nature violet shade
found below larynx; an empty Tik 20 bottle planted by wife’s side to show
suicide; false plea of alibi by accused; alcohol found in stomach of deceased to
make her powerless.
Held sufficient for conviction. DK Rama Krishna, 1988 Cr.L.J. 345.
Newly married bride died of 100% burn injuries. Death not reported to police.
There was no evidence that deceased ran or shouted for help; door of the
house was open and water tap was near a place when dead body was seen.
Held 100% burns in such a case are unusual and case of accidental fire while
cooking food was ruled out. It was a clear case of abetment to commit suicide.
1990 Cr.L.J. (NOC) 127 (MP).
XIV. Accused-charged with killing his wife by strangulation and then hanging her
dead body. No eye-witness, circumstantial evidence held sufficient for
conviction under section 302. Circumstances being (1) deceased last seen
alive with husband; (2) dead body later found tied to a rope by one end and
other end tied with beam of the house; (3) ligature mark and knot mark
(ligature mark indicating that she was strangulated with coir rope and then
rope was tied to show it a case of suicide; (4) the saliva coming out of month
was not sure sign of suicide; (5) wife in advanced pregnancy could not tie
rope; (6) The motive was dire need of money by husband. Balam Nair 1988
Cr.L.J. 721.
XV. Circumstantial evidence in poisoning wife held sufficient in 1988 Cr.L.J. 1097
Bhupinder Singh by Supreme Court inspite of failure of prosecution to prove
possession of poison by accused. Held that cases of poisoning are committed
 in secrecy and it is not expected that accused will keep poison for police to
recover it. Circumstances, demand of dowry followed by harassment;
opportunity accused had to give poison; Doctor and Chemical Examiner
showed presence of poison in viscera though lethal dose not proved; presence
of injuries excluded theory of suicide. Held sufficient for conviction.
XVI. Nand Kumar, 1988 Cr.L.J. 1313. Accused poured kerosene oil on clothes of
deceased lady who was his keep. Burn injuries 30% developed into sepsis.
Death due to septicemia. This supervending cause was a necessary
consequence of act of accused. Held guilty under section 300 clause first Part
of dying declaration acted upon–Part not true could be separated.
XVII. Dowry Death–Smt. Lichhma Devi, 1988 S.C. 1785 only mother-in-law was
challanged for burning the woman by putting kerosene oil. Her husband and
brother were let off by police and not arrested. The Supreme Court
deprecated the conduct of police when there was clear complicity of two in
crime.
The evidence of doctor who had treated the deceased was believed where she
had stated to him that her mother-in-law had burnt her. Supreme Court relied
upon doctor’s statement though even he had not recorded it in medical
register. It was held to be a communication by the patient to the doctor
though not treated as dying declaration, but to a disinterested person,
accused convicted.
XVIII. Bejoy Kumar Sen 1988 Cr.L.J. 1818. Case of burning wife, circumstances
doubtful; on the earliest the deceased was saying that it was accidental; even
she did not protest when doctor was told about accidental fire. Dying
declaration delayed and held to he prompted by her parents who introduced
motive for dowry during trial after 4 years. Held doubtful & acquitted.
XIX. Subedar Tewari, 1989 S.C. 733 : 1989 Cr.L.J. 923. Death of newly wed bride
after 7 months of marriage; she was highly educated. The husband who was
carrying on with his niece who was acquitted by High Court. The husband
alleged it to be a case of suicide. However circumstances were so clinching as
to involve accused. She was found burning in the kitchen at 4 a.m. in prostrate
condition.
The door was not opened in the morning in spite of milkmen thumping. No kerosene
or other catalyst nor match box found. The body unless highly drenched with kerosene
oil could not be found in such posture. If she had committed suicide she must have run
about but no evidence of that. Every thing was highly arranged in kitchen. Accused kept
absconding for one month and also did not shout for help. The letters of the deceased to
her parents showed she was very much attached to them.
The defence did not suggest if she had any motive to commit suicide. Supreme Court
held “the evidence regarding existence of motive which operates in the mind of assassin
is not very often within the reach of others. The motive may not be known to the victim
of the crime. The motive may be known to the assassin and no one else may know what
gave birth to the evil thought in the mind of the assassin. A crime can take place even
without premeditation or planning in the context of a particular situation or at the spur
of the moment.”
Section 498A I.P.C.–The evidence of the parents of the deceased was only relatable
to dowry–However, the High Court held that there was no question of demand of dowry,
and in fact, appellant was financing the father of the deceased– There being no other
material to show as to how the deceased was being harassed or subjected to cruelty, the
conclusion of the High Court that because the deceased committed suicide there must
be some harassment and cruelty is insupportable and indefensible. Hazarilal v. State of
U.P., 2007 (3) Crimes 68 (SC).
Section 498A I.P.C.–Section 498A does not specifically speak of a dowry demand. It
speaks of unlawful demand of property and valuable articles. Above being the position,
the inevitable conclusion is that the prosecution has failed to establish its accusations so
far as 498A I.P.C. is concerned to hold the accused appellant guilty. The conviction is
accordingly set aside. Shivanand Mallappa Koti v. the State of Karnataka, 2007 (3)
Crimes 91 (SC).
 Section 498A I.P.C.–Harassment simpliciter is not “Cruelty”–and it is only when
harassment is committed for the purpose of coercing a woman or any other person
related to her to meet an unlawful demand for property etc. that it amounts to “Cruelty”
punishable under section 498A IPC. State of A.P. v. M. Madhu Sudhan Rao, 2008 (4)
Crimes 350 (SC).
Sections 498A and 306 read with Section 4 of Dowry Prohibition Act–Death by
Suicide–Death of deceased in a matrimonial home by consuming aluminium phosphide
(sulphas) tablets–Prosecution of appellant husband and his parents and brother–Trial
Court convicted appellant but acquitted rest of accused persons–Courts below heavily
on letter to support finding of conviction against appellant– These letters had not been
produced before the police during the course of investigation. In the background of
sketchy ocular evidence and the additional fact that the dying declaration recorded by
the Naib Tehsildar completely exonerated all the accused of any misconduct, clearly
dispelled any suspicion with regard to their involvement in this unfortunate incident–
Appeal allowed. Anand Kumar v. State of MP, 2009 (1) Crimes 383 (SC).
Section 498A IPC–No stretch of imagination A girl friend or even a concubine in an
etymological sense would be a “relative”. The word “relative” brings within its perview
a status. Such a status must be conferred either by blood or marriage or adoption. If no
marriage had taken place, the question of one being relative of another would not arise.
V. Suvetha v. State, 2009 (2) Crimes 357 (SC).
Section 498A I.P.C.–Provisions of Section 498A I.P.C. were introduced by an
amendment to curb the harassment of a woman by her husband and/or his family
members, for demand of dowry etc.–Under the garb of fulfillment of the customary
obligations. Undavali Narayana Rao v. State of A.P., 2009 (3) Crimes 264 (SC).
Effect of not being any allegation against the petitioner-mother in law–The suicide
note allegedly left behind by the deceased and relied upon by the prosecution and the
Trial Court does not make any allegation against the petitioner-mother in law so as to
constitute an offence under section 498 A, 306 or 34 Indian Penal Code. Hence, she was
rightly acquitted. Uma Devi v. State Government of NCT of Delhi, (2020) 268 DLT 149
(Del.).
Section 498A–Term “husband” would bring within its fold a person who is said to
have contracted a marriage with another woman and subjected her to cruelty. V.
Suvetha v. State, 2009 (2) Crimes 357 (SC).
Section 498A/306–Death of deceased by hanging–Prosecution case that deceased
was provoked by appellant to end her life by consuming poison or by hanging herself–
Allegation that three months prior to the date of death of deceased appellant had
brought ‘A’ to his house with whom he was having extra-marital affairs–Allegation that
appellant tried to take consent of the deceased for marrying said ‘A’ and on refusal of
the deceased, physical and mental torture was perpetrated on the deceased–Conviction
under section 498A, 306 I.P.C.–Appeal after dismiss by High Court. Evidence on record
that appellant had brought ‘A’ to stay with him three months prior to the death of
deceased–It was not the act of the appellant which instigated or provoked deceased to
commit suicide–Prosecution testimonies stated that deceased was tortured by the
appellant for the first time after his marriage after the refusal by the deceased–
Conviction under section 306 set aside but upheld under section 498A. Amalendu Pal@
Jhantu v. State of West Bengal, 2009 (4) Crimes 190 (SC).
Section 498A–It is a matter of common experience that most of the complaints under
section 498A I.P.C. are filed in the heat of the moment over trivial issues without proper
deliberations–Large number of cases are not even bona fide and filed with oblique
motive–At the same time, rapid increase in the number of genuine cases of dowry
harassment are also a matter of serious concern–But the members of bar have
enomerous social responsibility and obligation to ensure that the social fiber of family
life is not ruined or demolished. Exaggerated versions of small incidents should not be
reflected in the criminal complaints. Majority of the complaints are filed either on their
advice or with their concurrence. They must treat every complaint under section 498A
as a basic human problem and must make serious endeavour to help the parties in
arriving at an amicable resolution of that human problem. They must ensure that one
complaint should not lead to multiple cases as such complaint lead to insurmountable
harassment, agony and pain to the complaint, accused and his close relations. Preeti
Gupta v. State of Jharkhand, 2010 (4) Crimes 19 SC.
Section 498A–The fact of another woman living with husband of the complainant
wife would not constitute cruelty in terms of section 498A. The other question which fell
for determination was if a husband was living with another woman besides his wife,
whether the same would amount to “cruelty” within the meaning of section 498A. It was
held that if such other woman was not connected to the husband by blood or marriage,
the same would not attract the provisions of section 498A although it could be an act of
cruelty for the purpose of judicial separation or dissolution of marriage under the
marriage laws, but could not be stretched to amount to “Cruelty” under section 498A
I.P.C. Sunita Jha v. State of Jharkhand, 2010 (4) Crimes 113 (SC).
Section 498A, 304B. Even if the complaint did not specifically make out a case of
dowry demand, conviction can be made by appreciating the evidence, depositious and
materials brought on record particularly, the statements of the father of the deceased,
relatives of the deceased and the Investigating Officer when examined. The period of
two years in a marriage itself is a very short period. Uday Chakraborty v. State of West
Bengal, 2010 (3) Crimes 164 (SC).
Section 498A/406 I.P.C.–F.I.R. lodged by complainant against her husband and
appellant his foster sister alleging that harassment was meted out to her on account of
dowry demands–Petition for quashing the F.I.R.–Dismissed by High Court– Appeal Plea
that in order to be covered under section 498A, one has to be a “relative” of the
husband by blood, marriage or adoption, and since appellant was not in any manner a
“relative” as referred to in section 498A, there was no question of any allegation against
her in respect of the ill-treatment of complainant–Held, reference to the word “relative”
is limited only to blood relatives or relation by marriage–Held, appellant shall not be
tried for the offence under section 498A. In so far as section 406 was concerned, held
that whatever the form in which the allegations under section 406 I.P.C. are made, the
fact of the matter was that there was an F.I.R. and the court concerned had taken the
cognizance thereof. Direction was given that appellant would not be required to attend
the proceedings unless specifically directed by the court to do so and that too in the
case of extreme necessity. Vijeta Gajra v. State of NCT of Delhi, 2010 (3) Crimes 60
(SC).
Section 498A, 304B, 302/34–Death by burn injuries–Prosecution of accused husband
and in-laws of deceased for pouring kerosene on her and setting her on fire thereby
causing her death–Prosecution plea that deceased was ill-treated and harassment was
meted out to her in view of unfulfilled dowry demands– Conviction by Trial Court–
Appeal–The primary evidence in this case was the dying declaration recorded by
Magistrate in presence of Doctor who certified that she was fit to make a statement.
There was no reference whatsoever to the fact that kerosene oil had been poured on her
but no reason to doubt statement made by deceased and recorded by A2 and A3 on
burning issues. A1 is liable for 302 and A2 and A3 acquitted. Keesari Madhav Reddy v.
State of A.P., 2011 (1) Crimes 262 (SC).
Section 498A–Conviction of petitioner husband by Lower Courts–Revision– Cogent
evidence of complainant PW1 to show that she was being subjected to cruelty causing
almost mental torture if not physical harassment when petitioner got her subjected to
HIV tests and kept distances on allegations if she suffered from breast cancer causing
emanation of unbearable odour though it was falsified by medical tests. The mere fact
that within three months after the marriage, she had to give a complaint, which lead to
a compromise resulting in the submission of an undertaking by the petitioner to set up a
separate residence for himself and his wife, shall not be enough to disbelieve her
testimony that even during the three months she was subjected to cruelty and
harassment. The natural course of action that shall be taken by a prudent wife is to
keep open the chances of settlement. Section 498A was not confined to cruelty and
harrasment demanding dowry. Conviction was not liable to be interfered with.
[Link] v. State, 2011 (1) Crimes 136 (Mad.).
498A I.P.C.–Cruelty or harassment means demand of dowry which drives the wife to
commit suicide attracts the offence of abetment of suicide under section 306 I.P.C.
Gurnaib Singh v. State of Punjab, 2013 (3) [Link] 525.
 Cruelty–Husband and wife not staying together–Whether a spouse can couse mental
cruelty to other spouse in such a situation? (Yes) Held–Spouse can cause mental cruelty
by his or her conduct even while he or she is not staying under the same roof–In a given
case, while staying away, a spouse can cause mental cruelty to the other spouse by
sending vulgar and defamatory letters or notices or filing complaints containing incident
allegations or by initiating member of judicial proceedings making the other spouse’s
life miserable. K. Srinivas Rao v. D. A. Deepa, 2013(2) RCR (Cri.) 217 (SC).
Cruelty–Limitation to file complaint–Starting point of limitation would be the last act
of cruelty–Held–
(i) Approaching the court at a belated stage for a rightful cause, or even for the
violation of the fundamental rights, has always been considered as a good
ground for its rejection at the threshold.
(ii) In case a representation is made by the person aggrieved and the same is
rejected by the competent statutory authority, and such an order is
communicated to the person aggrieved making repeated representation will
not enable the party to explain the delay. Udai Shankar Awasthi v State of U.P.,
2013 (2) RCR (Cri.) 503.
Section 498A–Cruelty–In this case, deceased wife alleged to have hang herself by
means of rope after two years of her marriage. The testimonies of material witnesses
proved beyond reasonable doubt that deceased was being subjected to continuous and
ruthless harassment and ill-treatment on account of demand of dowry so much as that
being unable to bear the cruelty, she took the extreme step of eliminating herself to
seek alleviation from such physical and mental tortue. In the absence of any material on
record to the contrary, conviction of accused husband was held proper. M. Narayan v.
State of Karnataka, 2015 Cr.L.J. 3302 (SC).
Section 498A–In the instant case, the deceased had been tortured by her in-laws and
her husband and harassed beyond limits by her in-laws which had caused her grave
mental and physical injury. The prosecution had established this fact by adducing
cogent and convincing evidence. Because of physical injury and mental torture, she run
away from her matrimonial home on several times and had ultimately resulted in her
death. The reason that the deceased kept coming back to her matrimonial home by way
of compromise inspite of all cruelty and torture meted against her was because of her
minor daughter who was living with her husband. Thus, the ingredients to constitute
the offence under section 498A I.P.C. had been fully satisfied & conviction under section
498A I.P.C. was held proper. Bhanuben v. State of Gujarat, 2015 Cr.L.J. 4664 (SC).
Section 498A–In this case, the accused mother-in-law poured oil from a cane on the
deceased and the accused husband ignited fire for demand of dowry. The evidence of
brother and father of deceased with regard to dowry was found truthful. Court held that
it is not a case of accidental death but a death taking place in circumstances other than
normal. Thus, presumption under section 113B of Evidence Act is attracted and
conviction of accused is proper. Sultan Singh v. State of Haryana, 2015 Cr.L.J. 259 (SC).
Section 498A–In the instant case, the deceased wife was subjected to cruelty and
harassment on demand of dowry. The brother of the deceased had clearly stated in his
evidence that he went to the matrimonial house of his sister where he saw the husband,
father-in-law and mother-in-law of deceased scolding her for not bringing amount of Rs.
5 lakh. The evidence of brother remained consistent. Conviction under section 498A
I.P.C. upheld. V.K. Mishra v. State of Uttarakhand, 2015 Cr. L.J. 4021 (SC).
Section 306–Abetment to commit suicide–The Supreme Court has observed that
merely because a superior officer assigned work to his junior officer and took actions
against him like stopping of his salary, he cannot be held to have a guilty mind or
criminal intent, to attract offence under section 306 I.P.C. for abetment of suicide.
Aijnath Kondiba Khandke v. State of Maharashtra, SLP (Cri.) 2600 of 2018.
Section 498A–The Supreme Court modifies its earlier directions issued in Rajesh
Sharma and other v. State of U.P. for preventing misuse of section 498A I.P.C. Court
withdrawn the earlier direction that complaints under section 498A I.P.C. should be
scrutinised by Family Welfare Committee before further legal action by police. Social
Action Forum Manav Adhikar v. Union of Inidna WP (Civil) No. 73 of 2015 decided on
14.9.18.
Bail in Bride Burning Cases
It is heinous crime and bail should ordinarily be not granted. Even woman, person
below 16 years etc. should not be bailed out as word ‘may’ in first proviso of section
437(1) does into mean ‘must’. In 1989 Cr.L.J. 1772 Parmod Kumar, Allahabad High
Court overruling 1986 Cr.L.J. 365, refused bail in mother-in-law who has sprinkled oil
on bride and burnt her in hearless and brutal manner.
Anticipatory bail in dowry death; matter under investigation not prudent for High
Court to release on bail, 1987 S.C. 737, Surrender.
Offences under section 304B/498A I.P.C. Section 304B and 498A IPC are not
mutually exclusive. The provisions deal with two distinct offences. It is true that
“cruelty” is a common essential to both the sections and that has to be proved. The
Explanation to section 498A gives the meaning to “cruelty”. In section 304B there is no
such explanation about the meaning of “cruelty” but having regard to the common
background of these offences, we have to take the meaning of “cruelty” or “harassment”
will be the same as we find in the Explanation to section 498A under which “cruelty” by
itself amounts to an offence and is punishable under section 304B, it is the “dowry-
death” that is punishable and such death should have occurred within 7 years of the
marriage. No such period is mentioned in section 498A and the husband or his relative
would be liable for subjecting the woman to “cruelty” any time after the marriage.
Further, it must also be borne in mind that a person charged and acquitted under
section 304B can be convicted under section 498A without charge being there, if such a
case is made out. But from the point of view of practice and procedure and to avoid
technical defects, it is necessary in such cases to frame charges under both the sections
and if the case is established, they can be convicted under both the sections but no
separate sentence need be awarded under section 498A in view of the substantive
sentence being awarded for the major offence under section 304B. Shanti v. State of
Haryana, AIR 1991 SC 1226.
Sections 438 and 482 Cr.P.C.–Anticipatory bail application–Offences were registered
under section 304B, 498A I.P.C.–Bare reading of F.I.R. disclosed no offence was made
out–Informant, father of deceased, gave in report that after birth of son, petitioner left
deceased at informant’s house and deceased suffered from TB and was being treated
and died of that illness–No allegations of any demand for dowry or torture on account of
demand of dowry–Death of deceased being a natural one, offence under section 304B
I.P.C. did not arise–Fit case to invoke and exercise power under section 482 Cr.P.C. to
quash F.I.R. Badal Barik v. State of Orissa, 2008 (1) Crimes 593 (Ori.)
Sections 438 and 482 Cr.P.C.–Petition for grant of anticipatory bail and for setting
aside the order whereby Magistrate issued processes under section 82 and 83 of
Cr.P.C.–Case was registered under section 498A, 304B/34 I.P.C. and petitioner were the
father and mother in law of deceased–Deceased got married to son of petitioners on
3.2.2008 committed suicide on 18.11.2008 might by hanging from ceiling fan in
matromonial home–F.I.R. registered and charge-sheet had been filed–Husband had been
arrested and was in custody–Report of the handwriting expert on suicidal note
confirmed that deceased wrote three suicide notes–Suicide notes was not before the
court while passing the order under section 82 and 83 Cr.P.C. or dismissing the
anticipatary bail. Proceedings under section 82 and 83 Cr.P.C was liable to be set aside
and case sent to trial Court to decide the regular bail. Saroj Pandey v. State (Govt. of
NCT of Delhi) 2010 (1) Crimes 215.
Section 439 Cr.P.C.–Case was registered for offence of dowry death under sections
498A, 304B, 306 and 201 I.P.C.–Body was cremated without informing police or even
parents of deceased–Bail application by parents-in-law of deceased–Torture and cruelty
was alleged being committed upon deceased when she took ornaments gifted by
accused to her parents and was not bring them back–Deceased committed suicide–
Father-in-law of deceased was a handicapped with both legs amputated and mother-in-
law was aged women–Petitioner deserved to be granted bail. Madan Lal v. State, 2011
(2) Crimes 112 (Raj.).
Section 304B–The deceased being not in a position to bear more torture and cruelty
pertaining to demand of dowry committed suicide by setting herself on fire. The sister,
brother and sister’s husband of the deceased along with other witnesses had been
examined who consistently deposed about the demand and acceptance of dowry and
subjected cruelty by the accused husband in their house. Held, conviction of the
accused was upheld. A.K. Devaiah v. State of Karnataka, 2015 (1) Crimes 53 (SC).
Section 304B–In this case, after one year of the marriage, there was a demand for
dowry by the husband and her in-laws. A she-buffalo was given by the father to the
daughter as a peace offering. The place offering had not effect. The daughter was ill-
treated. She went back to her father and demanded money again. The father, along with
his brother and the sarpanch of the village to the matrimonial home with a request that
the daughter be not ill-treated on account of the demand for money. Despite the
assurance by father that the demand would be fulfilled, daughter was maltreated again.
She chose the path of death by poisoning. The evidence of the father was solid.
Conviction upheld. Rajinder Singh v. State of Punjab, 2015
Cr.L.J. 1934 (SC).
Section 304B–It was held by the court that there is no positive evidence against the
accused which can effectively establish his connection with the charge of cruelty and
torture upon the deceased by dowry. Appeal allowed. Order set-aside. Jwala Prasad v.
State of Chhatisgarh, 2016 (3) Crimes 113 (SC).
Section 304B–In this case, deceased wife committed suicide within one month of her
marriage, due to persistent illegal demands of dowry made by the accused one after the
other to deceased. The death of deceased has a direct nexus with demand of dowry duly
proved by evidence and suicide note of the deceased mentioned the reasons which
compelled her to end her life. The suicide note was duly proved to be in the handwriting
of the deceased. The defence witnesses were not able to weaken the prosecution case
on any of the material issues. Hence, it is a clear case under section 304B/498A I.P.C.
read with section 113B of the Evidence Act. Conviction upheld. Hariom v. State of
Haryana, 2015 Cr.L.J. 641 (SC).
Section 304B–In the instant case, the deceased wife had committed suicide on
demand for dowry. At the time of the incident, the accused husband was in office but he
did not take efforts to take the deceased wife to hospital which was very near to the
place of incident. The plea of accused that deceased was suffering from chronic
depression was ruled out due to the evidence on record revealed that accused were
maltreating the deceased and she had started picking up ideas of suicide. Moreover, the
accused husband did not inform the parents of deceased as they received telephone
message from unknown person. Mother-in-law of the deceased was not present at the
place of incident at the relevant time. Conviction was upheld. Maya Devi v. State of
Haryana, 2016 Cr.L.J. 629 (SC).
Section 304B–Proof of Cruelty–It was held by the court that proof of cruelty or
harassment by husband or her relative or the person charged is the sine qua non to
inspire the statutory presumption to draw the person charged within the coil thereof. A
conjoint reading of three sections i.e. 498A, 304B I.P.C. and 113B of Evidence Act
predicate the burden of the prosecution to unassailably substantiate the ingredients of
the two offences by direct and convincing evidence so as to avail the prosecution
engrafted in section 113B of Evidence Act against the accused. If the prosecution fails
to demonstrate by cogent, coherent and persuasive evidence to prove fact, the person
accused cannot be held guilty by taking refuge only of the presumption to cover up the
shortfall in proof. Baijnath v. State of M.P., AIR 2016 SC 5213.
Section 304B–In this case, a demand for scooter was made soon after marriage of
the deceased by the accused. It was made on regular basis. There was an evidence that
about 15 days prior to unnatural death of the deceased her grandfather did not accede
to the request of the accused to send the deceased to her matrimonial house because of
their harassment and cruelty towards her not meeting their demands of dowry. She
was sent back to her matrimonial house after the assurrance given by accused that she
would not be ill-treated. The statement of the mother of deceased was also to the same
effect. Hence, it cannot be said that there was no live link between dowry demand and
death. Ramakant Mishra @ Lalu etc. v. State of U.P., 2015 Cr.L.J. 1947 (SC).
Section 304B–The expression “soon before” is not synonymous with “immediately
before”. The expression “soon after the death” in section 304B I.P.C. is a relative
expression. All that is necessary is that the demand for dowry should not be state but
should be continuing cause for the death of the married women under section 304B
I.P.C. Rajinder Singh v. State of Punjab, 2015 Cr.L.J. 1934 (SC).
Section 304B–Circumstances–In the instant case, the accused husband was alleged
to administer the poison to her deceased wife. The defence was taken by the accused
that she being sensitive and impressible, might have committed suicide out of
depression and frustration arising from an emotional upsurge. The conduct of the
accused and gesture of the victim at the crutial time as projected in the case, medical
evidence, evidence as to purchase of poison unerringly point towards the guilt of the
accused. Four circumstances are to be examined before recording conviction–
(i) There was a clear motive for the accused to administer poison to the deceased.
(ii) The deceased died of poison said to have been administered.
(iii)That the accused had poison in his possession, and
(iv) That he had an opportunity to administer, the poison to the deceased.
It was held, guilt of the accused is proved. State of Himachal Pradesh v. Rajiv Jassi,
2017 (3) SCC (Cri.) 809.
 Section 304B–Dowry death–The word “soon” in section 304B I.P.C. is to be
interpreted not in terms of days or months or years but as necessarily indicating that
the demand for dowry should not be stale or an aberration of the but should be the
continuing cause for the death under section 304B I.P.C. or the suicide under section
306 I.P.C. Sher Singh @ Pratapa v. State of Haryana, 2015 Cr.L.J. 1118 (SC).



Chapter–6
Investigation in Murder Cases
In Amrik Singh v. The State of Punjab, 1983 Cr.L.J. 1405, Hon. Mr. Justice Bains
held that the duty of the police is to prevent and detect crime and to bring the accused
to justice. The investigation in the present case had been tainted and aimed as to save
the accused, who was head constable of police at the time of occurrence, and not to
bring him to justice. Under the law the investigator is enjoined upon to unearth the
crime, he is to proceed to the spot, ascertain facts and circumstances of the case and
arrest the suspected offender, collect evidence relating to the commission of offence,
examine various persons including the accused, reduce their statements into writing, to
search places and take into possession things considered necessary for investigation
and to be produced at the trial and then to form his opinion as to whether on the
material collected any accused to be placed before a Magistrate for commitment and to
file a charge-sheet under section 173 Criminal Procedure Code. In the nature of things,
an investigator has to be and is clothed with many powers by the law for the purpose of
conducting investigation and where the murder has taken place, it is the duty of the
investigator to send the special report to the Illaqa Magistrate at once. But in the
present case none of the steps have been complied with by the investigating ASI who
appeared as defence witness. Even the Superintendent of Police who also appeared as
defence witness, did not do his duty in accordance with law as enjoined upon him as a
senior police officer what to say ASI. They have not investigated the circumstances
leading to the death of the deceased. Rather their every effort was to shield the accused
from bringing him to Justice. (See Relevant Heads in other Chapters).

Investigation in Case of Murder by Poisoning

In a case of murder by poisoning, direct evidence is not always available. The view
of the Supreme Court as laid in unreported case of Dharambir Singh v. State of Punjab,
Cr. Appeal No. 98 of 1958 was that prosecution, in order to prove the identity of
prisoner must prove three things viz. (a) that the deceased died of a particular poison;
(b) that the accused was in possession of that very poison shortly before the death of the
deceased; and (c) that he had the opportunity of administering poison to the deceased.
This criteria was applied in case Mohan v. State of U.P., 1960 S.C. 609 and the fact
that the accused gave Perha to the deceased, it was inferred that he was in possession
of poison shortly before, which he would have mixed with Perha.
However in 1960 S.C. 500 Anant Chintaman Lagu v. State of Bombay, it was
considered that a case of poisoning was always one of the secrecy. The offender may be
having knowledge of poison. Then there are synthetic and vegetable alkaloids groups
which do not leave any characteristic signs which can be noticed in post mortem
examination. This was a case of slow poisoning by a medical man of a rich widow
patient. The Supreme Court held that in such cases it is circumstantial evidence which
could prove the death by poisoning and such circumstantial evidence should be:
(a) The facts proved by such evidence are of such decisive nature that taken as a
whole they do not admit of any inference except that of the guilt of the accused
and their combined effect is to create a network through which there is no
escape for him;
 (b) Even when the medical evidence is negative, the charge can be held to be
established if the circumstantial evidence as to the conduct of the accused is of
such a decisive character as to entirely incompatible with his innocence.
(c) Death was unnatural and due to something given to the deceased.
(d) The various items of conduct before or after death may point to the guilt of the
accused which in this case were:
(i) The accused had opportunity to administer poison.
(ii) Taking her to hospital bereft of her ornaments and money.
(iii) Giving her a wrong name on admission to hospital.
(iv) Intentionally mentioning a false name to be the brother of deceased living
in Calcutta.
(v) Abandoning her body.
(vi) Converting her property to his own use and getting documents signed
from her.
(vii) Sending letters in her name to her relations.
It was held that though no poison was detected she died an unnatural death. The
conduct of accused before her death and subsequent left no doubt that it was he who
had committed murder.

Cases
(i) Medical evidence unable to determine poison. The convention that medical
evidence should alone be accepted to determine if death was violent or
unnatural, could not be accepted. Conduct of accused and other circumstances
held relevant to prove guilt of accused 1968 Cr.L.J. 453 : 1968 Bombay 127,
Palaniswamy.
 (ii) Proof depends upon the facts of each case. Conviction can be made on
circumstantial evidence. Knowledge from administration of poison to cause
death presumed and case fell under clause 4 of section 300 I.P.C. (even when
initial intention was of robbery etc. 1968 Cr.L.J. (Orissa), Orumdhati.
(iii) In case of death by poisoning, it is only when motive is there, and it is proved
that the deceased died of poison in question, that accused had poison in his
possession and that he had an opportunity to administer that poison, that court
can infer that the accused administered the poison to the deceased resulting in
death. 1972 S.C. 656 : 1972 Cr.L.J. 473 Ramgopal.
(iv) Held the Pathologist’s part in the diagnose of poison was secondary. In this
case, even when no poison was detected on post-mortem the case was held to
be proved on circumstantial evidence. 1972 S.C. 1331 : 1972 Cr.L.J. 860,
Mohan Mawal.
(v) The compounder accused had administered a substance to his own doctor who
had asked for 10 grams of Aspirin, due to bad headache. The compounder after
12/13 minutes brought two packets with Aspirin, written on them. The doctor
consumes one and feels bitter sensation when aspirin has no taste. The
compounder when questioned maintains to have given aspirin and on another
doctor’s intervention shows the packets one of which was alleged to have
contained strychnine. The plea taken by accused was of accidental taking of
wrong medicine. Acquitted by Sessions, convicted by the High Court on appeal.
1974 Cr.L.J. 1249, Dharam Dass Wadhwan. Held by Supreme Court maintaining
conviction: Every evidentiary circumstance is a probative link, strong or weak
and must be made out with certainty. Link after link forged firmly by credible
testimony may form a strong chain of sure guilt binding the accused. Each link
taken separately may just suggest but when hooked on to the next on again may
manacle the accused inescapably. Only then can concatenation of incriminating
facts suffices to convict a man. Short of this is insufficient.
The rule of benefit of doubt does not imply a frail willow bending to every whiff
of hesitancy Judges are made of sterner stuff and must take a practical view of
legitimate inferences flowing from evidence, circumstantial or direct.
(vi) Death due to poison. The accused purchased Zinc Phosphate on pretext of
killing rats. No poison recovered from viscera of deceased. The symptoms also
of virus infection according to Zinc Phosphate given, powder adheres to the
crypts in the mucous membrane of stomach and enters into viscers. Nothing so
followed. The possibility of death due to virus infection not ruled out. Held by
the Supreme Court where two views were possible, accused should be
acquitted. 1975 S.C. 1327 : 1975 Cr.L.J. 1109, Smt. Phino.
In case Sharad Birdhchand 1984 Cr.L.J. 1738, the Supreme Court laid down the
mode and manner of investigation of murder by poisoning cases and when benefit of
doubt should be given. It was held as:
“It is well settled that where on the evidence two possibilities are available or open,
one which goes in favour of the prosecution and the other which benefits the accused,
the accused is undoubtedly entitled to the benefit of doubt. In the cases of murder by
administration of poison the court must carefully see the evidence and determine the
four important circumstances which alone can justify a conviction–
(1) There is a clear motive for an accused to administer poison to the deceased.
(2) That the deceased died of poison said to have been administered.
(3) That the accused had the poison in his possession.
(4) That he had an opportunity to administer the poison to the deceased.
(Para 164)
In the instant case a newly married bride was found dead. The cause of death was
poisoning due to a strong dose of potassium cyanide. The prosecution case was that in
the short span of 4 months of married life she was ill treated by her husband and his
parents, and that the poison was administered by her husband. The defence plea was,
however, that while there was a strong possibility of her having been ill treated, being
highly sensitive and impressionate woman she might have committed suicide out of
sheer depression and frustration arising from an emotional upsurge. The case depended
solely on circumstantial evidence.
Held further, “Hence that the circumstantial evidence did not lead to the only
conclusion that the husband committed murder by administering poison. On the other
hand two views were possible one pointing to his guilt and another that the wife might
have committed suicide. Consequently, the accused was entitled to benefit of doubt. A.
No. 265 of 1983. Dt. 23-9-1983 (Bom) Reversed.
(Paras 175, 176, 196, 210)
Though agreeing with Fazal Ali, J. that accused is entitled to benefit of doubt
Varandarajan, J. and Sabyasachi Mukarji, J. have given their views in separate
Judgement on the following points, namely,—
(1) Ill treatment of the deceased wife (newly wed) by her husband (the accused).
(2) Intimacy of husband with another girl.
(3) Admissibility of letters written by the deceased wife and statements made by
her to witnesses against her husband under section 32(1) of the Evidence Act (1
of 1872).
(4) Conduct of the doctor who had conducted autopsy on the body of the
[Link] case was followed in PadalaVeera Raddy 1990 Cr.L.J. 605 (The
SC). Case of forcible administration of poison by accused. There was no direct
evidence which was only circumstantial; it was held that there was strong
suspicion against accused but it cannot take place of legal proof.
 But it is not always necessary that possession of poison by accused is necessary to
be proved. The Supreme Court held in Bhupender Singh, 1988 Cr.L.J. 1097 that there
should be no acquittal on the failure of prosecution to prove possession of poison with
the accused. Murder by poison is committed invariably under the cover and cloak of
secrecy. No body will administer poison to other in the presence of others. Nor he will
keep a portion of poison for I.O. to come and recover it.
This was a case of murder of wife by poisoning– Held circumstantial evidence viz.
Demand for dowry followed by harassment, the evidence of doctor and post mortem
report of chemical examiner showed death by organo phosphorous compound
poisoning; the accused had opportunity to administer poison; presence of injuries
excluded theory of suicide. Held circumstantial evidence sufficient for conviction. Held
further that it was not necessary to prove that lethal dose was given.

There are some other important cases on Murder by Poisoning

These are as under:–
Allegation of murder by poisoning–Medical evidence to the effect that death was due
to cardio-respiratory failure either due to taking excess wine or due to poison. When the
victim unconscious alcoholic smell coming from his mouth. Victim not telling that the
accused gave him poison as deposed by the relatives of the victim. Alleged oral dying
declaration is such that it cannot inspire any confidence. Held accused is to be
acquitted. Bhupinder Nath Prasad, AIR 1993 SC 300.
Section 300–Murder–Cirumstantial evidence–Accused husband alleged to have killed
deceased wife by poisoning–Death of deceased occurring at residential house of
accused–Insufficient dowry constituting alleged motive–Medical evidence showing death
of deceased was a due to administration of poison–Falsying defence version that
deceased committed suicide by having herself–Accused being medical practitioner
having every facility and opportunity of administering poison to deceased–Injuries on
body of deceased showing her resistance before intake of poison–Subsequent conduct of
accused is not immediately informing to his in-laws and absconding is unnatural–chain
of circumstancial evidence complete–Guilt of accused proved beyond reasonable doubt–
Conviction of accused proper. Mangat Rai v. State of Punjab, 1997 Cr.L.J. 3514.
Section 300–Murder–Participation of accused–Allegation against accused son of
administering poison to his father–Witnesses saw him mixing some powder in flour for
preparing chapatis for his father–He did not eat chapatis made of said flour–Extra
judicial confession made by him stating that his mother had given him poison to be
mixed in his father’s flour–His conviction on above basis, proper–However, considering
fact that he was a child under children Act, he was sent to approved school for two
years under section 29 of that Act–No substantive and reliable evidence to bring charge
of murder against mother of accused–Mere extra-judicial confession made by her son–
Not sufficient mother acquitted. Rajendra v. State of U.P., 1997 Cr.L.J. 2700.
Section 300–Murder by poisoning–Accused husband making accusations against his
deceased wife that she was suffering from leprosy showing his motive for murder–
Doctor after seeing report of chemical analyser, stating that poison would have worked
fatally in the victim–Accused having opportunity to administer poison when he was in
same room with deceased on fateful night–Acquittal of accused by High Court on
coming to conclusion that deceased had committed suicide–Liable to be set aside. State
of H.P. v. Jeet Singh, 1999 Cr.L.J. 2025.
Section 300–Murder–Proof–Accused alleged to have poisoned deceased through
prasad–social prasad offered to deceased only while he incidently passed by house of
accused–No prior invitation given by accused–Nor any anixus found on her part–Non-
production of forensic report relating to sample of prasad suggest that no poison was
found therein–offence against accused not being proved–Accused entitled to acquittal.
In Re Ram Japu Rai and Other etc., 1999 Cr.L.J. 4164.
Section 300–Murder–Case of poisoning–Proof–Accused administering poison to her
two children and herself consuming it–Causing death of deceased son–Eye-witness
evidence of daughter the surviving victim–Corroborated by register evidence of another
witness–Absence of proof as to source form which accused procured poison would not
by itself be of consequence–Offence against accused proved–Order of conviction upheld.
Devaki v. State of Kerala, 2000 Cr.L.J. 477.
Section 302–Death of deceased by poison–Accused has illicit relations with deceased
and was alleged to have forced poison to deceased–Trial Court convicted based on
deposition of PW3 and PW4 and DNA Report–Appeal–Held–No direct evidence of
accused administered poison to deceased. Further, no evidence that accused was seen
in company of deceased prior to incident or at the time of incident or after the incident.
Serologist noticed human blood on clothes of accused which have got recovered after
the arrest of accused, but it was not shown to be the same blood of deceased. DNA
report would not per se be admissible under section 293(4) Cr.P.C.–Even otherwise
report did not implicate accused for giving poison to deceased–Conviction set aside.
Perseneni Venkateswarlu v. State of A.P., 2010 (1) Crimes 885 (AP).
Section 302–Murder of child aged about 3-4 yrs by poison–Chemical examination of
viscera of deceased showed presence of organo phosphorous pesticide–Four
circumstances to be found established in such a case of murder by poison were that
there was a clear motive, deceased died of poison, accused had poison in his possession
and had opportunity to administer poison to deceased–Trial Court wrongly held that
illicit relation between husband of appellant and mother of deceased was motive to
cause death of deceased by appellant–Poison seized by police was not on basis of
memorandum of appellant or that it was within her knowledge when placed by her
husband in the house–Witness who was said to be with deceased when poison was
administered to deceased was not examined, being found in competent for evidence by
Trial Court–Material contradictions in evidence of other witnesses on the point–
Conviction could not be sustained. Suruti Bai v. State of Chhattisgarh, 2010 (4) Crimes
45.
Section 302/34 I.P.C.–Death by poisoning–Conviction on circumstantial evidence–
Four circumstance which alone could justify a conviction–Deceased and three appellants
took liquor and deceased feeling uneasy vomited and reached home–Deceased died
thereafter–Cause of death was opined as asphyxia due to respiratory failure as a result
of suspected poisoning–A container of insecticide was seized at the instance of accused–
Appeal–Oral dying declaration made by deceased before family members after reaching
home that accused had given poison in liquor to him was unacceptable when no mention
of such oral dying declaration in the intimation lodged by the brother of the deceased–
Though vomitting of deceased revealed presence of insecticide (poison) but vomit from
spot was not sealed–Viscera through seized at the time of post-mortem was not sent to
FSL for analysis–Coviction could not be sustained. Khorbehra v. State of M.P., 2011 (3)
Crimes 438.
Section 302/34–Deceased wife of the appellant No. 3 died of poisoning conviction of
husband, father-in-law, two brother-in-laws and his wife on circumstantial evidence–
Appellant husband was alleged to have developed illicit relations with his sister-in-law
and deceased used to oppose it–Appellant No. 4 took meal for deceased when deceased
was working in field and after taking food deceased started vomiting and was treated at
house but died and body was cremated–Four days after case was registered on report of
brother of deceased– Trial Court found that conduct of appellants was incriminating and
there was no reasonable explanation–Sustainability of conviction–In a case of death by
poisoning, court must see determine four important circumstances which alone could
justify a conviction–Many discrepancies in evidence–Doctors who treated deceased were
examined as defence witnesses and trial court was not justified to reject testimony when
they stated that it was a case of food poisoning and not a case of poisoning– Conviction
was liable to be set aside. Ram Jiyawan v. State of M.P., 2011 (1) Crimes 158.

Importance of Circumstantial Evidence in Murder Cases

Circumstantial evidence is the evidence of circumstances as opposed to direct
evidence. It is the evidence of the surrounding circumstances of the accumulated
circumstances and if put together it points to one deduction namely to the guilt of the
person accused. Wills in his principles of circumstantial evidence, has observed that
“circumstantial evidence means the evidence afforded not by the direct testimony of an
eye-witness to the fact to be proved but by the bearing upon that fact of other and
subsidiary facts which are relied upon as inconsistent with any result other than the
truth of the principle fact.”
Conviction can be based upon circumstantial evidence alone as held in 1952 S.C.
343 Hankman Govind.
(i) Circumstances from which the conclusion of guilt is to be drawn should at the
first instance be fully established.
(ii) All the facts so far established should be consistent only with the hypothesis of
the guilt of the accused.
(iii) Circumstances should be of a conclusive nature and tendency and exclude
other hypothesis but the one proposed to be proved.
Again in Govinda Reddi 1960 S.C. 29, this mode was approved. In Anant Chintanan
Lagu 1960 S.C. 500, it was further said that “circumstantial evidence in this context
means a combination of facts creating a network through which there is no escape for
the accused because the facts taken as a whole do not admit of innocence but of his
guilt.” See 1962 S.C. M.G. Aggarawal and 1963 S.C. 74 wherein it was held “Thus what
we have to see is whether taking the totality of the circumstances which are held to
have been proved against the appellants, it can be said that the case is established
against the accused i.e. the facts established are inconsistent with the innocence of the
appellants and incapable of explanation upon any hypothesis other than that of guilt.”
In 1974 Cr.L.J. 1249, Dharam Dass Wadhwan, the Supreme Court on the point of
circumstantial evidence held that “Unlike direct evidence, the indirect circumstances
may throw light may vary from suspicion to certitude and care must be taken to avoid
subjective pitfalls of exaggerating a conjecture into conviction. Every evidentiary
circumstance is a probative link, strong or weak and must be made out with certainty.
Link after link forged firmly by credible testimony may form a strong chain of sure guilt
binding the accused. Each link taken separately may just suggest by when hooked on to
the next arid on again may manacle the accused inescapably. Only then can a
concatenation of incriminating facts suffice to convict a man. Short of that is
insufficient. That rule of benefit of doubt does not imply a frail willow bending to every
whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of
legitimate inferences flowing from evidence, circumstantial or direct.”
In a case of circumstantial evidence, the main planks of evidence fail, the whole case
becomes doubtful. In 1977 Cr.L.J. 298. State of Haryana v. Jaghu Singh etc. The
Supreme Court held so. Accused admitted to be arrested earlier when shown by police
to be arrested later leading to recoveries. Last seen evidence also doubtful from clothes
allegedly worn by accused and later found on dead body to be different. The police had
admittedly done padding. Even a single circumstance which is conclusive as to exclude
the possibility of innocence is sufficient as held in 1962 (2) Cr.L.J. 694 (H.R). That
would, however, depend upon the facts of each case. Merely blood stained axe
recovered under section 27 Evidence Act from accused. Not sufficient for conviction.
1986 Cr.L.J. 117.
However, the case depending upon circumstantial evidence alone, strong motive to
commit crime is very essential to be proved. Strong motive plus opportunity to commit
crime are sufficient for conviction. 1972 Cr.L.J. 7 : 1972 S.C. 54 Udaipal.
If two equally possible inferences are possible in a case of circumstantial evidence, it
is duty of court to accept the inference which is favourable to accused. Inference of
homicide as well as suicide possible from circumstances, See Ram Dass 1977 Cr.L.J.
141 (SC) It was a case of death of wife by parathin poison (for killing rats), Motive was
very weak. Circumstances suggesting both killing and suicide. See Chapter 21 also.
Murder–Circumstantial evidence–Prosecution resting its case to prove certain
material circumstances solely on witness who was aged about 9 years–High Court,
taking note of the fact that mother of within a month of occurrence and thus was
interested in influencing witness and had opportunity of influencing her felt that she
could not be relied upon–High Court deduced that witness was tutored one from the
fact she identified jersey and shoes accused was wearing when he was last seen with
deceased and watch which deceased was wearing on the day of occurrence and
acquitted accused–High Court felt that witness though would have been able to
remember or identify wearing apparels or shoes accused was wearing–Supreme Court
agreed with High Court and confirmed his acquittal. State of H.P.v. Dhani Ram and
Others, 1997 Cr.L.J. 214 (SC).
Murder–Circumstantial evidence–Death by strangulation–Accused suspecting
infedeligy of his deceased wife since marriage–Proved to have occupied room in lodge
with wife, and his 4 months child–Accused last seen in company of deceased–Accused
left the “lodge” with child on the pretext that his wife had died and he was going to call
his relations–But he did not return in evening of day of incident, it was proved that he
got his head and beard shaved obviously to conceal his identity–Presence of accused in
room immediately before death of deceased and his conduct in not coming back to
“lodge” are circumstances strong enough to establish his guilt–Coupled with his
statement made to room boy that his wife had died of heart-attack, establishes that
deceased was already dead–Since she was strangulated to death, there was none else
except the accused to have done it–
Setting aside of acquittal of accused–No interference. Ajit Savant Magagavi v. State of
Karnataka, 1997 Cr.L.J. 3964 (SC).
Section 300–Murder–Circumstantial evidence–Wife alleged to have killed husband
with an axe–No eye-witness–Wife was with her husband at night of occurrence and sent
her two children to sleep with their grand parents–Next day husband was found with
bleeding injuries leading to his death and wife was absconding without any explanation
till her apprehension after about ten days–Certain articles belonging to her husband
seized from her chain of circumstances established to reach conclusion of guilt
conviction sustained. Laxmi Deialias Naik v. State, 1997 Cr.L.J. 4193 (SC).
Section 300–Murder–Circumstantial evidence–Dead bodies exhumed from place
pointed out by accused, proved to be those of victims–Disposition of neighbours proving
ill treatment of deceased wife by accused husband–Evidence that motive on part of
accused was to get rid of his wife so that he could live peacefully with his mistress–
Deceased last seen alive in company of accused–Absconding of accused before his
arrest showing his guilty mind-order of acquittal of accused set aside. State of
Kamataka v. Bhoja Poojari, 1997 Cr.L.J. 4420 (SC).
Section 300, 316–Murder–Circumstantial evidence–Credibility–Husband causing
death of pregnant wife–Motive for causing injuries on neck of deceased wife by accused
husband by throttling her was proved to be his own illicit relations with his own sister-
in-law. Medical evidence corroborating prosecution completely which supports theory of
death due to throttling–Evidence of eyewitnesses was natural and consistent
circumstances an record and proved by prosecution sufficient to prove chain of
circumstances. Accused and deceased were present in house of accused on date of
incident and slept adjacent to each other, supporting prosecution theory–Conviction
under section 300, 316 is proper. Narayan v. State of Maharashtra, 1997 Cr.L.J. 537
(Bom.).
Murder–Circumstantial evidence–Allegations that accused assaulted deceased- wife
till she became unconscious and thereafter left his house and came back and hanged
her–Presence of accused in his house when hanging took place not proved–Defence
version that accused alongwith his daughter returned home and found her hanging–No
evidence to prove that deceased was alive when accused returned home–Prosecution
story of hanging doubtful in absence of evidence that deceased continued to remain
unconscious till she was allegedly strangulated–No evidence also to support story of
electrocution falsely circumsted by accused–Circumstance nor pointing out towards
guilt of accused–Conviction of accused, set aside. R. Rajendran Nair v. State of Kerala,
1998 Cr.L.J. 60 (SC).
Section 300–Murder–Circumstantial evidence–Accused police officers alleged to
have severely beaten deceased at police station and cause disappearance of evidence by
concealing dead body–No material showing offence for which deceased was brought to
police station and interrogated–Dead body found in decomposed condition–No evidence
to prove that deceased was beaten by accused–Homicidal death of deceased not proved–
Several links are missing in chain of evidence–Guilt of accused no established beyond
doubt–Conviction set aside. Haragovandas D. Patel v. State of Gujarat, 1998 Cr.L.J. 662
(SC).
 Section 300–Murder–Circumstantial evidence–Accused to gratify his greed causing
death of old man and attempted to murder his wife–Evidence of injured wife of deceased
clearly establishing guilt of accused–Accused and deceased were last seen together–Key
which used to remain on person of deceased was in possession of accused on date of
occurrence–Dead body of deceased was found at canal in direction in which accused
and deceased were observed as going–Injuries inflicted by accused on head of wife of
deceased were similar to injuries found on dead body of deceased as per medical
evidence–Axe of accused was found as directed by accused–Currency notes of Rs. 2000/-
were also found on person of accused when he was arrested–Accused, held, liable to be
convicted. State of H.P. v. Manohar Singh, 1998 Cr.L.J. 3630 (SC).
Section 300–Murder–Circumstantial evidence–Room where death occurred, on top
floor and in occupation of accused-husband and deceased wife–No scope for outsider to
go to said floor–No marks of physical violence on person of deceased which is likely in
case of encounter with intruder or of sexual assault–No evidence of theft or attempt to
commit theft–Husband and wife only person occupying said room–Accused alone going
to top floor room where deceased was at material time–He coming down a little and
giving out fabriaeted version that deceased was unconscious–Doctor opining that hardly
two or three minutes are required for causing death by strangulation–Marks of injuries
on person of deceased–Accused’s version that deceased had not taken food for two or
three days due to certain ailment falishfled as semi-digested food was found in her
stomach–Held, only conclusion is that accused after strangulating wife, came out with
fabe version that she was lying unconscious. Ram Kumar M.S. Pathak v. State of
Gujarat, 1998 Cr.L.J. 4048 (SC).
Section 300–Murder–Circumstantial evidence–Accused alleged to have committed
murder of child aged about 4 years–Medical evidence showing that deceased met with a
homicidal death–Testimony of witnesses that they saw deceased lying dead in the room
with head severed and accused was standing therewith with blood stain kathi
corroborated and believable–Abscondance of accused after occurrence proved–Recovery
of weapon of offence at instance of accused also proved–Motive though is one of
circumstance which assume importance would be of no consequence–Chain of
circumstances completed–Conviction of accused, proper. Uday Kumar v. State of
Karnataka, 1998 Cr.L.J. 4622 (SC).
Section 300–Murder–Circumstantial evidence–Accused members of student union
alleged to have assaulted deceased and other–Motive alleged was political rivalry
between two factions of student unions–Delay of about 16 hours in lodging FIR, not
explained–Alleged dying declaration recorded by head constable in presence of doctor–
Testimony of doctor that he did not hear name of alleged assailants while recording
dying declaration–Dying declaration not recorded as per rules is doubtful–Injured
witnesses neither reported about incident to police not were medically examined by
police–Their testimony not cogent and convincing examined by police–Their testimony
not cogent and convincing–Chain of evidence not complete to show that accused
persons alone were responsible to commit offence–Accused persons entitled to benefit
of doubt. State of H.P. v. Rakesh Kumar, 1999 Cr.L.J. 564 (HP).
Section 300–Murder–Circumstantial evidence–Recovery of dead body of police
constable from train–Prosecution case that accused person were being carried by police
constable for attending their case at different court–Evidence on record establishing
fact that accused were present in compartment and were last seen with deceased–Fact
that accused were not in compartment and injured was lying uncounscious in
compartment also proved–Could be said that prosecution had proved homicidal death of
deceased and circumstances leading to his death in violent manner–Conviction of
accused under section 302 is proper. Jagir Singh v. State of Rajasthan, 1999 [Link]. 796
(Raj.).
Section 300–Murder–Circumstantial evidence–Allegations that accused in
furtherance of conspiracy caused murder of deceased–Accused last seen in company of
deceased–Evidence witness that accused was seen with blood stained clothes
immediately after occurrence–Recovery of weapons of offence at instance of accused–
Chain of circumstanecs so proved is complete–Conviction of accused for murder,
proper. Sanjiv Kumar v. State of Haryana, 1999 Cr.L.J. 1138 (SC).
 Section 300–Murder–Circumstantial evidence–Allegations that accused abducted
and killed deceased, a minor child–Testimony of witnesses untruthful, unreliable and
not inspiring confidence–Alleged motive of enmity and demand of ransom not
established–Circumstances not showing participation of accused his murder–
Presumption of innocence of accused cannot be excluded–Conjectures and suspicion
however strong cannot take place of legal proof–Conviction of accused, not proper. Arif
Umar v. State of U.P., 1999 Cr.L.J. 3399 (All.).
Section 300–Murder–Circumstantial evidence–Witness who alleged to have lastly
seen accused and deceased together, not agreeing with each other so far as time factor
is concerned–Motive on part of accused not established by prosecution– Alleged extra-
judicial confession by him not reliable–Medical evidence not conclusive–So called
recovery of wrist watch of deceased on basis of statement made by accused can hardly
be said to be a clinching circumstance for coming to conclusion that prosecution case
has been proved beyond reasonable doubt– Conviction of accused for murder–Liable to
be set aside. C.K. Ravindran v. State of Kerala, 2000 Cr.L.J. 497 (SC).
Section 300–Murder Trial–Circumstantial evidence–Pica that deceased was given
sleeping tablets and intoxicating liquor and then he was strangulated–Rejected by both
lower courts in view of evidence of doctor and chemical analysis report–Indetification of
accused by prosecution witness in belated test identification parade also not accepted
by lower courts–Clear statement by doctor who evidence of ligature strangulation–
Missing links found in chain of circumstances–Conviction of accused set aside. Mujeeb
v. State of Kerala, 2000 Cr.L.J. 742 (SC).
Section 300–Murder–Circumstantial evidence–Evidence of prosecution witnesses
clearly establishing that deceased had gone to house of accused on dali of incident and
she had many ornaments on her person at that time and thereafter she was found
missing–Evidence of witnesses also establishing that they noticed a dead body below a
cot in bed room of accused at relevant time–Recovery of ornaments and dead body at
instance of accused from his house–False denial of accused about recovery of dead body
and ornaments from her house in her statement under section 313, Cr.P.C. supplying
missing link in chain of circumstances–Held, accused was liable for committing murder
of deceased. Geeta v. State of Karnataka, 2000 Cr.L.J. 3187 (SC).
Section 300–Murder–Circumstantial evidence–Murder of wife and daughter by
accused–Accused suspecting character of wife and beating her–Accused and deceased
last seen together in house of accused–Parents of deceased after reaching place of
occurrence noticing knife lying nearly–Evidence of doctor stating that death was due to
stab injuries–Accused merely denying when such circumstances were put to him,
providing additional link in chain of circumstances–Acquittal of accused liable to be set
aside. V. Handrashekhar Rao. v. P. Satyanarayana, 2000 Cr.L.J. 3175 (SC).
Murder Case–No eye-witness–Cases based on circumstantial evidence–For
conviction, prosecution has to prove–
(a) The circumstances from which the conclusion of guilt in to be drawn should be
fully established. The circumstances concerned “must or should” and not “may
be” established,
(b) The facts so established should be consistent only with the hypothesis of the
guilt the accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(c) The Circumstances should be of a conclusive nature and tendency,
(d) They should exclude every possible by pothesis except the one to be proved,
and
(e) There must be a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the accused and
must show that in all human probability the act must have been done by the
accused. Ved Prakash@ Bhagwan Dia v. State of Haryana, 2006 (3) RCR (Cri).
Murder Case–Circumstantial evidence–In a case based on circumstantial evidence,
there may be no direct evidence to prove the manner of assault or the actual
participation of an accused in the assault on the deceased resulting in his death, but if
the circumstantial evidence is conclusive in nature, a conviction on the basis of such
circumstantial evidence may be recorded–It must be shown that the circumstances
established in record are incriminating in nature and the chain of circumstances
established by the prosecution is so complete as not to be consistent with any other
hypothesis except the guilt of the accused. Deepak C. Patil v. State of Maharashtra,
2006 (2) Apex Criminal 552 (SC).
Murder Case–Last seen evidence–Case based on circumstantial evidence–For
proving the guilt of commission of an offence under section 302 IPC, the prosecution
must lead evidence to connect all links in the chain so as to clearly point the guilt of the
accused along and nobody else–In the instant case evidence of last seen theory not
believed–In the absence of any other lines in the chain of circumstantial evidence, it is
not possible to convict the appellant solely on the basis of “last seen” evidence–Last
seen theory, furthermore, comes into play where the time gap between the point of time
when the accused and the deceased were last seen alive and the deceased is found dead
is so small that possibility of any person other than the accused being the author of the
crime becomes impossible. Sunny Kapoor v. State (UT of Chandigarh), 2006 (2) Apex
Criminal 287 (SC).
Murder–No eyewitness–Case based on circumstantial evidence–It is well settled that
suspicion, however, grave may be, cannot be a substitute for a proof and the courts
shall take utmost precaution in finding an accused guilty only on the basis of
circumstantial evidence. Ram Reddy R. Reddy v. State of A.P., 2006 (4) J.T. 16 (SC).
Murder case based on circumstantial evidence–Steel tumbler found at the place of
occurrence–Report of finger print bureau that finger prints on the tumbler were similar
and identical with specimen finger prints of accused–Finger prints of accused not taken
in presence of Magistrate–Tumbler also not produced before court during trial–
Conviction set aside–Accused could not be connected with offence. Girraj v. State of
Rajasthan, 2006 (1) RCR (Cri.) 632.
Murder–No eye witness–Accused convicted on ground of following circumstantial
evidence–
(a) On death of deceased information was given to relatives of deceased.
(b) Relatives noticed injuries on body of deceased and went to inform the police.
(c) Body was cremated hurriedly before arrival of police.
(d) The deceased was in the company of accused in company for a night prior to
murder.
(e) It was within knowledge of accused who could explain the circumstance leading
to cause of death.
Ananthalal Ghose v. State of W.B., AIR 2005 SC 3415.
Murder–Circumstantial evidence–Accused a medical practioner–Caused death of his
father-in-law, mother-in-law and their three minor children by administering poison
through injection–Accused made them believe that they were suffering from AIDS–
Motive of accused was to grab property–No eye-witness–Conviction based on following
circumstances–
(a) Accused made the family believe that they were suffering from AIDS.
(b) Accused also made them believe that he could treat them by getting some
injections.
(c) It was proved that accused purchased the poisonous injection.
(d) Accused was in the house of deceased person of fateful night.
(e) Accused managed to keep his wife away from the hours of in-laws.
Death sentence upheld. Reddy Sampath Kumar v. State of A.P., AIR 2005 SC 3478.
Murder–Evidentiary value of diary of deceased–Case based on circumstantial
evidence–Deceased was a Trade Union leader–He maintained a diary wherein he named
certain henchmen of industrialists from whom he apprehended danger to life–Held,
entries in the diary not admissible as they did not refer to any event which ultimately
was the cause of death. State of M.P. through CBI v. Paltan Mallah, AIR 2005 SC 733.
Murder–Circumstantial evidence–Murder of a woman by her husband and her two
step-sons–No eye-witness-Offence proved from following circumstances–
 (a) Deceased was second wife and she was ill treated by her husband and step-
sons.
(b) Dead body bore marks of injuries.
(c) Accused wanted to bury hurriedly the dead body.
(d) Accused had motive to kill–Deceased was carrying pregnancy of two months–
The possible birth of a male child was likely to effect the inheritance of step-
sons.
(e) Accused absconded when police reached.
Usman Mian v. State of Bihar, 2004 (4) Crimes 153 (SC).
Offence of Murder–Case based on Circumstantial evidence–Last seen theory not
proved beyond doubt–Accused acquitted–Circumstances should be of such conclusive
nature as to exclude every other possibility except the accused being guilty of the
charged offence. State of Rajasthan v. Khuma, AIR 2004 SC 4677.
Murder–Circumstantial evidence–No eye-witnesses to murder case–Not necessary
that the crime must be seen to have been committed and must, in all circumstances be
proved by direct ocular evidence–The offence can be proved by circumstantial evidence
also–Circumstantial evidence must satisfy–
(a) the circumstances from which an inference of guilt is sought to be drawn, must
be cogently and firmly established;
(b) those circumstances should be of a definite tendency unerringly pointing
towards guilt of the accused;
(c) the circumstances, taken consultatively, should form a chain so complete that
there is no escape from the conclusion that within all human probability the
crime was committed by the accused and none else; and
(d) the circumstantial evidence in order to sustain conviction must be complete and
incapable of explanation of any other hypothesis than that of guilt of the
accused and such evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence.
(e) onus was on the prosecution to prove that the chain is complete and the
infirmity of lacuna in the prosecution cannot be cured by a false defence or
plea,
(f) when on the evidence brought or record two views are possible and the court
has taken a view which is possible interference by the appellate Court would
not be proper. Vilas P. Patil v. State of Maharashtra, AIR 2004 SC 3562.
Murder–Circumstantial evidence–Accused killing his wife by cutting her neck–No
eyewitness–Accused convicted and sentenced to life imprisonment on following
circumstantial evidence–
(i) Ill treatment of accused with his wife proved.
(ii) Accused absconded and arrested after a week-No explanation therefor.
(iii) On voluntary statement of accused, incriminating articles i.e. chopper. Spear,
Clothes and gold jewellery recovered.
(iv) No evidence that any outsider enter the house.
Sardar Khan v. State of Karnataka, AIR 2004 SC 1695.
Murder–Circumstantial evidence–Proof of crime–For a crime to be proved it is not
necessary that the crime must be seen to have been committed and must, in all
circumstances, be proved by direct ocular evidence–Where a case rests squarely on
circumstantial evidence, the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be incompatible with the innocence
of the accused or the guilt of any other person. State of Rajasthan v. Rajaram AIR 2003
SC 3601.
Murder–Circumstantial evidence–Murder of woman–Charge against accused
(husband) that he committed the murder by strangulating his wife–No eye-witness-All
the PWs turned hostile except police– Accused cannot be convicted because he failed to
render probable explanation regarding death of his wife in his statement under section
313 Cr.P.C.–It is for the prosecution to establish this by leading cogent and reliable
evidence which will form a complete link in the case of prosecution. Sucha Singh v.
State of Punjab, AIR 2003 SC 3617.
Murder–Case based on circumstantial evidence–Accused acquitted on following
grounds–
(a) Prosecution version that accused gave head injury with axe and dragged the
dead body and threw it in a well–No trail of blood from house to well.
(b) Recovery of blood stained clothes, but no evidence that clothes belonged to
accused and none else.
(c) Recovery of axe not believed.
State of Karnataka v. M.v. Manjunathe Gowda, AIR 2003 SC 809.
Murder–Case based on Circumstantial evidence–Accused acquitted on following
grounds–
(i) Recovery of blood stained earth and knife not sent to serologist–Recoveries
could not be believed.
(ii) No witness from neighbouring houses joined but witness called from another
place who was family friend for 20 years.
(iii) Deceased suffered 30 injuries, but strangely no one from neighbouring house
was attracted.
State of U.P. v. Arun Kumar Gupta, AIR 2003 SC 801.
Murder–Circumstantial evidence–Presumptive evidence–Accused strangulated a
child aged 4 years on advice of Tantrik to get pot of gold and son–Accused caught red
handed while throwing dead body in a tank–Accused convicted on the following
presumptive evidence–
(i) Accused did not explain how dead body came in his possession.
(ii) Extra-judicial confession of accused.
Kalpana Majumdar v. State of Orissa, AIR 2002 Ori. 2826.
Murder–Case based on circumstantial evidence–Accused is entitled to benefit of
doubt if chain is snapped. Babu Sonba Shinde v. State of Maharashtra, 2002 Cr. L.J.
4650.
Murder–Case based on circumstantial evidence–Dead body recovered from place
other than the place indicated by accused in disclosure statement–Conviction set aside.
Kuldip Singh v. State of Punjab, 2002 Cr.L.J. 3944.
Murder–No eye-witness–Case based on circumstantial evidence–Presence of a finger
print at the scene of occurrence is a positive evidence–But the absence of a finger print
is not enough to foreclose the presence of the persons concerned at the scene. Gade
Laxmi Manga Raju @) Ramesh v. State of A.P., AIR 2001 SC 2677.
Murder–Case based on circumstantial evidence–Recovery of blood-stained
“Chaddar” (sheet) and shoes on basis of disclosure statement made by accused–Origin
of blood stains on shoes and “Kassi” could not be determined on account of
disintegration with lapse of time–“Chaddar” (sheet) was however stained with human
blood–No benefit given on this belated and state argument. Gura Singh v. State of
Rajasthan, AIR 2001 SC 330.
Murder–Case based on circumstantial evidence–Chain of evidence must be complete
to convict the accused–There should be no missing link–But it is not that every one of
the links must appear on the surface of the evidence, since some of these links may only
be inferred from the proven facts. Pawan Kumar v. State of Haryana, AIR 2003 SC 2987.
Section 302–Appellant accused convicted for murder of his wife and two sons–
Conviction based on circumstantial evidence–Appeal–Inference of guilt in circumstantial
evidence could be justified only when all incriminating facts and circumstances duly
proved were incompartible with innocence of accused–Accused appellant was indebt
and was under mental strain–Daughter of accused had seen appellant holding wife by
her hair and attacking her and then taking away two younger brothers to kitchen–On
next day, dead bodies of two brothers were found in kitchen–Appellant gave false
explanation regarding whereabout of deceased to his nephew–Conduct of accused that
after locking kitchen he went away was relevant pointing to guilt of accused– Sickle,
weapon of offence stained with blood was recovered persuant to accused confession–
Accused himself had gone to police station and narrated incidents which was treated
F.I.R.–Facts establishing complicity of accused–No interference under section 354(3)
Cr.P.C. Balram Sharma v. State of Chhatisgarh, 2007 (4) Crimes 32.
Section 302–Conviction of appellant based on circumstantial evidence–Accused and
deceased were related and family owner property–Deceased was telling equitable
partition and share in family land which was opposed by accused–On 23-9-1995
deceased left his house informing his wife PW1 that he was going to meet Revenue
Inspector and was wearing wrist watch, gold ring and gold chain and Rs. 2500/- Next
day PW1 while going to coffee land to attend work saw dead body of her husband lying
by road side–Persuant to disclosure by appellant gold chain and ring belonging to
deceased and weapon used in crime were recovered from house of accused–Blood
stained clothes of accused were also seized–High Court found circumstances i.e. motive,
last seen together, recovery of gold ornaments and absence of explanation by accused
conclusive to prove guilt of accused–Appeal–Great care to be taken while evaluating
circumstantial evidence–Circumstances found proved against accused formed a
complete chain and conviction called for no interference. Geejaganda Somaiah v. State
of Karnataka, 2007 (3) Crime 38 (SC).
Section 302–Prosecution could not establish the complete chain of circumstances to
hold the accused guilty–The conviction, therefore, can not be maintained. Harish
Chandra Ladaku Thange v. State of Maharashtra, 2007 (4) Crimes 12 SC.
Sections 302 and 201 I.P.C.–Appellant having lured deceased to pay Rs. 1,60,000/-
for getting job in Government hospital made deceased to consume liquor and then
infused Begaon spray (poison) in body of deceased along with intravanous fluid–Accused
then took the dead body with money from hospital to dispose of body– Conviction
recorded on circumstantial evidence–Appeal–Evidence regarding poison being
administered in vein was shaky–Medical Evidence and FSL evidence indicated that
deceased died of sudden cardiac stopage and respiratory faiture due to Begaon poison
witnesses not supported the prosecution i.e. who saw in the emergency room on the
date of incident, carrying the body of deceased from hospital in auto-rickshaw–Amount
of Rs. 1,60,000/- in a bag was found lying by side of dead body and motive was not
proved–Chain of circumstances could not be said complete. Naginbhai Ambalal Solanki
v. State of Gujarat, 2007 (4) Crimes 368 (Guj.)
Section 302 read with section 34 and section 449 read with 34–Death by stabbing–
Prosecution of accused persons three in number for causing death of deceased by
stabbing–Conviction of accused persons by trial court on basis of circumstantial
evidence–Appeal–Two circumstances highlighted by High Court while upholding
conviction of appellant not presented a complete chain of circumstances which ruled
out possibility of any other person being assailant and/or unerringly pointed to accused
appellant as being guilty of charged offences–No evidence led by prosecution to show
that prints in question came into existence at the time the accident took place–
Conviction as recorded by High Court held not maintainable– Appeal allowed. Roop
Singh @ Rupa v. the State of Punjab, 2008 (3) Crimes 52 (SC).
Section 302/34 I.P.C.–Conviction of three appellants based on circumstantial
evidence–Circumstances found by Trial Court to hold appellants guilty were recovery of
weapon of offences at their instance, chance prints lifted from spot were found
matching with specimen finger prints of accused and accused last seen with deceased–
Appeal–Recovery of dagger or blades was doubtful–Though report of Finger Print
Bureau recorded that chance prints matched with specimen finger prints, no evidence
as to who, how and when specimen finger prints were taken– Circumstances of last seen
was also not proved. Conviction could not be sustained. Sanjay Thakur v. The State
(NCT of Delhi), 2008(1) Crimes 123.
Section 302–Appellant convicted for murder of his wife–Conviction was based on
circumstantial evidence–Appeal–Conclusions drawn by Trial Court did not show that
chain of circumstances was complete to connect accused with crime–In a case of
circumstantial evidence case could not be held to be proved only on basis of motive–
Prosecution even failed to prove that death was homicidal–Body of victim was recovered
from a water tank situated in front of house of accused–Post-mortem report showed that
mode and cause of death could not be ascertained–Conviction was liable to be set aside.
Suraj Mal v. State of Rajasthan, 2008 (3) Crimes 359.
Sections 302 and 201 I.P.C.–Conviction under based on circumstantial evidence–
Deceased was assaulted in her house and she died in hospital–Appellant, employed in
the shop of PW1, was sent by PW1 to his house to bring an article–PW9 had seen
appellant, coming out of house of deceased when cries of deceased were heard–
Weapon of offence was recovered persuant to confession given be appellant after his
arrest–Doctor opined that injuries found on person of deceased were one could be
caused by those weapons–Blood stained clothes of deceased, weapons containing blood
stains were reported same blood group by FSL–PW1 in complaint got recorded that
offence was committed by “unknown person” as PW1 had no suspicion against accused
when he was present all along with him–Accused suppressed the entire information–
Court was justified in convicting accused under section 302 and 201 I.P.C. A. Sabir v.
State, 2009 (3) Crimes 646.
Sections 302 and 201 I.P.C. Appellant convicted on circumstantial evidence–
Deceased used to advance loan on interest and gave loan to accused also–She developed
illicit relations with accused and had threatened to come and live with her or else pay
back money. Dead body of deceased was found in a well– Circumstantial evidence
completed chain to point unerringly that accused committed murder of deceased–
Conviction called for no interference. Velu v. State 2009 (3) Crimes 465 (Mad.).
Section 302 read with 201 I.P.C.– In a case of circumstantial evidence it has to be
conclusively established that the chain of circumstances lead to the only inference, that
of guilt of the accused ruling out the possibility of involvement of any other person to be
the author of crime. All the circumstances including so called confession were
disbelieved by the Trial Court and High Court– Hence, conviction of appellant being
unsustainable set aside. Appeal Allowed. Dauna Devi v. State of Bihar, 2009(2) Crimes
305 (SC).
Section 302 I.P.C.–Appellant convicted for murder of his wife by strangulating her–
Conviction based on circumstantial evidence–Appeal–To sustain conviction based on
circumstantial evidence, each circumstances must be proved and established by cogent
evidence and circumstances so proved must form a chain so complete not be
consistent with innocence of accused–Circumstances found duly proved and formed a
complete chain to sustain the conviction. Gurbachan Singh v. State, 2009 (1) Crimes
469 (Del.).
Sections 302 and 201 I.P.C.–Appellant convicted for murder of his father and having
burried body in badi of his house–Conviction on circumstantial evidence– Appellant
made extra-judicial confession before his mother and three other witnesses and that
dead body was recovered from badi of appellant–Recovery panchnama of body showed
that body were recovered as exumed at the instance of PW2 mother of appellant–In the
F.I.R. the appellant had been confessed to have killed his father–Three witnesses of
extra-judicial confession gave different version– Conviction could not be sustained. Fagu
Singh v. State of M.P., 2011 (2) Crimes 157.
Section 302/34 I.P.C.–Conviction of four accused persons on circumstantial
evidence–Dead body of deceased was found hanging from a tree and a suicide note was
found inside baniyan of deceased–One of the accused made extra-judicial confession
before panchayat people that accused persons kill deceased by strangulating him a
suicide note was written by one of them–Hand writing expert report that suicide note
was in handwriting of one of the accused–In Extra Judicial confession, the accused did
not implicate himself but implicated other accused. Conviction not sustained. Mohan
Das v. State of M.P., 2010 (4) Crimes 487.
Section 302 I.P.C.–Case based on circumstantial evidence. The Apex Court found
that the circumstances from which the conclusion about the guilt of the appellant is to
be drawn are fully proved. The circumstances proved are conclusive in nature–Appeal
dismissed. Vijay Kumar Arora v. State Govt. of NCT of Delhi, 2010 (1) Crimes 63 (SC).
Section 302–Prosecution of appellant for chopping off right hand of her daughter
and causing her death by strangulating her–Conviction by trial court–Appeal against
conviction–Entire case was based on circumstantial evidence–None had seen the
occurrence or even heard the crying of the deceased even though the informant and
other family members were sleeping near the scene of occurrence. Premasila Kumbhar
v. State of Orissa, 2011 (3) Crimes 359 (Ori).
Section 302–I.P.C.–Apart from the appellant and the deceased only two persons
present in the house at relevant time–Mother is also too old–There is no suggestion of
the brother having committed the crime–Deceased deserting her husband and living
with her uncle–Appellant having both motive and opportunity clear motive–Appellant
not reporting death of his daughter even after 10 yrs. The entire circumstances point to
the guilt of the accused. Bhagwandass v. State (NCT of Delhi), 2011 (2) Crimes 266
(SC).
Section 302 I.P.C.–Conviction on circumstantial evidence–Appeal–Deceased and
appellant were friend and were seen together last at midnight by common friend and
dead body of deceased was found lying open space with throat injuries–Appellant left
city for Goa abruptly on next day till he surrendered in Court–Blood stained shirt of
appellant where blood group matched with deceased was recovered at instance of
appellant–Conviction called for no interference. Shri Wilfred Rozario Fernandes v. State
of Maharashtra, 2011 (1) Crimes 193 (Bom.).
Sections 302 and 392 I.P.C. read with section 34–Prosecution of appellant along with
one another for having robbed deceased of her gold ornaments and thereafter having
murdered her at her residence–Conviction by Trial Court relying upon circumstantial
evidence–After dismissal of Appeal in High Court, appellant filed appeal in Apex Court–
The mainstay of prosecution story was recovery of gold ornaments belonging to
deceased at the instance of accused persons. Evidence produced to establish the
presence of accused near the place of occurrence; at or about the time of the
commission of the crime was found to be irrelevant–This was because accused were in
any case neighbours of the deceased–Theft of golden ornaments worn by deceased was
also doubtful–Apart from that there was serious contradictions in the deposition of
prosecution witnesses–Prosecution failed to connect accused with alleged crime in any
manner whatsover–Appellant held liable to be acquitted. Appeal allowed. Madhu v.
State of Kerala, 2012 (1) Crimes 148 (SC).
Circumstantial evidence–Incriminating circumstances–It is obligatory on the part of
the accused while being examined under section 313 Cr.P.C. to furnish some
explanation with respect to the incriminating circumstances associated with him. Court
must take note of such explanation even in a case of circumstantial evidence in order to
decide, as to whether or not, the chain of circumstances is complete. Pudhu Raja v.
State, 2013 (7) RCR (Cri.) 1 (SC).
Murder case–Accused husband suspected that deceased wife had illicit relations
with her son-in-laws. Accused poured petrol on her and set her on fire-conviction based
on circumstantial evidence–
(i) Accused was seen running away from bedroom of deceased.
(ii) Defence of accused that deceased caught fire from kerosin oil lamp was not
admitted as evidence showed that he purchased petrol which was used to burn
the deceased.
(iii) Accused went to police station and reported that deceased had caught fire and
he tried to save her but no burn injuries were found on his body. Jose v. State of
Kerala, 2013 (3) [Link] 389 (SC).
Circumstantial evidence in Murder case–Principles summed up–
(i) The circumstances from which an interference of guilt is sought to be proved
must be conjointly or firmly established.
(ii) The circumstances should be of a definite tendency unerringly pointing towards
the guilt of the accused.
(iii) The circumstances taken cumulatively must form a chain so complete that there
is no escape from the conclusion that with an all human probability, the crime
was committed by the accused or none else.
(iv) The circumstances should be incapable of explanation on any reasonable
hypothesis same that of the guilt of the accused. Shanti Devi v. State of
Rajasthan, 2013(2) RCR (Cri.) 102 (SC).
 Circumstantial evidence–Principles to base conviction on the basis of circumstantial
evidence enunciated–
(i) The circumstances from which the conclusion of guilt is to be drawn should be
fully established.
(ii) The facts so established should be consistent only with the hypothesis of the
guilt of the accused, that is to say, they should not be explainable on any other
hypothesis except that the accused is guilty.
(iii) The circumstances should be of a conclusive nature and tendency.
(iv) They should exclude every possible hypothesis except the one to be proved, and
(v) There must be a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the accused and
must show that in all human probability the act must have been done by the
accused. Vadlakonda Lenin v. State of A.P., 2013 (2) RCR (Cri.) 82 (SC).
Section 300–Circumstantial evidence–In this case, the accused was well acquainted
with the deceased and developed friendship and intimacy with deceased. The deceased
was last seen alive in the company of accused. The time gap between accused and
deceased last seen together and the time deceased was found dead was so proximate
that the same pointed towards the guilt of accused. The accused failed to explain about
the company of the deceased and role thereof. The post-mortem report stated that
injury could have been caused by striking with butt of a short firearm. Recovery of short
firearm at the instance of accused was established. The confessional statement of co-
accused was also a strong mitigating circumstances against accused. The circumstances
firmly established complete chain pointing towards guilt of accused. Kirti Pal v. State of
West Bengal, 2015 Cr. L.J. 3152 (SC).
Section 300–Circumstantial evidence–In the instant case the wife of the deceased
filed a complaint alleging that the accused came to her house and took her husband and
thereafter her husband never returned home. Wife of the deceased claimed to have
witnessed the occurrence during which accused persons assaulted the deceased. No
reliance could be placed on the improved testimony of wife of decased. Though bones
and clothes of deceased were seized after 7 days but they were not in persunant to the
information by the accused no chain of circumstances has been completed and mere on
the ground of last seen accompany with deceased is not safe. Conviction of the accused
set aside. Rambraksh @ Jalim v. State of Chhatisgarh, 2016 Cr. L.J. 2939 (SC).
Section 300–Circumstancial evidence–In the instant case, the accused was alleged to
have committed murder of his wife and two daughters and threw their dead bodies into
sever, the accused while returing had exhausted his fuel in the bike, so he dropped his
wife and daughters and went back to get fuel from the petrol pump and when he
returned in 15-20 minutes, there was no sign of his wife and two daughters. There was
no explanation as to why did the parents of deceased wife did not make any complainant
or F.I.R. immediately after recovery of dead-bodies. There was a delay of one month in
filing the F.I.R. Lack of justified motive adversely affected the case of the prosecution.
Which was based solely on circumstantial evidence. The fact that accused asked his
collegue to prepare dinner, filing of the missing report on next morning and leaving the
family at a particular place could not be treated as incriminating piece of evidence.
Hence, guilt of the accused was not proved beyond reasonable doubt. Conviction set-
aside. Ashok v. State of Maharashtra, 2015 Cr. L.J. 2036 (SC).
Section 300–Circumstancial evidence–The accused person was alleged to have
kidnapped the victim minor girl and after ravishing her, the accused murdered her. The
accused was last seen taking the victim on his bicycle under th guise of offering her
chocolates. The dead body of the victim and certain articles were recovered at the
instance of accused. The injury report depicted injuries on private parts of the victim
girl caused by forcible sexual intercouse. The death was caused by accused by battering
with stones. Blood group on stone matched with the clothes of the accused. The chain of
circumstances has been completed and incriminating circumstances has been
established. Conviction upheld. Vasanta Sampat Dupavee v. State of Maharashtra, 2015
Cr.L.J. 774 (SC).
Section 300–Circumstantial evidence–Complainant had organised a Jagran on offside
of village in which relatives of complainant including his seven yrs old daughter had
assembled. She was found missing and the dead body of the victim was found in a
neighbouring village in naked condition with injuries on her private parts and her head
smashed with a stone lying nearby. The medical report confirmed her homicidal death.
The witnesses had stated that the accused also participated in the Jagran alongwith
other villagess. The blood-stained clothes of blood group of deceased were recovered at
the instance of accused. The circumstances formed a complete chain pointing towards
guilt of accused. Held accused was guilty of rape and murder. Durga Ram @ Gunga v.
State of Rajasthan, 2015 Cr.L.J. 1403 (SC).
Section 300–Circumstantial evidence–It has been decided by the court that last seen
together itself is not a conclusive proof but along with other circumstances surrounding
the incident like relations between the accused and deceased, enmity between them,
previous history of hostility, recovery of weapon from accused etc. non-explanation of
death of the deceased may lead to a presumption of guilt. Ashok v. State of
Maharashtra, 2015 Cr.L.J. 2036 (SC).
Section 300–Circumstantial evidence–The chain of circumstantial evidence pointing
towards guilt of accused above is complete. Conviction of accused was held just and
proper. Shantanu Sitaram v. State of Maharashtra, 2018 Cr.L.J. 3605 (SC).

Corpus Delicti
There are cases in which dead body is not forthcoming, nor there is direct evidence
of murder. The case hinges upon circumstantial evidence only. In such case, is absence
of dead body detrimental? There are cases in which, it is impossible to prove corpus
delicti by direct or positive evidence. The corpus delicti of a crime is the body of the
substance of the crime charged. It involves two elements (i) injury to a specific person
(ii) criminal agency of someone in producing that injury. It is not essential that accused
must always be seen causing the injury or destroying the dead body.
According to Wharton’s Criminal Evidence, Corpus delicti which is the body of the
substance of crime normally contains two elements (a) the end result of an act as death
in a case of homicide and (b) the fact that the end results so produced by a criminal act
e.g. death was caused by killing. It can be proved by circumstantial evidence.
In a criminal prosecution, one of the essential factors to be proved to a moral
certainty is the Corpus delicti.
But discovery of dead body is not always essential as held in Rama Nand 1981
Cr.L.J. 298 (SC). Discovery of dead body of the victim bearing physical evidence of
violence has been considered as the only mode of proving corpus delicti. Indeed very
many cases are of such a nature where the discovery of dead body is impossible. A blind
adherence to this old ‘body’ doctrine would open the door wide for many a heinous
murderer to escape with impunity simply because they were cunning and clever enough
to destroy the body of their victim where the dead body is not found, other cogent and
satisfactory proof of homicidal death of the victim must be adduced by the prosecution.
Such proof may be by direct ocular account of an eye witness or by circumstantial
evidence or by both. But where the fact of corpus delicti to homicidal death is sought to
be established by circumstantial evidence alone, the circumstance must be of a
clinching and definitive character leading to the inference that victim concerned has
met a homicidal death. Even so this cannot be extended requiring absolute proof.
Perfect proof is seldom to be had in this imperfect world and absolute certainty is a
might. This is why under section 3 Evidence Act a fact is said to be ‘proved’ if the court
considering the matters before it considers its existence so probable that a prudent man
under the circumstances of the particular case to act upon the supposition that it exists.
The corpus delicti or homicidal death can be proved by telling and inculpating
circumstances which definitely lead to the conclusion that within all human probability
the victim has been murdered by the accused concerned. See also 1988 Cr.L.J. 1293.
In Kaju, 1985 Cr.L.J. 367, The dead body severed in two pieces was found in two
gunny bags which were drowned with the help of heavy stones inside the tank. The body
was identified by son and son-in-law of deceased. The fact of identification was not
challenged in cross-examination. Though decomposed, it was not taken from the doctor
that decomposition was such as to render identification difficult or impossible. The
Corpus delicti was held to be proved. So where the dead body is not forthcoming,
murder can still be proved by other cogent and satisfactory proof of homicidal death
which can be by ocular account of an eye witness or by circumstantial evidence–Telling
and inculpating circumstances which definitely lead to the conclusion that within all
human probability, the victim had been murdered by the accused. In case Ramanand,
1981 Cr.L.J. 306, the Supreme Court relied upon the following circumstances when the
accused had alleged that it was a suicidal death by jumping into river:
(i) The accused had a strong motive to kill his wife (proved from letters).
(ii) The clothes left at the bank of river were falsely planted by accused and were
not her’s.
(iii) She was planting chillies at the time of death was false.
(iv) The ornaments always being worn by deceased and her basket and umbrella
were recovered from accused’s house.
(v) The hair sticking to Prandah found in jungle were established to be her by
Forensic Expert.
(vi) A burnt marks was identified to be her’s on discovery of a legless decomposed
corpse from the river.
In 1957 S.C. 381 : 1957 Cr.L.J. 559 Rama Chandra, it was held that conviction for an
offence does not necessarily depend upon the corpus delicti being found. There may be
reliable evidence direct or circumstantial of the commission of murder though the
corpus delicti are not traceable. Also 1990 Cr.L.J. 385.
In Sevaka Perumal, AIR 1991 SC 1462, a decomposed body was recovered, held, the
fact of death of the deceased must be established like any other fact. Corpus delicti in
some cases may not be possible to be traced or recovered. After a murder being
committed if the dead body is thrown to a flowing tidal river or stream or burnt out, it is
unlikely that dead body would be recovered. So offence of murder may be proved by
direct or circumstantial evidence even if the dead body is not found.
Recovery of dead body at instance of accused doubtful–Contradictory statements of
witnesses as regards time and place where accused had made the statement–
Circumstances regarding last seen, and evidence of child witness, doubtful and not
proved–Motive of accused to kill his own brother not established–Circumstantial
evidence not unerringly and conclusively lead to only hypothesis that accused had
caused death of his brother–Accused can not be convicted. Narain v. State of Madhya
Pradesh, 1998 Cr.L.J. 3183 (MP).
Identity of corpus delicti–Over whelming evidence to show that dead body on which
autopsy was conducted was that of victim–Sister of victim also was first to identify dead
body of his uncle–Fact that age of dead body was estimated by doctor who saw material
in such case when opinion was given by notice doctor without conducting any medical
tests in that regard–Opinion of such notice doctor that penis of dead body had
undergone religious circumcision–Also not material when senior doctor who conducted
post mortem examination did not find any evidence of such circumcision on dead body–
Plea that identify of corpus delicit was not established–Cannot be allowed. State of West
Bengal v. Mir Mohd. Omar, 2000 Cr.L.J. 4047 (SC).
Murder–Dead body burnt and only bones recovered–Even in the absence of the
corpus delicti, it is possible to establish in an appropriate case commission of murder on
appropriate material being made available to the court. State of Karnataka v. M. V.
Mahesh, 2003 (1) Crimes 459 (SC).
Corpus delicti–In a trial for murder, it is neither an absolute necessity nor an
essential ingredient to establish corpus delecti–The fact of the death of the deceased
must be established like any other fact–If the recovery of the dead body is to be held to
be mandatory to convict an accused, in many a case the accused would manage to see
that the dead body is destroyed to escape punishment. Mani Kumar Thapa v. State of
Sikkim, AIR 2002 SC 2920.
Murder–Accused took away dead body after murder–Dead body not found
thereafter–Cogent evidence against accused for commission of offence–Conviction
upheld–It is not at all necessary for a conviction for murder that the corpus delicti be
found–By virtue of their special knowledge accused must offer an explanation which
might lead the court to draw a different inference–Even though section 106 of the
Evidence Act may not be intended to relieve the prosecution of its burden to prove the
guilt of the accused beyond reasonable doubt, but the section would apply to cases like
the present, where the prosecution has succeeded in proving facts from which a
reasonable inference can be drawn regarding death. Ram Gulam Chaudhary v. State of
Bihar, AIR 2001 SC 2842.
Section 302–Corpus Delicti–Recovery of–In a murder case, it is not necessary that
the dead body of the victim should be found and identified i.e. conviction for offence of
murder does not necessarily depend upon corpus delicti being found. What is required
in law to base a conviction for an offence of murder is that there should be reliable and
plausible evidence that the offence of murder like any other factum of death was
committed and it must be proved by direct or circumstantial evidence albeit the dead
body may not be traced. The corpus delicti in a murder case has two components–death
as result and, criminal agency of another as the means. where there is a direct proof of
one, the other may be established by circumstantial evidence. Prithipal Singh v. State of
Punjab, 2011 (4) Crimes 259 (SC).
In 1974 Cr.L.J. 43 State v. Sardara, conviction was based on circumstantial
evidence, when dead bodies were highly decomposed and not identifiable.
In 1972 Cr.L.J. 1108 (Mysore) in re Surchand Ramji Chavan “once the crime is
established, whether or not the dead body is available the accused can be punished.”
The conviction was based upon the recovery of bones and clothes of deceased from a pit
as a result of disclosure statement of accused under section 27 Evidence Act.
Also See, 1963 S.C. 74 Reghav PrapanaTripathi and 1970 Cr.L.J. 403 Bhulakiram
Koiri, Death must be proved to be homicidal.
There was no eyewitness of the occurrence and the conviction was sought to be
based on circumstantial evidence. 1975 SC 258 : 1975 Cr.L.J. 282, State of Punjab v.
Bhajan Singh held.
“There was no evidence on record to show that two dead bodies recovered in
pursuance of disclosure statement of Bhajan Singh accused were identifiable. Question
then arises if these deaths were homicidal. So far as this aspect is concerned, Dr. Saluja
has deposed that he found no marks of ligature on either of the two dead bodies.
According further to the doctor he could not find cause of death as these were in a
decomposed state. In view of this, it could not be held the deaths were homicidal.”
Appeal against acquittal was dismissed
Evidence of last seen together accused and deceased is an important link in the
chain of circumstances. As held in 1983 Cr.L.J. 94, G. Gabriel Supreme Court held,
“True it is, a murder case that the deceased was last seen in the company of accused is
an important link in the chain of circumstances pointing to the guilt of the accused but
it cannot be deemed to be conclusive unless it is further established that during the
interval of the time when they were last seen together and the time at which the victim
died every circumstance was inconsistent with the innocence of the accused.
The evidence of last seen together was not deemed sufficient when dead body was
recovered long after the date of disappearance and the identity of dead body was
proved. 1987 Cr.L.J. 1058 Phugo. In 1986 518 Bhopa Sarwad, deceased going in
company of accused, thereafter found missing and his body recovered from well.
Accused found selling ornaments of deceased next day in another place. Held sufficient
for conviction.
In a case of stabbing of partner by accused, the circumstance of previous enmity,
the capture of accused with knife, blood stained clothes and his handling over to police
by passersby was held to be enough circumstantial evidence for conviction. 1988 S.C.
615, Dyaram.
In 1988 Cr.L.J. 866, Jagtar Singh (an appeal against acquittal) the Supreme Court
set aside acquittal on basis of sufficient circumstantial evidence viz. deceased hit by
tractor handle; handle blood stained; recovered on disclosure statement by accused;
injuries by handle sufficient to cause death.
The only circumstance proved was the deceased and accused were last seen
together on the day of occurrence; Held in Parkash Sen 1988 Cr.L.J. 1275 that this was
insufficient; it may raise suspicion but it cannot take place of proof.
 Amar Layak 1988 Cr.L.J. 1293. Circumstantial evidence (i) Dead body of victim not
discovered, only skull and skeleton on showing of accused (ii) last seen with deceased
(iii) Recovery of pair of slippers remnants of wearing apparel of deceased and his cycle
on showing of accused (iv) extra Judicial confession-Held sufficient. Homicide death was
proved from other cogent and satisfactory evidence.
In 1984 Cr.L.J. 1738, Sharad Biroh Chand, in a detailed discussion, the Supreme
Court held as to what circumstances would be sufficient as under:
“It is well settled that the prosecution must stand or fall on its own legs and it
cannot derive any strength from the weakness of the defence. Where various links in a
chain are in themselves complete, then a false plea or a false defence may be called into
aid only to lend assurance to the court. In other words, before using the additional link
it must be proved that all the links in the chain are complete and do not suffer from any
infirmity. It is not the law that there is any infirmity or lacuna in the prosecution case,
the same could be cured or supplied by a false defence or a plea which is not accepted
by a court.
Before a false explanation can be used as additional link, the following essential
conditions must be satisfied:
(1) Various links in the chain of evidence led by the prosecution have been
satisfactorily proved;
(2) The said circumstances point to the guilt of the accused with reasonable
definiteness; and
(3) The circumstance is in proximity to the time and situation.
If these conditions are filled only then court can use a false explanation or a false
defence as an additional link to lend an assurance to the court and not otherwise.”
(Paras 158, 159, 160)
The following conditions must be fulfilled before a case against an accused based on
circumstantial can be said to be fully established.
(1) the circumstances from which the conclusion of guilt is to be drawn should be
freely established. The circumstances concerned must or should and not
‘maybe’ established,
(2) the facts so established should be consistent only with the hypothesis of the
guilt of the accused that is to say. They should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable
ground for the conclusion consistent with the innocence of the accused and
must show that in all human probability the act must have been done by the
accused. It is difficult to support charge of conspiracy with direct evidence in
every case but if the prosecution relies upon prosecution evidence, a clear link
has to be established and the chain has to be complete otherwise it would be
hazardous to accept a part of the link as a complete one and on the basis of
such incomplete evidence, the allegation of conspiracy cannot be accepted.
1987 S.C. 955 P. Hans Jaidev v. State of Bihar.
Accused absconding after occurrence may lead to the other evidence establishing
the guilt of the accused but by itself, it is hardly any evidence of his guilt. Absconding is
a weak link in the chain of circumstances and is not conclusive of guilt or guilty
conscience. Further case cannot be said to proved by mere false plea of alibi. Adikanda
1988 Cr.L.J. 1884.
Accused had killed her husband and buried the dead body which was later recovered
in highly decomposed state subsequent to her confession in the presence of Tehsildar.
The post-mortem revealed only one injury when she confessed to have given 4 injuries
on head. The Supreme Court held that the discrepancy in observation of injuries may be
due to decomposition. But the judicial confession, recovery of dead body at her instance
clearly proved case against her Manguli Devi, 1989 S.C. 483.
 Munir Ahmed 1989 S.C. 705, Case of circumstantial evidence plus testimony of eye-
witness. Conflict of description of fatal injury when eye witnesses and injured witnesses
ascribed it to sharp side of Barchhi. Doctor also supported this. Later Medical Board
was constituted which said injury was due to hard and blunt substance. The conviction
was based on positive evidence of doctor who held post-mortem; dying declaration and
evidence of injured witnesses. The discrepancy in the weapon did not make the material
difference due to lapse of time when Board examined the injury.
Murder by strangulation–Circumstantial evidence–Accused last seen in company of
deceased–Found in possession of jewels belonging to deceased–Statement by accused to
prosecution witness that bite mark on his chest was caused by deceased when she was
strangulated-press button in shirt of accused was discovered at the scene of occurrence-
Held, in circumstances that it was the accused and nobody else had caused death of
deceased. N. Rajan 1994 Cr.L.J 322 (Ker.).
Motive in Murder Cases
There is always a motive for the crime but motive being a state of mind, it is best
known to the offender himself as to why he was actuated to commit crime. Motive may
be difficult to prove but there exists various factors from which at least an inference
about motive can be drawn. It may be previous enmity, greed, ill will against the
deceased, sudden dispute, domestic trouble frustration, anger, etc.
(Section 8 Evidence Act). If motive is established then it is an additional circumstance
against the offender. In case there is direct evidence of murder, motive may not be even
proved but in cases resting upon circumstantial evidence alone, motive is necessary to
be proved always.
It was held in Lakshami Jena, if motive is absent court must examine evidence led by
prosecution with great care before adopting it. But existence of direct evidence pointing
to criminality of accused, motive looses much of its significance. Absence of motive does
not disprove a murder charge. Though it is a sound proposition that every criminal act
is done with a motive, it is unsound to suggest that no such criminal act can be
presumed unless motive is proved. After all, murder is a psychological phenomenon.
Mere fact that prosecution failed to translate that mental disposition of the accused into
evidence does not mean that no such mental condition existed in the mind of the
assailant–Koshy 1991 Cr.L.J. 776 (Ker.). 1987 Cr.L.J. 180 Deodan. In case 1987 (I) the
Supreme Court 103, Radha Kishan v. State of Haryana there was no motive for the
occurrence, conviction was modified from 302 to 304 (1) Failure to prove motive is not
material. 1987 S.C. 1268 in Lakan 1990 Cr.L.J. 463, motive as alleged by prosecution
was not established. But when a case was of direct evidence where eye witnesses have
been examined to prove the incident, in such a case motive does not play an important
role. In case 1988 Cr.L.J. 1828 Santosh Kumar, the Calcutta High Court held that there
was no necessity for prosecution either to allege or prove motive in any criminal case
whether based on direct or circumstantial evidence or a combination of both. In case
there was red handed capture of accused who had killed with knife.
In circumstantial evidence, however, the motive is an important factor and if it is
found that accused had no motive to commit the offence, the evidence bearing on his
guilt has to be examined with great care before acceptance. Adikandu, 1988
Cr.L.J. 1884.
In case of unimpeachable evidence connecting accused with crime, failure on part of
prosecution to establish motive is not of much consequence, 1988 Cr.L.J. 1913.
Another principle- Motive or malice very essential to prove a case of murder where
the act of accused is without any criminal intention. In 1989 Cr.L.J. 196, Pattreswe it
was an involuntary act of accused in sleep to kill his sleeping brother. No motive or
malice. Held no murder. Motive is a double edged weapon. Enmity may be motive for
false implication, 1989 Cr.L.J. 1595 Ram Parkash.
(i) Where the positive evidence against the accused is clear, cogent and reliable,
the fact that prosecution has failed to adduce any evidence about motive loses
all importance. 1956 S.C. 460; 1956 Cr.L.J. 827 Gurcharan Singh.
(ii) In this case which was based upon circumstantial evidence, it was held “what
moved Rajinder Kumar to commit this crime is not clear... let us assume that
even evidence of strained relations had not been given. That can be no reason
 for the evidence as regards the other circumstances, that had been adduced or
for hesitating to draw the inescapable conclusion from them. The motive
behind a crime is a relevant fact of which evidence can be given. The absence
of motive is also a circumstance which is relevant for assessing the evidence.
1966 S.C. 1322, 1966 SCC 281 Rajinder Kumar.
(iii) Murder–Circumstantial evidence–Accused husband alleged to have caused
death of his wife by throttling her neck–Presence of accused in his home on day
of occurrence was natural–Extra-Judicial confession inconsistent and doubtful–
Failure on part of prosecution to prove that there was motive- Medical
evidence not showing that the cause of death was by way of throttling–Delay in
lodging F.I.R. not satisfactorily explained–Prosecution failed to prove guilt
against beyond reasonable doubt–Acquitted of accused, proper–State of
Rajasthan v. Mohd. Sahid, 1994 Cr.L.J. 391 (Raj.)
(iv) This was a case of death by poisoning resting upon circumstantial evidence
alone. Held neither motive, nor administration of poison nor its possession was
proved. Held further, if in a criminal case, motive as to circumstance is put
forward, it must be fully established like any other incriminating
circumstances. 1971 Cr.L.J. 7, 1972 S.C. 54 Udaipal Singh. In cases depending
upon circumstantial evidence, strong motive is very material to be proved,
further if such an accused had on opportunity to commit crime, it will be
sufficient for his conviction. 1972 S.C., 656, 1972 Cr.L.J. 473 Ram Gopal. Even
without proof of motive, if other circumstances clinching, conviction can be
based, Tulabiram, 1984 Cr.L.J. 209.
(v) In cases depending upon circumstantial evidence the absence of motive is a
strong circumstance in favour of the accused. Motive assumes importance only
when case rests upon circumstantial evidence. 1973 Cr.L.J. 481.1973 Cr.L.J.
723, Shahabudin (Rajasthan).
(vi) Mere absence of a strong motive; for committing an unnatural crime as
patricide or the mode of its commission cannot be of assistance to the accused,
if the murder could be proved otherwise. 1974 S.C. 1193 : 1974 Cr.L.J. 901
Datar Singh.
(vii) The failure of prosecution to prove motive does not mean that prosecution case
was to be thrown away altogether. It only casts a duty on the court to
scrutinize the other evidence particularly of the eye-witnesses, with great care.
1975 S.C. 118 : 1975 Cr.L.J. 66 Nachhattar Singh.
(viii) It is never incumbent on the prosecution to prove the motive for the crime.
Often times, a motive is indicated to heighten the probability that the offence
was committed by the person who was impelled by that motive. But if the crime
is alleged to have been committed for a particular motive, it is relevant to
enquiry whether the pattern of the crime fits in with the alleged motive. 1974
SCC 203, State of U.P. v. Hari Parsad, 1974 S.C. 1740.
(ix) Murder and Theft–Circumstantial evidence–Causing injuries on head and
squeezing of testicles of deceased–Gold chain and wrist watch of deceased
were missing–Accused last seen in company of deceased–Reliable testimony of
disinterested witness–Arrest of accused, his pointing out jeweller to effect
seizure of Gold chain pledged by him within short period of incident–Leads to
inference that accused was not only thief but also murderer–Chain of
circumstance complete and strong–Conviction of accused–No interference–
Gopal @ Arunthava Selvan, 1994 Cr.L.J. 853 (Mad.).
(x) Where independent evidence is available to prove the murder charge against
the accused the question of motive become more or less academic. 1975 S.C.
1262 Padd Narayana; where there is direct evidence motive will fall into
insignificance. Philips 1980 Cr.L.J. 171.
(xi) Motiveless murder not necessarily act of mad man. 1975 Cr.L.J. 624 Dalip
Kumar.
(xii) Accused forgoing sale deed in respect of land of victim: Suit by victim against
accused: accused had motive to kill victim. Chand Mia 1990 Cr.L.J. 1387 (Gau).
 (xiii) It was held that motive ceases to be relevant if there are eye-witness and clear
intention to cause death. In 1983 (2) C.L.R. 339 Jograj.
(xiv) Where the services of the accused, a domestic servant were terminated after
humiliating him, that would be a motive for him for murdering the child of his
master and though it was a weak motive it would add to the guilt of the
accused when circumstantial evidence proved it. 1990 Cr. L.J 2483 (MP).
(xv) Murder–Motive–Deceased had lodged complaint against accused for attempt to
outrage modesty of his niece–Ocular evidence of eye-witness credit worthy and
corroborated by medical evidence–Report of Murder not made immediately
during night out of fear–Not unusual–No under delay in lodging F.I.R.–Offence
against accused proved and his conviction sustained–However, co-accused had
no motive or animus against deceased not he was carrying any weapon–It was
doubtful that he had accompanied accused–He is acquitted giving benefit of
doubt. Daljit Singh v. State of Punjab, 1997 Cr.L.J. 2948 (P&H).
(xvi) Section 300–Murder–Motive–Deceased shot at while travelling in Rickshaw–
Proof–Motive not necessary when fact of murder is amply proved by evidence.
Surendra Narain v. State of U.P., 1998 Cr.L.J. 359 (SC).
(xvii) Section 300–Murder–Motive Brickbatting on house of victim made by accused–
Victim went to house of accused to lodge protest–There was exchange of hot
words–It is not unnatural for accused to go to extent of killing that person–
Previous enmity not necessary–Evidence of eye-witnesses, fully supported
prosecution story and corroborated by medical evidence–In view of
unimpeachable eye-witness, motive become inmaterial–No reason for fabe
implication–Recovery of knife made at instance of accused–Assault was
deliberate and with full knowledge and intention to kill–Conviction of accused,
sustained. Shakoor v. State, 1998 Cr.L.J. 1591 (All).
(xviii) Section 300–Murder–Motive proved–Evidence of eye-witnesses truthful and
corroborated by other evidence–Merely because one eye-witness was closely
related to deceased his evidence cannot be discarded–F.I.R. lodged promptly
with meticulous details–Occurrence took place in broad daylight–Non-
examination of independent witness not fatal to prosecution case–Guilt of
accused proved beyond doubt–Conviction sustained. Jata Shankar v. State of
U.P., 1999 Cr.L.J. 3009 (All).
(xix) Section 300–Murder–Circumstantial evidence–Motive–Accused having business
dealings with deceased–Prosecution failed to prove that supply of goods was
made to accused on credit–Alleged motive for murder i.e. to avoid payment
belied and falsified–Close proximity of accused with deceased not proved–
Accused not absconding during period when murder committed–Recovery and
identification of dead body doubtful–Disclosure statement regarding place of
throwing deadbody, or recovery of weapon of murder from residence of
accused, not proved–None of circumstances leading to guilt of accused
cogently and firmly proved–Accused entitled to be acquitted. Rajesh Sharma v.
State of H.P., 2000 Cr.L.J. 1869 (HP).
(xx) Motive–Murder case–Motive in murder case is of little importance–But if the
case is based on circumstantial evidence, then motive assumes greater
importance–Normally there is a motive behind every criminal act and that is
why investigation agency as well as the court while examining the complicity of
an accused tries to ascertain as to what was the motive on the part of the
accused to commit the crime in question. Ved Prakash @ Bhagwan Dia v. State
of Haryana, 2006 (3) RCR (Cri.) 993.
(xxi) Murder–Motive–Prosecution version that accused (Mother-in-law of deceased)
was a woman of loose character and unwanted people visited her for sexual
activities–Deceased (daughter-in-law) used to stop the accused from such
activities–On this account accused poured kerosene oil on deceased and set her
on fire–Prosecution version not believed–Accused was aged 82 yrs. old and
walked with stick with difficulty–Motive for commission of offence has
demolished prosecution case completely. It was in fact a case of suicide.
Harbans Kaur v. State of Punjab, 2006 (3) RCR (Cri.) 897.
 (xxii) Double Murder–Motive–Prosecution version that accused along with a hired
accused killed his wife and son aged 6 yrs, because they had acute differences–
No independent witness produced from vicinity to prove differences–Matter
was never reported to police–It is dangerous to accept such a motive to convict
the accused–Death sentence set aside, inter alia, on this ground. Gopichand v.
State of Haryana, 2005 (4) RCR (Cri.) 778.
(xxiii) Motive–Murder–Case based on circumstantial evidence–Not proved–Conviction
set aside–In a murder case, which is based as circumstantial evidence, motive
plays a vital role–When there is no motive, then the link in the chain is missing.
Raj Kumar v. State of Haryana, 2005 (2) RCR (Cri.) 133.
(xxiv) Motive–Murder case–Motive per se is not a ground for conviction of an accused
and absence thereof no reason for acquittal Tehal Singh v. State of Punjab,
2003 (3) RCR (Cri.) 202.
(xxv) Motive–Murder case–When the basic foundation of the prosecution case
crumbled down, the motive becomes inconsequential–Animosity is double-
edged sword–It could be a ground for false implication, if could also be ground
for assault–Motive, however strong merely creates a suspicion–Suspicion can
not take the place of proof of guilt–Acquittal upheld. State of Punjab v. Sucha
Singh, AIR 2003 SC 1471.
(xxvi) Motive–Cogent evidence that it was accused who committed the offence–
Absence of proof of motive does not vitiate the prosecution case. State of
Karnataka v. M.N. Ramdas, AIR 2002 SC 3109.
(xxvii) Murder–Motive–Merely because motive is neither alleged nor proved, the same
would ipso facto not affect the prosecution case but in case there are other
circumstances to create doubt regarding veracity of the prosecution case, this
may also become material. Dhananjay Shankar Shetty v. State of Maharashtra,
AIR 2002 SC 2787.
(xxviii) Motive–Murder of woman–Charge of murder against her husband and two
sisters–No motive against sisters proved–Sister acquitted. Jawahar Lal v. State
of M.P., AIR 2001 SC 2209.
(xxix) Motive–Commission of murder–Motive not proved–Effect on prosecution–
(a) There is no such principle or rule of law that where the prosecution fails to
prove the motive for commission of the crime, it must necessarily result in
acquittal of the accused–Where the ocular evidence is found to be
trustworthy and reliable and finds corroboration from the medical evidence,
a finding of guilt can safely be recorded even if the motive for the
commission of the crime has not proved.
(b) Every criminal act was done with a motive but its corollary is not that no
offence was committed if the prosecution to prove the precise motive of the
accused to commit it, as it is almost an impossibility for the prosecution to
unreveal the full dimension of the mental disposition of an offender towards
the person whom he offended.
(c) Motive for doing a criminal act is generally a difficult area for prosecution
as one can not normally see into the mind of another–Motive is the emotion
which impels a man to do a particular act and such impelling cause need
not necessarily be proportionately grave to do same crimes.
(d) Many a murders have been committed without any known or prominent
motive and it is quite possible that the aforesaid impelling factor would
remain undiscoverable.
(e) Absence of any evidence on the point of motive cannot have any such
impact so as to discard the other reliable evidence available on record
which unerringly establishes the guilt of the accused. Thaman Kumar v.
State of UT of Chandigarh, AIR 2003 SC 3975.
(xxx) Section 302 IPC–Motive–Motive alone can not form the basis of conviction.
However, in the light of the other circumstances, the motive goes a very long
way in forging the links in the chain. Santosh Kumar Singh v. State through
CBI, 2010 (4) Crimes 226 (SC).
 (xxxi) Section 302–Motive–The deceased was not good looking–She could not
conceive and could not bear a child in ten yrs.–She had to be married to
another bachelor male of the family under pressure from panchayat– Thus,
there was every reason for the accused to be unhappy with deceased. Bija v.
State of Haryana, 2008 (1) Crimes 129 (SC).
(xxxii) Section 302–Conviction of appellant on circumstantial evidence–Accused on
being arrested on 14-11-1994 got recovered certain stolen articles and
according to prosecution robbery was the motive for murder–Appeal– No
evidence to show as to how investigating agency was able to get any clue about
involvement of appellant and came to suspect appellant as murder–A gold
chain got recovered by accused from jeweller was not found proved by cogent
evidence that it belonged to deceased–Ruled out the prosecution story that
robbery was the motive for murdered Conviction could not be sustained.
Pradeep Gandhi v. State, 2010 (4) Crimes 723 (Del.).
Section 300–Murder Motive–Where the case of the prosecution was based wholly or
cicumstantial evidence, the genesis of the suspicion against the applicant being their
amorous association to the anguish disliking of the deceased, he being almost reduced
to helpless entity, having failed to prevent such liaison inspite of his best endeavours.
Though, there was some evidence suggestive of such an alliance between the acused
and co-accused wife of deceased at the relevant point of time but this per se cannot be
accepted as a decisive incriminating factor to deduce their culpabilities qua the change
of murder of the deceased. Nathiya v. State, 2017 Cr.L.J. 160 SC.
Section 300–Murder–Motive–In this case the complainant had deposed about the
existence of land dispute between the parties and regarding the same complaints were
made prior to the incident. The trial court had held that there was land dispute between
the parties and for the same, complainant had made the complaints to the police. It was
evident that the accused respondents had enmity with the complainant party over a land
dispute and complaint filed with the police over land dispute cannot be said to be an
after thought as the complaints were made prior to incident. Therefore, it can safely be
held that the accused had strong motive to commit the offence against the complainant
party. Sandhu Saran Singh v. State of U.P., 2016
Cr. L.J. 1908 (SC).
Section 300–Murder–Motive–In this case the accused was alleged to have committed
murder of his daughter through a gun-shot injury and also of his wife by throttling. The
motive of the accused was stated to be two fold-one being that he was in love with a girl
whom he wanted to marry but his wife and daughter were the hindrance. The other
immediate motive was the non-fulfilment of dowry demand by the father of the wife.
However, the alleged motive was not stated by the informant either in the F.I.R. or in
the statement before the police. Such motive was neither investigated nor established
by the prosecution. Hence, conviction can not be made on the basis of absence of
motive if other cogent and reliable facts duly corroborated which suggests the cause of
murder if the deceased. Mangu Singh v. State of U.P., 2016 Cr.L.J. 784 (SC).
Section 300–Motive–It was held that motive is a relevant fact and can be taken into
consideration under section 8 of the Evidence Act. Where the chain of other
circumstances established beyond reasonable doubt that it is the accused and accused
alone who has committed the offence, court cannot hold in the absence of motive of the
accused being established by the prosecution, the accused cannot be held guilty. Vivek
Kalra v. State of Rajasthan, 2013 Cr.L.J. 1524.
Section 300–Motive–In a case of circumstantial evidence motive may be considered
as a circumstance, which is a relevant factor for the purpose of assessing evidence, in
the event that there is no unambiguous evidence to prove the guilt of the accused.
Motive loses all its significance in a case of direct evidence provided by the eye-
witnesses, where the same is available, for the reasons that in such a case, the absence
or inadequacy of motive cannot stand in the way of conviction. R. Shafi v. State of
Kerala, AIR 2013 SC 651.
Section 300–Motive–Absence of motive does not break the link in the chain of
circumstances connecting the accused with the crime. Proof of motive or ill-will was
unnecessary to sustain conviction where there is a clear evidence. Bhim Singh v. State
of Uttarakhand, AIR 2015 SC 797.
Section 300–Motive–In this case, the accused was alleged to have committed murder
of deceased but their was non-explanation of the injuries sustained by the accused. The
motive of the accused was stated that he cut the rubber trees belonging to the brother
of the accused four years prior to the incident which was held by the court that it was a
not a sufficient motive to commit such a heinous crime. Need less to say that in this
case the motive is a double edged sword, as it can be a reason for crime and at the
same time a reason for false prosecution specially when the motive alleged is of ill-will
and bad blood. Evidence on record does not inspire confidence. Therefore, reliance on
the motive would not be safe and as such serves no purpose. Kanakarajan@Kanakan v.
State of Kerala, AIR 2017 SC 2779.

Extra Judicial Confession in Murder Cases

In many a case, where there is blind murder or there is no direct evidence
prosecution relies upon extrajudicial confession made by accused before any person
(Section 24 Evidence Act). It is immediately after the occurrence that accused confesses
before him and seeks his help in producing him before the police. In order to inspire
confidence, it depends upon the circumstances of each case under which the accused
confesses; the status or relationship of person before whom he confesses and if it
probable that he will confess keeping in view the secrecy and cruelty under which he
has committed murder. The evidence is not a weak type of evidence always.
Even if there is judicial confession, then too, as held in Kusda Balsa, 1986 Cr.L.J.
662, if conviction is to be based on confession recorded under section 164 Cr.P.C.
primarily two tests should be applied–(1) Whether confession was perfectly voluntary
(2) if it is so, whether it is true and trustworthy. It is permissible to believe part of
confession even.
The Police Officer while writing statement of a witness before whom the accused
had confessed crime should “write the exact words used by the accused.” Further facts
which weigh are:
(i) witness should be unbiased;
(ii) not even remotely inimical to the accused;
(iii) and in respect of whom nothing is brought out which may tend to indicate that
he may have a motive for attributing an untruthful statement to accused;
(iv) the words spoken by the accused are clear, unambiguous and unmistakably
convey that the accused is the perpetrator of crime;
(v) what prompted the accused to confess;
(vi) if it is immediate or after a great delay; if with delay, how the delay is
explained; and
(vii) it is voluntary.
(See Chapter ‘Confessions.)
The following cases may be helpful to appreciate this evidence:–
(i) The accused had made Extra Judicial Confession before independent witnesses.
It was held that Extra Judicial Confession is not a tainted evidence. If the court
believes the witnesses before whom the confession is made and it is satisfied
that confession is voluntary, then in such a case conviction can be based on
this evidence alone. 1975 S.C. 1320 : 1975 Cr.L.J. 1102 Maghar Singh.
(ii) Corpus delicti not present. Evidence of murder resting upon confession only.
Not safe to act upon confession to prove murder. 1957 S.C. 381 : 1957 Cr.L.J.
559 Ram Chandra.
(iii) The accused, a constable in Border Security Force had killed his wife and
threw her dead body in River Tawi. Wife’s uncle and cousin came to him later
and asked him as to what had happened to wife and he should tell the truth. On
this accused confessed that he had killed her with knife and threw her dead
body in the River Tawi. Held the confession was free from any legal infirmity
and was believed. This was me only evidence to connect the accused with
crime. 1975 S.C. 858 : 1975 Cr.L.J. 774 Darshan Lall.
 (iv) The accused had confessed before three witnesses living closely to the place of
occurrence with a knife in his hand. It was held that there was nothing
unnatural or improbable in this statement of accused which was immediately
made after the murder of the deceased. 1973 S.C. 1219, 1973 Cr.L.J. 489
Kashenath Krishna Jodhan.
(v) Murder–Extra Judicial Confession–Accused alleged to have confessed that he
hit deceased on head and other parts of body. His version as per confession
inconsistent with medical evidence–Conviction of accused solely on basis of
retracted extra-judicial confession–Not proper–Chhittar 1994 Cr.L.J 245 (SC).
(vi) Law does not require that evidence of Extra Judicial Confession should in all
cases be corroborated. Where Extra Judicial Confession was proved by an
independent witness who was responsible officer and who bore no grouse
against accused. Held hardly there was any justification to say that it was
tainted and weak evidence, especially when it was corroborated by the
recovery of an empty. 1977 S.C. 2274, 1977 Cr.L.J. Piara Singh and Others v.
State of Punjab.
(vii) The accused had made a confession before Ram Singh when police happened
to be in the village that day to produce him before police. Held the evidence of
extra-judicial confession is in the nature of things a weak type of evidence. If it
is lacking in probability, there should be no difficulty in rejecting it. “We had no
reason as to why the accused instead of surrendering himself before police
should go to the house of Ram Singh and blurt out a confession before him.”
1974 S.C. 1545 : 1974 Cr.L.J. 1010 Jagta.
(viii) It was a case of triple murder which had been committed in secrecy and most
cruel manner. The case was registered under section 364 I.P.C. and later on
offence was converted to section 302. The accused had confessed before
certain witnesses and requested them to produce before police. Held that the
evidence of extra judicial confession was weak type. It lacked plausibility. 1975
S.C. 258 : 1975 Cr.L.J. 282, State of Punjab v. Bhajan Singh.
 (ix) Before the court will act on extra judicial confession, the circumstances under
which the confession is made, the manner in which it is made, the person to
whom it is made will be considered along with two rules of caution. First
whether the evidence of confession is reliable arid secondly whether it finds
corroboration 1972 Cr.L.J. 566 (SC) Wakel Nayak.
(x) In State of U.P. v. M.K. Anthony, 1985 Cr.L.J. 493 (the Supreme Court).
Accused had killed his wife and two minor children due to poverty. Extra
Judicial Confession before a neighbour. Held by the Supreme Court;
“An Extra-Judicial Confession may be an effect of expression of emotion, a
conscious effort to stifle the pricked conscience; an argument to find excuse or,
justification for his act or a penitent, or remorseful act of exaggeration of his
part in crime.” Believed being before an unbiased person -No corroboration
even was necessary.”
Evidence Act (1 of 1872) section 3, 24, Extra-Judicial confession to chance
witness-Evidentiary value of; Mai Singh, 1983 Cr.L.J. 1911.
“Where the accused had made a confession to a person belonging to a distant
place immediately after the commission of the crime only on his having asked
them as to why they were running, his testimony and the confession made to
him could not be disbelieved merely because he was a chance witness and was
a close relation of the father of the deceased when his presence in the village
where the crime was committed was established by the documents prepared in
connection with the crime.
1983 Cr.L.J. 149–Heramba Pratima. Confession was made to an under trial of a
dacoity case, it was held “High Court erred in believing without examining the
credentials of the witness; without ascertaining the exact words used; the
reason or motive for making confession and the person selected in whom
confidence was reposed.”
(xi) Arjun Sahu, 1988 Cr.L.J. 1086. Evidence with regard to extra-judicial
confession, in order to be acted upon must stand the test of reproduction of
exact words and it must be shown by prosecution as to what was the reason or
motive for an accused to make extra-judicial confession and as to whether the
accused would repose confidence in the person before whom such a confession
is made. 1983 Cr.L.J. 149 (SC) followed.
(xii) Kishore Chand, 1990 Cr.L.J. 2289 (SC) An unambiguous extra-judicial
confession possesses high probative value as it emanates from the person who
committed the crime and is admissible in evidence provided it is free from
suspicion and suggestion of its falsity. The value of evidence as to the
circumstances in which it came to be made and the actual words used by the
accused.
(xiii) Khem Singh, 1992 Cr.L.J. 3848 (HP) Extra-Judicial Confession as to minder to
an unknown stranger by waking him at midnight is not believable. Conviction
on such alleged extra-judicial confession not proper.
 (xiv) Arjun Prodhan, 1992 Cr.L.J. 3614 (Ori) Extra-Judicial Confession to be
creditworthy should be made to a known person.
(xv) Badhna Kharia 1988 Cr.L.J. 1412. Extra-Judicial Confession is a weak piece of
evidence. But when the fact of extra-judicial confession is spoken by a person
having no reason to stale falsely against an accused it carries value and
material for deciding to point to the guilt of accused.
(xvi) Ghasiram Lakra v. State of Orissa, 1997 Cr.L.J. 939 (Ori.) Extra Judicial
Confession–Evidentiary value–Murder case–Accused alleged to have confessed
before brother of deceased–Neither exact words nor words substantially state
by accused reproduced–Presence of accused in front of his own house and
manner of confession, highly improbable–Extra judicial confession, not
acceptable.
(xvii) Vinayak Shivaji Rao Pol v. State of Maharashtra, 1998 Cr.L.J. 1558 SC Section
300–Murder–Extra-Judicial Confession–Made by accused who was a sepoy in
army to his senior officers–Statement found to be made voluntarily by accused–
Senior officers not found to be inimical to accused- Recovery of head of
deceased from a well which was within exclusive knowledge of accused at his
instance–Variation between minor details in statement of confession and in
evidence–Does not affect acceptability of confession–Confession can be relied
upon for convicting accused- No further corroboration necessary.
(xviii) Giddu v. the State of West Bengal, 1998 Cr.L.J 1798 (Cal.) Section 300–Murder-
Extra-judicial confession–Reliability–All accused alleged to have killed
deceased wife by strangulation–No eye-witness to occurrence–Evidence
regarding identification of dead body, doubtful–Extra-Judicial confession
alleged to be made before witness–unbelievable, uncorroborated and lacking
detail particulars–Facts and circumstances ruling possibility of making such
alleged extra-judicial confession–conviction on basis of alleged extra-judicial
confession, not proper.
(xix) Ravirajan v. State, 1998 Cr.L.J. 3086 (Mad.) Section 300–Murder–Motive–
Deceased allegedly making fun of accused about his demanding money from
his debtors–Cannot provide sufficient motive for accused to stab deceased.
(xx) Surinder Kumar v. State of Punjab, 1999 Cr.L.J. 267 SC Section 300–Murder–
Extra Judicial Confession–Accused persons alleged to have killed deceased,
veterinary doctor–No eye witness to occurrence–Alleged motive was that
accused was served with order of transfer and deceased was to reduce him–
Extra Judicial Confession made jointly by all accused, suspicious, improbable
and uncorroborated–Motive not relevant in absence of proof of any other
circumstance pointing of guilt to accused–Accused entitled to acquittal.
(xxi) Bisi chhuria v. The State, 1999 Cr.L.J 1078 Section 300–Murder–Extra- Judicial
Confession–Only two persons out of three before witness, a close relative of
accused–Testimony of said witness reliable and truthful–Delay of 20 days in
recording his statement explained by Investigating Officer–Conviction on basis
of extra judicial confession, proper.
(xxiii) Pema Ram v. State of Rajasthan, 1999 Cr.L.J. 2916 (Raj.) Section 300–Murder-
Extra Judicial Confession witnesses before whom extra judicial confession was
made by accused chose to disclose their knowledge to one prosecution
witness–That witness turning hostile–No corroboration to their statement
thereby made–Alleged confession also not properly proved–No eye witness
either to occurrence or coincident of throwing dead body in pool of water–
Accused entitled to benefit of doubt.
(xxiv) C.K. Ravindrran v. State of Kerala, 2000 Cr.L.J. 497 (SC). Murder–Witness who
alleged to have costly seen accused and deceased together, not agreeing with
each other so far as time factor in concerned–Motive on part of accused not
established by prosecution–Medical evidence not conclusive–Conviction of
accused for murder liable to be set aside.
(xxv) Section 302–Dead body of deceased was found in the room of his house–
Conviction of appellant recorded on basis of Extra-Judicial Confession made
before PW5 (Police)–Appeal–Extra-Judicial Confession was made by appellant 3
 or 4 days after the occurrence but PW5 gave his statement to police after 10
months. There was no explanation for keeping silent for such long period–
Evidence of PW5 was not worthy of acceptance–Conviction could not be
sustained. Dhira v. State of Punjab, 2008 (1) Crimes 711 (P&H).
(xxvi) Section 302–Conviction under on circumstantial evidence and extra-judicial
confession–Dead body of deceased was found and taken out from the well–Case
diary statement of witness was recorded after 8-10 days–Witness was present
in village when dead body was taken out from well but did not narrate incident
of previous evening to anyone and it created serious doubt in veracity of his
statement–PW3 who claimed to be witness of extra-judicial confession admitted
in cross-examination that he was not on speaking terms with appellant–PW6
other witness of extra-judicial confession did not give cogent reason about non-
disclosure about confession–Evidence of extra-judicial confession required
corroboration and in absence it could not be relied to base conviction–
Conviction set aside. Chhingram v. State of M.P., 2008 (1) Crimes 8 (M.P.).
(xxvii) Sections 302 and 201 IPC–Appellant convicted for murder of his wife–Trial
Court placed reliance on testimony of PW3 who claimed to be eyewitness and
PW2 before whom accused made extra-judicial confession–Appeal–PW3 in
cross-examination admitted that he had not seen when accused killed his wife
and hanged her body in night and came to know only in morning about
incident–PW2 was called in police station when accused made confession in
police station–So called extra-judicial confession made in presence of police in
police station was not admissible–Conviction could not be sustained. Sukuria
Naik v. State, 2008 (2) Crimes 674 (Ori).
(xxviii) Section 302 I.P.C.–Death by strangulation–Prosecution of appellant for causing
death of his wife by strangulating her neck–Conviction by trial court–Appeal–
Upheld by High Court–Appeal in Apex Court–Stand of the accused that the so
called extra-judicial confession made by the accused before PWs 10 and 13 was
not reliable and truthful– Interestingly, PW10 told the police about the extra-
judicial confession–This confession was disbelieved by High Court–The
evidence of PW10 had been referred to by the High Court–No evidence on
record as to who called PW10 to the spot of occurrence–No witness had spoken
about PW10 being called– After declaring deceased to be dead by doctor, there
was no necessity for calling PW 10–Held–Unsafe to convict accused appellant–
Appeal allowed. K. N. Narendranath v. State of Karnataka, 2009(2) Crimes 438
(SC).
Section 300–Extra-judicial confession–In this case, the accused was alleged to have
murdered the deceased. The evidence of witness before whom extra-judicial confession
was made by the accused that he had an altercation with deceased after consuming
liquor. Further, he assaulted the deceased with brick. The same was found believable
and evidence of said witness was also corroborated by the evidence of doctor who had
recorded the wound of person of accused, in the medical report. Soon after the incident.
Hence, motive had been proved by the prosecution but accused was covered by
Exception 4 to section 300 I.P.C. Sanjeev v. State of Haryana, 2015 Cr. L.J. 1669 (SC).

These following cases may be helpful to appriciate the evidence

(i) Murder–Confession before police–Accused committing the murder of his wife
and himself lodging F.I.R.–Contents of the F.I.R. are not admissible in
evidence–Contents are the confessional in nature–It is a statement made before
police officer and hit by provision of section 25 of Evidence Act–Statement of
accused given in F.I.R. that his wife abused him and provoked him at the time
to incident can used in favour of accused is prove motive or provocation.
Keshav M. Sangle v. State of Maharashtra, 2006 (3) RCR (Cri) 659.
(ii) Murder case–Extra judicial confession is not enough to convict the accused
when no other evidence was available. Gopal Thakur v. State of Haryana, 2006
(3) (Cri) 547.
(iii) Murder–Accused charged with offence of murder of girl on basis of making
extra-judicial confession–Murdered girl came back alive after about 2 and half
 years.–Accused then charged with offence under sections 203 and 211 I.P.C.
for giving false information to police of having murdered the girl–Proceedings
against the accused quashed–Charge-sheet under section 203/211 I.P.C. was
only to cover earlier lapse–State directed to pay cost of Rs. 10,000/- to each of
accused which is not compensation–It was open to accused to take action both
civil and criminal for misery suffered by them. Peruboyine Satyanarayana v.
State of A.P., 2006 (3) RCR (Cri) 300.
(iv) Murder–Extra judicial confession–No eye witness–Case based on extra–Judicial
confession made by accused persons to a social worker–They were not known
to each other–Extra-judicial confession could not be relied–It is wholly unlikely
that the accused would make extra-judicial confession to a person whom they
never knew–Conviction set aside. Sunny Kapoor v. State UT of Chandigarh,
2006 (2) Apex Criminal 287.
(v) Murder case–Extra judicial confession made by accused after 17 days of
commission of offence–No reason given as to why he waited for
17 days to confess guilt–Confession did not inspire confidence. Satinder Pal
Singh @ Sikander Singh v. State of Punjab, 2005 (4) RCR (Cri) 494.
(vi) Murder–Extra-Judicial confession by accused that he alongwith other two co-
accused committed the murder–Accused subsequently absconded and declared
P.O.–Accused thus not tried along with other two co-accused–Extra-judicial
confession made by accused cannot be admitted in evidence as he was not
tried along with other two co-accused–Extra judicial confession made by
accused could have been taken into consideration only when he was tried along
with the co-accused. Hardeep Singh Sohal v. State of Punjab through CBI, AIR
2004 SC 4783.
(vii) Murder–Extra judicial confession–Cannot be believed that accused would make
confession to a person who was inimical towards accused. Janak Rani v. State
of Punjab, 2004 (4) RCR (Cri) 885.
(viii) Murder–Accused made extra-judicial confession before a person who was his
classmate and schoolmate–No ground to disbelieve the confession–He was the
person on whom accused could repose confidence. Vilas Pandurang Patil v.
State of Maharashtra, AIR 2004 SC 3562.
(ix) Murder–Extra-judicial confession of accused full of facts starting from about 25
years. Prior to the date of the incident and graphically details what happened
over these years–Confession also gave graphic details of the nature of the
attack on the deceased and also mentions in detail the persons whom he saw
during and after the incident–Confession not believed–Held, this would hardly
be the natural conduct of an accused if he was voluntarily making a confession.
Thangavelu v. State of TN, 2002 Cr.L.J. 3558.
(x) Murder–Extra-Judicial confession–No eye-witness–Prosecution relied on extra
judicial confession made by accused before the P.W.–The P.W. was not a
Lambardar, nor a panch nor a member of any society nor well acquainted with
the accused–There was no reason for the accused to go to such a person to get
any protection–Extra-judicial confession not believed–Conviction set aside. AIR
1983 SC 295 relied. Tarachand v. State of Haryana, 2001 (2) RCR (Cri.) 496.
(xi) Murder–Extra-judicial confession–Accused committed murder of his father–
Made confession before his close relatives–Held, confession was voluntary on
following consideration–
(i) All the aforesaid witnesses are closely related to the accused in whom,
under the normal circumstances, he would have confided hoping help,
protection and being safeguarded.
(ii) Confession has been made instantaneously immediately after the
occurrence and not alleged to have been procured under any undue
influence, coercion or pressure.
(iii) Though the appellant expected a favour from the witneses, yet none of
them is stated to have promised to favour him in case he made a truthful
 statement regarding the occurrence. Gura Singh v. State of Rajasthan, AIR
2001 SC 330.
(xii) Murder–Extra Judicial Confession–Law enunciated by Supreme Court summed
up–
(i) Extra-Judicial Confession, if true and voluntary, it can be relied upon by
the court to convict the accused for the commission of the crime alleged.
Despite inherent weakness of extra judicial confession, as an item of
evidence, it cannot be ignored when shown that such confession was made
before a person who has no reason to state falsely and to whom it is made
in the circumstances which tend to support the statement.
(ii) Evidence in the form of extra-judicial confession made by the accused to
witnesses cannot be always termed to be a tainted evidence.
(iii) If the court believes the witness before whom the confession is made and
is satisfied that the confession was true and voluntarily made, then the
conviction can be founded on such evidence alone.
(iv) It is not open to the court trying the criminal case to start with
presumption that extra judicial confession is always a weak type of
evidence. It would depend on the nature of the circumstances, the time
when the confession is made and the credibility of the witness who speak
for such a confession.
(v) Retraction of extra-judicial confession which is a usual phenomenon in
criminal cases would by itself not weaken the case of the prosecution
based upon such a confession.
(vi) An unambiguous extra-judicial confession possesses high probative value
force as it emanates from the person who committed the crime and is
admissible evidence provided it is free from suspicion and suggestion of
any falsity.
(vii) Before relying on the alleged confession, the court has to be satisfied that
it is voluntary and is not the result of inducement, threat or promise
envisaged under section 24 of the Evidence Act or was brought about in
suspicious circumstances to circumvent sections 25 and 26.
(viii) Court is required to look into the surrounding circumstances to find out
as to whether such confession is not inspired by any improper or collateral
consideration or circumvention of law suggesting that it may be true. All
relevant circumstances such as the person to whom the confession is
made, the time and place of making it, the circumstances in which it was
made have to be scrutinised.
(ix) Extra judicial confession which is not obtained by coercion, promise of
favour or false hope and is plenary in character and voluntary in nature
can be made the basis for conviction even without corroboration. 1999(2)
RCR (Cri.) 285 (SC) relied and AIR 1987 SC 1507 distinguished. Gura
Singh v. State of Rajasthan, AIR 2001 SC 330.
(xiii) Sections 302/34 and 201/34 I.P.C.–Appellant were alleged to have killed
deceased by bow-arrow and made extra-judicial confession before panchayat–
Witnesses of extra judicial confession also did not support the prosecution–
Recovery of broken arrow, weapon of offence at the instance of accused with
no blood detected on it was of no help and even otherwise love circumstances
would not form a chain to prove guilt of accused–Conviction was liable to set
aside. Sana Kabari v. State, 2009 (2) Crimes 672 (Ori.).
(xiv) Section 302/34 I.P.C.–Conviction for offence on basis of extra-judicial
confession– Sustainability–Admissibility of such confession against co-accused–
Confession by A2 before village administrator. It was voluntary confession–
Court could act on confessional statement against co-accused if there were
other corroborated by other circumstances including medical report–No
evidence to show that A2 had any common intention for murder–conviction of
A1 was liable to be affirmed and A2 was liable to be set aside. Selva Kumar v.
State 2010 (3) Crimes 792 (Mad).
 (xvi) Section 302–Murder–Case based on circumstantial evidence–Appeal against
acquittal–PW2 had seen accused sleeping with deceased and next day accused
confessed before PW2 that he killed deceased who died because of
strangulation–Extra-judicial confession was a weak type of evidence–PW2 was
brother of deceased and thus could not be said to be neutral person–Acquittal
called for no interference. State of Karnataka v. Pamiyeravara Mani, 2011(4)
Crimes 596.

Importance of Injuries in Murder Cases

In cases injuries are found on the person of accused, then it is the duty of
prosecution to explain these injuries; how and in what manner these were caused. The
injuries as such are;
(a) explained;
(b) not explained;
(c) injuries are superficial;
(d) injuries are such which justify the plea of self-defence.
In State of Gujarat v. Fatma Bai 1975 Cr.L.J. 979, 1975 S.C. 1478 the Supreme
Court held at page 1004. “in situation like this when the prosecution fails to explain the
injuries on the person of accused depending on the fact of each case, any of the three
results may follow:–
(1) That the accused had inflicted injuries on the members of the prosecution party
in exercise of the right of self-defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge
against the accused cannot be held to have been proved beyond reasonable
doubt.
(3) It does not affect the prosecution case at all. The injuries in this case, were
minor and superficial and evidence and prosecution was clear about omission to
explain injuries.”
The case of Fatma Bai was further affirmed in case Lakshmi Singh v. State of Bihar,
1976 Cr.L.J. 736 : 1976 S.C. 2263, wherein the injuries on the person of the accused
were very serious injuries and were not explained, it was held that following inferences
can be drawn:
(1) That the prosecution has suppressed the genesis and the origin of the
occurrence and has thus not presented the true version;
(2) That the witnesses who have denied the presence of the injuries on the person
of the accused are lying on a most material point and therefore their evidence is
unreliable.
(3) That in case there is a defence version which explains the injuries on the person
of the accused, it is rendered probable so as to throw doubt on the prosecution
case.
It was further held that omission to explain injuries on the person of accused
assumes much greater importance where the evidence consists of interested and
inimical witnesses or where the defence gives a version which competes in probability
with that of the prosecution case.
Still inspite of prosecution’s failure to explain injuries of accused, the Supreme
Court in Bhaba Naidu Sharma, 1977 S.C. 2252 affirming 1972 Cr.L.J. 1552 held that
prosecution is not obliged to explain injuries on the person of the accused in all case
and under all circumstances. This is not the law. It all depends on the circumstances
and facts of the case whether prosecution case becomes reasonably doubtful for its
failure to explain injuries. In the instant case injuries were minor, no counter
information was lodged, nor counter case filed. One of the injuries was not shown to
investigating officer though accused was arrested soon after. The prosecution was
believed.
This point was further elucidated in Jagdish 1979 Cr.L.J. 888 by the Supreme Court.
It was observed “It is true that where serious injuries are found on the person of the
accused as a principle of appreciation of evidence, it becomes obligatory on the
prosecution to explain the injuries so as to satisfy the court as to the circumstances
under which the occurrence originates. But before this obligation is placed on the
prosecution, two conditions must be satisfied;
1. That the injuries on the person of the accused must be very serious and severe
and not superficial.
2. That it must be shown that these injuries must have been caused at the time of
occurrence in question.
Accused alleged to have inflicted particular injury on left arm of deceased- Plea that
he should be given benefit of doubt as no injury on left arm of deceased is found by
doctor–Doctor, however, finding injury on left arm–That apart three injured witnesses
giving very succinct version of assault by each of accused with different weapons on
deceased–Nothing in their evidence in cross-examination of discard same–Benefit of
doubt cannot be given. Bharti v. State of Haryana, 1997 Cr.L.J. 242 SC.
Death caused by multiple injuries–Solitary eye-witness–Evidibility-said witness found
to be on inimical terms with accused–Fact that accused did not hurt witness in spite of
enmity disproves presence of witness–His evidence as to member of injuries and of
seeing incident believed by evidence to contrary-His evidence thus not reliable. Bhagat
Singh v. State of Rajasthan, 1997 Cr.L.J. 3944 (Raj.).

Injured Witness
The presence of injury on the person of a witness makes him a stamped witness and
ordinarily his evidence is worthy of reliance in as much as such a witness does not
screen the real offender and ordinarily does not substitute an innocent person. His
presence too, on the spot is prima facie established and his evidence is of great value to
the prosecution. SamaSwami 1976 S.C. 2027 Sarneshwar Dyal v. State of U.P. 1978 Cr.
L.J. 182 (SC). Three witnesses mentioned in F.I.R., one witness had injury which
according to Doctor could not be self-inflicted. Held presence of injury was a strong
corroboration of evidence of eyewitness.
(i) In this case several persons were injured and one dead but it appeared from
the statements of actually injured that they were not able to make out all the
members of the crowd which assembled but they could remember those who
inflicted injuries upon them; it would not be safe to convict any person for any
offence other than that revealed by the injuries he was shown to have inflicted
upon an actually injured witness; in any case would not easily substitute a
wrong person for his actual assailant. 1974 Cr.L.J. 890 (SC) Jamuna
Chaudhary.
(ii) She received as many as 15 injuries at the hands of the accused. It is difficult
to believe that she will spare the real assailant and falsely mention the name of
the accused as the person who was responsible for the injuries caused to her
and the three deceased persons. 1974 S.C. 1699 : 1974 Cr.L.J. 1168 Bhagwan
Dass Chunki.
(iii) Two of eye-witness had grievous and simple injuries. It was contended by
defence that they had fabricated injuries to become stamped witnesses. Held
by the Supreme Court that it was highly improbable that after murder of 3
persons these two persons instead of going to P.S. should spend time on
getting grievous and other injuries inflicted on them with a view to show their
presence at the scene of occurrence. Hence the argument that these injuries
were self-inflicted or self-suffered could not be sustainable. 1973 SCC 933
Roop Singh v. State of Punjab. See also Nan Singh, 1980 S.C. 2128.
(iv) The injured witnesses were related to each other. Held that this fact would not
be sufficient ground to discredit their testimony. 1972 Cr.L.J. 645, 1972 S.C.
860 Balwant Singh.
(v) Injured eye-witness though relations, reliable. 1988 S.C. 2249 Guraak.
Injury on the person of witness superficial examined on next day. Mere presence
would not be established by such injuries (Para 6 of 1977. 238 Namdei).
Murder–Testimony of injured witness–Injured witness making some improvement–
No ground to disbelieve him on this ground alone. Bishna @ Bhiswadeb Mahato v. State
of W.B., AIR 2006 SC 302.
 Injured witness–Evidentiary value–Accused and deceased quarrelled over petty
matter–Accused persons caused fatal blows to deceased–Mother of deceased also
received injuries while trying to save her son–Accused convicted on basis of injured
witness who was none else than mother of deceased. Ramswaroop v. State of M.P., 2013
Cr.L.J. 2479 (SC).
Section 300–Injured witness–In the incident (PW3) Narmada Prasad and Uma Bai
(PW5) sister of the deceased sustained injuries and the medical reports of these PW
were issued by doctor being injured witnesses, their presence at the time and place of
occurrence cannot be doubted. It was observed by the court that evidence of the injured
witnesses is entitled to a great weight and very cogent and convincing grounds are
required to discard the evidence of the injured witnesses as there was no ground to
disbelieve the evidence of injured witnesses. Ram Vilas v. State of M.P., AIR 2015 SC
3362.
Section 300–Injured witness-Credibility–The proposition of law that injured witness
is generally reliable is no doubt correct but even an injured witness must be subject to
careful scrutiny if circumstances and materials available on record suggest that he may
have falsely implicated some innocent persons also as an afterthought on account of
enmity and vendetta. Indira Devi & Others v. State of Himachal Pradesh, AIR 2016 SC
2721.
Section 300–Injured witness-Credibility–The Apex Court held that the High Court
rightly observed that the fact of sustaining injuries by the witness has not been denied
or disputed nor it was suggested to him that he sustained those injuries at a different
place in a different manner in the hands of some other assailants. The injured witness
specified the role of accused, causing injuries to deceased which stood corroborated
with the medical evidence and the statements of other eye witnesses. Injured himself
regained conciousness after 20 days. Testimony of injured witness cannot be discarded.
Sudha Renu Kaiah & Others v. State of A.P., AIR 2017 SC 2124.
Section 300–Injured witness–In this case, injuries were found on the person of
witness. The question of weight to be attached to the evidence of a witness that was
himself injured in the course of the occurrence. It was held that where the witness to
the occurrence has himself been injured in the incident, the testimony of such a witness
is generally considered to be reliable, as he is a witness that comes with a built in
guarantee of his presence at the scene of the crime and is unlikely to spare his actual
assailant(s) in order to false implecate someone convincing evidence is required to
discredit an injured witness. Mukesh & Another v. State of NCT of Delhi, AIR 2017 SC
2161.
Section 300–Injured witness–It was held that the failure of the prosecution to place
the injury report of the witness from the Govt. hospital where he was first taken for
treatment is a lacuna, but cannot be held to be fatal as to doubt the entire prosecution
case or shake the credibility of the witness. It cannot lead to any conclusion of his injury
report from the government hospital being fabricated. The appellants are named in the
F.I.R. registered soon after the occurrence. The fact that the witness may have stated of
assault by two known persons without naming any of the accused is inconsequential.
The doctor was a prosecution witness for the limited purpose of the injury report and
not a prosecution witness with regard to the occurrence. Chandra Sekar & Another v.
State, AIR 2017 SC 2600.
Section 300–Injured witness–Merely because an injured witness, who may
legitimately be classified as an interested witness for obvious reasons, may have stated
that the accused was not of unsound mind, cannot absolve the primary duty of the
prosecution to establish its case beyond all reasonable doubt explaining why the plea
for unsoundness of mind taken by the accused was untenable. Devidas Loka Rathod v.
State of Maharasthra, AIR 2018 SC 3093.
Section 300–Injured witness–Eleven accused were involved in the case PW1 and
PW2 were the injured witness. PW4 took the injured to the hospital alongwith one “C”
who also suffered injuries in the incident and subsequently died in the hospital. Defence
was raised the evidence of PW1 should be dicarded, inter alia, on account of certain
omissions and contradiction in the evidence and also on account of the fact that the said
witness was known criminal, who had several criminal cases including murder cases
pending against him. The evidence of PW1 and PW2 specified the injuries caused by
each of the accused on the deceased as well as PW1 and PW2. The weapon(s) used by
each accused have also been testified with clarity. Both the said witnesses also with
stood the test of cross-examination. Inconsistencies and contradictions of the said
witnesses do not affect the core of their testimonies. Merely because the defence
witnesses had not been contradicted by reference to their previous statements following
the provisions of section 145 of the Evidence Act would not permit the court to accept
the version as unfolded by the said witnesses to be correct version. Balakrishnan &
Others v. State of Tamil Nadu, AIR 2018 SC 1153.
Injured Accused
The presence of injuries on the person of the accused shows his participation in the
incident/offence. It lends support to the prosecution case (1974 S.C. 1699). The accused
may also plead self-defence due to presence of injuries on his person pleading that he
was the victim of assault. Pandurang 1978 Cr.L.J. (SC) 151. In 1990, Cr.L.J. 296, injuries
to accused were of severe nature, fractures in legs, etc. not explained. Inherent
omission in prosecution case. Acquitted. 1988 S.C. 863. Hare Krishna Singh, the
Supreme Court held that “obligation of the prosecution to explain injuries of the
accused in the same occurrence may not arise in each and every case. In other words it
is not an invariable rule that the prosecution has to explain the injuries of the accused.
The burden of proving the guilt of accused in undoubtedly on the prosecution. The
accused is not bound to say anything in defence. The prosecution has to prove the guilt
of accused beyond all reasonable doubts. If the witnesses are believed by the court in
proof of guilt of accused beyond doubt, the question of the obligation of the prosecution
to explain the injuries sustained by accused will not arise. Then the prosecution comes
with a definite case that offence has been committed by accused and proves its case
beyond doubt. It becomes hardly necessary for the prosecution to again explain how
and in what circumtanccs injuries have been inflicted on the person of accused.
Where all the eye-witnesses have stated that accused had fired on the deceased as a
result of which he died and PWs have been believed, the prosecution would not be
obliged to account for the injury sustained by accused and failure of the prosecution to
give a reasonable explanation of the injury would not go against or throw any doubt on
the prosecution case.
Injured accused (here he tried self-immolation after murdering his wife) making
statement amounting to extra-judicial confession to doctor immediately after operation
on him–Held, he must have been then in confused state of mind, and it cannot from the
basis for conviction. Ramesh Timmanna, 1991 Cr.L.J. 1793 (Karnataka).
In case State of Assam v. Bhalu, 1989 S.C. 1097, the conviction of the accused was
set aside. There was no explanation as to how two accused had got injuries. The dying
declaration of deceased was not got recorded for nine days.
In case 1989 Cr.L.J. 2205, Harbhajan, the injuries of accused persons which
certainly were not of minor nature nor self-inflicted were not explained. It was
presumed that prosecution has suppressed the genesis and origin of occurrence,
conviction was set aside.
In Lakshami Singh v. State of Bihar, 1976 S.C. 2263, law about non-explanation of
injuries was summed up as under:–
(1) That the prosecution has suppressed the genesis and origin of the occurrence
and has, thus, not presented the true version.
(2) That the witnesses who have denied the presence of injuries on the person of
the accused are lying on a most material point and therefore their evidence is
unreliable.
(3) That in case there is a defence version which explains the injuries on the person
of accused, it is rendered probable so as to throw doubt on the prosecution
case.
Time of death from digested food and other correlated questions, and for injuries,
(See Chapter Medical Evidence).
Murder–Simple injuries suffered by accused party in murder case–Simple injuries
are to be explained by prosecution when accused claimed right to private defence and it
was shown that accused were not aggressors–In all situations the injuries received by
the accused persons need not be explained but a different situation may arise when a
right of private defence is claimed. Jalaram v. State of Rajasthan, AIR 2006 SC 618.
Murder–Injuries on person of accused–No law in general terms can be laid down to
the effect that each and every case where prosecution fails to explain injuries on the
person of the accused, the same should be rejected without any further probe–Where
injuries were sustained by both sides and when both the parties suppressed the genesis
in the incident, or where coming out with the partial truth the prosecution may fail.
Bishna @ Bhiswadeb Mahato v. State of W.B., AIR 2006 SC 302.
Section 302–Murder–Whether prosecution liable to explain injuries suffered by the
accused–Law summed up:–
1. It cannot be held that in each and every case where prosecution fails to explain
the injuries found on some of the accused, the prosecution case should
automatically be rejected, without any further probe.
2. Failure of the prosecution to offer any explanation regarding the injuries found
on the accused may show that the evidence related to the incident is not true or
at any rate not wholly true. 1968 (3) SCR 525 relied.
3. Non-explanation of the injuries on the accused by the prosecution may affect the
prosecution case. But such a non-explanation may assume greater importance
where the defence gives a version which competes in probability with that of the
prosecution.
4. Where evidence is clear, cogent and creditworthy and where the court can
distinguish the truth from falsehood the mere fact that the injuries are not
explained by the prosecution cannot by itself be a sole basis to reject such
evidence. 1990(2) RCR (Cri.) 304 (SC) relied.
5. Non-explanation of injuries by the prosecution will not affect prosecution case
where injuries sustained by the accused are minor and superficial or where the
evidence is so clear and cogent, so independent and disinterested, so probable,
consistent and creditworthy, that it outweighs the effect of the omission on the
part of prosecution to explain the injuries.
6. Prosecution is not called upon in all cases to explain the injuries received by the
accused persons. It is for the defence to put questions to the prosecution
witnesses regarding the injuries of the accused persons.
7. If the witnesses examined on behalf of the prosecution are believed by the court
in proof of guilt of the accused beyond reasonable doubt, question of obligation
of prosecution to explain injuries sustained by the accused will not arise.
8. When prosecution proves its case beyond any reasonable doubt, it becomes
hardly necessary for the prosecution to again explain how and under what
circumstances injuries have been inflicted on the person of the accused. Shriram
v. State of Madhya Pradesh, AIR 2004 SC 491.
Criminal Trial–Murder–Injuries suffered by accused persons also–Prosecution is not
bound to explain injuries found on accused person in all cases. State of Rajasthan v.
Hanuman, AIR 2001 SC 284.
Aggressor–Murder–Accused person also sustained injuries–It can not be held as a
matter of law or invariably a rule that whenever accused sustained an injury in the same
occurrence, the prosecution is obliged to explain the injury and on the failure of the
prosecution to do so the prosecution case should be disbelieved–Before the non-
explanation of the injuries on the person of the accused persons by the prosecution
witness may affect the prosecution case, but the court has to be satisfied of the
existence of two condition–
(i) that the injury on the person of the accused was of a serious nature; and
(ii) that such injuries must have been caused at the time of the occurrence in
question. Takhaji Hiraji v. Thakore K. Chanansing, AIR 2001 SC 2328.
Section 302–Murder case–Accused persons also received injuries–In case of non-
explanation of injuries court can draw following inferences:–
 (1) That the prosecution has suppressed the genesis and the origin of the
occurrence and has thus not presented the true version.
(2) That the witnesses who have denied the presence of the injures on the person of
the accused are lying on a most material point and, therefore, their evidence is
unreliable.
(3) That in case there is a defence version which explains the injuries on the person
of the accused it is rendered probable so as to throw doubt on the prosecution
case.
(4) Non-explanation of injuries may lose its importance where the evidence is clear,
cogent and creditworthy and where court can distinguish the truth from
falsehood without much difficultly.
(5) Whether the accused caused the injury to the prosecution witnesses and the de-
ceased by exercising right of private defence? If the prosecution establishes that
the accused were the aggressors and went at the residence of the deceased or
the prosecution witness had inflicted injuries to the deceased and witnesses,
there is no question of right of private defence to the accused. On the contrary
in such situation, the prosecution party would have the right of private defence.
(CM.) 543 (SC). State of Madhya Pradesh v. Sardar, AIR 2001 SC 312.
Sections 302/149, 307/149, 326/149, 324, 147 and148/149 I.P.C.–Appellants armed
with weapons like sword, sticks, chain and iron bars assaulted victims wherein one
person died and PW 5 & 6 sustained injuries–I.O. admitted that both occurrences took
place during one transaction–Injuries suffered by accused were not explained–Non-
explanation of injuries of accused became more relevant when PW5 & 6 did not appear
to be natural witnesses to occurrence–Two F.I.R’s were registered against deceased on
the same day–Ture account of events appeared were not placed before the court–
Number of contradiction in testimony of PW5 & 6–Conviction could not be sustained.
Ravi Kiran @ Baba Gopal Shinde v. State of Maharashtra, 2009 (2) Crimes 391.
Sections 302/34, 323 and 325/34 I.P.C.–Appellants assaulted deceased by lathis and
when son of deceased PW1 & PW2 and wife PW3 went for rescue, they were also
assaulted–Incident witnessed by two independent witnesses supported the charge–
Appeal against conviction–Non-explanation of injuries of one of the accused– It has to be
examined whether injuries were suffered in the occurrence– No injury report of said
accused had been produced on record–Whether injuries were serious or superficial or
were visible or not, it did not come on record–Evidence showed that relative witnesses
had not seen occurrence of beating and had reached place of occurrence after hearing
that deceased was assaulted–No interference. Dashrath v. State of Chhattisgarh,
2007(4) Crimes 49.
Presumption of murder–See Chapter 14.
Identification of dead body–See Chapter 18.



Chapter–7
Summoning Witnesses
Section 160 Cr.P.C. reads as follows:—
Police Officer’s power to require attendance of witnesses.—“(1) Any police
officer making an investigation under this Chapter may, by order in writing, require the
attendance before himself of any person being within the limits of his own or any
adjoining station who, from the information given or otherwise, appears to be
acquainted with the facts and circumstances of the case; and such person shall attend
as so required:
 Provided that no male person under the age of fifteen years or above the age of
sixty-five years or a woman or a mentally or physically disabled person shall be required
to attend at any place other than the place in which such male person or woman
resides.
(2) The State Government may, by rules made in this behalf, provide for the payment
by the police officer of the reasonable expenses of every person, attending under sub-
section (1) at any place other than his residence.”
Any person acquainted with the facts and the circumstances of the case, can be
summoned. He may be witness or a suspect. The suspect who is not yet accused of any
offence can be summoned under section 160 Cr.P.C. He may be, thereafter, an accused
see Pakala Narayana Swami 1936 P.C. 47 and 1940 Nag. 186, Venu Supra. The suspect
or witness, if male under 15 years, or a woman shall not be summoned to police station
for purposes of interrogation. They should be interrogated at the place of their
residence. The proviso to section 160 Cr.P.C. equally applies to suspects. Anta Panwar
1985 (2) R.C. R. 98 and P.P.R. 26.18A.
The power of police officer to require attendance of “any person” by an order in
writing for eliciting any information includes accused as well. 1977 Mad. L.J.(Cr). 13.
It is only the Investigating Officer who can summon any such person and not any
other officer or Magistrate. See 1895 A. W.N. 43; 18 Cal. 349. A Head Constable who
was not making investigation had summoned a witness. He refused to obey. Held the
refusal was not punishable since. The H.C. had no locus standi being not an I.O. to
summon. For summoning a witness, an I.O. must see that he issues a written order. A
verbal order can be disobeyed and the disobedience of such order will not be penal. But
beating the accused or any person to extract information is not permissible. AIR 1964
S.C. 33, A woman should, however, be not summoned but should be examined at her
residence. (See proviso to section 160 Cr.P.C.)
The time to attend should be specifically given in written order. If it is not, failing to
attend will not be punishable under section 174 I.P.C. 1948 All 137. The formalities of
written order have been given in 1954 Cr.L.J. 1060 (Kutch) Bhambia Noganji v. State of
Kutch. “The written order should be addressed to the person summoned. An
investigator should know that he cannot order his subordinate to produce any person
before him for purposes of section 160 Cr.P.C. This section contemplates, (I) an order in
writing to the person, (II) addressed to that person, (III) stating that he appears to be
acquainted with the facts and the circumstances of the case, (IV) and stating that he
should appear at a date and time specified and at a certain place.”
The person summoned is bound to attend a police officer and if he fails to attend and
disobeys such order then a complaint should be filed under section 174 I.P.C. It is the
only course open to the I.O. and he cannot compel attendance of such person by force
(7 Suth. W.R.2, 1896 Rat. 850), nor he has any power to arrest or detain for recording
evidence. (7 Suth. W.R. 3). Even the Magistrate cannot be asked to issue warrant nor he
can issue warrant for the arrest of such person and for production before I.O. (2) Cal.
320.
Summons for appearance–Validity–Petitioner had sent a telegram to the High Court
that few person were illegally detained in various police station for alleged offences–
Investigating Officer has no reasons to believe and no information was received by him
that petitioner was acquainted with facts of those offences–Summons issued only
because petitioner had informed the High Court about illegal detentions–Not justified
and amounts to harassment by police–Failure to respond to such with under section
160(1)–Does not attract charge for offence under section 188 I.P.C.–Police authorities
restrained from proceeding any further and notice issued under section 160(1) quashed.
T. Purshotham v. Circle Inspector of Police, 1997 Cr.L.J. 4011 (A.P.).
According to Punjab Police Rules 25.2 the “Investigating Officer shall endorse on the
order retained by the person so summoned the date and time of his arrival at and the
date and time of his departure from, the place to which he is summoned. The duplicate
of the order shall be attached to case diary. No avoidable trouble shall be given to any
person from whom enquiries are made and no person shall be unnecessarily detained.”
 A witness cannot be summoned for production of document. A requisition for
document cannot be made under section 160 Cr.P.C as held in Rukmani Delhi, 1974 Cr.
L.J. (Cal.) Document can be requisitioned under section 91 Cr.P.C.
Section 160–Petitioner involved in large number of cases–Petitioner evading to
appear in pursuance of notice under section 160 Cr.P.C. before I.O.–Warrants issued
under section 73 Cr.P.C–Not illegal–No ground to quash. Narayan Divakar v. CBI, 2006
(3) RCR (Cr.) 446 (Delhi.).
Section 160–Rape case–Interrogation of victim girls at police station remove tears–
No breach of section 160 Cr. P.C.–Accused a spiritual head of Ashram– Accused raped
13 orphan girls of Ashram on threat of death or dire consequence–Victim girls examined
and interrogated in women police station to erase fear phychosis from them–It is not
breach of section 160 Cr. P.C.–It was for the safety and to serve the interest of justice,
they were removed from the clutches of accused–Section 160 Cr. P.C. must be
understood and appreciated in the context of given situation. Kamalananthe v. State of
Tamil Nadu, AIR 2005 SC 2132.
Section 160–Power of police to require attendance of witnesses–Under section 160
Cr.P.C. police officer cannot make an order requiring attendance of accused–Section
160 Cr.P.C. applies only to the cases of persons who appear to be acquainted with the
circumstancess of the case i.e. the witnesses or possible witnesses only. State Rep. by
Inspector of Police v. N.M.T. Joy Immaculate, AIR 2004 SC 2282.
Section 160–Woman accused whether can be called to police station for
investigation–(Yes)–There is no requirement that woman accused should not be brought
to the police station and that they must be enquired only by women police or in the
presence of women police at the places where they reside. State Rep. by Inspector of
Police v. N.M.T. Joy Immaculate, AIR 2004 SC 2282.
Section 160–Offences under FERA–For purpose of Investigation provisions of Cr.
P.C. will apply where provisions of FERA are silent on that point-In the instant case
held, provisions of section 160 Cr.P.C. will apply for investigation against a woman. Ms.
Asmita Agarwal v. Enfacement Directorate, 2002 Cr.L.J. 819.
Section 160(1) Criminal case under investigation–I.O. can summon an accused to
appear as witness for interrogation–No violation of Article 20(3) of Constitution–Words
“any person” mentioned is section 160(1) means and includes “any accused person”.
Pulavar B.M. Senguttuvan v. State, 2004 Cr.L.J. 558 (Madras).
Section 160(1) Custodial death–Compensation–Police calling a woman to police
station in a non-cognizable offence (adultery)–Woman committing suicide–Summoning
woman accused to police station for enquiry into non-cognizable offence amounts to
procedural irregularity–Mother of woman awarded compensation of Rs. 50,000/–Mrs.
Angammal v. State of Tamil Nadu, 2003 Cr.L.J. 806 (Madras).
Section 160 Cr.P.C.–Essentially section 160 deals with the procedure to be adopted
by police officer at pre-arrest stage–Once a person is arrested and is in judicial custody
the prayer for bail will have to be considered on merits–Sadhwi Pragyna Singh Thakur
v. State of Marharashtra, 2011(4) Crimes 135 (SC).
Section 160–Grant of bail–The prosecution has produced and relied upon written
intimation and entries from the station diary to show that section 160 Cr.P.C. was
substaintially complied with but it is not necessary to refer to the same in detail as the
court broadly agress with the view taken by High Court. Essentially section 160 Cr.P.C.
deals with the procedure to be adopted by police officer at pre-arrest stage. Once a
person is assested and is in judicial custody, the prayer for bail will have to be
considered on merits. Prayer for bail cannot be automatically granted on establishing
that there was procedural breach irrespective of the merits of matter. Bhajan Singh v.
State of Haryana, AIR 2011 SC 2552.
Section 160–Difference between functions of Magistrate and police–The functions of
the Magistrate and the police are entirely different and though, the Magistrate may or
may not accept the report, and take suitable action, according to law, he cannot
impinge upon the jurisdiction of the police by compelling them to change their opinion.
There is no power expressly or impliedly conferred under the Code, on a Magistrate to
call upon the police to submit a charge-sheet, when they have sent a report under
section 169 Cr.P.C., that there is no case made out for sending up an accused for trial.
Vasanti Dubey v. State of M.P., 2012 (2) SCC 731.

Interrogation of Witnesses
1. All persons are competent to testify if they understand questions put to them and
can give rational replies. Tender years, extreme old age, disease, whether of
body or mind or any other cause are not disqualifications to be a witness.
(Section 118 Evidence Act). A lunatic even is not incompetent to testify so long
as he understands and makes rational replies. A witness who is unable to speak
may give his evidence in any other manner in which he can make it intelligible,
as by writing or by signs; but such writing must be written and the signs made in
open Court, evidence so given shall be deemed to be oral evidence:
Provided that if the witness is unable to communicate verbally, the Court shall
take the assistance of an interpreter or a special educator in recording the
statement, and such statement shall be videographed. (Section 118 Evidence
Act).
2. Examine one and all. An Investigating Officer should know that “witnesses are
just like a skeleton of an inquiry, their evidence being its blood and flesh.” If
from among the witnesses necessarily to be examined, some have been omitted
the skeleton of inquiry will be incomplete. So all the witnesses and other
residents of locality where occurrence took place should be examined. Examine
victim and material witnesses first and then others.
3. It is essential to know before hand the antecedents, status and psychology of the
witnesses. This will determine the way in which the witness is to be handled.
Patience is key to success. A first hand impression sometimes reveals that
witness is non-cooperating. There may be many reasons for this, like the hatred
for police, fear of retaliation from accused, fear of subjecting oneself of
scandalous cross-examination, risk of wasting time; apprehensions about bona
fide of interrogating officer; and of one being stubborn type. Find out the cause
and then remove it. Assure him of better deal, telling him that he should be
helping justice by his statements.
4. Have a chat, spend few minutes to get acquainted; seek privacy, remove shyness;
create a physical setting uninterrupted by noise, etc; then start in right earnest.
If a female witness always examine in presence of others and at her place.
5. Examine without delay. The delay in examination of witness is looked upon with
suspicion by Courts of law, without there being cogent explanation. Moreover,
witnesses are apt to forget facts or to add imaginary facts to their stories and are
liable to be influenced by parties. Explain delay, if witness not available.
6. In case witness forgets incident, bring in his lapsed memory by placing him in
the same surrounding or by associating the occurrence with any important event
which is easy to recollect.
7. When a witness appears before an I.O. he should question diligently. He should
be fully conversant with facts and circumstances of the case to give an
impression to the witness that he cannot be misled and decoyed into a theory
which is not sustainable. He should have a sympathetic and patient attitude
towards a witness. Courtesy demands courtesy in return. A hostile attitude
towards complainant and his witnesses will certainly
not result in good investigation. It will hamper justice and the investigator will
not be able to collect evidence which complainant party will hesitate to place
before him or compel it to report to the higher officers. Similarly partiality
towards complainant party will cause prejudice in the minds of the accused party
to come forward with their version in a straight forward manner. Thus, an
investigator should be impartial and endeavour to arrive at truth.
8. While examining witnesses, an I.O. should carefully watch their demeanour and
conduct. He should have tact and intelligence to be dry and indifferent at one
time, to discourage exaggeration and falsehoods, courteous and sympathetic at
another time to encourage the witness to disclose what he wants to. At times he
should assert himself to extract truth. He should be able to control emotions of
 others and also of his own. At times he should prompt some to speak when they
incline to keep mum. The boys and girls should also be interrogated in a fatherly
way to arrive at conclusions whether they are narrating story parrot like being
tutored or relate occurrence according to their observation. Children will require
much patient questioning. Win their confidence and keep them interested in you.
9. In order to fully grasp the human faculties and weaknesses, the I.O. should
possess profound knowledge of men and woman of all ages. An incompetent
police officer will not be able to examine a witness thoroughly with the same
case, preciseness and accuracy as a competent one will be able to do. This comes
with experience and keenness to observe every man in his day to day dealing. A
good investigator should develop his faculties as much as to read a man at a
glance, to wean out facts, gossip, etc. In examining a witness an I.O. should
know:—
(i) Whether the person speaks truth, the whole truth or he has lied on certain
matters. Is he halting in his narration or innocently blurts out everything?
(ii) Do the circumstances which will not tell lie, coincide and corroborate the
version of a witness?
(iii) Has the witness some motive to conceal truth, to tell lie or deceive and
detract an investigator from the right track?
(iv) Do the versions of each and every witness tally in detail? Minor
discrepancies do not matter.
(v) Can he, a witness speak in public with open mind, without any hesitation, or
has he daring and audacity to tell in the face of another witness?
(vi) The people in India are very religious. An I.O. should judge whether the
witness had any scruples about religion and should take advantage of these
in coming to a right conclusion.
10. There may be witnesses who are very clever, talkative and made up ones.
Handle them carefully; let them speak and exhaust themselves; put intelligent
questions without their being suggestible and take them to spot if necessary to
test their knowledge if they were really present on the scene.
11. Act like a press reporter and allow nothing to be kept back by the witness.

How to write Statement of Witnesses

Section 161 Cr.P.C. reads as follows:—
(1) Any police officer making the investigation under this Chapter (Chapter XII) or
any police officer not below such rank as the State Government may, by general
or special order prescribe in this behalf, acting on the requisition of such officer
may examine orally any person supposed to be acquainted with the facts and
circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case
put to him by such officer, other than questions, the answer to which would
have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the
course of an examination under this section and if he does so, he shall make a
separate and true record of the statement of each such person whose statement
he records:
Provided that statement made under this sub-section may also be recorded by
audio video eletronic means.
Provided further that the statment of a woman against whom an offence under
section 354, section 354A, section 354B, section 354C, section 354D, section
376, section 376A, section 376AB, section 376B, section 376C, section 376D,
section 376DA, section 376DB, section 376E or section 509 of the Indian Penal
Code (45 of 1860) is alleged to have been committed or attempted shall be
recorded by a woman police officer or any woman officer.
 The I.O. must write the statements of witness separately under section 161(3)
Cr.P.C. and not in the body of the diary.
If a police officer does not reduce into writing the statement separately and does so
in the shape of indirect narration or compressed memoranda in the body of case diary,
then it means that he is not acting legally. No useful purpose will be served in resorting
to this method. It is a wrong belief in the minds of I.O. is that in this way they can
circumvent the right of the accused in getting copies and making use of these under
section 162 Cr.P.C. It is a mistaken notion because the accused can still get the copies
of these abridged statements incorporated in the body of the case diary and make use of
these under section 162 Cr.P.C. (See Chapter VI). The Courts have consistently held
that the accused’s right as such could not be defeated in that oblique way, rather it
prejudices the prosecution case and if copies are refused then it results in quashing of
sentence. See 1945 Nag. 1, 1931 All. 362, 1929 Rang, 87, 1939 Pat. 174, 1927 Cal. 544,
Gora Singh 1976 C.L.R. 330 (Pb), State of Punjab v. Mohinder Singh, 1974 C.L.R. 301.
Sections 161, 162 and section 172(2)–Statement of inter se to police–Evidence
value–Admission/Contradiction made by witness court has power to took at case diary to
find out said contradiction–It can further be used to aid court in favour of accused.
Manohar v. State of Karnataka, 1997 Cr.L.J. 398 Kant.
Sections 161 and 154–F.I.R. Recorded–Investigating Officer not recording statement
of a witness–Feeling it unnecessary in view of F.I.R., to repeal some version in case
diary–Non availablity of statement of that witnesses under section 161 Cr.P.C. would
not cause prejudice to defence. Meharban v. State of M.P., 1997 Cr.L.J. 766 (SC).
Punjab Police Rule 25.54 “The officer writing a case diary shall enter in such diary a
list of the statements recorded under section 161 Cr.P.C. which are attached to such
diary and the number of pages of which each such statement consists.”
In section 161 Cr.P.C. The word used is ‘may’ so far examination of witness is
concerned and as such it gives an I.O. a discretion not to record the statement of every
witness. If he, however, exercises his discretion in favour of recording the statements,
he must record the statement separately.
The discretion so given under section 161(3) should be exercised soundly and not
arbitrarily or capriciously and certainly not in such a manner as to handicap the
accused in their defence, or deprive the accused of valuable material for ascertaining
the truth. In Mettu Pantayya, 1960 Cr.L.J. 1402, in a murder case recording of 3 out of 4
eye-witnesses statements separately under section 161(3) was not held to be a sound
discretion.
In Bejoy Chander v. State, 1950 Cal. 363, it was held an I.O. is not bound to record
the statements of witnesses. If he does reduce statements into writing, he must make
separate record of the statements of each of the person whose statements he records.
He cannot record a condensed version of the examination of all of them or the precise of
what the witnesses were supposed to have said. In 1949 N. 260-50 Cr.L.J. 669 Shyama
Raja Ram v. Emp., it was held that “where a police officer making investigation
examines a number of persons and records not what each of them had said but contents
himself by recording the fact that he had questioned them and by making a digest of
what he had learnt from them, there is a contravention of the provisions of sub-section.”
Therefore, it is essential that the statements of each of the witnesses should be
recorded separately under section 161(3) Cr.P.C. and not in the body of the case diary.
Section 161 Cr.P.C.–Improvement in the statement of PW–While making statement
before the police, the witness did not make a detailed statement, which he later on
made while appearing in the court–In fact there cannot be technically termed as
improvements, but are minor omissions, which were made by the witness while making
statement before the police. Dhian Singh v. State of Punjab, 2006 Cr. L.J. 3177 (P&H).
Section 161 Cr.P.C.–F.I.R.–Critical Trial–Name of one eye-witness mentioned in
F.I.R.–If during investigation materials came to the notice of the investigating officer
that apart from one eye-witness. Other witnesses had also witnessed the occurrence, he
was duty bound to record their statements under section 161 Cr.P.C. Pratap Singh v.
State of M.P., AIR 2006 SC 514.
 Section 161 Cr.P.C.–Section 302 I.P.C.–Murder case–Delay of three days in
recording the statement of a PW who was sole witness–Delay creates doubt when there
is sole eye-witness–In the instant case witness was a child of 7 years–It is possible she
was tortured by her father–Evidence not relied upon–Conviction set aside. Jaggi Singh
@ Jagga v. State of Punjab, AIR 2005 SC 913.
Section 161 Cr.P.C.–Section 302 I.P.C.–Acquittal in Murder case–Appeal against
acquittal–If on the same evidence two views are reasonably possible, the one in favour
of the accused must be preferred. State of U.P. v. Gambhir Singh, 2005 (5) JT 553 (SC).
Section 161 Cr.P.C.–Substantive statement on oath has to be taken into account and
not the statement recorded during investigation–Statement during investigation loses
its effect after the substantive statement is recorded in the court. 1976 SCC (Cri.) 19
relied. Rachhpal Singh v. State of Punjab, 2005 (2) RCR (Cri.) 847 (P&H).
Section 161 Cr.P.C.–Rape and Murder–Delay in examination of some witnesses by
I.O.–Unless the I.O. is categorically asked as to why there was delay in examination of
witnesses, the defence cannot gain any advantage therefrom. State of U.P. v. Satish,
AIR 2005 SC 1000.
Section 161 Cr.P.C. read with Section 162(1), Proviso–A statement under section
161 Cr.P.C. is not as substantive piece of evidence. In view of the proviso to sub-section
(1) of section 162 Cr.P.C., the statement can be used only for the limited purpose of
contradicting the maker thereof in the manner laid down in the said proviso therefore,
the High Court committed a manifest error of law in relying upon wholy in admissible
evidence in recording a finding that Kapil Dev Singh could not have been present at the
scene of commission of the crime. Rajendra Singh v. State of U.P., 2007 (3) Crimes 303
(SC).
 Section 161 Cr.P.C.–Delay in recording police statement by Investigating Officer–I.O.
did not give any explanation for non-recording the police statement on the next day or
within reasonable time–Delay in recording the police statement by I.O. does not
necessarily in all cases would be fatal to the prosecution provided there are legitimate
reasons for not doing so till the date on which it is recorded. However, other attaining
circumstances are also required to be considered by the court while concluding this
issue one way or the other. Ashok v. State of Maharashtra, 2007 (4) Crimes 417.
Section 161 Cr.P.C.–Dying Declaration–Trial Court held that alleged dying
declaration was neither a dying declaration nor a statement under section 161 Cr.P.C.
because thumb impression of the deceased was affixed on it. The trial court held that it
has been recorded in course of investigation and therefore it was admissible in
evidence. High Court found that the same cannot be made the basis of conviction as the
same can not be called to be a dying declaration. Accordingly, evidence of the
prosecution witnesses was held to be unworthy of credence and therefore acquittal is
directed. State of Rajasthan v. Wakteng, 2007 (3) Crimes 57 (SC).
Section 161 Cr.P.C.–Material witness given up by prosecution–Accused would be
entitled to take benefit of statement made under section 161 Cr.P.C. Perumajee v. State,
2009 (1) Crimes 575 (Mad.).
Section 161 Cr.P.C.–Unexplained delay in recording statement of material witness
creates doubt in prosecution case. Sonu Arora v. State, 2011(1) Crimes 353 (Delhi).
Section 161 and Section 162 Cr.P.C.–Offence under section 498A, 494 and 511 IPC
and under section 3 and 4 of Dowry Prohibition Act registered by police on a complaint
given by father of victim girl–I.O. stated in the charge-sheet that he was contacted her
and she confirmed the contents of the complaint given by the complainant–Statement
forwarded by victim girl attested by notarized public–Procedure and reliance on
statement was not legally acceptable–Mere reproduction of the complaint without
proper examination cannot be called as statement recorded during investigation–
Investigation could not be said to be in occurrence with provisons. Rajesh Gupta v.
State of A.P., 2011(3) Crimes 236 (AP).
Summoning of witness–Wide powers have been invested with the courts when it
comes to the question of summoning a witness or to recall or re-examine any witness
already examined to summon a witness or re-examine any witness already examined–
Power of court under section 311 Cr.P.C. and section 138 or Evidence Act–Explaination
held that–
(i) The order of re-examination at the desire of any person under section 138, will
have to necessarily be in consonance with the prescription contained in section
311 Cr.P.C.
(ii) It is imperative that the invocation of section 311 Cr.P.C. and its application in
a particular case can be ordered by the court, only by bearing in mind the
object and purport of the said provision, namely, for achieving a just decision of
case as noted earlier.
(iii) The power vested under the said provision is made available to any court at any
stage in any inquiry or trial or other proceeding initiated under the code.
Rajaram Prasad Yadav v. State of Bihar, 2013 (3) Cri. CC 568.
Section 161–Statement of witness by police–The fact that the complaint was
received from the witness even before that the officer-in-charge of the police station had
started investigation. Therefore, the information received by the said witness, at best,
could be treated as a statement of the witness recorded under section 161 Cr.P.C. and
the contents thereof could be used not as the FIR but for purpose of contradicting said
witness. Ashok Debbarama @ Achak Debbarama v. State of Tripura, 2014 Cr.L.J. 1830
(SC).
Section 161–Examination of witness–The accused mother-in-law raised the
contention that the police authorities had torn the original statement of the mother of
the victim under section 161 Cr.P.C. and prepared a second with a view to file false case
against her whereas in the view of the mother of victim that one unsigned paper in
which only few lines were recorded was torn off. The plea of the accused mother-in-law
was not accepted as it was raised for the first time before Supreme Court. Tarabai v.
State of Maharashtra, 2015 Cr.L.J. 1326.
Effect of not Examining Witnesses during Investigation
Though it is legal to cite a witness in evidence even if he is not examined by an I.O.
as held in Biswas Bhushan Naik v. State 1952 Cr.L.J. 1533 (Orissa): State v. Mohd
Sultan 1977 C.L.R. 8 (J&K) and that his evidence will not be admissible for his not being
examined by police under section 161 Cr.P.C as held in Gopal Krishan 1964 All. 481 (the
statement loses its weight) as there is nothing in Cr.P.C. to indicate so, yet care should
always be taken to examine each and every witness as very such witness not examined
but put in trial will be considered to be a procured one and his evidence would be liable
to suspicion and scrutiny. The presumption would be that he was not supporting
prosecution during the stage of investigation and as such not examined. In such cases,
if witness is not available, a note should be made in the diary and the efforts, to secure
his presence should be well supported by the reports in the Daily Diary regarding
deputing of constables with an order in writing under section 160 Cr.P.C. See Jagdish
1958 Cr.L.J. 863. Jhagru 1959 Cal. 176. In case Panna Fadahya 1970 Cr.L.J. 1180, it was
held that by not recording a statement of a solitary eye-witness during investigation, the
accused is denied a very valuable opportunity of testing the veracity of the witness with
reference to his earliest version and, therefore, it is difficult to attach any weight or
value to the statement of such witness in court. In Ram Lakhan Singh, 1977 S.C. 1936,
the Supreme Court rejected the evidence of a witness who was not examined by police
on reasoning. “The accused who are entitled to know his earlier version to the police
are naturally deprived of an opportunity of effective cross-examination and it will be
difficult to give any credence to a statement which was given for the first time in court
after about a year of the occurrence.”
Witness Examined with Delay
It was held in 1957 Cr. L.J. 240 (Raj.) Gonda Singh v. State, that the witness should
also be examined promptly and immediately after investigation is commenced. A
witness, however, should not be presumed to be false simply because he is examined
some days after. It is for the I.O. to give the explanation if a certain witness is not
examined promptly and he should be questioned specifically about the delay and the
reasons thereof as held by the Supreme Court in Ranbir 1973 Cr.L.J. 1120. Unjustified
and unexplained long delay on part on investigating officer in recording statement of
material eye-witness during investigation of murder case will render evidence of such
eye-witness unreliable Bala Krishan, 1971 Cr.L.J. 670 (SC). The recording of statements
after lapse of inexplicable delay is likely to affect seriously the accusation levelled
against an accused 1971 Cr.L.J. 1610 Krishan Lall but when witnesses are examined
after great if delay but that is explained, their evidence cannot be discarded.
Atmududdin v. State of U.P., 1973 SCC 676. Witness examined after 20 days relied as
no intrinsic defect in his evidence. Nirpal Singh, 1977 Cr.L.J. 642.
In Lalli 1986 Cr.L.J. 1083 (SC), Lower Courts had believed the police statement of
main eye-witness recorded after 56 days when satisfactory explanation was given for
delay. Supreme Court declined to reject it.
The delay in examination of witness is therefore to be explained to inspire
confidence. In Gunduchi Patnaik, 1985 Cr.L.J. 645, the police officer went to the scene
of occurrence on August 12; the witness was examined on August 25. No explanation
given by witness he could not have sense of fear after police had come to scene; no
evidence of any threat to disclose; other person so informed by him; it was held it was
hazardous to accept his evidence.
Delay in interrogating witnesses–Witness in interrogated two months after the
incident–His testimony could not be taken into consideration. Raja Singe v. State of
Maharashtra, 1997 Cr.L.J. 450 (Bom).
Examination of witnesses by investigating officer–Delay in investigation of case
transferred to another officer as previous officer did not conduct fair investigation–New
officer examined witnesses and recording their statement after five or six days of the
incident after taking be discarded on ground of delay. Dukhmochan Pandey v. State of
Bihar, 1998 Cr.L.J. 77 (SC).
Section 161–Effect of delay in recording of statement–Where there was a delay of
15-16 days from the date of incident in recording the statements of witnesses to the
alleged conspiracy between accused persons to kill the deceased and the same was
sought to be explained by reference to the fact that the family had to sit for shock
meetings for 12 to 13 days. The Supreme Court was not impressed by the said
explanation. Harbeer Singh v. Sheeshpal with State of Rajasthan v. Sheeshpal, 2017 Cr.
L.J. 169.

How to Record Statements

1. Statements of witnesses should not be joint. An I.O. should not record condensed
version of the examination of all the witnesses or precis of what the witnesses
have said e.g., A.B.C., said so and so. An individual witness should be examined
separately so that his statement should be independent of what the other
witnesses have said. A joint statement of two or more witnesses recorded jointly
cannot be legally used as the statement by any particular witness. 1937 Oudh
201, 1945 Cal. 159.
2. It is not necessary that I.O. should record the statements verbatim. But it should
be clear enough to convey a correct idea and sufficient to give out the details. It
should be in the form of a narration and not questions and answers. Identical or
similar words used in statements of different witnesses, if cannot be helped, can
be used. The evidentiary value of identical statements came up before Hon.
Justice Govind Menon in 1957 Cr.L.J. 1009 (SC) Gurbachan Singh. It was held,
“There is no special rule or direction provided in Cr.P.C. affording guidance for
police officer in recording statements of witnesses and usually what is done is
that when a succeeding witness gives practically an identical story as to what a
previous witness has stated, it is a matter of common knowledge that words used
by I.O. would be similar or identical.”
In re Suba Raddi 1948 Mad. 23, 28 Cr.L.J. 973 followed in 1954 Cr.L.J. 905
(Mysore) Bayyappanavara Muni Swamy and others v. State at page 910 it was
laid down. “The Investigating Officer need not record verbatim what the various
witnesses tell him and the new sub-section 161(3) Cr.P.C. hits at the practice of
writing against the names of certain witnesses after the first that they
corroborated the statements of the earlier witness. The section leaves it to the
option of the police officer to record or not, statements of those he examines.
When he does record statements of a number of person, each statement must be
capable of being read by itself without necessarily looking into the other. To
facilitate the statements being used for the purpose of contradiction, it is
advisable to note as far as possible the exact words in which the statements are
made and also to err if at all, on the side of superfluity rather than brevity as that
will avoid controversies about omission.”
3. The statement should be recorded in the first person of the whole of the account
a witness gives. It should be in direct form saying “I was present, I saw etc.” The
writing of statement in indirect form was deprecated in Bommanboyina Ramaiah
1960 Cr.L.J. 311 by a Division Bench of Andhra Pradesh High Court. It was held
“Statement recorded by police officer
under section 161(3) Cr.P.C. should not be in the indirect form of speech. The
language of section 162 Cr.P.C. and section 145 Evidence Act clearly indicates
that the writing should be describable as a statement of the witness himself and
further it should be as nearly possible a complete record of what he said. If the
statement is not in the first person, it would be scarcely appropriate to call it the
statement of the witness himself. If it is not taken down as a whole, then a
contradiction by way of omission maybe wrongly established because omission
may have been made in recording it or an apparent contradiction capable of
explanation by reference to another part may be rendered incapable of such
explanation because that other part of the statement has been omitted in
reducing it into writing.”
4. Statement should not be that a witness corroborates the statement of another
recorded separately. The practice is wrong and does not bring credit to the I.O.
See 1945 Pat. 109.
5. In 1953 Cr.L.J. 1193 (VP) Kandari v. State where “an I.O. had noted in his case
diary a gist of what P (a witness) had stated and had followed it with a note that
 D, also corroborated him” it was held that this was not a statement but a mere
impression or opinion and clearly illegal.
6. The statement should be recorded by I.O. as and when these are made. The
practice of making notes earlier and then later developing these into statements
should be discouraged. In case this practice is restored to the original notes
should not be destroyed. The accused can cross-examine with the aid of these
notes, copied of which he can get. The failure to produce such notes would result
in vitiating the entire trial. See 1956 Andh 213.
Statement of police–Recording of–Accused suffered injuries on head and also sub-
conjectival haemorrhage on one of the eyes observation–Accused remained as in-door in
hospital–In circumstances, doctor in hospital, advising that accused should not be
interrogated by police immediately after her admission but she should be allowed to
remain in complete rest–No exception can be taken on such decision of doctor. T.
Pankaj Kumar Divetia v. State of Gujarat, 1997 Cr.L.J. 2535 (SC).
Section 161 Cr.P.C.–Sections 499 and 500 IPC–Police recording statement of
petitioner under section 161 Cr.P.C.–Statement was defamatory–Accused guilty of
offence of defamation–Statement made to police under section 161 is not an “absotulely
privileged statement” but only “qualified privilege”–Said statement does not come
under exception 9 of section 500 of Indian Penal Code–Proceedings cannot be quashed.
P. Zainulabideen v. KMH Sahal Hameed @ Abu Abdulah, 2004 Cr.L.J. 1973 (Mad.).
Section 161 Cr.P.C.–Statement of witness recorded under section 161 Cr.P.C. in the
language not known to witness–There is no requirement of law that the language of
statement recorded under section 161 Cr.P.C. would be known to witness–Witness does
not have to sign the statement. Zahira H.H. Sheikh v. State of Gujarat, AIR 2004 SC
3114.
Section 161–Version of incident given by eye-witneses in F.I.R. in their statements
under section 161 Cr. P.C.–Deliberate change by all the eye-witnesses during trial to
suit medical evidence annot be said that change was accidental on account of lapse of
memory–Credibility of eye-witness impeached. Shingara Singh v. State of Haryana, AIR
2004 SC 124.
Section 161 Cr.P.C.–Statement of witness not recorded under section 161 Cr.P.C.
during course of investigation–His statement could not be relied upon as prosecution
failed to explain why his statement was not recorded. Gabbu v. State of M.P., 2004
Cr.L.J. 2001 (M.P.).
Section 161–Eye-witnesses in their statements under section 161 Cr.P.C., and before
the court also proved the role of the accused and presence of the accused. Held, they
have rightly convicted under section 392/148 IPC. Fazar Ali v. State of Assam, AIR 2017
SC 2475.
Section 161–Delay in recording the statement–The testimony of prosecution witness
on the ground of delay in recording of complainant statement by I.O., the trial judge had
found that on account of the fact that the I.O., wanted to assure himself of the veracity
of her statement had examined the said witness after she had time to recover from the
shock of the incident and composed herself. Held, and delay in examining the said
witness under section 161 Cr.P.C. did not prejudice the prosecution. Yogesh Singh v.
Mahabeer Singh, 2017 Cr.L.J. 291.
Section 161–Statement recorded–Statement recorded under section 161 Cr.P.C.
during the course of investigation, the complainant and his witnesses have not disclosed
any other name except the 11 persons named in the F.I.R. Thus, the complainant has
sought to caste net wide so as to include numerous other persons while moving an
application under section 319 Cr.P.C. without there being primary evidence about their
role in house trespass or of threatening the complainant. Large number of people will
not come to the house of the complainant and would return without causing any injury
as they were said to be armed with weapons like crowbar, knife and ripper etc. The
additional accused cannot be summoned under section 319 Cr.P.C. in casual and
cavalier manner in the absence of strong and cogent evidence. Periyasami v. Nallawami,
AIR 2019 SC 1426.

Two Examinations of a Witness

 A Police Officer should not feel discouraged to write again the statement of a
witness already examined by him if circumstances warrant so. This other statement of
the witness should also be recorded under section 161 Cr.P.C. The necessity for re-
examination or the circumstances compelling the I.O. for further interrogation of the
witness should be clearly given out in the case diary. This other statement will be
considered to be the part of the first statement of that witness and the prosecution can
make use if it do draw the attention of the court for clearing out or explaining omission
in the earlier statement. This procedure was allowed by Mr. Justice K.S. Hegde in
Muninajappa v. State, 1958 Cr.L.J. 1205 (Mys.) saying “It is possible and in my
experience it is common for the I.O. to interrogate the witness more than once. As
things unfold themselves, further elucidation become necessary. It is not a set
examination of a witness on facts collected and marshalled earlier. The I.O. is still at the
stage of sifting materials and following clues. It may be that the entire statement is
obtained at one stretch. It is equally possible that the relevancy of a particular fact may
become clear after the witness had been questioned earlier on other points. Again it
must noted that the I.O. is not required to make a verbatim record to the statement
made. He merely records what he considers important. What he considers as
unimportant at one stage of the investigation may assume importance at a later stage.
Consequently it may become necessary for him to question again the witness. This point
of time as to when the statement is made or the method or manner of recording the
facts stated have only relative importance. They must be judged in the circumstances of
the case.
In my judgement “Statement in section 162 Cr.P.C. is the entirely of the facts stated
by the witness to a police officer during the investigation. All these facts whenever
stated go to constitute his statement. From this it follows that facts stated by PW2 in
the morning as well the facts stated by him in the evening to the I.O. are both part of
the same statement. The prosecution is within its limits in making use of the later part
in explaining the omission in the earlier part. But the fact that the same has been
omitted in the earlier part of the statement will not be lost sight of by the judge.”
Section 161 Cr.P.C.–Two statements of a witness recorded by police under section
161 Cr. P.C.–All statements not furnished to accused–It is denial of fair trial to accused–
Conviction set aside–Prosecution is bound to produce the entire statements obtained
from the witness under section 161. Cr.P.C., whether the statement is in favour of the
accused or in favour of the prosecution because the role of the police is to bring the real
truth before the court. Murali v. State of Kerala, 2004 (1) RCR (Cri.) 283.

The Effect of Failure to Write the Statements Separately

1. The effect is that it is a serious irregularity considerably prejudicing the accused
and is by itself enough to make the evidence tainted. Narapuriddigary 1953
Cr.L.J. 29 (Mad.) but the evidence should not be altogether rejected. In re Suba
Reddi Supra.
Section 161 and 207–Supply to accused of copies of statement of witnesses and
other documents–Refusal to supply–Validity–Recording to statement of witnesses
more than once–Accused is entitled to copies of only those statement which were
relied upon prosecution and refusal to supply other statement–Not proper.
Ranjeet Singh v. State of U.P., 1998 Cr.L.J. 1297 (All).
2. Non compliance with provisions of section 161(3) Cr.P.C., however, does not
make the evidence of the witness inadmissible though it is a matter which the
court is entitled to consider when dealing with credibility. State v. Hardyal
Singh, 1953 Cr.L.J. 884. It does not render their testimony in court inadmissible
when neither those PWs. are incompetent nor is their evidence inadmissible
because of the matters to which they relate, 1956 Cr.L.J. 441 (SC) Tikeshwar
Singh.
3. In case 1953 Cr.L.J. 692 (Bhopal) Hari Narain v. State, I.O. failed to record
statements separately. It was held “It no doubt means that I.O. took away from
the court, a power to hold a fair trial. In fact, a fraud was committed by the
police by the infringements of the duty enjoined by law to record statements
separately, failure to perform which means a flagrant attempt to circumvent the
 law and thereby to defeat the right which law bestows upon an accused. See also
1953 Cr.L.J. 990 Bhopal Shiva Sharnagat.
4. Where in a trial witnesses are called for prosecution whose statements to police
have been recorded in writing but are not produced for defence or if produced
are of no value because what is recorded is merely the digest of what officer
making the investigation learnt from such witness the court should disregard the
evidence of such witness. 1949 Nag. 260.
5. It does not vitiate the trial, Rayappan 1955 Mad. 512 : 1955 Cr.L.J. 1200. See
also 1956 Cr.L.J. 1183 In re Bhutapath.

Should the I.O. get the Statements under section 161 Cr.P.C. signed?
The answer is No. The mandatory provision of law under section 161 Cr.P.C. is that
these statements shall not be got signed by the deponents. This practice of getting
statements signed is illegal and as such should not be carried out. The effect of getting
statements signed is that the value of the evidence of the witness is seriously impaired.
The trial of the case on account of this is not vitiated. The evidence of witness also does
not become inadmissible. This aspect of the case was discussed in Privy Council ruling
Zahiruddin v. Emps. 1947 P.C.75. The Principle being that witnesses who give signed
statements to the police will not when afterwards examined at the enquiry or trial feel
themselves free agents to give evidence and their evidence will not carry the same
weight as of others who have not signed statements. Held in State of V.P. v. M.K.
Anthony by the Supreme Court, that it cannot be rejected outright. It may only
necessitate an in-depth scrutiny of evidence (1985 Cr.L.J. 493).

Some Important Deductions

1. A witness is bound to speak truth before an I.O. while making a statement, as
such false statement made under section 161 is punishable. There is, however,
conflict of decisions of different the High Courts, if a person making false
statements under section 161 Cr.P. C. can be prosecuted under section 182 for a
false information given primarily with purpose of causing harm to some one
through an investigating officer. Bombay, 1877 Rat. 124 Patna 1933 Pat 555 and
Sindh the High Courts 1939, Section 94 are of the view that a person making
such statement can be prosecuted under section 182 I.P.C. while Rangoon 1937
Rang 232 and the Lahore High Courts 1914 Lahore 360 hold contrary view.
2. Refusal to make a statement before police is punishable under section 179 I.P.C.
3. Under section 161(2) Cr.P.C. a witness can refuse to answer questions which
expose him to a criminal charge or to a penalty or for failure or which would
expose him to a charge of defamation. The statement, however, is privileged one
and a witness can make statement not maliciously but in order to aid justice. The
Madras High Court in (1938) M.L.J. 810 held that an alleged defamatory
statement in reply to questions put by I.O. is privileged one and charge of
defamation cannot be laid upon it, as covered by Exception 9 to section 500
I.P.C. The Nagpur High Court has, however, taken a different view in 1948 Nag.
243 where it was held that witness can only avoid a charge of defamation if he
succeeds in bring his answers under Exceptions section 500 I.P.C. because there
is option for him to refuse to answer questions.
Section 161 Cr.P.C.–Statement under–Non-mentioning of minute details therein
would not mean non-existence of said facts. Dharmendra Singh v. State of U.P., 1998
Cr.L.J. 2064 (SC).
The statement recorded by a police officer under section 161 even though is a
previous statement under section 145 of Evidence Act, can be used for the purpose of
establishing a contradiction or impeaching the credit of the witness but only in the
manner provided for in section 162. State of Kerala v. Babu & Others, 1999 Cr.L.J. 3491
(SC).
Statement of witnesses during investigation–Non furnishing of said statement to
accused–Causes prejudice to accused. Kota Peda Nagesh v. State of A.P., 1999 Cr.L.J.
2051 A.P.
 Statement recorded under–Court not putting any question to witness in reference to
said statement–Cannot use that statement even for drawing adverse inference
regarding evidence of said witness. Dandu Lakshmi Reddy v. State of A.P., 1999 Cr.L.J.
4287 (SC).
Statement of injured recorded under–Cannot be held admissible in evidence
under section 33 of Evidence Act. Sukliar v. State of U.P., 2000 Cr.L.J. 29.
Section 161 Cr.P.C.–Evidence Act, Section 154–Statement under section 161
Cr.P.C.–In the event of a portion of evidence not being consistent with the statement
given under section 161 Cr. P.C. and the witness stands declared hostile that does not,
however, mean and imply total rejection of the evidence–The portion which stands in
favour of the prosecution or the accused may be accepted but the same shall be
subjected to close scruting. Gurpreet Singh v. State of Haryana, AIR 2002 SC 3217.
Section 161 Cr.P.C.–Contradiction in statement of PW–Meaning of word
“contradiction”–The word “contradiction” is of a wide connotation which takes within its
ambit all material omissions and under the circumstances of the case, a court can
decide whether there is one such omission as to amount contradiction. State of
Maharashtra v. Bharat C. Raghami, AIR 2002 SC 409.
Sections 161 and 311 Cr.P.C.–Witness whose statement under section 161
Cr.P.C not recorded during investigation not barred from being examined under section
311–Contention that only those witnesses can be examined, whose statements have
been recorded by the police under section 161 Cr.P.C. and find mention in the list of
witnesses submitted with the challan under section 173 Cr.P.C. if accepted, will render
the provisions of section 311 Cr.P.C. nugatory–Evidentiary value to be attached to the
evidence of such witness has to be looked into. Om Prakash v. State of Rajasthan, 2003
Cr.L.J. 4704 (Raj.).
Sections 161 and 162 Cr.P.C.–PW did not give name of accused in her statement
under section 161 Cr.P.C.–She gave name of the accused in court–Omission to state a
fact could not be taken as contradiction, because statement of PW under section 161
Cr.P.C. is obtained by I.O. on interrogation–No evidence that I.O. asked the name of
accussed during interrogation, 2000 (2) RCR (Cri.) 545 (SC) relied. Kapoor Singh Rana
v. State of Delhi, 2006 (1) RCR (Cri.) 943 (Del.).
Section 161 and 162–Statement of a witness recorded by police under section 161
Cr.P.C. but witness not produced in court as prosecution witness–The said witness
appearing as defence witness–Such a witness cannot be confronted with the statement
under section 161 Cr.P.C.–He could be confronted if the witness was called as
prosecution witness. State of Kerala v. Ramachandran, 2002 (4) RCR (Cri.) 673 (Ker.).
Sections 161, 162(1) and 172 Cr.P.C.–Case diary–Statement of P.W. under section
161 Cr.P.C.–If public prosecutor failed to get contradictions explained under section
162(1) Cr.P.C., it is permissible for court to invoke its power under section 172 Cr.P.C.
for explaining the contradiction–Power conferred on the court for perusal of the diary
under section 172 of the Code is not intended for explaining a contradiction which the
defence has winched to the fore through the channel permitted by law. Mahabir Singh
v. State of Haryana, AIR 2001 SC 2503.
Sections 161, 173 and 207–Statement of same witness recorded by different
investigating officer–Only one set of the statement submitted with charge-sheet–Other
set not supplied to accused–It violates the right of accused of fair trial
Article 21 of Constitution of India–Prosecution directed to supply the same within two
weeks. Shiv Narayan Kachawa v. State of Rajasthan, 2006 (3) RCR (Cri.) 69 (Raj.).
Section 161(2) Cr.P.C.–Constitution of India, Article 20(3)–Right of accused against
self-incrimination–The area covered by Article 20 (3) and Section 161(2) of Cr. P.C. is
substantially the same–Section 161(2) of the Cr.P.C. is a Parliamentary gloss on the
constitutional clause–It cannot be contended that two provisions, namely Article 20 (3)
and section 161, did not operate at the interior stages before the case came to court
and the incriminating utterance of the accused, previously recorded, was attempted to
the introduced–The protection afforded to an accused insofar as it is related to the
phrase “to be a witness” is not merely in respect of testimonial compulsion in the court
room but may well extend to compelled testimony previously obtained from him. State
of (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, 2005 (3) Apex Criminal 53 (SC).
 Section 161(3) Cr.P.C.–Recording of statement of P.W. under section 161 Cr. P.C.
whether necessary–Section 161(3) does not require a police officer to record in writing
the statements of witnesses examined by him in the course of the investigation, but if he
does record in writing any such statement, Magistrate to obliged is make copies of
those statements available to the accused before the commencement of trial–Failure to
furnish statements of witnesses recorded in the course of investigation may not vitiate
the trial but it will cause prejudice to accused. Dharamrajan v. State, 2002 Cr. L.J. 2571
(Kel).
The principle, however, decided in 16 Mad. 235 Quee Empress v. Govinda Pilly;
Patwari v. Emp 1919 All. 276; Ganpat Ram v. Ml. Ram Raj 1950 Nag. 20 is that
defamatory statements made in answers to questions put by an I.O. during investigation
are absolutely privileged. See also 29 Cat. 794, 1937 Sindh 44.
Section 162 Cr.P.C–Conviction of appellant alongwith two other accused persons for
allegedly forming an unlawful assembly and in furtherance of the said common object
stabbing deceased and also assaulting sister, brother, wife and mother of deceased–
Appeal against conviction on plea that police officer who received the information about
the incident started investigation without recording either any General Diary (G.D)
entry or F.I.R., and that F.I.R. which had been proved in trial court was hit by provisions
of sec 162 [Link].C.–Held since police officer merely visited the spot and place of
occurence and made some survey which could not be recorded as investigation–Hence,
it could not be said that F.I.R. was in any manner hit by provisions of section 162
Cr.P.C. Satish Narayan Sawant v. State of Goa, 2009(4) Crimes 39 (SC).
Section 162 Cr.P.C.–The object and purpose of giving a telephonic message is not to
lodge the F.I.R. but to request the officer-in-charge of the police station to reach the
place of occurrence. On the other hand if the information given on telephone is not
cryptic and on the basis of that information the officer-in-charge is prima facie satisfied
about the commission of a cognizable offence and proceeds from the police station after
recording such information to investigate such offence then any statement made by any
person in respect of the said offence including details about the participants shall be
deemed to be a statement made by a person to the police officer in the course of
investigation covered by section 162 Cr.P.C. that statement cannot be treated as F.I.R.
State of A.P. v. V.V. Panduranga Rao, 2009 (2) Crimes 425 (SC).
Section 162 Cr.P.C.– When accused are shown to the witness, a test identification
parade becomes meaningless. Ramesh v. State of Karnataka, 2009 (3) Crimes 349 (SC).
Section 161–Conviction setting aside–In this instant case, their was no case of
prosecution even remotely that the accused is in any way responsible for the head injury
suffered by the deceased. No opinion was rendered as to administration of poison which
proven to be fatal. The doctor opined that death was on account of the head injury. This
kind of expert opinion cannot be ignored. Consequently, set aside the conviction.
Virendra Singh v. State of Haryana, AIR 2017 SC 1228.
Section 161–Statement of victim–Victim died three months after recording of her
statement under section 161 Cr.P.C. Held, her statement is covered under section 32(1)
of the Evidence Act. Pradeep v. State of Odisha, 2019 Cr.L.J. 702 (SC).

Interrogation of a Suspect
1. Interrogation of suspects or accused is a vital part of investigation and should
always be by a trained officer. Many a crime is solved by properly handling the
suspects. Interrogation is a high form of salesmanship. One who is untrained
cannot sell even though his products are good. Even an inferior product can be
sold by a person who knows his business thoroughly well, knows his products
and understands human psychology of the buyer. The, interrogator, therefore,
must know everything about the facts and circumstances of the case before he
actually starts to interrogate a suspect. The preliminary investigation, the
examination of scene and the examination of material witness should be
completed. As much information as possible should be collected. Even house of
the accused or suspect be searched if need be.
 2. The interrogator must find out the past history and antecedents of the
suspect and question him on past events to know if he is willing to speak truth.
This will also determine the line of interrogation.
3. The interrogator must have supreme confidence in himself just a horse estimates
his rider in a wink, the suspect does not take long to form a correct estimate of
the ability of his interrogator.
4. The interrogation should be in an atmosphere free from outside
interruption, in a calm place, where the suspect knows, his helpers cannot reach.
Tell the suspect frankly that all his endeavours for approach have failed.
5. It pays a lot sometimes to take the suspect to tell him the havoc and misery he
has brought to his victim, and that his conscience will be eased by true remorse
and repentance by open admission of his guilt and by facing punishment like a
brave man. Tell him the reaction of public, how it likes his act in some cases and
how it will condemn him if he escapes justice. Make him less guilt conscious or
flatter him as the occasion demands.
6. The method of questioning varies according to the mentality of the
questioned person his age, race, sex, religion, political views, social status and
education. The use of third degree methods i.e. to seek confession of information
by the infliction of physical and mental torture of by threats or by holding
improper inducements, should be avoided.
7. The interrogator must be mentally alert, hard-working and should closely
study human psychology. His questioning should be fair, legitimate and
unprejudicial. The circumstances to the benefit of suspect and apt to prove his
innocence should be carefully investigated; object being search of truth. The
ability to be impartial and free from prejudice is a signal virtue of a superior
interrogator. He should avoid suggestive questions, be calm and patient and
should not feel excited or lose his temper. He should not be timid and afraid of
accused.
8. My experience as an investigator and prosecutor has always been to win
the confidence of accused not by false promises but by sympathy. Another useful
technique had been to set a confident subordinate of yours to play upon the mind
of the suspect to create terror in his mind that the interrogator is very firm but
fair. The said subordinate at the same time should win his sympathy and that of
the relations of the accused; may act sometimes as intermediary between them
and then prevail upon the suspect to be straight-forward, and disclose everything
to gain benefit from the interrogator. Let that subordinate approach suspect
between intervals of interrogation and sympathies. Feign temper yourself in the
meanwhile.
9. Look always in the eyes of suspect as if to hypnotize him and to closely observe
psychological reactions of your questioning viz, sweating, twitching of eyes,
blushing, quick breathing, avoidance to look straight in your eyes, clinching fits,
etc. Estimate your conclusions and then verify. Point these changes to him and
see how he speaks. Tell him that his story does not coincide with facts already in
your possession. Bring him face to face with witnesses, his helpers, parents,
wife, etc. to tell how they feel about him.

Can Accused Refuse to Answer

10. Section 161 Cr.P.C. enables the Police to examine the accused during
investigation. Refusal to answer question is punishable under section 179 I.P.C.
But the question arises if accused when being interrogated is bound to or
compelled to give self-incriminating answers. Will it be hit by Article 20 (3)
Constitution of India that no one will be compelled to be a witness against
himself. The question arose in Nandni Sat Pathy’s case, 1978 SC 1025 where
she was prosecuted under section 179 I.P.C. for refusal to answer
incriminating, answer. It was held by the Supreme Court that a police officer
was clearly a person in authority. Insistence on answering is a form of pressure
especially in the atmosphere of the police station unless certain safeguards
erasing duress are adhered to. Frequent threats of prosecution, if there is
 failure to answer, may take on the complexion of undue pressure violating
Article 20(3). The accused can keep silent where he is apt to self-incriminating
answers. It was further held “A lawyer of the accused can be consulted by him
during interrogation. Lawyer’s presence is a constitutional claim in view of
Article 22(I) Constitution of India. “
Thus, a lawyer can be present at the time of investigation by police. This can be
allowed by the court and a direction can be given for presence of counsel. A
counsel can make a request to court in this connection.
The direction in Nandni case was further interpreted by the Delhi High Court in
Ram Lal Wani 1981 Cr.L.J. 97 that it was not binding for court to give such a
direction. “What the court appears to be concerned in Nandni’s case is to
sensitize the police to humanism and, therefore, it made it prudent for the
police to allow a lawyer where the accused wants to have one it was not a
mandate but only prudent policy for the police.”
The lawyer will, however, not interfere in the interrogation.
This point arose in Jagdish Singh, 1986 Cr.L.J. 841 and it was suggested,
though the High Court refused to issue a writ, that investigation agency should
adopt the following modus operandi:
1. Police is not bound to grant the request for presence of a lawyer during
questioning.
2. But at the same time he must bear in mind that presence of lawyer will avoid
any criticism of any confession that may be made by petitioner (accused)
during interrogation.

Can Accused be Interrogated during Judicial Custody

This is permissible if accused is remanded to Judicial Custody and limit of 15
days permissible for police custody has expired, he can still be interrogated,
during investigation with the permission of the Magistrate in any place or
manner which do not amount to custody in the police. He can be interrogated in
Jail subject to his right to silence. See Gian Singh 1981 Cr.L.J. 100.
11. If there are more than one suspects, hear them individually; verity their stories;
bring then face to face; tell each what concession the other will get by clean
disclosure; watch if they secretly meet or communicate by signs; gestures;
evaluate their anxiety to see each other and relations.
12. There are many technical devices which can be put to service as under.
(i) Tape or wire recorder can be kept concealed where the suspects are
detained. Tape recording is useful method in the investigation of a case.
The tape on which the voice is recorded must be sealed to eliminate the
chances of its tempering. It was held in Yusuf Ali Nagri 1968 S.C. 147 that
the process of tape recording offers an accurate method of storing and
later reproducing sound. The imprint on the magnetic tape is the direct
effect of the relevant sounds. Like a photograph of a relevant incident, a
contemporaneous tape record of a relevant conversion is a relevant fact
and admissible under section 7 Evidence Act.
It was held in Dial Singh Narain Singh, 1969 Cr.L.J. 1422 that it can be
used for purpose of confronting a witness with his earlier tape recorded
statements. It can also be used for shaking the credit of witness, 1956
Punjab 173 Rup Chand. The identification of the taped voices is a crucial
matter. The time and place and accuracy of the recording must be proved
by a competent witness and voices must be properly identified. Where the
taped voice is admitted, it presents no difficulty but where it is denied, a
comparison becomes inevitable and can be compared. The recording of
the voice of witness for the purpose of comparison with and identification
of his earlier recorded voice can, therefore, be allowed by the court and
such comparison is neither expressly nor impliedly prohibited under any
statute. Dial Singh Supra. of course, it will be seen, if tape recorded
statement is made before police and whether it is hit by section 162
Cr.P.C. or section 25 Evidence Act. In [Link] 1973 Cr.L.J. 228
 (S.C.). The police officer had taped the telephonic conversations. It was
held by the Supreme Court that it was not hit by section 162 Cr.P.C. it was
not made to a police officer. It was relevant under sections 6, 7 and 8
Evidence Act. Further held that tape recorder conversation is admissible
provided that it is relevant, that there is identification of the voice and
that the accuracy of the conversion is proved by eliminating the possibility
of erasing the tape record.
In case Vinod Kumar 1981 Cr.L.J. 927, the Delhi High Court held that
prosecution witness cannot be called upon to get his voice tape recorded
for comparison. Neither section 73 Evidence Act allows it nor section 45
allows expert evidence on this score admissible. Section 146 Evidence Act
even does not allow it for testing veracity of witness.
(ii) The microphone can be concealed to over hear their talks.
(iii) Special glass fittings can be made to watch them unsuspected.
(iv) Lie-detector can be used in order to observe physical signs and
physiological reactions.
(v) Truth telling drugs or narcotic drugs can be administered to suspect
to calm him and let him speak without any restraint or mental reservation.
(vi) The stimulants to which suspect is addicted can often be supplied to him
to win his sympathy and get information.
All these methods are, however, not carrying much evidentiary value and
are not always sure.
13. Fisher has advocated the following three techniques which can be conveniently
adopted by the I.O.
(a) Indirect Interrogation: The suspect is treated as a witness and he is
interviewed. The questions are so framed as to be put to a witness.
Written statement is also taken from the suspect in such cases. It serves a
double purpose; one to secure information and the other to give the
suspect a false impression of security.
(b) Pretext Method: The pretended crime is related to the actual one either
in its character or only the time and location is told to get his reaction to
it.
(c) Delay Method: Either before interrogation or shortly after its start, a
period of delay is planned. During this period, suspect is watched by
someone other than the interrogator, who has been instructed not to talk
with the suspect. There actions are watched and conveyed to the
interrogator to again start interrogation.
Sections 161 and 162–Constitution of India, Article 20(3)–Evidence Act,
Section 45, 7 and 8–Voice sample–It is open to the investigating agency for the
purpose of ascertaining identification of the voice of accused to require the accused to
lend his sample voice–It does not infringe Article 20(3) of Constitution–As voice is
associated with an individual or his person and a personal trait, if scientific analysis for
identification of voice is possible then there is no inhibition in taking the voice sample of
a person on the basis of which, his identity in the tape-recorded telephonic conversation
can be established–In the instant case Court permitted the CBI to take sample voice of
accused. 1961(2) Cr.L.J. 856 and (1973)1 SCC 471 relied. Central Bureau of
Investigation v. Abdul Karim Ladsab Telgi, 2005(4) RCR(Criminal) 258: 2005 Cr.L.J.
2868 (Bombay).
Sections 162 and 161–Evidence Act, Sections 73 and 39–Identification of
Prisoners Act, 1920, Section 5–Recording of voice of accused Investigating Officer
has no power to record voice of accused for comparison during investigation–Court has
also no power to direct that accused render his voice during investigation– Power of
comparison either handwriting, or finger print or voice, specimen signature lies with
the Court, if it is required by the Court in any trial–Provision of section 5 of
Identification of Prisoners Act, 1920 are not applicable. 2003(4) RCR(Cri) 554 (SC)
relied. Dwijadas Banerjee v. State of West Bengal, 2005(4) RCR (Criminal) 274; 2005
Cr.L.J. 3151 (Calcutta).
Evidence of Dog Tracking
Police dogs have been used in training and tracking the culprits. Usually a trained
dog is brought on the spot. He sniff smell from the articles touched by accused, the
articles left by him or from the perspiration of his feet left on the ground. The smell
remains for a few hours. The dog follows the smell and leads to the capture of culprits.
There have been cases in which the dog had actually pounced upon the culprits. The
evidence of dog tracking is admissible in England. The trainer of the dog gives such
evidence.
The police should immediately inform and requisition dog with his trainer from the
Police Headquarters in cases in which offences are committed by unknown criminals.
The question of admissibility of dog tracking evidence arose in 1970 Cr.L.J. 373
(SC). Abdul Razak but was left open. It was, however, held that “in the present state of
scientific knowledge, evidence of dog tracking even if admissible is not ordinarily of
much weight.”A judicial notice of dogs habits under section 56 Evidence Act can be
taken. The dog is taken for a “tracking instrument and the handler was regarded as
reporting the movements of the instrument”. In 1972 [Link]. 362 Medusekh (Assam), a
note or warning was sounded to the effect “When a person is detected with the help of a
dog by scent identification, sufficient safeguard will have to be taken by police to
safeguard toward off suspicion against manipulation.” There must be evidence that Dog
was scented the articles. 1988 Cr.L.J. 39.



Chapter–8
Use of Statements Before Police
The Statement of witness recorded under section 161 Cr.P.C. by an I.O. can only be
used for contradicting the deponent under section 162 Cr.P.C. which reads as follows:
(1) “No statement made by any person to a police officer in the course of an
investigation under this Chapter shall, if reduced into writing, be signed by the person
making it; nor shall any such statement or any record thereof, whether in a police diary
or otherwise, or any part of such statement or record, be used for any purpose, save as
hereinafter provided, at any inquiry or trial in respect of any offence under investigation
at the time when such statement was made:
Provided when any witness is called for the prosecution in such inquiry or trial
whose statement has been reduced into writing as aforesaid, any part of his statement,
if duly proved may be used by the accused, and with the permission of court by the
prosecution, to contradict such witness in the manner provided by section 145 of the
Indian Evidence Act, 1872 (1 of 1872) and when any part of such statement is so used,
any part, thereof, may also be used in the re-examination of such witness, but for the
purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this sub-section shall be deemed to apply to any statement falling
within the provisions of section 32 (1) of the Indian Evidence Act, 1872, or to affect the
provisions of section 27 of that Act
Explanation—An omission to state a fact or circumstance in the statement referred
to in sub-section (1) may amount to contradiction if the same appears to be significant
and otherwise relevant having regard to the context in which such omission occurs and
whether any omission amounts to a contradiction in the particular context shall be a
question of fact.”
The result is:
1. The prosecution cannot use it for corroboration purposes under section 157
Evidence Act, 1976 S.C. Sat Paul. In fact it cannot be used for corroboration of P.W.,
D.W. and C. W. Tehsildar Singh 1959 S.C. 1012.
 2. The prosecution cannot use it for contradicting a witness if he comes in defence,
nor can it be used by defence for corroboration purposes. 1953 Cr.L.J. 1400: AIR 1953
All. 1652, Shioshanker v. State, where it was held:
 “If the same be not examined as P.W. but examined as a defence witness then that
statement cannot be used. Any other use of the statement (except of contradict a P.W.
by accused) is forbidden.” Also see 1963(1) Cr.L.J. 370 Subramanium. Held in 1969
Cr.L.J. 1647 Laxman Kalu by the Supreme Court that it was unfortunate that Indian Law
does not admit of cross-examination of defence witness in respect of his previous
statement before police.
3. Prosecution can use it for contradicting its own witness if he turns hostile if the
court allows him to do so. Proviso to section 162 Cr.P.C. It was held in State v. Balchand
1960 Raj 108 that, “Ordinarily if it is made to appear to the court that a witness has
hostiled from the statement made by him during investigation, it should permit the
cross-examination of such a witness under section 154 Evidence Act. Also under section
162 Cr.P.C. it is open to the prosecution to confront a witness with his statement made
during investigation with the permission of the court.” 1966 Mys. 298. In re Senhanna.
4. If a person is called as court witness, his statement before police cannot be used
to contradict by him by prosecutor or defence counsel, even if cited as P.W. 1960 Cr.L.J.
208. In re Vajrala.
5. It cannot be used by P.W. to refresh his memory 1947 P.C. 75; 1963 (2) Cr.L.J.
198 Ramdeo. It sometimes happens that witness refreshes his memory from police
statement before coming into witness box or the police officer reads to him his
statement. This point was examined in 1968 Cr.L.J. 54 (Gujarat) Kanbi and it was held
that deposition of witness in court does not become inadmissible but the evidence “may
be shaken as the witness is likely to depose to the particular incident on the basis of
what he had just read from his statement made before police and not so much on the
basis of what he actually recollected about what he had said in respect of that incident
before police.” Approved in 1978 Cr.L.J. 448 (KB.) by the Gujarat High Court, Nather
Manchhu, saying “Reading over the statement to the witness before he enters witness
box does not tantamount to use of statement and as such does not contravene section
162(1) Cr. P.C. 11 may only lesson probative value of his statement.”
6. The Court cannot use it as substantive evidence. Nav Singh 1968 Cr.L.J. 996
unless it is dying declaration. (Section 32 Evidence Act).
7. Prosecution can also use it in re-examination for explaining any ambiguity or
uncertainty in answers given in cross-examination. (Section 162 Cr.P.C. proviso). This
power is exercised without getting the witness declared hostile under section 154
Evidence Act.
See Tara Chand 1974 Cr.L.J. 1346 (Delhi) for history of section 162 and import of
proviso. According to the Hon’ble Judge, where this power used for contradiction or for
explaining the former statements under section 161 Cr.P.C, whole of the statement of
the witness is to be considered in its entirety and statement before police becomes
substantive evidence.
8. This statement of a P.W. if examined as P.W. can be used by accused for
contradicting a witness with his deposition before police recorded under section 161
Cr.P.C. or otherwise in case diary under section 145 Indian Evidence Act.
Thus, according to section 162 Cr.P.C., it is clearly established that statements
before Police made during investigation are clearly inadmissible. The only way in which
they become admissible, is if, there is any contradiction to be proved by the accused or
by prosecution with permission of court or for re-examination as at 7. In short,
statement recorded under section 162 Cr.P.C. can be used for one purpose and one
purpose only and that of contradicting the witness, 1952 Cr.L.J. 600 (All.) Ram Bali.
1976 SC 294 Sat Paul.
Statements written in a letter to investigation officer during investigation of a case
are also covered under section 162 Cr.P.C. It was held by the Supreme Court in Kali
Ram 1974 Cr.L.J. that prohibition contained in section 162 Cr.P.C. cannot be set at
naught by the police officer not himself recording the statement of a person but having
it in form of a communication address by the person concerned to the police officer.
Also held so Vinod Chaturvedi, 1984 (2) C.L.R. 275 (SC). Sunder Lal witness wrote
to Superintendent of Police on 29/4/75 when investigation already started on F.I.R.
recorded earlier. Held latter was inadmissible.
 Section 162 Cr.P.C.–Inquest report–Recital in, regarding time of death of deceased
as 10 p.m. instead of 10 a.m.–Not material if is within sweep of interdict contained in
section 162 and hence could not be used for any purpose except to contradict its
author–Mere fact that recital found place in inquest report–Would not be enough to save
it from prohibition provided in section. Parisami v. State of Tamilnadu, 1997 Cr.L.J. 219
(SC).
Rough cite plan based on statement of witnesses to investigating officer–Not
admissible in evidence. Narain Singh v. State, 1997 Cr.L.J. 1533 (Delhi).
F.I.R. lodged by informant–On subsequent interrogation police eliciting more details
of occurrence from him–Evidence of information could not be thrown overboard on that
ground. Harpal Singh v. State of Haryana, 1997 Cr.L.J. 3561 (SC).
The statement under section 161 Cr.P.C. becomes substantive evidence when it falls
within the provision of clause 1 of section 32 Evidence Act. Kishan Singh 1963 Punjab
70. It does not affect the provisions of section 27 Evidence Act.
Section 162 Cr.P.C.–Statement recorded by police under section 162 Cr.P.C. during
course of investigation–Can be used in a civil proceeding in view of section 145 of the
Evidence Act. Ranjit Satardekar v. Joe Mathiars, 2006 Cri.L.J. 2237.
Section 162 Cr.P.C.–Evidence Act, Section 32–Statement made to police–Section 162
Cr.P.C. prohibits the use of any statement made by any person to a police officer in the
course of investigation for any purpose at any enquiry or trial in respect of any offence
under investigation–However, it can be used to a limited extent to contradict a witness
as provided for by section 145 of the Evidence Act–However, section 162(2) Cr.P.C.
makes it explicit that the embargo laid down in the section shall not be deemed to apply
to any statement falling within clause (1) of section 32 or to affect the provisions of
section 27 of the Evidence Act. State (NCT) of Delhi v. Navjot Sandhu @ Afsan Guru,
2005(3) Apex Criminal 55 (SC).
 Section 162 Cr.P.C.–Section 302 I.P.C.–Murder case–Site plan–Place from where the
accused entered the Nohara and the place from where they resorted to firing is based
upon the statement of the witnesses–These are clearly hit by section 162
Cr. P.C. what the investigating officer personally saw and noted alone would be
admissible. State of Rajasthan v. Bhawani, AIR 2003 SC 4230.
Section 162 Cr.P.C–Murder–Sketch of scene and place of crime drawn by I.O.–
Reliance could not be placed on sketch unless with reference to the rough sketch, the
scene was recreated before the court through the evidence of one or the other witness,
the High Court could have placed much reliance upon that aspect. State of Himachal
Pradesh v. Prem Chand, AIR 2003 SC 708.
Section 174 Cr.P.C.–Inquest Report–Basic purpose of holding an inquest is to report
regarding the apparent cause of death namely, whether it is suicide, homicidal,
accidental or by some machinery etc.–It is not necessary to enter all the detail of the
overt acts in the inquest report–Inquest report can not be treated as substantive
evidence but may be utilised for contradicting the witnesses of inquest. Brahm Swaroop
v. State of U.P., 2010 (4) Crimes 367 (SC).
Section 162 Cr.P.C–Conviction of appellant alongwith two other accused persons for
allegedly forming an unlawful assembly and in furtherance of the said common object
stabbing deceased and also assaulting sister, brother, wife and mother of deceased–
Appeal against conviction on plea that police officer who received the information about
the incident started investigation without recording either any General Diary (G.D)
entry or F.I.R., and that F.I.R. which had been proved in trial court was hit by provisions
of section 162 C.r.P.C.–Held since police officer merely visited the spot and place of
occurence and made some survey which could not be recorded as investigation–Hence,
it could not be said that F.I.R. was in any manner hit by provisions of section 162
Cr.P.C. Satish Narayan Sawant v. State of Goa, 2009 (4) Crimes 39 (SC).
Section 162 Cr.P.C.–The object and purpose of giving a telephonic message is not to
lodge the F.I.R. but to request the officer-in-charge of the police station to reach the
place of occurrence. On the other hand if the information given on telephone is not
cryptic and on the basis of that information the officer-in-charge is prima facie satisfied
about the commission of a cognizable offence and proceeds from the police station after
recording such information to investigate such offence then any statement made by any
person in respect of the said offence including details about the participants shall be
deemed to be a statement made by a person to the police officer in the course of
investigation covered by section 162 Cr.P.C. that statement cannot be treated as F.I.R.
State of A.P. v. V.V. Panduranga Rao, 2009 (2) Crimes 425 (SC).
Section 162 Cr.P.C.– When accused are shown to the witness, a test identification
parade becomes meaningless. Ramesh v. State of Karnataka, 2009 (3) Crimes 349 (SC).
Section 162–Holding of Test identification parade–The idea of holding T.I. parade
under section 9 of the Evidence Act is to test the veracity of the witness on the question
of his capability to identify an unknown person. If no T.I. parade is held then it will be
wholly unsafe to rely on his bone testimony regarding the identification of an accused
for the first time in court. Ramesh v. State of Karnataka, 2009 Cr.L.J. 777 (SC).

The Method of Proving Contradiction

1. The accused can get the copy of the statement before police of the witness
recorded under section 161 Cr.P.C. or recorded in the body of the case diary in the
shape of gist or memoranda, as discussed earlier. State of Punjab v. Mohinder Singh,
1974 C.L.R. 301 and Gora Singh 1976 C.L.R. 330 (Punjab).
Even if statement of one witness is recorded many times during investigation,
accused cannot be denied the copy of each of the statement so recorded. Otherwise
denial vitiates the trial. 1988 Cr.L.J 42.
2. The copy of the statement can only be supplied to the accused or his counsel, as
it can only be made use of by the accused under section 162 Cr.P.C.
3. Copies are now supplied to accused before commencement of trial under section
207 Cr.P.C. which says that: ‘In any case where the proceeding has been instituted on a
police report, the Magistrate shall without delay furnish to the accused free of cost
copies of the statements recorded under section 161(3) Cr.P.C. of all the persons whom
the prosecution proposes to examine as its witnesses excluding therefrom any part as
requested by police under section 173(6) Cr.P.C. Failure to supply copies, however, may
not vitiate the trial, if no prejudice is caused to the accused. It does not affect the
jurisdiction of the court to try the case, nor is the failure by itself a ground which affects
the power of the court to record conviction; if the evidence warrants such a course.
Noorkhan v. State of Rajasthan, 1964 S.C. 286. In Sharaf Shah Khan, 1963 and Pr. 319
failure to supply copy of approver’s statement during investigation was held to be a
fatal defect and the statement was not considered by the High Court. Care should
always be taken that no inadmissible evidence is allowed to be adduced or recorded
except one which makes out any contradiction. The reason being that such inadmissible
evidence when it comes on the file raises an inference or gives rise to the suggestion
that court was influenced by such inadmissible evidence.
The Court should not refuse to allow cross-examination with respect to earlier
statement under section 161 Cr.P.C. by the accused. This was held to be a serious error
in Badri 1976 S.C. 560. The prosecution is bound to supply copies of statements of
witnesses where these are recorded first by the investigation officer and again by a
senior officer. State v. Sardara Singh, 1970 Cr.L.J. 558.
The investigating agency is bound to produce the statements recorded under section
161 Cr.P.C. along with its report and accused is entitled to get copies of such
statements in order to confront witnesses. When more than one statement of witness is
recorded, the accused is entitled to get copies of all such statements. The right cannot
be whittled down only by supplying the copy of only one statement the right guaranteed
to an accused under section 162 Cr.P.C. is total and absolute. The effect of non-supply
not being curable, the trial is vitiated and therefore new trial is to be ordered. 1988
Cr.L.J. 42.
So in Order to Contradict a Witness
(1) The whole of the statement cannot be put to the witness and proved. It is wrong
to say that Ex.D.A. the copy of the statement, was made by the witness without drawing
attention of the witness to passages making out any contradiction. Even if while cross-
examining, the witness admits what he told police was true, it does not make his
statement recorded under section 161 Cr.P.C. admissible in evidence, In re Senhanna
Supra.
(2) There can be no hard and fast rule for proving this. All that is required is that
witness must be treated fairly and be afforded a reasonable opportunity of explaining
the contradiction after his attention has been drawn to them in a fair and reasonable
manner. The matter is one of substance and not of mere form. 1952 Cr.L.J. 1131 (SC)
Bhagwan Singh v. State of Punjab.
The statement of the witnesses must be recorded at the earliest to avoid
contradictions and suspicions. Sometimes, cases are acquitted on unexplained long
delay of 10 days in recording the statement of the eye-witness. AIR 1971 SC 804.
In Indira Gandhi’s murder case, a witness gave successive statements under section
161 Cr.P.C. after 25 days. It was held that his subsequent improved statement after 25
days of no value. Kehar Singh v. State, 1988 SCC 711.
(2)(a) The best way of putting statement is to put in the actual words in which it
stands recorded. If it is so put and is shown in the record of the cross-examination
within quotation marks, no complaint can be made but the better procedure is to tender
the relevant part duly marked (as a to a, b to b) so that original itself can be seen 1954
Cr.L.J. 805 (Cal.) Sunil Chandra.
(b) The statement under section 162 Cr.P.C. should be used only to contradict the
witness and before the witness could be contradicted his attention ought to have been
drawn to contradictory portion of the statement as required under section 145 Evidence
Act. Further, the rule contained in section 145 is a Common Law Rule, Referring to it
Maclean J. said in Froderic D. Conrad v. David Greffey (1853) 14 Law E.D. 835 at page
839. “This rule is founded upon common sense and is essential to protect the character
of witness. His memory is refreshed by the necessary enquiries which enable him to
make the statement referred to and show that these were made under a mistake and
that there was no discrepancy between them and his testimony.” See State of M.R v.
Kalu Kachru Keer 1959 MR 391 and 1960 Cr.L.J. 303. In re Kudumula. The Supreme
Court in case Tehsildar Singh v. State of U.P. 1959 Cr.L.J. 1231, has prescribed the
procedure to be followed. “To illustrate: A says in the witness box that B stabbed C.
Before the police he had stated that D stabbed C. His attention can be drawn to that
part of the statement made before the police which contradicts his statements in the
witness box. If he admits his previous statements, no further proof is necessary, if he
does not admit, the practice generally followed is to admit it subject to proof by the
police officer. On the other hand, if the witness is asked ‘Did you say before the police
officer that you saw a gas light?” and he answers ‘Yes’ and then statement which does
not contain such recital is put to him as contradiction, the procedure involves two
fallacies: one is, it enables the accused to elicit by a process of cross-examination what
the witness stated before the police officer. If the police officer did not make a record of
a witness’s statement, this entire statement could be brought on record. This
procedure, therefore, contravenes the express provision of section 162 of the code. The
second fallacy is that there is no self-contradiction of the primary statement made in the
witness box for the witness has not yet made on the stand any assertion at all which can
serve as the basis. The contradiction under the section, should be between what a
witness asserted in the witness box and what he stated before the police officer and not
between what he said, he had stated before the police officer and what he actually made
before him. In such a case the question here posed does not contradict; it leads to an
answer which is contradicted by police statement.”
(3) Omission can be proved but it should be left to court to decide if omission
amounts to a contradiction or not. If so then and then only omission can be proved by
putting to witness whether that part of statement was made by him to police at the time
of making the statement. Explanation to Section 162.
It is, therefore, not every omission which can be used for contradicting a witness.
Omission in itself cannot be used under section 162 Cr.P.C. unless it amounts to
contradiction. The Supreme Court has summed up in Tehsildar Singh’s case supra the
purpose of section 162 “To sum up
1. A statement in writing made by a witness before a police officer in the course of
investigation can be used only to contradict his statement in the witness box and
for no other purpose.
2. Statement not reduced to writing by the police officer cannot be used for
contradiction.
3. Though a particular statement is not expressly recorded a statement that can be
deemed to be part of that expressly recorded can be used for contradiction not
because it is an omission strictly so called because it is deemed to form part of
the recorded statement.
4. Such a fiction is permissible by construction only in the following three cases:
(i) when a recital necessarily implied from the recital or recitals found in the
statement, illustration in the recorded statement before the police the
witness states that he saw A stabbing B at a particular point of time; but in
the witness box he says that he saw A and C stabbing B at the same point of
time in the statement before the police the word ‘only’ can be implied i.e. the
witness saw A only, stabbing B.
(ii) negative aspect of a positive recital in a statement; illustration in the
recorded statement before the police the witness says that a dark man
stabbed B but in the witness box he says that a fair man stabbed B; the
earlier statement must be deemed to contain the recital not only that the
culprit was a dark complexioned man but also that he was not of fair
complexion, and
 (iii) when the statement before the police and that before the court cannot stand
together; illustration the witness says in the recorded statement before the
police that A after stabbing B ran away by a northern lane, but in the court
he says that immediately after stabbing he ran away towards the southern
lane as he could not have run away immediate after the stabbing i.e. at the
same point of time towards the northern lane as well as towards the
southern lane, if one statement is true the other must, necessarily be false.”
Thus, only those omissions, which are covered under the three illustrations above
can be proved as amounting to contradictions. The test according to Desai J in Ram
Bali’s case supra is “to find out whether an omission is a contradiction or not is to see
whether one can point to any sentence or assertion which is irreconcilable with the
deposition in the court. An omission is not a contradiction unless what is actually said
contradicts what is omitted to be said.”
In 1976 S.C. 560 Badri the witness in the court stated that he had told everyone that
he had seen Badri running with a gun. This was an omission in police statement under
section 162 Cr.P.C. and court disallowed cross-examination on the point that it was an
omission and not contradiction. Held that refusal of the court to cross-examine on this
point which was material, the evidence of the witness was rendered untested and
cannot be accepted as corroborating the evidence of other witnesses.
Omission should be put to witness if he stated so before police. The Supreme Court
deprecated the practice of the courts merely to ask P.P. if such omission was there and
not allowed to be put to witness to explain. In Muthu Naicker 1978 Cr.L.R. (SC) 379 in
these words. “One curious practice not known to law adopted by him was that whenever
a witness was asked about an omission with reference to the statement recorded under
section 161 Cr.P.C. the learned P.P. would make a statement whether statement
referred to in evidence was to be found or not to be found in the statement under
section 161 Cr.P.C. and no attempt was made to prove the omission. Such proof lacks
support of law and is likely to be unfair to the witness.”
(4) If the statement recorded is “A corroborates B” and the full statement recorded
is only of B, the defence counsellor accused is entitled to assume that the statement of A
before the police was identical with that of B, and on that assumption can cross-examine
A as well and can be contradict him with that statement i.e. of B. The portions in the
statement of B, contradicted by A can be proved presuming that it was the statement of
A. See 1954 Cr.L.J. 306 Gautanga Moha v. State.
(5) Section 162(1) and 161–Statement of P.W. under section 161 Cr.P.C.–When any
part of such statement is used for contradicting the witness during cross-examination
the public prosecutor had the right to use any other part of the statement, during re-
examination, for the purpose of explaining it. Mahabir Singh v. State of Haryana, AIR
2005 SC 2503.
Section 162–Evidentiary Value–Evidentiary value of statement under section 161
Cr.P.C. is not a substantive piece of evidence. Statement can be used only for the
limited purpose of clashing the maker thereof in the manner laid down in the said
proviso. Rajendra Singh v. State of U.P., AIR 2007 SC 2786.
Section 162–Evidentiary Value–Section 161 or 162 of the Cr.P.C. does not refer to
registration of a case, it only speaks of a statement to be recorded by the police in the
course of the investigation and its eviduentiary value. Upkar Singh v. Ved Prakash, AIR
2004 SC 4320.

Effect of Contradiction not Duly Proved

As discussed above, when the particular contradiction is to be put to witness it must
be underlined or enclosed in a circle or exhibited as portion A to A. The extra statement
should never be exhibited because it is not admissible in evidence and has not been
brought to the notice of the witness. If this procedure is not followed then the court can
refuse to look into the statement. The portion must be marked put to witness and then
duly proved as required under section 145 Evidence Act. The failure to act as required
under section Evidence Act is a fatal defect. See Tara Singh v. State, 52 Cr.L.J. 1491
(SC). If this procedure is not adopted and the contradictory statement is not proved, it
cannot be referred by the court if argued by counsel. Iqbal Ahmad v. Emp. 1943 All. 49.
How to Prove?
The copy of the statement given should be duly proved. It is provided under section
162 Cr.P.C. that provides statement made to police can be used to contradict a witness
“If duly proved,” in the manner provided by section 145 Evidence Act.
Section 145 Evidence Act, so far as is material provides that a witness may be cross-
examined as to previous statement made by him and reduced into “writing without such
writing being shown to him or being proved but if it is intended to contradict him by the
writing, his attention must, before the writing can he proved, be called to those parts of
it which are to be used for the purpose of contradicting him.” Thus, apparently it shows
that proof is to be given after statement has been put to witness but section 162 as
above said warrants that previous statement can only be used “if duly proved” i.e. it
precedes putting. At the same time it says it should be put and proved according to
section 145 Evidence Act. Therefore these are contradictions in terms.
Thus, if a witness says that he did make a statement as put to him then it is duly
proved but if he does not admit so then it does not mean that cross-examination should
be postponed and at first the statement got proved from the writer thereof and then put
to the witness.
The practice is that cross-examiner should put contradictions to the witness from the
copy of the statement and mark the portions contradicted. If witness admits then well
and good if he does not, the Investigating Officer who wrote the statement should be
asked to prove the portions saying that these were recorded at the dictation of the
deponent. Similarly the omission will be put to I.O. who will depose that these were not
stated before him.
This procedure is endorsed in Ram Bali Supra as follows:
“If the witness admits having made that assertion or spoken that sentence, the
assertion or sentence is proved also and nothing further remains to be done, if denies or
does not remember, having made the assertion or spoken the sentence, the station
officer will have to be called to prove that he made or spoke it. This will be done by
asking him whether the witness made the assertion or spoke the sentence bearing
exhibited number so and so. This is the right way of proceeding to contradict a
witness.”
In Emp. v. Jiwan Dass 1939 Lali. 521, it was laid down that the practice of merely
asking the police officer perfunctorily whether the particular document represents the
witness’s statement as a whole cannot but be condemned. He should be put the
contradicted portions if he recorded them.

Value of Contradiction
As laid down in A.I.R, 1928 Pat. 31 : 28 Cr.L.J. 843, the true question would be
whether the inconsistency in the statement did not make the evidence in the court
unreliable. The contradictions if material can only discredit a witness. This would mean
that witness was changing fronts.
If a witness denies a fact having been made to the police then there are three
courses open to the court.
1. If this denial is believable.
2. If not believed, if it is a real contradiction and in material respect.
3. If it is such as discredits the witness on a material fact.
If on the other hand, the witness admits having made the statement put to him but
offers an explanation then the court has to see:
1. Where explanation is reasonable and compatible with the circumstances and
other particulars given.
2. Whether it brings discredit to the witness wholly or in relation to that part of
evidence only.
In brief the contradiction if not material and if not sufficient to dislodge the relevant
part of evidence in the court, will not be of much value to bring any discredit to the
prosecution witness. So every case depends upon its own facts whether to believe or
disbelieve a particular witness.
 In AIR 1991 SC 31, the accused stating before police he identified accused, in the
court saying he could not identify due to darkness, help conviction on police statement
not permissible.
Held in Namdev 1977 SC 381 : 1977 Cr.L.J. 238 “When the story narrated by the
witness in court differs substantially from that set out in his statement before police and
there are large number of contradictions in his evidence not on mere matters of detail
but on vital points, it would not be safe to rely on his evidence and it may be excluded
from consideration in determining the guilt of the accused.”
However, while considering the value of contradictions the court is to see if the
witness is rustic or what type he is and if the police has embroidered the story to give a
credible look to their case irrespective of the fact as to what witness actually says. This
point was stressed in Shivaji by the Supreme Court 1973 SC 2622 saying “When
scanning file evidence of the various witnesses the court has to in form itself that
variances on the fringes, discrepancies of details, contradictions in narrations and
embellishments in unessential parts cannot militate against the veracity of the core of
testimony.
The material contradiction in police statement has the effect of disbelieving the
evidence of witness on that part. In 1988 Cr.L.J. 1086 Arjun Sahu witness stating in the
court about extra-judicial confession made to him by accused in a murder case.
Statement before Investigating Officer silent on that matter. Evidence must be
discarded.
When the prosecution case is that accused murdered ‘A’, statement under section
164 Cr.P.C. that he killed B is no confession. 1991 Cr.L.J. 3239 (All.).
Confession to be effective must be addressed to one or a few collectively. Merely
shouting “I have killed such and such person is no confession.” See 1992 [Link]. 762
(Ori.).
Section 162 and 154–Report of incidence–Admissibility–Report sent by one of eye-
witnesses reaching to police station only after investigation was taken up could not be
regarded as F.I.R, but it would be statement recorded under section 162 Cr.P.C and
therefore inadmissible in evidence–Failure of prosecution to produce report–Not
material– More so, when suppression of report would not have helped prosecution
because no names of assailants were mentioned in roport. B. Subba Rao v. Public
Prosecutor, High Court of A.P., 1997 Cr.L.J. 4072 (SC).
Inquest Report–Statements therein to the extent they relate to what investigating
officer saw and found are admissible–But any statement made therein on basis of what
he heard from others, would be hit by section 162 Cr.P.C. George v. State of Kerala,
1998 Cr.L.J. 2034 (SC).
Unsigned statement recorded by investigating agency under section 162 Cr.P.C.–
Portions of said statement can be used during course of examination of witness either
for purpose of contradiction or for corroboration. Peethambaran Prasad v. State of
Kerala, 1998 Cr.L.J. 2122 Ker.

Effect of Omissions
Material omissions also bring discredit to the witness. Held in Ravullapali 1975 S.C.
216, “Eye-witness not coming forward and telling the I.O. what he had long after stated
in the court. His omission to do so condemns his testimony.”
Omission to exhibit F.I.R. is no ground for rejection of testimony of eye-witnesses if
otherwise found reliable. 1991 Cr.L.J. 220 (Ori.).
However, if investigation is perfunctory and malafide, then omissions do not matters
as the conduct of the investigator will show that he intentionally created these
omissions to help the accused. See Krishan Chand 1968 Orissa 172, and Balddin 1956
SC 181.
Use of statement in evidence–Omission what constitutes omission minor and
insignificant is of no consequence–Question of omission has to be decided on basis of
facts and circumstances of each case–It is neither possible nor desirable to lay down
any hard and fast rule on this subject. Indrajeet Roy v. Republic of India, 1999 Cr.L.J.
4727.
Statement of Accused before Police Investigation inadmissible in Evidence
Once the investigation of a case is started, any statement made by accused even if
exculaptory, before an I.O. at any police officer in capacity of I.O. cannot be admitted
into evidence. In re Syanq Mahi Patro 55 Mad 903 F.B. the matter was discussed in
detail. This judgement brought within the ambit of section 162 Cr.P.C. all sorts of
statements made by accused person to the police during the course of an investigation.
Similarly it was laid down in King Emp. v. Mating Thadin 4 Rang 72 (FB) that section
162 Cr.P.C. applied to oral as well as written statements of accused during
investigation.
There was, however, a conflict of opinion on this point between the Indian Courts.
The opposite view being that of Rankin J. in Azi Muddy v. Emp. 54 Cal. 237. This conflict
is, however, set at rest by the pronouncement of decision by their Lordships of Privy
Council in Pakala Narayanswami which approved the view taken in 55 Mad. 903 Supra
that “any person” in section 162 Cr.P.C. includes the accused and as such statement
made by accused before an I.O. during the course of investigation is inadmissible in
evidence. Held, so by the Supreme Court in 1972 Cr.L.J. 860 Mahabir Mandal. Bar of
inadmissibility created by section 162 operates on statements of accused made to police
officer.
It was held in 51 Pat. 63 Jagwea Danuk v. Emp. that section 162 Cr.P.C did not
prohibit the omissions in statement made by accused person to police provided these
were not confessions. This is, however, brought out with various difficulties as in that
way many admissions of accused would be favourable to the prosecution which will like
them to come in evidence. This view is not correct, nor it was approved, in any other
case.
In 1942 Cal. 593: I.L.R 1942 1 Cal. 433, it was held that in short the prohibition of
this section 162 extends to all statements confessional or otherwise, whether reduced
into writing or not, provided they are made to a police officer in the course of
investigation under Chapter XIV (now Chapter XII). This view finds support from 1954
Cr.L.J. 910 (SC) Shiv Bahadur v. State and Mohan Singh, 1976 S.C. 449, it was held that
any statement made by accused during investigation to a police officer was inadmissible
under section 162 Cr.P.C. and neither the accused nor the prosecution could take
advantage of it; whether it goes in favour of the accused.
Statement made to police officer–Contradictory statements wife making allegations
against husband in her previous statement–Her subsequent statement contrary to
previous one–Previous statement cannot be discarded as false under the subsequent
one is proved. K.K. Sharma v. State of Rajasthan, 1998 Cr.L.J. 2609 Raj.
Confernoval statement–Use in evidence–Confernoval statement not made in course
of investigation but made immediately after occurrence–Not hit by section 162. Ramesh
Kumar v. statement of Rajasthan, 1999 Cr.L.J. 871 Raj.

Exception to this Rule

The First Exception is that statement leading to discovery under section 27 Evidence
Act is admissible and section 162 Cr.P.C. does not affect it. It is for the I.O. then to state
in the court at the time of making statement that accused had made a statement before
him which he recorded in the case diary and that as a result of that information he
discovered a certain article. Now section 162 does not exclude such statement from
evidence as laid down in section 162(2) Cr.P.C, therefore, the part relating to that fact
is admissible in evidence. In order to make the truth of this relevant portion established,
the I.O. while making statement should refresh his memory from the actual statement in
the case diary and then state the fact. In this way this portion could be seen by the
accused and in this method the specific portion will be proved. It is, however, always
better to write a memo regarding this portion which is admissible in evidence. (See
Chapter on Section 27 Evidence Act).
This procedure is warranted (Regarding refreshing of memory and making
statement) by ruling P.P. v. Pusala Venkata Reddi 1945 Mad. 202 (Reg. statement of
accused at the time of production of property and the court’s duty. See Chapter on
Production).
 The Second Exception is that the statement of accused can be used for help in
passing an order about disposal of case property under section 452 Cr.P.C. It was held
in Smt. Bhutti 1965 (2) Cr.L.J. 702 that an order for disposal of property is passed after
an enquiry of trial as the opening words of section 517 (Now section 452) show and that
section 162 Cr.P.C. cannot be a bar for using those statements in such proceedings
where the question of the right of possession of the property is only looked into by the
court and not of its ownership. In this case, in got of gold made from stolen ornaments
was returned to complainant in a trial of theft case, relying upon the statement of the
accused that he sold ornaments to the goldsmith.

Statement made by Accused to Third Person during the Investigation

in the Presence of Police
Section 162 Cr.P.C. applies only to statement made to a police officer during
investigation. It, however, does not apply to statement made to third person even if it be
in the presence of a police officer and as such every statement as made above would be
admissible in evidence and not affected by the provisions of
section 162 Cr.P.C. An investigating officer by taking greater caution can avoid that
statement to be made to him by letting the accused make that very statement before a
third person. See AIR 1949 section 33 and 1944 Pat. 67.
It was, however, held in 1949 Lah. 129 (F.B.) Hakam KhudaYar. v. Emp. “If in facts
of any case, it was found that a statement made to a third person was in reality intended
to be made to police and was represented as having been made to a third person merely
as a colourable pretence in order to avoid the provisions of section 162 Cr.P.C., the
court would hold, it excluded that section.” But this view does not altogether exclude
every possibility of recourse to this method. It, however, suggests a sort of principle to
be applied to facts of every case. In 1954 Cr.L.J. 910 (SC) Rao Shi, Bahadur Singh v.
State it was held “Section 162 Cr.P.C. rendered the statement made by the appellant
No. 1 (accused), to the police officer inadmissible as the investigation into the offence
had started.” Further held “Every statement made to a person assisting the police
during an investigation cannot be treated as a statement made to the police or to the
Magistrate and as such excluded by section 162 or section 164 Cr.P.C. The question is
one of fact and has got to be determined having regard to the circumstances of each
case.”
In this case it was held that resort to this method was by way of greater caution.

Statement of Accused Recovered by Police

The “Statement made to police officer,” as contained in section 162 Cr.P.C. can
notes the idea of communication to a police officer by any person. It does not apply to
statement written by accused and recovered from his pocket. In Himmat Singh, 1965
Gujarat 302, the accused had written the statement for having murdered, but it in his
pocket to commit suicide; it was held that it was admissible and not hit by Section 162
Cr.P.C. or by Section 25 Evidence Act. See 1966 SC 1906 in which a letter containing
confession recovered from house search of accused by S.I. was held relevant though
written to S.I.
In Yusuf Ali AIR 1968 SC 147, it was observed by the Supreme Court that
conversation between complainant and the accused recorded in a tape-recorder kept in
another room by a police officer, accused having no knowledge that the conversation is
being tape-recorded and of the presence of police, held that the conversation is being
tape-recorded confession is not a statement to the police within the meaning of section
162.

Copy in only those cases which were investigated and are tried
The copy of the statement recorded under section 161 Cr.P.C. can only be given for
purposes of contradiction in trial in cases in respect of the very offence which was
investigated by the police. The proviso to section 162(1) Cr.P.C. which gives the right to
obtain copies to “such inquiry or trial” i.e. to inquiry or trial of any offence under
investigation under this chapter at a time when the statement was made.
Copy of the gist of the statement of witness recorded in the body of the case diary by
the investigating officer or verification officer can be given and the witness can be
contradicted with it. State of Punjab v. Mohinder Singh, 1974 C.L.R. 301, Gora Singh
1976 C.L.R. 330.
Thus, copy of the statement of witness whether recorded under section 161 Cr.P.C.
or the gist recorded by any officer I.O. or S.O. or higher officer in the case diary;
whether in a cassette when tape recorded, the accused has a right to take copy;
duplicate of cassette even to contradict a witness and to prepare his defence Col. S.J.
Chowdhry, 1978(2) C.L.R. 378.
The copy, therefore, cannot be given in the trial of any other case the offence of
which was not investigated. Similarly it cannot be given for trial of any non-cognizable
offence, the complaint of which has been brought up by the complainant or accused and
even if that arises out of the facts of case being investigated by police. This was so held
in 1954 Cr.L.J. 1751 (SC) Purshottam Jethanand v. State of Kutch, AIR 1954 SC 700, in
these words “The statutory right of the accused to be furnished with statement appears
clearly to relate to a trial in respect of the very offence which was investigated and does
not apply to a trial for a non-cognizable offence in respect of which in fact there has
been no investigation.
An accused in a criminal tried has the right to make use of the previous statements
of a witness including the statements recorded by the investigating agency during the
course of an investigation for the purpose of establishing a contradiction in the evidence
of a witness or discredit the witness. State of Kerala v. Babu & Others, 1999 Cr.L.J.
3491 (SC).
It may be, however, remembered that copy cannot be refused merely on the ground
that investigation was conducted without sanction and as such it was illegal. But it must
be given in trial of the same offence. See Shyam Lal Sharma v. Emp. 1949 All. 483-50
Cr.L.J. 719 (FB) where it was held that the illegality committed by the investigator in
not obtaining authority and yet proceeding to investigate cannot be taken to deprive the
accused of his statutory right. In a case under Prevention of Corruption Act, 1947 it was
held by the Supreme Court that illegal investigation without sanction under section 5A
did not render statements recorded therein under section 161 Cr.P.C. illegal and copies
of these statements can be given for contradiction in a trial of that case. 1968 Cr.L.J.
1505 Bhanu Prasad (SC).

Copies in which Challan not sent by Complaint is Filed

The statement to police during investigation of offence different from one under trial
can, however, be used for cross-examination of a witness in that case as the main part
of section 162 Cr.P.C. and the proviso of it do not apply to such a case. See 1933 Mad.
65 Subhays v. State, Contra 1967 Cr.L.J. 1552.
This point also arose of Bakhatawar Singh v. State 1951 Raj. 145. There a complaint
had been filed by the complainant who was not satisfied with police investigation in that
very case got registered by him earlier. It was held that copies could be supplied to the
accused since the statements under section 161 Cr.P.C. were recorded in the course of
the investigation of very offence which was being tried. It was held in Daitari 1965
Orissa 21, that accused can get copies of statement before police for contradiction
under section 162 Cr.P.C. even though police refuse to submit charge-sheet and the
accused is being tried on private complaint for that offence State of M.P. v. Rama Dhin
1962 (2) Cr.L.J. 550. In case Naib Singh 1976 C.L.R. 146 (Pb.) where copies of
statements were allowed, it was further held that the accused has every right to know
what these prosecution witnesses state to the police. In case these statements are kept
away from the accused there is a possibility of the version of the complainant being
improved at the last stage. The withholding of such statements causes prejudice to the
accused. See also 1968 Cal. 540 Supdt. v. Vimla Devi. If the trial is for a different
offence, the copies cannot be granted in 1957 Raj. 185, the case registered was of theft
on the information of accused who was later tried under section 182 I.P.C. for false
information. The copies of statements recorded in theft case were disallowed.
Statement of witnesses recorded during investigation of crime under section 161
Cr.P.C. can be used in civil litigation as previous statements. Section 162 does not bar it
nor the privilege can be claimed under section 123 Evidence Act. Similarly a plan
prepared during investigation or other documents can be led in civil litigation as held in
1965 All. 494.
It was held in case state (Delhi Administration) v. Gian Singh, 1982 (2) C.L.R. 203.
Held, “that the question now is whether copies of the medical reports of the police
surgeon under section 174(3) can be granted at this stage, that is before the filing of the
charge-sheet.”
The sole point for our determination is whether the documents in question are
public document within the meaning of section 74 of the Evidence Act.
(Para 11).
It is clear from Lord Blackburn’s speech that to be a public document it must be one
made for the purpose of public making use of it. Its object must be that all persons
concerned in it may have access to it.
(Para 13)
It is true that the police surgeon is a public officer and that it is his statutory duty to
inquire into the cause of death and report thereon. But it would defeat the very purpose
of chapter XII namely, effective investigation into offence if it is made known to the
public or the respondent as in this case.
It appears that the tests of a public document propounded by Lord Blackburn is the
test of publicity. The public are interested in it and are entitled to see it. The whole gist
of the rule as to public documents is publicity and publicity means that persons
interested have right to inspect the document.
It follows that the right to inspect (which is assumed in section 76) and take copies
of public documents are essential qualities of public documents.
(Para 17).
The investigation has to be conducted in private and behind the back of the criminal;
investigation into a criminal offence is not a public inquiry. It is private, secret and
confidential. It is so because it proceeds the accusatorial stage. Reporting the result of
an investigation or the expression of opinion cannot be said to be the record of an act of
public officer.
(Para 18)
Copy of documents before giving challan in court except that of F.I.R. cannot be
given.
It was held in Ram Jethmalani v. Director of C.B.I. That statement recorded by police
officer under section 161 Cr.P.C. is a public documents. (Section 74 Evidence Act).
Seizure memos prepared by investigating officer–Obtaining signature of accused on
seizure memos–Would not vital the testimony of accused in court–Furthermore
prohibition in section 162(1) Cr.P.C. is not applicable to proceeding made under section
27 of Evidence Act. State of Rajasthan v. Teja Ram & Others, 1999 Cr.L.J. 2588 (SC).
F.I.R. recorded againsts accused–Is not statement within meaning of section 162.
Damodar Mishra v. State of Orissa, 2000 Cr.L.J. 2073 (Ori.).



Chapter–9
Case Diaries
Every Investigating Officer is to write a case in which he is making investigation
section 172(1) Cr.P.C. lays down:
“Every police officer making an investigation under this Chapter shall day by day
enter his proceeding in the investigation in a diary, setting forth the time at which the
information reached him, the time at which he began and closed his investigation, the
place or places visited by him and a statement of the circumstances through his
investigation.
(1A) The statements of witnesses recorded during the course of investigation under
section 161 shall be inserted in the case diary.
(1B) The diary referred to in sub-section (1) shall be a volume and duly paginated.”
Thus, it is a mandatory provision of law to keep a case diary. It should be regularly
maintained and the various steps taken by the I.O. should all be incorporated in it. If the
case diary is not written day by day or it is not maintained at all, it means the evidence
has been manipulated, and there is no sanction of truth attaching to it. It was held in
Zahiruddin v. Emp. 1947 P.C. 75 that contravention of section 172 resulting in failure to
keep the case diary lays the evidence of the police officer open to adverse criticism and
may diminish its value but it does not have the effect of making that evidence
inadmissible. The Court will look to the evidence later produced with suspicion as to its
truth and as to its existence in the initial stages of the case.

Some Points in writing Case Diaries

The case diary should always be written on the printed case diary books supplied by
the police office. Punjab Police Rule 25.54 (1) lays down that case diaries shall
ordinarily be submitted in Form 25.54 (1) and each sheet shall be number and stamped
with the station stamp. Two or more copies, as may be ordered shall be made by the
carbon copying process by the officer conducting the investigation. Every police officer
should see that the number of the pages and book as also the printed portion of the case
diary are intact. These portions should never be torn off. The presumption, otherwise
would be that these proceedings were not entered day by day and, hence, there was
need to tamper with the pages in order to suit and theory made by the I.O. who
incorporated other pages.
In 1953 Cr.L.J. 143 Bhaya Lall Singh v. State, it was held that writing of case diaries
on loose sheets is to be disapproved. Bound books with alternatively numbered pages
and arrangements for carbon copies are expected to be the police department and these
alone should be used by the police officers.
2. The case diary should be sent to P.S. as soon as completed for the day by the first
available means and not detained by the I.O. The day and time of receipt of case diary in
police station should be noted on case diary itself para 25.54 (2) Punjab Police Rules
lays down that they shall be self from the scene of investigation to P.S. without delay.
3. On arrival at the police station the number and date of each C.D. shall be
recorded on the reverse of police station copy of the F.I.R. and the date and hour of
receipt shall be entered, on each copy of the diary.
4. The original shall be despatched with as little delay as possible to the Inspector or
other superior officer after the time of despatch has been entered in the space provided
in the form in the original (also in the copy or copies). In other words it means that C.D.,
should be sent to the headquarters through the next despatch of dak, the despatch
being invariably noted on the diary. The C.D. should be sent along with the Daily Diary
copy and the closing entry of the D.D. regarding dak should contain the despatch of the
C.D. also. This procedure will enhance the sanctity of despatch in time.
This will check any malpractice on the part of police officer in writing the case diary
will delay.
5. The index attached to the outer sheets of the C.D.’s. should be regularly filled, so
that it could be checked with the used case diary pages at any time.
In case 1953 Cr.L.J. 884 (Pepsu) State v. Hardyal Singh, an adverse view was taken
of this fact. The Zimnies were not paged and there was no note to the effect on these as
to when these were sent to Head Quarters.
6. The case diary shall be written day by day. If the investigation is started with
delay after the registration of the case or is given up for some interval, the cause of the
delay should be given in the case diary in the opening para. Ordinarily the investigation
of every case should be taken up immediately after the registration of case. The delay
would result in the loss of a good deal of material evidence which may either become
unavailable or tainted. If the case diary is not written day by day then I.O. is apt to
forget many things and may even ignore or exaggerate things. Punjab Police Rules
25.53(1) also lays down that section 172(1) Cr.P.C requires that a C.D. should be
maintained and submitted daily during an investigation by I.O. The time when the
investigation began and when investigation was closed should invariably be given.
Correct record of time must be maintained.
The C.D. shall be written by the I.O. in his own and writing. If he cannot write, he
can dictate to a illiterate assistant but a reason regarding that should always be given.
7. In such C.D. shall be recorded concisely and clearly the steps taken by police, the
circumstances ascertained through investigation and the other information required by
section 172(1) Cr.P.C. Case Diaries shall be as brief as possible; shall not be swollen
with lengthy explanations and theories and shall be written either in English or in
simple state language. See Punjab Police Rules 25.53(1) and (2). The case diary should
always give a picture of the proceedings taken by an I.O. The facts as elicited from the
perusal of spot or the interrogation or respectables and witnesses or suspects should be
carefully and concisely given. The trivial details, the gossips the irrelevant matters
should be excluded. The investigating officer should see that all the links of evidence
are given completely and there is no confusion of facts and details. It should be a
complete chain of events leading to a crime, in itself and its effect. Scene must be
described fully; plan drawn on separate sheet; fact of photographs taken to be
mentioned.
Case should always be taken that facts narrated in C.D. are supported by
circumstances and that some respectables join the investigation and stand witness to
that “Only such incidents of investigation shall be included as have a bearing on the
case 25.53(2).” It is further laid down in Punjab Police Rules 25.53(3 and 4) that
detailed list of stolen property or of property seized in the course of a search shall be
entered in the first case diaries submitted after the facts relating to such property were
reported to or discussed by the I.O. The fact that the copies of the record prepared
under the provisions of section 165 or section 166 Cr.P.C. have been sent to the nearest
magistrate empowered to take cognizance of the offence shall be noted. Grounds of
searches; groups of arrest; and that accused was informed about grounds of arrest;
about option of bail in bailable case must be mentioned in C.D.
8. The I.O. should understand as to what evidence is essential for proving the crime.
That evidence should be clearly and cogently made out. In the closing para of the C.D.
he should state as to what remains to be done and what steps were still to be taken for
the completion of the investigation and collection of evidence. This would facilitate his
work, work of supervising officer who can judge, guide and point out the right lines to
the I.O. and the work of relieving officer, in case I.O. has to leave the investigation of
the case.
9. Confession to be recorded in first person and in words of accused, especially
statement under section 27 Evidence Act.
10. The supervising officer or the prosecutors at the time of checking challans
sometimes write Parwanas to the I.O. asking elucidation on certain points and to do
certain things for the rightful and intelligible completion of the case. Such Parwanas
should be copied out in the case diary and other compliance ensured. It was held in
Emp. v. Mannchilk, 1938 Pattia 90 that these notes usually make these diaries more
intelligible and more useful as aid in inquiries and trials.
11. If the I.O. takes rough notes and then writes the C.D. he should maintain these.
Sometimes their loss creates suspicion in the mind of the court. Steps taken for
identification of accused and property should also be noted.
 12. The final case diary should be always by the officer-in-charge who must give the
final resume of the case with the result of the investigation. It should be self-contained
giving briefly the facts of case and material aspect of evidence to be produced with the
list of witnesses and what they would state.

Use of Case Diary by Courts

Section 172(2) and (3) Cr.P.C. lays down
“(2) Any Criminal Court may send for the police diaries of a case under inquiry or
trial in such court, and may use such diaries, not as evidence in the case, but to aid it in
such enquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor
shall he or they shall be entitled to see them merely because they are referred to by the
Court; but if they are used by the police officer who made them to referred his memory
orief the court unless them. For the purpose of contradicting such police officer, the
provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act,
1872 (1 of 1872), shall apply.”
The accused cannot see the case diaries of the case. He or his counsel have no right
of inspection of case diaries. The Court can call for the police file in a case under
inquiry or trial but cannot base its judgement on the facts contained in police diaries
and these cannot be used as substantive evidence by the court, for corroboration
purposes or otherwise. These cannot be incorporated in the judgement by the court in
order to support its finding one way or the other. In Ranjit Singh v. State 1962 Cr.L.J.
1720 (HP), it was laid down that the court when it considers any fact, date, statement or
other matters mentioned in a police diary is or may be relevant, must have them
established by legal evidence. It cannot legally accept the diary as evidence in any
sense to establish them.
Section 172–Police Diary has no evidentiary value and accused not entitled to call or
see such diaries–Officials of Police Control Room–Not investigating officer–Diary
initiated C.D. by police investigating officer or general diary maintained in police station
adumbrated under section 172–Copies of entries made therein–Can be furnished to
accused. Siva v. State, Inspector of Police, 2000 Cr.L J. 4465 (Mad).
The Court can look into the case diary for the purpose of elucidating a point and for
the purposes of arriving at justice. In that ease, too, it was pointed out in Queen
Empress v. Annu 19 All. 390 (FB) that a special diary may be used by the court to assist
in an enquiry or trial by suggesting means of further elucidating points which need
clearing up and which are material for the purposes of doing justice between the crown
and the accused but not as containing entries which can by themselves be taken to be
evidence of any date, fact or statement therein contained. Held by the Supreme Court in
1954 S.C. 51 Habeeb “A judge is in error in making use of case diaries at all in his
judgement and in seeking confirmation of his opinion on the question of appreciation of
the evidence from statements contained in these diaries.”
 Thus, if the court, on perusal of C.D. finds to be essential any fact of importance in
the case for just decision of the case, it should call for evidence, to have that matter or
fact legally proved. Unless and until that is done, the enteries by themselves cannot be
taken as evidence. Even consent of accused cannot legalize use of diary as evidence.
See 1925 Oudh 1, 1946 Pat 127.
Murder–Appreciation of evidence–Investigation officer neither entered time of
recording of statement of witneses in diary nor did he send blood–Stained clothes and
earth seized from place of occurrence for examination by a Serologist said lapse and
non-compliance of section 172 Cr.P.C. not shown to have caused prejudice to accused–
Evidence of eye-witneses found to be thuster them–Evidence showing promptness on
part of prosecution in setting criminal law in motion–Finding of guilt recorded by court–
Not interfered with. Baleshwar Mandal v. State of Bihar, 1997 Cr.L.J. 4084 (SC).
Section 172–Case Diary–Under section 172 Cr.P.C. every police officer making an
investigation has to record his proceedings in a diary setting forth the time at which the
information reached him, the time at which he began and closed his investigation, the
place or places visited by him and a statement of the circumstances ascertained
through his investigation–Court is empowered to call for such diaries not to use it as
evidence but to use it as aid to find out anything that happened during the investigation
of the crime–Neither the accused nor his agents shall be entitled to call for such diaries
nor shall he or they be entitled to see them merely because they are referred to by the
court, but if they are used by the police officer who made them to refresh his memory,
or if the court uses them for the purpose of contradicting such police officer, the
provisions of section 161 of the Cr.P.C. or the provisions of section 145 of the Evidence
Act shall be complied with. Sidharth v. State of Bihar, AIR 2005 SC 4352.
Section 172 Cr.P.C.–A Criminal Court can use the case diary in the aid of any inquiry
or trial but not as an evidence. This position is made clear by section 172(2) Cr.P.C.
section 172(3) places restrictions upon the use of case diary by providing that accused
has no right to call for the case diary but if it is used by the police officer who made the
entries for the refreshing his memory or if the court uses it for the purpose of
contradicting such police officer, it will be so done in the manner provided in section
161 Cr.P.C. and section 145 of the Evidence Act. Md. Ankoos v. the Public Prosecutor,
High Court of AP, 2009 (4) Crimes 158 (SC).
Section 172–Case Diary cannot be used to overcome contradictions pointed out by
the defence. Md. Ankoos v. the Public Prosecutor, High Court of AP, 2009 (4) Crimes
158 (SC).
Held in Brahmdeo 1988 Cr.L.J. 734. The use of police diaries cannot go beyond the
elegitimate limits provided under section 172. “The Court cannot take out facts from the
police diary as material evidence to arrive at any finding. In absence of any proof, the
police diary can never be taken as evidence. If the court discovers any material in the
diary or any matter which may be important for the just decision of the case, then it is
open for court to call for necessary material evidence and document and to have the
same legally proved as evidence. It is not open for the court to read the diary and to
take out a few facts and the statements made in it as evidence and to use it to come to a
finding. In any case the entries in the diary are in the shape of secondary evidence and
cannot be used either as corroborative or substantive evidence in a case and even the
objective findings or circumstances entered in the diary cannot be used unless they are
legally admissible and proved by the witnesses recording the same.”
It has been laid down in the Punjab High Court Rules and Orders, Vol. III, Ch. 12,
Para 3 “Criminal Courts should avail themselves of the assistance of the police diaries
for the purpose of discovering sources and lines of inquiry and the names who may be in
a position to give material evidence and should call for diaries for this purpose.”
The accused as laid down in section 172(2) Cr.P.C. is not entitled to see the case
diary merely because it is referred to by the court. He can, however, see the specific
portion of the case diary by which:
1. The Court contradicts the police officer, (without confronting the police officer
who had prepared the case diary in terms of section 161 Evidence Act, the case
diary cannot be used). 1958 All. I State v. Fateh Babadur.
2. The police officer refreshes his memory.
 It is the court alone which can contradict a police officer. It cannot delegate
this power to the counsel for defence. See 1933 Lab. 498.
The accused has, thus, no right to inspect the case diary. His right accrues only if
the above said two conditions are satisfied. Held so in 1988 Cr.L.J. 1077. Section 172 (2)
is not unconstitutional.
This point again arose in Mukand Lall 1989 Cr.L.J. 872, 1989 S.C. 144 before the
Supreme Court where it was asserted that section 172 clause (3) be struck down in the
public interest and accused be given an unfettered right to inspect the case diaries. The
Supreme Court held that it could not agree saying “the denial to accused of an
unfettered right to make roving inspection of the entries in the case diary regardless of
whether these entries are used by the police officer concerned to refresh his memory or
regardless of the fact whether the court has used these entries for the purpose of
contradicting such police officer cannot be said to be unreasonable. Under sub-section
(2) of section 172, the court itself has the unfettered power to examine the entries in
the diaries. This is a very important safeguard. The legislature has reposed complete
trust in the court which is conducting the enquiry or trial. It has empowered the court
to call for any such relevant case diary, if there is any inconsistency or contradiction
arising in the context of case diary, the court can use the entries for contradicting the
police officer as provided in sub-section (3) of section 172. Ultimately there can be no
better custodian or guardian of justice than the court trying the case. No court will deny
to itself to make use of the entries in the case diary to the advantage of accused by
contradicting the police officer with reference to the contents of case diary. In view of
this safeguard it cannot be said that unless an unfettered right is conferred and
recognized the embargo engrafted in sub-section (3) of section 172 would fail to meet
the test of reasonableness.
The public interest requirement from the stand point of the need to ensure a fair
trial to an accused is made than sufficiently met by the power conferred on the court
which is the ultimate custodian of the interests of justice and can always be trusted to
be vigilant to ensure that the interest of the accused person standing the trial is fully
safeguarded. Moreover, the public interest requirement from the perspective of can
bring the investigation agency to investigate the cause against the society in order that
the interests of the community to ensure that culprit traced should be brought to book
is also safeguarded.
Section 17 embodies a composite scheme. ‘‘The duty cast under clause (1) and the
rider added by clause (3) thereof form integral part of the scheme. Clause 3 cannot be
struck down in isolation while retaining clause 1. The legislature has cast the obligation
subject to the rider. Clause (3) can not be viewed in isolation.”
Section 172–Conduct of fair investigation–The mandatory duty cast on the
investigating agency to maintain a case diary of every investigation on day to day basis
and the power of the court under section 172(2) and the plenary power conferred in the
High Courts by Article 226 of the Constitution are adequate safeguards to ensure the
conduct of a fair investigation. The power of the investigating agency is large and
expansive and the court have a minimum role in this regard. V.K. Sarikala v. State, 2012
Cr.L.J. 177 (SC).
Section 172–Entries in General Diary–The General Diary entries are summary
entires relating to movement or police of relating to fact that some information
regarding an offences has been given at the police station. Doubts were created on this
ground in the instant case was what more could have been mentioned in the General
Diary or there are minor variations in the statements of witnesses cannot be said to be
reasonable doubt. Dhal Singh Dewangan v. State of Chhatisgarh, 2017
Cr.L.J. 1143 (SC).
Section 172–Inspection of case diary–Denial of right to the accused to inspect the
case diary cannot be characterised as unreasonable or arbitrary. The confidentiality is
always kept in the matter of investigation and it is not desirable to make available the
police diary to the accused on his demand. Balakram v. State of Uttarakhand, 2017
Cr.L.J. 2933.
Section 172–Relevance of investigation–The confidentiality is always kept in the
matter of criminal investigation and it is not desirable to make available the entire case
diary was given to the accused. In the instant case, court has noticed that the entire
case diary was given to the accused and the investigating officer was extensively cross-
examined on many facts which were not very much relevant for the purpose of a case.
Session judge should have been careful that the trial of the case was conducted in
accordance with the provisions of the Cr.P.C. Siddarth v. State of Bihar, 2005 Cr.L.J.
4499 (SC).
Section 172–Scope–A witness may be cross-examined as to his previous statements
made by him as contemplated under section 145 of the Evidence Act of such previous
statements are brought on record, in accordance with law before the court and if the
contingencies as contemplated under section 172(3) Cr.P.C. are fulfilled. Balakram v.
State of Uttarakhand, AIR 2017 SC 2375.
Section 172–Use of case diary as evidence–If the court uses the entries in a case
diary for contradicting a police officer it should be done only in the manner provided in
section 145 of the Evidence Act by giving the author of the statement an opportunity to
explain the contradiction, after his attention is called to that part of the statement which
is intended to be so used for contradiction, the power conferred on the court for perusal
of the diary under section 172 of the Code is not intended for explaining a contradiction
which the defence was winched to the fore through the channel permitted by law. The
interdict contained in section 162 Cr.P.C. debars the court from using the power under
section 172 Cr.P.C. for the purpose of explaining the contradiction. Md. Ankoos &
others v. The Public Prosecutor High Court of A.P., 2009(14) JT (SC) 6.

Can the Police Officer be Compelled to Refresh his Memory

According to section 162 Cr.P.C., section 172 Cr.P.C. or section 159 Evidence Act no
witness other than a police officer has the right to see the case diary in order to refresh
his memory. It is only a police officer who has written the C.D. who can refresh his
memory by seeing the specific portion or the relevant part of the case diary.
There are conflicting views of the different High Courts on the point whether a
police officer can be compelled to refresh his memory or not. It was held by the Calcutta
High Court (8 Cal. 739 Empress v. Jhubhoo Mahlon and 8 Cal. 154) and the Nagpur
High Court Sheiks Dilawar v. Emp. 27 Cr.L.J. 57 that it is wholly within the discretion of
the police officer whether to refresh the memory or not. The court cannot compel him to
do so, nor the accused is entitled to insist that a police officer must do so.
But the views of Allahabad Harkhu v. Emp. 1921 All. 86, Patna, Mohiuddin v. Emp.
1924 Pat. 829, Desdhan Pandey v. Emp Pat. 131 and the Lahore High Court Fatnayalal
Khan v. Emp. 142 Lah. 897 is that police officer is under an obvious obligation to
refresh his memory and the court can compel him to do so.
The latter view is in consonance with equity and cannons of justice. It is the duty of
every police officer to help the court in arriving at the truth. He should be straight
forward in his conduct while giving evidence. His refusal to refresh his memory will
apparently show that he is hiding something and if he peruses the case diary, he might
feel contradicted. The court can see that portion and can contradict the police officer. It
is therefore necessary that police officer while making statement should be fully
prepared and conversant with facts given in the case diary. He should be confident of
what he has written and if there is need to refresh memory, he should not shirk
otherwise the accused is entitled to take the benefit of refusal to refer to the case diary.
This was the view taken in Shive Shernagal v. State, 1953 M.B. 21.
If the police officer refreshes his memory by seeing a certain portion of the case
diary, the accused has the right to see that portion lie, however, must exercise that
right at once. As held in 8 Cal. 739; 12 Cal. Law Report 233 (DB) if the accused does not
exercise his right as soon as the witness refreshes his memory, he does not continue to
retain it during the whole of the subsequent examination of the witness.
The bar against production and use of case diary is intended to operate only in an
enquiry or trial for an offence and even this bar is a limited bar as this bar does not
operate if it is used by police officer to refresh his memory or by the criminal court to
contradict such police officer. Khatri v. State of Bihar, AIR 1981 SC 1068.
Daily diary in police station–Production in court–It can not be produced as a matter
of course in every case. Kalp Nath Rai v. State (Through B.), 1998 Cr.L.J. 369. SC.
The Case Diaries can be Used
By Courts:
1. To aid in inquiry or trial of case but not as evidence in the case.
2. To contradict police officers with entries therein.
3. To grant remands, warrants of search under section 167, 473, 93-98 Cr.P.C,
under section 259 to discharge accused. 1953 Punj. 149. S.P. Jaiswal.
4. To see if witness had turned hostile. 1948 Pat. 459.
5. To use it against an I.O. in a case under section 211 I.P.C. 8 Sudh W.R. Cr. 87.

By Prosecution:
1. To contradict a police officer who perjures (section 145 Evidence Act) though
not specifically provided in Cr.P.C.
2. If I.O. is not available for any reason mentioned in section 32 Evidence Act, the
case diary can be used as record of his investigation prepared in the ordinary
course of business (Section 35 Evidence Act).

By Defence
1. Only to contradict a police officer who refreshes his memory from any portion
thereof.
OR
2. When the magistrate uses the diary to contradict him.

By I.O.
1. When he needs to refresh his memory under section 159 or 160 Evidence Act.

Effect of Irregularity and Illegalities in Investigation

It has been discussed earlier that a police officer should meticulously observe the
department rules and regulations and other legalities while conducting investigation.
Non observance of these rules, etc. is bound to have an adverse effect upon the merits
of the case and also to make irregularities and illegalities affect the competence of the
court in taking cognizance of the case and also vitiate the trial.
The rules framed under section 12 of the Police Act (V of 1861) lay down the mode
of conduct and how the officers have to perform their duties. The rules provide
directions regarding the course of conduct. A breach of these rules, however, does not
vitiate the trial or otherwise form any infirmity in the inquiry or trial. The question,
came up for consideration in Narinjan Singh v. State, 1957 S.C. 142. The I.O. had not
submitted his case diaries to his superior officers for a week which he should have done
according to rules as prescribed by Govt. It was argued that these may be considered as
false documents because these were not prepared at the time when these are shown to
have been prepared and as such afforded opportunities to I.O. to change or alter the
statements of witnesses or other facts.

It was held
1. The Criminal Procedure Code in laying down the omissions or irregularities which
either vitiate the proceedings or not, does not anywhere specifically say that a mistake
committed by police officer during the course of investigation can be such irregularity
and illegality.
2. A breach of sections 162 and 172 Cr.P.C. does not amount to an illegality. Such
omissions, therefore, cannot in any way interfere with the legality of trial reference.
Putukuri Kottaya v. Emp. 1947 PC 67; Zahiruddin v. Emp. 1947 P.C. 75.
Therefore, a failure to investigate a case properly does not necessarily prejudice an
accused and any mistake or omission in conducting investigation vitiate trial. It was laid
down by Adami J. In Hafiz Mohd. v. Emp 1931 Pat. 150 at page 152. There can be no
doubt that the sub-inspector in his procedure disobeyed certain provisions of law and
for that he could be punished, if the authorities deemed it fit I cannot find that his
failure has to the prejudice of the petitioners. Nor I see how failure properly to conduct
an investigation into an offence can vitiate a trial which was started on the final report
after the investigation.”
 The scope of irregularities and illegalities committed in investigation was discussed
in Narasimha Raju 1971 Cr.L.J. 1066 by the Supreme Court saying mere irregularities
and illegalities would not be sufficient to quash the proceedings unless it appears that
police officer has abused his position in the discharge of duties or has acted dishonestly
or with some oblique motive. There must be prejudice caused to the accused.
Defects in investigation of a case do have a prejudicial effect upon the success of the
case. In 1977 Cr.L.J. 192 Surendra Nath a child who had seen occurrence and examined
by police was with held, Lungi and Knife recovered from accused though blood stained
were not sent for chemical analysis. Held these defects were serious lapses in
investigation resulting in prosecution suppressing evidence.
Irregular maintenance of case diaries and laxity of supervision over investigation
was highly criticized in Jagannath 1982 Cr.L.J. 2293. Printed case diaries were not used
which left a wide scope to investigating officer to interpolate. The diaries reached SP’s
office with great delay and there marks by supervising officer were not attended to or
copied in the case diaries. This had adverse effect on the case. It was advised that in
heinous offences printed diaries should at least be used.
Section 172, 91, 161, 162–Statement of accused–Recording of–Under
section 161Cr.P.C. use of case diary in respect of said statement in another
case or trial–Can be done under section 91 of Cr.P.C. and not under section
172 of Cr.P.C. State of Kerala v. Babu, 1999 Cr.L.J. 3491 SC.

Not Authorised to Investigate

Section 156(2) Cr.P.C. lays down that “No proceeding of a police officer
in any such case shall at any stage be called in question on the ground that
the case was one which such officer was not empowered under this section
to investigate.” Section 156(1) empowers any officer-in-charge of a police
station to investigate a cognizable case without the order of a magistrate
within the jurisdiction of the area of his police station. A violation of the
provision is cured under section 156(2) Cr.P.C. The Magistrate can,
therefore, try case on report of police officer not authorized to investigate. A
defect or illegality in investigation, however, serious, has no direct bearing
on the competence or the procedure relating to cognizance or trial. Section
190 Cr.P.C. does not bar trial of a case on the report of a police officer, may
to be based on an invalid, defective and irregular investigation. See Prabhu
v. Emp. 1944 PC. 73 and Lumbhurdar Zutshi v. The King 1950 PC. 26.
Section 156 (2) Cr.P.C, however, does not cure the violation of any other
specific statutory provision prohibiting investigation by any specific officer
unless specifically authorized. This question arose in H.N. Rishbud v. State
of Delhi 1955 S.C. 196. This was a case under section 5(2) Prevention of
Corruption Act (11 of 1947) (Now Section 13(2) of Act 49 of 1988). The
investigation of the case was not in conformity with section 5A (now section
17) of the said, Act which requires that a police officer, below the rank of
Deputy Superintendent of Police shall not investigate such an offence
without the order of a magistrate 1st Class. It was held that such an
omission was an illegality but the cognizance by court could be taken. The
invalidity of the precedent investigation did not vitiate the result if
cognizance has been taken on such report, unless a miscarriage of justice
has been caused thereby.
A further directive is suggested in this ruling in such a case. It was held,
“When a breach of the mandatory provision of section 5A (Prevention of
Corruption Act) is brought to the notice of the Court at an early stage of the
trial, the Court will have to consider the nature and extent of the violation
and pass appropriate orders for such reinvestigation, as may be called for
wholly or partly by such officer as it considers appropriate with reference to
the requirements of section 5A of the Act.”
The police can also repair such mistakes when discovered during the
course of investigation.
 Even if arrest, is not justified, it does not vitiate trial. Mubarak Ali 1957
S.C. 867. Illegality in arrest from outside limits of jurisdiction does not
affect trial as held in Manbodh 1955 Cr.L.J. 728 (Nag.).
Section 156 (1), 2 and 2 (d)–Head Constable while on duty arrested the
accused and effected seizure of unlicensed gun and cartridges–Thereafter,
he came to the police station and registered the crime–Only by registering
the crime, he cannot be defined as a complainant–Therefore, the
investigation done by the said Head Constable was well within the purview
of section 156(1) and (2) of the Criminal Procedure Code. Jujhar v. State of
M.P., 2003(1) RCR (Cri.) 686 (M.P.)
Section 156(2)–High Court cannot direct the police to register F.I.R.
under section 482 Cr.P.C. as alternative remedy is available to petitioner
under section 156(2) Cr.P.C. K.R. Ram Kumar v. State, 2004 (2) RCR (Cri.)
287.



Chapter–10
Arrest
A police officer can arrest an accused person or any other person on the basis of a
warrant issued by the Court. The provisions to this effect are contained in Chapter VI
Cr.P.C. Sections 70 to 81. The principle behind the warrants is that the Court issuing
the warrant has applied its mind to the accusation against the person and ex-facie its
sets out the reason for the arrest.
The police officer to whom the warrant has been directed for execution can effect
attest under it. Under section 74 Cr.P.C. the office to whom the warrant is directed or
endorsed can endorse to another police officer by name for execution of the warrant.
The name must be endorsed upon the warrant. It is not under certain circumstances
illegal if endorsement is on a separate piece of paper. 1934 section 89.
Actually, Arrest means a physical restraint put on a person as a result of allegation
of accusation that he has committed a crime or an offence of quasi criminal nature, AIR
1953 SC.
In ordinary and natural sense, arrest means the apprehension of restraint on the
deprivation of one’s personal liberty. The question whether one is under arrest or not,
does not depend upon the legality of the arrest but upon whether he has been deprived
of his personal liberty to go where he pleases. The essential elements to constitute
arrest are that there must be an intent to arrest under the authority, accompanied by
seizure or detention of the person in the manner known to law, which is so understood
by the person arrested. Roshanbibi AIR 1984 (NOC) 103 (Mad).
So whenever a police officer gets a warrant he must see the following:
1. The warrant is marked, directed or endorsed to him for execution by
the Court which issued it or by the police officer to whom it was
directed for execution. It should be by name for execution.
2 It is in writing, signed in full name by the Court issuing it with
official designation and place which must be place of jurisdiction and
bearing the seal of the Court. It must be in ink.
3. It should be clear about description of person to be arrested.
4. It is clear with the direction of bail or not.
5. It clearly makes out the accusation against the accused; the offence,
etc. or any provisions of the Code.
6. It is not a general warrant, 1895 P.R. 11 page 38 or a conditional
warrant 18B 636.
 As to why such things are necessary to be seen is that arrest, if the warrant suffers
from any of the above defects, becomes illegal and may have bad consequences for the
police. See the following rulings holding that the arrests on the following warrants were
illegal:
1. Warrant which was not signed by the authority issuing it 19 Cr.L.J.
1000. 1895 P.R. No 11, page 38 . Initials not sufficient 23 Cal. 896.
Initials only an irregularity curable by Section 537(now 465)
Cr.P.C. 1956 Cr.L.J. 635 Daitari.
2. Warrant signed by Magistrate outside place of jurisdiction, 11
Cr.L.J. 570, 23 P.L.R 910.
3. Warrant not signed by the presiding officer but by some other
Magistrate. 1917 Pat. 17. It must be signed by pen and ink and
stamped. 6 Mad. 396.
4. Warrant not sealed by the Court 1928 Lah. 332, 42 Cal. 708,1962(1)
Cr.L.J. Pangir.
5. Warrant without specifying the name of officer to whom addressed
for execution. 1924 All. 128. An endorsement under section 74
[Link] be in name. 1921 Lah. 236, not properly endorsed 16
P.R. 1914.
6. Warrant not clearly identifying the person to be arrested i.e. not
bearing the full description I.L.R. 28 Cal. 399 or giving wrong
description. 21 Cal. 399, or mentioning merely proprietor of firm
1965 Kerala 72.
7. Warrant not specifying the accusation or offence.
Warrant of Arrest could not be issued by courts solely for production of
accused before police in aid of investigation. State through C.B.I v. Dawood
Ibrahim Kaskar, 1997 Cr.L.J. 2989 (SC).
Non-bailable–Warrant–Issurance of–Accused released on bail pending
investigation of crime–Appearance of accused before court before filing of
charge-sheet–Not necessary–Issurance of Non-bailable warrant of arrest to
accused for non-appearance is violative of Art. 21 of the Constitution.
[Link] Rao v. State of A.P., 1997 Cr.L.J. 1960 (AP).
Section 47–Search and arrest–Procedure–Authorities making arrest should
strictly abide by safeguards enumerated in section 47. Chiman Lal v. Datar
Singh 1998 Cr.L.J. 267 (Raj.).
Arrest on Written Order under section 55 Cr.P.C.
Similar is the case of a subordinate police officer who has been given a
written order for making arrest. A subordinate police officer can be deputed
to make an arrest by officer-in-charge of police station or the officer
investigating the case under section 55 Cr.P.C. and by none else. A written
order or Hukam Nama Griftari must be given to him and endorsed in his
name for making any arrest which such officer can himself lawfully make: as
arrest without an order in writing would be illegal, 1955 All. 438 State v.
Ram Chandra. Its formalities are that (1) it must be in writing, (2) specifying
person to be arrested (give complete description), (3) specifying offence, (4)
the offence should always be one in which a person can be arrested without
warrant by a police officer,
(5) the officer issuing the order should be either officer-in-charge or the
investigation officer, (6) the said officers are not themselves present at the
time of arrest, and (7) they give this order for execution to an officer
subordinate to them. A further caution has been given to the officer-in-
charge and I.O. for issuing this order in Bir Bhadra Pratap Singh 1959 All.
384; that they should “exercise this power only where the obtaining of a
warrant from the Magistrate would involve unnecessary delay in effecting
the arrest.” In other words it means that order in writing for arrest should
be given immediately, prima facie evidence is made out and it is required
that no time should be lost for effecting arrest. When there is long time past
stage of prima facie evidence, then application should be made for obtaining
warrant of accused under section 24 Police Act.

Grounds of Arrest to be Conveyed

Whether a police officer is to arrest with warrant or under written order of officer-in-
charge or I.O., he must notify to the person to be arrested the substance of the warrant
or order and if required by such person shall show him the warrant or written order,
section 55 and section 74 Cr.P.C. are clear about it. This is to inform him of the grounds
for his arrest before he is actually arrested. In case the arrest is without warrant, then
too under section 50 Cr.P.C. “he shall forthwith communicate to him full particulars of
the offence for which he is arrested or other grounds for such arrest. An arrest without
communicating full particulars of the offence or other grounds for arrest is illegal. Ajit
Kumar 1976 Cr.L.J. 1303. In this ruling the contention of the police officer that he had
orally communicated grounds of arrest, etc. was not believed when accused had filed
affidavit denying such communication; grounds need not be given in writing 1983
Cr.L.J. 1124, Somi. Section 50(2) Cr.P.C. further lays down that in case such arrest is
for a bailable offence, the police officer shall inform the person arrested that he is
entitled to be released on bail and that he may arrange sureties on his behalf. In 23 Cal.
896, the arrest without notifying the substance of the warrant was held to be illegal.
See also Article 22(1) Constitution of India. This requires that grounds of arrest
must be communicated to the person arrested. It means the information should be
sufficient to enable the arrested person to understand why he was being arrested. If the
arrested person is not told so then it is a contravention of Article 22(1) and his
detention unlawful. 1956 All. 56 Umal Kishore v. State of U.P.; 1959 Punj. 504 Madhu
Limaye.

Arrest on Defective Warrant

In this connection it is necessary to discuss some legal questions. Sometimes a
warrant is defective and suffers from certain irregularities and illegalities as discussed
at points 1 to 6 Supra. It also happens that written order for arrest under section 55
Cr.P.C. is not in order and not complying with points 1 to 7 Supra. A police officer
inspite of his bona fide and best scrutiny may not be able to find out if the Court issuing
warrant had jurisdiction to do so or the police officer issuing written requisition could
himself law fully arrest. Under such circumstances, if there is no obstruction in
execution of the warrant, then it is well and good. If there is, however, an assault on the
police officer in executing such a warrant, then it is an offence. An assault in effecting
arrest in execution of illegal and defective warrant will be justified. Even if there is an
escape afterwards from the arrest which will be illegal, no offence under section 224
I.P.C. would be committed. See 1950 Hyd. 20 Shakuntalnisa v. Hyderabad State, as
custody and detention being not lawful no escape is penal. See also 1939 Oudh 81.
Muneshwar Bux v. Emp.
The question arises whether a police officer executing such a defective warrant or
written order under section 55 Cr.P.C. can take the advantage of his powers of arrest
under section 41 Cr.P.C. for arrest of the said person without such warrant or written
order. Can he say that he was arresting under section 41 Cr.P.C.?
Section 55(2) Cr.P.C. now lays down “that nothing in sub-section (1) shall affect the
power of a police officer to arrest a person under section 41.” The police officer, as such
can exercise his power of arrest under section 41 Cr.P.C. Also see in case 1926 Pat. 424
constable Harihar Singh was deputed by S.I. who was investigating a theft case to
arrest one Dipu who was charged with theft. Constable accompanied by complainant
went there and arrested Dipu but certain persons came and assaulted constable and
rescued Dipu from the custody. The accused was convicted. The conviction was assailed
in the High Court on the point that there was no compliance with section 56 (Now
Section 55) Cr.P.C. The Advocate General argued that independently of section 56
Cr.P.C. the constable was entitled to arrest Dipu under section 54 Cr.P.C. (Now Section
41).
The High Court agreed with the following remarks:
“The terms under section 54 Cr.P.C. are very wide and authorise any police officer
to arrest without an order from a Magistrate or a warrant, any person who has been
concerned in any cognizable offence or against whom a reasonable complaint has been
made or credible information has been received or a reasonable suspicion exists of his
having been so concerned. Now there can be no doubt in the present case that Dipu was
such a person. The fact that he was eventually acquitted is of no consequence. A
complaint had been made which the police believed to be true and his arrest had been
ordered. The fact that a command certificate had not been given to the constable under
section 56 is immaterial as the constable independently of such command certificate
was entitled to make the arrest.
There must be, however, some evidence to show that constable was acting on his
own initiative under section 41 Cr.P.C. And he knew facts of the case or was associated
in the investigation.
The essential difference between sections 41 (Old Section 54) and 55 Cr.P.C.
According to G.C. Das of the Orissa High Court in State v. Indira Pradhan, 1960 Cr.L.J.
267 is that while section 41 lays down in what cases may a police officer arrest a person
without a warrant, section 55 prescribes the procedure to be following in these cases
when instead of making the arrest himself, the police officer deputes an officer
subordinate to him to do so. The reason for prescribing of this procedure appears to be
to pin both the superior and the subordinate police officer down to their respective
responsibilities when former does not choose to act for himself for through the latter.
But there may, however, be a class of cases where, beside being armed with an order
contemplated by section 55 a police officer may also be possessed of the requisite
information or requisition under section 41 in which his act will be supportable if it
could assume legality under either section.
The net result is:
1. An arrest on illegal and defective warrant or written order is illegal and an
assault is justified, if made on police officer executing said warrant or written
order. An escape from illegal custody will also be no offence. The onus is on the
prosecution to show for conviction under section 224, 225, 355, I.P.C. that
apprehension or arrest is lawful in everyway.
2. If under such circumstances police officer executing the warrant can show that
he had personal knowledge or the reason for his belief that the person to be
arrested was involved in a cognizable offence, irrespective of the warrant, etc. he
can avail of the protection under section 99 I.P.C. as his act will be supportable
by section 41 Cr.P.C. But in such a case he must intimate to the accused that he
was exercising his powers under section 41 Cr.P.C. on the basis of his own bona
 fide belief and must depose this fact in evidence that he did intimate so to the
accused.
See in this connection the following rulings which provide an interesting study and
aim at the same conclusions:
The protection afforded under section 99 I.P.C. to public servants is not lost even if
they make any mistake in the exercise of their proper functions provided they act bona
fide. Under section 99 I.P.C. the right of private defence against the injury by a public
servant extends only to those cases in which there is a reasonable cause of
apprehension of death or grievous hurt being caused by such public servant.
1. Ghulam v. Emp. 1936 Lah. 851. Held by Skemp J. “Where a bailiff party enters the
hut and house of a judgement debtor to effect attachment of grain or break open the
lock of the kotha, although that act may not be justifiable by law, it being an act done by
a public servant or under the direction of the public servant acting in goods faith, under
colour of office, the party of the judgement debtor or people on his behalf have no right
of private defence under section 99.
2. Thakar Singh v. Emp. 1927 Lah. 851. Held by Sir Shadi Lal C. J. that even if the
warrant to be executed was defective the petitioners had no justification for beating the
public servant executing the warrant.
3. Ramjit v. Emp. 1938 All. 120. It was held even if an irregularity is committed in
effecting arrest, it would not take the case outside the scope of section 99 and give the
accused a right of private defence.
4. In 1958 Mad. 659 a bill collector went to attach certain properties on the basis of
warrant issued by a Panchayat Board. He was obstructed and injury was caused to his
foot. It was argued that the warrant was illegal.
How will J. held the accused guilty under section 353 I.P.C. and expressed as
follows:
“It is clear that PW1 was a public servant and I do not think it can be doubted that
he was discharging his public functions. He was armed with what appeared to be a legal
warrant and it was his duty to carry out the directions in the warrant and not to
question it. There is no duty laid upon the bill collectors and other persons executing
warrants to make independent enquiry regarding the validity of the warrant, nor would
it be possible for him to do so. To a charge under section 353, a defence based on the
illegality of warrant would be even weaker for section 99 does not give the right of
private defence against a public servant acting in good faith under colour of his office
though that act may not be strictly justifiable by law.
5. Munshi Singh v. Emp. 29 Cr.L.J. 69 (Lahore). It was held that where a constable
effects an arrest under colour of his office there is no right of private defence against
him even though the arrest is not strictly justifiable by law. See also 52 Cr.L.J. 496
(Lahore) Crown v. Fateh Mohd. The warrant was not valid. Assault on peons; convicted
on appeal against acquittal under section 307 and 323 I.P.C.
See also 1954 Cr.L.J. 1472 (HP) Magna and others v. State. In this case, the warrant
had been issued without direction of bail. The constable who went to execute it were
assaulted and the arrest was obstructed. The sentences under sections 353, 225 I.P.C.
were upheld. It was held that apprehension on the basis of this warrant was not
unlawful.
6. Warrant of arrest without seal. Held in Pangir Bajgar Gossain 1962(1) Cr.L.J. 91
that warrant was void and invalid and the obstruction to the execution of such a
warrant of arrest was not punishable by sections 225 and 353 I.P.C. The conviction of
the accused, however, under section 147 I.P.C. (the accused using criminal force
against the executors of warrant being more than five) was held to be justifiable.
7. Mata Jagdabey 1956 S.C. 44. Purporting to act in discharge of duties. Police
officials went armed with warrant to search and inspect. Accused came out and
protested. Two policemen held him, assaulted, kicked, etc. and took him to thana.
Protection under section 197 granted, holding what we must find out is whether the act
and official duty are interrelated. That one can postulate reasonably that it was done by
accused in the official discharge of duties though possibly in excess of the needs and
requirement of situation (Approved 1939 F.C. 43).
 8. Ramji Lal 1990 Cr.L.J. 392. Police went to recover a lady and restore her to her
father. There was not legal warrant for recovery. The case of abduction had been filed
earlier. The police invented a theory to arrest a person which was found false. Thus, it
was held that police had no jurisdiction to act which was wholly illegal. There was
assault by villagers to prevent police from recovering lady and restoring her to her
father. No protection under section 99 I.P.C. was given to police as act wholly illegal
and even not justified by law. If public servant acts without jurisdiction it cannot be said
that he acted in good faith. Section 99 applies to acts where jurisdiction is wrongly
exercised but not where there is complete absence of jurisdiction.
9. Section 41(1)(d) Cr.P.C.–Arrest of a person without warrant on reasonable
suspicion that he was in possession of stolen property or suspected to having committed
offence with reference to such property–300 kg of Aluminium wire recovered by police
from godown of accused which was suspected to be property of Kerala State Electricity
Board–Petitioner accused was arrested and was got remanded to judicial custody–In the
absence of any other material it was impermissible for Magistrate to presume
commission of cognizable or non-bailable offence. Manikandan v. S.I. of Police Nallalaln
P.S., 2008 (2) Crimes 557.
Sections 57, 151and 154–Accused–Person when he becomes “accused person”
Person does not become an accused simply on lodging of F.I.R. or on being arrested or
detained–Such person becomes an accused only after there are grounds of believing
that information against him is well founded. Uma Shankar Sahay v. State of Bihar,
1998 Cr.L.J. 2807 (Patna).
Non-bailable warrant-issuance of offence under sections 341, 326 and 506 IPC–
Accused were released on bail–No date of appearance was fixed–No charge-sheet filed–
Non-bailable warrant issued by Magistrate even without issuing summons or assigning
specific reasons-is illegal and quashed. Rajesh Walia v. State of Karnataka, 1998 Cr.L.J.
1490.
Sections 50, 167–Wrongful arrest–Would not affect order directing remand of
accused to custody or for his release on bail. Udaybhan Shuki v. State of U.P., 1999
Cr.L.J. 274 All.
Section 50–Arrest–Validity–Accused, petitioner informed of being arrested for an
offence under section 307 I.P.C.–Further bail application moved by accused disclosing
all sections under which he was arrested–Implies information to him by prosecuting
authority of the grounds of his arrest–It would be deemed to be sufficient compliance of
section 50(1) and Article 22 of the Constitution–Petitioner not entitled to any
compensation. Udaybhan Shuki v. State of U.P., 1999 Cr.L.J. 274 (All.).
Sections 41, 48, 57 Cr.P.C. Arrest–Powers of Police–Accused even if in judicial
costody can be formally arrested in respect of any number of other crimes registered
elsewhere in country court cannot be used as device to secure presence of accused in
custody. [Link] v. State of Tamil Nadu, 1999 Cr.L.J. 1382 (Mad.).
Sections 41–Arrest–Identification of real accused–Court issued directions to be
followed to ensure that no mischief regarding identity of accused is played by culprit
and/or to ensure no mistake is committed by concerned police authorities. Mahendra H.
Lunar v. State of Gujarat, 1999 Cr.L.J. 3025 (Guj.).
Sections 41, 154, 157 Cr.P.C.–Arrest–Power of police–Power to arrest a person
accused of cognizable offence is not unfettered–High Court normally would not interfere
with process of investigation except on proof of fact that police acts in bad faith. VS.
Krishna v. State of U.P., 2000 Cr.L.J. 4498 (All.)
Sections 70–Warrant of arrest–Application for recall of warrant alongwith memo of
appearance of counsel–court returning document with endorsement that memo of
appearance has to be filed in presence of accused–Not proper–It deprived opportunity
to accused to make representation before Magistrate–Order of non-bailable warrant–
Liable to be quashed. C. Ammanna v. The Authority under Shops & E S R Act (1988)
A.P. 2000 Cr.L. J. 2032 (A.P.).
Section 41–Police investigating the offence but not arresting accused–Court cannot
direct the police to arrest or not to arrest the accused–Power of police to arrest an
accused is discretionary–Police not always bound to arrest an accused even if the
allegation against him is of having commited a cognizable offence. M.C. Abraham v.
State of Maharashtra, 2003 (1) Crimes 302 (SC).
Section 41(1)(a)–Stay of arrest–Writ of mandamus can be issued staying the arrest if
court is convinced that power of arrest will be exercised wrongly or malafidely or in
violation of section 41(1)(a) of the Code of Criminal Procedure. Jose v. State of Kerala,
2001 Cr.L.J. 4902.

Presumption under section 114(e) Evidence Act

When there is nothing ex-facie to show any defect in the warrant, the Court may
draw a presumption under section 114(e) Evidence Act and assume that the warrants
were properly issued by the Magistrate. 1956 Cr.L.J. 635 Orissa, Daitri v. State.

Arrest without Warrant

(A) By a Police Officer
1. Under section 41 Cr.P.C. under the following circumstances. It sets out nine
several circumstances:—
(1) Any police officer may without an order from a Magistrate and without a
warrant, arrest any person.—
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he
has committed a cognizable offence punishable with imprisonment for a
term which may be less than seven years or which may extend to seven
years whether with or without fine, if the following conditions are
satisfied, namely:—
(i) the police officer has reason to believe on the basis of such
complaint, information, or suspicion that such person has
committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence
to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or
promise to any person acquainted with the facts of the case so
as to dissuade him from disclosing such facts to the Court or to
the police officer; or
(e) as unless such person is arrested, his presence in the Court
whenever required cannot be ensured,
and the police officer shall record while making such arrest, his
reasons in writing:
Provided that a police officer shall, in all cases where the arrest
of a person is not required under the provisions of this sub-
section, record in writing for not making the arrest.
(ba)against whom credible information has been received that he has
committed a cognizable offence punishable with imprisonment for a
term which may extend to more than seven years whether with or
without fine or with death sentence and the police officer has reason to
believe on the basis of that information that such person has committed
the said offence;
(c) any person who has been proclaimed as an offender either under this
Code or by order of the State Government; or
(d) any person in whose possession anything is found which may
reasonably be suspected to be stolen property and who may reasonably
be suspected of having committed an offence with reference to such
thing; or
(e) any person who obstructs a police officer while in the execution of his
duty, or who has escaped, or attempts to escape from lawful custody; or
 (f) any person who is reasonably suspected of being a deserter from any of
the Armed Forces of the Union; or
(g) any person who has been concerned is, or against whom a reasonable
complaint has been made or credible information has been received, or
a reasonable suspicion exist, of his having been concerned in, any act
committed at any place out of India, which, if committed in India would
have been punishable as an offence and for which he is under any law
relating to extradition or otherwise, liable to be apprehended or
detained in custody in India; or
(h) any released convict, committing a breach of any rule made under sub-
section (5) of section 356; or
(i) any person for whose arrest a requisition has been received from
another police officer provided that the requisition specifies the person
to be arrested and the offence or other cause for which the arrest is to
be made and it appears therefrom that the person might lawfully be
arrested without a warrant by the officer who issued the requisition.
(2) Subject to the provisions of section 42, no person concerned in a non-
cognizable offence or against whom a complaint has been made or credible
information has been received or reasonable suspicion exists of his having
so concerned, shall be arrested except under a warrant or order of a
magistrate.
Section 41–Arrest–Power of police is neither absolute nor it is to be
exercised in mechanical manner–It must be exercised judiciously–Offender
not arrested as soon as–First Information Report was lodged–No wrong
inference can be drawn. State of Rajasthan v. Bhera, 1997 Cr.L.J. 1237
(Raj.).
Section 41–Power of police to arrest in harrasment of dowry case. The plain
reading of the provisions of section 41 signify that a person accused of an
offence punishable with imprisonment for a term less than seven years or
which may extend to seven years with or without fine, cannot be arrested
by the police officer only on its satisfaction, that such person has committed
the offence as aforesaid. The practice of mechanically reproducing in the
case diary all or most of the reasons contained in section 41 Cr.P.C. for
effecting arrest is to be discouraged and discontinued. Further, in this case,
Supreme Court issued certain directions in order to ensure that police
officers do not arrest accused unnecessarily. The magistrate do not
authorize detention casually is mechanically. Arnesh Kumar v. State of
Bihar, 2014 Cr.L.J. 3307 (SC).
Section 41–The amended provision of section 41 of Cr.P.C. makes it
compulsory for the police to record the reasons for making arrest as well as
for not making an arrest in respect of a cognizable offence for which the
maximum offence is upto seven years. Section 41 and 41A of Cr.P.C. place
check or arbitrary and unwarranted exercise of power of arrest by police
officer. Hema Mishra v. State of U.P., 2014
Cr.L.J. 1107 (SC).
Section 41–Arrest Seizure–In this instant case, the arrest of the petitioners
was not made following the procedure of arrest. Section 41A Cr.P.C. has
not been followed & reports clearly indicates number of violations in arrest
& seizure. The court observed that liberty which is basically the splendour
of beauty of life and bliss of growth, cannot be allowed to be frozen. The
petitioner is a doctor & practising advocate who is seriously jeopardised.
Rini Johan v. State of M.P., 2017 (1) SCC (Cri.) 364.
Duty of investigating agencies and their officers—The investigating
agencies and their officers are duty bound to comply with the mandate of
sections 41 and 41A of the Code, 1973 and directions issued by this Court
in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273. Any
dereliction on their part has to be brought to the notice of the higher
authorites by the Court followed by appropriate action; Satender Kumar
 Antil v. Central Bureau of Investigation, Misc. Application No. 1849 of 2021
in Special Leave Petition (Crl.) No. 5191 of 2021, decided on 11 July, 2022.
Forwarding of the accused alongwith charge-sheet when not
necessary?—If the accused was not arrested during investigation and he
had co-operated in the whole investigation, then forwarding of the accused
alongwith the chare-sheet is not necessary; Satender Kumar Antil v. Central
Bureau of Investigation, Misc. Application No. 1849 of 2021 in Special
Leave Petition (Crl.) No. 5191 of 2021, decided on 11 July, 2022.
2. Under section 42 Cr.P.C. If the offence is non-cognizable and is being committed
in the view of a police officer, the culprit refuses to give his name or addresses or
gives a false name or residence.
3. Under the orders of Magistrate under section 44 Cr.P.C.
4. Under section 123(6) Cr.P.C. when a conditional order of discharge has been
cancelled under section 123 sub-section (5).
5. Under section 151 Cr.P.C. to prevent the person designing to commit a
cognizable offence.
6. Under section 432(3) Cr.P.C. Any person whose suspension or remission of
sentence has been cancelled by State Govt. owing to his failure to fulfill any
condition.
7. Column 4, Schedule First of Cr.P.C. also specifies cognizable cases, where arrest
can be effected without warrant.
8. Under the Local and Special Laws which authorise the arrest without a warrant.

(B) By Officer Incharge of a Police Station

1. In all the circumstances as detailed in above.
2. Subject to the provisions of section 42, no person concerned in non-cognizable
offence or against whom a complaint has been made or credible information has
been received or reasonable suspicion exist, shall be arrested except under a
warrant or order of a Magistrate.
3. Under section 129 Cr.P.C. (members of unlawful assembly while dispersing such
assembly).
4. Under section 157 Cr.P.C. (for arrest of person accused of offence after
registration of case).
5. Under section 171 Cr.P.C. (for arrest of witnesses who refuse to attend Court or
execute a bond for such purpose).
(C) By a Police officer in non-cognizable cases
1. Under section 42 Cr.P.C.
2. Under section 41(c) Cr.P.C. any proclaimed offender in a non-cognizable offence.
3. Under section 41(e) Cr.P.C. for obstruction in discharge of police officer’s duty
which offence is non-cognizable being under section 186 I.P.C.
4. Under section 356(3) Cr.P.C. the breach of which is non-cognizable offence
under section 176 I.P.C.

Difference between requisition as mentioned in clause (i) of section

41 and order in writing as mentioned in section 55
1. The requisition can be either oral or in writing as required by clause (i); the
order in writing under section 55 must be in writing. Requisition can be by
telephonic message. 1945 Mad. 539.
2. Issue of requisition is not mandatory but issue of order in writing is mandatory.
3. Order in writing is always to subordinate police officer, while requisition can
only be to officer of same status or even lower status but not subordinate to him.
4. The officer to whom written order is issued under section 55 is bound to comply
with it while the officer to whom requisition is issued is not bound to do so.
5. Provision in clause (i) is general while in section 55 it is special provision.
6. Order in writing can be issued only by officer-in-charge or I.O. while requisition
can be issued by any police officer who can arrest without warrant.
7. Order in writing must be shown to accused while requisition is not necessary to
be shown.
One thing should be remembered. If Officer-in-charge or investigation officer has to
issue order in writing under section 55 Cr.P.C. to subordinate, he must comply with the
formalities of that section, the provision being special. He cannot later say that it was
requisition under clause (i). State v. Ram Chander, 1955 Cr.L.J. 1123 All.

Arrest to be on Reasonable Grounds

The power given to a police officer to arrest without warrant does not mean that
police officer is to exercise it unreasonably. There should be some tangible, legal
evidence to warrant suspicion which should arise from the facts antecedent to the
occasioning arrest. Even if the arrest is to be made on a suspicion it should be
reasonable. The Court is entitled to enquire whether such suspicion was reasonable or
not under the circumstances and the arrest would not be valid even if the police officer
acted bonafide but not reasonably; See 1946 P.C. 126; 1939 Pat 129. If there is no
material to hold that arrest was on some credible information then arrest is illegal.
Sagwan Pasi 1978 Cr.L.J. 1062.
A lady who lodged a complaint in the police station was called from her house on the
pretext that she had to see the officer-in-charge of the police station in connection with
her complaint and then she was arrested in the police station on the allegation that the
police officer had reason to believe her to be dangerous by reason of her lunancy. The
police officer was said to be satisfied in this regard by observing her behaviour. It was
held that reason is erratic and there was violation of Article 21 of the Constitution of
India and State Government was directed to pay compensation to the extent of Rs.
50,000 Meera 1991 Cr.L.J. 2395 (Mad).
Illegal detention of one by police without any complaint against him, police officer
was directed to pay compensation. Sushcelamma, 1991 Cr.L.J. 2436.
If the police is found from the beginning to be harsh and unfair to accused. The High
Court may extend its relief in view of Article 21, Constitution of India. Munna Singh,
1989 Cr.L.J. 580.
The Government is as much bound by criminal liability as an individual. The
principle “The King can do no wrong” is inapplicable in India. AIR 1967 SC 997.
The Gauhati High Court, while allowing bail in a case of murder and rioting held in
1989 Cr.L.J. 1209 that “it is true that culprits involved in crime should be apprehended
but that does not entitle the police to exercise the power under section 41 Cr.P.C.
arbitrarily and to trample the dignity and liberty of the citizens safeguard of which is
guaranteed in our Constitution. On mere suspicion police must not arrest a person
unless suspicion is well founded.”
Thus, a police officer must act on a credible information and a reasonable suspicion
to justify arrest.
Supposing A meets a police officer in the bazaar and says that one B has come from
another place after commission of murder. Is a police officer to arrest him merely on
this information?
The answer is No. It is for the police officer to see:
1. If he does not know B to make sure that he is B.
2. If he is not aware of murder at another place, to make enquiries regarding that
fact.
3. If the statement is oral, he should take steps to write it before arrest.
It is, therefore, essential that a police officer should always be sure himself and from
an opinion whether information was credible or not to warrant a step for arrest of the
India and it is, therefore, all the more necessary that there should be a reasonable
complaint and suspicion existing before arrest. The vague surmises are to be
discouraged. If a police officer has an honest suspicion in good faith then that is
sufficient to justify an arrest. It should, however, be based upon facts and not on feeling
and ask such it depends upon the circumstances of each case. This should always be
borne in mind that any willful excess by a police officer of his legal powers of arrest is
an offence.
Arrest How Effected
For purposes of arrest, simple word or action denoting arrest is sufficient. If the
person arrested does not submit to word or action then police officer can touch or
confine the body of the person to be arrested and even force can be used in case of
resistance to effect the arrest. He cannot be, however, killed if he is not accused of
offence punishable with death or life imprisonment. (Ref Section 46 Cr.P.C). The person
to be arrested or one who escapes from custody or is rescued can be pursued into any
place in India (Section 48 Cr.P.C). Only necessary force to be used and all means
necessary to cause arrest can be used. Assistance from others can also be taken.
(Section 37 Cr.P.C).
If the person to be arrested escapes into any place, then it is the duty of the
occupant of that place or building to afford entrance into that place to the police officer
or the person arresting and afford facilities for search otherwise such officer or person
is competent to break open the doors, etc., to effect entrance. The only exception is that
an opportunity will be granted to a Pardah woman to withdraw (Ref sections 47, 60
Cr.P.C). It was held in Daitari 1956 Cr.L.J. 635 that section 47, however, does not
require. “When the door of the house is open, the constable should wait and make a
formal demand for admittance to the owner of the house.” If the police officer and other
person authorised to arrest is shut in the building then he can break open to liberate
himself [Section 47(3)]. The arrested person shall not be subjected to more restraint
than is necessary to prevent his escape. (Section 49 Cr.P.C).

Arrest by a Private Person

(a) Section 43 Cr.P.C. authorises even a private person to arrest or cause to be
arrested any person without warrant who in his view commits a non-bailable and
cognizable offence or any proclaimed offender and requires the person, making
the arrest to make over or cause to be made over the arrested person, without
unnecessary delay to a police officer or to take such person or cause him to be
taken in custody to the nearest police station vide Abdul Habib 1974 Cr.L.J. 248
“in his view” means in the presence of or ‘within sight of and not in his opinion’
or ‘on suspicion’ or ‘on receipt of information’. Such a person is entitled to
arrest even in pursuit, if he finds running away immediately after the
commission of the offence. (1945 All. 103). He cannot arrest long after the
commission of offence, though at the actual time offence was committed in his
view, In re Kola Verma (1950) Cr.L.J. 1970 Andhra. The police officer shall re-
arrest the person produced by private person as such, if there is reason to
believe that such person comes under the provisions of section 41. If there is
reason for commission of non-cognizable offence then he will proceed under
section 42 Cr.P.C. If no offence is made out then he will release him. Section
43(3).
A person committing very serious offence–Provisions of Cr.P.C. empowers a
private citizen to make arrest without warrant under certain
circumstances/situations which are mentioned in section 43 of the Code of
Criminal Procedure. Smt. Deeksha Puri v. State of Haryana, 2013(1) RCR (Cri.)
159.
(b) With a warrant under section 72 Cr.P.C. duly endorsed in his name, a private
person can arrest. He can also arrest on warrant marked to him by C.J.M. or
J.M.I.C. under section 75 Cr.P.C. any escaped convict, P.O. or person accused or
non-bailable offence, if he enters on his land or property in his charge.
(c) While he assists a Magistrate or Police Officer under section 37 Cr.P.C. (in
taking or preventing the escape of person and in the prevention or suppression
of a breach of the peace or in the prevention of any injury attempted to be
committed to any railway, canal, telegraph or public property).
(d) Under section 44 (1) Cr.P.C. if ordered by Magistrate in whose presence an
offence is committed.
(e) Under section 44 (2) Cr. P. C. in presence of Magistrate.
(f) Under section 60 Cr.P.C. if person arrested by him under section 44 Cr.P.C.
escapes or is rescued.
Arrest by a Magistrate
A Magistrate can arrest within the local limits of his jurisdiction any person who
commits offence in his presence and for whose arrest he is competent at that time and
in the circumstances to issue a warrant (Ref section 44 Cr.P.C).

Can Arrest be Deferred

A Police Officer, in a bailable case can take security under section 170 Cr.P.C. from
an accused person to appear before a Magistrate without first arresting him, See 26.1
Punjab Police Rules.
If the fact that suspicion resting upon a particular person has been kept secret and
there is no risk of his absconding, the police shall defer making the arrest until the
investigation is sufficiently complete, but if any interference with the liberty of the
accused person is necessary to prevent his absconding and the facts justify arrest the
police shall arrest him and shall not interfere with his liberty unless they arrest him, see
26.2 Punjab Police Rules. See also 1940 N 186. Police has discretion in arrest. This
discretion should be exercised sparingily.

Re-arrest of Accused
Sometimes the accused is wanted in more than one case. He is arrested in one case
and if bailed out, he is again re-arrested. How this should be done? It is the right of
police to arrest but “it is the duty of police to disclose particulars of pending case or
cases to Magistrate before whom accused is forwarded on arrest.” This question arose
in Udai Chand (1983) 2 SCC 417 wherein it was held that are arrest on an accused;
soon after his being released on bail by a Court, in connection with a pending criminal
case, without apprising or disclosing such Court granting bail about the pendency of
criminal case, the re-arrest becomes illegal.
It was, therefore, held in. Dr. A. Lose 1988 Cr.L.J. 1458, that it is the duty of police
to disclose the particulars of case of or cases of all accused, in which he is not yet
arrested to the Magistrate before whom police forwards the accused on arrest on a
particular case so that accused comes to know that he is likely to be arrested at any
time in those pending cases. Such particulars should be described in the forwarding
report by which the accused is produced before the Court or to disclose such particulars
in anytime to the Magistrate before whom the accused is enlarged on bail.

Is Handcuffing Always Necessary

The arrested person shall be handcuffed by police provided that “he appears to be in
health and not incapable of offering effective resistance by reason of age.” Ordinarily
persons accused of non-bailable offences punishable with 3 years
R.I. under section 148 or 226 I.P.C.; liable for enhanced punishment under section 75
I.P.C.; desperate characters, violent and disorderly, provoking demonstrations or are
likely to escape or commit suicide, should be handcuffed Ref 26.22 Punjab Police Rules,
under sections 302, 304, 306, 308, 311, 392, 395, Previous Convicts committing offence
against property, 248 I.P.C. 231 to 254. Ref. 465 MP.P.R. Also 1980 Cr.L.J. 930 (SC). In
following cases the handcuffing are not to be used:
1. In lock-up except when it is in an insecure state, or in Court, if it orders so;
2. A person charged under section 124A or section 153A I.P.C. unless they are
already undergoing sentence or there are reasons to believe that such persons,
are violent, disorderly or obstructive or acting in a manner calculated to provoke
popular demonstration or are likely to attempt to escape or commit suicide or to
be the object of an attempt at rescue. It has been further said in Punjab Police
Rules 26.24 that “When handcuffs are used, the senior officer present shall be
responsible that they fit properly and that the prisoner cannot get at the key.”
3. Females, sick, aged, infirm persons incapable of offering resistance may not be
handcuffed: Juvenile offenders unless desperate.
4. Members of Parliament, Assemblies or better class prisoners unless officer
commanding has special reasons for handcuffing which would be recorded in
daily diary.
5. Military personnel in uniform unless necessary for their safe custody.
 6. Gazetted Officers.
7. In Courts if Court orders So. Ref P.P.R. and 465 M.P.P.R.
Use of handcuffs while in transit of prisoner or under trial to Court and in Court; use
of fetters was discussed by the Supreme Court in two important cases Sunil Batra 1978
S.C. 1675 and Prem Shanker Shukla 1980 S.C. 1535. It was held that the prisoner
convict is not denuded of Fundamental Rights. The guidelines and directives for
handcuffing were laid down as under:
(1) Handcuffing is prima facie in human;
(2) The competing claims of securing the prisoners from fleeing and protecting his
person from barbarity have to be harmonized;
(3) Insurance against escape can be by other means; not necessarily handcuffing.
(4) More guards, close watch by armed policeman suffice;
(5) Dangerousness of a prisoner in transit is to be determined by reasons by
incharge escort;
(6) Valid ground will be desperate character of prisoner;
(7) Incharge escort to give reasons and record them and get approval of Court. See
also Phillip John Cr.L.J. 37. Where the Himachal Pradesh High Court followed
the above the Supreme Court rulings. It was held that Incharge Guard must
give and record reasons for handcuffing and the Court should approve them.
Further handcuffing will be permissible in rare cases only where strong
grounds exist to entertain a reasonable belief that no alternative measure
would suffice.
Keeping in view the above guidelines given in Prem Shanker Shukla's case Supra.
The Supreme Court in writ petition of Aeltimesh Rein as he, an advocate was
handcuffed 1988. S.C. 1768, had issued direction to Central Govt. to frame rules to
conformity with Prem Shankar Shukla’s case for the guidance of State Govt.
In Rajnikant Patel 1991 Cr.L.J. 2344, an under trial prisoner handcuffed and roped
paraded through the streets of the city by the police for investigation without any
justification disregarding rules of Bombay Police Manual–Held, the process grossly
violated Art. 21 in view of indignity and humiliation to which the prisoners were
subjected. The prisoner entitled to compensation to the extent of Rs. 10,000/-Life and
liberty of a citizen guaranteed under Article 21 includes right to live with dignity.
In Khedat Mazdoor Chelma Sangathan v. State of M.P., 1995 Cr.L.J. 508, the
Supreme Court held that Magistracy requires to be sensitised to the values of human
dignity and to be restraint on power. When it allows on in human conduct on the part
the police, it exhibits both the indifference and insensitiveness to human dignity and the
constitutional rights of the citizens. There could be no worse lapse on the part of the
judiciary which is the sentinel of these great liberties. No handcuffing is necessary in
transit unless circumstances permit so. The Supreme Court said further that “Prem
Shankar Shukla’s case is the law of the land on handcuffing.”

Torture in Police Custody

In police circles, torture in police custody remains most dreaded thing in general.
Unlawful brutal and barbaric treatment meted out to the detenues in certain cases,
resulting in custodial death, physical torture may be attributed to some reasons for that
but needs thorough probe. Torture in police custody entailing death of victim is violative
of Art. 21 Constitution of India. Such conduct cannot be justified by invocation of
sovereign immunity. Severina Ribeiro (1990) 1 Crimes 11 (Bom).
Art. 21 which guarantees the right to life and liberty would be sterile if the court is
invested with the only power to release from illegal detention. One of the ways to
secure compliance is to mulct its violators to monetary compensation. Radul Shah AIR
1983 SC 1086.
An M.L.A. the propriety of whose suspension from the legislative assembly was
subjudice in the High Court was arrested on way to take seat in assembly. Allegation of
mischievous and malicious intent compensation of Rs. 50,000 awarded. Bhim Singh AIR
1986 SC 494. Procedure for awarding compensation for groundless arrest has been laid
down in Pramod 1986 Cr.L.J. 1634 (Ori.).
 On allegation of involvement in a double murder case, a person interrogated by
police in police station, thereafter, his whereabouts lost police explanation that detenue
was let off long ago and then he absconded found false. The High Court awarding
compensation of Rs. 50,000, to the wife of the lost detenue. Lalitha 1989 Cr.L.J. 1732
(Mad).
Writ petitioner, an old lady alleging that a police officer having entered her house
subjected her to various physical torture and even outraged her modesty and compelled
her to parade in the street after rubbing shoe polish on her face. Supreme Court
allowing Rs. 5,000/- to her to meet the cost of the proceedings. Jwala Devi AIR 1989 SC
1441.
Unnatural death in police custody (here suicide by the deceased was ruled out) due
to police torture is violative of Art. 21 of Constitution of India. The victim, an
agriculturist who married only two months earlier. State was directed to pay Rs.
30,000, to his wife. Golakha Chandralena, 1992 Cr.L.J. 2901 (Ori.).
A detenue forcibly taken away by police officials in illegal custody. The police
refusing to hand over the detenue in spite of order of criminal court–Detenue was
heavily beaten by police while he was in illegal custody the police atrocities violative of
Art. 21, constitution of India. The High Court awarding compensation of Rs. 10,000/-
Ega Venkalah, 1993 [Link]. 691 (AP).
There are so many other cases like Kalpana Samathi’s case, tattooing case and
beating the accused in the premises of SC, the S.C. has awarded compensations against
police personnel.
Custodial death–Custodial death of a person–His widow claiming compensation–
Report of SDM say that the deceased was given severe beating by police while in
custody–From this report it cannot be denied that the deceased died in police custody
as a result of beating–Violation of Article 21 by the functionaries of the state gives rise
to the obligation of the state to pay compensation to the family of the victim of such
violation as the state is vicariously liable for their acts–In the circumstances of the case
it is directed that the State should pay
Rs. 3 lakhs to the petitioner/widow of the deceased. Phoolwati @ Phullo v. NCT of Delhi,
2000(1) JCC 201 (Delhi).
Custodial death–Directions issued in writ to pay compensation and which may be
recovered by State from erring police officials–Police officials not party–Held, that no
interference is required as police officials will be paying only after a thorough enquiry.
State of Maharashtra v. Christian Community Welfare Council of India, 2003 JCC 1879
(SC).
Custodial death–Havaldar Ram Swaroop died while in military custody on allegations
of espionage activities–His widow, the petitioner, now claims compensation–Whether
the deceased took part in espionage activities is not for the High Court to decide–The
foundation of the petitioner’s case is an affidavit filed by an officer who himself was
involved in espionage activities–So it was not proper to infer that there was custodial
death–The matter was investigated under the Army Act and found that nobody was
responsible for the death of the deceased–Army investigation cannot be doubted–In the
facts and circumstances of the case, therefore, the prayer of the petitioner cannot be
accepted and petition is dismissed. Anguri (Smt.) v. State, 2001 Cr.L.J. 3697.
Custodial death–Quantum of compensation–Writ claiming compensation for
Custodial death of a 21 yrs. youth–Claimants are the father, mother and minor sister
and brother of the deceased–The age of the father is 70 years–Taking into consideration
the age of the father and that the deceased was only 21 years. of age and after some
years the minors will also become major and also taking into consideration the
deprivation of fundamental rights of deceased Article 21 of the Constitution, the learned
single judge awarded Rs. 2.5 lakhs as compensation–But taking into consideration of all
these facts it appears that the compensation is on high side–Hence the compensation is
reduced to 2 lakhs rupees–This appeal is disposed of accordingly. Govt. of NCT of Delhi
v. Nasiruddin, 2001 Cr.L.J. 4952.
Custodial death–The petitioner is the widow of deceased who met a custodial death
in police station–He was a retired Govt. servant of about 68 years age–Custodial death
is proved–Medically examined and several injuries found on his body–According to
medical report he was also a heart patient–It is possible that he succumbed to death
due to the precipitating factors–The court is informed that the erring police officers are
being prosecuted separately–The petitioner has also prayed compensation for the death
of deceased–This National Human Rights Commission has already awarded an ex-gratia
compensation to her for fifty thousand rupees–Still High Court under Article 226 of the
Constitution of India has wide powers to grant compensation in case of custodial death–
Compensation allowed to the tune of Rs. 3,50,000/-. Rs 50,000/- already paid to her shall
be deducted from this total compensation. Iqbal Begum (Mrs.) v. State of Delhi, 2001
(89) DLT 504.
Custodial death–Writ petition for compensation for Custodial death–Police arrested
the deceased from his sister’s house, use serious third degree methods against him and
he died the same day–One additional Sessions Judge directed to investigate the case
and he reported the death by police by using third degree methods on his private parts–
In the circumstances it was just and appropriate to direct the Government of NCT of
Delhi to make payment of Rs. 2 lakhs to the first petitioner as compensation within the
four weeks–Order accordingly–This amount shall be over and above the one which has
been awarded by the National Human Rights Commission–Constitution of India Arts 226
and 21. Smt. Kamala Devi & Another v. Govt. of NCT of Delhi, 2000 Cr.L.J. 4867.
Custodial violence–Compensation–Article 142–Under the circumstances of the case
it is found to be a fit case for exercise of jurisdiction under Article 142–The State
Government is directed to pay compensation of Rs. 1 Lakh to the mother and children of
the victim–No compensation granted to the widow as she has remarried–This
compensation would not preclude a civil suit for recovering adequate compensation.
Smt. Shakila Abdul Gafar Khan v. Vasant Raghunath Dhople, 2003 (3) JCC 1586 (SC).
Custodial violence–Custodial violence, torture and abuse of police power by police–
Constitutional protection extended to every citizen and guarantees held out for making
life meaningful and not a mere animal existence–Torture and Custodial violence cannot
be permitted to deny the rights flowing from the Constitution–It requires immediate
remedial measures Arts. 21, 20, 22, Smt. Shakila Abdul Gafar Khan v. Vasant
Raghunath Dhople, 2003 Cr.L.J. 4548.
Custodial violence–Right of Arrestees–The 11 requirements laid down by this Court
in D.K. Basu’s Case [1997(1) SCC 416] in interest of Arrestees and to minimize
custodial violence–The rights of arrestees which are sought to be protected by these
requirements are not being respected and custodial violence continues–Chairman of the
State National Human Rights Commission of different States/Union Territories
requested to constitute a sub-committee in the Human Rights Commission with a view
to oversee whether those requirements are being carried out or not and to take all such
further necessary steps as are required to ensure that those requirements are carried
out–It shall be open to the committee constituted by the Chairman of the State Human
Rights Commission, to make surprise checks with a view to see actual implementation
of those requirements. Dilip K. Basu v. State of W.B., 2002 (2) JCC (SC) 986).
Sections 46 and 439 Cr.P.C.–Arrest and custody–Respondent in one appeal and
appellant in other appeal applied for appointment as constable drivers under Haryana
Police and submitted their application forms–Appointment denied on ground that
respondent and appellant failed to disclose criminal case which had been registered
against them in application form–Contention of respondent was that he had not
suppressed any material while filling up the application forms as he was released on
bail and had not been actually arrested and case against him ended in acquittal. Writ
petition allowed. However, in other writ petition filed by two persons ‘X’ and ‘Y’
coordinate bench of the same High Court dismissed writ petitions holding that since
writ petitioners had withheld important information, it is clearly disentitled them to
appointment–A person can be stated to be in judicial custody when he surrenders,
before court and submits to its directions. It is no doubt true that accused persons had
appeared before concerned Magistrates with their advocates and on applying for bail
were granted bail without being taken into formal custody, which appears to have
swayed one of benches of Punjab & Haryana High Court to take a liberal view and to
hold that no arrest had actually been effected. This view held incorrect as it goes
against the very gain of sections 46 and 439 Cr.P.C. While views expressed in writ
petitions filed by two persons i.e. ‘X’ and ‘Y’ correctly interpreted meaning of
expressions arrest and custody. In the facts of the cases, benefit of a mistaken
impression given rather than that of deliberate and wilful misrepresentation and
concealment of facts–Order passed in favour of appellant in one appeal is confirmed and
extended to other two writ petitions i.e. ‘X’ and ‘Y’. State of Haryana v. Dinesh Kumar,
2008(1) Crimes 217 (SC).
Custodial death–Article 21 of the Constitution guarantees protection of life and
personal liberty. In this case, serious allegations of custodial death are made against the
guardians of law and as has been held by the D.K. Basu's Case. Torture in police
custody flouts the basic rights of the citizens recognized by the Constitution and is an
affront to human dignity–Compensation–Single Judge awarded compensation of Rs.
3,00,000/- in favour of widow and six children of deceased–Appeal for enhancement of
compensation–Compensation enhanced to Rs. 5,00,000/- Rajammal v. State of Tamil
Nadu, 2008(4) Crimes 763.
Custodial death–Son of petitioner arrested by police was beaten up and due to
atrocities he died–Concerned police officials in the case were tried for offence
under section 304 II, 34 IPC and were convicted–Writ petition was filed to pay
compensation–Single Judge dismissed the writ holding that it was filed after 12 yrs.
after the date of incident and that from material on record it was difficult to arrive at
definite conclusion as regards amount of compensation–Appeal–Appellant held entitled
of Rs. 5,00,000 as compensation–Amount paid by State Government should be realised
from estate of convicted persons. Padma Rani Thakur v. Secretary, Department of Home
Affairs WB, 2007 (4) Crimes 24 (Cal.).

Arrest on Telegram
The rules are contained in Punjab Police Rules 26.9. The summary is as follows:
1. Police officer can arrest on receipt of a telegram from another police officer or
Magistrate in a cognizable offence.
2. If it is from a private person then he shall not arrest unless the particulars cover
a cognizable offence and afford reasonable suspicion that he is offender.
3. If it is non-cognizable then he shall lay information before a Magistrate having
jurisdiction with a view to the issue of a summon or warrant.

Miscellaneous
Certain precautions are also prescribed in Chapter 26 Punjab Police Rules which
should be observed.
1. If public servant is to be arrested his immediate officer, will be informed before,
if not, after arrest.
2. On the arrest of a person subject to Military or Air Force Law early intimation
shall be sent to the officer commanding the unit to which such person belongs. A
deserter from military can be arrested without warrant. No member of the
Armed Forces of the Union shall be arrested for anything done or purported to
be done by him in the discharge of his official duties except after obtaining the
consent of Central Govt. (Section 45 Cr.P.C).
3. A civil prisoner offering resistance to his apprehension or escaping can be
arrested.
4. A drunkard misbehaving in a public way, causing obstruction, nuisance, etc. can
be arrested under section 34 Police Act in a place where Police Act V of 1861
applies.
5. A train can be stopped on requisition of Magistrate or Police Gazetted Officer for
effecting arrest.
6. In case of an arrest of a woman.
(a) Only A.S.I. or superior officer shall carry out her arrest. If A.S.I is not
available then by the H.C. in the presence of responsible male relatives and
village officials. A special report regarding arrest shall be issued.
(b) For remand to police custody of a woman special order of Gazetted Officer is
necessary. For escort of a woman A.S.I, is a necessity.
 (c) Only a unavoidable circumstances, a woman shall be kept in police lock-up
for the night, otherwise a remand to judicial custody will be immediately
taken.
7. In case of arrest of sick or wounded person he shall be conveyed to the Prison
Hospital at District Head Quarters or to a neighbouring dispensary, ensuring his
safe custody. The Magistrate can be requested to examine such person or record
his statement, if in serious condition.

Arrest of Members of Parliament and Assemblies

Execution of the process (civil or criminal) upon a member of a Legislative
Assembly, or any other person within the precincts of the House on the day when it is to
sit, or is sitting or has sat, is illegal unless the permission of the House has been
obtained through the Speaker. This, however, does not prevent the police to arrest a
stranger who plans to commit an offence, or who has committed it after his admission in
the precincts of the House. It is not that any extra territorial area is created but the
purpose is to maintain the dignity of the House. Of course, when the House is sitting
and the police officer wants to arrest a person for any cause, who is in the very House
itself, he cannot do so without the permission of the Speaker.
According to Rules 214A and 214B, Rules of Procedure of the House of People, the
arrests, detentions, convictions and releases of the Members of Parliament are to be
immediately intimated to the Speaker by the authority concerned indicating the reasons
for the arrest, detention or imprisonment of the members in the appropriate from set
out in the second schedule.

Arrest of Judicial Officer

In the Delhi Judicial Officers Association 1991(3) JT SC 617, the Supreme Court has
laid down the following guidelines regarding arrest and detention of Judicial Officers:
(a) If a Judicial Officer is to be arrested for some offence, it should be done under
intimation to the District Judge or the High Court, as the case may be.
(b) If facts and circumstances necessitate the immediate arrest of Judicial Officer
of the subordinate judiciary, a technical or formal arrest may be effected.
(c) The fact of such arrest should be immediately communicated to the District and
Sessions Judge of the concerned Distt. and the Chief Justice of the High Court.
(d) The Judicial Officer so arrested shall not be taken to the police station, without
the prior order or directions of the District and Sessions Judge of the concerned
district if available.
(e) Immediate facilities shall be provided to the Judicial Officer for communication
with his family members, legal advisors and Judicial Officers including the
District and Sessions Judge.
(f) No statement of Judicial Officer who is under arrest be recorded nor any
Panchnama be drawn-up nor any medical tests be conducted except in the
presence of the Legal Advisor of the Judicial Officer concerned or another
Judicial Officer of equal or higher rank, if available.
(g) There should be no handcuffing of a Judicial Officer, if however, violent
resistance to arrest is offered or there is imminent need to effect physical arrest
in order to avert danger to life and limb, the person resisting arrest may be
powered and handcuffed. In such case, immediate report shall be made to the
District and Sessions Judge concerned and also the Chief Justice of the High
Court. But the burden would be on the police to establish the necessity for
effecting physical arrest and handcuffing the Judicial Officer and if it be
established that the physical arrest and handcuffing of the Judicial Officer was
unjustified, the police officer causing or responsible for such arrest and
handcuffing would be guilty of misconduct and would also be personally liable
for compensation and/or damages as may be summarily determined by the High
Court.
The above guidelines are not exhaustive but these are minimum safeguards which
must be observed in case of arrest of a Judicial Officer.
Guidelines in All Cases of Arrest
In Joginder Kumar JT 1994(3) SC 423, the Supreme Court has laid down certain
requirements to be followed in all cases of arrest.
(a) Law of arrest is of balancing individual rights, liberties and privileges, on the
hand and individual duties, obligations and responsibilities on the other, of
weighing of balancing the rights, liberties and privileges of the single individual
and of those individuals collectively; of simply deciding what is wanted and
where to put the weight and emphasis of deciding which comes first the
criminal or society, law violator or law abider.
(b) “No arrest can be made because it is lawful for the police officer to do so. The
existence of the power to arrest is one thing. The justification for the exercise of
it is quite another. The police officer must be able to justify the arrest apart
from his power to do so. Arrest and detention in police lock-up of a person can
cause incalculable harm to the reputation and self-esteem of a person. No
arrest can be made in a routine manner on a mere allegation of a commission of
an offence made against a person. It would be prudent for a police officer in the
interest of protection of the constitutional rights of a citizen and, perhaps, in his
own interest that no arrest should be made without a reasonable satisfaction
reached after some investigation as to the genuineness and bonafides of a
complaint and a reasonable belief both as to the persons complicity and even so
as to the need to effect arrest. Dying a person of his liberty is a serious matter.
The recommendation of the police commission merely reflect the constitutional
concomitants of the fundamental right to personal liberty and freedom, the
person is not liable to arrest merely on the suspicion of complicity in an offence.
There must be some reasonable justification in the opinion of the officer
effecting the arrest that such a lest is necessary and justified. Except in heinous
offences, an arrest must be avoided if a police officer, issues notice to a person
to attend the station house and not to leave station without permission would
do.”
The lordships of the Supreme Court in the above noted case further observed that
the rights in Arts. 21 and 22 (1) of the Constitution are inherent and required to be
recognized and scrupulously protected. For effective enforcement of these fundamental
rights the lordships issued the following requirements:
(i) An arrested person being held in custody is entitled, if he so requests to have
one friend, relative or other person who is known to him or likely to take an
interest of his welfare told as far as is practicable that he has been arrested and
where is being detained.
(ii) The police officer shall inform the arrested person when he is brought to the
police station of this right.
(iii) An entry shall be required to be made in the diary as to who was informed of
the arrest. These protections from power must be held to flow from Arts. 21 and
22(1) and enforced strictly.
(iv) It shall be the duty of the Magistrate, before whom the arrested person is
produced to satisfy himself that these requirements have been complied with.
(v) The above requirements shall be followed in all cases of arrest till legal
provisions are made in this behalf. These requirements shall be in addition to
the rights if the arrested persons found in the various Police Manuals.
(vi) These requirements are not exhaustive. The Directors General of Police of all
States in India shall issue necessary instructions requiring due observance of
these requirements. In addition, departmental instruction shall be issued that a
police officer making arrest should also record in the case diary, the reasons for
making the arrest.
Latest Guidelines on Arrest: In D.K. Basu v. State of West Bengal AIR 1997 SC
610, the Supreme Court has laid down certain basic “requirements” to be followed in all
cases of arrest or detention till legal provisions are made in that behalf as a measure to
prevent custodial violance. These are as under–
 (1) The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and clear
identification and name tags with their designations. The particulars of all
such police personal who handle interrogation of the arrestee must be recorded
in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a
memo of arrest at the time of arrest and such memo shall be attested by at least
one witness, who may either be a member of the family of the arrestee or a
respectable person of the locality from where the arrest is made. It shall also be
countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a
police station or interrogation centre or other lock-up, shall be entitled to have
one friend or relative or other person known to him or having interest in his
welfare being informed, as soon as practicable, that he has been arrested and is
being detained witness of the memo of arrest is himself such a friend or relative
of the arrestee.
(4) The time, place of arrest and venue of custody of an arrested must be notified
by the police where the next friend or relative of the arrestee lives outside the
district or town through the legal aid organisation in the district and the police
station of the area concerned telegraphically with in a period of 8 to 12 hours
after the arrest.
(5) The person arrested must be made aware of this right to have some one
informed of his arrest or detention as soon as he is put under arrest or is
detained.
(6) An entry must be made in the diary at the place of detention regarding the
arrest of the person which shall also disclose the name of the next friend of the
person who has been informed of the arrest and the names and particulars of
the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his
arrest and major and minor injuries. If any present on his/her body, must be
recorded at that time. The “Inspection Memo’’must be signed both by the
arrestee and the police officer effecting the arrest and its copy provided to the
arrestee and the police officer effecting the arrest and its copy provided to the
arrestee.
(8) The arrestee should, during his detention in custody, be subjected to medical
examination every 40 hours by a trained doctor on the penal of approved
doctors appointed by Director of Health Services of the State or Union Territory
concerned. Director of Health Services should prepare such a penal for all
Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above,
should be sent to the Illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation.
(11) A Police Control Room should be provided at all district and State Head
Quarters, where information regardings the arrest and the place of custody of
the arrestee shall be communicated by the officer causing the arrest, within 12
hours of effecting the arrest and at the police control room it should be
displayed on a conspicuous notice board.
Failure to comply with the above requirements, apart from rendering the official
concerned liable for departmental action, would also render him liable to be punished
for Contempt of Court and the proceedings for contempt of court could be instituted in
any High Court of the country, having territorial jurisdiction over the matter.
All these guidelines wre later adopted in the Code by way of 2009 Amendment.
Position after the Amendment—After the amendment of 2009 in Cr.P.C. all these
guidelines have been incorporated under following provisions of Cr.P.C.:
1. Under Section 41B, the police officer making the arrest is bound to bear
identification mark and prepare memorandum of arrest.
 2. Under Section 41C, police control rooms are established at state as well as
district level.
3. Under Section 41D, the arrested person shall have access to lawyers during
interrogation.
4. Under Section 50A, the arrestee is to be entitled to have his friend or relative to
be informed of his arrest.
5. Under Section 54, provisions of his medical examination is made.
6. Under Section 55A, the police officer is bound to ensure health and safety of the
arrested person.
7. Under Section 41, the offences are divied into two categories, i.e.,—
(a) Offence punishable with imprisonment for a term up to 7 years [Section
41(1)(b)]).
(b) Offence punishable with death, life imprisonment & imprisonment exceeding
7 years. [Section 41(1)(ba)].
The Supreme Court issued the following directions in Arnesh Kumar vs. State of
Bihar (AIR 2014 SC 2756): In order to ensure that police officers do not arrest accused
unnecessarily and Magistrate do not authorise detention casually and mechanically.
All the State Governments to instruct its police officers not to automatically arrest
when a case under Section 498-A of the IPC is registered but to satisfy themselves
about the necessity for arrest under the parameters laid down above flowing from
Section 41, Cr.P.C.
All police officers be provided with a check list containing specified sub-clauses
under section 41(1)(b)(ii).
The police officer shall forward the check list duly filed and furnish the reasons and
materials which necessitated the arrest, while forwarding/producing the accused before
the Magistrate for further detention;
The Magistrate while authorising detention of the accused shall peruse the report
furnished by the police officer in terms aforesaid and only after recording its
satisfaction, the Magistrate will authorise detention.
The decision not to arrest an accused, be forwarded to the Magistrate within two
weeks from the date of the institution of the case with a copy to the Magistrate which
may be extended by the Superintendent of police of the district for the reasons to be
recorded in writing.
Notice of appearance in terms of Section 41A of Cr. P.C. be served on the accused
within two weeks from the date of institution of the case, which may be extended by the
Superintendent of Police of the District for the reasons to be recorded.
Failure to comply with the directions aforesaid shall apart from rendering the police
officers concerned liable for departmental action, they shall also be liable to be
punished for contempt of court to be instituted before High Court having territorial
jurisdiction.
Authorising detention without recording reasons as aforesaid by the judicial
Magistrate concerned shall be liable for departmental action by the appropriate High
Court.
These directions shall not only apply to the cases under Section 498-A of the I.P.C.
or Section 4 of the Dowry Prohibition Act, but also such cases where offence is
punishable with imprisonment for a term which may be less than seven years or which
may extend to seven years; whether with or without fine.
While and after effecting arrest of an accused, the Police Officer shall strictly
observe the directions laid down in D.K. Basu vs. State of West Bengal (1996), the
contravention of which may lead to contempt of Court.
The Police Officer effecting arrest shall actually touch or confine the body of a
person sought to be arrested, if there is no submission either by word or deed as per
Sec. 46 (1) Cr.P.C.
Suppose a Police Officer declares that “You are under arrest” and the arrestee
submits his person either by uttering words or by actions, which lead to the assumption
that he has submitted himself, the Police Officer shall not actually touch or confine his
body, which may amount to unnecessary restraint than it is absolutely necessary as
mentioned in Sec.49 Cr.P.C.
If there is no submission either by word or deed, then only the Police Officer shall
actually touch or confine the body of the person sought to be arrested.
If the person to be arrested happens to be female and if there is no submission by
her either by word or deed, even then, she shall not be touched or confined by a male
Police Officer for the purpose of effecting arrest and this shall always be done by a
woman Police Officer.
It is always desirable that arrest of a female accused shall always be done by a
woman Police Officer or with the assistance of a woman Police Officer to avoid vexatious
allegations later and to ensure treating of woman with regard to strict decency.
If the person sought to be arrested/apprehended happens to be a juvenile i.e. a
person who has not completed 18 years of age, it may be desirable if apprehension is
effected by plain-clothed Officer in order to not to infuse fear psychosis.
It shall always be borne in mind that a child who has not completed 7 years of age is
incapable of committing a crime as per S.82 of IPC, and such person is not liable under
any Statute even if he had committed a crime.
If a juvenile, who is in conflict with Law, is within 7 years of age, he shall not be
arrested because of his incapacity to commit a crime. But if the child has completed 7
years of age but not completed 12 years of age, the investigating Police Officer shall
probe the mental maturity or capability of that child to commit a crime and only after
objective assessment, he shall decide whether to apprehend such juvenile or not,
subject to restrictions imposed under the Juvenile Justice (Care and Protection of
Children), Act, 2000.
If the person to be arrested resists the endeavour of the Police Officer to effect
arrest, the Police Officer may use all reasonable means for the purpose of effecting
arrest, as per Section 46(2) of Cr. P.C. ‘ All reasonable means ’ include a reasonable
force, popularly called ‘minimum force’.
Minimum force differs from case to case and person to a person in a given situation.
When reasonable force is used for arresting the accused, the arrestee shall be given
proper medical care immediately thereafter and this fact of using minimum force and
the medical personal note book, general diary, prisoner’s search register, hospital
memo book and remand report under Section 167 Cr. P.C.
Whether the force used is minimal or in excess to secure the arrest of the accused is
subject to the scrutiny of the Judicial/Executive Magistrates.
In case of arresting terrorists, extremists or violent communal elements, adequate
precautionary measures are to be ensured with sufficient manpower having firepower
and the timing of arrest may also be so selected.
The Police Officer shall be very much cautious enough that the person sought to be
arrested does not commit suicide or attempt to commit suicide or try to jump out of a
high-raised building, otherwise, the blame will fall upon the Police for alleged
negligence.
On seeing Police, the accused may try to flee in his motor vehicle in busy
thoroughfares, and if he is chased indiscriminately, he may be driven to go fast rashly
and recklessly, which may result in serious or series of accidents involving multiple
casualties of innocent hawkers and jaywalkers.
There are instances, wherein Police personnel chased gamblers, who played cards in
beachside slums, and in order to escape, a fellow, who doesn’t know swimming may get
drowned. As a result, Police may be hauled up for causing the death in custody.

The following Procedure shall be Adopted after Arrest of the accused

by the Police Officer
1. He should search the person of the accused and prepare a memo about it and
send the report to District Magistrate under section 58 Cr.P.C. He should also
examine his person for presence of injuries or any other articles relevant to case
as required under sections 51 to 53 Cr.P.C. When a person is arrested on a
charge of committing an offence of such a nature and alleged to have been
 committed under such circumstances that there are reasonable grounds for
believing that an examination of his person will afford evidence as to the
commission of an offence it shall be lawful for Registered Medical Practitioner
on request of police officer not below the rank of Sub-Inspector to forcibly even,
to medically examine him. A female will be examined by a female doctor. Section
53 Cr.P.C. An accused can also request a Magistrate, when produced before
him, for his medical examination Section 54 Cr.P.C.
In case of Ram Lalwani 1982 (2) C.L.R. 196, it was held when accused complains
to Magistrate of personal violence at the hands of police duty of Magistrate is to
order for his medical examination often without fee and in case he wants to get
himself examined by a private doctor then on fee to be paid by him.
2. Under section 56, he must without unnecessary delay or subject to the provision
of taking bails, take or send the person arrested before a Magistrate having
jurisdiction in the case or before the officer-in-charge of a police station. In
bailable cases the accused must be given the option of bail and in non-bailable
cases, if conditions of section 437 Cr.P.C. warrant so. (Section 50 Cr.P.C.)
3. He should establish the identity, residence and previous antecedents of the
accused arrested:
(a) By despatch of an attestation certificate in form Punjab Police
Rules 26.7(1) to officer-in-charge of police station in the
jurisdiction of which that person alleges to reside (for looking into
Village Crime Register).
(b) By preparation of his search slip sending it to Bureau or Bureaus
concerned for tracing purposes.
4. The police officer should try to complete investigation within 24 hours of the
arrest as contemplated by section 57 Cr.P.C. Person arrested by police shall not
be discharged except on his own bond or on bail under order of Magistrate.
(Section 59 Cr.P.C). If arrest is illegal, then no question of bail arises, he can be
discharged/released under section 59 latter part : 1988 Cr.L.J. 624.
5. If investigation is completed within 24 hours and there is sufficient evidence, the
police officer should act under section 170 Cr. P.C. by putting up challan
alongwith the accused. Emp. v. Ali. 33 Cr.L.J. 912.
6. If there is neither sufficient evidence nor reasonable ground or suspicion to
justify the forwarding of the accused to a Magistrate found by such police
officer, after completion of investigation within 24 hours, then he should release
the accused under section 169 Cr.P.C. If on the other hand, there is sufficient
evidence or reasonable ground. Police must forward the accused under custody
to Magistrate empowered to take cognizance of the offence on police report and
to try the accused under section 170 Cr.P.C.
7. If the investigation cannot be completed within 24 hours and there is sufficient
evidence justifying further investigation, he should apply for remand under
section 167 Cr.P.C. to police custody or to judicial lock-up as the circumstances
warrant. The detention beyond 24 hours without the authority of a Magistrate is
illegal as the premptory provisions of Art. 22 (2) Constitution of India, are
contravened and the accused is entitled to release.
8. When period allowed under section 167 Cr.P.C. (60/90 days on the whole) is
exhausted and further investigation is not required then, too, Sections 169, 170
and 173 come into play in addition to the circumstances as detailed in paras 5
and 6. And these sections relate to the final reports. It was held in Hakim Ally’s
case 7 Cr.L.J. 414 that section 169 relates to cases in which no person is sent up
for trial, section 170 to cases by which some person is sent up and section 173
contains general instructions regarding both.
9. If investigation cannot be completed within 60/90 days due to one reason or the
other viz., some accused may be absconding, identification parade may be
delayed, a report may have to be obtained from certain experts, witnesses may
not be available for interrogation due to some unavoidable circumstances and
finally the I.O. may be on leave or may have more urgent work at his disposal
 and the accused is in custody then under such circumstances, the Magistrate
may authorise detention of the accused person, otherwise than in custody of
police (15 days) upto total period of 60/90 days. On the expiry of 60/90 days, the
accused person shall be released on bail if he is prepared and does furnish bail.
In case he does not furnish bail, the Magistrate will have to make an order
remanding him to custody. Accordingly it cannot be said that under section
167(2) the Magistrate can in no case authorise the detention of accused beyond
a period of 60/90 days Lakshmi Brahmir 1976 Cr.L.J. 118. In case the accused
furnishes bail or is prepared, the prosecution cannot get adjournment under
section 309 Cr.P.C. and the Magistrate cannot grant it, has to release him on
bail. T.V. Sharma 1976 Cr.L.J. 1247.
The furnishing of incomplete challan will not save the accused from being
released on bail after expiry of 60/90 days (i.e. the remand) under section 167(2)
(a) Cr.P.C. and section 309 Cr.P.C. only comes into force after court has taken
cognizance. See Natbir Parida 1975 S.C. 1465, (See Incomplete Charge Sheet).
Thus, adjournments can be only granted under section 309 Cr.P.C. after
submission of challan and not during investigations.
However, for mere non supply of copies of experts reports which are still
awaited, the report under section 173(2) Cr.P.C. can be submitted before expiry
of 60/90 days and this would not mean that investigation is inconclusive and bail
can be granted under section 167(2)(a) Cr.P.C. See Full Bench case State of
Haryana v. Mehal Singh 1978 P.L.R. 480 and Smt. Surjit Kaur C.L.R. (Delhi)
104, Police Report (Section 2(r) Cr.P.C.) contemplates a report conforming to
requirements of clauses (a) to (g) of section 173(2)(i) Cr.P.C. Once such a report
is forwarded to a competent Magistrate, he is deemed to have taken cognizance
within meaning of section 190(1) of Code. (How are 60/90 days to be counted)
(See Remand).
10. If investigation, in a case triable as a summons case, is not completed within a
period of 6 months from the date of arrest of accused, the Magistrate shall stop
further investigation. This order can be vacated by Sessions Judge, if satisfied
that further investigation was necessary. The Magistrate shall not make order to
stop investigation unless satisfied for special reasons and that in the interest of
justice, further investigation is necessary. (Section 167 (5) Cr.P.C.)
11. Finally a Charge-sheet or Final Report under section 173 Cr.P.C. is to be
sent after the investigation is closed.

Challan or Final Report

A Magistrate can take cognizance of the case under section 190(1)(b) Cr.P.C. upon a
report in writing of such facts, made by any police officer. According to sections 169,
170 and 173 Cr.P.C. the word used is ‘Police Report’ and not challan or charge-sheet. It
has been held in Raghunath v. Emp. 1932 Pat. 72 that there is no provision in the Code
for a challan or charge-sheet or final report. The Government has, however, prescribed
departmentally under the authority of section 173 Cr.P.C. two forms namely charge-
sheet or challan (when accused is sent up for trial) and final (when accused is not sent
up for trial when the case is to be sent as untraced or as cancelled).
Section 173–Investigation by another agency when Investigation by local police not
satisfactory–Further investigation by another agency–Propriety. C.B.I. v. Rajesh Gandhi
1997 Cr.L.J. 63 (SC).

Who can send Charge-Sheet or Final Report?

It is always the officer-in-charge of the police station who is to send it. The scheme
of the Code also shows that while it is permissible for an officer-in-charge of a police
station to depute some subordinate officer to conduct some of the steps in the
investigation, the responsibility for every step is that of the officer-in-charge. It has
clearly been provided in section 168 Cr.P.C. that when a subordinate officer makes an
investigation, he should report the result to the officer-in-charge of police station. It is
also clear that the final step in the investigation viz., the formation of the opinion as to
whether or not there is a case to place the accused on trial is to be that of the officer-in-
charge of the police station. There is no provision permitting the delegation thereof but
only a provision entitling superior officer to supervise or participate under section 36
Cr.P.C. See H.N. Rishbud v. State, 1955 Cr.L.J. 526 (SC). It was, however, held in 1958
Cr.L.J. 97 Abdul Hamid v. State of Tripura based on 1955 S.C. 196 that mere cannot be
any prejudice if the officer who had investigated the offence submits the challan under
his signature directly and not through officer-in-charge. Cognizance can still be taken
by the Magistrate if challan is signed by I.O. 1959 All 82.
Sections 173 and 167–Filing of charge-sheet within statutory period on basis of
material collected during investigation–Mere non supply of forensic report does not
vitiate charge-sheet itself–Accused not entitled to benefit of statutory bail under section
167(2). Suresh Mahato v. State of West Bengal, 1997 Cr.L.J. 1798 (Cal.).
Section 173 Cr.P.C.–Final Report submitted by investigating agency, under section
173 Cr.P.C.–Magistrate accepting report and passing order of dropping proceedings–No
notice issued to informant–Order illegal. U.P.S.C v. S. Papaiah and Others, 1997 Cr.L.J.
4636 (SC).

Final Report
The final report by officer-in-charge is to be sent “when it is considered advisable to
suspend the investigation when the police are unsuccessful, after taking all the
measures in their power.” See PPR 25.57. Such cases are to be sent as untraced.
When after investigation it is found that the, (1) case is false, (2) is false owing to
mistake of law or fact, (3) is non-cognizable in nature, or (4) is a matter for civil suit,
final report will be sent for cancellation of case P.P.R. 25.57 (See False F.I.R. Chapter
I).
Such final reports in which facts are summarized and the grounds of belief are
given, should be sent to the Illaqa Magistrate having jurisdiction and exercising first
class powers for orders to keep the case as untraced or to cancel the case. The synopsis
of evidence should be clearly and concisely given to warrant cancellation. The
Magistrate has every right to look into the police diaries and weigh the reasoning of
police. He may accept the recommendation of police and order the cancellation of case.
If he does not accept, all that he can do is:
1. To make a note that he does not agree with the police and does not accept their
recommendation.
2. To summon the accused under section 190(b) Cr.P.C. if after perusal he comes to
the conclusion that an offence is constituted, he can take cognizance as held in
Abhinandan Jha’s case 1968 Cr.L.J. 97 the Supreme Court. The Court can look into
report.
For this purpose simple perusal of case diaries, which though he can look into them,
is not sufficient. The report under section 173 Cr.P.C. should make offence. 1962 Cal.
135 (FB) A.K. Roy. The point also arose before Special Bench of the Patna High Court
1978 Cr.L.J. 1575, Kuli Singh v. State of Bihar which over ruled 1977 Cr.L.J. 722. It was
held that final report is also a police report as contained in section 190(1)(b) Cr.P.C. The
Magistrate has full jurisdiction to differ with the conclusions of police and if after
perusal of case diaries or the material on record, if satisfied that offence has been
committed, may take cognizance on this report and issue process to accused whether
named therein or not. The cognizance is taken under section 190(1)(b) Cr.P.C. The
dictum in Abhinandan Jha’s case was explained though not differed. The Magistrate can
take cognizance and can call the accused on the basis of material available in case
diaries, if satisfied that there was sufficient ground for proceeding. 1990 Cr.L.J. 717.
3. To send the case as untraced instead of cancelling it as requested, 1959 [Link].
1153 (B). State v. Shankar Bhaurao.
4. Or to order further investigation under section 156 Cr.P.C.
In 1986 Cr.L.J. 51, Ram Avtar, it was held power of Magistrate under section 156(3)
to direct further investigation is clearly an independent power and does not stand in
conflict with power of police officer. Power under section 156(3) can be exercised by
Magistrate even after submission of final report by investigating officer which would
mean that Magistrate does not accept conclusions of I.O. sub-section (8) of section 173
also gives power to police to re-open investigation. This can be done only on such fresh
material which could not come to knowledge of I.O. While conducting investigation.
 Section 173(8)–Investigation–Powers Magistrate cognizance of offence taken by
Magistrate on basis of police report–Accused appearing in persuance of process- in such
circumstances Magistrate cannot of his own order further investigate in the case.
Randhir Singh Rana v. The State Being the Delhi Administration, 1997 Cr.L.J. 779 (SC).
Section 173(8)–Addition of more persons as accused–Role of judiciary and
investigating agency state–Memo to issue summons for added person as an accused
without quoting provisions of law and without assigning any reasons- order passed
without ascertaining adequancy of material or evidence collected by investigating
agency–Is non-speaking one and suffer from vice of non-application of mind. Kennady v.
The State 1997 Cr.L.J. 1465 (Mad.)
Sections 173, 202 and 204–Magistrate accepting final report submitted by police
under section 173 and discharging accused–Complaint cum-protest petition filed by
complainant unfolding new facts–Magistrate can take cognizance and hold enquiry
under section 202 Cr.P.C. Jitendra Kr. Aggrwal v. State of Bihar, 2000 Cr.L.J. 2730
(Pat.)
Sections 210 and 300–Complaint case and police investigation in respect of same
offence–Complaint filed after Magistrate had already taken cognizance on police report–
Is maintainable complaint need not be dismissed on principles of double jeopardy–More
so, when persusal of F.I.R. and complaint reveal that origin and genesis of prosecution
case in complaint is more elaborate and also differ from texture of adverments made in
F.I.R. though leading to commission of same offence. Saran Das CB. Muni v. Ram Singh,
1997 Cr.L.J. 2021 (P&H).
5. But once on investigation final report is sent and the case is found to be mistake
of fact and the Magistrate passes the order accepting the report, it is a judicial order of
the Magistrate and no reinvestigation can be held by the police without getting the
order set aside and without permission of Magistrate. Section 173(8) does not apply
under such circumstances. Held so in K. Ram Subbu 1988 Cr.L.J. 214, relying on the
Supreme Court decision as reported in 1979 Cr.L.J. 679. Held in Nagabugam 1985
Mad.L.W. (Cr.) 99, order passed by Magistrate on final Report of police is judicial order.
Sections 169, 173(2)(i) and 190(1)(b)–Police submitting a report under section 169
that no case was made out–Magistrate has no power to call upon police to submit
charge-sheet–There is no obligation on the Magistrate to accept the report–Magistrate
has power to take cognizance under section 190(1)(b) Cr.P.C. and direct issue of
process to accused–Magistrate is not bound in such a situation to follow the procedure
laid down in sections 200 and 202 of the Code. Gangadhar J. Mhatre v. State of
Maharashtra, AIR 2004 SC 4753.
Sections 169, 170 and 173–Police submitting report after investigation–Magistrate,
while accepting or rejecting the report, cannot compel the investigating agency to
change its opinion and to form a particular opinion or to submit the challan–Police is
master of investigation and formation of opinion. Harinder Pal Singh v. State of Punjab,
2004 Cr.L.J. 2648.
Section 173(2) Cr.P.C.–Final report once submitted in court-Cannot be returned to
investigating officer by Magistrate on ground that it was required for perusal of his
higher authority–Order of CJM, returning final report grossly illegal and set aside.
Jeevan Singh v. State of Rajasthan, 2004 Cr.L.J. 3469.
Section 173(2) Cr.P.C.–Police investigating an offence and submitting final report–If
Magistrate feels that there are no sufficient grounds to proceed against the accused,
and decides not to take cognizance, the Magistrate is bound to issue notice to the
informant and provide him an opportunity to be heard–Notice has to be sent by the
Magistrate and not by the SHO–Where, however informant was given notice by I.O. and
informant appeared before the Magistrate at the time of considering final report, in
such a case issuance of notice by Magistrate is not necessary. Ravi P.D. v. Javatte
Francis, 2006(1) RCR (Cri.) 89.
Sections 173 and 169 Cr.P.C.–Final report submitted by police–Cognizance by
Magistrate–Magistrate if decides not to take cognizance and drop the proceedings it is
incumbent open the Magistrate to give notice to the informant/complainant and
provides him an opportunity to be heard at the time of consideration of the report. Kapil
Garg (Dr.) v. State, 2004(1) Crimes 100 (Delhi).
 Section 173 Cr.P.C.–The report contemplated by section 173 should contain the
information required by the said provision. The Investigating Officer (I.O.) is not
expected to record finding of fact nor to give clean chit by exercising power of court or
judicial authority. In the instant case, the Superintendent of Police not only refers to
investigation made by him and the statements recorded in the course of investigation
but records a ‘finding’ that the statements were “correct”. Hardeep Singh v. State of
Punjab, 2008 (4) Crimes 367 (SC).
Section 173(2) Cr.P.C.–High Court to rely on the report of investigating agency– It
was impermissible for the High Court to entertain the report of the investigating agency
before the same could be forwarded and filed before the concerned Magistrate in
compliance with section 173(2) of Cr.P.C. Therefore, it is not open to the High Court to
rely on the report of the investigating agency nor can it direct the report to be
submitted before it as the law is very clear that the report of investigating agency may
be accepted by the Magistrate or the Magistrate may reject the same on consideration
of the material on record such being the position, the report of the investigating agency
cannot be relied on by the High Court while exercising powers under section 482
Cr.P.C. Pratibha v. Rameshwari Devi & Others, 2007 (6) Crimes 76 (SC).
Section 173(2) Cr.P.C.–It is a well settled Principle of Law that when a final form is
filed by any investigating officer in exercise of his power under section (2) of section
173 Cr.P.C., the first informant has to be given notice. The Magistrate can also take
cognizance on the basis of the materials placed on record by the Investigating Agency.
Magistrate can direct further investigation even after submission of final form. An order
of further investigation can be made at various stages including the stage of trial after
taking the cognizance. Kishan Lal v. Dharmendra Bafna & Anr., 2009 (3) Crimes 356
(SC).
Section 173(2) Cr.P.C.–Magistrate must issue notice to informant at the time of
considering the police report. If the informant is not aware as to when the matter is to
be considered, he can not be faulted. Chittaranjan Mirdha v. Dulal Ghose & Anr., 2009
(3) Crimes 189 (SC).
Section 173 (2) Cr.P.C.–When the Magistrate decides not to take cognizance and to
drop the proceedings or takes a view that there is no sufficient ground for proceeding
against some of the persons mentioned in the F.I.R., notice to be informant and grant of
opportunity of being heard in the matter becomes mandatory. Chittaranjan Mirdha v.
Dulal Ghose & Anr., 2009(3) Crimes 189 (SC).

The Magistrate, however, cannot direct the police to send the Charge-Sheet
He has no jurisdiction to direct so and if the police in compliance with the order
sends up the challan then the prosecution is illegal as was held in 1969 Cr.L.J. 590 Johri
Mall. In Krishan Chandra 1969 Cr.L.J. 1307, however, it was held by the Orissa High
Court “that even though an illegality is committed by Magistrate in calling for a charge-
sheet after the police had sent final report, in the absence of proof of miscarriage of
justice, neither the trial nor the result of trial is vitiated when the case is tried.” 1968
S.C. 1292 Sailandra Nath followed.
 In Shah Lakhamishi 1966 Gujarat 283 (F.B.). It was held that Magistrate cannot call
for challan; it can only take cognizance under section 190(1)(c) Cr.P.C., if he does not
agree with the final report by the police. The Magistrate can, however, order further
investigation generally or in specific direction under section 156(3) if he finds that
investigation is unsatisfactory or incomplete. The same view was taken by the Supreme
Court is Abhinandan Jha’s case 1980 Cr.L.J. 97. It was held that “Magistrate can differ
with police but it definitely has no power to direct the police to submit a charge-sheet. It
can order for further investigation. The police after such further investigation may
submit a charge-sheet or again submit a final report depending upon further
investigation made by them. If ultimately the Magistrate forms opinion that facts set out
in the final report constitute an offence he can take cognizance under section 190(1)(c)
notwithstanding contrary opinion of the police.” Further after taking cognizance under
section 190(1)(c), on such a police report, he should examine the complainant and his
witness in accordance with provisions is sections 200 to 203 Cr.P.C. before summoning
the accused as held in Sardari lal v. Faquir Chand 1974 C.L.R 232. Further the
Magistrate on taking cognizance under section 190(1)(c) should comply with provisions
of section 191 Cr.P.C. and proceed under section 252 Cr.P.C. as held in Ramchandra
1971 Cr.L.J. 578. The view of the Patna High Court in Kuli Singh Supra is, however,
different for taking cognizance under section 190 (1) (b) Cr.P.C. as discussed above.
In 1981 C.L.R. 187 Noor-ud-Din Kataria. It was held as under:
(a) Criminal Procedure Code, section 173, Final report under submitted by the
police in a cognizable case recommending cancellation of the case. Proper
course to be adopted by the Magistrate. He has power to accept it or not to
accept it. Protest petition filed by an informant challenging the conclusion of
the police. Duty of the Magistrate to persue the protest petition and material
collected by police during investigation. Facts stated in protest take cognizance
merely on basis thereon. Upon perusal of protest petition case diaries and other
evidence recorded by police during investigation. Magistrate feeling satisfied
that no case was made out for proceeding against the accused. Cancellation of
the case ordered and protest petition rejected by the Magistrate. His order held
to be proper and valid.
(b) Powers of Investigation. Vested in the police. In respect of cognizable case. The
Court, has no power to interfere therein or with the manner of investigation.
Functions of the judiciary and the police are complementary and not over-
lapping.
(c) Final Report–Under section 173 Cr.P.C. submitted by police recommending
cancellation of the case–Effect–Magistrate is not bound to accept it. An
informant has a right to be informed of the said report and it is open to him to
file a protest petition. However, Magistrate may or may not take cognizance of
an offence on basis thereof.
 Held that whenever a protest petition is filed the same must be treated as a
complaint. It is open to the court to treat such a petition as a complaint, if the Court is
satisfied on the material contained in the petition the cognizance of an offence can be
taken on the basis thereof. If the court finds no reasons to disagree with the police
report, after persuing the police diaries and the other relevant material, it can proceed
to agree with the police report and reject the protest petition and close the case.
The Court cannot interfere with the police in matters which are within their
exclusive province. The reference made by the Sessions Judge, in the instant case
ignores the aforesaid dictum regarding the powers of the police to investigate a case. A
perusal of the order of reference whose that it is an attack on the matter of
investigation and such an attack by a revisional court is not warranted at the stage of
the proceedings under section 173 Cr.P.C.
The question, however, that now requires consideration is what a Magistrate was
required to do, after he receives a final report under section 173 Cr.P.C. recommending
the cancellation of a case investigated by it. Magistrate may or may not accept it.
Whatever the nature of the report by the police an informant has a right to be informed
of the same. It is then open to an informant to appear before a Magistrate and submit a
protest petition if he disagrees with the police report. Whenever a protest petition is
filed, it is desireable for the Magistrate to look to the protest petition and also persue
the police diaries and other evidence collected by the police during the investigation
and to consider whether in his opinion, the facts disclosed constitute an offence or not.
In case the Magistrate comes to the conclusion that the facts disclosed from the
material collected by the police coupled with the protest petition disclose the
commission of the offence, then irrespective of the final report of the police under
section 173 Cr.P.C. recommending cancellation of the case, he can proceed to take
cognizance either by treating the protest petition as a ‘complaint’ and following the
procedure prescribed, therefore, or by treating the material collected by the police and
the protest petition as ‘information’and process the case under section 190(1)(c) Cr.P.C.
There is no warrant for saying that even if a Magistrate after considering all aspects
of the basis and applying his mind agrees with the final report of the police and is
satisfied on the basis of the material on the record that no offence has been made out,
he must still proceed to take cognizance of an offence only on the basis of the protest
petition which by itself does not contain facts disclosing the commission of an offence.
The protest petition as its perusal shows is only an attack on the bonafides of the
investigation and itself did not disclose the commission of an offence nor did contain
any avent by the police disclosed prima facie the commission of an offence. The
Magistrate had the discretion to treat the protest petition as a complaint provided he
found that the facts contained therein disclosed the commission of an offence. The
Magistrate was, however, not so satisfied. After a detailed discussion, he proceeded to
accept the police report and for the reasons stated by him in his order dated 5-1-1979,
no Exception can be taken to the opinion expressed by him.
The cases can also be cancelled as under:
1. In case where the investigation of a case is transferred to another police station
or district. There is no need to get the orders of M.I.C. for cancelling such F.I.R.
in that particular police station.
2. In case, which is found to be false or the offence found is non-cognizable, the
Magistrate after trial can order for cancellation at the time of judgement.
The order of the Magistrate, cancelling the case is administrative only and not
judicial. The accused is not entitled to get its copy (See AIR 1938 Lah. 464 : 39 Cr.L.J.
646, 1951 Raj. 146). It can be reviewed by Magistrate or A.D.M. 1962 P.L.R.279.
The police should inform the informant in case of final report being sent as untraced
or cancelled. If the informant is present after notifying the fact verbally, his attestation
should be got on the report itself. If not present then by notice, hand or post card which
fact, too, should be noted in the final report (P.P.R. 25.57(3)).
On receipt of orders of cancellation the officer-in-charge of P.S. shall cancel F.I.R. by
drawing a red line across the page, noting the name of the Magistrate cancelling the
case with number and date of order. He shall return the original order to S.P’s office to
be filed with the record of the case. (See P.P.R. 24.7).
 Final report accepted by Magistrate. The complainant gave protest petition. The
Magistrate ordered further investigation. The police giving challan on investigation. The
Magistrate can take cognizance under section 190 Cr.P.C. 1983 Cr.L.J. No. 37 Pancham
Singh.

Charge-sheet or Challan
When the investigation is completed and the accused person is forwarded to Court
for trial, the officer-in-charge must send the charge-sheet or challan in Form 173(2)
Cr.P.C, Though an officer-in-charge can delegate the authority under section 168
Cr.P.C. yet it is he who is to forward report under section 173 Cr.P.C. After
investigation is finalized. The Magistrate can take cognizance under section 190 Cr.P.C.
on challan prepared by subordinate police officer under direction of officer-in-charge as
held in S.N. Singh 1976 Cr.L.J. 1597. This report should contain:
(a) Allegations of facts constituting an offence and not abstract of evidence given
by each witness.
(b) Names of parties and witnesses.
(c) The where abouts of the accused whether in custody or released on bail. If
there is any P.O., his name should be shown in red ink and prayer made for
recording proceedings under section 299 Cr.P.C.
(d) In case of not sending up any accused whether arrested or not, his name should
be shown in appropriate column.
It was held in Mehrab 26 Cr.L.J. 181 that it was sufficient if police report contains
the names of the parties, the nature of information and the names of persons
acquainted with the circumstances of the case. The report need not State whether in
the opinion of the police officer the accused are guilty or not. It is not sufficient merely
to give section of law or cryptic F.I.R. All the columns of challan form should be filled
carefully.
If the above mentioned facts are not given, the charge-sheet will be defective and
may create difficulties. It was held in Aghor 1952 Cr.L.J. 1405, “Where a Magistrate
took cognizance or charge-sheet submitted by a police officer which merely referred to
F.I.R. but did not contain the statements of facts constituting the offence, nor did it
conform to the provisions of section 173(2) Cr.P.C,” held that taking of cognizance on
such a defective charge was illegal and the proceedings were quashed. It was further
held that the defect was not curable under section 537 now 465 Cr.P.C. as it had
occasioned failure of justice. Also Shivlingappa 31 Cr.L.J. 442. See also 1955 Cr.L.J.
1561 Badami Lal Ram Dhan v. State, in this case officer-in-charge had mentioned in last
column mere ‘abduction’. This was insufficient. Further offence committed by all
accused was not given separately without stating who first of all committed the offence
under section 366 I.P.C. and who abetted. Proceedings were quashed.
A challan once it is filed in the Court cannot be returned by Magistrate. Court has to
proceed with it. Section 190(1)(b) 1973 Cr.L.J. 503. A Subhash Chandra. Cognizance
can be taken on challan filed after 6 months of continuing investigation without sanction
under section 167(5) Cr.P.C. in a summons case. 1988 Cr.L.J. 1057.

Incomplete Charge-Sheet
In this respect it may be mentioned that practice of putting incomplete charge-sheet
was never liked by the judiciary. It is always better in the interests of justice to put up
complete challan after expediting investigation. It was held in Kirpa v. State 1952
Cr.L.J. 1495 (HP) that section 173 Cr.P.C. contemplates the submission of only one
police report and that when the investigation is complete. The practice of putting
incomplete challans necessarily prejudices the accused in their trial and section 173
Cr.P.C. bars it.
It may be that after full and fair investigation an accused may be found innocent or
some of them found innocent may be dropped in final charge-sheet under section 173
Cr.P.C. Held in Ramsethy 1969 Cr.L.J. 542 that the fact that preliminary charge-sheet
was filed by the prosecution does not bar the police to continue the investigation.
Recovery of article at the instance of accused after filing incomplete charge-sheet is
admissible.
 The new Code does not recognize the putting of incomplete challan. It speaks of only
one final report under section 173 (2). Therefore, the putting up of incomplete challan
does not give cognizance of the case to the Court. Nor it can exercise its power under
section 309 Cr.P.C. to remand the accused to further custody. This power is curtailed in
new Code and if sixty days from arrest have expired, the submission of incomplete
challan will not deprive accused of his right to be bailed out under section 167(2)
Cr.P.C. See Natabir Prada 1975 S.C. 1465; T.V. Sarma 1976 Cr.L.J. 1247: 1977 Cr.L.J.
N.O.C. 262 Hari Chand. The view taken in 1975 Cr.L.J. 853 (Orissa) was reversed in
1975 S.C. 1465.
As soon as the police report is given in the Court whether it is dubbed as
incomplete, the Court takes cognizance under section 190(1) Cr.P.C. See 1978 C.L.R
(Delhi) 104.
If further oral or documentary evidence comes to light. Section 173(8) Cr.P.C.
authorizes investigation officer to investigate and further report or reports can be sent
to the Court even though a challan has been given earlier, see 1983 (2) C.L.R. 377 Lek
Chand (P&H.).
Challan against one accused can be given though it is not complete against all. Even
further investigation under section 173 (8) Cr.P.C. can be held against him if fresh and
new material is there, it may be incomplete against an Absconder accused or unnamed
accused or untraced accused. Keeping investigation alive against others is allowed.
Thus, giving of incomplete challan–Further fresh challan–Complete challan is not barred
under Law.
“Normally investigations terminate with the filing of charge-sheet in the court. But
sub-section (8) of section 173 provides that the I.O. (Officer-in-charge of police station)
may undertake a further Investigation even after filing of charge-sheet. If he does so the
further evidence collected by him shall be forwarded to the Magistrate alongwith a
further report.” 1986 Cr.L.J. 707 (KB.) Patna.
But neither the prosecution i.e. the informant nor the accused can claim as of right a
direction from court commanding further investigation under section 173(8) after a
charge–sheet was filed after investigation.” Shyam Charan Dubey, 1990 Cr.L.J. 456.
Section 173(8)–Further investigation–Directions for by State–Validity–Alleged
conspiracy for escape of notorious criminals and Pakistani spies from jail–Involvement
of senior police and Government officers–Charges of corruption also against them–No
malafide on part of State Government to direct further investigation–Order for further
investigation, proper–However, in view of alleged hostility between officers conducting
investigation and alleged accused and allegations and conducted allegations of
investigation being conducted in partisan manner further investigation directed to be
conducted by CBI. Bijal Revashanker Joshi v. State of Gujarat, 1997 Cr.L.J. 4170 Guj.
Section 173–‘Further investigation’–Order of dropping proceedings–Order passed by
Magistrate after accepting final report submitted by CBI–Communication by informant
to CBI indicating certain defects in investigation and some shortcoming requiring
reinvestigation–Communication withheld by CBI from Magistrate- Application by
informant before CBI Magistrate bringing such communication to his notice and praying
for reinvestigation–Rejection of, by Magistrate on ground that it cannot review its
earlier order–Illegal–Magistrate could in such cases direct further investigation as
provided under section 173(8). U.P.S.C. v. Papaiah and Other, 1997 Cr.L.J. 4636 (SC).
Sections 173 and 197–Power of Magistrate–Bribery case–Investigating officer
submitting final report–No case found against petitioner order by Magistrate returning
back final report to investigation officer for getting sanction for prosecution not proper.
Krishan Dutt Sharma v. State of Rajasthan, 1998 Cr.L.J. 3520 Raj.
Sections 173 (2)–Report under section 173(2) form discharge of accused CBI
investigating offence of corruption–Need not obtain sanction from prosecuting agency
before approaching court. State through CBI v. Raj Kumar, 1998 Cr.L.J. 4051 (SC).
Sections 173(8) and 190–Investigation–Order from further investigation after taking
cognizance–Is valid–However direction given to conduct investigation keeping in view
application of complaint–Is without jurisdiction. Likhab Das v. Manak Chand, 1998
Cr.L.J. 3075 (Raj.).
 Investigation–Death of a person in police firing–Petition complaining that police
conducted biased investigation and filed final report–Supreme Court directing enquiry
by Session Judge–Session Judge submitting report–Court adjourning matter to enable
State Govt. to have matter investigated by independent agency–State Govt appointing
Chief Development Officer and Suprintendent of Police to enquire–Action of State
Government not proper–Matter directed to be inquired by CBI. Munir Alam v. Union of
India, 1999 Cr.L.J 3523 (SC).
Section 173(8)–Re-investigation can be ordered by Magistrate without affording
opportunity of hearing to accused even after receipt of first report of police. Sri.
Bhagwan SS V Venkata v. Maharaj State of A.P., 1999 Cr.L.J. 3661 (SC).
Sections 173(8), (2)–Further investigation scope second report filed by police
contrary to its earlier report–Magistrate has power to permit police to re-open case for
further investigation–Fact that earlier order of Magistrate recording “Undetected” on
earlier police report is judicial order–Cannot preclude him from directing further
investigation especially when fresh information has been received by police to detect
offence alleged. R. Ramamurthy v. State, 1999 Cr.L.J. 581 (Mad.).
Section 173(8) Cr.P.C–The power of the Investigating Officer to make a prayer for
making further investigation in terms of sub-section (8) of section 173 is not taken away
only because a charge-sheet under sub-section (2) thereof has been filed. A further
investigation is permissible even if order of cognizance of offence has been taken by the
Magistrate. Dinesh Dalmia v. CBI, 2007 (4) Crimes 33 (SC).
Section 173(8) Cr.P.C.–The law does not mandate taking prior permission from the
Magistrate for futher investigation. It is settled law that carrying out further
investigation even after filing of the charge-sheet is a statutory right of the police. The
Material collected in further investigation cannot be rejected only because it has been
filed at the stage of trial. The trial court is fully justified to summon witnesses examined
in the course of further investigation. It is also clear from section 231 Cr.P.C. that the
prosecution is entitled to produce any person as witness even though such person is not
named in the earlier charge-sheet. All those relevant aspects have been taken note of by
the learned Magistrate while summoning the witnesses based on supplementary
charge-sheet. Rama Chaudhary v. State of Bihar, 2009(2) Crimes 229 (SC).
 Section 173(8) Cr.P.C.–It is well settled that the accused has no right to be heard at
the stage of investigation. The prosecution will, however, have to prove its case at the
trial when the accused will have full opportunity to rebut/question the validity and
authenticity of the prosecution case. Narendra G. Goel v. State of Maharashtra, 2009
(3) Crimes 195(SC).
Section 173(8) Cr.P.C.–High Court directing investigation by an officer of the rank of
DGP–Nominating one officer of DGP Rank–Not permissible, more so after filing of the
charge-sheet. Such a course was not necessary unless the High Court had examined the
charge-sheet which was filed and recorded its findings that the investigation was not
properly conducted or to required further investigation under section 173(8) Cr.P.C.
Virender Prasad Singh v. Rajesh Bhardwaj, 2010(4) Crimes (SC).
Section 173(8) Cr.P.C.–Further investigation–Police has a right to further investigate
the case even after submission of police report under section 173(2) of Cr.P.C. Though
Magistrate allowing prayer of police permitted for reinvestigation of the case, which
direction would imply only further investigation and not for the re-investigation. Ikram
Husain v. State of U.P., 2012 (1) Crimes 631 (All.).
Sections 173(8), 200 and 201 Cr.P.C.–Criminal case can not be sent to police for
reinvestigation– Same can be sent for further investigation on specific issues. Vinod
Dubey v. State of Rajasthan, 2012 (1) Crimes 460 (Raj).
Section 173 (8) and 319 Cr.P.C.–Cognizance of offence under section 148, 149, 307,
392 and 120B IPC against petitioner when police had filed charge-sheet against other
four accused persons but investigation against petitioner was kept pending under
section 173(8) Cr.P.C.–Trial had commenced but summoning of petitioner was not in
exercise of jurisdiction under section 319 Cr.P.C.–When investigation against petitioner
was kept pending then there was liberty left with trial court to take cognizance on basis
of charge-sheet filed against other co-accused. Impugned order was liable to be set
aside. Gopiram v. State of Rajasthan, 2012 (1) Crimes 141 (Raj).
After submission of charge-sheet and before inquiry or trial the Magistrate shall
furnish or cause to be furnished to the accused free of cost (i) the copy of police report
under section 173 Cr.P.C. (ii) the copy of F.I.R. (iii) Copies of statements under section
161 (3) Cr.P.C. (iv) Copies of confessional or other statement under section 164 Cr.P.C.
(v) and all other documents or relevant extracts thereof on which the prosecution
proposes to rely e.g. copies of memos, exhibits etc. This is a mandatory provision under
section 207 Cr.P.C.
The object of this is firstly to expedite the criminal cases and secondly to secure
fairness of trial i.e. to enable the accused before the commencement of enquiry or trial
to know what exactly is evidence against him so that he may defend himself properly.
The investigating officer can also supply copies to the accused where he finds
convenient to do so. (Section 173(7) Cr.P.C.)
It is nowhere stated either in section 173 or 207 that copies of statements in
connected cases, are also to be supplied. 1957 Cr.L.J. 1009 (SC) Gurbachan Singh.
Failure to furnish copies under section 173(7) Cr.P.C. (Now Section 207) was held to be
an irregularity which did not vitiate a trial if no prejudice had been caused to the
accused. Mr. Sinha of the Supreme Court held in 1957 S.C. 737 Narayan Rao v. State of
Andhra Pradesh that word “shall” occurring in sub-section (4) of section 173 and sub-
section (3) of section 207 (A) (now S. 238) was not mandatory but only directory
because an omission of section 173 (Section 207 now) should not be allowed to have
such far reaching effect as to render the proceedings including the trial at the Court of
Sessions, wholly ineffective. It was further held that this omission should not have more
far reaching effect than the omission to carry out the provisions of section 162 or
section 360 of the Code. Also see K.R. Sharma v. State of Punjab, 1958 Punjab 27. It
was further held therein that non supply of the copy of the previous statement may
seriously reduce and impair the value of the statement of the witness but cannot render
it inadmissible. In State of Gujarat v. Thakur Kaku, 1966 Gujarat 217, it was held that,
“what effect should be given to non-supply of copy of any such statement of a witness
depends upon certain factors. It has to be shown that his statement is recorded and
deliberately kept back and not given. And even before the evidence can be said to suffer
from any infirmity on that ground, the accused must move the Court for enabling them
to get the same from prosecution and it is only, thereafter, that inspite of the direction
or order of the Court to supply the same, it is not supplied that the Court would be
justified to say that the accused have been prejudiced by reason of not being able to
meet the evidence of such a witness by proper cross-examination of the basis of such
previous statement”. The affect of non-supply of copies, not being curable, the trial is
vitiated. 1988 Cr.L.J. 42. (See Ch. VIII).
Sections 169, 173 and 190–Cognizance of offence–Final report submitted by police–
Protest filed by complainant objecting submission in police report–Magistrate made
reference to protest petition but took cognizance of offence on police report itself on
basis of evidence and material collected during investigation by disagreeing with
conclusion arrived at by police–He would be deemed to have taken cognizance under
section 190(1)(b)–Not illegal. Jabaruddin v. State of U.P., 2000 Cr.L.J. 158 (All.).
Sections 173 and 190 Cr.P.C.–Cognizance of offence by Magistrate–Reinvestigation
of the case–Not barred–However the investigating agency is not vested with unbridled
power to reinvestigate to proceed against–Investigating agency before proceeding with
reinvestigation of the case, should obtain prior permission from the concerned
Magistrate. Gobardhandas v. State of Orissa, 2000 Cr.L.J. 1641 (Ori.).
Sections 173 and 482 Cr.P.C.–Quashing/deleting of name of dead person from
charge-sheet–Before case Charge-sheet filed by CBI in form prescribed under section
173–Name of accused person who is not sent up for trial due to his death can also be
included in column 2 of charge-sheet-alleged involvements of Late Prime Minister in
commission of offences of conspiracy and competition–Inclusion of his name in column 2
of charge-sheet meant for accused persons not sent up for trial cannot be deleted–
However, Late Prime Minister is entitled to benefit of legal presumption that he is
innocent and not guilty. Rajiv Gandhi Ekta Samiti v. Union of India, 2000 Cr.L. J. 2002
(Delhi).
Experts Reports/Copies given Incomplete
Sometimes the reports of Experts which are admissible under section 293 Cr.P.C.
are not relied and the challan is given under section 173 Cr.P.C. for cognizance of the
case. Even copies of certain statement and documents are not made available. Will the
cognizance of the reports under section 190(1)(b) taken? This point arose in State of
Haryana v. Mehal Singh & Other 1978 P.L.R. 480 before the Punjab & Haryana High
Court and the accused demanded release on bail saying that challan was not submitted
and without experts reports and supply of copies, thereof, it did not amount to police
report under section 173(2) Cr.P.C. and bail should be granted to them in terms of
section 167 (2) (a) Cr.P.C. as limitation period of remand of 60 days was over. Held by
Full Bench:
(i) it was sufficient if expert is cited as witness.
(ii) if statements and documents referred to section 173(5) Cr.P.C. are not
appended with police report and copies not given, the result would be that at a
later stage they can be made available to accused.
(iii) the Court can allow additional evidence under section 311 Cr.P.C. and
document can be sent to Court under section 91 Cr.P.C.
(iv) failure to append document does not mean investigation is incomplete and
conclusive and the accused cannot demand release under section 167(2)
Cr.P.C.
Same was the view of the Delhi High Court v. Taj Singh 1988 Cr.L.J. 1634, holding
that though without Report of Forensic Lab, it was complete challan.

Additional Documents and Fresh Evidence

Fresh evidence and documents are sometimes to be tendered in evidence during the
course of trial and for which no reliance had been placed while submitting challan
under section 173 Cr.P.C. and of which no copies had been given to accused. Section
173 Cr.P.C. does not prevent prosecution from filing such evidence and documents. It
was held in 1968 Cr. 1035 J.B. Roy that Court can summon additional witnesses not
mentioned in the list along with challan under section 173 Cr.P.C. and even those
witnesses who were examined after submission of report under section 173 Cr.P.C. and
during the trial of the case. Further investigation in the case after submission of challan
is not barred under section 173(8) Cr.P.C. Further evidence can be obtained and further
report or reports can be sent. (See Investigation). All that is required is that copies of
these documents and copies of the statements of witnesses to be so examined should be
given in advance to the accused. The prosecution was allowed to produce the two
documents even after the framing of charge especially when one of them had come into
the possession of I.O. after the filing of challan and the other had come into existence
after the filing of challan and for which obviously copies could not be provided early
1959 M.P. 290. In re Shanti Lall 1964 P.L.R. 181. It was further suggested in Chandu
Veeraiah, 1963 Raj 48 that if necessary the Court should allow the accused a reasonable
time to consider the effect of such document upon his defence and given full
opportunity to cross-examine witnesses in the light of these documents 1960 Cr.L.J.
1231, State v. Bakunth Nath. It is, however, always advisable to attach all the
documents to be relied upon with the challan. The documents invariably are:
(i) The report under section 173 Cr.P.C. (ii) Copy of F.I.R. (iii) Original statement, if
any of informant (iv) Recovery memos (v) Injury statements if any (vi) Medico legal
reports, Inquest or Post mortem Reports, etc. (vii) Reports of experts if any (vii) X-rays
report, etc. (ix) Identification parade memos (x) Statement of accused or witnesses
under section 164 Cr.P.C. and copies of statements of witnesses recorded under section
161 Cr.P.C. (xi) List of stolen property if any (xii) Site plan (xiii) Memos pointing out or
disclosure statements of accused under section 27 Evidence Act (xiv) Dying Declaration
(xv) Any other documents to be used as evidence (xvi) Identification certificate of
accused (xvii) Judicial certificate in case of previous conviction (xviii) Conviction Slip.
In case, the officer-in-charge is of opinion that any part of statement recorded under
section 161 Cr.P.C. should not be given to accused in the interests of public justice,
then he will append a note that specific part of the statement should not be given to
accused. The reasons will be given for consideration of the Court as required by section
173(6) Cr.P.C.
The officer-in-charge will also attach with challan a list of all the documents entered
in challan under section 173 Cr.P.C. These documents, if admitted by accused or his
counsel will not be required to be proved. Section 294 Cr.P.C.
As held in Full Bench case State of Haryana v. Mehal Singh supra Experts can be
cited without waiting for reports and the Court under section 311 Cr.P.C. can allow
additional evidence to be produced in the interests of justice. No prosecution evidence
which has a vital bearing on the case should be shut out.

Fresh Challan
Police can make further investigation at any stage even after submission of challan,
if fresh facts come to light section 173(8) Cr.P.C. The Court has no judicial control over
investigation and over the manner or the circumstances in which an I.O. makes his
report under section 173 Cr.P.C. He can submit a challan even after sending final report
to the Magistrate (1) on his own initiative, or (2) under direction of S.P. or D.M. The
direction by these officers or other supervising officers to replace the final report by
challan is only administrative and not subject to any control by a Court of law. This is
possible if there are insufficient grounds given in final report and on further
investigation by a superior officer or otherwise there is evidence to come to the
conclusion that accused has committed the offence. The Magistrate will take cognizance
on challan under section 190 Cr.P.C. See Rama Shankar v. State of U.P., 1956 All. 525.

Accused not Challaned by Police

The police on investigation can leave out accused named in F.I.R. and found
innocent. Either they are not arrested at all, of if arrested, there being sufficient
evidence of their innocence, they are not challaned and request for their discharge is
made. Such accused are shown in Column No. 2 of the challan when a consolidated
challan for trial against the other is sent up.
The Court which takes the cognizance of the challan can summon such accused even
though police has challaned some others. In Garib Dass, 1976 PLR 71, the police
showed name of Garib Das, in Column No. 2 of challan while challaning 3 others.
Complainant gave application for summoning Garib Dass since his name was mentioned
in F.I.R. and in statements under section 161 Cr.P.C. The Magistrate summoned the
accused. Held it was legal. Held also in Ajit Singh v. State 1961 PLR 571, the
Magistrate is not bound by the report under section 173 Cr.P.C. There is no bar as the
Court takes the cognizance of the offence and the case as a whole and not offenders
only, see Fatta v. State 1964 Punjab 351 (may be without examining witnesses Saifar
1962 Calcutta 133 of after examining 1963 (2) Cr.L.J. 66 Ali Ullah. Procedure followed
with regard to these accused would be the same as on police report (1962 Calcutta
133), 1962 (1) Cr.L.J. 96 (Tripura Niranjan). In 1967 Cr.L.J. 1081 Raghubans Dubey the
Supreme Court held that accused not challaned by police and mentioned in Column No.
2 can be summoned by the Court even though such accused were discharged earlier.
The cognizance is taken upon police report of an offence and not offenders. This case
was followed in Hareram v. Tikaram, 1978 S.C. 1568, held that where Magistrate after
taking cognizance of this offence and after perusal of the record satisfies himself, he
can issue process against him. This is irrespective of the fact whether he is shown in
Column No. 2 or is not arrested. Also See Gandhi 1970 Cr.L.J. 778. In case Suit Kanthi
Jabai 1971 Cr.L.J. 1474 the Court, on receipt of complaint had sent it to police under
section 156(3) Cr.P.C. The police sent charge-sheet against four accused, one of whom
was named in the complaint be complainant. The Magistrate dropped proceedings
against him. Held by the Mysore High Court that it was a wrong order and Magistrate
takes cognizance of offence and not offenders and can call any person as accused.
In case, the offence is triable exclusively by the Session Court, the Magistrate
cannot commit persons shown in column No. 2 of challan to the Court of Sessions. So
held in Surinder Kumar 1977 C.L.R. 359 (P&H). He can summon accused and then
commit. Here Ram Supra. The Sessions Court can discharge the accused if upon
perusal of record it finds that there is not sufficient material to charge them.
Here Ram’s case Supra and Sanjay Gandhi 1978 S.C. 285, Section 227 Cr.P.C 1981
C.L.R.-547 Surat Singh. It was held as under:
(a) Criminal Procedure Code, 1973 report under submitted by police before the
Magistrate against certain accused person in a case exclusively triable by the
Court of Sessions–Name of certain accused mentioned in Col. No. 2 of the said
report–Magistrate has jurisdiction to commit even the said accused to the
Session Court. Single Bench decision in 1977 P.L.R. (P&H) 459 over-ruled.
(b) Police Report–Under section 173 of Cr.P.C. Name of the particular accused
mentioned in Col. No. 2 thereof indicating that he was not sent up for trial–The
Magistrate still exercises jurisdiction to summon said accused to stand his trial
in case it is satisfied that there is prima facie case for proceeding against him.

Can the Session Court add Accused

In case an accused is not committed to the Court of Session for trial, in a case, can
he be summoned by the Court of Sessions or added to the other accused who are
committed in a case, without his being duly committed.
Now under section 209(a) Cr.P.C. The Magistrate, if it appears that the offence is
exclusively triable by the Session Court, commits the case to the Court of Session.
Section 319 Cr.P.C. also empowers a trial Court to proceed against any person who
appears to have committed offence from evidence. On the analogy of above provisions,
the Sessions Court can add to or summon the accused though not committed. Held so in
Waryam Singh 1978 C.L.R. 6.
It was also held so in 1983 Cr.L.J. 1394 Lal Chand by D.B. of the Punjab and
Haryana High Court. By seeing the documents in report under section 173 Cr.P.C, the
Session Judge can, without recording evidence: (under sections 227, 228, 239, 240,193
Cr.P.C).
See, however, 1977 Cr.L.J. 415, Patananchala where the Andhra Pradesh High Court
took contrary view holding that section 193 does not give cognizance of an offence
against other persons than those shown as accused in the case committed. The Delhi
High Court in 1978 Cr.L.J. 239 Abdul Majid agreed with this view and quashed the
order of the Session Court summoning accused under section 319 Cr.P.C. during trial
when they had not be committed.
The view in Patnanchala was expressly overruled by their Lordship in Joginder
Singh’s case 1979 S.C. 339. The cognizance is taken of the offence and not the offender
as held in 1967 S.C. 1167. This question of law is at length discussed in S.K. Latifur
Rehman 1985 Cr.L.J. 1238 (FB) Patna and it was held that section 193 is no bar to the
summoning of the additional accused. Similarly section 319 of the Code is not the sole
respiratory of power for summoning the additional accused. It only operates when the
enquiry or trial has started. The Court of Session has power to summon additional
accused prior to the framing of charge without self-recording evidence on the basis of
the documents in the final report under section 173 Cr.P.C. independently of provisions
of section 319 Cr.P.C.
The accused shown in Column No.2 of the challan can be summoned before framing
charge against the other by the Session Court.
Sections 209 and 299 Cr.P.C.–Case exclusively triable by Court of Sessions–Challan
submitted against some of the accused while other absconding–Absconding accused
appearing before Sessions Judge–Sessions Judge has to proceed with trial against the
absconding accused–He cannot remand back the case to committing Magistrate. Gagan
Thakur v. State of Jharkhand, 2004 Cr.L.J. 1910.
Section 209 Cr.P.C.–Summoning of a person as additional accused-Offence
under section 302 I.P.C.–Offence exclusively triable by Sessions Court–Challan put up
by police before committing Magistrate–Some of the accused named in F.I.R., but police
did not put challan against them–Committing Magistrate cannot issue process against
those persons, who may have been named in the F.I.R. as accused persons, but not
charge-sheeted in the charge-sheet that was filed by the police
under section 173 Cr.P.C.–Such persons can be arrayed as “accused persons” in
exercise of powers under section 319 of the Code when some evidence or materials are
brought on record in course of trial or they could also be arrayed as “accused persons”
only when a reference is made either by the Magistrate while passing the order of
commitment or by the learned Sessions Judge to the High Session Court and the High
Court on examining the materials, comes to the conclusion that sufficient materials
exist against them even though the police might not have filed charge-sheet.
Kalamuddin v. State of Rajasthan, 2006 (1) RCR (Cri.) 182.
Section 209 Cr.P.C–Liberal grant of adjournments at the instance of the accused–
Not proper in view of threats to complainant and independent eye-witnesses–Trial to be
conducted on continuous basis. Ashok Kumar v. State of U.P., 2009 (1) Crimes 336 (SC).
Section 209 Cr.P.C–Petitioner charged with offence under section 489(b) and 489(c)
IPC–Petition for quashing criminal proceedings on ground of violation of provision
under section 209 Cr.P.C is committed by Magistrate was a must–Md. Abdul A.
Choudhary v. State of Mizoram, 2010 (3) Crimes 446.
Murder with gun shot–Report of Forensic Science Laboratory signed by Junior
Scientific Officer (Ballistic)–A Junior Scientists Officer is an officer enumerated in
section 293(4)–Court to accept the document without examining the author. State of
H.P. v. Mast Ram, AIR 2004 SC 5056.
Serologist report–Non-examination of Serologist–Mere non-examination of serologist
would not render his report in admissible in evidence. Rajesh Rai v. State of Sikkim,
2002 Cr.L.J. 1385.
Section 209–The entitlement of the accused to speedy trial has been repeatedly
emphasized by the court. It has been recognised as an inherent and implicit aspect in
the spectrum of Article 21 of the Constitution. The whole purpose of speedy trial is
intended to avoid oppression and prevent delay. The concept of speedy trial cannot be
allowed to remain a mere formality. Rattiram v. State of M.P., 2012 Cr.L.J. 1769 (SC).
Section 209–High Court quashed issuance of summons by Special Judge against the
respondent in the commission of offence. It was held that high court order quashing
issuance of summons is erroneous & not allowed to be sustained. However, it was not
necessary for the special judge to issue directions to CBI to get a case registered
against the guilty officers who have investigated the case. R.N. Aggarwal v. R.C. Bansal,
2014(4) Crimes 220 (SC).
Section 209–The magistrate at the stage of section 207 to 209 Cr.P.C. is forbideen
by express provisions of section 319 Cr.P.C. to apply his mind to the merits the case and
determine as to whether any accused needs to be added or substracted to face trial
before the court of session. The proceedings under section 207 to 209 Cr.P.C. are
intended only to process in motion. Hence, power to add accused was not exercisable at
this stage. Hardeep Singh v. State of Punjab, AIR 2014 SC 1400.
Section 209–If cognizance is to be taken of the offence, it could be taken either by
the Magistrate or by the Court of Session. The language of section 193 Cr.P.C. of the
code very clearly indicates taht once the case is committed to the Court of Session by
the Magistrate, the Court of Session assumes original jurisdiction and all that does with
the assumption of the such jurisdiction. Dharam Pal v. State of Haryana, (2014)2 SCC
(Cri.) 159.

Summoning of Accused not named in F.I.R. or Statement under

section 161 Cr.P.C. but named during Trial (Section 319 Cr.P.C.)
Section 319(1) Cr.P.C. says “Where, in the course of any enquiry 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 for which lie appears to have
committed.”
In case, during the enquiry or trial of a case, in which some accused are sent up, it
appears that any person other than accused has also committed the offence alongwith
accused, then the Court, if such person is present can proceed against him. In case he is
not present, he can be summoned/arrested and tried. The proceeding shall, however, be
commenced afresh (See section 319 Cr.P.C.).
The Police had not challaned 4 persons though named in statement under section
161 Cr.P.C. but during trial before Session, the eye witness gave sufficient details to
involve these four persons, though details were not in statement under section 161
Cr.P.C., the Sessions Judge summoned them on application of private-complainant, held
there was no illegality. Section 319 Cr.P.C. 1983 Cr.L.J. 433, Shri Mahant Amar Nath.
It was held in Ram Niwas 1990 Cr.L.J. 460, where the name of applicant was
mentioned in F.I.R. and after investigation the police did not include him as an accused
in the charge-sheet but during trial it appeared from evidence that complicity of
applicant was more than apparent, he could be summoned accused in trial going
against charge-sheeted accused. Section 319 allows this.
Section 319 Cr.P.C.–Implication of person as accused–No evidence available to make
it appear that person sought to be implicated has committed an offence person cannot
be implicated. P.M. Abubacker v. P.J. Alexander, Cr.L.J. 1168 Ker.
Section 319 Cr.P.C.–Addition of person as co-accused–Invoking power at belated
stage after cross-examination of 54 witnesses–And at cost of de mono trial–Not proper.
Michael Machado v. CBI & Another, 2000 Cr.L.J. 1706 (SC).
Section 319 Cr.P.C.–Issuance of summons–Powers of Magistrate offence under
section 419, 420, 467 and section 120B of Penal Code–Filing of complaint against five
accused person–Investigation by police and submission of charge-sheet against three
accused persons only–Remaining two accused persons not sent up for trial–However, it
was found during trial that there was sufficient evidence on record showing involvement
of those two accused persons in alleged crime–Therefore issuance of summons to them
by Magistrate–Not improper. Nilya Nand Singh v. State of Bihar, 2000 Cr.L.J. 5087 Pat.
Section 319 Cr.P.C.–One of the difference between section 319 of the Code and
section 20A of the Act is that, while in the former even if it appears to the court from
the evidence (either during inquiry or trial of the offence) that another person is to be
tried alongwith the already arraigned accused, then the court can proceed against that
other person while in the latter the satisfaction of the court that such manufacturer
(distributor or dealer) is also concerned with that offence must be gathered from “the
evidence adduced before it during the trial”-In other words, the power under section
20A cannot be invoked untill the trial begins and after the trial ends. M/s Om Prakash
Shiv Prakash v. K.I. Kuriakose, 2000 Cr.L.J. 26 (SC).
Section 319 Cr.P.C.–Summoning of person as accused–Power under section 319 can
be exercised even on basis of evidence of witness or witnesses recorded in examination-
in-chief. Shiv Narain v. State of U.P., 2000 Cr.L.J. 3346 (All.).
Section 319 Cr.P.C.–Summoning of additional accused–F.I.R. lodged on basis of
suspicion–Statement made by witnesses found divergent to statement made earlier
which formed basis of F.I.R.–Invoking power of court on ground of suspicion–Not
proper. Sandeep Sharma v. State, 2000 Cr. L J. 4448 (Delhi).
Section 319 Cr.P.C.–Additional accused–Summoning of–Bar of limitation–Section 319
is one of exception for applicability of bar of limitation prescribed under section 168.
Mrs. Maninder Daur v. State & Others, 2000 Cr.L.J. 3111 (Delhi).
Held in Margoobal Hassan 1988 Cr.L.J. 1467 wherein entire case law was persued,
it was held—
(i) Proceeding under section 319 Cr.P.C. means that there material on
record justifying for taking of cognizance of and offence but does not
mean that accused has committed an offence.
(ii) Normally the revisional Court should not disturb the satisfaction of
the Magistrate on the point of sufficiency of material.
(iii) The section applies not only to the Magistrate’s Court but also to the
Session Court and commitment is of the case and not of the accused.
Cognizance of additional persons is incidental to the cognizance
already taken. Every persons dropped during investigation by police
can be summoned. If mere is evidence against them during the course
of the hearing of the case, because the Court is not bound by the
police opinion.
(iv) Any person not being an accused will not exclude person released by
the police under section 169 Cr.P.C.
Held in 1989 Cr.L.J. 2251 Pukhraj, The Magistrate can exercise suo moto power of
taking cognizance only when there is evidence recorded trial. Section 319 does not give
permission that the Court can look into the statements recorged under section 161
Cr.P.C. but it can look into the statements recorded it only during trial.
 Section 319 Cr.P.C.–Addition of accused–Water pollution case–Discharge of effluent
from industrial unit owned by society–Complaint against–Addition of company actually
running the said unit as accused is proper. M/s B.T.&F.C. (Pvt.) Ltd. v. Karnataka State
Pollution Control Board, Bangalore, 1997 Cr.L.J. 3661 (Karnt).
Section 319 Cr.P.C.–Additional accused–Summoning of complaint filed for offence of
rash and negligent driving–During investigation it was found that another person and
not petitioner–Accused was driving vehicle on date of incident–Evidence of
complainant–Injured and witnesses inconsistent–No material to proceed against
petitioner accused–Order summoning petitioner as an accused, not proper. Amit Kumar
Mathur v. State, (U.T.) Chandigarh, 1998 Cr.L.J. 607 (P&H).
Section 319–Addition of accused–Experession “person not being accused”–Does not
cover person figuring as accused in case at any stage–Three persons named as accused
in complaint–Cognizance taken duly against two of them and not the third accused i.e.
the petitioner–Petitioner could not be described as “any person no being an accused”–
Cannot thus be added as an accused. Uma Shankar Sahay v. State of Bihar, 1998 Cr.L.J.
2807 (Pat.).
Section 319 Cr.P.C.–Power of court to proceed against other persons appearing to
be guilty of offence–Can be invoked by accused by filing application under section 319.
Chiagdalvi Mohammed Abdul Azeen Ahmeed v. State, 1998 Cr.L.J. 3112 (A.P.).
Section 319 Cr.P.C.–Summoning of additional accused statements of witnesses
recorded under section 161 Cr.P.C.–In evidence of widow of deceased before trial court,
participation of petitioner in occurrence alongwith accused who was facing trial has
been clearly disclosed prima facie case made out against petitioner–No allegation or
proof of bias or ill–Motive either with prosecution or witness–No error or irregularity in
adding petitioner as accused in exercise of power under section 319. Panchadia Jaya v.
State of Orissa, 1998 Cr.L.J. 4750 (Ori.).
Section 319 Cr.P.C.–Summoning of persons for trial–Term ‘evidence’ in Section 319-
can not be interpreted narrowly to mean evidence tested by cross-examination-should
include evidence even in examination-in-chief of a witness Smt. Gangia v. State of U.P.,
1999 Cr.L.J. 309 (All.).
Section 319, 190 Cr.P.C.–Power of court to implead any other person as accused-
cannot be invoked unless evidence recorded in trial–Petitioners charge-sheeted for
demanding dowry, torturing wife and misappropriation of jewellery and articles given at
time of marriage–Application by petitioners to implead father of wife as accused for
giving dowry–Trial not yet commenced and no evidence taken–Presents given to bride-
groom are exempted under section 3(2) of Dowry Prohibition Act–Father cannot be
prosecuted on basis of his own statement in view of section 7(3) of Dowry Prohibition
Act–No material against father. He cannot be impleaded as accused under section 319
or section 190 Cr.P.C. [Link] Subramaniam v. State, 1999 Cr.L.J. 4266 (Mad.).
Sections 319, 190(1) and 173 Cr.P.C.–Police submitting charge-sheet–Magistrate
taking cognizance under section 190 Cr.P.C.–Magistrate can summon a person not
mentioned in charge-sheet by considering F.I.R. and other documents submitted by
police with charge-sheet–Recording of evidence under section 319 not necessary at this
stage–Section 319 Cr. P.C. would come into operation in course of inquiry or trial of
offence. Suril Ltd. v. State of Delhi, 2004 Cr.L.J. 4173 (SC).
Section 319 Cr.P.C.–Accused can also file an application for summoning of a person
as additional accused–Further held, such a petition can be filed not only by the
prosecution, but also by the de facto complainant: a witness or even the accused.
Vasudevan Nair v. State of Kerala, 2005 Cr.L.J. 1457.
Section 319 Cr.P.C.–Power of court under section 319 Cr.P.C. to add a person as
additional accused–Power be exercised sparingly. Rakesh v. State of Haryana, AIR 2001
SC 2521.
Sections 319 and 190 Cr.P.C.–Summoning of person as additional accused–Charge-
sheet submitted by police–Magistrate taking cognizance under section 190 Cr.P.C.–
Before framing charge-sheet, Magistrate summoning some other person as additional
accused on basis of material placed on record–No illegality–Scope of Section 319
Cr.P.C. is different from section 190 under section 319 Cr.P.C., Magistrate has power to
summon a person if during trial and enquiry it appears to Magistrate that some other
persons were also involved in commission of offence. Jitender Singh @ Motu v. State
Govt. of NCT Delhi, 2003 Cr.L.J. 2388 (Delhi).
Section 319 Cr.P.C.–Summoning of additional accused–Petitioner summoned as
additional accused to stand trial together with other accused–Before the additional
accused could be proceeded trial in main case concluded and accused convicted–It will
not make the summoning order inoperative–Petitioner has to face the trial. Shashikant
Singh v. Tarkeshwar Singh, AIR 2002 SC 2031.
Section 319 Cr.P.C–Summoning of additional accused–Murder case–Some persons
named in F.I.R. but not challaned by police–Said persons can be added as accused by
committing court as well Court of Sessions. Smt. Rukhsana Khatoon v. S. Hussain, AIR
2002 SC 2342.
Section 319 Cr.P.C.–Summoning of a person as additional accused–F.I.R. and
complaint case with regard to same offence of murder–Two of the accused persons
challaned by police–Order of summoning of these two persons accused in complaint
case–Not illegal. Jarnail Singh v. State of Haryana, AIR 2003 SC 4081.
Section 319 Cr.P.C.–Summoning of a person as additional accused–Challan against a
number of accused persons–Proceedings against one of them quashed by High Court
under section 482 Cr.P.C.–Trial against other continued–Trial court can summon the
accused though earlier proceedings against him were quashed by High Court–For this
conditions under section 319 Cr.P.C. have to be fulfilled. Krishappa v. State of
Karnataka, AIR 2004 SC 4298.
Section 319 Cr.P.C.–Prosecution of public servant in corruption case–Sanction for
prosecution accorded by competent authority under section 19 of Prevention of
Corruption Act–An other public servant added as accused under section 319 Cr.P.C.–
Court cannot take cognizance without sanction for prosecution–Sanction of prosecution
has to be granted with respect to a specific accused. Dilawar Singh v. Parvinder Singh
@ Iqbal Singh, AIR 2006 SC 389.
Section 319 Cr.P.C.–Speedy trial–Appellants summoned to face trial when entire
evidence was recorded–Police papers not supplied to them and PWs not examined
afresh–Conviction set aside–Incident 14 yrs old–Accused not to be tried afresh.
Prashanna Das v. State of Orissa, 2006 (1) Apex Criminal 428 (SC).
Section 319 Cr.P.C.–Trial Court has jurisdiction to add a person as accused at any
stage of proceedings–It will be presumed that newly added person had been an accused
person when the court took cognizance of the offence upon which the inquiry or trial
was commenced–This is by virtue of legal fiction created by section 319(4)(1)(b). Lok
Ram v. Nihal Singh, 2006(4) JT 464 (SC).
Section 319 Cr.P.C.–Adding of a person as additional accused–Trial of murder case–
Two persons added as additional accused–Trial judge observed that though the case
against the persons proposed to be added was not on solid foundation but they had to
be impleaded as accused in order to find out the real truth–Order set aside–Power
under section 319 of the Code cannot be exercised so as to conduct a fishing inquiry–
Person be added as accused only when there is a reasonable prospect of case against
such accused ending in their conviction. Palani Samy Gounder v. State, 2006 (2) Apex
Criminal 244.
Section 319 Cr.P.C.–High Court has power to summon a person as additional
accused–The power may not be exercised when sufficient time had lapsed–In the instant
time of 10 yrs. passed–High Court summoning a person in exercise of power under
section 319 Cr.P.C.–High Court should have given an opportunity of hearing to accused
in peculiar facts of case because time of 10 yrs. had passed, although accused has no
right to be heard. Popular Muthiah v. State represented by Inspector of Police, 2006 (2)
Apex Criminal 566 (SC).
Section 319 Cr.P.C.–At the Pre-process stage the accused has no locus standi and is
not entitled to be heard on the question whether the process should be issued against
him or not–Therefore it cannot be said that application under section 319 Cr.P.C. only
on the basis of examination in-chief is not maintainable. Hardeep Singh v. State of
Punjab, 2008 (4) Crimes 367 SC.
 Section 319 Cr.P.C.–If the evidence tendered in the course of any enquiry or trial
shows that any person not being the accused has committed any offence for which he
would he could be tried together with the accused, he can be summoned to face trial
even though he may not have been charge-sheeted by the investigating agency or may
have been discharged at an earliear stage. Rajendra Singh v. State of U.P., 2007(3)
Crimes 303 (SC).
Section 319 Cr.P.C.–Application for summoning additional accused rejected on the
ground of delay–No it is quite unreasonable to hold that the application was made after
long delay i.e. one month and four days and was, therefore liable to be rejected.
Bangarayya v. State of Karnataka, 2010 (4) Crimes 300 SC.
Section 319 Cr.P.C.–Word “evidence” as used in the evidence based provision is
evidence based on statements recorded by court and does not include evidence
collected by police during investigation. Mangi Lal v. State of M.P., 2008 (2) Crimes 34.
Section 319 Cr.P.C.–Summoning of petitioners as additional accused in murder case
on the basis of evidence of two prosecution witnesses–Petitioners were named in FIR
with other accused but police did not charge-sheet applicants while filing charge-sheet
against others–After recording evidence of two witnesses prosecution sought
summoning of petitioners and they were summoned by court–Meanwhile trial against
other accused stood concluded–Order was not liable to set aside. Mohit Singh v. State of
U.P., 2010 (1) Crimes 679 (All.).
Section 319 Cr.P.C.–Summoning of additional accused–Power with court is
extraordinary and is to be used sparingly only if compelling reasons exist. Sudama
Dubey v. State of Jharkhand, 2009 (2) Crimes 72.
Section 319 Cr.P.C.–Scope and ambit of–A person who is named in the F.I.R. or
complaint with the allegation that he/she was committed any particular crime or
offence, but against whom, the police does not launch prosecution or files charge-sheet
or drops the case, can be proceeded against under section 319 Cr.P.C. If from the
evidence collected/produced in the course of any inquiry into or trial of an offence, the
court is prima facie satisfied that such person has committed any offence for which he
can be tried with other accused–Process issued against appellant under section 319
Cr.P.C. could not be quashed only on the ground that even though she was named in the
complaint, the police did not file charge-sheet against her. Suman v. State of Rajasthan,
2009 (4) Crimes 205 (SC).
Section 319 Cr.P.C.–Fodder scam case–Summoning of petitioners under section 319
Cr.P.C.–Prosecution had already its case after examining not less than 100 witnesses
consuming not less than four yrs.–Petitioners summoned on basis of evidence adduced
by DW1, PW9 & PW99, I.O.–Their statements are inadmissible as they refer to the
statement made by witnesses under section 161 Cr.P.C.–DW1 was an accused who was
convicted and statement on pleading guilty–Evidence adduced being vague or
insufficient to hold a person guilty in absence of any other legal evidence. Lalu Prasad
Yadav v. State of Jharkhand through SP, CBI 2008 (1) Crimes 529.
Section 319 Cr.P.C.–Summoning of two petitioners as additional accused by trial
court in murder case–Petitioners were summoned on basis of evidence of informant
PW13, father of deceased minor daughter–Evidence of informant was to effect that
petitioners were seen in company of two main accused at the spot where a part of body
of deceased was found on the railway track–Suspicion by itself was not sufficient to hold
that there was not reasonable prospect of convicting petitioners for the offence. Durga
Naik v. State of Orissa, 2011 (1) Crimes 170.
Section 319 Cr.P.C.–Summoning of additional accused–Non-applicants 2 to 5 had
been named in F.I.R. for offence under section 3(1)(v) of SC and ST Act–I.O. did not
charge-sheet them with the finding that they were Government servants and were not
present on spot at the time of incident–Trial Court dismissed application of complainant
for summoning non-petitioner as accused on ground that during investigation their per
service was found doubtful as they were on duty. The approach of trial court was not
correct. Ram Narain Harijan v. State of U.P., 2012 (1) Crimes 295 (All.).
Section 319 Cr.P.C.–Summoning of additional accused–Power under section 319
Cr.P.C. could be exercised when inquiry or trial was pending but not after delivering the
judgement. Yusuf Khan v. State of Rajasthan, 2012 (1) Crimes 660.
 Section 319–Accomplice–The power under section 319 Cr.P.C. is exercised only on
the basis of evidence adduced before the court during trial. So far as its application
during inquiry, it is limited to person marked in column of charge-sheet or person who
is accomplice. Hardeep Singh v. State of Punjab, 2014 Cr.L.J. 1118 (SC).
Section 319–Person whose name does not appear even in the FIR or in the charge-
sheet or whose name appears in the F.I.R. and not in the main part of the charge-sheet
but in Column No. 2 and has not been summoned as an accused in exercise of the
powers under section 193 Cr.P.C. can be summoned by the court, provided the court is
satisfied that the conditions provided in the said statutory provisions stand fulfilled.
Hardeep Singh v. State of Punjab, 2014 Cr.L.J. 118 (SC).
Section 319–The word “evidence” in section 319 Cr.P.C. means only such evidence
as is made before the courts in relation to statements, and as produced before the
court, in relation to documents. It is only such evidence that can be taken into account
by the Magistrate or the Court to decide whether power under section 319 Cr.P.C. is to
be exercised and not on the basis of material collected during investigation. The
material collected during investigation can be used even though not an evidence in
stricto sensu, but an information on record collected by the court during inquiry itself,
as a prima facie satisfaction for exercising the power under section 319 involved. The
word “evidence” in section 319 Cr.P.C. has to be broadly understood and not literally as
evidence brought during trial. Hardeep Singh v. State of Punjab, 2014 Cr.L.J. 1118 (SC).
Section 319–Evidence–The word “evidence” in section 319 Cr.P.C. has to be broadly
understood and not literally i.e. as evidence brought during a trial. Rajendra Sharma v.
State of M.P., AIR 2014 SC 1400.
Section 319–Non-bailable warrants should be issued to bring a person to court when
summons or bailable warrants would be unlikely to have the desired results. Unless an
accused is likely to tamper or destroy the evidence or is likely to evade the process of
law, issuance of non-bailable warrants to secure his attendance should be avoided.
Vikash v. State of Rajasthan, 2014 Cr.L.J. 183 (SC).
Section 319–Summoning accused–The difference in the degree of satisfaction for
summoning the original accused and a subsequent accused is on account of fact that the
trial may have already commenced against the original accused and it is in the course of
such trial that materials are disclosed against the newly summoned accused. Fresh
summoning of an accused will result in delay of the trial, therefore, the degree of
satisfaction for summoning the accused (original and subsequent) has to be different.
Rajendra Sharma v. State of M.P., AIR 2014 SC 1400.
Section 319–Sanction–Sanction for prosecution is a mandatory pre-requisite even
where cognizance is taken under section 319 Cr.P.C. The determination rendered by the
court under section 319 Cr.P.C. is not subservient to decision of the competent
authority under section 197 Cr.P.C., since the order granting or declining sanction can
be assailed by taking recourse to judicial review. Surinderjit Singh Mand v. State of
Punjab, 2016 Cr.L.J. 3937 (SC).
Section 319–Validity of summoning–Mere fact that the police choose not to send up
a suspect to face trial, the same does not affect the power of trial court under section
319 Cr.P.C. to summon such a person on account of evidence recorded during trial.
Hardei v. State of U.P., 2016 (2) Crimes 7.
Section 319–Power of court–Power of the court to proceed under section 319 Cr.P.C.
even against those persons who are not arraigned as accused, cannot be disputed. This
provision is meant to achieve the objective that real culprit should not get away
unpunished. Brijendra Singh v. State of Rajasthan, AIR 2017 SC 2839.
Section 319–Summoning additional accused–Where during the course of
investigation, I.O., did not find the additional accused person were absent at the time of
incident at the place of occurrence and they were present at relevant time at such place
which had distance of 175 km. from the place of incident, order of summoning them as
additional accused persons was not justified and thus set aside. Brijender Singh &
Others v. State of Rajasthan, 2017 Cr.L.J. 1412 (SC).
Section 319–Addition of accused–If some persons were not implicated as accused
persons at the time of filing of charge-sheet, at the stage of evidence, said persons can
be summoned to fact trial by trial court. S. Mohd. Ispahani v. Yogendra Chandak, 2018
Cr.L.J. 1412 (SC).
Section 319–Summoning of additional accused–The court can exercise the power
under section 319 Cr.P.C.—
(a) even on the basis of the statement made in the examination-in-chief of the
witness concerned and the court need not wait till the cross-examination of such
a witness and the court need not wait for the evidence against the accused
proposed to the summoned to be tested by crss-examination; and
(b) a person not named in the FIR or a person though named in the FIR but has not
been charge-sheeted or a person who has been discharged can be summoned
under section 319 Cr.P.C. provided from the evidence (may be on the basis of the
evidence collected in the form of statement made in the examination-in-chief of
the witness concerned), it appears that such person can be tried alongwith the
accused already facing trial; Rajesh v. State of Haryana 2019 Cri. LJ 2968 (SC).
In case the Court does not summon these accused and discharges them as requested
by police, then two remedies are open to the complainant who is aggrieved against
police and the order of the Court:
1. To file a revision against the order of discharge under section 397 Cr.P.C. to the
Court of Sessions or the High Court; and
2. To file a private complaint against these accused as well as others being not
satisfied with police investigation and challan.
Can Court amalgamate the challan and complaint in such cases
In case a complaint is filed when the investigation into the same offence, which is
subject matter of complaint, is pending with police, the Magistrate will ask for the
report of police conducting investigation and shall stay enquiry or trial into the
complaint as laid down in section 210 Cr.P.C. If the police sends the challan and the
accused is or are common, then challan and complaint will be amalgamated and
proceedings will be taken as if on police report. If the police report does not relate to
any accused in the complaint case or if the Magistrate does not take cognizance of any
offence on the police report, he shall proceed with the inquiry or trial which was stayed
by him. See also for amalgamation. State v. Matu, 1961(2) Cr.L.J. 422 and Giriraj Singh,
1965 (1) Cr.L.J. 275. If both complaint and challan are committed to the Court of
Sessions they can be amalgamated as procedure in both is the same.
Police case filed already. Complaint filed afterwards. Section 210 does not apply, the
Court may not club cases Sohan v. State of Kerala, 1986 Cr.L.J. 470. Further held in
1985 S.C. 404 where versions are materially different, contrary and mutually exclusive
complaint and challan should be clubbed. Section 210 does not apply.
The question of amalgamation and consolidation of complaint and challan arose in
Harjinder Singh 1985 (1) RCR 289. The Supreme Court held if police challan and
complainant case are materially different and contradictory, it is not permissible under
section 223 Cr.P.C. to club and consolidate both cases. The cases should be tried
together but evidence should be recorded separately. If witnesses are common, then
evidence in one can be read in the other. But they should be disposed of together by
two separate judgments. In this case police had challaned 3 accused but complaint was
filed against 9 including these three. The evidence cited was suppressed by police in
challan case.
In this case police had challanged 3 accused but complaint was fited against
including these three the evidence cited was suppsessed by police in challan case.
Section 210–Amalgamation of cases–Scope and applicability of section 210–Accused
in both cases, one registered on police report and the other on private complaint, not
common–There could not be amalgamation of two cases–Private complaint filed after
police had filed challan in the case–Section 210 does not apply. Kishan Lal v. State,
1999 Cr.L.J. 4493 (Raj.).
Section 210–Complaint–Order of Magistrate referring complaint for investigation
under section 156 (3)–Is a judicial order–Magistrate can not be said to have taken
cognizance–No inquiry or trial pending before Magistrate–Magistrate has no
jurisdiction to stay further investigation by police. M/s. India Brewary & Distillery Ltd.
Bangalore, 1998 Cr.L.J. 882 (Kant.).
Sections 210(2) and 156 Cr.P.C.–F.I.R. lodged with police, but challan not
submitted–Meanwhile a private complaint filed before Magistrate in respect of same
offence–Magistrate is required to stay the proceedings or he can refer the complaint to
police under section 156(3) Cr.P.C.–However, in case the police report has been
submitted and a complaint has been filed then Magistrate is under obligation to try both
the cases together. Ram Rattan v. State of Haryana, 2004 Cr.L.J. 3617.
Sections 210 and 173 Cr.P.C.–Complaint case and police case regarding same
incident–Both the cases tagged and tried together by taking evidence from complaint
and police. Pritam Singh, Santosh Singh & Manjit Singh v. State, 2002 Cr.L.J. 3295
(Jhar.).
Sections 210, 209, 173, and 190–Joint trial–F.I.R. and complaint in same incident–
Magistrate taking cognizance of both F.I.R. and complaint case–Complaint case would
merge with police case–In the committal order Magistrate cannot ignore complaint
case–Magistrate has to consider material available in complaint as if it is material in
police report. [Link] v. State of A.P., 2002 Cr.L.J. 4831 (A.P.).
Section 210 Cr.P.C.–Clubbing of cases arising out of same offence–Complainant
filing criminal complaint as well as lodging F.I.R. in the same offence against the same
accused persons–Magistrate taking cognizance of complaint case and summoning the
accused persons–Police filing charge-sheet and Magistrate taking cognizance of police
case also–Held, both the cases be tried and disposed of together to avoid duplicity to
the trial. Mohd. Gouse Pasha v. T.V.K. Rao, 2005 Cr.L.J. 1500 (A.P.).
Section 210 Cr.P.C. and Section 190 Cr.P.C.–Complaint case and police investigation
in respect of same offence–Scope, object and applicability of Section 210 Cr.P.C.
explained–
(i) Section 210 Cr.P.C. is intended to ensure that private complaints do not
interfere with the course of justice.
(ii) It prevents harassment to the accused twice.
(iii) It obviates anomalies which might arise from taking cognizance of the same
offence more than once.
(iv) Section 210 Cr.P.C. can be invoked, the following conditions must be satisfied:
(a) There must be a complaint for inquiry of trial.
(b) Investigation by police must be in progress in relation to the same offence.
(c) A report must have been made by the police officer under section 173
Cr.P.C., and
(d) The Magistrate must have taken cognizance of an offence against a person
who is accused in the complaint case. (Sankaran Moitra v. Sadhna Das,
2006(4) J.T. 34 (SC).
Section 210 Cr.P.C.–Delay in filing the complaint because of police
inaction has to be explained by calling for the records from the police.
Dilawar Singh v. State of Delhi, 2007 (3) Crimes 388 (SC).
Section 210 Cr.P.C.–Cognizance of offences under section 498A and 406
IPC on a private complaint–Meanwhile police also registered F.I.R.–Whether
complaint and proceedings in it were to be quashed? No. Kamaljit Singh v.
State of Punjab, 2010 (2) Crimes 482.
Section 210 Cr.P.C.–Common Trial–Whether can be held in respect of two
cases, one on basis of the charge-sheet filed by the police and the other on
the basis of a protest petition which had been treated as a complaint having
been committed to the Court of Sessions, although, none of the accused in
the said two cases are common–Held under section 210 Cr.P.C., Magistrate
may try two cases arising out of a police report and a private complaint
together–Whether having taken cognizance of an offence in respect of an
accused in a complaint case, in a separate police investigation such a person
is again made an accused, then the Magistrate may inquire into or try
together the complaint case and the case arising out of the police report as
if both cases were instituted on a police report–However, in the instant case,
since the accused were different in the two separate proceedings prejudice
in all possibility was likely to be caused in a single trial where a person is
both as accused and a witness in view of the two separate proceedings out of
which trial arises–Hence, held that in the instant case two trials should be
held simultaneously but not as a single trial–Inpugned order of High Court
set aside. Pal@ Palla v. State of U.P., 2010 (4) Crimes 184 (SC).

Additional List of Witness given in Challan

Prosecution can add to the list of witnesses already submitted in the report
under section 173 Cr.P.C., at later stage, during the trial of the case. There is no legal
bar to it. It is no doubt the duty of the prosecution to name all witnesses to be examined
in challan but sometimes there are certain gaps for proving the prosecution for which it
is necessary to give additional list of witnesses. These witnesses may have already been
examined during investigation and omitted inadvertently or under a wrong impression
at the time of sending up report under section 173 Cr.P.C. or they might have figured
after final report under section 173 Cr.P.C. It was held in Asadullah v. State 1961 Cr.L.J.
347 : 1960 J & K 44 that “there is no bar found in any of the provisions of the Cr.P.C.
which precludes the prosecution from producing more witnesses than are mentioned in
the list already furnished.”
In State of Bombay v. Mohamed Khan, 1961 Cr.L.J. 165, the additional witnesses
were neither examined by the Court of enquiry nor by police during investigation but
they were ready and kept in attendance for evidence. It was held that the evidence
could be recorded and there was no legal impediment provided the prosecution case
was not closed. It was, however, suggested that the Court in its discretion give
sufficient to the defence to prepare itself for cross-examination. If need be, the Court
can ask the prosecution to state in writing the list of their statements. Such course was
permitted in Full Bench Case Niamat Singh v. Emp. 37 Cr.L.J. 742-1936 Lah. 533. Also
see Bhagwan Singh v. State of Punjab 1952 S.C. 214 Section 173 Cr.P.C. does not bar
the prosecution from proposing to rely on any additional evidence that may be
subsequently discovered by them. In any case the power vested in the Court under
section 540 (Section 311) Cr.P.C. is not subject to any restriction. Chandu Veerraiah
1960 Cr.L.J. 791 (An. Pr.) Section 173(8) Cr.P.C. allows further investigation, after
submission of challan.
Some documents which were not available during investigation may become
relevant and may have to be produced subsequently. 1966 Cr.L.J. 568 (Orissa) Ratnakar
Dass.

Sanction for Prosecution and Challan

There are certain provisions in the Code and other Local and Special Laws which
bar trial of a case without sanction of competent authority. In such cases “the burden of
proving that the requisite sanction has been obtained rests on the prosecution and such
burden includes proof that the sanctioning authority had given the sanction in reference
to the facts on which the proposed prosecution was to be based and these facts may
appears on the face of the sanction or may be proved by extraneous evidence.” 1954
Cr.L.J. 1665 (SC). Madan Mohan Singh v. State of U.P.
Some of the relevant provisions for sanction are under section 19 Prevention of
Corruption Act, Sections 132 and 197 Cr.P.C., 39 Arms Act.
In fact the offence committed by public servant of which sanction is required, must
be for an act done in discharge of his official duty. If the act has nothing to do with
official duty then it is not protected. The matter was considered by the Supreme Court
in Baijnath v. State of M.P., 1966 S.C. 220; 1966 Cr.L.J. 179.” It is not every offence
committed by a public servant that requires sanction for prosecution under section 197
(1) Cr.P.C, nor even every act done by him while actually he is engaged in the
performance of his official duties but where the act complained of is directly concerned
with his official duties so that, if questioned it could be claimed to have been done by
virtue of the office, then sanction would be necessary. What is important is the quality
of the act and the protection contemplated by section 197 Cr.P.C. will be attracted
where the act falls within the scope and range of his official duties. An offence may be
entirely unconnected with the official duty as such or it may be committed within the
scope of his official duty. If it is unconnected with his official duty, there is no
protection. lt is only when either it is within the scope of official duty or in excess of it
that the protection is claimable.” It was a case under section 409 I.P.C. and per majority
it was held that sanction was not required. Further in Bhagwan Prasad (1970 S.C.
1661). It was laid down that it is not the ‘duty’ which requires examination so much as
the “act” because the official act can be performed within the discharge of duty as well
as in dereliction of it. The act must fall within range of duty. If ‘act’ while discharging
duty is not pan of duty then no sanction is required as a Civil Surgeon abusing Asstt.
Surgeon while in operation Theatre; or an I.O. demanding bribe. Narmadeshwar 1974
Cr.L.J. 959.
Sanction for prosecution–Act of petitioner, a Dy. Civil Surgeon in issuing fake
medical certificate for being used as alibi by an accused can not be said to be done
while discharging his official duty–Hence, prosecution of petitioner for offence
under section 218 IPC without obtaining sanction is maintenable [Link]
Rao v. State of A.P., 1997 Cr.L.J. 919 (AP).
Sanction to prosecute–Necessity running book stall at Railway Station–Failure on
part of firm to hand over vacant possession of book Stall in spite of issuance of notice–
Traffic service officer getting vacated book stall and taking possession in pursuance of
order of competent authority–Some excesses were committed resulting in damage to
material lying–By itself is no ground to ignore requirements under section 197–
Prosecution of Traffic service officer without sanction of competent authority is illegal.
Satish Chandra v. Union of India, 1997 Cr.L.J. 1210 (Delhi).
Section 197(1)–Sanction for prosecution–Fabrication of record and misappropriation
of public fund by public servant is not his official duty–Sanction for his prosecution for
alleged offence, not necessary. Shambhoo Nath Mishra v. State of U.P., 1997 Cr.L.J.
2491 (SC).
Sections 197 and 482–Sanction for prosecution–Accused, police personnel–Resorting
to two rounds of firing by service revolver and killing one person–Act done in colour of
official capacity while discharging official duties–There is nexus between act done and
performance of discharge of duties–Petitioner entitled to protection under section
197(1) and it is immaterial at this stage whether act was done in excess of official duty.
Nangkar Taming [Link] State of Assam, 1997 Cr.L.J. 3468 (Gauhati).
Legal requirement of sanction in prosecution of a public servant–So far as the public
servant is concerned, it is well settled principle of law that sanction is a legal
requirement of a criminal case which empowers the Magistrate or Court to take
cognizance. D. Devaraja v. Owais Sabeer Hussain, (2020) Cr.L.J. 3745 : AIR 2020 SC
3292.
Duty of the Court to consider the question as to sanction of prosecution–When
sanction is absolute requirement and if Magistrate takes cognizance without it, then it
becomes illegal, hence, even at any subsequent stages if question as to this sanction is
raised, then it becomes the duty of the Magistrate to consider it. D. Devaraja v. Owais
Sabeer Hussain, (2020) Cr.L.J. 3745 : AIR 2020 SC 3292.
Remedy of the aggrieved complainant-There is no reason to suppose that sanction
will be withheld in a case of prosecution where there is substance in a complaint and in
any case if, such sanction is refused, the aggrieved complainant can take recourse to
law. D. Devaraja v. Owais Sabeer Hussain, (2020) Cr.L.J. 3745 : AIR 2020 SC 3292.
Section 197–Prosecution of Public Servant–Protection for Petitioner seeking same
has to prove that he is public servant removable only with sanction of Govt. Petitioner
Head Assistant in record room of collectorate can be removed from service by District
Magistrate and Collector–Govt. sanction not required for his removal from office–
Protection of section 197 would not be available to him. Uma Shankar Sahay v. State of
Bihar, 1998 Cr.L.J. 2807 (Patna).
Section 197–Sanction to prosecute–Protection by way of sanction not available to
officers of Govt. Companies or Public undertakings–Even when such public undertaking
are “State” within meaning of Article 12 of Constitution on account of deep pervasive
control of the Government. Mohd. Hadi Raja v. State of Bihar, 1998 Cr.L.J. 826 (SC).
 Section 197–Sanction for prosecution–Search of premises of complainant after
obtaining warrant from competent authority and under supervision of Executive
Magistrate–No complaint whatsoever made to Magistrate regarding any misbehaviour
or illegal acts on part of police–Subsequent complaint that police abused and assaulted
wife of complainant during search–No cognizance of alleged offences could be taken
without proper sanction of Government. State of Bihar v. Kamla Prasad Singh, 1998
Cr.L.J. 3601 (SC).
Section 197–Sanction to prosecute–Necessity Sub-Inspector wilfully and knowingly
gave false evidence and also fabricated false evidence with intention that such evidence
would be used in proceedings against accused–Can not be a part of any one’s official
duty not entitled to protection of Delhi Police Act or Section 197. State v. Shiv Lal,
1998. Cr.L.J. 3910 Delhi.
A Sarpanch violating the specific prohibition under rules of Gram Panchayat while
executing work of Gram Panchayat. It cannot be said he was acting in discharge of
duties. 1987 Cr.L.J. 1025. It was held in 1986 Cr.L.J. 314 (SC) in respect of members of
all ranks of Delhi Police Force, previous sanction of Lt. Governor is imperative provided
the offence alleged to have been committed by such members had been committed
while acting or purporting to act in discharge of official duty, if not, then no sanction is
required under section 197 Cr.P.C. Traffic Police in uniform stopping Scooterist for
controversing M.V. Act without helmet; Police then detaining to recover composition
money. Held sanction was necessary 1987 Cr.L.J. 832. S. I. and Constable tempering
search memo while the same was in custody of Court. Act not performed in discharge of
duties. No sanction under section 197 1986 Cr.L.J. 314 (SC).
It is, therefore, the duty of I.O. and the prosecution to put all the material facts, the
case file and other relevant record before the sanctioning authority which is to apply its
mind and then sanction prosecution. The object being more than to ensure the
discouragement of frivolous, doubtful and impolitic prosecution. State v. G. Sadagonan
1953 Cr.L.J. 1424. The final authority is the sanctioning authority and this cannot be
questioned.
It is not essential that the sanction should be in any particular form. In Bangi Ram
1957 Cr.L.J. 131 Superintendent of Police had written on the margin of the report of S.I.
(giving facts and requesting for permission) that accused be prosecuted. This was held
to be valid sanction. In Indu Bhusan 1958 S.C. 148, the sanctioning authority had
signed the sanction prepared by Police but after going through the relevant record. It
was held that this was a valid sanction. The sanction should, however, be in detail;
giving the facts; application of mind and then giving sanction.
It is, therefore, incumbent for police to put necessary material before the
sanctioning authority to decide if it was necessary in the ends of justice to accord
sanction. To this end, the copy of F.I.R. the gist of the evidence, the summary of
material witnesses statements and the relevant police file should be put before the
sanctioning authority to apply its mind and satisfy itself. PC Joshi 1961 S.C. 387; 1970
Cr.L.J. 674, Gurbachan Singh. In 1988 Cr.L.J. 461 consolidated report containing details
of investigation was put before sanctioning authority; Sufficient. It was not necessary to
out F.I.R., See Zyre list Case Diaries, etc.
It was held in Har Bharosy 1988 Cr.L.J. 1122, “The grant of sanction is not an idle
formality but a solemn and sacrosanct act which provides protection to public servants
against frivolous prosecutions”. Even a prosecution cannot be drawn automatically, held
further “the person according sanction has to apply his mind objectively. A duty is cast
on such person to examine merits of case before according sanction. It may not be
possible to discuss in detail the merits of case in the sanction order but at the same
time order should reveal that there was prima facie evidence which prompted the
authority to grant sanction. The mind of the authority must be disclosed and basis on
which sanction has been accorded has to be precisely recorded.”
For prosecution of a public servant discharged from service, sanction for
prosecution is not required. See 1952 Cr.L.J. 316 (Punjab) State v. Gurcharan Singh
1958 Cr.L.J. 254 (SC) S.A. Venkataraman.
A trial without sanction or with invalid sanction is null and void being by the Court
not competent to try. In such cases the police should obtain valid sanction and the
accused can be tried again. Previous trial will not be a bar to the subsequent trial.
Article 20 (2) of Constitution of India which says “No person shall be prosecuted and
punished for the same offence more than once.” also does not apply to such subsequent
trial. It was held in Baij Nath Prasad v. State of Bhopal 1957 S.C. 494. The whole basis
of section 403(1) (Now section 300) Cr.P.C. is that the first trial should have been
before a Court competent to hear and determine the case and to record a verdict of
conviction or acquittal, if the Court is not so competent, as where the required sanction
under section 6 Prevention of Corruption Act, 1948 for the prosecution was not
obtained, the whole trial is null and void and it cannot be said that there was any
conviction or acquittal in force within the meaning of section 403(1) Cr.P.C. Such a trial
does not bar a subsequent trial of the accused under the same offence after obtaining
the proper sanction. It was further held, “The earlier proceedings being null and void
the accused cannot be said to have been prosecuted and punished for the same offence
more than once; Article 20(2) Constitution of India has no application “See also 1945
P.C. 216; 1949 P.C. 264, See also H.N. Rishbud v. State 1955 S.C. 196, which permits
before filing charge-sheet. Sanction obtained at subsequent stage will not cure the
defence and the entire proceedings are vitiated. Smt. Javitri 1971 Cr.L.J. 1340. Fresh
prosecution after sanction is not barred for the same offence but it is a matter for the
State, in the circumstances of the case, to consider whether prosecution should be
launched or not. State of Haryana v. N.C. Tandon 1977 Cr.L.J. (SC) 415. Judicial notice
can be taken of sanctioning authority. Gurbachan Singh Supra but it must be proved
that whole facts were put before sanctioning authority.
Sanction for Prosecution–Issuance of process by Magistrate for appearance of
accused on being satisfied that there is sufficient ground for proceeding- plea by
accused before Magistrate that offence was committed by him in discharge of official
duty and that court had no power to take cognizance in absence of previous sanction of
Government–Accused can produce relevant material to establish necessary ingredients
for invoking section 197(1). Suresh Kumar Bhikamchand v. Pandey Ajay Bhushan, 1998
Cr.L.J. 1242 (SC).
Section 197 (3)–Sanction for prosecution–Transactions of sale of Government land–
Alleged widespread conspiracy between police and administrative officers– Exposed
complainant by way of news item published in newspaper–Police officials arrested
complainant and taken him to police station and given beating and removed some
papers from his office–Police officials were not charged with duty of maintenance of
public order at time of occurrence–Not entitled to prosecution of section 197–No
sanction for their prosecution is required. Ramjas v. State of Rajasthan, 1999 Cr.L.J.
3626 (Raj.).
Section 197(2)–Sanction for prosecution–Prosecution of Police Inspector for offence
under section 341 and section 409 I.P.C or illegal imprisonment of complainant and
recovery of cash and gold ring from person of complainant- No protection can be
claimed under section 197(2) for offence under section 409 since Act was not in
discharge of official duty–However sanction would be necessary for offence under
section 341–Both offences are district and separate–No bar for trial under section 409
I.P.C–Whole proceeding would not be vitiated for lack of prior sanction. Ritesh Kumar
Bahri v. Inspector Bal Kishan, 1999 Cr.L.J. 207 (Delhi).
Section 197–The Government Servant charged for offence under section 406 read
with section 120B IPC–Sanction for his prosecution under section 197 would not be
necessary. State of Kerala v. U. Padmanabhan Nair, 1999 Cr.L.J. 3696 (SC).
Section 197–Where the accused charged for offences under Prevention of
Corruption Act continues to be public servant on date of taking of cognizance by court,
he cannot Claim immunity on ground of want of sanction. State of Kerala v. V.
Padmanabhan, 1999 Cr.L.J. 3696 (SC).
Section 197–Sanction for prosecution–Requirements of–Application of mind to facts
and evidence, by sanctioning authority, is the only requirement for grant of sanction–
Examination of sufficiently or admissibility of evidence is not function of sactioning
authority–Sanction accorded after perusal of entire evidence on record including case
diary is valid-Defence raised by accused need not be looked into at stage of granting
sanction. Pancham Lal v. State of U.P., 1999 Cr.L.J. 4111 (All.).
 Section 197–Sanction for prosecution–Prosecution for offences under section 120B
read with 420 of Indian Penal Code–Allegations against petitioner that while acting as
Minister he conspired with another to cheat Govt. to tune of crore of Rupees–Alleged
act of petitioner cannot be part of his official duty as minister–Sanction not necessary.
Dilip Kumar Saikia v. State, 1999 Cr.L.J. 543 (Gauhati).
Section 197–Sanction for prosecution–Custodial death–Police official failed to take
legal action against person who caused such death and to prevent disappearance of
evidence–Amounts to non-performance of official duties–There was direct connection
between acts alleged and official duties imposed on police officer–Sanction for
prosecution mandatory. Smt. Champabai v. M. Girijapathy, 1999 Cr.L.J. 3101 (Kant).
Section 197–Sanction for prosecution–Order by Collector for collecting lease money
from respondent–Tehsildar served Demand letter on respondent to make payment
warrant of attachment passed–Tehsildar seized and actioned scooter of respondent
when he was available with scooter in Tehsil Officer–Act of Tehsildar was bonafide–
Initiation of prosecution by respondent against Tehsildar for offence under section 379
I.P.C.–Not maintainable in absence of sanction for his prosecution. N.K. Ogle v.
Sanwaldas, 1999 Cr.L.J. 2105 (SC).
Section 197–Sanction for prosecution–Necessity–Complaint against investigation
officer of demanding illegal gratification to delete name of respondent from list of
accused–Investigation officer had legitimately called respondent in discharge of his
official duties for purpose of official duty–Prior sanction necessary for arose cutting him.
R. Ninge Gowda v. AN. Gopal, 1999 [Link]. 884 (Kant.).
Section 197–Prosecution of Public Servant–Sanction of accused a public servant,
charged for committing forgery and using the forged documents as genuine–Offence
committed while discharging his official duty–Accused entitled to the benefit of Section
197. Ram Prakash v. State of Haryana, 2000 Cr.L.J. 3395 (P&H).
Section 197–Plea as to want of sanction–Can be raised prior to stage of framing of
charge. A. W. Ansari v. State of Bihar, 2000 Cr.L.J. 4631 (SC).
Section 197–“Performance of official duty”–Dispute about encroachment of property
belonging to mosque–Appellant Circle Inspector appointed as Duty Magistrate pursuant
to order of Sub-Divisional Magistrate and directed to use police force to remove
encroachment some miscreants armed with weapons started hurling stones, and
situation became out of control–Appellant directed owning of fire is in exercise of
official duty imposed under orders of Magistrate- Cognizance of offence against
appeallant without prior santion of competent authority under section 197–Quashed.
A.W. Ansari v. State of Bihar, 2000 Cr.L.J. 4631 (SC).
Section 197–I.P.C section 153B–Police registering F.I.R.–Nature of offence was such
that court could not take cognizance without prior sanction of Authority–Police
producing the accused before court–Accused remanded to police custody–Order of
remand does not amount to taking cognizance. State of Karnataka v. Partor P. Raju,
2006(2) Apex Criminal 687 (SC).
Section 197–Police officer while on official duty gave beating to a motor cyclist–
Offence of assault–Sanction for prosecution under section 197 Cr.P.C. not required–Act
by no stretch of imagination is covered in official duty of police officers. D.N. Pandey v.
State of U.P., 2006 (4) All. L.J. 322.
Section 197–Offence by public servant in discharge of official duty–Whether for
prosecution of a public servant sanction is necessary to be obtained or not would
depend upon the facts and circumstances of each case–Question as to whether sanction
is necessary or not that may be appropriately raised at different stages or the stage
depending upon the allegations made in the complaint. Jaya Singh v. K.K. Velayutham,
2006 (2) Apex Criminal 447 (SC).
Section 197–Prevention of Corruption Act, 1988, Section 19–Prosecution of public
servant in corruption case–Court can consider the complaint only after sanction is
obtained. Ashok Mehta v. Ram Ashray Singh, 2006 (2) Apex Criminal 218 (SC).
Section 197–Prevention of Corruption Act, 1988, Section 13(1), (2) and 19–
Prosecution of public servant for offences under Prevention of Corruption Act and under
section 120B I.P.C–
 (i) For prosecution under Prevention of Corruption Act, 1988, once sanction
under section 19 of the said Act is granted, there is no necessity for
obtaining further sanction under section 197 of the Code of Criminal
Procedure.
(ii) Where a public servant is sought to be prosecuted under the provisions of
Prevention of Corruption Act read with section
120-B I.P.C and sanction under section 19 of Act of 1988 has been granted,
it is not at all required to obtain sanction under section 197 Cr.P.C. from
the State Government or any other authority merely because the public
servant is also charged under section 120B IPC.
(iii) The offences under the Prevention of Corruption Act, 1988 as well as
charge of criminal conspiracy, cannot be said to constitute “acts in
discharge of official duty”. Smt. Neera Yadav v. CBI, 2006 (2) Apex Criminal
151 (All.) (FB).
Section 197–I.P.C. Section 304, 302–Sanction for prosecution–Clashes between
political parties at a polling booth on in Assembly election–Police reaching polling
booth-Police gave beating to a person resulting in his death–Held, it is an offence
committed during course of performance of duty–Sanction for prosecution required
under section 197 Cr.P.C.–The view than killing of a person by use of excessive force
could never be performance of duty–View not tenable. Sankaran Moitra v. Sadhna Das,
2006 (4) J.T. 34 (SC).
Section 197–Criminal complaint against police officer that he made search of house
with out search warrant–Sanction for prosecution is required–The act or omission done
by the officer was connected with official duty performed by the officer. Rakesh Kumar
Mishra v. State of Bihar, 2006 (1) J.T. (SC).
Section 197–Prosecution of Branch Manager of Co-operative Bank–For removal of a
Branch Manager of a Co-Operative Bank, the sanction of the State Government is not
required. Vimal Kumar v. State of M.P., 2006 (1) RCR (Cri.) 406 MP.
Section 197–Prosecution of public servant–Scope of protection of public servants
under section 197 Cr.P.C.
(i) Protection given under section 197 is to protect responsible public servants
against the institution of possibly vexations criminal proceedings for
offences alleged to have been committed by them while they are acting or
purporting to act as public servants.
(ii) Protection is, however, available only when act done by the public servant
is reasonably connected with the discharge of his official duty and is not
merely a cloak for doing the objectionable act.
(iii) A public servant who acted in excess of his duty is entitled to protection of
section 197 Cr.P.C. if there is a reasonable connection between the act and
the performance of the official duty, the excess will not be a sufficient
ground to deprive the public servant from the protection.
(iv) There cannot be any universal rule to determine whether there is a
reasonable connection between the act done and the official duty, nor is it
possible to lay down any such rule – One safe and sure test in this regard
would be to consider if the omission or neglect on the part of the public
servant to commit the act complained of could have made him answerable
for a charge of dereliction of his official duty, if the answer to his question
is in the affirmative, it may be said that such act was committed by the
public servant while acting in the discharge of his official duty and there
was every connection with the act complained of and the official duty of the
public servant. Rakesh Kr. Mishra v. State of Bihar, 2006(1) J.T. 1
(SC).
Section 197–Prevention of Corruption Act, 1988, Section 19 and 13(2)–Sanction for
prosecution of public servant-Sanction required under section 197 Cr.P.C. and sanction
required under the 1988 Act stand on different footings–Whereas sanction under I.P.C.
in terms of the Cr.P.C. is required to be granted by the State, under the Prevention of
Corruption Act, 1988, it can be granted also by the authorities specified in section 19
thereof–Offences under I.P.C. and offences under Prevention of Corruption Act, 1988
are different and distinct. Romesh Lal Jain v. Naginder Singh Rana, AIR 2006 SC 336.
Section 197–Sanction for prosecution of public servant–Public servant while doing
official duty acted in excess of duty–Sanction for prosecution required–No sanction
required if the public servant’s adopt corrupt means in doing official duty. Centre for
Public Interest Litigation v. Union of India, AIR 2005 SC 441.
Section 197–I.P.C. Section 500–Sanction for prosecution–Deputation–An officer of
State Govt. working as Managing Director of a Co-operative Society on deputation–
Criminal complaint under section 500 I.P.C. against officer–Officer not entitled to
protection under section 197 Cr.P.C.–Accused at relevant time was not in service of
State and thus not a public servant within meaning of section 21 of I.P.C.–Provisions of
Sections 118 and 123 of Haryana Co-operative Societies Act are not applicable.
[Link] v. Abhimanyu, AIR 2005 SC 4303.
Section 197–Public servant–An MLA is a public servant–Prosecution of MLA on
charge that he amassed disproportionate assets while he was an MLA–Court can take
cognizance without sanction. But it is duty of prosecuting agency to obtain permission
speaker of Legislative Assembly before filling charge-sheet. There is competent
authority to remove an MLA–Permission of speaker is required to save the MLA from
harassment. Lalu Prasad v. State of Bihar, 2005 Cr.L.J. 3538 (Patna) (FB).
Section 197–Prosecution of public servant–Defence version that accused did act in
discharge of his official duty–Question whether sanction was required cannot be left
open to be decided after conclusion of trial–The matter has to be examined at the very
initial stage except in a case where the very question as to whether the act complained
of was done in discharge of his official duty, was a subject matter trial. Z.U. Siddiqui v.
Bal Kishan Kapoor, 2005(4) RCR (Cri.) 610 (Delhi).
Section 197–Meaning of word “official duty”–Sanction for prosecution of public
servant–If it is prima facie found that the act of omission for which the accused was
charged had reasonable connection with discharge of his duty then it must be held to
official to which applicability of section 197 of the Code cannot be disputed.
[Link] v. State by DSP, AIR 2005 SC 2257.
Section 197–Sanction for prosecution of public servant–When the sanction itself is
very expressive, then in that case, the argument that particular material was not
properly placed before the sanctioning authority for according sanction and sanctioning
authority has not applied its mind becomes unsustainable–When sanction order itself is
eloquent enough, then in that case only formal evidence has to be produced by the
sanctioning authority or by any other evidence that the sanction was accorded by a
competent person with due application of mind. [Link] v. State of
Karnataka, 2005(4) SCC 81.
Section 197–Prevention of Corruption Act, 1988, Section 13(1)(d) and 13(2)
Constitution of India Article 163–Corruption case against two Ministers–Council of
Ministers refusing to grant sanction for prosecution despite overwhelming material
against them–Governor in his own discretion granting the sanction–Order of Governor
upheld–Governor could act against the aid and advice of Council of Ministers in the
matter of grant of sanction for prosecution of ministers for offences under Prevention of
Corruption Act and under I.P.C.–If, on these facts and circumstances, the Governor
cannot act in his own discretion there would be a complete breakdown of the rule of law
in as much as it would then be open for Governments to refuse sanction in spite of over
whelming material showing that a prime facie case is made out. M.P. Special Police
Establishment v. State of M.P., AIR 2005 SC 325.
Section 197–Prevention of Corruption Act, 1988, section 19, Public servant–
Prosecution of leader of opposition of an assembly–Sanction for prosecution not
required–Status of leader of opposition is not an office which can be termed as a public
office and the person holding it a public servant per se. Prakash Singh Badal v. State of
Punjab, 2004 (4) RCR (Cri.) 613.
Section 197–Accused demanded illegal gratification of Rs. 10,000/- from
shopkeeper–On his refusal accused ransacked his shop–Sanction of competent authority
not required–No ground to quash the proceedings. S.K. Zutshi v. Bimal Debnath, AIR
2004 SC 4174.
 Section 197–Interlocutory order–Prosecution of public servant–His application for
discharge on the ground that sanction for prosecution was not obtained dismissed by
Magistrate–Revision against the order maintainable–It is not an interlocutory order–If
the objections raised by accused were upheld, the entire prosecution proceedings would
have been terminated–The order was not an interlocutory order and consequently, it
was revisable. State Rep. by Inspector of Police v. N.M.T. Joy Immaculate, AIR 2004 SC
2282.
Section 197–Prosecution of public servant under section 409 I.P.C. of retired public
servant under Corruption Act–sanction for prosecution not required. N. Bhargavan Pillai
(Dead) by Lrs. v. State of Kerala, AIR 2004 SC 2317.
Section 197–Sanction for prosecution granted by authority on basis of material–Tape
recording system used to lay trap not produced before sanctioning Authority–Sanction
not vitiated–The actual production of the tapes etc. are matters for proof during trial
and not necessarily to be undertaken at this stage–Sanctioning Authority is not required
to wait for the report of the experts–The sanctioning authority has only to see whether
the facts disclosed in the complaint prima facie disclose commission of an offence or
not. (State Anti-Corruption Branch) Govt. of NCT, Delhi v. Dr. R.C. Anand, AIR 2004 SC
3693.
Section 197–I.P.C., sections 467, 468, 471 and 120B–Sanction for Prosecution–
Offence of conspiracy, forgery, cheating falling under section 120B, 467, 468, 471 I.P.C
by public servant–Sanction for prosecution under section 197 Cr. P.C. is not required–It
is no part of the duty of a public servant while discharging his official duties to commit
forgery of the type covered by the aforesaid offences. State of H.P. v. M.P. Gupta, AIR
2004 SC 730.
Section 197–Prevention of Corruption Act, 1988, Section 19–Prevention of Food
Adulteration Act, Section 20–Sanction for prosecution of accused–It is desireable that
the facts should be referred to on the face of the sanction, but this is not essential–If the
facts constituting the offence charged are not shown on the face of the sanction, the
prosecution must, in the course of the trial, prove by extraneous evidence that those
facts were placed before the sanctioning authority. Asstt. Commissioner, Assessment-II,
Bangalore v. Velliappa Textiles Ltd., AIR 2004 SC 86.
Section 197(2)–Sanction for prosecution–Act done by public servant in exercise of
official duty–The public servant also committing an illegal act in same transaction-
sanction for prosecution will be required under section 197(2) Cr.P.C. Rizwan Ahmad
Javed Sheikh v. Jammal Patel, AIR 2001 SC 2198.
Section 197–Prevention of Corruption Act, 1988, section 19A person who ceased to
be a public servant on the date when the court took cognizance, no sanction under the
above section is required. State of Kerala v. M.M. Manikantan Nair, AIR 2001 SC 2145.
Section 197–Prevention of Corruption Act, 1948, Section 19, 13(1)(d) and 13(2)–
Sanction for prosecution of public servant–The offence alleged to have been committed
must has something to do, or must be related in some manner, with the discharge of
official duty no question of sanction can arise under section 197 Cr.P.C., unless the at
complained of is an offence, the only point for determination is whether it was
committed in the discharge of official duty–There must be a reasonable connection
between the act and the official duty–It does not matter even if the act exceeds what is
strictly necessary for the discharge of the duty, as this question will arise only at a later
stage when the trial proceeds on the merits–What a court has to find out is whether the
act and the official duty are so inter-related that one can postulate reasonably that it
was done by the accused in the performance of official; though, possibly in excess of the
needs and requirements of situation. P.K. Pradhan v. the State of Sikkim represented
and SBI, AIR 2001 SC 2547.
Section 197 Cr.P.C.–Prevention of Corruption Act 1988–Section 13(2) read with
13 (1)(d)–Sanction for prosecution to offence under it–Petitioner as Chairman-cum–
Managing Director of BCCL had already retired from service on date of cognizance of
offence–Trial Court to appreciate facts and decide the issue. Bangalore Ram Prasad v.
State of Jharkhand, 2008 (1) Crimes 206 (Jhar).
 Section 197 Cr.P.C.– Previous Sanction before talking cognizance– There has to be
reasonable connection between the act and the duties of public servant. It is to be seen
by Trial Court. Balraj Singh v. State of Rajasthan, 2009 (2) Crimes 275.
Section 197 Cr.P.C.–Before Section 197 Cr.P.C. can be invoked, it must be shown
that the official concerned was accused of an offence alleged to have been committed by
him while acting or purporting to act in the discharge of his official duties. It is the
quality of the act which is important and the prosecution of this section is available if
the act falls within the scope and range of his official duty. There cannot be any
universal rule to determine whether there is a reasonable connection between the act
done and the official duty, nor it possible to lay down any such rule. One safe and sure
test in this regard would be to consider if the omission or neglect on the part of the
public servant to commit the act complained of could have made him answerable for a
charge of dereliction of his official duty, if the answer to his question is in the
affirmative, it may be said that such act was committed by the public servant while
acting in the discharge of his official duty and there was every connection with the act
complained of and the official duty of the public servant. This aspect makes it clear that
the concept of section 197 Cr.P.C. does not get immediately attracted on institution of
the complaint case. Anjani Kumar v. State of Bihar, 2008 (2) Crimes 202 SC.
Section 197 Cr.P.C.–It is well settled law that offences punishable under sections
409, 420, 467, 468 and 471 etc. Can by no stretch of imagination by their very nature
be regarded as having been committed by a public servant while “acting or purporting
to act in discharge of official duty.” Bholu Ram v. State of Punjab, 2008 (4) Crimes 260
SC.
Section 197 Cr.P.C.–Section 197 provides for protection to public servants in
discharge of official duties. There is a need to balance between protection of officers
and protection to citizens. Goondla Venkateshwarlu v. State of A.P., 2008 (4) Crimes 38
SC.
Section 197 Cr.P.C.–While granting sanction, the officer concerned is not required to
indicate that he had personally scrutinized the file and had arrived at the satisfaction
for granting sanction–Order granting sanction does not suffer from any inifirmity. State
of M.P. v. Harishankar Bhagwan PD Tripathi, 2010 (4) Crimes 15 SC.
Section 197 Cr.P.C.–Order Summoning petitioner and another for offences
under sections 364, 302, 218 and 120B IPC in private complaint case filed by brother of
deceased–Petitioner officer-in-chief charge of police station found deceased and another
person on road side and when challenged they fired on police party–Petitioner fired in
self-defence and deceased was killed and other person was captured–Quashing petition
on plea that act committed by petitioner was in discharge of his official duty– No other
injury was got carried by Magistrate except recording statement of complainant–
Matter required to be reported to concerned authority for inquiry whether petitioner
was acting in course of his official duty. In the meantime impugned order to remain in
stay. Subodh Kumar Thakur v. State of Bihar, 2011 (4) Crimes 111 (Pat.).
Section 197 Cr.P.C.–Prosecution of public servant–Act alleged to have been
committed while acting or purporting to act in discharge of his official duty–Prima facie
on basis of material produced by petitioner in this application showed that he acted in
his official capacity while discharging his official duty–Since material produced had not
been before Magistrate, matter needed to be remanded for fresh consideration. Vipul
Agarwal v. State, 2011 (4) Crimes 433 (Guj.).
Section 197–This section has to be construed strictly, while determining its
applicability to any act or omission in the course of service. Its operation has to be
limited to those duties which are discharged in the course of duty. A public sevant is not
entitled to indulge in criminal activities. The section has to be construed narrowly and
in a restricted manner. Omission must have been done by the public servant in the
course of his service and such act or omission must have been performed as part of duty
which further must have been official in nature. Rakesh Kumar Mishra v. State of Bihar,
AIR 2006 SC 820.
Section 197–The act must all within the scope and range of the official duties of the
public servant concerned. It is the quality of the act which is important and the
protection of the section is available if the act falls within the scope and range of his
official duty. There cannnot be any universal rule to determine whether there is a
reasonable connection between the act done and the official duty nor is it possible to lay
down any such rule. Raghunath Anant Govilkar v. State of Maharashtra, 2008 (2) JT
(SC) 374.
Section 197–The alleged indulgence of the officers in cheating, fabrication of records
or misappropriation can not be said to be in discharge of their official duty. Their official
duty, is not to fabricate records or permit evasion of payment of duty and cause loss to
the revenue. Inspector of Police v. Battenapatla Venkata Ratnam, 2015 Cr.L.J. 2942
(SC).
Section 197–Government employee–An employee of the State, whose services have
been placed at the disposal of a company, corporation or organisation or a local
authority or university would be deemed to a government employee despite the fact that
his salary has been drawn from sources other than the consolidated fund of the State,
for the purpose of the said rules. The definition of the “Government employee” cannot
be extended for purposes other than sought to be achieved thereby. Provision of the
said rules, therefore, cannot be invoked for affording protection under section 197
Cr.P.C. N.K. Sharma v. Abhimanyu, 2005 Cr.L.J. 4529 (SC).
Section 197–Sanction–Where cognizance is taken under section 319 Cr.P.C.,
sanction either under section 197 Cr.P.C. is not mandatory pre-requisite. The grant of
sanction under section 197 can be assailed by the accused by taking recourse to judicial
review; Surinder Singh Mand v. State of Punjab, 2016 Cr.L.J. 2634.
Section 197–Necessity of sanction–Where accused was alleged to have exceeded in
exercising his power during, investigation of criminal case and assaulted the
complainant and detained him in Police Station, the said offence committed by him was
reasonably connected with performance of his official duty, therefore previous sanction
for prosecution was necessary. D.T. Virupakshappa v. C. Subash, 2015 Cr.L.J. 2589
(SC).

Delay in Investigation and Challan

The investigation should be expeditious and prompt. The delay in conducting
searches and effecting recoveries; in interrogation of accused and consequent
disclosure statements Santa Singh 1956 Cr.L.J. 930 (SC) in recording confessions,
Machandar 1955 Cr.L.J. 1644 (SC); in putting up accused for identification parade
(1961) Cr .L.J. 22 (All Anwar); in sending exhibits to experts with delay 1956 Cr.L.J. 930
(SC) and Nachattar Singh 1976 S.C. 951 and the delay in submitting challan
RP. Kapur 1960 Cr.L.J. 1239 (SC) all reflect badly on the investigating to make it tainted
and malafide.
Delay in Challans in cases is also governed by section 468 Cr.P.C which prescribes
limitation for taking cognizance of offences;
(a) 6 months, if offence is punishable with fine only.
(b) one year, if the offence is punishable with imprisonment for a term not
exceeding one year.
(c) three years, if an offence is punishable with imprisonment for a term exceeding
one year but not exceeding 3 years.
In such like offence challans should be given or complaints sent within time. The
Court can take cognizance even after expiry of limitation, if satisfied on the facts and in
the circumstances of the case that delay has been properly explained or it is necessary
so to do in the interests of justice (Section 473 Cr.P.C.) Notice to accused is essential.
Reasons for delay can be given even after appearance of accused Bharat Hybrid 1978
Cr.L.J. 61. In other cases, not covered by section 468 Cr.P.C. Mere delay in
investigation and not sending challan, does not show that investigation is malafide or
tainted. There is no bar in continuing investigation in such cases which cannot be
quashed simply for reasons of delay. In Amal Chandra 1973 Cr.L.J. 1756, where delay
was for more than 5 years in submission of final challan, the investigation was not
quashed. The Supreme Court cases, Pala Singh 1972 S.C. 2679 and R.P. Kapoor 1960
S.C. 866 were relied upon.
Sections 473, 468 and 173–Delay in filing charge-sheet-Court can condone delay if it
is properly explained by prosecution–Apart from it court is also required to form an
opinion that it was necessary in interest of justice to condone delay. S.P.S. Rathore v.
CBI, 2001 (4) RCR (Cri.) 239.
Sections 473 and 468–Complaint presented beyond period of limitation –
Court can extend time of delay is properly explained or it is necessary to do
so in interest of justice. M/s Zandu Pharmaceuticals Works Ltd. v. Md.
Sharaful Haque, AIR 2005 SC 9.
Sections 473, 468, Limitation Act, Section 5–Difference regarding
condonation of delay under section 5 of Limitation Act and under section 473
Cr.P.C.–There is basic difference between section 5 of the Limitation Act and
Section 473 Cr.P.C. for exercise of power under section 5 of the Limitation
Act, the onus is on the appellant or the applicant to satisfy the court that
there was sufficient cause for condonation of the delay, whereas section 473
enjoys a duty on the court to examine not only whether delay has been
explained but as to whether it is the requirement of the future to condone or
ignore such delay. Vinayak Steels Ltd. v. State of A.P. 2005 Cr.L.J. 4337
(AP).
However, see Nilu Devi Cr.L.J. 1771 (Patna) where S.P. even after
Direction of Court had not taken any step to finalize the investigation; it was
quashed being malafide. (See Chapter 3 Delay in Investigation and Speedy
Trial).
Section 468–Computation of period of limitation–For the purpose of computing the
period of limitation under section 468 Cr.P.C., the relevant date is the date of filing on
the complaint or the date of institution of prosecution and not the date on which the
Magistrate takes cognizance. Sarah Mathew v. Institute of Cardio Vascular Diseases by
its Director, 2014 Cr.L.J. 586 (SC).
Section 468–Cognizance of complaint–The Magistrate can take cognizance of an
offence of the complaint in respect of it is made or proceedings are initiated within the
prescribed time of limitation. The bar of taking cognizance applies if complaint is filed
beyond the period of limitation but bar does not apply if cognizance was taken beyond
the period of limitation. It is the date of filing of complaint which is material. Sarah
Mathew v. Institute of Cardio Vascular Diseases by its Director, 2014 Cr.L.J. 586 (SC).
Section 469–Limitation period–This is clear from section 469 of Cr.P.C. which
specifically says that the period of limitation in relation to an offence shall commence
either from the date of the offence or from the date when the offence is detected.
Section 471 Cr.P.C. indicates while computing the period of limitation, time taken
during which the case was being diligently prosecuted in another court or in appeal or
in revision against the offender should be excluded. The said section also provides in the
explanation that in computing the time required for obtaining the consent or sanction of
the government or any other authority, should be excluded. Similarily, the period during
which the court was closed will also have to be excluded. All these provisions indicate
that the court taking cognizance can take cognizance of an offence, the complaint of
which is filed before it within the period of limitation prescribed. Bharat Damodar Kale
v. State of A.P., AIR 2003 SC 4560.
Section 472–Continuing offence–The accused person was in the possession of
contraband articles on the date when the NDPS Act 1985 came into force. Held, it was
possession in continuum and hence, the principle with regard to continuing offence gets
attracted. Mohal Lal v. State of Rajasthan, 2015 Cr.L.J. 2811 SC.
 Section 475–Right of Life–When accused is in custody, his fundamental rights are
not abrogated into to. His dignity cannot be allowed to be comatosed. The life right to
life is enshrined in Article 21 of the Constitution and a fortiorari, it includes the right to
life with human dignity and all that goes along with it. Dr. Mehmood Nayyar Azam v.
State of Chhatisgarh, 2012 Cr.L.J. 3934.
Directions issued by the Supreme Court in case of Satender Kumar Antil v.
Central Bureau of Investigation, Misc. Application No. 1849 of 2021 in Special
Leave Petition (Crl.) No. 5191 of 2021, decided on 11 July, 2022.
In this judgment is to ensure that police officers do not arrest the accused
unnecessarily and Magistrate do not authorise detention casually and mechanically. In
order to ensure what we have observed above, we give the following directions:
1. All the State Governments to instruct its police officers not to automatically
arrest when a case under section 498A IPC is registered but to satisfy
themselves about the necessity for arrest under the parameters laid down above
flowing from section 41 CrPC;
2. All police officers be provided with a check list containing specified sub-clauses
under section 41(1)(b)(ii);
3. The police officer shall forward the check list duly filled and furnish the reasons
and materials which necessitated the arrest, while forwarding/producing the
accused before the Magistrate for further detention;
4. The Magistrate while authorising detention of the accused shall peruse the
report furnished by the police officer in terms aforesaid and only after recording
its satisfaction, the Magistrate will authorise detention;
5. The decision not to arrest an accused, be forwarded to the Magistrate within
two weeks from the date of the institution of the case with a copy to the
Magistrate which may be extended by the Superintendent of Police of the
district for the reasons to be recorded in writing;
6. Notice of appearance in terms of section 41A CrPC be served on the accused
within two weeks from the date of institution of the case, which may be
extended by the Superintendent of Police of the district for the reasons to be
recorded in writing;
7. Failure to comply with the directions aforesaid shall apart from rendering the
police officers concerned liable for departmental action, they shall also be liable
to be punished for contempt of court to be instituted before the High Court
having territorial jurisdiction.
8. Authorising detention without recording reasons as aforesaid by the Judicial
Magistrate concerned shall be liable for departmental action by the appropriate
High Court.
The Court also add that the directions aforesaid shall not only apply to the cases
under section 498A IPC or section 4 of the Dowry Prohibition Act, the case in hand, but
also such cases where offence is punishable with imprisonment for a term which may
be less than seven years or which may extend to seven years, whether with or without
fine.


Chapter—11
Proclaimed Offender
According to Section 24 Police Act V of 1861, it is lawful for any police
officer to lay any information before a Magistrate and to apply for a warrant
as may by law issue against any person committing any offence. So,
whenever an I.O. has reason to believe that a certain person has committed
an offence and he is not likely to be immediately arrested by him, he shall
note the fact in his case diary, enter his name in the Absconder Register of
the police station and in the sheet. To be an absconder in the eye of law, it is
not necessary that a person should have run away from his home, it is
sufficient if he hides himself to evade the process of law even if hiding place
be his own home. See Kartary 1976 SC 76.
The I.O. will take the following steps:
1. A hue and cry notice will be issued similar to one required by P.P.R.
23.18.
2. The list of absconder’s property in duplicate, (1) for movable, (2) for
immovable property (land or house, etc.) duly attested by the Headman
or Patwari shall be prepared. One copy shall be attached to the case
diary.
3. The I.O. shall then apply for warrant of arrest to the court having
jurisdiction under section 24 Police Act when the identity of absconder
is established. The relations and the probable abodes of the absconder
will be given in the application.
4. If warrant of arrest cannot be executed in spite of reasonable effort by
the constable who has been deputed for execution, the warrant shall
be returned to the Court with the report of constable. Issuance of
warrant is necessary for further action under section 82 Cr.P.C.
5. The S.H.O. or I.O. shall make application simultaneously for
proclamation under section 82 Cr.P.C. and for attachment of property
under section 83 Cr.P.C. The application shall be accompanied by the
list of property as already prepared. In case of land farad of Patwari
and in case of house, plan of the house must be attached.
6. The constable who failed to arrest absconder on the basis of warrant
will appear in court for making statement as to measures adopted by
him to serve it. If on his evidence or in any other manner, the
Magistrate is satisfied that the accused is absconding or concealing
himself then only the process of proclamation and attachment will be
issued. Yasin Khan, 10 Cr.L.J. 306.
7. The Magistrate may issue simultaneous order of proclamation u/s 82
and attachment under section 83 Cr.P.C. Bishan Dyal v. Emp 1943 Pat.
366. Proceeding of attachment can only be issued by the court which
had issued a valid proclamation under section 82 Cr.P.C. 32 P.C. 1919,
1994 Lah 151. The simultaneous order will only be, if the Court is
satisfied, by affidavit or otherwise that the absconder:
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the
local jurisdiction of the court.
The police officer will have to give his own affidavit or of any village
official in this respect.
An attachment of property under section 83 Cr.P.C. is not authorized in a
district other than that of issuing Magistrate except when the order of
attachments has been endorsed by D.M. within whose district the property to
be attached is situated section 83(2) (Ganu, 31 Cr.L.J. 494). With regard to
ancestral land only interest of absconder can be attached. On the death of
absconder this land will have to be released. Silah Mohd. 1925 Lah. 629 . The
movable property can be attached by police officer if warrant of attachment
is marked in his name. The land, however, will be attached by revenue
authority through collector of the district where land is situated.
Attachment of property of absconder –Civil suit by third party is not
barred in view of sec. 84(4) –Remedy of preferring under section 84 Cr.P.C. is
permissive and not exclusive. Dy.S.P. C.B.I Ernakulam v. Nabeesa, 1997
Cr.L.J. 843 (Ker.).
 Section 82–Criminal Rules of Practice and Circular Orders (1966) R. 20 –
Accused absconding–Separation of his case from case of co-accused –Co-
accused attending court for one year after service of warrant –Non-
appearance of other two accused –Charge-sheet itself showing that they were
residing in United States of America –Chance of execution of non-bailable
warrants being issued against them not bright –Court under section 82 and R.
20 can separate their cases from case of co-accused –Application by police in
this regard not necessary. Munukutla S.V. Sarma v. State of A.P., 2000
Cr.L.J. 763 (AP).
Section 82–Proclamation under section 82 Cr.P.C. can be issued only after
arrest warrant is unexecuted–In the instant case, the Magistrate issued
proclamation after non-service of summons–Order of the Magistrate set
aside. N.A. Naidu v. Smt. N. Raja, 2006 (3) RCR (Cri.) 292.
Section 82–Section 376 IPC–Offence of rape by accused–Accused serving
in Army attending his duties regularly–No sincere efforts were made by
Investigating Officer for getting warrant of arrest executed through army
authorities-order declaring accused as absconder and issuing standing
warrants is liable is be set aside. Chokka@Pukhroj v. State of Rajasthan,
2006 (1) RCR (Cri.) 496.
Section 82–Meaning of word “Abscond”–Person leaving India and continue
to remain outside India knowing full well that court issued non-bailable
warrant with a view to defeat or delay executive of arrest warrant is person
absconding. Geetha Ramachandran v. S. Ravichandran, 2003 (3) RCR (Cri.)
215.
Section 82–Issue of notification to declare a person proclaimed offender–
Cclear 30 days be given to the person to appear–Notification calling upon
petitioner to appear in less than period of 30 days–Is valid and liable to be
quashed. Savitaben. G. Patel v. State of Gujarat, 2004 Cr.L.J. 3651.
Section 82–To declare a person proclaimed offender, it is necessary that—
(i) the court should have reason to believe that the person against whom
a warrant has been issued by it, has absconded, and
(ii) after recording such satisfaction, the court should require the
concerned person to appear at a specified place and a specified time,
not less than 30 days from the date of publication of the
proclamation. Savitaben G. Patel v. State of Gujarat, 2004 Cr.L.J.
3651.
Section 82–Negotiable Instruments Act, section 138–Dishonour of cheque–
Criminal complaint filed–Accused not appearing despite non-bailable
warrants–Accused can be declared proclaimed offender. Geetha Ram
Chandran v. S. Ravichandran, 2003 (3) RCR (Cri.) 215.
Sections 82 and 83–Accused absconding and declared absconder–Accused
removing all his movable properties–Non-bailable warrants issued almost
8 months back, but accused not appearing–Magistrate passed a reasoned
order initiating proceedings under section 83 Cr.P.C. and calling a report
from Tehsildar regarding immovable properties of accused–Can not be said
that Magistrate acted in haste–Order valid. Guman Ahmed @ Manna v. State
of U.P., 2005 Cr. L.J. 4191 (All.).
Sections 82 and 83–Non-bailable warrants issued against accused–Not
executed by police–Order of the Magistrate that complaint will be dismissed
for default if complainant fails to produce the accused–Order wholly
unsustainable–Set aside–It is the duty of the court and police to secure the
presence of the accused in a case, and it is no part of the duty of the
complainant to secure the presence of the accused–The learned Magistrate
show also have kept in view that sections 82 and 83 of Cr.P.C. authorize him
to issue proclaimations and attachment of the property of the absconding
accused Devi Pesticides Pvt. Ltd. v. M/s Sri Sai Balaji Fertilizers, 2003 (3)
RCR (Cri.) 376.
 Sections 82 and 83–Accused absconding–Issue of proclamation under
section 82(2) Cr.P.C–In addition, ordinary mode of service can also be
ordered to be published in a newspaper where the person is ordinarily
residing–Court did not record satisfaction that the warrants against
petitioner can not be served or that accused is concealing himself–Order set
aside. Sunil Kumar v. State, 2002 Cr.L.J. 1284.
Sections 82 and 83–Accused declared as proclaimed offender–Petition
against the order under section 482 Cr P.C. not maintainable–Accused should
first move the court which declared him proclaimed offender and even an
objection against validity of proclamation is required to be raised in the first
instance before the court which issued the proclamation and power under
section 482 Cr.P.C. is not to be exercised in favour of a person, who is
absconding or avoiding service. Meghna Singh v. State of Punjab, 2002 (2)
RCR (Cri.) 501.
Proclaimed offender–If a person fails to appear at a specified place and
specified time as required by proclaimation published under section 82(1)
Cr.P.C., he would be punishable with imprisonment for a term of 3 yrs. or
with a fine or with both but where a declaration has been made for specific
reflected in section 82(4) Cr.P.C. pronouncing him a proclaimed offender, an
accused shall be punished with an imprisonment for a term which may be
extended to 7 years. Smt. Deeksha Puri v. State of Haryana, 2013(1) [Link]
329 (P&H).
Proclaimed offender–Impugned order declaring the petitioner as
proclaimed offender u/s 406, 498A, 506 and 120B IPC–Impugned order
cannot be sustained–However, he is a proclaimed person against whom
proclamation stands published and he is liable to be proceeded under section
83 Cr.P.C. by way of attachment of his property as also under section 174A
IPC. Sanjay Sarin v. State (UT, Chandigarh), 2013 Cr.L.J. 408.
Proclaimed offender–Petitioner was accused of offences under The
Employees Provident Funds & Miscellaneous Provisions Act, 1952 under
section 82 of the Code, the Magistrate has no power to declare a person as
proclaimed offender except as provided in section 82 (4) of the Code. M.P.
Singh v. Assistant Provident Fund Commissioner, 2013 (3) RCR (Cri.) 37
(P&H).
Proclaimed offender–Proclaimation to declare as a proclaimed offender–
No time and place to appear specified in publication–Accused not given
mandatory period of 30 days to appear before Court–Court adjourned the
matter a period of 30 days–Adjournment of 30 days cannot be treated as
compliance of provisions of section 82(1) Cr.P.C.–Proclaimed order not as
per law and same set aside. Ashok Kumar v. State of Haryana, 2013 (4) RCR
(Cri.) 550 (P&H).
Section 82 Cr.P.C.–An order of attachment of a property has nothing to do
with the right of tenancy. The terms and conditions of tenancy being
governed by statute the tenant can not be evicted except in accordance with
law. Right of a tenant could not have been affected by reason of any order of
attachment. Vimalben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, 2008 (2)
Crimes 45 (SC).
Section 82 Cr.P.C.–The provision contained in section 82 of Cr.P.C. were
put on the statute book for certain purpose. It was enacted to secure the
presence of the accused. One the said purpose is achieved, the attachment
shall be withdrawn. Even the property which was attached, should be
restored. The provisions of Cr.P.C. do not warrant sale of the property
despite the fact that the absconding accused had surrendered and obtained
bail. Once he surrenders before the court and the standing warrants
cancelled, he is no longer an absconder. The purpose of attaching the
property comes to an end. Vimalben Ajitbhai Patel v. Vatslaben Ashokabhai
Patel, 2008 (2) Crimes 45 (SC).
 Court not bound to take evidence in this regard before issuing a
proclamation–There must be a report before the Court that the person
against whom warrant was issued had absconded or had been concealing
himself so that the warrant of arrest could not be executed against him.
However, the Court is not bound to take evidence in this regard before
issuing a proclamation under section 82(1) of the Cr.P.C. Sonu v. State of
Haryana, (2021) 1 RCR (Cri.) 319 (P&H).
Prima facie satisfaction of the Court–The Court cannot issue the
proclamation as a matter of course because the Police is asking for it. The
Court must be prima facie satisfied that the person has absconded or is
concealing himself so that the warrant of arrest, previously issued, could not
be executed, despite reasonable diligence. Sonu v. State of Haryana, (2021)
1 RCR (Cri.) 319 (P&H).
Matter of anticipatory bail of absconder–As per rule of bail, it cannot be
said that an absconder against whom a proclamation under section 82 of the
Code, 1973 has not been issued, is not entitled to obtain anticipatory bail.
Arif Masood v. State of M.P., 2021 Cr.L.J. 504 (MP).
Mentioning of the requisite date and place for appearance mandatory–The
requisite date and place for appearance must be specified in the
proclamation requiring such person to appear on such date at the specified
place. Such date must not be less than 30 clear days from the date of
issuance and publication of the proclamation. Sonu v. State of Haryana,
(2021) 1 RCR (Cri.) 319 (P&H).
Prohibition as to declaration of proclamation–Where the period between
issuance and publication of the proclamation and the specified date of
hearing is less than thirty days, the accused cannot be declared a proclaimed
person/offender and the proclamation has to be issued and published again.
Sonu v. State of Haryana, (2021) 1 RCR (Cri.) 319 (P&H) .
Section 82 Cr.P.C.–Attachment and sale of property even after surrender
of the accused cause great prejudice to him. Jayendra Vishnu Thakur v. State
of Maharashtra, 2009 (3) Crimes 76 (SC).
Section 82 Cr.P.C.–Petitioner was charge-sheeted with other accused
person under section 147, 148, 307, 302/149 IPC and u/s 25 Arms Act–
Petitioner and other accused were citizen of Sri Lanka known as Sri Lankan
Tamils and were temporarily residing in Chennai–Petitioner was granted bail
by High Court and had been appearing before Trial Court till 2.3.1990–High
Court cancelled the bail of petitioner on 6-4-1990 and he absented from
Court and NBW issued remained unexecuted till on 1994 that proclamation
was executed against him– Petition to quash the proclamation on plea that
he was expariated to Sri Lanka and was now a Cabinet Minister in Sri Lanka
Government and was not aware of proclamation–Held, proclamation process
was not liable to be quashed. Anandan @ Duglas Devanandha v. State throgh
Inspector of Police, 2010 (4) Crimes 745.
Sections 82, 83 Cr.P.C. and section 174A IPC–Proclamation for person
absconding–The issuance of a warrant for the arrest of a proclaimed offender
u/s 82 (1) or 82(4) Cr.P.C., is for the purpose of ensuring his presence
before court. The warrant issued in a pending case is aimed at apprehending
the accused and bringing him before court so that he can be tried for the
offence. The power to issue warrant is conferred on the Magistrate for
securing the presence of the accused. For issuing a warrant, the Magistrate
need not necessarily act on a report filed by the police officer. Any
information can be relied on by the Magistrate to issue a warrant. In a case
where warrants were repeatedly issued and the presence of the accused
could not be secured, it would not be illegal or improper if the Magistrate
gathers the necessary information from newspapers that a particular
accused is available at a particular place. The purpose is only to secure the
presence and not to find him guilty– Order passed by Magistrate led to the
arrest of petitioner– Magistrate committed no mistake as administration of
justice requires that offenders are brought to book and tried. Securing the
presence of the accused to a step in aid for his trial. Thirumali Kumar v.
State, 2010 (1) Crimes 776 (Ker.).
Section 84–Where one another trial was pending against the accused person, the
commissioner was justified in passing attachment order in respect of the property
belonging to the accused. Ravi Sinha v. State of Jharkhand, 2018 Cr. L.J. 1130 (SC).
8. The proclamation will be published as required by section 82(2)
Cr.P.C. viz.
(i) (a) It shall be publicly read in some conspicuous place of the
town or village in which such person ordinarily resides.
(b) It shall be affixed to some conspicuous part of the house or
home at person ordinarily resides or to some conspicuous place
of such town or village.
(c) A copy, thereof, shall be affixed to some conspicuous part of the
Court house.
(ii) The court may also, if it thinks fit direct a copy of proclamation to
be published in a daily newspaper circulating in the place in which
such person ordinarily resides.
The police officer who is given the proclamation for publishing should see
the following particulars specially:
(i) 30 days clear time is given from the date of publication for surrender
to the accused P.O.
(ii) The names, particulars and the residence of the accused P.O. are
correctly given.
If time is not full 30 days then, proclamation will be defective and all the
subsequent proceedings would be void ab initio. Smt. Pritam Kaur 1967
Cr.L.J. 1120 (Punjab), 30 days time should be from the date of publication
and not from the date of issue of proclamation. 1969 Cr.L.J. 826 Gurappa
Gugal.
The proclamation should also be strictly published according to sec. 82
(2) Cr.P.C. as mentioned in (a), (b) and (c) above. For ref. see Biard Din v.
State 1959 Cr.L.J. 966. A non-comformance of anyone of them would not be
mere irregularity but would vitiate ultimately the order as held in Pawan
Gupta 1973 Cr.L.J. 68.
9. After proclamation, the proclamation process will be returned to the
Court with report of S.H.O. The court will then make order under
section 82(3) Cr.P.C. declaring that proclamation was duly published.
There must be statement in writing (Section 82(3) Cr.P.C.) validating
proclamation with the date of publishing. For a valid proclamation 30
days should be counted from the date of publication. It should not be
within 30 days of publication. (1929) Lah. 214, 1954 Cr.L.J. 1833,
1955 Cr.L.J. 318 Pal Singh Santa Singh v. State . A defective
publication and a defective proclamation order are fatal and the
defect cannot be cured, Smt. Pritam Kaur Supra.
10. Immediately after the proclamation is published, an absconder
becomes a proclaimed offender and his name must be entered in
party of P.S. Register No. 10 as laid down in Punjab Police Rule 22.54
and his history sheet opened. If the P.O. is resident of another
District, the information will be sent to the S.H.O. concerned and S.P.
of that District. Information of proclamation will also be given to
Headman and Watchman of the village concerned.
11. All the steps taken by Local Police to secure the arrest of absconders
and to initiate proceedings under section 82, 83 Cr.P.C. shall be
noted down in case diaries, other relevant records and registers of
Thana and registers of Prosecuting Branch.
 12. When a person whose Finger Print Slip is on record absconds, that
information of the fact will be at once sent to the Finger Print
Bureau.
13. The names of all the P.O. will be entered in a list which will be kept
in the office of every police station and a duplicate, thereof, will be
displayed on the police station notice board.
14. If the P.O. does not appear within the time specified in the
proclamation, the attached property shall be at the disposal of Govt.
and shall be sold after 6 months of date of attachment unless it is
subject to speedy and natural decay in which case it will be sold
earlier for the benefit of the owner (Section 85(2) Cr.P.C.) If a claim
is filed under section 84 Cr.P.C. by another person, the Magistrate
before auction, must dispose of the claim first [Sec. 85(2)].
15. If the P.O., however, appears within the time specified in the
proclamation, the Court shall release the property attached. (Sec.
85(1)).
16. The claims and objection can be made regarding the attached
property by third person or persons within 6 months from the date of
such attachment on the ground that the claimant or objector has
interest in such property and that such interest is not liable to
attachment. The court ordering attachment shall enquire into and
allow or disallow such claim or objection (Section 83(3) Cr.P.C.). The
person whose claim is disallowed can file a suit within one year to
establish his right. [Sec. 83(4)].
17. The attached property can be restored to P.O. within 2 years of
attachment, if the P.O. proves to the satisfaction of the court that he
did not abscond or had no notice of proclamation. (Sec. 85(3) Cr.P.C).
18. It is an offence under section 216 I.P.C. to harbour a P.O.

Challan under section 299 Cr.P.C. (Old Section 512)

In case, there is no immediate prospect of arresting the P.O. and the
investigation has been completed, the officer-in-charge will prepare the
challan as required by sec. 173 Cr.P.C. and, will request the court,
competent to try to commit for trial to record the depositions of witnesses
under section 299 Cr.P.C. Any such deposition can be given in evidence
against the P.O. on his arrest in the enquiry or trial against him if deponent
i.e. witness is dead or is incapable of giving evidence or his attendance
cannot be procured without an amount of delay, expense or inconvenience.
The object being that important evidence is not lost by the time the accused
is arrested. The constable who searched for the absconder in execution of
warrant must be cited as witness. He will be the first to be examined to
prove absconding. The name of this constable in red ink will be the first to
be mentioned in the calender of witnesses. The name of the accused
absconder will also be given in red ink in column No. 2 of Challan Form.
The police is again to submit a challan in case the absconder is arrested.
If proceedings under section 299 Cr.P.C. have already been recorded, then a
prayer should be made to take out that file. See object of section 299 Cr.P.C.
proceedings and power of the court to issue warrant of accused in 1963 (I)
Cr.L.J. 517. In re Namala.
The Police files of all the cases in which proceedings under section 299
Cr.P.C. have been taken shall be kept in the Record Room of S.P.’s office in
separate bundle in cloth of a distinctive colour and this bundle shall be
labelled. “50 years bundle” and the names of the all the police stations
concerned shall be entered on the label. Such annual bundles of Files year-
wise shall be kept together in separate part of the record room. (See P.P.R.
27.39 for 50 years).
 Similarly Judicial files in which proceedings have been recorded by the
Court under section 299 Cr.P.C. are kept in the record room of the District
Magistrate for a period of 50 years and the files are not destroyed.
Proceedings under section 299(2) Cr.P.C. can also be recorded in cases
punishable with death or life imprisonment; of the offender by a Magistrate
of the first class.
Section 299–Scope–Proceedings under section 299 Cr. P.C.–Though
judicial proceedings, cannot be construed as inquiry or trial because the
statements of the witnesses recorded can only be accepted in evidence in the
eventuality where the witnesses, whose statements had been recorded, were
subsequently found dead or whose presence could not be procured–This
limitation flows from the provisions of section 299 Cr.P.C. Davinder Kaur v.
State of Punjab, 2002 Cr.L.J. 4256.
Sections 299, 482 and 300–Criminal offence–Some of the accused arrested–Others
declared proclaimed offenders–Accused persons who faced trial acquitted as PWs did
not support prosecution–This is no ground to quash the proceedings against co-accused
who absconded–Evidence of PWs cannot be taken into consideration in view of section
299 Cr. P.C.–cannot be presumed that PWs would render the same version as was given
by them against the co-accused–The person who absconds, escapes and keeps himself
away from the arms of law can not be given undue benefit or advantage or permitted to
defeat the law in this manner. Jasbir Singh v. State of Punjab, 2002 Cr.L.J. 16.
Section 299 Cr.P.C.–For invoking section 299 Cr.P.C., the Magistrate was required
to hold that the accused was absconding on that date. Jayendra Vishnu Thakur v. State
of Maharashtra, 2009 (3) Crimes 76 (SC).
Sections 82, 83 and 299 Cr.P.C.–Petitioners accused were declared absconder and
proceedings under section 82 and 83 were initiated–Warrants of arrest were returned
unexecuted with report that petitioners were away from their place for a marriage–
Before declaring an accused as absconder, court has to be satisfied that accused had
left their permanent residence or were avoiding service or there was no chance of
arrest in near future–Magistrate should call the process server and record his
statement–Magistrate did not record evidence merely stating that prosecution did not
want to produce any evidence to be recorded under section 299 Cr.P.C.–Impugned
order was liable to be set aside and Petitioners were directed to appear before court.
Abdul Rehman v. State of Rajasthan, 2007 (3) Crimes 272.



Chapter–12
Remand
The procedure to be followed after the arrest of the accused without
warrant is to produce him before the nearest Magistrate.
Sections 56 and 57 Cr.P.C. lay down this procedure:
“Section 56. Person arrested to be taken before Magistrate or
officer-in-charge of police station.— A police officer making an arrest
without warrant shall without unnecessary delay and subject to the
provisions hearing contained as to bail, take or send the person arrested
before a Magistrate having jurisdiction in the case, or before the office-in-
charge of a police station.”
“Section 57. Person arrested not to be detained more than twenty-
four hours.—No police officer shall detain in custody a person arrested
without warrant for a longer period than under all the circumstances of the
case reasonable, and such period shall not, in the absence of a special order
of Magistrate under section 167, exceed twenty-four hours exclusive of the
time necessary for the journey from the place of the arrest to the
Magistrate’s Court.”
Thus, after every arrest without warrant, production of the accused is
necessary before the nearest Magistrate. This is, particularly desirable, for
it ensures the immediate application of the judicial mind to the legal
authority of the person making the arrest and the regularity of the procedure
adopted by him. It is also in consonance with the fundamental rights of the
individual as contained in Article 22(2) of the Constitution of India, the
language of which is particularly the same as of sections 56 and 57 Cr.P.C.
and is designed to give protection against the act of the executive or order
non-judicial authority.
Article 22(2) reads as follows:
“Every person who is arrested and detained in custody shall be produced
before the nearest Magistrate within a period of 24 hours of such arrest
excluding the time necessary for the journey from place of arrest to the
Court of Magistrate and no such person shall be detained in custody beyond
the said period without the authority of a Magistrate.”
The only exceptions to the production of accused before Magistrate for
arrest without warrant within 24 hours are:
1. There are provisions in statutes other than Cr.P.C. authorising the
arrest without a warrant issued by any Court under Customs Act and
section 64 Forest of the Act No. XVI of 1927. In these cases the
accused persons are to be produced immediately after arrest before
the Magistrate.
2. When any person is enemy, alien or any person who is arrested and
detained under any law providing for preventive detention, then he
need not be produced at all before the Magistrate.
3. If the arrest of a person is on the basis of warrant issued by the
Court, then he is to be produced before the Magistrate without any
unnecessary delay as required by section 76 Cr.P.C. which reads:
The police officer or other person executing a warrant of arrest shall
(subject to the provisions of section 71 as to security) without
unnecessary delay bring the person arrested before the Court before
which he is required by law to produce such person:
Provided that such delay shall not, in any case, exceed 24 hours
exclusive of the time necessary for the journey from the place of
arrest to the Magistrate’s Court.

Option for Police on Arrest without Warrant

Thus, whenever a police officer arrests a person there are following
options before him in case of arrest without a warrant:
1. He must give the accused option of bail if the offence is bailable
(Section 50 Cr.P.C). If the accused does not furnish security then he
should detain him. A note to this effect is to be made in Case Diary,
Daily Diary and other papers.
2. In the case of detention, he must produce the accused before the
nearest Magistrate or the Illaqa Magistrate within 24 hours of the
arrest exclusive of the time for journey, if the case of the accused is
not covered by two exceptions given above.

Option for Police on Arrest with Warrant

If he makes the arrest under a warrant issued by the competent Court
then he should:
1. If the warrant is bailable, give the option of bail to the accused, as
directed.
 2. If the warrant is non-bailable or the accused does not furnish surety in
case it is bailable then he should produce the accused without
unnecessary delay before the Court which issued the warrant. The
delay shall not exceed 24 hours (Section 76).

Remand
The police officer should try to finish investigation within 24 hours of the
arrest and submit the challan along with the accused before the Court. If the
investigation, however, cannot be completed within 24 hours then he can
apply for remand to police or judicial custody under section 167 Cr.P.C.
which reads as follows:
“Procedure when investigation cannot be completed in twenty four
hours.—(1) Whenever any person is arrested and detained in custody, and it
appears that the investigation cannot be completed within the period of
twenty-four hours fixed by section 57, and there are grounds for believing
that the accusation or information is well founded, the officer-in-charge of
the police station or the police officer making the investigation, if he is not
below the rank of sub-inspector, shall forthwith transmit to the nearest
Judicial Magistrate a copy of the entries in the diary hereinafter prescribed
relating to the case, and shall at the same time forward the accused to such
Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may,
whether he has or has not jurisdiction to try the case, from time to time, authorise the
detention of the accused in such custody as such Magistrate thinks fit, a term not
exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or
commit it for trial, and considers further detention unnecessary, he may order the
accused to be forwarded to a Magistrate having such jurisdiction:
Provided that—
(a) the Magistrate may authorise the detention of the accused person, otherwise
than in the custody of the police, beyond the period of fifteen days, if he is
satisfied that adequate grounds exist for doing so, but no Magistrate shall
authorise the detention of the accused person in custody under this paragraph
for a total period exceeding—
(i) ninety days, where the investigation relates to an offence punishable with
death, imprisonment for life or imprisonment for a term of not less than ten
years;
(ii) sixty days, where the investigation relates to any other offence,
and, on the expiry of the said period of ninety days, or sixty days, as the case
may be, the accused person shall be released on bail if he is prepared to and
does furnish bail, and every person released on bail under this sub-section
shall be deemed to be to released under the provisions of Chapter XXXIII for
the purposes of that Chapter;
(b) no Magistrate shall authorise detention of the accused in custody of the police
under this section unless the accused is produced before him in person for the
first time and subsequently every time till the accused remains in the custody
of the police, but the Magistrate may extend further detention in judicial
custody on production of the accused either in person or through the medium
of electronic video linkage;
(c) no Magistrate of the second class, not specially empowered in this
behalf by the High Court, shall authorise detention in the custody of
police.
Explanation I:—For the avoidance of doubts, it is hereby declared that
notwithstanding the expiry of the period specified in paragraph (a) the
accused shall be detained in custody so long as he does not furnish bail.
Explanation II:—If any question arises whether an accused person was
produced before the Magistrate as required under clause (b) the production
of the accused person may be proved by his signature on the order
authorising detention or by the order certified by the Magistrate as to
production of the accused person through the medium of electronic video
linkage, as the case may be:
Provided further that in case of a woman under eighteen years of age, the
detention shall be authorised to be in the custody of a remand home or
recognised social institution.
(2A) Notwithstanding anything contained in sub-section (1) or sub-section (2), the
officer- in-charge of the police station or the police officer making the investigation, if
he is not below the rank of a sub-inspector, may, where a Judicial Magistrate is not
available, transmit to the nearest Executive Magistrate, on whom the powers of a
Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry
in the diary hereinafter prescribed relating to the case, and shall, at the same time,
forward the accused to such Executive Magistrate, and thereupon such Executive
Magistrate, may, for reasons to be recorded in writing, authorise the detention of the
accused person in such custody as he may think fit for a term not exceeding seven days
in the aggregate; and on the expiry of the period of detention so authorised, the accused
person shall be released on bail except where an order for further detention of the
accused person has been made by a Magistrate competent to make such order; and,
where an order for such further detention is made, the period during which the accused
person was detained in custody under the orders made by an Executive Magistrate
under this sub-section, shall be taken into account in computing the period specified in
paragraph (a) of the proviso to sub-section (2):
Provided that before the expiry of the period aforesaid, the Executive Magistrate
shall transmit to the nearest Judicial Magistrate the records of the case together with a
copy of the entries in the diary relating to the case which was transmitted to him by the
officer-in-charge of the police station or the police officer making the investigation, as
the case may be.
(3) A Magistrate authorising under this section detention in the custody of the police
shall record his reasons for so doing.
(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall
forward a copy of his order, with his reasons for making it, to the Chief Judicial
Magistrate.
(5) If in any case triable by a Magistrate as a summons-case, the investigation is not
concluded within a period of six months from the date on which the accused was
arrested, the Magistrate shall make an order stopping further investigation into the
offence unless the officer making the investigation satisfies the Magistrate that for
special reasons and in the interests of justice the continuation of the investigation
beyond the period of six months is necessary.
(6) Where any order stopping further investigation into an offence has been made
under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made
to him or otherwise, that further investigation into the offence ought to be made, vacate
the order made under sub-section (5) and direct further investigation to be made into
the offence subject to such directions with regard to bail and other matters as he may
specify.”
The police can keep the accused for remand to police custody for a period
not exceeding 15 days on the whole under the orders of a Magistrate for
completion of the investigation. If the investigation is not being completed
within this period then the police officer can apply, for taking further
remand upto 60/90 days. The accused will have to be sent to the judicial
lock-up in that case. In no case the police can detain an accused in police
custody longer than 15 days from the date of arrest, under the orders of a
Magistrate.

No Remand After 60/90 Days of Arrest

In case the investigation is not completed and the accused is in custody
for 60 days, (for 90 days in cases punishable with death, life or 10 years or
more) no further remand can be given and accused shall be released on bail.
(See also Chapter Bails). Only an adjournment an accused 309 Cr.P.C. can be
given and the detention is governed by section 309 and not section 167.
1989 [Link]. 1678.
It was held in case Vijay Kumar & Other v. State, 1982 (2) C.L.R. 524 that
object of proviso to sub-section (2) is to adequately safeguard the interest of
both the police and the accused–Failure of police to put up the challan
against the accused within sixty days from his arrest–Effects. Accused gets
an indefensible rights to be enlarged on bail. An application for bail by the
accused is not essential–Court is under an obligation to inform the accused
about his aforesaid right.
If investigation is not completed by police within sixty days of arrest of
accused he is entitled to be released on bail; said right cannot be defeated
by putting up an incomplete challan in the Court.
Held, “that as a consequence of the 1978 amendment, an accused after
sixty days from the date of his arrest, immediately becomes entitled to bail
irrespective of the offence with which he is charged where the police fail to
put up a challan against him on completion of the investigation. By doing so
the legislature has adequately safeguarded the interests of both the police
and the accused. On the one hand, it has, allowed the police to take their
own time for completing the investigation by not compelling them to put up
an incomplete challan against the accused in a huff within fifteen days of his
arrest, and on the other hand, it has also protected personal liberty of the
accused by not allowing the police to perpetuate his detention in custody,
even judicial, on the ground of completing the investigation. This was clearly
the two-fold object that persuaded the legislature to adopt this legislative
measure, and there can be no manner of doubt, that it is a laudable object
that is clearly in consonance with the letter and spirit of the Constitution
guaranteeing fundamental right of personal liberty to all persons residing in
India.
After the insertion of the new provision to sub-section (2), therefore, an
in-defensible right to be enlarged on bail accrued in favour of the accused, if
the police failed to complete the investigation and put up a challan against
him in a Court of law in terms of section 173 Cr.P.C. This right, it is so
obvious he may exercise at any time till the conclusion of the trial, and the
same cannot be defeated by the mere fact that before he has been able to
offer bail a charge sheet on completion of the investigation has been put up
against him in a Court of law. And nor is an application on his behalf a
condition precedent for the accrual of this right in his favour. Section 167
itself takes care of it and does not cast any obligation on the accused to
move an application for the exercise of this right. It on the other hand, casts
an implied obligation on the Court itself to inform the accused that a
valuable right of being released on bail has accrued in his favour.
The provision contained in the proviso to sub-section (2) of section 167
has to be read into section 344 also. Unless this is done section 344 will
come into conflict with section 167, for whereas an indefensible right to be
enlarged on bail in case investigation of the case is not completed, and a
challan put up against the accused within sixty days from the date of his
arrest would accrue in favour of the accused an accused 167, the same right
be taken away by the technical device of putting an incomplete challan
against him in the Court with in the aforesaid period and thereby obtaining
repeated remands of the accused to judicial custody through the
instrumentality of the Court in which the challan is produced by taking
recourse to section 344. This would surely defeat the basic object of
enacting the Amending Act of 1978.
There can be no manner of doubt that the reason assigned by the two
Courts below for refusing bail to petitioners was clearly unsound, section
167, no doubt does not speak of putting up a challan against the accused in a
Court of law on completion of the investigation but merely ordains that the
accused will be entitled to bail irrespective of the offence with which he is
charged, in case the police fail to complete the investigation within sixty
days from the date of his arrest. But the requirement of putting up a challan
within the said period, shall again have to be read into the section to carry
out the intention of the legislature. If this were not to be done then certainly
the very object for which the proviso was enacted by the legislature in the
year 1978 will stand defeated.
The right that accrues in favour of an accused in terms of the proviso to
sub-section (2) of section 167 therefore, survives and cannot be defeated
merely because the police have completed the investigation within sixty days
from the date of his arrest but still no challan is put up against him within
the said period, nor is such a right, defeated even if the police file a charge
sheet against him in the Court of law but only after sixty days from the date
of his arrest. It will cease to accrue only if the charge sheet against him in
terms of section 173 is filed in the Court on the completion of the
investigation within sixty days from the date of his arrest.
It is common ground that charge sheet against the petitioners was
produced before the learned Chief Judicial Magistrate after sixty days from
the date of their arrest. An indefensible right had, thus, accrued in their
favour to be enlarged on bail. By refusing bail to him, the Courts below have
clearly acted in excess of their powers. They had no power to refuse them
bail once the petitioners had desired it and were also ready to offer the
same.”
No Bail if charge sheet is presented within 60/90 days though cognizance
is taken or not.
In Full Bench case of the Patna High Court Nagendra Prasad Singh 1984
Cr.L.J. 1412. Accused was remanded to jail custody on 12.1.83 up to 23.1.83.
In the meanwhile police gave challan on 14.1.83 and an order was passed on
17.1.83 that cognizance was being taken. After discussing provisions of
sections 167(2) section 209 and 2(g) Cr.P.C. it was held that accused was not
entitled to bail since challan was given within time.
Where the challan is given within 60 days but the report under section
173 Cr.P.C. is not accompanied by reports of experts like chemical examiner,
etc. It is no ground for bail under section 167(2) Cr.P.C. 1983 Cr. L.J.402
State of H.P. v. Gudu. Challan filed before duty Magistrate on 90th day and
accepted, no bail. 1989 [Link]. 1490.
Section 167–Bail–Remedy of, extinguishes after filing of charge sheet–
Fact that charge sheet or final report filed was returned for compliance of
certain defects–Does not entitle accused to be released on bail. Guna alias
Gunasekaran v. The State, 1997 Cr.L.J. 626 (Mad).
Sections 167 and 172–Non-completion of investigation in twenty-four
hours–Production of arrested persons before Magistrate–However on
production of case diary and relevant material by police except an
uncorroborated statement that arrested person confessed to concerned
police officer over telephone–Magistrate without there being sufficient
material mechanically passing order of removal of that person to another
place for further investigation according to request of police–Order liable to
be quashed. In Re: SK. Anwar Ali, 1997 Cr.L.J. 1086 Cal).
Section 167(1) and 167(2) Cr.P.C.–It is well-known that the court takes
cognizance of the crime, not the offender. Indefensible right to bail when
charge sheet is not filed within stipulated time–If application is filed by
accused for bail or even if Magistrate refuses the application erroneously
and accused moved higher forum, filing of challan at that stage would not
deprive him of the right. Petitioner was arrested for offences under section
14 of Foreigners Act and other section 120B read with sections 489A to 489E
I.P.C.–Charge sheet was filed only for offence under section 14 of Foreigners
Act within 60 days–Non-filing of charge sheet for remaining offences within
90 days of arrest of accused entitled accused to bail–Petitioner directed to
be released on bail. Tunde G baja v. CBI, 2007(3) Crimes 189 Del.
 Section 167(2) Cr.P.C.–Police remand of accused–Question whether
person of accused could not at all be given to police after initial 15 days
period was over or whether the period for which person of accused could be
handed over to police could not exceed 15 days in all. Police remand of
accused asked for on plea that recoveries pursuant to disclosure made by
accused were to be effected was declined by Magistrate–Order was set aside
by Sessions court in revision–Magistrate declined to grant police remand on
ground that accused could not be given in police remand after initial period
of 15 days–Revision–Whether accused could be given in police remand after
initial period of 15 days was over? The answer is in affirmative. State of
Haryana v. Zafar Ali, 2008(1) Crimes 725 (P&H).
Section 162(2) Cr.P.C.–Compulsive bail–Accused failed to comply the
order by furnishing bail bond with surety–Charge sheet filed by prosecution
in meanwhile–Whether accused could be released on such bail on his
furnishing bail bond on strength of the earlier order? The answer is ‘No’.
Gyan Chand Agarwal v. CBI, 2007(3) Crimes 118.
Section 167(2) Cr.P.C.–Compulsive bail–Bail order was passed on 90 t h day
when prosecution failed to file charge sheet–Before bail bonds were
presented and accepted on same day. Charge sheet was filed and Magistrate
declined to accept the bail bonds. Order declining bail suffered no illegality.
Naresh Ram v. State of Bihar, 2009 (2) Crimes 92.
Section 167–Merely because certain facets of the matter called for further
investigation, it does not deem such report anything other than a final report. Section
167(2) was fully complied with and petitioner is not entitled to statutory under section
167(2) Cr.P.C. Abdul Azees PV v. National Investigation Agency, 2014(4) Crimes 326.
Section 167–While computing the period of 90 days, the day on which the accused
was remanded to the judicial custody should be excluded and the day on which challan
is filed in the court should be included. No infringement of section 167(2) Cr.P.C. Ravi
Prakash Singh @ Arvind Singh v. State of Bihar, 2015 Cr.L.J. 1666 SC.
Section 167–Since the application for grant of statutory bail filed by the accused
before the filing of application for extention of time, the Apex Court decided the case in
favour of the accused applicant. Ranbeer Shokeen v. State of NCT of Delhi, 2018(1)
Crimes 170.
Importance of the personal liberty of a person–The scheme of Code of Criminal
Procedure, 1973 clearly indicates that provisions of section 167 of Code of Criminal
Procedure gives due regard to the personal liberty of a person, hence, without
submission of charge sheet within 60 days or 90 days, as the case may be, an accused
person cannot be detained by the Police. S. Kasi v. State, through the Inspector of
Police, Samaynallur Police Station, Madurai District, (2020) Cr.L.J. 3588 : AIR 2020 SC
2921.
Section 167–The accused was granted bail on the ground of illegal detention on this
ground that the charge sheet had not been filed within the statutory period of 60 days
by I.O. in a case filed against the accused under section 13(1) of Prevention of
Corruption Act. Rakesh Kumar Paul v. State of Assam, 2018 Cr. L.J. 155 SC.
Section 167–The Apex Court held that there is no doubt that the report application
of the public prosecutor, setting out the reasons for extention of ninety (90) days of
custody to complete investigation leaves something to be desired. In this case, two
documents had been placed before the trial court-first document was an
application/report filed by the IO with the signature of Public Prosecutor and the second
document, which purports to be a report of public prosecutor, had also been filed in the
form of an application. The Court said that undoubtedly the request of an IO for
extention of time is not a subsitute for the report of the public prosecutor but since the
court finds that there has been, as per the comparison of the two documents, an
application of mind by the public prosecutor as well as an endorsement by him, the
infirmities in the form should not entitle the respondents to the benefit of a default bail
when in substance there has been an application of mind. State of Maharashtra v.
Surendra, 2019 Cr. L.J. 1588 SC.
 Section 167–In the present case, as on 90th day, there were no papers on the charge
sheet in terms of section 173 of the Cr.P.C. for the concerned Magistrate to assess the
situation whether on merits, the accused was required to be remanded to further
custody. The Apex Court held that prescribed period of 60 or 90 days of remand of
accused to custody under section 167 Cr.P.C., cannot be extended by court. Achpal v.
State of Rajasthan, 2019 Cr. L.J. 401 SC.

Cancellation of Bail Granted under section 167(2) Proviso (2)

The bail so granted if challan is not given till the expiry of 60/90 days of
arrest, cannot be cancelled. That should be only if the supervening
circumstances justifying cancellation viz. some act or conduct of the accused
that he is misusing his liberty on bail. Ramesh Kumar 1984 (I) C.L.R. 341.
Mere presentation of challan afterwards, no cancellation of bail. 1989 Cr.L.J.
531; 1978, SC 55.
As far as bail application is concerned, no bail application on the date on
which the stipulated period of 90 days or 60 days expired or on the date
before charge sheet submitted–Held accused not entitled to be bailed out,
Hariom 1992 Cr.L.J. 182 (All.) Once charge sheet is filed, proviso to sec. 167
Cr.P.C., cannot operate. Bail then may be under section 439 Cr.P.C. only
Abdul Wahid, 1992 Cr.L.J. 1900 (Born.) . But in a case of Dharmanand 1994
Cr.L.J. 730 (All.). It has been decided that in default of non-filing of charge
sheet by prosecution within the prescribed period, i.e. 60/90 days, the
Magistrate should pass an order enlarging the accused on bail, irrespective
of the fact whether an application for bail is or is not moved by the accused
and should call upon the accused to furnish bail.
Bail-failure to file complete charge sheet/police report within prescribed
period-confers on accused, right to be released on bail and the Court is not
complete to take cognizance of offence on incomplete charge sheet. Filing of
charge sheet under section 173(2) Cr.P.C. is not complete unless
accompanied by papers contemplated under section 173(5) Cr.P.C. and is
taken or record for its examination for taking of cognizance. 1994 Cr.L.J.
257 (A.P.).
Furthermore, right once vested in accused–Cannot be diverted by
subsequent events unless law so provides. See 1994 Cr.L.J. 730 Supra.
Section 167–Court taking cognizance of offence–Accused arrested
subsequently by police during further investigation–Can be detained by court
in police custody in exercise of its power under section 167 Cr.P.C. State
through CBI v. Dawood Ibrahim Kaskar, 1997 Cr.L.J. 2989 S.C.
Section 167 Cr.P.C.–Bail–Default in completion of investigation and filing
of challan within time allowed–Indefensible right of accused to be released
on bail–Is enforceable till filing of challan. Pramod H. Tiwari v. State of
Gujarat, 1997 Cr.L.J. 1605 Guj.
Bail–Entitlement on expiry of 90 days–Computation of 90 days–Challan not
presented–Day of remand to judicial custody to be excluded and day of filing
of the charge sheet to be included in computing the period of 90 days–Case
remanded on 13-10-2004–Charge sheet filed on 11-1-2005–Date of charge
sheet falls on 90 t h day, not 91st day. Kalari Panakala Rao v. C.B. Venkata
Narayan Murthi@ Babji, 2006(2) RCR (Cr.) 489 A.P.
Section 167 Cr.P.C.–Incomplete charge sheet submitted by police–
Submission of a proforma as envisaged in section 173(2) by police without
any accompaniment as envisaged in section 173(5) does not indicate
completion of investigation–Accused entitled to bail under section 167
Cr.P.C. Punjaram v. State of Maharashtra, 2005 Cr.L.J 4658 (Bombay).
Release of accused under proviso to section 167 Cr.P.C. order, not
defeated by filing of charge sheet or by remand to custody under section
309(2), and can be cancelled only under section 437(5) or section 439, 1987
Cr.L.J. 187 (SC) Raghbhir Singh ; Elaborately discussed in 1990 Cr.L.J. 62 by
the Supreme Court wherein it was held that grant of bail under proviso (a) to
section 167(2) may appropriately be termed as an order on default. Indeed it
is release on bail on default of prosecution to file charge sheet within the
prescribed period. It is a legislature command and not the Court’s
discretion. But the accused, after release on bail on this short ground of not
filing challan within 60/90 days cannot claim any special right to remain on
bail. If the investigation reveals that accused has committed a serious
offence and charge sheet is filed, the bail granted under proviso (a) to
section 167(2) could be cancelled (1987 SC 149 followed) as warranted by
section 437(5) and section 439(2) Cr.P.C.
Compulsory bail once granted for non-filing of charge sheet within
statutory period cannot be cancelled because of subsequent filing of charge
sheet. Cancellation of bail may be ordered for reasons on which a bail may
ordinarily be cancelled. Aslam Babu Lal Desai, 1992 Cr.L.J. 3712 (SC).
Period of 60 days to be counted from the time when Magistrate
authorises the detention for the first time is from the date of first remand of
the accused to custody and it, therefore, follows that the time spent by
police in forwarding an accused in custody to the Magistrate within the
statutory period of 24 hours is not to be counted (sec. 57), 1988 Cr.L.J. 834,
AIR, 1987 SC 2130.
How 60 days to be counted was laid down in Tarsem Kumar, 1976 Cr.L.J.
1303 (Delhi). The accused was arrested on October 19 and report under
section 173 Cr.P.C. was received on October 18, held that custody of 24
hours permissible under section 51 Cr.P.C. is to be excluded and ‘period on
the whole’ for 60 days to be counted thereafter.
The total period of 60 days or 90 days would start running from the date
of remand not the date of arrest– Chaganti (1986) 2 Crimes 678 (SC) see also
Shivanna, 1992 Cr.L.J. 2287 (Kart.) and date of arrest or surrender must be
excluded for computation, 1994 Cr.L.J. 651 (Kart).
Further, fraction of a day shall be counted as 11 day- Arjun Singh, 1987
Cr.L.J. 1236.
Section 167(2)(i)(ii) Cr.P.C.–Penal Code, section 306–Bail–Petitioner
arrested for alleged offence under section 498A and 306 I.P.C.–Maximum
punishment prescribed for offence under section 306 I.P.C. is 10 years and
not beyond charge sheet ought to be filed within 60 days and not 90 days
from date of arrest–Charge sheet not filed within 60 days from date of
arrest–Order directing release of petitioner under section 167(2) is valid.
Babu v. State of Karnataka, 1998 Cr.L.J. 16 Kant.
Section 167 and 57–Bail under section 167–Refusal of validity–Accused
involved in offence under N.D.P.S. Act in two different States–Earlier
accused was arrested in one state and was granted bail by High Court of that
state–Non-execution of bond because of his subsequent arrest in another
State–Accused not produced before Magistrate within 24 hours after his
arrest in another State becomes obvious–Accused directed to be released
from custody on executing bond pursuant to order of High Court in earlier
case. Manoj v. State of M.P., 1999 Cr.L.J. 2095 SC.
Section 167 Cr.P.C.–Bail–Grant of–Petitioner–Accused challenged for
conspiracy to repatriate the money through hawala channel–Entire
prosecution case based on documentary evidence-Hardly possibility of the
petitioner tampering with evidence–No likelihood of petitioner fleeing from
justice–Other co-accused having big role in conspiracy were on bail–
Petitioner who spent more than 9 months in jail can be granted bail on
ground urged in his earlier bail application. D. Mallesham Goud v. State
through C.B.I, 1999 Cr.L.J. 3864 Delhi.
Section 167(2)(a) Cr.P.C.–Release on bail–Accused kept in custody beyond
period of 90 days–Computation of period of 90 days–One day either from
commencing period or last day, has to be excluded–Accused remanded in
custody on 27th March, 1998–Period of 90 days would expire on 25th June,
1998 and not on 24th June–Filing of charge sheet by police on 29th days–
Would disentitled accused from release under this section. Anand Singh v.
State of Rajasthan, 1998 Cr.L.J. 842 Raj.
This was further elucidated by Misra J. in L.R. Chawla, 1976. Cr.L.J. 212
accepted in 1981 C.L.R. (Delhi) Smt. Surjit Kaur . The period of 24 hours and
the time which may be necessary for the journey from the place of arrest to
the Magistrate’s Court are to be excluded in counting 60 days permissible
under section 167 (2) Cr.P.C. if challan is given or even if incomplete challan
is filed, on 60th day, the Court takes cognizance on ‘police report’ and
benefit under section 167 (2) Cr.P.C. cannot be derived for release of
accused on bail.
Sections 167(2), 482, and 439(2)–Release on bail–On grounds of default of
prosecution to file challan within prescribed period–Accused, not filing any
bail application during default period–Cannot be released on bail on challan
being filed after prescribed period–Accused however, wrongly granted bail
irrespective of legal position–Charges framed and trial is at evidence stage–
Accused regularly attending every hearing–Not causing hinderance to trial
or tampering with witnesses–Question of cancellation of bail becomes
academic. Sate of Punjab v. Sukhminder Singh, 1998 Cr.L.J. 3090 P&H.
Sections 167(2) and 439–Release on bail–Bail petition filed before filing
challan–Accused was not further remanded till then under section 309
Cr.P.C.–His right to be released on bail cannot be defeated by keeping his
application pending and on considering the same after filing of challan. Hari
Singh v. State of Rajasthan, 1998 Cr.L.J. 4641 Raj.
Section 167 Cr.P.C., Section 190–Cognizance–Accused arrested and
produced before court–An order remanding an accused to judicial custody
does not amount to taking cognizance of an offence. State of Karnataka v.
P.P. Raju, 2006(2) Apex Criminal 687(SC).
Section 167–Arrest of accused–Charge sheet not filed within the period of
stipulated in section 167–Accused applying for bail–Charge sheet filed
during pendency of bail application–It would not defeat right to bail which
accrued to accused. Om Prakash v. State (NCT of Delhi), 2005(3) RCR (Cri.)
919.
Section 167–Accused has a right to be released on bail if challan is not
put up within 60 days or 90 days, but right to file application for bail will
expire as soon as charge sheet is filed. Smt. Amarawati v. State of U.P.,
2005 Cr.L.J. 755.
Section 167 Cr.P.C.–Bail–Under section 167 Cr.P.C., there can not be any
detention in police custody after the expiry of the first 15 days even in a
case where some more offences either serious or otherwise committed by an
accused in the same transaction come to light at a later stage–If the same
arrested accused was involved in some other or different case arising out of
a different transaction in which event the period of remand needs to be
considered in respect to each of such cases, 1992 (2) RCR (Criminal 147 SC
relied. Jayraj Singh Temubha Jadeja v. State of Gujarat, 2005 (2) RCR (Cri.)
758.
Section 167 Cr.P.C.–Evidence Act section 27–Remand–Accused arrested
and remanded to police custody–Confession and recovery of incriminating
articles from accused–Order of remand declared arrest by High Court–
Confession and recovery does not lose evidentiary value–Effect of confession
and also the recovery of the incriminating article at the pointing out of the
accused has to be examined strictly in accordance with the provisions of the
Evidence Act. State Rep. by Inspector of Police v. N.M.T. Joy Immaculate,
AIR 2004 SC 2282.
Section 167 Cr.P.C.–Bail–Charge sheet not presented within stipulated
time (60/90 days)–Accused has a right to bail-However:—
(i) Right is lost if charge sheet is filed before availing of such right.
 (ii) If bail application of accused is adjourned and in the meantime
charge- sheet is filed, even then accused is entitled to bail.
(iii) If charge sheet and bail application are filed on the same day and if
charge sheet is subsequent in time to bail application, right of
accused is not lost. Gouse Mohiddin v. State, 2004 Cr.L.J. 1033
(Karnataka).
Section 167(2) Cr.P.C. Section 439–Grant of bail under section 167(2)
Cr.P.C.–Right for grant of bail under section 167(2) does not survive after
challan is filed–It is available in the intervening period only–Bail could not
and ought not to have been granted under section 167(2) Cr.P.C. after
challan had been filed against the accused–Order of bail recalled. Mutlub v.
State, 2006 Cr.L.J. 1102 (Rajasthan).
Section 167(2) Cr.P.C. Section 397, 398–Interlocutory order–Order
refusing bail under section 167(2) Cr.P.C. is a final order and not an
interlocutory order–Revision against the order is maintainable. Ratan Mandal
v. State of Jharkhand, 2006 (1) R.C.R. (Criminal) 402 (Jharkhand).
Section 167(2)–Police not completing investigation within 60/90 days–It is
the duty of court to inform the accused when brought before court for
extending remand that he has a right is apply for bail under section 167(2)
proviso Cr.P.C. But it confers no right of automatic order of bail–It cannot be
said that an accused can get an order of bail as a matter of course or in a
routine manner. Bukke Ranuka v. State of A.P., 2006(1) RCR (Cri.) 577
(A.P.).
Section 167(2) Cr.P.C.–A Magistrate who has no jurisdiction to try the
case authorise the detention of the accused–A limited role has to be
performed by the Judicial Magistrate to whom the accused has been
forwarded viz. to authorise his detention. State of Karnataka v. Postor P.
Raju, 2006(3) RCR (Cri.) 859.
Section 167(2)–Charge sheet not filed within statutory period of 90 days–
Accused is entitled to bail–In computation of prescribed period of 90 days,
first day of production of accused before the Magistrate is to be excluded
and date of filing of charge sheet to be included. Ajay Singh v. Surendra,
2005 (4) RCR (Cri.) 107 (M.P.).
Section 167(2) Cr.P.C.–Right of bail under section 167(2) Cr.P.C. accrues
to accused if challan is not presented within 60/90 days–Period 60/90 days
starts from date when accused was produced in court and order of remand
was passed–In the instant case accused in dacoity case taken in custody by
police–Accused not produced before Magistrate for 4 months as accused was
under treatment in a hospital–Accused produced before Magistrate on 27-6-
2004 on expiry of 4 months and order of remand passed by Magistrate–
Period of 90 days for grant of bail under section 167(2) Cr.P.C. will start
from 27-6-2004, although custody for 4 months was illegal. Lala Thakur v.
State of Bihar, 2005(2) RCR (Cri.) 513 (Patna) .
Section 167(2) Cr.P.C.–Accused arrested but challan not put up within the
statutory period of 90 days–Accused entitled to be released on bail under
section 167(2) Cr.P.C. as of right–Accused, however, will be subject to all
provisions of
Cr.P.C. in matter of remand to custody and cancellation of bail etc. State of
Maharashtra v. Bhavati Chandmal Varma @ Ayesha Khan, 2002 Cr.L.J. 575.
Section 167(2) Cr.P.C.–Article 21–Accused arrested in criminal offence–
Challan not put up within period specified in section 167(2) Cr.P.C.–Accused
filing bail application, but bail refused by Magistrate–Accused moved High
Court for grant of bail–Challan put up during pendency of bail application–
Accused has a right to get bail-Subsequent filing of challan will not defeat
the right which has accrued to accused. U.M. Acharya v. State of
Maharashtra, 2001 Cr.L.J. 1832 SC.
Section 167(2) Cr.P.C.–A Magistrate who has no jurisdiction to try the
case can authorise the detention of the accused–A limited role has to be
performed by the Judicial Magistrate to whom the accused has been
forwarded viz. to authorise his detention. State of Karnataka v. P.P. Raju,
2006(3) RCR (Cri.) 859.
Section 167(2)–Constitution of India, Article 21–Accused in custody–
Challan not filed within the period specified in section 167(2) Cr.P.C.–
Accused gets an indefeasi ble right to be released on bail–Held:–
1. Under sub-section (2) of section 167 Cr.P.C., a Magistrate before
whom an accused is produced while the police is investigating into the
offence can authorise detention of the accused in such custody as the
Magistrate thinks fit for a term not exceeding 15 days in the whole.
2. Under the proviso to aforesaid sub-section (2) of section 167, the
Magistrate may authorise detention of the accused otherwise than the
custody of police for a total period not exceeding 90 days where the
investigation relates to offence punishable with death, imprisonment
for life or imprisonment for a term of not less than 10 years, and 60
days where the investigation relates to any other offence.
3. On the expiry of the said period of 90 days or 60 days, as the case may
be, an indefensible right accrues in favour of the accused for being
released on bail on account of default by the Investigating Agency in
the completion of the investigation within the period prescribed and
the accused is entitled to be released on bail, if he is prepared to and
furnish the bail, as directed by the Magistrate.
4. When an application for bail is filed by an accused for enforcement of
his indefensible right alleged to have accrued in his favour on account
of default on the part of the Investigating Agency in completion of the
investigation within the specified period, the Magistrate/Court must
dispose of it forthwith, on being satisfied that in fact the accused has
been in custody for the period of 90 days or 60 days, as speci fied and
no charge sheet has been filed by the Investigating Agency. Such
prompt action on the part of the Magistrate/Court will not enable the
prosecution to frustrate the object of the Act and the legislative
mandate of an accused being released on bail on account of the default
on the part of the Investigating Agency in com pleting the investigation
within the period stipulated.
5. If the accused is unable to furnish bail, as directed by the Magistrate,
then the conjoint reading of Explanation 1 and proviso to sub-section
(2) of section 167, the continued custody of the accused even beyond
the specified period in paragraph (a) will not be unauthorised, and,
therefore, if during that period the investigation is complete and
charge sheet is filed then the so-called indefeasible right of the
accused would stand extinguished.
6. The expression ‘if not already availed of used by this Court in Sanjay
Dutt’s case (supra) must be understood to mean when the accused files
an application and is prepared to offer bail on being directed. In other
words, on expiry of the period specified in Paragraph (a) of proviso to
sub-section (2) of section 167 Cr.P.C. if the ac cused files an
application for bail and offers also to furnish the bail, on being di -
rected, then it has to be held that the accused has availed of his
indefensible right even though the Court has not considered the said
application and has not indi cated the terms and conditions of bail, and
the accused has not furnished the same. Uday Mohan Lal Acharya v.
State of Maharashtra, 2001 Cr.L.J. 1832 SC.
Section 167(3) Cr.P.C.–Accused arrested under NDPS Act–Bail application
presented on expiry of 90 days challan also submitted by police on same day–
Right of accused to grant of bail did not survive 1996 (1) RCR 506 SC relied.
Sanjeet Kumar @. Gurdeep singh v. State of Punjab, 2001 (2) RCR (Cri.) 615
(P&H).
 Sections 167(2)–The right under section 167(2) Cr.P.C. to be released on bail on
default if charge sheet is not filed within 90 days from the date of first demand is not an
absolute or indefensible right–The right would be lost if charge sheet is filed and would
not survive after the filing of the charge sheet–if before the consideration of the bail
application for being released on bail on the ground that charge sheet was not filed
within 90 days, and charge sheet was filed before consideration of bail application the
said right to be released on bail would be lost. Sadhuri Pragyana Singh Thakur v. State
of Maharashtra, 2011(4) Crimes 135 SC.
Section 167(2)–Petitioner was arrested in a case under NDPS Act and more than 10
kg. ganja was seized from him. The case was covered by section 167(2) as the offence
under NDPS Act. Section 20 was punishable by imprisonment upto 10 years. He was
arrested on 24.4.2010–Charge sheet was filed on 24.6.2010 and on the same day, the
bail application was filed. It was held by the court that an indefensible right accrued in
favour of applicant and it could not be taken away by filing the charge sheet and the
petitioner was released on bail. Ramesh Gautam v. State of Chhatisgarh, 2010(4)
Crimes 709 (Chhatt.).
Section 167(2)–Bail application was moved on default in filing a charge sheet within
stipulated period. In this case, the petitioner was arrested on 27.10.2010 in murder
case and the bail application was moved on 27.10.2010 and charge sheet was filed by
police on that date at 2 p.m. Trial Court has rejected the bail application seeking bail in
default. Chandra Pal v. State of U.P., 2011(4) Crimes 679 (All).
Section 167(2)–In this instant case, the bail was granted on 25.2.2011. The
petitioner approached the Court for furnishing the bond on 28.2.2011. By that time the
charge sheet was submitted in presence of the accused who was produced from
custody. It was held by the court that the petitioner accused was not entitled to be
released on bail. Monotosh Ghose v. State W.B. 2011(3), Crimes 636 (Cal.) & Gyan
Chand Aggarwal v. CBI 2007(3) Crimes 118 (Chatt.).
Section 167(2)–Challan was filed during pendency of regular bail application before
High Court but challan was filed beyond statutory period–It was held by the High Court
that the Court will not direct accused to move before Magistrate for seeking bail for
non-filing of challan within statutory period but they could enlarge petitoner on bail
under section 167(2) Cr.P.C. Somnath v. State of Punjab, 2012(1) Crimes 123 (P&H).
Section 167(2)–In this case the petitioner was arrested in a case under section 363
and 366 IPC and was in custody since 17.2.2011. Bail application was moved on
9.5.2011 claiming default bail. On the same day charge sheet was also filed. The Court
said that right to be released on bail stood defeated when charge sheet was filed and
denying bail suffered no illegality. Sukhai v. State of U.P., 2012(1) Crimes 314 (All).
Section 167(2)–Once the charge sheet has been filed and cognizance of the offence
is taken, the Court cannot exercise its power under section 167(2). The power of
remand is to be exercised when investigation is not complete. After the cognizance, the
power of remand can be exercised in terms of sections 309(2) Cr.P.C. Mithabhail Ratilal
Patel v. State of Gujarat, 2009 (2) Crimes 475 (SC).
Section 167–Supreme Court held in this case that the act of directing remand of an
accused is fundamentally a judicial function. While exercising this judicial act, it is
obligatory on the part of the Magistrate to satisfy himself whether the materials placed
before him justify such a remand, or to put it differently, whether there exist reasonable
grounds to commit the accused to custody and extend his remand. The purpose of
remand as postulated under section 167 is that investigation cannot be completed
within 24 hours. Manubhai Ratilal Patel through Ushaben v. State of Gujarat, 2013 Cr.
L.J. 160 SC.
Section 167–Where police report was filed as required under section 173(2) i.e.
within 90 days, and upon filing of the police report, cognizance was taken by the
Magistrate. The contention of the appellant that the police report filed in this case is not
as per the legal requirements under section 173(2) & (5) of Cr.P.C. Rightly rejected by
the High Court. Narendra v. Amin v. CBI, 2015 Cr. L.J. 1334 SC.
Section 167–The refusal of police remand in the present case is against the
settlement principle of law laid down by the court. The expression “accused if in
custody” in section 309(2) Cr.P.C. does not include the accused who is arrested on
further investigation before supplementary charge sheet is filed. Central Bureau of
Investigation v. Rathin Dandapat, 2015 Cr. L.J. 4488 SC.
Section 167–In this case, the respondent was arrested in course of investigation and
was sent to judicial custody prior to the date of expiry of 90 days which is the initial
period for filing the charge sheet. The prosecution had neither filed the charge sheet
nor had it filed an application for extension. The prosecution has submitted the
application seeking extension of time for filing the charge sheet when the respondent
filed the application. Asking the acused to file a rejoinder affidavit was held not proper.
High Court overruled the order refusing bail. Union of India through CBI v. Nirala
Yadav @ Raja Ram Yadav @ Deepak Yadav 2014 Cr. L.J. 3952 SC.
If Magistrate orders remand on the day of arrest then from the date, 1981
P.L.R. 25, Jai Singh. It is necessary for application of section 157(2) Cr.P.C.
that accused must be arrested for any cognizable offence. It applies to every
arrest, may be under section 151 Cr.P.C. only Chakkappan 1960 Cr.L.J. 1512
but not for proceedings under section 107/151 Cr.P.C. (See Chapter on
preventive measures). Remember as pointed out by the Supreme Court in
State of Bihar v. Ram Naresh, 1957 Cr.L.J. 567 that the continuance of
arrested person in detention for purposes of investigation from time to time
has to be authorised by the Magistrate. See Velu Viswa Nathan, 1971 Cr.L.J.
725 and State of A.P. v. Gola Rumalu page, 1368 where it is suggested that
remand to police custody after expiry of 15 days, can also be given.

Remand of Person Arrested under Custom Act

Can the Magistrate grant remand under section 167(2) and (3) of Cr.P.C.
where a person arrested under section 135 of Customs Act, is produced
before him for the purpose. There is no provision in the Customs Act for
remand and bail. It was held in 1990 Cr.L.J. 704 (following (1985) Cr. Writ
Nos. 116 and 104 of 1984 of 19.7.85 (Delhi) F.B. Union of India v. [Link],
1984 (SC 64) 1982 (2) 23 Guj. L.R. 792) that the Magistrate can grant
remand under section 167(2)(3). The absence of the provisions in the
Customs Act for remand and bail necessarily involves the application of
section 4(2) Cr.P.C. and in that view there cannot be any doubt whatsoever
that a Magistrate has power not only to remand the person prosecuted by the
Customs Officer but also to release him on bail. The Magistrate has power to
remand a person produced before him in accordance with section 104 of
Customs Act by virtue of the powers of remand under section 167(2) and (3)
of the Code and could further exercise the powers under section 437.
Remand of a Convict
The police sometimes desires the remand to police custody of a convict,
to afford help in ascertainment of truth and in collection of evidence in
which such a convict is involved. The question arises; can his remand to
Police Custody be taken. The answer is No. A convict undergoing sentence in
jail is governed by two Acts, viz Prisons Act and Prisoners Act. These Acts
does not contain any provision for remand to police custody. A Criminal
Court can only summon a convict for evidence and for answering certain
charge as accused in a trial against him (Sections 266 to 272 Cr.P.C.).
The proper procedure in such a case would be to approach the jail
authorities for giving facilities to the police for interrogating the accused in
jail under the orders of Magistrate or to get his sentence suspended by Govt.
and then take his remand to police custody as an ordinary accused (Sec. 432
Cr.P.C.) Ref. State v. Santokh Singh, 1956 Cr.L.J. 619 (M.B.).

Who can Apply for Remand?

It is only the officer of the police station or the police officer making the
investigation, if he is not below the rank of sub-inspector, who can apply for
remand. If the I.O. is an A.S.I, or H.C. he must get the application for
remand forwarded from office-in-charge of police station.

How 24 hours are to be Counted?

 According to section 67(7) Suth W.R. Cr. 3 (6) D.B., the 24 hours of
detention are to be counted upon the time when the accused persons leaves
the police station on the way to the Magistrate after his arrest.
In case 1954 Cr.L.J. 651 State of Hyd. v. Kankaon ; the accused was
arrested at 11.30 p.m. on 24-6-1952. On the following day, i.e. 25-6-1952 at
8 p.m. accused was sent to Magistrate who was on leave. The police officer
escorting the accused was directed to produce him before the District
Magistrate by the reader of the Court. More than 24 hours lapsed before the
accused could be taken before the District Magistrate. Held that the custody
of the accused was not illegal as the time spent, thus, would be considered
to have been taken in journey. The time taken in journey is not to be counted
within 24 hours but it is the duty of the Magistrate to see that time so
occupied is reasonable with reference to the distance to be traversed and
other local conditions see (69) 1869 Rat 22 circular 1260 (1869).
The word ‘exceed 24 hours,’ means within 24 hours and as such the police
should make efforts to produce the accused before the Magistrate within
24 hours. The intention of the legislature is apparent from the words in
section 47, “for a longer period than under all circumstances of this case is
reasonable and such period shall not exceed 24 hours.” The words used in
Article 22 (2) of the Constitution are also clear “within 24 hours.”
In Rajrani Kanta, 1975 Cr.L.J. 83 , accused arrested at 11.30 p.m. on 29-6-
1974 the police knew that police investigation could not be completed within

24 hours, it was held that accused should have been produced before
Magistrate during day on 30-6-1974 and there was no justification for not
producing till night fall on 30-6-1974.
The difficulty, however, sometime arises when 24 hours, elapse after the
Court hours. Supposing the accused is arrested at 8 p.m. 24 hours elapse at
8 p.m. on the following day when no Court is sitting, should the police
officer take the accused at that time to the house of Magistrate or should be
keep the accused as ‘Radhari’ for production on the following day at 10 a.m.
when the Court starts work.
As discussed above it is always better to produce the accused during the
Court hours within 24 hours and not wait for the end of 24 hours. If,
however, it is not done then the accused can be kept as Radhari. It is not
advisable and convenient to take the accused to the house of Magistrate. It
can be argued that the words used in section 57 and section 167 Cr.P.C. is
“Magistrate” and not Court. But words “Court” and the “Magistrate” are not
defined anywhere,
under section 6 Cr.P.C. Judicial Magistrate 1 s t class is included in the five
classes of criminal Courts and as such it is deemed to be Court.
In 1953 Cr.L.J. 1737 (Mad.) In Re Ram Nath Gotrathe meaning of the
word “Court” has been discussed as follows:
“There is no definition of the Court in Cr.P.C. but a Court is ordinarily
understood as a place where justice is judicially administered. For the sake
of brevity the Code used therein “Court” and “Magistrate” generally if not
always as convertible terms. See also 13 Cr.L.J. 622 (PC).
There are also rulings that confession recorded u/s 164 Cr.P.C. after
Court hours is not illegal. It is, therefore, not illegal to keep an accused for
Radhari if 24 hours expert after Court hours.
In this connection it may also be pointed out that there has been an
amendment in the Punjab High Court Rules and Orders Vol III Chapter II B,
that the District Magistrate and Sub-Divisional Magistrate should attend
office at specified hours on public holidays for disposal of such application
for remand as may be placed before them. This is to discourage taking
accused to the houses of the Magistrates. Thus, the police officer is to
produce the accused in the Court before the Magistrate and not at the
private residence of the Magistrate. See also 1955 Cr.L.J. 94 at page 406.
State v. Ram Avtar.
It does not mean that the accused cannot be produced at the house of
Magistrate or there he is on duty at an odd time after the regular Court
hours. In cases of identification or remand of woman, it is essential
sometimes to get remand after Court hours. The accused as such, should be
produced wherever the Magistrate is. It was held in Prabhat Mall Barooh,
1952 Cr.L.J. 1659. “An order of remand can only be passed by a Magistrate
sitting as a Court. It is immaterial where such a Magistrate was sitting at
the time of passing the order.” Similarly, in Prabhakarnath v. D. M.
production of accused was at Kotwali before Magistrate on duty at an odd
hour. It was argued that the Magistrate was not functioning as Court at that
hour at Kotwali. Held that the Magistrate was functioning as a Court. (1960
All. 467). The caution is:
1. Always produce the accused within 24 hours of arrest, without
waiting for 24 hours to expire, before the Magistrate in Court.
2. It is only in exceptional circumstances when necessary interrogation
is so urgent that 24 hours are let to expire for not causing a break in
interrogation that accused be kept as Radhari, when 24 hours expire
after Court hours, and then only when it is not expedient to produce
before a Magistrate at home.

Should the Accused be Produced before the Magistrate for Purposes

of Remand
For purposes of remand to police custody, police officer must always
produce the accused before the Magistrate as the Magistrate is to apply his
mind to the authority of the arrest and hear the accused if he had any
objection. A fair opportunity to the accused for his objection to the remand,
should be given by hearing him in person. It was so held in 13 Cr.L.J. 65.
But an order of remand without physical production of the accused
although is not illegal, yet extremely unsatisfactory. Raj Narayan, AIR 1971
SC 178 Gauri Shankar, AIR 1972 SC 711.
Order of remand would not be if passed in absence of accused when it is
practically impossible to produce the accused physically. Raju (1990)2
Crimes 344 (MP).
When the accused is undergoing treatment in hospital and according to
the doctor’s advice cannot be bodily removed, his production is not
necessary. In appropriate case, the Magistrate can call for a report from the
doctor. Detention of accused in absence of order of remand is violaton of
fundamental right. Noor Jahan, 1993 Cr. L. J. 102 (Kar).
The remand under section 167(2) Cr.P.C. can only be given if the accused
is forwarded to the Magistrate and produced before him section 167(2)(b).
In case the accused is not produced before the Court at the time of
remand in terms of Proviso (b) to sub-clause (2) of section 167 Cr.P.C. The
detention even though authorised otherwise becomes illegal. Similarly, it is
necessary to produce accused u/s 309 Cr.P.C. after the period of remand
under section 167. The accused are entitled to be released on bail under
such conditions and even a Habeas Corpus Writ Petition lies to secure their
release. See Izhar Ahmed, 1978 Cr.L.J. 78 (All.) See 1984 (I) C.L.R. 70.
Discussed under Remedy on Refusal to remand. The accused not produced
for remand, for want of guard, remand illegal, 1989 Cr.L.J. 1533.

Grounds of Remand to Police Custody

Before the grounds of remand to police custody are given, it is essential
to point out that:
1. The Magistrate who is to sanction remand is to apply his mind to the
grounds of remand and give his reasons. The accusation against the accused
must be well founded. The remand without applying mind by the Magistrate
to the accusation was held to be without justification in case 1951 Mad. B.
70 section 167(3).
When and under what circumstances Magistrate should remand the
accused to police custody, Mr. Justice Bains in 1984 (I) C.L.R 443 ,
Harminder Singh Sandhu, held “that under section 167, Code of Criminal
Procedure and the instruction issued there under as contained in the High
Court Rules and Orders. Volume III, it is incumbent upon the Magistrate
before making an order of remand to police custody, to form a opinion as to
the necessity, or otherwise of the remand applied for by the police after
examining the copies of the police diaries submitted under section 167,
Criminal Procedure Code and the previous orders, if any, made in the case
and the longer the accused person has been in custody, the stronger should
be the ground required for further remand to police custody. He should also
sign and date every page of the case diaries or copies thereof in token of his
having seen them. It is further laid down that under no circumstances should
an accused person be remanded to police custody unless it is made clear that
his presence is actually needed in order to serve important and specific
purpose connected with the completion of the enquiry. A general statement
by the officer applying for remand, that the accused may be able to give
further information should not be accepted.
Liberty of a citizen is a basic and fundamental right in our Constitution
and no person can be deprived of his personal liberty except according to
the procedure established by law. Thus, a duty is enjoined upon the Courts
to safeguard the liberty of the citizens.”
2. The illegality of detention by the police (for more than 24 hours) does
not affect the power of the Magistrate under section 167 Cr.P.C. when the
accused person is brought before him for that purpose. see 52 Cr.L.J. 233
(Supra).
3. Should the remand to Public Custody be granted for interrogation of
accused.
The remand to police custody of an accused is to be granted for reasons
under section 167(3) Cr.P.C., The interrogation of an accused to arrive at
truth is an important aspect of investigation, it is established that judiciary
should not interfere with investigation as held in 1945 P.C. 18; it is further
clear that arrest and interrogation in police custody for cognizable crime is
not only visualized but expressly authorised by Code, so held in Full Bench
case of the Punjab High Court 1978 Punjab & Hary. 1 (1980 S.C. 1632) ; so
admitted in 1989 Cr.L.J. 501. So where there are good grounds, remand to
police custody can be given for interrogation of accused to further
investigation and to facilitate complete and proper investigation.
Punjab Police Rules 25.56 (1) lays down:
“When an I.O. requires authority to detain an accused person in police
custody beyond the limits prescribed in section 61 Cr.P.C. he shall make
application, therefore, in accordance with the provisions of sec. 167 Cr.P.C.
on an incomplete charge sheet to which he shall attach the case diaries
thereof. The Magistrate will record his order on the incomplete charge sheet
which will not be returned to police but will form part of the Magistrate
proceedings. A copy of the Magistrate’s order will be made by the police
officer and attached to the complete charge sheet when the case is finally
sent for trial. Case diaries will not form part of the judicial file.”
Thus, the S.H.O. requesting for remand should give the date and time of
arrest in the remand application on an incomplete charge sheet and also give
the grounds on which he needs the remand to police custody of the accused.
A reference is also made to the Punjab High Court Rules and Orders Vol. III
Chapter II-B in which this aspect of the case is laid down therein:
1. In the opinion of the High Court remand to police custody ought only
to be granted in case of real necessity, e.g. accused can point out
properly.
 2. The police are too often desirous of retaining the accused in their
custody for a longer period than 24 hours merely in the hope of
extracting some admission of guilt from him. This is contrary of
section 163 Cr.P.C. and the spirit of Code generally and Magistrate
must be careful not to facilitate this object by too great a readiness is
granting remand. There must be some important and specific purpose
for the completion of inquiry.
3. When the object of remand is merely the verification of the person’s
statement, he should not be remanded to police custody.
In nutshell the main grounds for remand to police custody are:
1. That the accused was to point out certain place of occurrence not
known to the police already or otherwise to assist the case.
2. That some property was to be recovered at the instance of accused
regarding which a statement has already been recorded.
When accused has volunteered to point out incriminating articles
used in commission of offence, the case diaries contained such a
statement.
Merely accused pointing to Magistrate they do not desire to point out
or are not willing to help the police does not ipso facto divest the
Magistrate of his power to consider the propriety of granting remand
to police custody. The Magistrate can order for safeguard that police
will not subject accused to duress, etc. The remand can be granted
1989 Cr.L. J. 2552 Narain Pasi.
3. Any other good ground or special reason keeping in view the facts of
the case. Punjab Govt vide circular letter No. 698 J. 36/39 129 H. Jud.
dated 12-12-1936 has issued the following instructions to all the
District Magistrates regarding remands:
(a) Before a remand is granted in any case, the Magistrate should
inform the accused that he is Magistrate and that a remand has
been applied for and he should ask the accused whether he has
any objection, to offer to remand. The order granting the remand
should be written at the time it is announced in the presence of
the accused.
(b) If the accused wishes to be represented by a counsel, the
Magistrate should allow time for him. He may grant a temporary
remand in such circumstances until arguments have been heard.
(c) An accused person should not be removed to a place which is
either inaccessible or unknown to his friends or counsel.
Information regarding the place of confinement should at all times
be given to his friends on their application and the prisoner
himself should be informed that he is entitled to have the
assistance of the counsel and to communicate with his counsel
and friends.
The Magistrate must give the reasons for remand:
In a bailable offence, the Court cannot remand the accused to police
custody if he is prepared to give bail. Both sections 61 and 167 (2) are
subject to the provisions with regard to bail. Held so in Kanubhai 1973
Cr.L.J. 533.
Section 167 (3)–Police custody remand–Grant of Validity–Accused charged
for offence under section 376 IPC–Police seeking remand–Failed to mention
reasons or purpose for which police custody was sought except a bald
statement that such remand was required for further investigation in case–
Magistrate granting such remand was required for further investigation in
case–Magistrate granting such remand without assigning any reasons for
doing so-order of remand, quashed with permission to police authorities to
file fresh application for remand giving reasons. Md. Jahangeer v. State of
A.P., 2000 Cr.L.J. 2188 (A.P.).
No Remand on Arrest under section 41
In case of arrest under section 54 Cr.P.C. (now section 41) there is no
justification for remand under section 167 Cr.P.C. It is illegal. See Tikiam
Lova, 1972 Cr.L.J. 578. If a case has been registered already then it may be
legal.

Remand after 60 Days

(See Chapter Arrest and Incomplete challan)
There is no power given in the new Code to a Magistrate to authorise
detention or grant remand after expiry of 60 days if investigation is still to
be continued. (section 309 Cr.P.C.)–An adjournment can be given under
section 309 Cr.P.C only.
Remedy on Refusal to Remand
When an accused is produced before a Magistrate for remand the
Magistrate can only make an order with regard to the detention of the
accused and he is not competent to drop the proceedings and release the
accused. Further the effect of an order of a Magistrate to drop the
proceedings is that the investigation ends. The Magistrate has no power to
stifle proceeding in investigation over which the police alone have full
control and the Magistrate has no power to interfere in such proceedings,
1971 Cr.L.J. 440 State of Mysore v. Suba.
If, however, the Magistrate refuses to remand the accused to police
custody and sends him to judicial lock up, revision lies section 397(2) Cr.P.C.
The Magistrate acts judicially while giving the remand. He has to weigh
the evidence whether the accused should be detained in custody or not as
laid down in A.I.R. I1930 Lah 495.
In case Kashmir Singh v. State of Punjab 1984(1) C.L. R page 70 , accused
were refused to be remanded to police custody by the Magistrate. The State
went in Revision against the order under section 397 Cr.P.C. and the
Additional Session Judge granted remand to police custody. On reference to
the High Court two important questions were referred to the High Court
Division Bench and it was held that (i) the Magistrate performs a judicial
function and applies his mind to the material placed before him in shape of
Zimnies, etc. whether to grant remand to judicial or police custody, (ii) it is
essential to produce the accused before him, (iii) the order refusing or
granting remand is subject to Revision under section 397 Cr.P.C. but the
Session Judge cannot give remand to police custody without the accused
being produced before him.

Before whom to be Produced

The accused is to be produced for purposes of remand by the police
officer before the nearest Magistrate who is competent to grant remand to
police custody.
A Second Class Judicial Magistrate if authorised by the High Court can
grant remand to police custody. Section 167(2)(c).
The nearest Magistrate is not merely physically nearest but should mean
having territorial jurisdiction over police station concerned. See Maxwell’s
Interpretation of Statutes 1946 Ed. page 86. It was, however, laid down in 47
Cr.L.J. 548 that it was not necessary for the purpose of remand to custody
that the accused after his arrest should be produced before a Magistrate
having jurisdiction to try the case. The nearest Magistrate can in such case
forward him to Ilaqa Magistrate, if he deems necessary.
But invariably, the accused should be produced before the Illaqa
Magistrate. This aspect was emphasised in 1931 Lah. 99. “Though it is
provided in section 167 Cr.P.C. that accused be taken to the nearest
Magistrate, yet the policy of the law is that he should be produced before
the Illaqa Magistrate. The practice of obtaining an order of remand from any
Magistrate at the choice of police is open to objection.”
The Magistrate who has no jurisdiction to try the case cannot remand the
accused to custody for a longer period than 15 days on the whole. 1955 All.
462 Kali Charan v. State (sec. 167(2).

Not to Produce before a Witness Magistrate

A note of warning has been sounded in Bir Bhadra Partap Singh, 1959 All.
384 that accused for remand should not be produced before the Magistrate
who is himself a witness of the incident. It should always be before another
Magistrate since the witness Magistrate while granting remand cannot bring
to bear an impartial judicial mind to decide whether or not the accused is to
be remanded to custody. The Magistrate in such cases almost acts as: “Judge
in his own case. The law never countenances a judge who is a Judge in his
case.”

Application for remand to police custody of the accused when he is

already in judicial custody
1. If accused is in Judicial Custody in a case for more than 15 days from
the date of his arrest, his remand to police custody cannot be granted in the
same case after expiry of this period of 15 days. Section 167 Cr. P.C. bars
that. Remand to police custody can be got within 15 days of the date of
arrest, 1979 C.L.R.I (H.P).
2. If the accused is a convict, his remand to police custody cannot be
granted until and unless the sentence is got suspended.
3. If the accused is in judicial custody in one case; his remand to police
custody in the other case cannot be granted as was held in 1937 Sind 251
Diwan Hira Nand v. Emp. The principle being that an accused cannot be
subject to judicial custody as well as police custody; at the same time, i.e.
under section 309 in one case and under section 167 Cr.P.C. in the other
case. This ruling was dissented in 1955 Cr.L.J. 79 (Raj.) State v. Sukh Singh .
The remand, however, to police custody can be taken even if the accused is
in judicial custody in the other case. A definite procedures laid down for
this. Baxi J., 1954 Cr.L.J. 574 State v. Garasai Nathu Liha Meru Liha has
suggested the following procedure:
“We would, however, like to observe that the difficulty in cases of this
type (where the accused is in judicial custody) would be obviated if the
police were to formally request the Magistrate who happens to have the
custody of the accused to permit them to have access to the accused under
section 47 Cr.P.C. for the purpose of arresting him. The police need not
necessarily be taken to the judicial lock-up. The accused may be brought to
the Court and may be formally arrested by the police officer though he
cannot take away the accused from the judicial custody without an order of
the Magistrate. After having arrested the accused, the police officer may
immediately apply to the learned Magistrate for a remand. As the accused is
already in the custody of the Magistrate the question of forwarding him does
not arise and the Magistrate may dispose off the application for remand on
merits. We recommended that the above procedure be adopted by the sub-
inspector Bhavavadar in this case. The learned Magistrate will give the
police facilities for formally arresting the opponent and will, thereafter,
consider on merits any prohibition for remand which the sub-inspector might
make.”
The above procedure should be adopted by the police and remand in this
way to police custody can be got. A further caution was provided in State v.
Sukh Singh (Supra) where it was held “of course before the Magistrate does
so (i.e.) grants remand to police custody in the other case while accused is in
Magisterial custody in one case, he will have to satisfy himself that a good
case is made out for detaining the accused in police custody in connection
with investigation of another case.”

Papers to be Sent with Remand Application

It is an obligatory duty on the part of the officer-in-charge or the I.O. to
“forthwith transmit to the nearest Judicial Magistrate a copy of the entries in
the diary relating to the case along with the accused for remand purposes.”
this all the case diaries, a copy of the F.I.R. and other relevant papers must
be sent along with the application for remand. This is so required by section
167(1) Cr.P.C.
As to why it is necessary has been laid down in 1954 Cr.L.J. 1317 (All.)
Swami Hari Baranand Saraswati v. the Jailor . “The provisions of section
167(1) Cr.P.C. also indicate to us that the policy of the law is to bring an
independent judgement to bear on the matter, for it is provided in that
section that the Magistrate before whom an arrested person is produced is
also to have before him “a copy of the entries in the diary.” That means the
Magistrate before whom the production has to be made has to scrutinise the
act of others and to see whether the act was legal and proper and further
whether the formalities required by law had been complied with.” The object
is also to see for satisfaction of the Magistrate ‘whether there is any
evidence collected against accused persons before he orders their remand to
custody continuously for months. If the police will not produce their diary to
justify further remand, the Magistrate would be exceeding his authority in
ordering further remand.’ Amuneab v. Tripura Administration, 1961 Cr.L.J.
160.
The failure to sent this record results in presumption adverse to the
prosecution and may prove fatal to the case. It apparently shows that the
police has not written case diaries for want of evidence or was trying to
collect false evidence. The police officer should be very cautious in this
respect. From the omission to send the copies with remand report, it may
reasonably be inferred as held in 1957 Cr.L.J. 1062 (And Pr.) that the entries
in the police diaries had not come into existence by that time.
In Criminal No. 20 of 1953 decided by the Supreme Court on 21-5-1953,
Nar Singh v. State of Punjab , there was a lacuna in the case that the police
had not sent the case diary and other papers for securing the remand under
section 167 Cr.P.C. In this case two accused along with two absconders had
shot deceased who before the death had made a dying declaration before the
head constable of the police. At the time of remand of the accused the case
diaries, the dying declaration and other relevant record was not forwarded
to the Magistrate along with accused. The learned Magistrate gave note
regarding the absence of these papers. The accused were sentenced to death
by the Court of Sessions and the appeal by the Punjab High Court was also
dismissed. The Supreme Court accepted the appeal and both the accused
were set at large. The Hon’ble Justice Das of the Supreme Court who
pronounced the judgement relying upon 1936 I.P.C. 242, 1947 RC. 67 held
that the case diaries must be produced with the remand. A presumption
adverse to the prosecution story was taken, and the part of evidence as in
dying declaration was held doubtful. A very serious view was taken, in 1963
Manipur 12 and in 1964 Manipur 39 for not sending case diaries, etc, with
remand papers. It was held that the Magistrate has no jurisdiction to direct
the detention of the accused “and he may release the accused whether on
bail or without bail.”
The inference against the prosecution cannot be, however, always drawn
against the prosecution for omission to send case diaries. It is a question of
fact as held in Naminapanent 1965 (And. Pr.) 361. “The omission to comply
with the duty under section 167 Cr.P.C. may well be due to the ignorance of
provision or to the erroneous practice of the Magistrates in not requiring it
and of police officers conveniently thinking it to be routine work”. Also see
1966 Kerala 229 Pallasaua Haneefa to the same effect.
Section 167(5) Cr.P.C.–Scope–Investigation contained beyond six months–
Permission for further investigation was not taken from concerned
Magistrate– Infringement of provisions of section 167(5) will not vitiate
entire trial–Evidence collected beyond prescribed period of six months shall
only be rendered in admissible–Acquittal of accused, based on conclusion
that infringement of said section has vitiated entire trial–Not proper. State
of R.P. v. Rehmat Ali, 2000 Cr.L.J. 675 (H.P).
Sections 167(5) and 482 Cr.P.C.–Quashing of criminal proceedings–
Ground of, not completion of investigation within prescribed period under
section 167(5)–Petitioner, a public servant alleged to have committed
offence of criminal breach of trust–Investigation completed but report in
final form not submitted for non-available of sanction order of Government–
Provisions of section 167(5) not attracted–Criminal proceedings cannot be
quashed. Santimoy Chatterjee v. State of W.B., 2000 Cr.L.J. 2406 B (Cal.)
 Section 167(5) Cr.P.C.–Offence triable as summon case–Investigation not
completed within six months–Sanction of Magistrate to continue the
investigation not obtained. Challan presented beyond six months–
Proceedings quashed. Bhim Singh v. State of Haryana, 2002 (1) RCR (Cri.)
596 (P&H).
Section 167(5) Cr.P.C.–F.I.R. lodged under section 7 of Essential
Commodities Act–Investigation not completed within 6 months–Challan put
up in court after three years–F.I.R. quashed–Special Court cannot entertain
and act on a charge sheet or a police report submitted under section 173(2)
of the Code on the basis of investigation conducted after expiry of six
months. Sohan lal v. State of Punjab, 2006 (2) RCR (Cri.) 703) P&H.

Surrender of Accused in Court and Remand

Sometimes an accused person, not arrested by police but wanted in a
case, surrenders in Court. The Magistrate has power to arrest the said
accused, as section 44 (2) Cr.P.C. gives such powers to arrest a person
suspected of having committed an offence. But the Court has no power to
commit him to custody as no power is vested under law in him, if the
Magistrate has not taken cognizance of the case already. It is only in cases
of having taken cognizance that remand to custody under section 309 can be
given. But if Court is already not taking cognizance, then it cannot remand
him to custody. The power to apply for remand is only given to police under
section 167 Cr.P.C., “forward the accused to the Magistrate.” In case a
judicial warrant, etc. has already been issued against then too he can be
taken into custody. See Ram Chandra, 1977 Cr.L.J. 1783(All.) and Kedal 977
Cr.L.J. 1230.
If accused surrenders in the Court, the Court has no power to grant bail
to him if it has jurisdiction under section 437 Cr.P.C. The question arose in
1983 Cr.L.J. 1212, State v. Maguni and relying upon 1980 Cr.L.J. 426
Niranjan Singh (SC) it held so.
The Supreme Court has held that the accused is deemed to be in judicial
custody when he surrenders in Court.

Some useful points in connection with Remand

1. A lawyer can appear for the accused at the time of the remand
(See 1931 Lah. 399). The Court should give time to the accused to
engage a lawyer and hear him.
2. If the accused falls ill while in police custody, he should be given
every facility for taking of medicines, etc. and should be taken to the
hospital. See Punjab Police Rules 26.6.
3. Ordinarily during the period of remand to police custody the accused
should be kept in the police lock-up but there is no bar if the accused
is kept somewhere else, and interrogated. If he is kept somewhere
else, his relatives should, however, be kept informed.
4. For every admission in police lock-up of every person in custody, an
entry must be made in the Daily Diary Register No. 2 of police station
Every prisoner in police custody shall be searched on first admission
to and on every occasion when he is re-admitted to a lock-up after
being taken anywhere beyond the precincts of police station.
5. If any person dies in police custody S.H.O. shall make an immediate
report of the fact into the nearest Magistrate for holding an inquest.
See Punjab Police Rule 26.32 and section 176 Cr.P.C.
6. The detention of a person in police custody for a period longer than 24
hours in contravention of section 167 Cr.P.C. becomes illegal but this
does not affect the power of Magistrate to act under section 167
Cr.P.C. when the person is brought before him to be dealt with under
section 167 Cr.P.C. See 52 Cr.L.J. 233 (1951) M.B. Hedayat Begum v.
State.
 7. If a police officer detains a person for a period longer than that
specified in section 52 Cr.P.C. (24 hours, etc.) he is liable under
section 29 Police Act. 1926 B. 551.

Interview and Dieting of the Accused

It is a fundamental right of the accused to be represented by a lawyer. It
was held in 1963 (2) Cr.L.J. 562 (Manipur) that it was duty of the Magistrate
to ensure at the time of remand that accused knows that the ground of arrest
and to consult and to be defended by a lawyer of his own choice. This right is
guaranteed to him by Article 22 of Constitution of India.
Section 303 Cr.P.C. also says, “Any person accused of an offence before a
Criminal Court, or against whom proceedings are instituted under this Code,
may have right to be defended by a pleader of his choice.”
As such, every opportunity should be given to him to engage one and the
lawyer to have an interview with him. It is no excuse to refuse an interview
with the lawyer that the accused is on remand to police custody as held in
Sunder Singh v. Emp. 1930 Lah. 945 . The police should not try to evade the
interview by removing the accused on remand to police custody to distant
places which nobody knows. This practice was condemned in 1935 Lah. 230
Jahangiri Lall v. Emp. The following facts were not held to be excuses for
refusal of an interview:
1. That he was merely arrested on suspicion 1931 Lah. 13.
2. That his relatives has already interviewed him 1932 Lah. 99.
The interview, however, can be subjected to legitimate restrictions, i.e. It
must be in the presence of police officer or in his view if he is not to hear it.
1935 Cal. 101. Punjab Police Rules 26.28 contains instructions on this point
as follows:
1. “No person shall be allowed to communicate in anyway with a prisoner
in a police lock-up without the permission of the office-in-charge of police
station (as defined in section 2(O) Cr.P.C) or written authority from a
judicial or a superior police officer.
2. Authorised interviews shall take place in the presence and hearing of
the police sentry and the interviewer shall stand sufficiently far from the
bars of the lock-up to prevent physical contact or the passage of prohibited
articles between him and the prisoner. When a lawyer wishes to consult and
advise a prisoner confidentially as to the conduct of his case, the prisoner
may be removed from the lock-up and allowed to sit apart within the
precincts of the police station and in the sight of the entry. At the conclusion
of such an interview the prisoner be searched as provided in sub-rule 26.3
(2) (Punjab Police Rules).
PPR sub-rule 26.3 (2): Every prisoner in police custody shall be searched
on first admission to and every occasion when he is re-admitted to a lock-up
after being taken anywhere beyond the precincts of the police station
sweepers, bhishties and every other person, to her than a police officer
having access to lock-up shall be searched before entering and on leaving.
The searching of a woman shall be done by a woman.”
The food to an accused in police lock-up can be supplied with the
permission of the Court or the office-in-charge of police station. The office-
in-charge is to arrange for the dieting of such accused persons arrested by
police as do not provide their own diet from the time of arrest till he is
placed in magisterial lock-up.
P.P.R. 26.27 (3) says: All food brought for a prisoner by relatives or
friends shall be made over to police station Clerk or H.C. in-charge guard
and shall be examined for prohibited or injurious articles. After such
examination, the food shall be given to the prisoner by a police officer. The
person bringing the food shall have no access to the prisoner.
P.P.R. 26.27 (4). “In the report in the police station daily diary regarding
the first admission of a prisoner to police lock-up it shall be stated whether
he is to be dieted at Government expenses or by friends. In the later case
person who undertakes responsibility for the prisoner’s feeding shall be
entered.



Chapter–13
Bails
Bails according to Cr.P.C. is governed by sections 42(2), (3), 43(3), 50,
56, 81, 169, 170, 171, 389, 436 to 450 Cr.P.C. The offences given in first
schedule of Cr.P.C. are classified as bailable or non-bailable. The schedule
also requires that an attempt or conspiracy to commit offences will be
bailable or non-bailable according to as is the offence attempted or abetted
or conspired. Offences under other laws (Local and Special Laws) will be
non-bailable if punishable with more than 3 years in first schedule part II.

In Bailable Cases
1. In bailable cases, bail can be claimed by the accused as of right and
such person shall be released on bail. Section 436 of Cr.P.C. which governs
such bails is mandatory and the officer-in-charge or the Court or police
officer who makes arrest is bound to release a person on bail. As a matter of
fact the persons contemplated by the section to be taken into custody in
bailable cases cannot be subjected to custody unless they are unable or
unwilling to offer bail or execute personal bonds, the option of which must
be given to the accused. See 48 Cr.L.J. 656-31 Ind. Cases 32.
Section 50 of Cr.P.C. lays down that where a police officer arrests
without warrant any person other than a person accused of non-bailable
offence, he shall inform the person arrested that he is entitled to be released
on bail and that he may arrange for sureties on his behalf.
Only the High Court in exercise of its inherent powers under section 482
of Cr.P.C. can cancel bail in bailable cases, as held in Talab Haji Hussain,
1958 SC 976, grounds being, (i) accused not fair to prosecution, (ii)
defeating justice by suborning witnesses, (iii) intends to flout bail and
escape into foreign country. 1967 S.C. 1639 Rati Lall Bhany . Any other Court
can also refuse a person bail, where he has failed to comply with the
conditions of the bail bond as regards the time and place of attendance by
absenting himself and appears on a subsequent occasion before the Court
and is brought in custody, section 436(2) of Cr.P.C.
2. An officer-in-charge or Court, may if he or it thinks fit, may and shall,
if such person indigent and is unable to furnish surety instead of taking bail
from such person, in bailable offences, discharge him on his executing a
bond without sureties for his appearance. Section 436(1) Proviso.
3. The provisions of section 116(3) of Cr.P.C. are not subject to or
controlled by section 436 of Cr.P.C. (Proviso). All persons arrested under
section 107/151 Cr.P.C. are not to be released on bail by the police. They
must be produced in custody before the Court. The persons arrested under
section 41(2) Cr.P.C. (Section 109 and 110) should be given the option of
release on bail. 14 All. 45. Bail during enquiries under section 107. See
Preventive Measures.
4. In the bailable offences, the conditions cannot be attached to orders of
bail bonds. The Court has no power to impose conditions except demanding
security 1949 Mad. 77- 49 Cr.L.J. 640.
 The accused offering bail must be released unconditionally, 1949 Cal.
582. No restraint can be fixed in bailable offence by the Courts as was held
in 1950 All. 525. It was further held that the order granting bail can just fix
the amount for which the accused is to furnish bond and the number of
sureties to be furnished and the amount for which each of the sureties to
furnish the bond.
In bailable offences, bail may be claimed as a right whereas in non-
bailable offence, court is to exercise judicial discretion on a consideration of
the totality of the facts and circumstances of a given case. Vikas v. State of
Rajasthan, 2013(12) JT 113(SC).

Cancellation of Bail in Bailable Cases

Bail granted by Magistrate in bailable offences can only be cancelled by
the High Court or the Court of Sessions if the accused misuses his liberty on
bail. The Magistrate cannot. Held so in 1983 (1) C.L.R. 505; In which case
the accused a woman on bail was not attending police for her medical
examination. The Supreme Court also held so in JanardhanYadav, 1978
Cr.L.J. 1318. Bail cannot be cancelled even though accused intimidating or
misbehaving by Magistrate. 1988 Cr.L.J. 688.
Bail amount–Reduction in accused charged for offences under section
224/120B I.P.C.–Accused is an unemployed youth–Demand of Bail bond of
Rs. 10,000/- with two sureties of like amount. Is excessive–Bail amount
reduced to Rupees 5,000/- with one surety of like amount in exercise of
inherent jurisdiction under section 482 . [Link] Rao v. The State, 1998
Cr.L.J. 1898.
Bail–Accused released on bail shall not be compelled to appear before
Court on every date of hearing till filing of charge sheet. Thirumalegowds v.
The State 1995 Cr.L.J 823.
Section 436–Bail in bailable offence–No condition can be imposed–In the
instant case cheque of Rs. 2 crores dishonoured–Accused granted bail
subject to condition that he will inform court regarding date of departure
and date of return–Mere direction for supply of information would not
amount to a condition for grant of bail. Sushil Suri v. State, 2006 (3) RCR
(Criminal) 356 (Delhi).
 Section 436 of Cr.P.C.–Bail–To seek bail in respect of bailable offences is
a matter of right–Insistence of personal bond and surety is matter of
discretion of court–Police officer has also the jurisdiction to release the
person on bail with or without surety. Chowriappa Constructions v. Embassy
Construction & Dev. Pvt. Ltd., 2002 Cr.L.J. 3863.
Section 436–Grant of bail in bailable offence–Court will insist on sureties
if the person is not indigent–However, if the person is able to make out a
case that he is an indigent and is unable to furnish a surety, then the court
may release him on his executing a bond without sureties. Sushil Suri v.
State, 2006 (3) (Cr.) 355 (Delhi).
Section 436 of Cr.P.C.–The position of the law is that a person who is
alleged to have committed a bailable offence has an unfettered and absolute
right to be enlarged on bail and the court or the police officer concerned, as
the case may be, has no discretion to grant or refuse bail. Subject to first
proviso to sub-section(1) of section 436 of the Cr.P.C., the court may
modulate the condition of bail as regards the bail amount and the numbers of
sureties. However, the court cannot impose a condition which is not a term
as to the bail. The condition of requiring a person accused of a bailable
offence to surrender his passport to the court is not a term as a bail. If in
such a case a condition is imposed that bail is granted subject to condition of
deposit of passport, such a condition will defeat the absolute right of the
accused under section 436(1) of Cr.P.C. to be set at liberty. Sultan
Kamruddin Dharani v. Union of India 2009(2) Crimes 309.
Section 436(2) Cr.P.C.–Bail in bailable offences–Person is entitled to be
released on bail pending trial–He would forfeit his right to be on bail if his
conduct subsequent to his release was prejudicial to a fair trial–Court has to
find out, however, whether now appearance before court was intentional
with object to frustrate the trial or was because of some unavoidable
circumstances–Petitioner having appeared before court and facing trial in a
case under section 138 NI Act absented from trial and was declared
proclaimed offender–Plea that he stopped appearing on a wrong advice of his
advocate–He had been in custody for three months–Deserved to be released
on bail. Bhupinder Singh Chhabra v. State of Punjab, 2011(4) Crimes 728.
Section 436(2) Cr.P.C.–The right of a person to be released on bail in a
case involving bailable offence would not be available if he fails to comply
with the conditions of the bond. After having violated the conditions of the
bail bond, the accused cannot say that he has an indefeasible right to be
released on bail under sub-section (1) of section 436 Cr.P.C. The right of the
accused to be released on bail under section 436(1) would be available only
so long as he complies with the conditions of the bail bond. Wilson v. State
of Kerala, 2011(3) Crimes 622.
Section 436 Cr.P.C.–Issue of non-bailable warrants of arrest by trial court
in bailable offence–Revision–Petitioner accused seems to have evaded
service of summons for a long time and once he had been released on bail–
Sureties withdraw from bond and petitioner absented from the date of
hearing before court–No illegality in trial court issuing non-bailable
warrants against accused. Chandrasekar Patil v. Kannan, 2012(1) Crimes
620.
Section 436 Cr.P.C.–Ordinarily accused should be released or bail soon after his
arrest or appearance before the court if he furnishes proper explanation for his non-
appearance on previous date. Further, no accused ordinarily shall be detained for
period of more than one half period of maximum sentence provided for offence for
which accused is facing trial unless courts directs otherwise. Bhupinder Singh Chhabra
v. State of Punjab, 2012(1) LRC 447 P&H.
These are the necessary components required to be considered before granting of
bail–(1) The nature of accusation and the severity of punishment in case of conviction
and the nature of supporting evidence. (2) Reasonable apprehension of tampering of the
witness or apprehension of threat to the complainant (3) Prima Facie satisfaction of the
court in support of the charge. Suman Pandey v. State of U.P., 2007(3) JT 348; 2007(2)
Crimes 155 SC.
At the stage of granting bail court cannot go into the question of credibility and
reliability of the witnesses put up by the prosecution. He can only go into the question
of prima facie case established for granting bail. Satish Jaggi v. State of Chhatisgarh,
2007(5) SCR 1049.
In the instant case, it has been decided that when it is proved that accused neither
tampered evidence nor unduly influenced the prosecution witnesses at the time when
investigation of the case was running on the bail of accused applicant was granted on
the basis of principle “Grant of bail is rule and refusal is exception”. Data Ram Singh v.
State of U.P., 2018 Cr.L.J. 2316 SC.
In this case, the Supreme Court directed to state after considering the fact that
there is inhuman conditions in prisons that state must take appropriate steps for release
of under-trial prisoners & convicts who have undergone their sentences or are entitled
to release because of remission granted to them. 2016 Cr.L.J. 1589 SC.
Section 436A–A Higher can direct conclusion of proceedings in a fixed time if there
is violation of right of speedy trial instead of quashing the proceeding. Hussain v. Union
of India with Ashu v. State of Rajasthan, 2017(5) SCC 702; 2017 Cr.L.J. 2234 SC.

Anticipatory Bail
In non-bailable cases, sometimes question arises whether anticipatory
bail can be granted to a person who is yet to be arrested or who apprehends
arrest. Section 438 Cr.P.C. lays down: “(1) Where any person has reason to
believe that he may be arrested on accusation of having committed a non-bailable
offence, he may apply to the High Court or the Court of Session for a direction under
this section that in the event of such arrest he shall be released on bail; and that court
may, after taking into consideration, inter alia, the following factors, namely:—
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has
previously undergone imprisonment on conviction by a court in respect of any
cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating
the applicant by having him so arrested, either reject the application forthwith or
issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has
not passed any interim order under this sub-section or has rejected the application for
grant of anticipatory bail, it shall be open to an officer in charge of a police station to
arrest, without warrant the applicant on the basis of the accusation apprehended in
such application.
(1A) Where the court grants an interim order under sub-section (1), it shall forthwith
cause a notice being not less than seven days notice, together with a copy of such order
to be served on the Public Prosecutor and the Superintendent of Police, with a view to
give the Public Prosecutor a reasonable opportunity of being heard when the
application shall be finally heard by the court.
(1B) 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.
(2) When the High Court or the court of Session makes a direction under sub-section
(1), it may include such conditions in such directions in the light of the facts of the
particular case, as it may thinks fit, including—
(i) a condition that the person shall make himself available for
interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the
 facts of case so as to dissuade him from disclosing such facts to the
court or to any police officer;
(iii) a condition that the person shall not leave India without the previous
permission of the court;
(iv) such other condition as may be imposed under sub-section (3) of
section 437, as if the bail were granted under that section.
(3) If such person is, thereafter, arrested without warrant by an officer-
in-charge of police station on such accusation and is prepared either at the
time of arrest or at anytime while in the custody of such officer, to give bail,
he shall be released on bail, and if a Magistrate taking cognizance of such
offences, decides that a warrant should issue in the first instance, against
the person, he shall issue a bailable warrant in conformity with the direction
of the court under sub-section (1) then it shall be bailable.
Section 438 of the Code applies to all non-bailable offences and not
merely to offences punishable with death or imprisonment for life, it is also
to be remembered that applicability of the section is not confined to offences
exclusively by the Court of Session. There is no indication in section 438 of
the Code for justifying a hiatus to be made among non-bailable offences
vivisecting those punishable with less than life imprisonment. No doubt such
a classification is indicated in section 437(1) of the code, but that section is
concerned only with post-arrest bail and not pre-arrest bail. State of A.P. v.
Bimal Krishnakundu & Another, 1997 Cr.L.J. 4056.

Blanket Bail
The scope of anticipatory bail was considered by the Full Bench of Punjab
and Haryana High Court in Gurbakhash Singh Sibia, 1977 C.L.R. 306-1978
Punjab I and guidelines laid down for consideration of granting anticipatory
bail.
This Full Bench Case was reversed by the Supreme Court in Gurbakhash
Singh Sibia, 1980 Cr.L.J. 1125 and it was held that restrictions imposed by
Full Bench of Punjab High Court are not applicable. The power to grant
anticipatory bail cannot be subjected to restrictions as suggested. The
liberty of individual granted under Article 21 of the Constitution of India
cannot be overlooked. The legislature even did not lay down such
restrictions. The High Court and the Sessions Courts have wide powers of
discretion to grant anticipatory bail. No blanket bail should, however, be
granted generally. Discretion should be used judicially.
Therefore, now anticipatory bail can be moved in any case.

When Anticipatory Bail can be Granted

(i) When accused apprehends arrest: mere ‘fear’ is not belief– Gurbax
Singh, 1980 Cr.L.J. 1125 SC.
(ii) Even when non-bailable warrant had been issued against him by
Magistrate in a complaint. The Court granting bail under section 438
can direct the Magistrate to issue bailable warrant instead. Balwant
Singh, 1983(1) C.L.R 473 . It can be granted after the Criminal Court
has taken cognizance and issued process (Warrant issued), 1986
Cr.L.J. 1303 (FB) A.P.
(iii) In cross case when complaint is filed though under section 302, even
when non-bailable warrant issued under section 204 Cr.P.C. while
summoning such accused. Naurang Singh, 1984 (1) C.L.R. 545.
(iv) If offence committed in other State, no anticipatory bail by other
High Court, Ravinder Mohan, 1984 Cr.L.J. 114 (Punjab).
(v) Anticipatory bail can be granted by the other High Court, 1982
Cr.L.J. 61 (Cal.).
(vi) Anticipatory bail in rape case may be granted when the case is
unusual and allegation puzzling, Abdul Mazid, 1981 Cr.L.J. 1316.
 (vii) If he resides in the jurisdiction of that the High Court though offence
committed outside in another State , Dr. L.R. Naid, 1984 Cr.L.J. 757
(Kar).
(viii) Only for a limited duration where after he should apply to the other
High Court, 1984 Cr.L.J. 757.
(ix) Section 438 does not permit the grant of anticipatory bail by any
High Court or the Court of Sessions within the country where the
accused may choose to apprehend arrest. Such a power vests only in
the Court of Sessions or the High Court having jurisdiction over the
locale of the Commission of offence of which the person is accused.
Question of residence of accused is irrelevant 1986 Cr.L.J. 605 (FB)
Patna Sayed Zafar-UL-Hasan (1985 Cr.L.J. 1754) Pat. overruled,. res.
1980 Cr.L.J. 1174 (Delhi), 1982 Cr.L.J. 61 (Cal.) and 1984 Cr.L.J. 757
(Kat) dissented. Since the section does not say High Court or any the
Sessions Court. Even provisions of Central General Clauses Act and
State General Clauses Act say that territorially of the Courts is basic
rule.
(x) Anticipatory bail in dowry death. Matter under investigation. Not
prudent for High Court to release on bail. 1987 S.C. 737, Surinder
Singh.
(xi) In a murder case, where investigation is in progress, anticipatory
bail should not be allowed. The matter should be left to the Trial
Court to decide it according to the records when such accused
person is arrested. The order of the High Court granting bail was
quashed. Kiran Devi, 1988 SCC 106.
(xii) Power is not controlled by limitations under section 437(1)
Anticipatory bail can be granted in a case of murder 1989 Cr.L.J.
2405.
(xiii) Anticipatory bail can be granted even after either summons or
warrant is issued by Magistrate. [Link] [Link] v. State of
Maharastra 199 SC Cr.L.J. 3969 Bom.
(xiv) Anticipatory Bail–Need not be limited to a specified period–It is
operative till conclusion to trial, unless it is cancelled under section
439 Cr.P.C. However, court may limit its operation for short period,
if there are reasons for doing so. Natturasu v. The State of
Maharashtra, 1998 Cr.L.J. 1762 Mad.
(xv) Anticipatory bail–Accused person apprehending arrest by Magistrate
for remanding him to custody under section 209 Cr.P.C.–Can invoke
under section 438 Cr.P.C. Natturasu v. The State, 1998 Cr.L.J. 1762
Mad.
(xvi) Anticipatory bail–Granted subject to deposit of Rs. 10 Crore.
Condition order passed is erronous since discretion to grant bail is
not exercised judicially Avinash Arora v. State of U.T. Chandigarh,
2000 Cr.L.J. 4674 SC.
The Supreme Court in Bal Chand Jain, 1977 SC 366 said that there should
be special case made out for anticipatory bail.
Two conditions must exist for moving an application under section 438
Cr.P.C. In the first place, there must exist a ground to believe that he may
be arrested and secondly there must be an accusation of his having
committed a non-bailable offence.
Residence of accused is not a relevant factor in deciding the Forum for
anticipatory bail. It may be granted by the Court of Session or the High
Court within whose jurisdiction crime has been alleged to be committed and
this anticipatory bail would ensure beyond the territorial limits of the court.
Bail may be granted where the accused is sought to be arrested. But then
the court is to direct that in a case of his release in the State, he may be
released on bail, the High Court will not extend the relief to arrest beyond
the limit of the State C.T. Mathen, 1985 Cr.L.J. 1316 (Ker).
But in Dr. Pradip, 1990 Cr.L.J. 2055 (MP), it has been decided that
anticipatory bail application lies in the court within whose jurisdiction
offence was committed not where the delinquent resides or apprehends his
arrest.
No Court other than the High Court or Court of Sessions can grant
anticipatory bail. Both the jurisdictions are concurrent. Either of the Courts
can be moved for bail. There is no bar that one must first apply to the Court
of Session for anticipatory bail before moving High Court. Onkar Nath, 1976
Cr.L.J. 1142 (F.B.) All. Section 438(1) Cr.P.C. is wide enough to confer
jurisdiction not only on the High Court or the Court of Session within whose
territorial jurisdiction the offence has been committed and it is to be
enquired into or tried but also the High Court or the Court of Session where
a person has reason to believe that he may be arrested in connection with
the commission of non-bailable offence. Furthermore, the issue of
anticipatory bail involves the question of personal liberty of the individual.
So, the place where arrest is sought to be made i.e. the place where the
personal liberty is sought to be deprived of by the police also determines
jurisdiction for granting bail under section 438 Cr.P.C. as also writ petition
under Article 227 Constitution of India, Capt Satish Sharma, 1991 Cr.L.J.
950 (Del). The view of the Rajasthan High Court as reported in Haji Alisher,
1976 Cr.L.J. 1658 is that the Session Court should be moved first unless
there are exceptional or special circumstances to move the High Court.
Further surrender of accused cannot be insisted upon for hearing
anticipatory bail. Application for anticipatory bail to the High Court can be
made even when rejected by the Sessions Court. Avtar Singh, 1971 C.L.R.
(Punjab) 299. Ex parte interim bail can be given without notice to State
which can be confirmed later after notice. Bal Chand Jain Supra. For other
Courts, the Word ‘appears’ in section 437(1) has been interpreted to be that
there must be some restraint on accused or a warrant must have been issued
against him. No other Court, therefore, can release on anticipatory bail,
1950 E.P. 53 (KB). Normally, the Court of Session, should be first
approached. Chhaju Ram, 1978 Cr.L.J. 608 (Punjab).
Even in Bailable cases according to State v. Baswanath Rao, 1966 Mys.
71, the anticipatory bail cannot be granted by the court, merely on
possibility of accused being arrested, if in fact he has not been arrested, nor
detained, nor any order is issued under section 55 Cr.P.C. for his arrest.
Anticipatory bail can be granted to accused in case, falling under Rule
184 of Defence and Internal Security of India Rules 1971. Held so in 1977
S.C. 366 Balchand Jain Supra.
Anticipatory bail can only be cancelled if person is interfering with course
of justice by tampering with witnesses or he was abusing this liberty or
misusing his privilege. 1988 Cr.L.J. 333.
Anticipatory bail is not to be granted as a matter of rule. Narsing Lal,
1977 Cr.L.J. 1776. Police arrest after an anticipatory bail order is wrongful
confinement–Jethmal, 1984 Cr.L J. 549.
Anticipatory bail continues till the conclusion of trial or till it is
cancelled. B.L. Verma, 1979 Cr.L.J. (NOC) 190 (MP).
Anticipatory bail–Grant of conditions imposed–Must have nexus with
object of stipulating those conditions. V. Satyanarayana v. State of A.P.,
2000 Cr.L.J. 605 (AP).
Anticipatory bail–Application for–Detection not to arrest during pendency
of application under section 438 cannot be given. Mirza Yakub Baiq v. State
of Orissa, 1999 Cr.L.J. 1502.
Anticipatory Bail–Application for–Maintainability case where summons
only have been issued against accused person–Application for anticipatory
bail, even is such case is maintainable. P.V. Navasimha Rao v. State (CBI),
1997 Criminal 961 (Delhi).
Section 438 Cr.P.C.–Petition for grant of anticipatory bail–While
considering a plea for anticipatory bail, the correctness or otherwise of the
allegations depending upon the circumstances of each case are to a large
extent irrelevant–The court, while considering a plea for anticipatory bail,
examines the prayer, by taking into consideration the nature of alleged
offence, the seriousness/gravity thereof, the context of the events, the
likelihood of the accused absconding, and/or interfering with the process of
investigation, offering in documents of the witness, etc.–The grant or denial
of anticipatory bail is in no manner connected to the guilt or innocence of
accused and is confined to the consideration of the facts obtaining in the
context of law applicable. Shashi Singh v. State of Haryana, 2006 (3) RCR
(Cr.) 625.
Section 438 Cr.P.C.–Grant of anticipatory bail–Court must be satisfied
that a fit case had been made out for exercise of such discretion–The court
has to make an effort to strike a balance between the individuals right to
personal freedom and the investigational rights of the police–Order granting
anticipatory bail must show reasons. Ganesh Raj. v. State of Rajasthan, 2006
(1) Apex Criminal 637.
Section 438 Cr.P.C.–Anticipatory bail–Power exercisable under section
438 is somewhat extraordinary in character and it is only in exceptional
cases where it appears that the person may be falsely implicated or where
there are reasonable grounds for holding that a person accused of an offence
is not likely to otherwise misuse his liberty then power is to be exercised
under section 438 Cr. P.C. Adri Dharan Das v. State of W.B., 2005 Cr.L.J.
1706 SC.
Section 438 Cr.P.C. Anticipatory bail–An order under section 438 Cr.P.C.
can be passed after examining each case cautiously and carefully in as much
as it is an order converting a non-bailable offence into a bailable one and
protecting a person for sometime from going to the Custody after the arrest.
Shamim Ahmad v. State, 2003 Cr.L.J. 2815 (Cal) (FB).
Section 438 Cr.P.C.–Offence under section 406 and 420 IPC–Accused
granted anticipatory bail with condition that he will deposit Rs. 15 lacs in
name of trial court–It is unreasonable condition–Accused directed to execute
bond to the tune of Rs. 25,000 with two solvent sureties–Expression “Such
condition” occurring in section 438 (1) should not be unreasonable and
should not be difficult for accused to comply with. Amarjit Singh v. State of
NCT of Delhi, 2002 (2) RCR (Criminal) 543 ( SC).
Section 438 Cr.P.C.–Constitution of India Artcile 21–Large number of
cheating cases pending against accused–Accused granted anticipatory bail in
two cases–Accused not entitled to be released in view of production warrants
issued by different courts–There is no violation of right of accused under
Article 21 of Constitution–Issuance of production warrants by the court and
the production of accused in court, in cases where he is involved is a
procedure established by law and consequently, the accused cannot be
permitted to make a complaint of infraction of his rights under Article 21.
Narinderjit Singh Sohni v. Union of India, AIR 2001 SC 3810.
Sections 438 and 439 Cr.P.C.–Grant of anticipatory bail under section 438
Cr. P.C. is for limited duration during which the regular court has to be
moved for bail. Adri Dharan Das v. State of W.B., 2005 Cr.L.J. 1706 ( SC).
Sections 438 and 439 Cr.P.C.–Anticipatory bail and regular bail–If an
accused is granted anticipatory bail under section 438 Cr. P.C. it is for
limited duration during which accused has to move for regular bail under
section 439 Cr.P.C.–Accused can apply for regular bail only after
surrendering to custody. Sunita Devi v. State of Bihar, AIR 2005 SC. 498.
Sections 438 and 439 Cr.P.C.– IPC Section 306, 498 and 302–Anticipatory
bail granted to accused in an offence under section 306 and 498A I.P.C.–
Offence changed to 302 I.P.C.–Accused has to seek fresh bail–Benefit of bail
earlier granted to accused is not available–With the change of the nature of
the offence, the accused becomes disentitled to the liberty granted to him in
relation to a minor offence, if the offence is altered for an aggravated crime.
Prahlad Singh Bhati v. NCT Delhi, AIR 2004 SC 1444.
Section 438 Cr.P.C.–Parameters for grant of anticipatory bail in offence
under section 376, 376(2)(g) I.P.C. are required to be satisfied–A case of this
nature should be allowed to be fully investigated. Once a criminal case is set
in motion by lodging an information in regard to the commission of the
offence in terms of section 154 Cr.P.C., it may not always be held to be
imperative that all the accused persons must be named in the F.I.R. It has
not been denied nor disputed that the prosecutrix does not bear any
animosity against the respondents. Prosecution giving detailed account of
occurrence corroborated by other witnesses–Hence, evidence of prosecutrix
could not be rejected outrightly at this stage. State of Maharastra v. Mohd.
Sajid Husain, Mohd. S. Husain, 2007(4) Crimes, 2006 (SC).
Section 438 Cr.P.C.–When an application for regular bail made by the
respondent is pending before the concerned court, it would not be
appropriate to go into the various aspects. Hence, it is not proper to grant
anticipatory bail. State of Gujarat v. Narendra Kumar Amin, 2007(3) Crimes
365 SC.
Section 438 Cr.P.C.–Anticipatory bail–Offences under section 498A and
406 I.P.C. registered against petitioners, husband and parents in-law of
complainant–Interim bail continued in favour of petitioner as several rounds
of conciliation had taken place between parties and still possibility was there
that parties may reconcile–Petitioners offering to pay Rs. 15,000/- towards
maintenance for complainant and her child–Fit case of grant anticipatory
bail to petitioner paying maintenance every month and with further
conditions. Ramavatar v. State of M.P., 2007(3) Crimes 110.
Section 438 Cr.P.C.–Section 438 of the Code makes special provision for
granting “anticipatory bail”. The expression has not been defined in the
Code. But “anticipatory bail” means a bail in anticipation of arrest. The
expression anticipatory bail is a misnomer inasmuch as it is not as if bail
presently granted in anticipation of arrest–Where a Competent Court grants
“anticipatory bail”, it makes an order that in the event of arrest, a person
shall be released on bail. There is no question of release on bail unless a
person is arrested and, therefore, it is only on arrest that the order granting
anticipatory bail becomes operative. Union of India v. Padam Narain
Aggarwal etc., 2008(4) Crimes 177 SC.
Section 438 Cr.P.C.–The direction under section 438(1) must be clear and
specific and not vague and general. No blanket order of bail can be passed
by a court while exercising power under section 438 of the Code. Normally,
no direction should be issued to the effect that the applicant should be
released on bail “whenever arrested for whichever offence whatsoever”. An
order under section 438 is a device to secure the individual’s liberty, it is
neither a passport to the commission of crimes nor a shield against any and
all kinds of accusations likely or unlikely. Union of India v. Padam Narian
Aggarwal, etc. 2008(4) Crimes 177 SC.
Section 438 Cr.P.C.–Parameters for exercise of power under section 438
Cr.P.C. are well settled–Where High Court not followed said parameters in
that case the impugned order are liable to set aside with directions.
Mohinder Kaur v. State of Punjab, 2008(2) Crimes 124 SC.
Section 438 Cr.P.C.–Anticipatory bail–Registration of F.I.R. against
appellant and 13 other accused for alleged commission of offence punishable
under section 406, 409, 420, 439, 471, 473(a), 120B of I.P.C. and section 46
of Banking Regulation Act. Plea of appellant aged about 75 yrs. that since he
was suffering from various ailments anticipatory bail ought to be granted to
him. According to Doctor’s report appellant had severe osteoarthitis below
knee and deformities at knee. The report further stated that the appellant
had sustained fracture of ankle with heavy diabetic and had hypoesthesia
and anesthesia. It was highlighted in the said report that appellant had
danger of having bedsores, pressure sores without specialized treatment, the
diseases may lead to his death. Evidence indicated that there were as many
as 49 accused, who were arrested and each one of them had already been
enlarged on bail. In view of facts and circumstances of case and more
importantly, having regard to health of appellant, held that in the interest of
justice appellant is enlarged on bail subject to certain conditions.
Sureshchandra Raman Lal v. State of Gujarat, 2008(2) Crimes 338 SC.
Section 438 Cr.P.C.–Anticipatory bail–F.I.R. had not been lodged–
Distinction between “reason to believe” that a person may be arrested for a
non-bailable offence and mere fear for arrest–The “reason to believe” shows
that the belief that the applicant may be so arrested must be founded on
reasonable grounds. Mere “fear” is not “belief”. The grounds on which, such
belief is based, must be capable of being examined by the court objectively–
Material to indicate that apprehension in mind of petitioners, who were the
parents that they could be arrested for offence under section 498A I.P.C.
was not ill founded– Fit case to allow anticipatory bail. Shyam Sunder
Jhanwar v. State of Orissa, 2008(2) Crimes 6.
Section 438 Cr.P.C.–Anticipatory bail–Offence registered under section
376 I.P.C.–Prosecutrix was 26 years. old a married woman–Accused was
alleged to have mixed something in the tea and prosecutrix became
unconscious and applicant raped her–Delay of 18 days in reporting matter to
police–Prosecutrix had earlier lodged similar report against another person
who was acquitted–Advocate of prosecutrix had offered money to police for
taking action–Fit case to allow anticipatory bail to applicant. Brij Mohan
Verma v. State (NCT of Delhi, 2008 (2) Crimes 551.
Section 438 Cr.P.C.–Anticipatory bail–Petitioner on assurance of marriage
kept physical relationship with informant complainant who convicted F.I.R.
was lodged for offences under section 493/506 I.P.C.–Offence could fall
under section 376 I.P.C. also–Nothing brought on record that informant was
medically examined and found to be pregnant– Prima facie no case of sexual
relationship between informant and petitioner appeared to have been
brought out–Investigation being in progress, petitioner did not deserve to be
given anticipatory bail. Managobinda Kishan v. State of Orissa, 2008(1)
Crimes 232 (Ori).
Section 438 Cr.P.C.–Anticipatory bail–Prayer to enlarge petitioner on bail
in case of their arrest in offences under section 153A, 153B, 295A/34 I.P.C.
if it were registered based on newspaper publication. Blanket order of
anticipatory bail in all future cases to be registered against petitioner in the
State could not be granted. B. V. Seetharama v. State of Karnataka, 2008(1)
Crimes 518.
Section 438 Cr.P.C.–Anticipatory and regular bail–In relation to certain
loans by Directors/Employees, accused were named to be responsible for
pilferage or destruction of documents–They were alleged to have cheated
Bank by sanctioning bogus loan proposals and misappropriated the amount–
Rule of bail and not jail could not be read in disjunction with primary rule
that where sentence attracted was of life imprisonment, liberty by way of
bail was to be earned and not a natural fall out–Sections attracted were
sections 464, 471, 409, 420 and 468 I.P.C.–Section 437(1) Cr.P.C. was prima
facie attracted and accused did not deserve anticipatory bail–Relatives of
Directors/Employees were entitled to anticipatory bail. Dattatray v. State of
Maharashtra, 2009(3) Crimes 745.
Section 438 Cr.P.C.–Anticipatory bail–Power to grant such bail in
somewhat extraordinary in character and is to be exercised in exceptional
circumstances– Petitioner and co-accused were reported absconding against
offence of dowry death under section 498A and 304B–Not a fit case to grant
anticipatory bail to applicant. Sunil v. State of NCT of Delhi, 2009(2) Crimes
96 (Del).
Section 438 Cr.P.C.–Anticipatory bail–Maintainability where charge sheet
was filed and court issued process–Exceptional circumstances may arise in
which exercise of power by Sessions Court or High Court may be warranted–
Ordinarily, when charge sheet is filed, it is for court which has to try the
case that has to deal with application for regular bail–Normally, it should be
left to discretion of court dealing with case to consider the question of
granting bail–Court had taken cognizance of charge sheet under section 143,
147, 148, 149, 323, 324, 302 and 120B I.P.C.–No exceptional circumstances
justifying exercise of jurisdiction under section 438 Cr.P.C. Vineeth
Somarajan v. State of Kerala, 2009(4) Crimes 701 (Ker.).
Section 438 Cr.P.C.–The condition precedent of depositing a heavy
amount for grant of anticipatory bail is onerous and the approach of the
High Court was incorrect. Ramathal v. Inspector of Police, 2009(1) Crimes
475 SC.
Section 438 Cr.P.C.–Anticipatory bail–Scope and ambit of–No blanket
order can be passed under section 438 Cr.P.C. to prevent the accused from
being arrested at all in connection with the case–Anticipatory bail should be
of limited duration only and primarily on the expiry of that duration or
extended duration. The court granting anticipatory bail should have it to the
regular court to deal with the matter on an appreciation of evidence placed
before it after investigation has made progress or charge sheet is submitted–
The accused, against whom charge had been framed, cannot avoid appearing
before the court. HDFC Bank Ltd. v. J.J. Mannan, 2010(1) Crimes 34 SC.
Section 438 Cr.P.C.–Anticipatary bail–Bail application cryptic and benefit
of necessary facts details–Accused is not entitled to put forward anything on
facts in arguments without any supporting data or reward. Dr. K.A. Koshy v.
State of Kerala, 2010(2) Crimes 353.
Sections 438 and 482 Cr.P.C.–Petition for grant of anticipatory bail and
for setting aside the order whereby Magistrate issued process under section
82 and 83 Cr.P.C.–Case registered was under section 498A and 304B/34
I.P.C. and petitioner were the father and mother-in-law of deceased–
Deceased got married to son of petitioners on 3.2.2008 committed suicide on
18th Nov. 2008 night by hanging from ceiling fan in matrimonial home–F.I.R.
was registered on 19.11.2008 and now charge sheet has been filed–Suicide
note was sent to handwriting expert for examination pursuant to order
passed by High Court in separate writ petition where it has been stated by
the petitioner that investigation was not being done fairly–Report of
handwriting expert confirmed that deceased wrote three suicide notes,
report was not before court when impugned order issuing processes under
section 82 and 83 or while dismissing the anticipatory bail application were
rejected–Order under section 82 and 83 Cr.P.C. was liable to set aside and
Trial Court to decide the regular bail and till then petitioners not to be
arrested. Saroj Pandey v. State (Govt. of NCT of Delhi), 2010 (1) Crimes 215.
Section 438 Cr.P.C.–Application for grant of anticipatory bail by
appellant, Rejected by High Court third time challanged–Approach adopted
by High Court was wholly erroneous–The application for anticipatory bail
had been rejected without considering the case of the appellant solely on the
ground that challan had now been presented–The salutary provision
contained in section 438 Cr.P.C. was introduced to enable the court to
prevent the deprivation of personal liberty–Not permitted to be petitioned on
technicalities such as “The challan having been presented, anticipatory bail
cannot be granted”. On application, court must apply its own mind and
decide when the case is made out for granting such relief. Appeal allowed.
Ravindra Saxena v. State of Rajasthan, 2010 (1) Crimes 30 SC.
Section 438 Cr.P.C.–Anticipatory bail–Session Judge declined to invoke
section 438 Cr.P.C. in favour of co-accused but directed that accused shall
surrender before Magistrate they shall be released on bail–Direction could
only be treated as one falling under section 438 Cr.P.C. Since it was issued
in anticipation of a deemed arrest or appearance of accused in Magistrate
Court. Moideen Kutty v. State of Kerala, 2009 (3) Crimes 81.
Section 438 Cr.P.C.–Anticipatory bail cannot be claimed on mere asking–
Provision is to prevent innocent persons from being unnecessary harassed
with frivolous case instituted on basis of some notification or accentuated
rivalry–Petitioner a teacher, hit girl student of 5th class by duster three
times in her head and student died in hospital–Child was hit as she was
exhibiting drowsy posture in class and she said that she was unwell–Not a fit
case for granting anticipatory bail. Rekha Bhakat v. State, 2010(2) Crime
759 (Cal.).
Section 438 Cr.P.C.–Anticipatory bail–Appellant with co-accused were
alleged to have assaulted victim with cemented tile stone resulting in head
injury–Co-accused were granted regular bail–Plea of petitioner that injured
had not named petitioner in her statement–I.O. claimed to have recorded
statement of injured but without obtaining opinion of doctor that injured
with fit to give statement–Investigation transferred to other I.O.–Petitioner
deserved to be given anticipatory bail protection. Younis Ali v. State, 2010
(1) Crimes 114 (Del).
Section 438 Cr.P.C.–Anticipatory bail–Bail application cryptic and berefit
of necessary fact and details. The right of the accused not to disclose his
defence does not extend to such an extent that he need not state the relevant
facts in the bail application. The accused is not entitled to put forward
anything on facts in the arguments without any supporting data or record.
The bail application should contain the pleadings as in an appeal or revision
in a civil case. But the necessary facts, not borne out by the F.I.R., remand
report and case diary, on the basis of which the petitoner in a bail
application desires the court to grant relief, should be stated by him in the
bail application. Dr. K. A. Koshy v. State of Kerala, 2010(2) Crimes 355
(Ker.)
Section 438 Cr.P.C.–F.I.R. not yet registered–Defacto complainant gave
complaint to police and petitioner was being issued notices to appear before
police–For registration of case it was not necessary to summon petitioner
every now and then and such practice was liable to be deprecated–It is a fact
that no crime was registered. It is not a bar to grant anticipatory bail order–
Apprehension of arrest entertained by petitioners was reasonable and
genuine–Anticipatory bail granted. Seyad v. State of Kerala, 2010(1) Crimes
675 (Ker.).
Section 438 Cr.P.C.–Mentioning a wrong provision of law in F.I.R. could
not be a ground for rejecting prosecution case and could not be a ground for
granting anticipatory bail–Petitioner not entitled to discretionary remedy
under section 438 Cr.P.C. Prakash v. State of Kerala, 2010(1) Crimes 493.
Section 438 Cr.P.C.–Anticipatory bail–Appeal against order passed by
High Court declining bail to appellant. It is a settled legal position
crystallized by the Constitution Bench of Court in Sibbia’s case that the
courts should not impose restrictions on the ambit and scope of section 438
Cr.P.C. which are not envisaged by the legislature–The court cannot rewrite
the provision of the statute in the garb of interpreting it. Once the
anticipatory bail is granted then the protection should ordinarily be
available till the end of the trial unless the interim protection by way of
grant of anticipatory bail is curtailed when the anticipatory bail granted by
the court is cancelled by the court on finding fresh material or
circumstances or on the ground of abuse of indulgence by the accused–
Impugned judgement declining anticipatory bail set aside. Siddharam
Satlingappa Mhetre v. State of Maharashtra, 2011(1) Crimes 109 SC.
Section 438 Cr.P.C. Anticipatory bail–Case registered under section 406,
420 and 120B I.P.C.–Investigation prima facie showed that petitioner
cheated innocent people who were rather in close relationship with
petitioners–Custodial interrogation could be a necessity to work out details
for recovery and seizure of properties–Petitioner could not be said to be
entitled to anticipatory bail. Ranbir Singh Kharab v. State, 2011(1) Crimes
356 (Delhi).
Section 438 Cr.P.C. Anticipatory bail–Appellant got a bank account
opened through power of attorney executed in favour of appellant No. 2. An
amount of Rs. 72,00,000 became due in favour of bank on that account by
overdraft facility–Plea that Appellant No. 2 made misrepresentations to bank
and misused the account–Plea of appellant No. 2 that whatever he did, it was
as per the instructions and directions of Appellant No. 1 Appellant No. 1
offering to provide colateral security for the ammount–Bank not opposing the
bail–Anticipatory bail granted subject to colateral security. Ramakant Singh
v. Ashu Singh, 2012(1) Crimes 36.
Section 438–Rejection of prayer for anticipatory bail–In the instant case, the
anticipatory bail was rejected by the High Court. The Apex Court on such application
remarked that after rejecting the prayer for anticipatory bail, the High Court should not
have negated its own order by directing that respondent no. 2 should be released on
bail. It dilutes the order rejecting bail application. Such order is not legally sound as it
overtooks the scope and purpose of section 438 & 439 of Criminal Procedure Code. Bail
allowed. Suda, Charan Dash v. State of Orissa, (2014)2 SCC 141.
Section 438–Non-grant of anticipatory bail–The accused was facing trial for offences
registered under section 302 & 120B read with section 34 IPC. Warrants were issued
for arrest of the respondents. Since they were not available/traceable, a proclamation
under section 82 Cr.P.C. was issued in 2012. The bail was granted by the High Court
without consideration of these material facts and without indicating any reason except
stating “facts & circumstances of the case”. The Apex Court while rejecting the bail held
that the High Court failed to appreciate the well settled position of law that where the
accused has been declared as an abscodner and has not cooperated with the
investigation, he should not be granted anticipatory bail. State of MP v. Pradeep
Sharma, AIR 2014 SC 626.
Section 438–Grant of bail–In this case the alleged accused was a sitting MP and
charged was framed under section 302 IPC. The Apex Court held that simply because
the petitioner accused happens to be a sitting MP and further incarcenration of the
petitioner MP would prevent him from performing his duties either in parliament or in
his constituency are not the consideration for grant of bail. Dirubhai Bogabhai Solanki
v. State of Gujarat, 2014 Cr.L.J. 1886 SC.
Section 438–Grant of bail–The Apex Court while deciding on legality of grant of bail
expressed the views that the court may not exercise its discretion in derogation of
established principles of law, rather it has to be in strict adherence to them. Discretion
has to be guided by law duly governed by rule and cannot be arbitrary fanciful or vague.
Jai Prakash Singh v. State of Bihar, 2013 Cr.L.J. 2101 SC.
Section 438–Benefit of anticipatory bail–In this case, the allegation of
rape pertain to the period which is almost 17 years ago. No charge were
framed and even the prosecutrix did not take any set for almost 9 years and
the change under section 376 IPC is added only in the year of 2014, while
granting the anticipatory bail, the Apex Court held that merely because the
charge under section 376 IPC, which is a serious charge, the benefit of
anticipatory bail cannot be denied when such a charge is added after a long
period of time and inaction of the prosecutrix is also a contributory factor.
Bhadresh Bipinbhai Sheth v. State of Gujarat, 2015(4) Crimes 298.
Section 438–Cancellation of anticipatory bail–In this case, there was an
allegation of corruption and misappropriation of public funds released for
rural development. While rejecting the bail petition, the Apex Court said that
the gravity of the offence, circumstances of the case, the conduct of the
appellant and the fact that the investigation is held up as the custodial
interrogation of the appellants could not be done due to the anticipatory
bail, the High Court has rightly cancelled the anticipatory bail granted to the
appellants. Sudhir v. State of Maharashtra, (2016) 1 SCC 146.
Section 438–Grant of anticipatory bail–In this case, the appellant was a journalist by
profession and running monthly newspaper in West Bengal. The bail application filed by
the appellant under section 438 Cr.P.C. was dismissed by the High Court. After hearing
both of the parties, it was held that the complaint lodged by the wife of the appellant
was only to wreak vengeance on the appellant. Moreover the appellant had been
granted anticipatory bail in the previous case for lack of prima facie evidence against
the appellant. The High Court was not justified in rejecting bail application. S.K. Jinnar
Ali v. State of West Bengal, 2017(3) Crimes 158.
Section 438–Grant of anticipatory bail–In this case, there was an allegation against
the appellant that he entered into the house of the complainant and caught hold of her
with intent to outrage her modesty and called her by caste name. The court held that
whether it is a case of mala fide or bona fide can only be considered at the time of trial.
In view of the specific bar under section 18 of SC/ST Act, 1989, grant of anticipatory
bail was held unjustified. Manju Devi v. Onkarjit Singh Ahluwalia, AIR 2017 SC 1583.
Section 438–Rejection of anticipatory bail–In this case, the Apex Court held that
where anticipatory bail of appellant was rejected by the High Court without mentioning
any reason in the rejection order, remanded to High Court for afresh hearing and
disposal on merits and in accordance with law. Prem Giri v. State of Rajasthan, 2018 (2)
Crimes 332.
Section 438–Grant of bail–Ordinarily, arrest in a part of procedure of investigation to
secure not only the presence of the accused but several other purposes. Power under
section 438 Cr.P.C. is an extra ordinary power and the same has to be exercised
sparingly. The privilege of the pre-arrest bail should be granted only in exceptional
cases. The judicial discretion conferred upon the court has to be properly exercised
after application of mind as to the nature and gravity of the accusation, possibility of
applicant fleeing justice and other factors to decide whether it is a fit case for grant of
anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of
investigation of an offence and hence, the court must circumspect while exercising such
power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of
rule and it has to be granted only when court is convinced that exceptional
circumstances exist to resort to that extra-ordinary remedy. Observing that economic
offences constitute a class apart and need to be visited with different approach, the bail
under section 438 Cr.P.C. was rejected. P. Chidambaram v. Directorate of Enforcement,
AIR 2019 SC 991.
Section 438–Grant of bail–The Supreme Court observed that even as per section
212(7) of the Companies Act, the limitation under section 212(6) with respect to grant
of bail is in addition to those already provided in the Cr.P.C. Thus, it is necessasry to
advert to the principles governing the grant of bail under section 439 Cr.P.C.
Specifically, need must be paid to the stringent view taken by this court towards grant
of bail with respect to economic offences. While granting bail, the court has to keep in
mind the nature of accusation, the nature of evidence in support thereof, the severity of
the punishment which conviction will entail, the character of the accused,
circumstances which are peculiar to the accused, reasonable possibility of securing the
presence of the accused at the trial, reasonable apprehension of the witnesses being
tampered with the larger interest of the public/state and other similar consideration.
Serious Fraud Investigation Office v. Nitting Johari, AIR 2019 SC 1010.
Section 438–Grant of bail–Observing that economic offences constitute a class apart,
the Supreme Court observed that economic offences having deep-rooted conspiracies
and involving huge loss of public funds need to be viewed seriously and considered as
grave offences affecting the economy of the country as a whole and thereby posing
serious threat to the financial health of the country. Bail rejected. Y.S. Jagan Mohan
Reddy v. CBI, (2013)7 SCC 439.

Jurisdiction to Grant Bail

It is only the ‘Court’ having jurisdiction to try the case which can release
an accused on bail-section 437(1) Cr.P.C. In 1953 Cr.L.J. 1525 (Pepsu) it was
held, the word “Court” appearing in 497 (now 437) means “the Court which
has jurisdiction to try the accused for offence alleged to have been
committed by him.”
Thus, a Second Class Magistrate cannot enlarge an accused on bail whom
he cannot try according to the Schedule first of Cr.P.C. He can only forward
the accused to a Magistrate having such jurisdiction. A police officer should
ordinarily produce the accused before the Illaqa Magistrate having
jurisdiction to try the case.
If the word ‘Court’ means any Court then it would mean that an accused
person can go to any Magistrate in any district, even if the case has not been
registered in that district and apply for bail whether or not he could take the
cognizance of the case. This was never the intention of law. In that case it
would mean the overlapping of orders of different Courts. Even if an arrest
is made in another district and the accused is produced before an Executive
Magistrate of that district for transfer to other district where he is to be
tried, then Magistrate should not release on bail. He should only forward
him to the Magistrate having jurisdiction under section 81 Cr.P.C. See 1929
All. 914 where it was held when a Magistrate without jurisdiction obtains a
bail bond from an accused person for his appearance before another Court
outside the jurisdiction and it transpires that the Magistrate was not
competent either to admit the accused to bail or to secure a bail bond from
him, the bail bond or personal recognizance of the accused is a nullity. No
proceedings under section 446 can, therefore, be taken against him. Also see
in this connection 1934 Oudh 435, wherein it was held that, section 497
Cr.P.C. deals with the powers of the ‘Trial Court’ and 1914 Sind 83 where it
was held, “Where a Magistrate finds that an order granting bail was passed
by him without jurisdiction he must commit the accused forthwith to custody.
“It is also required by section 167(2) Cr.P.C. that when an accused is
produced for remand before a Magistrate who has no jurisdiction to try the
case or commit it for trial and considers further detention of the person
arrested unnecessary, then he can only order the accused to be forwarded to
a Magistrate having jurisdiction to try the case. He has no power under
section 167 to admit the arrested person to bail. See 1959 Cr.L.J. 600 . In
this case accused were arrested in Ujjain, on requisition under section 54 (9)
now section 41(i) Cr.P.C. of D.S.P Madras. It was held that the Ujjain, the
Court could not release accused on bail though Sessions or the High Courts
could grant bail under section Cr.P.C. (Now section 439).
In this connection, it may be mentioned that in case a non-bailable
warrant is issued by a Court and it is to be executed in another district, the
court, as required by section 78(2), shall forward along with the warrant, the
substance of the information against the person to be arrested with such
documents, if any as may be sufficient to enable the court acting under
section 81 to decide whether bail should or should not be granted to the
person, under section 81 (Proviso) the Chief Judicial Magistrate or the
Session Judge of that district where arrest is made on such a warrant can
release the accused on bail. In a case in which person arrested without
warrant in Calcutta by Ludhiana police in an offence to which bar under
section 437 Cr.P.C. (offence not punishable with death or life imprisonment)
did not apply, Additional Chief Metropolitan Magistrate had jurisdiction over
the place of arrest. The power to grant bail was envisaged in section 56,
section 78 read with section 81 as held in Govind Prasad, 1975 Cr.L.J. 1249
(Cal.).
Section 487–Bail grant of–Court is not required to embark upon
meticulous examination of papers under section 173 Cr.P.C or to appreciate
statements recorded by trial Court–Number of witnesses about direct and
circumstantial evidence yet to examined–Court declined to grant bail. Chuna
Ram & Six others v. State of Rajasthan, 1997 Cr.L.J. 2727 (Raj.)
Bail under section 437 Cr.P.C.
 When bail may be taken in case of non-bailable offence:
Section 437 reads:
When any person accused of, or suspected of, the commission of any non-bailable
offence is arrested or detained without warrant by an officer-in-charge of a police
station or appears or is brought before a court other than the High Court or Court of
Session, he may be released on bail, but—
(i) such person shall not be so released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death or
imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and
he had been previously convicted of an offence punishable with death,
imprisonment for life or imprisonment for seven years or more, or he had been
previously convicted on two or more occasions in a cognizable offence
punishable with imprisonment for three years or more but not less than seven
years:
Provided that the court may direct that a person referred to in clause (i) or clause (ii)
be released on bail if such person is under the age of sixteen years or is a woman or is
sick or infirm:
Provided further that the court may also direct that a person referred to in clause (ii)
be released on bail if it is satisfied that it is just and proper so to do for any other
special reason:
Provided also that the mere fact that an accused person may be required for being
identified by witnesses during investigation shall not be sufficient ground for refusing to
grant bail if he is otherwise entitled to be released on bail and gives an undertaking that
he shall comply with such directions as may be given by the court :
Provided also that no person shall, if the offence alleged to have been committed by
him is punishable with death, imprisonment for life, or imprisonment for seven years or
more be released on bail by the court under this sub-section without giving an
opportunity of hearing to the Public Prosecutor.
(2) If it appears to such officer or court at any stage of the investigation, inquiry or
trial as the case may be, that there are not reasonable grounds for believing that the
accused has committed a non-bailable offence, but that there are sufficient grounds for
further inquiry into his guilt, the accused shall, subject to the provisions of section 446A
and pending such inquiry, be released on bail, or, at the discretion of such officer or
court on the execution by him of a bond without sureties for his appearance as
hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable
with imprisonment which may extend to seven years or more or of an offence under
Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or
abetment of, or conspiracy or attempt to commit, any such offence, is released on bail
under sub-section (1) the court shall impose the conditions:—
(a) that such person shall attend in accordance with the conditions of the bond
executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he
is accused, or suspected, of the commission of which he is suspected, and
(c) that such person shall not directly or indirectly make any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade
him from disclosing such facts to the Court or to any police officer or tamper
with the evidence,
and may also impose, in the interest of justice, such other conditions as it considers
necessary.
(4) An officer or a court releasing any person on bail under sub-section (1), or sub-
section (2), shall record in writing his or its reasons or special reasons for so doing.
(5) Any court which has released a person on bail under sub-section (1), or sub-
section (2), may, if it considers it necessary so to do, direct that such person be arrested
and commit him to custody.
 (6) If, in any case triable by a Magistrate, the trial of a person accused of any non-
bailable offence is not concluded within a period of sixty days from the first date fixed
for taking evidence in the case, such person shall, if he is in custody during the whole of
the said period, be released on bail to the satisfaction of the Magistrate, unless for
reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of a non-
bailable offence and before judgment is delivered the court is of opinion that there are
reasonable grounds for believing that the accused is not guilty of any such offence, it
shall release the accused, if he is in custody on the execution by him of a bond without
sureties for his appearance to hear judgment delivered.
No court other than Sessions or the High Court can grant bail in offence
punishable with death or life imprisonment. The court should not go into
details and express opinion regarding the guilt of accused. Only “reasonable
grounds for believing” are sufficient to reject bail. No finding on the merits
of the case is required. Such a court, however, is competent to enlarge an
accused in such cases on bail if accused is under the age of 15 years, is a
woman or sick or infirm section 437 (1). The broad principles regarding
sickness and infirmity are given in 1952 Cr.L.J. 873 (Hyd) Fazal Nawaz Jang
where it has been laid down that every sickness or infirmity does not entitle
a person to be released on bail. The gravity of the offence and the
circumstances under which it was committed, the severity of the punishment,
the likelihood of the accused absconding or suborning evidence, the nature
of the malady the statutory or otherwise of remand to jail custody and
reasonable amenities have all to be borne in mind at the time of
consideration of bail. The sickness contemplated by Proviso to Section 437
Cr.P.C. is a sickness which involves a risk or danger to the life of the
accused. State v. Sardool Singh, 1975 Cr.L.J. 1318 (J&K).
Section 439 (Proviso) further lays down that the High Court or the Court
of Sessions, before granting bail to a person who is accused of an offence
which is triable exclusively by the court of Sessions or which though not so
triable punishable with imprisonment for life, give notice of the application
of bail to the Public Prosecutor, unless it is, for reasons to be recorded in
writing of opinion that it is into practicable to give such notice.
Section 437 Cr.P.C.–Accused convicted and sentenced to 10 years
rigorous imprisonment in dowry death case–Appeal against conviction–Post
mortem report stated “No external injury was found”–After opening the
thoraco-abdominal cavity, the findings were noted in the columns concerned–
The lungs, liver and spleen were found in diseased condition–Cause of death
is shock followed by chronic illness–In view of post-mortem report, accused
released on bail. Ballav Narain v. State of Bihar, 2006 (1) Apex criminal 403
(SC).
Section 437 Cr.P.C.–Bail application under section 437 Cr.P.C.–Magistrate
should decide the application the same day–In rare and exceptional case
Magistrate may not decide the same day–He must record reasons in writing.
Smt. Amaravati v. State of U.P., 2005 Cr.L.J. 755 (All.).
Section 437 Cr.P.C.–IPC section 498A–Complaint case under section 498A
IPC–Magistrate taking cognizance–Accused surrendered but granted bail on
promise that he would compromise–No compromise took place–Breach of
promise is no ground to cancel the bail under Cr.P.C.–Having granted the
bail, it was not open to court to cancel the same on a ground alien to the
grounds mentioned for cancellation of bail in the said provision of law.
Biman Chatterjee [Link] Chatterjee, AIR 2004 SC 1699.
Section 437 Cr.P.C.–Under Section 437 Cr. P.C, a person has right to pray
for bail whenever he is arrested or detained without warrant by an officer-in-
charge of a police station or appears or is brought before a court other than
the High Court or Court of Session on the allegation of commission of any
non-bailable offence–Thus under section 437 an application for bail at a post-
arrest stage is maintainable befor any court, other than the High Court or
Court of [Link] Ahmed v. State, 2003 Cr.L.J. 2815.
Section 437 Cr.P.C.–Trial of offence by Magistrate first class–Offence
punishable with life imprisonment–Magistrate first class is competent to
grant bail to accused under section 437 Cr.P.C.–Magistrate first class will
not however be competent to grant bail in an offence which is punishable
alternatively with death sentence or life imprisonment. Ramji v. State of
Punjab, 2001 (1) RCR (Criminal) 538.
Sections 437, 438 and 439 Cr.P.C.–Grant of bail by Magistrate–Powers of
the Magistrate, while dealing with the applications for grant of bail, are
regulated by the punishment prescribed for the offence in which the bail is
sought–Generally speaking if punishment prescribed is for imprisonment for
life and death penalty and the offence is exclusively triable by the court of
Sessions, Magistrate has no jurisdiction to grant bail unless the matter is
covered by the provisos attached to section 437 of the Code. Prahlad Singh
Bhati v. NCT Delhi, AIR 2001 SC 444.
Sections 437 and 439 Cr.P.C.–Accused aged 79 years and 75 years–Both
ready and willing to co-operate with investigation–Bail allowed–Accused
shall make themselves available as and when required by the investigating
officer for the purpose of investigation, between 10:00 a.m. and 5:00 p.m. on
any day. Pandurang [Link] v. State of Maharashtra, 2006(1) Apex
Criminal 405 (SC).
Section 437 (1) and 439 Cr.P.C.–Grant of bail in murder case–Condition
laid down under section 437 (1) is sine que non for granting bail even under
section 439. Kalyan C. Sarkar v. Rajesh Ranjan @ Pappu Yadav, AIR 2004 SC
1866.
Sections 437 and 439 Cr.P.C. There is a very important difference
between Section 437 and 439 inasmuch there is no requirement of giving
notice to the Public Prosecutor in section 437 but there is such a
requirement in the proviso to Section 439 (1)–Proviso to section 439 (1) does
not prescribe the period of notice and leaves it to the discretion of the judge.
Smt. Amaravati v. State of U.P., 2005 Cr. L. J. 755 (All.) (FB).
Section 437, 439(2)–Cr.P.C.–Murder–Bail in Murder case–Accused and his
wife held for conspiracy to murder–Accused a politician and an Ex-Minister–
Bail granted by High Court, but cancelled by Supreme Court.
Section 437 Cr.P.C.–Bail–Jurisdiction of court to impose conditions–When
offences are bailable, no condition can be imposed. Power to impose
conditions is only in case of non-bailable offence and that too where it is
punishable for more than seven years–Court while granting bail to
petitioners imposed certain conditions. Conditions were required to be
deleted. Hasmukha Lal Kalidas Choksi v. State of Gujarat, 2007(3) Crimes
464.
Section 437(6) Cr.P.C.–Bail–Petitioner facing trial on a charge under
section 420, 468 and 471 IPC–He was in custody since 1997 and not a single
witness had yet been examined. No reasons recorded by Magistrate in
rejecting bail application under section 437(6) Cr.P.C.–Petitioner deserved to
be released on bail. Rahul Sanwant@ Prince v. State, 2008(3) Crimes 747
(Guj.)
Section 437(6) Cr.P.C.– Bail–When trial not concluded in sixty days from
first date fixed for recording evidence–Petitioner was put on trial under
section 326 I.P.C. and was in custody since 16.4.2007 and first date fixed for
evidence was 19.6.2007– Material witnesses had already been examined–Bail
granted imposing conditions. Charan v. State of M.P., 2008 Crimes 38.
Section 437(5) and 439 Cr.P.C.–Cancellation of bail by Magistrate–Bail
was granted by Magistrate with condition that on all Wednesday accused
shall appear before I.O. until further orders between 10 a.m. to 11 a.m.–I.O.
reported non-compliance of condition and Magistrate cancelled bail–The
cancellation of bail was not justified. Nassar v. State of Kerala, 2010(1)
Crimes, 2007 (Ker.).
Section 437 Cr.P.C.–Power of Criminal Court to impound passport while
granting bail to a person accused or suspected of commission of a non-
bailable offence. Held–It is within power of criminal court while releasing a
person accused or suspected of commission of a non-bailable offence on bail
under section 437 of the Code to impose a condition that such person shall
surrender his passport in court–But the criminal courts have to take extreme
care in imposing such condition. The court has to strike a balance between
personal liberty of the accused guaranteed under Article 21 of the
Constitution investigation rights of police and the interest of the society.
A.V. Mohammed Rafeek v. The Union of India, 2011(3) Crimes 174 (Ker.).
Exercise of discretion–Though the competent court is empowered to exercise its
discretion to impose “any condition” for the grant of bail under sections 437(3) and
439(1)(a) of the Code, the discretion of the court has to be guided by the need to
facilitate the administration of justice, secure the presence of the accused and ensure
that the liberty of the accused is not misused to impede the investigation, overawe the
witnesses or obstruct the course of justice. Parvez Noordin Lokhandwalla v. State of
Maharashtra and another, AIR 2021 SC 641 : (2020) 10 SCC 77 : (2021) 1 SCC (Cri.)
436 : (2021) 2 Crimes 71.
Section 437–Tampering of witness–In this case, the offences alleged are economic
offences. There was a contention that there is a possibility of appellants tampering with
witnesses but no material was placed in support of allegation. It was held that
seriousness of the charge is, no doubt one of the relevant considerations while
considering bail applications but that is not the only test or the factor. The other factor
that also requires to be taken note of consideration is the punishment which could be
imposed after trial and conviction. Sanjay Chandra v. Central Bureau of Investigation,
2012(1) SCC 40.
Section 437–There is no provision in the Criminal Procedure Code curtailing the
power of either the Sessions Court or High Court to entertain and decide pleas for bail.
Sandeep Kumar Bafna v. State of Maharashtra, 2014 Cr.L.J. 2245 SC.
Section 437–Rejection of grant of bail–The Supreme Court held that High Court has
erred in granting bail to the respondent accused without taking into consideration the
overall facts. The grant of bail by High Court is set-aside looking all aspects of the
matter in question and having regard to the proved changes in the case concerned and
the charges pending adjudication against respondent accused. Chandrakeshwar Prasad
@ Chandu Babu v. State of Bihar, 2016 Cr.L.J. 5083 SC.
Section 437–Bail on the ground of delay in trial–When the prosecution witnesses had
been examined and it appeared to be no intention on his part to linger trial
unncessarily, the accused would not be entitled to seek bail on ground of delay of trial.
Shamsher Singh Verma v. State of Haryana, 2016 Cr.L.J. 364 SC.
Section 437–Grant of bail–Partial charge sheet has been submitted and thereafter
investigation has not been completed despite several extentions of time for completion
of the remaining part of investigation including order of extention of time by the court.
It was held that the appellant accused should be released on bail. Pravat Kumar Dash v.
Central Bureau of Investigation, 2017(8) SCC 452.
Section 437–Grant of Conditional bail–The appellant accused has been in custody
since 2015 in connection with the case registered at Police Station Bail under section
147, 148, 149, 323, 341, 324, 325 & 307 IPC. The genesis of the incident is the dispute
on the firing of crackers. When the matter came up before Apex Court, it is informed
that the trial has commenced but only one witness has been examined. Further, there is
no apperance of the complainant despite issuing a notice by the Apex Court. It was held
that during the pendency of the trial, the appellant should be released on bail with the
satisfaction of the competent court with the condition that the appellant shall co-
operate with the trial and shall not influence witnesses in any way. Vishu v. State of
Rajasthan, AIR 2017 SC 1611.
Section 437–Parameter for grant of bail–In this instant case it was held by Apex
Court that where the court admits the accused on bail by taking into irrelevant
materials and keeping out of consideration the relevant materials, the order becomes
vulnerable and such vulnerability warrants annulment of the order. In this case, the bail
application was rejected twice and on the same factual score, the accused was allowed
to release on bail. The order passed by the High Court in which the order of the trial
judge was expunged was right. Virupakshappa Gonda v. State of Karnataka, AIR 2017
SC 1685.
Section 437–Grant of bail–The bail of the accused was granted on the ground that
there was no apprehension that alleged accused may hamper trial and be absconder.
Dataram Singh v. State of U.P., 2018 Cr.L.J. 216 SC.
Section 437–Grant of bail application–The bail application has been filed by the
applicant in the case of section 498A IPC. Under section 437 & 439 of Cr.P.C. It is
contended that the recovery of some items relating to dowry is being made. It was held
that the disposal of such bail application should be done as soon as possible, generally
on the same day and it may not be rejected on the basis of some recovery is being made.
Rajesh Sharma v. State of U.P., 2018(1) SC Cr.L.J. 61 SC.
Section 437–Grant of bail–Where after grant of bail to an acused, further cognizable
and non-bailable offences are added, then–(i) the accused can surrender and apply for
bail for newly added cognizable and non-bailable offfences. In event of refusal of bail,
the accused can certainly be arrested. (ii) The investigating agency can seek order from
the court under section 437 (5) or 439(2) of Cr.P.C. for arrest of the accused and his
custody. (iii) The court, in exercise of power under section 437(5) or section 439(2)
Cr.P.C. can direct for taking into custody the accused who has already been granted
bail after cancellation of his bail. The court in exercise of power under section 437(5) as
well as section 439(2) Cr.P.C. can direct the person who has already been granted bail
to the arrested and commit him to custody on addition of graver and non-cognizable
offences which may not be necessary always with order of cancelling of earlier bail. (iv)
In a case, where an accused has already been granted bail, the investigating authority
on addition of an offence or offences may not proceed to arrest the accused, but for
arresting the accused on such addition of offence or offences it need to obtain an order
to arrest the accused from the court which had granted the bail. Pradeep Ram v. State
of Jharkhand, AIR 2019 SC 3193.
Offence under section 302 and 201 I.P.C.–Matter is related with honour
killing–Boy had enticed away a girl of different caste–His parents had been
threaten of being shot dead–The dead bodies of the parents of the son were
found on railway line–In MLC the fire arm injuries were also found–Bail
applicant and other co-accused were seen coming from the side of railway
track. They made extra-judicial confession. Held–Not a fit case for grant of
bail while going through the incriminating circumstances. Ram Kunwar v.
State of U.P., 2013(7) RCR (Criminal) 667 Alld.
Applicant involved in offence under section 302 and 307 I.P.C.–Prayer to
release on short-term bail–In the instant case, short-term bail/parole is not
warranted by the code but a prisoner may be released on parole in certain
emergency situation–Since the applicant is involved in heinous offence,
short-term bail cannot be granted on the ground of mercy alone. Ajai Lodhi
v. State of U.P., 2013(7) RCR (Criminal) 611 .
Applicant was convicted and sentenced in a case under section 363, 366,
376, 506, 324, 368 I.P.C. and section 3(2)(v) of the SC/ST Act–Two co-
accused have already been granted bail by High Court in Criminal appeals–
Role of applicant is at par with the co-accused–Applicant released on bail.
Ram Sajan v. State of U.P., 2013(7) RCR (Criminal) 2140.
Serious offence of economic offence–Laundering money–Five charge
sheets submitted against accused–Accused was granted bail by Special Court
and the same was affirmed by High Court. Three more charge sheets were at
final stage of completion. The bail has been cancelled by Supreme Court
saying that special judge committed an error in granting bail and the same
was erroneously affirmed by the High Court. Taking note of few instances in
which the accused has acted, it cannot be possible for investigating agency
to collect the remaining materials for remaining three charge sheets which
are yet to be filed. Central Bureau of Investigation v. V. Vijay Sai Reddy,
2013 Cr.L.J. 3016.
Bail to juvenile offender–Ordinarily, a juvenile in conflict with law shall
be released on bail, but he may not be so released if it appears that there is
a reasonable grounds for believing that the release is likely to bring him into
association with any known criminal or expose him to moral, physical or
psychological danger or that his release would defeat the end of justice.
Jitendra Singh @ Babboo Singh v. State of U.P., 2013(3) RCR (Criminal) 819.
Bail–Grant of bail in economic offences–While granting bail, the court has
to keep in mind the nature of accusations, the nature of evidence in support
thereof, the severity of the punishment which conviction will entail, the
character of the accused, circumstances which are peculiar to the accused,
reasonable possibility of securing the presence of the accused at the trial,
reasonable apprehension of the witnesses being tempered with, the larger
interest of public/state and other similar consideration. The court dealing
with the grant of bail can only satisfy it as to whether there is a genuine
case against the accused and that the prosecution will be able to produce
prima facie evidence in support of the charge not to have the evidence
establishing the guilt of the accused beyond reasonable doubt. Nimmagadd
Prasad v. C.B.I., 2013(8) JT 18, AIR 2013 SC 2821.
Bail to accused–Object to grant bail–The main object of bail is to secure
the appearance of the accused person in trial–It is neither punitive nor
preventive–Principal rule to guide release on bail should be to secure the
presence of the applicant who seeks bail, to take judgement and serve
sentence in the event of the court punishing him with imprisonment at the
end of the trial. Desh Raj v. C.B.I., 2013 (1) RCR (Criminal) 346 (P & H).
Bail under section 147, 302, 201 I.P.C. during involvement of accused–
Deceased was married with daughter of accused–There were some
differences between the couple–Wife went to her parental home–Husband
went to his in-laws house to bring back his wife–His dead body was found
from a river with two minor injuries which could not have caused death
according to the statement of doctor–Cause of death was found drowing–
There was no evidence of the alleged beating or taking him to river by the
accused. Held that there may be strong suspicion against the accused and
other family members but except suspicion no other material produced
against the accused–Applicant/accused being lady entitled to bail. Smt.
Kamla v. State of U.P., 2013 (6) RCR (Criminal) 2833 All .
Bail–Offence under section 304, 323 and 504 I.P.C.–Deceased had
sustained two injuries on his head–Both injuries were having bone fracture
and the applicants/accused are already in jail–Benefit of parity with co-
accused may not be extended to applicants because other has been released
on bail on ground of old age–Applicants not entitled for bail–Bail application
dismissed. Ramji Tiwari v. State of U.P., 2013(6) RCR (Criminal) 661.
Bail application under section 304 I.P.C.–Deceased wife of applicant had
sustained many injuries caused by hard and blunt object–Nature of injuries
does not show that the same was caused due to fall from stairs as injuries
was found on both sides of body–Deceased was killed mercilessly–She was
not taken to hospital–Applicant being husband under obligation to provide
proper medical aid–Applicant/accused has misled by saying that she had
sustained injuries due to fall but post mortem examination report otherwise–
Bail rejected–He may tamper with evidence. Ram Pyara v. State of U.P.,
2013(6) RCR (Criminal) 680 (Alld.).

Bail was Granted on following Grounds by High Court

(1) Accused was involved on basis of confessional statement from which
he retracted–Retracted confessional statement cannot be made
foundation for establishing guilt of accused.
 (2) Accused had illicit relationship with deceased–Deceased was
pregnant at time of death–D.N.A. report showed that accused was
father of the foetus in womb of deceased–Opinion of High Court, that
it could show that accused was immoral. Was not proof of conspiracy.
(3) Accused was in jail for about 2 years and investigation was already
concluded and there was no chance of accused tampering with
witnesses.
(4) Wife of accused was not main accused, but only a housewife she was
granted bail because main accused was released on bail.

Bail Cancelled on following Grounds by Supreme Court

(1) Retracted confessional statement of co-accused could not excluded
from consideration–In the instant case, however, there is voluminous
evidence collected by C.B.I. to show involvement of accused and
efforts of accused to interfere with the investigation of the case
before the grant of bail and also after the grant of bail.
(2) From very day of murder accused was trying to interfere, detract and
mislead investigation.
(3) Gave threats to mother and sister of deceased on two occasions–Also
threatened other witness who sent complaints in this regard.
(4) Tried to influence the S.S.P. who was handling investigation and
sought his help–Got S.S.P. transferred when he did not toe line of
accused.
(5) Deceased had 6 months pregnancy from illicit relationship of
accused–Accused wanted the S.S.P. to adopt his story that she was
married to another person and was pregnant from him.
(6) Accused wanted S.S.P. that foetus should not be preserved–Later
D.N.A. test of foetus showed that deceased was pregnant from
accused.
(7) Bail of co-accused (wife of accused) also cancelled. State through
C.B.I. v. Amarmani Tripathi, AIR 2005 SC 3490.

Bail in Cases Requiring Identification

Section 437 (1) Proviso now specifically lays down that the mere fact that
an accused person may be required for being identified by witnesses during
investigation shall not be a sufficient ground for refusing to grant bail if he
is otherwise entitled to be released on bail and gives an undertaking that he
shall comply with such directions as may be given by the court. See,
however, 1956 Cr.L.J 181 (All.) Ganga Singh v. State . This is only with
regard to non-bailable offences. It is no good excuse to refuse bail in
bailable cases.

Grounds for Bail in Non-Bailable Cases

As laid down in 1952 Cr.L.J. 1223 (J&K) Sant Ram, v. State , it was held
that general proposition of law is to allow bail, rather than, to refuse bail.
The law presumes an accused person to be innocent till his guilt is proved
and bail ought not to be withheld as punishment. Possibility of accused to be
found guilty or not is an irrelevant consideration as object of bail is not
punitive but merely to secure presence of accused to abide by the sentence
to be imposed by the Court. Sat Pal Singh Gill, 1976 C.L.R, 213 (Punjab) . The
Supreme Court held in State of Rajasthan v. Shri Balchand, 1978 Cr.L.J. 195 .
“The basic rule may, perhaps, be tersely put as bail, not jail, except where
there are circumstances suggestive fleeing from justice, or thwarting the
course of justice or creating other troubles in the shape of repeating
offences or intimidating witnesses, the gravity of the charge, etc.” Also see
Gudi Kant, 1978 SC 429.
In Gurcharan Singh v. State, 1978 Cr.L.J. 129 , the Supreme Court held
“In cases punishable with death or imprisonment for life, the Court
(Magistrate) has no option to grant bail. At that stage the court is concerned
with the existence of the materials against the accused not as to whether
these materials are credible or not on merits. In other non-bailable cases the
court will exercise its judicial discretion in favour of granting bail subject to
sub-section (3) of
section 497 if it deems necessary to act under it.”
Further in 1978 Cr.L.J. 844, the Supreme Court held in a case under
section 5(2) Prevention of Corruption Act, Mohan Singh v. Union Territory,
that even if offence was substantiated by investigation, refusal of bail is not
an indirect process of punishing an accused person before he is convicted.
Handcuffing of accused is no condition of bail under section 437 Cr.P.C.
Magistrate had refused to consider bail as two accused were produced
without handcuffs. Held in 1987 Cr.L.J. 339, that it was no justification.
Reason must be given while granting bail by the Magistrate or Session.
An order without recording reason cannot be sustained. Held so in Parshant
Kumar, 1988 Cr.L.J. 1463. Further held that an order of bail cannot be
reviewed or revised or set aside by the same authority. It can only be
cancelled under section 437 (5) but such a power can only be exercised in
extraordinary circumstances. The powers under section 437 (5) and 439 (2)
Cr.P.C. are necessarily to be exercised sparingly and under extra-ordinary
circumstances as laid down in Sanjay Gandhi’s case, 1978 Cr.L.J. 952 (SC).
In economic offences bail should be sparingly given.
Successive bail applications by accused are not barred as there is
nothing like principle of res judicata operating in the field, 1978 Cr.L.J. 651
SC 1988 Cr.L.J. 1508. F.I.R. not sent promptly to the Magistrate as required
under section 157, 158 Cr.P.C. Held delay not fatal in each and every case
and section 157, 158 not being mandatory, delay in sending F.I.R. no ground
for bail. Roop Chand, 1988 Cr.L.J. 1655 (Delhi).
The court, to grant bail, should be guided by the principle, if there is
probability of the accused absconding, 1953 Cr.L.J. 17 Ram Chandra.

The Likelihood of Accused Absconding is Affected by the following

Circumstances
1. The gravity of the charge.
2. The cogency of evidence.
3. The wealth of the accused.
4. The possibility of the accused tampering or attempting to tamper with
the witnesses.
The following considerations weigh with the court in granting bails, as
laid down in 1931 All. 504,1931 All. 356, 1934 Sindh 13, 1944N. 149,1952
Cr.L.J. 1223, 1952 Cr.L.J. 373,1956 Cr.L.J. 983 (Magistrate should make
serious efforts to analyses the evidence) and 1958 Cr.L.J. 86 (Refusal of bail
is an exception).
1. Whether there is a reasonable ground of believing that accused has
committed the offence.
2. The nature of the charge and its severeness.
3. The severity of punishment provided or to be awarded.
4. The danger of the accused absconding.
5. The danger of abusing bail by repeating or cuntinuing offence.
6. The danger of wining over Prosecution Witnesses.
7. The young age, or sex of the accused.
8. The falling health of the accused and his conduct in the court or jail.
9. His social status and necessity of presence in the house, keeping in
view some untowards happening or family affairs of urgent
importance.
10. Opportunity to accused for preparation of defence.
 11. The period spend as under trial, the delay in producing witnesses for
the prosecution or the delay in submitting the challan. If trial is likely
to be protracted 1967 Cr.L.J. 1297. In ordinate delay in investigation,
1974 P.L.J. 144.
12. The voluminous accounts and any other factor needing explanation
and which the accused alone can give (52 Cr.L.J. 656 M.B.).
13. The character, means and standing of the accused.
14. Large quantity of opium recovered no ground for refusing bail, 1977
C.L.R. 34 (Punjab), or of poppy husk, 1985 (2) C.L.R. 402.
15. Persons charged of high corruption no justification for bail. Onkar
Chand, 1978 Cr.L.J. 44 (Punjab).
16. Delay in disposal of a pending case a good ground. Further held that
judicial discretion must be exercised not in opposition to put in
accordance with established principal of law. It must be governed by
rule and not by humour. It must not be arbitrary, vague and fanciful
but legal and regular. Babu Singh v. State of U.P. (SC) 1978, Cr.L.J 69
(Cr) for inability of existing judicial machinery to dispose of case
expeditiously, the accused cannot be kept in custody for long. He
must be given bail Babu Singh, 1978 Cr.L.J. 1846.
The remarks of Mr Terri C.J. in case 1932 Pat. 209 are worth mentioning
here. “We must point out in the most emphatic way for the further guidance
of Magistrates and the Session Judges that save in exceptional cases person
accused of crimes punishable with long-terms of imprisonments should not
be released on bail. The richer the accused the more easy it is for him to find
bail less it is desirable that he should be released, and in no circumstances
whosoever without an order of the High Court any accused of murder be
allowed bail.”
In State v. Cap. Jagjit Singh, 1962 SC 253 it was held that mere
probability or improbability of prosecution terminating in conviction was not
a conclusive consideration. Nature or seriousness of charge, character of
evidence, peculiar circumstances of cases, reasonable apprehension of
witnesses being tampered with and larger interests of public or the state are
other consideration. In Dharma Teja’s Case, 1972 Cr.L.J. 127 , the Delhi High
Court refused to release Dharam Teja on bail on the grounds of ill-health or
protracted nature of delay in trial since it was apprehended that he might
except from India.

Surrender in the Court and Bail

Sometimes the accused wanted in a case surrenders himself in the court.
The court has jurisdiction to grant bail under section 437 Cr.P.C./439 Cr.P.C.
irrespective of the fact whether he is produced by police or is on remand. He
will be deemed to be in judicial custody as held in Niranjan Singh’s case,
1980 Cr.L.J. 426 (SC) The accused, a police officer had surrendered in the
court. Custody was deemed to be by appearance in the court section 439
Cr.P.C. for bail was applied.
See also 1982 Cr.L.J. 1297 (Cal.) and 1983 Cr.L.J. l212(Orissa).

Amount of Bail and Nature of Surety

It is discretionary for the courts to fix the amount of bail. Regard should,
however, always be placed on the following:
1. Likelihood of accused flouting the bail.
2. The capacity to pay.
3. The nature and seriousness of the offence, 1960 Cr.L.J., 1948 (Punj.).
4. The punishment provided.
5. But it shall not be excessive. (Section 440 Cr.P.C).
6. The High Court or the Court of Session may direct that bail required,
by a police officer or Magistrate be reduced (Section 400(2) Cr.P.C).
 7. Cash security cannot be demanded by the court in lieu of executing
bond. There is not all provision in Cr.P.C. to this effect. However, if an
accused wants to depose case. It can be accepted section 445 Cr.P.C.
see also 48 Cr.L.J. 773,1943 Pat. 375.1977 Cr.L.J. 405 Bir Singh.
8. The Supreme Court released the accused on his own bond when the
Chief Judicial Magistrate had demanded bail with one surety in the
sum of Rs. 10,000/- which was to very heavy in case Moti Ram v. State
of M.P., 1978 SC 1594. It was directed. “Bail covers both release on
one’s own bond with or without sureties. It was also not within the
power of the Court to reject a surety because he or his estate was
situated in a different District or State. Demand for surety of his own
district is illegal and discriminatory.”
9. Order for bail–to deposit one lakh–Or to give sureties residing in the
state set aside by the Supreme Court, Keshale 1985 Cr.L.J. 1857.

Conditions in Non-bailable Offences

Can conditions be imposed in cases of bails in non-bailable offences?
The conditions can be imposed for granting of bails in suitable non-
bailable offences. The point was considered in 1942 Mad.740, Andh. 1957
M.W.N. 487(2), 1957 (2) Andh. W.R 383. and 1965 (Andh. Pr.) 444. The
conditions should be, however, fair and reasonable.
Conditions can be imposed by the court while granting bails in non-
bailable offences under section 437 (3) Cr. P.C. which lays down—
“When a person accused or suspected of the commission of an offence
punishable with imprisonment which may extend to seven years or more or of
an offence under Chapter VI (offences against State); Chapter XVI (offences
against person) or Chapter XVII (offences against property) of Indian Penal
Code, or abetment of, or conspiracy or attempt to commit any such offence is
released on bail under section 437 (I) Cr.P.C. The Court may impose
conditions as under:—
(a) that such person shall attend in accordance with the conditions of the bond
executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is
accused, or suspected, of the commission of which he is suspected, and
(c) that such person shall not directly or indirectly make any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade
him from disclosing such facts to the court or to any police officer or tamper
with the evidence.
and may also impose, in the interest of justice, such other conditions as it
considers necessary.“
The High Court or the Court of Sessions has power that any condition
imposed by a Magistrate when releasing any person on bail be set aside or
modified (Section 439(1)(b) Cr.P.C).
Can condition be imposed to interfere with the control of surety,
for residing in a particular place or area of Police Lines in case of a
police officer? The point arose in 1978 Punjab 17, State v. Murli Dhar
wherein it was held that the control of the surety cannot be unlimited in
extent and over a protracted period.
In this case Murli Dhar a constable of Police Department was arrested
under section 61 (1) (a) Excise Act and was bailed out. He was suspended
and ordered to remain to Police Lines under section 16.21(1) of Punjab
Police Rules. Murli Dhar absented from Police Lines on the plea that his
surety wanted to keep him under his surveillance. Murli Dhar was challaned
under section 29 Police Act but acquitted by Magistrate who held that
accused was not a free agent. The state went in appeal and the High Court
held that accused was not entitled lawfully disobey such an order and plead
that he was forced to place himself at the disposal of the person who had
stood surety for him in connection with his bail for criminal case.
The conditions which do not tamper with or interfere in the custody of
surety can be imposed e.g. for not taking part in any illegal activity or not
visiting in any area and so on or take part in any demonstration, 52 Cr.L.J.
1080 (VP.) Jang Bahadur v. State . The reasoning being in the words of
Hon’ble Justice Raghbir Dyalin 52 Cr.L.J., 1377(All.). Supra. “Under section
497 (now Section 437) which provides for bails in non-bailable cases, it is
discretionary for the court to grant bail. In certain circumstances mentioned
in sub-section (2) bail has to be granted by the High Court. When discretion
is given to the Court to refuse bail or to grant it, that discretion itself
implies a direction to grant bail subject to certain conditions.” A condition in
the bail bond for daily attendance at police station every evening until the
termination of case was held to be valid in 3 Sau L.R. 167 but not a condition
to remain in particular city 50 Cr.L.J. 1009 Cal . In case 1968 Cr.L.J. 1231
State v. Mohammed, a condition to report once everyday to officer-in-charge
of police station and not to leave municipal limits without his permission was
held to be valid case under 120B. I.P.C., Explosive Act. Arms Act, In a case
under section 406, 420 I.P.C, High Court had ordered accused to deposit his
passport in the court so that he may not depart from India. This condition
was upheld by the Supreme Court in case 1972 Cr.L.J. 298 Hazari Lal Gupta.

Revision against Order of Refusing Bail on Imposing Conditions

The order refusing bail on imposing conditions while enlarging on bail is
interlocutory order and no revision lies under section 397/401 Cr.P.C.
against such an order. Order granting bail is also an interlocutory order. See
Thakur, 1977 Cr.L.J. 471, Dhola, 1975 Cr.L.J. 1274 and Laxmi, 1978 Cr.L.J.
51.

Special Provisions about Bails

1. An officer-in-charge or the court releasing any person on bail shall
record reasons in writing his or its reasons or special reasons for so
doing. Section 437(4) Cr.P.C.
2. In C ase trial of an accused is not concluded within a period of 60 days
from the first day fixed for taking evidence in the case, such person
shall be released on bail if he had been in custody throughout this
period unless for reasons to be recorded in writing, the Magistrate
otherwise directs. Section 437(6) Cr.P.C.
3. The court, if at anytime, after conclusion of trial and before judgement
is pronounced, is of opinion that there are reasonable grounds for
believing that accused is not guilty the court will release the accused
an execution of a bond by him. Section 437(7) Cr.P.C.
4. To ensure fitness of surety, the court may accept affidavits or hold an
enquiry itself or through a subordinate Magistrate. Section 441(4)
Cr.P.C.
5. If through mistake, fraud or otherwise, insufficient sureties have been
accepted, the court may order for sufficient sureties. Section 443
Cr.P.C.
6. The surety can apply to the court to relinquish surety bond at any time
and fresh surety can be ordered by the court. Section 444 Cr.P.C.
7. In case accused is in custody for total period of 60 days in remand
from date of his arrest and the case is still under investigation, the
Magistrate shall release on bail and shall not give further remand.
Section 167(2) (a) Cr.P.C. See Remand.

Bail by the High Court and the Sessions Court

Under section 439 Cr.P.C. the High Court and the Court of Sessions can
grant bails. The power of the High Court to grant bails conferred by section
439 Cr.P.C. is entirely unfettered by any condition but these powers must be
exercised judicially and not arbitrarily, taking into consideration the
limitations imposed by section 437 Cr.P.C.
In cases, where bail has been refused by the Sessions Judge, the
Magistrate holding the inquiry can release the accused on bail at a
subsequent stage. There is nothing in Cr. P.C. which debars a Magistrate
from doing so. See 1956 Cr.L.J. 1275 (All.). Bohre Singh v. State.
The High Court or the Court of Sessions while granting bails can impose
conditions; can set aside or modify conditions and can reduce the bail
required by a Police Officer and Magistrate. Section 439 Cr.P.C. gives wide
powers to the High Courts or the Sessions Judge than those envisaged by
section 437 Cr.P.C. but such powers should be exercised in a judicial and not
in an arbitrary manner. State v. Shanti Lall, 1955 Cr.L.J. 1205 (Raj.) See
Sections 43 and 440 (2).
The scope of bail to be granted by the Session and the High Court was
discussed in case Sant Ram, 1977 Cr.L.J. 486 after discussing many a ruling.
The principle deducible from the above noted authorities is the that court
while granting bail under section 439 of the code cannot go into detail of
evidence to find out whether evidence will be sufficient in establishing the
guilt of the accused beyond reasonable doubt, it being relevant consideration
at this stage to ascertain the probability of the prosecution case terminating
in the conviction of the accused or not. The question to determine is whether
the prosecution will be able to produce prima facie evidence in support of
the charge and not evidence establishing the guilt of the accused beyond a
reasonable doubt.
A. The Ordinarily High Court will not entertain a petition under section
439 Cr.P.C. unless the subordinate court of concurrent jurisdiction has
been approached in the first instance. 52 Cr.L.J. 656 (MB). Though the
power of the High Court in granting bails under section 439 Cr.P.C. is
entirely unfettered by any condition, it is only in exceptional
circumstances that an application for bail should be made directly to
the High Court. In such a case applicant must show the exceptional
circumstances which justify not moving the lower court in the first
instance, 1960 Cr.L.J. 236 Abdul Karim. Notice to Public Prosecutor of
application for bail is necessary under section 439(1) Proviso.
B. The High Court has no inherent power to grant bail or to suspend
operation of science pending proposed application for special leave to
appeal to the Supreme Court, 1956 Cr.L.J. 1035 (All.). It can grant bail
where special leave to the Supreme Court has been granted, 1959
Cr.L.J. 1107 (All but not during pendency of appeal in the Supreme
Court. 1959 All 558.
(See also Bail after conviction).

Power to Cancel the Bail

In Delhi Adm. v. Sanjay Gandhi, 1978 SC 961 , when his bail was cancelled
by the Supreme Court on allegation of tampering with evidence it was held,
“The power to take in custody an accused has been enlarged on bail has to
be exercised with case and circumspection. But the power though of an
extraordinary nature is meant to be exercised in appropriate cases when by
a preponderance of probabilities, it is clear that the accused is interfering
with the course of justice by tampering with the witness.” Bail of police
officer was cancelled for threats to only eye-withness in case of torture to
Delhi, 1988 Cr.L.J. 1649.
The Supreme Court in Bhagirath Singh, 1984(2) C.L.R, 181 held that very
cogent and overhelming circumstances for the court are: (1) whether he is
likely to misuse the liberty on bail by tampering with evidence, and (2)
whether he will be readily available.
The grounds for cancellation of bail, as summed up in Joaquines Manu,
1973 C.L.J. 1876, can be:
 1. Where the person on bail, during the period of bail commits the very
same offence for which he is being tried or has been convicted and
thereby proves his unfitness to be on bail.
2. If he tampers the investigation, as will be the case if he, when on bail,
forcibly, prevents the search of places under his control for the corpus
delicti or other incriminating things.
3. If he tampers, with the evidence, as by intimidating the prosecution
witnesses; interfering with the scene of offence in order to remove
traces or proof of the crime, etc.
4. If he runs away to a foreign country or goes under ground or beyond
the control his sureties; and
5. If he commits acts of violence, in revenge against the police and
prosecution witness of those who have booked him or are trying to
book him.
The grounds for cancellation of bail has been further discussed in
Surender Singh 1990 Cr.L.J. 1904 (Pat) . Bail may be cancelled on the
following grounds—
(i) when the accused was found tampering with the evidence either
during the investigation or during the trial;
(ii) when the person on bail commits similar offence or any henious
offences during period of bail;
(iii) when the accused has absconded and trial of the case gets delayed on
that account;
(iv) when the offence so committed by the accused, that had created
serious law and order problem in the society and accused had become
a hazard on the peaceful living of the people;
(v) if the High Court finds that the Lower Court granting bail has
exercised its judicial power wrongly;
(vi) if the High Court or the Sessions Court finds that the accused has
misused the privilege of bail;
(vii) if the life of the accused itself be in danger.
For cancellation of bail for the prosecution to apply to the court.
Application for cancellation of bail until the enlargement of bail is
meaningless. Such application during pendency of petition for bail under
section 167 (2) Cr.P.C. is premature and is to be rejected– B.S. Rawat, 1991
Cr.L.J. 552. Moreover, private party can move cancellation of bail- Prafulla,
1989 Cr.L.J. 2016. As to which the court can cancel the bail, the following
rules have been laid down:
(a) The High Court or the Court of Session under section 439 Cr.P.C. and
in the case of a person released by itself, any other court i.e. the
court which released on bail, can cancel the bail section 437 (5)
Cr.P.C.
(b) The High Court has inherent powers under section 482/439 (2)
Cr.P.C. to cancel the bail granted by itself and to cancel the bail
granted by the Lower Courts including the Court of Sessions, 1956
Cr.L.J. 404 Champa Lall v. State . The High Court has been invested
with power under section 439 (2) Cr.P.C. to commit an accused to
custody released on bail under Chapter XXXIII by any court including
the court of Session if it thinks appropriate. The Delhi High Court
cancelled the bail of Gurcharan Singh and others in Sunder’s murder
granted by the Session and the Supreme Court refused to intervene
Gurcharan Singh, 1978 SC 179.
In case of anticipatory bail granted by the High Court, it is only the
High Court who can cancel it under section 439 (2). Magistrate or
even the Sessions Judge has no power to cancel (even at the time of
commitment), 1977 Cr.L.J. 492 Bhopal Ministry.
 (c) The Sessions Judge can cancel the bail granted by the Lower Court
under section 439 (2) Cr. P.C. State v. Kesari Mal, 1953 Cr.L.J. 442,
1953 MB 41.
(d) The Court or Magistrate who granted bail can cancel it under section
437 (5) Cr.P.C. In 1940 B. 40 it was held that judge or Magistrate
trying a criminal case has inherent power to direct re-arrest of
person released on bail by another Magistrate at an earlier stage of
the case. See explanation to Section 446 (1) Cr.P.C.
(e) The High Court can pass conditional orders of bail that bail was
liable to be cancelled by Magistrate if the accused tampers with
Prosecution Witness. Conditional orders of this kind are in many
cases convenient and are certainly not unusual in matters relating to
bail and it is within the competence of the High Court to make such
orders, 1953 Cr.L.J. 15 Champa Lall v. State following 47 Cr.L.J.
106,1945 Mad. 250 and 49 Cr.L.J. 521 (F.B.). 1948 All. 366,1952 MB
80 (F.B.), 1948 All. 366, 1952 MB 80. (F.B.) 1966 Cr.L.J.404 (MB).
(f) The High Court can cancel bail. Very cogent and overwhelming
circumstances are necessary for seeking cancellation of bail– Anil
Kumar, (1990) Crimes 454 (Bom.) relying on Bhagirath AIR 1984 SC
372.
(g) The Supreme Court can only be moved for granting bails in very
exceptional circumstances as held in Ventakarama’s case. The
accused was convicted by the Sessions Judge Delhi. Bail was refused
by the High Court pending appeal. The bail, however, was granted by
the Supreme Court, keeping in view the short-term of imprisonment
(6 months) imposed.
(h) An application is not a prerequisite for cancellation of bail. The
court can suo moto cancel bail, as held in 1959 Cr.L.J. 1398, PP v.
[Link] under section 439 Cr.P.C. (old) (401 new) when it
comes to its notice that an inferior court has acted beyond
jurisdiction. In a challan case, however, the application for
cancellation of bail should be by State and not a private person or
complainant. The court will not be justified to act upon private
persons application. Ganpati, 1972 Cr.L.J. 417 (Mys).
(i) For cancellation of bail, in order to prove the grounds for
cancellation viz. The accused is misusing his liberty or tampering
with evidence or has committed other offences, then evidence is
necessary. Such evidence can be in the shape of affidavits of persons
who are threatened to be won over or who can speak to the grounds.
Such affidavits are relevant was held in 1971 Cr.L.J. 496 (Punjab)
Gurdip Singh.
(j) Bail granted by the court on technical ground under section 167 (2)
Cr.P.C. can be cancelled by the court on receipt of challan later on or
at the time of commitment. Prem Charan, 1976 Cr.L.J. 145 (All.).
However, the Supreme Court in case Bashir and Other, 1977 Cr.L.J.
(SC) 449, 1978 SC. 58, held that bail cannot be cancelled merely on
the ground that challan has been given. For cancelling there must be
other grounds viz. if accused has committed any non-bailable offence
or he is tampering with evidence, etc. Bail can be cancelled only
under section 437 (5) or 439 Cr.P.C . Raghbir Singh, 1987. Cr.L.J.187
SC.
(k) Rape on a poor Harijan girl by people (gang rape) of higher caste
affluent, held, chance of tampering with evidence cannot be ruled
out. Bail to be cancelled– Raghubir Singh, 1990 Cr.L.J. (NOC) 122
(HP).
Section 437 Cr.P.C. Bail application–Acccused changed with minor
offence of exhortation was neither involved in any other case nor was history
sheeter cannot be denied bail merely because the main accused, his elder
brother was a desperado and could not be arrested due to political influence.
Accused directed to be released on bail. Brij Mohan alias Mohan v. The
State, 1997 Cr.L.J. 4266 Del.
Section 437(1) Cr.P.C. Bail–Grant of–Accused person charged under
section 120B read with Section 420, Penal Code. No likelihood of their
tampering with evidence case not falling under clause. (i) and (ii) of section
437(1). Accused entitled to bail. Chandraswami v. CBI, 1997 Cr.L.J. 3124 SC.
Accused suffering from AIDS claiming to be released in order to die in
home town. No provision nor meaning of word “bail” provides for release of
a person to die in home town said plea could not be granted. Surla alias
Sudalaimuthu v. State, 1997 Cr.L.R. 4590 (Mad).
Sections 437(5) and 439(2) Cr.P.C.–Cancellation of order passed on
grounds of possibility of accused applicant threatening witnesses and of his
absconding. Not vitiated for mentioning other reasons. Mohd. Arif Din Mohd
Shaikh v. State of Maharashtra, 1999 Cr.L.J. 2645 (Bom.)
Section 437 Cr.P.C.–Application for bail–Accused involved in of murder–
Role assigned to him is of exhortation only–Accused entitled for bail. Ram
Sanehi v. State of U.P., 1999 Cr.L.J. 3708 (All.).
Section 437 Cr.P.C.–Bail Release on condition that accused at F.I.R. stage
should pay huge sum of Rs. 2 Lacs onerous. In default thereof, accused is to
languish in jail endlessly improper. Moreso, when offences alleged against
accused were under section 420 and 406–Where bail would normally be
granted. Sandeep Jain v. NCT of Delhi, Secretary Home, 2000 Cr.L.J. 807
(SC).
Sections 437, 439 and 389 Cr.P.C.–Bail applications–Hearing of Practice
and Procedure–Successive bail applications in a pending appeal and bail
application under section 437/439 should be considered by the same
Judge/Bench who decided first application unless it is not available for
sufficient duration. Santosh v. State of M.P., 2000 Cr.L.J. 834 (MR).
Section 437 Cr.P.C.–Bail–Application for refusal validity offences causing
mental cruelty by demand of dowry which leads to suicide of wife–No
foundation for demand of dowry–No material showing causing of cruelty by
accused husband–Medical evidence only showing that deceased had
committed suicide–Accused released on bail on conditions laid down by
court. Suhaib Ilyasi v. State, 2000 Cr.L.J. 4766 (Delhi).
Section 437(6) Cr.P.C.–Bail–Entitlement to petitioner remaining in
custody for period more than 60 days from first date fixed for recording
evidence–Acquires statutory right of being released on bail under section
437(6)–Denial of bail to him on ground that he may not attend court on each
and every date fixed by Magistrate. Improper Provisons of section 437(6) are
mandatory. Ram Kumar alias Raj Kumar Rathore v. State of M.P., 2000
Cr.L.J. 2644 (MP).
Section 439 Cr.P.C.–Cancellation validity enlargement of accused on
anticipatory bail imposition of certain conditions to appear before Inspector
of Police as and when required–Failure on part of prosecution to show at any
point of time that accused were required to appear and they had not
appeared cancellation time on journal of non-appearance, not proper.
[Link] v. State, 1997 Cr.L.J. 1945 (Mad.).
Section 439 Cr.P.C.–Cancellation of bail–Nothing on record to show that
accused has tampered the prosecution case or has caused prejudice to
proper investigation of case–Misuse of liberty also not pleaded–Absence of
specific averments to this effect–Mere noticing of wrong fact by trial court
while granting bail would not constitute sufficient ground for cancellation of
bail. Mohan Singh v. State of Haryana, 1997 Cr.L.J. 2098 (P&H).
Section 439–Bail–Application for filed before High Court grant of bail by
Session Court pending such application not proper. Mahendra Singh v. State
of U.P., 1997 Cr.L.J. 4099 (All.).
 Section 439 Cr.P.C.–Cancellation of bail–No material showing that parties
have misued the liberty granted to them bail cannot be cancelled.
Rankanidhi Panda v. State of Orissa, 1997 Cr.L.J. 4217 (Ori.).
Cancellation of bail–When not permissible–Petitoner alleged that after
being released on bail one of the opposite parties abused and threatened
petitioner of dire consequences unless case is withdrawn–Failure on part of
petitioner to file complaint case in court relating to alleged incidents since
offences were on–Cognizable absence of material to hold that opposite
parties had misued liberty granted in their favour–Bail could not be
cancelled. Bhagirathi Das v. State of Orissa, 1997 Cr.L.J. 4488 (Ori.).
Section 439 Cr.P.C.–Bail–Mere non-holding of Test Identification Parade–
Cannot be ground for releasing accused on bail. Satyavir v. State of U.P.,
1998 Cr.L.J. 124 (All.).
Sections 439 and 301(2) Cr.P.C.–Cancellation of bail application can be
filed by public prosecutor only Complainant or relations or interested
persons of deceased victim have no locus standi to file such application.
Sardela Damodar v. State of A.P., 1998 Cr.L.J. 277 (A.P.).
Section 439 Cr.P.C.–Bail–Cancellation of Necessity–Accused arrested for
commission of bailable offences and released on bail subsequently, charge
was altered and non-bailable offence was included in charge against accused
re-arrest of accused in same crime number without cancellation earlier bail
grant by same court not proper. Ataulla v. State of Karnataka, 1998 Cr.L.J.
913 (Kant).
Section 439 Cr.P.C.–Cancellation of bail–Overwhelming circumstances are
necessary. Onkar Gulati v. State & Another, 1998 Cr.L.J. 1320 (Delhi).
Section 439 Cr.P.C.–Bail Cancellation–A Judge hearing bail application of
one accused cannot cancel bail granted to co-accused on ground that bail
had been granted in flagrant violation of well-settled principles. In such
case, he may refer matter to judge who had granted bail, for appropriate
orders. Chander Alias Chandra v. State of U.P., 1998 Cr.L.J. 2374 (All.).
Bail Cancellation–Bail passed in favour of accused on basis of wrong or
incorrect documents. It is open to any judge to initiate action for
cancellation of [Link] alias Chandra v. State of U.P., 1998 Cr.L.J. 2374
(All.).
Section 439 Cr.P.C.–Bail refusal to grant–Adulteration of mustard oil.
Accused has been manufacturing and selling adulterated oil for personal
profit. Process of investigation not completed. Enlargement of accused on
bail would lead to tampering with evidence. Refusal to grant bail is proper.
K.K. Agarwal v. CBI, 1999 Cr.L.J. 490 Delhi.
Section 439 Cr.P.C.–Cancellation of bail–High Court overlooked
distriction of factors relevant for rejecting bail at initial stage and cancelling
bail once granted. Cancellation of bail done in mechanical manner order not
sustainable. Subhendu Mishra v. Subrat Kr. Mishra, 1999 Cr.L.J. 4063 SC.
Section 439 Cr.P.C.–Bail–Accused can pray for bail as and when he
intends to High Court can reject prayer of accused seeking release on bail
but cannot prevent accused from exercising his right to be released on bail.
Manjoor Khan v. State of Bihar, 1999 Cr.L.J. 5006 SC.
Section 439(2) Cr.P.C.–Bail cancellation of bail obtained by accused by
misleading the court, suppressing fact that his previous two bail applications
were rejected. Bail liable to be cancelled on aforesaid grounds itself, even in
absence of supervening circumstances. Ramesh Kateha v. State of M.P., 1999
Cr.L.J. 4243 (M.P.).
Section 439 Cr.P.C.–Bail–Wrong order passed granting bail to accused
released persuant to order rectification of mistake order recalled and trial
court directed to bring accused into custody. Accused must be given
opportunity of hearing. Rajendra Prasad Arya v. State of Bihar, 2000 Cr.L.J.
4046 SC.
 Section 439 Cr.P.C.–Cancellation of bail–Hearing to accused process
server indication that accused person refused to accept notice served.
Report of server not sufficient proof of notice. Accused is entitled to hearing
before bail is cancelled. Gurdev Singh v. State of Bihar, 2000 Cr.L.J. 4686
SC.
Section 439(2) Cr.P.C.–Bail cancellation of mere allegation that accused
terrorise the presecution witness in absence of any corroborative evidence.
Not sufficient to cancel the bail. Banchhanidhi Samal v. Arjuna rout, 2000
Cr.L.J. 3257 (Ori.).
Sections 439(2) and 438 Cr.P.C.– I.P.C. Section 498A–Offence under
section 498A I.P.C.–Anticipatory bail granted to accused–Cancellation of bail
on the ground that accused had gone to house of a Prosecution Wintess and
administered him a threat–Complaint lodged with police after two days of
threat–This delay in lodging a complaint itself creates a doubt in our mind as
to the authenticity of this complaint–Order of cancellation of bail set aside.
Raj Kumar Jain v. Kundan Jain, AIR 2004 SC 3794.
Sections 439(2) and 437(5) Cr.P.C.–Cancellation of bail–Grounds for
cancellation under section 437(5) and 439(2) Cr. P.C. are identical, namely,
bail granted under section 437(1) or Section 439(1) Cr. P.C. can be cancelled
where:—
(1) The accused misuses his liberty by indulging in similar criminal
activity.
(2) Interferes with the course of investigation.
(3) Attempts to tamper with evidence or witnesses.
(4) Threatens witnesses or indulges in similar activities which would
hamper smooth investigation.
(5) There is likelihood of his fleeing to another country.
(6) Attempts to make himself scarce by going underground or becoming
unavailable to the investigating agency.
(7) Attempts to place himself beyond the reach of his surety, etc.
(8) These grounds are illustrative and not exhaustive. Ram Singh v. State
of Haryana, 2005(1) RCR (Criminal) 36.
Section 439(2) Cr.P.C.–Bail in Murder case granted by High Court on the
ground that investigation would take one year and the accused had some
ailment–Bail cancelled–These are not grounds on which bail should be
granted in a case of such a serious nature–It was not stated accused has not
received proper medical treatment from jail authorities. Pawan @ Tamatar v.
Ram Prakash Pandey, AIR 2002 SC 2224.
Section 439(2)–Cancellation of bail–Who can apply for cancellation of
bail–Bail allowed in dowry death case–State made no application for
cancellation of bail–Father of deceased can make application for cancellation
of bail–Further held, power so vested in the High Court can be invoked
either by the state or by any aggrieved party–Power could also be exercised
suo motu by the High Court–Any member of the public, whether he belongs
to any particular profession or otherwise could move the High court to
remind it of the need to exercise its power suo moto. Puran v. Rambilas, AIR
2001 SC 2023.
Section 439(2) Cr.P.C.–Cancellation of bail–Accused named for
committing offence under section 120B after 4½ months from date of
murder–Anticipatory bail allowed to accused by Sessions Judge–Bail
cancelled by High Court–Judicial discretion exercised in granting
anticipatory bail not perverse–Order of cancellation of bail by High Court
passed in mechanical manner without considering contentions raised by
parties such as about false involvement of accused because of political
rivalry, etc.–Order of High Court set aside. Mahant Chand Nath Yogi v. State
of Haryana, AIR 2003 SC 18.
 Section 439(2) Cr.P.C.–Bail granted to accused in an offence under
section 498A, 405, and 420 I.P.C.–Bail cannot be cancelled by High Court by
giving findings on factual issues which were to be decided at trial.
Samarendra Nath Bhattacharya v. State of W.B., AIR 2004 SC 4207.
Section 439(2) Cr.P.C.–Cancellation of bail–Object underlying the
cancellation of bail is to protect the fair trial and secure justice being done
to the society by preventing the accused who is set at liberty by the bail
order from tampering with the evidence in heinous crime and if there is
delay in such a case the underlying object of cancellation of bail practically
loses all its purpose and significance–Once a person released on bail in
serious criminal cases where the punishment is quite stringent and deterrent
the accused in order to get away from the clutches of the same indulge in
various activities like tampering with the prosecution witnesses, threatening
the family members of the deceased victim and also create problems of law
and order situation. Panchanan Mishra v. Digambar Mishra, 2005 (3) SC 143.
Section 439(2) Cr.P.C.–Cancellation of bail–Two F.I.R. against accused in
different offences–Accused arrested in one F.I.R.–Accused will not be
deemed in custody in second F.I.R. without formal arrest–Bail granted to
accused under section 167(2) Cr.P.C., in second case, considering his
custody of police–Bail cancelled. State of Rajasthan v. Ravishankar
Srivastav, 2005 Cr.L.J. 4216.
Section 439(2) Cr.P.C.–Bail granted by Sessions Court can be cancelled
by Magistrate (Subordinate Court) if Magistrate was authorized to do so by
Sessions Court. P.K. Shaji v. State, AIR 2006 SC 100.
Sections 439 and 437 (i) Cr.P.C.–Section 302 IPC–Bail in Murder case–
Charge against accused that he was party to conspiracy to commit murder–
No worthwhile prima facie evidence brought to the notice of court except
retracted confession of accused–Bail allowed. Jayendra Saraswathi v. State
of T.N., AIR 2005 SC 716.
Sections 439 and 437–Grant of bail and cancellation of bail–Different
considerations have to be weighed while dealing with applications for
cancellation of bail and for grant of bail respectively–Bail can be cancelled
on existence of cogent and overwhelming circumstances but not on re-
appreciation of evidence. Ramcharan v. State of M.P., 2006 (2) Apex
Criminal 216.
Sections 439 and 437 Cr.P.C.–Bail granted subject to deposit to Rs. 2.50
lacs which he had misappropriated–Deposit was not warranted–Direction to
deposit deleted. Seikh Ayub v. State of M.P., 2006 (1) Apex Criminal 407.
Section 439 Cr.P.C.–Bail in murder case–Infant living with accused in jail
– Child attained 3 years and could not be kept in jail under rules–Bail
allowed on this consideration. Smt. Akhtari Be v. State of M.P., AIR 2001 SC
1528.
Section 439 Cr.P.C.–Accused arrested for an offence exclusively triable by
Sessions Judge–There is no legal bar for Magistrate to consider bail
application of accused–It would be proper and appropriate that in such a
case the Magistrate directs the purposes of getting the relief of bail–In a
case, where the Magistrate has no occasion and in fact does not find, that
there were no reasonable grounds to believe that the accused had not
committed the offence punishable with death or imprisonment for life, he
shall be deemed to be having no jurisdiction to enlarge the accused on bail.
Prahalad Singh Bhati v. NCT Delhi, AIR 2001 SC 1444.
Section 439 Cr.P.C.–Bail allowed by single Judge–Petition for cancellation
of bail heard by another single Judge who cancelled the bail on the ground
that bail was obtained by misappropriation of facts–Bail application should
be placed before same Judge who granted bail–Cancellation of bail by other
Judge of High Court, not proper. Harjeet Singh @ Seeta v. State of Punjab,
AIR 2002 SC 281.
 Section 439 Cr.P.C.–Court has discretionary power to grant bail, but
discretion is to be exercised with great care and caution–In granting or
refusing the bail, the courts are required to indicate, may be very briefly,
the reasons for grant or refusal or bail. Mansab Ali v. Irsan, AIR 2003 SC
707.
Section 439 Cr.P.C–Accused has right to make successive applications for
bail–In such a case court has to consider the reasons and grounds on which
earlier bail applications were rejected and what were the fresh grounds
which persuade it to take a different view. K.C. Sankar v. Ranjan @ Pappu
Yadav, AIR 2004 SC 1866.
Section 439 Cr.P.C.–Bail application–Detailed examination of the evidence
and elaborate documentation of the merits of the case is to be avoided by the
court while passing orders on bail applications–Court should, however,
satisfy as to whether there is a prime a facie case, but exhaustive
exploration of the merits of the case is not necessary. Chaman Lal v. State of
U.P., AIR 2004 SC 4267.
Section 439 Cr.P.C.–Bail–For seeking bail under section 439 Cr.P.C., the
accused should be in custody–A person would be said to be in custody when
he is in duress either because he is held by the investigating agency or other
police or allied authority or is under the control of the court having been
remanded by judicial order, or having offered himself to the courts
jurisdiction and submitted to its orders by physical presence. Sunita Devi v.
State of Bihar, AIR 2005 SC 498.
Section 439 Cr.P.C.–For the purpose of considering an application for
grant of bail, although detailed reasons are not necessary to be assigned, the
order granting bail must demonstrate application of mind at least in serious
cases as to why the applicant has been granted or denied the privilege of
bail–Duty of court at the stage of bail is not to weigh the evidence
meticulously but to arrive at a finding on the basis of broad probabilities.
R.B. Sharma v. State of Maharashtra, 2005 (5) S CC 294 (SC).
Section 439 Cr.P.C.–Temporary bail–Misappropriation of huge amount–
Accused in jail for long–Accused released on temporary bail to enable them
to make rearrangement for payment. CR. Patil v. State of Gujarat, AIR 2005
SC 3117.
Section 439 Cr.P.C.–Section 302 I PC–Grant of bail–Offence non-bailable–
One of the considerations in granting bail in non-bailable offences is the
gravity and the nature of the offence–In the instant case–High Court granted
bail to an accused who is an Advocate–Order of bail set aside the manner of
granting bail was not correct. Anil Kumar Tulsiyani v. State of U.P., 2006 (5)
J.T. 411 (SC).
Section 439 Cr.P.C.–Bail in murder case–Case of blind murder–Petitioner
not named in F.I.R.–Police had, in fact, submitted a cancellation report
which was however, not accepted by the court and as such the trial was
started–Petitioner in custody for four years–Bail allowed without commenting
on merits. Major Singh v. State of Punjab, 2006(3) RCR (Criminal) 919.
Section 439 Cr.P.C.–Belated gathering of evidence, particularly on the
direction of Supreme Court, cannot be a ground to refuse bail–Same would
be the position regarding the confessional statement. State of Maharashtra
v. Vashistha Rambhan Andhale, 2007(3) Crimes 344 SC.
Section 439 Cr.P.C.–In the absence of any discussion about relevance of
grant of bail to the co-accused and conclusion of no motive, or there was a
sudden quarrel appear to have been arrived at without reference to any
particular material, impugned order not sustainable and matter remitted
back for consideration afresh. Bail granted to respondent No. 2 by the High
Court is cancelled. Sudha Verma v. State of U.P., 2007(4) Crimes 62 SC.
Section 439 Cr.P.C.–The matter of any studied inaction or aid extended to
the members of an organized crime, the members of an organised gang
involved in such crime possibly amounting to an offence under MCOCA
particularly when dealing with the case of a police officer allegedly involved
in the crime. But that is the matter decided by the Trial Court at the time of
trial of the offence. No interference with order of High Court granting bail
required. State of Maharashtra v. Vashistha Rambhan Andhale, 2007(3)
Crimes 344 SC.
Section 439 Cr.P.C.–There is need to indicate in the order granting bail,
reasons for prima facie concluding why bail was being granted particularly
where an accused was charged of having committed a serious offence–Three
factors necessary to be considered before granting bail enumerated–At the
same time, the tendency to virtually write a judgement while disposing of an
application for grant a bail must also discouraged. Sudha Verma v. State of
U.P., 2007(4) Crimes 62 SC.
Section 439 Cr.P.C.–Bail–While concurring with the lower court's order it
may not be necessary for the appellate court to assign reasons but that is
not so while reversing such orders of the lower courts–There is a need to
indicate in the order, reasons for prima facie concluding why bail was being
granted particularly where an accused was charged of having committed a
serious offence–It is necessary for the courts dealing with application for
bail to consider other circumstances also. Any order dehors of such reasons
suffers from non-application of mind–Impugned order of High Court set aside
and matter remitted back for fresh consideration in the light of settled law
position. Deepak Singehi v. State of Rajasthan, 2007(3) Crimes 294 SC.
Section 439 Cr.P.C.–The observations in an order granting bail obviously
may not be considered an authoritative pronouncement on the relevant
aspects at the trial of the cause or as concluding any question. Such
observations cannot control of the decisions to be taken after trial by the
concerned court–Hence no interference required with the order of High
Court granting bail. CBI v. Pradeep Bhalchandra Sawant, 2007(3) Crimes
341 SC.
Section 439 Cr.P.C.–Bail–Grant of–Appeals against orders granting bail to
respondents in two cases relating to offence of murder–Mere facts that
accused had undergone certain period of incarceration by itself would not
entitle accused to being enlarged on bail, nor fact that trial is not likely to
be concluded in near future either by itself or coupled with period of
incarceration would be sufficient for enlarging appellant on bail when
gravity of the offence alleged is severe and there are allegations of
tampering with witnesses by accused during period he was on bail– when
basic requirements necessary for grant of bail are completely ignored by
High Court, Court would be justified in cancelling the bail. Gobarbhai
Naranbhai Singala v. State of Gujarat, 2008 (1) Crimes 274 SC.
Section 439(2) Cr.P.C.–Cancellation of bail–It is trite law that
consideration for grant of bail and cancellation of bail stand on different
footings–When a person to whom bail has been granted either tries to
interfere with course of justice or attempts to tamper with evidence or
witnesses or threatens witnesses or indulges in similar activities which
would hamper smooth investigation or trial, bail granted can be cancelled–
Rejection of bail stands on one footing, but cancellation of bail is a harsh
order because it takes away the liberty of an individual granted and it not to
be lightly resorted to. Manjit Prakash v. Shoba Devi & Another, 2008(3)
Crimes 107 SC.
Section 439(2) Cr.P.C. read with 37 NDPS Act, 1985–The Act although is a
self-contained code, application of the provisions of the Criminal Procedure
Code however, either expressly or by necessary implication, have been
excluded. There exists a distinction between an appeal from an order
granting bail and an order directing cancellation of bail. While entertaining
an application for cancellation of bail, it must be found that the accused had
misused the liberty granted to him as a result. It is true that the general
principles of grant of bail are not applicable to a case involving the Act. The
power of the court in that behalf is limited. Sami Ullaha v. Superintendent,
Narcotic Central Bureau, 2008(4) Crimes 430 SC.
Section 439 Cr.P.C.–Irrelevant materials should not have been taken into
consideration which add vulnerability to the order granting bail. The
irrelevant materials should be of a substantial nature and not of a trivial
nature. The shady reputation and criminal antecedents of accused was not
certainly a factor which was to be considered while granting bail–It was the
nature of the acts which ought to have been considered–Once it is concluded
that bail was granted on untenable grounds, the plea of absence of
supervening circumstances has no legs to stand. Dinesh M.N. (SP) v. State of
Gujarat, 2008(2) Crimes SC.
Section 439 Cr.P.C.–Grant of bail–Application for relaxation of conditions
of bail–While granting bail conditions were imposed that appellant shall
report to named police station once every fortnight, appellant shall not leave
the State without informing I.O. and shall not tamper with evidence or threat
any witness or try to influence any person concerned with investigation of
the case–Some of the co-accused obtained bail on the same terms and
conditions as was granted by Apex Court and have obtained relaxation of
first two conditions. Since the investigation has been completed, first two
conditions relaxed with the direction to petitioner that he shall not leave
India without permission of the Apex Court and shall report to the
investigating agency as and when required. Padma charan Patra v. State of
Orissa, 2008(2) Crimes 178 SC.
Section 439 Cr.P.C.–Arrest of accused persons under section 302 and
120B I.P.C. for entering into a criminal conspiracy to commit murder of
deceased and for arranging two shooters who caused death of deceased–
Prayer of bail rejected by Sessions Judge–Allowed by High Court granting
bail to Respondent No. 2–Appeal there against–Though a conclusive finding
in regard to points urged by parties is not expected of court considering bail
application, yet giving reasons in different from discussing merits or
demerits–At the stage of granting bail a detailed examination of evidence
and elaborate documentation of merits of the case has not to be undertaken
but that does not mean that while granting bail some reasons of prima facie
concluding why bail was being granted is not required to be indicated–High
Court while granting bail had practically written a judgement of acquittal by
not only referring to incriminating materials but also conclude about their
unreliability–High Court not justified in granting bail–Impugned order set
aside. Lokesh Singh v. State of U.P., 2009(1) Crimes 113 SC.
Section 439 Cr.P.C.–Conditions laid down under section 437(1)(i) are sine
qua non for granting bail even under section 439 of the code. State of
Maharashtra v. Dhanendra Shriram Bhurle, 2009(1) Crimes 365 SC.
Section 439 Cr.P.C.–Grant of bail–It is trite to state that the court
granting bail has to exercise its discretion in a judicious manner with care
and caution and not as a matter of course. Though at the stage of granting
bail an elaborate examination of evidence and detailed reasons touching the
merit of the case, which may prejudice the accused, should be avoided but
there is a need to indicate in such order reasons for prima facie concluding
why bail was being granted particularly where the accused is charged of
having committed a serious offence. Any order devoid of such reasons would
suffer from non-application of mind. Masroor v. State of U.P., 2009(2)
Crimes 280 SC.
Section 439 Cr.P.C.–It is now settled law that complaint can always
question the order granting bail if the said order is not validly passed. It is
not as if once bail is granted by any court, the only way is to get it cancelled
on account of its misuse. The bail order can be tested on merit also. No
reasons has been given by Judge while granting bail and it seems to have
been granted almost mechanical manner without considering the pros and
cons of the matter. While granting bail, particularly in serious cases like
murder some reasons justifying the grant are necessary–Direction given to
High Court to decide application again. Brij Nandan Jaiswal v. Munna @
Munna Jaiswal, 2009(1) Crimes 153 SC.
Section 439 Cr.P.C. Bail–Additional Chief Judicial Magistrate rejecting
three bail applications–Allegation to have committed a henious crime of
killing an old helpless lady by strangulation. He was seen coming out of the
victim’s house by a neighbour around the time of the alleged occurrence. It
was not the stage at which bail under section 439 should have been granted
to the accused moreso, when even charges have not yet been framed–High
Court ought not to have granted bail. Prasanta Kumar Sarkar v. Ashis
Chatterjee, 2010(4) Crimes 297 SC.
Section 439 Cr.P.C.–Bail–It is well settled that, among other
circumstances, the factors to be borne in mind while considering an
application for bail are:–
(i) Whether there is any prima facie or reasonable ground to believe
that the accused had committed the offence,
(ii) Nature and gravity of the accusation,
(iii) severity of the punishment in the event of conviction,
(iv) Danger of the accused absconding or fleeing, if released on bail,
(v) Character, behaviour, means, position and standing of the accused,
(vi) Likelihood of the offence being repeated
(vii) Reasonable apprehension of the witnesses being influenced, and
(viii) Danger of course, of justice being thwarted by grant of bail.
Prasanta Kumar Sarkar v. Ashish Chatterjee, 2010(4), Crimes 297
SC.
Section 439(2) Cr.P.C.–Canellation of bail–Magistrate granted bail to
petitioner–Accused after bail application had been dismissed by sessions
court on merrits considering grave nature of offence–Session Court
cancelled the bail–Revision–Whether a subordinate criminal court could
entertain a petition for bail by a person accused of non-bailable offence after
a superior court declined to grant bail to such accused on merits?–The
answer is negative. Ajayaraj v. State of Kerala, 2010(3) Crimes 20 Ker.
Section 439(2)–Petition for cancellation of bail–Competence of complaint
to file the petition–Power under section 439(2) Cr.P.C. for cancellation of
bail can be exercised as instance of State as well as instances of aggrieved
party. Subhash Chander v. State of Haryana, 2011(1) Crimes 406 (P & H).
Section 439(2) Cr.P.C.–It is well-settled that the parameters of accepting
the bail are altogether distinct from the parameters of cancelling the bail
already granted. The respondents have not accused the liberty of bail. The
petitioner has not quoted any instance to prove that the respondents
tampered with or endeavoured to tamper with any witness, posed any threat
to the petitioner, tried to hide himself or hampered the investigation or the
trial of the case, as such, the petition deserves to be dismissed. Parameters
of accepting bail were distinct from parameters of cancellation of bail. No
cogent or overwhelming circumstances put forth which justified cancellation
of bail. Kailash Chandra Yadav v. Suresh Kumar, 2011(3) Crimes 514.
Section 439 Cr.P.C.–Appellants facing trial in respect of offences under
section 420B, 468, 471 and 109 I.P.C. and section 13(2) read with 13(i)(d) of
I.P.C. Act, 1985–Bail application rejected by Special Judge and High Court
on the grounds of seriousness of charge, nature of evidence in support of
charge, likely sentence to be imposed upon conviction, possibility of
interference with witnesses, the objection of the prosecuting authorities,
possibility of absconding from justice–Held–Even though accused were
charged with economic offences of huge magnitude offences alleged, if
proved, may jeopardise the economy of the country–However at the same
time, one could not lose sight of the fact that investigating agency had
already completed investigation and the charge sheet had already been filed
before Special Judge, CBI, Delhi–Therefore, their presence in the custody
may not be necessary for further investigation– Appellants released on bail.
Sanjay Chandra v. CBI, 2011(4) Crimes 323 SC.
Section 439 Cr.P.C.–Petitioner was arrested in rape and murder charge–
No direct evidence against charge appellant–Neither dead body of the victim
girls aged 8 years and 11 years were recovered at instance of petitioner–
Factors to be taken into consideration by Court–Nature of accusation and
severity of punishment in case of conviction and nature of supporting
evidence–Because of no convicting evidence was against petitioner, he
deserved to bail. Dinesh Singh v. State of U.P., 2012(1) Crimes 538 (All.).
Section 439 Cr.P.C.–Prosecution of Respondent No. 2 under section 302
and 307 I.P.C.–Pending proceeding of trial, order passed by High Court
granting conditional bail to Respondent No. 2–Appeal–Held, in the impugned
order itself, High Court had made it clear that in the case of breach of any of
the conditions, trial court would have liberty to take steps to send
Respondent No. 2 to jail again– If the appellant received any fresh threat
from respondent No. 2 or from his supporters, he was free to inform trial
court and trial court was free to take appropriate steps–Appeal dismissed.
Maulana Mohd. Amir Rashadi v. State of U.P., 2012(1) Crimes 145 SC.
Section 439 Cr.P.C.–Application for grant of bail by appellant. Rejected by
High Court–Appeal–Evidence on record that appellant had been arrested in
connection with a F.I.R. lodged 9 yrs after incident–During all these years
there was no allegation that appellant had interfered with the investigation–
In connection with this case he was also granted anticipatory bail–Such
privilege was neither abused or misused by appellant–Appeal allowed
directing that appellant by released on bail by Trial Court by imposing such
conditions as may be necessary to secure appellant’s presence during the
trial. Susanta Ghosh v. State of west Bengal, 2012(1) Crimes 325 SC.
Section 439–Cancellation of bail–Appeal against–In this case, High Court has
cancelled the bail granted to appellant by the Session Court. An appeal was filed before
Apex Court. The Apex Court said that it was evident that the appellant had made
numerous attempts to intimate the witnesses and had also threatened the I.O. Hence,
the trial ought to be conducted in a free and fearless atmosphere. Petition dismissed
and case transferred outside the district for trial. Gulabrao Baburao Deokar v. State of
Maharashtra, 2014 Cr.L.J. 845 SC.
Section 439–Cancellation of bail–In the instant case, it found that when a stand was
taken that the second respondent was a history-sheeter, it was imperative on the part of
the High Court to scrutinize every aspect and not capriciously record that the second
respondent is entitled to be admitted to bail on the ground of purity. As a matter of fact
it has been brought on record that the second respondent has been charge sheeted in
respect of number of other heinous offences. The High Court has failed to take note of
the same High Court. Order set aside. Neeru Yadav v. State of U.P., 2015 Cr.L.J. 4862.
Section 439–Bail–Cancellation of–The Apex Court held that a bail application cannot
be allowed solely or exclusively on the ground that the fundamental principles of
criminal jurisprudence is that the accused is presumed to be innocent till he is found
guilty by the competent court. Visupakshappa Gonda v. State of Karnataka, 2017 Cr.L.J.
2769 SC.
Section 439–Bail–When can be granted–These factors must be kept in mind while
exercising the power of grant of bail by court are as under—
(i) The nature of accusation and the severity of punishment in case of conviction
and the nature of supporting evidence;
(ii) reasonable apprehension of tampering with the witness or apprehension of
threat to the complainant;
(iii)prima-facie satisfaction of the court in support of the charge. Visupakshappa
Gonda v. State of Karnataka, 2017 Cr.L.J. 2769 SC.
Section 439–Bail during pendency of appeal–In this case, the accused appellant was
in custody for over 13 years and the appeal was pending since 2014. The Apex Court,
taking into account the above said facts, ordered for release of the accused appellant on
bail. Subject to the satisfaction of the trial Court in connection with the criminal case.
Shyamlal v. State of Rajasthan, 2017 (4) Crimes 317 SC.
Section 439–Cancellation of bail–Human trafficking offences when accused persons
had been charged for offences of human trafficking & other immoral traffic and forced
the minor girls into prostitution. Minor girls were rescued during the raid. All of them
were confined and were subjected to torture and harassment. Considering the
seriousness of the allegations, the Supreme Court opined that the High Court ought not
to have granted bail in a mechanical manner without even noticing the facts of the case.
Order set-aside. Guria Swayam Savi Sansthan v. Satyabhama, 2017(4) Crimes 327 SC.
Section 439–Dismissal of appeal–The gravity of the crime should have been taken
note of by the trial judge. The perversity of approach by the ADJ, who has enlarged the
appellants on bail, is totally unacceptable order set aside. Virupakshappa Gouda v. State
of Karnataka, AIR 2017 SC 1685.
Section 439–Insposition of condition for grant of bail–Charge sheet was filed against
the appellant and four others. The case against the appellant is almost similar to that of
other co-accused who have been enlarged on bail. No criminal antecedents have been
reported against the appellants. It is just and proper to enlarge the appellant on bail
subject to the conditions. Ajit Singh v. State of Chhattisgarh, AIR 2017 SC 310.
Section 439–Rejection of bail–Where prosecution succeeded in establishing that on
the basis of statements of prosecution witnesses that at the first instance, the case of
money laundering was made out against accused person, the alleged accused was
refused to grant bail. Rohit Tandon v. Enforcement Directorate, 2018 Cr.L.J. 416 SC.
Section 439–Bail application Disposal of–When an accused applicant moved a bail
application in case of recovery of 14kg ‘ganga’ was made from his possession. Bail of
accused was granted on the ground that no ‘ganga’ was recovered from him and he was
also not found involved in any other case. Birbal v. The State of Bihar, 2018 Cr.L.J. 679
SC.
Section 439—Rejection of bail–Accused, already taking recourse to remedy before
jurisdictional High Courts, can pursue all legal remedies available to them as per law.
Bail rejected. Ramila Thapar v. Union of India, 2019 Cr.L.J. 262 SC.
Section 439–Grant of bail–The allegation on accused was that he acted as a conduit
for transfer of funds received from terrorist, ISI and connected to Hurriyat leaders. The
question was whether the accusations made against accused are prima facie true? The
Apex Court said that the court is merely expected to record a finding on the basis of
broad probabilities regarding the involvement of the accused in the commission of the
stated offence or otherwise. The totality of the material gathered by the investigating
agency and presented alongwith the report and including the case diary, is required to
be reckoned and not by analysing individual pieces of evidence or circumstances. The
High Court clearly onverlooked the settled legal position that, at the stage of
considering the prayer for bail, it is not necesssary to weight the material, but only form
opinion on the basis of the material before it on broad probabilities. National
Investigating Agency v. Zahoor Ahmad Shah Watali, 2019 Cr.L.J. 2609 SC.
Section 446A.–Cancellation of bond and bail bond.— Without
prejudice to the provisions of Section 446, where a bond under this Code is
for appearance of a person in a case and it is forfeited for breach of a
condition:
(a) the bond executed by such person as well as the bond, if any,
executed by one or more of his sureties in that case shall stand
cancelled, and
(b) thereafter, no such person shall be released only on his own bond
in that case, if the police officer or the court as the case may be for
appearance before whom the bond was executed, is satisfied that
there was no sufficient cause for the failure of the person bound by
the bond to comply with its condition.
Provided that subject to any other provision of this code he may be
released in that case upon the execution of a fresh personal bond for such of
money and bond by one or more of such sureties as the police officer or the
court, as the case may be think sufficient.
Section 446 (3) Cr.P.C.–Forfeiture of bail bond–Accused on bail–Surety
could not produce the accused in Court–Court can forfeit surety bond and
impose penalty–Court has, however, discretion to grant remission. Phunan
Singh v. State of Punjab, 2003 (4) Crimes 230 (P & H).
Section 446 (4) Cr.P.C.–Death of surety–Accused jumped bail after death
of surety–Order directing heirs of surety to deposit surety amount in Court–
Order is illegal. Ram Singh v. State of M.P., 2006 Cr.L.J. 1372 (M.P.).
Section 446 Cr.P.C.–Absence of accused who was bail–Forfeiture of bond–
Mere finding that an accused was absent and that it was sinful may not be
sufficient–The court must satisfy itself that the absence was not only wilful,
but such default was with a view to hinder the course of a smooth trial and
to defeat the purpose of bond also–The court must also be satisfied that the
default was such that it could result in forfeiture of bond amount and
thereby liability to pay penalty. Usman v. State of Kerala, 2006 (1) RCR
(Criminal) 284 (Kerala).
Section 441 and 446 Cr.P.C.–Accused convicted by Trial Court–Just before
pronouncement of judgement, the accused ran away from the court–Despite
grant of time, surety could not produce the accused in the court–Surety’s,
liability cannot be discharged on the ground that for sometime accused
remained present in the court the duty of the surety is to see that accused
remained present continuously till conclusion of proceedings–Trial Court
rightly forfeited the amount of surety bond. Sahab Singh v. State of M.P.,
2006 Cr.L.J. 348 (M.P.).

Bail of Approver
An approver cannot be released on bail 1953 Cr.L.J. 45 (Mad.) Karupa
Several v. Kundran. Even if hostile, 1953 Cr.L.J. 50 (Mad) Parejla . He must
be detained in custody till the termination of trial unless he is already on
bail. Ayodhya Singh, 1973 Cr.L.J. 768.
See Section 306(4) Cr.P.C. This provision of detaining approvers in
custody till termination of trial is not against Article 13 or 14 of the
Constitution of India 1956 Bhopal 6. The High Court has inherent power to
release approver on bail if there is no trial and no likelihood of such trial.
A.O. Mehra v. State, 1958 Cr.L.J. 413 (Punjab) (See Chapter ‘Approver’).

Bail after Conviction under section 389(3) (Cr.P.C.)

The accused who is convicted of a bailable offence and he is on bail by
the court after a sentence of imprisonment can be released on bail if he
satisfies the court that he intends to file an appeal. The sentence of
imprisonment should remain suspended for the period allowed for filing an
appeal or till the order by the appellate the court are obtained under section
389 (1) Cr.P.C. But the court cannot release on bailor suspend sentence to
enable to convict to file revision. It is only High Court which can pass
appropriate order presumably under section 482 Cr.P.C. Arvind Maneklal,
(1987) 3 Crimes 910 (Guj.). If the accused misuses his liberty on bail the
High Court in exercise of its inherent powers under section 482 Cr.P.C. can
order cancellation of bail and recommit the accused to custody as held in
1967 SC 286. Pampapathy.
The accused who is already on bail, is convicted of non-bailable offence,
but to imprisonment for a term not exceeding 3 years, can also be released
on bail by the convicting the court to enable him to file appeal under section
389 (3)(i) Cr.P.C.
There is, however, a conflict of opinion whether in case of imprisonment
and fine both, the court can grant bail or not. According to sub-section 3 of
Section 389 Cr.P.C. only sentence of imprisonment shall remain suspended
and not of fine. As such fine should be paid before the benefit of section 389
is to be taken. The bail also should be granted at the time of announcing the
order and not later as in that case the sentence of imprisonment will begin
and jurisdiction of the Trial Court over the offender will come to an end.

Grant of Bail during Pendency of Appeal

In cases, after conviction, if bail is not granted under section 389 Cr.P.C.,
the convict is likely to serve his imprisonment. The appeals are often not
heard for long and substantial part of imprisonment before final decision is
likely to be served. In such case of delayed hearing of appeals, the High
Court has power to grant bail. Harbhajan Singh, 1977 Cr.L.J.1424 (Punjab) .
Even the Supreme Court on special leave to appeal in cases in which
convicts had served fair part of their sentence and appeal is not likely to be
heard within a reasonable time granted bail till pendency of appeal Kashmir
Singh, 1977 Cr.L.R. (SC) 411. Bail granted under section 389 after
conviction can be cancelled by appellate court 1989 Cr.L.J. 165. Section 381
does not apply the Supreme Court, that court being not appellate court.
Bhaskaran, 1987 Cr.L.J. 1588.
Section 389–Suspension of sentence bail during pendency of appeal
cannot be granted as a matter of course powers to suspend sentence is
discretionary and has to be exercised judiciously. Notice to public
prosecutor is necessary before considering application for bail.
Santhanapandi v. State, 1999 Cr.L.J. 861 (Mad.).
Sections 389 and 437–Application for suspension of sentence pending
appeal cannot be treated as bail application simpliciter nor can be detached
from appeal to be posted before same bench Judge who dealt with such like
application earlier. Gopal v. State of M.P., 1999 Cr.L.J. 1438 M.P.
Section 389 Cr.P.C.–Conviction in murder case–Sentence suspended
during pendency of appeal–Co-accused, to whom a stab injury by knife was
attributed, already released on bail–The only allegation against the appellant
was that he caused an injury with a piece of brick–Under the said
circumstances, held, appellant was also entitled to be enlarged on bail–
Sentence passed against him suspended pending the criminal appeal. Jagan
@ Jagan Nath v. State of Haryana, 2006 (1) Apex Criminal 406 ( SC).
Section 389 Cr.P.C.–Suspension of sentence during pendency of appeal–
Accused convicted in a corruption case and sentenced to 7 years rigorous
imprisonment–Accused praying for suspension of sentence during pendency
of appeal–There is a distinction between bail and suspension of sentence–
One of the essential ingredients of Section 389, is the requirement of the
appellate court to record reasons in writing for order of suspension of
execution of the sentence or an order of release if the accused is in
confinement–The court can direct that he be released on bail or on his own
bond. Vasant Tukaram Pawar v. State of Maharashtra, 2005 (5) SCC 281
(SC).
Sections 389 and 439–Conviction of accused in dowry death case under
section 304 & 498A I. P.C.–Accused in jail for more than 4 yearrs–Appeal not
likely to be heard in near future–Accused released on bail. Vinod v. State of
Haryana, 2001(1) RCR (Criminal) 214 (P & H).
Section 389(1) Cr.P.C.–Bail–Conviction in murder case–Appeal against
conviction–Judge granting the bail on the contention that accused was on
bail during trial–Order of bail cancelled–No exceptional circumstances stated
by Judge for granting bail–For bail in murder case, court should consider the
relevant factors like the nature of accusation against the accused, the
manner in which the crime in alleged to have been committed, gravity of
offence and the desirebility of releasing the accused on bail after conviction.
Vinay Kumar v. Narendra, 2002 (3) RCR (Criminal) 622 ( SC).
Section 389 Cr.P.C.–An order of suspension of conviction should not be
readily granted unless the grounds suggest that the respondent was
preceeded against by the State mala fide or any bad faith–Possible delay in
disposal of the appeal and existence of arguable points by itself may not be
sufficient to grant suspension of a sentence. The High Court passed the said
order merely noticing some points which could be raised in the appeal. Not
sustainable. State of Punjab v. Deepak Mattu, 2007(4) Crimes 28 SC.
Section 389 Cr.P.C.–Section 138 Negotiable Instrument Act–Petitioner
was convicted and sentence imprisonment and fine of Rs. 2, 35,000/- Session
Court suspended jail sentence but did not suspend fine sentence in appeal
and petitioner was in custody–Revision–Impugned order was not illegal or
erroneous but was not proper–When fine sentence was onerous discretion
vested in court ought to have been exercised in favour of petitioner.
Impugned order modified and petitioner directed to deposit Rs. 1,00,000/-
and remaining fine sentence to remain in suspension. Raj Kumar Yadav v.
Subash Upadhyay, 2007(3) Crimes 427 (MP).
Section 389 Cr.P.C.–Conviction of accused–Application had been filed by
respondents for suspension of sentence–Allowed by High Court stating that
without appreciating the case on merit and demerits of the case, it was
allowing the petition–Appeal–The mere fact that during the period when the
accused persons were on bail during trial, there was no misuse of liberties,
does not per se warrant suspension of execution of sentence and grant of
bail–What really necessary to be considered by High Court was whether
reasons existed to suspend execution of sentence and thereafter grant bail–
High Court did not seem to have kept the correct principle in view and did
not meet the requirement–The order directing suspension of sentence and
grant of bail liable to set aside. Gajraj Yadav v. Rajendra Singh @ Deena,
2008(4) Crimes 315 SC.
Section 389 Cr.P.C.–If the appeal is not likely to be heard for long and not
disposed of within a “measureable distance of time”, it would not be in the
interest of justice to keep such person in jail for a number of years–Rather it
would be appropriate if the power under section 389 Cr.P.C. is exercised in
favour of appellant. The considered opinion was that this is not a fit case to
exercise power under section 389 Cr.P.C. The application deserves to be
dismissed. Sidharth Vashist @ Manu Sharma v. The State (NCT of Delhi),
2008(3) Crimes 13 SC.
Section 389 Cr.P.C.–Power of appellant court to suspend conviction with
sentence–Appellate court while exercising powers under section 389(1)
Cr.P.C. can suspend operation of order of conviction–Order granting stay of
conviction must not be a rule but shall be an exception–It is only in rare
cases and in exceptional and compelling circumstances that court may by
recording convincing reasons suspend order of conviction–No reason to
suspend conviction only on ground that petitioner was to contest election.
Jalal Ahmed Mazumdar v. State of Assam, 2008(3) Crimes 188.
Section 389(1) read with section 482 Cr.P.C.–One of the essential
ingredients of section 389 is requirement for the Appellate Court to record
reasons in writing for ordering suspension of execution of sentence or order
appealed. The requirement of recording reasons in writing clearly indicates
that there has to be careful consideration of relevant aspects and order
directly suspension of sentence–Single Judge while directing suspension of
conviction indicates no reason–Hence order of single judge directing
suspension/stay of conviction held liable to be set aside. State of Punjab v.
Navraj Singh, 2008(3) Crimes 97 SC.
Section 389 Cr.P.C.–In the present case, the appellants were on bail
during the pendency of the case before the sessions court. The Sessions
Court has acquitted most of the accused persons after trial except the
appellants. Appellants not misusing or abusing their bail during pendency of
the case in Sessions Court. There is also no possibility of the accused
absconding during suspension of the sentence. Appellants are entitled to
take relief under section 389 Cr.P.C. Angana v. State of Rajasthan, 2009(1)
Crimes 320 SC.
 Section 389 Cr.P.C.–Prosecution of petitioner 117 t h accused in special
case 1/93 (Bombay Blast Case) before the Special Judge, TADA, Mumbai
under various sections of TADA–Petitioner on being found guilty of offences
punishable under section 3 and section 7 read with section 25 (1A) and 25
(1B) of the Arms Act was sentenced to six yrs. rigorous imprisonment–Appeal
filed against conviction and sentence–Pending consideration of appeal,
petitioner was granted bail. Petitioner’s plea on filing the appeal that he was
desirous of contesting election to the House of People from Lucknow and for
debaring from such contest, conviction and sentence be suspended–
Petitioner is a well-known cine artist and got a large number of fans
throughout the country and abroad. Petitioner is not a habitual criminal nor
he had involved in any other criminal case–Despite all these favourable
circumstances, not a fit case where conviction and sentence could be
suspended. Section 389 Cr.P.C. can be exercised only under exceptional
circumstances–Petition dismissed. Sanjay Dutt v. State of Maharashtra
through CBI, 2009(2) Crimes 45 SC.
Section 389 Cr.P.C.–Suspension of conviction–Petitioner was convicted
under section 498A IPC–Appeal–Prayer for suspension of conviction on
ground that petitioner could be dismissed from service in view of a letter
issued by D.G.P. that convicted police officials should not be permitted to
work in the department–Conviction could be suspended in such situation–
Conviction stayed. Jasvir Singh v. State of Punjab, 2010(1) Crimes 880
(P&H).
Section 389 Cr.P.C.–Suspension of sentence and release on bail–Appellant
were convicted under section 392 IPC and were sentenced to four years
rigorous imprisonment with fine and under section 394 IPC and sentenced to
five years rigorous imprisonment with fine–Trial Court had disbelieved
recovery of any of stolen articles–Bail during trial period was not misused–
Sentence in given circumstances deserved to be suspended and appellants
admitted to bail. Deepak v. State, 2010(1) Crimes 255 (Del.).
Section 389 Cr.P.C.–Question is whether order of sentence could be
suspended when there was no possibility of taking up the appeal for hearing
within a reasonable period–Appellant had been in custody after conviction
for about 10 months. Fit case where order of sentence should be suspended.
Shri Dipak Ranjan Deb v. CBI, 2011(3) Crimes 226 (Gau.).
Cancellation of bail bond at the time of Commitment
Section 209(b) Cr.P.C. requires that the Magistrate shall “subject to
provisions of this Code regarding the taking of bail, remand the accused to
custody during and until the conclusion of trial.”
If, however, the Magistrate has jurisdiction to release the accused on bail
under section 437(1) Cr.P.C. then it is now essential for him to commit in
custody.
Bail by Police
In all bailable cases, it is the statutory right of accused to be released
on bail (Section 436 Cr.P.C. The officer-in-charge arresting the accused
without warrant for the offence which is bailable must tell him that he was
being arrested for such and such offence, which is bailable and that he
should furnish the bail and arrange for sureties (Section 50 (2) Cr.P.C). A
note to that effect should be made in the case diary and daily dairy failing to
furnish security will render the accused liable to be kept in lock up.
Similarly, in arrests under section 41 (2) Cr. P. C. option of bail must be
given.
The bail taken will be for the accused to appear in the Court of lllaqa
Magistrate. Ordinarily two bonds, surety bond and bail bond most commonly
known as Muchalka are taken. The police have no power to take the bail
from the accused for his appearance before the police officer. The object of
sub-sections 436, 437, 444 Cr.P.C. is for appearance of the accused before
the Court and not before police officer. See 1966 Cr.L.J. 209 (Gujarat).
 Section 170 Cr.P.C. authorises the officer-in-charge of the police station
to take security in bailable cases for his appearance before such Magistrate
on a day fixed and for his attendance from day to day before such Magistrate
until otherwise directed.
The bail bonds submitted before the police officer are for purposes of
appearing before the Court and when this undertaking has already been
given fresh undertaking for the same effect is not to be asked for by
Magisterial order. Mani Malhotra, 1991 Cr.L.J. 806.
The police officer can also release on bail under:
(a) Under section 42 (3), on arrest is non-cognizable offence, committed
in his view, when the person tells his true name, etc.
(b) Under section 43 (3), when produced before him by a private person
and the offence made out is non-cognizable or bailable.
(c) Under section 170 Cr.P.C, when sending challan in bailable cases.
(d) Under section 436 (1) Proviso, he can release on bond only in bailable
cases.
In case of minor, bond by surety can be accepted (Section 448
Cr.P.C.) and permit to deposit cash. Section 445 Cr.P.C.
In non-bailable cases, the officer-in-charge of a police station can
release the accused on bail for offence except those which are punishable
with death or imrisonment for life. Section 437(1) Cr.P.C.
If during the investigation of a case there are no reasonable grounds for
believing that the accused has committed any non-bailable offence, the
officer-in-charge can release the accused on bail under section 437 (2)
Cr.P.C. This power is also given to the I.O. or officer-in-charge under section
169 Cr.P.C. These officers can release on bail the accused who has been
arrested but against whom there is no sufficient evidence or reasonable
grounds for suspicion to justify the forwarding of the accused to a
Magistrate. This power can only be exercised before taking remand under
section 167 Cr.P.C.
The bail, however, under section 437(1) Cr.P.C. should be very cautiously
and sparingly done by the officer-in-charge. He is not a mandatory provision
and as such these powers are “only permissive and not obligatory.” These
should, therefore, be exercised with caution. The police officer must satisfy
himself that release on bail is not likely unduly to prejudice the prosecution
or to be followed by the absconding of a person prima facie guilty. Punjab
P.R. 26.21. It is also further provided in these rules. “In every case of
release on bail or recognizance whether under section 169 or 497 (437)
Cr.P.C. full reasons shall be recorded in a case diary and the police officer
concerned shall preserve the bond in form 26.21. (5) until it is discharged
either by the appearance of the accused person or by the order of a
competent court.
The police officer has no right to cancel the bail granted by itself as there
is no provision under section 437(5) Cr.P.C. to this effect. The bond taken by
the police officer is valid only upto the date and time given in it. If the
accused does not appear in the court on that date. It is liable to be forfeited
under section 446 Cr.P.C. 1957 Cr.L.J. 235 (Raj.) Ganga Ram v. State . If he
appears on the said date then the bond becomes invalid and the court will
take a new bail bond. 1969 Cr.L.J. 1164. Chhagan Lall and State of Haryana
v. Satya Narain, 1973 P.L.R. 755.
“No police officer has power to re-arrest an accused person who has been
released on bail under section 437 Cr.P.C. When arrest is deemed necessary,
the police shall apply to a competent court for the cancellation of the bail
bond the issue of warrant in accordance with the provisions section 437 (5)
Cr.P.C. 26.21 Punjab Police Rules See also 1955 Cr.L.J. 410.
Where the bail has been granted for a less serious offence, which offence
later turns out to be graver and more heinous, the court granting bail is to
cancel the bail under section 437 (5) Cr.P.C. and to take the accused in
custody. In 1989 Cr.L.J. 512 Kalyan Singh accused was enlarged on bail in
case under section 365 I.P.C. The investigation and discovery of new
material pointed out the commission of an offence of more heinous nature
under section 364 I.P.C. held bail could be cancelled under section 437 (5)
Cr.P.C.
The Supreme Court held that Sub-Inspector was pursuing investigation
which was his duty and, therefore, not unlawful object. Sections 147 or 149
Cr.P.C. were not attracted. Though the accused resorted to violence while
attempting to recover stolen articles, it was not an unlawful object. There
was no definite evidence about individual injuries as to who had given. So,
the accused were acquitted.
Directions to be kept in view while taking Bonds
1. According to section 441 Cr.P.C. time and place for attendance must
be mentioned in the bonds. Time and date for appearance in the Court
with place of sitting must be definitely given. If the date and time are
not given, the bonds are not liable to be forfeited. 1958 and K. 38,1957
SC 587 State of U.P. v. Mohd Sayeed.
2. Words “whenever required” i.e. ‘Indul Talab, and “Place” mentioned
are also legal and can be given in place of definite date and time. See
also Bhalu, 1952 Cr.L.J. 974. This view was not approved in State of
Haryana v. Staya Narain, 1973 P.L.R. 755 where it was held that time
and date must be mentioned. The place must be mentioned otherwise
“whenever” required is quite vague and bail bond cannot be forfeited’
Chhagan Lall Supra.
 It was, however, held in 1989 Cr.L.J. 1264 (Bombay) that surety
undertaking to produce the accused whenever directed by Court is not
vague and ambiguous. It can be forfeited if surely fails to produce
accused despite specific dates given by the Court. The bond is
enforceable.
Similarly, the Delhi High Court in O.P. Anand, 1989 Cr.L.J. 2468 , held
that surety bond taken at stage of investigation having a term that
surety would produce accused on every hearing before any Court
trying case cannot be said to be vague for non-mention of the Court or
date for appearance ‘whenever called upon to produce’ is valid.
3. It is always a matter of prudence to take both the bonds i.e. bail bond
and surety bond. If only surety bond is taken, it can still be forfeited
as the liability is independent of accused’s personal bond. This equally
applies if only accused’s bond is taken. See Satpal Singh, 1956. Cr.L.J.
446 (All.) and 1946 All. 116. 1956 Cr.L.J. 23 : AIR 1958 All. 78.
4. The bail and surety bond should be signed by the executors and
attested by witnesses and dated.
5. These should be accepted and signed by the officer enlarging the
accused on bail.
6. It must be mentioned that surety in case of failure to produce accused
has bound himself to forfeit Rs.–to State Govt. (mention name of State)
1958 J.K. 58.
7. Conditions imposed for release must be mentioned.

Forfeiture
The bond and the surety bond can be forfeited under section 446 Cr.P.C.
if the conditions incorporated therein are not satisfied. For non-appearance
of accused, surely-bond stands forfeited automatically no notice to show
cause is needed before forfeiture. Sham Sunder, 1990 Cr.L.J. 2370 (Del).
Section 446 Cr.P.C. applies to the following bonds:
1. Taken by the Court to the following bonds:
2. A bond for appearance before the Court.
3. A bond for production of property of the Court.
It does not apply to any other category of cases e.g. for suspension of
sentence by prison authorities. M. Hom 1953 Cr.L.J. 1953 (Pat.) The property
taken into possession by police should not be released on superdari until the
Court orders so if it is not under orders of the Court, the bond cannot be
forfeited and action under section 406 I.P.C. will only be taken. Also see
1960 Cr.L.J. 354. In re Prabhudyal (M.P.) 1977 Punjab 19 Girdhari Lall even
though police Regulations allow such a bond to be taken as section 523
Cr.P.C. (Now section 457) bars this. Anwar Ahmed, 1976 SC 680.
The liability of the surety does not cease unless and until the bond is
cancelled or discharged under section 444 Cr.P.C. or he dies or becomes
insolvent–Section 447 Cr.P.C. In case the person let out on bail is arrested
for another offence, then too, there is no obligation on the surety to produce
him. See (1924). 4 Pat 259.
Section 446 Cr.P.C.–Bail bond–Forfeiture of liability of sureties default of
accused, foreign national in making appearance before court. Forfeiture of
bond entails penalty against each surety–Each surety liable to pay entire
surety amount cannot claim to share surety amount by half and half. Mohd.
Kunju v. State of Karnataka, 2000 Cr.L.J. 165 SC.
Sections 441 and 445 Cr.P.C.–Bail bonds–Powers of Magistrate–
Magistrate not empowered to demand cash security, but accused may be
permitted to deposit a sum of money in lieu of executing a personal bond and
giving surety of some persons gravity of offence though is relevant
consideration yet–Quantum should not be mechanically or arbitrarily fixed.
N. Sasikala v. Enforcement Officer, ED, Madras, 1997 Cr.L.J. 2120 Mad.
 Section 446(2) Cr.P.C.–Forfeiture of surety bond and recovery of surety
amount. Affording opportunity to serve to lead evidence in support of
husband–Necessary order not disclosing affording of opportunity and only
oral arguments appeared to have taken place before lower court order as
such liable to be quashed. [Link] v. State of Karnataka, 1997 Cr L.J.
4691 Karnat.
Section 446 Cr.P.C.–In the light of section 446 Cr.P.C., Magistrate may
insist that security alone can be termed sufficient when backed by valuable,
property of the value of the amount which can be secured in case of
abscondance of the accused. But for the purpose of securing the attendance
of the accused, it is not always necessary that excessive amount is to be
ordered. Granting bail is always depended upon the facts and circumstances
of the each case and the nature of the offence alleged. Abdul Karim v. State
of Mizoram, 2008(2) Crimes 275 (Gau).
Section 446 Cr.P.C.–Issue of a show cause notice under section 446
Cr.P.C. to the person, whose bond has been forfieted before issuing recovery
warrant is mandatory. If he pays the penalty in pursuance of the notice, the
matter ends. If the person to whom the show cause notice is served, offers
sufficient causes, the court has power to discharge the notice and remit the
penalty. The order remitting the penalty wholly or partly must be based on
reasons to be recorded by the court. Shambhoo Nath v. State of U.P.,
2010(1) Crimes 423(All.).
Section 446(2) Cr.P.C.–Penalty for forfeiture of bond–Order directly
surety to pay penalty of Rs. 25,000/- which was the bond amount and if
amount was not paid surety was directed to undergo civil imprisonment for
six months–Sustainability of order of imprisonment when passed
simultaneously with order for payment of penalty–Order for imprisonment
under section 446(2) Cr.P.C. could be passed only after imitation of
proceedings under section 421 Cr.P.C. and exhausting steps to recover
penalty. Period of imprisonment must be reasonable and proportionate to the
amount which remained unpaid–Impugned order was liable to be set aside.
Santha v. State of Kerala, 2011(3) Crimes 466 Ker.
“Bonds to be forfeited, must be clear:
1. As regards terms in accordance with the stipulations of orders
passed by the Court;
2. As regards time, and place of attendance, if for attendance only;
and that he shall continue so to attend;
3. As regards amount to be forfeited;
4 As regards signature of executants;
5. As regards attestation of witnesses;
6. As regards acceptance by the Court or authority ordering so;
7 As regards the legality of the order;
8. As regards the conditions imposed for release.

Forfeiture can be done by the Court which takes the bond or to which
case transferred. Section 446(1) Explanation
Sometimes it so happens that the Court takes the bond though it has no
jurisdiction to try the case. Even in that case it can forfeit the bond if there
is breach of stipulation. See Bhav Husain v. State, 1956 All 78.
The defective bail bond, howerver, cannot be forfeited. Bond by mistake
executed in favour of King Emperor cannot be forfeited as there is no King
Emperor so far as India is concerned. Bhairon Lall v. State, 1956 Cr.L.J. 182,
1957 S.C. 582. Similarly it should not be in favour of Govt. of India. It should
be explicitly in favour of Punjab State Govt. so far as Punjab State is
concerned.
Bond executed under section 116 (3) Cr.P.C. can be forfeited if the person
who has furnished the security commits any of the offence specified in
section 110 Cr.P.C. or commits breach of peace. It is, however not necessary
that conviction should be secured first and then bond forfeited. It can be
forfeited under section 446 Cr.P.C. without conviction in that offence. See
1957 Cr.L.J. 164 (T.C.) State v. Themas Mathas.
Notice to show cause must be given before forfeiture. Ghulam Mehdi 1960
Cr.L.J. 1527 (SC). Issue of warrant of arrest again surety is legal and he can
be imprisoned, if amount is not paid.
The amount forfeited may be recovered as a fine imposed under this code.
Section 446(2).
Where a surety to a bond dies before the bond is forfeited, his estate,
shall be discharged from all liability in respect of the bond. Section 446(4).
Where any person who has furnished security under section 106 or
section 117 or section 360 is convicted of an offence, the commission of
which constitutes a breach of the conditions of his bond, his bond or of a
bond executed in lieu of his bond under section 448, a certified copy of the
judgement of the Court by which he was convicted of such offence may be
used as evidence in proceedings under this section against his surety or
sureties and if such certified copy is so used, the Court shall presume that
such offence was committed by him unless contrary is proved. Section
446(5).
All orders passed under section 446, shall be appealable. (Section 449
Cr.P.C.)
(i) In case of order by Magistrate to the Sessions Judge;
(ii) In case of an order made by the Court of Sessions to the Court to
which an appeal lies from an order made by such Court.
Directions issued by the Supreme Court in case of Satender Kumar Antil v.
Central Bureau of Investigation, Misc. Application No. 1849 of 2021 in Special
Leave Petition (Crl.) No. 5191 of 2021, decided on 11 July, 2022.
These directions are meant for the investigating agencies and also for the
courts. Accordingly, we deem it appropriate to issue the following directions,
which may be subject to State amendments:
(a) The Government of India may consider the introduction of a separate
enactment in the nature of a Bail Act so as to streamline the grant of
bails.
(b) The investigating agencies and their officers are duty-bound to comply
with the mandate of section 41 and 41A of the Code and the directions
issued by this Court in Arnesh Kumar (supra). Any dereliction on their
part has to be brought to the notice of the higher authorities by the
court followed by appropriate action.
(c) The courts will have to satisfy themselves on the compliance of section
41 and 41A of the Code. Any non-compliance would entitle the accused
for grant of bail.
(d) All the State Governments and the Union Territories are directed to
facilitate standing orders for the procedure to be followed under
section 41 and 41A of the Code while taking note of the order of the
High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of
2018 and the standing order issued by the Delhi Police i.e. Standing
Order No. 109 of 2020, to comply with the mandate of section 41A of
the Code.
(e) There need not be any insistence of a bail application while
considering the application under sections 88, 170, 204 and 209 of the
Code.
(f) There needs to be a strict compliance of the mandate laid down in the
judgment of this court in Siddharth (supra).
(g) The State and Central Governments will have to comply with the
directions issued by this Court from time to time with respect to
constitution of special courts. The High Court in consultation with the
 State Governments will have to undertake an exercise on the need for
the special courts. The vacancies in the position of Presiding Officers
of the special courts will have to be filled up expeditiously.
(h) The High Courts are directed to undertake the exercise of finding out
the undertrial prisoners who are not able to comply with the bail
conditions. After doing so, appropriate action will have to be taken in
light of section 440 of the Code, facilitating the release.
(i) While insisting upon sureties the mandate of section 440 of the Code
has to be kept in mind.
(j) An exercise will have to be done in a similar manner to comply with
the mandate of section 436A of the Code both at the district judiciary
level and the High Court as earlier directed by this Court in Bhim
Singh (supra), followed by appropriate orders.
(k) Bail applications ought to be disposed of within a period of two weeks
except if the provisions mandate otherwise, with the exception being
an intervening application. Applications for anticipatory bail are
expected to be disposed of within a period of six weeks with the
exception of any intervening application.
(l) All State Governments, Union Territories and High Courts are directed
to file affidavits/status reports within a period of four months.


Chapter–14
Law of Possession
Before the different aspects of recoveries and their importance is dealt
with, it is necessary to understand as to what sort of possession is penal. In
order to incriminate a person for possession of an incriminating article, that
person must be shown to be in possession of the said article exclusively and
consciously. A man is found in possession of an article yet it may not
constitute a crime as he may not be aware of its being in his possession. To
elucidate this point, take the case of a man from whose pocket an article is
recovered. He is in actual and physical possession of the said article.
Supposing that man can show that the article was planted in his pocket and
he was not aware of its presence in his pocket. Will he be liable? The answer
is not. He does not commit the crime because the ‘animus’ and the ‘mens
rea’ (guilty knowledge) are not there. Thus, the ‘animus’ is the very basis of
any legal concept of possession. In other words possession must be shown to
be exclusive and conscious. In the words of Harris C.J. in Santa Singh v.
Crown, 1944 Lahore 339-46 Cr.L.J. (F.B.) “Possession and control required to
constitute offences under the Explosive Substance Act and Arms Act must
mean conscious possession and actual control, a man must know of the
existence of something before he can be said to control it or have it under
his control” It is settled that corpus without animus is ineffective but once
there is a animus then it will not matter whether possession is actual or
constructive, mediate or immediate, direct or indirect, or exclusive or joint.
Held so in Matadin 1980 Cr.L.J. 186. Possession must be distinguished from
custody and it must be conscious. If for example a liquor bottle is kept by
someone in a car or house but without knowledge of person in possession he
cannot be said to be in its possession. In a case drinking party, it was held in
Patel Jethabhai by Supreme Court in 1977 S.C. 294 that whoever is present
cannot be held liable for possession. It is not merely that by stretching his
hand he can take possession. The question is if he is in actual possession of
it, Mr. P.B. Mukharji, Justice of Calcutta High Court in case Narendra Nath
v. The State 1951 Cal. 140 has discussed different aspects of possession of
an article and has closed with these remarks. “But whatever jurisprudence
or juristic school of thought is analysed, that at any rate is in my opinion
clear that there can be no possession without intention or will. In my
judgement, therefore, wherever possession is a basis of crime this
consciousness or animus must be established unless the statute creating the
crime excludes it”. Possession implies knowledge and there would be no
possession when there is no knowledge on the part of the occupant of the
cabin or the room or the article as the case may. Possession without
knowledge can hardly have been meant since in that case the element of
criminal intention or knowledge would be entirely wanting. “ Pritam Singh v.
State, 1967 Punjab 50. In case Jawar Arjan, 1979 SC 1500-1980 Cr.L.J. 828 ,
the accused was rickshaw driver who had carried another person in his
rickshaw and on rickshaw being searched, some balloon kept in a bag
containing illicit liquor were found. The Supreme Court held that there was
nothing to show that the gas containing the balloons was clearly visible. The
bag was close and was put in the dicky of rickshaw. The rickshaw driver
could not be computed with the knowledge of possession of articles merely
because the passenger had put these in dickey. He was acquitted. But where
the onus is shifted to the accused to show that he had no knowledge of its
contents or knowledge that it was incriminating, it was sufficient for
prosecution to prove that accused had physical possession as it was difficult
to prove knowledge. These are cases, where statute shifts onus to accused to
show that in spite of possession he had no knowledge of the incriminating
article. In other words it is for him to show that he was not in conscious
possession of the article. This type of the case is Opium Act where Section
10 says that in prosecution under section 9 it shall be presumed that it was
opium until the contrary is proved by the accused. In case Inder Sein 1973
Cr.L.J. 1537 Supreme Court, held so. The case related to receipt of parcel
which contained opium front Railway. Accused denied his knowledge about
com cuts being opium. Section 10 Opium Act shift onus to accused to prove
that he had no such knowledge. State v. Sham Singh, (I.L.R. 1977 (I) Punjab
130, approved), therefore mere physical possession was deemed to be
sufficient for conviction. Accused Licensee-opium recovered in his absence-
still liable. SC in 1985 Cr.L.J. 1860 Kailash.
It is also desirable to point out here a man may not be in actual
possession of a thing, yet he may be liable. In other words the possession
may not be manual, detention of an article or the person may not be in
physical touch of the thing yet he may commit the crime if the guilty
knowledge can be attributed to him for being in touch with that thing in any
indirect way. It was observed in 1925 All. 326 “word possession is a well
known word in law and a man may be in possession of a thing without being
in physical touch with it as for example when he has locked his vacant house,
he is still deemed to be in possession of the same or a licence holder going
to an outstation leaving his gun in charge of his wife or servant.” In the
words of P.B. Mukharji 1951 Cal. 140 Supra. “Similarly again he may not
possess offending articles directly but may have it indirectly through his
agent but with the knowledge in which even he commits the crime.” Held by
Supreme Court in 1972 Cr.L.J. 1187, Gurwant Lall that the possession must
have first “the element of consciousness or knowledge of the possession and
secondly when he has not the actual physical possession, he has none the
less power or control over that weapon so that his possession thereon
continues despite physical possession in being someone else.” In Ravs sleep
(861) Se v. Ca 44 at page 57 Wills J observed. “Possession does not consist
merely in manual detention: Suppose I require a by-stander to hold anything
for me, it shall remain in my possession.”
Thus a master can possess article through his servant but it will have to
be proved that the incriminating article was existing with the knowledge of
the master. The master cannot be made liable for anything done by his
servant if it was not proved beyond any reasonable doubt that he had
knowledge of the existence of incriminating article. In case 1960 Cr.L.J. 672
(SC) Maharaj Prithvi Singh Ji, Bhim Singh Ji . Liquor was recovered from the
luggage of the master, carried by servant who too had the key of the
suitcase. The defence of the master was that he had no knowledge and it was
his servant who packed and unpacked luggage. It was held that “without
proof of knowledge of master, he was not liable, since the likelihood of
servant taking advantage of his control and possession of his master’s
luggage to bring into Abu Road a large quantity for his own profit and
purpose cannot be altogether excluded.”
In 1973 Cr.L.J. 1772 Jainarain Singh , owner of the car was convicted. He
was not present in the car when ganja was recovered but transport under
section 34 M.P. Excise Act, was tried to be proved from the factum of his
ownership of car of his seeing driver accused in jail. Held by Supreme Court
that circumstantial evidence was not sufficient. The fact might create a
suspicion only.
So an Investigating Officer, in order to bring home the guilt to the
accused regarding to possession of an incriminating article must show that:
1. His possession was conscious possession accompanied by the
necessary ‘mens-rea’ or intention to possess the article and with
intent to protect it against others.
2. That he had control over the article, having such power over it that
he could direct its custody, production, use or disposal in some
manner though he may not be in actual possession.
In this category also lies the case of a person who hides a thing. He is not
in actual possession, yet he is liable. As held in 1955 M R 104, “for
possessing a material object two elements are necessary, animus or intention
and corpus. A person is said to be in possession of a thing when the facts of
a case are such as to create a reasonable expectation that he will not be
interfered with the use of it. Thus, the person who hides the thing is in
possession of it, because he gains thereby a reasonable guarantee of the use
of it.”
The recovery of a hidden thing on the pointing out of an accused shows
his possession especially so when property is found to be so carefully
concealed and continuously hidden from human gaze that a member of the
public could not possibly know its presence and it, therefore, leads to the
inference that the person who knows it where about is the person who
secreted it there. 1958.
Cr.L.J. (In re Kiru-K 54 (Moti Lall) . See Chapter “Production”.
Joint Possession
As discussed above, the I.O. should prove exclusive and conscious
possession of the accused, for an incriminating article. An I.O. should also
understand that an article can be in possession or under the control of more
than one person. In that case all those persons are liable for that article.
Three or four persons may be distilling illicit liquor together. Then the
implements of distillation and distilled liquor would be in possession of all
those persons and they would all be responsible for the possession. As
discussed in Santa Singh Supra it was held. “I do not suggest that the
recovery of an article in a house occupied by a number of persons is proof of
joint possession, but that fact coupled with other evidence might establish
such joint possession. All I desire to point out is that exclusive possession or
control of any particular person is not required under these sections. The
possession or control might well be possession or control of two or more
persons.” It was held in Kartara v. Emp., 1938 Lahore 320 that there can be
a joint criminal, possession of an excisable article which depends upon the
circumstances of each case. This view was followed in 1964 (1) Cr.L.J., 453
(M.P) State v. Nanda Dhannateli where 3 persons in joint possession of
opium were convicted.
 The difficulty arises when an article is recovered from a house in the joint
possession of more than one person or in the possession of Joint Hindu
Family. All the occupiers of the house are liable for that article if it can be
proved that all of them were in conscious possession of that article. In case
1990 Cr.L.J., 304. One create, huge quantity of opium was recovered from
the room where the accused wife was living with her husband. The opium
was lying under a cot in a bag. The accused was held to be in conscious
possessions of opium as he could not have remained ignorant in that only
room with her husband and the bag was quite visible to her lying underneath
the cot. Mere knowledge of the presence of the article would not make
anyone liable. An I.O. thus should keep the following points in view in case
of recovery from the place in joint possession of any persons:
1. When a house or place is jointly occupied by several persons or several
persons have access to it and there is nothing on record beyond the fact that
articles have been found from such house or such place, none of such
persons can be convicted. Supposing a gun is found in a room which is used
by a number of adult members of a family. In such a case it is difficult to
presume that the gun is in the joint possession of all members of a family.
So, merely showing that an incriminating article was recovered from a house
in joint occupation of many persons would not make all liable; rather would
make none liable. All are not in possession merely because they are aware of
its existence.
It was held in Pabitare Singh, 1972 SC 1899 , when a gun was recovered
from a room of a quarter which was in joint possession of two persons and
one of them was not present at the time of raid, the mere presence of the
other in that room was not sufficient to make him guilty of the offence unless
the court could come to the conclusion that there was reason to believe that
he was aware of its existence in that room. (The gun was concealed in this
case.)
The I.O. would have to show something more and that would be the
animus or the will to possess or control such article by all viz.
(a) that each of the accused had either physical or constructive possession
of the property or
(b) that one or more of them had possession thereof either physical or
constructive on behalf of themselves and the other accused to the
knowledge of the latter. Ref. Santa Singh v. State Supra. Kamta
Parshad v. State 1961(2) Cr.L.J. 176.

How to Prove Animus

The animus, in all cases, can be proved either by direct or indirect
evidence. Direct evidence mostly is not available in many cases. Animus in
such cases has to be proved by reasonable inference made from all the
circumstances of the case. The conduct of the person in possession of the
article thus becomes very important. How he behaves; how he disposes of
the article; how he displays the article; what is his reaction at the time of
recovery; does he protest; does he try to conceal; his relation within the
person from whom he received the incriminating article; the status if he
could possess such article; the quantity if could be sold ordinarily; anxiety to
dispose off an article at lesser rate; die article; if it has changed hands; are
some of the important circumstances to show animus. In State v. Chauth Mal
Gandhi, 1960 Cr.L.J. 1126, the accused a ganja dealer received a registered
parcel containing 184 tolas of opium. On seizure he explained that he took
the delivery under the impression that it contained medicines for himself and
his family. Held that mere possession might not have made out a case
against the accused and as such animus also must be proved. In this case
animus was held to be proved after giving due weight to the conduct of the
accused in receiving the parcel without any protest and also the large
quantity of opium found inside the parcel. This large quantity is an important
circumstances showing that it cannot be planted. See 1933 Cal. 668, 9 CWN
71.
It was an old law that head of the family was liable for any thing
recovered from the house. This view was considered in Santa Singh (Supra)
and it was held, “It shall appear from the above that it is practically well
settled that the mere fact that accused is the head of the joint family is not
sufficient to hold that he is in possession of the article recovered from the
house. It would depend upon other circumstances whether his possession
over the articles can be held to be proved or not.”
The Karta or the senior member is in the same position as other members
and he can be convicted only if I.O. proves by evidence that the
incriminating articles found in the house were in his possession with the
requisite ‘mens-rea’ or under his control.
As held in State of Bihar v. Amit Husan, 1952 Cr.L.J. 72 (Patna) no
presumption arises in such cases that the head of the family is in possession
or control of the article.
Every case, therefore, depends upon its particular facts and as held in
Santa Singh Supra the courts must consider each and come to a conclusion
whether it is proved that the incriminating article is in the possession or
under the control of any particular person or is in the possession or under
the control of more than one person.
But the possession of incriminating element must be conscious and
exclusive. Zubeda Khatoon, 1991 Cr.L.J. 1392 (Kant).
The following considerations, however, will be helpful to an I.O. In case
of recovery of an article from a house on search:
1. The accused was present at the time of search and the house is in
exclusive possession of the accused. In that case, too, the prosecution
will have to establish by evidence, which may be either direct or
circumstantial that the article found its way there with the requisite
knowledge or intention of the accused.
If the accused is not present, then it will have to be shown that he had
the requisite knowledge of the incriminating article being in the house
or that in his absence there was no possibility of the article finding its
place there with connivance of some.
2. The accused was the owner or one of the owner in possession of the
house. The fact can be established by oral or documentary evidence if
available. In this connection it may be pointed out that admission of
the accused that the house was in his exclusive possession to a police
officer before effective search and before start of investigation is
admissible in evidence to prove the factum of exclusive possession as
admission under section 17 of the Evidence Act. If he is sole owner or
occupier, he is presumed to be in possession. The prosecution could
not be required to prove specifically that the sole occupier was aware
of the existence of the article in his house. The onus shifts to him to
prove that it was dumped there without his knowledge or privity.
Kamta Parshad Supra, (1961) (2) Cr.L.J. 176.
3. If the house is in possession of more than one person it would be
shown that the incriminating article was not lying concealed. If lying
concealed, then prosecution must prove that accused must have known
the exercise of that article in that particular spot and that he must
have concealed that there and had control overt.
(i) If it is proved that the occupiers had a common interior object or to
be in possession of the article all must be held liable for the
possession regardless of which of them is in actual possession.
(ii) Ordinarily Section 34 or Section 149 are not applicable as one
cannot come across possession in pursuance of common intention
or common object; Kamta Parsad.
 (iii) Mere knowledge is not enough to prove possession. Gian
Chand’s case 1933 L. 314.
(iv) All the occupier cannot be presumed to be in possession if the
article was not exposed to the view of all and was hidden. Santa
Singh v. State Supra and Sat Deo 51 Cr.L.J. (800) (All.).
(v) If an occupier has the key of the lock put on the receptacle or the
room containing the incriminating article, he can be presumed to
be in its possession; 1947 section 192 and Ghudasah Ibrahim, 1956
(Bom.) 25.
In Sughar Singh v. Rex, 1940 All. 277, M.L. Pistol and some ammunition
were found concealed in a hold in the wall of the house occupied by the
accused and his younger brother. It was held that no case was made out
especially when it was not proved that accused was in conscious possession
of it.
In Mahatam Singh v. State, 1951 Pat. 296 , a bag of stolen goods was
recovered from the house from such a place that accused, an eldest member
of the family, who was present at the time of recovery must have been aware
of its existence. It was held that it can be presumed that he had control over
the bag and was therefore in law in possession of it either exclusively or
jointly with other members of the household. The other co-accused who were
co-owners of the house but were not present could not however the fixed
with any criminal liability.
In Kalakhan 1990 Cr.L.J.1119 it was held that it is conscious possession
which is contemplated by penal statute, which provides and penalizes
possession of any contraband article or thing. A driver of a vehicle is
certainly in possession of the vehicle in question, but he cannot be said to be
in possession of any article or thing concealed in the body of the vehicle,
unless there are circumstances indicating knowledge to the driver of such
concealment.

Possession of Wife or Husband

Sometimes recoveries of incriminating articles are affected on search
from a house in the possession of husband but in his absence and in the
presence of wife. Question arises if husband is liable or only wife. Section 27
I.P.C. reads as “When property is in the possession within the meaning of
this Code.” The words ‘on account of that person’ are very significant. There
must be some evidence to show that incriminating articles in a case were
held by wife on account of husband to make the latter liable. The principle
as laid down in 1961 Madras 162, In re Wahib Basha regarding such
possession is that a man has not the possession of that, the existence of
which he is unaware of for this circumstantial evidence can be tendered in
the following terms:
1. Any talk between husband and wife entrusting property to her for
concealing or for disposal.
2. Presence of husband continuously in house immediately before
recovery, or
3. When the incriminating article came into the house.
4. If there was any evidence that article was seen with the husband
earlier.
5. Confession of wife or husband for knowledge and possession of
incriminating articles.
6. Previous association of husband with the offence or other accused
responsible for offence.
7. Means of wife, if could purchase article without help of husband.
8. Statements under section 27 Evidence Act of husband or wife leading
to recovery or production.
 9. Wife is unwordly, domestically confined, pardanashin woman having
no access to such incriminating articles.
10. Recovery of other articles and documents of husband along with
incriminating articles.
Every incriminating article cannot be said to be in possession of wife on
account of husband, as it is not natural for wives to keep such articles. There
must be pious wife, resenting action of husband. On the other hand, husband
may be good and the wife may be associate of bad character and it cannot be
said specially that husband may be having any knowledge about article. The
theory that the head of the family or the husband is responsible for the
incriminating articles recovered from the house occupied by many jointly,
has long been exploded as held in Santa Singh v. State Supra. So, conscious
possession of husband or wife must be proved to bring, home the charge to
any. Merely inference from section 271 I.P.C. Even if it implied applies to
offences under other Acts also, will not help to make husband liable.
Mere recovery without animus is never sufficient to make one or the other
liable. In case re Marimuthu Kavandan, 1941 Mad. 694 , stolen property was
produced by wife, husband was held not to be liable. In Beoparia v. State of
Ajmer, 1955 Ajmer 10 it was held, “where a house is occupied jointly by the
husband and wife, it cannot in the absence of positive evidence be held that
one is in exclusive possession. Hence, where stolen articles are produced
from the house of woman accused, who were living with their husband then
the possession cannot be said to be exclusively their for the purpose of
section 411 I.P.C. In Dharani Singh Mangal Singh v. State, 1961 Punjab 30
recovery of stolen articles was from the house, key of which was produced by
wife, lying in the house in absence of accused husband. It was held that
husband was not liable when there was nothing to show as to when the
husband left the house and when there was nothing to prove dishonest
knowledge beyond simple evidence of recovery.” In re Wahip Basha Supra
Rama Swamy J. held husband liable for recovery of opium from house in his
absence but in presence of wife specially when an illiterate, pardanshin
woman could not have transacted in opium.

Onus of Proof
The prosecution must stand on its legs. If the prosecution proves the
conscious possession of the accused, only then the onus shifts to the accused
to explain the possession of such article, otherwise not. Section 103
Evidence Act only applies when evidence has established a prima facie case
against anyone or more or all of them. Merely presence of an incriminating
article in premises jointly occupied by more than one person does not itself
prima facie establish the guilt of any particular person or all of them and as
such they are not liable to explain such possession under section 106
Evidence Act.
As held in 1952 Cr.L.J. 72 (Patna) State of Bihar v. Amir has an, “It is for
the prosecution to prove conscious possession and actua1 control of the
incriminating articles with guilty knowledge. It is only when such possession
and control is proved and onus changed and it is then for the accused to
explain possession and control.”
If the possession is susceptible of two interpretations, then the one
favourable to the accused should be adopted, 1979 Cr.L.J. 1390 (SC).
It was also held in Bheka Ahir v. Emp. 1947 Pat. 236 that “the duty lay on
the prosecution to adduce some evidence from which the inference could
properly be deduced that any particular member or for the matter of that the
head of joint family was in possession in the sense of conscious possession of
the corpus delicti.” It was further observed, “Like all other criminal trials
the burden lies entirely on the prosecution and all the time on the
prosecution to show the guilty knowledge of any particular individual or the
head of the joint family.”
Temporary Possession is not an Offence
1. Babu Ram v. Emp. 1925 All. 396 . In this case the brother of a man who
had a licence to own a fire arm took the gun of his brother and fired
several shots in the air to scare away the rioters and to prevent them
from attacking his house. Held that he was guilty of any offence under
the Arms Act because it could not be said that the gun if a deceased to
be in possession of the licence holder and had passed in the possession
of the applicant.
2. Prabhat Chand v. Emperor 35 Cal 219 . The gun, in this case, was left
by the licence with his brother as the licence had gone away from the
country. The accused, a close relation of both the brothers saw a mad
dog and fired at it. He missed the dog but wounded a stranger. It was
held that temporary contemplated by section 14 Arms Act.
3. In re Rame Gowda, 1953 Cr.L.J. 1961 (Mysore) . The accused in this
case had fired the gun of his brother, who was a licencee in self
defence. It was held that the accused could not be said to have been
going armed, his primary object being to fired in self defence and not
to go armed and shoot when occasion arose.
4. Sadh Ram v. State 1954 Cr.L.J. 12 (H.P.) . In this case S, a licensee had
deposited the gun with his friend J on the way to another village where
he was to go to get it repaired. It was recovered by police from J. It
was held that temporary possession of a fire arm on behalf of the
licence holder without the intention of using it does not amount to
possession as defined in Section 14 Arms Act.
5. Kidar Nath v. Emperor 1941 Patna 209 . In this case a licencee while
coming from a shooting expedition had left the gun with a friend with
the intention of returning shortly afterwards and taking it back from
him. It was held that possession remained with the licencee though it
was not actually in his physical possession and that his friend must be
deemed to have been in possession of the gun on behalf of the
licencee.
Similarly possession of stolen article temporarily not knowing it to be
stolen, on behalf of another is no offence under section 411 I.P.C.

Presumption
If an accused person is found in possession of stolen property, the
presumption under section 114 Evidence Act illustration (a), is that he is
either a thief or a receiver of stolen property, knowing it to be stolen. Under
certain circumstances the presumption of graver offence is also drawn. In
“Circumstantial Evidence” at page 104 to 105 (17th Edition) the learned
author Wills says, “The possession of stolen goods recently after the loss of
them, may be indicative not merely of the offence of larceny or of receiving
with guilty knowledge but of any other more aggravated crime which has
been connected with theft. This particular fact of presumption commonly
forms also a material element of evidence in case of murder, which special
application of it has often been emphatically recognised.
As such in many of the rulings given below it has been held that recent
and unexplained possession of stolen property in the absence of
circumstances tending to show that the accused was only the receiver would
not only be presumptive evidence against the prisoner on the charge of
robbery but also on the charge of murder if the articles are shown to be
those in possession of the robbed person or deceased at the time of
occurrence. See Sunder Lall, 1954 S.C.28; Ram Bharosy, 1954 SC 704; K.K.
Yadav, 1966 PC. 821 (murder on
19 March), buttons of deceased with human blood recovered from accused on
26/31 March. Held presumption of murder. But if gap of time is great, no
presumption of original offence. Murder on 2-1-1973. Recovery of watch and
key of Scooter of deceased from accused on 9-1-1973. Presumption of murder
not drawn in Onkar, 1974 Cr.L.J. 1200. But such a presumption can be raised
only if the person found in possession is unable to account for his
possession.
In Karval Singh, Uttam Singh 1976 S.C. 1097 it was held that
presumption from recent possession is an optional presumption of fact under
section 114 Evidence Act. It is open to the court to convict an accused by
using the presumption where the circumstances indicate that no other
reasonable hypothesis except the guilty knowledge of the accused is open to
prosecution. But where explanation which the accused gives was good
enough to raise serious doubts about sustainability of the charge under
section 441 I.P.C. the accused was held entitled to acquittal. As held in Otto
George Gellar v. King, 1943 P.C. 211 , but if an explanation is given which
the jury think might reasonably be true and which is consistent with
innocence although they were not convinced of its truth, the prisoners were
entitled to be acquitted. If the accused person can explain as to how the
article of the complainant came to his possession, shortly after they had
been stolen from the possession of the complainant and the explanation
appears to be reasonably true then no offence is made out against that
person. It is not necessary that explanation should be proved by the accused
by any convicting evidence. It is sufficient if he can show that it was
probably and reasonably true or sufficient to raise a doubt in the mind of a
Court. The onus lies on the prosecution to prove that the explanation is
false, 1966, Manipur 2 Mal Sawn Lushai.
The Court in order to draw presumption under section 114 Evidence Act
must ask the accused if he could explain his possession. It is only when
accused fails to give explanation that Court is permitted to draw
presumption. Asgler Hussain, 1964 SC 336 . If explanation which he gives is
palpably false the correct conclusion to come to was not merely that the
accused was guilty of receiving stolen property but that he was murdered, as
held in case Stale v. Mohan Lall 1958 Cr.L.J. (Raj.) where accused was found
in possession of jewellery soon after murder and theft.
The recovery of the incriminating article in pursuance of accused’s
information is an important piece of evidence to show possession of accused
and presumption to be drawn from therein under section 114 illustration (a)
Evidence Act. The Supreme Court in Mohan Lall v. Ajit Singh, 1978 SC 1183
in an appeal against acquittal held. “As has been held by this Court in Baiju
@ Bharose v. State of M.P. Criminal Appeal No. 128 and 129 of 1977 decided
on January 19, 1978 the question whether a presumption should be drawn is
a matter which depends on the evidence and circumstances, of each case.
The nature of recovered articles, the manner of acquisition by the owner, the
nature of the evidence about their identifications, the manner in which the
articles were dealt with by the accused, the place and the circumstances of
their recovery, the length of the intervening period and the ability or
otherwise of the accused to explain the recovery are some of the
circumstances. Ring and C notes bearing Finger Prints of accused recovered
under section 27 Evidence Act after 6 days of occurrence of murder and
robbery from accused who had buried these on way-Held presumption of
murder and robbery drawn. In case Baiju @ Bharose, 1978 C.L.R. (S.C.) 167 ,
articles recovered 8 days after murder and robbery for which there was no
explanation, of possession by accused-Held presumption drawn.
In this connection the following rulings provide an interesting study:
1. Safatter Singh, 1953 Cr.L.J. 377 (All.) . A stolen buffalo was recovered
from the ‘Gher’ of the accused. The accused admitted the recovery but
explained by saying that he had not kept her there and that she might
have been tied there by somebody else and that he had knowledge
about it. Held that explanation was sufficient for acquittal of the
accused since the gher was accessible to everyone and open.
 2. Keshabdeo Bagar, 1945 Cal. 93 . A cashier of a firm had passed on
forged cheques to the accused who used these and was caught. The
explanation of the accused was that he being a friend of this person
had received these in the ordinary course of business. Held that
explanation was sufficient. Held further the accused is not required to
prove his explanation by adducing substantive evidence. In many
cases, it may be impossible for him to do so, particularly if he alone
knows the facts for he cannot give evidence on oath on his own behalf.
3. State v. Magha, 1952 Cr.L.J. 1055 (Raj). The accused was found in
possession of stolen goods. He was goldsmith. He explained that the
ornaments alleged to be stolen property were brought to him for
repairs for cleaning. Held it was a reasonable explanation.
4. Managaya Shah v. Crown, 17 P.L.R. (1916) 175, in this case an animal
had strayed several months prior to the date of possession of the
accused. The accused alleged that he had purchased the animal from a
certain person who denied the sale.
It was held by Shadi Lal. J. “That the guilty knowledge of the accused
has not to be presumed. The fact that the persons the accused named
from whom he had purchased the animal, deny the sale does not
deprive innocence.”
5. I.L.R VI, 1953 Punjab 313 State v. Jita Ram . In this case Jita Ram
accused had sold the cycle on 26-2-50. The accused was arrested and
challaned. The theft of the cycle had taken place on 03-11-1949.
During the trial accused admitted the sale but pleaded that it had been
given to him by his father who was produced as a witness and stated
that he purchased it from a co-villager for Rs. 50 eight months prior to
sale and asked his son to sell it as he wanted money.
The learned Magistrate found that there was no evidence to show that
accused had committed the theft and as there a gap of about
3 months and 22 days between the theft of the cycle and sale of it by
the accused and as such there was an explanation given by the father
of the accused which the court found to be reasonable he refused to
draw the inference that the accused had received the stolen property
knowing it to be stolen and therefore acquitted him. The State filed an
appeal against the acquittal. It was held by the High Court which
rejected the appeal.
(a) Under illustration (a) to section 114 Indian Evidence Act, the Court
may but is not obliged to make the presumption in there
mentioned.
(b) Even if the Court makes the presumption under illustration (a) to
Section 114; the onus on the general issue is still on the
prosecution, and
(c) The accused is entitled to acquittal if he can give an explanation
which reasonably may be true although the jury may not be
convinced that it was true.
6. 1957Cr.L.J. 1393 (Andhra Pradesh) in re Shaik Server. The defence
was- two persons came to shop and asked for change of Rs. 10/- note.
The accused replied that he had no change where upon they borrowed
Rs. 2/- from him and went away leaving two bags (stolen property)
saying that they would come back after 2-5 days. Held that explanation
could not be held to be inherently or palpably false, and benefit of
doubt be given to accused.
A mere denial of the prosecution story or any assertion inconsistent with
facts proved by the prosecution cannot amount to explanation, to make the
presumption unavailable to the prosecution under section 114 Illustration of
the Evidence Act. In 1952 Cr.L.J. 1522 Lakshman (Mysore) certain missing
cattle were seized from the possession of the accused on the third day of the
theft. The only explanation of the accused was his denial of the ownership of
the complainant and the assertion of his own right as claimed through his
father. This explanation was considered as not reasonably convincing.
Merely saying the property was of his relation, is not an explanation of his
possession within the meaning of section 114, Illustration, (a) of Evidence
Act. (1911 Cal, 421). In Pulpul Singh v. State, 1955 All. 696 , the explanation
by merely saying that he purchased it from hawker when none was produced,
was held to be too puerile to bear acceptance.
No weight will be attached to the explanation, however, if it is
unreasonable or manifestly inadequate or improbable on the face of it. In re
Kirukku, 1958 Cr.L.J. 1042 (Mad.).
An I.O. should therefore, always realize that presumption permitted by
section 114, IIIustration (a) does not arise until the prosecution establishes
the following:
1. Ownership of the articles in question by the complainant.
2. Theft of these articles.
3. Recent, exclusive, conscious and explained possession by the
accused.
It is not necessary that this presumption can be drawn only when there
should be proof of receipt of these articles from another. 1958 Cr.L.J. 534
(Orissa) Sada Shiv, 1959 All. 718 Rajjaua.
It was held in 1949 E.P. 313 that in case of possession of stolen goods no
fixed time limit can be laid down to determine whether possession is recent
or otherwise and every case must be judged on its own merits. The
presumption of guilt varies according to whether the stolen articles are or
are not calculated to pass readily from hand to hand and, therefore, the
importance to be attached to possession must vary with circumstances of
each individual case. Gold saglas or bangles are not articles calculated to
pass readily from hand to hand, that being so possession of such articles
recovered after four months must be held to be recent.
In 1957 Cr.L.J. 678 Roshan Behari (Punjab) recovery after three weeks
was held sufficient to establish case under section 412 I.P.C. In 1949 N.L.J.
13 recovery seven months after house breaking was held to be a case of
recent possession.
It was held in 52 Cr.L.J. 1951 page 492 “For a conviction under section
412 I.P.C. the recovery from possession of the accused would have little
bearing on the point of knowledge when the recovery took place long after
the occurrence. In 1978 Cr.L.J. 379 Nakali, Allahabad High Court did not
hold recovery of bullock after one month 17 days to be recent. It was further
held that where time gap was great, the prosecution must prove that bullock
had changed hands before it came into possession of accused.
Section 114–Illustration (a)–Murder and Robbery–Case against main
accused proved beyond doubt–Mere recovery of some of jewelleries etc.
belonging to informant after two months of occurrence from two other
accused–Not sufficient to convict them for murder by taking recourse to
presumption under Illustration (a) to section 114 of Evidence Act–But they
can be convicted under section 114. A. Deivendran v. State of Tamil Nadu,
1998 Cr.L.J. 814 SC.
Section 114–Presumption–Can be drawn only from facts and not from
other presumptions by a process of probable and logical reasoning. Suresh
B. Kalami v. State of Maharashtra, 1998 Cr.L.J. 4592 SC.
Section 114–Illustration (a)–Murder and Robbery–Recovery of articles
belonging to deceased family from possession of accused soon after the
incident–Possession remained unexplained by accused–So, presumption
under Illustration (a) of Section 114 will be attracted–Murder and robbery of
articles found to be part of same transaction–Thus, it could be concluded
that accused and none else committed murders and robbery. Ronny v. State
of Maharashtra, 1998 Cr.L.J. 1638 SC.
 Presumption–Power given by section 114 is only in respect of inferences
which has to be drawn by court–It does not authorise the court to legislate
as to manner in which the human being should conduct themselves. State of
Rajasthan v. Bhera, 1997 Cr.L.J. 1237 (Raj.).

Presumption of murder from recent and unaccounted possession of

deceased’s property by accused
Sometimes there are cases, in which there is no direct evidence of
murder, but the accused is found in possession of the deceased’s property,
then question arises if presumption of murder can be drawn against the
accused sufficient to convict him for murder. It depends upon the lapse of
time between the occurrence and the recovery of property, then it is
sufficient for conviction. Section 114 illustration (a) Evidence Act. If time
lapse is big or the accused gives a reasonable explanation of property then,
no such presumption can be drawn.
(i) There was an interval of 5 months and 5 days between the murder
and recovery of certain ornaments of deceased. No presumption
drawn as observed by Supreme Court, it has to be read with time
factor. 1954 SC 1. 1954 Cr.L.J. 225 Tulsi Ram.
(ii) Murder committed at 2 P.M. on 25 t h July, 1951. The accused found in
possession of stolen ornaments of deceased shortly after. Same
ornaments recovery at his instance also. His claim to ornaments
found false. The circumstantial evidence held sufficient for
conviction. 1954 SC 28, 1954. Cr.L.J. 257 Sunder Lall.
(iii) Accused murdered his father and step mother on the night of 26 t h
May. The appellant was missing from his house before 7.30 A.M. He
was arrested same morning when he produced blood stained
ornaments. The presumption of murder was drawn. 1954 SC 704.
154 Cr.L.J. 1755 Ram Bharosay.
(iv) Murder on 19 t h March, Buttons of deceased with human blood on it
from accused between 26 and 31 March. The dead body also
recovered at his instance. Held sufficient to draw presumption of
murder, 1966. SC 821, 1966 Cr.L.J. 605 K.K. Jadav.
(v) The appellant found in possession of stolen property 3 days after.
The explanation of accused found false presumption of murder
drawn 1956. SC 400, 1956 Cr.L.J. 790 Wasam Khan.
(vi) Deceased murder on 12 t h December. Accused arrested on 13 t h and
stolen money recovery. Presumption of murder drawn. 1987 Goa and
Daman 21, 1967 Cr.L.J. 357 Rajni Kant.
(vii) Murder on 02.11.1973 Recovery of watch and know of scooter of
deceased from accused on 09.01.73. Presumption of murder and
drawn and conviction under section 411 I.P.C. Held in 1974 Cr.L.J.
1200 (MP) Onkar.
(viii) Supreme Court drew presumption of murder when robbed articles
were recovered from accused after a year when he had been
absconding and had made disclosure statement leading to recovery
immediately after arrest. In 1983 (2) C.L.R. 669 Eara Bhadrappa.
See in this connection 1923 Lah. 460, 1937 Patna 112, Lah. 528, 1946
Sindh 153, where recovery being long after the occurrence, the presumption
of guilt of being a theft of receiver of stolen goods was not raised. It was
held that such a possession did not indicate dishonest intention.
In such case the I.O. should always try to trace the origin of possession of
the incriminating article with the accused or he should collect evidence to
show that even sometime prior to the recovery, the accused was seen in
possession of the article.
The principle was enunciated in Parshadi v. State, 1955 Cr.L.J. 1125 (All.)
being if interval between theft and possession by accused is:
 (i) very small, the presumption can be that he is thief,
(ii) if relatively large, then that he is receiver,
(iii) if very large the court may not draw any presumption.
It may be pointed out that the scope of the evidence on which the court
could come to a conclusion that explanation was satisfactory or not, the
possession were recent or not, must depend upon circumstances of each case
and as such an I.O. should collect evidence.
1. To show that explanation is false. The burden still lies on the
prosecution to show it is false, if it wants the court to rely upon this
evidence. See in re Kali Perumal, 1954 Cr.L.J. 1768, 1957 Cr.L.J. 939. In re
Baddu Sanyasi.
In Chimna v. State, 1961 (1) Cr.L.J. 310 (Raj.) though recovery of gold
ornaments was 19 months after theft, yet three false explanations given by
accused coupled with other circumstances were held to be sufficient to raise
presumption under section 114 illustration (a) Evidence Act.
It is all the more necessary “as a false explanation given by the accused
regarding receipt of the property makes the prosecution case stronger and
more acceptable.” Manipur State v. Ass Ram Bokar Singh, 1954 Cr.L.J. 1313.
False explanation was held to be an additional link which completes the
chain of circumstantial evidence to prove a case against accused. Deonandan
Mishra v. State of Bihar, 1955 SC 801 and Mohan Lall 1974 SC 1144 where it
was observed “Indeed among the circumstances which go against the
accused’s innocence is the falsity of plea he put forward. It is not illegal to
take into consideration this circumstance also, if there are compelling
materials bringing home the guilt of the accused.”
2. To show that possession of the accused was not in the natural course of
events, but was incriminating.
3. To show that article has changed hands after theft.
Presumption under section 114 Evidence Act is not ultravires of the
Constitution because of Article 21 of the Constitution which lays down:
“No person shall be deprived of his life or personal liberty except
according to procedure established by law” 1956 Punjab 224 State v.
Parkash Singh.

Challan in 411 I.P.C. Cases

Sometimes stolen property of different cases, say five, is recovered from
the accused in the course of single recovery. Should there be five different
challan or one challan only? If the prosecution can prove that accused
received this property on five different occasions, then there should be five
challans. If there is no such evidence then. “It is not inconceivable that
although thefts may have been committed on different occasions the thief
passes on the stolen property to the receiver at one time. The fact of
receiving in such a case would be one act. Although the stolen property
relates to number of thefts and to a number of stolen articles. There should
be one challan, recovery wise and the five complainants be cited as witness.
1959 Cr.L.J. 762 State v. Dena Nath.
An offender under section 411 I.P.C. can be joined and tried together
with:
(a) persons accused of theft, extortion, criminal misappropriation about
such property;
(b) with persons accused under section 414 I.P.C. in respect of the same
stolen property [Section 223 (e)(f)].
For place of trial see section 184(b) and section 181(3) which read:
Section 184(b)–Where the offence or offences committed by several
persons are such that they may be charged with and tried together by virtue
of provisions of section 223, the offences may be enquired into or tried by
any Court competent to inquire into or try the offences.
 Section 181(3)–Any offence of theft, extortion, or robbery may be
enquired into or tried by the Court within whose local jurisdiction the
offence was committed, or the stolen property which is the subject of the
offence, was possessed by any person committing it or by any person who
received or retained such property, knowing or having reason the same to be
stolen.
Section 411–Receipt of stolen property–Proof of identification of stolen
property–Non-done absence of any distinguishing mark of identification–
Recovery memo not corroborating factum of presence of complainant at time
of recovery–Material contradictions in evidence of witnesses as to said
recovery no proof that article recoverd from accused was same as was
alleged to be stolen–Conviction of accused thus not proper. Narayan Das v.
State of Rajashtan, 1998 Cr.L.J. 29 (Raj.).
Section 411–Dishonestly receiving stolen property–Murder and robbery
case–No evidence connecting accused with Murder or having robbed
deceased of her ornaments–Recovery of ornaments of deceased at instance of
accused proved–Presumption under section 114 of Evidence Act can be
drainer that accused is receiver of stolen property known to be stolen–
Conviction of accused under section 114, proper. The Public Prosecutor v.
Yerra Arjuna, 1998 Cr.L.J. 179 (A.P.).
Sections 114, 380 and 457–Theft–Proof–Accused alleged to have stolen
coffer not containing Rs. 200/- in cash from temple–Recovery of stolen
property at instance of accused from his custody–No direct/circumstantial
evidence to show that accused was found nearby place where alleged
incident took place–Therefore acquittal of accused under section 380 and
457, proper–No explanation was given by accused regarding possession of
stolen property–In circumstance, conviction of accused under section 114
would be proper–Further even though value of stolen property was small i.e.
Rs. 600/- only but considering fact that it was stolen from temple, fine of Rs.
2000/- was imposed. State of Karnataka v. Abdul Gaffer, 2000 Cr.L.J. 4456
(Kant.).
Section 411–Accused acquitted in an offence under section 411 I.P.C.–
Once accused are acquitted they are entitled to return of amount recovered
from them. Punjab Tube-well Corporation Ltd. v. Puran Singh, 2005 (1) RCR
(Criminal) 621.
Sections 411 and 379–Recovery of stolen car from accused–Evidence
showed that accused secured fictitious registration number so as to sell the
car–Chain of events from stage of theft of the car, change of the registration
number and recovery thereof from the petitioner has been established
beyond reasonable doubt–Conviction of accused under section 411 I.P.C.
upheld. Prem Chand v. State of Haryana, 2006 (1) RCR (Criminal) 733
(P&H).
Section 411–Recovery of two motor cycles and three other vehicles from
accused–Accused not able to explain as to how these vehicles had come into
his possession–The only inference is whether he had committed theft of these
articles or he had received these vehicles as stolen property–Conviction
upheld. Mukesh Kumar v. State of UT, Chandigarh, 2002(1) RCR (Criminal)
206.
Presumption is not irrebuttable one. Ramesh Kumar v. State of
Chandigarh, 2001 Cr.L.J. 4724 (SC).
Recovery of knife and other articles of the instance of accused–Stock
witness joined through many independent witnesses were available – No
presumption could be drawn that the person from whom recovery was
effected committed the offence. Babudas v. State of M.P., 2003 Cr.L.J. 2536
SC.
Section 411 IPC–The Cancigo Units worth Rs. 33 Crores were purchased
by money owned by appellant Hiten P. Dalal, so they were not stolen
property in his hands–There were no complaints neither from Andhra Bank
nor the Andhra Bank Financial Services Ltd.–Criminal Breach of Trust is also
not made out, the conviction of the appellant under section 411 is not
sustainable. The appellant section Mohan is also not liable for the conspiracy
to commit offence under section 411. S. Mohan v. CBI, 2008(2) Crimes 304
SC.
Sections 411 and 120B I.P.C. and prevention of corruption Act, section
5(2)– Prosecution of accused persons for dishonesty and frauduletly
misappropriating cement bags of government for personal gain and for
forging store documents and storing cement bags in shop which was
recovered by the police during investigation of case. Appeal–All store items
were found correct as per record of store–Prosecution case not supported
even by driver and cleaner of truck–store was checked by police and 826
cement bags were found intact therein and said fact was mentioned in
recovery memo. Prosecution miserably failed to lead independent evidence to
corroborate alleged confessional statement made by respondent in presence
of CJM–Accused persons is not liable and conviction under section 411 and
section 120B IPC. State of H.P. v. Ishwar Das, 2007(2) Crimes 94 (H.P.).
Section 411 I.P.C. and Section 114(e)–Permissibility of drawing double
presumption gold chain was snatched by two culprits–Petitioner accused
arrested in other case disclosed his involvement and got recovered gold
chain from jeweller PW7 and identified by victim that chain to be her
property– Investigating officer either in seizure memo or in evidence did not
state that petitioner had told him in course of questioning that petitioner
had gold chain to PW7–Court may presume that petitioner was in possession
of gold chain but further presumption that petitioner was either thief or
receiver of gold chain knowing it to be stolen property could not be drawn–
Conviction was liable to be set aside. Ramachandran v. State of Kerala,
2009(1) Crimes 711.
Section 411–In the instant case, the accused alongwith other accused was alleged to
have committed murder of deceased and thereafter the dead body of deceased was
taken in a gunny bag and thrown in the valley, there was sufficient evidence on the
basis of last seen together, loading of gunny bag in the vehicle and thereafter travelling
of the accused in that vehicle for disposal of deady body. The memorandum making
disclosure about gold ring in possession of accused was admissible and trust worthy.
The accused failed to explain about the possession of gold ring of the deceased. The
accused prosecuted under section 411 IPC. Kishor Bhadke v. State of Maharashtra, AIR
2017 SC 279.



Chapter–15
Searches
An article in the house is in exclusive possession of the person who is the
sole owner and occupier of the house. If the incriminating article is lying in
such a position as every occupant of the house, if it is more than one, is
aware of its presence in that house, then everyone i.e. all incriminating
owners and occupiers of the house in question, are in possession of that
article. Such incriminating articles are often recovered by search of the
house by the police.

Law about Entry in Houses and Searches is Contained

A. Under Section 165 Cr.P.C. for searches during Investigation
 Section 165. Search by Police Officer.– (1) Whenever an officer-in-charge
of a police station or police officer making an investigation has reasonable
grounds for believing that anything necessary for the purpose of an
investigation into any offence which he is authorised to investigate, may be
found in any place within the limits of the police station of which he is
incharge, or to which he is attached, and that such thing cannot in his
opinion be otherwise obtained without undue delay, such officer may after
recording in writing the grounds of his belief and specifying in such writing,
so far as possible, the thing for which search is to be made search or cause
search to be made, for such thing in any place within the limit of such
station.
(2) A Police Officer proceeding under sub-section (1) shall, if practicable
conduct search in person.
(3) If he is unable to conduct the search in person and there is no other
person competent to make the search present at the time, he may after
recording in writing his reasons for so doing require any officer subordinate
to him to make the search, and he shall deliver to such subordinate officer
an order in writing specifying the place to be searched and, so far as
possible the thing for which search is to be made; and such subordinate
officer may thereupon search for such thing in such place.
(4) The provision of this Code as to search-warrants and the general
provisions as to searches contained in Section 100 shall, so far as may be,
apply to a search made under this section.
(5) Copies of any record made under sub-section (1) or sub-section (3)
shall forthwith sent to the nearest Magistrate empowered to take cognizance
of the offence and the owner or occupier of the place searched shall, on
application be furnished, free of cost, with a copy of the same by the
Magistrate.

Section 166 Cr.P.C. Reads as Under

1. An officer of a police station or a police officer not being below the
rank of Sub-Inspector making an investigation may require an officer-in-
charge of another Police Station, whether in the same or a different district
to cause a search to be made in any place, in any case in which the former
officer might cause such search to be made, within the limits of his own
station.
2. Such officer, on being so required, shall proceed according to the
provisions of Section 165, and shall forward the thing found, if any, to the
officer at whose request the search was made.
3. Whenever there is reason to believe that the delay occasioned by
requiring an officer-in-charge of another police station to cause a search to
be made under sub-section (1) might result in evidence of the commission of
an offence being concealed or destroyed, it shall be lawful for an officer-in-
charge of a police station or a police officer making an investigation under
this Chapter to search, or cause to be searched any place in the limits of
another police station in accordance with the provisions of section 165, as if
such place were within the limits of his own station.
4. Any officer conducting a search under sub-section (3) shall forthwith
send notice to the officer-in-charge of the police station within the limits of
which such place is situated and shall also send with such notice a copy of
the list (if any) prepared under section 100 and shall also send to the nearest
Magistrate empowered to take cognizance of the offence copies of the
records to in sub-section (1) and (3) of Section 165.
5. The owner or occupier of the place search shall, on application be
furnished free of cost with a copy of any record sent to the Magistrate under
sub-section (4).
Section 166A–Letter of request to competent authority for
investigation in a country or place outside India
(1) Notwithstanding anything contained in this Code, if, in the course of
investigation into an offence, an application is made by the investigating
officer or any officer superior in rank to the investigating officer superior
that evidence may be available in a country or place outside India, any
Criminal Court may issue a letter of request to a Court or an authority in
that country or place competent to deal with such request to examine orally
any person supposed to be acquainted with the facts and circumstances of
the case and to record his statement made in the course of such examination
and also to require such person or any other person to produce any
document or thing which may be in his possession pertaining to the case and
to forward all the evidence so taken or collected or the authenticated copies
thereof or the thing so collected to the court issuing such letter.
(2) The letter of request shall be transmitted in such manner as the
Central Government play specify in this behalf.
(3) Every statement recorded or document or thing received under sub-
section (1) shall be deemed to be the evidence collected during the course of
investigation under this Chapter.

Section 166B Cr.P.C.–Letter of request from a country or place

outside India to a Court or authority for Investigation in India
(1) Upon receipt of a letter of request from a Court or an authority in a
country or place outside India competent to issue such letter in that country
or place for the examination of any person or production of any document or
thing in relation to an office under investigation in that country or place, the
Central Government, may, if thinks fit—
(i) forward the same to the Chief Metropolitan Magistrate or Chief
Judicial Magistrate or such Metropolitan Magistrate or Judicial
Magistrate as he may appoint in this behalf, who shall thereupon
summon the person before him and record his statement or cause the
document or thing to be produced, or
(ii) send the letter to any police officer for investigation, who shall
thereupon investigate into the offence in the same manner, as if the
offence had been committed within India.
(2) All the evidence taken or collected under sub-section (1), or
authenticated copies thereof or the thing so collected, shall be forwarded by
the Magistrate or police officer, as the case may be, to the Central
Government for transmission to the court or the authority issuing the letter
of request, in such manner as the Central Government may deem fit.
Section 166B Cr.P.C.–Section 302 I.P.C.–Appellant involved in a murder
case in Canada–Canadian authorities made a request to Govt. of India to
obtain sample of blood and record statement of accused on voluntary basic–
Accused refused to do so–Court cannot compell the appellant to make a
statement and give his blood sample under compulsion which was not the
request of Canadian authorities. Narinder Singh Bogarh v. State of Punjab,
AIR 2004 SC 1686.
B. Under the provisions of section 47 Cr.P.C. A police officer having
authority to arrest, can search the place for the arrest of a person and even
can break open the doors etc. for effecting an entrance into that house. If
the occupant is a woman, she will be given a notice and afforded facility to
withdraw.
C. The search warrants can be issued under section 93 Cr.P.C. by any
Court (for a document or a thing as required); under section 94 by D.M.,
S.D.M., M.I.C. for suspected stolen property and for any objectionable
articles such as counterfeit coin, currency notes, stamps, forged documents,
false seals, obscene objects referred to in section 292 I.P.C. etc.; under
section 95 by any Magistrate (forfeited publication) and under section 97
Cr.P.C. by D.M., M.I.C. (for a person wrongfully confused). The Police
Officer in whose name such warrant is endorsed can search.
D. According to Section 99 Cr.P.C. The provision of sections 38, 70,
72, 74, 77, 78 and 79 shall, so far has may be, apply to all search warrants
issued under section 93, section 94, section 95 or section 97. Section 100
Cr.P.C. relates to formal searches and according to it the person incharge of
closed place shall allow search. Even force can be used under section 47
read with section 100 Cr.P.C. if ingress not allowed (Section 100(2)).
E. Section 100 Cr.P.C. provides that certain formalities must be
observed while conducting the searches.
Section 100(3). “Where any person in or about such place is reasonably
suspected of concealing about his person any article for which search should
be made, such person may be searched and if such person is a woman, the
search shall be made by another woman with strict regard to decency.
Section 100(4). Before making a search under this Chapter, the officer
or other person about to make it shall call upon two or more independent
and respectable inhabitants of the locality in which the place to be searched
is situated or of any other locality if no such inhabitant of the said locality is
available or is wiling to be a witness to the search, to attend and witness the
search and may issue an order in writing to them or any of them so to do.
Section 100(5). The search shall be made in their presence, and a list of
all things seized in the course of such search and of the places in which they
are respectively found shall be prepared by such officer or other person and
signed by such witness, but no person witnessing a search under this section
shall be required to attend the Court as a witness of the search unless
specially summoned by it.
Section 100(6). The occupant of the place searched, or some person on
his behalf, shall in every instance, be permitted to attend during the search,
and a copy of the list prepared under this section, signed by the said
witnesses, shall be delivered to such occupant or person.
Section 100(7). When any person is searched under sub-section (3), a
list of all things taken possession of shall be prepared, and a copy thereof
shall be delivered to such person.
Section 100(8). Any person who, without reasonable cause, refuses or
neglects to attend and witness a search under this section, when called upon
to do so by an order in writing delivered or tendered to him, shall be deemed
to have committed an offence under section 187 I.P.C.”
F. Under Section 153 Cr.P.C. Any officer-in-charge of a police station
may, without a warrant, enter any place in his jurisdiction and search for the
purpose of inspecting or taking into possession any weights or measures or
instruments for weighing used or kept within the limits of his station, if he
has reason to believe that the weights, etc., are false.
G. Under Section 96 to 106 Cr.P.C. These sections do not give any
specific power to police for searches but invest every person with a right for
defence of person or property (may be of any person). The police officer also
enjoys this right. He can intervene, use force and even enter a house by
virtue of implied right under these sections to defend any person or property
against assaults, thefts, robbery, dacoity, etc. An abducted woman can be
rescued or recovered from inside a house from the clutches of her abductors
who may be assaulting her by dint of this power and without recourse to
obtaining warrant under section 97 Cr.P.C. Any police officer can effect
entry as such.
H. Under Section 152 Cr.P.C. invests every police officer to interpose
for prevention of injury to public property. By virtue of this implied power,
such police officer can enter even private places for prevention.
I. Under Sections 149, 151 Cr.P.C. any police officer can enter to
interpose for the purpose of preventing the commission of any cognizable
offence or arrest the person so designing if it appears to such officer that
the commission of the offence cannot be otherwise prevented. Such power is
not specially mentioned in these sections but is given impliedly.

General Hints about Searches

The law of searches being such as referred to above, the general hints
which a Police Officer should always keep in view are as follows:—
1. A police officer should understand that a search can be conducted
without obtaining a search warrant from the Magistrate concerned,
only in those cases in which in the ordinary course a search warrant is
generally to be issued by the Magistrate and in which cases the delay
caused in obtaining the search warrant, would make it infructuous.
2. It is not every police officer who can effect search of a place. Search
can only be conducted by the officer-in-charge of a police station or
the Investigating Officer. If the search is inducted under a warrant
then the officer named therein can effect search.
An officer-in-charge or an I.O. can depute a subordinate to search, but
he must give reasons in the case diary and the daily diary for deputing
such a subordinate and not himself conducting the search. This is
necessary under section 165(3) Cr.P.C.
If a constable is deputed by his superior to make an enquiry, he will be
included in the definition of a police officer ‘making an investigation’
and as such eligible for making search. Otherwise a constable cannot
search a house or a place. See 24 P.R. 188.
3. In case a subordinate is to be deputed for conducting search, he must
be supported when an order in writing to that effect. A written
authority is necessary and a condition precedent. When such written
authority is being given, it should be seen, that it sufficiently mentions
the place to be searched and the thing for which search is to be
effected. Then and then only the officer so deputed will be legally
entitled to make search. It would not be open to search place other
than mentioned in the order as it would be illegal in that case. In Ram
Parves v. Emp., 1944 Pat. 228 there was no written authority, nor the
Police Officer was deputed for search for a specific thing in a specific
place, it was held that search without a written authority was without
jurisdiction and resistance to such search, was not illegal. It was also
held in 6 Cr.L.J. 753, 16 Cr.L.J. 15 , that a constable searching the
house without an authority in writing does not exercise the powers of
a public servant lawfully. An oral order for search does not carry any
legal authority to be bestowed upon the deputed officer. It is against
law. It was so held in Hira Lall v. Ram Pyara, 1935 Nag. 237 . A police
officer, thus should avoid giving oral orders. This, however, does not
mean that such officer is required to give an order in writing for
search to a constable or H.C. to make search when he himself is
present. An officer who goes to a place for search can ask his
subordinate to enter the house or place to effect the search without an
order in writing while he himself supervises the search. This
procedure is not illegal. Sometimes it also becomes necessary to
search different houses in a village. It is humanly not possible to
conduct all searches in person by the officer-in-charge or I.O. He can
depute a H.C. or other officer for this purpose, without written
authority. Law does not require that such officer should conduct the
search in person, vide section 165(2), but it does not can that officer-
in-charge or I.O. personally conducting the search must himself enter
the house, ransack the boxes, examine the roof, dig up the floor of
otherwise seek for the property as laid down in Santgopala v. Satru
Chna Beharg 23 Mad L.J. 445. See also Darshan Singh v. Emp. 1941
Lah 297 where it was held section 165(3) Cr.P.C. (written authority)
did not apply even if the search was partly conducted by I.O. himself,
 or under his directions and in his own presence by one of his
subordinates.
In Ujagar Singh v. Emp., 1932 Oud 249 the procedure of deputing H.C.
to conduct search of one house in the village and searching the other
house himself by the I.O. was held to be not wrong or illegal. It is,
however, advisable that I.O. should conduct search in person and not
depute subordinates to search under his supervision and in his
presence.
4. The I.O. or the officer-in-charge must be conducting investigation into
a cognizable case. He cannot search in a non-cognizable case in which
he has not been authorised to do so by a Magistrate under section
155(2) Cr.P.C. or 196(3) Cr.P.C. or 202 Cr.P.C. as held in 1943 Lah. 28
and 805. The words “investigation” into any offence which he is
authorised to investigate in section 165 Cr.P.C. are clear on this point.
5. The officer-in-charge or I.O. can only search for a specific thing or for
“anything necessary for the purpose of investigation”. A general
search is forbidden. A search in the vain hope of recovering anything
incriminating is to be discarded. While investigating a case, the said
police officer should be sure of as to what he is to recover and if that
article is necessary for the purposes of investigation or not. If article
is stolen one or incriminating one and is known and if recovered will
serve the purpose of investigation, then the search for such a thing is
absolutely legal and the police officer should justify the search in this
manner.
Thus, a search is not merely restricted to search for anything stolen or
believed to be stolen. 27 Cr.L.J. 711 (All). But if there is no
information of theft to such a police officer, he cannot search for
stolen property as held in 1923 Cal. 103. So under all circumstances,
such a police officer should keep in view that a promiscuous entry into
house is not permitted simply to satisfy himself as to the truth of an
allegation made a complainant, an accused or a witness, or for
inspection of any place inside a house or the configuration of a wall as
laid down in 1928 All. 185. This section authorises only a search for
specified things in a specified place (34 Cr.L.J. 568) and not property
generally (13 Cr.L.J. 639 & 764).
6. The officer-in-charge or the I.O. must record in writing the grounds of
his belief for effecting the search as required by section 165(1) Cr.P.C.
The officer should write the reasons in the case diary or the Daily
Diary as to the necessity of searching the house without the aid or
search warrant and in specifying clearly the articles which are
suspected to be lying in that house with a hope to recover these. The
reasons should be cogent and not based upon whims. These must
precede the search. It was held in Asandas v. Khan Chand 1933 Sind
240 that the reasons in writing referred to in section 165 Cr.P.C. can
be recorded at anytime or at any place prior to the actual search. This
procedure has been mainly formulated to safeguard the interests of
the accused and is intended to protect the liberty of the citizens and
avoid useless and unjustified searches and the possibility of want of
annoyance and needless harassment caused by search. The
requirement cannot dispensed with or explained away on assumptions
of necessity of the existence of proper grounds for act. Nava. 1957
Cr.L.J. 381. It was held in M.S. Fedders Lioyd, 1969 Cr.L.J. 168 that
provisions in sub-section (1) of section 165 Cr.P.C. are only directory
and not mandatory and consequently substantial compliance with their
requirement would be sufficient. The provision is directory does not
mean that police officer has a discretion to fulfil these requirements.
The said requirements should be fulfilled at least substantially before
any police officer seeks to exercise the power to search under the
 section. The mentioning of place is not necessary. Similarly,
mentioning the names of owner are not material.
In Parshotam Dass, 1975 Cr.L.J. 309 (Delhi) it was held ordinarily a
police officer must record grounds for search. But then there may be
circumstances where the time spent on such compliance may injure the
very purpose of search and may interfere with an immediate recovery.
In such case the trial is not vitiated as it is irregularity which is
curable.
7. The officer-in-charge or the I.O. shall forthwith send to the Illaqa
Magistrate the copy of the record prepare under section 165(1) Cr.P.C.
(grounds or belief, etc.) and under section 165(3) Cr.P.C. written
authority in case of deputing a subordinate. It was held in 1969 Cr.L.J.
168 sub-section 5 is an extra safeguard to protect individuals against
general or roving searches. If police officer does not send, the search
is irregular. In spite of word “shall” the provision is directory.
A note regarding the despatch should be made in the Case Diary or the
Daily Diary and Register No. V of the Police Station. (Dak Register).
In case of search in the jurisdiction of another police station. The
formalities above given, must be complied with an I.O. can only search in the
jurisdiction of another police station if the conditions as laid under section
166(3) Cr.P.C. exist.
Section 165 Cr.P.C.–Search by police officer under section 165 Cr.P.C.
can be made if a case is already registered and search is to be made for
particular thing or specified material necessary for purpose of investigation
under section 165 Cr.P.C. general search is not permissible–Police officer
must record failure to associate independent witness as required by section
100(4) of the Code may in the facts and circumstances of the case vitiate the
trial. Smt. Kiran Lata v. State of Haryana, 2003 (2) RCR (Cri.) 239.
Section 165 Cr.P.C.–Recovery of stolen railway property–R.P.F. officers
can conduct house search without search warrants–Provisions of section 165
Cr. P.C. are applicable by virtue of section 8(2) of Railway Property Act.
Santosh Kr. Karmakar v. State of West Bengal, 2001 Cr.L.J. 3828.
Sections 165 and 482 Cr.P.C.–Sections 379 and 420 IPC–Search of house
of accused made–No independent witness joined–Forged identification card
recovered–F.I.R. quashed–House of accused could not be searched under
section 165 Cr.P.C. without prior registration of case–Search made in
violation of Section 165 Cr.P.C. Smt. Kiran Lata v. Sate of Haryana, 2003(2)
RCR (Cri.) 239.

Darbandi
The formalities of search are provided of section 100 Cr.P.C. Before these
are discussed in detail, it is suggested that securing the house to be
searched by locking or guarding it before search is legal. The recourse is to
be taken when more than one houses are to searched in a village or when the
respectables or locality are to be awaited to witness the search, or when the
occupier is sent for. Precautions should be taken to see that evidence of
securing is reliable and beyond doubt to show the impossibility of planting
an incriminating article. A police officer is authorised to take such measure
under section 157 Cr.P.C. which provides the duties of a police officer “to
investigate the facts and circumstances of the case and to take such
measures as may be necessary for discovery and arrest of the offender”
Securing can be:—
1. By locking the house. Key should be kept by the officer searching the
house or some respectable or even accused under certain
circumstances.
2. By posting constable along with a respectable outside the house.
 Under the authority of section 157 Cr.P.C. coupled with section 100(1) (2)
Cr.P.C., a police officer can break open the lock of the house to effect
recovery by searching it. See Section 47 Cr.P.C. also.

Formalities of Searches
1. There must be present two or more independent and respectable
persons of locality to witness the search:
The officer-in-charge and I.O., at the time of making searches should call
at least two independent respectables of locality to witness searches. They
are empowered to summon in writing such persons of locality under section
100(4) Cr.P.C. The refusal of such persons summoned to attend is penal
under section 187 I.P.C.
In case in re-Rajabather, 1959 Cr.L.J. 1180 Rama Swami discussed at
length the legal meaning of “respectable” and “locality” used in section 103
(now section 100) Cr.P.C. saying “The respectability of a witness does not
cannote any particular status or wealth or anything of that kind. Any person
is entitled to claim respectability provided he is not disreputable in anyway.
The words “respectable inhabitants of locality” must be constructed in the
light of the object of the section in accordance with maximum “uterus magis
valeat quampereat” that an act may avail rather than perish. The legislature
has made this provision to ensure fair dealing and a feeling of confidence
and security amongst the public in regard to sometimes necessary invasion
of private right regarded as almost sacred under the British system. In order
to give effect to this subject, it is necessary that the persons selected should
be absolutely unprejudiced and uninterested in the result of what they have
to take part in. The selection of officers connected with the police or persons
who are not impartial is not comtemplated by the section. Having been a
prosecution witness is not sufficient to deprive one of one’s title of
respectability. The words ‘of the locality’ do not mean that they should be
living with a stone’s throw of the house to be searched. Nor are the words
restricted to mean the same quarter. They are comprehensive and include
places even within 3 or 4 miles of the place of search. But the fact that the
witnesses are from a different locality will not necessarily make the search
invalid or make the evidence of such witness inadmissible. Similarly, the fact
that the witnesses are taken from another locality should not be looked upon
as a factor militating against their respectability. The emphasis of the
section is on the word “respectable” and not on the word “locality”. It was
further held by Ramaswamy J. in Govindan Nair 1959 Mad. 544 that
respectable men living at distance can be joined in search in place of person
of locality if:
(i) locality thinly populated,
(ii) population locality being accused’s Kinsmen and caste men, and
(iii) accused commands influence and no impartial men come forward. It
was further held that the fact that one of the search witnesses has
assisted the police on another occasion is not sufficient to deprive
him of his respectability.
If only one witness is available from locality, he should be made to join as
the presence of only one witness instead of two as laid down in section 100
Cr.P.C. was not considered an illegality in 1934 All. 873. But where neither
of the two witnesses belong to locality and one as belonging to opposite
faction, the search was held to be bad in 1947 All. 165.
The conviction in case where no attempts was made to call persons of
locality and where witnesses were from a different locality, was held to be
bad in 1949 All. 249 and 1953 Cr.L.J. 1181 Fittar v. State See also 1951 All.
147 Bishandh Rai v. Rex where both search witnesses were from different
locality. No evidence that witnesses of locality were not handy or were
unwilling to come forward as search witnesses on account of greater
influence of accused. Trial held vitiated.
 But it always depends upon the circumstances of every case if it was
possible to secure the presence of persons of locality as held in 1951 Pat.
508 and that the absence of witnesses at the time search does not ipso facto
vitiate the trial of the accused. It was held in Sunder Singh, 1956 SC 411,
even if two rickshawalas who actually witnessed the search were not
respectable inhabitant of locality, that circumstances would not invalidate
the search. See also Parshotam Dass Supra where it was remarked that in
some situations the efforts to join witnesses of locality may leak out
information about search and may render the purpose of search nugatory.
Similar view was taken in 1976 Cr.L.J. 462 (witnesses other than locality did
not make the search invalid. In this connection see 1953
Cr.L.J. 762 (All.) Swami Dayal v. State . In this case Circle Inspector had
proceeded from police station with information that a gang had collected in
the cabin of the Swami Dayal, Gate Keeper for purposes of committing
dacoity. When he reached, there, he found that they already were on the
move for committing dacoity. He surrounded and caught them. Some of them
confessed their crime. He then came and immediately took the search of
cabin of Swami Dayal and recovered the incriminating article. It was held to
be evident that under the above circumstances the police had no time to go
to the village or the station to collect men for effecting search and as such
the absence of witness of locality was held not to be damaging. It was
further held “that in cases where such a raid is contemplated, it is usual for
the police to take witnesses along with them so they may serve as search
witnesses when the occasion arises. Under such circumstances, if police
goes to look for independent witnesses, the very purpose of search might be
defeated.”
When respectable and independent witnesses associated with search are
kept outside the room to be searched and they are called only after the
incriminating article is recovered, they are called to witness it, the entire
search is vitiated for non-compliance with section 100(4) Cr.P.C. 1989 Cr.L.J.
1412 (HP).
Section 97 Cr.P.C.–The application under section 97 Cr.P.C. was filed by
the mother of the child against her mother-in-law. Sometime in the year
2005 when allegedly the child was taken away by the mother-in-law and
during the pendency of application, the child is reported to have been taken
by father to his place of work at Rajasthan–Whether child in custody of
father could be said to be in wrongful confinement and whether such
wrongful confinement would amount to offence–Legally speaking when father
being a natural guardian of son keeps this son with him and the son has far
exceeded the age of 5 years it cannot be said that the son has been
wrongfully confined by the father. The impugned order directly father of the
child to produce the son before magistrate is liable to be set aside. Smt. Lily
Manna v. State of West Bengal, 2008(2) Crimes 466 Cal.
Section 97 Cr.P.C.–Search warrant for recovery of minor 7 years old
daughter of parties and direction to handover child to Complainant mother–
Magistrate taking cognizance of offence under section 323 I.P.C. on a
complaint filed by wife against husband and also entertained application
under section 97 Cr.P.C. and issued impugned order–Minor daughter is now
in the custody of the father and he is the natural guardian of the minor.
Impugned order is the sustainable. Saiket Saha v. Kakaji Panja (Saha),
2010(4) Crimes 547.
Section 97–Search for wrongfully confined persons–In this case, the mother had not
been to win over the confidence of the child in the case of custody of the child. Ample
chance was given to the mother. She failed to win over the confidence. The age of the
child was 15 years and achieved sufficient level of maturity welfare of the child lies in
the continued company of her father which appeared to be in her best interst. Jitendra
Arora v. Sukriti Arora, AIR 2017 SC 957.

The Net Result is

 (a) The witnesses of locality must be present. If not then it should be
shown that no one was coming forward to join in spite of an attempt in this
respect, and order in writing or the circumstances were such that time lost
in calling witnesses would have frustrated the very purpose of search.
Section 100(4) and that persons of other locality were called.
(b) A witness of locality should be present at the time of search though it
is not essential to produce him in evidence, if it could be otherwise
established that accused was in fact in possession of it. See 47 Cr.L.J. 489,
48 Cr.L.J. 611, Contra see State of Kerala v. Joseph, 1963 (2) Cr.L.J. 454
(Ker) where the only man of the locality was not cited in evidence.
That mere fact that some witnesses of locality, who were the witnesses of
search and recovery, were not examined as witnesses at the trial, would not
make the recovery doubtful- Nazir Khan, 1958 Cr.L.J. 120 (Allahabad). The
witness, if hostile, can be given up.
Section 100(5) Cr.P.C. for presence of witnesses applies when a ‘place’ is
to be searched and not a ‘car’ or person but as held in Bhagwan Bhai
1963(2) Cr.L.J. 694 by SC. “This is, however, not to say that the practice
which is generally followed by the police officer when investigating offences
under the Act to keep respectable persons present on the occasion of the
search of a suspected person or vehicle be discarded.” They should carry out
such search, if possible in presence of witnesses. In 1965 P.L.R. 129, it was
held that police officers can be believed but not where other witnesses could
be available. They should carry with them non-officials at the time of raids.
(c) A search is not vitiated by non-compliance with the provisions of
section 100(4) Cr.P.C, a breach of which will only put the Court on the guard
and incline it to scrutinize evidence of witnesses more closely. Any
irregularity or illegality in search will not vitiate the trial and the
contraband so recovered may be proved against the accused unless the
accused proves that some prejudice is caused to him due to illegality of
search. H.N. Rishbud AIR 1975 SC 196. What is “prejudice” is a question of
fact depending upon the facts of each case. The effect of such irregularity
will, however, depend upon the circumstances of each particular case, (Ref
1947) (1) Cal. 439. Legal remembrancer Bengal v. Mumtaz Uddin Ahmad,
followed in 1955 Cal. 129 Indu Bhushan Chatterji v. State . It was held in
Velayudhan’s Case 1961 Ker 8 (F.B.) that non-compliances with the
provisions of sections 103 (now Section 100) and 165 Cr.P.C. will not vitiate
trial or make the evidence of search officer inadmissible in evidence. It was
further held in A.P Kuttan, 1963(1) Cr.L.J. 669 (Ker) if provision are
contravened the Court may refuse to act upon the solitary evidence of the
investigating officer. It will make recovery doubtful. 1984 (1) C.L.R.662
Bhan Singh.
The provisions in section 100(4) Cr.P.C. is of mandatory nature and it is
incumbent upon the officer conducting the search to associate at least two
respectable persons of locality or adjoining locality. Non-compliance with
this provision renders the recovery in consequence of the raid as illegal and
in any case the accused would be entitled to benefit of doubt on that score.
Held to in Rattan, 1984 (2) C.L.R. 538 and 1985 (2) C.L.R. 662 Ram Nath.
The seizure of articles is not vitiated. Radhakishan, 1963 SC 822 . Such
search has no nullifying effect. 1964 P.L.R. 81 : 1987 Cr.L.J. 284, State of
Orissa v. Dolgobinda, one witness examined in Court, Search and seizure do
not become illegal. Witness of search, a Govt. employee, search is valid.
Search and seizure supported by evidence cannot be illegal though irregular.
If the police has secret information and it organizes raid, “it is expected
in all fairness to take some steps to associate respectable people belonging
to the locality with the investigation so that its conduct at the stage of the
trial may not be criticized.” Held so in State of Punjab v. Hakam Singh, 1977
P.L.R. 319. The High Court refused to upset the acquittal especially when
the evidence of official witness was discrepant. (1973) C.L.R. Dalip Singh.
Held to be not correctly decided.
(d) When the provisions of Section 100 (4) Cr.P.C. are departed from the
burden lies on the prosecution to explain the circumstances under which it
was not possible to comply with these provisions. The reasons must be given
in case diary to avoid these being dumped as after thought.
Section 100(4) Cr.P.C.–Explosive Substance Act, Section 3 and 4–
Independent witness–Recovery of explosive material–Testimony of police
personnel should be treated in the same manner as testimony of any other
witnesses and there is no principle of law that without corroboration by
independent witness their testimony cannot be relied upon–The presumption
that a person acts honestly applies as much in favours of police personnel as
of other persons and it is not a proper judicial approach to distrust and
suspect them without good grounds–It will all depend upon the facts and
circumstances of each case and no principle of general application can be
laid down. Karanjit Singh v. State, AIR 2003 SC 1311.
Section 100(4) Cr.P.C.–Punjab Excise Act, section 61 (1)(C)–Recovery
proved by official witness–Case of the prosecution is that efforts were made
to take support of the independent witness but nobody was ready to join the
police party–In this view of the matter, the benefit of doubt cannot be
granted to the petitioner–No animus has been pointed out against the I.O.
Lakha Singh v. State of Punjab, 2003 (1) RCR (Cri.) 190.

Police Evidence and Stock Witnesses

A police officer should be careful to avoid same persons being called
witness again and again to be present at different occasions to witness
searches. It is true that people are not willing to join searches voluntarily.
They rather avoid. To utilize the same persons as Panch witnesses, results in
a presumption that witnesses are stock ones under the thumb of the police.
In 1941 Rang 333 it was held that it was objectionable to call some persons
as search witnesses. It was held in Ved Parkash, 1966 P.L.R. 316 (D) that
“conviction should not be based on the evidence of a person who is proved to
be a stock witness of the police and has been going about giving evidence in
various police cases from different localities and who does not appear to
have scruples to speak the truth in the witness box.” Similar was the
directive in 1951 Born. 368. In Mohan Lall, 1978 Cr.L.J. 1832 , Delhi High
Court held, “from the fact that a witness has appeared as prosecution
witness in some cases, it cannot be inferred that he was a stock witness of
the police if he is the sole witness, one might feel unsafe to place implicit
reliance on his word of mouth.” Therefore, it is always desirable that police
should take such witnesses who have nothing to do with the police at all, and
about whose independence, impartially there can be no doubt at all. This,
however, does not mean that if a witness has appeared in one or two cases,
he should be disbelieved without any consideration. It was held in Joginder
Singh, 1968 Cr.L.J. 858 that a witness who has often been appearing in
police cases does not become necessarily a stock witnesses or a tool in the
hand of police. It depends upon the fact the circumstances of each case.
There are persons, who join in order to help police and trace real offender. It
will be injustice; to dub them as stock witnesses. A witnesses appearing as a
prosecution witness in 4 or 5 cases, his evidence does not carry any value.
Lambardars and Chowkidars not stock witnesses, 1965 P.L.R. 260. In Ram
Parkash, 1972 Cr.L.J. 1293, Supreme Court rejected the evidence as a stock
witness was associated in a trap case for bribe for affording corroboration to
bribe giver.
See 1956 Cr.L.J. 747 State of H.P. v. Booti Nath “The Law nowhere says
that the testimony of a police or excise officer should necessarily be
discarded unless it is corroborated by that of a non-official.”
Chagla C.J. has laid down the following principles for believing police
evidence in 1950 Born 267. Shankhar Many v. Emp.
 Where the law makes it obligatory for a search to take place in presence
of Panches and the only evidence on which the prosecution asks for a
conviction of the accused is police evidence, the Court will not ordinarily act
on that evidence.
There is second class of cases where it is impossible to seize an article or
to arrest a person in presence of Panches. Police officer may suddenly come
across a working still or they may come across a person in whose possession
there are incriminating article and they have to seize the still or they may
have to arrest a person. In cases like these it would be open to the Trial
Court to accept the police evidence and convict the accused of the Court is
satisfied that the evidence is of a satisfactory character and the guilt of the
accused is proved.
There again is a third class of cases where although the law does not
make it obligatory for a search to take place in the presence of the Panches,
still in view of the information already received there is sufficient time for
Panches to be called and a seizure to be made in presence of Panches. Here
although the law does not make it obligatory it is advisable on the part of the
police to raid a place to seize incriminating articles in presence of Panches.
If the police do not avail themselves of Panches, the result would not be
that the police evidence must be discarded and no conviction can be based
on that evidence. But the Court must very carefully scrutinize the police
evidence which would be the only evidence before it on which a conviction
could be based. If after careful scrutiny the Court is satisfied that the
evidence is such as can be safely acted upon, it would be open to the Court
to act on that evidence.
If the police officer knowingly has taken pliable witnesses as Panch
witnesses, the entire raid would become suspect and in such a case it would
not be possible to hold that the evidence of police witnesses by themselves
would be sufficient to base a conviction. Mohd Hussain Baba Miyan, 1994
Cr.L.J. 1020 (Bom.).
In Emp. v. Kisan Narayan, 1951 Bom. 186 , a Division Bench of Bombay
High Court expressed itself in the following terms:
“It would be open for the Court to convict the accused on the evidence of
police officer alone it after examining that evidence carefully the Court feels
satisfied that it is true”.
His Lordship Sankaran now C.J. upheld the conviction of an accused on
the evidence of the search officer alone where the witnesses turned hostile
and did not support the prosecution in Neelkantan Kunju Raman v. P.P.,
1960 Ker
L.T. 704. An argument that the evidence of police officers should not be
accepted without calling for corroboration was advanced in the case in Aher
Raja Khima v. State of Saurashtra, 1956 SC 217 . His Lordship Venkatramma
Ayyar J. stated;
“Pausing here, it will be seen that in discussing the question of the
recovery of the blood-stained are, as indeed throughout the judgement the
learned Session Judge has taken up an attitude of distrust towards the police
for which it is difficult to find any justification in the evidence an attitude
which regret to say is becoming a growing feature of judgement of
subordinate Magistrates.
When at the trial, it appears to the court that a police officer has in the
discharge of his duty, abused his position and acted oppressively, it is no
doubt its clear duty to express its stern disapproval of his conduct. But it is
equally his duty not to assume such conduct on the part of the Officer
gratuitously and as a matter of course, when there is, as in this case, no
reasonable basis for it in the evidence or in the circumstances.
The presumption that a person acts honestly applied as much in favour of
a police officer as of other persons and it is not a judicial approach to
distrust and suspect him without good grounds therefore. Such an attitude
could do neither credit to the Magistracy, no food to the public. It can only
run down the prestige of the Magistracy. In Chandarbhan, 1971 Cr.L.J. 197
(Punjab) Independent witness joined in a raid for recovery of working still
did not support prosecution. The conviction was based on evidence of official
witnesses, their version being consistent with the prosecution case and there
being no motive on part of official witness to implicate accused falsely.
Supreme Court in Nathu Singh, 1974 Cr.L.J. 11, held that the mere fact that
prosecution witnesses are Police Officers is not enough to discard their
evidence, in the absence of evidence of their hostility to the accused. In
Prem Datta Gautam, 1973 Cr.L.J. 1767 , Supreme Court believed the
testimony of a police constable in a murder case when there was no
possibility of his developing enmity with accused.
In an appeal against acquittal. Punjab and Haryana High Court held in
State of Punjab v. Ram Parkash, 1978 Cr.L.J. 61 , non-joining of independent
witness would be a suspicious circumstances which would require the Court
to scrutinize evidence with more caution and care but in no case by itself it
can warrant the discredit of the prosecution case. An official witness
commands same respect as any other. Moreso no discrepancy in the
statements of official witnesses. Conviction upheld, 1987 (2) Recent C.R.
692.
However official witnesses alone cannot be believed, if no independent
has been joined.
(i) In spite of their being opportunity to join them Baj Singh, 1975 C.L.R.
123 (Punjab).
(ii) In spite of not taking any witness while going on patrolling on prior
information, Hari Singh, 1974 C.L.R. 482, (Punjab) Romesh Paul,
1976 CL.R.212; secret information, raid, no independent joined. Ishar
Singh, 1985 (1) C.L.R. 262, Kehar Singh, 1985 (1) 449 R.C.R and
Dhararn Singh, 1985 (2) RCR 188.
(iii) When a Police Officer takes a stock witness intentionally. Piara
Singh, 1968 P.L.R. 156.
(iv) And when in absence of non-official evidence, the evidence of official
is discrepant, inconsistent and not reliable and smacks of hostility.
Kuldip Singh, 1977 C.L.R. 44, (Punjab); 1976 C.L.R 282 (Punjab).
State v. Hukam Singh, 1977 P.L.R 319.
(v) When independent witness resiles and evidence of official witnesses
is discrepant and a stock witness is joined. Kundan Singh, 1978
C.L.R. 50 (Punjab) (it was a case of working still).
(vi) When article stolen are recovered at the instance of accused in
pursuance of statement under section 27 Evidence Act, but no
respectable witness of the locality is called to witness the recovery, it
is illegal, 1990 Cr.L.J. (NOC) 118 Ram Kishore.
(vii) When huge quantity is recovered, the evidence of official witnesses is
to be relied upon especially when there is no earlier enmity between
the accused persons and official witnesses lnderjit 1978 P.L.R. 341.
(viii) When independent evidence was admittedly available but yet not
joined, official evidence alone rejected. Faqir Chand 1978 C.L.R (P &
H) 163. Not joined from locality though there were shops, residential
houses and traffic on road 1987 Recent C.R. 50. 1989 Cr.L.J. 127 .
(ix) When case is registered on secret information and no independent is
joined, when the witness joined appears in defence or resiles from
statement no conviction can be based on official evidence alone.
Ghunk 1984 (2) C.L.R. 218: Gajjan Singh, 1980 C.L.R 42 (P & H)
Suraj 1982 (2) C.L.R 262.
(x) Conviction on the sole testimony of official witnesses is permissible.
However, their statements must quality the test of cross examination.
Material discrepancies found in their statement renders the
 prosecution version doubtful. In Amar Singh, 1985 (2) C.L.R. 17 , the
witness had differed on various aspects of the prosecution version
namely the time it took before the petitioner was apprehended, the
mode of transport adopted by raiding party for going to spot and
coming back and in regard to the availability at “the time of
occurrence” accused was acquitted.
Also Mohan Singh, 1985 (2) C.L.R. 135.
2. The occupant of the house, which is to be searched must be
present at the time of search.
Occupant means a person residing in the house or incharge of the house.
The exclusion of the occupant is a substantial violation of the law of searches
as laid down in 41 Cal. 350 by Hon. J. Beachcroft who held that the language
of the Code no doubt is that the occupant “shall be permitted to attend
during the search and it may be argued that there is no breach of the Code
in excluding the occupant of the place if he does not demand to be present.
But the spirit of the section is that he shall be present and he is to be given
the option of being present and not that he is allowed to be present only if
he demands it. However, the ‘presence’ refers to “occupant of the place
searched or some person on his behalf” i.e. “a person residing in or being
incharge of the place” within the meaning of section 100 and not to any
person who may happen to be at the place at the time.
So, it is the bounden duty of every police officer conducting the search to
allow the occupant to be present throughout the search and show in
evidence that such an occupant was present. This can be done by showing
his presence in the memo of recovery, in the case diary and other record
prepared. It is also material to prove the conscious possession of the article
if found visible and not concealed, by the person present, even if he is in
joint possession of the house along with others. In case reported in AIR 1933
All. 449, the police had prevented the occupant of the house from entering
the house at the time of search. There was exchange of blows on this
between the occupant and the police. It was held that conviction of occupant
under section 332 I.P.C. was bad as section 100 (6) (new) Cr.P.C. clearly lays
down that “occupant” of the place searched shall be permitted to attend
during the search.” The piece of evidence will also exclude the possibility of
planting of the incriminating article inside.
3. The officer, who wants to conduct the search of the house,
should subject himself to search before he enters the house.
This is necessary to rule out plantation of incriminating article. The
occupant should satisfy himself by searching the person of the police officer
that he carries nothing objectionable on his person when he enters into the
house.
In 1952 Cr.L.J. 1154 State v. Anil Rajan Datta , it was held “it seems
strange to a degree to hold that where the members of a search party offer
their persons to be searched by the individual whose house or room is being
searched declines to search them, it can be still perverse for the jury not to
hold or at least bear in mind that in the absence of a search the article
alleged to have been found might have in reality been planted by search
party.”
So it is essential if even the occupant refuses to search there should be
independent evidence that some other respectable witness searched the
person of the officer conducting the search.
Similar view was taken in Mohd. Ali Khan, 34 Cr.L.J. 641 and Sham Lall
568. Principle involved being that “If the persons entering the house or the
buildings have not previously submitted themselves to a search of their
persons that always lends a good argument to the defence that the articles
found during the search have been actually planted by the prosecution”
especially where the articles recovered are small. 1961 (1) Cr.L.J. 828 State
v. Mohan Patra.
 The words “Hasab Zabta” are written often to connote this. The words
should, however, be clear and specific as to “Bad as delle talashi khud ”, i.e.
after getting myself searched. Entry without getting himself searched is an
irregularity and does not vitiate search. 1960 Cr.L.J. 838, N.S. Bhatt.
4. The members of the search party should always remain outside
from where they can watch the search.
Though it was held in 1927 Rang. 241 that the mere fact that witnesses
for search helped the police in making the search, it will not make the
search invalid, yet it is always essential to take more precautious. It was
held so in Sultan Khan v. State 69 Cal. W.N. 39 that in course of a search
when certain outsiders entered in a room where from certain offending
articles were alleged to have been recovered without having their persons
searched it would undoubtedly raise doubt about criminality of accused for
possession and accused would be entitled to benefit of doubt.
5. The place inside the house from where the article was recovered,
should be clearly given in the memo and the case diary and the other
record prepared under section 165 to be sent to the Magistrate. See Lal
Bahadur Keshi, 1957 Cr.L.J. 502 (ASS) . This is material from the following
view points:
(i) That the article was lying visible or concealed in particular part of
the house. This is material to show conscious possession discussed
under heading “possession”.
(ii) This will determine the accessibility of the place from outside to
show if it was possible for planting the article. The I.O. should
carefully see the outlets, ventilators these places on the particular
point of place from where it was recovered. This possibility should
be excluded in evidence. It also should be made clear it was
possible or not for someone to jump into the house and conceal a
thing. The house should be secure from all sides and the
presumption always is that a man’s house is his citadel.
6. A list of articles recovered should always be prepared and got
stopped by witness.
One copy of it should be sent to the Magistrate as required by section
165, 166 Cr.P.C. and Section 457 Cr.P.C. (43 Cr.L.J. 184, 23 Cr.L.J. 542). A
receipt regarding handing over the copy should always be obtained. The copy
of list shall be given free of cost to the occupant or person searched.
A note regarding the despatch should be made in the case diary, the daily
diary and Register No. 5 of police station.

Signature of Accused on Memo

It is always a moot point whether the recovery memo should be got signed
by the accused or not. Under Section 100(6) an occupant is to get a copy of
the recovery memo. If it is signed by him then the sanctity of the recovery is
all the more enhanced. This type of recovery memo is only hit by the fact
that it comes to a confessional statement made to the police and as such
inadmissible in evidence. See 1938 Sindh 220, 1927 Lah. 543 . The same view
was taken by Supreme Court in Narayana Rao v. State of Andh Pr., 1957 SC
737 where it was held Panchnamas signed by the accused were highly
irregular since the provisions of Evidence Act and Cr.P.C. had not been
observed. This practice of getting Panchanamas signed by accused was held
to be suspicious and objectionable in re- Narish, 1959 Andh. Pra. 313 . Avoid,
therefore, taking of signatures of accused on recovery memos. The following
cases are, however, worth noting in this respect.
1952 I.D.A. 6039 (Pepsu). An accused person is not bound by the contents
of the memo of recovery but when the question to be decided is whether it
was written at a particular time and on a particular date, the fact that it
bears the accused’s signature without any mention of date or time cannot be
lost sight of when he affixes his signature there to without giving a date and
without mentioning the time, it does not lie in his mouth to say that the date
and time given in the document were wrong.
1951 N. 237.—Held that the accused had signed the seizure memorandum
and it was improbable that he as Patel would have signed a false statement.
7. The plan of the site or the house from where the recovery took
place should always be prepared. The situation of the house from various
sides should clearly be shown. The plan would be useful at the time of giving
evidence to determine the identity of the place and also to refresh the
memory. The actual spot from where the incriminating article was recovered
should be marked explicitly.

Some Suggestions in Writing the Recovery Memo

It is correct that oral evidence can be given regarding the things seized
in the course of the search regarding the places in which they were
respectively found in spite of the fact that a written document had been
prepared in the shape of a recovery memo. Section 91 Evidence Act does not
bar this. See II Cr.L.J. 576 FB (Mad.), 1957 Cr.L.J. 688, (Raj.) Smt.
Kankanwari v. State (Para 16). Yet the care should always be taken that such
articles and places should always find mention in the list or memo as
discussed above. The recovery memo in itself is not a substantive piece of
evidence, and as such Panch witnesses must be produced to prove it. It can
be used for refreshing under section 159 Evidence Act See 34 Cr.L.J. 848 :
1941B 149.
Therefore, to avoid controversy and doubt at the later stage, the police
officer preparing the recovery memo should take special care regarding the
following items:
1. Particulars of the house or place searched must be distinctly given to
avoid substitution.
2. Particulars of its ownership and possession.
3. Particulars of occupant or occupants present.
4. Who searched the house and if after getting himself searched.
5. Persons present at the time of search.
6. Articles recovered, giving complete description with outstanding
marks, weight of articles if required, where found and under what
conditions. The appertenants of the articles if convenient should also
be taken into possession. If scaled, with sample of seal on the memo,
to be mentioned.
7. It should be signed by the witnesses and the police officer and the
persons conducting search with time and date.
8. It should be got signed by the accused literate. There is, however,
controversy about this as discussed earlier.
9. If possible, the note that copy was received by the occupant with his
signature be given in the memo.

Model of Recovery Memo

Case State v. A P.S.
F.I.R. U/S.
(Note F.I.R. only when you are aware of its No.).
If not, then give its number later with a separate pen, especially with red
ink).
In the presence of following witnesses, today..date...the house belonging
to A and in his occupation...situated in Bazar and number if any and bounded
as was searched by (I.O. in person) or Constable...(name)...after giving his
person searched from the accused (or any present) in the presence of A..or
any other occupant (give name etc.) and the following articles were
recovered and taken into possession:
 1. Clothes.......give description and place from where recovered and if
from trunk, how it was opened and if lock and key or trunk were also taken
into possession and give description with diagram of key.
and so on
Sd/Police Officer
with date and time
1. Signature of witness
2. -Do-
Note.—Copy of recovery memo made over to A and received by him.
Signature of A.

Confession or Admission in Recovery Memos

The confession if not admissible under section 27 Evidence Act leading to
discovery of fact and admission of the accused should not be incorporated in
the memo of the recovery. The admission or confession could either be a
statement under section 161 Cr.P.C. or under section 164 Cr.P.C. If it is
considered a statement under section 161 Cr.P.C. it is not admissible in
evidence. It cannot be a statement under section 164 Cr.P.C. as it is not
written by a Magistrate with due formalities. Moreover, a confession made to
police is not admissible under section 25 Evidence Act. It is therefore,
necessary than an I.O. should avoid incorporating such inadmissible
evidence in the recovery memo. See 1953 Cr.L.J. 340 (All.) Mahtuz Ali v.
State. In 1954 Cr.L.J. 288 (All.) Gonda v. State . The practice of I.O. in
writing confessions in recovery memos was deprecated, as this piece of
evidence is inadmissible and tends to prejudice the Court. It was held “It is
regrettable that investigating officer make it a practice to invariably append
such confessions and incorporate them in recovery lists.”

Use of Recovery Memos

The recovery memo is not substantive piece of evidence. The facts
narrated in it are to be proved independently by production of witnesses in
Court who will depose to these. As such the witness must be produced in
Court.
The recovery memo can, however, be used for the purpose of
corroboration under section 157 Evidence Act for purpose of contradiction
under section 145 Evidence Act; of a witness who signs the Panchanama or
memo and vouchsafes to its correctness. It can also be used for refreshing
memory of a witness under section 159 Evidence Act. It was held in 1955
Cr.L.J. 274 (Saurashtra) Kadya Knahi v. State. “A Panchnama can never be
treated as substantive evidence of the facts recorded therein. These facts
have to be proved independently of this panchnama by the testimony on oath
of the panch who had seen these facts and who was a party to be
panchanama.” The Panchanama is “useful only to corroborate or contradict
the panch witness or to refresh memory.”

Should the Recovery Memo be Prepared at the Spot Always?

The recovery memo should always be prepared at the time and place of
recovery. This will show that nothing was left out in the memory of the
officer concerned or the witness to be incorporated later. This will also avoid
the chances of mistakes having crept in, due to lapse of time and memory in
preparation of [Link], however, depends upon the circumstances of
each case. In case the memo is prepared at a different place, and sometimes
after recovery, then the burden lies on the prosecution to show as to why
this departure from general and admitted rule was made. In 1955 Saurashtra
25, it was held that Panchanama could not be rejected on the sole ground
that it was made at a distant place. In this case recovery memo was prepared
some six miles away from the place of arrest.

Effect of Irregular and Illegal Searches

 Sections 165, 166 Cr.P.C. and section 100 Cr.P.C. provide a certain
procedure for conducting search. This procedure must be complied with. If
there is departure from this procedure then it is at the risk of the Police
Officer, who will incorrects consequences. It may not affect the seizure of
articles Radha Krisnan, 1963 SC 822 . Even though a search is not made in
accordance with the requirements of section 165, it does not vitiate the
seizure and does not make the evidence of seizure inadmissible and it does
not vitiate the trial or conviction if there is no miscarriage of seizure,
inadmissible and it does not vitiate the trial or conviction if there is no
miscarriage of justice or any prejudice to the accused. 1969 Cr.L.J. 168 MS.
Feddlers. Held in 1976 Cr.L.J. 74 (FB) State v. Sant Parkash, the recovery by
itself will not be illegal and trial for offence on the basis of recovery would
in no case be affected provided no prejudice was caused to offender.
It was held in 1954 SC 907 Ronald Wood Mathaus v. State of West Bengal
that the rules of procedure should be meticulously followed and Courts
should be jealous in seeing that there is no breach of these. Similar was the
finding in case Nazir Ahmad v. King Emperor, I.L.R. 17 Lah. 692 .
It is, therefore, apparent that non-observance of the procedure results in
an illegality. If the search is illegal, then the right of private defence
accrues to the person whose premises are to be searched and an assault
made on a police officer in exercise of that right will not become penal, it is
therefore, essential that the police officer must observe all formalities and
must be legally armed with the necessary observance of these rules. It is
essential under section 165 Cr.P.C. that a police officer conducting a search
under section 165 Cr.P.C. or under section 166 Cr.P.C. should send forthwith
to the, nearest Magistrate the copies of the record which he prepares before
undertaking the [Link] police officer conducting the search in case 1926
Cal. 663 Lalmau v. Emp . did not do so. It “was held that search was illegal
and the resistance to the police officer was held to get justified”. In Emp. v.
Mohd. Shah. 1946 Lah. 456. 1965 (2) Cr.L.J. 843 Prem Chand the mandatory
provision under section 165(5) Cr.P.C. regarding the recording of reasons of
search and the sending of copies were not observed. It was held that
resistance to such a police officer was not penal. In 1944 Pat 228 Ram
Parves, the principal defects in search as follows were present:—
1. Not getting a search warrant from the Magistrate.
2. Not being Investigating Officer.
3. Not recording grounds of belief for making search.
4. Not specifying a thing to be searched.
Minor violations of the technicalities of the procedure and irregularities
which may be cured under section 465 Cr.P.C. But gross violation of the
mandatory provisions of law and illegalities which cause prejudice to the
accused and are not curable under section 465 Cr.P.C., nevertheless it may
not effect the recovery of the contraband article of the recovery is
sufficiently proved otherwise. Surender Singh AIR 1956 SC 411.
It was held in view of the above defects, that Sub-inspector was not
acting in good faith and under colour of his office as to call in the provisions
of Section 99 I.P.C. i.e. he could not claim benefit of it.
In case 1969 Cr.L.J. 515 Mithu Khan, the Inspector surrounded the house
of accused and when Inspector and Informer were to enter for search for
deopium, they were assaulted and pushed out. Inspector had not written
grounds of search for a specific thing. Held searches under section 14/15
Opium Act are to be according to section 165(1) Cr.P.C. Search was illegal
and the assault was justified. Similarly in case in 1969 Cr.L.J. 952, the policy
party went to the house of ‘H’ and without complying with the provisions of
section 165 Cr.P.C, the Sub-Inspector wanted to take search of the upper
house of ‘H’ who resisted. Sub-Inspector whipped out pistol. ‘H’ and his
companions beat him. Held assault on Sub-Inspector was justified.
 An I.O. therefore should realise that an illegality committed in conducting
search does not give right of private defence to him. He can be resisted with
impunity in case of search in violation of the provisions of law as discussed
earlier. Therefore, on obstruction to such searches will not constitute any
offence. See also in this respect 1928 All 185; 1912 Mad 353, 1943 Cal 28
and 1960 SC 210 State of Raj. v. Rehman.
In Thakur Tante 1974 Patna 493 , the accused was not held to have
committed an offence under section 323 I.P.C. even, since the search was
illegal for not observing formalities under section 165 Cr.P.C. for making a
record of reasons for search and sending its copy to the Magistrate.
Illegal search return to seized articles cannot be ordered Partap Singh,
AIR 1985 SC 989. And, Search, even if illegal does not vitiate trial AIR 1980
SC 593.
An I.O. should also realise that an illegal search makes him liable for
damages as held in Hira Lall, 1935 N. 237, 1930 Rang 49.
A permission given by the occupant to the police officer to enter the
house under circumstances will make his entry legal and an assault later will
be penal. See 52 Cr.L.J. 220 (Ajmer) Mewa Ram v. State.
The following chart will illustrate in brief whether search or entry of a
place is legal and when assault on police officer is not justified:–
Provision by law Police Officer exercising Formalities necessary
permitting search of entry such right. before such search etc. to
legalise searches.
1. Under section 47 Cr.P.C, Any Police Officer 1. Warrant of
arrest
providing for arrest, endorsed in such
escape and custody police officer’s name or
2. Police officer must be having authority
to arrest viz.
41, 42, 43, 55, 123(6), 151, 432(3)
Cr.P.C. or under any Local or Special
Laws.
2. Under section 93, 94, 95, Any Police Officer in whose Legal
warrant issued by
97 Cr.P.C. Providing for name warrant is endorsed. Court.
searches on warrants
3. Under section 153 Cr.P.C Officer-in-charge police station
Reason to believe that
for false weights. weights are false.
No warrant necessary.
4. Under section 165 and Officer-in-charge police station 1. Investigation of
166, Cr.P.C. for searches cognizable or non-
during investigation cognizable offence with permission.
2. Investigating officer. 2. Reasonable grounds for search.
3. Subordinate officer when 3. Record in writing prior
authorised by officers at to search for grounds
Nos 1. and 2. of his belief that search for a particular
thing necessary without recourse to
warrant.
4. Sending of this record to Magistrate
5. If subordinate is to be appointed for
search, reasons must be given and
copy sent to Magistrate.
This, however, does not mean that anything recovered during the
course of an irregular or illegal search cannot be proved. If such a
search results in the recovery, it is as good a piece of evidence as a recovery
in the course of a regular search. As held by Jenkin C.J. In case 37 Cal. 467
“what would be otherwise relevant does not become irrelevant because it
was discovered in the course of a search in which the provision of Cr.P.C.
were disregarded.” It may cast doubts on the bonafide of officer, Lal
Bahadur (1957 ASS 74) but it does not make the evidence inadmissible 1961
(1) Cr.L.J. 70 (FB) (Kerala) Kochan Velandhan . Search and seizure supported
by evidence can not be illegal though irregular. 1987 Cr.L.J. 284.
The effect, therefore, is that the fact that search was illegal would not
vitiate the trial and the conviction can still be based if the evidence of
recovery is reliable and proves possession by the accused. 1929 All. 937
Rure Mal v. Emp., 1956 Bom. 528 State v. Raoj . It would be going too far to
hold that only because the search is illegal, the accused must be acquitted.
“It was held in Ujagar Singh v. Emp., 1932 Oud 249 that non-recording of
reasons for suspecting the presence of articles in respect of which an
offence against the Excise Law has been committed before searching the
premises, although an irregularity, is not one that vitiates proceeding. If
court is satisfied as to finding of articles, conviction should follow. 1959
Mad. 544. In re Govindan Nair.
Section 100 Cr.P.C.–Evidence Act, Section 27–Search and Seizure by
police without associating independent witness–It is no ground to disbelieve
the police officials if in the facts of case, independent witness could not be
joined–Of course, close scrutiny of evidence is what is required–There is no
law that the evidence of police officials in regard to seizure ought to be
discarded. State NCT of Delhi v. Navjot Sandhu @ Afsan Guru, 2005 (3) Apex
Criminal 55 (SC).
Section 100 Cr.P.C.–Independent witness–Secret information received by
police at 6.20 p.m.–Accused apprehended at 7.05 p.m. in busy locality–No
independent witness joined–Police had sufficient time to join independent
witness–Prosecution version that persons who were asked but refused to
join–No description of such persons given–Inference is that public witnesses
were available but not joined–Accused acquitted. Prithvi Pal Singh @ Munna
v. State, 2001 (1) RCR (Cri.) 482.
Sections 100 and 102 Cr.P.C.–Evidence Act, Section 27–Criminal trial–
Search and seizure in disregard to provisions of Cr.P.C.–In India, the
evidence obtained under Cr. P.C.–In India, the evidence obtained under
illegal search is not completely excluded unless it has caused serious
prejudice to the accused–The discretion has always been given to the court
to decide whether such evidence is not to be accepted or not–General
provisions given in the Criminal Procedure Code are to be treated as
guidelines and if at all there is any minor violation, still the Court can accept
the evidence and the Courts have got discretionary power to either accept it
or reject it. State of M.P. Through CBI v. Paltan Mallah, AIR 2005 SC 733.
Section 102–Cr.P.C.–Police freezed bank account of petitioner in criminal
case under section 406 and 506 I.P.C. during investigation–No report given
to Magistrate and no notice was issued to petitioner–Proceedings were liable
to be quashed for mandatory provision under section 102 Cr.P.C. not
followed. Padmini v. Inspector of Police, Tirunelveli, 2008 (3) Crimes 716.
Section 102–Cr.P.C.–Investigating officer got operation of loan account of
petitioner company stopped–Question whether action under section 102
Cr.P.C. could be taken against petitioner company by freezing its loan
account though neither the company nor its directors were accused in
criminal case being investigated by police–Held–Section 102 of the Code
requires that the properties sought to be seized or frozen must be either
stolen properties or they should have been found to have some nexus with
the alleged offence which is under investigation by the concerned police
officer–There is nothing on record to show that said loan account had a
direct nexus with crime alleged to have been committed by proprietary
concern–Investigating officer could not have got account of the petitioner
freezed and rather could have directed the bank authority not to get the
term deposit encashed which was given as security for loan–Action of
freezing loan account of the petitioner could not be sustained. Agrani
Exports Pvt. Ltd. v. State of Orissa, 2009(1) Crimes 489.
Section 102–Legality of Seizure–A report under sub-section (3) of section 102 of the
code was filed by the police before the CJM, stating that the accused vessel has been
seized. Accused vessel was neither the object of the crime nor the circumstances that
creates suspicion of commission any offence. It was contended that Repubic of Italy is
agreeable to give assurance to the Apex Court that if the presence of these four marines
is required by any court or in response to any summons issued by any court or lawful
authority the Republic of Italy shall ensure the presence before the appropriate court or
such authority. High Court order maintained. M.T. Enrica Lexie v. Doramma, AIR 2012
SC 2134.
Section 102–Seizure of account–Where it was prima facie made out that some
doubtful transactions were done by the accused person, his bank account was directed
to be seized by I.O. till the completion of investigation. Teesta and Setalvad v. State of
Gujarat, 2018 Cr. L.J. 1610 SC.
Section 102–Seizure–Section 102 postulate Seizure of the property–Immovable
property cannot, in its strict sense, be seized, though documents of title etc. relating to
immovable property can be seized, taken into custody and produced. Immovable
property can be attached and also locked/sealed. It could be argued that the word
“seize” would include such action of attachment and sealing. Seizure of immovable
property in this sense and manner would in law require dispossession of the person in
occupation/possession of the immovable property, unless there are no claimants, which
would be rare. Language of section 102 Cr.P.C. does not support the interpretation that
the police officer has the power to disposses a person in occupation and take possession
of an immovable property in order to seize it. The Apex Court further said that section
102 is not, per se, an enabling provision by which the police officer acts to seize the
property to do justice and to hand over the property to a person whom the police officer
feels is the rightful and true owner. This is clear from the objective behind section 102
Cr.P.C. use of the words in the section and scope and ambit of the power conferred on
the criminal court vide section 451 to 459 Cr.P.C. The police officer is an investigator
and not an adjudicator or a decision maker. The expression “circumstances which
create suspicion of the commission of any offence” in section 102 does not refer to a
firm opinion or an adjudication/finding by a police officer to ascertain whether or not
“any property” is required to be seized. The word “suspicion” is a weaker and broader
expression than “reasonable belief” or satisfaction. Nevada Properties Pvt. Ltd. through
its Directiors v. State of Maharashtra, AIR 2019 SC 1066.

Search and Seizure under Local & Special Laws

Above discussion relates to searches and seizure under general law and
the procedure for search of a person or place is the same under Local &
Special Laws if any other particular procedure is not prescribed under those
Acts. Held in 1987 (I) Recent C.R. 578 Karam Singh v. State –Special
enactment creating offences. Procedure prescribed in Cr.P.C. for
investigation, enquiry trial may be followed if special law does not prescribe
any procedure for dealing with offences. However, search and seizure by
police, in presence of Inspector of Drugs (Officer authorised) is not illegal.
1988 Cr.L.J. 292, 1963 SC 665.
If any local or special law prescribes procedure for search and seizure,
then its provisions must be meticulously complied with. Only specific officers
of specific departments are given such powers and also in particular places
and at particular hours of the day or night.
For example under Narcotic Drugs and Psychotropic Substances Act, 1985
only authorised police officer or other officers of other departments are
given powers under section 42 to 44. So, recoveries and searches by those
unauthorised so would be illegal. In Karam Singh v. State of Punjab, 1987
Recent C.R. 598, this point arose. Recovery of opium was by police party
headed by one HC and three constables. These officers were not given power
of search and seizure by Govt. under the Narcotic Drugs Act. Conviction set
aside–Held that though offences under this Act are cognizable yet only
authorised police officers have been given power of search, etc.
In 1990 Cr.L.J. 304 Om Wati , opium was recovered from house search. It
was alleged that some provisions of section 165 Cr.P.C. were not complied
with though these are mandatory in nature. Held recovery effected could not
become invalid. Seizure of the articles is not vitiated 1963 SC 822. Case of
Dr. Partap Singh, (1985) 4 SCC 72 ; it was held assuming that it is obligatory
upon the officer proceeding to take the search or directing a search to
record in writing the grounds of his belief and also to specify the thing for
which search is to be made, is mandatory and that non-recording of reasons
would result in the search being condemned as illegal, there would be no
consequences on the seizure of documents.
In 1989 Cr.L.J. 430, Abdul Satar , case under narcotic search W as without
complying with provisions under section 41(1), 41(2) Narcotic Drugs and
Psychotropic Substances Act, 1985 (by not following procedure). Seizure was
not proved and conviction held to be proper.
Accused when stopped on a road (Public place), the procedure for search
and seizure stands controlled by section 43 of the act, not by section 42.
Reason for belief is not required to be made in writing. Rashid, 1991 Cr.L.J
733.
The provisions of section 42 are not applicable when the search of the
accused person is made in public place– Ram Khilawan, 1990 Cr.L.J 2175
(Del); Surajmal 1991 Cr.L.J. 1483 (Guj.).
The Bombay High Court in State v. Rajoji Kalogi Kadami, 1956 Bombay
528 observed. “From the bare circumstances that search is illegal, it does
not follow that the case against the accused had not been proved. However,
much the Court may like to discourage over enthusiastic citizens from
carrying out illegal searches, when the matter is before it, the Court must
scrutinize the evidence and find out whether the offence is proved or not. In
dealing with evidence of a search which is illegal, the Court would have to
examine the evidence very carefully estimate the possibility that the search
may have been the result of private malice and then decide whether the
search and the evidence relating to discovery of incriminating material has
been proved beyond a reasonable doubt.”
See Sunder Singh v. State of U.P., 1956 S.C. 411 , assuming that the
witnesses who actually witnessed the search were not respectable
inhabitants of the locality, that circumstances would not invalidate the
search. It would affect only the weight of the evidence in support of the
search and the recovery. Hence, at the highest the irregularity in the search
and the recovery, in so far as the terms of section 103 (now section 100) had
not been fully complied with, would not affect the legality of the
proceedings.
The following rulings will make this point more clear:
1. Pyli Yaccob 1953 T.C. 446. In this case there was non-compliance of
section 165(5) Cr.P.C. It was held “Once it is found that the evidence
of the recovery of the articles in a search conducted under section 165
Cr.P.C. is reliable, the fact that the search was illegal would not
vitiate the trial or prevent a conviction being made.”
2. 11 Punjab Record Cr.P.C. 1906 Crown v. Nabu . It is no defence to
charge under Opium Act that discovery of incriminating opium was
made as a result of an illegal search.
3. Salai Naik 34 Mad. 349 (FB). In this case, a police officer had
conducted search beyond his station limits. This irregularity was not
considered a hitch in conviction.
4. 35 All. 358 Emp. v. Allahbabad Khan . In this case, an Additional
Session Judge had acquitted a person found to be in possession of
excisable articles on the ground that search was illegal. The Provision
 Bench of Allahabad High Court set aside the acquittal stating that
whether search was legal or not, there was evidence in the case that
accused had kept the cocaine in the house.
5. Where there is reasonable explanation why witnesses at sight were not
employed viz., an account of ignorance illiterate people, partisan
witnesses would not stick to truth but are likely to be tampered with
and would resile and turn hostile, etc., search with the aid of other
witnesses from more distant places was held not to be illegal and
conviction tenable, 1932 All. 449 1932 Pat. 666.
6. 1956 Cr.L.J. 621 (My.) Govind Sethi v. State. Search under defective
warrant under section 38 of Mysore Police Act (not issued to a
particular police officer, no seal of issuing authority) conviction can
still be based.
7. 1957 Cr.L.J. 769 : 1957 Orissa 190 Pagla Baba v. State . Police entered
Math for arrest and recovery of weapons without allegation in case
diaries that weapons were concerned in the case, through breaking
back door when main gate open, when they did not give any personal
search. Held that entry was illegal, assault justified.
8. 1960, Supreme Court 210 State of Rajasthan v. Rehman . The accused’s
acquittal under section 353 I.P.C. for assault on Deputy Suprintendent
of Central Excise at the time of effecting search of his premises under
section 18 Sales Tax was upheld. It was held that accused did not
commit any offence in obstructing or assaulting as search was made
without recording reasons as he should under section 165 Cr.P.C.
since “The recording of reasons was an important step in the matter of
search and to ignore it, is to ignore the material part of the provisions
governing searches.”

Search of a Person
If an article is found on the person of an accused, it is very strong piece
of conscious possession of that article by the accused. Under such
circumstances, he is liable for everything which he has on his person. The
recovery of the article on the person of the accused is made by search of the
said person.
The provision in the Cr.P.C. regarding the search of a person is contained
in section 51 Cr.P.C. which runs as follows:—
Section 51(1)–“Whenever a person is arrested by a police officer under a
warrant which does not provide for the taking of bail, or under a warrant
which provides for the taking of bail but the persons arrested cannot furnish
bail and whenever a person is arrested without a warrant or by a private
person under a warrant and cannot be legally admitted to bail or is unable to
furnish bail, the officer making the arrest or when the arrest is made by a
private person, the Police Officer to whom he makes over the person
arrested, may search such person and place in safe custody all articles,
other than necessary wearing apparel, found upon him and where any article
is seized from the arrested person a receipt showing the article taken in
possession by the police officer shall be given to such person,
(2) Whenever it is necessary to cause a female to be searched, the search
shall be made by another female with strict regard to decency.”
See also section 100(3) Cr.P.C. During the search of a place, if any person
in or about such place is reasonably suspected of concealing about his
person any article for which search should be made, such person may be
searched, women to be searched by another woman. A copy of search memo
must be given to him in such cases.
Under the provisions of section 52 Cr.P.C. The officer making an arrest is
to take from the person arrested from any offensive weapons which he has
about his person.
 There is also another provision in the code section 102 Cr.P.C. which
admits the right of any police officer to seize property “alleged or suspected
to have been stolen or found under circumstances which create suspicion of
the commission of any offence.”
Even if the officer is not authorised to search the person of an accused,
the seizure from him is not vitiated. Radha Krishan 19, 3 SC 822 followed
1972 Cr.L.J. 406 Abdul Rehman.
See also Punjab Police Rules 26.3 regarding the search of the person.
The person to be searched may be first arrested. 1942 All. 424 Ramar Rai
v. section 41 Cr.P.C. is wide enough to allow the police officer to arrest one
if there is reasonable suspicion against the said person of his having been
concerned in a cognizable case. Section 41(2) Cr.P.C. and section 151
Cr.P.C. also warrant arrest under certain circumstances discussed under the
heading “Preventive Measures.”
The person of the accused should be searched after due formalities i.e.
after getting oneself searched to exclude the possibility of planting. In
Tikkam Dass, 1973 C.L.R, 29 held that it was incumbent upon the officer
conducting the search to offer himself to be searched by the accused. In
Sushil Kumar, 1974 C.L.R. 193 , it was laid down that in order to inspire
confidence, the police officer must offer himself to be searched, failure to
take this precaution attaches an infirmity to the testimony of such officer.
Kapil Singh A.I.R. 1969 SC 53 . The general apathy of urban people in
assisting police in search and investigation was also highlighted in a
Supreme Court case–Appabhai AIR 1988 SC 696 . But if the volume of the
article to be recovered is such that it can not be concealed by a police
officer on his person, then as held in State of Haryana v. Ram Niwas, 1975
P.L.R. 343, it was not necessary for Police Officer to offer himself for search
to the accused. If article of such a nature that it can be concealed by a
police officer then it is necessary to give his search before recovery to avoid
possibility of planting. The search as far as possible should be conducted in
the presence of two or more respectables. Greater emphasis is laid on
fairness of the search and with that end in end view, presence of
independent and respectable witnesses has been made necessary. But
Supreme Court has under certain circumstances liberalised the rule in State
of Maharashtra v. P.K. Pathan and M.M. Waity, 1980 Cr.L.J. 923 SC.
(i) If top secrecy is to be maintained lest the recovery may not be
abortive by reason of any leakage of information, and;
(ii) If recovery is to be made on a lonely place which may not have
habitation, then the condition of two dependent persons of the
locality may be dispense with, and that
(iii) The witness already carried along may be relied upon if he is
otherwise a competent witness.
If none is available, police officer can himself make the search, section
100(4) Cr.P.C. only applies when search is made of a place. It does not apply
to the search of a person. 1956 SC. 411 Sunder Singh v. State of U.P., 1963
(1) Cr.L.J. 342 (All.) Parmeshwar Singh. In 1954 Cr.L.J. 188 (All.) Dwarka v.
State it was held that it was not necessary to conduct search in the presence
of witnesses. It was further held “the testimony of police officials should be
treated in the same manner as the testimony without corroboration by
independent witnesses is unworthy of belief cannot be supported. There is no
presumption that police officials are liar.” Held in 1944 Lah. 336 relying up
1934 Lah. 870 (D.B) that the evidence of police officers and Lambardars as
part of investigating machinery cannot be discarded merely because of their
position. Their evidence should be tested exactly in the same way as
evidence of other persons. 1962. (2) Cr.L.J. 829 (Mysore) Ratna Kumar.
Similarly, in AIR 1934 All. 873, it was held that search on public road
away from town in the absence of search witnesses from the immediate
vicinity was unnatural. See also criminal appeal No. 132 of 1953 (Punjab
High Court) Supra. See also 1957 Cr.L.J. 247 (Raj.) Bhanu Lall v. State . The
evidence of police employee cannot be brushed aside for the simple reason
that they were police employees.
Mr. Justice K. Sahai of Patna High Court in 1960 Cr.L.J. 1650 State v.
Dhanpat Chmera has further laid down a rule of guidance where police
officer’s evidence should carry weight saying, “though section 51 governs a
case of personal search and no search witnesses are legally necessary, if
there is search, the entire evidence relating to search cannot be discarded if
he is found to be unreliable. If a search witness is found to be unreliable, his
evidence can be ignored, and the evidence of police officer concerned may
be looked into. The prosecution case relating to the search can only be
discarded if the evidence of these witnesses is also found to be unreliable.”
In case Ramesh Paul v. State, 1967 Current Law Journal 212 (Punjab and
Haryana), the accused was arrested while carrying opium. There was only
evidence of Excise Officials and police officer. It was admitted that
information was that opium was to come a day earlier. There was thus,
“ample time with officials to join independent witnesses with them which
they had without any sufficient reasons failed to do.” It was held “it is true
that official witnesses are not to be disbelieved simply because they happen
to be officials but it depend upon the facts of each case. The law is well set
that while going for such raids and recoveries at least two respectable non-
officials are to be joined with the party. As stated above although there was
sufficient time for the excise officials to join in respectable non-officials
witnesses with them but for one reason or the other they did not do so.” The
benefit of doubt was given to accused.
In case no independent witness is honed at the time of seizure of
incriminating article from the person of accused, the fact alone would not
make the recovery suspicious or unreliable. It would be, however, a
circumstance to scrutinise the evidence more carefully. Held so in an appeal
against acquittal State v. Ram Parkash by Punjab High Court in 1977 P.L.R.
571: 1978 Cr.L.J. 602. Official designation of a witness is ipso facto not
sufficient to discard his evidence. No independent joined despite prior
information. Conviction upheld, 1979 C.L.R. (Pb). 1, State v. Bhaider.
The possession of an incriminating article on the person of an accused is
presumed to be conscious and intelligent. It implies knowledge on his part.
In 1953 Cr. L.J. 91 (Saurashtra) State v. Lohana Puramall , the accused was
found carrying tin on his head which was found to contain bhang. The
accused stated that he was working as a coolie and someone had hired him
to take the tin to the railway station and that he was not aware of its
content. It was held ‘that in view of the facts of the case, the mere carrying
on of the tin would not constitute possession of the offending article. It was
for the prosecution to show that the accused was conscious that it contained
‘bhang’ and it was when that accused could be in possession of the offending
article”. In this case accused was aged about 11 or 13 years engaging
himself in stray labour. (See admissions). See Police Evidence.

Special Provisions of search under Special Acts

Above have been discussed general provisions of search of person as
contained in Sections 50,52 and 55 of the Code which apply to all searches
made in so far as they are not inconsistent with the provisions under any
Act. If the procedure for arrest, search, enquiry has been specified under
any local and special law, then that procedure has to be meticulously
applied. So, is also warranted under section 4(2) of the Code. For example,
the search, arrest, enquiry and prosecution under Narcotic Drugs and
Psychotropic Substances Act, though offences are cognizable, only
authorised police officers have been invested with such powers. Therefore,
any search of a person, etc. for possession of narcotics if in contravention of
the Act will be illegal and against Chapter V of this Act. The conviction of
accused for recovery by head constable who was not authorised so was set
aside in Karam Singh, 1988 Cr.L.J. 1181 (Punjab High Court) . The procedure
prescribed and enacted under Chapter V of Narcotic and Psychotropic
Substances Act, 1985 has precedence over Cr.P.C.–And its non compliances
is fatal. See 1989 Cr.L.J. 412 (HP).
Non-joining of public witnesses during search is not fatal as to invalidate
the scarch-Sunil Kumar, 1990 Cr.L.J. 414 . Police Officials contradicting each
other on material point-held, heavy recovery notwithstanding accused is to
be acquitted. Dinesh 1993 Cr.L.J. 898 Del.
Is search under section 165 Cr.P.C. or on the basis of search warrant
issued by Court against the Constitution of India?
The answer is No. This question was examined in detail 1954 S.C. 300
M.P. Sharma v. Satish Chandra . It was argued that searches to obtain
documents for investigation into an offence is a compulsory procurement of
incriminatory evidence from the accused himself and is therefore hit by
Article 20 (3) Constitution of India. It was further argued that this violated
fundamental right by Article 19(1)(f). It was held by their Lordships that
having regard to the historical background regarding the Indian Criminal
Procedure Law regarding the searches, interposition of the Judicial functions
while ordering searches and the person to whom the orders regarding
searches are made, such searches were not tantamount to testimonial
compulsion to the accused persons and for that reason there was no invasion
of any fundamental right guaranteed by Article 20 (3).
It was, however, held that summon or notice issued under section 94 (now
section 91) Cr.P.C. to the accused to produce certain document which could
incriminate him was in violation of Article 20 (3) being a testimonial act by
him. See Kaluoghad’s case 1961 SC 1808.

Notice under section 91 Cr.P.C. if valid

Section 91 Cr.P.C. authorises a Magistrate or a police officer for the
purpose of investigation, inquiry or other proceeding to call upon any person
in whose possession or power a document or thing is believed to be, to direct
him to attend and produce the document. It, however, does not apply to an
accused person as held in 1965 SC 1251 State of Gujarat v. Shyam Lal
Mohan Lall. No order under section 91 Cr.P.C. therefore, can be directed to
be an accused person under trial for production of document under section
91 Cr.P.C. It can be given to other persons. It is violative Article 20 (3)
Constitution of India as held in 1979 C.L.R. (Pb.) 13 Tirath Ram, 1988 Cr.L.J.
274. Court cannot direct to covert the thing in a different form from that in
which it was in his possession e.g. to convert cash in to a draft and produce
it 1988 Cr.L.J. 287.
The only remedy would thus be to search for the document under section
165 Cr.P.C. by a police officer and; if by Court then general search or
inspection can be ordered. See also Mohammad Hussain, 1957 MB. 68 ; in
case the document, etc. is required from accused, a general search warrant
can be issued under section 93 Cr.P.C. in such circumstances 1973 Cr.L.J.
Ram Rakha.
General search is thus permissible for recovery of documents; even
incriminating or other articles in possession of accused. The general search
warrant can be issued by Court under section 93 (I) Cr.P.C. when it has
reason to believe that a person to whom a summons or order under section
91 or requisition under sub-section (1) of section 92 has been or might be
addressed, will not produce the document or thing as required by such
summon or requisition.
The general search can thus be effected on the basis of the warrant of the
premises even in possession of the accused and document found therein can
be seized irrespective of the fact that the documents may contain some
statements made by accused upon his personal knowledge and which when
proved may have the tendency to incriminate him. It will not amount to
compelled testimony and will not be violative of Articles 20 (3).
See V.S. Kuttan Pillai, 1980 Cr.L.J. 196 (SC).
Section 91 Cr.P.C.–A court as also a police officer has power under
section 91 Cr.P.C. to order any person to produce a document or other thing
in his possession for the purpose of any inquiry or trial. People's Union for
Civil Liberties v. Union of India, AIR 2004 SC 456.
Sections 91, 161 and 162 Cr.P.C.–Evidence Act section 165–Trial of
offence statements of witness recorded by police in another case under
section 161 Cr.P.C. Whether can be used for purpose of contradicting the
statement made by them in a subsequent trail–(Yes)–Court has power under
section 91 Cr.P.C. to summon the statement made before the police in
another case, if the Court trying the case considers that production of such
statement is necessary and desirable for the purpose of trial–Even otherwise
judge has wide power under section 165 of Evidence Act to ask any question
he pleases in any form, at anytime, of any witness, or of the parties, about
any fact relevant or irrelevant, in order to discover or to obtain proper proof
of relevant facts. R. Lakshmi Narayanan v. Inspector of Police 2006 (1) RCR
(Cri.) 188.
Sections 91, 228 and 229–Section 91 Cr. P.C. is not available to accused
to seek production of documents at the stage of framing of charge. State of
Orissa v. Debendra Nath Padhi, AIR 2005 SC 359.
Section 91–In the instant case, High Court allowed the accused to produce
document in question. It was held that the accused cannot be granted to produce any
document at the stage of framing charge to prove his innocence. High Court order was
regarded as illegal and set aside. Nitya Dharmanand v. Sri Gopal Sheelam Reddy, 2018
Cr. L.J. 905.

Search for Letters and Telegrams

If any document, parcel or thing, or a telegram, etc., is required during
investigation and is in the custody of a postal or telegraph authority, then
the police officer is to apply to D.M. or C.J.M. who may require the postal or
telegraph authority to deliver such an article or document to him as required
by Section 92 Cr.P.C.
Pending such order, the District Superintendent of Police can require the postal
authorities to make a search for such article or document and to detain it. [Section 92
(2) Cr.P.C.]
It is only D.M. or C.J.M. who can issue warrant of search under section 93
Cr.P.C. for a parcel document or other thing in possession of Postal or
Telegraph authority.


Chapter–16
Production
Production of property by accused is admissible under section 8 Evidence
Act as conduct. The relevant portion of section 8 reads, “The conduct of any
party, or of any agent to any party, to any suit or proceeding, in reference to
such suit or proceeding, or in reference to any fact in issue therein or
relevant thereto, and the conduct of any person an offence against whom is
the subject of any proceeding, is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact, and whether it was previous
or subsequent thereto.” The word ‘proceedings’ includes criminal
proceedings and the word ‘party’ includes the accused.
 Mere production of property before police is not hit by section 25
Evidence Act, being not itself a confession. Udai Bhan v. State of U.P., 1961
SC 1116. It is not hit by section 162 Cr.P.C. either, since physical act of
production by accused does not amount to statement, even if the production
is during the course of investigation.
The production of property, if it is not in consequence of statement under
section 27 Evidence Act, is always accompanied by a statement by the
accused explaining production or is result of a query of police officer or
other persons. The accused, when prosecuted may depend upon certain oral
statement made by him at the time of production of property to show that his
defence was not an after thought. The nature of production of an
incriminating article is always or on the basis of some bait by the police
officer. So initial weakness in this type of recovery is always there.
The statements of the accused at the time of production can be divided in
two parts. It may be at the time of production before the investigation had
been started as very often a F.I.R. is registered after production of an
article. In such case section 162 Cr.P.C. does not apply to make bare
statements of accused inadmissible. If the statement is of the nature of a
confession, then and then only it will become inadmissible as section 25
Evidence Act bars it. In such cases, there is no discovery because production
is not subsequent to the statement, therefore, the confessional statements is
not covered by section 27 Evidence Act. As such barring confessional
statements all statements of the accused would be admissible in evidence.
If, however, the statement of the accused is during the investigation of a
case at the time of production, then section 162 Cr.P.C. hits it and such
statement becomes strictly inadmissible in evidence although it explains the
production of property. The difference of opinion between different courts if
the words in section 162 Cr.P.C. “Statement made by any person” includes
that of the accused or not has been set at rest by the decision of their
lordships of the Privy Council in 18 Pat. 234 wherein it was held that ‘any
person’ covers the statements of the accused. Therefore, all statements of
accused recorded during investigation are barred as inadmissible under
section 162 Cr.P.C. The confessional statements of accused are also not
tenable and admissible in evidence being hit by sections 24 to 26 Evidence
Act. The general exception of confessional statement leading to discovery
under section 27 Evidence Act, is alone there which will be discussed later.
The aspect of the case was discussed in Revokaligara Vengtappa, 1952
Cr.L.J. 1150 (Mad.) in detail. In this case the accused had produced a bottle
of arsenic with the statement that “the other accused had taken it from the
right pocket of his trousers and asked to keep it in safe custody,” showing
thereby that he did not know the contents of the bottle. This statement was
in favour of the accused, but their Lordships held. “This is a statement made
by an accused person to the police during investigation, and is strictly and
unfortunately inadmissible in evidence, although it explains the production
of property.” Further this statement by A2 when she produced M. D. 4 is of
course not in confession and can in no sense be admissible as information
leading to discovery under section 27 Evidence Act. Further “For instance if
an accused person produces an incriminating item of property connected
with the case explaining how he got it and exculpates himself, there is no
legal way of that statement being used in favour of an accused even by a
defending advocate.” See also 1953 Cr.L.J. 424. In re Molagan (Mad.),
wherein the same view relying upon 55 Mad. 903 (F.B) was taken. But it was
further held that it is the duty of court under section 165 Evidence Act to
bring it on record if it thinks that answer would benefit the accused in his
defence.
For further discussion see Chapter, “Statements before police”. There are
also rulings that section 162 Cr.P.C. did not prohibit the admission of
statements made by accused to police provided they were not confession and
were exculpatory, 5 Pat. 63.
 It may also be pointed out that there is no home in give of bail to the
accused to produce the article. The police officer can induce the accused to
produce any incriminating article and can offer promises to that end. For
this it is sufficient to quote case Misri v. Emperor 31 All. 592 F.B . In this
case, the accused, a woman, had taken the police to a particular place and
pointed out and produced certain ornaments which belonged to the deceased
and were worn by her at the time of her death. It was found by the court that
police officer had made promise to the accused prior to her pointing out the
ornaments to the effect that if she produced the ornaments of the deceased,
she would be let off. It was held that this conduct of the accused was
admissible under section 8 Evidence Act as discovery was genuine in spite of
bail offered by police.
Similarly, in 1952 Cr.L.J. 986 (V.P.) Kartar Singh v. State of U.P. it was
held that, “the persuasions or bait held out to the accused are not always
illegal as there is nothing to warrant that these should not be given. There
may be cases in which this method of catching offenders is the most
expedient one but when the accused himself brought the properties to the
thana, we should have good evidence for holding that they were stolen
properties and not his own property which the accused was bringing to the
police so as to earn their goodwill.”
So, in order to effect recovery of articles, to prompt the accused to
produce these articles is not bad. The thief can be caught in any way and
there is no provision under any law to show that such a recourse to such a
method is illegal.
In spite of the fact that production, on the fact of it appears to be a good
type of recovery, yet this sort of evidence does not fully make out a case of
conscious possession. The trend of the rulings of different High Courts is
that it, at the most, shows knowledge. Secondly, several defences are open
to the accused to show that he got it from somewhere or someone else had
placed it or he may be a bonafide purchaser of a thing. The following cases
will show the weakness of this type of the recovery.
In Hatu v. Crown 1943 L. 4, it was held that mere production of
incriminating articles will not make the accused liable. It rather shows his
clear conscience.
In 1954 B. 292, 1930 B 235, it was held that in the absence of any
incriminating statement made by the accused leading to discovery of
property, its production alone from another man’s property would not
establish his possession.
In 48 Cr.L.J. 390 (Lahore), production of the gun was from the house in
joint possession of the accused, his father and others. Justice Teja Singh
held that no offence under section 19F Arms Act was made out against the
accused.
In 1945 Cr.L.J. 903 Mysore in which 48 Cr.L.J. 533 (PC.) was followed, it
was held that production of an instrument by one of the accused from a hut
which was easily accessible and where accused along with the other accused
lived and the instrument was of an ordinary type, was not by itself sufficient
to incriminate him, though, it might raise suspicion. It only implied that he
was aware of the instrument being kept or left in the hut. In Sadashivdas
1958 Cr.L.J. 530 (Orissa) mere production of C notes without any distinctive
marks was held to be insufficient for conviction.
In State of Hyderabad v. Annantha Reddy, 1953 Cr.L.J. 746 (Hyd). The
accused had produced axes from their respective houses on the enquiry of
the Sub-Inspector, it was held. “If the accused produces certain articles, as a
result of enquiry by a police Sub-Inspector the recovery itself is
inadmissible.”
In a case of production of articles by the accused himself section 165
Cr.P.C. does not apply. There would be no necessity either to call the
witnesses of locality under section 100(4) Cr.P.C. In short the provisions
regarding searches do not apply to case of production. See Malak Khan v.
State, 1946 P.C. 16. Care should however be taken to take some respectable
and it would always be better if these persons belong to locality for reasons
of prudence.
From the above discussion it is fairly made out that mere production of
the property does not carry much evidentiary value to bring home the guilt
to the accused. It may be useful where it is from a house which is in
exclusive possession of the accused as none else is to interfere with its
possession. The matter under such circumstances does not present difficulty
but in that case too the prosecution will have to establish by direct evidence
or by circumstantial evidence that the article found its way there with the
requisite knowledge or intention on the part of the accused.
The production may also be of help if it is preceded or succeeded by some
extra judicial confession by the accused before some persons other than
police. For example, the accused confesses before a respectable and then
produces a thing. This will show his conscious possession. To merely show
that acused was interrogated by police, he then went and brought the
incriminating article and produced it before the police officer, is contrary to
the theory of conscious possession plus animus to warrant conviction. This
leaves a serious type of lacuna which more conveniently can be filed by the
accused in his favour rather than for help of the prosecution case by showing
that he had knowledge of its being present at some place. A police officer
thus should be more careful and prudent enough to overcome this aspect of
the law by careful handling of the case.

Production at the Pointing out of the Accused

When accused person leads to the recovery of an object from a place and
which object is found buried and concealed, it should be presumed that he
was in possession of it or he concealed it there. But without a statement
under section 27 Evidence Act as to authorship of concealment certain other
difficulties crop up. Mere discovery without a statement may only raise a
grave suspicion against the accused but will not be sufficient to support,
conviction. 1936 Mad. 426. As held in 1978 C.L.R. 44 (HP.) [Link] Kumar ,
mere place of concealment is not sufficient for conviction unless the accused
is proved to be author of such concealment. If the place where recovery is
effected at the pointing out of the accused is in exclusive possession of the
accused, then it shows that accused was in possession of the property which
was lying concealed. If the place was accessible to other point out of place
would merely show knowledge of the accused of the place where the
property was kept concealed unless he makes a statement in consequence of
which property was discovered. 1954 Cr.L.J. 801 (Kutch),Koli Mala Bijal,
1957 Cr.L.J. 907 (Raj.) State v. Indraj . If the place is in joint possession with
others then mere pointing out the place of concealment will not be sufficient
to raise presumption of possession. Gopinath Naik v. State, 1957 Cr.L.J.
1930 Lali. of Sohan Singh v. Emp. I.L.R. (1946) 2 Cil 1619, 1952 Rang 20 .
The above is the essence of the law regarding this type of recovery. So it is
apparent that it is always better and advisable to find out if there was any
statement of the accused under section 27 Evidence Act leading to the
recovery of an article.
In Naveen Chauhan@ Chussi v. State, 2011(1) Crimes 529 (Del.) –Recovery
of blood stained clothes of accused in murder case–The case of prosecution
is that the blood stained clothes of Ram Nandan were kept in a polythene
bag which was lying at a place near a drain. It has come in the evidence that
water was flowing in drain at that time–Court find it difficult to accept that
Ram Nandan despite having an opportunity to either wash the bloodstained
clothes or to just throw them in the water flowing in the drain would have
kept them near the drain in a polythene bag. This is not the way of human
mind functions.
 On this fundamental principle of law, the following recent rulings of the
High Courts and Supreme Court are worth reading:
In some rulings of the High Courts, it had been held that when an accused
person points out place and gets a thing recovered, the presumption is that
he had concealed it himself or he saw somebody else concealing or it was in
his knowledge. The onus in such cases under section 106 Evidence Act would
shift to the accused who will have to explain how he got knowledge. In case
he fails then presumption that he must have kept these would be against
him. This was the view in 1945 Lahore 27 Sher Mohd. v. Emp.
But it should now be considered as no longer tenable by the
pronouncement of Supreme Court ruling in 1954 Cr.L.J. 334 Trimbak v. State
of Madhya Pradesh. In this case a dacoity was committed in the house of
Mamdew Moti Ram on the night of 11-12-1950. Later some stolen property
was recovered from a field not in the possession of accused at his pointing
out, but belonging to one Namdeo Ananda. The learned Magistrate acquitted
the accused on the ground that recovery was from an accessible field not in
possession of accused and as such was not sufficient to bring the guilt home
to the accused. The State Government filed an appeal against this order. The
appeal was accepted by Nagpur High Court and the accused was convicted
under section 411 I.P.C. The learned Judge of the High Court took the view
that the ornaments belonging to the complainant were taken out, by the
respondent from the field of Namdeo Anand and that the respondent
(accused) having given no explanation regarding his knowledge of the place
from which the ornaments were taken out it must be presumed that he must
have kept the ornaments there. It was further held by the Hon’ble Judge that
the field did not belong to the respondent and that the place was accessible
to others would not show that the ornaments were into in his possession, but
were kept by someone else, in the absence of a statement from the
respondent explaining the circumstances under which he came to know
about the ornaments.
Held by Supreme Court, “when the field which the ornaments were
recovered was an open one and accessible to all and sundry, it is difficult to
hold positively that the accused was in possession of these articles. The fact
of the recovery by the accused is compatible with the circumstance of
somebody else having placed the articles there and of the accused somehow
acquiring knowledge about their whereabouts and that being so, the fact of
discovery cannot be regarded as conclusive proof that accused was in
possession of these articles.” See also 1966 Cr.L.J. 204 (All.) Ram Prasad
and others.
In 1953 Cr.L.J. 1297 (All.) Hori Lal v. State , theft by house breaking was
committed in the house of Hori Lal on the night between 18/19-9-1949. On
29-9-1949, Pannu, an accused person took the station officer to his field and
there he dug out a silver Chhabail Churi which was one of the articles stolen
from the house of Hori Lal. The learned trying Magistrate convicted Pannu
but the learned Sessions Judge acquitted him relying on AIR 1943 Lahore 4
and held that no presumption of offence under section 411 I.P.C. arose
against Pannu under illustration (a) of section 114 Evidence Act. This view of
the learned Sessions Judge was held to be erroneous by Hon’ble Justice Bind
Bisni Parshad who followed 17 All. 576; 1943 Oudh 298 and allowed the
revision and order of acquittal was set aside. Hon’ble Judge quoted the
words of their Lordships Ede.C.J. and Bannerji J. as follows (in 17 All 576-
1895 All. W.N. 226).
“The mere fact that a person points out a place where stolen property is
concealed if that place is not his own field, but is the field of another, is not
sufficient, in our opinion to entitle the court to find that person who pointed
out the stolen article had received it or retained it knowing it to be stolen.
There must be something to support a conviction in such a case, be some
evidence to suggest that accused himself concealed the article in the place
in which it was found it is not sufficient for a conviction that the accused
pointed out the stolen article, if it is felt doubtful whether the accused or
other person concealed the stolen article, or that the accused obtained in
some other way information that stolen property was in the place where it
was found.”
Without going into details as there are many rulings on these points it
suffices to quote above two rulings to show the basic principles involved in
such cases. The Investigation Officer under the circumstances has to show
much more than merely to provide recovery was at the pointing out of
accused. If the place does not belong to accused and is not in his possession,
then it loses much of its value. In that case I.O., will have to show that
accused had concealed it and none else. This is however, very difficult to
show if there is no statement under section 27. Evidence Act leading to
discovery. If the place in possession of the accused is a house or is a field,
then it can be presumed that he continues in possession of article. The
knowledge plus possession are combined to bring guilt home to the accused,
in this connection, also see 1950 M.B. 104 where it was held that for
possessing a material object, two elements are necessary, animus or
intention and corpus. A person is said to be in possession of thing when the
facts of a case are such as to create a reasonable expectation that he will not
be interfered with the use of it. Thus, the person who hides a thing is in
possession of it because he gives thereby a reasonable guarantee of the use
of it.
In cases of pointing out and recovery from hidden place, prove:
1. Accused had detained knowledge of place.
2. This tallied with the actual finding out of place.
3. The accused got straight to the place with ease.
4. The accused did not reveal the source of information as to how he
knew the place if he had not secreted it and seen some body else
concealing.
5. The accused did not talk about this fact to anyone which he must have
if he had seen somebody else secreting.
6. The accused did not inform respectables about such suspicious
conduct of another man if seen concealing.
7. That accused pointed out different places and got the different articles
recovered from there. 1958 Cr.L.J. 1042(Mad.) See (ln re Kimkku).
8. That the article was hidden under the ground.
9. That it was pointed out soon after the theft. See 1969 Cr.L.J. Kacharji
Hariji.



Chapter–17
Section 27 Evidence Act
As discussed earlier, every confessional statement before police, which
leads to the discovery of an article is admissible under section 27 Evidence
Act. This section provides an exception to the prohibition imposed by section
26 Evidence Act. It enables certain statements made by a person in police
custody to be proved, which otherwise would be inadmissible in evidence
under section 162 Cr.P.C. or sections 24 to 26 Evidence Act. The condition
precedent imposed by this section is that the statement must always be
accompanied by discovery of a fact which may be stolen property, the
instrument of crime, the dead body or any material thing in relation to the
place where it was found in consequence of said statement.
In nut shell it must be the:
(1) statement of a person accused of an offence,
(2) who is in custody of police,
(3) the confessional statement has caused the discovery of a fact,
(4) distinctly relates to the facts discovered "which embraces the place
from which the object is produced and the knowledge of the accused
as to this.”
Section 27 reads, “Provided 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 such information,
whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.”
As pointed out above, the relationship of the statement against facts
discovered must be distinct: it must be unmistakable, unequivocal, direct,
indubitable, strict and unmistakable. Mohd. Anayatullah, 1976 S.C. 483-1976
Cr.L.J. 481. As such the whole of the statement made by the accused must be
scrutinised to see as to which portion relates distinctly to the fact
discovered and that portion only will be admissible in evidence and not the
whole. It has to separate chaff from the grain. So, a police officer should be
cautious from the very beginning to write the statement separately under
section 27 Evidence Act in the shape of a memo, to be attached with the
challan, and such statement should be brief and to the point relating to
discovery of fact and the place and the knowledge of the accused.
The important case on this point is Kottaya v. Emperor, 1947 I.P.C. 67.
The Privy Council has very clearly pointed out that the fact discovered
referred to in section 27 embraces the place whom which the object is
produced and the knowledge of the accused as to this. The question before
the Privy Council was as to what portion of the following statement was
admissible:
“About 14 days ago. I Kottaya and people of my party lay in wait for
Sivaya and others at about sunset time at the corner of pulipad tank. We all
beat Boddupati China Swayya to death. The remaining persons Pulayya,
Kottaya and Narayana ran away. Dondapat Romaya who was in our party
received blows on his hands. He had a spear in his hand. He gave it to me
then. I hid it and my stick in the rick of Venkata Narasu in the village. I will
show if you come. We did at this all the investigation of Pulukuri Kottaya.”
Their Lordships held that the whole of the statement except the passage,
“I hid it (a spear) and my stick in the rick of Venkata Narasu in the village. I
will show if you come” is inadmissible.
The reason why their Lordships held, “I hid the spear in a yard in my
village” admissible was that this statement led to the discovery of the fact
that the accused had knowledge that the spear was hidden in the yard in the
village and as that was a fact discovered, the statement relating to the
discovery was admissible and the statement relating to the discovery of that
knowledge was, “I hid the spear in a yard in my village”. The source of the
knowledge, thus distinctly related to the discovery of a fact and is admissible
in evidence. The source may be that the accused had himself hidden a thing
or that X or Y told him that a thing was hidden. In both the cases this would
be admissible in evidence under section 27 Evidence Act. In other words, the
result of this discussions is that statement with regard to authorship of
concealment is admissible in evidence. The words such as “I pledged,” ‘‘I
sold,” “I gave” or “I have kept” are admissible in evidence as these are
distinctly related to the fact discovered though they are confessional. These
words connote possession showing both ‘animus’ and ‘corpus.’ PP v. I.C.
Lingiah, 1954 Cr.L.J. 583 (Madras) . See also 1956 Bombay 393 Mathur
Dhama v. State. See the allowing rulings in this connection:
The statement ‘I sold the dynamo to the proprietor of the Soda Factory
near the Pullayar temple in Annupapalayam for Rs. 15’ was held to be
admissible in 1950 Mad. 613. The statement, “I will point out. I have buried
it in the fields” was held to be admissible in 14 B 260. In 1952 B 299 (FB)
Rama Shedappa, the statement of accused no. 5 was, “I would show the place
where I had concealed one Boga and one small Kolaq and jump in a
dunghill.” That of accused no. 6 “I would produce a pair of copper ghaggers
which I had kept concealed in a Kibuki garden in the brook” and that of
accused No. 8, “I would show two copper ghaggers and one brass Tapeli
which I had concealed in the Katki garden” were held to be admissible, as
they attributed the authorship of concealment to the accused. In Suklian v.
Emperor 10 Lahore 283 (FB) out of the statement made. “I had removed the
Karas, had pushed the boy into the well and had pledged the Karas, with
Allahditta “held that only portion admissible was the pledging of the Karas
with Allahditta. In Emp. v. Chokhey, 1973 All. 497 . “I have buried the gun
was held sufficient or proving possession. In Chhotey Lall v. State, 1954
Cr.L.J 1445. “I have thrown the pistol inside the pond.” Held to be sufficient
for constituting possession as no body could get at the pistol except Chhotey
Lall telling him that pistol was inside the pond.
In Mohd. Aaayat Ullah, 1976 SC 483 “I will tell the place of deposit of the
drums which took out from Haji Bunder on 1st August” only portion I will tell
the place of deposit of the drums was held relevant.”
In State v. Ramchander 1965 Orissa 175 the statement of accused that he
had kept gun in his village was held admissible under section 27 Evidence
Act even though in the information, the accused did not specifically mention
the particular place where the gun was concealed. It is, however, advisable
the place should be specifically mentioned.
In 1970 Cr.L.J. 603, Shria Irafan Ali the statement of accused to the
effect, “the Dhatura plants from which he had extracted Dhatura fruits and
which he had subsequently broken were within the bunglow towards jail and
he would go and show the place” were held to be irrelevant, being past user
but so far as the portion which related to the preparedness of the accused to
go and show the Dhatura plants was admissible. Similarly, he had kept the
stone on which he grounded Dhatura in a corner inside the motor garage is
irrelevant except for the statement that he had kept stone.
In Parbhate v. State, 1966 Raj. 241, the statement of accused that he
gave property to Ramji Lall was held to be admissible under section 27
Evidence Act. Also see 1962 S.C. 1788. He has given article to “B and that
he would show place where he had hidden ornaments” held admissible.
In Eara Bhadrappa, 1983 (2) C.L.R. 669 , the Supreme Court held
statement, “I will get silk sarees or ornaments if I am taken to places
(named)” as relevant
under section 27 Evidence Act.
Section 27–Evidence as to recovery–Murder case–No proof that sticks
recovered had any marks of blood–Mere recovery of sticks cannot constitute
incriminating evidence against accused. Narayan Kanu v. State of
Maharashtra, 1997 Cr.L.J. 1788 Bom.

Section 27 only when thing concealed/buried

There is absolutely no purpose introducing section 27 Evidence Act. If the
article is not concealed and could be easily recovered in search
perfunctorily. According to Mr. Falshaw (C.J.) in Sadhu Singh, Kehar Singh,
1967 Punjab 14. “A disclosure statement in my opinion only has any meaning
at all if the place is really a place of concealment which it would be difficult
and impossible for the police to discover without some assistance from the
accused.”
 In Khaushia 1974 C.L.R. 52 it was held that unless and until the
incriminating articles are lying at such a place that it is impossible for the
police to find them out by conducting an ordinary search and the same
cannot be found out without the assistance of accused, no reliance should be
placed on the recovery as a result of section 27 statement and especially
when stock witnesses are produced. So was the decision in Sher Singh, 1975
C.L.R. 353 where it was held that disclosure cannot be used against the
accused for the simple reason that recovery could have been made by police
on usual search.
Discovery from public place visible to all is not discovery and section 27
is not attracted. But it may be concealed at a public place. Incriminating
dagger discovered from under a bush in public park. It is admissible– Dhani,
1990 Cr.L.J. (NOC) 53 (Del.)
Evidence recovery–Knife recovered from thorry bushes accessible to all
the sundry–Panch witness stating that he was sitting in the jeep from where
thorry bushes were not visible–He further statement that brother of the
deceased was his friend–Held, in view of these infirmities evidence of
recovery could not be accepted. Sujit Gulab Sohatre v. State of Maharashtra,
1997 Cr.L.J. 454 Bom.
The statement that axe is one with which murder had been committed or
that the bloodstained Dhoti and Shirt belong to him are not facts discovered
and are inadmissible in evidence Prabhoo v. State of U.P., 1963 SC 1118.

Recovery How Effected

When an accused makes a statement, “I concealed a rifle in the heap of
grass inside my cattle-shed,” then there are two ways open to the police. It
is either for police officer to go himself and recover the rifle from there or
for the accused to lead the police officer to that place and produce the rifle
from there. There was a conflict of rulings whether the statement, “I
concealed a rifle” would be admissible in evidence under the circumstances
if the accused after the above statement himself leads the police to the place
and produces a thing because in that case it would be the act and not the
statement which results in recovery. This point arose in Cr. Revision No. 883
of 1951 in the Punjab High Court ; held as follows:
‘The previous statement made by him to the A.S.I. was not admissible in
evidence. That was not a statement leading to discovery, made by the
accused himself”.
Similarly, in another Cr. Revision No. 961 of 1951 , the same Chief Justice
(Western CJ) had put the statement as follows:
“After a while the accused, is said to have made a confession and to have
offered to produce the firearms. He then took the police party inside a room
and from box in which there were clothes, produced a rifle and pistol.” The
learned Chief Justice held the confessional statement not to be admissible as
production had intervened and that had resulted in recovery, and not the
statement. This view of the Hon’ble Chief Justice was not endorsed in State
v. Mohinder Singh, 1953 Cr.L.J. 561 (Punjab) and 1953 Cr.L.J. 697 (Pb.)
State v. Lehna Singh where it was held that the statement of the accused
leading to discovery was admissible in evidence irrespective of the fact
whether the police officer himself makes the recovery leaving the accused
there on the basis of the statement or whether the accused after making
statement takes the police to the place and produces the thing himself. The
view in both the cases was endorsed in 1954 Cr.L.J. 626 (Punjab) (Ram
Richhapal). This view is also supported by 25 Cal. 413 L. R. v. Chema Nashya
where it was held that if the statement of an accused in the custody of the
police is a necessary preliminary to the fact thereby discovered, it is
admissible under section 27 Evidence Act and it is immaterial whether the
statement is sufficient to enable the police to make the discovery itself or is
only of such a nature as to require further assistance of the accused to
enable them to discover the fact.
After recording the statement under section 27 Evidence Act, it is
therefore open to the police officer, either to go himself to effect recovery
from the place mentioned by the accused or to take assistance of the accused
by asking the accused to lead him to that place and produce the article. All
the three portions of the statement:
(1) Fact of the accused’s information,
(2) Fact of the accused leading the police to the place and digging or
taking out the article, and
(3) Fact of production resulting in recovery are admissible under section
27 Evidence Act, as well section 8 of Evidence Act.
In 1959 Cr.L.J. 353 (Orissa) State of Orissa v. Basanta Beg . Statement
under section 27 Evidence Act was followed by throwing of stones by
accused in water to show place where he had thrown knife was held to be
admissible when followed by recovery.
Sometimes the disclosure is made before a certain police officer and the
recovery is effected by another police officer when the first police officer
could not proceed himself for recovery for administrative reasons or
otherwise, the recovery is admissible. It was held in M.C. Sekharan, 1980
Cr.L.J. (Kerala). “There is absolutely nothing in the section to indicate that
the person who discovers the incriminating fact should be the identical
person who received the information.” It will be prudent, however, if the
same officer effects recovery.
As soon as the accused on interrogation confesses the concealment of the
incriminating article, he must be physically arrested, if not arrested so said
to have been physically arrested otherwise the disclosure would not be
relevant. Jarnail Singh, 1982 P.L.R. 47.
Refusal of stolen property–There is nothing unnatural or improbable on
part of accused in keeping their share of stolen articles concealed in
residence of one of the accused–Brij Mohan, 1994 Cr.L.J 922 SC.
Evidence Act, section 27–Judicial confession and extra judicial
confession–Judicial Confession recorded by Magistrate under section 164
Cr.P.C.–Magistrate failed to obtain signatures of accused which was
mandatory–Judicial Confession is not admission–It also cannot be treated as
extra-judicial confession. Dhananjay Reddy v. State of Karnataka, AIR 2001
SC 1512.
Evidence Act, Section 27–Confessional Statements recorded by Magistrate
but signature of accused not obtained which is mandatory–Confession not
admissible in evidence–However, if a part of confession is excluded under
any provision of law, the entire confessional statement in all its parts,
including the admission of minor incriminating facts must be excluded unless
proof of it as permitted by some other section, such as section 27 of the
Evidence Act. Dhananjay Reddy v. State of Karnataka, AIR 2001 SC 1512.
Section 27–Recovery–Disclosure statement–The accused was in custody and while in
custody he suffered a disclosure statement and led to discovery of the contraband
articles. Submission of the learned counsel for the accused is that the said statement
cannot be taken aid of for the purpose of discovery in connection with present case. He
was arrested in connection with one F.I.R. and while interrogation, he led to discovery
in connection with the stolen contraband articles from the malkhana which was the
matter of investigation in another F.I.R. Section 27 does not restrict the disclosure
statement. It was held by the court that components or portion which was the
immediate cause of the discovery could be acceptable legal evidence. Mohal Lal v. State
of Rajasthan, AIR 2015 SC 2098.
Section 27–Recovery–Admissibility of information given by accused–Information
given by the accused in consequence of which a fact is discovered only would be
admissible in the evidence. Whether such information amounts to confession or not. The
information might be confessional or non-inculpatory in nature, but if it results in
discovery of a fact it becomes a reliable information. The “fact discovered” as envisaged
under section 27 of the Evidence Act embraces the place from which the object was
produced, the knowledge of the accused as to it, but the information given must relate
distinctly to that effect. Pawan Kumar @ Monu Mittal v. State of U.P., AIR 2015 SC
2050.

Fact Discovered
There is also a conflict of rulings as regards what is meant by fact
discovered. Is it only the physical perception of a material fact or learning of
a mental fact contacting of a witness? This aspect of the case has been
discussed in 1952 Cr.L.J. 986 (Kartar Singh) . It was laid down there. “The
more general view is that the fact discovered”, should be a material or
physical object and not merely a piece of knowledge newly acquired. If the
information is that at such and such place a particular object has been
thrown or blood has been shed, it should be the discovery of that object or of
the blood marks. It is not sufficient, if the information is to the effect that if
so and so is asked, he will tell about the property which leads to its being
found. The word used is discovered and not ‘learned.’ So, according to this
view there should be a discovery of a thing or article.
The meaning of discovery, was laid as under in State of M.P. v. Dhanna
Lall Meruji, 1961(2) Cr.L.J. 238:
(1) It should be of a palpable physical fact;
(2) It should be finding of something which had been partly or wholly
concealed and which could not have been found out; except as a
consequence of the statement. When there is no concealing; obviously
there is no discovery.
Similarly, in 1941 Oudh 563, 1933 Cal. 146 , it was held that merely
pointing out some places from where nothing physical and tangible is
recovered would be inadmissible as being confessional. In 14 N.L.R. 192, the
discovery of a co-accused was held to be not admissible as discovery of a
fact. The Madras High Court takes contrary view. In 58 M 642, Emp. v.
Ramanujam the majority view was that the facts referred to in section 27 are
not confined to actual physical material objects. See also In re Hanumanth
Rao, 1957 Cr.L.J. 930 (A.P.). In 1954 Cr.L.J. 583 (India China) (Mad.) .
Discovery of a witness held to be discovery of a fact within the meaning of
section 27 relying upon 1943 M. 428 (where the discovery was of
complainant on pointing out of accused in case of theft). The Madras view is
more in consonance with the view in Privy Council ruling Puluku Kottaya
Supra and the commonsense view that it is legitimate to take help from the
accused during the investigation. See 1954 Cr.L.J. 583 P.P. v. India China
Lingua (M) Page 587 . This view was also admitted in 1947 N. 57 wherein it
was held. “A statement of an accused leading to discovery of certain fact and
inculpating another co-accused even if admissible as a whole under section
27 Evidence Act has very low evidentiary value as against co-accused.” Also
in 1930 L. 157 (Shopkeeper from whom accused bought the knife was
discovered). Again 1946 section 43 interrogation of an accused led to the
disclosure of where about of a co-accused who was found as the result of
information given by that accused, it was held that it was admissible under
section 27 Evidence Act. Contra 1917 N. 81. The Supreme Court in H.P.
Administration v. Om Parkash, 1972 SC 975 , held that mere discovery of
witness, if nothing is to be found or recovered from him as a consequence of
information given by accused i.e. the information disclosing the identity of
witness only is not admissible. There must be sonic physical thing recovered
from such a witness to make statement relevant. See also in re Karuna
Karan, 1975 Cr.L.J. 798 (Madras).
Based upon this Supreme Court Ruling, Delhi High Court in Dharambir
1982 (2) C.L.R. 3 where accused had made a statement that he got tooth bite
on his thumb and got it bandaged from a certain doctor, it was held that this
disclosure was not relevant under section 27 Evidence Act but accused
having led to doctor’s place was relevant under section 8 Evidence Act as
conduct.
In State of M. P. v. Murari Lall, 1973 Cr.L.J. 1559 , the statement of the
accused was that the incriminating ornaments could be found in the shop of
a named person, that statement would be admissible in evidence even though
he did not state the exact place in the shop where these were kept.
According to this view a named person was the same as a named place. 1970
Cr.L.J., 1959 SC Juffar Hussain.
Held in Mohd. Anayatulla, 1976 SC 483, that fact discovered includes not
only the physical object produced but also the place from which it is
produced and the knowledge of the accused as to this. See also Udai Bhan,
1962 SC 1116.
The police officer coming to know of a witness and culprit from the
accused should very clearly write the statement in case diary regarding this
and give evidence as to why he summoned such and such as witness and
culprit. Even the general question in chief examination that, “I called the
witness or accused” after interrogation of such accused, would serve the
purpose. In Himachal Pradesh v. Om Parkash, 1972 SC 975 , it was held that
where an accused gives information that he purchased the weapon from a
dealer and takes the police and witness, the information is inadmissible but
the evidence of Investigating Officer and Panches that the accused had taken
them to the dealer and pointed him out and as corroborated by dealer
himself is admissible under section 8 Evidence Act as conduct of accused.
A similar question came up for consideration in Ram Krishan v. Bombay
State, 1953 SC 104. In this case what was stated by Hazur Ahmad Khan I.O.
was that certain information was supplied to him by accused. In consequence
of which he took certain steps viz. that on 16th May, 1951, accused 1 and 2
to Ottawa and leaving the accused 2 there, the party proceeded to Bhagwas
with the accused 1 and his further evidence that accused 1 there pointed out
Babram who at the instance of accused 1 dug out from a mud house a tin box
containing three revolvers and two tins containing live catridges. The
Supreme Court held that there was nothing to prevent that evidence being
admitted against accused no. 1 and the police officer can depose in
consequence of or ‘at the instance.’ Reliance was placed on the following
observations of Rankin C.J. at page 300 in Durlaw Nama Sarda v. Emp., 1932
Cal. 297. ‘There seems to me to be nothing in sub-section 24 or 25 to prevent
evidence being given: “In consequence in something said by accused. I went
to such a place and there found the body of the deceased.” In cases under
section 27 the witnesses may go further and give the relevant part of the
confession.” Contra Rex. v. Gokal Chand Dwarka Dass Morarka No. 1 Cr.
Appeal No. 454 and 464 of 1949 decided on 11-1-1950 by Bombay High
Court.
If nothing is discovered in consequences of the statement, it will not be
admissible 1906 P.R. No. 16, 1943 B. 458 . When a place is pointed out by the
accused, but nothing is discovered, it is not admissible in evidence and is
barred by section 26 Evidence Act and section 162 Cr.P.C. 1941 Oudh 563.
See also 1933 Cal. 146 F.B.
Admissiblity of the information in relation to the facts discovered–What is
admissible under the provisions of section 27 of the Indian Evidence Act,
1872 is the information which relates distinctly to the fact thereby
discovered. Santhosh v. State of Kerala, 2020 Cr.L.J. 3583 (Kant.).
Information as to the facts discovered–The investigating officer should
have clearly indicated in his evidence the exact information given by the
accused which led to the recovery, and according to this Court, the evidence
in this case is not sufficient to contend that the accused has given any
information to the investigating officer. Santhosh v. State of Kerala, 2020
Cr.L.J. 3583 (Kant.).
Essential Conditions: “Accused of an offence” and “In Custody”
To make the statement of accused admissible under section 27 Evidence
Act it is necessary that a person should be accused of an offence and should
be in police custody at that time.
Section 27–Disclosure statement–Recovery made in consequence of
disclosure–Accused was neither accused of offence nor under arrest at time
of making statement–Such statement and recovery not admissible in
evidence. Sarabjit Singh v. State of Punjab, 1998 Cr.L.J. 2231 (P&H).
The word “custody” apparently shows that the person concerned should
be under arrest. It sometimes happens that arrest of an accused person is
deferred (P.P.R. 26.6) though there is evidence against him for his arrest or
in a bailable case a person is bailed out under section 170 Cr.P.C. without
being first arrested, 26.1 (P.P.R.). Sometimes an accused person who is
interrogated is suspect and not a person under arrest. The trend of rulings is
that word “custody” is not to be interpreted in the narrower sense that
person always must be under arrest (handcuffs) to make his statement
admissible. The custody as contemplated by section 27 Evidence Act need
not be a formal arrest. There is also sometimes submission to custody by
word or action. (46 (1) Cr.P.C).
In 1937 Lahore 620, it was held that the presence of the suspects who
have not been formally charged with any offence or arrested under any
section, with police under some restraint amounts to ‘custody’ which is
contemplated by section 27 Evidence Act.
After disclosure or recovery the person must be arrested by the police.
The formal arrest after discovery does not mean that formal detention before
disclosure was illegal. The fact of formal detention before disclosure under
section 27 Evidence Act would amount to custody. See 1933 Lahore 516,
1933 Cal. 148.
Similarly, in 1940 Lahore 129 it was held that police custody does not
mean custody after formal arrest. It includes some form of police
surveillance or restriction on the movements of the person concerned by the
police. It connotes some form of restraint on the movements of person either
by word or action.
An accused person is one who is accused of the offence by someone or
himself states that he had done certain acts which amount to an offence. If a
person accuses himself of committing an offence and if he makes the
statement to a police officer, as such, he is submitting himself to the custody
of the police as desired by section 46 (1) Cr.P.C and is in custody of police as
contemplated by section 26 Evidence Act as held in 1933 Cal. 148. Thus,
‘custody’ does not mean formal custody alone. It includes such state of
affairs in which accused can be said to have come into hands of police officer
or can be said to have been under some sort of surveillance or restriction.
Mst. Maharani v. Emp., 1948 All. 7. An accused is in the police custody
within the meaning of the section when he is under surveillance of the police
and cannot break away from the company of the police officer and get away.
1954 All. 687 Chhotey Lall v. State.
Thus an accused who gives an F.I.R. at the police station though an
informant and not under prior arrest, in which he accuses himself of having
committed an offence, submits to the custody of a police officer by his
conduct. He is, therefore, both an accused and in custody for purposes of
section 27 Evidence Act and if there is any disclosure statement under
section 27 Evidence Act written in F.I.R. followed by recovery, it will be
relevant against him. It was held so in Man Singh, 1959 M.P. 267. In State v.
Memon Mohd. Hussain, 1959 Bom. 534 this point was further cleared. There
it was held that the words “Information received from a person accused of
any offence.” Section 27 cannot be read to mean that he must be an accused
when he gives the information but would include a person if he became
subsequently an accused person, at the time when that statement is sought
to be received in evidence against him. See 1975 Cr.L.J. 354 State of Assam
v. Upendra Nath Raghwa . As regards custody it was held where a person
goes to a police officer and makes a statement which shows that an offence
has been committed, he accuses himself and though he is formally are
arrested, he is accused. Since he is not free to move whenever he likes after
the disclosure of the information to the police, he must be deemed to be in
custody of the police. See State of Bihar v. Madan Lall Agarwall, 1967 Cr.L.J.
237 (Patna) and Aghnoo’s case 1966 SC 110 , the accused lodging F.I.R. was
held to be in constructive custody of police and his statement in F.I.R.
regarding concealment of dead bodies and weapon of offence was held to be
relevant under section 27 Evidence Act, though accused was formally
arrested after recording F.I.R. on his statement. In Punja Mewa, 1965
Gujarat 5, it was similarly held so. “Thus, the police custody is deemed to
extend even when the accused was deemed to have submitted for such
custody of a police officer by submitting to the interrogation and by making
a statement about the discovery and who could not thereafter said to be a
free man. “Even indirect control over the movements of suspects by police
would amount to police custody in the meaning of section 26 Evidence Act,
1964 Orissa 144. It was also held in State of U.P. v. Deoman Upadhyya, 1960
S.C. 1125. “A person directly giving a police officer by word of mouth
information which may be used as evidence against him he may be deemed to
have submitted himself to the custody of the police officer within ; the
meaning of section 27 Evidence Act. Also see 1963 An. Pra. 87. In re Bandi
Muru Gulu.
A wide interpretation to word “custody” was given in re Rama Chandran,
1960 Cr.L.J. 616. The accused in that case went to a Magistrate and made a
confession disclosing the commission of cognizable offence by him. The
Magistrate sent the accused to judicial custody and an F.I.R. to police. The
Inspector of police on receipt of F.I.R. went to the jail and got information
from accused. He then got remand to police custody and in pursuance of
statement of the accused effected discoveries. Held that the accused though
in judicial custody was temporarily in the custody of the police officer when
he was interrogated by the Inspector. His statement was therefore perfectly
admissible under section 27 Evidence Act after all what the spirit of the
language employed appears to imply is that, where a person submits himself
to the custody of a police officer, with the consciousness that temporarily at
least, he is in such custody or such control whether formally authorised in
some manner or otherwise, the information given by him to such officer
leading to the discovery of a relevant fact may be proved within the scope of
this section. To limit the meaning of expression further by imposing
conditions as to the time of arrest, the existence or absence of a formal
Magisterial order authorising police custody or interrogation, etc. does not
seem to be justified either by the context or by any inherent feature of the
scheme of sub-sections 25 and, 26 to which section 27 clearly constitutes a
provision of exception. Also see Ram Krishan v. Bombay State, 1955 SC 104 .
in Bakshia Mukinda v. State of Bombay, 1960 Cr.L.J. 805 the accused was
questioned on 12-9-58 and as a result of that interrogation the accused not
only made a statement but took the Panches and the police officer to certain
field and produced stolen articles from below the heap of Kadha. The
accused was actually arrested on the 16th. It was contended that section 27
did not apply as the accused could not be said to be in police custody on the
12th. Held that statement and discovery sufficiently showed that the accused
submitted to police custody on 12-9-58 and as such his statement was
relevant under section 27 Evidence Act. In Kanihya, 1976 Cr.L.J. 1752 ,
accused was formally arrested 30 minutes after he made statement to D.S.P.
held he was in custody.
It is, therefore, essential that two conditions (for being accused of offence
and of being in custody) must be satisfied in order to make the information
leading to discovery admissible in evidence. If either of the two conditions is
not complied with, the statement would fall outside the purview of that
section. It is, however, not necessary the name of accused must be in F.I.R.
to attract the condition that he is accused of an offence. A person whose
name is not mentioned in F.I.R. as culprit but who is arrested by police
during investigation after ascertaining his complicity, is an accused person
within the meaning of sections 167 or 169 Cr.P.C. whether he be forwarded
to Magistrate or not. 1958 Andhra Pradesh 37; In re Upputhola See 1958 All.
293 Amin v. State holding the moment suspicion attaches to a person, he for
all purposes becomes an accused person. Name in F.I.R. is not essential.
In case Devi Ram Patt Ram v. State, 1962 (1) Cr.L.J. 186 , accused who
was a peon in Corporation of Delhi was entrusted with money for deposit. He
lodged report as informant that he was waylaid and robbed of money. On
next day while making a statement under interrogation by police he
disclosed that he had handed over money to a friend. The same was
recovered later. It was held that this statement was not relevant under
section 27 Evidence Act as accused was neither accused of offence nor in
custody of police when he made the statement.
Information received from accused leading to discovery of weapon of
murder–Confession by accused revealing that he abandoned weapon of
offence near place of occurrence–Recovery of weapon at instance of a
accused–confession though not admissible under section 27 but is admissible
under section 8 V. Ravi 1994 Cr.L.J. 162 (Ker.).
In Tara Chand, 1978 C.L. R. (Pb. & Hary) 235, the accused Tara Chand
was an informer against Maman for handgrenade. Police called Maman but
nothing was recovered. Tara Chand was called and he disclosed that he had
kept the handgrenade in thatched room of Maman. He was convicted. The
High Court held that Tara Chand when interrogated was neither accused nor
in custody and probably. He was questioned to reprimand for false
information against Maman, etc. The statement was not thus relevant under
section 27 Evidence Act.
The custody need not be necessarily of the investigating police officer; it
may be of any police officer but accused must be in custody. In State of
Mysore v. Rangaaih 1965 Cr.L.J. 848 , the I.O. was of police station
Kalaripaylam but the accused was in custody of Central Police Station when
he was interrogated and statement under section 27 Evidence Act. Held
information was admissible.
An accused released on bail by Court; on anticipatory bail or otherwise,
cannot be deemed to be in custody and section 27 Evidence Act would not be
applicable for recoveries during his release on bail. Gurbaksh Singh Sibia.
Recovery–The various requirements of section 27 are as under—
(a) The fact of which evidence is sought to be given must be relevant to the issue. It
must be borne in mind that the provision has nothing to do with the question of
relevancy.
(b) The fact must have been discovered.
(c) The discovery must have been in consequences of some information received
from the accused and not by the accused’s own act.
(d) The person giving the information must be accused of any offence.
(e) He must be in the custody of a police officer.
(f) The discovery of a fact in consequences of information received from an accused
in custody must be deposed of.
(g) Thereupon, only that portion of the information which relates distinctly or
strictly to the fact discovered can be proved. The rest is inadmissible. Mukesh &
Anr. v. State of NCT of Delhi, AIR 2017 SC 2161.
Recovery–The statement made by an accused while in police custody can be split in
two parts and to the extent of it being a disclosure statement which is the immediate
cause of discovering the new facts, would be legally admissible in evidence though the
remainder of such statement may be liable to be discarded. The I.O. (PW11) has very
emphatically deposed that out of the stolen items, onida TV set was got recovered at the
instance of the first appellant from his house. Similarly, the silver coin and a part of the
stolen currency was recovered from the second appellants. This is not the appellant’s
case that they were forced to make the incriminating statements under any threat. They
have chosen to defend themselves only on the basis of denial. The revelation made by
the I.O. to the limited extent of recovery of the stolen items pursuant to the disclosure
statements made by the appellants, therefore, falls within the four-corners of section 27
of the Evidence Act and had been rightly relied by the trial court. Ramesh Dasu
Chauhan v. State of Maharashtra, AIR 2019 SC 3119.

How to Record Statement

Two things are to be kept in view always before the statement is written.
1. It should be in singular first person and as far as possible, in the
actual words of the accused 38 Cr.L.J. 1025. The requirement that
information should be recorded in first person is not a legal
requirement. It is more procedural. J. Singh, 1977 Cr.L.J (NOC) 200
(Raj). It is all the more essential to write the actual words of the
accused as the court’s duty is to ascertain from the exact words of the
accused and then to find out if the I.O. had written the statement of
the accused in his own words or in words of the accused. In case there
is doubt on any point, the benefit of it according to 1959 Cr.L.J. 48,
Bhagirath v. State, will go to the accused.
In Phugo Kairi, 1987 Cr.L.J. 1058 it was held that statement under
section 27 Evidence Act must be recorded by police officer and in the
language of the accused as far as possible. This is just like confession
and dying declaration.
2. The police officer is to state the fact of what information was given to
him. He is not at liberty to dissect it and give evidence of part of it
only. 1932 B. 286.
It is then for the Court to split up the language used by the accused in
conveying the information to strike out words which are objectionable and
admit only those which relate strictly to the discovery. This is to be done in
case where admissible portion is very well-mixed with inadmissible portion.
As laid down in 1939 Lahore 344, the admissibility of the information
must depend upon its intrinsic character and substance and not on the
ingenuity of the police officer or the folly of the person in composing the
sentence. As held in 1948 N 716. “The I.O. has to record the words of the
accused, he cannot make a selection thereof from the portion, that he
considers probable. He should only record the information and it is for the
Court to consider its admissibility or what portions are admissible thereof.
Verbatims statement, not paraphrased statement can only be proved.
Behifas Samad, 1992 Cr.L.J. 2271 (Ori.).
Section 27 Evidence Act–Recovery of incriminating article–From place
which is open and accessible to others–Evidence under section 27 would not
be vitiated on that ground. State of Himachal Pradesh v. Jeet Singh, 1999
Cr.L.J. 2025 SC.
Section 27 Evidence Act–Rocovery of weapons–Information which accused
had furnished to police officer and which led to recovery of the weapons–Is
admissible in evidence under section 27–But admissibility alone would not
render the evidence, pertaining to the above information, reliable–Court has
to see whether it was voluntarily stated by accused. Rammi@Rameshwar v.
State of M.P., 1999 Cr.L.J. 4561 SC.
The Court as such will pick-up the admissible portion and leave the
inadmissible part. The difficulty would arise where the admissible portion of
the confession as is allowed under section 27 Evidence Act is so mixed up
with the inadmissible one that the two cannot be separated without
modifying the language by which the confession was made by the accused. In
a case decided by Madras High Court in Sogiamutu Padyachi Emp v., 1926
Mad. 638 the statement of the accused that, “the properties stolen from the
Math are buried by me or others in such place” was held to be admissible.
Statement of confessional nature is inadmissible in evidence.– Ram Kishore,
1990 Cr.L.J. (NOC) 118 (Del.).
Keeping in view the recent rulings of the High Courts the statement
“stolen from the Math” : should have been excluded from admissible portion.
It was held in 1955 S.C. 104 Ram Krishan v. Bombay State, “where, however,
any fact is discovered in consequence of information received from a person
because of any offence in the custody of a police officer that part of the
information as relates distinctly to the fact thereby discovered can be proved
whether it amounts to a confession or not.”
On the similar reasoning it was held in 1956 Ajm. 57 Uma Krishna v. State
of Ajmer dissenting, 1945 Mad. 202 that it is not necessary that verbatim
record of the accused should be made, it is a sufficient compliance, if a
sufficiently detailed record is prepared on the basis of which the police
officer cannot give what his impression of the statement of the accused was
but what in fact the accused had stated. It is not necessary for the police
officer to have recorded the statement of the accused person in the first
person.”

Statement where to be written

The statement of the accused is always to be written in the case diary.
The interrogation and its results are to be given there. It would be better to
write the statement in a case diary under section 162 Cr.P.C. separately.
Since the portion under section 27 Evidence Act of confessional statement
leading to discovery so much so of the information distinctly, relating to the
discovery inconsequence of which the discovery was made in admissible. It
should be written in the shape of memo to be attached with the challan. The
memo should be attested by witnesses before whom the interrogation was
made. Merely attestation by witnesses does not take it out of the orbit of
admissibility under section 27 Evidence Act. See 1943 M. 710. It was held in
Panchu Gopal Dass, 1968 Cr.L.J. 40 , “it is only proper for prosecution to
prove for production to prove by production of written record only so much
of the statement as led to the discovery of article. The oral statements of
witnesses without corroboration by any written record of any such statement
contemporaneously made even if admissible in unsafe to rely upon, because
of the very nature of evidence.”
The memo is, however, not a substantive piece of evidence. As such the
witnesses must be produced to give evidence according to it. It can,
however, be used for corroborating or contradicting or refreshing the
memory of the person who participated in it. See 1939 M.766; Bhagirath,
1959 Cr.L.J. 48. It becomes substantive evidence only under section 160
Evidence Act, when the witness or police officer writing the memo forgets
the contents or words used for accused and states that the document was
prepared correctly. See Dharma v. State, 1966 Raj. 441.
If the accused is literate, it should be got signed by him. Since it is
statement admissible by the maker thereof. Mere signatures would not make
it admissible. When the words, “I concealed it” are held to be admissible, the
signature of the accused enhance their value and sanctity to be truly made
by the accused keeping in view the fact that date and time given on it would
be deemed to be true under such circumstances. See Proviso to section 162
Cr.P.C. also. It should be thumb marked by accused otherwise.
Section 27 Evidence Act–Disclosure statement–Credibility–Provisions of
section 27 does not require that a voluntary statement must be signed by
marks of that statement of that thumb be signed by maker of that statement
or that thumb impression must be affixed to it. K. M. Ibrahim@Baba v. State
of Karnataka, 2000 Cr.L.J. 197 Kant.
 If the accused is in lock-up, he is taken out and interrogated. Then there
must be a report in the daily diary. If accused takes the party outside for
production, the report should contain the factum of disclosure and on return
the factum of recovery. This procedure will add to the authenticity of the
statement.

Importance of Witnesses
It is sometimes argued that witnesses are procured by the police to
witness disclosure so that they should depose to this fact later in the court,
though such disclosures, if at all are made to the police officers only. This
course is only adopted by them to fortify these statements which they have
to make in the Court later. It has already been dealt in the Chapter of
‘Searches’ that police officers are good witnesses as others are and there is
no bar as to why they should not be believed. The police officer to whom the
disclosure is made should not be so diffident as to call witnesses to hear
what the accused says and not rely upon his own self. He can depose to that.
But as discussed in 1938 M. Cr. C.48 and 1939 M. 15 : 40 Cr.L.J. 433 , this
practice of calling witnesses and preparing memo about statement was held
to be not bad. It was laid down there as endorsed in 1954 Cr.L.J. 583 (Mad.)
PP v. India China Lingia Page 590, that this diffidence by the police officers
and still lingering distrust of their testimony by the Bar and Bench and
litigant public is no doubt regrettable but undeniable and so long as that
diffidence and distrust last, the present practice is safe and in no way
irregular. See also Pershadi v. State, 1955 Cr.L.J. 1125/1955 All 408 where
statement being only to police officer was ignored as not corroborated by
any witness. Sikkim High Court in 1978 Cr.L.J. 945 held that alleged
recovery and evidence relating thereto could be relied on in the absence of
witnesses to speak to the disclosure statement. The test if only police officer
supporting Section 27 Evidence Act statement could be believed is laid in
1957 Cr.L.J. 113 (All.) Bechur.
But this does not mean that when a thing has been, disclosed to police
officer, he should call witnesses and then get information repeated in their
presence from the accused. This is against law, as the recovery would be in
consequence of the information given to police officer and not the one to the
witnesses because this fact had already come to the knowledge of police
officer. It was held in Shiv Devi, 1959 Cr.L.J. 848, that statement of accused
under section 27 is not legally required to be attested by witnesses. Also so
held in Hari Shankar, 1985 Cr.L.J. 1700.
A note of warning was issued in Narpal, 1977 Cr.L.J. 642 by Supreme
Court that an eyewitness in a case should not be associated with recovery
memo’s because that partakes of an attempt to make the witness omnibus.
In case Chatru 1953 Cr.L.J. 708 (Bilaspur), H.C. Rup Lal had recorded the
statement of the accused in presence of witness before discovery of dead
body. He, however, stated that he had already recorded statement wherein
accused had disclosed everything. This statement was not proved on record.
Held that subsequent statement in presence of witness and recorded by Rup
Lal, could not be said to be a statement which led to the discovery and as
such was not admissible in evidence. This was the view also in 1968 Cr.L.J.
372 Vinayak V. Joshi were it was held. “It is well-settled that it is the first
statement, made by the accused leading to a recovery which is admissible in
evidence. It, however, depends upon the circumstances of each case. If the
information derived as a result of interrogation was merely vague and the
precise information was received as a result of the statement made by the
accused before witnesses, the subsequent statement would be admissible in
evidence. Likewise, if the previous statement made to I.O. merely indicates a
willingness of the accused to disclose where the incriminating articles were
lying and the actual information about the place was given in a subsequent,
statement, the subsequent statement is admissible, if the incriminating
articles are recovered in pursuance of the statement.”
 See Contra 1955 Hyd. 200 State v. Abdul Hafiz where it was held that the
statement of the accused, repeated before panches later leading to discovery
was admissible as also the statement before police officer earlier. Held
further “that the investigation meant furnishing of evidence and if for that
purpose the I.O. called the panches and the panches hear the statement for
the first time and then discovered the fact; it could not be said that fact was
not discovered in pursuance of information given by the accused.”
In Karan Singh, 1973 Cr.L.J. 1936 SC a statement made to police officer
and then repeated before witnesses was held to be admissible under section
27 Evidence Act. Also see Chaman Lall, 1976 Cr.L.J. 1310 (para 33).

Discovery must follow statement

The recovery or discovery should be “in consequence of the statement,”
and then it would be admissible. If the fact had been previously discovered
by the police, section 27 Evidence Act would not apply to the statement
made after the recovery. Sometimes it so happens that a fact is known to the
police then it cannot be discovered on the statement or disclosure of the
accused as such discovery will not be in consequence of such statement. See
in this connection 1948 L. 69; 1956 SC 217. Ahir Raja Kliima. In Bhagwan
Dass (Punjab), 1976 C.L.R. 156 (Pb.). Police already knew regarding the
property to be at a particular place, held the disclosure statement leading to
recovery was inadmissible. It, however, depends upon the circumstances
whether the recovery was really made as a result of information given by the
accused. In many a case, the police interrogates an accused person on the
receipt of a information that such accused is in possession of an
incriminating article. This does not mean that disclosure of the accused
would become inadmissible if he makes and points out an article, as the
recovery would be as a result of information given by the accused who knows
the exact place and whereabouts of the article. This does not mean that if a
thing is visible and can be picked up without the help of the accused still the
adventitious aid of the accused should be got by bringing him round to
disclose the information. In re Chinnavan (1928) 1 Mad. Cr.P.C. section 258,
a police Inspector deposed that the accused was brought back to the scene
of occurrence and that he pointed out the knife. It was held “It appears to
me very doubtful whether in fact the knife was really discovered in
consequence of anything which the accused said. It is clear on the evidence
that anyone who had gone into the room and looked about with the slightest
care could have found the knife. In the circumstances, I think we should
exclude in this case all the evidence as to what the accused said to the
police in connection with the knife as not coming really within section 27
Evidence Act.”
As already said every case depends upon its own facts yet for guidance
see the cases given as under:
1. Kapur Singh v. Emperor, 1919 Lahore 184 . The accused disclosed that
he had thrown Dari and a Gandasa in the canal. The accused pointed
out a place but nothing was recovered from there. A boy who happened
to be there, disclosed where these were and got these recovered from
the neighbouring village. The statement of accused was held to be
admissible, there being immediate connection between the statement
and the discovery.
2. 1939 M 266. In this case A had murdered his brother. C, another
person came to know, of the murder and also the place where the body
had been buried. He even showed this place from where stench was
coming to village Munsif ‘A’ was arrested later and he pointed out the
place from where body was dug out. Held this statement coupled with
pointing out was inadmissible as it was already discovered.
3. In 1956 Punjab 224. State v. Parkash Singh . In this case, burglary in
the canteen had been registered at police station Beas on or about 20-
8-54. On 21.8.54, the accused Parkash Singh was caught with stolen
 property at Railway Station, Ambala. He then took the police to the
canteen, the alleged place of theft and pointed it out. Held that this
amounted to a confession without leading to any new discovery and
therefore was inadmissible in evidence. Thus, it is not necessary for
police officer to take the accused to place of theft if it is already in the
knowledge of the police. If it is not, then this is a good piece of
evidence and admissible under section 27 Evidence Act.
4. In case Narayana Pillai, 1968 Cr.L.J. 1362 –Information leading police
to place here accused said he threw away the incriminating knife–
Another information at that place from a girl that knife was picked up
by her and given to third person–Knife recovered from third person–
Information given by accused held fell within section 27 Evidence Act.
5. In case 1972 Cr.L.J. 1688 Gurnam Singh, G ., an accused informed that
he had sold ornaments to A, a goldsmith. ‘A’ stated that he had sold to
other Sunar and recovered at the instance of ‘A’. Held that information
was not admissible against G and he could not be convicted on it but
was admissible against ‘A’ the discovery in such a case is not natural
consequence of the statements made by the accused other than the one
who made a final statement. The discovery lends assurance to the last
statement.
6. Kaju v. State–1985 Cr.L.J. 367 . Dead body was recovered as a result of
statement made by accused under section 27 Evidence Act from a tank.
The police officer not proving the statement in Court though
statements was exhibited. The accused had pointed out the place by
throwing brick bags and gunny bags containing dead body was
recovered.
Held by Calcutta High Court that statement need not be necessarily be
a statement made orally but can be by gestures as well.
7. Parama Sivam, 1990 Cr.L.J. 1491 –Accused in custody saying, “Here I
threw away the murder weapon,” he however, could not discover it,
later in his absence it is found, statement not admissible under section
27 Evidence Act.
Section 27–Recovery of Weapons–Material discrepancy in evidence of eye-
witness and that of Investigating Officer regarding the time when police took
the accused in custody–Evidence of investigating officer regarding recovery
of weapons at instance of accused–Cannot be relied upon–Moreso when
Public Prosecutor has avoided putting any question in that regard to those
witnesses when opportunity for re-examination was provided to him.
Rammi@Rameshwar v. State of M.P., 1999 Cr.L.J. 4561 SC.
Section 27 Evidence Act–Murder case–Recovery of knife at instance of
accused–Not sufficient to convict accused when eyewitnesses did not speak
about accused inflicting knife blow on deceased. Deva v. State of Rajasthan,
1999 Cr.L.J. 265 SC.
Section 27 Evidence Act–Recovery of weapon–Basis of statement by
accused–Both the recovered axes were found stained with blood–Blood on
one axe found to be of human origin–Failure of serologist to detect origin of
blood on other axe due to disintegration of serum–Does not mean that blood
stuck on axe would not have been human blood at all–Rejection of evidence
regarding recovery–Not proper. State of Rajasthan v. Teja Ram, 1999 Cr.L.J.
2588 SC.
Section 27 Evidence Act–Recovery of articles–Based on statement of
accused–Said circumstance positively inculpating the accused–Cannot be
rejected merely because of belated interrogation of accused by investigating
officer. State of UP. v. Babu Ram, 2000 Cr.L.J. 2457 SC.
Section 27 Evidence Act–Recovery of articles–Case of child sacrificed–
Brass Pitcher (Kalash) used for collecting blood of children–Recovery of, at
instance of accused–When court know that there was blood on pitcher it is
for accused to explain how it was–But when he denied even the seizure of the
pitcher, such a denial, in this context, is not inconsequential–It is sufficient
of provide a “missing link” to the chain of circumstance. Statement of
Maharashtra v. Damu G. Shinde, 2000 Cr.L.J. 2301 SC.
Section 27 Evidence Act–Recovery of articles–Statement by accused that
dead body of deceased child was carried on motorcycle up to particular spot–
Broken glass piece recovered from said spot and that piece was found to be
part of tail lamp of motorcycle of co-accused, alleged to be used for said
purpose–Investigating officer can be said to have discovered fact that
accused had carried dead body on particular motorcycle upto said spot–Thus,
information supplied by accused would be admissible in Evidence. State of
Maharashtra v. Damu G. Shinde, 2000 Cr.L.J. 2301 S.C.
Section 27 Evidence Act–Recovery–Alleged recovery of a revolver–Not
sealed at the spot–Held: The non-sealing of the revolver at the spot is a
serious infirmity, because of tampering over the weapon cannot ruled out.
Amarjeet Singh v. State of Punjabm 1994 JCC 129.
Section 27 Evidence Act–Recovery–Articles of deceased–Reliability of–
Accused making no straight statement about the Articles–Actual words of the
accused’s statement not written down–Such statement can not be turned to
be recovery statement–Recovery can not be believed–Benefit to appellant.
Mujeeb v. State of Kerala, AIR 2000 SC 591.
Section 27–Recovery–Blade of scissors at accused’s pointing–Used as
weapon of offence not alleged to be serve weapon by PWs–No opinion given
by doctor conducting post-mortem–Deceased’s injuries stitched wounds
surgically tampered with–No blood of deceased found and not linked as
weapon of offence according to CFSL report–Recoveries, of no help to
prosecution. Ramesh @ Meshi v. The State of, 1997 JCC 53.
Section 27 Evidence Act–Recovery–Dacoity–Looted property recovered but
not in presence of I.O. or of any other police officer–No procedure of
recovery adopted–No recovery in the eye of law and so recovery not proved.
Kalika Tiwari v. state of Bihar, AIR 1997 SC 2186.
Section 27 Evidence Act–Recovery–Offences under section 302, 394, 411
r/w section 34 of IPC–Ornaments and cash amount of rupees. Ten thousand
stolen–The appellants later on surrendered to the police and disclosure
statements of ornaments made by them–The house lady indentified their
ornaments and they tallied with the ornaments given the list earlier–The
prosecution case was fully proved and so this appeal has no merit and is
dismissed. Mukran v. the State (NCT of Delhi), 2002 (1) JCC (Delhi).
Section 27 Evidence Act–Recovery-offences under section 302/34 IPC read
with section 27 of Arms Act–Circumstantial evidence–Recovery attended by
one public person but he does not identify the persons/accused who got
recovered these articles-Further, the recovery was made about 85 days after
the occurrence and also from the open land and these articles could not have
remained there intact since the place was accessible to the general public–
Hence these recoveries are doubtful and cannot be connected with these
appellants in this case-Benefit, therefore goes to the appellants resulting in
their acquittal. Mohd. Sabir and Anil Khanna v. State (NCT of Delhi), 2001
(2) JCC 330 (Delhi).
Section 27 Evidence Act–Recovery–Recovery of articles belonging to
deceased–Dismembered parts of deceased’s body were seized on 29-5-1979-
No memo of recovery of any clothes was made on the spot–After some days a
memo was prepared but no description of clothes was prepared–Some
articles were seized from father of deceased on 5 t h , 6 t h and 7 t h June, 1979–
Memo mentioning alleged recovery of articles was only prepared on 8-6-
1979–Even the clothes allegedly recovery was wedding dress and it appears
improbable that deceased will be wearing the same dress on her honeymoon
night, when she was allegedly murdered–Article never produced before the
trial court and only photograph were shown–Whether recovery of alleged
articles can be said to be proved–Held (No)–Prosecution has miserably failed
to establish the recovery of the clothes or shoes etc., by means of cogent and
reliable evidence. Mahender Singh Dahiya v. State, (CBI) 2003 Cr.L.J. 1908.
Section 27 Evidence Act–Recovery–TADA case–Recovery was made from
an open space which was accessible to all and everyone–It was difficult to
hold positively that the accused was in possession of these articles–It was
further held that the fact of recovery by the accused is compatible with the
circumstance of somebody else having placed the articles there and of the
accused somehow acquiring knowledge about their whereabouts and that
being so–The fact of discovery cannot be regarded as conclusive proof that
the accused was in possession of these articles. Salim Akhtar v. State of
U.P., 2003 Cr.L.J. 2302 SC.
Section 27 Evidence Act–Recovery and identification–Ornaments of the
deceased were recovered as a consequence of the statement of the
accused/appellant from his house, which was held to be doubtful–It was also
held that identification of ornaments was not legal–The ornaments were not
of any peculiar design–Such ornaments were with every family in the village–
Prosecution Witnesses desposed that some portion of the paper had been
stuck to the recovery ornaments–That paper was visible at the time of test
identification–Under the circumstances indentification of ornaments was
unbelievable. Bharat v. State of M.P., AIR 2003 SC 1433.
Section 27–No confessional statement made to police relied upon by the
courts below–Only the object recovered, on the basis of statement of accused
while in police custody relied upon to by the court of complete the chain of
events–These acts not hit by the mischief of section 27. Sanatan Naskar v.
State of W.B., 2010(3) Crimes 201 (SC).
Section 27–The witnesses merely stated that the accused was present in
the close proximity of that area. That does not itself establish the last seen
theory because none of the witnesses said that the accused and deceased
were seen together. Most of the witnesses had deposed that the accused was
having spade. The nature of the admissibility of the facts discovered
persuant to the statment of the accused under section 27 of Indian Evidence
Act is very limited. In this case, the spade had not been sent for chemical
analysis and there was no explanation furnished as far what reason it was
not sent–Not sending the weapon for chemical examination is fatal to
prosecution. S.K Yusuf v. State of West Bengal, 2011(3) Crimes (1) SC.
Section 27–It is based on the doctrine of confirmation by subsequent
events. When the accused gives information to the police officer that a
particular object is kept concealed at a particular place or given to a
particular person and either points out that place wherefrom the said object
is recovered by the police or is produced by the accused or he points out the
person who produces the object, recovery of the object confirms truth of the
information given by the accused. Section 27 does not say that for
admissibility of the information authorship of concealment is essential. The
expression “distinctly” only means “directly” “indubitably”, “strictly”,
“unmistakably.” Whether authorship of concealment was sine qua non to
make information received from accused admissible
under section 27 of Evidence Act? The answer is 'no'. Ajayan v. State of
Kerala, 2011 (3) Crimes.
Section 27–Conviction of appellant under section 489C IPC–The
demonstration of printing of the fake currency notes be regarded as
discovery of fact under section 27 of the Evidence Act. Though the
confessional part of the statement of the appellants and the confessional
part of the recorded statements of the witnesses, will have to be scrapped,
and cannot be considered, yet the fact remains that the place where the two
CDs were concealed by appellant was discovered at his instance. This is a
discovery of fact. The further discovery at his instance is regarding the
methodology of using the computer printer and the CD programme for the
purpose of preparing the counterfeit currency notes. He gave demonstration
which cannot be regarded as his confessional statement to the police. It has
to be treated as “Discovery of fact” in pursuance to his earlier confessional
statement based upon which two CDs were recovered. Prabhakar v. State of
Maharastra, 2011(1) Crimes 513.
Section 27–As the section is alleged to be frequently misused by the
police, the courts are required to be vigilant about its application. The
Court, must ensure the credibility of evidence by police because this
provision is vulnerable to abuse. It does not, however, mean that any
statement made in terms of the aforesaid section should be seen with
suspicion and it cannot be discarded only on the ground that it was made to
a police officer during investigation. The court has to be cautions that no
statement of accused with a simple case of recovery as a case if discovery of
fact in order to attract the provisions of
section 27 of Evidence Act. Geejaganda Somaiah v. State of Karnataka,
2007(3) Crimes 38 SC.
Conviction on basis of Confession–Recovery of 4 kg of heroin by officers
of Narcotic Control Bureau (NCB)–Confession made by accused before NCB
officials–Accused convicted solely on the basis of confession made by the
accused under section 67 of the Act–NCB officers are not police officers
within the meaning of section 25 of the Evidence Act–Moreover, prosecution
story was supported by three independent witnesses. Narcotic Control
Bureau Chandigarh Zonal Unit v. Balwinder Singh @ Binda, 2013(4) RCR
(Cri.) (P & H.)
Confession–Corroboration–As a matter of caution, a general corroboration
should be sought for but in cases where the court is satisfied that the
probative value of such confession is such that it does not require
corroboration then it may base conviction on the basis of such confession of
the co-accused without corroboration. But this is an exception to the general
rule of requiring corroboration when such confession is to be used against
co-accused. Yakub Abdul Razak Memon v. State of Mahrashtra Through CBI,
Mumbai, 2013(5) RCR (Cri.) 7.
Section 27–Recovery–Information furnished by accused–As per information given by
accused, the fact has been discovered by police as to the involvement of accused which
was not to the knowledge of the police. Police was not aware of accused as well as the
fact that he was dealing with fake currency notes which were recovered from him. The
embargo put by section 27 of the Evidence Act was clearly lifted in the instant case. The
statement of the accused persons has led to the discovery of fact proving complicity of
other accused persons and the entire chain of circumstances clearly makes out that
accused acted in conspiracy as found by the trial court as well as the High Court.
Information memos were admissible. Mehbob Ali & Anr. v. State of Rajasthan, AIR
2015(9) JT 512.
Recovery of weapon–Gun recovered at the instance of the accused was found
wrapped when it was dug out. The other witness to the recovery had stated otherwise.
The accused denied and contended that he had not fired at the crowd at the time of
occurrence. Factum of recovery was substantiated by the prosecution. It was held that
whether or not the recovered gun was found without any covering, or in a wrapped
condition, when the same was dug out, at the instance of the accused makes no
difference whatsover. Brij Lal v. State of Rajasthan, AIR 2016 SC 3875.

Fact Discovered must be Relevant

The fact discovered must be a relevant fact. There must be some
connection of the thing discovered with the offence. 1948 Mad. 261,1947
Pat. 162,1949 Nag. 277, 1935 Lah. 433 : 36 Cr.L.J. 1195 . Where Gandasa
recovered was neither blood stained nor proved to be connected with crime;
statement was held not being admissible. The witness should say it was the
same gandasa which was used by the accused if this is not found to be
stained with blood. Not past history or past fact. 1959 Cr.L.J. 219 Moti Lall.
 Appreciation of evidence–Discovery of weapons at the instance of
accused– Discoveries made after five days though accused were in the
custody of police– held evidence of discovery was considerably weakened
because of unexplained delay– Ahmad, 1994 Cr.L.J. 274 (Bom.) .
Section 27–Recovery–Articles recovered not immediately sealed- Such
recovery has no evidentiary value. Tulsiram B. Kambala v. State of
Maharashtra 2000 Cr.L.J. 1566 Bom.
Recovery–It was held that it is not permissible to advance an argument that section
27 of the Evidence Act is constantly abused by the prosecution or that it uses the said
provision as a lethal weapon against anyone it likes. In the instant case, court has noted
how the recoveries have been made and how they have been proved by the
unimpeachable testimony of the prosecution witnesses. Mukesh Kumar & Anr. & State
of NCT of Delhi, AIR 2017 SC 2161.
Recovery–Both accused disclosed the fact of disposal of the dead body, one after
another, in presence of witness. Both accused were taken to the spot. Joint discovery
was made at the instance of both the accused, on proceeding to the spot along with the
police. Held, discovery was made at the disclosure of the accused persons and the
disclosure made by them separately in quick succession to the I.O., preceeding the
discovery of the fact so stated. Disclosure admissible. Kishore Bhadke v. State of
Maharashtra, AIR 2017 SC 279.
Recovery–Seized the blood stained clothes in the presence of public witnesses–Blood
group on the blood stained clothes matched with the blood on the bed sheet on which
the body of one of the deceased person was found. The record revealed that though
blood of both the deceased persons was drawn and sent for examination, it was not
known as to what the report was and the blood group of the deceased persons was. So
much so, blood group of the accused persons was also not ascertained. It was held that,
mere matching of the blood group on the blood stained clothes, which was even on the
bed sheet, would not lead to the conclusion that crime had been committed by the
accused persons. Same reasoning goes with the recovery of laptop as well. Recovery of
laptop does not have any bearing. It is neither the weapon of crime nor it has any cause
of connection with the commission of crime. Debapria Pal v. State of West Bengal, AIR
2017 SC 1246.

Joint Statement
Sometimes it so happens that more than one accused made disclosures
before police to the same effect and then point out place one by one from
where discovery takes place.
It is, however, an admitted fact that a property once discovered as a
result of disclosure by one accused cannot be rediscovered in consequence
of information from the other as this fact would be in the knowledge of the
police already. Joint discovery statement may not be per se inadmissible but
it is a very weak piece of evidence, as it is very difficult to ascertain which
of the two accused persons gave the specific and definite information leading
to discovery of the incriminating material– Meghaji Godaji Thakur, 1993
Cr.L.J. 730. It is also a point of common sense that all the accused cannot
together make a statement and speak together. So, the repetition of the
statement of what had already been stated to police or known to police will
not be admissible under section 27 Evidence Act as held in 1955 M479. See
1939 M15 and 1940 M 710.
In the anxiety to involve all, sometimes a police officer writes a composite
statement of several accused where it is impossible to say how much of the
statement was made by one and how much by the other, as discussed in 1941
Mad. 765 and 1942 M 532, re Sheik Mahboob.
Under such circumstances a police officer should be able to say as to who
gave information first. The statements in the case diary should be written
seriatim showing the order of the interrogation and disclosures. Where a
police officer cannot say as to which of the accused made the disclosure
first, then he has created a mess which will not be helpful to the
prosecution.
In 1949 Orissa 67 it was held that where a dead body was discovered as a
result of joint information of more than one accused and it could not be
shown as to who gave information first, then it cannot be said that either of
the accused made the crucial statement, which led to the discovery and
therefore the joint statement would not be admissible against any joint
statement is inadmissible Kanara, 1985 Cr.L.J. 1822.
In 1954 Cr.L.J. 801 Koli Mola Bijai (Kutch) each of the two accused made
separate statements and pointing out same place where property was kept
concealed. The recovery was merely postponed to enable the co-accused to
make a similar statement and point out the same place. Held that discovery
must be taken to have been made in pursuance of the information given by
the first accused. Statement of the second accused, who gave information
later is inadmissible in evidence under section 162 Cr.P.C. as it did not fall
within the purview of section 27 law, as such, expects a good deal of
precision in regard to a statement under section 27 Evidence Act. As
observed by Hon’ble Mr. Justice Straight in 6 All. 509, “it is not a proper
course, where two persons are being tried, to allow a witness to state ‘they
said this’ or ‘they said that’ or ‘the prisoner then said’. It is certainly not at
all likely that both the persons should speak at once and it is right of each of
them to have the witness required to depose as nearly as possible to the
exact words he individually used. And, I may add, where a statement is being
detailed by a constable as having been made by accused, in consequence of
which he discovered a certain fact. The strict precision should be enjoined
upon the witness so that there may be no room for mistake or
misunderstanding. In detailing statements of kind, it is of the essence of
things that what each prisoner said, should be precisely stated. If the
evidence was not clear upon this point and the witness refused to be more
explicit, the Judge should have paid no attention to it.” It is, therefore,
necessary for a police officer to be clear on the point as to who disclosed the
information first. Every disclosure should be followed by recovery at the
pointing out of that accused. The police officer should be careful not to write
further statements of the other accused and recover a thing at the pointing
out of another accused and not the first one who made the disclosure. In that
case none of the accused would be liable as in the first case the disclosure of
one would not be accompanied by recovery and in the second case the
information would not be admissible being given afterwards.
In 1922 Lahore 315 it was held, “Once property has been recovered in
consequence of information received from suspected person, it cannot be
rediscovered in consequence of information received from another suspected
person. It is only the information given by the first person and which led to
the actual discovery which may be proved under the terms of section 27
Evidence Act. Similar view was taken in 1925 N 407 and 1953 Cr.L.J. 1257
(All.) and 1945 Oudh 235 . In the last ruling it was held that the use of the
word “a person” in a singular person in Section 27 in some what significant.
The word was used in singular person because the joint statement by a
number of persons cannot be said to be an information received from any
particular one of them.
In Moti Lall v. State, 1959 Cr.L.J. 219 (Patna) , it was held, dissenting
from 1930 Bom. 244. 1932 Cal. 297, 1942 Mad. 532, 1945 Oudh 235 and
1949 Orissa 67, that a fact can be discovered as a result of statements of
more than one person and can be admissible against each, if discovery
follows. What is not desirable to admit is vague and indefinite statement like
saying. Two or more persons said this and that. What should be insisted upon
by the Courts is that the statements should be recorded as precisely as
possible attributing the respective words to each accused whether they made
the statements simultaneously or immediately one after the other before the
discovery of the fact was made. As a rule of prudence, vagueness in such
statements of information should be avoided. In this case the A.S.I., had
written joint statements of two accused that they had kept the utensils in a
stream. This was held inadmissible as it suffered from vagueness and was
not definite on the question as to what each of them said. According to this
view the statement of each accused should be written separately viz. ‘I and
A–kept’. The recovery as a result of these statements will be relevant against
all. This case was dissented in 1971 Cr.L.J. 1215 Harmal (Allahabad), it was
held that joint statements could be recorded. In any case, there was no
prejudice shown to have been caused to the accused by adopting this
procedure. The only question was whether the statements led to the
discovery of fact (1958 All. 467 Nathu followed) . However, in 1972 Cr.L.J.
815, Babu Allahabad High Court dissented from 1954 (All.) 467 saying that
joint statements could not be admissible unless it was not shown as to what
specific statement each accused had made. 1955 SC 104 Ram Krishan relied
upon.
Supposing a police officer writes a joint statement and then recovers a
thing at the pointing out of the accused, then what would be admissible in
evidence? If he has erred in saying that all the accused pointed out the place
together then neither the statement nor the pointing out is admissible
against any. If there is pointing out by one, the rulings are that initial
pointing out by the accused is admissible against him as well as the
statement under section 27 Evidence Act. See 1956 M.B. 262, 1946 Cal. 454,
1955 Cr.L.J. 586 and Lachman Singh v. State 1952 Cr.L.J. 863 SC . According
to the prosecution in this case, all the three accused namely Katha Singh,
Massa Singh and Swaran Singh were interrogated by the police on the
morning of 12-12-1948 and then made certain statements which were duly
recorded that the dead bodies were thrown in the Saki Nullah. Thereafter
the police party with the three accused went to Saki Nullah where each of
them pointed out a place where different parts of the dead bodies were
pointed out. The initial pointing out was by Swaran Singh. Hon. Mr Justice
Fazal Ali of the Supreme Court held as followed:
“For the purposes of this appeal, however, it is sufficient to show that
even if the argument put forward on behalf of the appellants, which
apparently found favour with the High Court is correct, the discoveries made
at the instance of Swaran Singh cannot be ruled out of consideration. It may
be that several of the accused gave information to the police that dead
bodies could be recovered in the Saki Nullah which is stream running over
several miles but such an inadequate information could not be lead to any
discovery unless the accused followed it up by conducting the police to the
actual spot where parts of the dead body were recovered.” The argument put
forward was that it is only information which is first given that is admissible
under section 27 Evidence Act and once a fact had been discovered in
consequence of information received from a person accused of an offence, it
cannot be re-discovered from another accused person. In 1964(2) Cr.L.J. 481
(Orissa) in a joint statement the initial pointing but was held to be
admissible against the accused under section 27 Evidence Act.
Information leading to discovery by an accused cannot be used against co-
accused even by resorting to section 30. Nabi Mohd, 1980 Cr.L.J. 860,
Mahendra 1991 Cr.L.J. 1030.
In another case reported in 1947 P. 162 : 48 Cr.L.J. 686 , the facts were
that accused M had stated that box was thrown in latrine. Accused P had
actually taken police officer to latrine after stating that he had thrown box
into latrine. Discovery was held to be attributable to statement of P and as
such his statement was held to be admissible. See also 1955 Cr.L.J. 196;
1957 Cr.L.J. 328.

How to Write Statement?

As already discussed, the statement of the accused while in police
custody regarding the concealment of any article of the accused’s knowledge
of its whereabouts and the discovery in consequence of the said statement is
admissible in evidence. The best words to show conscious possession of a
thing by the accused are “I concealed or I buried or I kept.” These show
animus plus possession. If these words are not there and the knowledge of
the accused is shown by other statement, the conscious possession of that
accused cannot be proved. “X or Y told me that an incriminating article was
lying there” will show only knowledge. The mere words that “gun is lying in
the house and I can produce it” show only the knowledge and if the place is
not in exclusive possession of the accused, then these statements cannot
incriminate him without the help of some other evidence of possession. See
1923 Lah. 238, Khuda Bakhsh v. Emp.
Confession should be avoided to be written in the memo as “the weapon
with which I killed”, etc. Held in G. Gabrial 1983 Cr.L.J. 94 by Supreme
Court that the practice of incorporating wholesale confessions to police in
the garb of statement under section 27 is deprecated.
There should be invariably two memos; one relating to the disclosure,
statement of accused and the other to the actual recovery whether on his
pointing out or otherwise.
The 1 s t memo “Fard Byan.”
“In the presence of following witnesses, accused Y, while in custody,
disclosed on interrogation, “I or I and Raj have buried a gun (or any other
article give description) in such and such place (give description) and I offer
to produce it or point out the place or I will show it.”
Signature of Witness Signature of Accused
Signature of Witness
(if literate)
Signature of Police Officer with date.
2nd memo of recovery (Bramdgi)
Y, while in custody after making the disclosure led the police party
consisting of the following to place (give description) and point out the spot
(exact description) which was dug out or which he dug out or from which an
article (description) was recovered or was produced by the accused.
(Signature as above)
Sometimes the police officers write detailed description of articles, e.g.
number, make of, weapon, manufacturing marks in disclosure statements
even if accused are illiterate. This should be avoided. It looks odd and
unnatural and presupposes recovery before actual statement.
If article recovered is required to be still identified, it should be sealed
and fact mentioned in memo.
Information as to past user or past history of the objects produced is not
relevant, and anything confessional which connects the fact discovered with
the offence charged is in admissible, e.g., stone with which I killed or the
stone, the instrument of murder or stolen property. These words should be
avoided being inadmissible, e.g., property which I obtained as my share of
booty or the place where I murdered the deceased, I will point out rifle from
which I fired. Shankar Rao 1958 Cr.L.J. 54 (Mys.) Word “blood stained” can
be used.
The net result of all these discussion is:
1. No confession made to a police officer by an accused person whether
in custody or not, can be proved against the accused, if the
confessional statement is not accompanied by discovery of fact.
(Section 25 and 26. Evidence Act).
2. So much of the information received from a person accused of an
offence in custody of a police officer as relates distinctly to the fact
thereby discovered is admissible, under section 27 Evidence Act and
can be proved against him by any statement to a police officer which
 connects the fact discovered with the offence charged is inadmissible,
(as spear with which I stabbed).
3. Where a fact is discovered as a consequence of information furnished
by several accused, only the information which is first given by one of
the accused is admissible, if it leads to the discovery.
4. If it is a joint statement, then initial pointing out is admissible against
that accused under section 27 of the Evidence Act.
5. The statement of the accused while in custody regarding the
concealment of any article or the accused’s knowledge of its
whereabouts, i.e., place and the discovery in consequence of the said
statement is admissible in evidence, e.g., “I concealed”. In some cases,
the conversation which took place between the accused and the police
at the spot will also be admissible in evidence. See 1933 Cal. 316
Cr.L.J. 775.
6. This section is not repugnant to Article 20(3) of the Constitution of
India as information given under section 27 Evidence Act is not
compelled testimony. It, therefore, does not stand abrogated by Article
13 of the Constitution, 1955 Cr.L.J. 1285 Jethaya v. State . The
disclosure should be voluntary and not extracted by compulsion.
7. If, however, there is evidence that disclosure statement was got after
compulsion and after using force or third degree methods, then this
statement will not be admissible in evidence, being a contravention of
Article 20(3) of the Constitution of India.
Article 20(3) Constitution of India reads–“No person accused of any
offence shall be compelled to be a witness against himself.”
This further raises a point whether section 27 is an exception to
previous three sections 24, 25 and 26 and controls them. Section 24
bars confession which is result of inducement, threat or promise. If
Section 27 is not exception to Section 24 then recovery effected in
consequence of statement under section 27 Evidence Act may be under
threat or beating will be relevant. If not, then it will be inadmissible.
The law and various rulings of all the High Courts were discussed in
detail in Vijay Kumar v. State of Himachal Pradesh, 1979 C.L.R. (H.P.)
44 (D.B.) and it was held that Sections 25, 26 are controlled by Section
27 and even if Section 24 is not, Section 27 contemplates that
statement of disclosure, must be a voluntary statement. If it is
produced as a result of inducement, threat or promise by person in
authority, such statement is in admissible.
It was held in Amin v. State, 1958 Allahabad 293 that Article 20 (3)
applies to discoveries under section 27 Evidence Act, if these
discoveries are the result of compulsion. Therefore, all the discovers
which follow a confession brought about by compelling an accused
person cannot be used against him. It was also held in 1957 All. 197
Dhoom Singh that, “where facts disclosed point, as they clearly do in
this case, to the accused having been subjected to third degree
methods prior to the discovery, the genuineness of the discovery is
rendered doubtful and discovery becomes worthless as a piece of
evidence.”
Mere giving statement under section 27 Evidence Act while in police
custody, without there being any evidence of compulsion will not be
hit by Article 20 (3). It was held in State of Bombay v. Kathi Kalu,
1961 (2) Cr.L.J. 856 by Supreme Court that, “the mere questioning of
an accused person by a police officer, resulting in a voluntary
statement which may ultimately turn out to be incriminating is not
compulsion.” Also see 1963 Gujarat 159. Ahmadmiyan.
 Mere handcuffing of accused while taking him for recovery under
section 27 Evidence Act would not amount to compulsion under Article
20 (3), 1987 Cr.L.J. 180 Deodan.
The police, therefore, should avoid using coercive methods to extract
confessions. The discoveries thus made would be inadmissible in
evidence against the accused. See also M.P. Sharma, 1954 SC 300;
1957 Cr.L.J. 1971. In re-Mudugula.
Inspite of the statement being excluded as a result of compulsion, the
factum of recovery can be proved otherwise. See Amin 1958 All; 293.
8. Should the place of recovery as a result of statement under section 27
Evidence Act be in exclusive possession of accused? To invoke Section
27 the incriminating article should be one concealed–So as to evade
public gaze–Baldev Khosh, 1992 Cr.L.J. 2059 (Ori.) where accused
giving no information as to incriminating article nor he was present
during discovery. It was held, section 27 goes out of the way,
discovery of article does not criminate the accused– Mulayam Singh
1990 Cr.L.J. 2562 (M.P.).
It is not necessary. The fact that ‘A’ makes a statement that he has
buried an incriminating article in a certain place or kept it concealed
there and recovery is made as a result thereof, is sufficient to
establish his conscious possession. This point was finally decided in
Cr. Appeal No. 138 or 1953, State v. Arjan Singh decided on 3-8-1953
by Division Bench of Punjab High Court, in this appeal, the judgement
in AIR 1951 Simla 184 was also considered. It was held in latter
ruling. ‘The ultimate decision must depend upon a number of other
facts which will go to show whether the article was under dominion
and control of the person concerned or was lying there beyond his
control.”
It was held in 1954 Cr.L.J. 1458 (Sau.) Kali Jora Judha where weapons
were discovered from place of concealment on being pointed out by
accused after a disclosure statement under section 27 Evidence Act.
They may be considered to be in exclusive possession of the accused.
Dipu 1977 Cr.L.J. 1508 where arms were found in an open land to
which other persons had access. Some arms were found in the house of
a third person. Held since the arms were found on pointing out of
places by accused as result of Section 27 Evidence Act statement, he
was guilty of possessing them.
In re Murugan 1958 Cr.L.J. 1196 (Mad), the S.I. had proceeded to a
village on information, received apparently that the accused was
indulging in illicit distillation activities and had recovered lahan from
an accessible place. It was held that information first received was of
general nature of S.I. could not have recovered lahan but for this
particular information. It was held further that it was true that
exclusive possession cannot be brought home to an accused if
properties are discovered in open place equally accessible to members
of public as to the result of information given by him but at the same
time. “If the property is found to be so hidden away that no ordinary
member of the public could known of its existence there. The fact it is
on that particular person’s information and pointing out
unaccompanied by any explanation of innocent knowledge, the
incriminating article was discovered and recovered would lead to the
presumption, that he is the person who had secreted it there.” In 1958
Cr.L.J. 1084 (Punjab), there recovery of gun was from behind Gujri
Mahal in Hissar City which place was accessible to all the sundry, on
statement under section 27 Evidence Act of accused. It was held that it
did not prove that accused was in possession of it and had concealed
it. At least in minimises the evidentiary value of the recovery as held
in 1963(2) Cr.L.J. 454 (Ker.) State of Kerala v. Joseph. See also
 Chinnaswamy v. State of A.P., 1952 SC 1488 where the lower Court
had acquitted on point of accessibility but the S.C held that the place
where he had hidden the ornaments showed his possession (para 10).
In Radha Krishan Nandaji, 1962(2) Cr.L.J. 694 (M.P) . This point of
accessibilities was discussed at great length in its relation to section
27 statement. It was held that the statement “I have kept it” shows
that he had been in possession of it and the fact of the place being
accessible to other was of no consequence.
In 1976 SC 483 Mohammed Inayatullah, the Statement was “I will tell
the place of deposit by drums” which the accused pointed out in the
compound of a Yard of Musafar Khana. Held by Supreme Court that
statement was admissible but whether it was sufficient to prove
possession of accused was a question. In this case Musafar Khan was
accessible and open to sundry. There was nothing to indicate that
these were concealed or that compound was under lock and key of
accused. Held that benefit of doubt goes to accused.
Every case depends upon its facts. In case the property is concealed,
the presumption is all the more great that it was accused who
concealed it, may be, the place is accessible.
9. The Statement under section 27 Evidence Act is admissible against the
maker only. It has low evidentiary value as against the co-accused if it
inculpates another co-accused also. 1947 Nag. 57-47 Cr.L.J. 822. If the
statement involves only co-accused and not maker then it is
inadmissible in evidence. 1941 Mad. 316, 1924 All. 20. It cannot be
used against the co-accused as held in Nabi Mohd., 1980 Cr.L.J. 860.
10. Three discovery statement under section 27 Evidence Act,
leading to three discoveries, same set of panch witness in all the
discoveries–held this cannot be a ground to discard the discovery.
Khujji, 1991 Cr.L.J. 2653.
11. The witnesses must be produced in Court to support the
statement made by accused under section 27 Evidence Act. Mere
statement in memo will not be of held (983 S.C. 349) unless it is stated
by witness as to what was stated by accused. The memos are not
substantive evidence. It is not necessary that witness must be of
locality as section 100(4) Cr.P.C. to join two respectables of locality is
not applicable to recoveries under section 27 Evidence Act but only to
searches. Held in 1989 Cr.L.J. 563. Provisions of sub-section 100 and
165 Cr.P.C. do not apply to section 27 Statements.
12. Evidentiary value of Section 27 Statement. The question of
evidentiary value of such statement arose of Balbir Singh v. State of
Punjab, 1956 Cr.L.J. 481 SC. In this case the accused led to the
recovery of earings near a pipal tree as a result of statement under
section 27 Evidence Act. The Session Judge drew a distinction between
possession and knowledge and merely held that it was knowledge
where the ear-rings were concealed and not possession. The Supreme
Court did not accept this finding and held, “The Statement of the
accused that he had buried the ear-rings was admissible under section
27 and the High Court was right in holding that the recovery was a
circumstance which connected the accused with crime.” In 1969
Cr.L.J. 94, Mulkh Raj, Des Raj it was held that the fact that a
disclosure statement made by the accused to the recovery of knife
shows that it was within the exclusive knowledge of the accused and
that he had buried the knife.
Discovery of a knife with which blows were given in a murder case is a
very strong piece of corroborative evidence, 1977 Cr.L.J. 192 Surendra Nath.
Recovery of incriminating article soon after the occurrence at the behest
of the accused from a place (here a drain) adjacent to the place of the same
transaction. Shabu Ahmad, 1989 Cr.L.J. 2486.
 In Narpal Singh, 1977 Cr.L.J. 642 SC discovery of gun from a concealed
place on statement under section 27 Evidence Act in a wheat bundle and
bushes from where these could not be recovered unless clues given by
accused was held to be sufficient guarantee of truth.
In case 1972 Cr.L.J. 1108. In re Surchand Ramji, the Mysore High Court
held that where there was indisputable evidence establishing that the bones
and clothes found in the pit were that of the deceased in the absence of any
rational explanation as to how and under what circumstances the accused
had the knowledge that the clothes belonging to the deceased and the bones
were in the pit, inference that the accused committed can be drawn.
In Ghuraiyaa, 1990 Cr.L.J. 1129 –Where a minor girl who raped and then a
stick and rags were inserted into her vagina to obliterate the sign of rape. At
the instance of an accused who stated that the stick and rags of cloth had
hidden by him; those articles were recovered. The stick contained human
blood and the rags spermatozoa. The statement was held, admissible under
section 27 and section 8 Evidence Act.
While discussing the evidentiary value of section 27 statement against
maker in 1980 Cr.L.J. 860 Nabi Mohd, the Bombay High Court held that
inference against the maker of statement would be:–
(a) that informant accused is connected with the fact so discovered and
if the fact is incriminating, the accused’s connection herewith is
established;
(b) that the fact so discovered was within the exclusive knowledge of the
informant;
(c) that the fact is referable to the culpable possession of it by the
informant;
(d) that the informant has secreted away the fact with culpable motive;
(e) that the informant was a person who was responsible for the culpable
act by reason of which the resultant fact was traced and is available.”
The Supreme Court in H. P. Adm. v. Om Parkash, 1972 SC 975, however,
raised a note, of caution at page 983, for assessing value of section 27
Evidence Act statement in these words.
“We are not unaware that section 27 Evidence Act which makes
information given by accused while in custody leading to discovery of fact
and the fact admissible is liable to be abused and for that reason great
caution has to be exercised in resisting any attempt to circumvent by
manipulation or ingenuity of the Investigation Officer the protection afforded
by Section 25 or Section 26 Evidence Act. While considering the evidence
relating to the recovery we shall have to exercise that caution and care
which is necessary to lend assurance that the information furnished and the
fact discovered is creditable.” It was held in case Amrik Singh v. the State of
Punjab R.C.R., 1983 page 409, where only police officer was examined:
Evidence Act, section 27–Disclosure statement confidence of the Court
relating to disclosure statement by accused has been considerably shaken.
Therefore, a very strong proof of highest standard is insisted upon for
finding that the accused did suffer the disclosure statement.
The recovery at the instance of the accused under section 27 Evidence
Act has to be proved by reliable witness. If this is not proved satisfactorily,
mere statement of accused is of no evidentiary value. 1989 Cr.L.J. 1585.
Opium Act, Section 9–Prosecution not examining the witness on the
ground that they were won over. Mere representation of public prosecutor
about the wining over of witnesses is not conclusive, verdict of guilt cannot
be recorded on the basis of evidence of official witnesses.
In 1980 C.L.R. 68 Mehnga Singh, the tendency of police to convert
recoveries into discoveries under section 27 was strongly condemned. As
such there must be independent evidence to support disclosure statement
under section 27 Evidence Act.
 13. Is section 27 void and offends against Article 13/14 Constitution of
India? The Allahabad High Court in case Deoman Upadhyaya v. State, 1960 .
Held that Section 27 was void and offended Article 14, as it created an
unjustifiable discrimination between person in custody and persons out of
custody. This decision was set aside on appeal by Supreme Court (1960
Cr.L.J. 1504) and it was held that section 27 was not void. The recovery of
Gandasa from tank by accused as a result of disclosure statement under
section 27 Evidence Act by himself wading into the tank was held to be
relevant.
14. If an accused, under arrest, in one case, gives information on
interrogation, with regard to another offence and property with regard to
the other offence is recovered, the statement is relevant under section 27
Evidence Act. Accused arrested for criminal breach of trust; makes
statement that he sold another cycle. Held relevant in case of recovery of
that cycle. 1943 Madras 89. In re Kamlesh Naidu .



Chapter–18
Identification
When the name of the offender is not mentioned in F.I.R. and it is
contended that the witness did not know him before, it always becomes
necessary and essential to prove on the file by the police to make out as to
what led to the identity and arrest of the offender. It is very often that a
suspicion on a culprit is the basis of such arrest. In that case, too, it
becomes all the more essential for the prosecution to prove the
circumstances which created the suspicion. In order to establish this, the
police officer, who traces out the culprit should very cogently give in the
case diaries the facts and the circumstances which resulted in the arrest of
the accused. He should also, at the time of giving evidence in court mention
these facts. This aspect of case was laid down in 1952 Pepsu 103 Jaila v.
State and also in 1953, Pepsu 7 Madan Singh v. State.
The primary object of the Test Indentifcation Parade is to enable the witnesses to
identify the persons involved in the commission of offence(s) if the offenders are not
personally known to the witnesses. In this case, the accused persons were known to the
witnesses and they were identified by face, the fact that no Test Identification Parade
was conducted at the time of investigation is of the consequences. Ashok Debbarma @
Achak Debbarma v. State of Tripura, 2014 Cr.L.J. 1830 SC.
Section 9–It was held by the Supreme Court that the purpose of holding Test
Identification Parade is to test the statement of a witness made in the Court. The Test
Identification Parade which belongs to the investigation stage is conducted to assure
the investigating agency that the investigation is proceeding in the right direction.
Kanta Prasad v. Delhi Administration, AIR 1958 SC 350.
Purpose of the Test Identification Parade–In some suspected criminal cases,
generally, the Test Identification Parade is carried out to identify accused persons. This
identification of the accused persons in the course of a Test Identification Parade is
intended to lend assurance to the identity of the accused persons. Rajesh alias Sarkari
v. State of Haryana, 2021 Cr.L.J. 206 (SC).

Importance and Value of Parade

At the time of arrest of the accused, he should be informed that his
identification was to take place and as such he should cover his face and
take all the necessary precautions to conceal his identity. A care should be
taken by I.O. that he is not accompanied by any of the witnesses at the time
of accused’s arrest, who are to join the identification parade later. A note to
this effect, be incorporated in the case diary and daily diary. It would be
very much expedient, if the accused, if he is literate, is made to sign the
report in the daily diary to this effect. See the remarks of Jagat Narain J.C.
in 1954 Cr.L.J. 1819 (V.P.) State of V.P. v. Sarua Muni Dhimer, and 1955
Tripural 19. It is always safe to write the daily diary, case diary, in the
remand request and even on jail warrant that identification of accused is to
take place precautions taken to inform the accused about fact. The fact of
his having taken precautions to conceal face, etc., should also be noted. In
State of Rajasthan v. Ranjita Ladhu Ram 1962 Raj. 78 (F.B.) , it was,
however, held that it was not necessary to make such entries and the courts
can evaluate evidence otherwise also. This Full Bench case was approved by
Supreme Court in Ramanathan, 1978 SC 1204 saying merely because the
prosecution had not led any evidence to prove that appellant was kept
“baparda,” the evidence of identification parade otherwise satisfactory
should not be rejected.
Efforts should be made to produce the accused if arrested of non-bailable
offence at the earliest possible time after arrest to be taken before the
Magistrate who may be requested to give a note regarding covering of face
and a further note that accused had been learned to keep his face muffled as
his identification is to take place. The request for remand should also
contain this note. The remand of the accused, thus, should be taken and the
accused sent to judicial lock-up. The accused after arrest should never be
taken to spot or the place where there is possibility of showing him to
witnesses.
Section 9–Identification parade–Instructions contained in Criminal
Manual, clause II–Executive/Honarary Magistrate is supposed to put a
question about opportunity to see culprit at anytime subsequent to offence
or arrest to identifying witness and not to suspect. Pravindumar K. Shukla v.
State of Maharashtra, 1997 Cr.L.J. 577 Bom.
In Lotan Yadav, 1985 Cr.L.J. 484 , application for remand and order
passed thereon by Magistrate did not show factum of accused being present
in Court with muffled face. The plea of accused later in Court that he was
shown to witnesses by police was accepted.
The suspect and the identifying witness photographed together before the
Test Identification Parade–Identification parade is meaningless– Kabul, 1992
Cr.L.J. 1491.
Section 9–Identification by voice and gait known persons can be
recognised by die timber of their voice and gait. State of Maharashtra v.
Harishchandra Tukaram, 1997 Cr.L.J. 612 Bom.
When during dacoity culprits cover their faces by cloth and napkin’s
during Test Identification Parade too their faces should be covered. 1991
Cr.L.J. 945 (Ori).
In case 1986 Cr.L.J. 1404, the police officer had not mentioned in writing
that accused was covering his face. The oral examination of police officer
was still believed.
In Parmod Kumar, 1990 Cr.L.J. 88 , it was held that evidence of
identification by its very nature is a weak type of evidence. It is therefore all
the more necessary that prosecution should affirmatively prove that there
was no possibility of the accused being shown to anybody. The accused does
not know and will not know if he has been seen by witnesses. The accused
was taken for recovery as weapon of offence. The accused identification
parade later was not held to be a valid identification, without any supporting
evidence. The possibility of accused being shown at the time of recovery of
weapon could not be ruled out.
1946 J.L.R. 157 (D.B.)–In this, accused was arrested on 23-10-1944 and
sent to jail on 4-11-44. There was no evidence to show as to where the
accused was kept during the period and no explanation as to why he was not
sent to jail after arrest, was held that it was always the duty of prosecution
to show:
(a) The accused was warned from time of arrest to keep his face muffled.
(b) That he was kept at places where special precautions were taken to
keep him away from public gaze.
(c) To explain why accused was not sent to jail after arrest, if
identification was necessary.
Held further that in the absence of such proof and explanation, the
accused should not be convicted.
Identification parade, then, must be got arranged in jail and in the
presence of the Magistrate. The witnesses who had seen the accused at the
time of occurrence, should all join the parade in order to pick-up the accused
before a Magistrate. In case, no parade is held and the I.O. does not take any
steps for this purpose, a valuable piece of evidence is lost and the testimony
of witnesses in picking up the accused in court at the time of giving evidence
will not carry any weight. The conduct of Investigating Officer will also not
be above board as his investigation will be faulty and defective in material
respect, if he fails to arrange for a parade.
Every Investigating Officer should realise that it is an important aspect of
law that identification evidence only can become the basis of conviction
provided all the formalities are observed. As to what these formalities are,
see Madan Singh v. State Supra, where it is held. “If the evidence of
identification is satisfactory and leaves no doubt that witnesses who claim to
have identified the accused must have done so, there is no reason why
conviction should not be recorded merely upon the strength of that
evidence.” In a case which depends entirely upon identification evidence of
an accused person in a parade held for the purpose, the prosecution must
prove by evidence that the parade was held:
(a) Without any unnecessary delay.
(b) That the witness who picked out the accused in the parade as a
culprit had no opportunity of seeing him at any time after the
incident and before the parade.
(c) That the parade was held by the Magistrate with all the due
formalities.
In the absence of identification proceedings, the mere ipse dixit of P.W.’s
in the court that the accused was one of the dacoits, could not be believed,
Birey Singh (1953 Cr.L.J. 1817) being of no importance Parakinkar (1955
Cr.L.J. 1292). Otherwise the mere fact that a person was in the dock as an
accused, is likely to influence the mind of a witness and make him think that
the person in the dock is the person he had seen committing the crime and
thus reduce the evidentiary value of the identification evidence given in the
Court. Sham Lal v. Rex., 1953 All. 131.
It was held in 1983 Cr.L.J. 1854 Mahadev Ghosh, that identification for
the first time in Court without holding any test identification parade is
valueless for all practical purposes.
Accused suspected in dacoity put to Test Identification Parade with
Moles, scars on his face covered to a large extent with pieces of paper
similar coverings were done on faces of other persons participating in the
Test Identification Parade–No importance can be attached to this
identification. Chaman AIR, 1992 SC 901.
Section 9–Identification Parade–Accused charged for rash and negligent
driving. Enough evidence to identify the accused as driver of vehicle at time
of accident–Plea that there was another driver in cabin of accused raised at
late stage of arguments–Identification parade not necessary. Francis Xavier
Rodrigues v. The State, 1997 Cr.L.J. 1374 Bom.
 Section 9–Test Identification parade–Validity looted fire arms–No link
evidence adduced to show that accused was not shown to any witness
between time of arrest and time of lodging at jail is fatal conviction of
accused only on basis of identification by witnesses–Not proper–No firearm
having been recovered from other accused same was not looted in present
dacoity–Conviction of accused for offence under section 396 I.P.C. not
proper. Khan Singh @Ujagar Khan & Chhotey v. State, 1997 Cr.L.J. 305 All.
Section 9–Test Identification Parade–Rape case–Evidence of prosecutrix
that accused was shown to her several times at police station before holding
of identification parade–Accused entitled to benefit of doubt.
Sadhoo@Sadhuram v. State of M.P., 1997 Cr.L.J. 2809 M.P.
Section 9–Murder case–Accused known to all witnesses before
occurrences witnesses not knowing his name but could identify him holding
of test identfication parade, not essential. Ambika Prasad v. The State, 1997
Cr.L.J. 2853 Delhi.
The Identification Parade should be held as soon as possible after the
arrest of the accused in jail. It should be conducted without delay. Delay in
57 days in holding Test Identification Parade is fatal to prosecution. Khalak
Singh, 1992 Cr.L.J. 1150 (M.P.). If there is delay in holding identification
parade before a Magistrate within a reasonable time after the arrest of the
accused, it should always be explained. Ganga Singh, 1978 Cr.L.J. 269 . Such
factors can be:
(a) The accused had been keeping their faces muffled all along while
coming out of jail for appearing in a court and while going back to
jail. The police officer or the public prosecutor should request the
court to make a note to this effect.
(b) Or that the remand or adjournment was taken without bringing the
accused to Court, out of jail and that the Magistrate was requested to
give remand in jail.
(c) That the witnesses were not available for a certain period. Such delay
should be clearly explained so that the conduct of I.O. is not seen
with suspicious eyes, for causing delay in the holding of this parade.
In 1953 Raj 49, Debi v. State , where parade was held two months after
the arrest of the accused and the accused had been shown to be coming
before court, the case was held doubtful, because human memory of
witnesses is falliable and after a long time it is difficult to identify a person
not very well known whom one sees rather with a different appearance. It
was, however, held in Sheo Nandan 1964, All. 139, that these factors do not
necessarily cause any infirmity in the evidentiary value of the witnesses who
do, in spite of this difficulty find it possible to identify; nor is the value of
the identification minimised because of the time gap between the occurrence
and the identification proceedings. In this case accused were arrested after
8 months of the occurrence and identifications were arranged within 2½
months of their arrest. Evidence was accepted.
In Subash 1987 Cr.L.J. 991 SC. Parade held after delay of four months.
Witnesses not giving description of accused either in F.I.R. or in their
statements during investigation. It was held that conviction cannot be based.
In Brij Mohan 1994 Cr.L.J. 922 , accused were put on Test Identification
within 24 hours of their arrest in connection with case–Identification made
by the witnesses cannot be rejected merely on ground that it was not
possible for them to identify culprits after lapse of period of three months.
Section 9–Identification–Dacoity case–Test identification parade held
after three months after occurrence–No material showing witness having
chance to see suspect before identification parade was held–Evidence of
identification can be relied upon. Pravakar Behera v. State of Orissa, 1997
Cr.L.J. 3291 Orissa).
 In Degamber Singh, 1990 Cr.L.J. 489 , conviction in a case of dacoity with
murder was based on the testimony of witness only 11/12 years old who
identified accused in parade. The dacoity was on a moonlit night; there was
lantern light also. Witness was with his mother throughout the occurrence.
Held that he had very good opportunity of seeing faces of dacoit (Occurrence
of 24/25 Oct., 75, parade on 12.11.75).
In State v. Rajan 1994 Cr.L.J. 1042 –Test Identification Parade–Dacoity
with Murder–Photographs of accused alleged to have been shown to
witnesses prior to identification parade–Witnesses having opportunity to see
accused in sufficient light-still not identifying all the accused–Allegation of
photograph being shown to witnesses–Is of 11 days after producing accused
before Magistrate–Does not amount of delay–Accused duly identified.
It was held in Re Kamraj 1960 Cr.L.J. 360 (Mad.) “Though there was
bright moonlight, these witnesses had the opportunity of seeing these fleeing
strangers for a very short time. These accused persons had no distinctive
appearance or infirmities which would fix their features indelibly upon the
minds of these persons. The F.I.R. and the dying declaration did not even
contain a description of these accused. Their identification parade had been
held practically
15 months after the date of occurrence. Held that in these circumstances, it
would be unsafe to rest the conviction of the accused upon the identification
evidence.” See Anwar, 1961 (1) Cr.L.J. 122 (All) . In Pritam Singh, 1971
Cr.L.J. 974, the Identification Parade held 11 days after arrest of the
accused was not accepted as proper without any convincing explanation for
delay. Held by Supreme Court in Habib 1972 Cr.L.J. 233 that Test
Identification Parade should be held at the earliest opportunity after the
arrest of accused.
In Kamaljit Singh, 1980 Cr.L.J. 542 , “where in a murder case the two
accused were arrested on different dates, the identification in respect of one
was arranged 5 days after his arrest and in respect of the other 11 days after
his arrest and the accused declined to join the parade on the ground that
they had been shown to the witnesses and no explanation was forthcoming
why parades were not held immediately after the accused were arrested, the
evidence of identification cannot be said to be satisfactory and benefit of
doubt must be given to the accused person.”
Delay by itself is no ground for rejecting identification, if it is otherwise
acceptable. 1991 Cr.L.J. 745.
In case the unidentified culprit is not being traced out, arrested or
suspected soon, the I.O. should complete investigation on the following
points:
(a) The accused was not known earlier.
(b) The accused was seen for a sufficient time by the witness in older to
recollect his feature, when operating at the time of occurrence.
(c) There was sufficient light, showing features of accused.
(d) The accused took prominent part and had struggled with witness.
(e) The witness gave description of accused vividly in their statements.
The Supreme Court observed in Budhsen, 1970 SC 1321 that it is
unfortunate that the Sub-Inspector did not care for more information
about the description of the alleged assailants by questioning the
informant. Mere omission not fatal, if subsequent identification is
there. Prabhati, 1966 Raj. 241.
(f) There was some peculiar feature about the accused which finds
mention in the earliest statement of the witness. If there is no such
mention of peculiar mark in the F.I.R. nor did the witnesses make the
mention of this fact in their statements at any stage, the evidence
becomes doubtful. Kallu 1970 A.W.R. 23.
 The parade, when accused is arrested will certainly carry weight if the
above points are attended to though there may be a long interval between
the occurrence and the arrest. The test according to the Ashraf in case 1961
Cr.L.J. 310, (All.) is not delay but power of observation of the witness. It was
further held that the police can seldom be blamed for arresting a suspected
criminal with delay, but once his arrest has been effected there can be no
excuse for failure to hold his identification within two to three weeks.” Delay
by itself is not sufficient to reject the evidence of identification 1966 Raj.
241 Prabhati.
It was, however, held in Sheo Nandan Supra that these factors do not
necessarily cause any infirmity in the evidentiary value of the witnesses who
do, in spite of this difficulty find it possible to identify, nor is the value of
the identification minimised because of the time gap between the occurrence
and the identification proceedings. In this case accused were arrested after
8 months of the occurrence and identifications were arranged within 2½
months of their arrest. Evidence was accepted. Identification proceedings
after two years. Accused absconding misconduct. No flaw 1986 Cr.L.J. 622
(Cal). Parade held after unexplained delay of 4 months, accused acquitted
1988 SC 345.
Section 9–Test identification Parade–Conviction on basis of such evidence
alone–Can be made if court concludes that testimony of identification
witness cannot be suspected. Ramesh Kumar Soni v. State of M.P., 1997
Cr.L.J. 3418 MP.
Section 9–Identification Parade–Murder case–F.I.R. lodged within one
hour of incident–Names of accused persons mentioned therein–No possibility
or erroneous identity in the circumstances of the case–Not holding
identification did not matter since there was hardly any time to concoct false
story. Asha@Ashanand v. State of Rajasthan, 1997 Cr.L.J. 3508 SC.
Section 9–Identification Parade–Legitimacyness before identification
parades–Parade held in lock-up of investigating agency thereby giving
sufficient opportunity to identifying witness of seeing persons to be
identified– Identifying witnesses were police constable attached to
concerned police station making if necessary for investigating agency to
ensure that identifying parades were held in manner and at place so as to
avoid criticism–Held identification parades were not valid. Ravindra @
Ravibansi Gohar v. State, 1998 Cr.L.J. 4059 SC.
Test Identification Parade–If the eye-witness already knows the accused
by name or face, there is no necessity of any test identification parade nor
the police showing the accused persons to such witness will have any
material bearing on the prosecution case–The statement of such a witness
who already knew the accused, therefore, will not be hit by section 162
Cr.P.C–Identification of an accused for the first time in court is no
identification in the eyes of law and the accused shall be entitled for benefit
of doubt provided that the witness who identifies the ac cused in the court for
the first time, is not known to him. Chuni Lal v. State of Haryana, 2006 (1)
RCR (Cri.) 844 (P&H).
Test Identification parades–Law explained:—
(1) Absence of Test Identification Parade is not fatal in all cases (1970)
3 SCC 518.
(2) Substantive evidence is the evidence of identification in Court. Test
Identification Parades do not constitute substantive evidence. These
parades are governed by section 162 Cr.P.C.
(3) Identification parades belong to the stage of investigation, and there
is no provision in the Code of Criminal Procedure, which obliges the
investigating agency to hold, or confers a right upon the accused to
claim, a Test Identification Parade.
(4) Failure to hold a Test Identification Parade would not make
inadmissible the evidence of identification in Court. The weight to be
 attached to such identification should be a matter for the courts of
fact. In appropriate cases it may accept the evi dence of identification
even without insisting on corroboration.
(5) Much evidentiary value cannot be attached to the identification of the
accused in court where identifying witness is a total stranger who
had just a fleeting glimpse of the person identified or who had no
particular reason to remember the person concerned.
(6) It is a matter of great importance both for the investigating agency
and for the accused and a fortiori for the proper administration of
justice that such identification is held without avoidable and
unreasonable delay after the arrest of the accused. 1994(3) RCR
(Cri.) 1 (SC) relied. Malkhan Singh v. State of Madhya Pradesh (SC).
Investigation completed and challan put up–Request of accused for test
identification parade after completion of investigation not allowed–
Identification parade is required to be held during the investigation of the
case–Therefore, as identification parade falls within the realm of
investigation the necessary consequence which follows to that allowing the
application of the accused at this stage would tantamount to taking a step in
the direction of re-investigation of the case. Rajiv Gurung v. State (U.T.
Chandigarh), 2002 Cr.L.J. 3429.
Test Identification Parade–Murder by unknown person–Accused arrested–
Test identification parade held after 14 days of occurrence–Eye identified
the accussed–Held, there was no unreasonable delay in conducting the list
of identification parade–The delay if any, was procedural–Test identification
parade relied upon–Conviction upheld. Bhupinder Singh v. State of Punjab,
2006 Cr.L.J. 17 (P&H) DB.
Test identification parade–F.I.R. lodged in an offence (Murder)–One of the
accused not named in the F.I.R.–His identification was done in court for first
time–Conviction set aside–Held, if an accused is not named in F.I.R., his
identification in the court should not be relied upon, especially when his
name has not been disclosed before the police–Identification of a witness, for
first time, in the court, cannot form the basis of conviction. Pradeep Kr. v.
State of Haryana, 2005 (3) RCR (Cri.) 958.
Identification of accused persons–Occurrence took place on moonlit light–
A known person can be identified from a distance even without much light.
Israr v. State of U.P., AIR 2005 SC 249.
Section 9–Evidence Act–Section 162 Cr.P.C.–It is right to say that the
substantive evidence is the evidence of identification in court. Apart from
the clear provision of Section 9 of the Evidence Act, the position of law is
well-settled by the catena of decisions of this court. The facts, which
establish the identity of the accused persons, are relevant under section 9 of
the Evidence Act. As a general rule, the substantive evidence of a witness is
the statement made in court. The evidence of mere identification of the
accused person at the trial for the first time is from its very nature
inherently of a weak character. The purpose of prior test identification,
therefore, is to test and strengthen the trust-worthiness of that evidence. It
is accordingly considered a safe rule of prudence to generally look for
corroboration of the sworn testimony of witnesses in court as to the identity
of the accused who are strangers to them, in the form of earlier
identification proceedings. This rule of prudence, however, is subject to
exceptions, when, for example, the court is impressed by a particular witness
on whose testimony it can safely rely, without such or other corroboration.
The identification parade belong to the stage of investigation, and there is
no provision in the Code which obliges the investigating agency to hold or
confers a right upon the accused to claim, a test identification parade. They
do not constitute substantive evidence and these parades are essentially
governed by section 162 Cr.P.C. Failure to hold a test identification parade
would not make inadmissible the evidence of identification in court. The
weight to be attached to such identification should be a matter for the courts
of fact. Mahabir v. State of Delhi, 2008(2) Crimes 180 (SC).
Section 9–Evidence Act–For identification, proximity of the witness, time
of occurrence, period of the year, accused being known or stranger, etc. are
relevant factors–The hypothetical conclusions of the High Court which are
based on surmise and conjectures on the other hand are insupportable.
Basudev Yadav v. Surendra Yadav & Others, 2008(4) Crimes 90 (SC).
Section 9–Evidence Act–Identification of accused by victim–Complainant–
In the present case the complainant has admitted that he saw the
accused/appellants prior to the test identification in police custody. He has
categorically stated that he identified the accused/appellants in dock
identification specifically saying that accused/appellant was sitting beside
him whereas accused appellants was sitting on the back seat and it is the
accused Maan Singh who offered him the prasad of Laddu. The complainant
has not identified the accused/appellants in the dock identification on the
basis of test identification but he identified them on the basis of having
ample opportunity of seeing them earlier to it. Dock identification could be
accepted even in absence of Test Identification Parade if otherwise found to
be reliable. Jagdish Prasad v. State of Chhattisgarh, 2008(2) Crimes 409.
Section 9–Evidence Act–Test Identification Parade–Object and purpose of–
As per section 9 of Evidence Act, facts which establish the identity of an
accused are relevant. Identification parade belongs to investigation stage
and if adequate precautions are ensured, the evidence with regard to test
identification parade may be used by the court for the purpose of
corroboration. The purpose of the test identification parade is to list and
strengthen trustworthiness of the substantive evidence of a witness in court.
It is for this reason that test identification parade is held under the
supervision of a Magistrate to eliminate any suspicion or unfairness and to
reduce the chances of testimonial error as Magistrate is expected to take all
possible precautions. Ram Babu v. State of U.P., 2010(2) Crimes 389 (SC).
Test Identification Parade–In this case the persons who committed the offence were
admittedly unknown to the witnesses. Witnesses were not able to remember the faces of
the said criminals after a period of 7 years. One witness was injured out of the two in
the incident. The occurrence lasted for 90 seconds. It was held by the court that
incident of 90 seconds was too long, a period which could enable the eye-witnesses to
watch the accused persons and such a horrible experience would not be easily
forgotten. It was held further that faces of the accused persons would not have been
forgotten even after 7½ years. Pargan Singh v. State of Punjab and Harminder Singh v.
State of Punjab, AIR 2014 SC 3790.
In the present case, the incident of firing occured in the circumstances where in
much time was not available for the eye-witnesses to clearly see the accused. In such a
situation, it was of much more importance, that the Test Identification Parades were to
be conducted without any delay. First Test Identification Parade was held after about ½
months of the incident. The second Identification Parade was conducted after more than
a year of the incident. It was held that testimonies of the witnesses, suffer various
informities and contradictions. Though the incident took place in broad daylight, the
time for which the eye-witness could see the accused was not sufficient for them to
observe the distinguish features of the accused, especialy after the firing everyone was
running to shelther themselves from the firing. State of Maharashtra v. Syed Uman
Sayed Abbas & Others, 2016 Cr.L.J. 1445 SC.
Joint Identification Test Parade–The purpose of Identification Test Parade is to
ensure that the investigation is going on the right track and it is merely a corrobative
evidence. The actual identification must be done in court and that is the substative
evidence. In the case of Joint Test Identification Parade, there is no invariable rule that
two accused persons cannot be made part of the same Test Identification Parade. It was
held by the court that joint Test Identification Parade in no manner, affect the validity of
the Test Identification Parade. Sheikh Sintha Madhar @ Jaffar v. State Rep. by Inspector
of Police, AIR 2016 SC 1844.
Identification of Accused on Bail
In case an accused has been released on bail in a bailable offence or he is
not arrested, still being a suspect, and he is to be identified then:
1. He can be summoned under section 160 Cr.P.C. to join parade;
2. He can also be summoned through Magistrate to join parade;
3. If he attends at a specific time and place, then parade should be
arranged with all formalities;
4. If he does not attend and refuses to join parade, he cannot be
compelled. He would be debarred at later stage from raising the plea
that no Test Identification Parade was held by the prosecution or that
the later identification in court by witness during trial would be
defective or inadequate for the purpose of identification of the
accused. State v. Abdul Mazid, 1961 (2) Cr.L.J. 458 (Assam).
5. In case he joins parade under compultion even, this will not render the
identification evidence void under Article 20 (3) Constitution of India.
This cannot be said by itself to furnish any positive volitional
evidentiary act. Peare Lal v. State, 1961 (2) Cr.L.J. 462 (Cal.) . See
para 12 of “Some Conclusions”.

Identification Parade by Police

The identification parade should not be held by the police officer himself.
There is no doubt that there are provisions in the police rules of different
provinces that a parade can be held by a police officer of the suspect in the
presence of two respectable witness. This, however, presents legal
difficulties and police officer should avoid holding the parade himself.
It was held in Bhaya Lal Singh v. State, 1952 V. P. 7 and 1952 Cr.L.J. 986
(V. P.). Kartar Singh v. State that identification by an Investigating Officer
was defective due to the following points:
1. It is not advisable on the ground of expediency alone, the I.O. being
naturally interested in the success of the case and is likely to show
improper zeal. In re Narayan Singh, Amar Singh, (1965 M.P. 225).
2. It presents a legal difficulty as the witness makes a statement at the
time of picking up an accused person and such statement being in the
course of investigation, is hit by section 162 as inadmissible.
In the Calcutta ruling 1943 Cal. 544, Khaluruddin v. Em . legal aspect was
explained at length as to bow the picking up is hit by section 162 Cr.P.C. It
was held, “Section 162 embraces all kinds of statements made to police
officer in the course of an investigation. The evidence of the fact of
identification is nothing but the evidence of the statements which constitute
an identification in a compendious and concise form. Any identification of
stolen property (or suspect) in the presence of police officer during
investigation is a statement made to the police officer during investigation
and, is, therefore, within the scope of section 162 Cr.P.C. The pointing out
by finger or nod of assent is answer to a question is as much a verbal
statement as statement by word or mouth.” The High Courts of Allahabad,
Mysore, Nagpur and Madras have also held so.
Section 9–Test Identification Parade–Police asking witness as to whether
he could identify the persons who were on scooter and who threw bomb
towards deceased–Witness replying in affirmative–Accused persons shown to
him for identification and he identifies them–It could not be held to be test
identification parade. Ahmed Bin Salam v. State of Andhra Pradesh, 1999
Cr.L.J. 2281 SC.
If at all the parade is held by a police officer, he should show what
formalities he observed. There are some occasions when a police officer
while searching the accused comes across him and the complainant at once
points out him. In such a case identification afterwards before Magistrate
becomes farce.
 Section 9–Identification of accused–Evidentiary value–Identification
parade held two months after incident and about seven weeks after arrest of
accused–Would be considerable eroded of its evidentiary value. Manepalli
Anjanegulu v. State of A.P., 1999 Cr.L.J. 4375 A.P.
Section–Identification Parade–Mass rape case–Persons who committed
offence not known to victim earlier–Investigating agency should conduct
identification parade. Ramchandran v. S.H.O. Annamalai Ngr., 1999 Cr.L.J.
1180 Mad.
Identification evidence–Rape case–Name of another accused who
alongwith named accused alleged to have committed rape not mentioned in
F.I.R. Absence of identification parade, fatal–Prosecutrix even denied
suggestion that said accused had been working at her place–Identity of said
accused not established–He cannot be held guilty. State of Himachal Pradesh
v. Lekh Raj, 2000 Cr.L.J. 44 SC.
Section 9 of Evidence Act–Murder–Test identification not held even at the
request of accused–It created doubt whether eye witness saw the
occurrence–Acquittal upheld, inter-alia, on this ground. State of U.P. v.
Srikrishan, AIR 2005 SC 762.
Test identification parade held after the picture of the accused appeared
in newspapers cannot be relied on to determine the identify of the accused.
Ravi v. State of Kerala, 2004 (4) RCR (Cri.) 561.
Evidence Act, Section 9–Murder Identification Parade–Occurrence
witnessed by nephew of accused–The witness identified the accused in court,
there was no need to hold test identification parade in the circumstances.
State of H.P. v. Premchand, AIR 2003 SC 708.
Evidence Act, Section 9–Murder–Test identification parade, Accused not
known to PWs–Accused identified by only one PW in test identification
parade as well as in court–Evidence of identification by solitary witness
should not be accepted as it is not free from all doubt. Dana Yadav @ Dahu v.
State of Bihar, AIR 2002 SC 3325.
Identification Parade–Murder–Witnesses already knew the accused and
mentioned their name in F.I.R.–No identification parade held–Conviction of
accused on basis of identification in court upheld–Factum of recognition and
placement of the names in the F.I.R. practically do away with the
requirement of the test identification parade. Sarwan Singh v. State of
Punjab, AIR 2002 SC 3652.
Evidence Act, Section 9–Identification by torch light–Offence of murder in
dark light–Accused started running–It is very difficult to identify a person
who is running and showing his back. Reddi Appal Naidu v. State of A.P.,
2002
Cr.L.J. 378.
Evidence Act, Section 9–Identification by voice is possible only if person
is known very well and he alone speaks when all the accused (about ten)
were talking with each other it is not possible to identify all of them,
however, one or two persons can still be identified–Identification by voice is
a very weak piece of evidence and it is not safe to convict the accused on
that score. Reddi Appalnaidu v. State of A.P., 2002 Cr.L.J. 378.
Test identification parade and dock identification–Accused refused test
identification parade. Identification parade held in court after 7-8 years–
Identification done out of 14 persons–Evidence showed that eye-witnesses
had gained enduring impression to identify of accused during the incident–
Delay would not affect the accused evidence of eye-witness. Daya Singh v.
State of Haryana, AIR 2001 SC 1188.
Evidence Act, Section 9–Test Identification Parade–Where evidence is
cogent, consistent and without any motive, it is no use to imagine and
magnify the theoretical possibilities with regard to the state mind of the
witnesses and with regard to their power of memorising the identify of
assailant–Power of perception and memorising differs from man to man and
also depends upon situation. Daya Singh v. State of Haryana, AIR 2001 SC
1188.
Section 9–Evidence Act–Identification of the accused in test identification
parade–Accused/appellants committed dacoity in the house of PW5–PW5 had
identified appellants in Test Identification Parade but failed to identify them
in court during trial–Held–Evidence to test identification is admissible under
section 9 of Evidence Act. Such evidence is, however, only a supporting one
and could be used only to corroborate substantive evidence. Conviction could
not be sustained only on the basis of evidence of identification parade but
failed to identify accused in court during trial. Sanjay v. State of M.P.,
2011(1) Crimes 161.
Section 9–Evidence Act–Identification–The prosecution witnesses can
identify the accused persons even from distance where the accused persons
are well-known being the resident of the same village. Rakesh v. State of
M.P., 2011(4) Crimes 193(SC).
Section 9–Evidence Act–Identification–It is fairly setteled that
identification of the accused in the court by the witness constitutes the
substantive evidence in a case although any such identification for the first
time at the trial may more often than not appear to be evidence of a weak
character. That being so a list identification parade is conducted with a
view to strengthning the trustworthiness of the evidence. Such a Test
Identification Parade then provides corroboration to the witness in the court
who claims to identify the accused persons otherwise known to him. Test
Identification Parade, therefore remain in the realm of investigation. The
failure of the investigating agency to hold a test identification parade does
not, in that view, have the effect of weakening the evidence of identification
in the court. As to what should be the weight attached to such an
identification is a matter which the court will determine in the peculiar facts
and circumstances of each case. Sheo Shankar Singh v. State of Jharkhand,
2011(2) Crimes (SC).
Identification Parade–Robbery in bank–Accused persons had committed robbery in
the bank. The occurrence was at 7.20 pm. At the time of occurrence, the bank personnel
including Manager and Cashier were working and settling the accounts and were about
to close the bank. There were enough light inside the bank. The alleged accused
entered the bank and asked Manager to open bank account. The accused persons took
out a revolver and other weapons. The incident lasted for a brief period during which
the accused persons were talking to each other. They were so conversing lifting their
visors, they were able to see the culprits. Immediately after the incident, Manager
lodged the complaint before police station wherein he gave the descriptive particulars
of the three culprits namely their age, height colour complexion, etc. and also given the
details of the weapons. Identity of the accused persons by manager and cashier were
also corroborated in the Test Identification Parade in the court. It was held that
witnesses had no reason to falsely implicate the accused persons and there was no
reason for disbelieving the testimony of the witnesses. Conviction upheld. Ajay Kumar
Singh v. The Flag Officer Commanding in Chief & Others, AIR 2016 SC 3528.
Identification parade–Pictures of the accused were already seen through newspaper
in which it was published. It was held that this is very weak piece of evidence. Fair play
was not assured. Seeni Nainar Mohammed v. State, AIR 2017 SC 3035.
Section 9–In this case the Supreme Court observed that mere failure to hold a test
identification parade is not fatal to the prosecution case but the trial judge will need to
be circumspect in accepting the identification of an accused by a witness in the court if
the accused is a stranger to the witness. Kunjumon @ Unni v. State of Kerala, 2012(11)
SCALE 212.
Section 9–It was held by the Apex Court that holding of the test identification parade
is not a substantive piece of evidence, yet it may be used for the purpose of
corroboration, for believing that a person brought before the court is the real person
involved in the commission of the crime. However, the test identification parade, even if
held, cannot be considered in all the cases as trustworthy evidence on which the
conviction of the accused cannot be sustained. It is a rule of prudence which is required
to be followed in cases where the accused is not known to the witness or the
complainant. Vijay @ Chinee v. State of M.P., 2010(8) SCC 191.
Section 9–Test identification parade–It was held by the Apex Court that the Test
Identification Parade do not constitute substantive evidence. They are primarily
meant for the purpose of providing the investigating agency with an assurance that
their progress with the investigation into the offence is proceeding on right lines. The
test identification parade can only be used as corroboration of the statement in court.
The necessity for holding the test identification parade can arise only when the accused
persons are not previously known to the witnesses. The test is done to check the
veracity of the witnesses. Test Identification Parade is a part of the investigation
and is very useful in a case where the accused are not known before hand to the
witnesses. Mulla & Anr. v. State of U.P., (2010) 3 SCC 508.
There are also occasions when police officer has to hold parade for
identification of articles by mixing these with others as the Magistrate are
not easily available for every ordinary job. So, an I.O. under such
circumstances should always take two respectable witnesses and he must
satisfy that he takes all the necessary precautions. In such cases the factum
of identification before police can still be proved in court though the
accompanying statements as to what was told by the witnesses at the time of
identification may be inadmissible under section 162 Cr.P.C. The fact of
identification by actual identifier is not hit by section 162 Cr.P.C. Hon. S.
Bind Bisni Parsad, in case Darya Singh v. State, 1952 Cr.L.J. 265 at page 266
held, “A tracker can say in court that during police investigation he
recognised on a certain day at certain place, certain tracks and that the
tracks were of a particular person, if he knew him already or of a person at
the scene of crime, he did not know him already.” The similar view was taken
in 1949 Cal. 514, where it was held that the communication of his own
mental act of recognition and identification to the police was what was hit by
section 162 Cr.P.C. but evidence in the court subsequently by actual
identifier himself was not inadmissible under section 162 Cr.P.C. This view
was approved in Ram Kishan Mithal Lall v. State of Bombay, 1955 SC 104 .,
where it was held, “the only exception being the evidence sought to be given
by identifier himself in regard his mental act of identification which he
would be entitled to give by way of corroboration of his identification of the
accused at the trial.” In 1956 S.C. 526 Santa Singh v. State of Punjab , a way
out for guidance of police (if they have to hold the parade) is suggested. The
parade after being arranged should be left by police to be conducted by
Panch witnesses who would call witnesses and ask them to pick-up accused.
The statement of such witness to panch witness as to whom he had come to
pick-up and where he had seen him (at the spot) would be admissible. The
statement of identifying witnesses as such would be outside the purview of
section 162 Cr.P.C.

Conduct of Parade and Precautions

The Panches who are selected for holding the parade by the police in
accordance with Supreme Court’s verdict in Santa Singh v. State supra
should be diligent, respectable and impartial. They should be told the
precautions they are to take during parade as a minor omission in the
necessary procedure will make the identification proceedings doubtful. The
proceedings should be conducted in such a way as not to leave any room or
loophole to create the slightest suspicion in the mind of court. The panches
should, therefore, exercise the utmost scrutiny and vigilance at the time of
test identification parade. Samunder Singh v. State, 1953 Cr.L.J. 1452:1953
Raj. 182.
The parade should, therefore, be arranged;
(i) Always through a Judicial Magistrate if he is available as he has
powers to record statements witnesses of under section 164 Cr.P.C.
 (ii) In case Judicial Magistrate is not available, then any Magistrate can
hold parade. The position and the prestige a Magistrate holds
eliminates any possible criticism of bias or prejudice.
In case 1970 Cr.L.J. 1422, Supreme Court held that where a
Magistrate having only third class powers recorded statement of
identifying witnesses in support of the identification of accused and
also recorded what the witnesses had said after identifying particular
accused, this statement, would be inadmissible as being in
contravention of section 164 but this would not apply to the record
made by him to the effect that the witnesses correctly identified the
accused.
In Sher Singh 1991 Cr.L.J. 2612 (Del.) –Test Identification Parade
memo filled up by Magistrate on dictation to clerk held, procedure
improper.
(iii) Any other independent person may conduct them so long as he
conducts them fairly and he is competent to give evidence under
section 9 Evidence Act. It may be village panches, by doctors,
revenue officers and the like. See In re Narayan Singh Supra . In this
case the police should complete by obliterate itself from the parade
and leave it to the exclusive direction and supervision of the panch
witness. Statement of identifying witnesses to them will not be hit by
section 162 Cr.P.C. Ram Kishan Mithan Lall Supra, Jamena Dass
Parshram, 1963 M.P. 106.
Identification parade–Parade conducted by Special Executive Magistrates
(SEM). Held that non-judicial Magistrate or honorary Magistrate such as a
Executive Magistrate should preferably conduct an identification parade–In
this case, Identification parades were conducted by Special Executive
Magistrates. Yakub Abdul Razak Memon v. State of Maharashtra through CBI
Bombay, 2013(2) KLT(SN) 75.

Precautions
1. The witnesses who are to take part in parade should be kept at a place
from which they cannot see the proceedings and it should be ensured
that they had not seen accused before parade commenced.
2. The thumb impressions of all participants and also the accused should
be obtained on the list against the name of each to ensure that at any
late stage, they do not deny the participation.
3. Everyone including police should be excluded from proceedings.
4. The accused to be mixed with non-suspects should be of the same
religion, and about same age and description and their list is
prepared. The discretion of accused of missing persons of his choice
may be taken. The ratio should be 1 to 6 (other persons) at least.
5. The accused should be given opportunity to change adresses, places,
every time before arrival of each witness.
6. The objection of accused to be recorded if any.
7. Witnesses to be called one by one through the person who has not
seen proceedings or who is kept out of who remains in sight so that he
does not communicate with witness.
8. Every witness to be questioned before parade for not having seen
accused before parade and after occurrence and also record his
statement regarding part delayed by accused during occurrence.
9. Such witness after participation should be excluded from other
witnesses whose participation is yet to be taken so that they do not
communicate with each other.
10. The precaution should be taken to exclude possibility of pre-
ranged signals like touching the ear, cough, etc. when the identifying
witness reaches the parade.
 11. In case the accused has some special mark which is visible, two
identification parades should be held. The first parade should be by
covering the said mark with similar covering applied on the same
parts of the bodies of the other participants. The second parade
should be without concealing any such mark.
12. The panches should make a true record of all the proceedings,
whether witness have correctly, wrongly or failed to identify any
accused. The procedure of taking only notes at that time and
subsequently preparing the memo is defective.
13. A certificate should always be given that proceedings have
correctly been taken.
Is it the right of the Accused to demand an Identification Parade?
If the witness does not know the culprit before the occurrence then
holding of a Test Identification Parade is necessary. Sometimes the police
officer does not deem it necessary to arrange parade as the culprit is named
or witness know him before. The accused, however, disputes witness’s ability
to pick him and applies for arranging a parade at the stage of investigation
or challaning of the accused.
It was held in Amer Singh v. Emperor, 1943 Lah. 303 that whenever an
accused person disputes the ability of Prosecution Witnesses to identify him,
the court should direct an identification parade to be held save in the most
exceptional circumstances.
From the mere fact that accused and such witnesses live in near villages,
the court should not prejudice that the accused has suborned these
witnesses and reject the prayer for identification. For it is impossible to
assume this until these witnesses have not only failed to identify the
accused, but have also been examined in court with regard to the matter
whether the failure to do so is in collusion with the accused. It will be
always a point for determination as to what these exceptional circumstances
are. An accused will only take risk where he had won over the witnesses and
is sure that they would not be able to touch him in parade. It is, therefore,
very difficult to arrive at the conclusion on mere application of accused as to
what these exceptional circumstances would be.
In the Lahore case above-mentioned, it was not, however, decided as to at
what stage this application is tenable. This Lahore ruling was dissented in re
Sangiah 1948 Mad. 113 where it was held that parade should be held during
the stage of investigation as this type of evidence belongs to police. The
evidence which is given in court regarding identification is the actual
evidence. The fact of failure to identify can be relied upon by the accused
but he cannot demand that an identification parade should be held at or
before the enquiry or trial if the accused disputes the ability of Prosecution
Witnesses to identify him either by name or recognition.
The trend of ruling is, therefore, to lay down that the parade can be
arranged during the stage of investigation. As the case is not before the
court, the application demanding parade should be marked to the police and
the police can, even bring them into the notice of the court the exceptional
circumstances and the court can then decide if it should be held or not. It
was held in State v. Raghuraj Singh, 1970 Cr.L.J. 78 (All.) that holding of a
Test Identification Parade is merely a step in the investigation of a crime
and it is entirely up to the investigation agency to decide as to whether it
would hold a test identification parade or not and if it decides to do so, the
value for it. In this case the court could not compel police to hold parade at
Bulandshahar when the accused was wanted at Badaun; witnesses belonged
to that District and Courts at Badaun had alone jurisdiction. This was in
spite of plea of accused that if he is taken to Badaun, he will be shown to
witnesses. In State v. Ghulam Mahiuddin, 1951 All. 475 , this point was also
touched. It was hold that court cannot make an order for the holding of a
regular identification parade at the instance of an accused, at the
commencement or during the course of trial, there being no provision to this
effect in the Cr.P.C. What the court should do is to satisfy itself by asking
the accused to stand among other persons present in court and then call
upon the witness to pick-up the accused from amongst these persons and
make a note of the result in the record. The dictum is in consonance with the
law that court cannot order reopening of investigation. The principle that an
identification is only part of the investigation was admitted in Narender
Singh, 1957 Cr.L.J. 243 (Raj.). It was held that once a case is challaned the
investigation is over and if the prosecution desires to hold a parade later, it
can only do so with the approval of the court which is seized of the case.
The result is that the accused has neither a right to claim the Test
Identification Parade at any stage of the case. During the stage of
investigation, and when there is other evidence to prove the complicity if
accused in the crime. Harbhajan Singh AIR 1975 SC 1814 , the parade should
be arranged save in the most exceptional circumstances. However, the rule
of prudence should be to arrange a parade when the accused demands it. It
was so held in Aligan Immam Ali, 1968 Cr.L.J. 9 (All.) In Indunath Singh,
1971 Cr.L.J. 30, the Supreme Court held that the fact that there was no
provision in the Cr.P.C. for identification was not material. If there is doubt,
even though witnesses name the accused, the parade should be ordered.
However, non-holding of parade does not vitiate trial and if there is other
evidence conviction can be based on it nor accused person as of right can
demand Test Identification Parade or dictate venue of Test identification
Parade. Ramphal Tiwari, (1986) 2 Crimes 411 (All) . Court should allow
parade even if the prosecution claims that accused is known to the
witnesses. So, held in 1974 Cr.L.J. 240 Joginder Singh.
In 1954 Pat. 413, Awadh Singh v. State it was held accused persons may
or may not have legal right to claim for test identification and the holding of
Test Identification may not be a rule of law, but it is rule of prudence, no
doubt, that in such cases test identification parade should be held especially
when the accused persons definitely assert that they were unknown to the
Prosecution Witnesses either by name or by face and requested the
authorities concerned to have the Test Identification Parade held. The non-
holding of the Test Identification Parade may not be a ground to vitiate the
trial, yet it is undoubtedly a very important feature is considering the
credibility of the witnesses on the point of identification. Similar view was
taken in Lajja Ram v. State, (1955 All. 671, 1955 Cr.L.J. 1567) where it was
held, “Although the accused has no right to claim identification, if the
prosecution turns down his request for identification it runs the risk of the
veracity of the eye-witnesses being challaned on that ground.” It was further
held that heavy duty rests with prosecutor to nullify the criticism of defence
that in case of parade, witnesses could never have identified the accused. It
was held in 1965 Punjab 146 Tek Chand v. State that whenever accused
demanded parade, it should be held.
Mr. Justice K. Sahai of Patna High Court examined the scope of Awadh
Singh’s case in State v. Dhanpat 1960 Cr.L.J. 1961 and held, “It seems to me
that the Magistrates and the police officers suffer from some confusion on
the question of holding test identification parade. If the witnesses do not
give the name of any accused they rightly think that it is necessary to hold
Test Identification Parade and a parade is almost invariably held. Where,
however, a witness gives the name of an accused as one whom he was
identified. They think that no Test Identification Parade is at all necessary.
That is ordinarily correct, but if an accused holds out a challenge and says
that he will not be identified by the witnesses or makes a prayer that he
should be put upon a Test Identification Parade such a parade must always
be held in order to meet the challenge.
If it is not held, there will always be a doubt in the mind of the Judge or
the trying Magistrate, that possibly, the witnesses may not have been able to
identify the accused; if a parade had been held. This will mean the failure of
the case. From this point of view I entirely agree with the principle laid
down by Chaudhri J Awadh Singh, (1954 Cr.L.J. 1546) . There must, however,
be one exception. If the accused is arrested on the spot and if he is in
custody from that time up to the date of his trial, there can be no question at
all about his identity. If a parade is held. It will only be a test of the memory
of the witness or witnesses concerned. It cannot be possibly a factor of any
importance on the question of identification because the respondents all the
time remained in jail.” If the accused is arrested on the spot, there is no
necessity for the State to hold the identification parade as held in 1971 SC
708 (1988 Cr.L.J. 319). State of U.P. v. Raju ; further held “if the accused felt
that the witness would not be able to identify them they should have
requested for an identification parade.” The parade should invariably be
arranged, if accused requests even when arrested on spot. It will be to test
the credibility of the witness who actually helped or effected the arrest of
the culprit. State of U.P. v. Jagnoo, 1968 All 333 . In Ashrafi’s Case, 1961
Cr.L.J. 340, it was advised that parade should always be held if there is force
in the contention of the accused. The Court has powers under section 453
Cr.P.C. for this direction. In Shri Ram, 1975 SC 175 , it was held that in case
accused had demanded parade at the earliest stage and it was denied by
prosecution, it was a strong point in favour of accused.
Section 9–Identification parade–Failure to hold even after demand by
accused–Not always fatal. Surendra Narain alias Munna Pandey, 1998 Cr.L.J.
359 SC.
Test Identification Parade–No inordinate delay–In this case the accused persons
were produced for the Test Identification Parade after their arrest within reasonable
time. The purpose of Test Identification Parade is to ensure that the investigation is
going on the right track and it is a merely corroborative evidence. One prosecution
witness identified all the seven accused appellants in the court as well as in the Test
Identification Parade. Sheikh Sintha Madhar @ Jaffar, AIR 2016 SC 1844.
Identification Parade–In this case, a person was arrested and the identification
parade itself was held 25 days after the arrest. Their chance meeting was also in the
night without there being any special occasion for them to notice the features of any of
the accused to identify them on a future date. The court held that such identification
simplicitor cannot form the basis or be taken as the fulcrum for the entire case of the
prosecution. Prosecution failed to establish the case against the appellant; Mohd. Sajjad
@ Raju v. State of West Bengal, AIR 2017 SC 642.

Special Features of a Person and his Identification

It is very often seen that person to be identified has a certain mark or
defect. It is natural that a witness will be able to pick-up certain
characteristic marks, and physical deformities, scars, tatoo marks, etc., at
the time of parade with the help of these marks. There should be nothing
wrong about it, “In 31 Cr.L.J. 1017, it was held that if a man had wart or
defect, on his face, it may be good means of identifying him and he should
stand his chance. In Chander Singh 1973 Cr.L.J. 926 (S.C.) the accused with
brown eyes when none other had brown eyes in the identification parade was
given the benefit of doubt.
Section 9–Identification Modes–Through the shape of the body clothes,
gait, manner of walking etc. Identification is possible by voice too. Kedar
Singh v. State of Bihar, 1999 Cr.L.J. 601 SC.
Section 9–Test Identification Parade–Authenticity–Accused persons had
ampulated legs–This distictive marks in their bodies not taken note of while
conducting identification–Evidence of identification cannot be relied upon–
accused entitled to benefit of doubt. Tulsi v. State of U.P., 2000 Cr.L.J. 3080
All.
Section 9–Test Identification Parade Authenticity–Accused having small
pox marks on his face person with such distinctive feature not mixed up with
accused while conducting identification–Evidence of identification cannot be
relied upon–Accused entitled to benefit of doubt. Tulsi v. State of U.P., 2000
Cr.L.J. 3080 All.
Section 9–Test Identification Parade–Accused having beard and long hairs
at time of commision of crime as mentioned in F.I.R. though he had removed
same at the time of test identification parade–No person with beard and long
hair included in parade–Witnesses alleged to have identified accused at first
sight though he had removed beard and long hair–Possibility of witnesses
having seen accused between date of arrest and test identification parade–
Not ruled out–Identification parade held after inordinate delay of about 5
weeks from arrest of accused–Explanation for delay not trustworthy–Plea as
to non-availability of Magistrate in city like Bombay, though investigating
agency was not obliged to get parade conducted from specified Magistrate
cannot be accepted held, accused was entitled to benefit of doubt. Rajesh
Govind Jagesha v. State of Maharashtra, 2000 Cr.L.J. 380 SC.
But the possibility is not less that witness was told a certain peculiarity
and with the aid of that he picked the suspect in the parade. Courts will have
to exercise more judicial vigilance in such cases. It is, therefore, advisable
always in such cases to tell all the persons in the parade to cover up the
defect or fix pieces of papers on the particular point of defect of every
participant in the parade. The accused and the persons with whom he is
mixed up should not be easily distinguishable from each other. 1923 All. 137.
The procedure of covering the corresponding eye of every person in the
parade for the identification of one-eyed man was held to be very
satisfactory as no undue advantage was taken to procure the identification of
the concerned.
It was held in 1950 All. Cr. Cases 91 that it is the duty of every
Magistrate holding parade to take steps to cover visible marks which are
likely to facilitate the identification or to mix the accused with other persons
having similar marks. A failure to do so is sufficient to discredit the
identification evidence.
In 1953 Cr.L.J. 1452 (Raj.) Nanga v. State , Nanga accused had black
marks on his forehead and cheeks. The evidence was not conclusive if the
identifying Magistrate had not taken any precautions to conceal these marks
at the time of parade, it was held, “A person who had such distinguished
features, could easily be identified and it has not been shown by the learned
Magistrate in his proceeding of identification that any precaution was taken
by him to conceal these marks at the time of identification parade.”
It is, therefore, necessary that the Magistrate holding the parade should
make a note of certain features of the accused if these are permanent and
should take necessary precautions about them. 1955 Cr.L.J. 396 (All.) State
v. Ram Avtar, the Magistrate holding the parade did note that the accused
had smallpox marks or blackish patch on the skin of nose, it was held that it
was a defect in a parade reducing the value of identification.
In concealing these marks, precaution should always be taken that it is
within reasonable limit. The covering should not be carried on to such an
extent as to disfigure the face or to make it's identification practically
impossible or extremely difficult. Their covering should not be allowed to
defeat the very object of identification. It was held in State v. Madan Lal
Jaggi, 1959 Cr.L.J. 934 (All.) that if there are so many prominent marks that
they cannot all be covered without rendering the identification practically
impossible or extremely difficult; they should not be covered at all otherwise
there would be instantaneous failure because the accused will not be
identified by any one and for no fault of witnesses. In such cases, question
will arise subsequently whether the witnesses identified the accused on
account of their information that he had such marks or on account of their
having seen him committing the crime. This is essential a question of the
credibility of the witnesses and it is always better to face this question than
prevent all identification by completely distinguishing the face.” The object
why concealment of these marks is necessary has been explained in Dhani v.
State, 1960 All. L.J. 301 in these words:
“The object of covering the marks with slips of papers is only to ensure
that the marks in question are not described by interested police officials to
the witnesses waiting outside the jail gate. From this, it necessarily follows
that only such marks should be concealed which are so prominent that a
description of them can be given in words; faint marks or marks which are
commonly found on faces of persons hailing from the rural area cannot be
described in words and consequently do not require to be concealed under
slips of paper.”
In 1958 Cr.L.J. 996 Gopal v. State the accused and two others who had
their ears bored were to be identified out of 25 persons, 10 of whom only
had their ears bored. It was held that in view of the fact that no steps were
taken by the Magistrate to cover up the bored ears, ‘the assurance which
flows from the mixing of a large number was not available.’ The accused was
given benefit of doubt. This ruling was not deemed to be an authority in
Ashrafi’s Case, 1961 Cr.L.J. 340 (All.) where it was held that bored ears
should not be concealed if there are sufficiently available persons with bored
ears to be mixed with accused in jail. The reason was that description of
bored cars cannot be described.

Statement of the Witness at the time of Identification Parade

The statement of the witness at the time of parade as whom he had come
to identify and where (at the time of occurrence) he had seen him, should be
recorded by the Magistrate holding the parade. Merely picking out would
mean nothing. The statement is not a substantive piece of evidence.
The relevancy of such statement was examined in Sarju v. State of W.B.,
1961 (2) Cr.L.J. 71 and it was held”. When a witness makes a statement
before a Magistrate holding a Test Identification Parade. The statement
whether treated as having been made under section 159 or under section
164 Cr.P.C. will be available for corroboration under section 157 Evidence
Act as well as for contradiction under section 145 Evidence Act.
The principle as laid down in 5 Lah. 396 is still good law, “that principle
evidence of identification is the evidence of a witness given in court (as such
as witness must be produced in Court). The statement made by such a
witness at an identification parade might be used to corroborate his
evidence given in Court but otherwise the evidence of identification parade
can only be hearsay and as such not admissible in evidence.”
See, however, State of A. P. v. K.V Reddy, 1976 SC 2207 where the factum
of identification without making a statement with regard to specific part
played by accused, was hold to be relevant.
This statement otherwise also is a very strong piece of evidence.
Sometimes, the evidence of a witnesses is recorded sufficiently long-time
after parade and in the meanwhile the accused has changed a lot. If the
witness shows his inability to pick him up in court that he was unable to
identify due to the lapse of time and also because the appearance of the
accused had changed a lot of during the interval, then his statement that he
correctly identified certain persons who were dacoit, at the time of Test
Identification Parade in jail would be admissible in evidence (See 1952 All.
223 and 1927 Oudh 339).

Some Conclusions
1. The witness who identifies a culprit must be produced and he must
state in court if he picked up the accused in the Test Identification Parade
earlier.
If he does not state so. “The defence would be deprived of an opportunity
of cross-examination for the purpose of showing that the witness had an
opportunity of seeing the accused before they were brought for
identification.” C.P. Farnandes, 1977 SC 135.
 2. The witness produced must be able to pick-up the accused in court
while giving evidence, or give reasons for not pointing, out the culprit, and it
would be then only that his previous identification in jail would be
admissible. As a general rule the failure of a witness to identify the accused
in court when he had identified at a previous identification parade
perceptibly weakens his evidence in court. See 32 Cr.L.J. 162 and 1956
Orissa 177 Bhana Shaw v. State (Para 23).
It was held in 1983 Cr.L.J. 848 Satya Narain v. State that the evidence of
a witness against an accused is the direct statement made in court that he
was one of the offenders. His earlier identification of him is simply a
corroboration of the evidence given by him in court. The identification by
itself has no independent value. 1988 Cr.L.J. 264.
Therefore, if a witness fails to identify an accused in court, then previous
identification would be of no use to the prosecution and lose much of the
force of his evidence. As such it was rightly observed by Hon. J. Rowland in
1939 Pat. 35 at page 39 , “Personally I see no magic about Test
Identifications. The evidence on which the court has to act is the
identification by witnesses at the trial and the question is, “are the
witnesses to be believed or not.”
3. The Magistrate who holds the parade must be produced in court to give
evidence in detail. The production of memorandum of parade and its
exhibition in court is not sufficient. Conviction cannot be based on chart
alone 1986 Cr.L.J. 684.
In criminal appeal No. 520 of 1953 (the Punjab High Court) where
evidence of Magistrate was only that, “Ex. P.M. is the correct record of the
proceedings which I prepared and it bears my signatures.” Mr. Justice Kapur
of the Punjab High Court held “It appears that neither the attention of the
learned Sessions Judge nor that of the Magistrate has ever been drawn to a
judgement of the Lahore High Court in Lal Singh v. Crown I.I.R. 5 Lah. 396
where Justice Dforde sitting with Mr. Justice Broadway laid down the method
of recording the evidence of witness. It was held where the identification is
held in jail, the Magistrate cannot merely refer to certain document which
are described as Exhibits in which he states his evidence is to be found. This
method of recording evidence was not only held contrary to law but violated
the first principle of evidence and such evidence has to be ignored.” In 1957
Cr.L.J. 678 (Punjab) Resham v. State , it was held that record of parade
cannot be regarded as a statement made by him in the ordinary course of
business and as such document cannot be admitted under section 32(2)
Evidence Act and treated as substantive piece of evidence. If the Magistrate
is not available, some other person in authority who was present when the
parade was held must be produced. It was held in 1964 All. 290 (FB.) that
memorandum of identification proceedings held by Magistrate acting under
section 164 Cr.P.C. is not admissible under section 80 Evidence Act. It must
be proved.
4. Sometimes it so happens that memorandum of identification, prepared
at the time of identification is lost. In that case, secondary evidence can be
given. In Guddar Singh, 1954 Cr.L.J. 302 (Punjab) it was held that the mere
fact that there was no memorandum produced would not show that the
accused were not identified at the time of commission of the offence.
5. There must be an identification parade if the witnesses do not know the
accused before the commission of crime, “Failure to hold a parade does not
make inadmissible the evidence of identification in Court.” 1958 Cr.L.J. 350,
Kanta Prashad.
Section 9–Test Identification Parade–Eye-witnesses not seeing accused for
first time–Name of some of assailants mentioned by eye-witness even in
F.I.R. which he lodged soon after occurrences–Failure to hold test
identification parade would not vitiate evidence of eye-witnesses. Pammi
alias Brijendra Singh [Link]. of M.P., 1998 Cr.L.J. 1617 SC.
 Section 9–Test Identification Parade–witnesses friends of deceased had
opportunity to interact with accused persons while entering place of
incident–Evidence of identification of accused at their trial by said witnesses
can be relied upon even without corroboration of identification parade.
Ronny v. State of Maharashtra, 1998 Cr.L.J. 1638 SC.
As held in 1951 Cal. 475 the fact of identification of accused by witnesses
in court is of very little consequence, when none of the witness knew the
accused before. This identification cannot be accepted as sufficient evidence
unless there is good corroboration and the corroborative evidence which one
is entitled to expect, is the evidence of witnesses having pointed out the
accused persons when they identified in court from the midst of other
persons with whom they were mixed up at the time of identification parade.
It was held in 1953 Cr.L.J. 848 Satya Narain v. State , it cannot be said that
on account of absence of identification proceedings, the entire sworn
testimony of witnesses should be discarded but rule of caution and prudence
requires that there should be corroboration of this evidence in the shape of
identification parade evidence. In Rameshwar Singh, 1972 Cr.L.J. 15 (SC) .
The witnesses had named the accused in their police statements when
examined in court, they stated that they did not know the accused. No
parade had been held earlier for obvious reason. Held by Supreme Court that
in absence of parade and police statements not being substantive evidence,
no reliance could be placed on the statements of witnesses made in court.
Also see 1977 Cr.L.J. 1788 Ram Bahadur .
6. It is very often experienced that the suspect refuses to join the parade
on the plea that he had been shown to the witness. He cannot be legally
compelled to take part in the identification proceedings. In such cases, the
Magistrate should record the statement of the accused. The presumption in
such cases, that if the accused had joined, he would have been correctly
identified, would be against the accused as held in 1962 P.L.R. 142 Narain
Singh v. State, though it is not such a presumption as can be conclusively
relied upon to infer guilt of accused. State v. Lavinder Singh (H.P.) 1973
Cr.L.J. 1023. Accused refused to join parade, adverse presumption will be
taken against him as held in Mulkh Raj Sikka 1974 SC 1723 . If during the
trial, the witness identifies the accused in the dock then it would be
sufficient identification. During the trial the evidence of such refusal shall
be led in favour of the prosecution by producing the Magistrate concerned.
If the refusal to join the parade is due to the fact of accused saying that
he had been shown to witnesses by police; then the later identification in
Court has no value. Lotan Yadav, 1985 (1) RCR 127; 1985 Cr.L.J. 484 . In this
case the police inspector arresting the accused had not stated that he had
produced the accused in court with muffled face. Non the application for
remand and the order of Magistrate there had mentioned that accused was
presented in court with muffled face.
Effect of the refusal of accused person to undergo an Test Identification
Parade–If prayer for Test Identification Parade has been made before the
Court and accused person refused to undergo Test Identification Parade,
then the finding of guilt cannot be based purely on that refusal of the
accused person to undergo an Test Identification Parade. Rajesh alias
Sarkari v. State of Haryana, 2021 Cr.L.J. 206 (SC).
In case of refusal of accused to join parade the I.O. in order to satisfy
that it was the accused who really took part in the crime, should depute
witnesses who were to identify accused, to go with two respectables, outside
jail when the accused, is to be brought out of jail along with several others
for production in court on the next date. There, the witnessess can point out
the accused to these respectables from amongst other, if they really identify.
The witnesses can, later, verify if accused was the real person. This evidence
can be led legally under section 9 Evidence Act is not hit by Section 162
Cr.P.C. The statements of these persons can be recorded under section 161
Cr.P.C. later.
It also sometimes happens that an investigator starts for search of
accused in the presence of complainant or witnesses and comes across the
accused whom complainant or witnesses immediately identifies. This conduct
of complainant will be relevant under section 8 Evidence Act. As regards
witnesses, the fact that they saw the accused under such circumstances
would be relevant.

Dock Identification
As discussed above in Para 2, the evidence of a witness for identifying
accused in court is only substantive evidence. But the question arises if Dock
Identification for first time in court at the time of giving evidence will be
sufficient for conviction or not. The question arose in State v. Shankar, 1988
Cr.L.J, 780 (Delhi). The case Budsen, 1970 SC 1321 was referred, wherein it
was observed, the evidence of mere identification of the accused person at
the trial for the first time is from its very nature inherently of weak
character, though as a matter of general rule, the substantive evidence is a
statement made in court. The purpose of a prior test identification is,
therefore, to test and strengthen the trustworthiness of that evidence. It is
accordingly considered as safe rule of precedence to generally ask for
corroboration of the sworn testimony of witnesses in a court as to the
identity of the accused who are strangers to them, in the form of earlier
proceedings. There may, however, be exceptions to this general rule, when
for example the court is impressed by a particular witness, on whose
testimony it can safely rely without such or other corroboration. “In Delhi
case the accused had refused to join identification parade. The witness had
identified accused in dock after 1½ years at the time of giving evidence.
Held that there must be some supporting evidence to rely on Dock
Identification. Held further that all that is required is a cautious approach in
which the judicial maturity, strict adherence to rule of precedence, judicial
and pragmatic approach to evidence together with experience in human
affairs, are the factors which do guide the court in determining such
evidence.”
7. As a general rule a suspect should be mixed up with at least five other
persons similarly dressed and of the same religion and social status before
identification. This proportion of 1 to 5 was held to be the maximum in 1951
H.P. 75 Bhola Ram v. State, 1953 Cr.L.J. 705 (All.) State v. Wahid Bux . The
principle being, “The proportion of outsiders must be sufficiently large to
eliminate the chance of the accused being picked up by chance.” 1955 Cr.L.J.
31 Koli Bhagu.

Appreciation of Evidence of Identification

From the above discussion, it is apparent that, “it cannot be said that
entire sworn testimony of witnesses should be discarded merely on account
of absence of identification proceedings.” But there must be some
corroboration of the evidence of witness who says in court that this was the
culprit who committed the crime. The best corroboration is that there, must
have been an identification parade as the whole object behind identification
proceedings is to find out the real culprit to the satisfaction of the
Investigation Officer. The failure to identify in parade creates doubt about
the presence of the accused in the occurrence. Thus, an identification parade
in jail is the most useful and valuable piece of corroborative evidence of the
witness statement in court when he identifies him because the evidence
against the accused is the evidence of witness given in court. It is more
essential as the presence of accused in dock will influence the mind of the
witness to say that he is the culprit. Thus, in absence of parade, the
evidentiary value of statement in court is likely to be reduced much.
 Thus, if the only evidence against the accused is of identification, it
should be tested in the light of the following observations:
(a) The number of mistakes committed by the witness in picking up
wrong persons.
(b) Consistency of the identification made at different times.
(c) Sufficiency of number of persons mixed with the accused at the time
of the parade.
(d) If the Magistrate had taken an intelligent interest in the proceedings
by observing the procedure to its minutest details. “The proceedings
thus conducted ought to leave no room or loophole to create the least
suspicion in the mind of the court. There is a duty cast upon the
officer to make a thorough enquiry. He should ask the accused
whether he had been taken round anywhere just to satisfy himself
(the Magistrate) whether there could have been the remotest
possibility of the injured having seen the accused.” 1953 Cr.L.J. 785-
367-692-898.
(e) Whether witnesses had seen the accused, whether they are close
enough to the accused about the time of the alleged occurrence and
taken some prominent part which impressed the witnesses in the
matter of identification and if there was sufficient light, 1961 (1)
[Link]. 22 (All.) Anwar.
(f) What was the condition of the eyesight of the identifier?
(g) What was the state of his mind?
(h) Was there anything outstanding in the features of the accused which
impressed him?
(i) Did the identifier know the accused before?
(j) Did he see him between the interval of crime and the test
identification?
(k) Was there any unnecessary delay in holding the parade? See 1989
Cr.L.J. 2106 Mohanin.
In brief the factor having bearing on identification were summarized in
Anneppa by Karnataka High Court, 1978 Cr.L.J. 462 . “Identification is,
however, one of the questions vexatious of criminal jurisprudence. In all
cases, involving personal identification there is abundant material present
for founding cross-examination such as eyesight, bodily or facial
peculiarities, the possibility of a duplication of these peculiarities in other
persons, ability of the identifier to describe accurately the manners by which
he is able to distinguish the particular person from others of similar build,
the ability of that person to retain a clear mental vision of the person he has
seen. The length of time between the identifier seeing the suspect and
parade, the possibility of external influences (photos, newspapers,
descriptions, conversations with other witnesses, etc.) as well as the actual
conditions under which the identification parade is conducted.”
Tested in the light of the above observations, the evidence of
identification alone can become the basis of conviction. Otherwise an
identification by mere voice, cannot be relied upon. This identification is all
the more risky if it is identified in the pitch dark night. See Joseph, 1964 (1)
Cr.L.J. 493,1928 Lah. 925, 30 C.W.N. 166, 1937 Rang. 407 . Identification by
voice of accused intimately known was accepted in 1965 SC 712 Kirpal
Singh. When only the hearer is familiar with the voice, identification by
voice can be accepted. Anath Bandhu, 1980 Cr.L.J. (NOC) 138 ; See also
Shyamdeo Singh, 1988 Cr.L.J. 508 . However, in 1972 Cr.L.J. 177, Narain
Baraik it was held identification by voice was weak type of evidence
especially when it was a dark night and it was raining, witnesses did not
know before and had no talk with accused. Prosecution witness claiming
identification by voice when on an earlier occasion he had any talk with him.
Held identification not reliable. 1988 Cr.L.J. 508. Recognition of unknown
person can be made in strong moonlight from a distance of 10 to 12 yards
only–Digambar Singh, 1990 Cr.L.J. 489. In Desai Kandi, 1979 Cr.L.J. (NOC)
110. Identification of accused by victim is possible without light when they
are well-known to each other and they come in close contact (Here the
modesty of identifying witness was outraged).
In such cases, however, the I.O. has to exert more. He can show that
culprits were known to the prosecution witnesses before, there was face to
face talk, there was chance of flashing of some light and that the culprits
were named immediately afterwards before some disinterested persons who
came to the scene at that time. It was held in 1954 Cr.L.J. 186 (Tripura)
Jamin Ali v. State of Tripura, “A well-acquainted person can be recognized
without mistake by voice and face, talk and more especially in flashes of
torch light.”
In Ramdeo Rai AIR 1990 SC 1180 where identification witness saw the
assailant in fluorescent light operated by a battery, held–Identification is
proper.
In Jit Singh, 1976 SC 1421. In the bright moonlight to identify from a
distance of 45 feet to 50 feet, it was held not to be difficult if a person is
already known.
8. When the accused has entered in jail, he will not be allowed to change
his appearance till identification is over. Para 814 Jail Manual (Punjab)
requires “unconvicted persons shall not be allowed to have their hair
chopped or in any other way to alter their personal appearance so as to make
it difficult to recognise them.” The police officer, as such should always
inform Superintendent Jail that an identification parade of the accused is to
be held. It is not a matter of law, but a rule of prudence.
9. A test identification parade was held in jail. The prosecutor alleged
that the parade was held in a way that there was no fair opportunity to the
witness to identify the accused and as such requested for a second parade.
Should it be arranged? This question has been replied in 1957 Cr.L.J. 243
(Raj.) Narender Singh v. State . It was held that if the challan has been sent
up then only the court can allow if it deems fit. A perusal of the ruling will
show:
(a) During investigation, a parade can be held second time.
(b) After challan, it can be held with permission of court which is
seized of the case.
(c) Court ordering it second time should verify the allegation to
justify second parade.
(d) No useful purpose can be served by second identification parade.
10. It sometimes happens that a criminal who has committed crime with a
beard gets himself shaved after committing the crime to escape
identification or vice versa. It was held in Ashrafi’s case supra that, ‘if the
Magistrate comes to entertain good case for the belief that the suspect had
indulged in such a trick, it is open to him to defer the identification of the
clean shaven suspect, until he has grown a beard of the appropriate size or
to get the bearded suspect shaved. No violation of Article 20 (3) of the
Constitution occurs if the Magistrate does so, see also Ram Swarup v. State,
1958 All. 119.
11. If the accused requests for the presence of his counsel at the test
identification, this should be allowed. The prosecutor’s counsel can also
attend. Refer Asharfi’s case Supra (1961 Cr.L.J. 340).
12. The accused can be bailed out even if the identification proceedings
are yet to take place if he gives undertaking that he would take precautions
to conceal himself or comply with directions given by court. Section 437(1)
Cr.P.C. Proviso. Identification after bail, however, becomes extremely
doubtful–Balbir Singh v. State, 1970 A.W.R. 243.
 13. Sometimes a witness has seen a criminal running or walking and he
can identify only if the accused is made to run or walk in parade. It was,
therefore held in Ashrafi’s case Supra, ‘If such a request is made, it would
be perfectly admissible for the Magistrate to direct the persons in parade to
walk or run.’ Similarly if the witness warns the people in the parade to stand
in a particular way, or wear their caps at a certain angle, or turbans in a
certain manner this should be directed. Ashrafi v. State Supra. Satya Narain
v. State, 1953 Cr.L.J. 848 (All.).
14. In an accused has a special mark or beard, two parades should be
held one by covering the mark or beard, and the other without covering.
1925 All. 405 Liajam Singh v. State.
15. Venue of parade. Sometimes an accused demanding parade or who is
to be put up for parade appears in a different district or place and applies
for identification when in fact he is required in another district and
witnesses belong to different districts. In such case, police should arrange
parade in that district of arrest or surrender of accused to avoid his being
shown. But convenience and expediency sometimes demand accused to be
transferred to district where offence is committed. The venue of parade, it
was held in State v. Raghuraj Singh 1970 Cr.L.J. 78 was to be decided by
investigating agency and proceedings are not subject to direction by court.
Section 9–Identification–To save his life, witness was running a way from
attacking accused–Witness not told investigating officer of his turning back
while running–Witness had no opportunity to identify the accused. Ramesh
Jogi v. State of U.P., 1998 Cr.L.J. 3861 All.
Section 9–Identification–Recognition of known person incident taking
place at 8.30 p.m.–Light not essential as known person can be recognised by
their gait and voice. S. Vishnu Patil v. State of Maharashtra, 1998 Cr.L.J.
3446 Bora.
Section 9–Identification evidence–Credibility–Identification Memorandum
not proved by any of identification witnesses or by Magistrate–Identification
evidence cannot be relied upon. Ali Bahadur v. State, 1998 Cr.L.J. 2871 All.
Section 9–Evidence of identification of court–Admissibility not affected
for want of evidence of earlier identification in test identification parade.
George & others v. State of Kerala, 1998 Cr.L.J. 2034 S.C.
Test Identification Parade in court room is improper. (1990) 2 Crimes 61
(Ori.).

Identification of Animals and Articles

Like men, the animal and other articles have special marks of
identification. A man, due to some association with these objects has certain
imperceptible feelings to claim these. Familiarity with thing or animal will
lead one to pick-up his own article from hundreds. It can be argued that in
the absence of some special features of an animal or a special mark of an
article when it is of ordinary common pattern, it is impossible if not so very
difficult to identify, yet some imperceptible sense will urge the real owner to
sort out that thing from amongst many. It may be due to the fact of certain
feeling, shape or addiction of use. The question of identification will,
however, be a question of fact in every case. It was held in re Govinda
Reddy, 1958 Cr.L.J. 1489 (Mys) that, ‘the impression about the general
appearance of the thing is exceedingly common, a workman has of his tools
and most people have to their dress, jewellery and other things, they are
frequently seeing, handling or using.
Observation teaches that such identification may be safely relied upon.
But at the same time a witness would not be able to formulate his reasons
for the identification since it is based upon general untraceable impression
of mind. It would be factuous to discredit such identification on the ground
that reasons are not being formulated for them.” 1954 Mad. 433 P.P.v. I.C.
Lingiah.
 The law of identification as discussed earlier regarding the accused is the
same as regards articles. In these cases, however, police has mostly to
conduct identification proceedings as the Magistrate are not easily available
for the job. There are also many other difficulties, of expediency as well as
of convenience. As laid down in 213 I.C. 166, in such cases precautions
should be taken similar to those for the identification of persons. It is always
better to arrange the Test Identification before a Magistrate. If not possible,
then these should be by two respectables, if that is also not practicable then
by the police officer in the presence of two respectables. The formalities and
precautions, as given below should be very minutely observed. A mistake in
the procedure, or an intention or unconscious prompting of the witnesses
will surely lead to conviction of a wrong person and escape of the real
offender.
1. The members of the public holding parade or in whose presence it
should be held, should be intelligent and fair minded.
2. It is always essential to prove that neither the property suspected nor
that with which it has been mixed could have been seen by witness
before hand. In this connection see the remarks of Jagain C.J. in case
1954 Cr.L.J. 1819 (V.P.) State of V.P v. Sarna Munni.
3. One article identification is bad, so it should be mixed with other
articles of about the same description. Mixing with 2 or 3 other
articles will be sufficient. Ram Bilas, 1961 (2) Cr.L.J. 746 (All.)
Similar and not identifiable articles are to be mixed. 1980 Cr.L.J.
571.
See 1940 Nag 66. Where it was held that is true that there has been
omission to take the step, i.e., mixing the stolen articles with others,
but that would not make the identification inadmissible although it
would detract the weight that would be otherwise affected to that
evidence.
4. That the witnesses were allowed one by one and that they picked up
articles correctly.
5. The factum of having seen the articles, identified in court, mixing up
with others before a police officer, will be admissible while giving
evidence, though identification before police may not be admissible
being hit by section 162 Cr.P.C. This aspect of the case has been
discused in detail under Head “Identification.”
6. The I.O. who recovers the articles attaches the ‘chits’ showing the
details with them. A care should be taken that the chits are either
removed at the time of parade or similar papers are attached with
others in such a way that readable matter is not visible.
See in this connection the following rulings for study and guidance:
(a) 1955 Cr.L.J. 830 (All.) State v. Jhabu . It was held that the
evidence of identification witness identifying stolen property
cannot be rejected merely on the ground that it was not proved
that they had not been previously shown the other articles with
which the stolen articles are mixed.
(b) 1955 Cr.L.J. 986 Kartar Singh Supra . It is unsafe to convict on the
basis of one article identification as it involves uncertainty unless
it is very distinctive in appearance. To convict anybody on the
basis of identity of articles recoveted from his house is a very
risky matter. There is always the danger of mistake. But it is
lessened when, the article is distinctive in appearance or when it
is ordinary, there are a number of them. As a measure of
prudence, the court, would insist on the proved identification of
two articles of distinctive, appearance about which there cannot
be any reasonable chance of mistake.
 (c) 1954 Mad. 433 P.P. v. I.C. Lingiah Supra . When it is found, that
respectable witness have identified their own articles of use
merely by their frequently seeing, handling and using them, it is
still to reject their testimony on the ground that identification
parades for these articles were not held and that reasons have
not been formulated by these witnesses. lt was held in State v.
Pareshwar Ghasi, 1968 Cr.L.J. 201 that ornaments can be
properly identified without any identity marks on them and that
identification evidence in Court is substantive evidence.
(d) 1983 Cr.L.J. 846 Eara Bhadrappa Supreme Court held that
identification of ornaments and silk sarees by the woman during
trial without prior test identification parade was sufficient for
proof of ownership.
(e) Mahabir v. State of Bihar, 1972 SC 642 , Case of identification of
pipes. These are commonly available in market and no distinctive
mark on them. Mere ipse Dixit that the pipes in court were there
same as stolen is not sufficient. Also State v. Wahid Bux, 1953
All. 314, where article of common pattern, no value to
identification.
(f) Balkar Singh, 1990 Cr.L.J. 77 , Articles not sealed at the time of
recovery. Identification held at Police Station, Evidence that
articles mixed with articles recovered not having marks which
identified articles born. Held doubtful.
In case of theft of animals, to prove ownership, it is strong piece of
evidence to let loose the stolen animal at some distance from the village or
house of the owner to see whether it reaches of its own accord without being
goaded, the house of the complainant. If it does so, this part of evidence
should be led. The I.O. should, however, see that this piece of evidence is
witnessed by two independent Prosecution witnesses who will support this
fact. In case of theft of an animal leaving its calf behind, it should be proved
if in case of recovery, it allows it to suck or not.
The animal have a certain liking for their owner, place where these are
tethered and with other animals tethered close to them. There are cases
where two mares which were used to be tied together on one manger, held
so much liking for each other that one would not eat grass without the other.
The police officer should be conversant with the psychology of animals and
may procure and collect evidence on such counts in case of necessity.

List of Stolen Property

As discussed under the head F.I.R. special attention should be paid by
police officer to fully describe the articles stolen, their special mark, and as
to how it would be possible for the informant and other witnesses to identify.
It sometimes happens that the owner of the articles is absent at the time of
theft and the informant who is other than owner cannot give description of
the articles or the owner is in such a nervous state due to the gravity of the
occurrence that he is not fully aware of the loss at the time of lodging F.I.R.
In such cases a list of stolen property is given to the I.O. and a question
crops up if this list is admissible in evidence as part of F.I.R. or it is
inadmissible in evidence as hit by section 162 Cr.P.C. being a statement
during the investigation of the case.
In 44 Cr.L.J. 555, it was held that the list of stolen property supplied to
police is part of F.I.R. and not a statement during investigation of case, even
though given during investigation, if the informant states at the time of
giving F.I.R. that he should submit a list of loss. According to this view, an
I.O. could write in F.I.R. that informant promised to supply a list of stolen
property later and as such could circumvent the provisions of Section 162
Cr.P.C. But this is not a sound view. This is ruling was dissented in 1949
East Punjab 315. It was held that section 162 Cr.P.C. embraces all kinds of
statements including submission of list of stolen property, made to a police
officer in the course of investigation. According to this view also reported in
(51) P.L.R. at pages 110 and 215, it is argued that every list, even though
given before the start of investigation but subsequent to the F.I.R. is
inadmissible. There is, however, no such clear finding to this effect. It
cannot be denied that list given during investigation is equal to a statement
before police during investigation and as such it cannot be admitted into
evidence. But a list given before the start of investigation is not affected by
the provision of section 162. Cr.P.C.
As to what is the actual time when the investigation starts will depend
upon the facts and circumstances of each case. An I.O. should know the
appropriate time when the actually starts investigation after registering
F.I.R. Mere registration of F.I.R. does not mean start of investigation of case
as the investigation can be dispensed with by an I.O. under section 157(b)
Cr.P.C. An I.O. may not be free to take up investigation immediately or there
may be some other circumstances which warrant the postponement of
investigation. Thus, it is clear that mere writing of F.I.R. will not mean that
every list given immediately after will be hit by section 162 Cr.P.C. or that
investigation has started ipso facto with registration of case. In Kachu Gagai
v. Emp. 1951 Ass 151 it was held that mere reporting of certain questions
and answers to elucidate a written report brought to police station for
registration of case does not mean that these were in course of investigation
which only starts when I.O. decided to start investigation under section 156
Cr.P.C. Similarly, it was held in re Anandyya 1915 Mad. 312 that the
preliminary enquires to make sure a village gossip or anonymous petition is
true or not does not mean an investigation as these are before launching on
a formal investigation.
So, it is abundantly clear that a list can be a part and parcel of F.I.R. If it
is given to I.O. before start of investigation. It was held in 1943 Cal. 644
whether a list is supplied to a police officer or is prepared by him at the
instance of a witness in course of investigation is a question depending upon
evidence examined in such case but if the evidence shows that it was so
supplied or prepared, it has to be treated as a statement coming within the
ambit of section 162 Cr.P.C. and must be ruled out. If on the other hand, the
report is supplied or is prepared before investigation starts then it can be
regarded as part and parcel of F.I.R. Section 162 Cr.P.C. cannot apply to it
and it can be proved. According to the latest pronouncements of the
Supreme Court in Rishbud v. State of Delhi, 1955 Cr.L.J. 526; State of M.P.
v. Mubark Ali, 1959 Cr.L.J. 920 , the investigation, in addition to other steps,
consists of proceeding to the spot. The investigation officer, thus when he
leaves for the spot, immediately after registration of F.I.R. starts
investigation. The list of stolen property, therefore, even if taken during the
interval of starting from Thana and reaching stolen property, spot would be
hit by section 162 Cr.P.C. according to this view. This Supreme Court case
was distinguished in 1972 (Bombay) Cr.L.J. 1229 Hakam Mohammad Jainwala
where it was held that mere procceding to spot did not necessarily show
start of investigation as the investigating officer may return or change his
mind to go to another pace. The investigation will start when he reaches the
scene of crime.
Either of the following step can be taken before taking the list of stolen
property into possession, to avoid the application of section 162 Cr.P.C.
1. The complainant may send the list at the earliest opportunity to the
Magistrate to avoid suspicion caused due to delay.
2. The list may be handed over to a respectable witness.
3. The Investigating Officer may defer investigation, if busy with other
investigation, after recording F.I.R. and should mention in ‘Karwai
Police’ underneath F.I.R. that he is postponing to proceed to spot to
 attend to other urgent case in hand. The list can be taken in the
interval.
A word of caution:
Whenever the stolen article is not mentioned in F.I.R. nor a list is given
before start of investigation, an I.O. should keep the following factors in
view and make out these in the course of investigation:
1. As to when the loss of particular article was discovered by the witness.
2. Whether it was immediately reported to police. To make such loss
admissible for purposes of evidence, if complainant reports this loss first to
some other witness, either verbally or in writing, then that witness conveys
information to the police that verbal and written report made to that witness
will be admissible.
3. If the discovery of loss was delayed one, the reasons for it.
The courts often see with suspicion the evidence of recovery of such
article if the discovery of loss is delayed because it can be argued that clue
or recovery preceded the clue of loss. The prosecution in such cases should
also keep in view the remarks of Mr. Krishnan J.C. of Vindhya Pradesh in
case 1952 Cr.L.J. 986 Supra at page 992 (Kartar Singh).
“The public prosecutor should also bring on record the exact time, the
witness found out that these other articles had also been stolen. It is open to
the accused to ask with reference to the statement to the police officer,
whether at all and on what date or at what stage of investigation, he had
apprised the police that they (articles) had gone. The court should decide
how far the delayed discovery of the loss of a particular article affects the
truth of a witnesses story on this particular and at all events whether the
loss of article is reported after any rule clue to its recovery had been made.”

Unidentified Dead Body

Sometimes dead bodies are recovered which are not identified. A
murderer can throw the dead body at a deserted place where no one will be
able to identify the deceased. Undue delay caused in keeping the dead body
for identification entails the risk of decomposition likely to hinder post
mortem examination. It will also not be advisable from hygienic point of
view. Therefore, in order to trace the deceased, the following methods are
adopted:
1. The dead body should be photographed. If possible, in the same
circumstances in which found.
2. The finger prints of the deceased should be taken and a search slip
prepared. Ordinarily the finger prints of all the ten digits shall be
taken in all cases on search slips and sent to Finger Prints Bureau for
tracing purposes. The prints of foot can also be useful.
3. If it is found that skin of the finger is so contracted and wrinkled due
to decomposition, that decipherable prints cannot be obtained (an
attempt must be made even though it is decided to dissect the skin),
the Medical Officer holding the postmortem examination should be
requested to remove the skin from the fingers. The pieces of the skin
thus removed from the ten digits should then be carefully kept in 10
different phials containing spirit of wine and glycerine and these
should be marked separately. These should be then packed in the box,
sealed and sent to Finger Prints Bureau for tracing purposes. Care
should be, however, taken that these phials should be sent at the
earliest, as the delay in despatch would result in more deterioration.
4. The clothes, ornaments and other articles found on the person of the
deceased should be carefully observed and every peculiarity noted and
foreign matter preserved. These articles can help a lot in identification
of the dead body. Similar tatoo marks, scars, occupation marks and
other deformities in body should be carefully noted. The personal
description should be minutely given. Confirmation of teeth should be
 described. The hair, the kind of dye used can also help. In certain
favourable circumstances, it is possible to draw an inference as to the
occupation of unknown man whose body has been found from an
examination of dust which may be extracted from his clothing and thus
to form a centre of focus for enquiries. Occupational dusts can be
differentiated underneath microscope by means of micro chemical
tests. False teeth should be preserved.
5. In case of bones only, these should be sent to Professor of anatomy of
any Medical College or any other bone experts in a sealed cover for
this opinion regarding sex, age, human or not and if there was any
violence to the bones, showing that the deceased was the victim of
violence.
6. Even in dismembered links, strewn here and there or found at
intervals may help identification. Links and adhering tissues may be
carefully collected and inquest held separately for each link and
collectively after putting altogether.
In all cases of homicide or where dead body is involved, its identity must
be established with the person said to be deceased, in the court. Not only
the identity but if death was due to culpable homicide or unlawful violence
must be proved. Chandulal, 1976 SC 917.
In case of decomposed dead bodies. Post mortems as well as articles of
deceased, as well as the peculiarities deformities, etc., of the deceased help
in establishing identity. In Hardyal v. State of U.P., 1976 SC 2055 , Supreme
Court held that when doctor could find marks of injuries on a decomposed
body, identification was possible. Rather best person to throw light on this
aspect was Medical Officer. The identity can be proved by the methods given
above and if the deceased is known by the person who identifies him and
who will depose to this fact in the court. If a post mortem examination is
performed on the body, which should invariably be done in all cases of
homicide and where unidentified bodies are found, then evidence of
constables who escorted the dead body to the mortuary and kept guard over
it till post mortem examination should be recorded in court. The
investigation officer should record the statement under section 161 Cr.P.C.
of the person who identified it at the time of post mortem and constables
who took the dead body and made it to over to the doctor. In case of
unidentified dead bodies, he should record the statement of witnesses
concerned, who with the help of any of the above said methods, try to
establish its identity. He should make efforts to get the dead body identified
by deputing a constable in near about places with the photo and the articles
found, to trace the person who identify it, by giving wide publicity in the
surrounding areas by means of advertisements and by circulating this
information per messengers of hue and cry notices under rule 22.79 P.P.R.
High Court of Punjab Rules and Orders Vol. III. Chapter 18-B para 10 lays
down:
“In such cases, where there has been a post mortem examination,
evidence must be recorded by the Magistrate to prove the custody of the
body of the deceased after death, and its delivery for the purpose of post
mortem examination to the Medical Officer.”
The constable concerned who escorted the dead body for the purpose of
post mortem examination will of course deposit that no one tampered with it
so long as it remained in his charge. Ordinarily two constables should be
deputed for this job. If two are not available, a chowkidar can assist the one
constable.

Murder Investigation when Unidentified Dead Body Recovered

When an unidentified dead body which is greatly altered is recovered,
following points will be helpful:
 1. Investigation of the place from where recovered: Here look for traces
on or near about the place. The condition of ground as the vegetation,
the formation or the presence of foreign bodies, reproduction of the
sketch of the scene of discovery and position of the find; together with
photography and the discovery of the surrounding scene are also to be
investigated.
2. Investigation of remains of body: Find out the time of occurrence;
mode of death, age, sex, length of body and colour of hair, injuries
their type and age, presence of any signs of disease, the presence of
insects, etc. Find out length of time remains have been there, from
alteration, insects, penetration of roots or plants into clothing etc.
3. Investigation of clothings of other objects on or near body: Determine
the original position of garments, kind of clothe, repairs, colour,
fabric, etc., Search for mark’s or laundry marks. Examine shoes for
maker’s size, repairs; types of dust in layers or on soles. Examine
weapons; objects used for transporting; objects thrown away or
forgotten by criminal.
All the above facts will help in identification of deceased, explanation
of cause of death, time of occurrence, for connecting this information
with any person notified or missing, for tracing criminal and for
checking statement of suspects, etc. (See inquest and post mortem
Chapter Medical Evidence.)
4. Absence of dead body: In case where dead body is not recovered or
there is no trace of dead body, the murder can be still proved by
circumstantial evidence. Raghu Prapanna Tripathi, 1963 SC 74, See
also Ramanand AIR. 1981 SC 738 and Arun AIR 1989 SC 1445. The
reasoning in King v. Horry, (1952) NZLR III was approved. “At the trial
of a person charged with murder the fact of death of probably
circumstantial evidence; notwithstanding that neither the body nor any
trace of the body has been found and that the accused has made no
confession of any participation in crime. Before he can be convicted
the fact of death should be proved by such circumstances as render
the commission of crime morally certain and leave no ground for
reasonable doubt.” 1970 Cr.L.J. 403 Bhula Kiram Koiri. See also
Sevaka Pcrumal ALR 1991 SC 1463.

Identification of Sealed Sample and Articles

Whenever an article which is liable to be changed or the contents of
which are liable to be replaced, is sent to an expert, it should be scaled by
the I.O. on the spot, i.e., at the place where recovered, and in the presence
of the prosecution witness. A care should be taken that seal does not remain
with the person who uses the seal so that tampering is excluded. Ordinarily,
a seal of an attesting witness of recovery should be used and then return to
him after use. If I.O. uses his own seal, he should make over the seal for
custody to some witness then get it back after despatch of sample or article
to the expert concerned. It is always better to impress the sample of seal on
the recovery memo, i.e., sealed with the seal (affix the seal there).
So, whenever a sealed sample or article is sent to various experts
examination, it is always the duty of I.O. and prosecuting officer to show
that it was not tampered with. All the articles which are brought up in
evidence should be shown to have remained intact and that there was no
chance of their being replaced or changed. In cases of sealed articles it is all
the more necessary.
According to Section 44 Police Act (5 of 1861). It is the duty of an officer
in charge of a police station to record therein, “the weapons or the property
that shall have been taken from their (accused or culprit) possession or
otherwise.” Every article when brought to police station must be deposited
with the Moharrir for custody in the Malkhana. An entry should be made in
the daily diary regarding the recovery memos and their disposal to be shown.
According to Punjab Police Rules 22.49(f) all the cases property receipt and
its despatch are to be mentioned in the daily diary. The case property kept in
the Malkhana of the thana is also to be entered in Register No. XIX of police
station in Form 22.70 of Punjab PPR and its disposal is to be mentioned also.
This continuity of possession of sealed samples and articles must be
proved till it is disposed of. Every person who handles these should be
examined during police investigation and in court. The statements of such
persons should be written under section 161 Cr.P.C. giving out the details. If
a link is broken, the benefit of doubt would go to the accused.
Held in State of Punjab v. Jagannath, 1976 C.L.R. 374 (Punjab) that it is
the duty of prosecution to prove that the sample which as separated from the
bulk of contraband commodity recovered from the accused was the same
which was examined by the chemical examiner or in other words, there was
no chance of its being tampered with from time of recovery till its
examination by Chief Executive for that matter the persons who handled the
samples at different stages must be examined.
A sample of the seal used should be placed in the parcel, if possible,
before sealing it. It is also good if the attesting witnesses signed the exhibit
before sealing if possible, e.g., the empty cartridges or weapon of offence.
This procedure would enhance, the sanctity of the evidence and for the
identity of the article beyond any doubt.
The seal after use should be handed over to an independent witness who
is with police at that time or to another witness of recovery if no
independent is there. Such a seal should be taken back after deposit of
sealed sample or article with the Moharrir; this enhances the credibility of
police officers.
In 1980 C.L.R. 74 Hans Raj it was held that independent person to whom
seal is given must be produced in the court.
This view, however, was not accepted in Full Bench case of Piara Singh v.
State, 1982 P.L.R. 244 and discussing P.P.R 22.16 (2), it was held that
sealing is merely discretionary as otherwise by label or chit identity can be
proved and production of person to whom seal handed over is not necessary.
The empty cartridge or bullets recovered should be immediately sent in
sealed covers to forensic laboratory for deposit without waiting for recovery
of weapons to avoid allegation of padding later. The weapon when recovered
can be sent sealed for comparison. Similar precaution should be taken with
regard to other articles, e.g., articles bearing impressions found on scene,
etc.
The evidence of these formal witnesses, who handled the sealed samples
can be tendered by affidavit under section 296(1) Cr.P.C. These affidavits
will be read in evidence in any enquiry trial or other proceeding under the
Code. Such persons giving affidavit can be summoned under section 296(2)
Cr.P.C. also on the application of the prosecution or the accused.
Affidavits in order to be relevant must be made on oath or on solemn
affirmation. They must be in legal form and attested in accordance with the
rules laid down by High Court. Section 539 (now section 297) Cr.P.C. The
word ‘Attested’ is not sufficient. Such defective affidavits cannot be read in
evidence and the case fails. State of Punjab v. Jagannath Supra and State of
Punjab v. Partap Singh, 1978 C.L.R. (Punjab and Haryana); 1989 Cr.L.J. 437
Ravel Singh.
The affidavit must bear the seal of the court and certificate that deponent
was personally known to the Magistrate. The attestation should be in the
form as laid in High Court Rules and Orders. Jarnail Singh, 1982 Cr.L.J. 426.
The sealed parcels, if these are to be sent to experts should be sent to
them without inordinate delay. No useful purpose is served by keeping them
at police station for nothing. Such delays raise suspicion in the minds of
courts. See 1957 Cr.L.J. 930 (SC) Satna Singh.
In case 1986 Cr.L.J. 513, Lakshmi Jena , there was seizure of weapon and
mud with stains blood. Articles were sent 2½ months after seizure. No
evidence that these were kept separately in sealed packet in presence of
witnesses. Court may not place reliance on discovery of blood as it would
place if necessary precautions had been taken. Gun was kept in police
custody for long period of more than two months. Ballistic experts report
was not believed. 1988 Cr.L.J. 1583 Santokh Singh whereas in Madan Singh,
1978 S.C. 1511, empty cartridge recovered on 23-12-1966 was sent to expert
on 6-2-1967 with prosecutions having failed to explain in whose custody the
empty was lying in the intervening period (Held that investigation did not
inspire confidence and the evidence relating to it was rejected).
In case of defective affidavits, however, prosecution can call for
additional evidence to summon the deponents as witnesses even after
defence evidence is closed in the interests of justice under section 540
Cr.P.C. (now section 311 Cr.P.C.) State of Punjab v. Des Raj, 1978 Cr.L.J.
1329 (Punjab).
In ordinate delay in despatching sample for which no explanation is
forthcoming is a strong circumstance against prosecution. Anokh Singh,
1976 C.L.R. 282 (Punjab).

Bad Characters and Previous Convicts

Under the provisions of section 75 I.P.C. previous convicts are liable to
an enhanced punishment. The offences in which enhanced punishment can be
awarded on second conviction are given under section 75 I.P.C. and are
offences punishable under Chapter XII and XVII of I.P.C. relating to coins.
Govt. Stamp and property. Similarly, in Local and Special Laws there are
provisions for enhancement of sentence.
It is the duty of l.O. to trace the identity and the previous conviction of
the culprit who is challaned so that he may not escape the penalty of the
law. He can trace these previous conviction by means of and with the help
of:
1. The surveillance register and the village crime notebook.
2. The conviction register.
3. The finger print system. The search slip of every arrested person
should be prepared and sent of Finger Print Bureau or Bureaus
concerned for tracing the previous antecedents of the accused.
4. By sending the Identification Certificate (Form 26.7(1) of PPR) to the
Thana concerned in whose jurisdiction that accused lives.
It should be the duty of every I.O. to requisition the particulars of
previous convictions during the early stages of investigation. (In Form
27.10(2) Punjab Police Rules.) If it is not possible, remand under section 309
Cr.P.C. can be got for the purpose of production of evidence of previous
convictions. See Punjab Police Rules 27.10. If a challan is to be given, the
court should be requested to wait for the result of search slip before
pronouncing the judgement. If the court does not wait for, then the matter
should be reported to D.I.G. C.I.D.
According to section 209 Cr.P.C., the previous conviction can be proved:
(a) by an extract certified under the hand and the officer having the
custody of the record of court in which such conviction was had, to be
a copy of the sentence or order, or
(b) in case of a conviction either by a certificate signed by the officer-in-
charge of the jail in which the punishment or any part thereof was
inflicted or by production of the warrant of commitment under which
punishment was suffered.
 In addition to the above two methods, the previous conviction can be
proved otherwise also as section 298 expressly says that any other evidence.
“In addition to any other mode, provided by any law for the time being in
force” can be given.
These other modes can be:
1. By production of certified copy of the order or conviction or by
production of the original judgement.
2. A judicial certificate.
Where previous conviction is sought to be proved, there must also be
proof of identity of the accused with the person shown as convicted in the
extract or certificate, etc. as given above.
The identity can be proved:
1. By oral evidence, e.g., evidence of police officer, who challaned the
accused previously or by other witnesses who joined the trial of that
case in any capacity. 1960 Cr.L.J. 24.
2. By an examination of finger prints or impressions.
3. By means of experts evidence as required under section 45 and 73
Evidence Act by calling the finger print expert who will prove the
identity by production of finger prints slip prepared at the time of
previous conviction and shown that finger prints which he takes in
court of the accused are the same as in the previous finger print slip.
(Procedure for summoning expert see Finger Prints Manual).
4. By producing the Jailor in whose jail he served the sentence. It is,
therefore, necessary that evidence of identity as well as of previous
conviction should be given simultaneously. In 52 Cr.L.J. 1284 only
evidence of identity was given by producing the F.P. Expert who
proved the Finger Prints of Mula accused tallied in all respects with
the Finger Prints slip on record in which certain convictions were
entered. No evidence as laid down under section 298 Cr.P.C. by
tendering judicial certificate prepared by Incharge Record Room as
required by Clause (a) and a certificate issued by Jailor as required by
Clause (b) of section 298 Cr.P.C. was given. It was held that mere
evidence of identity was not sufficient for proving previous
convictions.

Procedure to be followed
1. When the accused is to be charged under section 75 I.P.C; with
previous conviction, no evidence is to be led before framing the
charge.
2. The accused is not to be questioned regarding previous conviction in
his statement before charge; and at the close of prosecution case or in
any other statement under section 313 Cr.P.C. 1957 Cr.L.J. 448 State
v. Govind Das.
3. When the accused is being charged for the substantive offence, charge
for previous conviction under section 75 I.P.C. as desired by section
211(7) Cr.P.C. in anticipation should also be framed along with it,
giving the fact, date and place of previous conviction. If such
statement is omitted the court can add in charge at anytime before
sentence is passed. Under section 249(3) in a case on police report,
the charge if framed is to contain previous conviction.
The charge under section 75 I.P.C. is, however, not a distinct charge
under section 218 Cr.P.C. The offence will be the main offence only
and if that is compoundable section 75 I.P.C. will not be a bar. 1970
Cr.L.J. 1496.
4. No such charge shall be read out by the Magistrate nor shall the
accused be asked to plead there to nor shall the previous conviction be
 referred to by the prosecution or in any evidence adduced by it, unless
and until the accused has been convicted. Section 248(3) Proviso.
5. The accused may deny the previous conviction. The Magistrates shall
ask evidence in proof of previous conviction after he has convicted the
accused. He shall then record a finding thereon. Section 248 (3)
Cr.P.C.
6. The accused can lead evidence to disprove previous conviction.
7. Procedure will be in similar in Session trials under section 236 Cr.P.C.
It was held in 1953 Cr.L.J. 1431 Suresh Kumar (Punjab) , that proof of
previous conviction must be given in the proper manner required by the
Evidence Act before the provision of section 75 I.P.C. can be invoked. When
the accused has not been proved to have been a habitual offender. Section
75 cannot be applied merely on an admission made under section 313 Cr.P.C.
by the accused when there is no proof of his previous conviction. It was
further held that mere search slip was no proof of previous conviction. See
also Khan Mohammad Rehman, 1953 Cr.L.J . 96 relying upon 29 Cr.L.J. 869
(F.B.) where it was held that previous conviction can be taken into account
even if no charge is framed under section 75 I.P.C.
It is, however, necessary “as a rigid and inflexible rule that in all cases of
previous conviction, an enhanced sentence should be awarded. The
Magistrate can award less sentence in charge under section 75 than the
previous sentence if circumstances so warrant. If he, however, considers the
committal of accused to Sessions necessary for enhanced sentence then he
should proceed under section 324 Cr.P.C. See 1955 Andhra 190-1955 Cr.L.J.
1235, P.P., PP. v. Palappatti.
Section 75 comes into application only when a person is sought to be
punished with imprisonment exceeding the maximum imprisonment for the
offence. So, long as the maximum punishment provided for the offence is not
to be exceeded there is no need to resort to its provision and any reference
to them, would be irrelevant. 1957 Cr.L.J. 275 (Ali Mohammad v. State).

Legal Implication of Subsequent Discovery of Previous Convictions

This is all the more important as previous convicts, on arrest mislead the
police or Magistrate as to their identity by giving false names, particulars,
etc., and are in hurry to confess and get convicted as first offenders. In this
way they avoid enhanced punishment.
A. Any discovery, subsequent to conviction that he had been previously
convicted, is no ground for High Court to interfere and remand the
accused for re-trial to give enhanced punishment (Refer sections
396/401/377 Cr.P.C.).
B. Sometimes Magistrate in order to give prompt disposal to case do not
call for proof of previous conviction even if the charge sheet under
section 173 Cr.P.C. suggests that accused was previous convict. In
such cases, the prosecutor should be quite vigilant. He should apply
for adjournment under section 309 Cr.P.C. and tender evidence of
previous conviction always. If evidence for proof of previous conviction
is not cited, then he should give an additional list of witnesses and
move the Court to call them and also for adding charge under section
211(7) Cr.P.C. of previous conviction in that case, if the Court decides
even in spite of suggestion or citing of evidence, then High Court can
interfere and prosecution can go in for revision under section
397/401/377 Cr.P.C. See for detailed discussion 36 P.R. 1884 Empress
v. Sham Singh.

The Criminal Procedure (Identification) Act, 2022 (Repealed Identification

of Prisoners Act, 1920)
Under the provisions of the Criminal Procedure (Identification) Act, any
person, who has been,—
 (a) convicted of an offence punishable under any law for the time being
in force; or
(b) ordered to give security for his good behaviour or maintaining peace
under section 117 of the Code of Criminal Procedure, 1973 (2 of
1974) for a proceeding under section 107 or section 108 or section
109 or section 110 of the said Code; or
(c) arrested in connection with an offence punishable under any law for
the time being in force or detained under any preventive detention
law,
shall, if so required, allow his measurement to be taken by a police officer or
a prison officer in such manner as may be prescribed by the Central
Government or the State Government:
Provided that any person arrested for an offence committed under any
law for the time being in force (except for an offence committed against a
woman or a child or for any offence punishable with imprisonment for a
period not less than seven years) may not be obliged to allow taking of his
biological samples under the provisions of this section. (Section 3).
Collection, storing, preservation of measurements and storing,
sharing, dissemination, destruction and disposal of records.— (1) The
National Crime Records Bureau shall, in the interest of prevention,
detection, investigation and prosecution of any offence under any law for the
time being in force,—
(a) collect the record of measurements from State Government or Union
territory Administration or any other law enforcement agencies;
(b) store, preserve and destroy the record of measurements at national
level;
(c) process such record with relevant crime and criminal records; and
(d) share and disseminate such records with any law enforcement
agency,
in such manner as may be prescribed.
(2) The record of measurements shall be retained in digital or electronic
form for a period of seventy-five years from the date of collection of such
measurement:
 Provided that where any person, who has not been previously convicted of
an offence punishable under any law with imprisonment for any term, has
had his measurements taken according to the provisions of this Act, is
released without trial or discharged or acquitted by the court, after
exhausting all legal remedies, all records of measurements so taken shall,
unless the court or Magistrate, for reasons to be recorded in writing
otherwise directs, be destroyed from records.
(3) The State Government and Union territory Administration may notify
an appropriate agency to collect, preserve and share the measurements in
their respective jurisdictions. (Section 4).
Power of Magistrate to direct a person to give measurements.—
Where the Magistrate is satisfied that, for the purpose of any investigation
or proceeding under the Code of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force, it is expedient to direct any person to
give measurements under this Act, the Magistrate may make an order to that
effect and in that case, the person to whom the order relates shall allow the
measurements to be taken in conformity with such directions. (Section 5).
Resistance to allow taking of measurements.— (1) If any person who is
required to allow the measurements to be taken under this Act resists or
refuses to allow taking of such measurements, it shall be lawful for the
police officer or prison officer to take such measurements in such manner as
may be prescribed.
(2) Resistance to or refusal to allow the taking of measurements under
this Act shall be deemed to be an offence under section 186 of the Indian
Penal Code (45 of 1860). (Section 6).
Police officer means the officer-in-charge of a police station or an officer
not below the rank of Head Constable.
A foreigner can be compelled to give his photograph, finger impressions,
specimen of his handwriting and signature under orders of government to a
specified authority at a specified time or place. (Section 3 of Foreigners
Act).

Specimen Thumb Impressions

The taking of specimen impression of parts of body of an accused person
very often becomes necessary to help the investigation of a crime. It is when
an investigation officer wants to prove the identity of the accused for
comparing his thumb impression, finger or palm or foot impression with the:
1. Impression of accused left on the spot;
2. Impression of accused on any document, receipt, etc., which he denies
to be his own;
For this I.O. should apply to the Magistrate for taking specimen of the
accused. In Mahmud v. State of U.P., 1976 SC 69 . Specimen fingerprints
were not taken before or under the order of Magistrate for comparison with
prints or Gandasa, held it was a suspicious feature. Section 5 of
Identification of Prisoners Act allows this section 73 Evidence Act also
authorises the Court to permit the taking of finger impression of a person
present in Court, if necessary for the purpose of comparison. If the accused
denies to give finger impressions, foot impressions, or photograph, force
even can be used under section 6 of Identification of Prisoners Act.
Such specimens, even if got under compulsion, will not be hit by Article
20(3) Constitution of India. This point arose in State of Bombay v. Kathi
Kalu, 1961 (2) Cr.L.J. 856 and the Supreme Court held, “giving thumb
impressions or impression of foot or palm or fingers or specimen writings or
showing parts of the body by way of identification are not included in the
expression, “to be a witness.” The evidence of specimen will thus be relevant
even if procured under force or compulsion. See 1975 A.P. 88 M. Narayana
Swami.
 A court can also compare thumb impression. Gangadhar Das AIR 1986
Ori. 173.

Specimen Handwriting
The specimen handwriting is also obtained for comparison with the
disputed writing of the accused, if he denies the original section 73 Evidence
Act allows this. If the specimen is obtained, under compulsion it will be hit
by Article 20(3) as held in Kathi Kalu case. If the accused gives specimen
writing, well and good but if he resists then it is doubtful if force can be
used, since there is no provision like, section 6 Identification of Prisoners
Act, to warrant so. There is, however, implied authority under section 73
Evidence Act and only the Court can take the specimen handwriting. The
question arose in State (Delhi Administration) v. Pali Ram, 1979 Cr.L.J. 17 ,
where Supreme Court left open the point whether during investigation
Magistrate can order accused to give specimen handwriting but held that
during inquiry or trial it can order accused under section 73 Evidence Act to
give specimen handwriting for its own comparison or for comparison by
handwriting expert and if the accused refuses an adverse presumption can
be taken. Police has no power in this respect. 1964 (1) Cr.L.J. 94 Keshav Lall
Trikam Lall. In Dharam Vir Singh Punjab High Court, 1975 Cr.L.J. 884 , held
that section 73 Evidence. Act does not contemplate that accused can be
asked, persuaded or coerced to give his handwriting or thumb impression at
the instance of police so that these at the later stage may be used against
him (1962) (2) Cr.L.J. 84 (Pat.F.B.) Gulzar Khan dissented from. See also
Alovious John 1966 Mad.L.J, (Cri.) 298 . Even an Executive Magistrate has no
power to order for taking specimens handwriting or finger impressions
during investigation. Krishna 1978 C.L.R. 536 (Punjab) . It was held in T.
Subhiah (Madras) 1970 Cr.L.J. 254 that during investigation Court cannot
direct person to give specimen of handwriting or specimen signature. It is
only during trial under section 73 Evidence Act when the accused is present
before the Court. Section 73 does not permit a Magistrate to direct in the
investigation stage an accused to give his specimen handwriting and
signature because if the case is under investigation, there is no present
proceeding before the Court–nor section 5, Identification of prisoners Act
does so permit Court impressing upon the necessity of suitable legislation
(1980) 2 SCC 343. In 1973 Cr.L.J. 1499, RB. Khajotia (Bombay) (dissented in
Iqbal Ahmed, 1976 Cr.L.J. 244 (All.). An order directing accused to give
specimen writing for sending to expert is liable to be set aside. The court
cannot hand over to police such a specimen for sending to a handwriting
expert. See also Gulzar Khan v. State, 1962 Patna 255 which has relied on
1971 Cr.L.J. 1951 (A.P.) B. Rama Reddy and it was held that during
investigation the Magistrate can direct for giving specimen handwriting. In
case of refusal, admitted writing can be collected.
In J.D. Agarwal 1983 Cr.L.J. (NOC) 1551 Refusal of an accused to furnish
his specimen handwriting may be taken as a circumstance against him. In
Sher Singh 1991 Cr.L.J. 2612 (Del.) –Refusal to accused to attend Test
Identification Parade and participate may give rise to an adverse
presumption against him.
Value of evidence of handwriting expert and of other persons familiar
with handwriting see 1967 SC 1326 and 1977 Cr.L.J. 711 Mangan Bihar (SC),
it is unsafe to base conviction solely upon evidence of handwriting expert.
In Saligram (1972) 2 SLJ 335 and Murari Lal AIR 1980 SC 531 ,
Handwriting examined by an expert but he is not examined–the Court can
compare, the disputed writing with the writing taken in court.

Specimen of Hair
In case, a specimen of hair is required for comparison, the Magistrate will
have to be moved for the purpose, if the accused voluntarily gives the
specimen. In case of his refusal, no force can be used. It was held in 1971
Cr.L.J. 1405 that order of Magistrate requiring accused to give specimen of
hair for the purpose of identification is not violative of fundamental rights
guaranteed by Article 20(3) or 21 Constitution of India. There is no element
of criminal force within the meaning of section 350 I.P.C. in asking the
accused to submit to giving specimen hair so as to constitute the offence of
assault. In that case combed hair or hair attached with turban, etc., can be
collected in presence of witnesses. Comparison of hair recoveted with the
hair of the accused is a good piece of evidence. All tests should be
meticulously by complied with otherwise it would be safe to rely on report of
expert as science has not yet reached. So, held in 1986 Cr.L.J. 22(Cal).
(See Chapter XXVI also)

Specimen of Blood
Specimen of blood of an accused is sometimes required in investigations
or in trials to connect him with crime. In case Jameshed v. State of U.P.,
1976 Cr.L.J. 1680 (All.). Garments of deceased at the time of postmortem
examination were taken into possession and his blood group was ‘A’. At the
time of the arrest of the accused, his clothes were found bloodstained and
were taken into possession. During arguments in appeal against conviction,
the Hon’ble Judges of the High Court wanted to ascertain if blood on the
clothes of the accused of deceased, i.e., of group ‘A’ in case accused had not
the same group. The counsel of accused agreed and a specimen was taken in
jail though consent of accused was later withdrawn. His blood group was
different from ‘A’ thereby showing that it was blood of deceased which was
found on Tehmad of accused. This piece of evidence was objected to by
counsel as inadmissible on the following grounds:
(i) That it amounted to testimonial compulsion and as such hit by Article
20 of Constitution.
(ii) That it amounted to causing hurt to accused and such a procedure
was unwarranted by law.
Held by High Court;
(i) Taking the blood does not amount to accused becoming a witness
against himself. Ref Kathi Kahr’s case supra.
(ii) Section 53 Cr.P.C. read with section 367 Cr.P.C. warrants taking of
specimen of blood.
(iii) The procedure is not shocking and unwarranted.
(See Blood in Chapter XXVI)
It was further held so in Ananth Kumar Nail, 1977 Cr.L.J. 1797 (A.P.) that
taking of specimen of blood, even though accused has been released on bail,
is permissible under sections 53, 54 Cr.P.C. Even a reasonable force can be
used to subject accused to medical examination though it may discomfort
him.
See Anil A. Lokhavdi, 1981 Cr.L.J. 125 (Even after challan).

Specimen of Semen, Urine, etc.

Similarly, a specimen of semen of an accused can be taken during
investigation as held in Ananth Kumar Naik Supra . Provisions has been made
for medical examination of accused under the new Code in sub-section 53
and section 54 Cr.P.C. Medical Examination is an investigation within
section 2(4) Cr.P.C. The examination of a person by medical practitioner
must logically take in examination by testing his blood, sputum, semen,
urine, etc.
Power of Seizure of an article from a person or place is different from
taking a Specimen. Seizure can be made wherever power is given even by
exercise of force. (Section 100(3) and section 102 Cr.P.C). If a culprit is
suspected to have swallowed some stolen article, an emetic may be used and
X-ray examination may also be necessary. For such purpose the law permits
the use of necessary force, Jamshcd, 1976 Cr.L.J. 1860 (Para 12).
 Law of seizure is contained in section 102 Cr.P.C which runs as under:
(1) Any police officer may seize any property which may alleged or
suspected to have been stolen, or which may be found under
circumstances which create suspicion of the commission of an
offence.
(2) Such police officer if subordinate to the officer-in-charge of a police
station shall forthwith report this seizure to that officer.
(3) Every police officer acting under sub-section (1) shall forthwith
report the seizure to the Magistrate having jurisdiction and where
the property seized is such that it cannot be conveniently transported
to the Court or where there is difficulty in securing proper
accomodation for the custody of such property, or where the
continued retention of the property in police custody may not be
considered necessary for the purpose of investigation he may give
custody thereof to any person on his executing a bond undertaking to
produce the property before the Court as and when required and to
give effect to the further orders of the court as to the disposal of the
same.
Provided that where the property seized under sub-section (1) is subject to speedy
and natural decay and if the person entitled to the possession of such property is
unknown or absent and the value of such property is less than five hundred rupees, it
may forthwith be sold by auction under the orders of the Superintendent of Police and
the provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to
the net proceeds of such sale.
Section 53–DNA Test–Criminal Offence–Police can get the accused
medically examined under section 53 Cr.P.C. for any test which may include
DNA test to ascertain the facts. 2004(2) RCR (Cri.) 152 relied . Ravkbandran
v. Sub-Inspector of Police, All Women Police Station, 2006(3) RCR (Cri.) 171
(Madras).
Section 53–Indian Penal Code, Section 417–Evidence Act, section 112–
DNA Test–Accused cohabiting with a girl on promise of marriage–A child
born to her–Complaint of cheating by the girl under section 417 I.P.C.–
Accused disowned paternity to child–Court can order DNA test to prove the
case under section 417 I.P.C. and paternity of child, 2004(2) RCR (Crirmnal)
152 relied. Ravkhandran v. Sub-Inspector of Police , All Women Police
Station, 2006(3) RCR (Cri.) 171 (Madras).
Section 53–Constitution of India, Articles 20 and 21–DNA Test–DNA
evidence is a predominant forensic technique for identifying criminals when
biological tissues are left at scene of crime. DNA testing on samples such as
saliva, skin, blood, hair or se men not only helps to convict but also serves to
exonerate. Thogorani alias K. Damayanti v. State of Orissa, Cr.L.J. 4003.
Section 53–Constitution of India, Articles 21 and 20(3)–Evidence Act,
section 114–DNA test–Rape case–Court can direct the police officer to collect
blood sample from accused for DNA test for investigation–Subjecting
accused to test - Does not vio late his fundamental rights under Articles 21
and 20(3)–Refusal of accused to give sample–Adverse inference can be drawn
against. Thogorani alias K. Damayanti v. State of Orissa, 2004 Cr.L.J. 4003.
Section 53–DNA test–Rape case–Accused having sexual relations with a
minor girl on promise of marriage–Two children born out of this
relationship–Court has power to order DNA test of accused to establish
paternity of [Link] alias K. Damayanti v. State of Orissa, 2004
Cr.L.J. 4003.
Section 53–Accused can be subjected to Medical Examination at the
instance of Investigating Officer–Court can also give such directions. H.M.
Prakash alias Dali v. State of Karnataka, 2004(3) RCR (Cri.) 880 (Kar.).
Section 53–Constitution of India, Article 20(3)–DNA Test–Blood sample of
accused can be taken at the instance of Investigating Officer (Not below S.I.)
or the court for DNA Test–It is no violation of Article 20(3) of Constitution of
India. H.M. Prakash alias Dali v. State of Karnataka, 2004(3) RCR (Cri.) 879
(Karnataka).
Section 53–Constitution of India, Article 20(3)–DNA Test–Child born out
of illicit sexual relationship of accused and complainant–Order of Court for
taking blood sample of accused for DNA Test–Not illegal–It would save the
child from being called bastard–Child has every right to live with dignity.
H.M. Prakash alias Dali v. State of Kar nataka, 2004(3) RCR (Cri.) 879 (Kar.).
Section 53–Constitution of India, Article 20(3)–Investigating Agency can
take finger impression, specimen signatures and blood sample of accused to
find out guilt or innocence of accused–Court can also give such directions–It
is not violative of Article 20(3) of Constitution. H.M. Prakash alias Dali v.
State of Karnataka, 2004(3) RCR (Cri.) 879 (Kar.).
Section 53–Constitution of India, Article 20(3)–Section 53 Cr.P.C.
provides Medical Examination of accused–Medical Examination includes
taking of sample for DNA Test though section 53 Cr.P.C. does not provide
specifically–Medical examina tion is not restricted only to physical or
external examination of skin and body–In the process if the accused
undergoes discomfort, the same cannot be said to be unjustified–No violation
of Article 20(3) of Constitution. H.M. Prakash alias Dali v. State of
Karnataka, 2004(3) RCR (Cri.) 879 (Kar.).
Section 53–Criminal Procedure Code, Section 439–Accused on bail–
Investigating Officer can subject the accused to medical examination even
during bail–Merely because the accused is released on bail, he does not
cease to “arrested person” or “per son in custody.” H.M. Prakash alias Dali v.
State of Karnataka, 2004(3) RCR (Cri.) 879 (Kar.).
Section 53–Constitution of India, Article 20(3)–DNA Test–Woman got
pregnant through accused and giving birth to a child–Order of Court
directing the accused to give sample of blood–Does not offend Article 20(3)
of Constitution. AIR 1961 SC 1808 relied. Salaimathu v. State, 2004(2) RCR
(Cri.) 152:2005 Cr.L.J. 31 (Madras).
Section 53–Indian Penal Code, Sections 376 and 417–Rape and birth of
child–Prosecution given permission to take sample of blood, semen etc. of
accused to determine paternity of child–Taking of sample of blood etc. of
accused for comparison is permissible–Accused does not become witness
within meaning of Article 20(3) of Constitution. State of Maharashtra v.
Ranjit, 2004(1) RCR (Cri.) 616.
Murder–Finger Prints of accused formed on glass of liquor–Finger print
impression is a pointer towards guilt of accused–Science of identifying
thumb impression is an exact science and does not admit of any mistake or
doubt–There is no reason to disbelieve the opinion of the Director, Finger
Print Bureau–Evidence of identification of footprint is not of much reliance.
Malkiat Singh v. State of Punjab 2004 (3) RCR (Cri.) 55 (P&H) (DB).
DNA Test Conclusion proof–Husband and wife were living together during the time
of conception–DNA test revealed that the child was not born to the husband. This may
took hard from the point of view to the husband who would be compelled to bear the
fatherhood of a child of which he may be innocent. (Section 112). Nandlal Wasudeo
Badwaik v. Lata Nandlal Badwaik & Another, AIR 2014 SC 932.
DNA Test–DNA stands for deoxyribonucleic acid, which is the biological blueprint of
everylife. DNA is made up of a double standard structure consisting of a deoxyribose
sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to
as adenine and guanine, purines and thymine and cytosince pyrimidines. The most
important role of DNA profile is in the identification, such as an individual and his blood
relatives such as mother, father, brother and so on. Successful identification of skelton
remains can also be performed by DNA profiling. DNA usually can be obtained from any
biological material such as blood, semen, salivia, hair, skin, bones etc. Dharam Deo
Yadav v. State of U.P., 2014, Cr.L.J. 2371.
 DNA Test–Conclusive proof-Paternity of a Child-Extremely delicate and sensitive
aspect. In a matter where paternity of a child is in issue before the court, the use of
DNA test is an extremely delicate and sensitive aspect one not only be prejudicial to the
rights of the parties view is that when modern science gives the means of ascertaining
the paternity of a child, there should not be any lesitations to use those means
whenever the occasion requires. DNA test in a matter relating to paternity of a child
should not be directed by the court as a matter of course or in a routine manner,
whenever such a request is made. The court must exercise its discretion only after
balancing the interests of the parties and on due consideration whether for a just
decision in the matter, DNA test is eminently needed. Dipanwita Roy v. Ronobroto Roy,
AIR 2015 SC 418.
DNA Test–Samples were analyzed by a private laboratory instead of laboratory of
Forensic Science. The person conducted the analysis admitted that he has no expertise
in the discipline of DNA test/serology and he himself was not present when the analysis
was conducted. The person who conducted the analysis was not examined by the
prosecution. It was held that prosecution failed to prove beyond reasonable doubt that
the dead body was of the alleged decease. Rajiv Singh v. State of Bihar, 2015 (16) SCC
369.
DNA Test–Absence of seamen or blood on body of deceased becomes insignificant on
DNA matching court should rely on voluntary confessional statement recorded by the
Magistrate. Manmohan v. State of through Inspector of Police AIR 2019 SC 805.



Chapter–19
Alibi
Sometimes an accused person pleads alibi and asserts before an I.O. that
he was at some other place than the place of that occurrence and as such he
was innocent. In order to arrive at truth, it is the duty of the I.O. to test the
veracity of his statement. He should not throw it away but try to disprove it
during the investigation, if it is not true, so that the prosecutor can avail of
the material during the judicial proceedings.
An I.O. should see that there are convicting reasons that accused took
part in the occurrence and if he comes to the similar finding, he should
collect such evidence so that defence of alibi, set-up before him, completely
breaks down. It was held in Sarat Chandar v. Emp., 1934 Cal. 719 that
whenever a defence of alibi is set-up and that utterly breaks down, it is
strong inference, that if the prisoner was not in fact where he says he was
then in all probability, he was where the prosecution says he was. It is there
to provide strength of the prosecution case in this case, followed in 1971
Cr.L.J. 1764 (Punjab).
Sometimes the version of the prosecution showing the participation of the
accused in the crime and version of the accused proving alibi is evenly
balanced, i.e., there are convincing reasons that both are true. In such cases
an I.O. should not feel satisfied by saying that it should be left to the Court
to decide as to what action the Court should take. He must find some
weakness somewhere as the two cannot be true. The field of an I.O. is very
vast. He has greater resources at his hand and explore more avenues to
arrive at truth. The sphere of the Court is not wide.
It is, however, always better to place such cases in the Courts and the
discretion should be left to Court to exercise it judicially. The I.O. should not
give the benefit of such a thing to the accused if these versions are evenly
balanced and one is not preposterously false and wrong. These points are
amply illustrated by the following two cases:
I. It was held in Suraj Bakash Singh v. Emp., 1933 Oudh 369 that “The
reason for not believing the alibi of these three men is that there is
convincing evidence that they took part in the crime. It need hardly
be said, where there is satisfactory evidence that a man committed a
crime at a certain place and at a certain time, a Court will never find
any difficulty in rejecting an alibi, he may seek to establish even if
that alibi is supported by what on the surface would appear to be
satisfactory evidence.”
II. This aspect of the case was also deal in Sheo Shankar v. State, 1953
Cr.L.J. 1400 (All.) and it illustrates the point as to why it should be
left to Court, “We do not take it to mean that if the alibi evidence be
good and no weakness is directed by the Court in it, it must, be given
“go by” if the Court comes to know of no weakness in the prosecution
evidence. The two cannot be true and the weakness must be found
somewhere, however, difficult it might be. If the Court fails to find
any weakness in either, we are of the view that the benefit of such a
failure must go to the accused because a well established alibi must
be sufficient to show that the prosecution witnesses were not
speaking the truth or at least to throw doubt upon their
truthfulness.”

Nature of Alibi
The alibi of an accused person can be proved by him by oral or by
documentary evidence. Normally, the accused will try to show his presence
somewhere with his relations. If the evidence of alibi is wholly based on oral
testimony of persons, interested or not in the accused, then it can be tested
in the following way:
1. If the place is such as is connected with the place of occurrence in
such a way that accused can be at both the places with short
intervals. The distance, the modes of conveyance and the time factor
play material part under the circumstances.
2. The nature of evidence based upon the nature of purpose of visit to
that place.
3. If the evidence of witnesses who support this fact is corroborated by
independent evidence or not.
4. If the date, time of visit is definite and as to how this is remembered
by the witnesses.
If there is documentary proof of the alibi of an accused person, then it
carries more weight than the oral one. The document, however, should be
carefully examined to see if it can be forged or fabricated.
This type of scrutiny also rests on the following factors:
1. If there was an occasion for preparing such a document.
2 If it is in the ordinary routine of business.
3. If it is not manipulated, added, or interpolated.
4. The relationship of the party preparing such a document, and the
probability of its being false.
Burden of Proof
The fact, however, remains that, “the burden of proving alibi,
undoubtedly lies on the accused setting up the defence. But even so the
burden of proving the case against the accused is on the prosecution
irrespective of whether or not the accused has made out a plausible
defence.” 1976 Cr.L.J. 827 SC Gurcharan Singh v. State of Punjab, sec. II,
105, 135 Evidence Act.
It is incumbent upon the accused to establish that he was at a particular
place at the relevant time. 1963 (1) Cr.L.J. 550. State v. Sashibushan . He
must lead evidence to show that he was so far off at the moment of crime
from the place where the offence was committed that he could not have
committed the impugned act. Karnail Singh, 1977 Cr.L.J. 1729.
The Supreme Court in State of Maharashtra v. Narsingrai, 1984 (2) C.L.R.
13 held if accused sets up a plea of alibi he must prove it with absolute,
certainty so as to completely exclude his presence at the place of
occurrence.
The Court should also examine the plea of alibi and the defence evidence
led on that score. Non-consideration of defence evidence by court vitiates
the trial and causes prejudice to accused. Conviction in case Beant 1985 (2)
C.L.R. 335 was rendered unsustainable on that score.
If the accused himself makes evidence of alibi in his own documents or
diaries, he is giving facts appearance favourable to himself. Any admission
which goes in favour of the accused, if it is not covered by section 21
Evidence Act is not admission as held in Ranjit Singh v. State, 1952 Cr.L.J.
1720, where accused had handed over his diary to police claiming to contain
entries establishing accused presence at different places on night of
occurence.
Section 11–Murder–Plea of alibi-claim by accused that he had gone to see certain
advocate for consultation with regard to some matter at time, when occurrence took
place. No contemporaneous document produced by such advocate or accused to prove
plea of alibi. Plea cannot be accepted. Rajesh Kumar v. Dharmbir & Others, 1997 Cr. L.
J. 2242 SC.
Section 11–Plea of Alibi–Strict proof is required for establishing plea of
alibi. Finding of fact disbelieving the plea of alibi based on weight and
sturdy reason, no interference. Binay Kumar Singh v. State of Bihar, 1997
Cr.L.J. 362 SC.
Section 11–Plea of alibi–Charge of murder against police officials –Plea
that accused was transferred to some other place at time of occurrence –
Evidence of prosecution witnesses, however, stating presence of accused at
place of occurrence–Evidence of prosecution witnesses, however, stating
presence of accused at place of occurrence –No attempt by accused to prove
that he was present at another place on relevant date. Plea liable to be
rejected. Brijlala Pd. Sinha v. State of Bihar, 1998 Cr.L.J. 3611 SC.
Plea of Alibi Proof–Presence of accused at scene of occurrence
satisfactorily established by prosecution –Court would be slow to believe any
counter evidence. State of Gujarat v. Chavda [Link], 2000 Cr.L.J. 1091
Guj.
Alibi–Murder Case. The accused was a police officer and was a renowned
wrestler-plea of alibi that on the day of occurrence he was taking training at
The “Akadha” about 10 km away from the place of offence–But fact remains
that the training was from 5 A.M. to 8 A.M. and the incident occurred on
10:30 A.M.–Hence the plea of alibi could not be established–Burden was on
the accused but he failed to establish his plea–Plea having no force is
rejected. Ambika Prasad & Anr. v. State (Delhi Admn, Delhi), 2000 Cr.L.J.
810 SC.
Alibi–Murder Case–Main defence of appellants is of alibi–But the same
could not be proved–It was suggested that on that day both the accused
persons on that day attended the court of Naib Tehsildar at about 50-60 kms.
Away–But their presence in that court not be proved by documents–Rather
than cross-examination demolished their own plea of alibi–In the result their
conviction and sentence by High Court held to be reasonable and justified–
No interference. Kashiram v. State of M.P., 1999(1) JCC (SC) 2.
Alibi–Plea of–Offence of rape by the appellant–Defence of alibi not
proved–Onus on appellant–Presumption. The accused has not adduced any
evidence in defence to prove the plea of the alibi and there is no other
material in support of this plea. There is no material on the record in
support of the plea of the father of prosecutrix being indebted to the accused
also. There is nothing elicited nor other material placed on the record to
show when, for what purpose her father needed money, when it was paid and
if the accused was in a position to pay any such amount. Obviously, these
pleas are not bona fide and are after thought hence not acceptable.
Kedarnath Singh v. State, 1995 Cr.L.J. 4121).
Alibi–Plea of Proof of Accused to prove by cogent and satisfactory
evidence. It is settled law that plea of alibi, if raised, by an accused is
required to be proved by him by cogent and satisfactory evidence so as to
completely exclude the possibility of the presence of the accused at the
place of occurrence at the relevant time. Ramesh@Meshi v. The State, 1997
J.C.C. 53.
Alibi–Murder case under section 302/34 of I.P. C.–Appellant Mithilesh took
the plea of alibi that at the material time he was admitted in the Banaras
Hindu University Hospital and he was a research scholar of the University at
that time but he failed to prove his case–No document about his being a
research scholar could be proved nor his admission in university hospital at
the relevant time could be proved–Prosecution case proved–No benefit to
accused/appellant. Mithilesh Upadhyay etc. v. State of Bihar, AIR 1997 SC
2457.
In the case of alibi–The burden of proof remains on prosecution. Narendra
Singh and Anr. v. State of M.P., (SC) 2004 (5) SRJ 96.
Plea of alibi–Advocate practising at Bombay–Prepared at Bombay and
produce before Public Notary–Held–On that day he was at Bombay. Rajendra
& Others v. State of U.P., All. 2004 (2) JC C 955.
Plea of alibi–Craftsman–Free to leave Cantonment area to go to his
private residence–Held plea of alibi rightly rejected by the trial court as well
as High Court. Jasbir v. State of Haryana, AIR 2003 SC 554.
Section 11–Indian Evidence Act–Failure to prove the plea of alibi and/or
going of false evidence itself may not be sufficient to arrive at a verdict of
guilt; it may be an additional circumstance. But before such additional
circumstance is taken into consideration, the prosecution must prove all
other circumstances to prove his guilt. Subramaniam v. State of Tamil Nadu,
2009(3) Crimes 139 (SC).
Section 11–Indian Evidence Act–A human right activist had taken the task
to expose the misdeeds of police in District Amritsar and Tran Taran killing
innocent people under the pretext of being terrorists and cremating them
without any identification and performing any rituals. The police authorities
did not like such activities and tried to desist him from the same. This human
activist was abducted and later died. All the accused persons taken the plea
of alibi to show that none of them was present at the place of occurance on
the relevant date. The plea was found false and all the accused police
officials held guilty. B. Prithipal Singh v. State of Punjab, 2011(4) Crimes
259 (SC).
Alibi–Acquittal in murder case despite the fact that accused took plea of
alibi–Held, the prosecution must stand or fall on its own feet–It can not draw
support from the weakness of the case of the accused, if it has not proved its
case beyond reasonable doubt. Sunil Kundu v. State of Jharkhand, 2013
Cri.L.J. 2339.
Alibi–Murder Case–Plea of accused that he was attending a marriage–
Father of girl who was allegedly married his daughter not produced to prove
the contention–Plea of alibi rejected on the ground that–
(a) Wedding cannot be proved by way of production of invitation card or
the proof of registration of the marriage with any statutory authority.
(b) Eye-witneses to the incident must specially made a mention about the
presence of accused. Sheo Shankare Singh v. State of U.P., 2013
Cri.L.J. 3788.
 Alibi–Death of bride at matrimonial home–Deceased had injuries on her
body–Plea of in-laws that no member was present in the house when incident
happened–Plea was not believed. Held that once the court disbelieves the
plea of alibi and the accused does not given any explanation in his statement
under section 313 Cr.P.C., the court is entitled to draw adverse inference
against the accused. Sahabuddin v. State of Assam, 2013 Cr.L.J. 1252.
Alibi–Murder by number of accused persons–Plea of alibi taken by two of
them–It was proved by one of them that he was in college and the other
accused proved that he was in the office of Sub-Registar at the time of
occurrence–Appellate Court rejected the plea on the ground accused could
have left college after marking presence and sale deed alleged to be
executed by other accused does not show time of execution–Held, plea of
alibi improperly rejected by appellate Court. Murugesan v. State through
Inspector of Police, AIR 2013 SC 274.
In the end, it may also be mentioned that accused will not allege alibi if
he is to take any plea of consonance with the facts of occurrence. If the
accused wants to take advantage of an exception, e.g., in a murder case, that
he did it under provocation or he pleads right of private defence, he cannot
allege alibi. The act charged could not be denied and the plea of right of the
private defence raised as an alternative. Therefore, the I.O. and the Courts
should outright reject the plea of alibi if the accused pleads right of private
defence or wants to take advantage of an exception and vice versa.
See Karnail Singh Supra where it was held, “If there is sufficient material
on the record to show that the accused acted in his right of private defence
of property, he cannot be deprived of the benefit of the plea of self-defence
even though he tried to set-up the plea of absence in vain and pleaded the
right of private defence of property in the alternative.”
It was held in 1954 Cr.L.J. 774 (Cal.) Yusuf v. State . Plea of right of
private defence is not available to accused pleading alibi.
Plea of alibi should ordinarily be taken up by the accused at the first
stage. This is more essential if the alibi is oral one. If, however, it is
documentary, the fact that the plea was not raised at the first stage would
not matter. See Anna v. State of Hyderabad, 1956 Cr.L.J. 887 . In this very
ruling it was held that the standard of proof required for establishing the
plea of alibi is the same such as for evidence on behalf of the prosecution.
Further “the failure on the part of accused to substantiate the plea of alibi
would not and cannot give rise to an inference that the accused was at the
place of occurrence at the time when the offence is said to have taken place.
This would have to be proved by the prosecution as any other matter.”



Chapter–20
Statement under section 164
Cr.P.C.
A police officer should be careful to see that the witnesses who have
come forward with certain statements on which he has built the case will
remain intact at the time of making depositions in Court. In India, there are
so many factors working in favour of the accused. They will try to win over
the witnesses by all the means at their disposal and will like the witnesses to
change their stories subsequently to save the accused. The witnesses, too,
have no such scruples as to stick to truth. Civic sense and the religious
scruples have not so much developed that the witness will always stick to
what he honestly believed once to be true. He can be easily moulded to
whatever version one likes under the allurement of money or other material
advantages for a temporary gain. Therefore, there is nothing wrong if a
police officer takes advantage of section 164 Cr.P.C. and gets the statements
of witnesses recorded under that section. This is the object for which this
section was incorporated.
There have been certain prejudices that a resort to record of statements
under section 164 implies that there is a lurking suspicion that a statement
is not being voluntarily made but was got made under the pressure of police
as held in 1948 Pat. 200. This belief that statements recorded under section
164 Cr.P.C. are unreliable statements to which no truth can be attached is
incorrect. The legislature has enacted section 164 for a specific purpose and
any such argument will make it nugatory. It was held in 1954 Cr.L.J. 374 P.P.
v. K. Julaya, that, “The objects of recording statements under section 164
Cr.P.C. are two-folds. In this country where civic consciousness has not yet
developed fully, tampering of witnesses is a favorite pastime of accused
persons and the resiling from information truthfully given at the earliest
stage occurs with monotonous regularities in cases where the accused are
influential persons or persons inspiring terror. It is the only legal method by
which the statement made by witnesses at an early stage in the investigation
can afterwards be proved at the trial by the prosecution. It does not doubt
help to deter witnesses from changing their stories subsequently and to this
extent its effect is salutary.” Also see 1962 (2) Cr.L.J. 156 (Raj.) Nisar.
There is also another aspect of the case. A statement recorded under
section 161 Cr.P.C. is without oath and is not signed by a witness. It does
not carry so much weight, though it is earliest version, as a statement in the
Court on oath though it is belated and sometimes tainted. If a police officer
gets a statement recorded under section 164 Cr.P.C. at the earliest stage of
the investigation, then the sanctity of the statement is much enhanced, being
on oath, recorded by a Magistrate and being the earliest and thus without
any influence of any accused person and as such far more truthful and
trustworthy than later denials or embellishment. This object finds support in
case 1953 Cr.L.J. 79 Allah Bakhsh v. Crown (Federal Court Pakistan) where
it was held, “The only objects in getting such statements recorded must be
either to obtain a hold over witnesses or possibly for the purpose of showing
that they had not been long after an incident as possible in the
circumstances of a particular case.” Thus, it helps in overcoming the
disadvantages of statement recorded under section 161 Cr.P.C.
A police officer can have recourse to this provision only, for ensuring
reliability of a witness and immunity from the onslaughts of the accused in
tampering with his statement. This aspect of the case was dealt with a length
in, 1940 Nag 340, Parma Nand v. Emp., 1941 Oud 517.

Procedure
A police officer should move the Judicial Magistrate to write the
statement of witnesses under section 164 Cr.P.C. Any Judicial Magistrate
whether he has Jurisdiction or not can write statement under section 164
Cr.P.C. He shall have power to administer oath to the person whose
statement is recorded. Section 164(5) Cr.P.C.
Section 164–Confession before Magistrate–Voluntariness–There is no
requirement that separate reasons were required to be recorded for
believing that confession was made voluntarily–Raising doubt by Trial Court
were about its genuineness on ground that reasons were not recorded
separately though the satisfaction was recorded in memorandum–Not proper.
Ammini v. State of Kerala, 1998 Cr.L.J. 481 SC.
 Sections 164 and 173–Confession before Magistrate–Comparing it with
record of it in case diary by trial court–Illegal. Ammini v. State of Kerala,
1998 Cr.L.J. 481 SC.
Section 164–Statement of witness under section does not empower
Magistrate to record statement of witness on his request even though not
asked for, by investigating agency. Jogendra Nahak v. State of Orissa, 1999
Cr.L.J. 3976 SC.
Section 164–Confession of accused can be used against co-accused in
circumstances of a case–In dealing with a case against an accused person,
the court can not start with the confession of a co-accused and it must begin
with other evidence adduced by the prosecution and after it has formed its
opinion with regard to the quality and effect of such evidence, it is
permissible to turn to the confession in order to lend support or assurance to
the conclusion of guilt which the court is about to reach on the other
evidence. [Link] v. State of Tamil Nadu, AIR 2006 1106 S C.
Section 164–Evidence Act, section 24–Confession–Recording of confession
by Magistrate under section 164 Cr.P.C.–Accused be given time for reflection
to decide whether or not he should make a confession–It is, however,
difficult to lay down any hard and fast rule as to the time which should be
allowed to an accused. In the instant case two hours time given to accused
for reflection–No illegality in recording confession. Sidharth [Link] of
Bihar, AIR 2005 4352 SC.
Section 164–Confession made by accused–Cannot be made foundation of
conviction of co-accused–It can only be used to lend assurance to other
evidence–Confession of a co-accused person cannot be treated as substantive
evidence and feels the necessity of seeking for an assurance in support of its
conclusion deducible from the said evidence. Sidharth v. State of Bihar, AIR
2005 4352 SC.
Section 164–Rape case–Conviction cannot be based on the statement of
prosecutrix made under section 164 Cr.P.C.–Because that statement was not
subject to any cross-examination by the accused, and it is also not clear
whether the said statement was recorded by the Judicial Magistrate without
any coercion or pressure upon the prosecutrix by the police–This evidence is
not sufficient to be relied upon as corroborating evidence, particularly when
the prosecutrix herself has not supported the prosecution case at all at the
time of her cross-examination. Bhup Singh v. State of Haryana, 2005(3) RCR
(Criminal) 64 (P&H).
A police officer must also understand that statements under section 164
Cr.P.C. can only be got recorded, “in the course of an investigation under
this Chapter (Chapter XII) or at anytime afterwards before the
commencement of inquiry or trial.” It is illegal to get the statements of
witnesses recorded under section 164 Cr.P.C. after the investigation has
ended and the enquiry before the committing Magistrate has commenced.
See 1953 Cr.L.J. 708 (Bilaspur) Chatru v. State. Merely submitting or charge
sheet by police does not bar recording of such statements provided the
enquiry or trial has not commenced. Raja Ram v. State, 1966 All 192 (Full
Bench).
A statement of a witness is to be recorded in the manner prescribed for
recording evidence, i.e., it should be on oath or affirmation. No further
formalities are to be observed. It is not like recording of confession that
Magistrate should satisfy himself regarding the voluntary nature of the
statement or that he should append a certificate or memorandum to it as
required by section 164/281 Cr.P.C. It is also a false notion in the mind of
lawyers and the Magistracy that prosecutor should be ousted from the Court
while recording statements of witnesses under section 164 Cr.P.C. The
prosecutor should be there while the other police officer should not be as it
is the prosecutor who can elicit all the details from the witness which the
Court may fail to ask. It is, therefore, a wrong impression that statements
under section 164 Cr.P.C. have got to be distrusted simply because these
statements are not recorded by observing the same formalities as in
recording the statements of accused persons under section 164 Cr.P.C. For
further discussion of this aspect of the law see 1932 Mad. Cr.L.J. 67
Pullamma v. Emp. wherein it was observed. “The same precautions which are
prescribed for recording the confession of accused persons need not be
observed while recording the statements of witnesses and therefore it is not
necessary to exclude the police from the Court. It is not suggested that
Magistrate have not the power, if they think it necessary to ensure the
voluntary character of the witnesses statements and have any reasons which
they ought not to do to exclude the police or in fact any other from the Court
during the examination under section 164. But it must be pointed out that
they are not required to do so by law and that the practice is likely to lead to
the statements of the witness being incomplete as only the police who have
investigated the case know the information which the witnesses are likely to
give and the Magistrate without their help will not be able to elicit all the
witnesses are able to speak to. In such cases it is difficult to discount the
evidence of the witnesses in Court if their statements under section 164
contain any omission and are there for not fully corroborative of the
evidence in Court.”
Section 164–Confessional Statement–Admissibility–Accused stating that
he was party to robbery and was armed with stengun and caught hold of
person and his companion has fired a shot killing that person–Said statement
cannot be said to be exculpatory–Confessional statement can be acted upon
even assuming some part of it is exculpatory in nature. State of Rajasthan v.
Darbara Singh, 2000 Cr. L.J. 2906 Raj.
Section 164–Confessional Statement–Recording of Evidence of
confessional statement clearly put to accused in his statement under section
313–No prejudice caused to accused to vitiate trial. State of Rajasthan v.
Darbara Singh, 2000 Cr.L.J. 2906 Raj.
Section 164–Confession of accused before Judicial Magistrate–Before
acting on the confession, court must be satisfied that procedural
requirements laid down in sub-sections (2) to (4) of section 164 Cr.P.C. are
complied with–These are salutary safe guards to ensure that the confession
is made voluntarily by the accused after being apprised of the implications of
making such confession. Parmananda Pegu v. State of Assam, AIR 2004 S C
4197.
Section 164–Confession though voluntarily made by accused may not be
wholly or partly True–Truth of confession should be tested by court though
voluntary confession can be regarded as presumptive evidence of its Truth.
Parmananda Pegu v. State of Assam, AIR 2004 SC 4197.
Section 164–Murder case–Investigating Officer got recorded statements
of some of the Prosection Witnesses under section 164 Cr.P.C.–It is no
ground to reject their statements–Evidence of such witnesses has only to be
considered with caution and nothing beyond that–In the instant case,
statements of Prosection Witnesses believed because their presence at the
time of incident was not doubted. Ramesh Singh@Photti v. State of A.P., AIR
2004 SC 4545.
 Section 164–The question whether a confession is voluntary or not is
always a question of fact–One important question, in regard to which the
court has to be satisfied with is, whether when the accused made confession,
he was a free man or his movements were controlled by the police either by
themselves or through some other agency–An involuntary confession is one
which is not the result of the free will of the maker of it–So where the
statement is made as a result of the harassment and continuous
interrogation for several hours after the person is treated as an offender and
accused, such statement must be regarded as involuntary. The inducement
may take the form of a promise or of threat. State of Rajasthan v. Rajaram,
AIR 2003 SC 3601.
Section 164 Cr.P.C.–Extra Judicial Confession–Executive Magistrate
recorded confessional statement of accused at police station–Compliance of
provision required under section 164 Cr.P.C. is also not made by the
Magistrate before recording the statement. Such statement could not be
used as extra judicial confession. Smt. Sarojini Devi v. State of U.P., 2008(2)
Crimes 408.
Section 164 Cr.P.C.–Statement under section 164 Cr.P.C. is not a
substantive evidence–It could be used only to corroborate or to contradict
the witness. Ramanand Pandey v. State, 2007(3) Crimes 656.
Section 164 Cr.P.C.–Accused identified in trial court–No Test
Identification Parade conducted–Accused writing two letters addressed to
Sessions Judge wherein he confessed his guilt which lend corroboration to
his identification in the trial court by Prosection Witness and rightly
observed by High Court, the same can be relied upon. Rabindra Kr. Pal @
Dara Singh v. Union of India, 2011(1) Crimes 217 (SC) .
Section 164 Cr.P.C.–Confessional statement exculpatory–Later witness
retracting from the confession–Safeguards like various warnings/cautions
required to be given to the accused not adhered to–Various procedural
lapses noticed by High Court–In view of the accused coming from police
custody and making confession, undue influence or coercion cannot be ruled
out. Such confessions cannot be relied upon. Rabindra Kr. Pal v. Union of
India, 2011(1) Crimes 217 (SC).
Section 164 Cr.P.C.–Whether a witness could appear before a Magistrate
directly to get his statement recorded and whether Judicial Magistrate was
duty bound to take his statement? Held, no. The only condition is that the
appearance of the accused must be “in the course of an investigation" under
Chapter XII of Code. Witnesses is also same therefore, the Judicial
Magistrate has not exercised the jurisdiction vested in him in passing the
impugned order, he should have taken the statement of the
applicants/petitioners who were before him. Makkan Singh v. State of M.P.,
2011(1) Crimes 315.
Section 164 Cr.P.C.–Statement recorded under could not be used as
substantive evidence but only could be used for contradiction or
corroboration of the witness. Brijay Kr. Sahoo v. State of Orissa, 2010(1)
Crimes 76.
 Section 164–Accused had confessed about the killing of his brother, his wife and
their children and causing injuries to the other two children knowing about the
seriousness of the confession. Statement of the accused himself to the Executive
Magistrate at the time when he was admitted in the hospital. Since, he was alive, the
statement recorded by the Executive Magistrate had been treated as statement under
section 164 Cr.P.C. Sham v. State of Maharashtra, 2012(1) SCC (Cri.) 265.
Section 164–It is common knowledge that there is a great gap between what the law
stipulates and the realities on the ground in the enforcement of the law. The abuses of
the provisions of Cr.P.C. are perhaps the most subversive of the right to life and
personal liberty, the most precious right under the constitution, and the human rights of
an individual. Access to a lawyer is, therefore, imperative to ensure compliance with
statutory provisions, which are of high standards in themselves and which, if duly
complied with, will leave no room for any violation of constitutional provisions or human
rights abuses. Mohammad Ajmal Mohammad Mirkasab v. State of Maharashtra, AIR
2012 SC 3565.
Section 164–Accused persons are innocent with respect to the changes levelled
against him. The concurrent findings of fact of the Special Court (POTA) and the High
Court are not only erroneous in fact but also suffers from error in law. This is a fit case
for interference by the court under Article 136 of the Constitution. Adambhai
Sulemanbhai Ajmeri v. State of Gujarat, 2014(3) Crimes 79.

Value of Such Statements

The statements recorded under section 164 Cr.P.C. cannot be used as
substantive evidence. The witness must have to be produced in Court to
make the statement whether he corroborates this statement or contradicts it.
Therefore, the Courts cannot act only upon the statements made under
section 164 Cr.P.C. It was held in Brij Bhushan v. Emp., 1946 PC. 38-47
Cr.L.J. 336. “When the Court discusses in great detail the statements made
by the witnesses under section 164 and gives reasons for accepting the facts
or most of the facts deposed to in these statements in preference to the
evidence given by the witnesses which in on way helped the prosecution, this
is an improper use of such statements.” Also see Bhuboni Shau v. The King
1949 P.C. 257 and Momand v. Emp., 1946 RC . Held by Supreme Court in
1970 Cr.L.J. 1144 that statements under section 164 are not evidence but
are used for corroboration.
In Balak Ram, 1975 C.A.R. 38, the Supreme Court held that the evidence
of witness recorded under section 164 cannot be discarded but it should be
approached with caution. Such witnesses feel tied to their previous
statements given on oath and have but a theoretical freedom to depart from
the earlier version. A prosecution for perjury could be the price of that
freedom. In Phool Chand, 1976 C.A.R. 363 (SC) it was held his statement was
recorded before the Magistrate to get a hold on him because there was an
apprehension of the witness resiling from his statement under pressure of
accused. Precautions must be taken while appreciating the statement
recorded under section 164 Cr.P.C.”
It was held in Kaju, 1986 Cr.L.J. 368 by Calcutta High Court, “there is no
rule of law to take such a witness as suspect from the mere fact that his
statement was recorded under section 164. If his evidence is consistent and
there was reason whatsoever for the police to take the step, the witness can
be believed.”
The statement should be recorded on oath as he is witness. The manner of
recording such statements will be according to Section 164 (5) as is best
fitted to the circumstances of the case and the Magistrate shall have power
to administer oath to the witness.
Section 164–Accused produced in police custody–His confession recorded
by Judicial Magistrate under section 164 Cr.P.C.–Accused retracted the
confession and stated in his statement under section 313 Cr.P.C. that police
had physically tortured him and had promised to make him approver–Held,
confession or to treat is an corroborative piece of evidence. Bhagwan Singh
v. State of M.P., AIR 2003 SC 1088.
Section 164–Confession by accused under section 164 Cr.P.C. before
Judicial Magistarate—
(i) Magistrate in particular should ask the accused as to why he wants to
make a statement which surely shall go against his interest in the
trial.
(ii) Accused should be granted sufficient time for reflection.
(iii) Accused should be assured of protection from any sort of
apprehended torture or pressure from police in case he declines to
make a confessional statement.
(iv) Confession should be recorded in questions and answers form which
is the manner indicated in the criminal court rules.
(v) Before proceeding to record the confessional statement, a searching
enquiry must be made from the accused as to the custody from which
he was produced and the treatment he had been receiving in such
custody in order to ensure that there is no scope for doubt of any sort
of extraneous influence. Bhagwan Singh v. State of M.P., AIR 2003 S C
1088.
Section 164–Judicial confession by accused under section 164 Cr.P.C.–It
must be proved that confession was voluntarily made by the maker–It would
be necessary to put the questions prescribed by the High Court Circulars but
the questions intended to be put under sub-section (2) of Section 164, should
not be allowed to become a matter of a mere mechanical enquiry–No element
of casualness should be allowed to creep in and the Magistrate should be
fully satisfied that the confessional statement which the accused wants is in
fact and in substance voluntary. Ayyub etc. v. State of U.P., AIR 2002 SC
1192.
Section 164–Confessional statement under section 164 Cr.P.C.–Only the
Judicial Magistrate has power to record confessional statement under
section 164 Cr.P.C.–Even a Police Officer on whom power of a Magistrate has
been conferred is forbidden from recording a confession. Gulam Husain
Shaikh Chougule v. Reynolds suptd. of customs Marmgoa, AIR 2001 S C 2930.
Section 164–It is well settled that in case where an order of acquittal has been made
on improper and erroneous appreciation of evidence it is always open to the court of
appeal to make proper and reasonable appreciation of evidence and differ from the
order of acquittal and in such event, it shall never hesitate in reversing the same. Trial
court was totally wrong both in law and in fact, in making its observation that the FIR
was ante-dated and ante-timed and a manipulated one correctly appreciated by High
Court. Held-No interference. Arjan Das Gupta v. State of West Bengal, 2016(4) Crimes
206 SC.

Copy of the Statement

When the Magistrate has recorded the statements of witnesses under
section 164 Cr.P.C. the police officer should move the Court to get the
copies of the statement. The Magistrate must allow the police the copies.
Chapter 13 Punjab High Court Rules and Orders Vol. III.
After getting the copies the police should copy these out in the case diary
for future use. The Magistrate shall after recording these, “forward these to
the Magistrate by whom the case is to be inquired into or tried as is
provided in section 164 Cr.P.C.
The accused can get the copies of the statements of the witnesses
recorded under section 164 Cr.P.C. It was held in 1932, Bashir Uddin v.
Emp. “An accused is undoubtedly entitled to inspect statements of
Prosecution Witnesses recorded under section 164 Cr.P.C. Such document
can be used by the prosecution for the purpose of corroborating the
witnesses. They can likewise be used by the defence for the purpose of
contradicting such witnesses.” Copies of the statement will be given by the
Court to accused before trial under section 207 Cr.P.C.
Section 164–Recording of confession–Application for need not be signed
by accused. State of Rajasthan v. Darbara Singh, 2000 Cr.L.J. 2906 Raj.

Effect of Denial
If the copies of the statements are not given to accused for cross-
examination of witnesses then this has a salutary effect of prejudicing the
accused and if conviction is based then trial is not sound. In 1954 Cr.L.J.
1705 (All.) Shankar Lal. v. State , the copies of statements recorded under
section 164 Cr.P.C. were not given and as such “it was not possible to
speculate what discrepancies if any these statement contained but the mere
fact that an opportunity of cross-examining the witnesses with reference to
these statement and contradicting them, if possible, has been denied to the
appellants is an unmistakable proof of prejudice to them.” It was further
held that, “in the circumstances, the trial was vitiated and the conviction
cannot be allowed to stand.”
 Section 164–Omission to obtain signature of accused at the end of the
confession, would not make it inadmissible as it is curable defect under
section 463. State of T.N. v. Nalini, 1999 Cr.L.J. 3124 SC.
Section 164–Merely because confession was recorded a day or so before
the police officer remand was to expire would not make the confession
voluntary. State of T.N. v. Nalini, 1999 Cr.L.J. 3124 SC.

Use of Statements under section 164 Cr.P.C.

These statements can be used for the purpose of corroboration and
contradiction.
Section 157 Evidence Act allows the use for purposes of corroboration,
while section 145 Evidence Act gives a party right to cross-examine a
witness with reference to his previous statement made by him in writing or
reduced to writing and imposes a duty on the cross-examiner in case he
intends to contradict him with such previous statement to draw the attention
of the witness to such portions thereof as are to be used for the purpose of
contradiction.
Section 155(3) Evidence Act permits a cross-examiner to impeach the
credit of witness by proving a former statement inconsistent with part of his
statement.
It was held in 1957 Cr.L.J. 117 (All.) Abdul Hakim v. State that
Statements
under section 164 Cr.P.C. are not made in the presence of the accused
person and there is no right or opportunity of cross-examining the witness at
the stage. They can, therefore, be used only for a very limited purpose. That
purpose is either to impeach his credit if he makes a different statement
subsequently or to corroborate by statement if he makes a similar statement.
This statement, however, cannot be substituted for the statement which the
witness makes in Court. The statement under section 164 Cr.P.C. is not a
substantive evidence in itself. The witness must be produced as such in
Court. Overruling 27 Cal. 295, and 1938 Patna 290, Supreme Court held in
Ram Charan, 1968 Cr.L.J. 1473 that, ‘if a statement of a witness is
previously recorded under section 164 Cr.P.C. it leads to an inference that
there was time when the police thought the witness may change but if the
witness sticks to the statement made by him throughout, the mere fact that
his statement was previously recorded under section 164 will not be
sufficient to discard it. The Court, however, ought to receive it with caution
and if there are other circumstances on record which lend support to the
truth of the evidence of such witness, it can be acted upon.”
The Supreme Court in 1976 CAR 52 Badri also held that mere fact that his
statement has been recorded under section 164 Cr.P.C. does not mean that
his evidence is unreliable, if his statement otherwise is consistent.
Section 164–Evidentiary Value–Statement of injured witness recorded by
Magistrate as a dying declaration–Consequently upon his survival, it is
treated only as statement recorded under section 164-Such statement can be
used for corrobortion or contradiction. Sunil Kumar v. State of Madhya
Pardesh, 1997 Cr.L.J. 1183 SC.
Section 164(4)–Confession–Admissibility–Accused persons in police
custody before recording confession–Non-Compliance of provisions of section
164(4)–Confession not voluntary and hence inadmissible. Pandi v. The State,
1997 Cr.L.J.2964 Mad.
Section 164–Where a person has made dying declaration before
Magistrate and he survives, his declaration can be used to corroborate or
contradict his testimony. Ramprasad v. State of Maharashtra, 1999 Cr.L.J.
2889 SC.
Section 164–Confession–Voluntariness–Confession recorded almost a full
month after accused was removed from police custody to judicial custody–
Geographical distance between sub-jail where accused was locked up and
police station cannot be consideration to decide possibility of police exerting
control over detenu–Fact that Magistrate belonging to distant place was
asked to record confession in preference to Magistrate at near place–Not a
ground to doubt voluntariness of confession–Further non-explanation by
investigation officer that how he knew that accused was willing to make
confession to him—Is of no consequence. State of Maharastra v. [Link]
Munde, 2000 Cr. L.J.2301 SC.
Section 164–Confession made before Magistrate–Magistrate did not
inform the accused before taking the confession that accused was not bound
to make the confession and that if he did so, such confession might be used
as evidence against him–This is sine qua non for recording a confession–
Magistrate also did not satisfy that accused was going to make a voluntary
confession–Held, confession cannot be said under section 164 Cr.P.C.
Mahabir Singh v. State of Haryana, AIR 2001 SC 2503.
Section 164–Confession–Evidentiary value–Confession if true and reliable
can form the basis of conviction–Whether a statement recorded by Judicial
Magistrate under section 164 from an accused is confessional or non-
confessional is not by dissecting the statement into different sentences and
then to pick out some as not inculpative. The statement must be read as a
whole and then only the court should decide whether it contains admission of
his incriminatory involvement in the offence–If the result of that test is
positive then the statement is confessional otherwise not–As a rule of
prudence, the court must seek other circumstances to corroborate a
confession, particularly when the same is retracted–If it is insisted that
“each and every circumstance mentioned in the confessional statement must
be separately and independently corroborated then the rule would become
meaningless in as much as the independent evidence itself would afford
sufficient basis for conviction and hence it would be unnecessary to call the
confession in aid” Lokeman Shah v. State of West Bengal, AIR 2001 S C 1760.
Section 164–Confessional statements recorded by Magistrate but
signature of accused not obtained which is mandatory confession not
admissible in evidence–It also can not be treated as extra-judicial
confession–However, if a part of confession is excluded under any provision
of law, the entire confessional statement in all its parts, including the
admission of minor incriminating facts must be excluded unless proof of it as
permitted by some other section, such as section 27 of the Evidence Act.
Dhananjay Reddy v. State of Karnataka, AIR 2001 SC 1512.

Can a Witness who resiles from his statement-recorded under section

164 Cr.P.C. be prosecuted under section 193 I.P.C.?
This question often confronts difficulty often a witness resiles from the
statement made under section 164 Cr.P.C. under the pressure of the accused
or for some monetary gain. It is equally argued on the other side that
statement made under section 164 Cr.P.C. was not voluntary and based upon
truth but the result of police pressure.
It is an admitted principle of law that statements recorded by Magistrate
in the course of a police investigation under section 164 Cr.P.C. is evidence
in a stage of judicial proceedings within section 193 I.P.C. Explanation 2.
See for reference 1933 Mad. 215 Maronna v. Emp., 1933 M. W.N. 13, 34
Cr.L.J. 92 See also 1933 Mad. W.N. Cr. 141 1931 Mad. 778 and 1932 Mad.
494.
So, whenever a witness makes statement under section 164 Cr.P.C. and
later in Court which are quite irreconcilable and contradictory to each other,
the obvious and natural presumption is that he made one of the statements
knowing that it was not true. The prima facie case under section 193 I.P.C.
is, therefore, made out against that witness and it is expedient in the
interests of justice to try him under section 193 I.P.C. Illustration (c) 221(2)
Cr.P.C. also supports this view which lays down:
 “A states on oath before the Magistrate that he saw B hit C with a club.
Before the Sessions Court A states on oath that B never hit C. A may be
charged in the alternative and convicted for intentionally giving false
evidence, although it cannot be proved which of these contradictory
statements was false.”
The following considerations summed up by Ramaswamy J. in 1954 Cr.L.J.
374 (Mad.) P.P. v. K Jullaya Supra for seeing whether it was expedient in the
interest of justice to prosecute under section 193 Cr.P.C. or not are:—

Should be Prosecuted
1. The importance and seriousness of the case.
2. Whether the witness was realising the consequence of his act and
intentionally defeating the ends of justice. The age, the relationship of
witness will also count in the matter.

Should not be Prosecuted

1. Whether the circumstances of the case are such that by prosecution we
should be creating an encouragement in belief that it would be better
to go on telling a lie and stick to it.
2. If the circumstances show that witness making statement under
section 164 was practically under custody of police and the statement
appeared to be tutored.
3. Whether statement under section 164 would have been totally false.
The prosecutor should request the Court while arguing the case at the
completion of the enquiry or trial to prosecute such a witness under section
193 I.P.C. as only the Court can file a complaint as required by section 195
Cr.P.C. An application can also be made under section 340 Cr.P.C. to the
Court for filing complaint under section 193 I.P.C. section 195 (b) (i). The
witness who gives false evidence can be summarily tried by the Court if at
the time of delivery of judgement or final order disposing of any judicial
proceeding a Court of Session or Magistrate of the first class expresses an
opinion that a witnesses had knowingly or wilfully given false evidence or
fabricated false evidence and that it was necessary and expedient in the
interests of justice to try him summarily. The witness then, after a
reasonable opportunity has been given to him to show cause can be
sentenced to imprisonment for a term which may extend to 3 months or to
fine which may extend to five hundred rupees or both (section 344 Cr.P.C.).
In case the Court does not choose to proceed under section 344 Cr.P.C, it
can file complaint by proceeding under section 340 Cr.P.C.



Chapter–21
Approver and Accomplice
An approver is one who is directly or indirectly concerned with the
commission of an offence or is privy to it. He is culprit himself along with
others or an accomplice of others, having either taken a prominent part in
the commission of the crime or facilitated or abetted its commission or has
concurred fully in the criminal design of his co-conspirators. He is merely
called approver, though such word is not defined or used in the Criminal
Procedure Code, as he gives evidence against his companions on a pardon
being tendered to him under section 306 Cr.P.C. “Pardon is one of the many
prerogatives recognised as being vested in the sovereign. This sovereign
power to grant pardon is recognized in our Constitution in Articles 72 and
161 and also in Sections 401 and 402 Cr.P.C. (now Sections 432, 433). These
provisions relate to the grant of pardon after sentence has been imposed and
a tender of pardon under sections 337 and 338 (now 306 and 307) is a
variation of this very power. The grant of pardon whether it is under Articles
161 or 72 under sections 337, 238, 401 and 402 of the Code is the exercise
of sovereign power, 1969 Cr.L.J. 45 [Link].

When and Why?

A police officer often deals with a case in which there is not direct
evidence and the direct clues making out a case against the culprits and to
bring home the guilt to them. It is also found out that perpetrators of crime
are more than one, who have been conspiring and taking steps for its
commission and the secret of crime is also shared and respected by them. In
such cases it is very difficult to collect sufficient evidence to prosecute such
offenders in the court. So, the “secrecy of crime, the scarcity of the clues
solely for the purpose of apprehension of other offenders, the recovery of the
incriminating objects and production of evidence otherwise unobtainable”,
necessitate the course of tendering pardon for makjng an approver in the
case. The police officer should always hesitate to adopt this course if there
is direct evidence in the case. It was held in 1952 Cr.L.J. 1339 (HP) Ram
Chand v. State that, “It was only in exceptional cases that prosecution
should more or the Magistrate exercise powers for tendering pardon to an
accomplice under section 306 Cr.P.C. One such circumstances may be that it
is otherwise not possible to bring guilt home to accused”. In this case there
were six eye witnesses.
This method can also be resorted to in cases where the police officer has
to, “rely upon the statement of approver in order to be able to get complete
details about the crime where there is not other satisfactory method of
getting all the evidence in the case”, as held in 1952 Cr.L.J. 785 (Hyd.)
Abdul Munim Khan v. State.
So, in every case, this concession is not to be given. There are also
category of cases, in which only according to law a pardon can be tendered
under section 306 Cr.P.C. These are offences triable exclusively by the Court
of Sessions or by the Court of a Special Judge or any offence punishable with
imprisonment which may extend to 7 years or with a more severe sentence.
Offences under Prevention of Corruption Act (49 of 1988) are triable by
Special Judge.
In one transaction if more than one offences are committed and one of
which is punishable with less than 7 years but others are punishable with
more than 7 years, still an approver can be made; see 1984 Cr.L.J. 538 G.K.
Ralhan.
An approver can be made one who has committed the crime himself along
with others. It is not necessary that he must have taken prominent part but
any accomplice can be tendered pardon who is “supposed to have been
directly concerned in or privy to the offence” section 306(1), or who has the
intention to assist merely (1920 Cal. 980) or who in some way or other is
connected with the crime 1933 (Rang. 99) or who concurs fully in the
criminal designs of his conspirators (1928 Lah 193). See Avtar Singh, 1960
Punjab 364, it is not necessary that he is accomplice or implicates himself or
as held in Maghar Singh, 1975 SC 1320 must have taken active part. It was
sufficient that he was privy to or an abettor in the commission of offence.
Accomplice witnesses–Evidentiary value–Evidence of accomplice cannot be used to
corroborate with each other while the evidence of an accomplice can be used to convict
an accused, as a rule of prudence, the court must first ensure that the testimony of the
accomplice is corroborated in material particulars by adducing independent evidence. It
is also a well settled position of law that the evidence of two accomplice cannot be used
to corroborate with each other. The combined effect of sections 133 and 114 illustration
(b) is that though a conviction based upon accomplice evidence is legal the court will
not accept such evidence unless it is corroborated in material particulars. The
corroboration must connect the accused with the crime. It may be direct or
circumstantial. Somasundaram @ Somu v. State, 2016(10) JT 86.
Accomplice witnesses–Evidentiary value–Testimony of witness–An accomplice shall
be a completent witness against an accused persons-Conviction is not illegal merely
because it proceeds upon the uncorroborated testimony of an accomplice.
Somasundaram @ Somu v. State, 2016(10) JT 86.
Co-accused statement–Confessional statement of co-accused cannot by itself be
taken as a substantive piece of evidence by Court against another co-accused and can at
best be used or utilized in order to lend assurance to the court. Surinder Kumar Khanna
v. Intelligence Officer Directorate of Revenue Intelligence (Cri. Appeal No 949 of 2018,
decided on 31.7.18.
Accomplice evidence–Murder case–No law that evidence of accomplice
deserves out right rejection if there is no corroboration–Court should
analyse such evidence with great care and caution–Though there is no legal
necessity to seek corroboration of accomplice’s evidence, it is desirable for
the court to satisfy the judicial conscience that the evidence is true. State of
Tamil Nadu v. Suresh & Another, AIR 1988 SC 1044.
Accomplice–Testimony and value of–Though there is no legal hurdle
against acting on the testimony of an accomplice, it is well settled that it
would be imprudent to base a conviction on such testimony unless it is
corroborated. Ramprasad v. State of Maharashtra, 1999 (2) JCC (SC) 300.
Section 114(b)–Court may presume that an accomplice is unworthy of
credit, unless he is corroborated in material particulars. State of
Maharashtra v. Abu Salem Abdul Kayum Ansari, 2010(4) Crimes 209 SC.
Section 114(b) and section 133 Evidence Act–The deposition of an
accomplice in a crime who has not been made an accused/put to trial, can be
relied upon, however, the evidence is required to be considered with care
and caution–An accomplice who has not been put on trial is a competent
witness as he deposes in the court after taking oath and there is no
prohibition in any law not to act upon his deposition without corroboration.
Prithipal Singh v. State of Punjab, 2011(4) Crimes 259 SC.
It is further not necessary that he must have been arraigned as an
accused. He might not have even arrested and still can be granted pardon.
The Supreme Court held in Pascal Fernandes, 1968 SC 594 “there can be no
doubt that section is enabling and its terms are wide enough to enables the
Special Judge to tender a pardon to any person who is supposed to have been
directly or indirectly concerned in or privy to an offence. This must
necessarily include a person arraigned as an accused before him. But it may
be possible to tender pardon to a person not so arraigned. The power so
conferred can also be exercised at anytime after the case is received for trial
and before its conclusion”, Also see 1976 Cr.L.J. 2004 (Orissa) Rabi Dass.
Prudence should, however, be exercised that a real and crude culprit is
not made approver to escape punishment.

Some Precautions
1. The accused who is thus tendered pardon should not have remained
long in the custody of the police. This will badly reflect upon his
evidence which may be considered to be tainted and under the
pressure and influence of police.
2. The accused should not have been tendered pardon on the prompting
and promises of police officers or persons interested in police and
complainant.
3. The statement of approver should not have been recorded practically
long after the completion of investigation. This, however, depends
upon circumstances of each and every case.
As such, it is always just and legal, if the accused himself gives
application from the jail, while in judicial custody to show his inclination to
reveal everything in his knowledge on the condition of being tendered
pardon. A pardon can, however, he tendered at any stage of the inquiry or
trial.
There is also no harm if accused whose confession has been recorded by a
Judicial Magistrate under section 164 Cr.P.C. is tendered pardon later on. In
1954 Cr.L.J. 1638 (S.C) AJ. Reiris v. State of Mad . The District Magistrate
had tendered pardon to Albert on 28th August, 1952 when he admitted
before him that the confession by him at Bombay (14, 18 and 19 August,
1952) before a Magistrate was voluntary. This course was not held to be bad.

Who can Tender Pardon?

When it is decided to make one an approver, then he should be produced
with the forwarding letter of S.P. before any of the Magistrates and Courts
having authority to tender pardon under section 306 and 307 Cr.P.C.
1. A Chief Judicial Magistrate or a Metropolitan Magistrate has
unrestricted power to tender pardon whether the offence is under
investigation, inquiry or trial or whether the inquiry or trial is held by
himself or not section 306 Cr.P.C.
2. A Judicial Magistrate first class can also tender pardon at the stage of
enquiry or trial under section 306 Cr.P.C. if the Magistrate himself be
holding the trial or inquiry.
3. Under section 307 Cr.P.C. power is given after the commitment to the
court to which the commitment is made, to tender pardon before
judgement is passed.

Procedure for Tender of Pardon

This is the procedure, how a Chief Judicial Magistrate or Judicial
Magisrate First Class will proceed when accused is produced before him for
making approver:
Case F.I.R.–Dated (offence) u/s 302-I.P.C. PS...................
State Versus A, B,C and D
A, mentioned above is present in custody in connection with the above
mentioned case which is still under investigation (state if otherwise). It has
been requested by the police that he may be given a tender of pardon under
section 306 Cr.P.C. His statement may be recorded.
Sd.C.J.M./Date
Statement of A............
 Q.1. Do you know that you are appearing in the Court of C.J.M. (Place)?
Ans.
Q.2. Are you aware of the fact that you have been arrested in connection
with the above mentioned murder case and produced before me for the
purpose of being tendered pardon?
Ans.
Q.3. Are you prepared to offer yourself of your own free will and consent
and without any influence from anybody to accept pardon in the aforesaid
case on the condition that you will make a true and full disclosure of all the
circumstances within your knowledge relating to the above said offence and
all other offences connected therewith whether as principal or abettor?
Ans.
Sd.C.J.M/Date

ORDER
It has been requested by the prosecution that A, son of, resident of may
be tendered a pardon under section 306 Cr.P.C, in connection with the case
F.I.R......
I have heard the facts of the case in which..............accused persons are
involved for the murder of................(deceased) about (time) years ago
within the area..........
It seems to be a case of conspiracy which rests mainly on circumstantial
evidence. In the absence of sufficient direct evidence, I consider it necessary
in the interests of justice that one of the accused may be made approver in
this case. In my opinion A...seems to be a suitable person for the purpose
and he willingly offers himself to accept pardon.
Therefore, I............... (name) Chief Judicial Magistrate (place) in exercise
of the powers conferred upon me under section 306 Cr.P.C. hereby tender
pardon to the said A on the condition of his making a full and true disclosure
of all the circumstances within his knowledge relating to the above said
offence and to offences connected therewith whether as principal or abettor
in the commission thereof.
This order has been read over and explained to A aforesaid and he
accepts the tender of pardon on the above conditions.
Signature or T.I. of A
Sd: C.J .M./Date
I further direct that A aforesaid may be produced before .....J.M.I.C. for
the purpose of recording statement.
Signature & Date
As is apparent from the above, the reasons for tender of pardon must be
explicitly stated. The approver should also be made clearly to understand the
extent of pardon offered to him and the condition under which he is tendered
pardon, Chief Judicial Magistrate shall also record if accused accepts
pardon. (Section 306 (2) Cr.P.C.).
After the pardon is tendered, his statement should be recorded under
section 164 Cr.P.C. on oath by J.M.I.C. as that of a witness. Approver is no
longer an accused after the pardon is tendered to him. 1957 Cr.L.J. 67 Bhan
Singh (M.P). The order tendering pardon is not a Judicial Order and is not a
revisable order. Even the co-accused have no right to object to the making of
a tender of pardon. M.M. Kochar Supra.
Sections 306 and 460(a)–Pardon–Grant of–Power of Chief Judicial
Magistrate–Pardon granted by Chief Judicial Magistrate after commitment of
case–Not a curable irregularity. R. Pandian v. State of Tamil Nadu, 1990
Cr.L.J. 814 SC.
 Sections 306 and 307–Pardon–Grant of–Commitment of case power to
grant pardon thereafter lies only with the court to which commitment is
made. R Pandian v. State of Tamil Nadu, 1998 Cr.L.J. 814 SC.
It was also held in State of U.P. v. Kailash Nath Aggarwal, 1973 Cr.L.J.
1196 SC that if an authority refuses to grant pardon, another authority or
the same authority can again grant pardon on a further request by
prosecution by “only if fresh or additional facts are placed,” before him.
As for statements under section 164 Cr.P.C. and the formalities see
Chapter XX. The copy of the record of reasons while tendering pardon by
magistrate and if he accepts pardon can be given to accused free of cost.
(Section 306(3) Cr.P.C).
The police can get the copy of the statement of the approver. It should be
copied out in the case diary.
Sections 306 and 307–Accomplice evidence–Investigating Officer not
adhering to prescribed procedure–Granting him pardon by himself deciding
matter not proper. 1997 Cr.L.J. 3876 (MP).
Section 133–Approver–Murder case–Approver stating that he was party to
conspiracy to murder–His evidence comported by prosecution witnesses and
medical evidence consecrated by prosecution witnesses and medical
evidence–Some discrepancy in his evidence as regards injuries caused by
blunt weapon–His evidence not liable to be rejected. Balbir Singh v. State of
Rajasthan, 1997 Cr.L.J. 1179 SC.
Section 306–Approver–Once an accused is granted pardon under section
306 Cr.P.C., he ceases to be an accused and becomes a witness for
prosecution–It is illegal to show approver as accused. Shakoor v. State of
Rajasthan, 2004(2) RCR (Cri.) 224 (Rajasthan).
Section 306–Tender of pardon to accused–Accused shall be presumed to
have been discharged if case has not been committed and charges have not
been framed and if charges were framed, his prosecution shall not proceed.
Phulan Shah @ Phullu v. State of U.P. Cr.L.J., 2000 (All.).1520.
Section 307 Cr.P.C.–Tender of Pardon–Section 306 Cr.P.C. was applicable
where order of commitment had not been passed–Section 309 applied after
commitment of the case subject to conditions specified in sub-section (1) of
section 306–Section 307 Cr.P.C. did not contemplate recording of the
statement of approver twice–It would not be for trial court to have
considered the possible weight of approver evidence even before it was
given–Impugned order dismissing application of an accused in an offence
under sections 302, 404, 201 and 120B I.P.C. on ground that accused himself
was not ready and willing to get any sort of statement recorded was illegal
and liable to be set aside–Matter remitted. State of Gujarat v. Zala Kanubhai
Kantuji, 2007(3) Crimes (Guj).
Sections 307 and 306–Approver–Tender of Pardon–While exercising power
to tender pardon, such power is not to be exercised on behalf of court but on
behalf of prosecuting agency–Court is only expected to see where accused
makes an application seeking tender of pardon, whether prosecution had
joined in the request and whether such accused would make a full and true
disclosure of whole of circumstances within his knowldege relating to
offence. Judge must not take on himself task of determining propriety of
tendering pardon–Extent of role of accused seeking pardon can not be
consideraton while exercising powers–Merely stating “No objection” for
tendering pardon, would not be sufficient. Prosecution must join in the
request made by accused for reasons stating as to why tender of pardon was
necessary and the conviction of other accused was not easy without
approvers testimony–Impugned order rejecting application of accused
without considering all such relevant aspects was liable to be set aside and
matter remitted. Al-Saleha Beig v. State, 2008(2) Crimes 538 (Bom.).
Accomplice witnesses–Pardon to co-accused, on condition of his making a full and
true disclosure of the whole circumstances within his knowledge. The object of section
306 is to allow pardon in cases where heinous offence is alleged to have been
committed by several persons so that with the aid of the evidence of the person granted
pardon, the offence may be brought home to the rest. The basis of the tender of pardon
is not the extent of the culpability of the person to whom pardon is granted, but the
principle is to prevent the escape of the offenders from punishment in heinous offences
for lack of evidence. State of Rajasthan v. Balveer @ Balli & Anr., AIR 2014 SC 1117.
Accomplice Witnesses–Confessional statements of the accused–Evidence of the
accomplices cannot be used to corroborate the confessional statements of the accused
persons in the absence of independent evidence. Further there was an inordinate delay
in recording of the statements of the accomplices and this casts a grave suspicion on
the reliability of the testimony of the accomplices; Adambhai Sulemanbhai Ajmeri &
others v. State of Gujarat, 2014(7) SCC 716.
See Gagu 1975 Cr.L.J. 670 (Gujarat) . It is not obligatory on prosecution to
record such a statement under section 164 before or even after a pardon is
tendered to him.
Illegality of Tender of Pardon and Its Effect
If tender is invalid or illegal, by the authority being incompetent to
tender pardon:
(i) The approver is relegated to the position of accused and can be tried
as such.
(ii) He can still be examined against the other accused as an accomplice
witness not being jointly tried with the other accused.
(iii) And after his evidence as such challaned separately.
[See State of Andh. Pra. v. Ganeshwara Rao, 1963 SC 1850 (Para
57)].

Tender of Pardon not Followed by Acceptance

Mere tendering of pardon does not make an accused approver.
It is necessary that tender of pardon must be accepted by the accused. If
the accused does not make the statement under section 164 and changes his
mind saying that he was not prepared to be an approver and accept pardon,
he can be sent up as an accused. No question of compliance of section 308
Cr.P.C. by getting certificate of public prosecutor is required in that case.
Refer Bipin Behari Sarkar, 1959 Cr.L.J. 102 , since he never agreed to accept
the tender of pardon.

Examination of Approver
Approver must be examined in court of enquiry for purposes of
commitment of accused to Court of Sessions for trial, otherwise, it will be
illegality 1976 Cr.L.J. 770. In re Rama Swamy.
Sections 306 and 307–Pardon–Grant of–Pardon granted u/s 307 to accused
after commitment of case to Court of Session–Compliance with provisions of
section 306(4) not necessary. R. Pandain v. State of Tamil Nadu, 1998 Cr.L.J.
814 SC.
Section 306–Pardon–Grant of–Commitment of case–Power to grant pardon
thereafter lies only with the court to which commitment is made. R. Pandian
v. State of Tamil Nadu, 1998 Cr.L.J. 814 SC.
Section 306–Grant of Pardon–Making confession or incriminatory
statement is not pre-requisite by person seeking pardon–Statement should be
made by one who is directly or indirectly concerned in or privy to offence
and grant of pardon is subject to such person making full and true
disclosures of whole of circumstances within his knowledge relating to
offence. Senthamarai v. K. Krishnaraj Cr.L.J., 2002 Mad. 2375.
Section 306–Object and purpose of grant of pardon–Section 306 Cr.P.C. is
exception to principle that no inducement shall be offered to person to
disclose about commission of offence–Object of granting pardon is that
oftenders of heinous and grave offences do not go unpunished. Power of
tender of pardon is to be exercised where prosecution considers that
evidence of accomplice is necessary. Senthmarai v. S. Krishnaraj Cr.L.J.,
2002 Mad. 2375.
Section 306–Tender of pardon to accomplice–After grant of pardon to
approver his statement was recorded by Magistrate–Charge-sheet was filed
later on–It was not incombent on committing Magistrate to again record the
statement of approver–Approver is competent witness but his evidence has to
satisfy doubt test–His evidence has to be reliable and his evidence must
receive corroboration. Satish v. State of Rajasthan, 2008(1) Crimes 492
(Raj.).
Sections 306 and 307 Cr.P.C.–Conviction under section 302 IPC on
evidence of approver–Tender of pardon. In a case exclusively triable by
Sessions Court, if an accused is tendered pardon and is taken as approver
before commitment compliance of sub-section (4) of Section 306 is
mandatory. If an accused is tendered pardon by court to which the case is
committed in such a case provision of sub-section (4)(a) of section 306
Cr.P.C. are not attracted. The plain language of section 307 Cr.P.C. makes it
clear that after commitment of the case, the power to tender pardon lies
under the Code with the court to which the commitment is made and not with
any other Magistrate including the C.J.M. After a criminal proceeding is
committed to the Court of Sessions, it is only the Court of Sessions which
has the jurisdiction to tender pardon to the accused. Md. Mantaz Ali v. State
of Assam, 2009(2) Crimes 55 (Gau.).
Approver–Evidentiary Value–Held–As per section 133 of Evidence Act
accused can be convicted upon the uncorroborated testimony of approver–
However, the established rule of practice evolved on the basis of human
experience since times immemorial, is that it is unsafe to record a conviction
on the testimony of an approver unless the same is corroborated is material
particulars by some untainted and credible evidence–Approver’s testimony
needs corroboration. Venkatesha v. State of Karnataka, 2013 Cr.L.J. 552.
Approver–Trial of number of accused persons–Pardon tendered to one of
the accomplices–When the pardon is tendered to an accomplice under
section 306 Cr.P.C., the accomplice is removed from the category of co-
accused and put into the category of witness and the evidence of such a
witness as an accomplice can be the basis of conviction as provided in
section 133 of Indian Evidence Act. State of Rajasthan v. Balveer @ Balli,
2013(4) RCR (Cri.) 971.

Custody of Approver and Bail

The approver, then should be sent to jail with an order to the
Superintendent Jail that he is to be kept separately. The approvers are not to
be kept along with the other under trials. If there are more than one
approvers in a case then statements are to be recorded separately by
separate Magistrates and they are also to be kept in detention in jail
separately from each other. The custody is judicial and not police. The
Magistrate can also make order about his diet. 1965 (2) Cr.L.J. 557 (Kerala)
Killmanni Abu.
The approver is to be kept in detention unless he is already on bail till the
decision of the case. Section 306(4)(b) provides so. He should not be
released on bail as provisions of Section 437 and 439 Cr.P.C. do not apply to
approvers. It was held in 1952 Mad. 833/1953 Cr.L.J. 45 (Mad.) Karupa
Servai v. Kunduru following 1951 Orissa 78. “Even if sections 497 or 498
(now 437, 439) Cr.P.C. apply to approver, it would not be a fit case for
releasing an approver on bail in a murder case.” It was held further in this
ruling that even after commitment the approver cannot be released on bail,
whether the approver has supported the case at the time of inquiry or not. It
was held, in Pajerla Krishna Reddy, 1952 Mad. 833, the fact “that approver
has turned hostile is immaterial and he cannot be released.” Even High
Court has no inherent power to release on bail. But if there is no challan and
the approver is in detention for several months, High Court can release
approver on bail in exercise of its inherent powers. A.L. Mejra v. State, 1958
Cr.L.J. 413, (Punjab).
In 1982 (2) C.L.R. 80 Mohammad , it was held that approver cannot be
released on bail till termination of trial, but once he has satisfied the
conditions on which he was tendered pardon, the High Court in exercise of
its inherent powers can release on bail. If approver does not comply with
conditions on which tender of pardon was made, is not entitled to bail. 1989
Cr.L.J. 1268.
The principle is that the approver is to be kept in safe custody to be free
from police control or the influence of the accused or complainant. The
interviews in jail are also not to be allowed except with the permission of
D.M. The release on bail of the approver in contravention of sub-section 306
(4) (b) Cr.P.C. is illegal and may be liable to be set aside by a superior court
but does not touch the validity of the pardon. “His evidence will be still
relevant even if released on bail. See Kallimani Abu Supra.
The approver cannot be committed to Court of Sessions, 1961 Gujarat 49
State v. Mati Jusabhiya.

Is Section 306(4)(b) Cr.P.C. arbitrary and unconstitutional?

The answer is no. This point arose in 1956 Bhopal 4, Bhawani Singh v.
State. It was held that rule contained in section 337 (3) (now section 306(4)
(b) Cr.P.C. applied to all approvers and as such cannot be said that it makes
a differentiation and on this ground is contrary to the provisions of
Constitution of lndia 1965 Mad. 461.

The Status of an Approver

The status of an approver is novel one. He is neither an accused, nor a
witness. He is not an accused as is not being prosecuted after tender of
pardon. He, as a matter of fact, becomes a witness. He cannot be strictly
speaking a witness as he cannot move about freely and is to be kept in
detention till the termination of the case. It was held in A. J. Reires Supra
the moment the pardon is tendered to the accused, he must be presumed to
have been discharged, whereupon he ceased to be an accused and becomes a
witness. A formal order of discharge is not a necessity. An approver can
become an accused only when public prosecutor certifies under section
308(1) Cr.P.C. that in his opinion, the approver has wilfully concealed
anything essential or given false evidence or not complied with the
conditions on which the tender of pardon was made. In such a case the
approver has to be prosecuted for the main offence, (i) When he does not
make statement in conformity with pardon or gives hostile evidence being
won over by accused or it is not in accordance with one given up under
section 164 Cr.P.C. after a tender of pardon in the court of inquiry or trial;
(ii) When he refuses to give evidence on behalf of prosecution at any stage of
the case after acceptance of tender of pardon as an approver; (iii) When he
is unwilling to step in the witness box as an approver, he forfeits pardon in
all the above cases and can be tried for the main offence but not without
certificate from public prosecutor and also not jointly with other accused.
See proviso to section 308(1) Cr.P.C. and also State of M.P. v. Dal Chand
Hardayal, 1960 M.P. 63. (The approver can plead in such trial that he had
complied with the conditions of the pardon). The approver can also be
prosecuted for perjury for giving false evidence in any court. For such
prosecution the sanction of High Court is necessary. 10 P.R. 1904, 308 (1)
Proviso Cr.P.C. The complaint under section 193/194 I.P.C. for perjury will
be by the court which recorded the statement as required by section 340
Cr.P.C. read with section 195 Cr.P.C.
It was held in State v. Gurdial Singh Mohinder Singh 1967 Punjab 31 that
“the approver can’t be tried both for the original case and perjury when he
resiles from his previous statement. It should be either for original case or
for false evidence.”

Remand to Custody
The approver should not be remanded to custody of the police after his
statement has been recorded. If any recovery is to be made as a result of the
statement of approver recorded by a Magistrate, then the Magistrate should
get it effected and he should not be handed over to police for this purpose.
It was held in 1936 L 278 that process of returning the approver to police
custody after confession was highly improper and the police control was
sufficient to cast a suspicion on statement.

Value of the Statement of an Approver and Corroboration

The rule is that an approver’s statement alone cannot be formed the basis
of conviction. An approver is undoubtedly a competent witness under section
133 Evidence Act and a conviction is not illegal merely because it is not
corroborated. But it was held in Ravinder Singh, 1975 SC 856 : 1956 Cr.L.J.
755 that it was “In a rare case taking into consideration all the factors,
circumstances and situations governing a particular case, conviction based
upon the uncorroborated evidence of an approver confidently held to be true
and reliable by the court may be permissible. Ordinarily, however, an
approver’s statement has to be corroborated in material particulars bridging
closely the distance between the crime and the criminal”. It was held in
Sarwan Singh v. State of Punjab, 1957 Cr.L.J. 1014 (SC) approver’s evidence
has to satisfy a double test. His evidence must show that he is liable at
witness and that is a test which is common to all witnesses. If this test is
satisfied, the second test which still remains to be applied is that the
approver’s evidence must receive sufficient corroboration. This test is
special to the cases of weak or tainted evidence like that of the approver.”
The Supreme Court in case Ram Narian, 1973 Cr.L.J. 914 has held that, it is
only when the approver’s evidence is considered otherwise acceptable that
the court applies its mind to the rule that his testimony needs corroboration
in material particulars connecting or tending to connect each one of the
accused with the crime charged. 1963 (2) Cr.L.J. 104 Mohinder Singh Nahar
Singh (Punjab) (not corroborated only when otherwise approver is reliable).
It is not essential for the prosecution to prove that an approver to be
considered reliable is a penitent witness. The maxim “Falses in unofalsus in
omnibus” is not applicable to approvers. 1967 All. 64 Devi Parsad.
It was held in Abdal Munim Khan v. State of Hyd., 1953 Cr.L.J. 785.
“Primarily as approver is a man admittedly guilty of a crime and the
prosecution relies upon his statement in order to be able to get complete
details about the crime where there is no other satisfactory method of
getting all the evidence in the case. Therefore, in such cases where a court
has before it the evidence of an approver, corroboration is always insisted
upon by way of “Ex-Major Cantela.” As regards corroboration, it is sufficient
if it is corroborated in material particulars and qua each accused.” 1963 SC
599 Bhiva Daula Patil. For this purpose, it has been pointed out by Supreme
Court in Barsay Major, 1961 SC 1762 and State of AP v. Ganeshwar Rao,
1963 SC 1850, that “While it must be shown that an approver is a witness of
truth, the evidence adduced in a case cannot be considered in compartments
and that even for judging the credibility of an approver the evidence led to
corroborated him in material particulars would be relevant for
consideration.”
The guidelines with regard to the evidence of approver have been
summarised in Data Ram, 1977 Cr.L.J. 1428 (Rajasthan) after detailed
discussion of case law at the point as under:
1. According to section 133 Evidence Act, an approver is a competent
witness and conviction shall not be illegal if based upon an
uncorroborated testimony of approver;
 2. According to illustration (b) of section 114 Evidence Act the court may
presume that an approver is a man of untrust. Worthiness until he is
corroborated in material particulars;
3. Court should not ordinarily convict unless the evidence of the approver
is corroborated in material particulars qua the accused and if more
than one qua each accused;
4. Such corroboration can be direct or circumstantial;
5. If the evidence of approver is intrinsically or inherently impossible or
is otherwise undesirable or unacceptable, it should be rejected
straightway without caring to seek for corroboration;
6. There are several circumstances by which the reliability of an
approver has to be judged, one reliability test is that he is
corroborated by other evidence in material particulars;
7. The approver should be the one who participates in crime on his own
admission or appear to be so by evidence.
It is, therefore, necessary that an l.O. should search for the corroborated
evidence. Every particular as regards the person who took part in the crime
and the particular acts done by them should find corroboration. The
corroboration should be independent. It can be oral as well as documentary.
It can be in the nature of direct evidence as also in the nature of
circumstantial evidence.
To make the evidence of the approver, look truthful, the corroboration of
the approver should be found in the discovery of the evidence and clues from
the statement made by him before the Magistrate. It will show that the clues
and the circumstances shown by approver to be existing were genuine. This
aspect of the case was discussed in 1952 Cr.L.J. 986 Kartar Singh and it was
held “On the other hand when the confession is recorded late, it is quite
useless to look into the approver’s evidence. An early confession would
enable us to look into the approver’ s evidence. An early confession would
enable use to see if it contains variable indications of the approvers having
preferably taken part in the dacoity, but if it is made at the close of the
investigation, this is impossible. In fact, any jail bird can be made to state he
was in this of that particular dacoity, describe what by that turn in
practically common knowledge and name these already arrested by the
police. Again if the confession is turn is recorded early and contains
particulars of the co-accused, the parts played or the property taken by
them, it is possible to arrest these and check the correctness of the
confession in the light of the results of the arrest and search. Then the
corroboration in particular can be obtained or at least looked for and it
would be of real assistance to the Investigation Officers. If it is recorded
after the completion of the investigation, it cannot serve the purpose of
giving fresh clues, but can only be used for the dubious purpose of giving
fresh clues, but can only be used for the dubious purpose of emphasizing or
completing a preconceived prosecution theory by attempting to fill in the
gaps in the evidence.
The principle is the same as was laid down in 1933 Oudh 166 Mata Din v.
Emp., wherein it was observed that a true confession made by a person who
takes part in a murder invariably adds something to the knowledge already
possessed by the Investigating Officer and that is the greatest test of its
truth.
As held by Supreme Court in 1954 Cr.L.J. 1313 Hem Raj v. State of Ajmer
where Mata Din’s case was distinguished, it was held. “The contention that a
confession can only be corroborated by evidence discovered by the police
after a confession has been made and any material that is already in their
possession cannot be put in evidence in support of it is not valid.”
The nature and extent of corroboration must necessarily vary with the
nature and circumstances of each case. One view was that independent
evidence lending to verify any part of the testimony of accomplice should
suffice. The other view required that it was true and involved other accused
also. The rules of corroboration are formulated in Rameshwar Kalyan Singh,
1952 SC 54 as under.
First, it is necessary that there should be independent confirmation of
every material circumstance in the sense that independent evidence in the
case should in itself be sufficient for conviction;
Secondly, the independent evidence must not only make it safe to believe
that the crime was committed but must in some way reasonably connect the
accused with it;
Thirdly, the corroboration should come from some independent source-
one accomplice would not be sufficient to corroborate the other;
Fourthly, the corroboration need not be the direct evidence that the
accused committed the crime; it is sufficient if it is circumstantial evidence
of his connection with the crime;
In Balwant Kaur, 1988 SC 139 , it was held that approvers evidence in
regard to complicity of accused in conspiracy was lacking corroboration on
certain material particulars necessary to connect accused; benefit of doubt
was given.
The evidence of approver must be corroborated. In 1988 Cr.L.J. 842, the
witness who identified case property in a parade was not produced and the
prosecution wanted to corroborate approver by production of identification
parade memo. Held it could corroborate as:
(1) what he identified and stated to Magistrate would be only hearsay
evidence;
(2) what he stated to Magistrate at Test Identification Parade is not
subjected to cross-examination and was at the back of accused. In
1988 S.C. 672, Ranjit Singh, recovery of weapon at the instance of
accused was a big circumstance lending reassurance by way of the
corroboration to the evidence of approver.
Sections 306 and 307–Offence under Special Court Act of 1992–Tender of
pardon to accomplice–Special Court has power to grant pardon–It was not
necessary to make special provisions in the Act of 1992 conferring power on
the Special Judge to grant pardon at trial or pre-trail stage–The Special
Judge is a court of original criminal jurisdiction and has all the powers of
such a court under the Code including those of sections 306 to 308 of the
code, the same not having been excluded specifically or otherwise–the power
under section 307 cannot be denied merely because no commitment of the
case is made to the Special Court. Harshad S. Mehta v. State of
Maharashtra, AIR 2001 SC 3774.
Sections 306 and 307–Approver–Power to grant pardon–Power to actually
grant the pardon is vested in the court, obviously the court can have no
interest whatsoever in the outcome nor can it decide for the prosecution
whether particular evidence is required or not to ensure the conviction of
the accused. That is the prosecution’s job. Jasbir Singh v. Vipin Kr. Jaggi,
AIR 2001 SC 2734.
Sections 306 and 308–Approver–Accused turned an approver, but his
pardon withdrawn as he did not comply with conditions of pardon–Trial of
approver for original offence–It is mandatory for court to ask him whether he
pleads that he has complied with the provisions–These mandatory provisions
not complied with–Trial vitiated and retrial ordered. Surjay Bdr. Darjee v.
State of Sikkim Cr.L.J., 2006 Sikkim 2163 (DB).
Section 306(3)–Approver–Chief Judicial Magistrate, Metropolitan
Magistrate and Magistrate first class have power to tender pardon to an
accomplice under section 306(1) Cr.P.C. not only during the stage of inquiry
or trial but also during the stage of investigation and such Chief Judicial
Magistrate or MM, as the case may be, need not be himself enquiring into or
trying the offence–But in the case of a Magistrate first class, the power to
tender pardon to an accomplice can be exercised only by the Magistrate
inquiring into or trying the offence and the power in available to be
exercised only at the stage of such inquiry or trial and no such power is
given at the stage of investigation–Person to whom the pardon is tendered
need not be an accused–It is enough if he is directly or indirectly concerned
in or privy to an offence of the category falling under section 306(2) . 1998
(1) RCR (Cri.) 440 (SC) relied on. Asokan L.S. v. State of Kerala, 2005 (4)
RCR (Cri.) 536.
Section 306 (4) and (5)–Grant of pardon to accused–Power to tender
pardon is not controlled by sub-section (4) or (5) of section 306. These sub-
sections deals with the matter pertaining to post-pardon stage–These
provisions only show that where there is no commitment, sub-section (5) of
section 306 will not apply–But he does not take away the power of pardon as
provided in sub-section (1) of section 306–It only mean that these provisions
will apply to the extent applicable. Harshad S. Mehta v. State of
Maharashtra, AIR 2001 SC 3774.
Section 306(4)(a)–Approver–Statement of approver recorded by
Magistrate under section 306(4)(a) Cr.P.C.–Death of approver before his
examination by trial court–Statement of approver is not admissible under
section 33 of Evidence Act as accused had no right of cross-examination of
approver under section 306(4)(a) Cr.P.C. AIR 1963 SC 1430 relied. Asokan
L.S. v. State of Kerala, 2005 (4) RCR (Cri.) 535.
Section 306(4)–Tender of Pardon–Examination of approver proceedings
before Magistrate is neither inquiry not trial–Plea that approver should be
examined in open court and not in chamber–Not tenable–Further approver
must not be examined in presence of accused–Giving opportunity to accused
to cross-examine approver was not necessary. Ranadhir Basu v. State of
West Bengal, 2000 Cr.L.J. 1417 SC.
Sections 306(4)(a) and 465(2)–Tender of pardon–Validity–Accused failed
to raise plea court that they were not permitted to cross-examine approver–
Nor objected when approver was examined and cross-examined during trial–
can not be permitted to raise such type of plea at stage of final arguments–
Moreso when no failure of justice or prejudice shown to have been caused
because of said omission–Section 465(2) would be attracted–Trial not
vitiated of State of H.P. v. Surinder Mohan, 2000 Cr.L.J. 1429 SC.
Section 307–Statement of Approver–Recording of–Section confers power
only to Judicial Magistrate and Trial Court–Does not contemplate recording
of Statement twice i.e. First by Magistrate and subsequently in trial court
after committal of case. Narayan C. Chowdhary v. State of Maharashtra,
2000 Cr.L.J. 4640 SC.
Sections 306 and 307 Cr.P.C.–An accomplice who has been granted
pardon under sections 306 or 307 gets protection from prosecution so long
he complies with the conditions of the pardon. The object of section 306 is to
allow pardon in cases where henious offence is alleged to have been
committed by several persons so that with the aid of the evidence of the
person granted pardon, the offence may be brought home to the rest.
Magistrate first class is also empowered to tender pardon to an accomplice
at any stage of inquiry or trial but not at the stage of investigation on
condition of his making full and true disclosure of the entire circumstances
within the knowledge relative to the crime. If the pardoned accomplice
suppresses anything material and essential within his knowledge concerning
the commission of crime or fails or refuses to comply with the condition on
which the tender has made, the protection given to him is lifted on a
certificate by public prosecutor under section 308 Cr.P.C. State of
Maharashtra v. Abu Salem Abdul Kayyum Ansari, 2010(7) Supreme 226 SC.
Mrinal Das v. State of Tripura, 2011(4) Crimes 106 SC.
Sections 306 and 307 Cr.P.C.–Order passed by Special Judge granting
pardon to Respondent No. 2 on the condition that the said respondent shall
make full disclosure of the facts and circumstances relating to the offence
committed by him in conspiracy with appellant and one another–Challanged–
Power of granting pardon, prior to filing of charge-sheet is within domain of
judicial discretion of Special Judge. Any other conclusion would be
detrimental to administration of justice, in asmuchas, the power to grant
pardon is contemplated in situations where serious offence is alleged to have
been committed by several persons and with the aid of the evidence, of the
person, who had been granted pardon, offence committed may be proved.
The basis of exercise of this power is not to judge the extent of culpability of
the persons to whom the pardon is tendered–The main purpose is to prevent
failure of justice by allowing the offender to escape from a lack of evidence–
Appeal dismissed. Bangaru Laxman v. State (through CBI) 2011(4) Crimes
342 (SC).
Section 133–An accomplice shall be a competent witness against an
accused person, and a conviction is not illegal merely because it proceeds
upon the uncorroborated testimony of an accomplice. State of Maharashtra
v. Abu Salem Abdul Kayyum Ansari, 2010(4) Crimes 209 SC.
Sections 133 and 114(B) Evidence Act–The Ld. Counsel was vociferious in
further suggesting that the evidence of this witness firstly is not reliable as
it is not corroboroated in material particulars as required under section 133
and 114(b) of Evidence Act–Held–In fact there were very weighty
corroborations to the evidence of this witness. The evidence of accomplice
was generally found to be reliable as there was very litte in his cross-
examination which will destroy his testimony or would even affect it in any
manner. When evidence of a co-accused is reliable and corroborated
materially, it will be admissible. Chandran@ Manichan@ Maniyan v. State of
Kerala, 2011(2) Crimes 111 SC.
Nature of corroboration of the testimony of an accomplice–Every material
circumstance against the accused need not be independently confirmed.
Corroboration must be such that it renders the testimony of the approver
believable in the facts and circumstances of each case. The testimony of one
accomplice cannot be, ordinarily, be supported by the testimony of another
approver. Somasundaram alias Somu v. the State, represented by the Deputy
Commissioner of Police, AIR 2020 SC 3327.

Difference between Police and Court Statements

It so often happens that an approver does not make a fully detailed
statement before police but when pardon is tendered, “he has real incentive
to speak out his mind” and may make many further disclosures or
improvements or contradictions with his previous police statement. In Madan
Mohan Lall, 1970 SC 1006, it was held “ W hen the accomplice gives his police
statement he does not know that he would be granted pardon and possibly
for that reason does not come out with all the facts known to him and he
does so while making his statement before the Magistrate as he knows by
then that he would be tendered pardon on condition that he would disclose
all the facts known to him.” The difference thus is natural but it was held in
Dagdu 1977 S.C. 1579, but where it is impossible to reconcile his earlier
statement with his later assertions, his evidence has to be left out of
consideration. The rationale of Tehsildar’s Case, 1959 SC 1012 will be of
value to determine what falsehood has been mixed with truth by the
approver. The result is:
(a) The corroborative evidence already examined by police before the
examination of approver will still be available for corroboration
purpose.
(b) But the corroborative evidence about particulars not already known
to the police but which were discovered in consequence of
information given by approver will be greater of value.
 (c) Admittedly it is not necessary that the story of the approver should
be corroborated in every detail of the crime, nor is it necessary that
the corroborative evidence should be in itself sufficient for
conviction, Kesar Singh v. State, 1954 Punjab 286 because. “One
generally expects the evidence of an approver to be rich in detail and
colour, consistent within itself and not having any important
contradictions when compared with other statements made by him
earlier. Such evidence carries conviction to the mind so that a court
feels that very little other evidence is necessary to satisfy if beyond
any reasonable doubt that the approver’s story is true. Where,
however, the evidence of the approver is thin and bare and does not
carry with it an air of conviction, very substantial corroboration of
his story would be necessary before it could be possible to bring him
the guilt of the offence to the accused beyond all reasonable doubt.”
52 Cr.L.J. (1941) 580 (Mad.) In re-Paramban.
(d) It is not necessary that there should be independent confirmation of
every material circumstances. It can be by direct as well as by
circumstantial evidence. Corroboration by approver’s statement made
to near relation soon after crime is good piece of evidence, he being
not accessory after fact. State v. Sritl, 1960 Cr.L.J. 1360 (Pat.) (See
types of corroborative evidence). 1964 Punjab 130 Sohan Singh .
“What is required is that some additional evidence should be
forthcoming rendering it probable that the story of the approver is
true and it is reasonably safe to act upon it and also that it
reasonably connects or tends to connect the accused with the offence
charged. The corroboration coming from independent source need not
be direct connecting the accused with the crime; circumstantial
evidence may be sufficient to satisfy the test of the rule of prudence.
(e) Mere omissions in the statement made by approver before tender of
pardon during investigation of case under section 161/162 Cr.P.C. do
not make him unworthy of credit as held by Supreme Court in Madan
Mohan 1970 Cr.L.J. 898, “When the accomplice gives his police
statement, he does not know that he would be granted pardon and
possibly for that reason does not come with all the facts known to
him”, which he otherwise discloses in the statement made before the
Magistrate after tender of pardon.

Law of Accomplices
In the interest of justice and for punishing the chief culprit, sometimes an
accomplice has to be cited as witness to secure all the circumstances of the
case. This can be done in the following ways:
1. Such accomplice is not arrested and is cited as witness. The state is
not bound to arrest and prosecute all offenders. See 32 Cr.L.J. 915
(Lahore).
2. Even if arrested, a prayer is made to court in forwarding note of
challan under section 173 Cr.P.C. to discharge him as accused and
instead to examine him as witness.
3. The accused is tendered pardon under section 306 Cr.P.C. and he
turns out to be an approver as already discussed.
4. The case is withdrawn against the accused under section 321 Cr.P.C.
and he is cited as witness.
5. Any accused already convicted, acquitted or discharged, can be cited,
against other accused, if tried later for the some offence.
6. His trial is separated from other accused and he is cited witness
against them. 1957 Mad. 727 In re Knada Swami.
This is only done when there is not sufficient direct evidence and without
the evidence of accomplice all the details of crime cannot be put into
evidence. It was held in P. Sirajuddin, 1968 Madras 117. “Evidence of
accomplice is tolerated as a necessity as it may be impossible to get
sufficient evidence of many crimes unless some of the participants or at least
one of them is disposed to disclose the circumstances within his knowledge.
Usually, pardon is tendered and accomplice is taken as approver. Under
Section 321 a Public Prosecutor may with the consent of court withdraw
from the prosecution of any person. Where interests of justice may require
that every offender should be booked equally interests of justice may require
that where it is not possible some at least and arraigned and the rest
retained for giving evidence at the trial. The policy is not securing judicial
pardon to accomplices and bringing them as approves but retaining them at
the sole discretion of prosecution may be open to question but that cannot
be itself invalidate the arraignment of the persons actually put up for trial. If
it is laid down that all participants in a crime should be put up for trial then
grave consequences may ensue. Held there was no objectionable
discrimination coming under Article 14 of the Constitution in proceeding
with the prosecution of principal offender leaving out the subordinates”.
Also see 1938 Supreme Court, 938 Laxmipat Choraria.
A witness without giving pardon under section 306/307 Cr.P.C. can give
evidence though he is accomplice. The court is not bound to arraign him as
accused under section 319 Cr.P.C., if he gives such self-incriminatory
evidence. All that it can be said that the evidence may be of doubtful
probative value but is not in admissible. Nor it is incumbent upon the court
to arraign him as accused in the same trial. See S.C. Chaudhary, 1978 [Link].
391 (All.).
Section 306 Cr.P.C–Recording of Statement of accomplice–Note recovered
from pocket of accomplice at time of arrest showing that he was repenting
upon his action from the very beginning–Apprehension of his colleagues
being convicted and sentenced preventing him from taking final decision at
early stage to make with full statement–Plea that as his statement was
recorded after prolonged delay no reliance could be placed on it–can not be
allowed–Delay in recording statement–Not by itself ground of rejecting his
testimony. Narayan C. Chowdhary v. State of Maharashtra, 2000 Cr.L.J. 4640
SC.

Who is Accomplice?
Accomplice has not been defined in Evidence Act. According to Oxford
Dictionary it means, ‘Partner usually subordinate in crime.’ Anyone who
shares with the accused an intention to commit an offence; who knowingly
abets or assists in preparation, commission and concealment of crime; who
has some connection with offence; or has a conscious hand in its commission
is an accomplice. The test is whether such a person can be jointly indicted
with the accused. Even a witness who keeps quiet when offence is being
committed in his view and does not disclose cannot be better than an
accomplice. 1956 SC 379 and 1950 Lahore 129 . It was held by Supreme
Court in Hussain Umar, 1970 SC 45 that the witness concerned may not
confess to his participating in crime but it is for the court to decide on a
consideration of the entire evidence whether he is an accomplice.

Evidentiary Value of Accomplice’s Evidence

Section 133 Evidence Act lays down that an accomplice shall be a
competent witness against an accused person; and “a conviction is not illegal
merely because it proceeds upon the uncorroborated testimony of an
accomplice.” It is, however, seen that there is a stigma attaching to such a
witness that he is unworthy of credit as he wins freedom by foul means.
Though rule of law as laid down in Section 133 and as admitted in State of
Bihar v. Basawan Singh, 1958 Cr.L.J. 976 (SC), Yet rule of prudence as laid
down in Section 114 illustration (b) Evidence Act is that “an accomplice is
unworthy of credit unless he is corroborated in material particulars.” The
courts do require corroboration, not out of necessity but only as a rule of
prudence. In Hari Charan, 1964 SC 1184, Hon. J. Gajendra Gadkar speaking
for a Five Judge Bench observed that the testimony of an accomplice is
evidence under section 3 of Evidence Act and has to be dealt with as such.
The evidence is of a tainted character and as such is very weak but
nevertheless, it is evidence and may be acted upon subject to the
requirement which has now become virtually a part of law that it is
corroborated in material particulars. It was held in 1970 Cr.L.J. 1944
(Punjab) that on occasions it is found desirable to include the evidence of an
accomplice without tendering him pardon. Such a person remains in a state
of suspended animation as he does not know what may happen to him and
will naturally have a strong motive for minimising his own part and his
evidence must be treated with even greater caution than that of an
established approver. He has to satisfy court both about his credibility in
general and corroboration of his evidence on material particulars from
independent sources.
Sections 133, 114 (b)–Evidence of Accomplice–Credibility–Evidence not
totally bereft of reassuring circumstances can be relied on for convicting
accused State of Tamil Nadu v. Suresh & Another, 1998 Cr.L.J. 1416 SC.
Section 306 Cr.P.C., Section 133–Omission of accomplice to name the
accused persons to the police when interrogated is not of much consequence
when in his confessional statement he implicated himself and other accused
persons Ram prasad v. State of Maharashtra, 1999 Cr. L. J. 2889 SC.
Section 306 Cr.P.C., section 133–Evidence Conviction of accused solely on
basis of testimony of accomplice is permissible but it should pass the test of
reliability and corroboration in material particulars. Ram Prasad v. State of
Maharashtra, 1999 Cr.L.J. 2889 SC.
No conviction of an accused solely on the basis of uncorroborated
testimony of an accomplice–The combined result of sections 133 read with
illustration (b) to section 114 of Evidence Act is that as a rule of prudence,
the Courts have evolved the requirement that it would be unsafe to convict
an accused solely based on uncorroborated testimony of an accomplice. The
corroboration must be in relation to the material particulars of the testimony
of an accomplice. Somasundaram alias Somu v. the State, represented by the
Deputy Commissioner of Police, AIR 2020 SC 3327.
Status of an accomplice–It is clear that an accomplice would be familiar
with the general outline of the crime as he would be one who has
participated in the same and therefore, indeed, be familiar with the matter
in general terms. Hence, the evidence of an accomplice must point to the
involvement of a particular accused. Somasundaram alias Somu v. the State,
represented by the Deputy Commissioner of Police, AIR 2020 SC 3327.
Evidence as to corroboration of the testimony of an accomplice–The rule
of prudence is that an accomplice, to be believed, he must be corroborated
in material particulars of his testimony. The evidence which is used to
corroborate an accomplice need not be a direct evidence and can be in the
form of circumstantial evidence. Somasundaram alias Somu v. the State,
represented by the Deputy Commissioner of Police, AIR 2020 SC 3327.

Types of Corroborative Evidence

Where there is no direct evidence, or if there is any, it is meagre, then
circumstantial evidence is collected. This circumstantial evidence has not
been defined under section 3 Evidence Act but is considered to be,
“Evidence of various facts other than the fact in issue which are so
associated with the fact in issue that taken together they form a chain of
circumstances leading to an inference or presumption of the existence of
principal fact.” The incriminating facts must be incompatible with the
innocence of the accused and incapable of explanation upon any other
hypothesis than that of his guilt. It was held in Hanumant’s case, 1953
Cr.L.J. 129 (S.C.) that:
 1. Circumstances proving guilt must be fully established;
2. These should be consistent only with the hypothesis of guilt of
accused.
3. Circumstances should be of conclusive nature and tendency to exclude
every hypothesis but the one proposed to be proved; and
4. Chain must be complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be
such as to show that within all human probability the act must have
been done by the accused.
In cases of evidence supplied by accomplices, co-accused, etc., it is
always desired to look for corroborative evidence. Before knowing as to what
types of evidence are available as such, it should be understood that, “its
nature and extent must necessarily vary with the circumstances of each case
and also according to the particular circumstances of each case and also to
the particular circumstances of the offence charged.” The extent is given in
the following rules as laid down in Rameshwar Kalyan Singh v. State of
Rajasthan, 1952 Cr.L.J. 547 (SC) and 1958 Cr.L.J. 976 (SC) State of Bihar v.
Basawan Singh.
1. It is not necessary that there should be independent confirmation of
every material circumstances, in the sense that the independent
evidence in the case apart from the testimony of the complainant or
accomplice, should in itself be sufficient to sustain conviction. All that
is required, is that there must be some additional evidence rendering
it probable that the story of the accomplice (complainant) is true and
that is reasonably safe to act upon it.
2. The independent evidence must not only make it safe to believe that
the crime was committed but must in some way reasonably connect or
tend to connect the accused with it by confirming in some material
particular the testimony of the accomplice or the complainant that the
accused committed the crime.
3. The corroboration must come from independent sources and thus
ordinarily the testimony of one accomplice would not be sufficient to
corroborate that of another.
4. The corroboration need not be direct evidence that the accused
committed the crime. It is sufficient if it is merely circumstantial
evidence of his connection with the crime.
Even a single circumstance which is conclusive as to exclude the
possibility of innocence is sufficient for conviction as held in 1962 (2) Cr.L.J.
694 (M.P.). That would however, depend upon the facts of each case.
That investigating officer should avoid padding in cases based on
circumstantial evidence as if a main plank fails, the case becomes doubtful.
In State of Haryana v. Jagher Singh, etc. 177 Cr.L.J. 208 Supreme Court,
found the accused to have been arrested earlier when shown by police to
have been arrested much later and leading to recoveries. Last seen evidence
also doubtful from clothes worn by accused and later found on dead body to
be different.
In case two equally possible inferences are possible from circumstantial
evidence then it is duty of court to accept the inference which is favourable
to accused. In Ram Dass, 1977 Cr.L.J. 141 which was a case of death by
parathion poison (for killing rats), circumstances showing both killing as
well suicide, Supreme Court acquitted the accused.

The following Factors provide this evidence

1. Recovery of relevant articles from accused properly, blood stained
clothes, weapons, articles of deceased, etc.
2. Last seen together with accused.
3. Identification of accused and their weapons.
 4. Motive. In many cases motive may be difficult to be proved.
In case whenever there is positive evidence of eye witness, the failure
to adduce any evidence about motive looses all importance. Gurcharan
Singh, 1956 SC 460. Also held in Pudda Narayan, 1915 SC 1252,
where independent testimony is available, the question of motive
becomes more or less academic.
In cases resting upon circumstantial evidence alone, evidence about
motive must be collected. Strong motive in such cases is very
material. The absence of motive in such cases disproves the case. See
Udaipal Singh 1912 S.C. 54, Ram Gopal, 1912 SC 656.
5. Any documentary evidence relating to any transaction entered into
between the parties, previous or subsequent to occurrence, viz. sale of
articles, stay in Hotel, Sarai etc. purchase of incriminating articles
etc. enters in diaries.
6. Production of property which is subject of offence or connected with
the offence by the accused.
7. Any evidence which connects or tends to connect the accused with
crime, viz. clues left at the scene, etc.
8. Medical Evidence.
9. Conduct of accused as defined in Section 8 Evidence Act in making
preparation for crime; removing any hindrance in its executing,
creating circumstances favourable to oneself to eliminate suspicion or
to make a show of innocence, pointing out places; making attempts to
conceal evidence or destroying it; trying to win over witnesses,
policemen and others connected with the case; keeping silent when
accused of crime; making evidence of alibi, etc.; moving near the
place of crime; uttering threats; behaving madly, false cries, etc.
10. Absconding immediately after commission of crime.
11. The agitated, nervous behaviour when caught.
12. Promptness in making confessions, etc.
13. Delay in making reports or lodging counter version by accused.
14. Statement made to near relation after occurrence. (1960 Cr.L.J.
1360) State of Bihar v. Siri Lai Keyri Lai.
15. Association at suspicious places.
16. Similar transaction as defined in Sections 14, 15 Evidence Act.
17. Consistency of statements made at different occasions.
18. Verification proceeding by Magistrate. Whenever, a statement of
a confessing accused or a witness is to be verified by observation of
house or place or other factors, then a Magistrate is sometimes moved
to record his observations. This is essentially so when there is
apprehension that the places are likely to be materially changed in
order to falsify the statement of confession. Such observations of the
Magistrate will be relevant under section 9 Evidence Act.
In Deep Chand v. State of Rajasthan, 1961 (2) Cr.L.J. 105 (Supreme
Court), Suraj Bhan prosecution witness was detained in a house where he
was led by masked men, after abduction with covered eyes. He showed the
house to the Magistrate who made his observations. The house was changed
later. The admissibility of Magistrate’s evidence was challenged but
admitted under section 9 Evidence Act. Only statement of Suraj Bhan at the
time of observation was excluded as the Magistrate had not written it
according to provisions of section 164 Cr.P.C. before taking Magistrate for
inspection of house, to verify the statement of Suraj Bhan. See also
Circumstantial Evidences in Murder Cases Ch. 6.


 Chapter–22
Traps
Law with regard to Offences of Corruption
The offences are committed by public servants and other persons. These
are now controlled and penalized under Prevention of Corruption Act, 1988.
Offence under section 161 to 165A Indian Penal Code have been omitted.
Prevention of Corruption Act, 1947 and Criminal Law Amendment Act, 1952
have been repealed.
(a) Offence relating to public servant being bribed Punishable under
section 7 Prevention of
Corruption Act, 1988
(b) Taking undue advantage to influence public Section 7A
servant by corrupt or illegal means or by exercise
of personal influence
(c) Offence relating to bribing of a public servant Section 8
(d) Offence relating to bribing a public servant by a Section 9
commercial organisation
(e) Person in charge of commercial organisation to Section 10
be guilty of offence
(f) Who obtain, etc., undue advantage thing without under section 11
consideration from persons concerned in
proceeding or business transacted by such public
servant.
(g) Punishment for abetment of
offences Section 12
(h) Who commit offences of criminal misconduct as Section 13 (2)
defined in clause (a) to clause (b) of sec. 13 of the Act.
(i) Punishment for habitual offender Section 14
(j) Who attempt to commit offences as defined in clause Section 15
(a) of sec. 13(1).
The investigation of above said offences will be only by:
(a) In the case of Delhi Special Police Establishment, an Inspector of
Police;
(b) In Metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad,
Assistant Commissioner of Police.
(c) Elsewhere Deputy Superintendent of Police or Police Officer or
equivalent rank.
(d) Any Inspector of Police authorised by State.
(e) If any officer below the rank of Inspector as above is to investigate,
he shall not investigate without the order of a Magistrate First Class
and shall not arrest without a warrant.
(f) For investigation of offence under section 13(1)(b) an order of
Superintendent of Police is required section 17 of the Act.
For Prosecution of Public Servants committing sections 7, 11, 13 and 15
of the above said offences previous sanction of the authority competent to
remove him from service is required.
Trial to be conducted by Special Judge. Offences are Non-bailable.
Accused person would be competent witness. (Section 21).

Traps
 There are certain offences which cannot be detected easily. The offenders and
perpetrators of these offences commit them with greater secrecy and employ such
agents and designs that unless a police officer or a person wins their confidence, it is
not possible to bring them to book. Therefore, the secrecy and subtility with which
certain offences are ingeniously committed, the novelty of tactics and manoeuvres
indulged call for a course different from the adopted in other cases of apprehend wrong
doers.
In such like cases, a police officer has to make a decoy witness or engage
spies to detect crimes and to punish wrong doers. Lord Alverstone in the
King v. Mortemer 1911. I.K.B. 1370 relied on Emp. v. Kesari Chand, 1945
All. 207 observed. “The particular transaction of evidence given is the result
of police trap and though I do not like police trap any more than any one
else, it is only fair to remember that it is almost impossible to detect this
class of offences in any other way.” Take for instance the Special Acts of
Controls Corruption and other Acts like Excise and for suppression of
immoral. In such cases offences cannot be detected unless and until a bogus
customer is put forward. It is thus the only useful weapon in the hands of the
authorities to secure the observance of these enactments and also to detect
their contraventions.

A Police Officer has to organize a Trap in the following Cases

1. When a person comes to him and complains to him that certain person
has demanded a bribe from him or higher price from him or was
offering to sell him a contraband article, i.e., in such cases where
offence has already been born and is in its course.
2. When a police officer himself in order to see whether a person is
attempted to commit an offence or not, offers bail himself or through
someone for detection of crime, i.e., where an offence has not yet been
born but the alleged culprit is in the habit of committing such
offences.
Whenever a police officer receives information from the person as in case
1, his difficulty is much solved as he has not to bother about the decoy
witness. He has only to organize a party consisting of some respectable
witnesses, who are to witness the payment and later to recover the amount
from the culprit and to catch him red-handed. His action to bring to book the
offender will be commendable and will be appreciated by every honest man.
Such a trap was labelled as “Legitimate Trap.” In re M.S. Mohiddin, in 1952
Cr.L.J. 1245 (Mad). In such cases, the police officer is honestly engaging
himself in detection of crime.
In the case as at No. 2, a police officer has to make a search for a decoy
witness and ask him to contact the alleged offender and give him bail to
commit the crime, i.e., to accept the bribe or to sell at higher rate. Such like
traps are labelled as “Illegitimate.” There has been much adverse criticism
of such traps. In 1952 Cr.L.J. 1393 the State v. Mena Kitan Patnaik, 1952
Ori. 267, it was held, “But if he (police officer) suggests or induces the
commission of a crime and instigates other offenders while in the act, he is
not better than an agent provocateur. His conduct is not only reprehensible
but criminal. His object is not detection but commission of a crime so that he
may prefer a charge for the offence committed at his instigation. By inviting
or inducing another to commit an offence he becomes an accomplice for he
participates in the commission of the criminal act.”
These observation are based on Rex. v. Tony (1930) I.D.L.R. Canada 973
and Baannan v. Peek (1947) 2 All. E.R. 572 . Lord Guddard C.J. criticised this
practice in these trenchant words in the latter case, as follows:
“I hope, the date is far distant when it will become a common practice in
this country for police officer to be told to commit an offence themselves for
the purpose of getting evidence against someone; if they do commit an
offence they ought also be convicted and punished for the order of their
superior would afford no defence.”
It does not mean that such traps are illegal. They are legal and evidence
can be led on their basis. There is no bar under the Evidence Act to make
such evidence inadmissible. Such evidence, however, requires independent
and material corroboration before it should be acted upon. As held by
Supreme Court in State of Bihar v. Basawan Singh, 1958 SC 500 that
distinction between “traps legitimate and illegitimate and in some other
cases between tainted evidence of an accomplice and interested testimony of
a partisan witness” are somewhat artificial. Even ruling that the evidence of
decoy witness was that of an accomplice, it was held in this ruling with
regard to the admissibility of an uncorroborated evidence of an accomplice
that ‘it is also law in India. The rule is that such evidence is admissible in
law’. The evidence of the members of the said party or the decoy cannot be
brushed aside merely with one stroke of pen that it was trap. There is no
such inflexible rule. This was held so in Basawan Singh’s Case Supra, “It is
plain and obvious that no such rule can be laid down; for the value of the
testimony of what extent and in what manner he is interested, how he has
fared in cross-examination, etc.” Selection of decoy witness should,
therefore, be quite impartial and fair.

Status of a Decoy Witness

A police officer, before he starts with trap, should understand as to what
will be the value of the evidence of his decoy witness and what other
evidence, he should collect so that decoy witness is relied upon in bringing
the offence home to the culprit.
The consideration depends upon a legal question whether a decoy witness
or spy is an accomplice or not. A decoy witness, a spy, a punter, a bogus
purchaser, a spotter, by whatever name we call him is a useful witness, who
helps in the detection of offences with the sole object of cleansing society of
its evils. The remarks of Mule J. in Reg v. Mullins, (1948) 3 Con C.C. 526 at
531 are worth consideration.
“An accomplice confesses himself a criminal and has a motive for giving
information as it may purchase an immunity for his offence. A spy on the
other hand, may be an honest man, he may think that the course, he pursues
is absolutely essential for the protection of his own interests and those of
society and if he does so, if he believes that there is no other methods on
counteracting the dangerous designs of a wicked man, I see no impropriety
in his taking upon himself the character of an informer. The Government are
no doubt justified in employing spies and I do not see that a person so
employed deserves to be blamed if he instigates offences no further than by
pretending to concur with the perpetrators. Under such circumstances they
are entirely distinguished in fact and in principles from accomplices and
although their evidence is entirely for the jury to judge of, I am bound to say
that they are not such persons as it is the practice to say require
corroboration.” His evidence, therefore, carries weight and conviction was
based on the uncorroborated testimony of a decoy witness in Emp. v.
Chaturbhuj Sahu, 38 Cal. 96 . The spies were held not to be accomplices in
Russels’ Book on Crimes and Misdemeanors Vol. 2 page 2136 (1943 edition)
it stated. “Governments are justified in employing spies and a person so
employed does not deserve to be so blamed if he instigates offences no
further than by pretending to concur with the perpetrators. Under such
circumstances they are entirely distinguished in fact and in principle from
accomplices.” In Halsbury’s Laws of England Vol. 9, page 222 it is stated, “A
police spy for example a woman who visits a suspected abortionist and
pretends that she wishes him to procure her abortion is not an accomplice.”
A distinction has, however, been laid down in different rulings of Indian
High Courts whether a spy will be accomplice or not.
 In Emp. v. Chatur Bhuj Sahu (Supra) it was laid down, “It may sometimes
be difficult to draw the line of discrimination between an accomplice and a
pretended confederate, such as a detective, spy or decoy but we think the
line may be drawn this way. If the witness has made himself an agent for the
prosecution before associating with the wrong doers or before the actual
preparation of the offence, he is not all accomplice, but he may be an
accomplice if he extends no aid to the prosecution until after the offence has
been committed.” The distinction was further enunciated in 52 Cr.L.J. (1951)
852 (Orissa). King v. S.N. Singh Rai where it was held. “The very
fundamental distinction that goes to the root of the matter is that an
accomplice is one who was a participant of the second degree or abettor in
the commission of the crime and did not extend any aid to the prosecution
for its discovery till after its commission. In the case of a bribe giver, he is
an accomplice only when he gives it with the intention of gaining some
unofficial favour but not one who gives it in order to aid the detection of a
crime. He has not the necessary mens rea.” The distinction was relied upon
in State v. Mina Ketan Patnaik, 1952 Cr.L.J. 1393 (Sur. 1953 Cr.L.J. 986
Pepsu State v. Bishamber Dayal.
Some tests as to what value will be attached to the evidence of bribe
giver have been laid down by Krishanan J.C. in 52 Cr.L.J. (1951) 561 State of
Vind Pradesh v. Shiva Bahadure Singh . “There is at one end the unblushing
giver, who pays the bribe and gets an advantage and subsequently gives
evidence for some ulterior purpose. He is an accomplice of the darkest kind.
At the other extreme is the person who from the very beginning has no
intention of giving a bribe but makes a show of doing it so as to bring the
dishonest public servant to book; such a man far from being an accomplice is
a good Citizen to be respected and encouraged between the two there are
many gradations of accomplice– hoods and consequent legal infamy and need
for more or less corroboration. There is the giver who goes halfway with the
intention of paying, but some reason beyond his control thinks it wise or safe
to report to the authorities and becomes a witness. He is only a less
infamous accomplice than the extreme type. Another who changes his mind
without external pressure, is still technically an accomplice but not as
unreliable as the other two types. Then there is the decoy and the spy who
with no intention to pay the bribe, makes himself the instrument of the
authority in tracking the dishonest public servant. The professional spy or
the decoy doing this for pecuniary or other advantages though not an
accomplice is suspect all the same and requires corroboration. If on the
other hand, the decoy is not acting for gain but being himself the victim of
the demand and helps the authorities spontaneously from a sense of citizen’s
duty, he is a reliable and respectable witness.” It was held in Dalpat Singh
1969 Cr.L.J. 262 by Supreme Court that persons giving illegal gratification
under coercion and fear of being harassed are not accomplices. Their
evidence is not required to be corroborated. Further, though trap witnesses
are interested witnesses as a matter of law their evidence cannot be rejected
for want of corroboration.

The Deductions from the above are

1. If the decoy witness is not an accomplice in the light of above
observations and is only coming forward to help administration, his evidence
can form the basis of conviction as he is only an agent before associating
with the wrong doers and before the perpetration or crime. His evidence,
however, will depend upon the following factors:
(a) His character, position in life and social standing. These will go a
long way in helping the judge to appreciate his evidence. 1954 Cr.L.J.
417 (Mad.). In re Ambujan.
(b) His partiality for the prosecution can hardly be ignored as he has
entered into a design with the police to entrap the prisoner. He as
 well as others are partisan witnesses out to entrap the accused. Rao
Shiv Bahadur Singh, 1954 Cr.L.J. 910 SC.
(c) His being under the influence of police having been sent by them.
Hark Chand Radha Kishan v. State, 1954 Cr.L.J. 1347 (Mad. Bh.).
(d) His evidence is to be tested by Judge of fact to see if he is a reliable
witness. A person who offers bribe and another who goes with him
are clearly witnesses who are agent, provocateurs and such whose
evidence needs corroboration. Mitranand Prem Lall v. State, 1934
Cr.L.J. 545 Punjab AIR 1954 Punj. 89.
(e) His evidence requires to be scrutinized carefully and accepted as true
before conviction can be had though it does not need corroboration.
1952 Cr.L.J. 1245 (Supra) AIR 1937 Bom. 385 Hari Lall Goverdhan v.
Emp.
(f) Held in Ram Parkash Arora 1973 SC 498 . “It must be remembered
that both Joginder Singh and Balbir Singh Prosecution witnesses
were interested and Partisan witnesses. They were, concerned in the
success of the trap and their evidence must be tested in the same way
as that of another interested witness and Court may look for
independent corroboration. Also 1987 (2) Recent C.R. 11.
(g) Held In 1979 Cr.L.J. 12 (Cr.) by Supreme Court Parkash Chand,
“Where the circumstances justify it, a court may refuse to act upon
the uncorroborated evidence. But if the court finds that the trap
witness is a truthful person it may be justified in accepting the
uncorroborated evidence of a trap witness.
Section 5(2)–Bribery–Proof–Delinquent official caught red-handed in trap
laid by trap officer–Complainant’s evidence corroborated offer–
Complainant’s evidence corroborated by evidence of trap officer–
Complainant’s evidence cannot be rejected merely because he was aggrieved
against the bribe taker–Fact that trap officer successfully trapped delinquent
is no ground to conclude his animosity against the delinquent–Order of High
Court acquitting delinquent on patently wrong and tenuous consideration not
proper–Set aside. State of U.P. v. Zakaullah, 1998 Cr.L.J. 863 SC.
Section 5(2) Bribery case–Evidence of trap officer–Can be relief on even
without corroboration. State of U.P. v. Zakaullah, 1998 Cr.L.J. 863 SC.
Section 6(1)–Offence under section 5(1)–Investigation–No prima facie
material found to substantiate charges–CBI not required to obtain sanction
from prosecuting authority before approaching court, for accepting report
under section 173(2) for discharge of accused. State Through CBI v. Raj
Kumar Jain, 1998 Cr.L.J. 4051 SC.
Sections 7 and 19–Public Servant–Prosecution of–Public servant
committing offence under Act while he was a public servant–Is liable to be
prosecuted whether he continues in office or not at time of trial or during
pendency of prosecution. Kalicharan Mahapatra v. State of Orissa, 1998
Cr.L.J. 4003 SC.
Sections 7, 13 and 19–Sanction to prosecute–Legality–Accused cannot
claim acquittal on ground of irregularity in granting sanction. Ram Swaroop
Rathore v. State of M.P., 2000 Cr.L.J. 1882 MP.
Section 5(1) (d), 5(2)–Bribery–Conducting raid–Driver of car of
complainant, except driving the car was not to participate in any of the
function or state of the raid–Neither he informed as to why accused is called
from his residence to car–Investigating Officer and Panch witness also not
suggesting that driver was knowing certain things–Non-examination of driver
would not adversely affect prosecution case. State of Gujarat v. Tejbhaik
Vora, 1999 Cr.L.J. 2655 Guj.).
Section 5(2)–Illegal gratification–Trap case–Plea of accused that he had
thrown away currency notes–not supported by his own statement under
section 313 of Cr.P.C.–Further plea that said notes were picked up by
another person found to be false and improbable–In fact said currency notes
found between some files and registers kept by accused–Accused instead of
turning away complainant found to have accompanied him to front door of
his house–conviction of accused proper. Shyam Lal v. State of M.P., 1999
Cr.L.J. 3782 MP.
Sections 7 and 13(1)(2)–Illegal Gratification–Proof–Trap case–Accused a
public servant demanding bribe from complainant for deepavali expenses and
for not harassing him–Evidence of witnesses clear cogent and convincing–
Phenol-Phthalene test positive and corroborating evidence of witnesses–
Demand of bribe and acceptance thereof prove non-examination of
complainant on medical ground–However, prosecution giving valid and
cogent reasons for his non-examination–Non-examination of other official
witness and affecting case of prosecution–Investigations made by Inspector
of Police was valid – conviction proper. Sathia Nathan v. State by Inspector
of Police, 1999 Cr.L.J. 4710 (Mad).
Section 13 (1) (d) (i) (ii)–Criminal misconduct by public servant–Proof–
Trap case–Accused a railway employee demanding bribe to keep complainant
in getting employment in railway restaurant–Recovery of money from
accused–Phenol-phthalene test proved–Fact that money changed from hand
of complainant to accused not disputed–Reason giving therefore by accused
is acceptables–Certificate of Complainant recovered from drawer of accused–
No reason for false implication–Requirement of section 13 (1) (d) (i),
satisfied–Conviction proper. B. Parameshwaran v. State, 1999 Cr.L.J. 2059.
Traps Cases–Necessity of corroboration and Mens Rea–held, in seeking
corroboration for evidence of trap witnesses, a distinction has to be drawn
where participation of an individual not voluntary but the result of the
pressure–In such a case the element of mens rea not apparent and cannot
strictly be classified as an accomplice and at any rate he cannot be treated
as being on the same footing. M.D. Shamsuddin v. State of Kerala, 1995 SCC
(Cr.) 509.
Prevention of Corruption Act, 1947–Objects and reasons behind the
enactment of–Underlying idea was to eradicate the corruption–The
Legislature wanted to amend the existing anti-corruption laws with a view to
making them more effective by extending the scope and ambit of the
definition of “Public Servant”. L.K. Advani & Others v. CBI, 1997 J CC 294.
Section 4–Presumption–Witnesses of raiding party though independent
witnesses but saying that the appellant accepted Rs. 40/- as bribe from his
right hand and pocketed the notes in left side pocket of his pant–An
improbable conduct–Testimony of eye-witnesses cannot be accepted and no
presumption can be raised against appellant. J.R. Sharma v. State, 1991 JCC
417).
Section 4(1) read with 161 I.P.C.–Presumption–In case the acceptance of
bribe is established, the burden shifts on the accused to prove his innocence.
S.V. Kameswar Rao v. State of A.P., AIR 1991 SC 2085.
Section 5(1)(d) read with section 161 I.P.C.–No independent witness–
Hands of appellant when put in the chemical solution did not turn pink–
Money said to have been put in table drawer by the complainant at the
asking of appellant–Held conviction is based mere on probabilities then on
evidence–Conviction set aside. Ayyaswami v. the State of Tamil Nadu, AIR
1992 SC 644.
Section 5(1)(e)–Ingredients of–The prosecution must prove the following
ingredients, namely—
(i) The prosecution must establish that the accused is a public servant,
(ii) The nature and extent of the pecuniary resources or properly which
were found in his possession,
(iii) It must be proved as to whatever his known source of income, i.e.
known to the prosecution; and
 (iv) It must prove, quite objectively, that such resources or property
found in prosecution of the accused were disproportionate to his
known sources of income. Once the above ingredients are
satisfactorily established, the offence of criminal misconduct under
section 5(1)(e) is complete, unless the accused is able to account for
such resources or property. In other words, only after the prosecution
has proved the required ingredients, the burden of satisfactorily
accounting for the possession of such resources or property shifts to
the accused. M. Krishna Reddy v. State & Deputy Superintendent of
Police, Hyderabad AIR 1993 SC 313.
Sections 7 and 13(2) read with section 13(1)(d) and 20–Bribe taking of Rs.
500/- Trap party apprehended the appellant–Trial court could start trial after
4 years–In the meantime the appellant was able to win over even the
complainant Prosecution Witness 1 and Prosecution Witness 2–Both the
Prosecution Witnesses did not accept the prosecution version and said that
someone else for his own interest had used them to do so–But the appellant
never during the investigation had told this fact to the I.O. and only now
after 4 years this story was concocted–Defence witnesses not believed by
both the courts below–Both the courts below concurrently convicted the
appellant and sentencing him for one year–There is no scope to interfere
their judgement–conviction upheld–Appeal dismissed. M. Narsimha Rao. v.
State of A.P., AIR 2001 SC 318.
Section 4–Prevention of corruption Act–Both the courts below recorded of
positive finding that the accused accepted an amount of Rs. 200/-. Therefore
section 4 of the Act got attracted and presumption came into play against
the accused. There was no rebuttal by the accused by leading any evidence
whatsoever. The defence was of total denial and of false implication.
Sections 4(1) and 5–Prevention of Corruption Act, 1988–Whether Special
Judge, vigilance had power to entertain and refer complaint under section
156(3) Cr.P.C. for investigation of F.I.R. and its investigation? Yes–Court of
Special Judge being a criminal court had been conferred with power to take
cognizance of offence under section 190 Cr.P.C. excluding one i.e. upon
commitment by Magistrate–In order to give full effect to provision of the Act
Special Judge has to be read wherever expression Magistrate was used under
the principle of legislation by incorporation–Special Judge would be
empowered to exercise his power to terms of section 156(3) Cr.P.C. Anosh
Ekka v. State of Jharkhand, 2010(2) Crimes 315.
Section 4 and 5 read with 5(2)–Prevention of Corruption Act, 1988–
Cr.P.C. section 452–Provisions in the Cr.P.C. to be restored to when a
special law did not make any particular provisions for a situation to be dealt
with–Prevention of Corruption Act did not make provision for confiscation of
property or for disposal of property. Matter will have to be dealt with section
452 Cr.P.C.–Confiscation envisaged in section 452 Cr.P.C. is not automatic.
Madhab Barthakur v. CBI, 2008(3), Crimes 465.
Section 5(2) and under section 420, 467, 468, 471 and 120B IPC–Order of
framing charges for offences against the accused petitioners. Petitioners,
employee of Municipal Corporation had retired when charge-sheet was filed
in 2001–Sanction for prosecution of public servant even after his retirement
or he ceased to hold office was sine qua non to proceed against under IPC–In
the absence of sanction for prosecution. Prosecution even against ex-
employees could not be proceeded with for offences under I.P.C. Satpal
Malik v. State of Punjab, 2008(3) Crimes 283.
Prevention of Corruption Act–Section 5(1)(d) and section 161 and 165A
I.P.C.–Accused a police officer was apprehended in trap for demanding and
accepting Rs. 20 from driver of truck–Trial Court acquitted Appeal–Head
Constable was not examined who apprehended the accused as soon he
accepted currency note offered by driver–Panchnama was drawn at police
was contrary to prosecution case that Panchnama was drawn on spot–
Acquittal. State of Gujarat v. Pravin Singh, 2010(2) Crimes 516.
Prevention of Corruption Act, 1988–Section 7–Section 13(2) read with
section 13(1)(d)–Conviction of Appellant Branch Manager of State Bank of
India for demanding and accpeting Rs. 4000/- for sanctioning a loan–to
Complainants wife–Complainant had not supported the case of the
prosecution either on the initial demand or on the demand and acceptance of
bride, at the time of the trap–In the absence of direct evidence regarding the
demand and acceptance of bribe by appellant, held unsafe to base conviction
on the basis of statement of Panch witnesses and trap officer who had
neither heard the conoversation nor seen the transaction of passing of the
bride money–Prosecution case being full of doubt, impugned Judgement set
aside. Vishal Chand Jain v. CBI, 2011(1) Crimes 151 (Delhi).
Section 7 and section 13(2) Prevention of Corruption Act, 1988–Accused
posted as revenue Halqa Patwari demanded and accepted Rs. 2500/- as
illegal gratification for issuing certified copies of Jamabandi–Recovery of
tainted notes was effected from drawer of table of accused–Shadow witness
did not support the prosecution case–Evidence of decoy witness–Complainant
did not find support with regards to the facts that accused had demanded
money and accepted the bribe–Conviction was liable to be set aside. Santokh
Singh v. State of Punjab, 2011(2) Crimes 332.
Section 7 and Section 20 Prevention of Corruption Act, 1988–Prosecution
of accused respondent for demanding and accepting illegal gratification from
complainant–Prosecution uterly failed to prove its case beyond reasonable
doubt–There were material contradictions, omissions, improvements in the
version of prosecution witnesses–Held not safe to reverse the order of
acquittal and convict respondent. State of Maharashtra ACB v. Dnyanoba,
2011(2) Crimes 63.
Section 7 of Prevention of Corruption Act, 1988–Appellant receiving
money on behalf of Accused 1. He had taken the money without knowledge
that it was a bribe money–Moreover, he had no role in return of stock
register for which the bride was demanded by accused. Material not
sufficient to hold the appellant guilty. K. Subba Reddy v. State of A.P., 2007
3 SCC (Cri.) 528.
Sections 7(1), 13(1)(9) read with 13(2) and Prevention of Corruption Act,
1988–Appellant a LDC accepted Rs. 50/- from a peon in same department for
getting his medical bill for Rs. 389 prepared and passed–Tainted currency
notes were recovered from accused in trap. Appellant immediately after
incident offered explanation to the head of office that he had accepted
money towards loan transaction and not by way illegal gratification–Defence
stood corroborated by three receipts which had been brought by defence
evidence–Explanation offered appeared genuine, reasonable and probable–
Conviction was liable to be set aside. Dwarka Prasad Mishra v. State of M.P.,
2012(1) Crimes 244.
Section 7 and section 13(1)(d), (2) and section 19 of Prevention of
Corruption Act, 1988–Petitioner was arrested in a trap case in 1995 and
prosecution was launched in 1996–Trial Court acquitted accused petitioner
in 2010 on the ground that sanction for prosecution order passed was
invalid–CBI was given liberty to take further legal action. Petitioner retired
in 2004–Charge-sheet was filed again in 2010 without obtaining sanction on
the same grounds–Prosecution could not be quashed. Jiwan Ram Gupta v.
State through CBI, 2012(1) Crimes 621 Del.
Sections 7 and 12 of Prevention of Corruption Act, 1988–Appellants,
Excise Sub-Inspector and his peon convicted for having received Rs. 1200/-
as bribe for releasing a person–Accused were caught in a trap and treated
currency notes were recovered from their possession–Appeal–No
presumption was to be drawn unless and until acceptance or passing of
money was there–No evidence on record at all about the knowledge that
could be attributed against appellant peon that money he was receiving was
a bribe–Prosecution story on point of receiving and recovery of money from
peon appellant was very shaky–Prosecution failed to prove beyond doubt that
appellants demanded money and other received the same on his instructions–
Conviction was liable to be set aside. Pratap Singh v. State of M.P., 2012(1)
Crimes 266 MP.
Section 19(2), Prevention of Corruption Act of 1988–The relevant time is
the date on which the cognizance is taken. If on that date, the appellant is
not a public servant, there will be no question of any sanction. Abhay Singh
Chautala v. CBI, 2011(3) Crimes 93 SC.
2. If he however, is an accomplice there must be corroboration of his
evidence in material particulars. It was held in Emp. v. Anwar Ali, 1948 Lah.
27, “It is the utmost importance in cases of this kind that there should be
independent corroboration of the statement of the decoy witness.” Bribe
giver is not better than an accomplice. Corroboration required. 1987(1)
Recent C.R. 500.
It is thus clear whether a decoy witness is dubbed as an accomplice or
not, the Courts do require such corroboration in some instances to be
satisfied about the truth of the version and not because of any necessity for
it under the law. See 1952 Cr.L.J. 919 (Mus.) Bashiruddin Ahmad v. Govt. of
Mysore K.H. Bhatta– Charjee v. Emp. 1944 Cal. 374 and Mahabir Parshad v.
State, 52 Cr.L.J. 944 Punjab. Also see 1954 Cr.L.J. 910 (SC) Supra ,
independent corroboration is always necessary. The degree of corroboration
requisite in each case would depend upon its own facts. Independent
corroboration of decoy witness is necessary. 1989 Cr.L.J. 172.
And in the words of Hon. J.S.K. Dass in Basawan Singh’s Case Supra, “All
that is required is that there must be some additional evidence, rendering it
probable that the story of the accomplice is true and that it is reasonably
safe to act upon it. Corroboration need not be direct evidence that the
accused committed the crime, it is sufficient even though it is merely
circumstantial evidence of his connection with the crime.” Also see 1967 Raj.
10 Ganpat Singh. The evidence of a search witness leads to the
corroboration of the bribe giver 1973 Cr.L.J. 353 Man Singh.
Trap Case–Accused arrested in taking illegal gratification–Conviction of
accused–Defence of accused that complainant was having a criminal
background–No ground to acquit the accused. Complainant can still be
forced by the officer to pay illegal gratification. State of Punjab v. Madan
Mohan Lal Verma, 2013 Cr.L.J. 4050.
The accused who was a constable in the police department was alleged to have
demanded a bribe of Rs. 5000/- from the complainant to release the complaint’s brother
on bail. The complainant immediately paid a portion of the demand in order to secure
bail for his brother. Rest of the amount, they had agreed to pay at a later day. ACB
caught the accused while accepting the marked currency notes from the complainant
and charged with section 7 and 13 of the Prevention of Corruption Act 1988. During
trial, the complainant withdraw his original statement and refused to support the
prosecution. However, Supreme Court relied on the fact that accused was caught red
handed accepting the currency notes. Supreme Court held that although the Act does
not specifically stipulate the requirements of demand and acceptance, these are the
essential factors that must be fulfilled before a public servant can be convicted of an
offence under the Act. Mere recovery of marked money is insufficient to convict a public
servant without clear evidence. Kishan Chander v. State of Delhi, AIR 2016 SC 298.

Actual laying out of trap consists of the following steps:

1. Always get the case registered on the statement of bribe given or on
complaint being made with regard to demand for bribe.
2. A raid party should be organised consisting of some respectables who
will bear testimony to the whole of the transaction. It is always better
if the witnesses available are persons of locality. In 1983 Cr.L.J. 1,
 Mangal Dass, testimony of merely petty clerks was believed. It was
held that mere wealth is no criteria of respectability. If, however,
there is danger of the information being leaked out, then an attempt
should not be made to secure their presence. The persons who are
easily available will serve the purpose in that case. The emphasis on
joining independent witness was laid in Raghbir Singh, 1976 SC 91.
See also Maha Singh, 1976 SC 449 for evidentiary value of trap
witnesses, it was held, “there is no rule of law that even if a witness is
otherwise reliable and independent, his association in prearranged
raid about which he had become acquainted makes him an accomplice
or partisan witness. In absence of anything to warrant a contrary
conclusion conviction is not untenable, merely because it is based
upon the testimony of such a witness.”
For registration of case of bribe against a police officer and for his
prosecution in court, a special provision of P.P.R. 38 (1) and (2)
(contained in Punjab Police Rules of Sanction of District Magistrate to
be obtained first) it is not necessary to be complied with. Such a
sanction if not obtained is no bar of prosecution under section 161 or
5(2) Prevention of Corruption Act, Randir Singh, 1981 C.L.R. 649 (SC)
(now offence under section 7, 13(2) Prevention of Corruption Act,
1988).
3. The person of the decoy witness should be searched in the presence of
the members of raid party and memo prepared to that effect. Care
should be taken that the decoy witness does not have anything in cash
or kind with him other than one which he is to offer to accused.
4. The decoy witness should be made over the cash or other article
concerned to be handed over to the alleged culprit. The number of
currency notes should be noted. A fixed mark should also be made. A
memo should be prepared to that effect. It should always be kept in
mind that police is not to prompt decoy witness by supplying cash
themselves. It is better if money to be passed belongs to the person. If
not it can be given by the police. Raman Lal and Mohan Lall, 1960
Cr.L.J. 1380 SC. Before handing over if it is article other than cash, an
identification mark should be put. Use of powders like fluorescence,
Rhodium B, Uranyl Nitrate or radioactive isotopes on the cash,
currency notes or articles can be made. These fluorescent powders
fluorescence under ultraviolet radiation. The accused on handling this
will catch such florescence. Later his hands can be examined for
fluorescence under ultra violet rays in the presence of witnesses to
verify his handling. Prepare a memo in this respect. The currency
notes should be treated with phenolphthalien powder so that, handling
of such marked currency notes by the accused can be detected, by
chemical process. Supreme Court has in two cases Som Parkash, 1974
SC 989 and 1976 SC 91 Supra laid emphasis on this scientific method
and held that without this, the oral evidence is sometimes of dubious
character.
5. The decoy witness then should be directed to effect the transaction by
passing over the marked case or article as required to the alleged
culprit. If it is possible in the circumstances of the case, then another
member of the party should be deputed to shadow the decoy witness
and to over hear the talk or to pass on the signal after the transaction
is completed.
6. A signal should always be appointed which the decoy witness is to
make after the completion of the transaction to call the remaining
members of the party which must be stationed at some distance as not
to arouse suspicion. Reach the spot on signal.
7. The police officer on reaching the spot then, should effect the recovery
of the marked cash or article thus passed on, from the culprit. A memo
 of recovery should be prepared giving out the details of the things
recovered and the way in which they were recovered and the place
from where recovered. Recovery is an important link in the
prosecution as held in State v. Har Parsad, 1958 Cr.L.J. 586 (Luck) . If
the article is produced by accused, note his demeanour and carefully
record in case diary what statements he makes the explanations he
offers. The conduct of accused is relevant under section 8 Evidence
Act. The hands of the bribe taker should be dipped in solution of
sodium carbonate to ensure if accused had handled the bribe money.
The colour of water becomes pinkish due to handling phenolphthalien
stained notes. The solution should be preserved/sealed. If the marked
currency notes touched already with powder are recovered from
pocket or purse etc., they should also be dipped in solution as before
said. The garment should be taken into possession and water
preserved. Held so in 1974 C.L.R. 380 Darshan Singh . Always ensure
that before search of accused for recovery of bribe money, the police
officer gives his own search to accused or witnesses; failure to do so
causes infirmity. 1973 C.L.R. 299 Tikkam Dass K. Dossani.
8. The person of the decoy witness should again be searched to show if
he had anything on his person. A memo must always be prepared about
that.
9. Use of tape recorder to record conversation between the bribe giver
and the accused officer who accepted the bribe at the time of
acceptance of bribe in a trap was held to be relevant and not hit by
section 162 Cr.P.C. in Yusufali’s case 1968 Cr.L.J. 103, (Supreme
Court), where the conversation between accused and complainant
regarding acceptance of bribe was tape recorded, the mike was kept
concealed in outer room and tape recorder was kept in inner room
where police officer was also present. Held that conversation was not
hit by section 162 Cr.P.C. and was admissible under section 7
Evidence Act. The time and place and accuracy of tape recording must
be proved by competent witness and the voices must be properly
identified.
In R.M. Malkani v. State of Maharashtra, 1973 SC 157. Conversation was
taped on telephone between the accused and the bribe given by police. It
was held that evidence though illegally procedure could be used. The Court
will take care in two directions in admitting such, evidence. First it will see
that it is genuine and free tampering or mutilation. Secondly, it may also
secure scrupulous conduct and behaviour on behalf of police.

Value of Investigating Officer’s Evidence

The Investigating Officer is naturally a witness interested in the success
of prosecution case. Independent and disinterested witnesses should,
therefore, be always joined to witness searches etc. See Ram Parkash, 1972
Cr.L.J. 1293 and 1976 Cr.L.J. 172 Raghbir Singh . A police officer who is
offered bribe and gets a case registered under section 165A I.P.C. now
section 12 Prevention of Corruption Act, 1988 as complainant should not
himself investigate the case. This was held to be infirmity in Bhagwan Singh
SC 985.
In Gian Singh, 1974 SC 1024 and Som Parkash, 1974 SC 989 : Supreme
Court gave credit to evidence of police officers saying police officials cannot
be discredited in a trap case and “trust begets trust and higher officers in
Indian Police especially in the Special Police Establishment deserve better
credence”.
In Hazari Lall, 1980 Cr.L.J. 564., Supreme Court held “where the
evidence of Police Officer who laid trap is found entirely trustworthy there is
no need to seek corroboration. There is no rule of prudence, which has
crystallised into rule of law; nor indeed any rule of prudence, which requires
that the evidence of such officers be treated on the same footing as evidence
of accomplices and there should be insistence on corroboration.”

Disability of Magistrate Joining Raids

In this connection, it is better to draw the attention of the Investigating
Officers to the fact that they should not join Magistrates in organising traps.
This practice of employing Magistrates has been held to be traps improper in
various rulings of the different High Courts.
It was held in Shiv Bahadur Singh v. State of U.P., 1954 Cr.L.J. 910 , the
Magistrates should not be employed by the police as the witnesses of police
traps. The independence of judiciary is a priceless treasure to be cherished
and safeguarded at all costs against predatory activities of this character
and it is of the essence that public confidence in the independence of the
judiciary should not be undermined by any such factors adopted by the
executive authorities. Also see 1954 Punjab 89 Supra 1951 Cal. 524.
A distinction has, however, been laid by Pepsu High Court in the matter
of employing Judicial and Executive Magistrate. It was held in AIR Pepsu
1955 Mehar Singh Hazara Singh v. State of Pepsu, that Judicial Magistrates
have been separated from executive ones in Pepsu therefore the
observations of the Supreme Court in 1954 Cr.L.J. 910 Supra do not apply to
an Executive Magistrate. Hence the testimony of S.D.M. who is an executive
Magistrate participating in a trap of bribe cannot be ignored. Similar was
view in State of Madras v. A Vaidiyanatha, 1958 Cr.L.J. 232 (SC) and 1960
Cr.L.J. 934 M.M. Gandhi. Executive Magistrate can be as such joined.
In Raghbir Singh 1974 SC 1516 , it was held that the testimony of
Executive Magistrate cannot be discredited. He was doing his public duty to
intercept crime.

Is a Panch Witness Joining Trap a Partisan Witness

In addition to decoy witnesses, the police also joins some respectables in
order to witness the actual laying down of traps. These respectables later
appear in court as witnesses to corroborate the testimony of decoy witness.
It was held in 1956 Bombay 426 Jairam Das v. State . “If a panch witness
occupying a respectable, disinterested position voluntarily helps the
investigation by acting as a panch and his evidence appears to the Court to
be wholly satisfactory. It may not be perhaps open for the accused to
contend that the said evidence must necessarily and as a matter of law be
regarded as that of partisan witness.” Such panch witnesses do not become
members of raiding party and cannot be looked upon as partisan. They are
independent witnesses and their evidence is good evidence and requires no
corroboration before acceptance.” See 1936 B 287 Ram Chand Tola Ram v.
State. If, however, only stock witness are taken they are deemed to be
partisan and interested witnesses concerned in the success of the trap and
require independent corroboration. 1972 Cr.L.J. 1293 (SC) Ram Parkash
Arora.

Statement of Accused
The investigation of a bribe case begins as soon as the complaint is
recorded disclosing a cognizable offence. Every step taken thereafter for
discovery of accused, search of his person or taking steps to organize raid
for recovery etc. turns the entire process into an investigation under the
Code. The statement of accused made during such investigation is
inadmissible in evidence under section 162 Cr.P.C. even if it is of
exculpatory nature. Madha Singh, 1976 SC 449 . Held in the same ruling that
the conduct of the accused will be relevant under section 8 Evidence Act if
his immediate reactions to the illegal overtures of the complainant or his
action in inserting unwanted something in his pocket were revealed in the
form of acts accompanied then or there or immediately thereafter by words
or gestures reliably established.
 It is prudent to record if any explanation is given by the accused when he
is trapped. In case 1987 Cr.L.J. 715 (SC). Tarasem Lal , given by the Patwari
at the time of search. Later at the time of trial that he secured money for
deposing in small saving. Held to be an after thought.
Detection of other offences— Besides traps there are other scientific
methods to discover and successfully trace out thefts, burglaries, anonymous
letter writing, etc. Dry dyes or slow drying dyes similar in colour to the
article may be applied to articles liable to theft, etc., for trap. These will
stain the hand of culprit and due to perspiration or washing change into a
different colour which is difficult to be washed. The culprit can be easily
detected due to this.
Dye Dry Colour Change in Colour
Crystal Violet Green Violet
Methylene Blue Dark Green Blue
Malachite Green Green Green
Chrusolidine Maroon Orange
Rhodamin B Brown Cherry
2. A chemical indicator or a fluorescent material is added to links in
offices, etc., from where anonymous letters are suspected to be often written
in order to localise acts.
3. Similarly, these fluorescent are added to liquids found stolen.
4. Electrical traps are also used to catch thieves and burglars by setting
up a calling bell and connecting the same by means of wire with vulnerable
point or object duly provided with a contact so as to make the bell ring in
another room as soon as the culprit treads on that point or toucher that
point.



Chapter–23
Confession
Before the importance of this piece of evidence is discussed, a police
officer should understand the meaning of confession. In ordinary parlance,
the meaning of confession is considered to be admission of mistake. Many a
police officer while writing such confessional statements think “Guilty
Taslim Ki or Mafi Mangi” as sufficient to denote that the accused confessed
the crime. This is, however, a wrong notion and does not bring home the
guilt to the accused. Mere suggestion of the inference by the accused that he
committed the crime is not as such sufficient. As held in Patala Narayan
Swarm v. Emp., 1939 P.C. 47 , a confession is an acknowledgement in express
and clearly defined words of the terms of an offence or at any rate
substantially all the facts which constitute the offence and as such would be
sufficient for conviction.
As such Confessional Statement is distinguishable from mere admission
or contained in electronic form which under section 17 Evidence Act is
defined as “a statement oral or documentary or contained in electronic form,
which suggests any inference as to any fact in issue or relevant fact,” but
does not amount to admission of guilt or of facts constituting guilt. An
admission of a gravely incriminating fact, even a conclusively incriminating
fact, is not of itself a confession as held in the above said Privy Council case
(1939 P.C. 47). The example of such an admission is that the accused stated
that he was owner of knife which caused the death. This will be admissible
under section 17 Evidence Act if it is not barred by other provisions of law,
e.g., section 162 Cr.P.C. See also Sital Chandra Maity 1956 Cr.L.J. 509. In
1972 Cr.L.J. 11, Kanda Pundyachi Supreme Court held that the statement of
the accused while in custody before the Director that injury on his toe was
caused by the deceased was confession and as such barred under section 26
Evidence Act but was admissible as an admission under section 21 Evidence
Act. Statements of accused before Doctor of Govt. Hospital regarding their
injuries on their person though incriminating are admissible in evidence as
admissions. 1988 Cr.L.J. 107.
1976 Cr.L.J. 1921 Manik Malekar , accused in his statement under section
164 Cr.P.C. had said, “In fear of his own life, snatched his knife and
assaulted him with it” was held to be not a confession but admission as it
was not confession of guilt.
Still there is another test to see if the statement is a confessional one.
The statement when read as a whole should clearly show that accused
admitted having committed the crime. The Court must reject or accept the
statement as a whole. The question cropped up in an Allahabad case Emp. v.
Balmukund 52 All. 1911 (F.B.). The confession there comprised of two
elements—(a) an account of how the accused killed the woman and (b) an
account of his reasons for doing so; the former element being inculpatory
and the latter being exculpatory. It was held by Full Bench that, “Where
there is no other evidence to show affirmatively that any portion of the
exculpatory element is false”, the court must accept or reject the confession
as a whole and cannot accept only the inculpatory part while rejecting the
exculpatory element as inherently incredible. Similarly, this question came
up before Supreme Court on appeal in well known Palvinder Kaur’s case
1952 SC 534 and it was held, “A statement that contains self-exculpatory
matter cannot amount to confession, if the exculpatory statement of some act
which if true would negative the offence alleged to be confessed. A
statement which when read as a whole is of an exculpatory character and in
which the person denies his guilt is not a confession and cannot be used in
evidence to prove his guilt.” See 1964 (1) Cr.L.J. 730 (SC), Narain Singh,
where plea of self-defence taken was held to be an admission and as such
relevant. Statement of accused that he killed deceased because he
threatened to kill him with axe. Statement being exculpatory not Confession
1986 Cr.L.J. 117 Statement of accused woman, though if immoral character
that the stabbed accused as he wanted to rape her, held no confession being
exculpatory 1989 Cr.L.J. 621.
If however, there is evidence to disprove the exculpatory portion of the
confession that portion need not be accepted and acted upon. This statement
of law also finds support from the following decisions:
Charan Kana v. State of Saurshtra 4 Sau. L.R. 249 Emp. v. Itwa Mund
1938 Pa. 258 (S.B.) and Jade Rahim v. Emp., 1938 Sindh 202, Koligara Jodha
v. State 1954 Sau. 115,1956 Orissa 177 Bhima Shaw v. State , where it was
held, “That a statement of confession of an accused person need not be
considered as true in its entirely if there is other evidence including
circumstantial evidence which casts doubt on some portion thereof and it is
open to the Court to accept a part of the admission or confession which
appears to the Court to be true and reject the other part which is not, in the
light of such other circumstances.” In 1967. Cr.L.J. 671 Nishi Kant Supreme
Court held that inculpatory portion can be accepted if the exculpatory
portion is found to be inherently improbable. The inculpation can be placed
together with other evidence to establish the guilt of the accused and if
there is other evidence to prove it correctness. Bhagwan Singh Rana 1976
S.C. 1797, Also see Royesh Thakur, 1988 Cr.L.J. 1477 (Cal.).
As such it becomes all the more necessary for an Investigating Officer (in
case of exculpatory) to collect circumstantial evidence to show that
exculpatory part of confession was not true (if it is so). It was held in 1955
Tripura 19, Para Kinkar Chakma v. State, “There is no doubt, in cases where
there is no other evidence except the confession, the rule that the confession
must be used as a whole or not at all applies in full force but in cases where
there is evidence also, the entire confession can be examined in order to find
out which part of it is correct.”
Confession–Confessional Statement–The word “confession” has nowhere been
defined. However, the courts have resorted to the dictionary meaning and explained
that incriminating statements by the accused to the police suggesting the inference to
the commission of the crime would amount to confession and, therefore, inadmissible
under this provision. It is also defined to mean a direct acknowledgement of guilt and
not the admissible of any incriminating fact, however grave or conclusive. Section 26 of
the Evidence Act makes all those confessions inadmissible when they are made by any
person, whilst he is in the custody of a police officer, unless such a confession is made
in the immediate presence of a magistrate. Therefore, when a person is in police
custody, the confession made by him even to the third person that is other than a police
officer, shall also become inadmissible. Indra Dalal v. State of Haryana, AIR 2015 SC
1428.

Admissibility of Confession
Now in order to make confession admissible in evidence. “It must be
affirmatively proved that such confession was free and voluntary and that
was not produced by any inducement to the prisoner to make a statement
held out by a person in authority or that it was not made until after such
inducement had clearly been removed.” Mahajan J. in Hemraj Devi Lal v.
State of Ajmer, 1954 SC. 462. Also see section 24 Evidence Act. The onus of
proving voluntary nature of confession lies on the prosecution but this onus
is not so heavy as on the accused to show that it was solicited under threat,
inducement or pressure. As held in Hemraj Case Supra “mere a bald
assertion by the prisoner that he was threatened tutored or that inducement
was offered to him cannot be accepted as true without more.” At any rate
there must be some well-grounded suspicion based on facts and surrounding
circumstances to exclude confessions from consideration. See Bhagu v. State
of Pepsu, 1955 Pepsu 33.

Confession to Police Officer

Section 25 Evidence Act lays down that, “No confession made to a police
officer shall be proved as against a person accused of any offence.” The
confession to a police officer whoever he may be if it is not covered by
Section 27 Evidence Act is inadmissible in evidence even if the maker was
not actually an accused person at the time of making it. The police officer
thus need not be the officer investigating into that particular offence of
which a person is subsequently accused. A confession made to him need not
have been made when he was actually discharging any police duty.
Confession made to any member of the police of whatever rank and at
whatever time, is inadmissible in evidence in view of section 25 Evidence
Act.
There may be situations where the statement to the police of confessional
nature is inadmissible under section 25 but it is admissible as conduct under
section 8 Evidence Act. Siddappa 1991 Cr.L.J.458 (Kart.)
If it is not made to a police officer but before him then it is relevant if:
1. It is made to a Magistrate though in custody. Section 26 Evidence
Act.
2. It is made to another person though police officer is present, and the
accused is either not conscious of police officer’s presence or is not
influenced by him.
In Sita v. Ram State of U.P., 1966, SC 1906 , the confession was contained
in a letter written by accused to Sub-Inspector. This letter was recovered by
S.I. on search of the house which was opened and in which the dead body of
accused’s wife was recovered. It was held by Supreme Court that the
confession was relevant, being not made to police officer.
The police officers are advised not to ilicit confession by sending some
man to the culprit while remaining in close proximity. It was held in many a
ruling that his close proximity is likely to affect the mind of the confessing
person and is in substance a confession to a police officer and therefore
inadmissible in evidence. Emp. v. Hari Piara, 1926 All. 737. In order to make
such confession to third person admissible heavy duty is cast upon the
prosecution to show that even, if it was overheard by a police officer, while
it was being made to a person other than a police officer, it was not
influenced by him. Ghumi v. Emp., 1934 All. 132 and 35 Cr.L.J. 1402.

Meaning of Police Officer

The word “police officer” in section 25 Evidence Act has been interpreted
by various High Courts to mean not only an officer of the police department
but all such officers, may be of any department who exercise the power of
search, detection and investigation of offences like police officers. The
Queen v. Hurribole Chunder Ghose 1 Cal. 207 is the earliest case in which it
was held that term police officer should not be read in any strict legal sense
but according to its more comprehensive and popular meaning. In 1934 Cal.
580 Amin Sharrif v. Emp. , an Excise Officer exercising powers of detection
and investigation of offences and Excise Act was held to be police officer as
defined in Evidence Act and hence a confession to him was excluded from
evidence. An Excise Officer in cases Nanoo Shah Ahmad (1927 B 4) and Para
Masuam (1953 Mad. 917) and Ward Rationing Officer in case 1951 Punjab
387 (Om Parkash) were held to be Police Officers. Forest Range Officer is
police officer. 1958 Mad. 31 E.C. Richard.
The view that customs officer is a police officer within the meaning of
section 25 as held in 1959 Punjab 764, was not accepted by the Supreme
Court on appeal in State of Punjab v. Barkat Ram, 1962(1) Cr.L.J. 217 , since
the customs officer is not primarily concerned with the detection and
punishment of crime committed by a person, but is mainly interested in
detection and prevention of smuggling of goods and customs duty than with
the offender. See also Ballabh Dass, 1965 SC 481 and 1970 SC 940 Ramesh
Chandra. An Excise Officer is police officer. 1964 SC 828 Raja Ram.
The term ‘police officer’ is not restricted to officer of regular police
force, or investigating officer only. It includes the members of the C.R.P.
Force, P.A.P. Force, officers from C.I.D. from I.G. Police to a constable,
police officers of Indian States and foreign countries, Police Patel, Police
Chowkidar, etc., whether acting as police officer at the time or not (1956
Cr.L.J. 217). Jagjit Singh, 1962 (2) Cr.L.J. 487.
A member of Railway Protection Force is not a police officer in terms of
section 25 Evidence Act. A confession made before him is admissible.
Convictions can be based upon such confession under R.P. (U.P) Act. See
1980 Cr.L.J. 1424 (SC) 1983 Cr.L.J. N.O.C. 178.
The enquiry held by R.P.F. Officer under section 8 of R.P. (U.P.) Act
cannot be equated with investigation. So, confession of accused recorded in
statements under section 8 are relevant 1974 SC 2136, Durga Parsad.
The Primary test for determining whether an officer is a police officer
under the Special Act is if he has been invested with all the power
exercisable by an officer-in-charge of a police station under Chapter XIV
including the power to initiate prosecution by submitting charge sheet under
section 173(2) Cr.P.C. R.P.F. officer has not power under section 173 so not
police officer, 1981 SC 379 Balkishan.
Confession to Kotwar under Land Revenue Act–not Police Officer.
Relevant 1987 Cr.L.J. 204.
Revenue Intelligence Officer conferred with powers of officers-in-charge
of police station under section 53, 67 Narcotic Drugs Act, 1985. They are not
police officer for purposes of Section 25 Evidence Act or under section 162
Cr.P.C. 1990 Cr.L.J. 144–Intelligence officer of Narcotic Control Bureau
vested with powers under section 53 Narcotic Act, 1985 is not a police
officer within meaning of section 25 Evidence Act, Confession made to him is
admissible 1989 Cr.L.J. 2007.
Home Guard under Orissa Home Guards Act is not a police officer.
Confession to him is admissible 1989 Cr.L.J. 1566 (Ori.). Confession to police
officer on deputation is inadmissible. Ram Lakhan Pandey, 1969 Pat. LJR
646.
Confession to police officer though relative is irrelevant. 1980 Cr.L.J. 14
N.O.C. The confession of accused to police officer is relevant only as under:
1. Under section 27 Evidence Act, if it leads to discovery of fact.
2. Under section 457 Cr.P.C. as evidence with regard to ownership or
property.
3. In civil proceedings as an admission.
4. In section 109 Cr.P.C. proceedings since the person making it is not
accused nor charged with any offence.
5. To impeach the credit of confessor, if examined as witness against
another accused in separate proceedings.
6. The Judge can refer to a confession written in a case diary and may
enable the accused to contradict a Prosecution Witness.
Confession before police officer–Admissibility–Held that a Confessional
Statement duly recorded by a police officer is a substantive piece of
evidence and the same can be relied upon in the trial of such person or of
the co-accused, abettor or conspirator if the requirement of section 15 of
TADA, and the rules framed thereunder are complied with–Court may look
for some corroboration if confession is to be used against co-accused. Sanjay
Dutt v. State of Maharashtra AIR, 2013 SC 2687.
Confession of accused in an offence under MCOCA–Confession is
admissible even if it is made to a police officer (Not below the rank of
Deputy Commissioner of Police). Even though sections 25 and 26 of the
Evidence Act render inadmissible confessional statements made to a police
officer, or while in police custody, section 18 of the MCOCA overrides the
said provisions and bestows admissibility such confessional statements under
section 18 of the MCOCA–Section 18 of the MCOCA makes such confessional
statements admissible, only for “the trail of such person, or co-accused,
abettor or conspirator”. State of Maharashtra v. Kamal Ahmad Mohammad
Vakil Ansari, AIR 2013 SC 1441.

Admission before Police Officer

An admission before a police officer if it is not hit by section 162 Cr.P.C.
being made during the course of investigation is relevant under section
17/21 Evidence Act. Every statement to police is admissible as admission if it
does not amount to confession and is not made in the course of investigation
under Chapter XII of Cr.P.C. In order to distinguish between a confession
and admission, a simple test has been suggested in Nam Singh v. State, 1959
All. 518. If the statement by itself is sufficient to prove the guilt of the
maker, it is a confession. If on the other hand, the statement falls short of it,
it is an admission. The acid test which distinguish a confession from an
admission is that when conviction can be based on statement alone, it is a
confession and where some supplementary evidence is needed to authorise a
conviction, then it is an admission. Thus any statement like the house is
mine; the knife was borrowed from A etc. When made to a Police Officer
before start of investigation are admissions and relevant under section 21
Evidence Act. A Police Officer comes across an accused person on road side
with a trunk. He asks him about ownership of trunk which accused claims as
his. Later search of trunk reveals recovery of an unlicensed arm. The case is
registered against that person and the statement that trunk was his, is
relevant being admission, not hit by section 162 Cr.P.C. and 25 Evidence Act
(Narayana Swami’s Case) Supra. Another example of such admission is when
an F.I.R. is lodged by accused. That part of the F.I.R. relating to previous
relation between parties and all facts which are not hit by section 25
Evidence Act will be relevant as admission. See F.I.R. by accused in Chapter
I. An admission is distinguishable from confession as under:
Admission Confession
1. Admission is a statement oral or documentary suggesting any inference as to the
fact in issue or relevant fact.
2. Admission of facts can be in parts or may be in reference to certain parts of a fact in
issue.
3. All admissions are not confessions. They are genus.
4. The admission can be made by witness or agents under section 18 Evidence Act.
5. No specific form is fixed for admissions according to law. It can be in any words

6. It is admissible even if made to police officer but not during investigation, being not
hit by section 162 Cr.P.C.
7. Admissions maybe proved by or on behalf of the person making it under section
21 Evidence Act in his favour.
8. Mostly applied in civil cases and are rebuttable by person making it.
1. Confession is an admission made by a person charged with crime stating or
suggesting the inference that he committed crime.
2. Confession must admit all facts or at least substantive facts so that an offence is
made out.
3. All confessions are admissions and are species.
4. It is always by accused himself who fully admits his guilt.

5. It must be recorded during investigation by Magistrate under section 164 read

with section 281 Cr.P.C. to be relevant. If during trial, under section 313. No
specific form, if otherwise.
6. Not relevant when made to Police under section 25 Evidence Act and only
relevant when covered by section 27 Evidence Act.
7. Confessions always go against making it.

8. Always in criminal cases and not returnable though can be retracted.

Confessions are of Two Kinds

Extra Judicial Confessions Judicial Confessions

I. Extra Judicial Confessions

1. Neither made before a Magistrate.
2. Nor in the course of judicial and legal proceedings.
3. It can be either or documentary. Oral when it is made before a person
orally. Documentary when it is made by accused persons and is
contained in a document, or if the hearer of the confession writes it in
a document. Document must, however, be produced in evidence
otherwise presumption will be against prosecution. This should,
however, be remembered that oral evidence still can be given if
document is not produced as Section 91 Evidence Act does not bar it.
4. It is a free and voluntary confession of guilt made by persons accused
of crime in the course of conversation with persons other than a Judge
or Magistrate or police seized of the charge against him.
 5. Such a confession need not be communicated to any person. It may be
overheard by another person. It may be soliloquy, an emotional
uttering of accused to ease conscience, or an emotional outburst to a
wife. Any one may be a police officer, if he overhears it, his evidence
will be relevant and not hit by section 24 or 25 Act. 1966. SC 40 Saboo
v. State.

II. Judicial Confession

The Magistrate can record confession in three ways:
1. If it is not during investigation of case, then he can write it without
formalities. Even oral confession of such accused being not in custody would
be relevant.
2. If it is during investigation of case whether accused in custody of
police or not, it must be recorded under section 164/281 Cr.P.C. to be
relevant.
3. If it is during trial then under section 313 Cr.P.C.
4. It can also be oral as well as documentary. Oral confession before a
Magistrate could only be admissible if it was made not during the
investigation enquiry or trial of a case, by the accused.
In bribery raid, when case was not registered a Magistrate accompanied
the raid. The accused confessed before Magistrate. Held in 1953 Pep. 282
State v. Madan Mohan that oral confession was admissible. It was held in
1955 Patna 425 Rishi v. State that section 9 Evidence Act would not be a bar
to admission of oral evidence to prove a confessional statement when it is
made to a Magistrate which he was not bound to record under section
164/281 Cr.P.C. In this case accused Rishi had admitted before S.D.M. that
he was exporting rice. The Magistrate on this drew up F.I.R. and got case
registered without confession. Held confession though oral was admissible
as section 155 Cr.P.C. had no application to such confession.
Similarly, in 1966 And. Pr. 131. In re Yendra Nara Sinha Murthy
Statement of accused who went to a Magistrate that he killed the deceased
was held to be relevant though not recorded under section 164 Cr.P.C. as
investigation had not begun by then.
If the Confession is made during Investigation after registration of
case it must be reduced into writing by the Magistrate in order to be
admissible
under section 164 Cr.P.C. if it is during enquiry or trial it must be under
section 281 Cr.P.C. This question cropped up in case Nazir Ahmed v. King
Emp., 1936 P.C. 253. In that dacoity case, a Magistrate accompanied the I.O.
during investigation to witness the pointing out of material place of dacoity.
The Magistrate appeared in evidence and admitted that accused confessed
before him while pointing out places. Held this confession was inadmissible.
The Magistrate should have proceeded to record confession as required by
sections 164, 281 Cr.P.C. See In re Mannem Edu Kondalu, 1957 Cr.L.J. 1086.
Dying accused made statement. He survived the statement contained
confession. Held not admissible as not under section 164 Cr.P.C. (In re
Natisan, 1960 Cr.L.J. 1340 ) since investigation had commenced. In 1964
Kerala, 241, the Magistrate had recorded the confession of accused in
exhumation notes in an inquest for the recovery of dead body of an
illegitimate child, after registration of case under section 318 I.P.C. Held
this confession was inadmissible since it was not recorded under section
164/281 Cr.P.C. Such a confession was held to be inadmissble in Shital
Singh; 1975 Cr.L.J. 699 and Shri Lal 1976 Cr.L.J. 1325. In the later case
accused had confessed before Magistrate even before he was apprehended
and arrested. The Magistrate had prepared a note of what transpired. Since
investigation had already begun and the Magistrate had not recorded it in
terms of section 164 Cr.P.C, it was held inadmissible.
Even Admission required to be recorded under section 164
inadmissible
Therefore, the principle as enunciated in Nazir Ahmad’s case has been
accepted by Supreme Court in Rao Shiv Bahadur Singh’s case , 954 Cr.L.J.
910 to the effect, “Once the investigation had started any non-confessional
statement made by the accused also required to be recorded in the manner
indicted in section 164 and if no such record had been made by the
Magistrate, the Magistrate would not be competent to give oral evidence of
such statement having been made by the accused.” The admission of the
accused can also be recorded, under section 164 Cr.P.C. during the course of
the investigation of a case. It was held in Pingal Khadia, 1969 Cr.L.J. 1255
that section 164 Cr.P.C. makes provision for recording of statement or
confession. Confession clearly refers to that of an accused. The word
‘statement’ used in the Section is not limited to the statement of a witness
alone. It also covers the non-confessional statement of an accused. Thus a
statement of the accused, not amounting to a confession, is admissible in
evidence provided it is relevant and admissible under any of the provisions
of the Evidence Act. In re Ram Chandran, 1960 Cr.L.J. 616 (Mad.). the
accused went straight to a Magistrate after commission of murder. He
confessed. The confession was not recorded under section 164 Cr.P.C., “for
the very good reason that the Magistrate was not then concerned with the
investigation of the crime.” The statement was held to be admissible both as
a report of first information and otherwise under the law relating to
admission. It was further held, “the weight to be given to such an extra
judicial confession depends entirely upon the circumstances under which it
was made; where it was spontaneously made by the accused to Magistrate
who was not even aware of identity of the person appearing before him or of
the fact that any murder had occurred, the confession is certainly entitled to
every great weight unless there are any reasons for accepting the suggestion
is defence or even considering it probable that the police had tutored the
accused to go and make such a confession.”

Extra Judicial Confession

(i) The value of extra judicial confession depends upon many
circumstances. This kind of evidence, if it is wholly oral, ought to be
received with great caution as it is not possible to ascertain the exact words
and the language used by the accused persons. If the Court can find out with
certainty the exact words used by the accused, then it can depend upon
these words. An investigator should, therefore, try to fully understand the
importance of this aspect of law. He should while recording such confession,
try to find out the exact words used by the accused before the witnesses.
Mere general statement that a prisoner confessed is insufficient.
He should weigh whether the words are not result of some interpretation
by witness, some exaggeration by him and if these are not result of some
misconception and misunderstanding according to circumstances of the case.
Once he is sure about these words, he should make an honest record
incorporating all these words used in the statements of witnesses as the
record at that time which is immediately made after occurrence can be
depended upon to show that memory of witness had not been hazed by lapse
of time and there was no scope for embellishments or exaggeration. Three
things are necessary to be proved by prosecution to secure conviction on the
basis of extra judicial confession. Firstly that a confession was made.
Secondly that evidence of it can be given, thirdly that it is true. Such a
confession must be proved by independent or satisfactory evidence, as held
in 1957 Cr.L.J. 803 : AIR 1957 All. Gaya Prashad.
(ii) There are certain essential rules of exclusion which makes an extra
judicial confession inadmissible in evidence. The onus is on the accused to
show that his confessional statement falls within these rules, enacted in
Sections 24, 25, 26 Evidence Act and section 162 Cr.P.C. As such he is
required to prove:
1. That the statement has been made by him as an accused and is
admission of guilt.
2. That the statement was the result of an inducement, threat or promise
proceeding from a person in authority.
3. That such inducement, threat or promise had reference to the charge
and gave him reasonable grounds for supposing that by making such
confession he would gain any advantage or avoid any evil of a temporal
nature in reference to the proceedings against him. (Section 24).
4. That statement was made to a police officer (Section 25).
5. That it was made during interrogation to police officer making
investigation of case (Section 162 Cr.P.C).
6. That statement was made while in the custody of a police officer and
not made in his the immediate presence of the Magistrate (Section 26).
All the confessional statement of accused which come under the ambit of
section 24, 25 and 26 Evidence Act are irrelevant and should be excluded
from evidence. For applying in section 24, it is necessary to fulfil 4
conditions viz. (i) it was result of inducement, threat or promise; (ii) which
was by person in authority; (iii) concerning that every case; and (iv) gave
impression to accused that he would gain advantage to avoid evil of temporal
nature. In case any one of the conditions is not applicable, the confession
would be relevant.
‘Person in Authority’. There is no definition under Evidence Act as to
who is person in authority. Every such person would be that who wields
influence and can interfere in the investigation. View expressed in Jiwan v.
Emp. 1936 All. 470 is that such person should have authority to interfere is
the matter of charge against the accused. Generally, speaking, “Person in
authority” is one who is engaged in the apprehension, detention or
prosecution of the accused or one who is empowered to examine him as held
in Lokanath Panda, 1966 Orissa 205 . In Mohammad v. Emp., 1936 Lah. 264 ,
the confession of accused to the servant of his landlord was held to be made
to a person in authority. In Ramdin v. Emp., 1948 All. 101 , a Mukhia without
statutory authority was held to be so. In Nannhu v. State, 1960 M.P. 505
broader view that any person who wields some kind of influence over the
accused is a person in authority was taken. So, this term will include all
police officers, of departments concerned, complainants, their wives,
Prosecutors, Attorneys, lambardars, Zaildars, Illaqadars, Panches,
Sarpanches, big Zamidars, Taluqdars, the relations and neighbours of the
master or the prosecutors. A superior officer of an accused is a person in
authority. Viranwali v. State, 1961 Cr.L.J. 258 . Confession to father, he is
not person in authority. 1989 Cr.L.J. 271.
Any confession secured by moral or spiritual exhortations or religious
exhortation though by person in authority or any other person are relevant
under section 24 as advantage gained or evil to be avoided is not of temporal
nature. “You will please God”, etc. Such promises or inducements can be, “I
will pray for heaven for you.” This advantage must have reference to the
proceedings against the confessor and not a collateral benefit or boon such
as you will not be prosecuted in other case, get money, see wife and so on.
Remember always that a confession to police officer is always irrelevant
under section 25 Evidence Act, irrespective of the fact whether conditions of
section 24 are fulfilled or not.
To fully understand the scope and value of inducement, treat and
promise, confessions were held to be irrelevant when were result of:
A promise, that “there will be no prosecution.” 6 Cr. App. 8 or “I will
forgive you.” 6 Cr. App. 198.
I hope nothing will happen to (accused), I Arm. M. and O. 340.
 “You will get off.” I.W.R. 24.
I will try to save you 3 B 12.
If you don’t tell we can do nothing for you. 183 C. and P. 55.
I will be favourable to you. 1784 I Leeach Cr.L.J 328 . You will be
released. 45B 1086.
You need not it be afraid 1941 M.W.N. 956.
I will commit you to prison if you do not tell. 9 B.H.C. 358.
It will be right thing for your brother to make a statement (1893) 2 Q.B.
18.
You had better say what you know (as truth has come out), 1929 P. 275.
You better tell the truth. 1934 L. 417.
You will be dealt leniently. 1926 L. 470.
(iii) He should further understand that the statement should not be
composite one of many accused that they admit guilt. It should be about
every accused individually as to what he said, giving out exact words. 1925
Lahore 418 (Saffan Singh v. Emp.).
(iv) If confession is the result of a question, it should be clearly given as
to what was asked. Sometimes composite questions are put, the replies to
which may be misleading. Question should be clear and distinct relating to
single matter.
In Hansi v. Emp. 1927 Lah. 650, a composite question, “Whether the
accused had stolen the mare and was arrested while riding it,” was asked.
The answer was in the affirmative. Held it did not constitute confession of
the theft.
In order to be admissible, the confession must be voluntary, I.O. should,
therefore, see as to what was the state of mind of accused when he made
extra judicial confession and if it was not result of repeated questioning. In
1961 (1) Cr.L.J. 258 Viranwali v. State , it was held that considering the
physical and mental state in which the accused was after recent delivery, the
confession made by her after repeated questioning was not voluntary and,
therefore, not admissible.
It was held in Satbir Singh, 1977 SC 294 , in considering whether
confession is hit by section 24, it is to be considered from point of view of
accused as to how inducement, threat or promise proceeded from person in
authority would operate in his mind. In the case person in authority had
been interrogating himself, asking his D.S.P. to tell accused that, “should
state truth otherwise they would not be supported by me.” The confession
was held to be irrelevant.
(v) It is further to see that such a confession is not before an interested
person in the prosecution of case or the complainant.
(vi) It is not much belated. 122 Pat. 582, in the sense that witness does
not tell fora long time.
(vii) According to section 26 Evidence Act . “No confession made by
any person whilst he is in the custody of police officer unless it be made in
the immediate presence of a Magistrate shall be proved as against such
person.” Whenever question about relevancy of confession of an accused in
police custody arises, it should be determined if accused was in police
custody and if so, was it made before Magistrate, and if it was a confession.
Merely identifying the deceased by accused while in police custody but in
the presence of Magistrate was held to be admissible being not hit by section
26 and also being not confessional. The term police custody is a wide one.
The crucial test as laid down in Ram Singh v. State Supra is ‘whether at the
time an accused makes a confession, he is a free man or his movements are
controlled by police either by themselves or through some agency employed
by them for the purpose of securing such confession. The immediate
presence of a police officer or policeman is not necessary to prove that the
accused was in the custody of the police. Even his temporary absence would
not terminate his custody and the accused shall be deemed to be in the
custody of police even in such circumstances. No statement made by accused
under such circumstances can be held to be voluntary.
(viii) If confession as mentioned in Section 24 is made after the
impression caused by any such inducement, treat or promise has in the
opinion of the court been fully removed it is relevant (Section 28 Evidence
Act).

Some Important Rulings on Confession are as under

Section 24–Extra Judicial Confession–Evidentiary value–Murder case–
Accused alleged to have confessed before brother of deceased–Neither exact
words nor words substantially stated by accused reproduced–Presence of
accused in front of his own house and manner of confession, highly
improbable–Extra Judicial Confession, not acceptable. Ghasiram Lakra v.
State of Orissa, 1997 Cr.L.J. 939 Orissa.
Section 24–Extra Judicial Confession–Evidentiary value–Assessment of–
Prosecution relying on Extra Judicial Confession of accused which was
allegedly made by him in presence of witnesses including the first informer–
Alleged version not found in F.I.R.–Rejection of evidence of extra judicial
confession proper. Udiya v. State of Rajasthan, 1997 Cr.L.J. 516 Raj.
Section 24 Oral Confession–Alleged to be made to Reserve Force Police
Officer who was on duty at place of occurrence–Evidence of another police
officer lodging F.I.R. that accused made a Confession to someone–It is a
hearsay evidence and therefore, the statement made in the F.I.R. is not a
substantive evidence to corroborate the evidence of police officer to whom
confession allegedly made–Therefore, that piece of evidence stands
excluded–Moreover in evidence of Police Officer to whom confession was
made that part of evidence of oral confession made by accused to Police
Officer is not available to the prosecution. State of Gujarat v. Anirudh Singh,
1997 Cr.L.J. 3397 SC.
Section 164–Confession–Recording of–Procedure–Confession made by
accused to police admitting his involvement in all cases in which young boys
of locality were murdered–Failure on part of Magistrate to get satisfied by
questioning accused that confession was being made voluntarily–Will render
confession inadmissible in evidence–Cannot be relied on despite fact that it
was not retracted at earliest opportunity. Naresh v. State, 1997 Cr.L.J. 3793
(All.).
Section 25–Extra-Judicial Confession–Admissibility–Disparity between
time of making confession as spoken to by witnesses and time mentioned in
police records–Held, much should not have been made of disparity–There
could be an error in recording time A.M. for P.M.–At any rate, it is not
proper to jettison otherwise sturdy piece of evidence of extra-judicial
confession on such a rickety premise. State of A.P. v. G. Satya Murthy, 1997
Cr.L.J. 774 SC.
Section 25 Confession–Admissibility–Alleged to be made to police officer–
Reserve police officer appointed under State Reserve Police Force Act–Is
police officer and officer-in-change of police station under Bombay Police
Act–But not police officer for provision of chapter XII of Cr.P.C.–Section 25
of Evidence Act do not get attracted. State of Gujarat v. Anirudh Singh, 1997
Cr.L.J. 3397 SC.
Section 26–Extra Judicial Confession–Admissibility–Confession though
recorded inside police station, contents disclosed long before to witnesses
before they were reduced to writing–Bar of section 26 is not attracted. State
of A.P. v. G. Satya Murthy, 1997 Cr.L.J. 774 SC.
Section 24–Murder–Proof–Accused in due need of money alleged to have
killed deceased and taken away her jewels and other valuables–Extra
Judicial Confession alleged to have been made before village Administrative
Officer–Evidence of said officer as to recording of such confession and then
submitting him police station found reliable–Mere statement of accused
before trial court that he was innocent would not amount to retraction of
extra judicial confession. Pakkiriswamy v. State of Tamil Nadu, 1998 Cr.L.J.
89 SC.
Section 24–Confession by one of the accused–There was reasonable
ground to believe that other accused had conspired together in committing
murder–Therefore, confession made by accused could be used against other
accused also. Ammini v. State of Kerala, 1998 Cr.L.J 481 SC.
Section 24–Extra Judicial Confession–Reliability–Confession made by
accused an army sepai to his senior–Found to be voluntary–Senior not
inimical to accused–Minor variations between confession and his evidence –
Does not make it unreliable. Vinayak S. Pol v. State of Maharashtra, 1998
Cr.L.J. 1558 SC.
Section 24–Extra Judicial Confession–Evidentiary value–Extra Judicial
Confession is like any other evidence–Need not be independently
corroborated if found to be voluntary, reliable, unbiased and trustworthy–
Conviction can be based on such confession. J. P. Valand v. State of Gujarat,
1998 Cr.L.J. 4260 Guj.
Section 24–Confession–Before a confession is relied on it must be clear
and unequivocal, whether it is in a judicial or in an extra-judicial confession
– Alleged confession made by large number of persons before panchayat is
more in a general and vague term–No reliance could be placed on such
confessions. Kishanlal v. State of Rajasthan, 1999 Cr.L.J. 4070 SC.
Section 24–Extra Judicial Confession–Murder case–Accused persons
confessing to person who was not related or connected to them–All accused
confessed at one and same time is also improbable–Person to whom
confession was made not disclosing it to the wife of deceased though he was
close to family of deceased–Allegation that he has disclosed the confession to
police officer not corroborated–Held, extra judicial confession was not
trustworthy. Surendra Kumar v. State of Punjab, 1999 Cr.L.J. 267 SC.
Section 24–The delay in recording extra-judicial confession before a
person wholly unconnected with the police is always a matter of great
suspect. State of Punjab v. Gurdeep Singh, 1999 Cr.L.J 597 SC.
Section 24–Extra Judicial Confession–Prosecution witness failed to
reproduce extra-judicial confession made to him in exact words or even in
the words as nearly as possible–Further his statement showing that he
consumed liquor alongwith accused and thereafter accused disclosed the
entire incident to him–Statement by accused cannot be said to be voluntary
and truthful one–On the other hand it is outcome of consumption of liquor,
both the witness as well as accused–Thus said extra judicial confession has
to be excluded from purview of consideration for bringing home the large.
C.M. Raveendran v. State of Kerala, 2000 Cr.L.J. 497 SC.
Section 24–Extra Judicial Confession–Evidentiary value of extra judicial
confession would depend on trustworthiness of witness before whom
confession was made. State of Karnataka v. Paniyeravara Mani, 2011(4)
Crimes 596.
Section 24–Extra Judicial Confession–If voluntary and true and made in a
fit state of mind could be relied on by court–Value of evidence depends upon
veracity of witness. No reason had been recorded why accused would repose
faith in person to whom confession was made. Neither witness informed the
police about confession nor other person in whose presence confession was
made was examined–Such confession not to be acted upon. Sunita v. State of
Punjab, 2012(1) Crimes 334.
Section 24–Confession of extra judicial in nature–Courts should not
proceed from very beginning that extra judicial confession was a weak type
of evidence– Value of such evidence depends on reliability of witnesses to
whom it was made, circumstances in which and time when such confession
was made. Gatikrushna Nayak v. State of Orissa, 2011(4) Crimes 378.
Section 24–Extra Judicial Confession–It is clear that there is no rule of
law that the extra judicial confession cannot be relied on alone and for
recording a conviction on such confession. There should be corroboration by
some other evidence. On the contrary, if the evidence of extra judicial
confession is reliable, trustworthy and is beyond the shadow of doubts, the
same can be made the sole foundation for recording conviction of the
accused and the court by way of abundant caution, may look for some
corroboration. Sahdeo @ Chhotu Yadav v. State of Chhattisgarh, 2009(4)
Crimes 421.
Extra Judicial Confession–Accused allegedly made Extra Judicial
Confession before police–Witness turned hostile–Extra-judicial confession
not believed because an extra is in any case a very week piece of evidence
which requires corroboration of other evidence to complete the chain of
events pointing to the conclusion of guilt of the accused. Mohan Lal v. State
of Punjab, 2013(1) RCR (Cri.) 17.
Section 25–Police officer–Village Chaukidar does not have power to
investigate including power to submit report under section 173 Cr.P.C.–
Hence he is not a “Police Officer” written a meaning of section 25 Paro
Chamar v. State of Bihar, 2000 Cr.L.J. 4787 Pat.
Confession–By co-accused under section 164 Cr.P.C.–The co-accused who
confessed has since died–Consideration of–Such confessional statement at
best be considered as a relevant fact which by itself cannot be the sole basis
of a charge–Further, such confessional statement being of nature of
accomplice evidence held to be a very weak evidence and so requires
corroboration–Section 32(3) Evidence Act. P.U.C.L. People's Union for Civil
Liberties (Delhi) v. CBI, 1997 Cr.L.J. 3242.
Confession–Offence under section 376–Appellant arrested and put up for
medical examination–Confession before doctor recorded. Held, it was not the
duty of the doctor to record confession and also because the appellant was
under police custody at that time, such confession is not admissible in
evidence. Raghunath v. State, 1991 JCC 426.
Confession–Section 164 Cr.P.C.–Confession of an accused can be recorded
by a Magistrate at the instance of I.O.–Accused is a definite person–Such a
confession can be used against the maker thereof–Prosecution has to rely on
it against the accused–But a stranger cannot press his statement to be
recorded. Jogendra Nahak & others v. State of Orissa, AIR 1999 SC 2565.
Confession under section 164 of Cr.P.C. and also under section 15 of
TADA Act–Some of the accused persons making confessions–Confessions
recorded by fully Competent Officer and after complying all the conditions
under provisions of section 164 Cr.P.C. and section 15 of TADA Act–Trial
Court was wrong in declaring the confessions to be not voluntary or reliable–
No good reasons have been given by the Designated Court for not believing
these confessions–Therefore, it is held that the confessions are free and
reliable and safe basis for conviction of accused persons. S. N. Dubey etc. v.
N. B. Bhoirs & Others, AIR 2000 SC 776.
Confession under section 25 Evidence Act, 1872–Confessional Statement
before Australian Police by Indian Citizen–Murder case on board of ship–
Such confession is hit by section 25 of Evidence Act and not admissible.
State v. Ranjan Raja Ram Bagkar, 1991 JCC 139.
Confession–Wife in Police custody–Inadmissible in evidence whether it is
a case under Penal Code or under TADA Act. Bilal Ahmed Kaloo v. State of
A.P., AIR 1997 SC 3483.
Confession and its retraction–Confession made by accused on 9-5-1994
and produced before Magistrate by custom officers on 10-05-1994–Remanded
to judicial custody and produced before Magistrate on 23-05-1994, on which
date he retracted his statement–Can retraction be said to be an after thought
and has no value–Held, (No). Patrick B. Wafula v. Department of Customs,
2001 (94) DLT 221.
Confession–Admissibility of–Necessity of–Scope and effect of–Held–
Genuineness of confession is to be decided on the basis on the extensive
evidence which lends corroboration to the confession. Sidharth v. State of
Bihar, (SC) 2005 (10) SRJ 309.
Confession–Admissibility–Section 15 of TADA is an exception to provisions
which make confession inadmissible. Ravinder Singh @ Bittu v. State of
Maharashtra, AIR 2002 SC 2241.
Confession–Every inducement, threat or promise does not vitiate a
confession. State of Rajasthan v. Rajaram, AIR 2003 SC 3601.
Extra Judicial Confession–F.I.R. lodged after knowing about–But not
mention about this vital fact–Held–Omission to mention about the particular
aspect may not render prosecution version suspicious. State of Haryana v.
Jagbir Singh, AIR 2003 SC 4377.
Confession–It is a species of a admission. It is evidence against maker of
it–If its admissibility is not excluded by some provision of law. Devender Pal
Singh v. State (NCT of Delhi), AIR 2002 SC 1661.
Confession section 25 Evidence Act–It should appear to have been made
voluntary and police officer who records should satisfy himself that the same
voluntarily by maker of that statement–Recorded Confession must indicate
that these safeguards have been fully complied with–If recorded confession
do not show that the officer, who recorded, had follows those guidelines–It is
inadmissible in evidence. Ayyub v. State of U.P., AIR 2002 SC 1192.
Confessional Statement–Accused in jail for ten days–After recording
statement half-an-hour given by Magistrate to rethink–Legality–Held,
Statement was voluntary–Evidentiary value did not get diluted. Darshan Lal
v. State, 2005 (4) CRJ 211.
Confession is voluntary or not is always a question of fact. State of
Rajasthan v. Rajaram, AIR 2003 SC 3601.
Section 25–Judicial confession–Accused was arrested on 6-7-2004 and her
confession was recorded on 16.7.2004 and in between she had been in police
custody–Magistrate before recording confession, given the reflection time of
one and half hour–Confession could not be said to be voluntary with absence
of any duress fear or threat. Smt. Laxmi Chakraborthy [Link] of Tripura,
2011(1) Crimes 303.
Section 25–Confession given by the accused to police could be referred to
for the purpose of finding out the real cause of incident and in determining
the nature of offence committed by accused. Ganeshan v. State of TN,
2011(4) Crimes 461 & Manickam v. State of TN, 2011(3) Crimes 509.
Section 25–When the accused went to the police station and gave a
statement that he killed his wife, definitely it amounts to a confession. It is
not the admission made by the accused with regard to some other facts
because the accused admitted his guilt, which amounts to a confession and is
not admissible under law. State of A.P. v. Ramancha Laxma Reddy, 2011(1)
Crimes 292.
Section 26–Judicial confession–Magistrate does not include Executive
Magistrate–Confession statement of accused has to be recorded only by
Metropolitan Magistrate or Judicial Magistrate provided under section 164
Cr.P.C– Appellant accused when arrested was produced before Tahsildar and
accused gave confession which was recorded by Tahsildar and then he sent
accused for judicial remand–Confession would be inadmissible. Velu v. State
of TN, 2009(3) Crimes 465.
Section 26–Confession while in police custody–Concept of “Custody” and
“Arrest”–When a person went to police station and gave information
regarding crime committed by him–Accused would be taken to have come
into custody of police, the movement he made a confessional statement.
Mukesh v. State of TN, 2010(2) Crimes 441.
Confession–Recording of confession of accused by Judicial Magistrate –
The Metropolitian Magistrate or Judicial Magistrate under section 164
Cr.P.C. may record any confession or statement made to him in the course of
investigation, whether he or not has jurisdiction over the case. Ashok Sehgal
v. State of H.P., 2012 Cr.L.J. 4983.
Confession–Confession made before the police official and not
corroborated with evidence is not admissible in evidence. Joginder Singh v.
State of Haryana, 2013(1) RCR (Cri.) 512.
Confession–Statement made under section 164 Cr.P.C. under coercion and
pressure that if she did not support the case of the prosecution, a case of
opium would be planted against her by the police–Statement under section
164 Cr.P.C. is not a substantive piece of evidence–Not believed. Madan Lal v.
State of Punjab, 2013(1) RCR (Cri.) 17.
Confessional statement–Admissibility of confessional statement against a
person other than the person who made it–It was held—
(i) A confessional statement is admissible only as against an accused
who has made–In case of joint trial a confessional statement can be
used even against a co-accused–For such admissibility it is imperative
that the person making the confession besides implicating himself,
also implicates others who are being jointly tried with him. State of
Maharashtra v. Kamal Ahmad Mohammad Vakil Ansari, 2013 Cr.L.J.
2069.
Confession–Confessional statement–Accused disclosed the names of their co-accused
at whose instance various incriminating materials including pistols, cartridges, bullets,
blood stained articles were recovered–Simply denying their role without proper
explanation as to the knowledge about those incriminating material would justify the
presumption drawn by the courts below to the involvement of the accused in the crime-
Accused cannot take shelther under section 25 of the Evidence Act (Section 23). Pawan
Kumar @ Monu Mittal v. State of U.P., AIR 2015 SC 2050.
Confession–Confession of accused were taken in the immediate custody of high
security of CBI–Non-voluntary confession–It was held that the same cannot form the
basis of convicton. Seeni Naina Mohammad v. State, AIR 2017 SC 3035.
Confession–Dacoity recovery of items–The accused person was arrested near bus
stand and his confession statement was recorded in the presence of vasan. Based on
which, a sum of Rs. 46,000/- was recovered from Raja Mohammad (accused). Confession
statement of accused led to recovery of thirty pair of silver ankets, golden necklace and
chain from Noorudheen who was identified by accused. Confession statement of
accused led to further recovery of silver & gold articles from KVM Jewellery at
Kallakurichi and other different places. The jewels so recovered from the accused were
identified by the owner of the pawn shop. Further, the facts were also corroborated by
the registers maintained in his pawn shop to show that those items of jewels were
pledged in his pawn shop. The conviction of the accused and other person under section
396 IPC is unassailable. Shahjahan v. State, AIR 2018 SC 1070.

Judicial Confession
Sometimes the accused expresses his intention to make a confessional
statement before Magistrate. He feels the pangs of conscience and to relieve
himself of the burden he wants to tell everything. In such cases the
procedure to be adopted should be as follows:
1. “Proper course is to put him in judicial lock-up and to let him remain
therefore a sufficient time to enable him to reflect upon the consequences of
making a confession before producing him before a Magistrate for the
recording of his statement under section 164 Cr.P.C.” Jindal v. State, 1953
Cr.L.J. 1900 HP. Accused kept segregate in jail for two days. Confession
recorded by Magistrate. Held Voluntary 1987Cr.L.J. 859.
 2. If not sent to judicial lock-up, then criterion is, “to give enough time to
the person concerned to compose himself before recording his confession”,
1952 Cr.L.J. 1495 Kirpa v. State. Ranjha v. State, 1953 Cr.L.J. 15. Generally,
time should be 24 hours as held in Sarwan Singh Rattan Singh v. State of
Punjab, 1957 SC 637; 1957 Cr.L.J. 1014 . This means that accused when
produced before a Magistrate for recording confession by police should be
sent to judicial lock-up for 24 hours, if the accused is brought directly from
police custody. This is, however, not an absolute rule to lay down that
whatever the circumstances, a confession without allowing this interval for
reflection is to be rejected as a confession being not voluntary. In Cr. Appeal
No. 208 of 1959, State of Bombay v. Katubaddin Abdul Karim decided by
Supreme Court on April 25, 196l , it was held that, “It is quite clear that this
court did not seek to specify in Sarwan Singh’s case AIR 1957 SC 637 any
number of hours as the minimum period which must be given an accused
person for reflecting. What it emphasised was that in each case the court
must satisfy itself that sufficient time has been given.” Ram Parkash, 1959
SC 1 the accused on whose confessional statement reliance was placed and
whose confession was held to be voluntary, had been given only an hour’s
time for reflection. See also Naidu Budhia, 1975 Cr.L.J. 564 where necessity
of giving time was held not to be mandatory if other requirements of Section
164 have been complied with, and Shankria, 1978 SC 1248 no statutory
period has been prescribed, but interval need not be minimum 24 hours (15
minutes deemed to be sufficient accused had come from judicial lock-up).
This depends upon the facts of each case. In Mohd. Ishaq case 1959
Punjab 110, where a confession was made an hour after the accused
willingness to confess when brought from police custody, it was held to be
admissible saying. ‘There is no universal mandatory rule of law that
confession recorded after about an hour of the willingness shown by the
accused must be declared as inadmissible or untrustworthy.” In Shiv Devi’s
case, 1959 Cr.L.J. 448 (H.P.) it was held, ‘if an accused person is in a mood
to confess, the sooner his confession is recorded the better.’
In 1965 (1) Cr.L.J. 393 (Punjab) Nand Lai Mor. v. State. Time of one and
half an hour given to accused was held to be sufficient and in Subash Kumar,
1966 Cr.L.J. 323 (Cal.) only 3 hours time and 3 hours in 1976 Cr.L.J. 414
Kandaraka.
If must not be the result of continuous and pressing interrogation by the
person in authority, as such interrogation will show an implied threat under
section 24 Evidence Act. It was held in re Chinara Papiah 1940 Mad. 136 ,
where a Superintendent of Police questioned the accused for four hours at
night and again for two hours in the morning then this was a flagrant
violation of the relevant rules. However, in Rattan Gind v. State of Bihar,
1959 Cr.L.J, 108 (SC), where questioning was for two hours but not
continuous by members of Panchayat, it was not held to be result of
inducement. The following factors will weigh to determine the above two
principles:
(a) Length of time during which the accused remained in police
custody before making confession. Vidyamati v. State, 1953 Cr.L.J.
33/AIR 1944 All. 46.
(b) Inordinate delay between accused’s willingness to confess and
actual recording. Kirpal v. State, Supra.
See 1956 SC 56 Nathu v. State of U.P. –The onus as such lies on the
prosecution to show that confession was voluntary and for that
purpose it is necessary to prove the circumstances under which this
unusual step was taken; otherwise prolonged custody immediately
preceding the making of confession is sufficient to stamp it as
involuntary, unless it is properly explained.
 Inordinate or unexplained delay in interrogating the accused
affects its reliability, 1976 Cr.L.J. 228. State of Karnataka v.
Ramdass.
(c) Whether accused knew that he was to be transferred to judicial
custody after making confession. If he expected to be sent back to
police, then it will be considered that it was under pressure to
confess fearing bad consequences.
(d) Whether accused had been tendered any advice, legal or otherwise,
to confess and what could be possible effect on his mind.
(e) Whether the case was weak or strong against the accused or it was
only that police was anxious to fill any lacuna by inducing the
accused to confess. The presumption will be adverse if the evidence
was quite inadequate otherwise.
(f) If confession recorded by Magistrate was consistent with his
previous statements.
(g) The time at which and the place where, the confession is recorded
are two of the several circumstances to be considered in assessing
the voluntary character of the confession made. Deveeramma, 1960
Cr.L.J. 1108.
(h) Whether due warning in terms of section 164 (3) was given. Naida
Budhia Supra.
3. It should, however, be remembered that confession could only be got
recorded during the course of investigation and before commencement of
enquiry or trial. It was held in 1951 Pb. 390 confession recorded during trial
started on incomplete challan cannot be taken into consideration 1957. All
184 Bachhan Lal.

Procedure for Police

The police officer should better take the application of the accused
expressing desire to confess and then produce before the Magistrate who is
legally eligible to write such statement. If a Magistrate incompetent to
record confession records it, it is irrelevant. State of U.P. v. Singhara Singh,
1964 SC 358. It should, however, be remembered that during investigation of
a case only such confessions are to be recorded. (1953) Cr.L.J. 315 Mad. In
Ramaswamy Reddier.
The police officer can also make application on his initiative but it is only
at the stage of investigation as required by Section 164 Cr.P.C. or, “at
anytime afterwards before the commencement of enquiry or trial.” According
to Full Bench of Allahabad High Court in Raja Ram v. State, 1966 All. 192 ,
mere submission of charge-sheet after completion of investigation be police
did not bar the Magistrate from writing confessional statement under section
164 Cr.P.C. Provided enquiry had not commenced.
The Magistrate who is competent to record confession is only Judicial
Magistrate (section 164 (1) Cr.P.C.). Whether he has jurisdiction or not or
whether he is Judicial Magistrate first class or second class if authorised.
The confessions recorded by Executive Magistrate or any other Magistrate
would be illegal. No oral evidence can be given of such a confession. It was
held by Supreme Court in 1964 S.C. 358, Singhara Singh, “where a second
class Magistrate not specially empowered by the State Government to record
a statement of confession under section 164 has purported to record a
confession of the accused under section 164, his oral evidence to prove the
confession will be inadmissible.” Also held so in Nika Ram, 1972 Cr.L.J. 1317
(SC) (old Cr.P.C.). A police officer though invested with power of Magistrate
cannot record the confession (Section 164 (I) Proviso).

Proper Course for a Magistrate

The Judicial Magistrate should know that section 164 (2) Cr.P.C. requires:
1. It enjoins on him the duty to explain to the person making the
confession that he is not bound to make a confession. Failure to give
such warning calls for rejection of this evidence, Khandai v. State,
1953, Cr.L.J. 1193. The confession recorded without warning under
section 164 Cr.P.C. cannot be utilised as piece of evidence as
admission even. 1973 Cr.L.J. 85 State v. Labsang Sharap.
2. That if he makes a confession, it may be used as evidence against him.
3. The Magistrate must be satisfied and should believe that the
confession was voluntarily made. In Chandran, 1978 SC 1574, the
Magistrate has simply said that he hoped that confession was
voluntary. The confession was rejected. The Magistrate recorded
confession without giving time saying that accused had given two
applications for making confession and he presumed it was voluntary.
Held not relevant 1990 Cr.L.J. 385.
To this end he should ask question from the person making the
confession and from the fact that he had sufficient time to reflect. Koli
Jira Jodha v. State, 1954 Cr.L.J. 1458 Supra. He should give time to
accused to reflect.
The questioning should be only to see if the confession he was going to
make was voluntary. It is bad to record confession after going through
case diary and to put such questions as to lead the accused to tell the
story of confession. The initiative in telling/making statement of
confession should be of the accused only. Bhukhim 1948 Nag 147,
Tilak, 1978 Cr.L.J. 112 (M.P.)
4. He should also tell him that he is a Magistrate. It was held in Suatan
Badchet v. State 1953 Cr.L.J. 1008 . “A confession that was recorded by
an officer without disclosing his identity cannot be said to comply with
the strict formalities required by Section 164 and on that ground alone
it should be ruled out as inadmissible.”
5. He should tell the accused that he was not going to be sent back to
police custody. Invariably the accused confessing, should be sent to
judicial lock-up after confession. Jindal v. State Supra, 1957 Cr.L.J.
1554.
In Devendra Prasad Tiwari, 1978 SC 1544 . Supreme Court did not rely
upon confession as voluntary as there was nothing to indicate in the
statement that Magistrate told him that he would not be sent to police
even if he did not confess; that there was no evidence where he was
kept when ordered to be kept in Jail; and did not question as to why he
was confessing.
He should be assured of protection from all sorts of apprehended
torture or pressure from any extraneous agency such as police in case
he declines to make statement. Sajjan v. State, 1952 Cr.L.J, 952. In
case accused does not confess, he must be sent to judicial lock-up. His
remand to police custody cannot be given, if he declines to confess
under section 164(3) Cr.P.C.
6. The confession should invariably be written in the Court during Court
hours. 1937 L. 476. There should be no police officer present in the
room and the handcuffs of the accused should be removed. State v.
Mittu, 1977 Cr.L.J. 1018. The Court room should not be closed (1952
Cr.L.J. 1950). It is however, not illegal to record confession at place
other than court, e.g., house of Magistrate, jail (held improper in 1957
SC 381,1930 L. 171, 1932 R 491, 1933 Lah. 311, Dak Bungalow, 1952
Roy L.W. 103. Not illegal if recorded on Sunday 1930 Lah. 171 Lah.
763. 51 Cr.L.J. 1047 or in Chamber 1988 Cr.L.J. 354.
The confession should be in the form of a narrative. If questions,
however, are put these should be mentioned, if not fully, at least, the
substance should be given. The better way is to ask the accused, “to
give the story in his own way.” The idea is that it must be a
 spontaneous narrative. The Indian High Courts have depreciated the
practice of putting questions and eliciting answers. Abdul Munim Khan
v. State of Hyderabad, 1953 Cr.L.J. 785.
7. Certificate under section 164(4) Cr.P.C. at the close of confession
must be given. The question put before recording to see that
confession is voluntary can be discarded but not this certificate. As
held in re Kakana Raman Reddi 1953 Cr.L.J. 264 Mad. While the
questions required to be put by a Magistrate before the accused made
a statement are no doubt absolutely necessary to ensure a confession
being a voluntary one, it is only, after the accused has made a
statement that a Magistrate after hearing him and observing his
demeanour can be in the best position to append the highly
responsible certificate required of him to validate a confession that he
believes it to have been voluntarily made.” See also Mathew v. State,
1952 Cr.L.J. 1304 (T.C.). The confession should invariably be written
in the language of the Court, i.e., Urdu or Hindi which language the
accused speaks. He is authorised to write it in English even. But if
recorded in English, it must be read over and explained to the
accused. Then it is no irregularity, Mendai Singh v. State, 1952 Cr.L.J.
1883.
The statement should always be read over and explained to the
accused who should be made to sign or thumb mark it in taken of its
correctness. 1945 B 484. It should not be on oath. Confession on oath
was held to be irregular in 1947 Lah 92. In State v. Suram Singh, 1976
Cr.L.J. 96 (J & K), it was held confessional statement on oath was
inadmissible. Hon. Justice Jaswant Singh was however, of opinion that
mere oath does not tantamount to compulsion to be hit by Article 20(3)
Constitutional of India. It is bad to get the confession recorded by the
Reader of the Court. Confession not signed by accused; confession
excluded since it is mandatory to get signature, etc., 164,381 Cr.P.C.
Abdul 1988 Cr.L.J.382. Confession on oath inadmissible, 1988 Cr.L.J.
573.
8. There should not be any delay between the question under section 164
(2) and the actual recording of the confession and in any case the
record of the confession should take place as soon as possible after the
questioning and while the accused is still all along in the presence of
the Magistrate. If the Magistrate allows the accused to go away from
his presence after the questioning and then records the confession say
the next day the provisions can be easily abused. In such a case the
Magistrate must question the accused again to satisfy himself as to the
voluntary nature of the confession before recording it. If he does not,
then it would be inadmissible. So, held in 1957 Cr.L.J. 545 AIR 1957
Raj. 141. Dhulla v. State AIR 1925 Cal. 58. Pat. 169,1953 Mad. 74.
However in 1976 Cr.L.J. State of Orissa v. Suruji confession recorded
in English was accepted being voluntary and having caused prejudice
to accused.
9. Magistrate who records confession must be produced in Court to prove
it and to prove that due formalities were observed. Confession, even if
Magistrate not produced can be admitted into evidence and exhibited
by virtue of section 80 Evidence Act 1952 SC 159, 1976 Cr.L.J. 325
Bandhu Kichei (Orissa). See Full Bench Case 1977 Cr.L.J. 2053 Shanti
for admissibility of confession under section 164 Cr.P.C. and
application of section 29 and section 80 Evidence Act and Section 533
Cr.P.C.

Evidentiary Value of Confessions

Before evidentiary value of confession is discussed, the prosecutor has to
prove:
 1. It is necessary that the whole of it (confession) be proved and also that
requisite formalities had been observed in recording the confession. Lal Din
v. State, 1952 Cr.L.J. 133 1952 H.P. 3.
2. That confession was free and voluntary, that it was not preceded by
any inducement, threat or promise held out by a person in authority. If so,
whether the effect of such inducement, threat or promise had clearly been
removed before the statement was made under section 28 Evidence Act.

Details in Confessions
A confessional statement very often contains a wealth of details which
cannot be invented by an I.O. but which are specially in the knowledge of the
accused. Such minor details guarantee truth as the events happened Mr.
Indar Dev Dua J. in Mohd Ishaq Ahmad Din v. State, 1959 Punjab 110 , where
Pakistani had given very elaborate details of confession had believed it to be
true, details as it was (para 3). The Supreme Court has, however, cautioned
the Courts in 1954 Cr.L.J. 236 Muthi Swami v. State of Madras that a
confession should not be accepted merely because it contains a wealth of
details which could not have been invented. Unless the main features of the
story are shown to be true, it is unsafe to regard wealth of uncorroborated
details as guarantee of truth.” The details in a statement will be convincing
feature of the story, but I.O. should always try to collect evidence for
corroboration. This deduction also depends upon the facts of each case. In
1959 Cr.L.J. 448 (H.P.) Shiv Devi’s case absence of details in the confession
of a illiterate woman was held to be a proof of its not being tutored. In
Bulkhin 1948 Nagpur 344, details in the confession of an illiterate woman
were held to be tutored. In 1951 Kutch 92 State v. Waghela Hiran Bai facts
introduced in confession not in the knowledge of the accused but to complete
details were held to be inspired by police. In 1965 Himachal Pradesh 1
Roshan Lal the details in the knowledge of accused were held to be true.

Value of Extra Judicial Confession

It was held in Des Raj. v. Emp. 1921 Lah. 858 that extra judicial
confessions are not of such a nature as entitled them to any weight because
it is impossible it ascertain the exact words used by the person. This view
was consistently followed in the rulings to date viz., 1939 All. 635. 1939 All.
685, 1955 Cr.L.J. 537, 1955 Cr.L.J. 139 . It is definitely of value if the exact
words used are found out with certainty.
The Supreme Court in 1959 S.C. 902 Mulk Raj v. State of U.P. has held
that, “value of the evidence as to the confession just like other evidence
depends upon the veracity of the witness to whom it is made. It is true the
Court requires the witness to give the actual words used by the accused as
nearly as possible but it is not an invariable rule that the Court should not
accept the evidence, if not the actual words but the substance were given. It
is for the Court having regard to the credibility of the witness, his capacity
to understand the language in which the accused made the confession to
accept the evidence or not. It was held in Iqbal Meeru 1969 Cr.L.J. 1186 that
it was not necessary to reproduce exact words of accused if substance is
given. Such evidence can be relied upon. When these extra judicial
‘confessions are made voluntarily and to strangers immediately after crime
under a sense of grief and remorse with every token of truthfulness and
repentance even momentary, these must be accepted judicially as held in
case. In re Ramayee 1960 Cr.L.J. 597 , it was further held that these
confessions must be accepted and acted upon as a whole.
The Supreme Court in Ram Singh, 1967 SC 152 held. Extra judicial
confessions are not usually considered with favour but that does not mean
that such a confession coming from a person who has no reason to state
falsely and to whom it is made in circumstances which tend to support his
statement should not be believed. Extra judicial confession is not a week
type of evidence and can be relied upon if on consideration of facts if
witness had any motive; if he was also concerned in crime and implicating
accused falsely, the relationship of accused with witness and if the
confession is consistent with fact of the case. 1973 Cr.L.J. 206. Prabhkar
Narayan.
Extra Judicial Confession by itself is a very week piece of evidence. When
Court after taking into consideration surrounding circumstances entertains
doubt about its voluntary nature, such confession cannot be relied on– 1975
SC 258.
But an unambiguous extra judicial confession possesses high probative
value as it emanates from the person who committed the crime and is
admissible in evidence provided it is free from suspicion and suggestion of
its falsity. But in the process of the proof of the alleged confession the Court
has to be satisfied that it is a voluntary one and does not appear to be result
of inducement, threat or promise envisaged under section 24 or was brought
about in suspicious circumstances to circumvent sections 25 and 26. Extra
judicial confession if found to be voluntary, can be relied upon by the Court
along with other evidence on record. Therefore, even the extra Judicial
confession will also have to be proved like any other fact. The value of the
evidence as to the confession depends upon the circumstances in which it
came to be made and the actual words used by the accused. Kishore Chand,
1990 Cr.L.J. 2289 (SC).
In Piara Singh, 1977 SC 2274, Maghar Singh, 1975 L.C. 1320; Darshan
Lall, 1975 SC 858 it was believed being voluntary and made before
independent witness. However, in Jugta, 1974 SC 1545 when police was in
village, accused had gone to one Ram Singh Rana blurted out confession
requesting him to produce him before police held it was tainted and week
type of evidence. In State of Punjab v. Bhajjan Singh, 1975, 258 murder very
cruel and committed secretly; the accused had requested certain witnesses
to produce him before police while making confession, held it was week type
of evidence.
Mere assertion without materials that the accused was coerced or tutored
or induced to make the confession is not enough. Roop Singh, 1980 Cr.L.J.
(N.O.C) 138.
But conviction alone on extra judicial confession is illegal. Lachman, 1982
Cr.L.J. 929.
Must be an independent person–Otherwise not be believed. 1981 C.L.R.
540. State of Haryana v. Prem Chand.
In case Jagan Nath, 1982 Cr.L.J. 2238, confession by accused before a
person who picked up phone to inform police; the accused ran away, held
that it cannot be voluntary.
This however, depends upon the facts and circumstances of each case, the
manner in which made, the person to whom it is made in order whether it
should be believed or not. Wakil Nayak, 1972 (SC) Cr.L.J. 566.
In 1986 Cr.L.J. 877 Mathur Lohar . Extra judicial confession, by itself can
be the basis of conviction (i) if made to a witness quite reliable and
trustworthy having no animus against accused, (ii) the words spoken to were
clear, unambiguous and unmistakably conveyed that accused was perpetrator
of crime.

Value of Judicial Confession

The value of judicial confession is still greater. The testimonial
trustworthiness of the confession in one case or other is based upon the
presumption that as a free agent no man would make a confession against
himself if the facts confessed were not true.
A judicial confession can thus become a basis of conviction. It was held in
Birey Singh v. State, 1953. All. 785 . Judicial confessions should be
distinguished from extra judicial confession. It may be doubted whether a
conviction can be based solely upon an extra confession, but there is no
reason for hesitating to base conviction on a judicial confession. The
confession can be relied upon with regard to other offences if not believed,
regarding one offence.
If corpus delicti is not present then even in view of judicial confession of
accused conviction should not be made. It is a rule of prudence, though not
rule of law as held in Ram Chandra 1957 Cr.L.J. 559 (SC) . See also Wills
Circumstantial Evidence.
In Shankaria, 1978 Cr.L.J. (SC) 245 . Supreme Court held, “When in a
capital case the prosecution demands a conviction of the accused, primarily
on the basis of his confession recorded under section 164 Cr.P.C., the Court
must apply a double test:
(1) Whether the confession was perfectly voluntary.
(2) If so, whether it is true and trustworthy.
Satisfaction of the first test is a sine qua non for its admissibility in
evidence. If the confession appears to the Court to have been caused by any
inducement, threat or promise such as mentioned in section 24, Evidence
Act, it must be excluded and rejected. In such a case, the question of
proceeding further to apply the second test of does not arise. If in the first
test it is satisfied, the Court must before acting upon the confession reach
the finding that what is stated therein is true and reliable. In judging the
reliability of such a confession or for that matter of any substantive piece of
evidence there is no rigid cannon of universal application. Even so, one
broad method which may be useful in evaluating a confession may be
indicated. The Courts should carefully examine confession and compare it
with rest of evidence in the light of surrounding circumstances and
probabilities of the case. If on such comparison and examination the
confession appears to be probable catalogue of events and naturally fits in
with rest of evidence and surrounding circumstances, it may be taken to
have satisfied second test. Similarly, in 1986 Cr.L.J. 662; it was held as
above. Further held that it is permissible to believe part of confession also.

Value of Retracted Confession

A confession is mostly retracted by the person at a later stage due to
some influence working upon his mind or due to outside pressure. It may be
in some cases that a pressure or inducement offered or threat extended loses
its gravity and the accused better thinks of consequences of the confession.
It has been held in many a ruling that retracted confession can become
the basis of conviction. In Arjuna Lal v. The State, 1953 SC 411, it was held
that conviction based solely on the retracted confession was opposed to law
and could not be allowed to stand. Again in Puran v. State of Punjab, 1953
SC 459, it was held that, “it is a settled rule of evidence that unless a
retracted confession is corroborated in material particulars, it is not prudent
to base a conviction in a criminal case on its strength alone.” Again in 1954
Cr.L.J. 236, (Supreme Court) reported in Muthuswami v. State of Madras it
was held, “No hard and fast rule can be laid down regarding the necessity of
corroboration in the case of retracted confessions in order to base a
conviction thereon. But apart from the general rule of prudence under the
circumstances of a particular confession, it would be sufficient to require
corroboration of the retracted confession.” See also 1955 Andhra 161
retracted confession to be corroborated by independent evidence, and P.K.
Singh, 1956 SC 9; even if a confession is inculpatory, corroboration is
necessary if the confession is retracted. If retraced confession, on facts
considered in the background of the attending circumstances, is voluntary
and true as also free from suspicion, it is sufficient for conviction. Courts, as
a matter of prudence to look for corroboration. Abdul Ghani, 1973 Cr.L.J.
280 (SC). See 1976 Cr.L.J. 1480 Hukma . Court may in a particular case be
convinced of the truth of confession and be prepared to act upon it without
corroboration. So also 1985 SC 866 Shri Shail.
 As to what type of corroboration of retracted confession is required the
point was considered in 1963 (2) Cr.L.J. 702 by Supreme Court : Nand Kumar
v. State of Rajasthan and answered as, “what is sufficient corroboration for
this purpose has to be decided in each case on its own facts and
circumstances. It may, however, be generally stated that there the
prosecution by the production of reliable evidence which is independent of
the confession and which is also not tainted evidence like the evidence of an
accomplice or the evidence of a co-accused established the truth of certain
parts of the accounts given in the confession and these parts are so
integrally connected with other parts of the accused’s confession that a
prudent judge of facts would think it reasonable to believe in view of the
established truth of these parts that what the accused has stated in
confession as regards his own participation in crime is also true that is
sufficient corroboration. More than this is not needed; less than this is
ordinarily insufficient.”
In Hemraj’s case 1954 SC 462 recoveries of articles from Hemraj were
held to be good corroboration; especially when recoveries were before
confession and in Balbir Singh, 1957 SC 216 when these were after
confession.
The retracted confession can be acted upon under the following
circumstances:
(1) If reasons given by the accused in withdrawal of confession were
probably false. In re Bahmayya 1949 Mad. 817.
(2) Where there is evidence other than confession against the accused
sufficient for his conviction but the judge is not prepared to act on
the evidence as it stands, even though if believed, would be sufficient
to sustain a conviction. In such an event the judge may call in aid the
confession and use it to lend assurance to the other evidence and
thus fortify himself in believing what without the aid of confession he
would not be prepared to accept. Kashmira Singh v. State of M.P.,
1952 SC 159. In 1978 SC 1248. In Shankaria v. State of Rajasthan
Supreme Court observed that the Court must apply double test–(1)
whether it was perfectly voluntary, (2) whether it was true and
trustworthy. The confession retracted in statement under section 313
by accused reinforces conclusion that it was voluntary and so also
held in Phatak 1988 Cr.L.J. 24 State of U.P. v. Boota Singh sums up in
saying that general corroboration of important incidents in retracted
confession was required and that if substantial corroboration was
available, retracted confession could be acted upon and form the
basis of conviction. There is no rule of law that a retracted confession
cannot be legal basis for conviction without corroboration. When the
Court is satisfied that it is true and voluntary, it can convict on its
basis alone without corroboration.
A confession under section 164 becomes voluntary and free when it is
made by accused out of repentance and after due caution and with
reasonable time for reflection in order to remove any threat or torture,
inducement or promise by the arresting agency and it precludes the
possibility of tutoring. 1989 Cr.L.J. 2058 Hem Chander.

Value of Retracted Confession against Co-accused

It was held in Shri Shail 1985 Cr.L.J. 1173 (S.C).
“A retracted confession by the accused may form the basis of conviction
of that accused if it receives some general corroboration from other
independent sources. It cannot, however, be the basis of conviction of co-
accused though it can be taken into consideration against co-accused. It is
entirely wrong to think that a confession can lead no where.”

Value of Confession against Co-accused

 The confessional statement of an accomplice can be used against the co-
accused under section 30 of Evidence Act.
A co-accused who confesses is naturally a accomplice. It was held in
Rameshwar v. State of Rajasthan, AIR 1952 SC 54 that the testimony of an
accomplice can in law be used to corroborate another though it ought not to
be so used save in exceptional circumstances and, for reasons disclosed.
The view held by Privy Council and different High Courts is that, “Section
30, Evidence Act is very exceptional, indeed an extraordinary provision by
which something which is not evidence, may be used against an accused
person at his trial. Such a provision must be used with greatest, caution and
with care to make sure that we stretch it one line beyond its necessary
invention. It is true that section provides only that the confession of accused
person may be taken into consideration against the fellow accused. As I
understand the section, the confession cannot take the place of evidence
against the co-accused.” Priya Swami Moopan v. Emp., 1931 Mad. 177 . It
was further held, “Nor it can be added to supplement evidence, otherwise
insufficient. As understand the matter, the provision does no further than
this. Where there is evidence against the co-accused sufficient, if believed to
support his conviction then the kind of confession described in section 30
may be thrown into scale as an additional reason for believing that
evidence.” The same view was followed in Rattal Lal v. State, 1955 Punjab
110, 1955 T.C. 87. According to 1955 Ass, 57, Guaurh Gagoi v. State it was
held. As regards other than the maker, section 30, Evidence Act permits its
consideration but although it may be taken into consideration, the rule, now
firmly established the adhered to in practice consistently for a long-time is
that its value against co-accused is practically nil and that there can be no
conviction on it without substantial and independent corroboration both in
regard to crime and the identity of criminal. It was held in Haroon Haji,
1960 Cr.L.J. 1017 (SC) that a confession intended to be used against a co-
accused stands on a lower level than accomplice evidence because the latter
is at least tested by cross-examination while the former is not. The
confessions of co-accused are not evidence but if there is other evidence on
which a conviction can be based, they can be referred to as lending some
assurance to the verdict. See also 1956 SC 39 Nathu v. State of U.P.
The confession of accused even if it is retracted can still be taken into
consideration against other accuseds, section 30 Evidence Act is not bar to
it. The amount of credibility as held in Ram Parkash v. State of Punjab, 1959
Cr.L.J. 90,1959 SC 1 to be attached to retracted confession, however, would
depend upon the circumstances of each particular case. As matter of
prudence and practice a Court would not ordinarily set upon the co-accused
without the strongest and fullest corroboration on material particulars. The
corroboration in the full sense implies corroboration not only as to the
factum of the crime but also to the connection form the accused with that
crime. In this case recovery of ornaments was held to be strong
corroboration. It does not require that each and every circumstance
mentioned in the crime should be corroborated. It is only general
corroboration which is required in the case of a person who has retracted
from his confession and which is sufficient according to Noor Mohd. 1959,
Cr.L.J. 187; 1959 Kerala 46 . Confession of a co-accused cannot forth the
basis of conviction but if there is other evidence, it can also be put into the
scale and weighed with that evidence Nand Lal More 1965 (1) Cr.L.J. 393,
1965 Orissa 66 (Other evidence not satisfactory). In 1964 SC 1184 Hari
Charan Kumari v. State of Bihar it was held, “In dealing with the case
against an accused person, the Court cannot start with the confession of a
co-accused, it must begin with other evidence produced by prosecution and
after it has formed its opinion with regard to the quality and the effect of the
said evidence then it is permissible to turn to the confession of co-accused in
order to receive assurance to the conclusion of guilt which the judicial mind
is about to reach on the said other evidence. Confession of co-accused can be
taken into consideration under section 30 of Evidence Act only if (i) trial is
for the same offence, (ii) of the co-accused and other accused, (iii) in the
same (joint), trial, and (iv) the accused also inculpates himself in that
offence. Assurance is available from judicial confession of co-accused against
the accused who had instigated murder by Principal accused, therefore it
could be used under section 30 of Evidence Act and sufficient for conviction
of the other accused. Held so in Gauranga Sabu 1978 Cr.L.J. 270 (Orissa) .
Confession by one accused can be used against the other when conspiracy is
proved. 1988 Cr.L.J. 107.

Necessity of Corroboration
It is a false notion amongst the police officers that corroboration of
confession of accused is necessary, otherwise it cannot be acted upon. As
discussed already, a confession can alone be basis of conviction. It is stated
in Archbold’s Criminal Pleading Evidence and Practice, 32 Edition:
“A free and voluntary confession of guilt by a prisoner, whether under
examination before Magistrate or otherwise, if it is direct and positive and is
duly made and satisfactorily proved, is sufficient to warrant a conviction
without any corroborative evidence.” Similarly held in Para 11 of 1953
Cr.L.J. 1817. It was held in 1940 Lah. 472 that law does not require that a
confession should be corroborated. It is for court to see whether it believes
confession or not.
However, if instead of corroboration, there is contradiction of the
confession, then presumption would be that it is not true. In Union Territory
Mizoram v. Vanlallawama, 1977 Cr.L.J. 1831 the confession made was not
supported by medical evidence; while in confessional statement the accused
stated that he had stabbed the deceased in her belly, the injuries found by
medical officer were in chest. Held it was not a true confession. In
Amirudden 1977 Cr.L.J. N.O. 269, medical evidence showed death due to
Asphyxia when accused confessed to have used Khanti to cause death. It was
disbelieved.

The Corroboration of Confession:

1. Can be by circumstantial evidence which is already in the possession of
police, i.e., before the confessional statement was recorded. There is no
validity in the contention that a confession can only be corroborated by
evidence discovered by the police after confession has been made. Any
material that is already in their possession, can be put in evidence in
support of it. 1954 Cr.L.J. 1313 Hem Raj v. State (SC).
2. Can be by circumstantial evidence which comes to light during the
course of confessional statement. It is always, more worthy of credit. See
Mata Din v. Emp., 1931 Oudh 166, wherein it was observed that a true
confession made by a person who takes part in a murder invariably adds
something to the knowledge already possessed by the investigating officer
and that is the greatest test of its truth. In this connection see also 52
Cr.L.J. 1951 (257) Kutch, Narain Tulsi Dass v. Kutch Government where it
was held that, “corroborative evidence has value because it ensures the
truth and the voluntary character of the confession.” Such evidence would
have value only if it has been discovered subsequent to the making of the
confession. There is inherent danger in accepting evidence already against
the accused as corroborating his subsequent confession because it is always
easy to weave confession, round his evidence, the confession supplying the
missing links and rounding up the prosecution case to perfection. The rule of
prudence as regard corroboration is laid in 1957 Cr.L.J. 481 (SC) Balbir
Singh Supra.

Statement of Accused under section 313 Cr.P.C.

The accused as required by section 313 Cr.P.C. is examined during the
course of trial. The Court should put to him every circumstance appearing
against him in evidence so that he may have an opportunity to explain it. In
case any circumstance is not put to him, the evidence with regard to it
cannot be used against him to his prejudice. In 1953 SC 468, Hate Singh the
accused’s having absconded, in 1955 SC 792 of his having confessed were
not put. This fact was not considered as a mere technicality but prejudicial.
See Jai Dev 1963 SC 612 , where necessity of putting all circumstances and
also avoiding cross-examination of accused is discussed in detail. See also
1984 Cr.L.J. 1738.
The provision of section 313 are mandatory. Non-compliance with them
violates trial. Report of Chemical Examiner not put to accused. Conviction
quashed. No remand for retrial. Balkar Singh, 1985 (1) C.L.R. 98 . Conviction
set aside in Sukhdev Singh, 1985 RCR 261 , when date and time of arrest not
put to accused.
A statement under section 313, Cr.P.C made by accused cannot by itself
be the basis for conviction: Kale Khan, 1990 Cr.L.J 1119 (M.P.).
His refusal to answer questions, however, does not render him liable to
punishment. No adverse inference can be drawn in such a case against the
accused. Failure to examine him altogether will vitiate the trial.
The accused can be examined by the Court under section 313 Cr.P.C. at
any stage of the inquiry or trial. The Court is, however, bound to examine
him as such after all the prosecution witnesses have been examined and
before he is called on for his defence. The examination of the accused can be
dispensed with in a Summons Case if his presence is dispensed with [Proviso
to Section 313(1)].
The statement of accused under section 313 Cr.P.C. is useable as
evidence against him (section 313 (4). The answers can be taken into
consideration and proper inference can be drawn therefrom. He can confess
his guilt. Accused can himself come forward as a witness for his defence on
his own request in writing and may give evidence on oath in disproof of the
charges against him or other co-accused under section 315 Cr.P.C. His
failure to give evidence shall not be made the subject of any comment by any
of the parties or the court or give rise to any presumption against himself or
any other person charged together with him at the same trial Section 315
(b). See 1968 Cr.L.J. 1650 (SC) Baidya Nath Prasad.
In Banamali AIR 979 SC 1414 it was held unless the accused makes a
direct admission of guilt, he cannot be convicted on his answers given under
section 313, Cr.P.C.
Section 313 Cr.P.C.–Statement by accused under–Alleged to be false–
Falsity of the defence cannot take place of proof of facts which prosecution
has to establish in order to succeed–False plea may be considered as an
additional circumstance if other circumstances proved and established point
out the guilt of accused. Tanviben P.K. Divetia v State of Gujarat, 1997
Cr.L.J. 2535 SC.
Section 313–Examination of Accused–Accused known by more than one
names such fact is not a circumstance appearing against accused–Questions
regarding such facts not required to be asked to accused under section 313.
Ranveer Singh v. State of U.P., 1997 Cr.L.J. 2266 All.
Section 313–Examination of Accused under section 313 is not a mere
formality. Rattan Singh v. State of H.P., 1997 Cr.L.J. 833 SC.
Examination of Accused–Accused admitting incriminating circumstances
appearing in evidence against him–It cannot be ignored merely on ground
that such admissions were advanced as a defence strategy. State of U.P. v.
Lakhmi, 1998 Cr.L.J. 1411 SC.
Examination of Accused–Dacoity and Murder case–Plea of non-compliance
of Section 313 raised for first time in appeal before Supreme Court–
Prosecution relying upon evidence of eye-witnesses–Relevant question with
reference to such evidence were put to accused–No prejudice caused to
accused persons–Trial not vitiated. Shobhit Chamar v. State of Bihar, 1998
Cr.L.J. 2259 SC.
Statement of Accused–Joint statement of several accused–Cannot be
recorded–However, recording of joint statement of two accused not causing
prejudice to appellant accused–But appellant accused was enabled to explain
circumstances appearing against him–Under the circumstances recording of
joint statement of two accused, would not vitiate the trial. Ramnath Guru
Maheshnath v. State of Gujarat, 1998 Cr.L.J. 2766 (Guj).
Section 313 Cr.P.C.–Additional evidence of witness whose name not given
in last of witnesses sought–Evidence essential to establish that at even stage
goods involved in crime were in proper custody summoning additional
witness in exercise of power under section 311–Not illegal. Rahul alias Babul
Lal v. State of Rajasthan, 1998 Cr.L.J. 3664 (Raj).
Examination of accused–Accused charged for violation of statutory
provisions and for violations of executive order–Omission of court to put
questions separately with regard to the violations of executive orders and
the statutory provisions–No prejudice shown to have been caused to
accused–No illegality–Moreover, the errors and omission in complying with
provisions of section 313 of Cr.P. C. are only curable irregularities. T.
Retnadas v. State of Kerala, 1999 Cr.L.J. 1488 (Ker.).
Examination of Accused–Questions put to accused were not strictly in
accordance with section 313–No prejudice caused to defence–Mere defective
examination of accused under section 313–cannot be ground for setting aside
judgment of trial court. State of Bihar v. Mohan Miskar, 1999 Cr.L.J. 2479
(Pat.).
Examination of Accused–Requirement that accused be personally present
in court–Can be dispensed with when presenting himself in court would
cause hardship to accused–Mode to be adopted in such cases for substantial
compliance with section 313 indicated. Basavraj R. Patil v. State of
Karnataka, 2000 Cr.L.J. 4604 SC.
Section 313–Statement of accused under section 313 Cr.P.C.–By recording
statement of accused under section 313 Cr.P.C., the judge gives an
opportunity to accused to explain circumstances which have appeared
against him. The accused generally denies, the prosecution case against him
but it is an opportune moment for him to plead any type of defence that he
may like to take. Kashmir Singh v. State of Punjab, 2006(2) RCR (Cri.) 478.
Section 313–Examination of accused under section 313 Cr.P.C. is not an
empty formality–After recording of entire prosecution evidence various items
of evidence should be put to accused in the form of questions and accused be
given opportunity to give his explanation. Naval Kishor Singh v. State of
Bihar, AIR 2004 SC 4421.
Section 313–Examination of accused under section 313 is not an empty
formality–After recording of entire prosecution evidence various items of
evidence should be put to accused in the form of questions and accused be
given opportunity to give his explanation. Naval Kishor Singh v. State of
Bihar, AIR 2004 SC 4421.
Section 313–Statement under section 313 is not evidence–It is only the
accused’s stand or version by way of explanation, when incriminating
materials appearing against him are brought to his notice. Devender Kr.
Singla v. Baldev Kishan Singla, 2004 Cr.L.J. 1774.
Section 313–Examination under section 313 Cr.P.C. is not an empty
formality. The purpose is to bring to the notice of the accused the materials
brought on record by the prosecution to substantiate its accusation–An
opportunity is granted to the accused to explain incriminating circumstances
against him and have his say in the background of the evidence brought on
record by the prosecution. Damodar v. State of Rajasthan, AIR 2003 SC
4414.
 Section 313–Physical presence of accused for purpose of examination
under section 313 Cr.P.C.–It was not necessary that in all cases the accused
must answer by personally remaining present in court. State of Maharashtra
v. Dr. Praful B. Desai, AIR 2003 SC 2053.
Section 313–Examination of accused under section 313 Cr.P.C.–It is
obligatory on the part of the trial court to examine the accused for the
purpose of enabling the accused personally to explain any circumstances
appearing in evidence against him–If such opportunity is not afforded, the
incriminating pieces of evidence available in the prosecution evidence
cannot be relied on for the purpose of recording conviction of the accused
persons. Lallu Manjhi v. State of Jharkhand, AIR 2003 SC 854.
Section 313–Statement of accused under section 313 Cr.P.C. can be relied
in whole or in part–It may also be possible to rely on the inculpatory part of
his statement if the exculpatory part is found to be false on the basis of the
evidence led by the prosecution. Mohan Singh v. Prem Singh, AIR 2002 SC
3582.
Section 313–Statement of accused under section 313 Cr.P.C. is not a
substantive piece of evidence. It can be used for appreciating evidence led
by the prosecution to accept or reject it. It is, however, not a substitute for
the evidence of the prosecution–If the exculpatory part of his statement is
found to be false and the evidence led by the prosecution is reliable, the
inculpatory part of his statement can be taken aid of the lend assurance to
the evidence of the prosecution. If the prosecution evidence does not inspire
confidence to sustain the conviction of the accused, the inculpatory part of
his statement under Section 313 of Cr.P.C. cannot be made the sole basis of
the conviction. Mohan Singh v. Prem Singh, AIR 2002 SC 3582.
Section 313–Criminal trial–A false answer offered by the accused when
his attention was drawn to any inculpating circumstance would render such
circumstance as capable of inculpating him-False answer can also be counted
as providing “a missing link”. Mani Kr. Thapa v. State of Sikkim, AIR 2002
SC 2920.
Confession–Co-accused stated under section 313 Cr.P.C. that when he
came to know that deceased swallowed poison–He went to room where the
deceased was and found her husband pressing her neck–Held, this statement
can’t be made use of by the prosecution to prove guilt of accused. Subimal
Sarkar v. Sachindra Nath Mondal, AIR 2003 SC 1108.
Section 313–Examination of accused under section 313 Cr.P.C.–Scope
and Object of section 313 Cr.P.C summed up:
(1) Question of the accused is done to enable turn to give an opportunity
to explain any circumstances which have come out in the evidence
against him.
(2) It is not necessary that the entire prosecution evidence need be put
to him and answers elicited from the accused. If there were
circumstances in the evidence which are adverse to the accused and
his explanation would help the court evaluating the evidence
properly, the court should bring the same to the notice of the accused
to enable him to give any explanation or answers for such adverse
circumstance in
the evidence.
(3) Composite questions should not be asked to accused bundling so
many facts to gather.
(4) Where an omission, to bring the attention of the accused to an
inculpatory material has occurred, that does not ipso facto vitiate the
proceedings. The accused must show that failure of justice was
occasioned by such omission. 2001(4) RCR (Cri.) 550 (SC) relied.
(5) If it appears that the examination of the accused person was
defective and thereby a prejudice has been caused to him, that would
 no doubt be a serious infirmity. AIR 1963 SC 752 relied . State of
Punjab v. Sawaran Singh, AIR 2005 3114 SC.
Section 313–Cr.P.C.–The word “shall” in clause (b) to section 313(1) of
the Code is to be interpreted as obligatory on the court and it should be
complied with when it is for the benefit of the accused. But if it works to his
great prejudice and disadvantage the court should, in appropriate cases,
e.g., if the accused satisfies the court that he is unable to reach the venue of
the court, except by bearing huge expenditure or that he is unable to travel
the long journey due to physical incapacity or some such other hardship,
relieve him of such hardship and at the same time adopt a measure to comply
with the requirements in section 313 Cr.P.C. in a substantial manner. Keya
Mukherjee v. Magma leasing Limited, 2008(2) Crimes 167 SC.
Section 313 Cr.P.C.–All incriminating material circumstances must be put
to an accused while recording his statement–If any material circumstance
has been left out, that would not ipso facto result in the exclusion of that
evidence from consideration unless it could further be shown by the accused
that prejudice and miscarriage of justice had been sustained by him. Santosh
Kr. Singh v. State through CBI, 2010(4) Crimes 226(SC).
Section 313 Cr.P.C.–Court cannot place reliance on incriminating material
against the accused unless it is put to him during his examination under
section 313 Cr.P.C. State of U.P. v. Mohd. Iqram, 2011(3) Crimes 14 (SC).
Section 313 Cr.P.C.–Statement under section 313 Cr.P.C., the appellants
had not taken the defence that they could not be present at the place of
occurence as at the time of occurrence they were working in their paddy
field. Thus, the deposition of the two witnesses examined in their defence
becomes meaningless. Bhagaloo Lodh v. State of U.P., 2011(3) Crimes 10
(SC).
Section 313 Cr.P.C.–Abscondance–It is a settled legal preposition that in
case a person is absconding after commission of offence of which he may not
even be the author, such a circumstance alone may not be enough to draw an
adverse inference against him as it would go against the doctrine of
innocence. It is quite possible that he may be running away merely being
suspected, out of fear of police arrest and harassment. S.K. Yusuf v. State of
W.B., 2011(3) Crimes 1 (SC).
Section 313 Cr.P.C.–Prejudice due to defective inquiry under section 313–
It must be shown at the earliest–Prejudice not shown at any stage including
SLP–Cannot be argued in appeal. Fahim Khan v. State of Bihar, 2011(2)
Crimes 225 (SC).
Section 313 Cr.P.C.–Scope and essential features–The answers by an
accused under section 313 Cr.P.C. of relevance for finding out the truth and
examining the veracity of the case of the prosecution. The scope of section
313 Cr.P.C. is wide and is not a mere formality. Let us examine the essential
features of this section and the principles of law as enunciated by
judgements, which are the guiding factors for proper application and
consequences which shall blow from the provisions of section 313 Cr.P.C. As
already noticed, the object of recording the statement of the accused under
section 313 Cr.P.C. is to put all incriminating evidence to the accused so as
to provide him an opportunity to explain such incriminating cricumstances,
appearing against him in the evidence of the prosecution. At the same time,
also permit him to put forward his own version or reasons, if he so choose, in
relation to his involvement or otherwise in the crime. The court has been
empowered to examine the accused but only after the prosecution evidence
has been concluded. It is a mandatory obligation upon the court and besides
ensuring the compliance thereof, the court has to keep in mind that the
accused gets a fair chance to explain his conduct. The option lies with the
accused to maintain silence coupled with simplicitor denial or in the
alternative, to explain his version and reasons for his alleged involvement in
the commission of crime. Sanatan Naskar v. State of West Bengal, 2010(3)
Crimes 201 (SC). It is thus well established in law that admission or
confession of accused in the statement under section 313 Cr.P.C. recorded in
the course of trial can be acted upon and the court can rely on these
confessions to proceed to convict him. Dharnidhar v. State of U.P., 2010(3)
Crimes 170 SC, Mannu Sao v. State of Bihar, 2010(3) Crimes 265 SC.
Section 313 Cr.P.C.–The accused must be appraised of incriminating
evidence and materials brought in by the prosecution against him to enable
him to explain and respond to such evidence and material–Failure in not
drawing the attention of the accused to the incriminating evidence and
inculpatory materials brought in by prosecution specifically, distinctly and
separately may not by itself render the trial against the accused void and
bad in law; if having regard to all the questions put to him, he was afforded
an opportunity to explain what he wanted to say in respect of prosecution
case against him and such omission has not caused prejudice to him
resulting in failure of justice. The burden is on the accused to establish that
by not apprising him of the incriminating evidence and the inculpatory
materials that had come in the prosecution evidence against him; a prejudice
has been caused resulting in miscarriage of justice. Alister Anthony Pareira
v. State of Maharashtra, 2012(1) Crimes 76 (SC) .
Section 313 Cr.P.C.–Section 313 of the Code casts a duty on the court to
put in an inquiry or trial questions to the accused for the purpose of
enabling him to explain any of the circumstances appearing in the evidence
against him. It follows as necessary corollary therefrom that each material
circumstance appearing in the evidence against the accused is required to be
put to him specifically, distinctly and separately and failure to do so amounts
to a serious irregularity vitiating trial, if it is shown that the accused was
prejudiced. The object of section 313 of the Code is to establish a direct
dialogue between the court and the accused. If a point in the evidence is
important against the accused and the conviction is intended to be based
upon it, it is right and proper that the accused should be questioned about
the matter and be given an opportunity of explaining it. Where no specific
question has been put by the trial court on an inculpatory material in the
prosecution evidence, it would vitiate the trial. Asraf Ali v. State of Assam,
2008(3) Crimes 112 SC.
Section 313 Cr.P.C.–The word “generally” in sub-section 313(1) (b) does
not limit the nature of the questioning to one or more questions of a general
nature relating to the case, but it means that the question should relate to
the whole case generally and should also be limited to any particular part or
part of it. The question must be framed in such a way as to enable the
accused to know what he is to explain, what are the circumstances which are
against him and far which an explanation is needed. Ranbir Yadav v. State of
Bihar, 2009(2) Crimes 434(SC).



Chapter–24
Medical Evidence
It is an admitted principle of law that medical evidence itself does not
prove the prosecution case. It is only a corroborative piece of evidence. 1934
Pesh 27. It is given greater weight because it is considered to be
disinterested. The medical man being expert and impartial is more often
believed. Though it was held in 1924 B. 457. 1927 Mad. 996 that opinion of a
medical man should not out weight the testimony of respectable and
disinterested witness yet the consensus of opinion among different High
Court, is that if there is a clash between the two, medical evidence is given
preference. It was held in 1927 Oudh 617 that where part assigned to
accused is falsified by medical evidence accused must be given benefit of
doubt. This was why it was held in 1953 S.C. 415 Mohinder Singh v. State,
“In case where a death is due to injuries or wounds caused by a lethal
weapon it is always the duty of the prosecution to prove by expert that it was
likely or at least possible for the injuries to have been caused with the
weapon with which and the manner in which they are alleged to have been
caused. It is elementary that where the prosecution has a definitive or
positive case it must prove the whole of the case.” It was further held that it
was a serious thing to rest the appellant’s conviction wholly upon the oral
testimony in the case which has remained unchecked and unconfirmed by
expert evidence. See 52 Cr.L.J. 1951 Harjit Khan v. Crown where
confessional statement in conflict with medical evidence regarding mode of
death was excluded from evidence.
In Hallu, 1974 SC 1936 , attack was made with lathis, spear and axe by
medical evidence was that not even one of the injuries was caused with
spear or axe. Held “We should have thought normally when the witness says
axe or spear has been used, there is no warrant for supposing what the
witness means is that the blunt side of the weapon was used. If that be the
implication that is the duty of prosecution to obtain a clarification from the
witness that a sharp edged or piercing instrument was used as a blunt
weapon.”
In 1956 SC 425 Surgam v. State of Rajasthan according to doctor, who
blows on head could cause two injuries; witness stating only one blow:
benefit of state of evidence given to accused for not causing fatal injury.
Conviction
under section 323 I.P.C. for less serious injury, also see Santa Singh, 1956
SC and 1953 P.L.R. 463 regarding shots fired at close range and number of
shots dead in conflict with Prosecution Witness.
In consistent medical evidence throws doubt upon the prosecution case
with regard to manner of assault, nature of weapon used, type of injuries
caused and probable time of duration. In Nachhatar v. State of Punjab, 1976
Cr.L.J. 691, rifle was used to kill two persons (in F.I.R.) and three according
to evidence in Court. The medical evidence revealed no injury with rifle.
Held this was sufficient to shake the foundation of the case.
In Jagir Singh, 1975 C.A.R. 12 and Ram Narain, 1975 C.A.R. 264 medical
evidence inconsistent with other version. It is a most fundamental defect in
prosecution case and unless reasonably explained, it is sufficient to discredit
entire case.
Allahabad High Court in 1955 Cr.L.J. 473 Thakar v. State has further laid
down two tests for assessment of evidence where there is conflict between
medical and oral testimony. A court can either believe the Prosecution
Witnesses unreservedly and explain away and conflict by holding that the
witnesses have merely exaggerated the incident or rely upon the medical
evidence and approach the oral testimony with caution testing it in the light
of medical evidence. The first method can be applied only in those cases
where the oral evidence is above approach and creates confidence and there
is no appreciable reason for the false implication of any accused. Where the
evidence is not of that character and the medical evidence is not open to any
doubt or suspicion, the only safe or judicial method of assessing evidence is
the second method.” The Supreme Court observed in Anana Chintaman Lagu
v. State of Bombay, 1960 SC 500 at page 523. “To rely upon the findings of
the medical man who conducted the post mortem and the chemical analyst as
decisive of the matters is to render the other evidence entirely fruitless.
While the circumstances often speak with unerring certainty, the autopsy
and the chemical analysis taken by themselves may be most misleading”
Supreme Court held in Bajwa 1973 Cr.L.J. (SC) that the mere fact that
evidence of eye witnesses is inconsistent with medical evidence will not
render it unreliable.
In Chacko Mathi v. State of Kerala, 1964 Ker. 222 , it was held that
medical evidence was hardly decisive and often inconclusive because it is
primarily an evidence of opinion and not of facts. In Santa Singh v. State,
1956 SC 526, the eye witnesses were disbelieved in view of the medical
evidence of rifle having been fired from a very close range. In re
Modivalappa, 1966 Mys. 142 , the testimony of eye witness was rejected in
view of clash with medical evidence. In fact the medical evidence is
disinterested and expert opinion, if untainted and not prejudiced carries
weight. In Juglal, 1967 Current L.J., the Punjab High Court gave preference
to medical evidence and held that it was for prosecution to have the matter
clarified by the Ballistic Expert where medical evidence was in clash with
eye witness account. Similar was finding in 1972 Cr.L.J. 185 Pyare Lall.
In case reported in Bagwan Dyal Pyare Lall, 1968 Cr.L.J. 1028, the
accused was shown as alleged to have received injuries at the time of his
arrest since he was resisting arrest. Medical evidence showed that beating
was mercines and of earlier duration. It was held that the whole
investigation becomes suspect and no reliance can be placed on the words or
Investigating Officer who stops to such methods for attaining his purpose or
on the statements of the witnesses who support his version.
Medical evidence is only of probative value. It is only corroborative.
Normally, the testimony of eye witnesses cannot be thrown out merely on the
ground of its alleged unconsistency with medical evidence.
If direct evidence is satisfactory and reliable, it cannot be rejected on
hypothetical medical grounds unless medical evidence rules out the
possibilities of the injuries in the manner deposed, to by the witnesses; the
evidence is not to be discarded 1986 Cr.L.J. 1721.
Murder was in broad day light. Time of death given by Prosecution
Witnesses different from given in post mortem report ocular evidence was
believed. 1987 Cr.L.J. 180-Deodan.
Where eye witness credible; merely medical evidence pointing to
alternative possibilities is not accepted. 1988 SC 2154.
But where medical evidence completely demolishes the prosecution case,
evidence of eye-witnesses stands totally discredited and is liable to be
thrown out. See Amin Chand, 1985 (2) C.L.R. 78.
Further in Solemki 1983 Cr.L.J. 822, Supreme Court held, “unless the
medical evidence in its turn goes so far that it completely rules out all
possibilities whatsoever of injuries taking place in the manner alleged by eye
witnesses cannot be thrown out on the ground of alleged, inconsistency
between it and the medical evidence.
Inconsistency between medical and ocular evidence. Opinion of Doctor
that person who caused injuries to deceased was at a higher level than
deceased. Not consistent with testimony of eye witness. Conviction is
improper. Supreme Court in Awadesh, 1988 SC 1158. See also l989 Cr.L.J.
274.
In Shamu Balu Chaugulu, 1976 Cr.L.J. (SC) 26 . The Supreme Court held
real test of credibility of solitary witness (who was brother of deceased) was
the medical evidence. If his version was corroborated by medical evidence
there could be no ground to discard his evidence.

Injury Statement
Whenever, there is a case of injuries or whenever it is material to see if
the accused had any injury on his person, it is essential for the Investigating
Officer to prepare an injury statement (Form 25.39 Punjab Police Rules), of
the witness and the accused and to get them medically examined. His power
of observation must be such as not to lose sight of any injury, howsoever
minor and simple it may be. It is, therefore, the foremost duty of every
Investigating Officer and the prosecutor to prove the followings:
(1) The investigating officer must get the injured to subject himself to
medical examination—It was held in 1946 All. 191, the failure to get the
woman medically examined in a rape case was fatal to the prosecution and
the accused was entitled to benefit of doubt. Similarly, the person who
commits rape should be got medically examined for presence of injuries, for
opinion if he can commit intercourse and for presence of smegma. The
omission to get him examined as such is fatal. 1946 All. 191. See Ghanshyam
Misra, 1957 Cr.L.J. 469. Accused got examined in a rape case; abrasion
found on the prepuce of accused. In the absence of satisfactory explanation
by accused for this injury, held it was corroborative piece of evidence
relating to his participation in crime.
No compulsion, however, can be used to subject the accused or witness to
medical examination legally except in the following cases: Bipen Chandra
Shanti Lall, 1963 250, Fajabhai Ranchhod, 1972 Cr.L.J. 605.
(i) When a driver is to be examined for consumption of liquor soon after
within 2 hours of his detection for an offence under section 185 M.V.
Act (Though can’t be compelled but presumption will be against him
in case he refuses–Section 203 to 205 M.V. Act, 1988).
(ii) When a foreigner is to be medically examined under orders of the
State Govt. as required by section 3 Foreigner Act.
(iii) When an accused who has injuries to be examined (section 53
Cr.P.C.).
A Sub-Inspector of police can request a Magistrate to get an accused
medically examined by a registered medical practitioner to afford evidence
of commission of offence or circumstances where injuries are likely to be
there. Force can be used for such an examination. (Section 53 Cr.P.C). A
female to be examined by a female doctor.
Similarly, when any person is arrested, he shall be examined by a medical
officer in the service of Centrol or State Government and in case the medical
officer is not available; by a registered medical practitioner soonafter the
arrest is made:
Provided that where the arrested person is a female, the examination of
the body shall be made only by or under the supervision of a female medical
officer, and in case the female medical officer is not available, by a female
registered medical practitioner. In case of a arrest of a female, medical
examination should be done by a female medical officer or registered
medical practioner as the case may be section 54(1) Cr.P.C.
In cases of rape, prosecutor must be got immediately examined medical
for injuries and sexual intercourse. Similarly, the accused who commits rape
should be got examined if he is fit to commit sexual act; and if smegma is
there if arrested within 24 hours of rape.
(2) He should also see that all the injuries of the witness and the
accused explained—Anything in the medico-legal report which is not sworn
to by the witness is not evidence and judge cannot look to it. 1937 Lah. 475,
38 Cr.L.J. 869. An injured witness is a stamped witness. His presence on spot
is prima facie established and his evidence is of great value to the
prosecution. Rama Swamy, 1976 SC 2027. He will not easily substitute a
wrong person. Jamuna Chaudhry, 1974 Cr.L.J. (SC) and Bhagwan Dass, 1974
SC 1699. See also 1978 Cr.L.J. (SC) 182 , Rameshwar Dyal one witness had
injury which according to Doctor could not be self-inflicted. Held presence of
injury was a strong corroboration of evidence of eye witness.
Similarly, the presence of injuries on the body of accused shows his
participation in the crime. Andurang, 1978 Cr.L.R. (SC) 15.
Sometimes the accused fabricate injuries on themselves or other is order
to put up a false defence. This is not uncommon as held by Supreme Court in
1968 Cr.L.R. Dhiraj Lall . In such case, the nature of injuries used, type of
weapon used, duration and other circumstances help the Investigation
Officer to arrive at truth.
It was held in 1950 Trav (D.B.) 9 and State of Kerala v. Devraj, 1964(1)
Cr.L.J. 101 that without an explanation as to how the accused received the
injuries when the complainant had also injuries on him, the prosecution
evidence will not be complete and no Court will be prepared to act an
evidence which leaves a lacuna. It was held in 1968 Cr.L.J. 1479 Mohan Raj
by Supreme Court that failure of prosecution to offer any explanation about
injuries of accused (who were immediately produced before police and whose
injuries according to Doctor were not self-inflected) show that evidence of
the prosecution witness relating to the incident is not true any rate not
wholly true. In Gajinder Singh 1975 SC, 1703. Omission on the part of
prosecution to explain the injuries on the mother of accused did not affect
the case of the prosecution. In 1974 Cr.L.J. 145, Bhagwan Dass Supreme
Court held that, “There is no hard and fast rule that simply because the
prosecution witnesses did not explain the injuries on the person of the
accused their entire evidence should be discarded.” (1971 SC 2233 relied
on). Held in Bhaba Nanda Sarma, 1977 SC 2252 that prosecution is not
obliged to explain injuries on person of the accused in all cases and under all
circumstances. This is not the law. It all depends upon the facts and
circumstances of each case whether prosecution case becomes reasonably
doubtful for its failure to explain injuries. In this case injuries of accused
were minor, no counter information was filed; nor counter case filed; one of
the injuries was not shown to Investigating Officer though accused was
arrested soonafter occurrence. Prosecution case was believed.
In State of Gujarat v. Bai Fatima, 1975 SC 1478 in case the prosecution
fails to explain injuries on the person of the accused depending upon facts of
each case, Supreme Court held that any of three results may follows:
(i) That the accused had inflicted injuries on the members of the
prosecution party in exercise of self-defence;
(ii) It makes the prosecution version of the occurrence doubtful and the
charge against the accused cannot be held to have been proved
beyond reasonable doubt;
(iii) It does not affect the prosecution.
This case of Fatima was further approved in Lakshmi Singh, 1976 SC
2263, wherein the injuries on the person of accused were very serious and
were not explained. Held following inferences can be drawn:
(i) That the prosecution has suppressed the genesis and the origin of the
occurrence and has thus not presented the true version;
(ii) That the witnesses who have denied the presence of injuries on the
persons of the accused were lying on a most material point and
therefore their evidence is unreliable;
(iii) That in case there is a defense version which explains the injuries on
the persons the accused it is rendered so as to throw doubt on the
prosecution case. See Chapter 6 also.
(3) In case a weapon is recovered, it is for Investigating Officer to
fix, that with the recovered weapon the injury could be caused —This he
can do:
(i) By showing it to the medical expert and getting his opinion if it was
possible for this weapon to cause such an injury. Failure to do so
results in injustice. Kartarey, 1976 SC 76. It was further held,
“Where injuries found are forensically of the same species, e.g., stab
wounds and the problem before the Court is whether all or any of
these injuries could be caused with one or more than one weapon; it
is the duty of prosecution and no less of the Court to see that the
alleged weapon of offence, if available is shown to the medical
 witness and his opinion sought as to whether all or any of these
injuries could be caused with that weapon.” Sometimes the difficulty
arises in which the weapon is to be sealed for despatch to Chemical
Examiner. In such cases, the doctor being not handy it is not possible
to show him the weapon. It is always advisable to get the weapon
examined by doctor. He may show to doctor after opening sealed
parcel in presence of Magistrate and again seal it for despatch to
Chemical Examiner in the presence of Magistrate; or in the
alternative to get it examined so from the doctor on its receipt from
Chemical Examiner after necessary analysis.
In case 1987 (2) Chandigarh Law Reporter 89 Daula etc. v. State of
Haryana, Medical evidence showed that fatal injury could not possibly
be caused with the weapon of offence recovered. Held prosecution
case not proved beyond doubt. In 1990 Cr.L.J. 296, Leela Ram ,
prosecution evidence was that Balam (Spear) was used. Medical
report showing injury by sharp edged weapon. He caused acquitted.
(ii) By sending it to Chemical Examiner if it is stained with blood. The
omission to send bloodstained weapon to Chemical Examiner in
murder cases may also lead to acquittal on this doubt only as in such
cases, the accused could not be connected with it. See 1956
Rajasthan 34 Lavimina v. State.
(iii) By getting identified by eye witnesses to prove how the accused came
into possession of this, e.g., if borrowed, if it had particular mark and
so on.
In this connection, it is sometimes contended that it is necessary to
prove that the accused was handling the weapon before the injury
was caused. If such evidence is conveniently coming forth, then it is
always prudent to collect it. If, however, witnesses state that the
accused caused the injury with this particular weapon, which is
described by them at the time of assault then, “it does not require
evidence to establish that before an injury could because by the
accused with an axe which was wielded by the accused, the axe was
in the hands of the accused.” See 1956 Bom. 193. In re Rupa Sonya.
(iv) Sometimes the weapon left on the spot by the known or unknown
criminal has finger prints on it. The evidence of such finger prints
should be preserved and later can be connected with the accused on
his arrest to fix his identity by comparing with his finger prints.
But such finger prints known as specimen finger prints of accused must
be taken under section 5 of the Identification of Prisoners Act in the
presence of Magistrate for comparison.
All the precautions are necessary to be taken and proved to eliminate the
possibility of fabrication.
In Mahmood 1976 SC 69, the solitary evidence was of finger prints found
on the handle of Gandasa but the Investigating Officer:—
(i) After having sealed it, kept the seal with himself throughout;
(ii) Finger prints of accused as his arrest were taken under section 5 of
Identification of Prisoners Act.
(iii) Inspector who examined finger prints did not give reasons for his
being expert and acquiring special skill, knowledge, etc.
Held it was not sufficient for conviction.
(4) The prosecutor must show and prove by medical evidence that
injuries could be caused in the manner alleged— The eye witness’s
account should be consistent with matters verified by the medical science. It
was held in 1954 Cal. 305 Sunil Chander v. State , if the above fact is proved
there is no reason why the eye witness should not be believed. It was further
said therein that the use which defence can make of medical evidence is to
prove by it that injuries could not possibly have been caused in the manner
alleged; death could not possibly have been caused by the injuries and if it
can do so, it discredits the eye witnesses. More it is not required to do but
less is of no use to it.
Similarly in a murder case it is the duty of the prosecutor to ask the
doctor if the injuries were sufficient in the ordinary course of nature to
cause death as the intention or knowledge of the person is to be inferred
only from the nature of the injuries. 52 Cr.L.J. (1951) 207 Surashtra.
A ballistic expert can be produced to show if an empty cartridge of bullet
recovered from scene or the dead body was fired from the weapon. For this,
it is always essential to seal the empty or the bullet when recovered. These
should be immediately sent to the Forensic Laboratory without waiting for
the weapon to be recovered. The arms when recovered can be sent to the
Ballistic Expert in a sealed cover to opine if the empty or bullet could have
been fired from gun, pistol or the rifle (in case of bullet, it is only rifle or
revolver having grooves which can determine identity). The delay in
despatch of empties or bullets is always fatal and may show padding by
police. Santa Singh, 1956 Cr.L.J. 930 SC. In case Nachhattar Singh, 1976 SC
951, no rifle injury on the deceased was found though it was alleged that
rifle was fired and even rifle fired cartridge were recovered. No witness of
the recovery of empty cartridge was examined and there was no explanation
as to why empties were not sent to Ballistic Expert for 5 months, held case
doubtful. The expert evidence should also be produced to prove the distance
from which fire arm was fired, the direction from which fired and the type of
fire arm which could have been possibly used.
(5) The Medical Expert must be produced in Court— There can be no
substitute for this evidence by production of certificates issued by the
medical officer. This certificate is merely corroborative evidence. It is not
enough to say, “I had noted injuries and stated opinion in the certificate
issued by me and they are the same as shown to me.” See 1988 Cr.L.J. 1431,
injury report does not prove injuries. Doctor must be produced and he must
state all the injuries. See Bawa Sala Mad. 1953 Cr.L.J. (Kutch) . Similar is the
case as regards post mortem report (9 C 455), in the same way Professor of
Medical College as Bone Expert must be examined. 1923 Bom. 183. The post
mortem report or medico-legal report can be admissible in evidence under
section 32(2), Evidence Act if the doctor is dead or not available. The
compounder or other person present at the time of examination and who can
identify the writing of the doctor should be produced. In re Govinda, 1969
Cr.L.J. 1157. It is altogether a different question what weight it would carry
with Court of fact. Its probative value would depend upon the facts and
circumstances of each case. Hadi Kirsavi, 1966 Orissa 21, 1925 All. 413.
The expert must give his reasons. It is not, however, necessary, that he
should give reasons at length in support of his opinion. It is sufficient if he
gives reasons briefly. Prem Shankar Misra, 1957 Cr.L.J. 108 (All.). The
expert should also give his qualifications.
(6) An Investigating Officer should establish the age of the
prosecutor in cases of rape, kidnapping and abduction— The
determination of age plays an important part to conclusively prove or
disprove the theory of consent. In a case of rape, sexual intercourse with a
girl under 18 or by husband with a wife under 15 even with consent is penal.
(Section 375 I.P.C.). Similarly, the taking away of girl under 18 out of the
lawful guardianship is an offence under section 363 I.P.C. even if it is with
consent.
The age of the girl can be established in the following ways:
(i) By expert medical evidence relevant under section 45 Evidence Act.
(ii) By X-ray examination.
(iii) By birth entry contained in Municipal Records or Chowkidar’s
registers, or Buptism Register.
 (iv) By entry in school admission register or in the University certificate
or in hospital registers under section 35 Evidence Act, 1966 Cr.L.J.
210 Parents of girl must be examined to prove it. 1970 Gujarat 178,
Not dependable 1988 Cr.L.J. 565.
(v) By horoscope prepared by Pandits 1965 Rajasthan 90 or the entries
contained in Panda’s Bahis under section 32(2) Evidence Act or
Section 159 by refreshing memory or as admission under sections 17,
18 or 35 Evidence Act. 17 Mad. 134.
(vi) By any other record, e.g., Diaries, Letters, etc.
Most authentic type of proof regarding age is that which is contained in
Municipals Births Register or Chowkidar’s Registers. No other evidence can
prevail against it, if it is properly kept and authenticated. See 1917 P.C. 197,
State of M.P. v. Kamruddin, 1956 Cr.L.J. 253 . I.O. should thus search for it
first. If it is available then he should get it proved by examining the clerk
concerned, who keeps the custody of the registers; by examining ‘Dai’ or
‘Lambardar’ regarding the truthfulness of the entry; and name of the girl by
examining parent that it was the same girl who is named in it and if not
named, then it was she who was named as such afterwards (Custom in many
families is to name girl much long after birth and only ‘larki’ is mentioned
very often). The identity has to be fully established by such evidence. See
Kamruddin Supra as it is not a positive evidence unless identity is fully
proved. State of H.P. v. M. Kala, 1957 Cr.L.J. 847 (H.P.) . See Alekh Prasad
Behera, 1964(2) Cr.L.J. 102 (Evidentially value under section 35 Evidence
Act of birth entry). Birth entry can furnish proof of his age only if that
person is connected with the said entry 1975 C.L.R. 588 (Punjab). Birth
Register is a public document but identity of the person to whom it relates
must be produced, 1978 C.L.R. (Pb.) 146 (Smt.) Santi ; otherwise certified
copy of birth entry is admissible under section 35 Evidence Act without
examining concerned official. Harpal 1981 Cr.L.J. 1 (SC).
Medical evidence is a necessity if no birth entry is forthcoming. The
examination can be by the lady or male doctor based on physical features
and general development of different organs of body viz., Breast, presence of
wisdom tooth, height and weight or start of mensturation, etc. Such an
evidence, however, is not conclusive. See 1951 Ajmer 64. But at the same
time it can not be brushed aside 1954 Cr.L.J. 132 (Orissa) Anam Swaim v.
State. It is a valuable piece of evidence 1948 Oudh 11, 1957 Assam 39
Kamakhaya.
An Investigating Officer thus in addition to such medical evidence should
get her examined by a radiologist who is to take the X-ray photographs of
different bones for ossification tests. The person qualified to testify on X-ray
negative is the medical officer who took the X-ray. 1951 Kutch 11. This
ossification test is, however, not a sure test. There should be some direct
evidence to prove the age of the girl. Kishori Lall Raghu Dass, 1957 Punjab
78. Contra ossification is a sure test. 1957 Cal. 598 Biswanath Ghosh.
The opinion of the radiologist is not conclusive about the age. According
to Chathu’s case 1958 Cr.L.J. 637 (Kerala) it cannot be preferred to father’s
evidence, entry in municipal register and school register, about age. This is
particularly so when, “the medical opinion is that owing to variation in
climatic dietetic, hereditary and other factors affecting the people of the
differing States of India, it cannot be reasonably expected to formulate a
uniform standard for the determination of age by the extent of ossification
and the union of emphysis in bones.”
In 1985 (1) C.L.R. 72, Ramji Lall , it was held by Punjab and Haryana High
Court that ossification test was not a sure test of age. There is always a
variation of two years on either side.
The Court and the Jury can also form its impression about age by
examining the physical features of the girl. It was held in Sidheswar
Gangully 1958 S.C. 143. “The only conclusive piece of evidence of the girl’s
age may be the birth certificate but unfortunately in this country such a
document is not ordinarily available. The Court or Jury has to base its
conclusions upon all the facts and circumstances disclosed on examining all
the physical-features of the person whose age is in question in conjunction
with such oral testimony as may be available.”
In 1981 C.L.R. 279 Hardip Singh. It was held, that the question of age of
the prosecutrix in cases under section 366 and 376 I.P.C. is always of
importance. It is to be noted that the evidence produced by the prosecution
for determining the age of the prosecutrix is not consistent, rather according
to it, her age varies from 14 to 38 years. Dr. S.K. Malik radiologists (P.W.2)
gave her age as 14 to 16 years. No birth entry relating to the birth of the
prosecutor has been produced by the prosecution. In the absence of such
kind of direct evidence regarding the age of the prosecutrix, no safe
conclusion can be based simply on the opinion of
Dr. Malik, the radiologist who had conducted ossification test.
The prosecutrix gave her age as 17 years in the first information report.
In view of the above discussed oral evidence which is of a conflicting nature
there is hardly any justification for holding that the prosecutor was in fact
less than 18 years of age on 8-11-1976 when the occurrence had taken place.
Keeping in view the medical evidence which shows that the prosecutor
had been used to sexual intercourse, in order to accept her statement that
she was induced by the appellant to go with him, there should be
corroboration of some material particulars from some independent source
and her bare statement cannot be said to be sufficient to sustain the
conviction of the appellant under section 366 Indian Penal Code either.
Admittedly the prosecutrix had lived with the appellant for about 20/21 days.
It must be with her consent and sweet will that she had been him to take her
away cannot be excluded. Her solitary statement, is not sufficient for holding
that she had in fact been induced by deceitful means, by the appellant to go
away with him from the house of here parents within the meaning of section
362 Indian Penal Code which defines abduction.
The important findings with respect to Medical evidence are as under
where these evidences treated as expert opinion are taken into
consideration:
(i) Expert Opinion–Forensic Science Laboratory report in regard to
blood–Stains present on weapon of offence cannot be used against
accused unless it was put to accused in his statement under section
313 Cr.P.C. and accused was given an opportunity to explain it. Dhula
v. State of Rajasthan, 1997 Cr.L.J. 609 (Raj.).
(ii) Expert Opinion–Doctor actually examined accused and had noted the
injuries himself stated that one of the injuries cannot be self-inflicted
injury–Another doctor gave his opinion only on basis of injury report
and the X-ray report without even looking to X-ray plate. In
circumstances court relied on the opinion of former than the latter.
Tanviben P. Divetia v. State of Gujarat, 1997 Cr.L.J. 2535 SC.
(iii) Section 45–Expert Evidence–Time of death–Determination– Rigor
mortis was only rough guide–Doctor who had held post-mortem
examination had occasion to see the injuries of deceased quite
closely–No evidence that he had deliberately given wrong report–His
evidence cannot be discarded–Opinion of doctor holding post mortem
examination is to be preferred to expert opinion based on basis of
post mortem report and notes on post mortem report and also taking
into consideration the presence of rigor mortis, lividity, coolness and
the report of injuries found on the person of the deceased. Tanviben
P. Divetia v. State of Gujarat, 1997 Cr.L.J. 2535 SC.
(iv) Expert Opinion–Certificate by doctor regarding injuries caused to
accused persons–Rejection of on ground that they were on plain piece
of paper and not on printed form–Not proper when it was shown that
 printed forms were in short supply in Government hospital in the
particular district. Ammini v. State of Kerala, 1998 Cr.L.J. 481 SC.
Medical Evidence–Variance of with eye-witness evidence–Would not
always render it unreliable–Eye witness evidence would not in all
circumstances prevail over medical evidence. Chiguripati Suryanarayan v.
State of A.P., 1999 Cr.L.J. 1201 (AP).
Evidence of Doctor–Murder–Evidence of doctor conducting post mortem–
Credibility of, vis-à-vis statements found in text books–Suggestion made
prosecution to doctor on basis of statements found in authoritative text
books–Doctor disagreeing with those statements without assigning any
reasons–No other authority produced in support of her opinion–Evidence of
doctor also self contradictory regarding her opinion about cause of death of
victim–Cannot be relied upon safely. Mohd. Zahid v. State of Tamil Nadu,
1999 Cr.L.J. 3699 SC.
Expert’s Opinion–Doctors evidence can never be absolutely certain on
point of time so far as duration of injuries are concerned. Ram Swaroop v.
State of U.P., 2000 Cr.L.J. 808 SC.
Assessment of age made by Doctor only on clinical examination is based
on fragile premises. Kamal Kishore v. State of H.P., 2000 Cr.L.J. 2292 SC.
Medical Evidence–Evidence of doctors reveals that deceased met with his
death due to gun shot injuries–Refuted the defence suggestion that the
immediate cause of death was infectious developed during surgery. Saudagar
Singh v. State of Haryana, 1997(5) Crimes 1 (SC).
Medical Evidence–In contradiction with oral evidence–As per eye-
witnesses the deceased persons were shot at–But post-mortem reports do not
show any bullet injury–Witnesses also trying to make up this fault–Held,
there is a conflict between the statement of eye-witnesses and the medical
evidence and witnesses are also making improvements–Therefore benefit of
reasonable doubt given to accused–Appellants/accused acquitted. Kalyan and
others v. State of U.P., AIR 2001 SC 3976.
Medical Evidence–Injuries–Explanation not given by the accused for the
injuries–There is no reason to disbelieve the testimony of the medical report–
False answer of the accused provides a missing link for completing the
chain. State of Maharashtra v. Suresh, 2000 (1) Crimes 1 (SC).
Medical Evidence–Medical evidence showed that injuries were anti
mortem, which was not consistant with the version given by sole Prosecution
Witness instead the medical supported the defence case–Under the
circumstances prosecution case was disbelieved. Sadhu Ram v. State of
Rajasthan, 2003 Cr.L.J. 2331.
Medical Evidence–Medico-legal case–Examination of the doctor–Necessity
of Murder case–Held, the Trial Courts should make a thorough enquiry by
asking the I.O. to go to the concerned Hospital and make personal enquiry of
tracing the address of the doctor who left that service and whether in fact
said doctor is really not available–Only after such attempts the ML Cs and
post mortem notes be brought on record by examining other person–But not
proper to prove the handwriting of the concerned doctor–In such a case
another doctor working in the Hospital and acquainted with the handwriting
and signature of the doctor who prepared that document should be
examined. Sher Singh v. State, 1995 JCC 260.
Medical Evidence–Murder case by firing–Suspects arrested–Deceased
remained in hospital for about 1½ months and then succumbed to the
injuries–On bed head ticket and in three other records of the hospital
“Accidental” word has been recorded–Doctor concerned stated he did not
make these entries–No explanation for such entries coming forth by
prosecution–Trial court committed error in asking the appellants to explain
this matter–Benefit of doubt extended to the appellants and their conviction
set aside. Paramjit Singh v. State of Punjab, AIR 1997 S C 1614.
 Medical Evidence–Murder case–Discrepancy in ocular and medical
evidence–Prosecution Witnesses stated that incident occurred at 9.30 P.M.
after the victim took dinner, which the medical report indicated that the
entire stomach of the deceased including both the intestines were empty,
which goes to show that the deceased had not taken the meals and his
murder must have taken place at least 3 to 4 hours after he had his last
meal–It establishes the fact that murder took place much before dinner–Such
discrepency renders the testimony of Prosecution Witnesses doubtful–Hence
conviction of appellant was set aside. Moti etc. v. State of U.P., AIR 2003 S C
1897.
Medical Evidence–The doctor was not examined in court–The accused
seeking benefit of the same–Since the post mortom report was admitted, the
formal proof was dispensed with on the consent of counsel for all the
accused and that is the reason for non-examination of the doctor in the
court–In these circumstances the accused/appellant is not entitled to seek
any benefit of the non-examination of the doctor. Rakesh & Others v. State of
U.P., AIR 2002 SC 2721.
Section 45–Medical evidence is an expert’s evidence of a doctor and it is
the opinion of an expert from the field of science which is admissible under
section 45 of the Evidence Act. A medical witness is an expert to assist the
court, he is not a witness of fact it is advisory in character. As a general
rule, oral evidence is given preference over medical evidence, in cases of
minor contradictions between the two. But where the medical evidence
completely ruled out the oral evidence, medical evidence is relied upon by
the courts for deciding the guilt of the accused. The value of medical
evidence is only corroborative. It proves that the injuries could have been
caused in the manner alleged and nothing more. Unless, however, the
medical evidence in its turn goes so far that it completely rules out all
possibilities whatsoever of injuries taking place in the manner alleged by eye
witnesses, the testimony of the eye witnesses cannot be thrown out on the
ground of alleged inconsistency between it and the medical evidence. Sonraj
Jangade v. State of Chhattisgarh, 2007(4) Crimes 392.
Medical Evidence–Purpose of such evidence–Held that the prosecution
can use the medical evidence for corroboration of its case and manner of
occurrence–Similarly, the accused in his defence can also use the medical
evidence to criticise the prosecution case. Asharfi v. State of U.P., 2013(6)
RCR (Cri.) 1582.
Medical and ocular evidence–Accused convicted and sentenced to life
imprisonment–Conviction sought to be quashed on the ground that as per
medical evidence there was no mark of sexual violence on the genital organs
of the body–Contention not tenable. Bhaikon @ Bukul Borah v. State of
Assam, 2013(9) SCC 769.
Medical evidence–Ocular evidence has precedence over medical evidence,
but medical evidence be relied upon, where testimony of eye witnesses was
tainted and improvements were made by the witnesses in the Court. Sunil
Kundu v. State of Jharkhand, 2013 Cr.L.J. 2339.
Medical evidence–Opinion given by a medical witness need not be the last
word on the subject. Such an opinion is required to be tested by the Court.
Held, that–
(a) If the opinion given by one doctor is not consistent or probable, the
Court has no liability to go by that opinion merely because it is given
by the doctor.
(b) Where the eye witnesses account is found credible and trustworthy, a
medical opinion pointing to alternative possibilities cannot be
accepted as conclusive.
(c) Medical evidence goes so far that it completely ruled out all
possibility of the ocular evidence being true, the ocular evidence may
 be disbelieved. Gangabhavani v. Rayapati Venkat Reddy, 2013 Cr.L.J.
4618.
Medical Evidence–There were two medical report-one was wound certificate and
other was post mortem report. In the wound certificate there were only two injuries
while in the post mortem report there are nine ante mortem injuries. As such there
were apparent discrepancy between the two documents. Medical evidence doctor
proved that patient was needed immediate treatment as such only gross injuries were
entered in the register as the patient was unconsious and was shifted to emergency
ward. It was held that addition of stitched wounds in post mortem report does not
create doubt regarding the incident in question. M.G. Eshwarappa & others v. State of
Karnataka, AIR 2017 SC 1197.

Inquest Report
Inquests are held by police and Magistrate according to the provisions of
section 174 to 176 Cr.P.C. The dead body must be present for holding
inquests. In cases where the body is not found or has been buried there can
be no investigation under section 174 Cr.P.C. In such cases, the right
procedure for the police is to register a case and commence investigation if
there are reasonable grounds for suspicion that a cognizable offence has
been committed. For holding, following precautions are necessary:
1. Death must be due to the following:
(a) By commission of suicide.
(b) By having been killed by another, or by animal or by machinery, or by
an accident.
(c) By death under circumstances raising a reasonable suspicion that
some other person has committed an offence.
(d) Suicide by women or suspicious death, even within 7 years.
2. Dead body must be lying. In case there is no dead body, the inquest
cannot be held. Investigation then can be held only after registration of case,
if there are suspicious circumstances to warrant the commission of
cognizable offence.
3. An intimation must be sent to the nearest Magistrate empowered to
hold inquest, who are D.M., S.D.M., Executive Magistrate, etc.
Two or more respectables of the neighbourhood must be present. They
can be summoned under section 175 Cr.P.C. and are bound to attend and
answer truly all questions if these do not expose them to criminal charge,
penalty or forfeiture.
The absence of respectable witnesses discredits the report by police.
1954 Cr.L.J. 658. Leela Kantan Vasu.
4. It must be by officer-in-charge. If by other police officer, of the rank of
H.C. or above, it must be verified by S.I. incharge. In case the dead body is
found in cantonment area, or in jail premises or a person has dies in custody
or Police then inquest is to be held by an Executive Magistrate only.
5. The report shall be prepared by the officer and got signed from
witnesses and then forwarded to the Illaqa Magistrate after the completion
of investigation. The reports should be drawn in duplicate in Form 25.35 (1)
Punjab police rules according as the deceased appears to have died:
(a) from natural causes.
(b) by violence.
(c) by poisoning.
For further instructions See Punjab Police Rules 25.31 to 25.41.
See Bride Burning Chapter 5.

Importance and Scope of Section 174 Cr.P.C.

The scope of inquest proceedings was examined in two cases Padda
Narayana, 1975 S.C. 1252 and Bash Ali, 1976 Cr.L.J. 776 (M.P.), where it
was argued that minor details were not mentioned in inquest reports and as
such these were improvements. Held the object of proceedings is to
ascertain whether a person had died under the circumstances which were
doubtful or an unnatural death and if so what was the apparent cause of
death. The question regarding the details as to how the deceased was
assaulted or who assaulted him or under what circumstances he was
assaulted is beyond the ambit and scope of proceedings under section 174
Cr.P.C.
The importance of Inquest proceedings is great being the initial document
prepared by police which goes to Medical Officer and where after no
additions or omissions can be made by police in it.
In Balaka Singh, 1975 SC 1962, names of 4 accused out of 9 who were
mentioned in F.I.R. were missing in the inquest. The omission was not
explained. Held omission threw doubt on the complicity of 4 accused and
that F.I.R. was prepared later. Whole case resulted in acquittal of all.
 In 1974 C.L.R. 128 Maghar Singh , Punjab High Court held (para 4), “non-
mention of the version now put forth by the prosecution in inquest report Ex.
P.K. goes a long away to show that it (the said version) was not available at
the time when inquest was prepared. That means that the prosecution could
and it had the opportunity to spin out a version...”

Some Instructions in Writing Inquests

The body should be carefully examined and all abnormal appearances
should be carefully noted. Much depends upon the observation of police
officer as he is expected to note the traces left by the accused and all
valuable clues which may lead to the identity of the dead body, if it is not
identified. The required information in the form must be given precisely and
correctly. The articles present should be noted specially as regards their
relation to dead bodies and surrounding and should be taken into possession.
The police officer should convey as much material information available
as he could do in the inquest report for help of the medical man who is to
hold the post mortem examination. It was held in Gurdev Singh, 65 P.L.R.
409 that inquest report is a document of vital importance and has to be
prepared promptly because it has to be sent to Doctor along with dead body.
If facts about the nature of occurrence are mentioned in the inquest report,
they give an early version of occurrence; also so held in Paras Ram, 1973
Cr.L.J. 428. There should be no difference between Inquest and post mortem
report. It is for Investigating Officer to describe wounds, fractures, etc., as
may be found on body and to state in what manner, or by what weapon or
instrument such marks appear to have been inflicted. These should be given
in narration in his report which should give the apparent cause of death. The
mention of these particulars sometimes can prove of great use and help. In
1957 Raj. 331-1957 Cr.L.J. 1187 Mukanda v. State . Doctor had performed
post mortem examination when the dead body was in advanced stage of
purification and as such could not find incised wounds etc. The police officer
had observed the injuries and mentioned in the inquest report. It was held, it
is not correct to say that in the face of the medical evidence the mention of
injuries in inquest report cannot prevail. It is true that if Investigating
Officer has given any opinion of his as to how these injuries could be caused
or any other technical opinion as could be given of his only in a medical
report, it would not be safe to accept it, but if he has stated a fact which he
saw only in a medical report, it would not be safe to accept it. But if he has
stated a fact which he saw with his own eyes, it cannot be said that it should
not be read in corroboration of the evidence of eye witness.” The learned
Judge relied upon observation of Investigating Officer for presence of
injuries.
A search should invariably be made for bullet holes, empty, cartridges,
bullets, blood stains, charming or blackening of clothes or wounds, traces of
tools, dust, presence of foreign matter, etc., these should be duly described
and collected where necessary. The columns should be duly filled especially
with regard to the clues found present near the dead body. In case these are
not mentioned in inquest a deduction can be made that these were planted
later. The importance of this was observed in 1974 P.L.J. 145. In case of
poisoning search for containers, etc., collect vomitted matter, stools, etc. In
case of drawing, give depth of water, foreign matter striking to body.
Draw a plan of the scene of death. Describe where body was lying or how.
Take photographs where necessary.
Request should always be made to the Doctor to search for bullet or
pellets left in the body.
The Investigating Officer should record the statements of witness in the
inquest report. The report should be signed by the persons summoned under
section 175 Cr.P.C.
 Invariably in inquests held in the course of investigation of registered
cases, e.g., murder, etc., the statements of witnesses during inquests should
never be recorded and got signed as these are hit by section 162 Cr.P.C. The
Supreme Court held in Naipal Singh, 1977 Cr.L.J. 642 . “It is not at all
necessary in law to incorporate the statement of witnesses in the inquest
report. The inquest reports is to be made by Investigating Officer just to
indicate the injuries which he had found on the bodies of the deceased
persons. It may be witnessed by one or two persons.” It was further held that
these statements are hit by section 162 Cr.P.C. if any case is registered
already and the inquest is being held under section 174 Cr.P.C. The
statements should be recorded and got signed. Any person who appears to be
acquainted with the facts of the case can be summoned under section 175
Cr.P.C. by police officer holding inquest. Such person is bound to attend and
answer truly all questions put to him. For non-attendance, an offence under
section 174 I.P.C. is made out. The person who voluntarily appears being not
summoned, is not liable for any false statements made by him.
These statements if inquest, during investigation, fall within the purview
of section 162 Cr.P.C. and can be used as such. 1955 Cr.L.J. 983. Chuhar
Singh. Held in Padda Narayana, 1975 SC 1252 that a statement recorded
during investigation (whether apparently recorded under section 174) is not
at all admissible in evidence and the proper procedure is to confront the
witnesses with the contradictions.
These statements contained in the inquest report are not substantive
evidence and ought not be relied upon to arrive at a conclusion. 1957 Orissa
216.

Post Mortem Examination

After the inquest, the oolice officer should invariably send the dead body
for post mortem examination to determine the cause of death. He is
empowered by law with the discretion to dispense with autopsy (a) if he is
fully satisfied as to real cause of death (b) and body is in an advanced stage
of purification apparently making out examination useless. Such discretion
should only be exercised sparingly. Held in K. Puran Chandra Rao, 1975 SC
1925. Sub-section (3) of section 174 gives a discretion to the police officer
not to send the dead body for post mortem examination by the medical
officer only in one case, namely where there can be doubt as to the cause of
the death. This was also recognised by Supreme Court in Kehar Singh, 1989
Cr.L.J. where it was held that post mortem was important in cases where
cause of death is not established is in controversy. Where cause of death is
not disputed, further post mortem report was not required. Section 174,
Cr.P.C. does not require so even. This discretion, however, is to be exercised
prudently and honestly. In registered cases it, in which investigation is being
held under section 156 Cr.P.C. post mortem examination is very essential as
it would serve a corroborative piece of evidence, for material for
determining the authenticity ‘of witnesses’ version. Invariably, it should
never be avoided.
It was held in 1955 Cr.L.J. 473 Thakur v. State the post mortem
examination is a very important piece of evidence in criminal trial and the
medical officers who are entrusted with this work should do it with utmost
care and attention and should not perform it as formal duty. They should as
a rule fill in all the relevant heads mentioned in the printed form and apart
from giving the approximate time of death they should invariably mention
the kind of weapon which was probably used in causing different injuries. In
1956 All. 731 Lall Singh v. State , medical witness was unable to say for
certain that the mark found on the neck was as a result of external pressure
brought about by throttling. The accused was given the benefit of doubt.

For Post Mortem Examination (Section 174(3) Cr.P.C.)

 (a) The dead body is to be sent to the nearest qualified medical officer
under the escort of two police constables to avoid tampering with
body or its covering. The police officer shall hand over dead body
personally to the medical officer along with police papers and other
articles sent by I.O. They will also bring back the post mortem report,
and other articles made over to them by the doctor.
(b) If the dead body is in much advanced purification or it is not possible
remove it, the I.O. if he considers expert post mortem examination
essential, shall report the fact by more expeditious means available
to S.P. or G.O. who will arrange post mortem examination by Civil
Surgeon at the spot through the District Magistrate. If that cannot be
arranged then the nearest medical officer can be sent for to help in
the post mortem.
(c) After post mortem examination, the dead body is to be handed over to
the relations of the deceased. If there is none to receive, then the
police is responsible for its cremation or burial.
(d) The identity of the dead body will be determined before autopsy by
sending a man, who could identify it. If body is not identified then by
taking photograph and by preparing a search slip. Request can also
be made for removing skin of fingers if search slip cannot be
prepared. An attempt should, however, always be made to prepare
the search slip. See the identification of dead body.

Disinterment of Body
A body which is formally buried can be disintered only under the orders
of a Magistrate under section 176(3) Cr.P.C. In such cases, on receiving
information that dead body has been formally buried and it is essential that
it should be disintered, the officer-in-charge of police station shall forward
such information to the Magistrate together with the ground of disinterment
for the orders and in the meantime shall guard the grave. On the receipt of
such orders, the body will be disintered in the presence of the Magistrate,
otherwise in presence of two or more respectable of locality. Then formal
investigation under section 174 Cr.P.C. shall be held. Of course, the identity
of dead body will be determined before proceeding on with investigation.
If the body has laid in the grave for the period exceeding three weeks,
then no disinterment shall be by any police officer until the opinion of Civil
Surgeon has been obtained and then only with concurrence of the District
Magistrate.

Some Important Hints

See section 176(3) Cr.P.C. and 25.34 Punjab Police Rules.
(1) If there is no formal burial, as the body is concealed by murderer and
buried, no order of Magistrate is necessary. The body can be dug up
at the instance of accused.
(2) Take a small quantity of earth, in contact with body in possession, if
it is a case of mineral poisoning.
(3) All viscera should be preserved.
(4) Long bones should not be thrown as these help in detection of arsenic
poisoning. Jaw and pelvic bones help in identity.
(5) Hair to be preserved and got chemically analysed. These also help in
identification.
In case of cremation of the dead body, take ashes and burnt bones in
possession for chemical examination.

After Post Mortem Examination

The police officer will carefully go through the post mortem report, on its
receipt from the medical officer. He can derive help from the post mortem
report on the following points which are very material for purpose of
investigation:
(a) The approximate time when the death occurred.
The question can be answered by medical man, after observing the rigor
mortis, the post mortem lividity, warmth of body and the degree of
decomposition of the body. This will determine the approximate time of
occurrence also. The contents of bladder, and the stomach go a long way to
establish this point. In many cases, the injuries are such that death follows
immediately. The process of digestion then stops. The degree of digestion
can and, as such, approximately show as to show long after taking meals the
deceased was murdered. This question came up in 43 Cr.L.J. 81, 1933 Oudh
60, 1951 Raj. 37. This also has been discussed by Taylor and other medical
jurists, who have prepared most elaborate tables to illustrate time taken by
the stomach to digest certain articles or diet.
The tables must not be taken as to mathematical certainty but may
represent fair average. The rate of digestion varies with different individuals
and with the state of gastric mucosa. Death does not at once cause the
process of digestion to stop as we know that stomach can even digest after
death. With all this uncertainty too much stress must be placed on such
evidence. It must be weighed along with other items. The process of
digestion varies from individual to individual and is not uniform 1964 Patna
158 Aziz Khan.
The periods given do not refer to the digestion of Indian foods in Indian
stomachs, on which but few observations of experiments seem to show that
some portion of a meal of rice pulses may be found undigested even six or
seven hours after the taking of food ‘Taylor’. Similarly, it was held in 1933
Oudh 60. 1951 Raj. 37 that the recent medical researchers have shown that
sometimes the process of digestion is greatly delayed in case of Indians
when the food is vegetable food. Modi, a medical jurist found in one case the
food consisting chiefly of rice and dal remaining in the stomach for about 43
hours without undergoing digestion. This may be due to the fact that power
of digestibility remains in abeyance for long-time in states of coma and
profound shock.
It was held in Bassappa v. State, 1961 Cr.L.J. 120 (Mys). That the opinion
stated by the medical officer that he took his meal at such an hour is only
opinion. “It cannot be taken as contradicting the positive evidence of the
witnesses to the facts such as the deceased took his last meal at about 4
p.m. and that he was stabbed at 5 p.m.”
Hon’ble Justice Krishna Iyer of Supreme Court in Shivaji Sahibrao
Bohade, 1973 Cr.L.J. 1713 has cautioned. More importantly, the Court must
not abandon a scientific attitude to Medical Science, if it is not to be guilty
of Judicial Superstitution. To quote Modi’s Medical Jurisprudence that food
would be completely digested in 4 to 5 hours or to swear by the Doctor to
deduce that death just have occurred within 3 hours of the eating and,
therefrom, to argue that the presence of undigested food in the dead body
spells the sure inference that death must have occurred before 2 p.m. is to
misread the science on the subject of digestive processes. Modi’s Medical
Jurisprudence, extracts from which have been given by both the Courts,
makes out that a mixed diet of animal and vegetable food, normally taken by
Europeans takes 4 to 5 hours for complete digestion, while a vegetable diet,
containing mostly farinaceous food usually consumed by Indian does not
leave the stomach completely within 6 to 7 hours after its ingestion. Indeed
the learned author continuously adds that stomachic contents cannot
determine with precision time of death in as much as the power of
digestibility may remain in abeyance for a long-time in states of profound
shock and commas. He also states, “It must also be remembered that process
of digestion in normal healthy persons may continue for a time after death.”
The learned Judge reminded themselves of the imponderables pointed out by
Modi which makes the digestive testimony inconclusive and therefore,
insufficient to contradict positive evidence, if any, about the time of death.
To impute exactitude to a medical statement oblivious to the variables
noticed by experts and changes in dietary habits is to be unfair to the
science. We are not prepared to run the judicial risk of staking the whole
verdicts on nebulous medical observation.
Modi in his Medical Jurisprudence has opined, “In some cases the time of
death may be calculated by examining whether the bladder or intestines are
empty or not. Thus, in the case of an individual having been murdered in bed
at night, one can state that the individual had lived for sometime after going
to bed if the bladder was found full of urine. Such people usually empty their
bladders, before going to bed. Similarly, one can give an opinion that the
death occurred sometimes after he had got up in the morning if the large
intestine was found empty of faecal matter.”
The presence of the digested food is, however, a circumstance to fix the
time of death. In Sudhash 1976 S.C. 1924, the genesis of crime was that
deceased had gone to Kharbuza field and Kharbuza had been eaten by him.
Within less than five minutes he met his death. No Kharbuza slice was seen
in stomach. The large intensiveness were empty. The witnesses were
disbelieved (Para 14) of Judgement.
(b) The approximate time between injuries and death.
This is material to determine if the death was instantaneous, if the
deceased could speak before he died and so on. This also determines time of
occurrence.
(c) The cause of death whether it was homicidal, accidental or suicidal.
The essential thing to be noted in case of homicidal is whether injuries
were ante-mortem or post-mortem (1957 Orissa 216 Adi Bhumiani).
In addition to above main conclusions, the post mortem report could be
helpful to determine age, sex, the nature of injuries, type of weapon used the
presence of an foreign matter on the body, e.g., stains, mud, tears and so on.
In case, if death is homicidal, a case should always be registered for
investigation, if not already registered after receipt of post mortem report.
The post mortem report will also determine the identity in cases of
unidentified dead bodies, whether male or female, age of the deceased and
any other deformity, etc., of the deceased.

The deductions from the above are as under

Section 174 and 161–Statement of Witness–Inquest report–Name of
accused mentioned by witness who had seen him going to house of deceased
carrying lathi his name did not appear in inquest report–His statement under
section 161 Cr.P.C. cannot be discarded merely on that ground. Naresh
Kumar v. State of Haryana, 1997 Cr.L.J. 2216 P&H.
Section 174–Inquest Report–Names of accused persons not mentioned
therein–Plea that they were falsely implicated–Not raised during trial and
appeal–Cannot be raised for first time in appeal before the Supreme Court.
Baleshwar Mandal v. State of Bihar, 1997 Cr.L.J. 4084 SC.
Section 174–Scope–Murder case–Discarding evidence of eye witness
placing heavy reliance on inquest Panchnama prepared under section 174,
Cr.P.C. on ground that evidence contradicted did not record fact that apart
from fire arm deceased was also assaulted by sharp cutting weapon–Held,
Section 174 was erroneously interpreted because details of assault are
foreign to scope of proceedings under section 174 State of U.P. v. Abdul,
1997 Cr.L.J. 2997 SC.
Section 174–Inquest Memo–Requirements–Mentioning of names eye-
witnesses in inquest memo–Not necessary. Purkha Ram & others v. State of
Rajasthan, 1998 Cr.L.J. 918 (Raj).
 Section 174–Inquest Panchanama–Absence of name of accused in
Panchnama–It cannot be inferred that his name was not disclosed as
murderer till Panchanama was completed–No requirement of law that inquest
Panchanama should contain name of accused. Sheikh Ayub v. State of
Maharashtra, 1998 Cr.L.J. 1656 SC.
Section 174–Investigation–Inquest report–Scope is restricted merely to
ascertaining whether a person has died under suspicious circumstances or
an unnatural death. Details regarding manner of assault or who assaulted
deceased is not within its ambit. Mer Malde Veja v. State of Gujarat, 1998
Cr.L.J. 4412 Guj.
Section 174–Evidence Act, Section 42–Inquest report–Admissibility–
Murder case–Discovery Panchnama–Panch witnesses turning hostile,
however, admitting their signatures in discovery Panchnama–Police Officer
identifying said signatures and testifying that panch witnesses had signed in
his presence–Order of court refusing to exhibit panchnama on ground that it
was not proved, not proper. Koli Arshi Lila v. State of Gujarat, 1999 Cr.L.J.
2595 (Guj).
Section 174–Inquest Report–Is prepared by Investigating Officer to find
out prima facie the nature of injuries and the possible weapon used in
causing those injuries as also the possible cause of death–Witnesses of
inquest were also eye witnesses–Fact that they did not state names of
assailants while describing cause of death in inquest report–Not sufficient to
doubt their presence at spot at the time of occurrence. Suresh Rai v. State of
Bihar, 2000 Cr.L.J. 3457 SC.
Section 174–Inquest by police regarding death under section 174 Cr.P.C.–
Scope of investigation under section 174 Cr.P.C. is limited and is confined to
ascertainment of cause of death–The object is merely to ascertain whether a
person has died under suspicious circumstances or an unnatural death and if
so what is the apparent cause of the death–The question regarding the
details as to how the deceased was assaulted or who assaulted him or under
what circumstances he was assaulted is foreign to the ambit and scope of the
proceedings under section 174–Non-mention of name of an eye witness in the
inquest report could not be a ground to reject his testimony–Similarly, the
absence of the name of the accused in the inquest report cannot lead to an
inference that he was not present at the time of commission of the offence.
Radha Mohan Singh @ Lal Sahib v. State of U.P., 2006 Cr.L.J. 1121.
Section 174–Death of Person–Inquest report by police–Evidence of a
witness cannot be rejected merely because his name is not mentioned in the
inquest report–Statutory purpose of the inquest proceedings is merely to
ascertain whether a person has died under unnatural circumstances and if
so, what is the cause of death–A question regarding details as to how
deceased was assaulted, who assaulted him, under what circumstances he
was assaulted etc. is foreign to the ambit of the scope of the proceedings
under section 174 of Cr.P .C. Naushad v. State of Keralam 2006 (2) RCR
(Cri.) 119 Kerala.
Section 174–Death of a person in suspicious circumstances–Inquest
proceedings by police–Scope of the proceedings under section 174 Cr.P.C. is
very limited–The details of overt acts in the inquest report are not
necessary. Sunil v. State of Haryana, 2003 (2) RCR (Cri.) 395 (P&H).
Section 174–Inquest report in murder case–Object of holding an inquest
under section 174 Cr.P.C. is only to establish the cause of death–It is not
even necessary to incorporate the statements of the witnesses in the inquest
report–The Investigating Officer is supposed to indicate the injuries which
he found on the body of the deceased person–Omission to mention the
articles recovered from the scene of crime in the inquest report is, thus, of
no consequence. Malkiat Singh v. State of Punjab, 2004(3) RCR (Cri.) 55
(P&H).
 Section 174–Murder–Inquest report conducted under section 174 Cr.P.C.
did not contain none of accused–No adverse effect on prosecution–Section
174 Cr.P.C. does not contemplate that the manner in which the incident took
place or the names of the accused should be mentioned in the inquest
report–The basic purpose of holding an inquest is to report regarding the
apparent cause of death, namely whether it is suicidal, homicidal, accidental
or by some machinery–Inquest under section 174 Cr.P.C. is concerned with
establishing the cause of the death only. Amar Singh v. Balwinder Singh, AIR
2003 SC 1164.
Sections 174 and 154–I.P. C. Section 306–F.I.R. and Magisterial Enquiry–
Suicide by head constable in precincts of police station, leaving behind a
suicide note that he was committing suicide due to harassment and excesses
of his senior police officers–He named six senior police officers including
DGP–Govt. ordering Magisterial enquiry–Enquiry conducted by SDM who
found the allegations unfounded–Magisterial Enquiry cannot substitute
investigation by police under section 154 and 156 Cr .P.C.–Course adopted by
State does not have any legal Sanction–Investigation entrusted to CBI.
Sushma v. State of Haryana, 2005(4) RCR (Cri.) 788 (P&H).
Acquitting the accused on the ground of inconsistency in the medical
evidence and medical evidence is not in accord with ocular evidence of the
prosecution witnesses was not right. State of M.P. v. Sughar Singh & Others,
2009(1) Crimes 33 (SC).
In the case of discrepancy between medical evidence and ocular evidence,
it is to be noted that the incident occurred around midnight when six
murders were committed one after another. In such circumstances, it was
practically not possible for any eye witness to describe pin-pointed role or
the kind of weapons with which blows were given. In an incident when killing
of so many persons took place, it would be difficult for a witness to
remember with precision the kind of weapon used by a particular accused.
Hence, the evidence of the witnesses are not liable for rejection on the
hypothetical so-called medical discrepancy. State of U.P. v. Sattan @
Satyendra, 2009(2) Crimes 121 (SC).
In a medical evidence, merely because the post mortem report had been
proved does not mean that each and every content thereof is stood proved or
can be held to be admissible. Only the statements made by the doctor
conducting the post mortem are substantive piece of evidence in law. State
of U.P. v. Mohd. Iqram & Others, 2011(3) Crimes 15(SC).



Chapter–25
Dying Declaration
A dying declaration is admissible in evidence under section 32 (1) Indian
Evidence Act. Such a statement must be relating to the cause of deponent’s
death or to say of the circumstances of the transaction which resulted in his
death, in cases in which the cause of that person’s death comes into
question. So, relevancy of the statement depends upon two questions:
1. When the statement is made by a person who is dead as to cause of his
death.
2. When the statement is made by a person as to any of the
circumstances of transaction which resulted in his death. The “words
resulted in his death” do not mean “caused his death.” See 1953
 Cr.L.J. 1751 (Pat.) State v. Ram Parshad Singh, 1953 Pat. 354 ;or to
anybody else’s death. 1959 Cr.L.J. 108 (SC) Ratan Gond.
When the deceased is not proved to have died as a result of injuries
received by him in the incident where the deceased is alleged to have been
killed, his statement relating to that incident cannot be said to be statement
as, “to the cause of his death or as to the circumstances of the transaction
which resulted in his death” and as such will not be admissible as dying
declaration. 1964 SC 900.
It is not necessary that the statement to be admissible must always be
made immediately before the death, when the deceased is near his death and
under the expectation of death. It was held in Tehal Singh, 1978 Cr.L.J. 295
it is not essential the statement should be made in expectation of death. The
circumstances as deposed by the deceased, even long before death are
relevant and as such admissible if they are bearing proximate relation to any
transaction which at a later stage resulted in his death. In Alijan Munshi,
1960 Cr.L.J. 894 and 1970 Cr.L.J. 1622 complaint to police by deceased
apprehending death at hands of accused two months before death was
admitted under section 32(1) Evidence Act. In case 1952 Cr.L.J. 1720 Ranjit
Singh v. State (H.P.). The prosecution had produced a letter written by the
deceased, three years before his death referring to certain incidents
indicating strained feelings between the husband and wife as well as the
diary of the deceased containing entries relating to the arrival and stay of
the paramour indicating what occurred during that period, and in case Alijan
Munshi Supra statement recorded under section 161 Cr.P.C. on 31-5-1958
though died on 31-7-1958 were held relevant as dying declaration. See also
1971 Cr.L.J. 1764 Mohinder Singh Nand Singh.

Evidentiary Value
It is an established principle of law that, “there is nothing in law to
prevent a Court from convicting the accused on the uncorroborated dying
declaration of the deceased provided the Court is of opinion that dying
declaration is true.” Kanhotty, 1960 Cr.L.J. 477. In K.R. Reddy, 1976 SC
1994 : 1976 Cr.L.J. 1547, it was held the dying declaration is undoubtedly
admissible under section 32 Evidence Act and it not being a statement that
its truth could be tested by cross-examination, the Courts have to apply the
strictest scrutiny and the closest circumspection to the statement before
acting upon it. While great solemnity and sanctity is attached to the words of
a dying man because a person on the verge of death is not likely to tell lies
or to concoct case so as to implicate an innocent person yet the Court has to
be on guard against the statement of the deceased being the result of either
tutoring, prompting or a product of his imagination. The Court must be
satisfied that the deceased was in fit state of mind to make the statement
after the deceased had a clear opportunity to observe and identify his
assailants and that he was making the statement without any influence or
rancour. Once the Court is satisfied that dying declaration is true and
voluntary, it can be sufficient to found the conviction even without any
further corroboration. “Made at the earliest opportunity and untutored–No
corroboration required. Raja Ram, 1978 Cr.L.J. 196 (All) . There is no
prescribed form for recording dying declaration so few omissions do not
matter. 1987 Cr.L.J. 875 Ranjit Singh . Precise description of all instruments
of offence, not given dying declaration cannot be disregarded 1987 SC 328.
See also Sudhu Kumar, 1990 Cr.L.J. 119 (All).”
It was held in Kaushal Rao's case 1958 SC 22 and Pompiah v. State of
Bombay, 1965 SC 39 that a truthful and reliable during declaration may form
the sole basis of conviction even though it was not corroborated. “See also
Lallubhai AIR 1972 SC 1776. If on the other hand, the cou rt after examining
the dying declaration in all its aspects and testing its veracity has come to
the conclusion that it is not reliable by itself and that it suffers from an
infirmity, then without corroboration it cannot form the basis of conviction.”
See Harbans Singh, 1962 SC 439 See Kishan Singh v. State, 1963 Punjab
170. For tests to be applied by the Court. In 1972 SC 945 Nirmal Singh
Magistrate got verified from doctor that deceased was in sense and fit to
make statement. No evidence to travel with deceased and no one was present
when it was recorded. Held that dying declaration was authentic. However, if
the dying declaration does not contain complete names and addresses of the
persons charged with the offence, even though may help to establish their
identity, is not of such a nature on which conviction can be based. It cannot
be accepted without corroboration Gopal Singh, 1972 SC 1957. In 1970
Cr.L.J. 335 (SC), Md Ekramul the dying declaration was not believed when
only weapon mentioned by deceased could not have caused injuries as
carried by accused when there were other weapons and when other
circumstances contradicted it.
Dying Declaration–Reliability–Dying declaration not bearing certificate
that deceased was in fit state of mind. Dying declaration could not be made
basis of conviction. Sitaram v. State of Rajasthan, 1998 Cr.L.J. 287 Raj.
Dying declaration–Recording of dying declaration should be short, concise
and to the points. It is certainly not desirable to have dying declaration in
cyclostyled form. A Naqappa Anagalkar v. State Karnataka, 1998 Cr.L.J. 584
Kant.
In Lallubhai, 1972 SC 1776 . Supreme Court laid special stress on the fact
that one of the important tests of the reliability of a dying declaration is that
the person who recorded it must be satisfied that the deceased was in a fit
state of mind, i.e., “making a conscious and voluntary statement with normal
understanding.” Held in Satya Narain, 1977 Cr.L.J. 1626 Magistrate must get
the certificate of doctor regarding mental state of the deceased.
In Darshan Singh, 1983 Cr.L.J. 1985. Supreme Court reversed the
judgment of the Punjab High Court as dying declaration could not be deemed
to have been made in a fit state of mind as medical evidence showed that
stomach, peritoneum and other vital organs were completely smashed.
Evidence lacking in showing that deceased was fit to make statement.
Deceased had 100% burns. Statement found to be materially discrepant.
Dying declaration was not relied upon. Swaran Singh v. State of Punjab,
1987 C.C. Cases 312. In case Harda 1989 Cr.L.J. 1068, the deceased’s
mouth, oesopliagus and pharynx were found choked with and full of food
particles, it was impossible for him to speak and hence the oral dying
declaration could not be relied upon.
Dying declaration, a housewife with 75% burn injuries having been
brought to hospital. Her dying declaration was recorded immediately after
administration of pethidine injection. It was held, her extreme pain militates
against the theory of her being unconscious immediately after injection.
Further, details of matrimonial estrangement in the dying declaration is a
guarantee of genuiness. Dying declaration was accepted and accused
convicted.
A part of the dying declaration found true can be acted upon and the
other part if can be separated from the rest can be rejected. If the dying
declaration as a whole recorded in circumstances which are free from
suspicion rings true, the Court would be fully justified to act upon it. 1974
SC 2188, 1988 Cr.L.J. 1313.
In 1983 Cr.L.J. 1020 Budia when no question was put to doctor that
deceased could not make a consistent and coherent statement, it was
believed as the deceased had named accused and all the circumstances
resulting in his death.
Similarly, a dying declaration, if recorded under suspicious circumstances
should not be acted upon without corroboration as held by Supreme Court in
1974 Cr.L.J. 361 Rashid Beg . In this case dying declaration was recorded
when deceased was serious and was losing consciousness and the enemy of
accused had accompanied deceased from spot to hospital and was present
when dying declaration was recorded.
In Abdul Majid, 1976 SC 1782. The Supreme Court believed the dying
declaration recorded by a doctor. “The doctor was best person to opine about
the fitness of the deceased to make the statement. Where the doctor found
that life was ebbing away and there was no time to call Magistrate or Police,
he was justified, indeed duty bound to record the dying declaration. He was
disinterested and a respectable witness.”
Dying Declaration–Reliability–Dying declaration explaining injuries
inflicted by accused found to be reliable–No inconsistency between testimony
of eye witness and dying declaration–Conviction of accused solely on the
basis of dying declaration proper. Bhola Turha v. State of Bihar, 1998
Cr.L.J. 1102 SC.
Dying declaration–Delay in recording–Delay as to declarant was not in fit
condition to make statement–Not a case where declarant tried to involve
persons who are unimical towards him–Declaration can be relied upon. G.S.
Walia v. State of Punjab & Other, 1998 Cr.L.J. 2524 SC.
Dying declaration cannot be discarded merely because the stipendiary
Magistrate who recorded the dying declaration took the thumb impression of
the deceased instead of signature due to injury on the hands and further the
declarant omitted to mention about the third culprit. Ashok Kanaujiya, 1989
Cr.L.J. (N.O.C) 79 (All.). Where no witness is present during recording of
dying declaration, no signature or thumb impression of victim taken, held, it
is not a dying declaration. Wahid 1980. Cr.L.J. N.O.C.) (All.).
Where the dying declaration was not attested by the persons present:
Statement not in exact language of maker, certificate of doctor showing she
was in sense absent; held, dying declaration observes no credence.
Surender, 1990 Cr.L.J. (N.O.C.) 170 (Del.).
Dying declaration is an exception to the bar placed on hearsay evidence.
It was held in [Link], 1985 Cr.L.J. 336 that safeguards provided
for reliance are:
(i) It is not a weak piece of evidence.
(ii) True and reliable can sustain a conviction without corroboration.
(iii) The one recorded by a Magistrate commands a higher degree of
reliance than that recorded by an Investigating Officer.
(iv) The Court should test credibility in the light of circumstances
like the opportunity to victim to observe his assailants; his capacity
to remember facts; his state of mind; the consistency if made on
several occasions; if made earliest; not result of tutoring or
interference.
Factors for not relying upon dying declaration are:
(1) as this was not tested by cross-examination. Ganda Singh, 1957
Cr.L.J. 240 (Raj.) and made in the presence of person affected. 1960
Cr.L.J. 1075 Kori v. State.
(2) as this was not made on oath.
(3) as the declaration was not in question and answer form, 1987 (3) Crimes 115.
(4) as the time of recording of the statement was not recorded, 1987 (3) crimes
115.
(5) as the Court had not the opportunity to see the demeanour of this
witness, 1955 Cr.L.J. 171 (M.B.) Gordhan.
(6) as the maker of it might be mentally and physically in a state of
confusion and might well be drawing upon his imagination while he
was making the declaration. See Ram Nath M.P. v. State of Madh
Prad., 1953 SC 420.
(7) as the capacity to remember facts might have been impaired. (Kori
Supra).
 So, the Court wants some corroboration of dying declaration as the
corroboration of dying declaration invests it with a stamp of truth which
goes long way towards inculpating the accused. 1956 Cr.L.J. 334 (SC) Abdul
Satar. In 1986 Cr.L.J. Prabhu Dayal, dying declaration was not supported by
scene of crime, there was no independent corroboration. Held doubtful, if
person making dying declaration survives then it cannot be used as
substantive evidence. Person will have to be produced in Court and the
alleged dying declaration can be used only as a previous statement made for
purposes of corroboration under section 157 Evidence Act Namdeo 1976
Cr.L.J. 871 and for purposes of contradiction under section 145 Evidence
Act; to corroborate testimony by the court, 1983 Cr.L.J. 218.
Dying declaration–Corroboration of–Corroboration not necessary if dying
declaration is found true–Deceased in exclusive police custody–No possibility
of tutoring or assault by other than policeman–Held, dying declaration is
true and can be accepted with corroboration. State of V.P. v. Ram Sagar
Yadav, AIR 1985 SC 416.
Section 32–Dying declaration–Validity–Finding by court that dying
declarations were acceptable–Statement would not lose the value on ground
that deceased died long after making dying declaration–Question has to be
considered on facts of each case. Najjam Faraghi v. State of W.B., 1998
Cr.L.J. 886 SC.
Murder–Dying Declaration–Reliability–Death of deceased due to burn
injuries–Her dying declaration that her mother-in-law poured kerosene over
her and burnt her–Said dying declaration recorded by doctor treating her
and attested by another doctor–Their positive statement that she was
conscious at time of giving the statement–Nothing to disbelieve their
evidence–Inference of her inability to speak–Cannot be drawn from mere fact
that she had 80% burns–Conviction based on said dying declaration was
proper. Kamlesh Rani v. State of Haryana, 1998 Cr.L.J. 1251 SC.
Presence of friends and relatives do not make a dying declaration tutored-
See Habib Usman, AIR 1979 SC 1181. Dying declaration in presence of
mother, being mother she is not expected to screen the real offender–Dying
declaration can be acted upon particularly when corroborated. Ashok Kumar,
1983 Cr.L.J. (N.O.C.) 147 (Del.).
Section 32–Conviction on dying declaration–If dying declaration was
clear, cogent and trustworthy and was a product of imagination and person
making it had not been tutored or promoted, same could be basis of
conviction. Shrilal v. State of M.P., 2010(2) Crimes 420 (MP).
Dying Declaration–It is well settled that an oral dying declaration can form basis of
conviction if the deponent is in a fit condition to make the declaration and if it is found
to be truthful. As a matter of practice court always look for corroboration to oral dying
declaration. Balbir v. Vazir & Others, AIR 2014 SC 2778.
Dying Declaration–Correctness and authenticity–In a case of dowry-death deceased
survived for another two-Three days after making the dying declaration. It can be
inferred that she was in a fit condition to make statement at the relevant time. Deceased
did not unnecessarily involve the other family members of the accused husband. It was
held that dying declaration has been recorded in accordance with the established
practice and procedures. After receiving the rukka at the police station, police officer
had rushed to the hospital & submitted application for recording the statement of the
deceased. Doctor issued a fitness certificate for recording the statement. Dying
declaration was recorded by the SDJM in his hand-writing after questioning the
deceased. It was held that truthfulness, correctness and authencity cannot be any
challenge in this case and admissible. Krishan v. State of Haryana, AIR 2014 SC 3612.
 Dying Declaration–Evidentiary value-Doctor on duty who attended the injured-If it is
of the opinion that death is likely to ensure, it is essential for him to immediately report
the case to the police-Police in turn should be alive to the need to record a
declaration/statement of the injured person, by pursuing a procedure which would make
the recording of it beyond the pale of doubt–Investigating officer is expected to alert the
jurisdictional magistrate of the occurrence-Jurisdictional magistrate should immediately
examine the injured on the certification of doctor that the injured is in a fit state to
make a statement. Ramakant Mishra @ Lalu etc. v. State of U.P., AIR 2015 SC 496.

Oral and Written

A Police Officer should also bear a distinction between oral and written
dying declaration. “In oral declaration, there is always likelihood of
exaggeration, and improvements depending upon the memory of witnesses
and the powers of reproductions by them. So, unless one is certain, about
the exact words uttered by the deceased no reliance should be placed upon
verbal statement of witnesses and the oral declaration made by the
deceased.” See Ram Nath Supra. It was held that before a verbal dying
declaration can be accepted, it should be at least be consistent. 1955 All.
189 Thakkar v. State. Signs made by the injured amount to verbal statement
(1956 Cr.L.J. 1240 V.M. Kana).
With this background in view, a police officer should take every
precaution to write a dying declaration so that it is accepted judicially.
There is no necessity that these statements should be recorded in
accordance with the provisions contained in section 164 Cr.P.C. The dying
declaration is admissible under section 32 Evidence Act which does not
require any technicalities or formalities to be observed. It can be oral even.
However, whether the degree of the credit to be attached to them will
depend upon the facts and circumstances of each case. See 1957 All. 177
Prem Narain v. State.
A dying declaration can form the basis of conviction provided it passes
the test of reliability and is not the result of tutoring. A dying declaration,
which has been recorded by a competent Magistrate and in proper form, i.e.,
in question-answer form and, as far as practicable in the words of the maker
stands on a much higher pedestal than a dying declaration recorded by a
police officer or a dying declaration which depends upon oral testimony of
the victim. Kalawati, 1994 Cr.L.J. 691 (Raj.)
A police officer should, however, keep the following in view:
1. This declaration was made soonafter the occurrence as possible under
the circumstances of the case and is couched in definite terms and is
not vague and discrepant and was made to proper person. There
should not be any delay in recording dying declaration. It was,
however, held in P.P. v. Sarola Gopala Rao, 1971 Cr.L.J. 536, the mere
delay is of no consequence unless it appears to the Court that the
delay has been made use of to induce or prompt or influence the
deceased to give a false statement.
2. That there was no chance of the deceased being led into making the
statement by interested persons and as such the version was not
tainted and the coloured one, and that it was not a tutored declaration.
3. That the deceased was in his sense to make the statement and could
speak under the circumstances. The extent of injuries will help in
determining this. Held in Lallubhai Devi Chand, 1972 Cr.L.J. 828 (SC).
the person who records a dying declaration must be satisfied that the
dying man is making a conscious and voluntary statement with normal
understanding. In Banka Naico, 1976 SC 2013 : 1976 Cr.L.J. 1556 ,
witness to dying declaration stating that deceased lying unconscious
had come to sense temporarily when water sprinkled and made
statement. The doctor stated that head injuries had congestion and
deceased might not have regained consciousness. Held there was no
 certainty that deceased made statement. Also contradictory with
medical evidence as no piercing injury was found.
Dying declaration–Vital organs completely smashed–Held, he was not
in fit state of mind and body to make declaration and it cannot be
relied upon. Darshan Singh, AIR 1983 SC 554.
4. If declaration is supported by the statement of independent and
respectable witnesses. For the purpose it is immaterial as to who has
recorded it or to whom it was made.
5. That his power of observation was not affected and he had seen
accused, Kori Supra.
The dying declaration should ordinarily and invariably be recorded. It is
always better if arrangement can be made to get the statement recorded by a
Magistrate. If it is not possible then the police officer should himself write it
in the presence of two or more reliable witnesses unconnected with the
police department and with the parties concerned in the case. It is always
prudent if possible to record the statement after the opinion and verification
of the doctor that the deceased was in his senses to make a lucid statement.
The doctor should also be present at the time of recording statement and
should sign it. In State of Haryana v. Harpal Singh , Supreme Court relied on
dying declaration when doctor said that he was fit to make statement. 1978
SC 1530 though pulse was weak and blood pressure high.
Dying declaration Magistrate obtained opinion of doctor about fitness of
deceased before recording dying declaration–Dying declaration recorded by
Magistrate, held, dying declaration recorded by competent Magistrate is on
better fooling than dying declaration upon testimony. Kishan Lal Sethi, AIR
1990 SC 1357.
Dying declaration recorded by Sub-Inspector in nature of F.I.R.–No
allegation from doctor taken to effect whether patient was conscious or not–
Failure to take signature or thumb impression of deceased. No other
evidence accept dying declaration which was of highly doubtful nature.
Maniram, 1994 Cr.L.J. 946 (SC).
If, however, witnesses are not available and there is risk of the injured
collapsing then that police officer should write it himself in the presence of
other police officer. In Rajindra Kumar v. State, 1960 Punjab 310, it was held
that statement of the deceased recorded under section 161 C.P.C. is
admissible under section 32(1) Evidence Act even though the deceased died
much later and was not in immediate apprehension of death when he made
the statement.
Dying declaration recorded by a police officer is admissible, but it should
be relied on if there was no time or facility available to the prosecution for
adopting any better method. It is not necessary, however, that dying
declaration recorded by police officer is untrustworthy. Dalip Singh, 1979
Cr.L.J. 700 (SC). But dying declaration recorded by police is not to be
encouraged, Sardar Singh, 1990 Cr.L.J. (N.O.C.) 142 (Del).
Further in Bishan Singh, 1969 P.L.R. 73, a statement recorded as dying
declaration by a police officer conducting the investigation if recorded after
the medical opinion as to person making the statement being in a fit
condition to make it would be as good as recorded by a Judicial Magistrate
provided there is nothing to doubt the veracity of the witness recording the
statement and record of the statement being true and correct as made by the
maker. Also see 1974 C.L.R.S.N.I : 1974 P.L.R. 84 Tarlok Singh and other
which is to the same effect.
In Jaswant Singh, 1978 Cr.L.J. 1869 dying declaration was recorded by
Sub-Inspector in the presence of doctor, Supreme Court held, “It is true that
a dying declaration not recorded by a Magistrate has to be scrutinized
closely, but it is well settled that Court is satisfied on close scrutiny of dying
declaration that it is truthful, it is open to court to convict the accused on its
basis without any independent corroboration.” In Tahal Singh Supra,
(Supreme Court relied on dying declaration recorded by Head Constable
(1978 Cr.L.J. 295). Held in 1970 Cr.L.J. 1081 that a dying declaration cannot
be said to be unsafe to convict merely because it is recorded by a Head
Constable and not a Magistrate. In Balak Ram v. State of U.P., 1974 SC 2165
: 1974 Cr.L.J. 1486, Supreme Court did not deem it prudent to rely upon
dying declaration recorded by Investigation Officer in case diary when
especially it was not signed by witnesss. The Supreme Court, further
deprecated the practice of writing dying declaration during investigation by
investigation officers of their own even though a doctor had signed it in
these words:
“The Investigating Officer who recorded that statement had undoubtedly
taken the precaution of keeping a doctor present and it also appears that
some of the friends and relations of the deceased were also present. But if
the Investigating Officer thought that Bahadur Singh was in a precarious
condition, he ought to have requisitioned the services of a Magistrate for
recording the dying declaration. Investigating Officers are naturally
interested in the success of the investigation and the practice of I.O. himself
recording a dying declaration during the course of investigation ought not to
be encouraged.
In Munnu Raja, 1976 SC 2199, victim in precarious condition.
Investigating Officer himself recording dying declaration without
requisitioning services of Magistrate. Practice held was bad and should not
be encouraged. But if Magistrate not available. Doctor on leave dying
declaration recorded by police. Held to be reliable 1985 Cr.L.J. 1988.
The victim closely related to the accused who lived next door to the
victim’s house. Victim severely assaulted in the midnight brought after day-
break to police station; while she was fully conscious she gave a dying
declaration detailing the motive of assault too; dying declaration accepted as
true and voluntary. AIR 1989 SC 543.
Victim when names the assailant, but does not say the name of his father
or residence, the dying declaration cannot form basis for conviction. Sudhir
Kumar, 1990 Cr.L.J. 119 (All).
Injured victim soon after being injured got the information as to who
inflicted the injuries diarised in police station; subsequently he died due to
subsequent infection of his injury, held, the statement is admissible as dying
declaration under section 32(1) as also as conduct under section 6 Evidence
Act Kulamani Sandha, 1991 Cr.L.J. 599 (Ori.).
Section 32–Dying declaration before Investigating Officer and doctor–
Found to be reliable and consistent as there was nothing to disprove same –
Medical evidence that deceased was in full senses and able to speak clearly
when brought to hospital–Thus, evidence to witness that he was under
influence of liquor could not be believed–Order to conviction of accused
upheld. Mange Ram v. The State Delhi Admn., 1998 Cr.L.J. 2269 SC.
Dying Declaration–Recording of–Must be generally in question answers
form–But fact that it consist of few sentences in actual words of maker
would not be a ground against to reliability. G.S. Walia v. State of Punjab,
1998 Cr.L.J. 2524 SC.
Dying declaration–Validity–Recording of dying declaration by Police
Official–Original thereof not found on record–Official who recorded it not
examined–Same hence not admissible–Entry in case diary as to said original
dying declaration could not be taken as evidence. [Link] v. State of
Punjab , 1998 Cr.L.J 2524 SC.
Dying declaration–Reliability–Death due to burn injuries–Deceased woman
telling everybody immediately after incident that accused had set her on
fire–Recording of dying declaration by Judicial Magistrate–Evidence of said
Magistrate showing that she was in fit condition to make statements–
Discrepancy in dying declaration regarding exact spot where she was set
ablaze neither affecting its credibility nor identity of accused was blurred
due to it. Value of dying declaration can be estimated from preceding
utterness of deceased of everybody concerned–Acquittal of accused by
rejecting said dying declaration, not proper. V. Paripurnachari v. State of
A.P., 1998 Cr.L.J. 4031 SC.
Dying declaration–Abetment of Suicide–Letters written by deceased–Wife
as disclosing circumstances under which she committed suicide–Are
admissible in evidence under section 32(1) Ram Kumar v. State of Madhya
Pradesh, 1998 Cr.L.J. 952 MP.
Dying declaration–Husband setting his wife on fire–Dying declarations by
her before doctor and Executive Magistrate found reliable and made in
conscious and fit state–Husband‘s conviction on that basis, valid. K.D. Mohan
lal v. State of Gujarat, 1997 Cr.L.J. 769 SC.
In 1979 SC 1173 Dalip Singh, it was held, when recorded by police it is
better to leave such dying declaration out of consideration until and unless
the prosecution satisfies Court as to why it was not recorded by Magistrate
or doctor. Further held in 1976 S.C. 2199, the practice of Investigation
Officer recording dying declaration during course of investigation ought not
be encouraged. However, in 1986 Cr.L.J. 306 Kachhwa dying declaration
recorded by police in presence of doctor, though made in local dialect, but
recorded in Hindi was believed though two respectables were not present.
Complaint in writing made to police expressing apprehension of death at
the hand of certain persons and the informant died subsequently may amount
to dying declaration, Mohinder Singh, 1971 Cr.L.J. 1764 . In another case,
death in police custody statement that police assaulted him would amount to
dying declaration. 1990 Cr.L.J. 2093.
A statement recorded under section 162 Cr.P.C. of a person who dies
subsequently will be deemed to be a dying declaration though not in
presence of doctor or Magistrate and only recorded by police during
investigation if it satisfied the test of section 32(1) Evidence Act, it is
relevant. Held so in Tellu 1988 Cr.L.J. 1062. In 1989 Cr.L.J. 157, Kaushalya,
dying declaration recorded by police was not believed when it was not
attested by any doctor, nurse or any of relations either of deceased or
accused. Statement was not even recorded in question or answer form.
However, Division Bench of Delhi High Court in Om Parkash, (1979) 15
D.L.T. 277 held that the fact that it was not in question and answer form did
not throw any doubt on it. The Sikkim High Court also held so in 1985 Cr.L.J.
1988, though it was held that it was desirable to be so. In Prem Kumar, 1989
Cr.L.J. 110, where dying declaration was in narrative form and in the words
uttered by deceased put in inverted commas was believed, though recorded
by Investigating Officer.
Dying declaration–A doctor is stated to be present at relevant time–
Certification regarding evidence of state of mind of injured has not been so
recorded–Mere stating that she was conscious will not meet requirement of
justice. Nirmal Singh v. State of Delhi, 2005 (5) CRJ 458.
Dying declaration–Admissibility depends–Conditions–Either such
statement should relate to cause of his death–Or it should relate to any of
the circumstances or transaction which resulted in his death. Teakon v. State
by Inspector of Police, Coimbatore, 2005 (1) CRJ 107.
Dying declaration–Appellant/Husbands of deceases alone convicted–Part
of dying declaration found false–Conviction of husband also set aside.
Kosipall Satyanarayana v. State of A.P., 2002(6) CRJ 544.
Dying Declaration–Assessment of–Consideration of–Validity of–
Justification of–Effect of–Held, as the statement recorded by Magistrate as
translated by doctor was narrated to deceased which she admitted there
cannot be any manner of doubt that whatever was stated by deceased was
correctly recorded by Magistrate in the dying declaration. Ravi Kumar @
Kutti Ravi v. State of Tamil Nadu, (SC) 2006(4) SRJ 30.
 Dying Declaration–Authenticity of–Appreciation of Evidence–Different
version–Inconsistency–No other material to corroborate dying declaration–
Justification of–Held, accused are entitled to benefit of doubt.
Mohansundaram v. Inspector of Police, Avadi, 2006(4) CRJ 557.
Dying Declaration–When a maker of the dying declaration dies, the
statement becomes admissible under section 32 of Indian Evidence Act. But
if he/she survives, then it is not a statement under section 32 of the Act but
a statement under section 164 Cr.P. C. Only–In that situation, it can be used
under section 157, of the Evidence Act for the purpose of corroboration and
under section 155 for the purpose of contradiction. Rati Ram v. State of
Haryana, 2005 (1) RCR (Cri.) 173 (P&D) Relied on State of U.P. v. Veer
Singh, AIR 2004 SC 4614.
In regard to dying declaration and the admissibility of such declaration
recorded by the police officers, the following propositions emerge; (1) A
dying declaration recorded during the course of investigation is admissible
in evidence; (2) It is better to leave such dying declaration out of
consideration until and unless the prosecution satisfied the Court as to why
it was not recorded by a Magistrate or doctor; (3) It is not prudent to base
the conviction on a dying declaration made to an Investigating Officer; (4)
The practice of the Investigating Officer himself recording a dying
declaration during the course of the investigation should not be encouraged.
Atul Gandhia, 1990 Cr.L.J. 1049, See also Jamiruddin Molla, 1991 Cr.L.J.
356, relying on Dalip v. State of Punjab, AIR 1979 SC 1173.
Section 32–Dying Declaration–Reliability–Complete variance in two dying
declarations recorded by a police official and another by Magistrate–
Conviction cannot be based on such dying declaration. Basanti Lal v. State of
Rajasthan, 1999 Cr.L.J. 4994 (Raj.).
Dying Declaration–A dying declaration can be oral or in writing and any
adequate method of communication whether by words or by signs or
otherwise will suffice provided the indication is positive and definite. Parbin
Ali v. State of Assam, AIR 2013 SC 542.
Dying Declaration–Any person can record dying declaration, but the
person who records a dying declaration must be satisfied that the maker is in
a fit state of mind and is capable of making such a statement–Moreover, the
requirement of a certificate provided by a doctor in respect of such state of
the deceased, is not essential in every case. If dying declaration suffers from
any infirmity, the court must look for corroboration of dying declaration.
State of MP. v. Dal Singh, 2013 Cr.L.J. 2983.
Dying Declaration–Recording of declaration recorded by Magistrate
5 hours after incident–There is no inordinate delay–No iota of evidence that
persons who were near the deceased when she made declaration and whom
she asked to leave, were her near relation–Deceased cannot be said to have
been tutored–Dying declaration not vitiated. Koli Chunilal Sauji v. State of
Gujarat, 1994 Cr.L.J. 4582 SC.
Dying Declaration–Credibility–Declaration recorded by Magistrate–No
endorsement by doctor indicated that deceased declarant was in a fit
condition–Doctor not examined–Merely on that score declaration cannot be
held untruthful. Koli Chunilal Sauji v. State of Gujarat, 1999 Cr.L.J. 4582 SC.
Dying Declaration–Recording of doctor at end of certificate only stated
that “patient is conscious while recording the statement–Absence of
certification that injured was in fit state of mind at time of making
declaration–Makes dying declaration unacceptable–Opinion by Magistrate
recording declaration that injured was in fit state of mind at time of making
declaration cannot be relied upon. P. Rosamma v. State of A.P., 1999 Cr.L.J.
4321 SC.
Dying Declaration–Admissibility–Statement by parents of deceased that
deceased was not mentally sound–Court cannot ignore said evidence. Dandu
Laxmi Reddy v. State of A.P., 1999 Cr.L.J. 4287 SC.
 Dying Declaration–Reliability–Oral dying declaration alleged to be made
by deceased before her father, uncle and grand-mother–Names of accused
mentioned therein–However, she could not mention name of any accused in
second dying declaration made before Magistrate 5 days thereafter–Ground
that she could not recognize any because of fire darkness coming in her
eyes–Said dying declarations not only giving his conflicting versions but
there was inter se discrepanies in depositions of witnesses given in support
of oral dying declaration–Conviction of accused on basis of said dying
declaration–Liable to be set aside. Kishan Lal v. State of Rajasthan, 1999
Cr.L.J. 4070 SC.
Dying Declaration–Circumstances clearly showing that the deceased was
not free person at time of recording first dying declaration–Reasons given
for not considering first dying declaration cannot be regarded as untire
merely because it is contrary to her statement made earlier. Harjit Kaur v.
State of Punjab, 1999 Cr.L.J. 4055 SC.
Sections 162 and 164 Cr.P.C. section 32(1) Evidence Act–Dying
Declaration–Person making it surving an giving evidence–Declaration of
made before Magistrate can be used to corrobotrate or contradict his
testimony. Ramprasad v. State of Maharashtra, 1999 Cr.L.J. 2889 S C.
Section 32(1)–Statement “as to circumstances of the transactions which resulted in
death”–There need not necessarily be direct nexus between “circumstances” and death–
Statement of deceased before her death that accused was standing with gun–
Subsequently turning out to circumstance of transaction which resulted in her death–
Such statement is admissible under section 32(1). Rattan Singh v. State of
Himachal Pradesh, 1997 Cr.L.J. 833 SC.
Section 32–Dying Declaration–Validity–Oral statement by deceased made
before Head Constable–His thumb impression, however, obtained on blank
paper–Later said paper filled up–Evidence of other witness that said
statement could not be prepared at time alleged–Said document received by
Magistrate only on next day when deceased was in conscious state–Such
document would not be reliable. Subramaniam v. State, 1997 Cr.L.J. 3540
Mad.
Dying Declaration–Credibility of–First dying declaration recorded by
police immediately after deceased gained conscious men after attack–Names
of all accused not given in such dying declaration–Second dying declaration
recorded by Magistrate after half-an-hour later–Names of all accused stated
in second dying declaration–No evidence to show that in between recording
of two statements anyone was allowed to go near the deceased–Further
details as given in second dying declaration can not be treated as an
improvement over first one. P. Ravi Kumar v. State of A.P., 1997 Cr.L.J. 3505
SC.
Dying Declaration–Validity–One of the accused falsely implicated–Dying
declaration cannot be accepted against another co-accused. State of
Maharashtra v. U.K. Dhage, 1997 Cr.L.J. Bom.
Dying Declaration–Validity–Dying declaration recorded in form of F.I.R.
and emergency police register–Discrepancies recorded by mentioning that
entries contained therein were made pursuant to information furnished by
informant–Evidence of witness to whom oral dying declaration was made–Not
credible and trustworthy–All dying declarations not inspiring confidence–
Cannot be relied upon. 1997 Cr.L.J. 2377 (Bom.)
Section 32–Dying Declaration–Recording of in question answer form–Not
always necessary–Dying declaration, if otherwise found to be reliable and
trustworthy–Cannot be discarded on mere ground that it was not recorded in
question answer form. Ramdhar v. The State, 1997 Cr.L.J. 292 Delhi.
Dying Declaration–Reliability–Victim sustaining gun shot admitted in
hospital–Police Head Constables taking statement from victim for purpose of
registering a case–No intention then to record dying declaration–
Requisitioning services of Magistrate–Death of victim–Statement recorded by
Head Constable could be relied as dying declaration. Bhagirath v. State of
Haryana, 1997 Cr.L.J. 81 SC.
Dying Declaration–Death by burning–Accused husband alleged to have
poured petrol on body of his wife and lit fire–Extensive burn injuries
sustained by deceased wife–Oral dying declaration made to her mother
cannot be accepted–Absence of certificate showing deceased to be medically
fit to make statement–Dying declaration recorded by doctor cannot be relied
upon–Conviction of accused not proper. State of Orissa v. Parasuram Naik,
1999 Cr.L.J. 4404 SC.
Murder by setting deceased on fire–Dying declaration of two victims
recorded by Magistrate corroborating each other–Evidence showing that
declarants were conscious and able to make statements–Evidence of
witnesses regarding manner of incident and name of accused corroborating
each other–Medical evidence also corroborating testimony of witness–
Identification of accused established–Conviction of accused for murder is
proper. Sabir Mohd. Syed v. State of Maharashtra, 1997 Cr.L.J. 4416 SC.
Section 32–Dying Declaration–Recording of by Special Executive
Magistrate–It was not in his hand but was written by one constable as it was
difficult to write with his trembling hand–Merely because said fact is not
mentioned in dying declaration it cannot be regarded as suspicious–Moreso
when it bears signature of the doctor and also that of Executive Magistrate.
Shripatras v. State of Maharashtra, 1999 Cr.L.J. SC.
Dying Declaration–Recording of by Magistrate in presence of doctor who
opened that deceased was in fit condition to make statement–No reason
advanced why it should not be acted upon–Such declaration must be held to
be voluntary and truthful one can be relied upon without any corroboration–
Moreover, when evidence of eye-witnesses fully corroborates truthfulness of
dying declaration. Chandra Narain Yadav v. Shibjee Yadav, 1999 Cr.L.J. 5009
SC.
Section 32–Dying Declaration–Conviction based on dying declaration–Two
dying declarations of deceased in writing and one oral–Written dying
declarations were one recorded by police and second by Executive
Magistrate–According to police, the medical officer examined the patient and
opined that she would be able to giver her statement–Inconsistency between
two dying declaration in so far as manner in which appellants entered in the
house–Both dying declarations, however, consistently revealed that deceased
maintained same story as regards acts of Appellant No. 2 and 3–Facts of the
case showed that victim was middle aged woman who had no reason to
commit suicide or spare the real culprits–Both the dying declarations are
quite truth bearing and acceptable. Sarubai w/o Laxman Bhokare v. State of
Maharashtra, 2008(2) Cr.L.J. 1866 (Bom.).
Section 32–Dying Declaration–Credence and reliability–Statement
admissible whether death is homicide or suicide provided statement related
to cause of death–The credence and the relevance of the dying declaration is
admissible only when the person making such statement is in hopeless
condition and expecting imminent death. Section 32 is an exception of rule of
hearsay and makes admissible the statement of a person who dies whether
the death is homicide or suicide. A dying declaration does not cease to be
one just because death took place 24 days after the incident. The Court has
always to be on guard to see that the statement of the deceased is not the
result of either tutoring or prompting or a product of imagination. The court
has also to see and ensure that the deceased was in a fit state of mind and
had the opportunity to observe and identify the assailant. The rule requiring
corroboration is merely a rule of prudence. Smt. Shyam Pyari v. State of
U.P., 2010(1) Crimes 980 (All.).
Section 32–Dying declaration–Admissibility–Plea of appellants that
alleged dying declaration which was given the shape of an F.I.R. could not be
made basis of conviction when original document signed by deceased was not
brought on record. Evidence of doctor showed that condition of deceased
was good and that he was in a position to speak–Even though original
document signed by deceased was not brought on record, but F.I.R. had
rightly been admitted as a dying declaration. Dharam Pal v. State of U.P.,
2008(1) Crimes 201 (SC).
Section 32–The principle underlying admissibility of dying declaration is
reflected in the well-known legal maxim, “ Nemo moriturus praesumitur
mentire”, i.e., a man will not meet his maker with a lie in his mouth. A dying
man is face to face with his maker without any motive for telling a lie. Vikas
v. State of Maharastra, 2008(1) SCC (Cri.) 486.
Dying Declaration–Bride burning–Kerosin oil poured by mother-in-law and
set the deceased on fire–Deceased suffered 100% burn injuries–Such a
petient can also be in a fit mental and physical condition to give statement.
Kaliya v. State of MP, 2013(3) ALT (SC) 302.
Veracity and truthfulness of the dying declaration suspected–Considering
the fact that the statement of the deceased has vacillated, there was no
evidence about the fitness of mind of the deceased to make the dying
declaration including the presence of the doctor, hence, the veracity and
truthfulness of that dying declaration remains suspected. Naresh Kumar v.
Kalawati, AIR 2021 SC 1605.
Hear say not admissible in evidence–Bhajani Pradhan (P.W.5) is his wife.
When he returned home about two years prior to her deposition, P.W.5
informed him that she saw accused Gandharba fled away killing Tuna Behera
which she witnessed while returning back from bathing. Any statement made
by P.W.5 to her husband (P.W.6) is hear say and not admissible in evidence.
Gandhia alias Gandharba alias Debraj Sahoo v. State of Orissa, 2021 Cr.L.J.
2756 (Ori.).
Dying Declaration–Conviction on basis of dying declaration–Two or more
dying declarations of deceased recorded–Held that where there are multiple
dying declarations, each dying declaration has to be separately assessed and
evaluated and assess independently on its own merit as its evidentiary value
and one cannot be rejected because of certain variation in the other. Ashabai
v. State of Maharashtra, AIR 2013 SC 341.
Dying declaration–Conviction on basis of uncorroborated dying
declaration–Scope of section 32(1) of Evidence Act has been discussed—
(a) By enacting section 32(1) in the Evidence Act, the legislature has
accorded a special santity to the statement made by a dying person as
to the cause of his own death–This is by virtue of the solemn occasion
when the statement is made.
(b) When the statement is made at the earliest opportunity without any
influence being brought on the dying person, there is absolutely no
reason to take any other view for the cause of his or her death.
(c) The statement has to be accepted as the relevant and truthful one,
revealing the circumstances which resulted into his death.
(d) Absence of any corroboration cannot take away its relevance.
Hiraman v. State of Maharashtra, 2013 Cr.L.J. 2191.
Dying Declaration–Dying declaration recorded by ASI of Police–It is not
obligatory that either an Executive Magistrate or a Judicial Magistrate
should be present for recording a dying declaration–It is enough that there is
evidence available to show that the dying declaration is voluntary and
truthful. Surinder Kumar v. State of Punjab, 2013(1) [Link] 437.
Dying Declaration–Mere presence of some close relatives of deceased at
the time of recording statement would not affect credibility of declaration–
Claim that there was wrong description of names in dying declaration, not
material contradiction which would affect prosecution case. Rakesh v. State
of Haryana, 2013(3) [Link] 793 SC.
 Dying Declaration–Two dying declarations made by deceased–Minor
variation in both dying declarations–Both dying declarations holding husband
reponsible for death of deceased–However, in first dying declaration, reason
stated to be husband’s demand for gold and desire to marry her sister
whereas in second dying declaration unsatisfied greed for gold and land was
stated as motive–Whether such minor variation vitiates the case of
prosecution–Held, deceased suffered 91% burns–In such condition she
cannot be expected to give verbatim statement every time–Such minor
discrepancy can be ignored–Facts were corroborated by statements of
brother and mother of deceased. Hiraman v. State of Maharashtra, 2013
Cr.L.J. 2191.
Dying Declaration can be recorded by any (i) Magistrate, (ii) Doctor
(iii) Respectable person, (iv) Village official, (v) Police, dying declaration can
be orally made to any.
The persons present at the time of recording dying declaration and the
deceased should all sign the statement or thumb mark it, (Section 162
Cr.P.C. does not cover it). The police officer recording the statement should
sign and give date and time underneath. See for reference Punjab Police
Rules 25.21 and also give certificate.
In the case diary about dying declaration or F.I.R. if it is not based on the
statement of the deceased, mention should always be made of the persons
present when the police officer recorded it whether the police officer, asked
the relations of the deceased and those interested in him to go or allowed
them to remain there (they should not be there) whether the deceased could
speak coherently or with breaks. It was held in Ganda Singh Supra that mere
presence of relatives cannot be considered a ground for suspicion because it
is but natural that friends and near relatives must reach the injured person
as soon as information is received. Sometimes it so happens that the maker
of the dying declaration dies while the statement if being recorded and as
such it remains incomplete. This incomplete dying declaration may under
many circumstances be very clear about the culprits and their actions but
many a time it may be very vague, incoherent and not definite. Privy Council
in Cyrit Wariah v. The King, 54 C.W.N. 503, at page 507 observed that, “the
dying declaration was inadmissible because on its face it was incomplete and
no one could tell what the deceased was about to add.” But it was in 1956 SC
168 Abdul Sattar v. State of Mysore . “In a murder case if the dying
declaration even though the same was incomplete by reason of the deceased
not being able to answer further questions in his then condition, the
statement so far as he went to incomplicate the accused in the affair quite
categoric in character and definitely indicated that it was the accused who
had shot the deceased.” Similarly, in Muniappan’s case 1962 SC 1252 , where
dying declaration was complete in that it made a clear accusation against the
accused but the thumb impression of deceased was got on it after his death,
it was held to be admissible.
Dying declaration should always be recorded in the words used by the
deceased making it. If questions are put, the form and the words of the
questions must be given. It is not fair to translate the statement in other
language and then write it. This question came up in 1957 Bombay 223.
Shirnath Durga Parshad v. State . In this case Sub-Inspector was questioning
Sushila Bai deceased in Hindi. He himself knew Hindi. Deceased was making
replies in Hindi. The Sub-Inspector recorded it in English and read it over
after interpreting it in Hindi. Held this statement was not admissible under
section 32 Evidence Act. In Bakhshish Singh, 1957 SC 904 Justice Kapur ,
held that in Punjab, recording of dying declaration in Urdu though made in
Punjabi was a common practice and as such dying declaration could not be
rejected.
The dying declaration should be in question and answer form. For,
otherwise it is difficult to know to what extent the answer has been
suggested by the question put. Further, exact statement is necessary. AIR
1986 SC 250.
In another case, where doctor recording dying declaration on being
satisfied that victim lady suffering from 90% burn injuries was able to talk,
this recording was made in answer to question put with a view to record the
history of the case and as such it was not in question, in answer form, it was
held, no infirmity, conviction on this dying declaration unexceptionable.
Padmasen Shamal bhai Patel (1991) 1 Crimes 349 (SC).
Leading questions can be put by Investigation Officer as dying
declaration cannot be rendered incompetent by being made in response to
leading questions (Phipson in his Evidence (9th Edition page 333). Halsbury
in volume 9 on page 452 in paragraph 771). However, in leading questions,
its form must be given by I.O. that the effect of answer may be appreciated
by Court. The nods in reply are also admissible and should be clearly given.
It was held in Gajendra Kar., 1973 Cr.L.J. 1058, a dying declaration may be
made by signs and gestures in answer to questions when the declarant is
unable to speak. The Investigating Officer, however, should refrain from
recording lengthy statement in dying declarations as giving a long detail of
motive and other incidents prior to actual assault. These should not be
included in dying declaration unless absolutely necessary to make a
statement coherent or complete. A dying declaration where the name of
culprit is suggested to the dying man and he nods, it is difficult to believe
that the dying man approved of the suggestion. Thus, one Imtiaz, known to
the dying man took the man from his house. The dying declaration stated
that the man who had taken him from his house had stabbed him. Although
Imtiaz was known, his name was not uttered. The wife of the victim
suggested if it was Imtiaz. The victim assented by nodding his head. Such a
dying declaration, it was held, cannot inspire confidence Imtiaz (1986) 2
Crimes 23 (Del.). So, doctor’s evidence about inability to talk may not be
conclusive. Dulu Gogoi, 1991 Cr.L.J. 199 (Gau). Victim inconscious as per
doctor dying declaration is of no use. Musaddar Ali, 1990 Cr.L.J. 1333. In
Bakhsish Singh v. State of Punjab Supra . It was held by Hon’ble Justice
Kapur that object of a dying declaration was to get from the person making
the statement, the cause of death and of the circumstances of the transaction
which resulted in death. When the dying declaration is a long document and
it is a narrative of large number of incidents which happened before the
actual assault, such long statements being more in the nature of F.I.R. than
recital of the cause of death or circumstances resulting in it are likely to
give the impression of their being not genuine or having been made unaided
and without prompting.”
The dying declaration recorded in case Jayaraj, 1976 SC 1519, 1976
Cr.L.J. 1184 was brief but clear as to who had stabbed him. Held the very
brevity of the dying declaration in the circumstance of case, far from being a
suspicious circumstances was an index of its being true and free from the
taint or tutoring.
Even if the dying declaration is in detail, it does not mean that it is
fabricated or a suspicious document. Held in Tehal Singh Supra, “The details
contained in any statement depend upon the capacity for observation of the
person making the statement, the condition of person at the time of making
statement, the anxiety to mention details and the manner in which questions
are put and answer elicited.”
For a dying declaration law does not require that the maker must cover
the whole incident or narrate the case history. But the whole of the
statement made by the victim must be laid before Court. Munnu Raja, AIR
1976 SC 2199.
In Swaran Singh v. State of Punjab, 1987, Recent Laws 87, the dying declaration ran
into 1½ typed pages. There were changes and cuttings in the document. Deceased was
having multi-fractures in the posterior half of scalp. Death due to subdural
haemohrrage. Deceased was semi-conscious when examined by doctor who later
declared him fit to make statement. Held circumstances threw doubt on dying
declaration which smacks of concoction and fabrication in order to make present case
fool proof Appellant acquitted.
In Surat Singh, 1977 Cr.L.J. 347 (SC) the victim made two dying
declarations second containing details which first did not, held, no infirmity.
Where there are three dying declarations one before the constable who
reached the police officer and took the victim to dispensary, second before
Magistrate, third before Sub-Inspector of police first two accompanied by
medical certificate showing the deceased in a fit state to talk, third
corroborating the first no evidence of the deceased being tutored by
relatives, held, the declarations are sufficient for conviction Jorubha Juzar
Singh v. State of Gujarat, AIR 1980 SC 358. More than one dying
declarations if not inconsistent can be relied upon as evidence in the case.
Ganpat Mahadeo Mane, AIR 1993 SC 1180, See also 1994 Cr.L.J. 145 (SC).
A newly wed bride died of second to third degree burns at 10.30 p.m.,
before death she made three dying declarations, first at 9.30 a.m. before the
doctor, recorded in medico-legal case register, second before S.I. of police at
10.30 a.m. In the third before Sub-Divisional Officer at 10.50 a.m. In the
first entire guilt namely getting her burnt thrust upon her husband alone, in
the second she cast blame upon husband’s brother alone absolving the
husband, last in a cocktail of stones, held, no reliance is to be placed,
accused acquitted Edward John, 1991 Cr.L.J. 310 (Del).
In case there are more than one dying declarations of the deceased
witness, then it is so to be seen if they are consistent. In case deceased is
changing, it appears that these are tutored. Even to rely upon first dying
declaration, there should be adequate and convicting corroborative evidence.
1973 Cr.L.J. 1295. In re Narayana Swami, held the crucial test in all cases of
plurality of dying declarations in whether the deceased’s version is proved to
be false in respect of the integral portion of the case.
A housewife with 95% burn injuries on whom morphia has been injected is
alleged to have made a dying declaration, but the document is not signed but
only thumb impression by the victim, a literate and educated lady and no
reason is assigned as to why her thumb impression was taken and further
when it is not recorded in question and answer for the dying declaration
cannot form basis for conviction. Amrik Kaur, 1990 Cr.L.J. (N.O.C.) 10 (Del).
Dying declaration substantially corroborated by medical evidence and
eye-witnesses held, it cannot be discarded for not giving precise description
of instruments of offence and manner of injuries Dalbir Singh AIR 1987
1328.
A dying declaration can be made on tape recorder. A shopkeeper having
heard that a lady was being burnt rushed to her and got her version tape
recorded. She implicated her husband, tape recorded version used as dying
declaration and relying on that and a truthful extra-judicial confession.
Conviction of husband upheld. Poopu Swamy, (1991) 1 Crimes 190 (Mad.).
Dying declaration–Mental state of declarant–Evidence showing that
declarant was in fit mental state –No attempt made to cross-examine doctor
to show that her condition was not proper –Her declaration cannot be faulted
on ground that she was unable to speak. Jai prakash v. State of Haryana,
1999 Cr.L.J. 837 SC.
Dying Declaration–Statement given by informant to Investigation Officer
and also F.I.R. lodged by him –Is not admissible as dying declaration under
section 32 of Evidence Act. Sukhar v. State of U.P., 2000 Cr.L.J. 29 SC.
Dying Declaration–Conviction can be based on dying declaration if found
doubtful–Deceased not in fit mental condition and no certificate obtained to
that effect–Conviction on basis of such evidence could not be sustained.
Gokul Singh v. State of M.P., 2000 Cr.L.J. 1283 MP.
 Statement by deceased–Not required to have been made in imminent
expectations of death so as to be admitted in evidence. Kans Raj v. State of
Punjab, 2000 Cr.L.J. 2993 SC.
Dying Declaration–Admissibility of–Statement that it was by police officer
cannot be challenged on ground that it was recorded by Investigating
Officer–Police officer did not possess capacity of Investigation Officer as
investigation had not commenced by them. Gulam Hussain v. State of Delhi,
2000 Cr.L.J. 3949 SC.
Section 32–Statement of Prosecutrix about incident of rape recorded by
police after 11 days from date of Occurrence –She committed Suicide after
more than five and half months –Prosecution not directly stating any fact
regarding cause of death –Statement of prosecutrix cannot be treated as
dying declaration as it was not in series of circumstances of which resulted
in death of deceased. Sudhakar v. State of Maharashtra, 2000 Cr.L.J. 3490
SC.
Section 32–Dying Declaration–If court is satisfied that dying declaration
was true and voluntary it could be sufficient to found conviction even
without corroboration. Shekh Ram Yadav v. State of M.P., 2012(1) Crimes
503.
Section 32–Dying Declaration–If after careful scrutiny, the court is
satisfied that it is true and free from any effort to induce the deceased to
make a false statement and if it is coherent and consistent, there shall be no
legal impediment to make it the basis of conviction, even if there is no
corroboration. Satish Ambanna Bamsode v. State of Maharastra, AIR 2009 SC
1626.
Section 32–Dying declaration–Alleged dying declaration made before
witnesses not corroborated by F.I.R. No medical evidence of fitness of mind
to make dying declaration. Not safe to base conviction on such dying
declaration. Waikhom Yaima Singh v. State of Manipur, 2011(2) Crimes
187(SC).
Section 32 read with section 164 Cr.P.C.–When a man survives after
recording a statement, it cannot be treated as dying declaration–However, it
can be treated as a statement under section 164 Cr.P.C. S. Anil Raja v. State
of Tamil Nadu, 2010(3) Crimes 320 (SC).
Section 32–Dying Declaration–This is a case where the basis of conviction
of the accused is the dying declaration. Though dying declaration is entitled
to great weight, it is worthwhile to note that the accused has no power of
cross-examination. Such a power is essential for eliciting the truth as an
obligation of oath could be. This is the reason the court also insists that the
dying declaration should be of such a nature as to inspire full confidence of
the court in its correctness. Smt Shakuntala v. State of Haryana, 2007(3)
Crimes 265 (SC).
Section 32–Dying Declaration –The Court has summed up the principles
governing dying declaration as under:—
(i) There is neither rule of law nor of prudence that dying declaration
cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true and
voluntary the conviction can be based on it, without corroboration.
(iii) The Court has to scrutinise the dying declaration carefully and must
ensure that the declaration is not the result of tutoring, prompting or
imagination. The deceased had opportunity to observe and identify
the assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious it should not be acted upon
without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying
declaration, the evidence with regard to it is to be rejected.
 (vi) A dying declaration which suffers from infirmity cannot form the
basis of conviction.
(vii) Merely because a dying declaration does not contain the details as to
the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be
discarded. On the contrary, the shortness of the statement itself
guarantees truth.
(ix) Normally, the Court in order to satisfy whether deceased was in a fit
mental condition to make the dying declaration look up to the medical
opinion. But where the eye witness has said that the deceased was in
a fit and conscious state to make this dying declaration, the medical
opinion cannot prevail.
(x) Where the prosecution version differs from version as given in the
dying declaration, the said declaration cannot be acted upon. Vikas v.
State of Maharashtra, 2008(1) Crimes 288 (SC).
Dying Declaration–Death declaration was recorded by the police officer. It was held
that the court must be satisfied that the deceased was in a fit mental condition to make
the dying declaration and the statement was faithfully recorded and was otherwise
reliable. Absence of certification by the doctor as to fitness of mind of the declarant-
Same can be relied upon. Tejram Patil v. State of Maharashtra, AIR 2015 SC 328.
Dying declaration–Admissibility of dying declaration–Court have to be very careful
while analyzing the truthfulness, genuiness of the dying declaration. There are certain
guidelines while considering the dying declaration—
(1) Dying declaration can be the sole basis of conviction if it inspires full confidence
of the court.
(2) The Court should be satisfied that the deceased was in a fit state of mind at the
time of making the statement and that it was not the result of tutoring,
prompting or imagination.
(3) Where the Court is satisfied that the declaration is true and voluntary, it can
base its conviction without any further corroboration.
(4) It cannot be laid down as an absolute rule of law that the dying declaration
cannot form the sole basis of conviction unless it is corroborative. The rule
requiring corroboration is merely a rule of prudence.
(5) Where the dying declaration is suspicious, it should not be acted upon without
corroborative evidence.
(6) A dying declaration which suffers from infirmities, such as the date of deceased
was unconscious and could never make any statement cannot form the basis of
conviction.
(7) Merely because a dying declaration does not contain all the details as to the
occurrence, it is not to be rejected.
(8) Even if it is a brief statements, it is not to be discarded.
(9) When the eye-witness affirms that the deceased was not in a fit and conscious
state to make the dying declaration, medical opinion cannot prevail. Umakant &
Anrs. v. State of Chhattisgarh, AIR 2014 SC 2943.
Dying Declaration–In this case there was death of two person in one transaction. The
question involved was that whether two death which had taken place in the same
transaction and circumstances of the transaction resulting in one death was closely
interconnected with the other death be admissible before law. It was held that such
statement was admissible. Tejram Patil v. State of Maharashtra, AIR 2015 SC 328.
Dying Declaration–The dying declaration can be oral or in writing and any adequate
method of communication whether by words or by signs or otherwise will suffice,
provided the communication is positive and definite-Court must examine the dying
declaration with proper structure of its truthfulness and correctness and made in a
conscious state of mind and further it was without any influence-Dying Declaration
should not be mechanically relied upon. Vijay Pal v. State (GNCT) of Delhi, AIR 2015 SC
1495.
 Dying Declaration–Dying declaration recorded by Naib Tehsildar in the presence of
medical officer-Medical officer of the hospital was present at the time of recording of
dying declaration and we made the endorsement that the patient was in a fit condition
to make it-It was held that dying declaration was voluntary and truthful. Harish Kumar
v. State of Haryana, AIR 2015 SC 662.
Dying Declaration–There were two witnesses who were present when victim gave
oral dying declaration in the hospital before he succumbed to the injuries. There is a
consistency in their statements, both stated that they reached the house of Darsin Bai
on hearing of voice “save save....” the three eye-witnesses have positively stated that
the deceased was speaking when they had met soon after the incident. The victim had
died two days after the incident. It was held by the court that in the face of this positive
evidence just assume that the injured must have become unconscious and speechless
because of the injuries and discard on such assumption that the dying declaration
deposed to by the independent witnesses corroborated by the promptly lodged FIR.
Darsin Bai @ Shanti Bai v. State of Chhattisgarh, AIR 2015 SC 825.
Dying Declaration–Admissibility of a dying declaration–It must be judged and
appreciate in light of the surrounding circumstances–It is settled law that dying
declaration can be made the sole basis of conviction and it does not require any
corroboration. It is equally true that dying declaration goes against the cardial principle
of law that “evidence” must be direct. State of Maharashtra v. Hemant Kawadu
Chauriwal etc., AIR 2016 SC 287.
Dying Declaration–The issuance of the guidelines is for the purpose of ensuring and
for testing the genuineness of the dying declaration of the person who is in the last
moment of his life. If the dying declaration recorded is otherwise proved by ample
evidence, both oral as well as documentary, on the ground of such trivial defects, the
whole of the dying declaration cannot be thrown out. Narender Kumar v. State of NCT
of Delhi, AIR 2016 SC 150.
Dying Declaration—Once the dying declaration is found reliable, trustworthy and
consistent with circumstantial evidence on record, such dying declaration by itself is
adequate to bying home the case against the accused. Mumtaz @ Mumtyaz v. State of
U.P., AIR 2016 SC 3151.
Dying Declaration–Deceased categorically stated that he was uncounscious at the
time he was admitted in the hospital at 12.45 pm–However SDM recorded his statement
on the same day at 10.45 pm–the absence of certificate of the doctor on duty. It was
really very hard to believe that the deceased who was unconscious in the noon, regained
consciousness in front of SDM that too in the absence of certificate of the duty doctor
that the patient is fit to make a statement. It was held that when a dying declaration is
suspicious it should not be acted upon without corroborative evidence. Pankaj v. State
of Rajasthan, AIR 2016 SC 4150.
Dying Declaration–Statements made by deceased and recorded by the Head
Constable. There is no specific proforma to record the statement. Statement can be
recorded without obtaining a certificate of fitness of the declarant by a medical officer–
Statement necessarily depends on the facts & circumstances of each particular case-
Conviction based not only the statements made by the deceased but also on the un-
shattered testimony of the eye-witness as well as independent witness. Gulzari lal v.
State of Haryana, AIR 2016 SC 795.
Dying Declaration–Sole basis of conviction. It was held that (i) law does not
prescribe any format for recording dying declaration (ii) it also does not prescribe any
specific authority to record it unless any special law or rule is enacted to that effect. No
such rule was brought to the notice of the courts. Perfectly working and neatly
structured dying declaration at time brings out an adverse impression and creates
suspicions in the mind of the court since the dying declaration need not be drawn with
mathematical precision...All that the law requires is that the declarant should be in a fit
state of mind and be able to recollect the situation resulting in the available state of
affairs in relation to the incident and the court should be satisfied that the reliance
ought to be placed thereon rather than distrust. In this case, the Inspector concerned,
before recording the statement had got the deceased medically examined by the doctor
and after getting fitness of mind by doctor, recorded the dying declaration. The
deceased died 10 days after the incident and the statement could have been recorded
by magistrate have no value-No requirement of law. Sharma v. State of Haryana, 2017
(2) JT 224.
Dying Declaration–A dying declaration is an important piece of evidence if found
veracious and voluntary, could be the sole basis for conviction if it was found to be
voluntary and made in fit mental condition it can be relied upon even without any
corroboration. Mukesh & Anr. v. State of NCT of Delhi, AIR 2017 SC 2161.
Dying Declaration–Death by burn injuries due to acid attack. Held death of the
victim on account of burn injuries suffered by the deceased due to acid attack gets
corroborated not only from the statement of doctor who attended her in the hospital but
also from the statement of the doctor who conducted post mortem examination and
opined that the deceased had died of shock and sepsis. Inspector did make an attempt
to record the dying declaration of the victim but the medical officer advised him that
there was no need to record the dying declaration as the patient was recovering. This
facts got corroborated. In the circumstances of the case, the statement of the victim,
given by her in FIR should be treated as her dying declaration. Suresh Chandra Jana v.
The State of West Bengal, 2017(8) JT 119.
Dying Declaration–It was held that the rule of admissibility of dying declaration is no
more res integra. In the adjudication of criminal case, dying declaration plays a crucial
role. A dying declaration made by a person as to cause of his/her death in cases, in
which cause of death comes in question, is relevant under section 32 of the Evidence
Act. It has been emphasized number of times that dying declaration is an exception to
the hearsay evidence. In this case dying declaration was recorded by the Special
Executive Magistrate, after obtaining the fitness certificate of the victim from the duty
medical officer. In the dying declaration deceased described the incident and declared
the name of the accused to be the culprit in clear and categorical terms–No suspicion
over the genuineness of the dying declaration. Madan @ Madhu Pateka v. State of
Maharashtra AIR 2018 SC 2007.

Whether a Statement of one dying can be a relevant fact with respect

to death of another
This question arose in Kashiram Tukaram Jadhav, 1984 Cr.L.J. 1447 ,
where a driver had run his bus into a crowd, it was held that this question
will depend upon—(a) whether it was made in the continum of a narration
describing the final occurrence concerning the declarant, and (b) whether it
is directly concerned with any event which took place in the presence, sight
or hearing of the declarant, (c) whether that event has some proximate
relation to the actual final occurrence, and (d) whether the declaration
should become unintelligible, distorted if the narration of that event is
blotted out from the declaration. Since it was an unbroken chain of
continuing one transaction, hence relevant being any of the circumstances of
the transaction.
When original dying declaration is found to be clearly lost and not
available, it can be proved by secondary evidence AIR 1979 SC 1567.

Whether Relevant in Suicides

The scope of dying declaration with regard to the circumstances relating
to transaction resulting in death was discussed in 1984 Cr.L.J. 1738 by
Supreme Court; Sharad Birdhe Chand. It was relevant both in cases of
suicide or homicide.
Per M. Fazal Ali. J: The Indian law on the question of the nature and
scope of dying declaration has made a distinct departure from the English
law where only the statements which directly relate to the cause of death are
admissible. With regard to the scope of section 32(1), the following
prepositions emerge:
(1) Section 32 is an exception to the rule of hearsay and makes admissible
the statement of a person who dies, whether the death is homicide or a
suicide provided the statement relates to the cause of death, or exhibits
circumstances leading to the death. In this respect the Evidence Act, in view
of the peculiar conditions of our society and the diverse nature and
character of our people has thought it necessary to widen the sphere of
section 32 to avoid injustice.
(2) The test of proximity cannot be literally construed and practically
reduced to a cut-and-dried formula of universal application so as to be
confined in a strait-jacket. Distance of time would depend or vary with the
circumstances of each case. For instance, where death is a logical
culmination of a continuous drama long in process and is, as it were, a finale
of the story, the statement regarding each stop directly, connected with the
end of the drama would be admissible because the entire statement would
have to be read as an organic whole and not torn from the context.
Sometimes statements relevant to or furnishing an immediate motive may
also be admissible as being a part of the transaction of death. It is manifest
that all these statements come to light only after the death of the deceased.
For instance, where the death takes place within a very short-time of the
marriage or the distance of time is not spread over more than 314 months
the statement may be admissible under section 32.
(3) The second part of clause (1) of section 32 Evidence Act is yet another
exception to the rule that in criminal law the evidence of a person who was
not being subjected to or given an opportunity of being cross-examined by
the accused, would be valueless because the place of cross-examination is
taken by the solemnity and sanctity of oath for the simple reason that a
person on the verge of death is not likely to make a false statement unless
there is strong evidence to show that the statement was secured either by
prompting or tutoring.
(4) It may be important to note that section 32 does not speak of homicide
alone but includes suicide also, hence all the circumstances which may be
relevant to prove a case of homicide would be equally relevant to prove a
case of suicide.
(5) Where the main evidence consists of statements and letters written by
deceased which are directly connected with or related to her death and
which reveal a tell tale story, the said statement would clearly fall within the
four corners of section 32 and, therefore, admissible. The distance of time
alone in such cases would not make the statement irrelevant. AIR 1950 Cal.
306 Overruled.)
(Paras 18, 21)
Per Varadarajan, J. (Disagreeing on facts): Held that the instant case was
not one of prolonged poisoning as the death occurred due to potassium
cyanide poison. Therefore, the statement made by deceased to certain
witnesses could not be said to have proximate relation to actual occurrence.
The oral evidence of the witnesses was therefore inadmissible under section
32(1).
(Paras 202, 203)
Per Sabyasachi Mukherji, J. (Concurring): Though the test of proximity
cannot and should not be too literally construed and be reduced practically
to a cut and dried formula of universal application, it must be emphasised
that whenever it is extended beyond the immediate, it should be the
exception and must be done with very great caution and care. As a general
proposition, it cannot be laid down for all purposes that for instance where a
death takes place within a short time of marriage and the distance of time is
not spread over three or four months, the statement would be admissible
under section 32 of the Evidence Act. This is always not so and cannot be so.
In every exceptional circumstances such statements may be admissible and
that too not for proving the positive fact but as an indication of a negative
fact, namely raising some doubt about the guilt of the accused.
(Para 214)
In a case of Deepak, 1994 Cr.L.J. 767, it was held, the dying declaration
of deceased containing narration of incident which resulted in her suicidal
death is clearly a relevant fact admissible in evidence and conviction could
be based on same because in case of suicidal death where the question
before Court or whether any offence was committed against the deceased
before committing suicide, the only evidence available as dying declaration
of deceased and to hold that such dying declaration is not relevant fact
would be negation of justice and clear misrepresentation of provision of
section 32(1) of the Evidence Act.



Chapter–26
Rioting
The law about rioting and unlawful assemblies is contained in Section 141
to 158 of I.P.C., Sections 30, 30A, 31, 32 of Police Act and Section 129 of
Cr.P.C. Section 141 of I.P.C. merely defines as unlawful assembly as an
assembly of five or more persons, if the common object of that assembly is:
First – To overawe by criminal force, or show of criminal force, the
Central or any State Government or Parliament or the
Legislature of any State, or any public servant in the exercise of
the lawful power of such public servant; or
Second – To resist the execution of any law, or of any legal process;
or
Third – To commit any mischief or criminal trespass, or other offence;
or
Fourth – By means of criminal force, or show of criminal force, to any
person, to take or obtain possession of any property, or to
deprive any person of the enjoyment of a right of way, or of the
use of water or other incorporeal right of which he is in
possession or enjoyment, or to enforce any right or supposed
right; or
Fifth – By means of criminal force, or show of criminal force, to compel
any person to do what he is not legally bound to do, or to omit
to do what he is legally entitled to do.
The quality of unlawfulness attaches to an assembly if the common object
is of any one or more of the descriptions contained in the five clauses of that
section. Mr. Justice Plowden in Modet Khan v. Empress, 61 P.R. 1887 has
discussed the interpretation of section 141 I.P.C. He says that, “an
examination of Section 141 shows that every common object, as there
defined, involves the 3, the common object involves contemplation of the
commission of some specific offence as an end. In clauses 1, 4 and 5 the
common object involves contemplation of the commission of the offence, of
using criminal force or assault as a means to the common end. In clause 2,
the common object is to resist the execution of any law or legal process. This
last common object necessarily involves contemplation of some offence as a
means to the common end, if the resistance offered be not in itself, as it may
be specific offence (e.g., Sub-section 173, 183, 186 I.P.C).
If force is used by such assembly in the prosecution of the common
object, such assembly is guilty of rioting (Section 146 and 147 I.P.C). If
deadly arms are used then section 148 applies, section 149 I.P.C. requires
the following three things primarily for conviction of all the members:
1. That one should be a member of an unlawful assembly. Mere presence
is, however, not necessary to support the finding that he had the
 common object. There must be some direct or circumstantial evidence
that he had shared common object.
2. That in prosecution of the common object of that assembly an offence
should be committed by a member of that unlawful assembly.
3. That offence should be of such of a nature that the members of the
assembly knew the offence to be likely to be committed in
prosecution of their common object.
The use of the expression “common object” in (2) is the central fact on
which the liability of a person other than that of actual perpetrator depends.
The word “object” means the purpose or design and in order to make it
‘common’ it must be shared by all. The words, “Knew to be likely to be
committed” (3) imparts at least an expectation founded upon facts known to
the members of an assembly that an offence of a particular kind committed
would be committed. Unlawful object and common object were subject of an
interpretation by Supreme Court in Maiku, 1989 Cr.L.J. 860 which upset the
judgment of lower courts. Case was of torture in investigation by police, a
Sub-Inspector and Constables who had beaten to death the deceased in
burglary case. The Supreme Court held that Sub-Inspector was pursuing
investigation which his duty and therefore no unlawful object. Section 147 or
149 were not attracted. Though the accused resorted to violence while
attempting to recover stolen articles, it was not an unlawful object. There
was no definite evidence about individual injuries as to who had given. So,
the accused were acquitted.
Where violence is used in prosecution of common object and the accused
are armed with deadly weapons, and one person dies as a result of injuries
inflicted, it is by no means uncorrected to conclude that murder could be the
likely object and all would be liable for murder. Hukum Singh, 1961 SC 541,
Mahadeo Ganpat 1977 Cr.L.J. 1148 SC.
If, however, an intervener is killed by one of the members of unlawful
assembly then all will not be liable under section 149 Cr.P.C. Chandra Bhan,
1981 Cr.L.J. 196.
The following hints should always be kept in mind by Investigating Officer
while investigating cases of rioting:
1. There should be an immediate object to be achieved by the unlawful
assembly as laid in section 141 I.P.C. If a certain number of people meet
merely to arrange a plan for some future action, on an uncertain event
taking place, it cannot be said that they had assembled to carry out some
plan forthwith (See Shauket Ali, 1954 Cr.L.J. 485 ). Mere spectators are not
liable 26 Cr.L.J. 766, 1942 All. 225.
2. It is not necessary to register the case separately when two factions
take part in a fight. During the investigation of one case, the other can be
investigated. It is, however, better if both cases are registered.
3. A counter information cannot come within section 162 Cr.P.C.
Azimaddy 28 Cr.L.J. 99.
It was held in Osman Ganj 31 Cr.L.J. 771 that it cannot be accepted as a
proposition of law that because a person of the party of the accused goes
first to the police station and says that some of the complainant’s party has
committed an offence, the real complainant against the accused must be kept
off the record save on terms under section 162 Cr.P.C. It is a question of fact
whether a statement made to a police officer in the course of an
investigation in such cases comes under section 162 or is made by way of
complaint to commence an investigation under section 154 Cr.P.C.
Accused sometimes go to police stations and make reports by way of
offence. Cases are registered as counter cases by police on the report of
such accused as they alleged that attack was opened by party who is
complainant in the other case. The question of admissibility of such reports
arises in trials of these accused. The law is that such reports are admissible.
In Qamrul Hussain v. Emp., 1942 Oudh 60 following, 1941 Oudh 359 , it was
held where after F.I.R. has been recorded, the accused voluntarily comes to
police station and makes a report to the police by way of defence in reply
and no question is put to him by police, the report of accused is not a
statement made in the course of investigation and is therefore not
inadmissible. Similarly, it was held in Guru Swami 40 Cr.L.J. 922, a
complaint made by the accused at police station against the complainant that
he stabbed him in self defence is not inadmissible against the accused on a
charge of attempt to murder the complainant either because it is a statement
under section 162 or because it is a confession made to a police officer. As
such a case of non registration of the other case counter complianant
received or statement of the complainant recorded during investigation of
that case is not hit by section 162 Cr.P.C. It will be admissible in evidence as
an F.I.R. A subsequent report made to police officer will be treated as F.I.R.
where owing to widespread disturbances the Government machinery being in
state of suspension, no action could be taken on report of such offence
earlier. See Magan Lal v. Emp., 1946 Nag. 173.
4. Each faction should be given a separate trial and to that end, separate
challans should be sent. 28 A. W.N. 1882, 25 M 61, 15 P.R. 1882.
5. Person composing both parties to a riot cannot be jointly tried for
rioting. Each party should be tried jointly in a separate trial from the other
faction. 160 A.W.N. 1882, 26 P.R. 1881.
6. One case should be heard first but judgement not be pronounced, the
second case to be heard afterwards by the same judge and judgements to be
announced together but evidence led in one case should not be incorporated
in the other. See the observation of Jackson, J. in Krishna Pannadi 1930 Mad.
190. Even if one case is triable by Sessions when the other is not both should
be committed to Court of Sessions. In Rama Krishanaya 1954 Cr.L.J. 610
(Mad.). Also held in Girijananda, 1978 Cr.L.J. 259 (Gauhati) . Both cases
should be tried by one Presiding Officer and in quick succession. Even if one
case triable by Sessions, the other case can be committed to Session by
Magistrate with the aid of section 347 Cr.P.C. 1988 Cr.L.J. 1343 .
Police cannot withhold one challan as such.
7. If the evidence shows the case of free fight, then too, both parties are
to be sent. A free fight is one, “When both sides mean to fight from the start,
go out to fight and there is a pitched battle. The question of who defends in
such a light is wholly immaterial and depends on the tactics adopted by the
rival commanders. Gajanand (1954 Cr.L.J. 1746. Supreme Court) 1933 Lah.
808. Both sides can be convicted. In such a case of free fight, each will be
liable for his own act. It was held by Supreme Court in Lallji 1973 Cr.L.J.
1769, that where a sudden quarrel arises as a result of remonstrance and an
unpremeditated free fight takes place, it cannot be said that accused who
were present there, formed unlawful assembly. Each of the accused person
should be held liable for his own act and not vicariously liable for the act of
others. In such case of sudden mutual fights there can be no question of
involving the aid of section 149. Puran, 1976 SC 912. No right of private
defence is available to either party in a free fight and each is liable for his
individual act. 1978 Cr.L.J. 484 (SC) Vishvas Abha Kurane, 1986 Cr.L.J. 1145
Also see 1990 Cr.L.J. 248.
8. The police is not to arrive at fine distinctions as to who was aggressor.
It is for Court to do so. In case of clear aggression only aggressor party to be
sent.
9. The cases where one party is simply defending its right against the
attack made upon it by another opposite party, should be distinguished, as
such party is not liable under section 147 I.P.C. “The fact that the persons
who assemble and use force are in possession of a right or even property,
which property is threatened or attacked by others and which the endeavour
to defend is always an important point in a case of alleged rioting as
suggesting that the member of an assembly may be entitled to the right of
private defence. Rasul v. empress 4 PR 1889. Pachkauri 24 Cal. 686.
Extent of Liability, 1987 Cr.L.J. 541, Gordhan.
When a person is killed as a result of violence used by an unlawful
assembly, the nature of offence may take one or the other shape out of the
following:
(i) If murder was in prosecution of common object of unlawful assembly,
then all the members liable under section 302 read with section 149. It is
immaterial who caused fatal injury.
(ii) If the members knew before hand that offence which was actually
committed was likely to be committed in prosecution of the case, every
member will be again guilty under section 302 read with second part of
section 149.
(iii) If killing was not common object and author of fatal injury is known,
only that member will be individually liable for murder and act of his causing
fatal injury will be taken as an isolated act. The other, would be liable under
section 326 or 325 depending upon the type of weapon wielded with aid of
section 149.
(iv) And if killing was not common object and author of fatal injury is not
known, then none can be convicted under section 302/149. However
members cannot escape-liability under section 326 or 325 with the aid of
section 149.
It was held in 1989 Cr.L.J. 1466 Allauddin Mian by Supreme Court that
act done by accused to make them liable under section 149 must be to
accomplish object. Even if an incidental act is done to accomplish common
object, it must be within the knowledge of other members as one likely to be
committed in prosecution of common object.
10. It is always desirable to mention the common object in the charge. 16
PR 1915.
11. When the number of persons who participated in the commission of an
act was five or more than five, the fact that some of them could not be
identified, does not preclude the application of section 147 or section 149,
1946 Lah. 309.
It is also not necessary that all should have made concerted attack if they
go in stages, still all are liable.
This question arose in 1983 Cr.L.J. 340 Vithalbhai Koli, ‘The accused had
split themselves into small groups and were waiting at different places, they
joined together at the place of incident and even attacked simultaneously or
in succession. They then left together. Held they had commonly committed
murder.
Where party is exercising right of private defence against the party in
possession of land, that party cannot be termed as unlawful assembly. It will
only become so where the group continues criminal force after the right
ceases. 1988 Cr.L.J. 1512.
The following factors will help to determine the participation of a person
in the case of rioting:
1. There should be some overt act on the part of the person to prove that
he was sharing the common object of the unlawful assembly and was its
member. Mere innocent presence does not make him a member of the
unlawful assembly. 1976 SC 2566 Musa Khan. Spectators, way farers are
often attracted to the scene of affray or rioting. If, however, such persons
march on for a long distance with the rioters, take part in slogans, etc. and
pelting stone then they are liable. In that case it will be for them to prove
their innocence under section 106 Evidence Act. Onus shifts to them.
2. Whether the participants in the crime were interested inter se,
belonged to one faction and had a motive to share the common object.
 3. The evidence of single witness to establish guilt of rioters is not
sufficient, especially so when that single witness belongs to a particular
faction who is against the party of the accused. There should be well-
corroborated evidence to prove acts of the rioters.
4. The Investigating Officer should always attach great importance to the
fact that a rioter is named in F.I.R. or not. If a name is mentioned at the
earliest, then there is some sanctity regarding his participation.
5. If the rioter had injuries on his person. The absence of injuries will
make the presence of a person in a riot somewhat doubtful if the rioters had
injuries.
6. The plea of the accused rioters, their attachment to a particular party
or aversion to the ideal of a particular party, the plea of alibi, etc., should
always be given due consideration of show if such person’s participation in
riot could be possible.
7. Section 147–Multiple Murder–Communal riot–Members of marriage
party of Scheduled Caste–Assaulted by villagers by sticks and stones–Some
of them burnt alive inside the house of scheduled caste–Reliable testimony
by four eye-witnesses–Accused persons identified by them, Held liable to be
convicted under sections 147, 302/149, 436/149, 323/149 and 307/149. State
of U. P. v. Dan Singh, 1997 Cr.L.J. 1150 SC.
8. Section 147–Riot–Testimony of eyewitnesses–Cannot be rejected only
because of some inconsequential contradiction or exaggeration. State of U.P.
v. Dan Singh, 1997 Cr.L.J. 1150 SC.
Section 147–It could not be pointed out as to whose instance it became known that
third person (PW3) was also an eye-witness. First person (PW1) and second person
(PW2) did not name him as an eye-witness in their initial statements. His statement is
recorded by the second 10 after seven days of occurrence. For this purpose, the courts
had minutely gone through the statements of PW3 and arrived at an irresistible
conclusion that witness was introduced at a later stage for the purpose of roping two
accused persons. It creates a reasonable doubt. Suresh v. State, 2016(4) Crimes 340
SC.
Section 147–The delay in recording the statement casts a serious doubt about their
being eye-witnesses to the occurrence. It may suggest that the I.O. was deliberately
marking time with a view to decide about the shape to be given to the case and the eye-
witnesses to be introduced. The circumstances in this case land such significance to this
delay. Conviction set aside. Shahid Khan v. State of Rajasthan, 2016 Cr.L.J. 1916.
9. Section 148–Commission of illegal overt act by every member–Proof of–
Not necessary. State of A. P. v. Thakkidiram Reddy, 1998 Cr.L.J. 4035 SC.
10. Section 148–Rioting–Proof–Accused persons forming unlawful
assembly and armed with weapons alleged to have entered into house of
complainant and assaulted inmates, there by causing death of complainant’s
mother–Medical evidence regarding injuries corroborated with testimony of
eye-witness–F.I.R. promptly and also corroborated with version of eye-
witnesses–Accused persons were identified and evidence showing that they
actively took participation in commission of offence–Accused held guilty of
offence under section 148. Amir Hussain v. State of Tripura, 1998 Cr.L.J.
Gauhati.
11. Section 148–When the presence of the accused who were assaulting
the deceased persons is established beyond doubt, sections 148 and 149
I.P.C. would come into operation and they would be liable for the offences.
State of Haryana v. Tak Singh, 1999 Cr.L.J. 2577 SC.
Section 148–It is apparent that on account of enmity, innocent family members of
the accused persons were also roped in. It is difficult to conclude with certainty, that
the present five appellants, were truly and factually involved in the occurrence.
Appellants are entitled to the benefit of doubt. Randhir @ Randhir Pal v. State of
Haryana, 2016(4) Crimes 321 SC.
 Section 148–There is no legal impediment in convicting a person on the sole
testimony of a single witness provided he is wholly reliable. In the present case, there is
no ground to doubt the reliability of the evidence provided by Prosection Witness 3.
Even if there is a difference between ocular and medical evidence, it is clear from the
facts that the accused were present there with the common intention to attract the
deceased. Thus, a difference between ocular & medical evidence will not stand any
ground in acquitting the accused in the present case. Edward Periyanaygayaswamy v.
Inspector of Police, 2015 Cr.L.J. 2895.
12. Sections 147 and 149–Section 147 is a substantive offence and a
person can be convicted for an offence of vicarious liability under section
149, I.P.C. Khursid v. State of Haryana, 2004 (3) RCR (Cri.) 499 (P&H).
13. Sections 149–IPC Section 302–Common object–Double Murder–
Deceased party plowed the land which belonged to accused party–Accused
party consisting of six persons came to spot with deadly weapons–Three of
them assaulted with sword etc. and others with blunt weapons–The act of
accused persons coming together armed with deadly weapons and
immediately assaulting the decease indicated common object of the accused
persons to cause death of deceased persons–Conviction of three accused
under section 302 I.P.C. and other three persons with aid of section 149 IPC
upheld. Rabindra Mahto v. State of Jharkhand, 2006 (1) JT 137 (SC).
14. Section 149–Indian Penal Code, section 34–Common object of unlawful
Assembly:
(1) For the purpose of attracting Section 149 of the I.P.C., it is not
necessary that there should be a pre-concert by way of a meeting of
the persons of the unlawful assem bly as to the common object.
(2) Even if the offence committed is not in direct projection of the
common object of the assembly, it may yet fall under section 149 if it
can be held that the offence was such as the members knew was
likely to be committed. (1959) Supp. SCR 940 relied.
(3) Offence committed by one of the members of unlawful assembly,
every person who was member of unlawful assembly will be guilty of
offence–Not necessary that every member should commit the offence.
(4) If an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the
members of that assembly knew to be likely to be committed in
prosecution of that object, every person who at the time of the
committing of that offence, is a member of the same assembly, is
guilty of that offence. JT 2004(2) SC 158 relied.
(5) A common object is essence of the offence under section 149 of the
Indian Penal Code would be common object of the persons forming
the assembly–It is necessary for constitution of the offence that the
object should be common to the per sons who compose the assembly,
that is, that they should all be aware of it and con cur in it–
Furthermore, there must be some present and immediate purpose of
carrying into effect the common object. Triloki Nath v. State of U.P.,
AIR 2006 SC.
15. Section 149–Unlawful Assembly–Common object–Law stated:
(1) For the purpose of attracting section 149 of the I.P.C., it is not
necessary that there should be a pre-concert by way of a meeting of
the persons of the unlawful assem bly as to the common object. If a
common object is adopted by all the persons and shared by them, it
would serve the purpose.
(2) Mere presence in an assembly does not make a person, who is
present, a member of an unlawful assembly unless it is shown that he
had done something or committed to do something which would make
him a member of an unlawful assembly. Overt act on part of that
person was not mandatory. AIR 1956 SC 181 relied.
 (3) If an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the
members of that assembly knew to be likely to be committed in
prosecution of that object, every person who at the time of the
committing of that offence, is a member of the same assembly, is
guilty of that offence. AIR 1956 SC 181 relied.
(4) Section 149 I.P.C. constitutes, perse, a substantive offence although
the punishment is under the section to which it is tagged being
committed by the principal offender in the unlawful assembly, known
or unknown. (1974) 4 SCC 568 relied.
(5) A common object is different from a common intention insofar as in
the former no prior consent is required, nor a prior meeting of minds
before the attack would be required whereas an unlawful object can
develop after the people get there and there need not be a prior
meeting of minds. (1972) 1 SCC 136 relied.
(6) Sections 149 and 34, however, stand on some different footings
although application of both the sections may be held to be
mandatory.
(7) Common intention denotes action in concert and necessarily
postulates a pre arranged plan, a prior meeting of minds and an
element of participation in action–The acts may be different and vary
in character but must be actuated by the same common intention
which is different from same intention or similar intention.
Bishna@.Bhiswadebt Mahato v. State of West Bengal, AIR 2006 SC
302.
16. Section 149-A person charged for offence read with section 149 I.P.C.
cannot be convicted for the substantive offence without a specific charge
having been framed against him–Conviction for the substantive offence in
such a case is unjustified because an ac cused might be misled in his defence
by the absence of the charge for the substantive offence. Kelu Nair v. State
of Kerala, 2005(3) RCR (Cri.) 533 (Kerala).
17. Section 149–Common object of unlawful assembly–It is not necessary
that common object may be formed by express agreement–It may be formed
at any stage by all or a few members of the assembly and the other members
may just join and adopt it–Once formed, it need not continue to be the same–
It may be modified or altered or abandoned at any stage. Sunil Kumar v.
State of Rajasthan, (1) Apex Criminal 397.
18. Section 149–How to ascertain common object of unlawful assembly–An
object is entertained in the human mind, and it being merely a mental
attitude, no direct evidence can be available and, like intention, has
generally to be gathered from the act which the person commits and the
result therefrom–Though no hard and fast rule can be laid down under the
circumstances from which the common object can be culled out, it may
reasonably be collected from the nature of the assembly, arms it carries and
behaviour at the time of or before or after the occurrence. Sunil Kumar v.
State of Rajasthan, 2005(1) Apex Criminal 397.
19. Section 149–‘Common object’ is different from a ‘common intention’–
Common object does not require a prior concert and a common meeting of
minds before the attack–It is enough if each has the same object in view and
their number is five or more and that they act as an assembly to achieve that
object. Sunil Kumar v. State of Rajasthan, 2005 (1) Apex Criminal 397.
20. Section 149–Common object of unlawful Assembly–An object is
entertained in the human mind, and it being merely a mental attitude, no
direct evidence can be available and, like intention, has generally to be
gathered from the act which the person commits and the result therefrom–
Though no hard and fast rule can be laid down as to the cir cumstances from
which the common object can be called out, it may reasonably be col lected
from the nature of the assembly, arms it carries and behaviour at or before
or after the scene of Incident Madan Singh v. State of Bihar, AIR 2004 SC
3317.
21. Section 149–Offence by accused who formed of unlawful assembly–
Acquittal of one accused does not wipe out application of section 149 IPC.
Chanda v. State of U.P., AIR 2004 SC 2451.
22. Section 149–Indian Penal Code, Section 302–Vicarious liability -
Offence of murder committed by Unlawful Assembly–Not necessary that
definite roles be attributed to accused to attract Section 149 IPC–It is often
not possible for witnesses to describe accurately the part played by each one
of the assailants. 1997(2) RCR (Cri.) 521 (SC) [Link] Singh v. State of
Uttar Pradesh, AIR 2004 SC 2828.
23. Section 149–Common Object–Not necessary that common object be
found by unlawful assembly to lay express agreement after consultation–
Common object may be found at any stage.
(1) Once common object is formed, it not continue to be same–It may be
modified or altered or abandoned at any stage.
(2) Members of an unlawful assembly may have community of object up
to certain point beyond which they may differ in their objects and the
knowledge possessed by each member of what is likely to be
committed in prosecution of their common object may vary–The affect
of section 149 I.P.C. may be different on different members of same
assembly.
(3) It cannot be laid down as a general proposition of law that unless an
overt act is proved against a person–It cannot be said that he is a
member of assembly.
(4) The word ‘object’ means the purpose or design and in order to make
it “common” it must be shared by all.
(5) “Common object” of an assembly is to be ascertained from the acts
and language of the members composing it.
(6) What the common object of the unlawful assembly is at a particular
stage of the incident is essentially a question of fact to be determined
keeping in view the nature of the assembly, the arms carried by the
members.
(7) An assembly which was not unlawful when it was assembled, may
subsequently become unlawful.
(8) Common object can develop during the course of incident at the spot
co-instant. AIR 1956 SC 731 relied . Chanakya Dhibar v. State of West
Bengal, 2004 (1) Crimes 196 (SC).
24. Section 149–Common object–The word “object” means the purpose or
design and in order to make it “common”, it must be shared by all. Chanakya
Dhibar v. State of West Bengal, 2004 (1) Crimes 196 (SC).
25. Section 149–“Common object” is different from a “common intention”
as it does not require a prior concert and a common meeting or minds before
the attack–It is enough if each has the same object in view and their number
is five or more and that they act as an assembly to achieve that
object–“Common object” of an assembly is to be ascertained from the acts
and language of the members composing it. Chanakya Dhibar v. State of
West Bengal, 2004 (1) Crimes 196 (SC).
26. Section 149–Vicarious liability–Criminal offence–Vicarious liability of
the members of unlawful assembly arises where the offence is committed by
another member or members of unlawful assembly if the commission of such
offence is the common object of that assembly or if the members of the
unlawful assembly knew that the offence of the nature committed was likely
to be committed though the common object may be something different.
2000(3) RCR (Cri.) 14 (SC) relied . Shiva Shankar Pandey v. State of Bihar,
AIR 2002 SC 3151.
 27. Sections 149, 141, 34 and 302–Common object of unlawful assembly–
Law summed up:
(1) Mere presence in an unlawful assembly cannot render a person liable
unless there was a common object and he was actuated by that
common object and that object is one of those set out in section 141.
(2) It cannot be laid down as a general proposition of law that unless an
overt act is proved againt a person, who is alleged to be member of
unlawful assembly, it can not be said that he is a member of an
assembly.
(3) The word ‘object’ means the purpose or design and, in order to make
it ‘common’, it must be shared by all.
(4) A common object may be formed by express agreement after mutual
consultation, but that is by no means necessary. It may be formed at
any stage by all or a few members of the assembly and the other
members may just join and adopt it.
(5) Once common object is formed, it need not continue to be the same.
It may be modified or altered or abandoned at any stage.
(6) Members of an unlawful assembly may have community of object up
to certain point beyond which they may differ in their objects and the
knowledge.
(7) ‘Common object’ is different from a ‘common intention’. Common
object does not require a prior concert and a common meeting of
minds before the attack.
(8) ‘Common object’ of an assembly is to be ascertained from the acts
and language of the members composing it, and from a consideration
of all the surrounding circumstances.
(9) What the common object of the lawful assembly is at a particular
stage of the incident is essentially a question of fact to be
determined.
(10) It is not necessary under law that in all cases of unlawful
assembly, with an unlawful common object, the same must be
translated into action or be successful.
(11) The time of forming an unlawful intent is not material. An
assembly which, at its commencement or even for some time
thereafter, is lawful, may subsequently be come unlawful.
(12) Offence must be connected immediately with the common object
of the unlawful assembly of which the accused was member.
(13) An object is entertained in the human mind, and it being merely
a mental attitude, no direct evidence can be available and, like
intention, has generally to be gathered from the act which the person
commits and the result therefrom.
(14) It is not necessary for the prosecution to prove which of the
members of the unlawful assembly did which or what act. 1997(2)
RCR (Cri.) 521 (SC) relied. Danni Singh v. State of Bihar, AIR 2004
SC 4570.
28. Sections 149, 34 and 302–Unlawful assembly–Common Intention–
Murder by more than five accused–That some of the accused persons did not
commit any overt act would be of no consequence–They were not mere
sightseers–There is nothing to show that they dissuaded the persons from
committing the criminal act or withdrew at any point of time during the
course of the incident–Offence of murder proved by cogent evidence–
Conviction of all upheld. Danni Sinqh v. State of Bihar, AIR. 2004 SC. 4570.
29. Sections 149 and 141–Offence by unlawful assembly of five or more
persons:
 (1) Mere presence in an unlawful assembly cannot render a person liable
unless there was a common object and he was actuated by that
common object and that object is one of those set out in Section 141.
(2) It cannot be laid down as a general proposition of law that unless an
overt act is proved against a person, who is alleged to be a member
of unlawful assembly, it cannot be said that he is a member of an
Assembly. The only thing required is that he should have understood
that the assembly was unlawful and was likely to com mit any of the
acts which fall within the purview of Section 141.
(3) Object should be common to the persons, who compose the assembly,
that is to say, they should all be aware of it and concur in it.
(4) Common object may be formed at any stage by all or a few members
of the assembly and the other members may just join and adopt it.
Once formed, it need not continue to be the same. It may be modified
or altered or abandoned at any stage.
(5) “Common object” is different from a “common intention” as it does
not require a prior concert and a common meeting of minds before
the attack. It is enough if each has the same object in view.
(6) “Common object” of an assembly is to be ascertained from the acts
and language of the members composing it, and from a consideration
of all the surrounding circumstances.
(7) When an offence is committed in prosecution of the common object, it
would generally be an offence which the members of the unlawful
assembly knew was likely to be committed in prosecution of the
common object. That, however, does not make the converse
proposition true.
(8) It is not necessary for the prosecution to prove which of the members
of the unlawful assembly did which or what act. 1997(2) RCR (Cri.)
521 (SC) relied. Chanda v. State of U.P., AIR 2004 SC.
30. Sections 149 and 141–Common object of unlawful assembly–A common
object may be formed by express agreement after mutual consultation, but
that is by no means necessary–It may be formed at any stage by all or a few
members of the assembly and the other members may just join and adopt it–
Once formed, it need not continue to be the same–It may be modified or
altered or abandoned at any stage. Charan Singh v. State of Uttar Pradesh,
AIR 2004 SC 2828.
31. Sections 149 and 141–‘Common object’ is different from a ‘common
intention’ as it does not require a prior concert and a common meeting of
minds before the attack–It is enough if each has the same object in view and
their number is five or more and that they act as an assembly to achieve that
object–The ‘common object’ of an assembly is to be ascertained from the acts
and language of the members composing it, and from a consideration of all
the surrounding circumstances–It may be gathered from the course of
conduct adopted by the members of the assembly. Charan Singh v. State of
Uttar Pradesh, AIR 2004 SC 2828.
32. Sections 149 and 141–Unlawful assembly –Common object:
(1) Word ‘object’ means the purpose or design and, in order to make it
‘common’, it must be shared by all.
(2) Mere presence in an unlawful assembly cannot render a person liable
unless there was a common object and he was actuated by that
common object and that object is one of those set out in section 141–
Where common object of an unlawful assembly is not proved, the
accused persons cannot be convicted with the help of section 149.
(3) It cannot be laid down as a general proposition of law that unless an
overt act is proved against a person, who is alleged to be a member
of unlawful assembly, it cannot be said that he is a member of an
assembly–The only thing required is that he should have understood
 that the assembly was unlawful and was likely to com mit any of the
acts which fall within the purview of section 141.
(4) A common object may be formed by express agreement after mutual
consultation, but that is by no means necessary.
(5) It may be formed at any stage by all or a few members of the
assembly and the other members may just join and adopt it.
(6) Once formed, it need not continue to be the same. It may be modified
or altered or abandoned at any stage.
(7) Members of an unlawful assembly may have community of object up
to certain point beyond which they may differ in their objects.
(8) ‘Common object’ is different from a ‘common intention’ as it does not
require a prior concern and a common meeting of minds before the
attack.
(9) An object is entertained in the human mind, and it being merely a
mental attitude, no direct evidence can be available .Bhargavan v.
State of Kerala, AIR 2004 SC 1058.
33. Sections 149 and 141–Common Intention–Whether section 149 has
application when presence of more than five persons is established, but only
four are identified–(Yes)–Section 149 does what is required to be established
is the presence of five per sons with a common intention of doing an act–If
that is established merely because the other persons present are not
identified that does not in anyway affect applicability of section 149 I.P.C.
Ram Dular Rai v. State of Bihar, AIR 2004 SC 1043.
34. Sections 149 and 141–‘Common Object’ is different from a ‘common
intention’–Common object does not require a prior concert and a common
meeting of minds before the attack–It is enough if each has the same object
in view and their number is five or more and that they act as an assembly to
achieve that object–The ‘common object’ of an assembly is to be ascertained
from the acts and language of the members composing it–What the common
object of the unlawful assembly is at a particular stage of the inci dent is
essentially a question of fact to be determined, keeping in view the nature of
the assembly, the arms carried by the members, and the behaviour of the
members. Ram Dular Rai v. State of Bihar, AIR 2004 SC 1043.
35. Sections 149 and 302–Common object–Murder of 5 persons by 18/20
accused persons by gun shots–All the accused had common object–All
accused are guilty of of fence even if shooting was done by one or two
accused. Rameshwar Pandey v. State of Bihar, 2005(1) Apex Criminal
455:2005(1) Crimes 250 (SC).
36. Section 147–Multiple Murder–Communal riot–Member of marriage
party of scheduled caste–Assaulted by villagers by sticks and stones–Some of
them burnt alive inside the house of scheduted caste–Reliable testimony by
four eye witness–Accused persons identified by them, held liable to be
convicted under sections 147, 302/149, 436/149, 323/149 and 307/149. State
of U.P. v. Dan Singh, 1997 Cr.L.J. 1150 SC.
37. Section 147–Riot Testimony of eye witnesses–Cannot be rejected only
because of some inconsequential contradiction or exaggeration. State of U.
P. v. Dan Singh, 1997 Cr.L.J. 1150 SC.
38. Section 148–Commission of illegal overt act by every member–Proof
of–Not necessary. State of A.P.v. Thakkidiram Reddy, 1998 Cr.L.J. 4035 SC.
39. Section 148–Rioting–Proof–Accused persons forming unlawful
assembly and armed with weapons alleged to have entered into house of
complainant and assaulted inmates, thereby causing death of complainants
mother–Medical evidence regarding injuries corroborated with testimony of
eye-witness–F.I.R. promptly lodged and also corroborated with version of
eye-witnesses–Accused person were identified and evidence showing that
they actively look participation in commission of offence–Accused held guilty
of offence. Amir Hossain v. State of Tripura, 1998 Cr.L.J. 4315 Gauhati.
 40. Section 148–When the presence of the accused who were armed with
deadly weapons at the scene of offence of assaulting the deceased persons to
established beyond doubt, Sections 148 and 149 I.P.C. would come into
operation and they would be liable for the offences. State of Haryana v. Tek
Singh, 1999 Cr.L.J. 2577 SC.
41. Sections 147, 148 and 302/149 I.P.C.–Accused persons eight in
number for causing death of three persons by assaulting them with axes and
sticks–It had been revealed that accused had let loose a reign of terror and
after having killed three persons were still not satisfied and were looking
around for other victims from the family. Prosecution story was further
fortified by recoveries made from some of accused–Argument made by
defence counsel that there was some delay in the lodging the F.I.R. held
insignificant as no delay was found in the facts of the case–Punishment of
accused persons were upheld– Appeal dismissed. H.S. Wahurwagh v. State of
Maharashtra, AIR 2009 SC 2292.
42. Sections 147 and 304 I.P.C.–Accused with some other villagers
suspecting deceased to be a cattle thief tied up deceased to a betalnut tree
and assaulted him with Dao, Lathi and Bricks–Sister, mother and wife of the
deceased were eye witnesses of occurrence–Witnesses corroborated each
other–Little variation in their testimony on weapon of assault would not have
material bearing on acceptability–No reason to not believe eye-witnesses–
Conviction was upheld. Gajendar v. State of Assam, 2011(2) Crimes 362.
43. Sections 147, 148, 149 and 324 I.P.C. read with section 4 of Arms
Act–Prosecution of accused persons for forming an unlawful assembly and
with a common object of rioting, using deadly weapons to cause death of one
person and injuries to several by assaulting them with said weapons–
Collective effect of testimonies of Prosecution Witness 5 that all the
witnesses had in coherence described the presence of all accused persons.
Out of those, Accused No. 1 and 3 were equipped with sword and Gupti
respectively and those weapons were used by them to assault deceased–
Other accused were also involved in assaulting deceased by sticks and
accused persons had assaulted eye witnesses, who had suffered injuries–
Prosecution with no ambiguity proved common object of unlawful assembly–
The plea of alibi taken by accused person not substantiated–Appeal was
dismissed and conviction upheld. Vijay son of Nanaji Ramtekkar v. State of
Maharashtra, 2011(3) Crimes.
44. Sections 147, 452, and 302 read with 149 I.P.C.–Appellants accused
assaulted deceased inside his house in mid-night–Minor son of deceased and
residents of nearby houses of places of incident were the eye-witnesses–
Conviction by the Trial Court–Appeal–Police reached spot in early morning
but F.I.R. was lodged and statement of Prosecution Witness 1 was recorded
at 11:30 AM and no explanation for delay–Evidence of eyewitnesses and
circumstances suggests that occurrence took place somewhere else and also
not in the manner as deposed by alleged eye-witnesses–Contradictions and
inconsistencies in the statement of witnesses made the prosecution case
doubtful. Moreover, the motive of alleged crime was also weak–Conviction
could not be sustained. Puran Chand v. State of H.P., 2009(1) Crimes 219
HP.
Section 147, 148 IPC–Six accused persons came to the place of
occurrence armed with deadly weapon including fire arms–While membership
of an unlawful assembly itself is an offence under section 143 I.P.C. & use of
force by members of the unlawful assembly gives rise to the offence of
rioting which is punishable u/s 147/148 I.P.C. Raju @ Rajendra v. State of
Rajasthan, 2013 Cr.L.J. 1248 SC.
45. Section 148 and 302 read with 149–Appellant expressly charged for
the offence punishable under section 148 I.P.C. and acquitted thereunder–
Therefore, appellants cannot be legally convicted for the offence punishable
under section 302 read with section 149 I.P.C. It is so because the offence of
rioting must occur when members are charged with murder as the common
object of the unlawful assembly. Section 148 creates liability on persons
armed with deadly weapons and is a distinct offence and there is no
requirement in law that members of unlawful assembly have also be charged
under section 148 I.P.C. for legally recording their conviction under section
302 read with Section 149 IPC. Md. Ankoas & others v. The Public
Prosecutor, AP 2009(4) Crimes 158 (SC).
46. Sections 148, 452 and 302 read with section 149–Prosecution of
accused persons seven in number of entering into house of informant at
night armed with countrymade pistols and licenced guns and for causing
death of deceased by firing shots at him–Conviction of all accused persons by
trial court–High Court, however, found that only appellant guilty of firing of
a shot at the deceased, opining that participation of other accused in the
commission of the said offence was not proved beyond doubt–Appeal–The
High Court committed a serious error insofar as it proceeded on the basis of
that shots fired by appellant. High court did not analysis evidence on record
as to who caused other fire arm injuries–High court order set aside
accordingly. Om Prakash v. State of U.P., 2009(1) Crimes 183 (SC).
47. Sections 148, 302/149–Conviction of five appellants under on dying
declaration–Accused persons 33 in number armed with deadly weapons
entered into house of deceased and wanted to take father of the deceased
away. Deceased intervened and was taken away and assaulted at a place.
Matter was reported by deceased himself in police station and Magistrate
recorded the dying declaration–Deceased died after two days in hospital–
There is no infirmity in the F.I.R. who was lodged by deceased and dying
declaration as the Magistrate had taken all the precautions assuring from
doctor that deceased was in a fit mental condition to give statement–In a
dying declaration, the deceased had taken the names of five appellants and
their names also find place in the F.I.R. lodged by the deceased–No
infirmity–Conviction. Manglu v. State of Chhattisgarh, 2009(4) Crimes 705.
48. Sections 148, 201 and 302–Prosecution of accused persons two in
number along with others for entering into a criminal conspiracy, unlawful
assembly and committing murder of deceased by inflicting injuries on him by
deadly weapons–Trial Court convicted both appellants. On appeal, High
Court, however, confirmed the sentences awarded against appellants for
offences punishable under section 302 of I.P.C. while setting aside
conviction of appellants of the charges under section 201 and 148 I.P.C.–
Appeal–Held evidence of Prosecution Witness 6 completely ruled out
presence of Prosecution Witness 5 at the scene of offence–It is evidenct that
Prosecution Witness 5 was not speaking truth and interested witness
obviously previous enmity–Entire prosecution case rested upon lodged by
Prosecution Witness 5–Once his presence was disbelived, the whole case of
prosecution collapsed like a pack of cards–In addition, the other witnesses
also casted a serious shadow on evidence of Prosecution Witness 5, 13 and
14 as regards their presence of the scence of offence–Held–Conviction of
appellants could not be substained–Appeal allowed. Javed Masood v. State of
Rajasthan, AIR 2010 SC 779.
49. Sections 148, 302/149, 307/149 read with section 3/27 of Arms Act,
1959–Prosecution of accused persons for causing death of two persons and
injuries to others by firing on them and assaulting them with deadly
weapons–Conviction by trial court–Appeal–High Court while acquitting A1 to
A6, altered conviction of A7 to A9 to 302/34 and 307/34 IPC–Held–Though
there was little discrepancy as to distance from upper position of house and
actual scene of occurrence, it could not be concluded that injuries on
deceased persons were not caused by fire arms–Materials placed by
prosecution clearly proved the guilt against three convicted accused–
Acquittal of accused persons A1 to A6 called for no interference–Appeal
dismissed. State of Rajasthan v. Arjun Singh, AIR 2011 SC 3380.
 50. Section 149–The emphasis is on the common object not on common
intention. Mere presence of an unlawful assembly cannot render aperson
liable unless there was a common object and he was actuated by that
common object and the object is one of those set out in section 141. Where
the common object is not proved, the accused person cannot be convicted
with the help of Section 149. It cannot be laid down as a general proposition
of law that unless an over act is proved against a person, who is alleged to
be a member of unlawful assembly, it cannot be said that he is a member of
an assembly. The word “object” means the purpose or design and, in order to
make it “common”, it must be shared by all. The expression “in prosecution
of common object” as appearing in section 149 have to be strictly construed
as equivalent to “in order to attain the common object”. It must be
immediately connected with the common object by virtue of the nature of
object. Maranadu & others v. State by Inspector of Police Tamil Nadu, 2008
Cr.L.J. 4562.
51. Section 149–Once it is established that the unlawful assembly had
common object, it is not necessary that all persons forming the inlawful
assembly must be shown to have committed some overt act. For the purpose
of incurring the vicarious liability under the provision, the liability of other
members of the unlawful assembly for the offence committed during the
continuance of the occurrence, rests upon the fact whether the other
members knew before and that the offence actually committed was likely to
be committed in prosecution of the common object. Ramchandra & others v.
State of Kerala, AIR 2011 SC 3581, Daya Kishan v. State of Haryana, 2010
(5) SCC 81, Sikander Singh v. State of Bihar, 2010(7) SCC 477 and Debasis
Daw v. State of West Bengal, 2010(9) SCC 111.
52. Section 149–The hire legal position in regard to the essential
ingredients of an offence specified by section 149 are not in doubt. Section
149 prescribes for vicarious or constructive criminal liability for all members
of an unlawful assembly where an offence is committed by any member of
such an unlawful assembly in prosecution of the common object of that
assembly or such as the members of that assembly knew to be likely to be
committed in prosecution of that object. It would thus be noticed that one of
the essential ingredents of section 149 is that the offence must have been
committed by any member of an unlawful assembly, and section 141 makes it
clear that it is only where five or more persons constituted an assembly that
an unlawful assembly is born, provided, of course, the other requirements of
the said section as to the common object of the persons composing that
assembly are satisfied. In other words, it is an essential condition of an
unlawful assembly that its membership must be five or more. As soon as the
two members were acquitted, the membership of the assembly was reduced
from five to three and that made section 141 inapplicable which inevitably
leads to the result that section 149 cannot be invoked against the appellants.
Shaji & others v. State of Kerala, AIR 2011 SC. 1825.
53. Section 149–Where general allegations are made against a large
number of persons, the Court would categorically scrutinise the evidence
and hesitate to convict the large number of persons if the evidence available
on record is vague–It is obligatory on the part of the court to examine that if
the offence committed is not in direct prosecution of the common object, it
may yet fall under the second part of section 149 I.P.C. which states that if
the offence was such as the members knew was likely to be committed–
Further inference has to be drawn as to number of persons involved in the
crime, how many of them were merely passive witnesses, what arms and
weapons they were carrying along with them, number and nature of injuries
is also relevant to be considered. Onkar v. State of U.P., 2012(1) Crimes 233
SC.
54. Section 149–Members of an unlawful assembly may have a community
of object up to a certain point beyond which they may differ in their objects
and the knowledge possessed by each member of what is likely to be
committed in prosecution of their common object may vary not only
according to the information at his command but also according to the extent
to which he shares the community of object–As a consequence, the effect of
section 149 I.P.C. may be different on different members of the same
unlawful assembly. Roy Fernandes v. State of Goa, 2012(1) Crimes 167 SC.
55. Section 149–‘Common Object’ is different from a ‘Common intention’
as it does not require a prior concert and a common meeting of minds before
the attack. It is enough if each has the same object in view and their number
is five or more and that they act as an assembly to achieve that object. The
“Common object” of an assembly is to be ascertained from the acts and
language of the members composing it, and from a consideration of all the
surrounding circumstances. It may be gathered from the course of conduct
adopted by the members of the assembly the conduct of each of the members
of the unlawful assembly, before and at the time of attack and thereafter, the
motive for the crime, are some of the relevant considerations. What the
common object of the unlawful assembly. For determination of common
object of unlawful assembly, is at a particular stage of the incident is
essentially a question of fact to be determined. Siyaram v. Stage of M.P.,
2009 Cr.L.J. 326 (SC).
56. Section 149–The common object of the unlawful assembly in question
depends, firstly on whether each object can be classified as one of those
described in section 141 of I.P.C. Secondly, such common object need not be
the product of prior concert, but as per established law, may form on the
spur of the movement. Bhanwar Singh v. State of M.P., 2008 Cr.L.J. 543
(SC).
57. Section 149–Most of the persons (remaining accused persons) not
having any knowledge that the accused–Appellant was carrying a
countrymade pistol or that he would go to shoot the deceased–Therefore, the
common object of the assembly was not to commit murder of the accused.
State of U.P. v. Gajadhar Singh, AIR 2009 SC 1935.
Section 149–It is settled legal position that even if the absence of motive as alleged
is accepted, that is of no consequence and pales into insignificance. When direct
evidence and trustworthy evidence of witnesses as to commission of an offence is
available on record, the motive part loses its significance. Therefore, if the genesis of
the motive of the occurrence is not proved, the ocular testimony of the witnesses as to
the occurrence cannot be discarded only on the ground of absence of motive if
otherwise the evidence is worthy of reliance. Saddik @ Lalo Gulam Hussain Sheikh v.
State of Gujarat, 2017(1) SCC (Cri.) 206.
Section 149–The accused can legitimately claim right to use force once they saw
their parents being assaulted and when actually it has been shown that due to such
assault and injury their father subsequently died. In the given facts, adverse inference
must be drawn against the prosecution for not offering any explanation. Prosecution has
suppressed the genesis and origin of the occurrence and failed to explain the injuries on
the person of accused including death of father of the accused. Benefit of doubt given to
the accused persons. Bhagwan Sahai v. State of Rajasthan, 2016(3) Crimes 46 SC.
Section 149–To attract the provisions of section 149 of the IPC, once membership of
an unlawful assembly is established, it is not incumbent on the prosecution to establish
whether any specific overt act has been assigned to any accused. Bharward
Navghanbhai Jakshibhai v. State of Gujarat, 2016(1) Crimes 420 SC.
Section 149–Where accused persons armed with lathis a forsa and hand made
bounds came to house of deceased and started abusing deceased and his family
members and extorted that they would not leave the deceased alive, on objection, the
main accused threw handmade bomb on chest of deceased, the prosecution had been
able to establish the appellants presence and also his active participation as a member
of unlawful assembly. Since the accused persons were the aggressors and all of them
armed with lethal weapon had gone to the house of deceased. Accused convicted.
Jodhan v. State of M.P., 2015 Cr.L.J. 3291 SC.
 Section 149–Unlawful assembly–Indentification of common object essentially
requires assessment of state of mind of members of unlawful assembly. Vinubhai R.
Patel v. Rajiv Bhai D. Patel, 2018 Cr.L.J. 3075 SC.
Section 149–As per catena of decisions of the Hon’ble Supreme Court as well as the
court, to attract the provisions of section 149 of the IPC, once membership of an
unlawful assembly is established, it is not incumbent on the prosecution to established
whether any specific overt act has been assigned to any accused. Bharwad N. Jakshibhai
v. State of Gujarat, 2016(4) Crimes 420 SC.
Section 149–The testimonies of the prosecution witnesses have been fully
corroborated by the medical reports of the doctors who examined the deceased and the
injured witness. The testimony of the witnesses are fully reliable and there has been no
improvement made. Even if it is assumed that there was no common object of killing,
but only of stopping the deceased and others from contesting the elections, it could not
be ruled out the common intention to kill might have arisen on the spur of the moment.
Appeal dismissed. Sanjeev Kr. Gupta v. State of U.P., 2015(4) JT (SC) 529.
Section 149–The law does not say that the prosecution must examine all the eye-
witnesses cited by the prosecution when the evidence of two eye-witnesses was found
worthy of acceptance to prove the case, then it was not necessary for the prosecution to
examine any more eye-witnesses. It is for the prosecution to decide as to how many and
who should be examined as their witnesses for proving their case. Conviction upheld.
Nand Kumar v. State of Chhatisgarh, 2015 Cr.L.J. 381 SC.
Section 149–The evidence of prosecution witness, neither corroborated with other
material aspects nor supported by any independent witnesses. Accussed entitled to
acquittal. Shankar v. State of Madhya Pradesh, 2018 Cr.L.J. 4405 SC.
Section 149–In this case, mob holding sticks, axes, swords, and stones attacked
deceased and his family members and cause death of deceased. Eye-witnesses including
injured brother, mother and other relations of deceased turned hostile. The wife of
deceased eye-witness reluctant to depose was brought to court under warrant of arrest.
The way her presence had to be secured by way of warrant of arrest lends rings of
credibility to her version. Therefore, relying upon the testimony of sole witness by trial
court convicting the accused was held proper. State of Maharashtra v. Ramlal Deviappa
Rathore & Others, 2016 Cr.L.J. 340 SC.
Section 149–Where prosecution established that every persons of unlawful assembly
had knowledge as to apprehension of commission of offence, each and every person of
said assembly would be regarded as offender in view of the provisions of section 149
IPC. Joseph v. State of Tamil Nadu, 2018 Cr.L.J. 1426.

Use of Force against Unlawful Assemblies

Sections 30, 30A, 31 and 32 of Police Act lays down elaborate procedure
for control and regulation of assemblies and processions.
1. Whenever the officer-in-charge of police station feels that the taking
out of the proposed procession or the forming of proposed assembly
may cause a breach of the peace unless it is controlled, he should
forthwith approach the Sub-Divisional Magistrate or District
Magistrate and the latter may require may general or special notices
that the persons convening or collecting such assembly or directing or
promoting such procession shall apply for a licence. Thereafter the
taking of the licence becomes obligatory and suitable conditions, the
regulation and conduct of procession and the conduct of the assembly
can be stipulated by Superintendent of Police.
2. The Superintendent of Police or A.S.P. can also issue directions for
conduct of assemblies or processions even if notice is issued by D.M.
or not or even if license is not taken.
3. S.P. or A.S.P. can also move District Magistrate for proclaiming a
prohibitory order under section 144 Cr.P.C. banning assemblies or
processions for certain period and in a particular area.
4. In addition, it is also the duty of every police officer to keep order on
the police roads, streets, etc. and to prevent obstruction on the
 occasions of assemblies and procession on public roads, streets, in the
neighbourhood of places of worship, etc. vide section 31 Police Act and
anyone violating such order is liable under section 32 Police Act
Section 32 Police Act is also applicable against organizers of processions
for breach of conditions of licence. It is a non-cognizable offence.

Action on Spot
If an assembly or procession is violating the conditions of licence or
disobeys the directions given by S.P. or A.S.P. regarding its conductor
contravenes the prohibitory order under section 144 Cr.P.C. if any; or
indulges in acts of violence or threatens peace or adopts any of the five
objects given under section 141 I.P.C. It becomes an unlawful assembly and
can be dispersed under section 129 Cr.P.C.
A lawful assembly, even if it is likely to cause a disturbance of the public
peace can be dispersed under section 129 Cr.P.C.
Force can be used against unlawful assemblies by police under the
following provisions of law:
(i) Section 46 Cr.P.C; in exercising powers of arrest under section 41
and 151 Cr.P.C.
(ii) Section 129 Cr.P.C.
(iii) Sections 149 and 152 Cr.P.C.
(iv) Sections 96 to 106 I.P.C.
Object: Degree of force employed shall always be according to the
circumstances of each case. The object is to prevent disturbance of peace by
as assembly which (i) has threatened breach of peace, (ii) refuses to
disperse,
(iii) and thereby disturbs peace.
Who can act: (i) An officer-in-charge of higher officer present (section
129/36 Cr.P.C.) in absence of Magistrate.
(ii) Any officer, not below the rank of Sub-Inspector, in the absence of an
officer-in-charge and Magistrate.
(iii) Any Executive Magistrate, if available.
(iv) Any other police officer in case the officer-in-charge or the Magistrate is not
available in exercise of his powers under sections 46, 151, 149, 152 Cr.P.C. and sections
96 to 106 I.P.C.
It is the Executive Magistrate who is to decide the occasion and kind of
force to be used; the officer-in-charge is to decide the quantum of force and
the manner in which it is used always keeping in view that minimum force
required should be used and that, too, when absolutely necessary and all
efforts at pursuation, warnings, etc. have failed to disperse them.
Tear smoke should be invariably used first; if its use fails then lathis or
batons and in the last resort only fire arms should be used. Warning should
be always given for use of each kind of force in case the mob does not
disperse within stipulated period. The senior police officer shall give clear
and precise orders to specific men for firing specific number of rounds at
defiant section of the mob. The aim should be low. Order to cease fire must
be given as soon as assembly disperse. The force should always remain at
sufficient distance from crowd. 303 rifles with modern type of ammunition or
410 bore muskets be used for firing.

Firing should always be controlled and regulated

After use of force, the dead shall be sent to mortuary and the injured to
the hospital. First aid should always be given. A detailed report should also
be drawn up and sent to D.M. or higher officers. A case should also be
registered against the rioters for the offences committed by them.
Use of Military Force: In case the need of the help of military force is
deemed essential then it is only an Executive Magistrate who can requisition
military. No police officer of any rank can do so. In the absence of
Magistrate, commissioned officer of army can himself order military force to
be used.
When military force has been set in motion, the police will withdraw to
leave a free field of action to the military. Police can be used for help in
arresting and for establishment of law and order in or near about and will be
for all purposes under control of military force. (Sections 130 and 131
Cr.P.C).
For any acts done Chapter X of Cr.P.C., regarding dispersal of unlawful
assemblies, Sanction of State Government is necessary for prosecution of
Police Officers or Magistrates (Section 132 Cr.P.C.)



Chapter–27
Preventive Measures
The object of the security proceedings is not to punish but to prevent
crime. These do not end in conviction or acquittal as for an offence. These
are rather administrative than judicial, preventive rather punitive. The
enforcement of preventive measures as detailed in sections 106 to 110
Cr.P.C. has cumulative, healthy and salutary effect for prevention of crime.
Security for keeping peace can be demanded by the Court under section
106 Cr.P.C. and 107 Cr.P.C. The only difference between these sections is
that security demanded under section 106 Cr.P.C. is always when the Court
convicts an accused person of an offence involving a breach of peace as
detailed in Section 106 Cr.P.C. while the security under section 107 Cr.P.C.
is demanded when the Court is informed that any person is likely to commit
a breach of peace or disturb the public tranquility or to do any wrongful act
that may probably occasion a breach of the peace or disturb the public
tranquillity.

Section 106 Cr.P.C.

The S.H.O. at the time of preparation of challan, should always
recommend action under section 106 Cr.P.C. wherever desirable in the
report under section 173 Cr.P.C. During investigation also he is required to
bring material on the police file relating to offences involving violence to
person to show that relations of the parties inter se were strained since long
and that there have been cases involving breach of peace. He can make such
recommendation in all offences under Chapter VIII I.P.C. (other than offence
punishable under section 153A or 153B or 154 I.P.C.) and of assault or using
force or mischief or other offence involving a breach of the peace or of
abetting the same and of criminal intimidation.
An order of a Magistrate is erroneous in the eye of law if the Magistrate
does not give reasons for demanding such a security which must be for
keeping peace only. The order is wrong if the Magistrate calls upon the
accused to keep peace and to be of good behaviour. See Bakhshish Singh,
1952 Cr.L.J. 467. It was held in 1955 Mad. 596. In re Saroja that it was
generally undesirable where a person was charged with some petty offence
to tack on to small sentence of fine an order under section 106 Cr.P.C.
Similarly, it was held in 1957 Cr.L.J. 520 Mohammad Khasim that words
“involving a breach of the peace” appearing in section 106 Cr.P.C. require
that breach of the peace should be an ingredient of the offence and not
offences provoking or likely to lead to a breach of the peace, i.e., use of
indecent language in public place. The Court should take into consideration
if the accused is of desperate type and man of bad antecedents and was at
anytime guilty of a crime involving a breach of peace.

Section 107 Cr.P.C.

Under section 23 of the Police Act No. V. of 1861, it is the duty of every
police officer “to collect and communicate intelligence affecting public
peace, to prevent the commission of offence and public nuisance.” So,
whenever a police officer receives any such information regarding the
danger of breach of peace, it is his bounden duty to enter it into the daily
diary kept at the police station.
After entering the report, the following courses are open to him:
(a) If he thinks, there is no immediate danger of breach of peace, he is
merely to pass on the information to the Illaqa Magistrate and to that
end, copy of the daily diary or a complaint is to be sent to him.
(b) If he is of view that action of the party informed against is wrought
with immediate danger of breach and when he knows of a design to
commit any cognizable offence by the said party, which could not be
otherwise prevented, he can arrest the person so designing without
order of a Magistrate and without a warrant. (under section 151
Cr.P.C.).
(c) In case of arrest, the person so arrested must be forwarded to the
Magistrate along with the complainant under section 107 Cr.P.C., he
cannot be detained for more than 24 hours.
(d) If the police officer, on collecting information as such, does not
consider action under section 151 Cr.P.C. desirable, he is to write out
a complaint under section 107 Cr.P.C. and pass on the information to
the lllaqa Executive Magistrate through the Gazetted Supervising
Officer. This is only when he thinks that the circumstances warrant
danger of breach of peace, through not immediate. (See Punjab Police
Rules 23.3).
It is very often seen that the Executive Magistrate passes on the
complaints lodged by private persons in his Court under section 107 Cr.P.C.
to the police for report and action. In 1953 Cr.L.J. (Calcutta), it was held
that lllaqa Magistrate who is responsible to see that public peace or public
tranquillity is maintained in his lllaqa is competent to use the administrative
machinery to call or a public enquiry and report before issuing processes on
the petition of a private person without even examining the petitioner or
issuing notice to the person informed against. It was also held so in 1957
Cr.L.J. 273 (All.) Mohan Lal v. Kesh Ram.
The police in such a case is competent to take action as detailed above
from (a) to (d) on this or it can merely make a report regarding enquiry and
forward it to the Magistrate.
No hard and fast rule about the quality and character of information can
be laid down for the guidance of the police and the Magistracy. The trend of
criminal rulings is that the proceedings under section 107 Cr.P.C. are more
of an administrative character and as such the Magistrate must be left free
with a wide discretion in the matter and it is undesirable to fetter the hands
of a Magistrate in this respect.
The following rules based upon the judicial pronouncements are worth
consideration for both police and Magistracy:
1. The proceedings under section 107 Cr.P.C. are for prevention of
breach of peace and not of morals and are for prevention of ugly
criminal incidents.
2. The information to the Magistrate must be clear and definite based
upon tangible, evidence and supported by facts and the circumstances
against the persons informed. 1922 Cal. 97, 6 All. 26 . It should not be
 based on hearsay evidence. A particular allegation should be detailed
as the respondent is to meet that.
3. A strong and responsible probability of breach should be shown to be
existent and the evidence must show that the person was about to
commit offence. I.A.L.J. 418.
4. In coming to conclusion regarding breach of peace, the Court can take
into consideration, the utterances of threats by a party on different
occasions as well as the previous relations of the parties and the
antecedents and other existing circumstances. 1941 P. 241.
5. It is very often seen that both parties are complained against by police
under section 107 Cr.P.C. It has been held very often that in land
disputes and age-old enmities both parties should be bound down. It
was laid down in 1927 P. 313, 1926 L, 250, 1943 L. 99 that it is always
desirable to bind both parties where the rights are doubtful. The
police and the Magistracy should, however, see that exercise of one’s
rights in lawful manner is not jeopardized and the aggressor does not
get upper hand. It was held in 1942 Patna 331, that a rightful act
cannot be made the subject of proceedings even though it may provoke
a breach of peace or disturb the public tranquillity. Also see Ram
Mallah, 1956 Cr.L.J. 745, and 1957 Cr.L.J. 273. Mohan Lal.
6. There should be some overt act involving breach of peace by the
person who is to be bound down. In Berisal Singh, 1953 Cr.L.J. 846
(Raj), it was laid down that it is also necessary that it should be
proved by evidence that the party who was to be bound down was
doing overt act from, which it could be inferred that a breach of peace
might be committed. Where the Magistrate without referring to any
such evidence only contents himself by saying that by the police report
it was proved that there was danger of a breach of peace from the side
of the second party, the order under section 116 Cr.P.C. against the
second party is altogether unwarranted. The circumstance of the case,
however, can show in absence of overt act, that the person was likely
to commit breach of peace and it was held in 1930 All. 408 that it is
not always necessary to prove overt act towards breach of peace. In
case of a complaint under section 107/150 Cr.P.C if no overt act is
alleged against the respondent, then proceedings were quashed by
Punjab High Court in 1978 C.L.R. 245 Nand Singh.
The police officer while writing the complaint under section 107
Cr.P.C. should write as under:
(a) In Para No. 1, he should give the relations of respondent party inter
se.
(b) In Para No. 2, he should give the details of wrongful act or enmity
or cause occasioning breach of peace.
(c) In Para No. 3, the overt act or acts, the threats and other details
about strained relations should be given along with the previous
incidents.
(d) In Para No 4, the details about immediate danger of breach of peace, if action
under section 151 Cr.P.C. is taken, should be given to justify his
interference.
(e) Prayer for taking final security bounds and bonds under section 116
(3) Cr.P.C. if advisable, the reasons and the amount of bail bonds
should be suggested after taking into consideration the financial
capacity of the respondents.

Some Useful Hints

1. On the receipt of complaint under section 107 Cr.P.C. or when the
arrested person is produced, the Court is to serve him an order passed under
section 111 Cr.P.C.
 The Executive Magistrate, when respondent is produced after arrest
under section 151 Cr.P.C, cannot give remand under section 167 Cr.P.C. as it
is not applicable; or can send the respondent to jail without giving notice
under section 111 or without passing order of interim bail under section
116(3) Cr.P.C. The word offence does not apply to proceedings under section
107 Cr.P.C. The respondent as such is to be released without taking bond
unless notice under section 111 Cr.P.C. is to be given. 1983 Cr.L.J. 315
Divyajit Mukandi Lall 1985 (1) C.L.R. 355.
In case the respondent is absent and is to be summoned, a copy of the
order under section 111 Cr.P.C. must be sent along with the summons
(section 114). If he is present, order shall be read over to him and explained
(section 112). It was, however, held in 1924 N 166, 1920 P. 5 that the failure
to serve a copy of the order passed under section 111 Cr.P.C. along with the
summons will only be irregularity which will not vitiate the order in the
absence of prejudice.
2. A warrant to secure the presence of respondent can only be issued if it
appears to the Magistrate that there is reason to fear the commission of
breach of peace and it cannot be prevented otherwise than by the immediate
arrest of such person (Section 113 Cr.P.C). See Narsapya 1953 Cr.L.J. 1959
(N), issue of warrant without passing order under section 111 Cr.P.C.
renders it invalid.
Sections 107 and 111–Breach of Peace–order of summons as to–not passed
in writing as required under section 111–Thereby same was not sent along
with summons–Thus Bail summons order being bereft of all mandatory
details–Amounts to abuse of process of court–Proceeding quashed.
Nimmagadda Ravi v. State of A.P., 1998 Cr.L.J. 1823 (AP).
Section 107–Cancellation of arm licence–Proceeding under section 107
Cr.P.C. against petitioners–Proceeding dropped on next day on basis of
compromise–Order of District Magistrate cancelling licences of petitioners
two years after–Order quashed being illegal and based on non-existent
ground. AIR 1973 (P&H) 24 relied in Ranjeet Singh v. State of M.P., 2001
Cr.L.J. 4821 (MP).
Sections 107, 111, 112 and 116–Breach of Peace–Bond for keeping peace–
Order of Magistrate did not mention the period for which the petitioners
were asked to execute the personal bond-Cyclostyled form used to issue
order–Magistrate did not take care of even scoring off the redundant lines–It
showed non-application of mind–Order quashed. Mohd. Sadiq Abdul Khalil
Patel v. Choughule PSI, 2004(1) RCR (Cri.) 866 (Bombay).
Sections 107 and 111 Cr.P.C.–Order of Executive Magistrate under
section 107 and 111 Cr.P.C.–The order should be in writing which should
indicate:
(i) Substance of information received, (ii) Amount of bond to be executed,
(iii) The term for which it has to be in force, (iv) Number, character and
class of sureties required to be furnished, (v) Notice to petitioner. Notice to
petitioner quashed as order of Magistrate did not contain said particulars.
Kappala Sunki Reddy v. State of A.P., 2004(1) RCR (Cri.) 257 AP.
Sections 107, 111 and 157 Cr.P.C.–Apprehension of breach of peace–For
purpose initiating proceedings under section 107 Cr.P. C., police or the
Magistrate need not wait for incident of violence. Mohammad Ali v. State of
Kerala, 2004(1) RCR (Cri.) 496.
Sections 107, 111 and 482–Breach of peace–Proceedings under section
107 Cr.P.C. initiated by Magistrate–High Court to interfere in proceedings
only sparingly where High Court is convinced that proceedings were
initiated with oblique motives or without sufficient reasons. Mohammad Ali
v. State of Kerala, 2004(1) RCR (Cri.) 496.
Section 107 and 111 Cr.P.C.–Breach of Peace–For initiating proceeding
under section 107 Cr.P.C. registration of F.I.R. is neither necessary nor
justified. Criminal Procedure Code makes no provision for registeration of
F.I.R. Mohammad Ali v. State of Kerala, 2004(1) RCR (Cri.) 496.
Sections 107 and 111 Cr.P.C.–Scope and Object of Section 107 Cr.P.C.–It
is not a punitive proceedings–Proceedings are primarily meant for
maintenance of peace and tranquillity in the locality–An order under section
107 Cr.P.C. read with Section 111 only calls upon the persons proceeded
against to show cause why they should not be directed to execute a bond to
keep the peace–Sufficient and cogent reasons must be available, before the
Executive Magistrate can call upon a person to execute such a warrant–The
powers cannot be lightly invoked. Mohammad Ali v. State of Kerala, 2004(1)
RCR (Cri.) 497.
Section 107 and 111 Cr.P.C.–Security for keeping peace–Preliminary
order drawn in cyclostyled form without application of mind–Proceedings bad
in law and quashed–Section 107 of Cr.P.C. requires formation of an opinion
of existence of sufficient ground for proceeding under the Section–Section
111 of Cr.P.C. also require an order to be passed in writing setting forth the
substance of the information received, the amount of the bond to be
executed, the term for which it is to be in force. Jagandeep Singh Anand v.
Director General of Police, 2004(1) RCR (Cri.) 419 (MP).
Sections 107 and 116 Cr.P.C.–Notice issued inpursuance to order passed
under section 116(3) Cr.P.C.–Before directing a person to execute a bond for
prevention of breach of peace, a Magistrate has to record reasons in writing.
In this present case, no reasons were recorded while passing the order–
Impugned order stayed. Anil Giri v. State of Uttarakhand, 2012(1) Crimes
556.
Section 107/151 Cr.P.C.–Registration of case under it–Writ petition for
quashing the proceedings–The status report showed that writ petitioners had
been under the influence of alcohol and had been abusing, threatening and
quarrelling each other at the public place–Magistrate has passed release
order, however, they could not be released because they failed to furnish the
personal bond with a surety in the like amount–High Court has quashed the
proceedings–High court erred in awarding even taken compensation to the
tune of Rs. 25,000/- each as High Court did not hold any enquiry and passed
the order merely after considering status report without hearing any of the
persons against whom allegations of abuse of power had been made–
Impugned judgement and order set aside. Rajender Singh Pathania v. State
of NCT of Delhi, 2011(4) Crimes 287 (SC).
Section 107/150 Cr.P.C.–In the present case, dispute was between
landlord and tenant–Issue of notice under section 111 Cr.P.C. by Executive
Magistrate after police filed kalandra under section 107/150 Cr.P.C.–Petition
to quash notice–Held–In such like matters, the Special Executive Magistrate
should have exercised his power under section 107 of the Code in a guarded
manner. Notice issued under section 111 Cr.P.C. was lacking material
particulars on a cyclostyled proforma–There was nothing to indicate that he
had formed an opinion as required under section 107 Cr.P.C. and there was
apprehension of breach of peace–Notice has been issued in a mechanical
manner in utter disregard to the provisions of law. Satya Devi v. State,
2008(4) Crimes 734 (Del.)
Section 107 & 111 Cr.P.C.–There was a political dispute between the
parties–SEM issued notice asking her to show cause as to why she would not
execute a bond for Rs. 5000/- for keeping peace of a period of one year–
Held–Magistrate is under legal obligation to conduct an enquiry to satisfy
himself that there was necessity to initiate proceedings–He cannot initiate
such proceedings singly basing on police report–The impugned order and
notice quashed. Dibakar Bhoi v. State of Orissa, 2009(4) Crimes 114.
Section 107/151 Cr.P.C.–The Magistrate should not sign the order in a
mechanical manner on a cyclostyled paper but it should be well reasoned and
detailed one. Moinuddin v. State, 2010(2) Crimes 114 (Del.).
 Sections 110 and 116 Cr.P.C.–Proceedings initiated against applicant and
show cause was issued and in absence of surety petition was sent to jail–
Held–Order impugned shows that the court below has not passed any
preliminary order under section 110 Cr.P.C. which is sine qua non for
initiation of the proceedings under section 110 and 116(3) of Cr.P.C.–
Impugned order was illegal and quashed. Samad Khan v. State of
Chhattisgarh, 2009(3) Crimes 674.
3. The procedure applicable to such cases is a summons one prescribed
for trial of summons cases.
4. It is not legal to accept the plea of respondents to be willing to be
bound down straightway and pass final order demanding security. There are
two courses open under such circumstances:
(a) To examine one or two Prosecution Witnesses and then to act on the
admission of the respondent for binding him down.
(b) To examine the respondent at the outset in detail and record his
admission not only with respect to his willingness to furnish security
but also his admission as to the correctness of the allegations of the
prosecution against him and apprehension of danger of breach, of
peace at his hands, e.g., “muje Wakiat Notice Se itfak hai.” 1954
Cr.L.J. 11 (All.) Bhup Narain.
5. The Magistrate can drop proceedings and discharge persons proceeded
against at any stage and as such it is not necessary that the whole of the
prosecution evidence should be completed and defence taken. 1953 Cr.L.J.
244 (Trav.) Chetha Ittaman.
6. Notice under section 111 Cr.P.C. must be issued first, before passing
the order under section 116(3) Cr.P.C. demanding security pending the
completion of enquiry. It was held in 1954 Cr.L.J. 543 (M.B.) Teja Singh Man
Singh that, “an order passed by the Magistrate, under section 117(3) (now
Section 116(3) Cr.P.C. immediately on receipt of information and without
passing an order under section 112 (now Section 111), Cr.P.C. is illegal and
deserves to be set aside.” Munshi Gafur Khan, 1957 Cr.L.J. 147 (Orissa). The
order should not be mechanically passed along with order under section 111
Cr.P.C. The reasons should be given. See Supreme Court decision in Madhu
Limaye 1971 Cr.L.J. 1715 where it was held that Magistrate ought to have
entered upon the enquiry and satisfied himself at least prima facie about the
truth of the information in relation to the alleged facts before asking for
interim bond under section 117(3), (now Section 116(3)), Cr.P.C.) Mere
notice under section 112 (now Section 111), Cr.P.C. was not sufficient. Again
held in 1971 Cr.L.J. 1720 (S.C.) Madhu Limaye that Magistrate cannot
adjourn case and in the interval send the person to jail if he refuses to
furnish bond under section 117(3), (now Section 116(3)) Cr.P.C.
The Magistrate must apply his mind to the complaint that it was
necessary to require the respondents to execute bonds under section 116(3)
and then proper notice under section 111 incorporating allegations of
immediate apprehension of breach of peace and then order for obtaining
bonds under section 116(3) 1990 Cr.L.J. 40.
7. Both parties to a proceeding cannot be tried together. It is a mis-
joinder not curable by section 465 Cr.P.C. In case both parties are sent up,
the police officer should always prepare two separate petitions.
8. Sentence of imprisonment in default of furnishing security should
always be simple (Section 122 (7) Cr.P.C.).
9. In case of discharge no revision lies. See Chatha Ittaman Supra,
Private person has no locus standi to apply for revision. It was also held in
this ruling that the powers of the High Court of revision are wide and once
the proceedings have come to the knowledge of the High Court, it can
examine the legality of the order passed.
 In case of conviction appeal lies to the Sessions Judge under section 373
Cr.P.C. The Appellate Court can send the case for retrial. 1957 Cr.L.J. 269
All. Ram Sarup.
10. The respondent should not be asked to furnish a bond with or without
sureties for keeping peace for period not exceeding one year. Section 107(1)
Cr.P.C. The period and amount of security bond should be in conformity with
notice under section 111 Cr.P.C.
11. Section 107 Cr.P.C. proceeding are not compoundable.
12. The respondent can recall witnesses for the prosecution in defence
and can cross-examine them.
13. Any Executive Magistrate can take up proceedings under section 107
Cr.P.C. if the place where the breach of peace is apprehended is within his
jurisdiction or there is within such limits a person who is likely to commit a
breach of peace, or disturb the public tranquility or to do any wrongful act
beyond such limits. Section 107(2).
14. Section 107 Cr.P.C. is preventive and not punitive. Proceedings under
section 107 Cr.P.C. being of a quasi criminal nature, can give rise to a case
of action for a suit for damages for malicious prosecution. See 1955 Cr.L.J.
989 Punjab, Indar Singh Anup Singh.
15. The report of police officer is not a legal evidence and the police
officer to appear in the Court to give reasons to substantiate the allegations
as to why there is danger of breach of peace from the respondent. In the
security proceedings, the evidence of police officer though not of great
evidentiary value cannot be altogether excluded from consideration.
16. No prayer for remand can be made by police officer in proceeding
under section 107 Cr.P.C. Section 167 Cr.P.C. does not apply to these
proceedings. The Magistrate immediately on receipt of petition under section
107 Cr.P.C. is to proceed according to Section 111 to Section 118 Cr.P.C.
1957 Cr.L.J. 427. Shravan Kumar Gupta.
17. In Section 107 proceedings detention as a result of orders under
section 106, 116, and 122 Cr.P.C is a kind of preventive detention and a sort
of precautionary measure and not a punitive detention. This is as such not
repugnant to Article 22 of the Constitution of India. 1957 Cr.L.J. 826
(Andhra). In re Shark Kalesha.
18. Section 258 Cr.P.C. is not applicable to proceedings under section
107 Cr.P.C. and the Magistrate is not entitled to stop such proceedings
under section 258 Cr.P.C. 1957 Raj. 352 Arjun.
19. The proceedings under section 107 Cr.P.C. are not in the nature of
harassment and should as such be not delayed. Prosecution should not
deliberately avoid production of witnesses in the Court. The proceedings in
Krishan Murari, 1966 P.L.R. 143 and 1967 Cr.L.J. 79 Brij Lall were quashed
by Punjab High Court for vexatious delay.
Sections 107 and 116 (3)–Proceedings under section 107–Are meant for
keeping peace and not for maintaining good behaviour–order directing
petitioner to execute bond for maintaining good behaviour is illegal. Ajit
Manna v. Shantilata Panchal, 1997 Cr.L.J. 4015 Cal.
The enquiry under the section by the Magistrate shall be completed
within a period of 6 months from the date of its commencement and if such
inquiry is not so completed, the proceedings under this Chapter shall on the
expiry of the said period stand terminated unless for special reasons to be
recorded in writing the Magistrate otherwise directs.
The stage when the limitation starts would be when both parties appear
before Magistrate and he proceeds to inquire with reference to the evidence
as to whether the delinquencies alleged are established. It starts from the
date on which recording of evidence begins and period of six months should
be counted from such date. 1981 Cr.L.J. 39, 1988 Cr.L.J. 255.
 The enquiry automatically terminates after 6 months. In case the
Magistrate wants to revive it, he must give special reasons before
termination of 6 months where after he cannot. In case if respondent is in
detention for 6 months, the enquiry cannot be extended. Sharv Shri Nasiru,
1977 P.L.R. 409,1978 Cr.L.J. 603.
It was held in Ramdeo Yadav, 1985 Cr.L.J. 436 that extension of period
cannot be for more than 6 months under section 116 (6). Continuation
beyond 6 months from date of extension without fresh order for further
extension would be illegal.

Bail in case under section 107 Cr.P.C.

The bond with or without sureties can be ordered under section 116 for
keeping peace or maintaining good behaviour until the conclusion of enquiry.
Bail for appearance can also be ordered when a person is produced before
Magistrate but only until a notice under section 111 Cr.P.C. is given, under
the implied authority of Section 91 Cr.P.C. (88 of new code). But once an
order under section 111 Cr.P.C. is given, no bail for appearance can be
demanded and a person will be released on his bond only. This was ratio of
the decision of Supreme Court in Madhu Limaye’s case Supra. See M. Y.
Singh 1961 Manipur 62, 1976 C.L.R. (Punjab) 90 Balbir Singh ; further held
in Chander Parkash, 1976 C.L.R. (Punjab) 94 that Section 88 has no
application and in proceeding under section 107/151 bail cannot be ordered
for appearance; Vidya Sagar Singh, 1976 C.L.R. 99 (Punjab) nor they can be
sent to jail for failure to give bails; Joginder Singh, 1977 C.L.R. 159
(Punjab).

Section 108 Cr.P.C.

The security by Magistrate for good behaviour is demanded from persons
disseminating seditious matter. There ought to be evidence that the person
proceeded against would contrive to disseminate or attempt to disseminate
sedition in future. A single act of this nature can become enough for
demanding security if it is shown that repetition is probable. See 1932 P.
213 Section 108 Cr.P.C. is not unconstitutional. Demanding security under
section 108 Cr.P.C. is, therefore, imposing reasonable restrictions on the
right conferred by Art. 19(1) (A) in the interests of security of state and
public order. 1956 Cr.L.J. 473 (All.) Balroof v. State of U.P.
Section 108–I.P.C. 494–Bigamy–Husband contracting second marriage–
Wife can file complaint through her son, daughter or other close relative, if
she finds any difficulty to prosecute her husband and his second wife by
herself. Thanga Mani S. v. State of Kerala, 2006 (2) RCR (Cri.) 115 Kerala.

Section 109 Cr.P.C.

Under Section 109 Cr.P.C., security is demanded for good behaviour from
vagrants and suspected persons who being or coming within local limits of
jurisdiction of Magistrate take precautions to conceal their presence with a
view to committing a cognizable offence. The Magistrate has power to
demand security from persons even though their residence is well-known
within the jurisdiction of a Magistrate if it is proved that such person had
been concealing himself to commit some offence.
To apply Section 109 there must be some definite attempt at concealment
and that too with a view to commit an offence and not merely to escape
arrest by police. See Jagan Nath, 1953 Cr.L.J. 668, 1956 Cr.L.J. 996 (H.P.)
Ganga Ram. There should be concealment of person and not of identity by
wrong names. etc. See 1943 All. 567 and 1943 All.369 . In both the cases the
fact of the accused running away on seeing police party and concealing and
on being found in possession of house-breaking elements, it was held that
these cases were covered by section 109 Cr.P.C.
Sections 109 and 357 Cr.P.C.–Order of Magistrate to detain a person in
judicial custody without justification–Magistrate directed to pay
compensation of Rs. 2000/- to the person. D.P. Mehta v. State of Karnataka,
2004(2) RCR (Cri.) 634.
Section 109 and 111 Cr.P.C.–Proceedings under section 109 Cr.P.C.–
Magistrate directed the delinquents to show cause as to why they should not
be directed to execute good behaviour bond of Rs. 2000—Good behaviour
bonds furnished but in spite of that Magistrate remanded delinquents to jail
custody–Reasons for not accepting bond not stated in the order sheet–Illegal
order touched liberty of the delinquents–Executive Magistrate directed to
pay compensation to each of the persons at the rate of Rs. 2000/- Secretary,
Bar Association. Sohella v. D. Mohapatra, 2004 (2) RCR (Cri.) 580.

Who can Arrest

Subject to warrant or order of Magistrate to arrest a person as mention in
section 41(2) in other circumstances, no person concerned in non-cognizable
offence or against whom a complaint has been made or credible information
has been received or reasonable suspicion exist, shall be arrested except
under a warrant or order of a Magistrate.
Sometimes it so happens that some police officer other than an officer-in-
charge makes an arrest with warrant or order of the Magistrate for sending
up this person under section 109 Cr.P.C. He makes the arrest under section
41(1) Cr.P.C. or section 151 Cr.P.C. The procedure will follow as per section
41(2) of Cr.P.C. section 56 Cr.P.C. allows police officer arresting a person
without warrant to take him before the officer-in-charge of the police
station. The officer-in-charge is then to send him to Judicial Magistrate with
the information of taking action under section 109 Cr.P.C. In 31 Cal. 557 in
which the decision in 29 M. 124 was approved, it was argued that a police
officer not being officer-in-charge had made the arrest and as such arrest
was illegal and the respondent was entitled to discharge. It was held “The
Magistrates were empowered to put in force the provisions of section 109
Cr.P.C. whenever they had credible information that accused was taking
precautions to conceal with a view to commit an offence, how he came before
them being immaterial.”
The net result is that there is no illegality in proceeding against a person
under section 109 Cr.P.C. if the conditions in Sections 109 are satisfied
irrespective of the fact whether arrest was made by an officer-in-charge of
police station or some other police officer.

Admission before a Police Officer

The general trend of police officers to prove that a person was concealing
with a view to commit an offence is to insert evidence that the respondent,
at the time of arrest, admitted that he had come to commit theft. Such
evidence does not amount to confession as the respondent is not charged
with an offence. It was held so in 1950 All. 134,1942 Oudh 246 and 1983 M.
688. The statement of such a person is not confession and it is not affected
either by section 162 Cr.P.C. or by section 25 Evidence Act, so as to be
inadmissible in evidence on the mere ground that it is made to a Police
Officer.

Section 110 Cr.P.C.

General comments on all the clauses:
According to the provisions of Punjab Police Rules Chapter 23, Rule 30,
an order of Gazetted Police Officer is to be obtained for putting up a challan
under section 110 Cr.P.C. Such Gazetted Officer will look into the material
collected against the bad character in their History Sheets and then order
accordingly. This should be kept in view that Police History Sheets are not
admissible in evidence 57 I.C. 940. In order to challan local Lambardar
under section 110 Cr.P.C. a previous sanction of District Magistrate is
necessary. (Punjab Police Rules Chapter 23, Rule 30).
 An officer-in-charge of a police station can arrest or cause to be arrested
under section 41(2) Cr.P.C. following persons for sending under section 110
Cr.P.C, after obtaining the warrant or order of a Magistrate.
(a) Who is by repute habitual robber, house-breaker or thief.
(b) Or a habitual receiver of stolen property.
(c) Habitually protects or harbours thieves or aids in the concealment or
disposal of stolen property.
(d) Habitually commits, attempts to commit or abets the commission of
kidnapping; abduction, extortion, cheating or mischief or any offence
punishable under Chapter XII I.P.C. or Sections 489A to 489D I.P.C.
(e) Habitually commits, attempts to commit or abets the commission of
offences involving breach of peace.
(f) Habitually commits, attempts to commit or abets the commission of:
(i) any offence under one or more of the following Acts:
(a) Drugs and Cosmetics Act, 1940.
(b) Foreign Exchange Regulation Act, 1973.
(c) Employees Provident Funds and family pension fund Act,
1952.
(d) Prevention of Food Adulteration Act, 1954.
(e) Essential Commodities Act, 1955.
(f) Untouchability (offences) Act, 1955.
(g) Customs Act, 1962.
(h) Foreigners Act, 1946.
(ii) any offence punishable under any other law providing for the
prevention of hoarding or profiteering of adulteration of food or
drugs or of corruption.
(g) is so desperate and dangerous as to render his being at large without
security hazardous to community.
So, a complaint for the information of the Executive Magistrate who is
always a Magistrate exercising First Class powers should be lodged for
taking action under section 110 Cr.P.C. The complaints are on printed forms
as prescribed by police rules.
Mere giving a bad name to person and reproducing clause or section of
Statute against him, giving no information is not sufficient.
See also 1925 M. 189 and 1918 M. 219, wherein it was observed that a
notice under section 111 Cr.P.C., must contain something more than a
reproduction of the clauses of that section. There should be sufficient
indication of the time and the place of the acts charged and sufficient detail
which should enable the accused, to know the facts that he has to meet.
The Magistrate then should scrutinize this information given to him, apply
his mind to all the material supplied to him and then pass an order under
section 111 Cr.P.C. The copy of which should go with the summon which
should always be issued unless the case is covered by the Proviso to section
113 Cr.P.C. if respondent is not present.
In the notice under section 111 Cr.P.C. it should be made cogently clear
as to what allegation the respondent is to meet. The words “substance of
information” in section 111 mean, much or so much of the information as
would enable the party to know under what clause of section 110 he is
charged or to what class of offenders he is said to belong. A mere repetition
of the words of clauses is not required. The accused can ask to furnish the
details in case mere words of clauses are repeated. See 1956 Cr.L.J. 110
(Patna) where it was further held that, “The failure to comply with provisions
of section 111 does not divest the Magistrate of his jurisdiction to deal with
the proceedings and in absence of prejudice the subsequent proceedings
ought not to be treated as being void ab-intio.”
 The police officer should give in detail the previous convictions of the
respondents.
The previous conviction are to be proved according to the provisions of
section 298 Cr.P.C. in a proper manner as discussed earlier. (Chapter
Identification).
The suspicions should be detailed along with cases and the reasons must
be given as to why the respondent was suspected. Mere suspicions and vague
rumours are not sufficient to warrant action under section 110 Cr.P.C.
Suspicion is worthless and inadmissible to support an order under section
110 Cr.P.C. unless supported by good reasons and the facts on which
suspicions are based. 1929 All. 599.
In 22 Cr.L.J. 273, 2 Cr.L. J. 609 , the evidence that a person has been
suspected and named in a large number of cases extending over a
considerable interval was held to be very useful corroboration of general
evidence of bad reputation. Mere suspicion in this or that isolated offence
was held not to be evidence of general reputation in 1929 L. 41, 1928 L. 49.
If suspicions of various thefts supported by reliable evidence coupled with
evidence of bad repute and association with bad characters are proved
against a respondent then an order under section 110 Cr.P.C. was justified.
1936 OWN. 247.
Hearsay evidence as such is admissible in these proceedings to prove
general reputation, and a charge under section 110(a) See 43 M. 450,
harbouring dacoit is not within the section. 1928 A 682; for harbouring
dacoit, specific offence under section 216 (A) I.P.C. is made out.
In Karey v. State Supra the duties of prosecution have been given by
Desai, J. for proof of the respondent being by habit a house-breaker or thief.
The prosecution must prove:
(i) that he has committed burglaries or thefts to such an extent that
he can be said to be a habitual burglar or thief;
(ii) or by proving that his general reputation is that of a habitual
burglar or thief.
The fact mentioned at (i) can be proved not only by previous conviction
but also by evidence to the effect that such and such burglaries or thefts
were committed by him. It is not essential that evidence about the
commission of burglaries and thefts be given by eye witnesses; it can also be
given by person who personally knows the facts, leading to the inference the
applicant was responsible for burglaries and thefts. In other words, evidence
to prove commission of burglaries and thefts can be direct or circumstantial.
If there is commission of small number of thefts or burglaries then this
fact can be supplemented by the evidence of general repute.
Sections 110, 41 and 482–Security for good behaviour to habitual
offender–Chapter proceedings–Quashing of–Petitioner arrests and chapter
proceedings initiated against him on basis of pendency of criminal case and
statement of witnesses that petitioner was likely to commit extortion etc.–
Said statement of witnesses recorded three months prior to arrest–No case
of emergency nor there was information to police that petitioner was
desperate and dangerous character creating problems for security of
community–Arrest of petitioner and initiation of chapter proceedings against
him illegal. Shyam D. Beturkar v. Spl. Executive Magistrate, 1999 Cr.L.J.
2676 Bom Kalyan.
Section 110 Proceeding for–Under Section 110–Security for good
behaviour from habitual offender–Police has no power to arrest person who
is being proceeded against in absence of production warrant from
Magistrate. Abdul Naim v. State of Orissa, 2000 Cr.L.J. 1888 (Ori.).
Section 110–Security bond for good behaviour–Two criminal complainants
against the petitioner under section 323, 504 and 506 I.P.C.–Order of
Magistrate directing the petitioner to furnish Security bonds set aside–
Security bonds can be obtained only from “habitual offenders”–Stray
incidents would not permit legitimate inference or conclusion of habit–Habit
indicates addiction to commit crime and the person shall be dangerous to
society. Mohan P. Khatri v. M. G. Ingle, 2004 Cr.L.J. 1017 (Bombay).

Suspicions to be based on Good Reasons

1. If it is mentioned in F.I.R. (copy of F.I.R. to be attached in that case).
2. If it was by (Gaverh), i.e., by persons joining investigation due to
certain
circumstantial evidence connecting the suspects with thefts e.g. seen
near place of incident and motive, and so on.
3. If the suspicion was due to some detective work by I.O. and his
reasons.
4. If house was searched, interrogated as suspects, arrested and got
discharged for want of evidence or inability to recover articles, etc.
5. If challaned and case ended in acquittal; whether benefit of doubt was
given; reasons for casting a suspicion in spite of judicial finding.
6. If action is proposed under section 110 (g), ground must be prepared
well in advance and complaints against him should be recorded in the
daily diary.

Section 110(e) Cr.P.C.

There is no warrant in law for the view that evidence of relatives only is
not good for conviction. The evidence of previous conviction may not be
strictly given to prove these for action under section 110(e) Cr.P.C. The
evidence relating to specific crimes need not in such proceedings be so
strong as would secure a conviction for a specific charge but show that
general reputation is such as would justify a demand for security. 1953
Cr.L.J. 1246 (Trav. Co.) Soodalamadan.
A person who beats people and threatens is a desperate and dangerous
character. To prove a charge under section 110(g) Cr.P.C. there should be
proof of specific acts that the accused to the knowledge of some particular
individual is a dangerous or desperate character. 29 Cal. 779. Evidence of
general repute can be given Section 116(4).
Evidence of general repute is not sufficient to bring a case within section
10(g) Cr.P.C. but specific acts showing that the accused recklessly
disregards the safety of the persons or the property of his neighbours and
actually causes danger must be proved. 19 Cr.L.J. 871. To that end, the
reports of certain persons in the daily diary of police station, if recorded and
produced would be very strong piece of corroborative evidence.
Sections 111, 107 and 151–Security proceedings to prevent breach of
peace–Order passed by Magistrate did not show that Magistrate satisfied
himself that there was threat or breach of peace and which could not be
prevented without immediate arrest of the person–Held, order was passed
without application of mind–It was cryptic order and set aside. AIR 1971 SC
2486 relied–Pradeep Singh v. State of Punjab, 2003(2) RCR (Cri.) 689 (P&H).
Sections 116 (3) Proviso, 111 and 107–Breach of Peace–Proceedings
initiated under section 107 Cr.P.C.–Execution of interim bonds by the
petitioners cannot be insisted upon in view of proviso to section 116(3)–
Power of Magistrate to direct a person to execute interim bond is restricted
only to cases arising under sections 108, 109 or 110. Mrs. Pramila Navin
Shaha v. State of Maharashtra, 2005 Cr.L.J. 2931 (Bombay) (DB).

Hints (for Sections 109 and 110 Cr.P.C)

1. The person arrested under section 109 or 110 Cr.P.C. must be
produced before a Magistrate without unnecessary delay (24 hours at the
most allowed in section 57 Cr.P.C.) and subject to provisions of bail. The
persons arrested should always be given option for bail. A police officer can
enlarge the accused on bail. 14 All. 45.
2. Section 167 applies to security proceedings under section 109 Cr.P.C.
for remand.
But see, no order under section 167 Cr.P.C. can be passed until the
Magistrate has recorded an order under section 111 Cr.P.C. 46 All. 262, 6
All. 132,14 All. 45.
3. The procedure applicable to these proceedings is that of summons
cases. Ordinarily under sections 109 and 110 Cr.P.C. every person has to be
tried separately for the offences enumerated therein. [Section 116(2)].
4. Respondents arrested together under section 109 Cr.P.C. under the
same circumstances being associates together can be jointly tried. Under
Section 110 Cr.P.C. also joint trial is permissible where conspiracy or acting
in concert is alleged. 37 C. 91, 1937 Oud 86. One or more persons believed
to be habitually committing one or more of the offences mentioned either
jointly or severally can be proceeded against under section 110 Cr.P.C.
jointly. [Section 116(5) Cr.P.C.]
5. Mere consent to be bound will not justify binding down. 1925 Sec. 321,
1928 A 357. Some evidence must be recorded.
The governing principle in such cases should be as laid down in Angnoo
Singh v. Emperor 1923 All. 35, “It seems very hard, almost oppressive to any
set of defendants to charge them together unless the whole of the evidence
against all of them is precisely the same.”
6. When a Magistrate before whom an enquiry is pending is succeeded by
another Magistrate, the person against whom the inquiry is pending has no
right to ask for a denovo trial.
7. The defence can cross-examine prosecution witnesses by calling them
in defence.
8. A person cannot be bound down both under sections 109 and 110
Cr.P.C. 38 M. 555. But a person can be bound down both under section 107
Cr.P.C. and 110 Cr.P.C. as under section 107 one is to execute bond for
peace and under section 110 Cr.P.C. bond is to be for good behaviour.
9. Bond under section 109 Cr.P.C. is not exceeding one year while under
section 110 Cr.P.C. bond ordered can be for such period as does not exceed
3 years. The imprisonment in default of bond is simple or rigorous as court
directs Section 122(8). The period and amount of bond must be in conformity
with notice under section 111 Cr.P.C.
10. No revision lies against order of discharge. Appeal lies against order
of binding down under section 373 Cr.P.C. to Session Judge.
11. If an accused is arrested for a substantive offence, and convicted, he
cannot be sent up under section 109 Cr.P.C. on the same facts and bound
down. See 1928 L. 928 (Nathu v. Emp.) Similarly if the accused is discharged
or acquitted in a substantive offence, he should not be sent up under section
110 Cr.P.C. immediately after that some time should be given to him as to
how he behaves.
12. The inquiry under security sections should be finished within 6
months from the date of its commencement otherwise it will stand
terminated, if not continued for reasons by Magistrate. In case the accused
is in custody for 6 months the proceedings shall stand terminated on the
period of 6 months of detention. Section 116 (6) Cr.P.C.
If proceedings are continued beyond six months, then Sessions Court on
application of adverse party can vacate this order. Section 116 (7) Cr.P.C.

Other Preventive Measures. Action under section 133 Cr.P.C.

(i) An officer-in-charge of a police station can move D.M., S.D.M. or any
other Executive Magistrate for removal of any public nuisance, viz.
any unlawful obstruction to any way, river or channel, any injurious
 trade, building, etc. likely to fall; substances likely to explode; tank,
etc. to be fenced; dangerous animals to be destroyed, etc.
(ii) Apply with necessary material, based upon sufficient evidence in the
interests of public.
Section 133–Nuisance —
(i) Term “Nuisance” as used in law is not a term capable of exact
definition.
(ii) Nuisance is an inconvenience which materially interferes with the
ordinary physical comfort of human existence.
(iii) There must be imminent danger to property and consequential
nuisance to public.
(iv) Nuisance must be in existence and not future nuisance. 1995 supp.
(4) SCC 54 relied Kachrulal Bhagirath Agarwal v. State of
Maharashtra, 2004 Cr.L.J. 4634 (SC).
Section 133–Proceedings under section 133 are not intended to settle
private disputes between different members of the public–They are in fact
intended to protect the public as a whole against inconvenience–Proceedings
under section 133 are more in nature of civil proceedings than of criminal
nature. Kachrulal Bhagirath Agarwal v. State of Maharashtra, 2004 Cr.L.J.
4634 SC.
Section 133–Object of section 133 Cr.P.C. is to enable an Executive
Magistrate to pass orders speedily in a case where public nuisance or
obstruction has been made in the right of the public at large–The object of
Section 133 Cr.P.C. is not to enable a complainant to obtain order to
safeguard his civil right nor he can obtain any relief in connection with his
legal rights. Makhan lal v. Buta Singh, 2003 Cr.L.J. 4147 (P&H).
Section 133–Nuisance–Dispute affecting one individual but not the public
at large–Section 133 Cr.P.C. is not attracted–This Section cannot be used for
settlement of disputes between the private parties–This provision can be
used only for settlement of disputes in relation to public right in the general
interest of the public at large. Ramchandra Malojirao Bhonsale v. Rasikbhai
Govardhan bhai Raiyani, 2001 Cr.L.J. 866 (Gujarat).
Section 133(1)(b)–word “community” in clause (b) of section 133(1)
cannot be taken to mean residents of a particular house. It means something
wider, that is, the public at large or the residents of an entire locality.
Kachrulal Bhagirath Agarwal v. State of Maharashtra, 2004 Cr.L.J. 4634
(SC).
Section 133–Repeal of section 133 consequent up on coming into force the
Water and Air Pollution Acts–There is no repeal of section 133 Cr.P.C.–The
object and purpose of both the provisions are to govern their own fields–
Section 133 Cr.P.C. can be called in aid to the provisions of Air and Water
Pollution Acts –There is no presumption against repeal by implication–The
legislature while enacting the law of pollution control had complete
knowledge of existence of section 133 Cr.P.C.–Despite that by implication
can be presumed only when the two provisions in question are so
inconsistent or repugnant that two cannot stand together–If the two can be
called in aid to each other. There is no question of repeal by implication–
Provisions of section 133 Cr.P.C. are in the nature of preventive measure
whereas the provisions of control of Pollution Act are mutually exclusive,
violation of which amounts to an punishable offence–Section 133 Cr.P.C. is a
curative measure. State of M.P. v. Kedia Leather & Liquor Ltd., 2003 Cr.L.J.
4335 (SC).
Section 133–Nuisance–Petitioner running a workshop in residential area
which was creating pollution and nuisance and was creating health hazard,
air pollution, vibration and noise–The same was disturbing the study of
children–Order of SDM directing the petitioner to remove the nuisance–No
legal infirmity. Manoj v. Premlal, 2006 (3) RCR (Cri.) 942 (P&H).
 Section 133–Every D.M. and S.D.M. has power to pass an order under
Section 133–Any other Executive Magistrate be specifically empowered to
pass the order thereunder–Order under Section 133 of the Code passed by an
officer not specifically empowered by Government to pass such order–Void.
[Link] Malleshwari v. Mandal Revenue Officer, Mangalagiri, 2005(3) RCR
(Cri.) 602 (A.P.).
Section 133 Cr.P.C.–A proceeding under section 133 is of summary
nature. It appears as a part of Chapter X of the Code which relates to
maintenance of public order and tranquility. Proceedings under section 133
are not intended to settle private disputes between different members of the
public. They are infact intended to protect the public as a whole against
inconvenience. Further, the proceedings under section 133 are more in the
nature of civil proceedings than of criminal nature. Section 133(1)(b) relates
to trade or occupation which is injurious to heath or physical comfort. Suhel
Khan Khudyar Khan v. State of Maharstra, 2009(2) Crimes 220 (SC).
Section 133(1)(d)–Order passed by Executive Magistrate directing
petitioner to cut down two mango trees and two jackfruit trees belonging to
petitioners–Police in its report as called by Magistrate stated that trees were
at distance of 3 meters from the place of informant and had become old and
during heavy rains might get uprooted or their branches might break and
fall–Held–Only because informant feared that branches of said trees might
fall to mansoon was not sufficient to have given jurisdiction to Magistrate–It
was necessary for informant to have shown that danger was imminent–
Impugned order set aside. Shri Peter Fernandes v. State of Goa, 2007(3)
Crimes 642.

Action under section 144 Cr.P.C.

(i) In cases of urgency of a case of nuisance or apprehended danger to
law and order, speedy remedy or immediate prevention, D.M., S.D.M.
and Executive Magistrate can be moved by the police to pass a
prohibitory order for two months or less against an individual or
public in general directing them to abstain from certain acts likely to
disturb peace, or a riot or any affray, etc.
(ii) Such order should be duly proclaimed.
(iii) Contravention of such order is punishable under section 188 I.P.C. for
which a complaint of authority passing such order is necessary. The offence is
cognizable and bailable according to First Schedule of Cr.P.C. (but can be non-
bailable according to Criminal Law Amendment Act if declared by
Govternment).
Section 144–Order under section 144 Cr.P.C. passed ex parte without any
opportunity or notice to the parties–Order passed 14 days after receipt of
police report–No fresh incident or emergency indicated in order–Magistrate
directed to consider appropriateness of continuing the impugned order. D.S.
Joseph v. State of U.P., 2005 (1) RCR (Cri.) 658.
Section 144–Maintenance of public order–Order of Additional District
Magistrate restraining a person to enter the district and making speeches–
The order was passed as at a number of places the said person incited
communal feelings by making inflammatory speeches as a result of which
there were communal clashes–Order upheld–Right of freedom of expression
may at times have to be subjected to subordination to preserve public order–
Court should not interfere unless the order is mala fide–Matter relating to
law and order is primarily domain of administrative authorities 1970(3) SCC
746 relied. State of Karnatake v. Dr. Praveen Bhai Thogadia, AIR 2004 SC
2081.
Section 144–Order of authority under section 144 Cr.P.C. to maintain law
and order–Court should not interfere–It is primarily domain of administrative
authorities who are best judge to assess and handle the situation–Right of
freedom of speech have to subjected to law and order at times. 1970 (3) SCC
746 relied, State of Karnataka v. Dr. Parveen Bhai Thogadia, AIR 2004 SC
2081.
Section 144 Cr.P.C.–Order passed under section 144 Cr.P.C.–Held–An
order passed under section 144 Cr.P.C. is a restriction on enjoyement of
fundamental rights. It has been held to be a reasonable restriction. Once an
order is passed under section 144 Cr.P.C. within the framework and in
accordance with the requirements of the said section, then it is a valid order
which has to be respected by all concerned. Its enforcement is the natural
consequence. In the present case, the order was passed under section 144
Cr.P.C. at about 11.30 p.m. whereafter the police had come to Ramlila
Maidan to serve the said order on the representatives. The video and the
footage of CCTV cameras played before this court show that the officers of
the police had come to inform Baba Ramdev about the passing of the said
order, but they did not receive the requisite cooperation from that end. On
the contrary, it is clear from the various documents before this court that
Baba did not receive the order though obviously he had come to know about
the said order. In re Ramlila Maidan incident v. Home Secretary, Union of
India, 2012(1) Crimes 241 (SC).

Action under section 145 Cr.P.C.

(i) In case of dispute concerning any land or water in his jurisdiction,
likely to cause a breach of the peace, an officer-in-charge police
station can move Executive Magistrate for proceedings under section
145 Cr.P.C.
(ii) Such proceedings are advisable where dispute about possession of
any building market, fishery, crop, produce of land exist and is likely
to cause breach of peace.
(iii) Simultaneous action under section 107/151 Cr.P.C. can be taken.
(iv) Apply for attachment of land, if dispute imminent.
(v) Give details of dispute, parties, witnesses etc. in the complaint.
Section 145–Dispute over ownership and possession of property–Order of
Civil Court maintaining status quo–Jurisdiction of Criminal Court is ousted
during pendency of proceedings in Civil Court–Order of SDM to seal the
property quashed. Roop Lal Bhalla v. State, 2003 Cr.L.J. 4308 (Delhi).
Section 145–Dispute over possession of land pending in Civil Court–
Proceedings under section 145 Cr.P.C. quashed. Gain Chand v. State of
Haryana, 2005(3) RCR (Cri.) 958 (P&H).
Section 145–Section 145 of Cr.P.C. is a preventive measure in respect of
disputes concerning possession of immovable property and could be
undertaken in the absence of any direction by the Court–Once the civil court
has passed an interim order of injunction restraining interference in
peaceful possession of plaintiff, no proceedings under section 145 Cr.P.C.
would be competent–Specific remedy under section 145 of Cr.P.C. would not
exclude the inherent jurisdiction of the civil court–Application rightly
allowed by the Court. 1985(1) SCC 427 followed . Satnam Singh v. Dr. Triloki
Nath Chugh, 2004 AIR (Punjab) 373.
Section 145–Dispute over property, land or water–Before a preliminary
order for initiation of proceedings under section 145 Cr.P.C., the Magistrate
is under a legal obligation to draw a preliminary order, which should
contain:
(a) satisfaction as to the existence of a dispute likely to cause breach of
peace concerning the possession of any land, water or boundaries
thereof within his local jurisdiction;
(b) the ground of his being so satisfied;
(c) the correct description of the property in respect of which the
proceedings are instituted;
(d) the parties concerning such dispute; and
 (e) a direction requiring the parties or either of them to attend the court
on a particular date and put in written statement in respect of the
factum of actual possession of the disputed property. Gopi Chand v.
Mohd. Hanief, 2003 (2) Crimes 453 (J&K).
Section 145 Cr.P.C.–On the factual aspect, the Magistrate came to a
finding that the appellants were entitled to possession of the disputed plot.
It is true that while making such declaration under section 145(4) Cr.P.C.,
the Magistrate could have also directed that the appellants be put in
possession of the same. The application made by the appellants under
section 145(6) Cr.P.C. was barred firstly by limitation under Article 137 of
the Limitation Act and also by virtue of Section 6 of Specific Relief Act,
1963–Provisions of Specific Relief Act have no application to a proceeding
under section 145 Cr.P.C. Shakuntala Devi v. Chamru Mahto, 2009(1) Crimes
443 (SC).
Sections 145 and 146 Cr.P.C.–Order passed by Magistrate prohibiting
both parties from using the properties and directing both parties to maintain
status quo–Held–Order passed by the Executive Magistrate under section 145
Cr.P.C. being illegal and affecting the rights of the parties, the revision is
maintainable. Even if it is to be held that the revision is not maintainable,
nothing prevents this court from exercising the jurisdiction under section
482 Cr.P.C. to quash the said illegal orders. Ganesan v. The Revenue
Divisional Officer-Cum–SDM, 2011(1) Crimes 662.
Section 145 Cr.P.C.–Object and Scope of section 145 was not to decide
such dispute on basis of right but to decide only the possession and right of
possession in respect of subject of dispute–Once the proceedings was drawn
up, court might drop proceedings for want of breach of peace–In absence of
any such contingency Magistrate was to decide as to who was in actual
physical possession on the date of the application or within two months prior
to that–Order directing parties to approach the higher competent authority
for settlement of their right, title and possession passed by Magistrate was
not in accordance with law and liable to be set aside and matter remanded.
Biren Changmai v. Golap Changmai, 2010(4) Crimes 635.
Section 145 Cr.P.C.–Power of Magistrate to initiate proceedings where
there exists a dispute regarding possession of property which may entail
breach of peace–Magistrate has to record his satisfaction while drawing
preliminary order–If no preliminary order is drawn by Magistrate,
proceedings would be setaside. Faquir Chand v. Talib Hussain, 2011(1)
Crimes 674.

Action under section 149 Cr.P.C.

Every police officer can interpose for purpose of preventing commission
of any cognizable offence.

Action under section 151 Cr.P.C.

Every police officer can arrest without warrant any person designing to
commit a cognizable offence, if the offence cannot be otherwise prevented.
The arrested person cannot be detained for more than 24 hours.
Sections 151 and 451 Cr.P.C.–Applicant and adversary party were
challaned under sections 151, 116 and 107 Cr.P.C.–Applicant was having
licensed gun and four live cartridges–Likelihood of use of gun was
apprehended by police, the gun and cartridges were taken into possession by
police–Application for release of gun and cartridges was opposed by police–
SDM taking fact into consideration that a report for cancellation of licence
had already been sent, rejected application for release of gun and
cartridges–Court has jurisdiction to pass suitable order for release of gun
and cartridges under section 451 Cr.P.C.–Directed to be released. Chhabilal
v. State of U.P. 2009 (3) Crimes 219.

Action under section 152 Cr.P.C.

 Every police officer may interpose to prevent any injury attempted to be
committed in his view to any public property, movable, or immovable or the
removal or injury to any public land mark or buoy or other marks used for
navigation.

In cases of Dharnas/Pickets
1. Take action under section 7 of Criminal Law Amendment Act 1932 if
Dharna is a source of interference of intimidation. Offences cognizable and
non-bailable. Action under section 447 I.P.C. can be taken.

In case of Agitators taking out Processions or Staging Siapas

(i) Request D.M. to impose ban (under section 6 of Punjab Security of
State Act for Punjab only).
(ii) to impose ban under section 10 of the Act on persons visiting place
(for Punjab).
(iii) State Government can ban entry in State or District. See relevant
Security of States Act for other States.
(iv) Prohibitory order under section 144 Cr.P.C. can be passed by D.M.,
S.D.M. Executive Magistrate.
(v) Assemblies can be regulated under section 30 Police Act.
(vi) Assemblies can be depressed under section 129 Cr.P.C.

Duties and Powers of a Police Officer (Police Act)

It shall be the duty of every Police Officer:
(i) to obey and execute all orders and warrants lawfully issued to him
by any competent authority.
(ii) to collect and communicate intelligence affecting public peace.
(iii) to detect and to bring offenders to justice and to apprehend all
persons whom he is legally authorised to apprehend and for whose
apprehension sufficient grounds exist.
(iv) to prevent commission of offence and public nuisance.
(v) to enter and inspect any drinking shop, gaming house or other place
of resort of loose and disorderly character, without a warrant for
the above said purpose (i to iv) (Police Act Section 23.).
(vi) to take charge of unclaimed property and to furnish an inventory
thereof to the Magistrate of the district (Section 25).
(vii) to keep order on the public roads and in public streets, thorough
fares, ghats, landing places and all other places of public resort and
to prevent obstruction on the occasion of assemblies, processions
etc, in public places, near places of worship and on ghats, etc.
(Section 31).
(viii) to take custody without a warrant any person who within his view
commits any of these offences on any road or in any open place,
street or any public place as under.
(a) any person who slaughters any cattle, cleanses any carcass; any
person who rides or drives any cattle recklessly or furiously or
trains or breaks any horse or other cattle.
(b) any person who want only or cruelly beats, abuses or tortures
any animal.
(c) any person who keeps any cattle or conveyance of any kind
standing longer than required and loading and unloading or for
taking up or setting down passengers or leaves any conveyance
as to cause inconvenience or danger to public.
(d) any person who exposes any goods for sale.
(e) any person who throws or lays down any dirt, filth, rubbish or
any stones or building material or who constructs any cowshed,
 stable or who causes any offensive matter to run from any house,
factory, dungheap or the like.
(f) any person who is found drunk, riotous or who is incapable of
taking care of himself.
(g) any person who wilfully or indecently exposes his person,
deformity or disease or commits nuisance by easing himself or by
bathing or washing in any tank, etc .
(h) any person who neglects to fence or to protect any well, tank or
other dangerous places or structure. (Section 34).

Assistance by Public
A. A police officer can legally and reasonably ask for assistance from
any member of public who is bound to assist:
(i) in the taking or preventing the escaping of any person whom the
police officer is authorised to arrest; or
(ii) in the prevention or suppression of breach of peace; or
(iii) in the prevention of any injury attempted to be committed to any
railway, canal, telegraph or public property. [Section 37 Cr.P.C.].
B. An Officer-in-charge of a police station or an Investigation Officer or
a police officer authorised to search a place can legally call upon two
or more respectable inhabitants of locality to attend and witness
search. Such persons when duly served are bound to attend, though
there is no liability to sign the recovery memo. [Section 100(4)
Cr.P.C.].
C. An Officer-in-charge of a police station may require the assistance of
any male person for dispersing any unlawful assembly under section
129 Cr.P.C. and in arresting or confining the person who form part of
unlawful assembly.
The refusal to assist in all the above cases is penal under section 187
I.P.C. The offence is non-cognizable and a complaint is necessary to
be filed by the public servant concerned.
D. Under Section 15 of the Immoral Traffic Prevention Act, a special
police officer appointed under section 13 of the Act not below the
rank of D.S.P. can call upon two or more respectable inhabitants (at
least one of whom shall be a woman) of the locality to attend and
witness search and may issue an order in writing. The person so
summoned is legally bound to attend and refusal and neglect in this
respect is penal under section 187 I.P.C. A complaint of Special
Police Officer is necessary in this respect.
E. Under Section 79 Forest Act, a police officer can demand the aid of
person who exercise any right in a reserve or protected forest or who
is permitted to take any forest produce from or to cut and remove
timber or to pasture cattle in such forest or employed in such forest
or employed for services to be performed to the community, in
preventing the commission in such forest of any forest offence or in
discovering or arresting offender. The refusal or failure to assist
without lawful excuse is punishable under section 79 of Forest Act.
F. Under section 44 of the Forest Act, every person employed at Depot
whether by Government or private person is bound to assist a police
officer in case of accident or emergency involving danger to property
at the Depot.

Information of Police
1. Every person aware of the commission of or of the intention of any
other person to commit offences under sections 121, 121A, 122, 123,
124, 124A, 125, 126, 130, 143, 144, 145, 147, 148, 272 to 278, 302,
303, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 409, 431
to 439, 449, 450, 456, 457, 458, 459, 460, 489A to 489E of the I.P.C.
 shall forthwith give information to the nearest police officer of such
commission or intention (Section 39 Cr.P.C.).
2. Every officer employed in connection with the affairs of a village and
every person residing in a village shall forthwith communicate to an
officer-in-charge of a nearest police station any information which he
may possess respecting.
(i) the permanent or temporary residence of notorious receiver or
vendor of stolen property in such village.
(ii) the resort of any place within or the passage through such
village of any person known as thug, robber, escaped convict or
proclaimed offender.
(iii) the commission of or intention to commit in or near such village
any non-bailable offence or any offence punishable under sections
143, 144, 145, 147 and 148 I.P.C.
(iv) the occurrence of any sudden or unnatural or suspicious death or
disappearance of any person or discovery of dead body in
suspicious circumstances that a non-bailable offence has been
committed.
(v) the commission or intent to commit offences outside India of the
nature of 231 to 238, 302, 304, 382, 392 to 399, 402, 435, 436,
449, 450, 457 to 460, 489A to 489D I.P.C.
(vi) any matter likely to affect the maintenance of order or prevention
of crime (Section 40 Cr.P.C.).
Liability for such intentional omission is under section 176 I.P.C. and for
giving false information is under section 177 I.P.C. both offences are not
cognizable. File complaint.
3. Every police officer is legally bound to collect and communicate
intelligence affecting the public peace to his officer under section 23
Police Act. If he intentionally omits to give or instead gives false
information, he is liable under sections 176 and 177 I.P.C.
respectively. Thus minimizing an offence intentionally, e.g., from
robbery to section 382 is punishable under section 177 I.P.C.
4. Every Lambardar and Chowkidar is legally bound to give information
of a cognizable offence committed in his village to police under Rule
39A Punjab Laws Act. The liability for such omission without lawful
excuse is under section 43/44 Punjab Laws Act for which complaint
needs to be made by S.H.O. against Chowkidar and Lambardar
respectively. (For other States, see relevant Acts).
5. Every person exercising any right in a protected or reserved forest or
employed there or permitted to take produce, timber from there or to
pasture cattle therein is legally bound under section 79 of Indian
Forest Act to furnish information to the nearest police officer which
he may posseses respecting the commission or of intention to commit
any forest offence. The penalty is in the same section.



Chapter–28
Scientific Techniques
An Investigating Officer should be fully conversant with the scientific
methods of investigation as these are more sure. We have for the most part
depended upon the oral evidence of witnesses speaking from memory upon
handwriting, upon photographs, upon other and hundred other matters. The
chances of being misled to a wrong judgement by such evidence are not
inconsiderable. Therefore, a resort of these methods has revealed that these
are more sure and more dependable. The maxim goes that men can tell lies
but circumstances cannot. See 5 Cr.L.J. 220. Every culprit leaves a trace
when he comes in contact with a thing. To examine these clues and traces
discovered in the course if investigation is an important aspect of the
science.

Finger Prints
The ridges on the skin of 10 digits, palms, soles and heels of a person
begin to form about 4 to 5 months before the birth. Once formed, the ridge
characteristics and ridges which adopt a certain pattern persist throughout
life and remain permanent even after death until the skin is totally destroyed
as a result of decomposition. Like the rest of the body, ridge patterns
naturally change in size at different age periods; but the details and
character of the ridge remain the same. The science of finger prints is,
therefore, perfect, infallible and definite for establishing identity from a
finger print. Its main principles are:
1. There are two patterns never alike. Even the twins have different
patterns.
2. The finger prints never change.
3. Even surgical skill has failed to change or destroyed them. If the skin
reappears; the original patterns reappear in the same sequence as
before. Even illness, diseases except leprosy do not influence them. It
is only when sweat glands are destroyed due to ulcers, etc. that these
patterns are destroyed for ever.
History of Finger Prints
The history of this science is very old. It was first in China when it was
used for identification. In 12th Century A. D. a novel ‘Story of River Bank’
written by a Chinese mentions the tracing out of murder by finger prints. In
1686, Mr. Marcello Malpighi , Professor of Italy made observations on
varying ridges and patterns of finger tips. In 1853 J.E. Purkinje of a German
University divided finger tip patterns into nine types but he did not have any
notion to apply it for identification. Sir William, Herschell, Collector of
Hooghly (Bengal) was first to use it for identification by taking prints on
receipts of payment from 1858 to 1877 when appointed Magistrate. He only
wanted to frighten Indians who deceived him by repudiating that they never
received payments. In 1880, an English Physician, Henry Faulds while on
hospital duty in Japan actually caught a whisky thief by comparing finger
prints. It was only Galton, who published a book in 1892 who classified three
patterns and succeeded in proving that these are changeless and
indestructible. In 1896, Sir Edward Henry, I.G. Police in Bengal introduced
Ten Digit System which is known as Henry System. In 1924, Collens of
Scotland Yard introduced Single Digit System and this was perfected by
Chief Inspector Batley who published a book on Single Prints in 1930.
This system of identification by finger prints has been found to be best
due to three principles mentioned above. The method of description from
colour, height, features, gait, build, size, etc., was found to be defective. The
Bertillon System devised by Mr. Bertillon, a clerk, based on measurements of
head length, head breath, middle finger length, foot length and cubit was
found defective. In 1903, two Will Wests with identical features and
appearances were discovered in an American Prison and this fact gave a
rude shock to this system. Only there finger prints gave definite results.

Date for Comparison

The distinguishing features of patterns are provided by cores, deltas,
whorls, loops and arches. Deltas are formed by divergence of two ridges or
by bifurcation of single ridge. The core of the loop is composed of one or
more ridges which remain unjointed. The major ridge characteristics, viz., a
short independent ridge, dot, island, a lake, termination of ridge in an
upward direction provide data to an expert for searching out points of
similarities and dissimilarities in patterns to fix identity. An expert would
draw following conclusion from comparison of patterns as summarized by Dr.
Locard:
1. If there are 12 distinct points of agreement, identification is absolute.
2. If there are more than 8 but less than 12 points of agreement,
certainty of identification will depend upon the condition of print
including.
(a) clearness of impression;
(b) rarity of pattern;
(c) presence of distinctly recognizable core or delta; and
(d) manifest agreement of breadth of furrows, direction of lines and
angular measurement of the forks.
3. If there are few points of agreement, the print will not itself establish
identity but only a presumption, the degree of probability of which will
depend upon the number and distinctness of the points of agreement.
Saxena in his book “Identification of Handwriting, Disputed Documents
etc.” has admitted that modern view is that 6 points of similarity of pattern
are sufficient to establish the identity of finger prints. Walter Scott in his
book “Finger Prints Mechanics” has stated that as a matter of practice, most
experts who work with finger prints constantly satisfy themselves as to
identity with
8 or even 6 points. Mehta in his Book “Identification of Thumb Impressions
and Cross-Examination of Expert” has stated that in case of blurred
impressions the view of some of Indian Experts is that if there are 3 identical
points, they would be sufficient to prove the identity. In Mohan Lall v. Ajit
Singh, 1978 SC 1118, the Supreme Court accepted 6 points of similarity as
sufficient.
If there is a single point of dissimilarity, it is quite sufficient to prove this
prints are not from the same hand.
Section 45–Finger Print Evidence–Reliability–Glass on which finger prints
were found seized from house of accused when accused was in custody–Glass
not produced and exhibited–Finger print evidence not reliable. Mohd. Aman
& Another v. State of Rajasthan, 1997 Cr.L.J. 3567 SC.
Finger Print–Non-collection of finger prints–The finger impressions were
found sticking on the almirah of the deceased house–Contended that non-
collection of finger prints is enough to exclude the presence of accused from
the scene of occurrence–Presence of prints is a positive evidence but
absence is not enough to foreclose the presence of person. Gade Lakshmi
Mangraju @ Ramesh v. State of A.P., AIR 2001 S C 2677.
Finger Print–Murder Case–The deceased was the house & mistress of the
appellant–Finger prints experts not examined in this case–Held; in the
circumstances it is not fatal for the prosecution–Where the crime article
before it's seizure was handled by many persons, the non-examination of
finger print expert would not have any adverse effect on the prosecution
case–Hence here the non-examination of the finger print expert in this case
is not fatal for the prosecution. Keshav Lal v. State of M.P., AIR 2002 SC
1221.
Finger prints and Foot prints–Evidence–Murder Case–Circumstantial
evidence–I.O. lifting finger prints and foot prints of accused persons when
the accused persons were already in police custody–Such evidence is unsafe
to be accepted–Further, these prints not taken in presence of any
Magistrate–No sanctity of such evidence–Possibility of fabrication of
evidence–Benefit to appellants–Deserve to be acquitted orderd accordingly.
Mohd. Aman v. State of Rajasthan, AIR 1997 SC 2960.
Section 45–Finger Prints Expert Evidence–Evidentiary value–Murder of
family members by entering into house of victims at night by breaking upon
a lock–Finger Print Team reached the spot on the date of incident and was
able to detect the finger print on the door of the locker–Finger Print of
accused was found on the door of the locker of Almirah of deceased which
tallied with sample finger prints of accused–There is no ground to believe
that two government officials will implicate the accused in the false case.
Dhanya Kumar Jain v. State of Chhattisgarh, 2007(4) Crimes 604.
Medical Evidence–Murder Case–Medical evidence is an expert evidence of
a doctor and it is the opinion of an expert from the field of science which is
admissible under section 45 of the Evidence Act. A medical witness is an
expert to assist the court, he is not a witness of fact. It is advisory in
character. As a general rule, oral evidence is given preference over medical
evidence, in case of minor contradictions between the two. But where the
medical evidence completely rules out the oral evidence, medical evidence is
relied upon by the courts for deciding the guilt of the accused. The value of
the medical evidence is only corroborative. Sonraj Jangade v. State of
Chhattisgarh, 2007(4) Crimes 392. It is a weak type of evidence so far as
expert opinion is concerned. Om Prakash v. State of Rajasthan, 2010(4)
Crimes 10 (Raj.).
Medical evidence–Time of death–Exact time of death cannot be
established scientifically and precisely. Rakesh v. State of M.P., 2011(4)
Crimes 193 (SC).

Kinds of Prints on Scene

 There are three kinds of prints which are found on the scene by an
investigator and which are left by the criminal when he operates, handles
articles and touches places:
1. Plastic Prints. These are found on objects like soap, butter, vaseline,
putty, tar, greezes, etc. The best method to preserve it is to
photograph and to despatch the article to Bureau in its original
condition. Ultra violet radiation will reveal such prints.
2. Visible Prints are left by fingers covered with paint, blood, dirt, inks,
etc. These prints are not very useful for identification as these are
blurred and ridges are not clear. It is, however, better to send them in
their original conditions to Finger Print Bureau and then to ink expert
chemical examiner to know the type of ink used and if it is stained
with blood, etc.
3. Latent Prints are left due to oily matter, perspiration on finger tips.
These are invisible and great care should be taken to search them by
making use of gloves, handkerchief and by gently handling articles
from edges, tips, and those places which are least likely to be touched
by criminal. A little carelessness spoils them for ever. These prints are
to be detected by naked eye, magnifying glass, use of flash of oblique
light and a gentle blow with the breath though it is risky. These are
developed first with the help of powders, liquids and vapours and then
photographed or lifted with Folien Paper and sent in original to Finger
Print Bureau. If article cannot be sent then Folien Paper with lifted
impression is sent.

Places of Search
Investigator should know where finger prints are likely to be left when
reconstructing crime and searching for finger prints. These are glass,
candles, broken window, casements, doors, desks, jewel cases, wardrobes,
tumblers, utensils, tables, articles of food, etc. In murder and hurt cases,
most natural objects and knives, razors, arms and ammunition, bottles, etc.
In vehicles front door window ledges areas near door handles, glass polished
surfaces, etc. Whenever a broken window is found, attempt should be made
to put together the broken pieces to detect if the fingerprint was made on
the inside of a window or outside. This will solve the accessibility of the
criminal to the place.
All kinds of surface receive prints, viz., polished wood, greasy surfaces,
raw wood, black satin, raw leather, fruits, paper surfaces, plastic substraces,
etc.
Finger Print Expert–Evidence of–Credibility–Change prints found at scene
of offence–Developed and photographed–Non-examination of photographer–
Non-filing of photographs–No evidence produced to show that finger prints
of accused were taken before Magistrate–No sanctity can be attached to his
evidence. Manepalli Anjaneyulu v. State of A.P., 1999 Cr.L.J. 4375 AP.

Use and Application of Powder

There are three methods of developing prints:
1. Powders: Only dry powder is to be carefully used so that print is not
spoiled. Take a camel brush; spread out its hair; dip it gently in powder
placed on paper so that end of hair only picks it; tap gently to remove excess
powder. Brush gently in the direction of the trend of ridges, working towards
centre in circulate sweeps, conforming to shape of pattern. A void extra
friction. A duster and at ominor can also be used.
Before developing, make choice of powder to be used. Graphite powder is
used when surface is light or white. Grey powder when glass, silver goods,
japanned and dark surfaces and wooden surfaces; charcoal powder is useful
for all grades of paper. It is better to send impression to Bureau without
powdering.
 2. Liquids: The method is to use it on paper or cloth. In a dark room with
ruby light, pour 3% or 5% solution of silver nitrate into a photographer’s
tray of porcelain dish until it is deep enough to float the article bearing
finger prints. Float the article for 10 seconds on one side and then on the
other, then dry between clean blotters. Then expose to light. The silver
chloride will show lines.
3. Vapour: Vapour is to be used on paper or unpainted wood. But method
is to expose article bearing prints to fumes given off by iodine crystals. Place
crystals in a bowl; cover bowl with a frame which holds the articles or prints
to be developed; heat the bowl; the fumes will develop. Iodine blow tube is
also used.
Packing and despatch: Great care should be taken in packing, ensuring
that surface of prints does not come in contact with any thing else. Screws
are to be used instead of nails. Piece of glass, bottle or tumbler is secured
between two boards which are jointed together at the corners by screws and
corks. Always send a letter giving details and opinion to be sought. The
article should be labelled in such a way that it does not spoil the print.
Send exhibits per special constable. Use seal where necessary to avoid
tampering.

Instructions for Comparison

Where an opinion of expert is to be got on comparison of finger prints
found on scene with those of the suspect, always prepare a sample paper of
suspect bearing all his finger impressions in the presence of Magistrate. The
impressions can be taken under section 5 of Identification of Prisoner Act.
Force can be even used for it as held in 1958 Cr.L.J. 1084 (Punjab) since it is
not repugnant to Article 20(3) Constitution of India. Send the exhibit and
sample paper to expert for opinion. The police officer can also collect other
documents bearing thumb impressions of accused or suspect and can send
these to expert along with original for opinion, in case sample impression
cannot be obtained (See Chapter XVI).
Use of Folien Paper: The impression should be lifted with the help of
folien paper in the presence of witnesses who are made to sign on its back.
The memo of preparation should be prepared giving the details of article,
location of print, etc. First develop with powder. Cuts off a piece of folien
paper, remove celluloid and then place it upon the powdered trace from one
corner and then cautiously spread the rest of the folien upon the trace by
lightly going over the foil with the finger. Take care that no bubbles are
produced. Remove it and then cover and transferred print with celluloid
again. Avoid pressure; keep it in a dry, cool and well-ventilated place. Then
send to Bureau. Always mention the lifting the transferring of prints in your
case diary.

Help to I.O. by Finger Print Bureau

The Finger Print Bureau renders help to an Investigating Officer (1) to
establish identity of accused persons, (2) to ascertain previous convictions
from finger print slips, (3) to furnish information regarding arrest of
absentee bad characters and absconding criminals, (4) to help in
establishing the identity of unidentified dead bodies, (5) to furnish expert
opinion in matters of comparison and identification of finger prints, (6) to
assist in tracing out the identity of culprits on the data of chance prints
when there are blown suspects whose search slips are forwarded to Bureau
for purposes of comparison, (7) to dispose off search slip reference from
districts.
Footprints
The footprints present at the spot can be shown to a track who is an
expert in this science. The moulds of these foot prints should also be
prepared for comparison at the later stage with the foot prints of the
accused, if he is traced out. The foot prints should also be photographed if
possible.
The importance of identity by foot prints has been laid down in Pritam
Singh, 1956 Cr.L.J. 805 (SC), 1956 SC 415 . It was held that ‘the Science of
identification of footprints is no doubt a rudimentary science and not much
reliance can be placed on the result of such identification. The track
evidence, however, can be relied upon as a circumstances, which along with
other circumstances would print to the identity of the culprit though by itself
it would not be enough to carry conviction in the mind of the court. See also
1978 Cr.L.J. (SC) 245 Shankaria.
Foot-prints–Identification–Not full developed science–Identity of culprit–
Evidence as to foot-prints can be used to reinforce other evidence. Mohd.
Aman and another v. State of, 1997 Cr.L.J. 3567 SC Rajasthan.
The aspect identification by foot prints was considered in Surajpal Singh
1972 Cr.L.J. 1668 (M.P) . The identification of persons from foot prints may
broadly be classified as under:
(i) When the foot prints show ridge characteristics being on polished,
fine surfaces;
In such cases the science is as accurate as the science of finger prints.
The prints of the foot show ridge characteristics similar to finger prints.
(Photography of such prints helps in comparison).
(ii) Which show neither ridge characteristics nor other special
peculiarities, when the comparison is possible on Grayer System
(Grayer on Footprints Edition 1909).
The following instructions are useful:
1. Tracks found on the scene should be protected immediately on
discovery and after being shown to tracker, moulds prepared and
preserved for comparison and production in Court. These moulds
should bear the date and signatures or initials of the persons who
prepared them and of at least one other respectable witness if not all
in whose presence they were made. The moulds should be
immediately sent for safe custody in a laboratory and should not
remain with police.
2. Track identification should be arranged in jail before a Magistrate.
Necessary precautions to be taken in this respect are:
(a) The tracker can refresh his memory by seeing the mould.
(b) After parade, the mould should be prepared of one of the foot
prints of the suspect duly signed by Magistrate who conducted
parade.
(c) The moulds prepared at the spot soon after occurrence and those
made at the close of the parade should be produced in court
during trial to be used for the purpose of comparison by the trying
Magistrate.
(d) In the event of tracks being of shoes, the suspect’s shoes should
be taken into possession by the police duly signed or initiated by
witnesses and sealed.
(e) These shoes should be produced before the Magistrate holding
parade to be worn by suspect.
(f) The shoes be again taken into possession duly initiated by the
Magistrate and sealed if possible vide a recovery memory for
production in Court.

Importance of Footprints
 Footprints are important for identification just as finger prints are. The
ridges on the sole of foot have all the attributes, physical characteristics and
identification requisites as on fingers. In India, though crime is committed
mostly with bare feet, ridge characteristics are seldom found on chance
impressions left by culprits on paths, sandy places, etc. There are no glazed
surface articles to receive impressions of feet in order to show the details of
ridges. If found, these should be photographed or sent to Finger Print
Bureau for developing or photographing. In case the culprit is traced out, his
inked impression is got and sent to Finger Print Bureau for comparison.
The basis of this science are the individual characteristics and
peculiarities which are distinguishing features of each footprint, bare or
shoe print. These help in establishing identification. In case of bare print
these are:
(a) The important dimension of the impression, viz., length, width at
heel, at in step, out step, length of Barri assi, i.e., from big toe to
heel, length of Chotti assi, i.e., from little toe to heel towards outer
side, etc.
(b) The importance of shape, viz., formation of Chotti and Barri assi
between outer edge of heel and toe, etc.
(c) The peculiarities and oddities in the shape and formation of foot, viz.
flat foot, one toe larger than others; missing of the toe, etc.
In case of shoe prints, it may be, mentioned that, even in factory made
shoes which are made on large scale by precision machines, there are always
certain individuals characteristics marks. In shoes made by craftsmen and
shoe makers, it is impossible for him to make two shoes alike. The other
peculiarities are:
1. Wear marks which are individuals due to gait of culprit and due to his
putting pressure on particular portion of shoe and due to rubbing
process.
2. Characteristic signs of repair.
3. Number and position of nails.
4. Type of heel used, rubber, iron, etc.
Search for foot prints: These prints should be looked:
(a) on the scene of occurrence.
(b) around the place of occurrence.
(c) along with route taken by the culprits both at the time of ingress or
egress.
(d) at the place where the culprits had collected before or after the
commission of crime for making preparation, distributing booty, etc.
Preservation of foot prints: A foot print is preserved by taking
photograph, by means of casts and by drawing the impression upon a sheet
of glass or celluloid.
The techniques in taking photograph is; place ruler at the side of
impression for measurements; place a chit bearing signature of witnesses,
I.O., date and spot on the other side of print, have photograph with plate of
camera perpendicular to the surface bearing impression in order to avoid
distortion. Take shots from angles; best camera for this is 35 mm.
Preparation of casts is by [Ist Plaster of Paris IInd Resin and Wax, IIIrd
Sulphur] Out of these three methods best is by Plaster of Paris and is used
by sunken prints.
1. Prepare Plaster of Paris Solution . Take 20 ozs of Plaster of Paris and
one pint of water. Fill a basin about 2/3 full of cold water; sprinkle
Plaster of Paris until it sinks slowly and tends to remain dry on the
surface; stir the mixture thoroughly from bottom and dissolve any
lumps till it is thickish cream capable of being poured. Salt can also be
mixed.
 2. Carefully remove foreign matter from print like leaves, etc.
3. Place retaining wall round print; preferably a wooden frame.
4. Spray the impression with shellac, varnish and talcum powder.
5. Pour plaster solution carefully by placing a pebble on one side near in
step.
6. When half the required thickness has been reached, lay in reinforcing
material, i.e., wood splinters or wire guaze length wise.
7. Pour in the remaining plaster and smooth off the top surface.
8. While still impressionable, engrave the cast with case number, names
and signature of witnesses, signature of I.O., location of spot,
direction, etc.
9. When set, lift with care and wash off adhesions. The cast will be ready.
The method can be adopted according to the type of soil as under:
1st When print is on mud under water, drain out surplus water, build
retaining wall and dust in dry plaster and allow to set. When in dry
dust or sand, spray with shellac, for 10/15 minutes, then spray with
oil, shell or mineral, then apply plaster solution. When on snow,
sprinkle talcum powder then spray shellac, repeat these processes,
then plaster solution. When covered by water place a wire guaze
over surface of water, then sprinkle plaster of parts:
IInd Method Resin 2 parts, molten wax one part. This is spread on
foot print in molten condition. This method is not good as weather
affects it.
IIIrd Sulphur. Molten sulphur is spread. This is good but costly.
Sulphur Print: The print can be produced in its original form by the
following method:
1. Use according to the colour of print, white (unexposed and fixed) or
black (exposed and fixed) photographic paper.
2. Immerse in very hot water to which one or 2 drops of ammonia may be
added to soften the gelatine emulsion on the paper.
3. Remove the wet paper, drain and absorb surplus moisture between two
sheets and blotting paper.
4. Carefully place paper on print, cover it with blotting paper and apply
pressure all over.
5. Gently peel off the photographic paper. The sensitized gelatine coating
will then set and the impression will be encased.
6. When dry, mount on a card and enter the details of where and by
whom taken on the back, along with signatures.

Blood
The Investigation Officer has to deal with blood stains in various types of
cases. It is an important circumstance in cases of murder, culpable homicide,
assault, road accidents, abortion, rape, cases of unnatural offence, burglary
where accused is injured and many other cases.
The blood is found during investigation of above said cases—(1) at the
scene of crime, (2) or body or clothing of victim and culprit, (3) on vehicles
and its parts, broken glass etc., (4) and on weapons of offence.

How to Locate
Search for blood should be carefully made. It can be traced by:
1. Physical Test. The colour shape, position and size of the blood stains
determine if it is blood. Normally it is identified by colour. When it is
fresh, it is red. In 2/3 days it becomes brown, then with age dark
brown and when it is very old, it becomes black.
 Sometimes stains of iron rust salts, dried faecal matters, highly
coloured urine, paints dyes, coffee stands, etc. are mistaken for blood.
In order to be sure perform Benzedrine. Test which is.
(a) Fill a small test tube to the height of an inch with distilled water.
(b) Dissolve 1/2 gram of Benzedrine dihydrocholride in it and add one
cubic centimeter of 3% hydrogen peroxide and shake, this will be a
reagent.
(c) Scrap a little of the stain and put it on piece of filter paper.
(d) Place few drops of reagent on this stain.
(e) If it is blood, then a blue green colour would appear.
2. Magnifying Lens Test: The blood on minute sites, e.g., underneath
nails, button, etc., is located.
3. Search Light Test: When blood is outdoors and spread over distance,
then the testf would help in tracing it out.
4. Ultra Violet Rays: These are helpful in washed stains.
5. Infra Red Photography: In faint blood stains or on dark grounds, this is
the best.
6. Bloodhounds Test: Finebred hounds are trained to detect blood on
places exposed to sun, rain. wind, etc. These blood hounds will smell
blood at such places.

Where to Search
(1) In case of person: on body, under finger nails, clothes layer of shoes,
button holes, turns of pants, seams, inside of pocket, creases and heels of
shoes.
(2) In case of weapons: on the blades, crevices and cracked handles, etc.
(3) In case of spot: drawers, earth, handles of pumps, wash basins, paths,
approaches to the spot and back, stray rags, pieces of rough and thrown
papers, nearby tanks, bushes, hiding corners, etc.
How to Collect
1. Make a precise record of position, shape and size of the stains.
2. Photograph, if possible.
3. If moist, dry it in shade, not in heat or sun.
4. When dried, never fold a garment on the stain.
5. Place cotton on dried stain.
6. If an immovable articles, cut out the stained portion.
7. If not possible, then scrap blood.
8. If on animals, then put while piece of blotting paper in 9% solution of
salt, place it, on the stain till it sucks it. Dry the blotting paper and
then despatch.
9. Blood stains on plaster, dried mud, dry leaves, dry grass require
special packing, otherwise these become mass of powder.
10. Dried stains along with articles, etc. should be carefully packed,
sealed and sent to Laboratory of Chemical Examiner under a cover.
The blood should be sent to expert immediately as it decomposes and
undergoes a rapid change with passage of time. The specimen loses its
identity with passage of time.
Blood stains supply the following types of evidence:
1. Whether it is blood.
2. If so, whether it is human.
3. If human whether it belongs to same group. This grouping helps in
determining if it is of the same person and to settle questions of
disputed parentage and legitimacy of child. There are 4 blood groups.
A, B, AB and O. If the sera liquid portion of blood (containing
 agglutinogen and agglutinin) of two different persons coagulates and
clumps, then the blood would be of different persons. If there is no
clumping of specimen blood with person’s blood sent for comparison
then of the same group. The answer to the question when the blood of
accused or victim has fallen on each other is definite only when it is
negative. If the victim and accused belong to such groups which on
mixing coagulate then it can be said that it was accused who killed
the deceased. If they belong to some group then it is impossible to
tell.
If questions of parentage, too, the grouping analysis can be helpful as
follows:
Child group Parents could not be of the following pairs of groups
A B-O, O-O, B-B
B A-A, O-A, A-O
AB A-O, B-O, O-O, B-B, A-A
Thus, if a woman belongs to group O, alleges that a man of group A is
the father of the child; the charge is untenable, should the child
belong to group B.
4. From which part of the body: The presence of extraneous matter in
blood and the mark on garment corresponding to the part of body and
its spurting can determine so. On microscopic and other examination
saliva in blood indicates it to be from mouth; mucus and hair from
nose; sperm, pus mixed with semen from male organs; epidithilial,
epirmal cells from female generative organs, etc.
5. How old are the stains: From colour changes. Red colouring matter of
blood also clots and clotting will tell since when it diffused.
6. In which direction the person was walking when drops of blood fell
and with what speed. Blood can be found in sprays or splashes,
smears and pools. Lot of blood in one place will indicate spot. The
direction in which blood was splashes may be determined from shape
of strain and this may conveniently be reproduced by slashing a
nibful of ink on a vertical sheet of white paper. The slashes are oval
and densest part is always at the end towards which the blood is
splashing.
7. Whether from any artery or vein: From artery, blood spurts and is
always red. From vein it is darkish and does not spurt. If it falls
vertically, then, the stain is large round spot surrounded by tiny
splashes.
8. It will tell the position of murderer and the manner in which the
weapon was handled by him.

Hair and Fibres

Evidentiary Value: A few hair and loss fibre found from the scene of
occurrence go to prove the guilt or innocence of person. These provide a
valuable piece of circumstantial evidence which is irrebuttable. These clues
which are invariably found on the scene are of use:
1. To prove the identity of accused— The fibres of clothes of accused or
other articles earned by him such as ropes, bomboo, etc. which are left on
scene can be compared by the expert with original articles recovered from
accused from which the same had originated. Similarly, the hair of the
accused which may come into hands of deceased in struggle or fall on spot or
remain attached to any of his articles can be well-compared with the
specimen hair of accused, When traced out to prove identity. The presence of
hair of accused on spot proves his presence there.
2. To prove the identity of crime vehicle or prove contact— In hit and
run cases, dacoities, murders, rape, kidnapping, etc. the fibres and hair
provide an evidence of contact. The hair of victim or accused may
interchange. The fibres may be carried away by the vehicle unnoticed by
accused. When collected from spot can be compared with hair and other
articles belonging to accused.
3. To prove identity of weapon— Quite frequently, the weapons of
offence viz., Sword, takwa, spear and other hooked weapons take away along
with them the torn pieces and fibres of clothes, etc. as also the hair of head
or other particular parts of body hit by them. These can be made use of for
comparison purposes later.
4. To detect forgeries (Fibres only)— Study of fibres enables an expert
to establish source of questioned document. The paper is made of certain
fibres viz. wood-pulp, grass, cloth fibres, etc. The paper of forged document
can be well-compared with original from which paper is allegedly removed.
The forgery of cheques, anonymous letters, stamps deeds, insurance policy,
etc. can be detected and proved.
5. To prove association— The presence of fibres and hair on different
accused with same origin proves association in crimes, viz., gangs, etc. This
is possible in thefts of furs, woollen garments, attack by dog, burglary, etc.

How to collect
In clean envelops and test tubes, the fibres and hair, etc. should be
collected. If these are stained with blood, then must be in separate test
tubes. Hair found stuck up with blood, semen or other matter should not be
removed by forceps. A great care should be taken in removing so that these
do not break. Hair and fibres lying loose can be collected by vacuum clears.
Fibres are of four kinds.
1. Animal fibres like wool, silk, camel’s hair, furs, etc. These do not catch
fire easily and when burnt given peculiar smell and have swollen
appearance or curls at the end.
2. Vegetable fibres like cotton, jute, linen, hemps, etc. They burn readily, no curling
is formed and smell is like burning wood. The burnt end appears sharp.
3. Mineral like glass, asbestos. These glass fragments left on scene in
cases of accidents can be later compared with glass remaining in the
windows, wind screen, lamps, etc., of the vehicle involved in the
accident. Such examination involves—(i) examination of fracture, (ii)
piecing together of fragments, (iii) fitting with original, (iv) Physical
and chemical analysis, whether could come from a suspected source.
4. Synthetics. Applied chemistry has invented a variety of fibres
commonly used in market such as rayon, nylon etc.
Methods of Examination—Three tests namely—(1) Microscopic,
(2) Chemical, (3) Physical are performed. These are separately discussed for
fibres commonly found:
Dyed Fibres on hair— Comparison microscope will give an accurate
picture of correspondence and range of colour. Chemical test will analyse
the dyes used.
Textiles—Fibres are made into fabrics. Different fibres are thus
sometimes mixed in individual thread or as threads of different fibres in the
weft and wrap. Weave also confers, individuality. Any imperfection in weave,
etc., will provide distinction in comparison. Attachment to fibres like
buttons, initials etc. can help. Wear and use, marking and damage confer
individuality.
Paper—The thickness, dimension, colour, marks of antiquity help in
composition. The composition of both qualitative and quantitative evidence
will further help. A paper is mixture of fibres chiefly rags of linen, cotton
with traces of other rags such as jute; chemical wood pulp, grass, straw, etc.
String or rope—It is identified in the same manner as cloth. It is also
specified by twist, angle at which twisted, the circumference, number of
strings, and yarn per strand number of fibres per yarn, kind of preservation
used, the method of processing involved, etc.
Hair—(1) Microscopic, examination will show comparison between three
parts of hair, viz., cuticle, i.e., exterior layer, (2) cortex, i.e., next interior
layer, (3) Medulla (the inner most layer). The presence of dye, foreign
matter like dust, dirt, etc., will also help in fixing comparison.
In addition to above, an expert can opine for the following types of
evidence when hair is sent to him for comparison:
1. Whether hair is human or animal (if medulla index is ‘5’ or over, it
belongs to animal).
2. Whether it corresponds to the specimen hair sent (specimen hair is
always got with the consent of person. In clipping, it should be close
to scalp. In case of Sikhs, the hair when combed or sticking with
turban, etc., can be collected).
3. If human, whether of male or female.
4. If animal, from what kind of animal.
5. From which part of body it has come (from head-long, soft and taper
gradually from root to point, from beard and moustache-thicker; from
chest axillae, pubic region-short and curly, split ends if pubic region,
from eye-brows, eyelashes and nostrils stiff, thick, taper to point).
6. Age from hair. The root of hair dissolve in a solution of caustic potash.
The younger the owner of hair, more easily it dissolves.
7. If it is cut, snatched or naturally fallen; dead roots show natural fall;
living root shows pulling; absence of root shows cut.
8. If cut with sharp edged or not. If both ends cut, it implies sharp
cutting weapon; if hair broken and flattened, indicates blunt weapon.
9. Dyed hair or natural. If dyed, the type of dye used.
10. What foreign matter is sticking to it.

Documents & Forgeries

Whenever an Investigating Officer comes across auspicious document, he
should hold its preliminary examination under reflected light, transmitted
lighter and in the sunshine. A magnifying lens or a microscope can be used
on the suspicious spot, special care being taken to note for evidence of
alterations and erasures. The following clues will be available on this
examination:
1. Whether it was typed on a particular typewriter.
2. Whether document has been tampered with erasure, alteration or
eradication of certain other entries.
3. Whether additions or alterations have been made.
4. Whether different pen and ink were used in writing whole.
5. Whether two writings made on same document were written
simultaneously or on different occasions.

Handwriting
Certain visual signs or marks which are accepted by two or more
fellowmen or groups or persons or individuals of a town, city or country as a
means of communication of informing one’s ideas to others for particular
matter or understanding or sending message to others is in broad sense
known as “Handwriting.” This may include painting, drawing or embossing.
The handwriting is often denied by an accused in cases of forgery or to
duly genuine writing or signatures. For this the Investigating Officer should:
1. Procure admitted or standard writing of the accused for comparison
with the disputed writing. This standard writing consists of personal
correspondence, cancelled cheques, diaries, account books,
applications for employment, papers written approximately the same
 time as the questioned writing, containing as much similar material as
possible.
2. By getting specimen writing in the presence of a Magistrate or in the presence of
two witnesses, with always the consent of the suspect. The specimen should be
obtained on similar paper as questioned document, possibly with same ink or pen
under similar circumstances as subject matter, made to write at fast speed in
same language. Block letters to be got written when block letters occur in it.
Care should be taken that original is not shown 4 or 5 specimens should be
obtained on separate papers with a certificate of Magistrate underneath that it
was taken in his presence.
These writings at 1 and 2 can be sent to handwriting expert for his
opinion whether disputed writing is in the handwriting of accused. There are
also other methods proving handwriting viz.
(a) by examining witnesses in whose presence the document was written
(Section 47 Evidence Act)
(b) or who are acquainted with handwriting
(c) by comparing in court (section 73)
(d) by admission or confession of accused Section 18/24
(e) by examining scribe or by the previous statement of deceased scribe
(f) and by any other circumstantial evidence. (See Chapter XVI)
Fakhruddin A.I.R. 1967 S.C. 1326, State of Assam v. Upen Raj Khowa
1975 Cr.L.J. 354.
Normally it is not safe to treat expert evidence as to handwriting as
sufficient basis for conviction. It may, however, be relied upon along with
other various items of external and internal evidence. See Ramchandra, AIR
1957 SC 381. Handwriting expert having not such qualification to accept him
as an expert, he having done hardly any work within a few years before
examination of handwriting held his opinion is without any value-
Laxmichand, AIR 1977 SC 1694 and conviction based solely on experts
opinion particularly on handwriting expert is not permissible Magan Behari
Lal, AIR 1977 SC 1091. In assessing the opinion of a handwriting expert, the
length of practice of the expert is not material. What is material is its
reasonableness and scientific quality. Handwriting experts opinion is not
conclusive and when such report is submitted, the Court must see for itself
and with assistance of expert about the identity of the handwritings. See
Ram Prasad, AIR 1984 (NOC) 77 (All.).
Handwriting expert–His report is only the opinion of the expert–
Therefore, without examining the expert in court as a witness, no reliance
can be placed on his report. State of Maharashtra v. Damu s/o Gopinath
Shinde, AIR 2000 SC 1691.
Expert Opinion–Expert is one who has made the subject upon which he
speaks a matter of particular study, practice or observation–He must have a
special knowledge of the subject–An expert is not witness of fact–His
evidence is really of an advisory character. State of Himachal Pradesh v. Jai
Lal, AIR 1999 SC 3312.
Expert Opinion–Two handwriting experts have given two contradictory
opinions on the same facts–The Magistrate to arrive at a correct decision
directed that the questioned and the specimen thumb impressions be sent to
the Director CFSL Chandigarh for his report–Petition against–Held that the
order of the Magistrate is for the just decision of the case–No illegality or
infirmity in the said order. Rambir Singh v. State of Delhi, 1993 JCC 402.
Evidence of Handwriting Expert–Held,–Never be conclusive. Lakshmanan
v. State, 2003(5) CRJ 615.
Extra caution and care is to be exercised in evaluating the opinion of
handwriting experts before accepting the same. Raghu v. Rajendra Kumar,
2003(2) CRJ 718.
 Husband excluded from possible paternity–Held, in the MC is of no
consequence–In view of the conclusive presumption under section 112 of
Evidence Act which is not displaced by husband by proving non-access.
Sajitha v. State of Kerala, 2002 (3) KLT 762.
Section 47–Opinion as to handwriting–When a court has to form an
opinion as to person by whom any document was written or signed, the
opinion of any person acqainted with the handwriting of any person by whom
it is supposed to be written or signed, that it was or was not written or
signed by that person, is a relevant fact. In the present case, two letters
were received in the office of the complainant in the course of business and
in respect of the transaction which had taken place between the complainant
and the accused–Original letters purporting to have been signed by and
received from accused could be admitted in evidence. Ashish C. Shah v.
Sheth Developers Pvt. Ltd., 2011(4) Crimes 166.
Expert opinion–Opinion of Handwriting expert–When a party to a suit alleges
existence of certain facts, the court can draw no inference of its existence unless it is
proved through the manner in which the Evidence Act in envisaged. Section 45 to 47
provides that opinion of the handwriting expert is a relevant fact. Therefore, such
evidence may be relevant to prove the allegation regarding suspicious circumstances
surrounding the execution of “will”. Therefore, the court shall not preclude a party from
adducing any evidence which may be relevant in accordance with the Evidence Act to
prove his case. Susheela v. Deepika & Others, 2014(1) KLJ 641.
Expert Opinion–An expert is not a witness of fact and his evidence is really of an
advisory character. The duty of an expert witness is to furnish the judge with the
necessary scientific criteria for testing the accuracy of the conclusions so as to enable
the judge to form his independent judgement by the application of these criteria to the
facts proved by the evidence of the case. Further, expert evidence is confirmatory or
explanatory of direct or circumstantial evidence. It was held that confirmatory evidence
cannot be given preference where confidence-inspiring and worthy of credence
evidence is available. Prem Sagar Manocha v. State (NCT of Delhi), AIR 2016 SC 290.
Specimen Signatures–The authority of Executive Magistrate to take specimen
signatures of the person during the course of investigation, cannot be disputed (S. 73).
Sukhram v. State of Himachal Pradesh, AIR 2016 SC 3548.
Specimen Signatures–Section 73 of Evidence Act makes no distinction between the
civil court and a criminal court. The second paragraph of section 73 enables the court to
give specimen writings “for the purpose of enabling” the court to compare “such
writings” with writings alleged to have been written by such person. The clear
implication of the words “for the purpose of enabling the court to compare” is that there
is some proceeding before the court in which or as a consequence of which it might be
necessary for the court to compare such writings. The direction is to be given for the
purpose of “enabling the court to compare” and not for the purpose of enabling the
investigating or other agency “to compare”. The language of section 73 does not permit
a court to give a direction to the accused to give specimen writings for anticipated
necessity for comparison in a proceeding which may later be instituted in the court.
State of U.P. v. Ram Babu Mishra, 1980(2) SCC 343.
Expert of opinion–Opinion of handwriting expert–The handwriting expert relied upon
by appellants gave his report based on the photocopies of the writing and signatures of
the appellants and not on the basis of their specimen signatures. During the course of
hearing, Supreme Court ask the counsel for the appellants, if they had filed any
objection to the report of the handwriting expert relied upon by the prosecution. It was
fairly stated that they did not do so. Hence, the trial court has rightly observed that in
accordance with banking procedures, the opening of the account, the deposits in the
same and withdrawal could not have been the handi work of the appellants alone. But
merely because the investigation may not have been of the standard and nature that it
ought to have been cannot ensure to the benefit of the appellants in view of the nature
of materials and evidence available against them held no interference with the
conviction of the appellants. Ram Gopal v. Central Bureau of Investiation, 2019(7) SCC
204.
Burnt Document
If an Investigating Officer comes across a burnt document, he should take
extreme care in its collection. It should be gently pushed with a camel hair
brush, breath on to a piece of stiff paper and gently transferred to a box to
be sealed and sent to expert. The writing on it can be deciphered with the
help of (i) ordinary photography, (ii) Infrared photography as carbon is
opaque to infra red light, (iii) If these methods fail, then the document is
immersed in 5% silver nitrate solution until development is complete. It is
then washed in distilled water and photographed under water.
Secret documents: In case of secret document written with invisible ink
first examine under a strong light. It will tell an I.O. any slight alteration of
surface texture due to writing with invisible ink. Some slight trace is always
left. If sure, then expose it to light and air as it develops silver salts. If these
two methods fail then examination under ultraviolet rays, or X-rays
examination will reveal writing. Heating under hot iron or in an oven meant
for this also is useful. Finger print powders, exposure to iodine fumes and
immersion in a bath of silver nitrate and reducing agent are quite helpful.
The commonly used secret inks are onion juice, fruit juices, urine, milk,
saliva, perspiration, alum, soap solution, etc.
Inks: The comparison of inks also plays important part in detecting
forgeries. The age of inks though it is not a sure test also determines forger
if a writing is added or crossed with another ink.
The expert can analysis the ink chemically and tell as to what kind of ink is used.
Colour of ink can also be distinguished with the help of Tintometer. The test is also
performed with reagents. Colour filters and infrared photography also help in its
identification.

Do’s and Don’ts for Documents

1. In case of recovery of folded document, best method is to unfold it
once and then keep it flat in an envelope that is large enough to hold
it unfold.
2. Don’t make new fold.
3. Don’t cut or tear a document in anyway.
4. Don’t touch it with any liquid whether paste, glue, chemical liquid,
varnish or anything else.
5. Don’t bleach away any ink line or whole letter for the purposes of
showing that a pencil line is underneath. Infrared photography will
show graphite under ink line.
6. Don’t touch a document with pencil, pen, erasure of any kind whether
rubber, hard or soft knife, etc.
7. Don’t make a tracing of document.
8. Don’t expose document to heat, excessive light or damp.
9. Don’t make unnecessary repairs. If it is torn, have it in the same
condition and place it between two glass plates.
10. Don’t rub your fingers over an erasure.

Forensic Ballistics
Forensic ballistics is that branch of science which is concerned with the
investigation of fire arms and ammunition and problems arising from their
use, for the purpose of legal evidence.
In Criminology, the main principle of the science of ballistics is to
establish with certainity whether a given bullet or cartridge was fired from a
particular fire-arm. The barrel of every weapon is cut out in grooves after
boring a hole through the steel bar. The number of grooves differ according
to every manufacturer. The tool marks also leave minor irregularities and
imprints in every barrel. These grooves help the bullet in spinning when it
leaves the barrel and irregularities of the lands and grooves are impressed
upon the bullet. The striation marks of lands and grooves of the barrel are
also imprinted on the bullet in similar way and as such are now termed as
“thumb prints” of the fire arms. Such individual characteristics marks are
comparable under the comparison microscope, which enables two different
objects to be accurately compared side by side for minute points of
similarity; subsequently with micro-photographs for production in Courts.
Similarly, the cartridge case can also lead to the identification of gun due
to markings of the firing pin on the percussion cap of the cartridge which
has individual characteristics. Other equally important marks produced by
Breach-Block, Ejector, Extractor and Chamber on the head, rim and
cylindrical portion of the cartridge case respectively also help in the
comparison.
It was held in Kartar Singh, 1977 SC 349 that an expert stating that he
came to conclusion that empties recovered could not have been fired through
the firearm because every firing pin scratch, breach face mark has its own
individuality could be relied upon.
Forensic report made over to Court two days after commencement of trial
indicating that the accused could not have fired the shot that caused the
death, held the accused must be acquitted. See Harchand Singh, 1981 Cr.L.J.
466 (SC).
From a bullet or cartridge when the rifle or gun is not available, some
indication about the type, make and bore of weapons are discernible by
examining the grooves and land mark on the bullet. Similarly, the recovery
of bullets, wads and card board disc will lead to the determination of the
type and bore of the fire arm. Information to assist in this identification may
be found in trade circulars and books of reference. Actual manufacturers can
also be consulted in cases of difficulty, if possible.
The expert can also tell the approximate distance and direction from
which the shot was fired by examining the rounds and their surroundings.
Scorching, blackening, signing and tattooing prove close proximity.
However, in Om Parkash, 1971 Cr.L.J. 749 , it was held that in judging the
distance from which a fire arm was discharged. The appearance and the
nature or resultant wound cannot be said to afford a sure criterion and that
any deduction based thereon would lead at best to a very rough estimate.
However, in Karnail Singh, 1971 SC 2119, and Janak Singh, 1972 SC 1853, it
was held that the witnesses can give varying distances and mere
inconsistency of distances between expert and witnesses will not matter
much to throw away testimony of eye-witnesses.
Delay in sending empty cartridge to ballistic expert is fatal to
prosecution. Samman Singh, (1985) 1 Crimes 72 and when incriminating
arms and recovered from the possession of the accused, but there is
inordinate delay in sending empty and live cartridge to ballistic expert, the
recovery can be used against the accused Khalak Singh, 1992 Cr.L.J. 1150
(M.P.).
Since there are chances of the presence of finger or palm prints on the
fire arms, etc. great care should be taken in collecting and preserving fire
arms and empties before these are despatched for examination. Always send
sealed. Get empty signed.

Photography
“Camera has caused more grief among criminals than any other single
device in the service of police science.” It yields faithful, accurate,
exhaustive, unbiased, incontrovertible record of events which may be
impossible to get otherwise.
During the past years, the motion picture camera has come into wide use.
It helps in providing irrebuttable proof of occurrences and part played by
criminals and police in unlawful assemblies, gambling dens, bribes, etc. This
dispenses with relying upon verbal descriptions, dependent on memory or
motive. It cannot be gainsaid that a photograph impresses the Judge and
Jury.
Photomicrography is the science of combining the microscope and the
camera and with its help, minute clues, not visible to the naked eye, can be
seen. The hairs, fibres, dust particles, perforations on paper can be
examined, under it. The fluoroscope camera enables the instruments to
pierce solid matter and photograph objects not visible. Its chief use in
investigation is to probe the interior of suspicious packages, suspected of
containing bombs, etc. Radiography is used in attempts to read the contents
of the sealed letters. The age of kidnapped can also be determined and so
also the position of fracture, dislocation or presence of foreign body like
bullet and coin in the human body.
The ultraviolet and infrared light play an important part in photography.
They help in detection of forgery, blood and semen stains, differences in
seals, faded, and secret writings, burnt documents, etc. Photography also
helps in sketching the crime scene and in fixing identification of missing and
wanted persons.

D.N.A Finger Printing

In recent times there have been substantial developments in various
science leading to the advent of several new scientific proofs. The most
significant development that has taken place in the last few years in the use
of “D.N.A. fingerprinting” for forensic purpose.
In India at the centre for Cellular and Molecular Biology, Hyderabad and
also in other countries extensive research is being done in the scientific
technology relating to Deoxy Ribo Neucleic Acid Test (DNA). “DNA Finger
printing” has been used for settling cases of paternity disputes, immigration
problems and not only in cases of homicide and rape, but also for absolute
identification of individuals from stains of blood, semen, muscle fragments,
bones etc.
The technique gained legal validity in India in 1989 in a landmark
paternity case in Thalassery, Kerala.
In a criminal trial DNA test was challenged. Court held that DNA report
has been recognized as being scientifically accurate and an exact science.
Santosh Kr. Singh v. State through CBI, 2010(4) Crimes 226 (SC).
DNA Test: What is DNA–Everyone is born with the distinct genetic
blueprint called DNA known as Deoxyribo Nucleric Acid and exclusive to an
individual except in the rare occurrence of identical twins that share a single
fertilized egg. DNA is a part of every cell in the human body and never
changes throughout life. It remains in individual's blood, skin cells, hair
follicles, muscles, semen, samples from buccal swab, saliva or other body
parts. Harjinder Kaur v. State of Punjab, 2013(2) RCR (Cri.) 146.
DNA Test : Court have the power to direct a party to undergo DNA test
and if he does not cooperate with the order, the Court can draw adverse
inference against him. However, only in exceptional and deserving cases
where such a test becomes in dispensable to resolve the controversy, the
court can direct such test–This cannot be ordered as a matter of routine.
Court must record the reasons while ordering such test. Pathukala Sakkariya
v. Salman Faris, 2013(1) RCR (Criminal) 815.

Lie-Detector, Voice Print, etc.

Polygraph (Lie-Detector) is being used more freely for investigation and
interrogation purposes in India now while identification of speakers by using
sophiscated voice spectrography has received a great deal of attention
especially in U.S.A. Voice print of an individual is also unique and is based
on electronic charting of spoken sound which is based on intensity and
frequency of the components making up a sound. Voice print analysis if done
properly, will help in the identification in such cases as theft, blackmail,
indecent talk, aircraft accident, etc. with a fair degree of certainty.
Science Techniques in Investigation
Burglary
1. Note mode of entry. Examine ground in vicinity for footprint clues and
cover same to prevent obliteration. Note the way offender retreated.
Look in surrounding areas; he may be leaving fibres of his clothes in
hurry with hedges, wires, etc.
2. Call a tracker. Push tracks if possible. Prepare moulds.
3. Who secured the house last and how.
4. Examine articles which could have been handled by culprit for finger
prints without touching.
5. Take full description of missing property, paying special attention to
marks or inscription or peculiar shape or design by which they may be
identified and value of each article. Note the manner in which the
offence was committed.
6. Enquire if missing property is insured.
7. Is any known person suspected: If so the reason; where he may be
found; places frequented; particulars of associates, etc.
8. Examine thana a record for possible clues to suspects.
9. Interrogate owner for persons having special knowledge of premises
like dismissed servants, wicked relations, vegabonds, etc.
10. Is, there any ground to suspect fabrication.
11. Search for tools and tool marks; examine broken windows for
identification; if glass panes were broken from inside or outside
search for any fibres, blood marks, articles left by accused—
Sometimes burglars and hungry and may be leaving teeth marks in
cheese, fruits, etc. These teeth marks can be preserved by plastic
marks and later compared with accused teeth.

Road Accidents
1. Rush to the scene at once to attend to injured, damaged vehicle and to
contact witnesses who being strangers might soon go away.
2. Take investigation bag with you, especially small tape, piece of white
chalk and a notebook.
3. Remove injured to hospital immediately. Put marks with chalk on the
road where injured were lying to facilitate inspection. Examine them
before removal.
4. Remove vehicles making there position with chalk to permit traffic.
5. Examine driver, witnesses, etc. Examine driver if he is drunk. Note
your observation and have him medically examined immediately.
6. Where the vehicle collide, search for patch of mud and broken glass
pieces. This would indicate contact.
7. Examine documents, licences, insurance or registration certificate,
etc.
8. Examine vehicles, particularly extent of damage as it indicates contact
and have report.
9. Examine road—(a) surface for wheel tacks, showing direction and side
if correct or incorrect, (b) Skid marks showing where brakes were
applied and speed, (c) deviation marks to show if driver tried to avoid
accident, (d) width of road its Pucca or Kachha portion to be measured
accurately, (e) Note foot print, note there are traffic signs; note
natural features of road, trees, high hedges to find if there is any
obstruction; state of weather to know visibility, etc.
10. Note the range of vision as driver could slow down.
11. Draw a sketch giving all material points.
 12. Search for paint marks, greeze marks, glass fragments on scene
or body of victim, other clues like blood, hair, fibres, dust, etc.
All will help in determining guilt of driver. The paint, glass pieces, etc.,
will help in fixing identity by comparison with original.
Arson: Scientific examination of articles, the residues help a lot in
determining the cause and origin of fires. An investigator has to deal with
fires caused deliberately, making out an offence under section 435 and 436
I.P.C.
There may be fires due to natural causes, viz., Lightening and action of
sun’s rays. It is easy to determine lightening from shattering effect of
structure, deformation of metallic objects, etc. The concentration of sun’s
rays on the inflammable material may be a cause when rays pass through
concave mirror, transparent lens, broken glass, air bubbles of a lens, etc.
and fall on combustible material.
There may be fire due to spontaneous combustion when oxygen combines
with substances and there is vigorous chemical reaction. For combustible
materials such as coal, cotton, saw dust, hay, decaying wood, etc., and
presence of stove, progressive change producing heat in that material are
necessary. Heat is also generated during decomposition or organic
(carbonaceous) matter by bacteria and mould.
In every case of fire, investigate:
1. Examination of debris is necessary. Majority of fires deliberately
caused are brought about by ignition of inflammable material such as
paraffin, benzine, petrol, oil rags, etc. The evidence of course
consumed in fire but search and smell do indicate some remnants.
Pack such matter in air tight containers to be sent to expert so that
smell does not disappear.
2. Search for material which may have been used to delay ignition like
electric iron, radiator, etc.
3. Any analysis of ashes is necessary for finding out any igniting material
such as sodium carbonate, etc.
In addition to above, investigate on:
1. Who was the first to observe fire and what he observed?
2. Where fire was observed first and where did it originate?
3. How was building furn shed and was there any fire-place stove, etc.?
4. Who was present in building when fire was observed and who was the
last to visit and for what purpose, if he used any fire or he smoked?
5. Was there any fire anywhere, when lit and what fuel used?
6. Were inflammable objects lying about or banging near stove, etc.?
7. In what manner lamps, candles, lanterns, earthen lamps, etc. were
place at what distance from wooden articles, ceiling, etc.?
8. What was the condition of electric lights?
9. Were there any substances which might be subject to spontaneous
combustion?
Investigate on motive: whether premises are insured or not; if there had
been a previous attempt at fire?

Poisoning
The toxicologist is an expert who determines the death by poisoning, the
type of poison used and the dose administered. In cases of suspicious death
by poisoning, the Investigating Officer should collect evidence regarding:
1. The circumstances of death, the duration of illness, the symptoms of
death. In fact explore all events immediately preceding death.
2. Details of meals, particulars of medicine used prior to poisoning.
3. Preserve any evidence of vomiting or purging.
 4. Collect samples of food, medicine, etc., used.
5. Collect containers used for food stuffs or drinks.
6. Collect any residue which may contain traces of poison including
materials from dustbins, fire places, dust and debris, from tables, etc.
7. Collect ashes, if body cremated.
8. In case of exhumation, collect samples of earth.
9. Also collect brief history of patient; motive etc.
The Investigating Offficer will also request the medical officer to stomach
washings, contents of stomach, intestines, liver, kidneys, bladder, etc., to
experts. If certain poisons are suspected, then certain parts of body are to
be sent, e.g., for arsenic, portions of hair, finger and the nails. Even if
poison cannot be traced in the viscera, etc. the circumstantial evidence may
prove the administration of poison.
In a case of murder by poisoning the I.O. is to prove—(i) that death took
place by poisoning, (ii) that the accused had the poison in his possession,
(iii) that the accused had the opportunity to administer poison to the
deceased.
This criteria was applied by Supreme Court in Mohan 1956 S.C. 609, and
the fact that accused gave perha to the deceased, it was inferred that he was
in possession of poison shortly before winch he would have mixed with
‘perha’.
In Anant Chentaman Lagu, 1960 SC 500 , there was no positive evidence
of poison in Post Mortem. There are synthetic hypnotics and vegetables
alkaloid groups which do not leave any characteristic signs which can be
noticed in post mortem. In such cases offence can be proved by
Circumstantial Evidence, viz.
(i) that facts prove may create a network through which there is no
escape for accused.
(ii) conduct of accused.
(iii) death being unnatural.
(iv) accused had opportunity to give poison.
(v) taking to Hospital bereft of ornaments, etc.
(vi) giving her a wrong name in record of hospital.
(vii) abandoning her body, etc.
An important case in this aspect is Dharam Dass Vadhwani, 1974 Cr.L.J.
1249, wherein the compounder had given poison when asked for aspirin by
his doctor. The compounder took the plea of accidental taking of wrong
medicine. The Supreme Court held, “Link after link forged firmly by credible
testimony form a strong chain of sure guilt.” The circumstantial evidence
does assume importance in such cases.
Motive assumes great importance in such cases and most be proved. As
held in Ramgopal, 1972 SC 656, when it is proved that deceased died of
poison in question, motive is there, the accused had poison in possession and
he had opportunity, the case is proved A.
(See Chapter Investigation of Murder).



Chapter–29
Intellectual Property Protection:
Copyright, Trade Marks, Patents
 The term “Intellectual Property” has come to be internationally
recognised as covering patents, industrial designs, copyright, trademarks,
know how and confidential information besides geographical indication.
Patents, designs and trademarks used to be considered as different kinds of
“industrial property.” But when copyright and confidential information were
included the term “Intellectual property” though a little high sounding, is a
more appropriate description for this class of property.
The contribution of intellectual property to industrial and economic
development of a country cannot be exaggerated. Infact modern civilization,
particularly the prosperity achieved by developed nations is built up by the
exploitation of intellectual property. Intellectual property in its varied forms
plays a key role in technology transfer sought after by developing countries.
There are many similarities in the law relating to the different species of
intellectual property in regard to the nature of the property, the mode of its
acquisition, the nature of rights conferred, the commercial exploitation of
those rights, the enforcement of those rights and the remedies available
against infringement of those rights.
All forms of intellectual property are different kinds of monopoly right
conferred by statute. These monopoly rights are granted for limited periods
subject to certain conditions.
Property in an invention can be acquired only by patenting the invention
under the Patents Act by following the prescribed procedure. Property in a
design can be acquired by registration under the Design Act. Similarly,
property in a trade mark can be acquired by registration under the Trade
and Merchandise Marks Act. For acquisition of copyright in a work no
formilities like registration under a statute is necessary. Copyright subsist in
certain categories of work as soon as the work comes into existence and is
published.
Copyright
Copyright derives from the expression of “copie of words”, first used in
the context according to the Oxford Dictionary is 1586—The Oxford English
Dictionary defines “Copyright” as the exclusive right given by law for a
certain terms of years to an author, composer, etc., (or his assignee) to
print, publish and sell copies of his original work. The Copyright Act affords
protection to a much wider species of works. The scope of protection is also
wider.
Chamber Encylopaedia defines copyright in its most elementary form as
“the exclusive right to multiply copies of a book.”
Section 14 of the Copyright Act, 1957, Copyright means the exclusive
right to do or authorise others to do certain acts in relation to–(1) Literary,
dramatic or musical works, (2) Computer progamme, (3) artistic works,
(4) cinematograph film and (5) sound recording. The nature of the acts vary
according to the subject matter. Basically copyright means the right to copy
or reproduce the work in which copyright subsists. The various acts for
which copyright extends is listed in section 14 of the Act. Since the Section
begins with the expression “Copyright means” it would appear that the
definition is exhaustive and copyright does not extend to any right beyond
the scope of Section 14. Further, copyright subsists only in the items of
works specified in Section 13, namely (a) original literary, dramatic, musical
and artistic work, (b) cinematography film, and (c) sound recording.
Under the present version of the Copyright Act, 1957, the scope of the
term “literary work” has been stated to “include computer programme, table
and compilations including computer databases.” The Act therefore brings
computer programmes within the definition of a literary work and would
therefore provide the same protection as would be available to a literary
work.
It is clear that from the moment a computer programme is written out on
a piece of paper, copyright subsists in the work, in the same way as it would
in respect of any other literary work. But the definition of computer
programme in the section 2(ffc) of the Copyright Act include all
representations of computer programmes, regardless of whether they are
reduced to writing or in machine readable form.
Ordinarily, the copyright in any work would not subsist unless that work
is either first published in India (or when published out of India, if the
author was a citizen of India on the date of publication) or in the case of an
unpublished work, other than a work of architecture, the author is on the
date of making the work, a citizen of or domiciled in India. However, the
Central Government has the power to extend the benefit of the Act to works
first published in other countries by an appropriate notification in the
Official Gazette.
In this regard, the Central Government passed the International
Copyright Order in 1958. According to this order, the provision of the
Copyright Act, 1957 would apply to works published in any of the Berne
Convention, Universal Copyright Convention or Phonograph Convention
countries that were specified in the schedule to the order. This order was
subsequently superceded by the International Copyright Order, 1991. The
Government of India has recently passed the International Order, 1999.
The copyright in a certain work made or published in the United States of
America, for example, would receive the same protection as would have been
available to that programme, if it had been made or published in India. This
would imply that any programme developed in any of these treaty countries
would automatically become copyright material in India and that the holder
of the copyright in United States of America would be able to enforce the
same rights under the Copyright Act, 1957, as any other person who
developed the work in India. In other words, each contracting State of Berne
Convention and Universal Copyright Convention should give adequate and
effective protection of the rights of author and other copyright proprietors
by way of providing the National treatment/legal protection.

The Ownership and Assignment of Copyright

The general rule of thumb followed in determining the ownership of
copyright is that the first author of the work will be designated as the owner
of the copyright in the work. There are several specific exceptions to this
rule, each of them following the general principle that the copyright in a
work that was commissioned for valuable consideration will vest with the
person commissioning such work, except where there has been a contract to
the contrary between the author and the person commissioning the work.
It is also relevant to mention that the Copyright Act, 1957, makes a
provision for the registration of copyrights in a prescribed form in the
register at the copyright office. However, this is just an option granted to
the owners of copyright, and there is no legal requirement for the copyright
holder to register with the copyright office, in order to perfect his copyright
in a work. The copyright in a work will vest with the original author of the
work, regardless to the fact that some other person has registered a
copyright in the work subsequently.
The owner of the copyright has the right to assign the copyright to any
other person or persons. Such assignment may relate to an existing or a
future work and may pertain to a part or the whole of the work. The effect of
an assignment is that the person to whom the right, are assigned becomes
the owner of the copyright with respect to those rights while the owner
retains ownership over the copyright in respect of all the other rights
vesting in the work. The assignment of copyright must be carried out
through a written deed of assignment and must indicate clearly the rights
being assigned. The provisions relating to the assignment of copyright
mentioned in Sections 18, 19, 19A of the Copyright Act, 1957.
Licences—There are three types of licences as mentioned in the
Copyright Act, 1957 (as amended in 2012)—
(i) Voluntary Licences
(ii) Involuntary or Compulsory Licence.
(iii) Statutory licence.
Section 30 – Licences by owners of copyright.
Section 30A – Application of section 19 (Mode of assignment).
Section 31 – Compulsory licence in works withheld from public.
Section 31A – Compulsory licence in unpublished or published
works.
Section 31B – Compulsory licence for benefit of disabled.
Section 31C – Statutory licence for cover versions.
Section 31D – Statutory licence for broadcasting of literary and
musical works and sound recording.
Section 32 – Licence to produce and publish translations.
Section 32A – Licence to reproduce and publish works for certain
purposes.
Section 32B – Termination of licence issued under this Chapter VI.
The provision of sections 19 and 19A will with any necessary adaptations
and modifications apply in relation to a licence as they apply in relation to
assignment in a work.

What is Licence?
The owner of a copyright may grant an interest in the copyright by a
licence. The licence may be confined to one or more interests or to the entire
copyright. A licence is an authorization of an act which, without such
authorization would be an infringement involve only some of the rights and
not the whole. An author of a novel may licence the right to reproduce the
work in hard-back to one person and paper back to another, the serialisation
rights to newspapers or megazines film, rights and the translation rights in
any language to yet another.

Different kinds of Licence and its duration

There are different kinds of licence. It may be exclusive or non-exclusive,
it may be granted by the owner or granted by the Copyright Board as a
compulsory licence, it may be limited with respect to time, territory within
the jurisdiction or part of the interest in question where possible (e.g., right
to publish a book can be split into hard cover, paperback editions, etc) or
particular country.
The licence may be for indefinite period or may be limited to a definite
period. There is no prescribed form for a deed of licence. But it should be in
writing signed by the owner of the copyright or his duly authorised agent. A
licence can be granted not only in respect of an existing work but also in
respect of a future work. But in the case of a future work the licensee will
take effect only when the work comes into existence.
A licence deed in relation to a work should specify the following
particulars:
(a) Identification of the work
(b) Duration of licence
(c) The rights licenced
(d) Territorial extent of the licence
(e) The quantum of royalty payable, and
(f) Terms regarding revision, extension and termination.
If the rights licenced are not specified, it will be presumed that the
licensor has licensed all his rights.
Licence usually under the Act. If the period of licence is not stated it will
be deemed to be five years from the date of licence. If the territorial extent
of the licence is not specified it will be presumed to extend within India.

Non-voluntary or Compulsory Licence

Many countries have provided in their copyright legislation for
compulsory licences particularly in those fields of copyright where modern
technology has created new used for works giving new rights which can only
be exercised effectively by bulk licencing through a collecting society or
under a compulsory licence system. (International Copyright by Stewart–P.
75-76).
The Berne Convention Paris Act (1971) and the UCC have made special
provision for non-voluntary licences for the benefit of developing countries.
Under these provisions such licences are: (a) Confined to the exercise of two
rights–the translation right and the reproduction right, (b) Confined to
countries recognized as developing countries, (c) Only permitted if all the
prior conditions stipulated in the Annex and Protocol are fulfilled, (d)
Temporary in the sense that they are permissible under the Conventions only
as long as the country concerned ranks as a developing country.

Compulsory Licence of an Indian Work : (Section-31)

The copyright Board is empowered to grant compulsory licences under
certain circumstances on suitable terms and conditions in respect of an
“Indian work.” The circumstances necessary for grant of such compulsory
licences are as following:
(a) The work must have been published or performed in public,
(b) The author must have refused to republish or allow republication of
the work or must have refused to allow the performance of the work
in public,
(c) That by reason of such refusal the work is withheld from public, or
 (d) The author must have refused to allow communication to the public of
such work by broadcast, or in the case of a sound recording the work
recorded in such record, on reasonable terms.
The circumstances necessary for the grant of such licence by the
Copyright Board are mentioned in the Section 32 of the Copyright Act, 1957.
Works for Hire
Under Indian law, it is clear that the author of the work will be the first
owner of the copyright in the work in all circumstances except where
specifically provided for in the statute (see Section 17 of the Copyright Act).
Under the express terms of the Section 17 (c) of the Copyright Act, 1957,
the ‘factum’ of employment establishes a prima facie assumption that the
copyright in the works developed by the employee vest with the employer – a
presumption that may only be rebutted, if the employee produces a “contract
to the contrary”. However, it is always prudent to include in the employment
contract, specific language to state that the ownership of the copyright in all
the works developed by the employee in the course of such employee’s
employment, shall vest with the employer.

Infringement of Copyright
Copyright law confers upon the owner of the work a bundle of exclusive
right in respect of the reproduction of the work and other acts which enables
the owner to get financial benefits by exercising such rights. If any of these
acts relating to the work is carried out by a person other than the owner
without a license from the owner or a competent authority under the Act, it
constitutes infringement of copyright in the work. The exclusive rights
conferred on the owner depends on the nature of the work in which
copyright subsists. Section 51 defines infringement of copyright generally.
Section 52 gives a long list of acts, which do not constitute infringement of
copyright. The nature of exceptions to the exclusive right are given as under:
Copyright is a proprietary right and accordingly its infringement is
actionable without proof of damage or likelihood of damage.
It may be pertinent to reproduce here the relevant portion of Section 51
of the Copyright Act, 1957, dealing with infringement of copyright. Section
51—
Section 51. When copyright infringed.— Copyright in a work shall be
deemed infringed:
(a) when any person, without a licence granted by the owner of the
Copyright or the Registrar of Copyrights under this Act or in
contravention of the conditions of a licence so granted or of any
condition imposed by a competent authority under this Act:
(i) does anything, the exclusive right to do which is by this Act
conferred upon the owner of the copyright, or
(ii) permits for profit any place to be used for the communication of
work to the public where such communication constitutes an
infrigement of the copyright in the work, unless he was not aware
and had not reasonable ground for believing that such
communication to the public would be an infrigement of
copyright; or
(b) when any person:
(i) makes for sale or hire, or sells or lets for hire, or by way of trade
displays or offers for sale or hire, or
(ii) distributes either for the purpose of trade or to such an extent as
to affect prejudicially the owner of the copyright, or
(iii) by way of trade exhibits in public, or
(iv) imports into india, any infriging copies of the work:
Provided that nothing in sub-clause (iv) shall apply to the import of one
copy of any work, for the private and domestic use of the importer.
 Explanation.—For the purpose of this section, the reproduction of a
literary, dramatic, musical or artistic work in the form of a cinematograph
film shall be deemed to be an “infringing copy”.
Section 53. Importation of infringing copies— (1) The owner of any
right conferred by this Act in respect of any work or any performance
embodied in such work, or his duly authorised agent, may give notice in
writing to the Commissioner of Customs, or to any other officer authorised in
this behalf by the Central Board of Excise and Customs:
(a) that he is the owner of the said right, with proof thereof; and
(b) that he requests the Commissioner for a period specified in the
notice, which shall not exceed one year, to treat infringing copies of
the work as prohibited goods, and that infringing copies of the work
are expected to arrive in India at a time and a place specified in the
notice.
(2) The Commissioner, after scrutiny of the evidence furnished by the
owner of the right and on being satisfied may, subject to the provisions of
sub-section (1), treat infringing copies of the work as prohibited goods that
have been imported into India, excluding goods in transit:
Provided that the owner of the work deposits such amount as the
Commissioner may require as security having regard to the likely expenses
on demurrage, cost of storage and compensation to the importer in case it is
found that the works are not infringing copies.
(3) When any goods treated as prohibited under sub-section (2) have been
detained, the Customs Officer detaining them shall inform the importer as
well as the person who gave notice under sub-section(1) of the detention of
such goods within forty-eight hours of their detention.
( 4) The Customs Officer shall release the goods, and they shall no longer
be treated as prohibited goods, if the person who gave notice under sub-
section (1) does not produce any order from a court having jurisdiction as to
the temporary or permanent disposal of such goods within fourteen days
from the date of their detention.
The exclusive right conferred on the owner of the copyright depends upon
the nature of work. They are as under:
(A) Literary, Dramatic and Musical Work
(i) to reproduce the work in any material form including the storing of
it in any medium by electronic means;
(ii) to issue copies of the work to the public, not being copies already
in circulation;
(iii) to perform the work in public or communicating it to the public;
(iv) to make any cinematograph film or sound recording in respect of
the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do any of the acts specified in relation to the work in sub-
clauses (i) to (vi), in relation to a translation or an adaption of the
work;
(viii) to permit for profit any place to be used for the communication
of the work to the public where such communication constitutes an
infringment of the copyright in the work, unless he was not aware
and has no reasonable ground for believing that such
communication to the public would be an infringment of the
copyright;
(ix) to make infringing copies of the work for sale or for hire or sells or
lets for hire or display or offers for sale or hire infringing copies;
 (x) to distribute infringing copies either for the purpose of trade or to
such an extent as to effect prejudicially the owner of the
copyright;
(xi) to exhibit infringing copies by way of trade to the public;
(xii) to import into India infringing copies. However, the import of one
copy of the work for the private and domestic use of the importer
is permitted.
(Section 51 read with section 14(a) of the Copyright Act)
(B) Artistic Work
(i) to reproduce the work in any material form including:
(A) the storing of it in any medium by electronic or other means;
or
(B) the depiction in three dimensions of a two dimensional work;
or
(C) the depiction of two-dimensions of a three dimensional work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already
in circulation;
(iv) to include the work in any cinematograph film;
(v) to make an adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts
specified in relation to the work in sub-clauses (i) to (iv).
[section 51 read with section 14(c)]
(C) Computer Programme
(i) to reproduce the work in any material form including the storing of
it in any medium by electronic means;
(ii) to issue copies of the work to the public, not being copies already
in circulation;
(iii) to perform the work in public or communicating it to the public;
(iv) to make any cinematograph film or sound recording in respect of
the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do any of the acts specified in relation to the work in sub-
clauses (i) to (vi), in relation to a translation or an adaptation of
the work;
(viii) to permit for profit any place to be used for the communication
of the work to the public where such communication constitutes an
infringement of the copyright in the work, unless he was not aware
and has no reasonable ground for believing that such
communication to the public would be an infringement of the
copyright;
(ix) to make infringing copies of the work for sale or for hire or sells or
lets for hire or display or offers for sale or hire infringing copies;
(x) to distribute infringing copies either for the purpose of trade or to
such an extent as to effect prejudically the owner of the copyright;
(xi) to exhibit infringing copies by way of trade to the public;
(xii) to import into India infringing copies. However, the import of one
copy of the work for the private and domestic use of the importer
is permitted.
(xiii) to sell or give on commercial rental or offer for sale or for
commercial rental, any copy of the computer programme. Such
commercial rental will not apply in respect of computer
 programmes where the programme itself is not the essential object
of the rental.
[Section 51 read with Section 14(b)]
(D) Sound Recording
(i) to make any other sound recording embodying it including storing
of it in any medium by electronic or other means.
(ii) to sell or give on commercial rental or offer for sale or for such
rental, any copy of the sound recording;
(iii) to communicate the sound recording to the public;
(iv) to permit for profit any place to be used for the communication of
the work to the public where such communication constitutes an
infringement of the copyright in the sound recording unless he was
not aware and had not reasonable ground for believing that such
communication to the public would be an infringement of the
copyright;
(v) to make infringing copies for sale or hire, or to sell or let for hire,
or by way of trade displays to offer for sale or hire, an infringing
copy;
(vi) to distribute either for the purpose of trade or to such an extent as
to affect prejudically the owner of the copyright;
(vii) to exhibit in public by way of trade;
(viii) to import into India any infringing copy. However, the import of
one copy of sound recording for the private and domestic use of
the importer is permitted.
[Section 51 read with Section 14(e)]
(E) Cinematograph Film
(i) to make a copy of the fim, including—
(a) a photograph of any image forming part thereof; or
(b) storing of it in any medium by electoronic or other means;
(ii) to sell or give on hire or offer for sale or hire any infringing copy
of the cinematograph film regardless of whether such copy has
been sold or given or hire on earlier occasions.
(iii) to communicate the cinematograph film to the public;
(iv) to permit for profit any place to be used for the communication of
the work to the public where such communication constitutes an
infringement of the copyright in the cinematograph film unless he
was not aware and had not reasonable ground for believing that
such communication to the public would be an infringement of the
copyright;
(v) to make infringing copies for sale or hire, or to sell or let for hire,
or by way of trade displays to offer for sale or hire, an infringing
copy;
(vi) to distribute either for the purpose of trade or to such an extent as
to affect prejudically the owner of the copyright;
(vii) to exhibit in public by way of trade,

Factors considered in determining the question of infringement

In determining the question of infringement the following factors are
considered:
1. Casual
1. Connection
2. Sub-conscious copying
3. Indirect copying
2. Substantial taking
(i) Unaltered copying.
 (ii) Extent of defendants alteration.
(iii) Character of plaintiff’s and defendants works.
(iv) Nature of plaintiff's efforts.
(v) Extent of plaintiff's effort.
(vi) Manner in which defendant has taken advantage of plaintiff's
work.
(vii) Extent of interference with plaintiff’s exploitation by
defendant’s acts.
(viii) Reproduction by the original author.
In R. G. Anand v. Delux Films AIR 1978 SC 1613 , after considering a
number of authorities, the following propositions are being made/derived—
(i) There can be no copyright in an idea, subject matter, themes, plots or
historical or legendary facts, and violation of the copyright in such
cases is confined to the form, manner and arrangement and
expression of the idea by the author of the copyrighted work.
(ii) Where the same idea is being developed in different manner, it is
manifest that the source being common, similarities are bound to
occur. In such a case the courts should determine whether or not the
similarities are on fundamental or substantial aspects of the mode of
expression adopted in the copyrighted work.
(iii) The safest test to determine whether or not there has been a violation
of copyright is to see if the reader, spectator or the viewer after
having read or seen both the works is clearly of the opinion and gets
an unmistakable impression that the subsequent work appears to be a
copy of the original.
(iv) Where the theme is the same but is presented and treated differently
so that the subsequent work becomes a completely new work, no
question of violation of copyright arises.
(v) As a violation of copyright amounts to an act of piracy it must be
proved by clear and cogent evidence after applying the various tests.

I m p o r t a t i o n o f I n f r i n g i n g
C o p i e s ( S e c t i o n 5 3 )
Section 53. Importation of infringing copies— (1) The owner of any
right conferred by this Act in respect of any work or any performance
embodied in such work, or his duly authorised agent, may give notice in
writing to the Commissioner of Customs, or to any other officer authorised in
this behalf by the Central Board of Excise and Customs—
(a) that he is the owner of the said right, with proof thereof; and
(b) that he requests the Commissioner for a period specified in the
notice, which shall not exceed one year, to treat infringing copies of
the work as prohibited goods, and that infringing copies of the work
are expected to arrive in India at a time and a place specified in the
notice.
(2) The Commissioner, after scrutiny of the evidence furnished by the
owner of the right and on being satisfied may, subject to the provisions of
sub-section (1), treat infringing copies of the work as prohibited goods that
have been imported into India, excluding goods in transit:
Provided that the owner of the work deposits such amount as the
Commissioner may require as security having regard to the likely expenses
on demurrage, cost of storage and compensation to the importer in case it is
found that the works are not infringing copies.
(3) When any goods treated as prohibited under sub-section (2) have been
detained, the Customs Officer detaining them shall inform the importer as
well as the person who gave notice under sub-section(1) of the detention of
such goods within forty-eight hours of their detention.
 (4) The Customs Officer shall release the goods, and they shall no longer
be treated as prohibited goods, if the person who gave notice under sub-
section (1) does not produce any order from a court having jurisdiction as to
the temporary or permanent disposal of such goods within fourteen days
from the date of their detention.

Importation into India of copies of books lawfully published in a

Foreign Country
If any person without the license of the copyright owner, imports into
India for the purpose of selling or distributing for the purposes of trade a
literary work the copyright is infringed even if the work was lawfully
published by the owner of the copyright or the exclusive licensee in the
country from which if has been imported. This is clear from the definition of
infringing copy in section 2 (m) read with section 51 and 53(1).

Remedies and actions for infringement of copyright

These are three types to remedies against infringement namely, civil,
criminal and administrative. Civil remedies include injunction, damages and
accounts, delivery of infringing copies, and damages for conversion. Criminal
remedies provide imprisonment of the accused or imposition of fine or both,
seizure of infringing copies, and delivery of infringing copies to the owner of
the copyright. Administrative remedies consist of moving the Registrar of
Copyright to ban the import of infringing copies into India and the delivery
of infringing copies confiscated to the owner of the copyright.

Criminal Proceedings
Criminal proceedings against the infringer will be effective as such
proceedings are more quickly disposed of knowledge or mens rea is an
essential ingredient of the offence.
Section 63 to 70 of the Act deal with offences, relating to infringement of
copyright. For the convenience of the readers, I am reproducing the same—
Sections 63 to 70.
Section 63 – Offence of infringement of copyright or other rights
conferred by this Act.
Section 63A – Enhanced penalty on second and subsequent
convictions
Section 63B – Knowing use of infringing copy of computer
programme to be an offence.
Section 64 – Power of police to seize infringing copies.
Section 65 – Possession of plates for purpose of making infringing
copies.
Section 65A – Protection of technological measures.
Section 65B – Protection of Rights Management Information.
Section 66 – Disposal of infringing copies or plates for purpose of
making infringing copies.
Section 67 – Penalty for making false entries in register, etc., for
producing or tendering false enteries.
Section 68 – Penalty for making false statements for the purpose of
deceiving or influencing any authority or officer.
Section 68A – Penalty for contravention of Section 52A
[Particulars to be displayed in Sound Recording and Video
Films ]
Section 69 – Offences by companies.

Seizure of Infringing Copies (Section 64)

Where any police officer not below the rank of Sub-Inspector of Police is
satisfied that an infringement or an abetment of infringement of copyright in
any work has been or is likely to be committed, he may seize without any
warrant all copies of the work and all plates used for the purpose of making
infringing copies of the work, wherever found. The copies so seized must be
produced before a Magistrate as soon as practicable. It warrants not only
copies found in the premises of the infringer but also those found in the
premises of retailers may be seized. Private individuals who might be
possessing infringing copies for their private and domestic use will not be
affected since possession of an infringing copy for private use is not covered
by the definition of infringement under section 51 Copyright Act.
Any person having any interests in any copies of a work seized by the
police may, within 15 days of such seizure apply to the Magistrate for
restoration to him of such copies. The Magistrate will pass such order as he
may deem fit.
Who may File a Complaint?
Generally, speaking anyone can put the criminal law in Notion unless
there is a specific provision to the contrary. Under Sections 44(2) and 190 of
the Criminal Procedure Code, a Magistrate will be competent to take
cognizance of any offence specified in section 190 upon receiving a
complaints.
The provision of the procedure of the Criminal Procedure Code will be
applied on each complaint.

Rulings
Section 14(a)(iii)–Infringement of Copyright–Injunction–Defendant
organised a live musical event (Raghav live in concert) on 28-8-2010 wherein
literary musical work of the plaintiff society were communicated to the
public without obtaining the requisite license–Defendant got performed
musical/literary works belonging to the members of the plaintiff and its
sister societies in the above referred live concert–No specific amount by way
of damages has been claimed by the plaintiff–Considering the prayer made in
the suit, punitive damages can be awarded to the plaintiff–If the damages
awarded against such persons are taken in nature and do not pinch the
infringer that would only encourage the infringer to repeat such acts in
future at the cost of some other copyright holder–Defendant is restrained
from organising any event involving live performance in respect of the lyrics
(s), musical score (s), copyright in which are held by the plaintiff company.
Indian Performing Right Society v. Adventure Communication India Pvt. Ltd.,
2012 (195) DLT 23.
Sectons 52A & 68A–Petitioners exhibiting a feature film in their video hall
without consent of the owner of copyright holder of the film–The distributor
had not released the video cassette of the said film for “public exhibition”–
Petitioners convicted for the offence under section 68A of the Copyright Act
for violation of section 52A of the said Act–Conviction set aside stating that
nothing has been brought on record to show that petitioners were exhibiting
video film without displaying three particulars as mentioned in section 52A–
No offence can be said to be committed by petitioners under section 52A.
Uma Shankar Gupta v. State of Jharkhand, 2013 Cr.L.J. 243.
Section 63–Quashing of FIR–Goods were lying unidentified at the railway
yard and thus respondent was justified in taking search warrants against
unknown persons–Further even assuming that the search warrants were
illegally obtained, evidence collected pursuant to an illegal search does not
become inadmissible in evidence during trial–FIR in question cannot be
quashed. New Hariom Industries v. Dandi Salt Pvt. Ltd., 2011 (48) PTC 231.
In the present case, the court held that the mandatory provision regarding the
production of infringing copies before the Magistrate trying the case is contained in
section 64 of the Copyright Act. It makes the production of infringing copies necessary
before the Magistrate trying the case, to prove the infringement or knowledge of
infringement by accused as per section 63 of the Copyright Act. It is also necessary for
handling over the copies to the complainant under section 66 of the Copyright Act, if the
Magistrate considers it expedient to do so. Ghure Lal v. State of Uttar Pradesh, AIR
1965 All 206, Allhabad High Court.
In the present case, the court held that the criminal case under section 63 against
the authors and publishers of notes of the books prescribed by the University was found
to be not maintainable because once the original authors of the book allowed these
books to be published by the University in their syllabus and University in its turn
published these books as part of the syllabus prescribed for the students, the matter
went into the hands of the public and no copyright in the strict sense of the term
remained with the complainant. Romesh Chowdhry v. Ali Mahamad Nowsheri, AIR 1965
J&K 101.
In the present case, it was decided by the court that when a person had taken up
work on an original creation and subjects the original to such revision and correction as
to produce a new result, the question whether there had been an infringement of
copyright would depend on whether a colourable imitation of another was essentially a
question of fact. Mishra Bandhu Karyalaya v. S. Koshat, AIR 1970 MP 261 (DB) Madhya
Pradesh High Court.
In the instant case, the court held that Copyright in the work of the grandfather who
was the original author of the copyright and had died 50 years back could not subsist
after his death, by virtue of section 22 of the Copyright Act. Therefore, the assignment
done by the grandson done in 1973-74 when the grandfather had died in 1909, was held
to be void and ineffective. Sections 17 and 18 of the Copyright Act show where the
copyright vests. If a work is done by an author for a consideration for a publisher, the
copyright in it vests in the publisher unless there is a contract to the contrary as
provided in section 17 of the Copyright Act. Khemraj Shrikrishan Das v. Garg and Co.,
AIR 1975 Del. 130 Delhi High Court.
In the present case, the court observed that Copyright is a creation of the statue.
There is no indication in any of the provisions of the Copyright Act, read individually or
as a whole to suggest that registration is a condition precedent to acquiring copyright.
The only effect of registration is that it is prima facie evidence of the particulars entered
in the register. Registration is thus optional. Manoja Cine Productions v. Sundaresan,
AIR 1976 Mad 22.
In this case the Supreme Court held that the author/composer of a lyric or a musical
work who has authorised a cinematograph film producer to make a film of his work and
thereby permitted him to appreciate his work by incorporating or recording it on the
sound track of a cinematograph film cannot restrain the owner of the film from causing
the accosted portion of the film to be performed or projected or screened in public for
profit or from making any record embodying the recording in any part of the sound
track associated with the film by utilizing such sound track or from communicating or
authorising the communication of the film by radio diffusion as section 14(1)(c) of the
Copyright Act permits the owner of the copyright of the cinematograph film to do all
these things. Indian Performing Right Society v. Eastern India Motion Picture
Association and Others, AIR 1977 SC 1443.
In this case, the court found that the entire get up, the combination of the colours,
words “Super White” on top and “Zinc Paint” on the bottom, in white circle with grey
lettering super imposed on violet background appeared absolutely copied, except for
the phonetic differences between the numerals ‘1001’ used by the plaintiff and ‘9001’
used by the defendant. No explanation was offered why the defendant came to choose
the get up similar to that of the plaintiff. Court granted temporary injuction. Anglo-Delhi
Paint, Colour and Varnish Workds Ltd. v. India Training House, AIR 1977 Del 41 Delhi
High Court.
In this case, the court observed that no copyright subsists in the composer of the
lyric or music so composed unless there is a contract to the contrary between the
composer of the lyric or music and the film producer. Following the decision of the
Supreme Court in AIR 1977 SC 1443, the High Court allowed the appeal and the order
under appeal was set aside. Eastern India Motion Pictures v. Performing Right Society,
AIR 1978 Cal 477 Calcutta High Court.
In this case the plaintiff Tata Oil Mills filed a suit based on the infringement of
trademark, copyright, passing off rendition of accounts of profits and seeking to restrain
the defendant during the pendency of the suit.
Defendant disputed the jurisdiction of the Delhi High Court regarding infringement
of trademark and passing off on the ground that he neither manufactured nor marketed
his goods within its jurisdiction though he conceded its jurisdiction regarding
infringement of copyright by virtue of section 62(2) of the Copyright Act.
Seeing the averments in the plaint that the plaintiff had been selling the goods
within the jurisdiction of the court, the Delhi High Court granted injunction restraining
the defendant regarding the trademark as also the copyright infringements during the
pendency of the suits. Tata Oil Mills Co. v. Reward Soap Work, AIR 1983 Del 286.
It was held that when the material for the book was supplied by Maulana Azad with
a clear understanding that Prof. Humayun Kabir would describe those thoughts and
conversations and write the same in English and 50% of the royalty of the book has
been paid to the legal representatives of Maulana Azad, then both the narrator and
writer shall have to be regarded as the joint authors of the said book. The legal
representatives of Maulana Azad had accepted the royalties. It establishes their consent
to the agreement assigning the copyright of the complete book to a publishing company.
They are not estopped from challenging the validity of the agreement and are not
entitled to an injunction restraining the publisher from publishing the entire work after
30 years as the author wished. Najma Heptulla v. Orient Longman Ltd., AIR 1989 Del 63
Delhi High Court.
The question to be decided was whether showing a video film over a cable T.V.
Network amounted to infringement or not. The Court held that showing films over cable
T.V. without proper authorization amounts to infringing of copyright because the video
film “may be watched by a large section of the public in the privacy of their homes but
this does not make it a private communication so as to take it out of the definition of
“broadcast” under section 2(dd) of the Copyright Act, 1957. The viewers of the cable
T.V. Network are a portion of public and they cannot be considered domestic viewers of
the cable T.V. Network company for watching the film. Garware Plastics and polyester
Ltd. v. Telelink, AIR 1989 Bom 331.
The complainant had written 13 episodes of the T.V. serial. Serial was extended and
13 more episodes were shown. The author of the first 13 episodes had not written the
extended 13 episodes. She challenged infringement of her copyright. The court held
that such matter could be decided on evidence to be adduced before the trial Court to
see whether the viewers of the extended 13 episodes have got the impression that the
subsequent episodes were a continuation of the original 13 episodes. Hence, the prayer
of the complainant to quash the proceedings under section 482 of Cr.P.C. could not be
granted. Garapati Prasad Rao v. Parnandi Saroja, AIR 1992 AP 230.
In the said case, the High Court held that power to seize the infringing properties is
the domain of the police officer alone. Magistrate even after taking cognizance cannot
direct any police officer to affect seizure. S.K. Zaharul Islam v. Umakanta Khandiratna,
1992 Cr. L.J. 1869.
Plaintiff and defendants were carrying on business together at one time using the
trade mark ELBEE for the machinery manufactured by them. There was dissolution of
partnership and these two brothers carried on independent business. Infringement suit
was filed on the basis of a catalogue, which actually was a brochure having a descriptive
words, tables and photographs. There was no reservation claim of copyright in the
brochure in any recognised method. The court while dismissing the suit, observed that
there must be compliance with the requirements of the Statute and claim to copyright
made upon the copyrightable material before any action in copyright can be sustained
and perfected by statutory remedies. Lamba brothers Pvt. Ltd. v. Lamba Brothers, AIR
1993 Del. 347.
In the present case, the question was involved with respect to mens rea under
section 63 of the Copyright Act, 1957. The Court observed that bare perusal of the
provision would go to show that emphasis is on the words “knowingly infringes... the
copyright in a work”. These words clearly postulate knowledge on the part of the acused
that he was infringing the copyright in a work. Mere possibility of his having known it
would not suffice. There has to be clear and conclusive proof of the requisite knowledge.
Even the existence of reasonable means of knowing would not be “mens rea in full
sense”. This, in short, being the legal requirement under section 63 of the Copyright
Act, evidence shall have to be led to bring home the required guilty knowledge. A.K.
Mukherjee v. State, 1994 (54) DLT 461 Delhi High Court.
Complaint has been filed against company and it’s Managing Director for
infringement of Copyright. Along with the complaint, the complainant also appended a
decision of the Copyright Board in which a finding was given by the board that without
any doubt the respondents were guilty of infringing the petitioner’s Copyright and that
the claim, the petitioner was just the rightful. The petitioner files an application under
section 319 of the Cr.P.C. read with section 69 of the Act to summon the other two
directors due to the demise of the Managing Director. It may be noted that they were
not the parties to the proceedings before the Copyright Board. There were no allegation
made that directors were in-charge and responsible for conduct of business. The High
Court held that the complaint dismissed in limine. The court further held that for
making them liable, the petitioner should have alleged in the complaint that they were
also in charge of, and responsible to the company for, the conduct of the business of the
company, and without such allegation and proof criminal liability cannot be inferred.
A.K. Mukharjee v. The State and Others, 1993 Cr.L.J. 2363.
The plaintiff rendered his services by writing dialogue and script of a tele-serial. The
defendant allegedly used the copyright work created by the plaintiff in a tele-serial. The
point of dispute between the plaintiff and defendant was related with the number of
episodes for which the plaintiff rendered his services. The entire serial had been
telecasted on Doordarshan in India with the services of the plaintiff as dialogue writer
upto a particular number of episodes for which adequate compensation had been paid.
Thereafter the services of another author were requisitioned by defendant and the
serial was completed. The plaintiff alleged infringement of copyright and sought the
relief of interim injunction. The High Court of Delhi held that the services rendered by
the plaintiff stood fully utilised and the serial was already telecast on television and the
value order of injunction about an uncertain infringement in future could not be
granted; more so when the injury likely to be caused could be adequately compensated
it terms of damages. Reoti Saran Sharma v. Numero Uno Internation, 1995 PTR 132.
The Gramophone Company of India Ltd. which was the plaintiff, produced audio
records titled “Hum Aapke Hain Kaun” under rights alleged to have been assigned to it
by Rajshree Productions Pvt. Ltd., who were copyright owners of the cinematographic
work. The plaintiffs alleged that the defendant too had launched an audio cassette by
adopting “Hum Aapke Hain Kaun” as its title with its design, colour scheme, get up and
layout deceptively and confusingly similar to that of the plaintiff’s. Hence, they sought
permanent injunction restraining the defendants from manufacturing, selling or passing
off audio cassettes under the said title. As per the defendants what they were making
was version recording permissible under section 52(1)(j) of the Act and that it was done
only after sending notice in prescribed form was accompanied by royalties at the rate
fixed by the Copyright Board to the copyright owner. A version recording is a sound
recording made of an already published song by using another voice or voices with
different musicians and arrangers. Version recording is neither copying nor
reproduction of the original recording.
While granting the ex parte injunction in this case, the High Court of Delhi later
varied the infringement that was made ex parte by stipulating that the defendants were
not to use in the carton or inlay card or any other packaging material, a design colour
scheme, layout and get up similar to that of the plaintiff and not to be use in the title the
words “Hum Aapke Hain Kaun” simplicitor or any combination of the above words
which would be calculated to lead the belief that the defendants’ record was the
plaintiff’s record. The Court also directed the defendant that the un-offending alternate
title was to contain underneath a declaration is sufficiency bold letters that the record is
not from the original sound track but only a version of different artists. Gramophone Co.
of India Ltd. v. Super Cassette Industries, 1995 PTR 64.
The plaintiff was a publisher of educational books for children and claimed
registered copyright in its books LIVING SCIENCE volume 3, 4, 5 which were first
published in 1986. The defendant no. 1 was publisher of book UNIQUE SCIENCE. The
plaintiff claimed that defendant’s publications were copied from its book and amounted
to infringement of its copyright. The defendants contended that the plaintiff had not
shown any proof of ownership, they also pleaded that the books dealt with general
aspects of science which was nothing original in the books so that a copyright could
subsist.
The Court was of the view that a comparison of the two works clearly indicated that
the defendants had copied the work of the plaintiff. On the facts of the case, the Court
held that the defendants were guilty of infringing the copyright of the plaintiff in the
books. Permanent injunction was granted in this case. Ratna Sagar (P) Ltd. v. Trisea
Publications, 1996 PTC (16) 597.
The complainant company is well known manufacturer, blender and dealer in Hooka
Tobacco paste which is commonly known as “Jurak” in Saudi Arabia. One of the Trade
Marks which markets such goods is the Trade Mark Six Sheesh (Six Hooka) container
and get up are well known in Saudi Arabia. The accused had intimated the tin container
which was being used by the complainant and were proposing to export their goods in
such tin containers using by the complainants company. Accused is guilty of commission
of offence punishable under section 78 and 79 of the Trade and Merchandise Marks Act,
1958 and section 63 of the Copyright Act read with 420 IPC. The High Court held that
the alleged offence punishable under section 78 and 79 of the Trade and Merchandise
Marks Act, 1958 is punishable with 2 years. Undeniably, the said alleged offences are
clearly not cognizable offence. Such offences could not be investigated by the police as
cognizable offence as such. The learned Magistrate could neither conceivably have
directed investigation of such offences by the police under section 156(3) Cr.P.C. as he
did by passing the relevant order.
Sections 78 and 79 of the Trade Marks Act, 1950 providing penalty for applying
false trade descriptions etc. and selling goods to which a false trade description is
applied, a charge under section 420 IPC becomes wholly in apt. Zahir Ahmed v. Azam
Khan, 1996 Cr.L.J. 290.
The court observed that in a suit of permanent injunction, the court is not called
upon to decide plausible case. The court has to see whether the damages the plaintiff is
likely to suffer can be compensated in money. If such compensation can be entertained
and afforded in money then interlocutory order of injunction should normally be
refused. If the court is of the view that such compensation cannot be ascertained and
afforded in money then the court has to see that the balance of the convenience is in
favour of the grant of injunction. If the balance of the convenience is against passing
such order, the court will refuse it. Gramophone Co. of India Ltd. v. Shanti Films
Corporation, AIR 1997 Cal 63 Calcutta High Court.
In this case the court held that the court had the territorial as well as pecuniary
jurisdiction to entertain the suit. P.M. Diesels Ltd. v. Patel Field Marshal Inds., AIR
1998 Del 225 Delhi High Court.
In the present case, the complainant is the proprietor/owner of two registered
copyrights having particular design, used by them in connection with their products,
industrial or commercial. Their products sold with the design of their copyright would
acquire commercial reputation about its quality and source of its manufacturer or
supplier to the public at large. A case was registered under section 63 of the copyright
along with section 420 of Indian Penal Code. The question of law was involved whether
both can go together? The Court said that the intention of the petitioner apparently was
to derive economic benefit to himself and at the same time he is making a false
representation about the source or origin of the product and thereby is deceiving the
public at large who may buy this product by using the infringing design of the copyright
of the complainant. This necessarily will result in wrongful gain to him and wrongful
loss to the complainant and amounts to cheating. Sunil Kumar Gupta v. State, 1998 (74)
DLT 838, Delhi High Court.
This appeal was directed against an order of temporary injunction passed by the
learned single judge in favour of respondents in the original suit. There were three
plaintiffs in all. The first plaintiff was the sole agent who procured advertisements for
the third plaintiff, was in India. The second plaintiff was a company incorproated under
the provisions of the Companies Act and owners of copyright in various programmes
which are produced in India. The plaintiff was a body corporate constituted and existing
in accordacne with the laws of the British Virgin Islands and carried on business
satellite T.V. Channel in Hong Kong. The defendant was private company incorporated
under the Companies Act, 1956 which owned, controlled and operated Cable Television
Networks in several cites. With the sophisticated equipment these Cable Television
Networks were able to blank out/switch off the signals sent by various broadcasters and
interpose/substitute their own programmes or materials. The result of such
unauthorized interception or interruption of the Zee TV signal was that the programme
and original advertisements forming part of Zee TV broadcast were cut off from the
viewers instead local advertisements were inserted by the Cable Operators by mean of
their own video films.
The court held that what was broadcast by third plaintiff was a composite
programme consisting of the entertainment part and advertisement part. Therefore, any
interference with the advertisement part has a direct result of interfering with the
entertainment part also. The two components of programme cannot be separated.
Admittedly the second plaintiff had copyright in the entertainment part. As exclusive
licensee, the third plaintiff was also owner of the copyright in India, of the
entertainment part, then the copyright in India is infringed. The plaintiffs had cause of
action against the defendants under the Copyright Act.
The court held that the defendants could not be permitted to substitute the
plaintiff’s advertisement with their own. The appeal was dismisssed by the High Court.
The appellant sought leave to appeal to the Supreme Court which was rejected. Asia
Industrial Technologies Limited v. Ambiance Space Sellers Ltd., 1998 PTC (18) 316.
A complainant had been filed under section 7/16 of Prevention of Food Adulteration
Act alleging that the accused was sold bottle of beverage under brand “Lehar Pepsi”
which was adulterated. No materials had been shown that the accused were either
manufacturer or holder of the licence for manufacture of offending beverage. The
complaint and preliminary evidence made no case against the accused. The complaint
had been quashed by the Supreme Court. M/s Pepsi Foods Ltd. and another v. Special
Judicial Magistrate and Others, 1998 Cr. L.J. 1 (Supreme Court).
The complainant had lodged a complaint against the petitioners who are engaged in
the business of sale of Bidis, popularly known as “Lungar Bidi”, on the allegations inter
alia; that the complainant is engaged in business of manufacturing “Bidi” popularly
known as “Lungar Brand Bidi” and is having its registered trade mark for the said
business, and running business in partnership with his brothers and his firm is having
registered trade mark in the name and sytle of Thakur Savedkar & Co. in different
districts of Rajasthan and areas of the partners of the said firm for running the said
business are earmarked and specified as per the agreements duly executed between the
partners, and the right to sale of the “Bidi” in question is also restricted between the
partners of the districts. The allegations against the petitioners as unfolded in the
complaints are to the effect that the manufacturers of the “Lungar Bidi” had some
disputes regarding the sale of the Bidi in some of specified areas, which were being
violated by some of them and for which it had become, necessary to resolve the dispute,
for which they had arrived at an agreement, which was submitted by way of an amicable
settlements before the Company Law Board at New Delhi, and according to which, the
trade mark of the complainant firm was one and the same but with minor variations
which came to their respective shares, and they would not intrude beyond their
specified areas in the jurisdiction of district concerned of other partners. It was further
alleged that the petitioners, who had purchased the “Bidi” goods from the complainant-
firm in Jawai-Bandh area in district Pali of Rajasthan, were found selling the same in
Sayala and Raniwara of district Jalore, meaing thereby that the goods, which they had
purchased from the dealer of the Bidi in district Pali, should have been confined to the
sale in Pali only whereas they have been selling the Bidi goods in district Jalore, which
is in violation of the clauses of the agreement executed between the owners in the areas
of other complaints, the accused is liable to the commission of the offence of Sections
78 of 79 of Trade and Merchandise Marks Act, 1958, Sections 63, 64 of the Copyright
Act, 1957 and Sections 420 & 120A of the Indian Penal Code, 1860.
The High Court held that the accused is neither manufacturers nor the partners of
the complainant firm and therefore, the question of either violation of infringement of
the Trade Marks of the complainant-firm does not arise, nor they can be held liable for
having sold the goods of “Lungar” Brand Bidi in different area of Pali district or Jalore
since they are not either parties or signatories to the agreement in question, so for
which they can not be held liable for the violation of any of the clauses of the said
agrement. Further, no documentary evidence had been produced attributing
commission of any offences alleged, hence FIR quashed. Vimal Chand and etc. v. State
of Rajasthan, 1999 Cr. L.J. 128 Rajasthan High Court.
Radio Mirchi, a prominent FM radio operator, had been playing the music
recordings, the rights to which were with leading music company, Super Cassetes
Industries Ltd. the music company filed for permanent injunction and while the suit was
pending, the FM operators filed an application before the Copyright Board for the grant
of compulsory licence under section 31(1)(b). The question, therefore, was whether, in
such circumstances, a compulsory licence under the said provision could be granted to
the broadcasters or not.
It was argued on the behalf of the broadcasters that since the licence has been
granted to AIR and Radio City, it could not be denied to them. The High Court clarifying
the position drew a distinction between the grant of licence where the artistic work or
music has been withheld from the public and where the rights have already been
granted to some applicants bringing the work in public domain. The two cases have to
be treated differently by the Copyright Board while considering the grant of the licence,
and if the licence is denied, it should be on valid grounds and the decision should have
been arrived at without violating the principles of natural justice. Therefore, full
opportunity of filing pleadings, documents and adducing oral evidence should be given
to the parties.
The Court held that once a copyright comes in public domain, it becomes a
commercial right and the denial of the licence in such cases has to be on reasonable
grounds.
The Court, while rejecting the arguments that compulsory licences have to be
granted to all applicants on payment of licence fee held that if compulsory licence were
granted to all, as argued, there would be no need of an inquiry as envisaged by the
provision. Besides, the legislature used the term ‘may’ and ‘shall’ and thereby vested
the Board with discretion.
The court further observed as under:
“One who does not have any respect for law is really not entitled to be considered
for the grant of licence under section 31 of the Copyright Act. He is not totally barred
from the getting licence. But until he completely stops infringement, his application for
compulsory licence shall not be considered”. Super Cassettes Industries Ltd. v.
Entertainment Network Ltd., AIR 2000 Del 326.
After seeing the works of both parties the court observed that the similarity between
the artistic work of the petitioners and the respondents are of the fundamental and
substantial aspects of the mode of expression, i.e., it is in red colour with black lines
and the design of the ‘Nataraj’ which would establish beyond doubt that it is a copy of
the petitioner’s work. The variations which had been pointed are the minor variations in
that the device of ‘Nataraj’ is in a particular shape and different in colour. All the
dissimilarities are very minor to come to a conclusion that they had been indicated only
to meet the defence of infringement of copyright. It was held that the respondents had
copied the petitioner’s artistic work and cannot be said as original work. Hindustan
Pencils Ltd. v. Alpana Cottage Industrials, 2001 PTC 504 Goa (CB).
In this instant case the manuscripts of judgements from which the head notes are
prepared by the plaintiff for his monthly Supreme Court Cases (SCC), are obtained from
the raw source, they are carefully reviewed, corrections made, cross reference and
cross citations added, layout and pagination is done, arranged in a specific sequences
and after giving a uniform style of dates is printed and published in the journal. While
treating the work as not a creatively original selection by the plaintiff, the court held
that it can be said to be reproduction of the judgements of the court by giving
paragraph numbers and correcting mistakes, if any therein. The court further observed
that there being no copyright in the judgments of the court, the plaintiff could not claim
copyright therein merely by first publishing them in their journal. It is therefore clear
that mere reproduction of the part of judgment in the head note is not abridgment of
the judgment and no copyright can be claimed therein. Eastern Book Comany v. Navin J.
Desai, 2001 PTC 57 (Del).
The court held that it was clear from the agreement that there is no assignment of
the third album in favour of the plaintiffs. Therefore there was no question of breach of
any copyright. Hence the suit has to be treated as a suit for specific performance of the
agreements. In this instant case the damage or loss that the plaintiff may suffer due to
breach of the agreement is capable of being computed the money, therefore prima facie
the plaintiff would not be entited to specific performance of that agreement. The
plaintiff was not entitled of any ad interim order save and expected to direction of
defandants to maintain accounts about the sale of third album defendants to fursnish
those accounts with copy to the plaintiffs every three months to the court. Milestone
Entertainment Pvt. Ltd. v. Anamica Sood, 2001 PTC 141 (Bom).
In this instant case the court exercised its jurisdiction under Article 226 of the
Constitution of India and substituted the punishment of imprisonment by a direction
that the petitioner shall pay a sum of Rs. 5,000 as compensation to the respondent
directly and obtain a receipt of payment from them within the period one month.
Prakashak Punnet Prashant Prakashan, Delhi v. Distt. Judge, Bulandsahar and Ashok
Prakashan (Regd.), 2001 PTC 213 (All).
A book titled “New Covenant Songs” has been publised by the petitioner- accused. It
was a collection of forty songs translated in English. It was alleged that the petitioner-
accused was liable for the infringement of copyright under section 63 of the Copyright
Act, 1957 showing the proof of alleged infringement of copy of transaction of songs and
mutilations of sacred writing in books published by petitioner-accused. The petitioner-
accused was charged under sections 295, 295A, 499, 500 IPC along with section 63 of
the Copyright Act. There was no evidence showing that complaint had acquired
copyright in respect of English translation of songs published in books of petioner. The
translated work of petitioner in his book conveyed of different meaning and different
interpretation from original. The court held that it does not amount to infringement of
copyright. The alleged distortions of words and expressions used in the forty songs by
the petitioner take it away from the copyright infringement particularly when they
conveyed different meaning and different interpretation. Zae Poonen v. Hidden
Treasure Literature incorporated in Canada & Another, 2002 Cr.L.J. 481 Karnataka
High Court.
The plaintiff is well-known and engaged in the marketing of the pressure cooker and
parts there of under its reputed trade mark “HAWKINS” for the past 30 years. The
defendants acquired the trademark “APSLEY” in relation to its pressure cookers with
the label substantially and deceptively similar to that of plaintiff company. The plaintiff
brought the suit for the issuance of perpetual injunction restraining the defendant from
using label in relation to pressure cookers which was deceptively similar to the label of
the plaintiff, having distinctive features and registered under the provisions of
Copyright Act, 1957. The Court observed that the main objective of the Copyright Act is
to give protection to the owner of the Copyright from dishonest manufacturer who tries
to create any impression or confusion in the minds of the purchasing public to believe
that infringed products are actually of the owner of the Copyright. The statutory
provisions are meant to discourage dishonest manufactures from trading and/or cashing
upon the goodwill and protecting the reputation of the owners of the Copyright such as
that of the plaintiff company who has earned the same over the period of time, by
incurring huge expenses on advertisement and extensive sales etc. The unjust
enrichment or illegal profits by the infringing parts is a mischief from which the owner
of the copyright is to be protected in terms of section 55 of the Copyright Act, 1957. The
Court allowed the relief of permanent injunction restraining the defendants from using
in relation to their pressure cookers, any label complained of, or any other labal
deceptively similar to that of the plaintiff company. Hawkins Cookers Ltd. v. Magicook
Appliances Ltd., AIR 2003 Del. 91.
In this case the appellants alleged that producers had not release the video rights of
film “Kabhi Khushi Kabhi Gam”, therefore, violation of copyright by illegal duplication of
film and screening thereof would cause them immense financial disadvantage. They
took shelter of right of trade, Copyright Act apart from Bye-laws to take cognizance and
seize pirated material. The petitioners did not complain any stage nor did they seek
action from other functionaries of the state. They ask for mandamus without putting the
grievance before the respondents and seeking their rejection. The High Court dismissed
the petitions and restated that there must be judicially enforceable right as a legally
protected right before one suffering a legal grievance can ask for a mandamus.
Khajanchi Film Exchange v. State of Madhya Pradesh, AIR 2003 MP 3.
The Appellant was a publisher of Journal (SCC) reporting Supreme Court Cases.
According to the Appellant, its work involved tremendous expenditure in terms of
collection of judgement(s), selection of judgment(s), editorial skill, analysis, proof
reading etc., and on that basis it was claimed that the work became literary work of the
Appellant in terms of section 2(o) of the Copyright Act, 1957. The Appellant through its
editor and other employees, etc. applied labour, skill, expertise and expenditure and
thereafter the judgment(s) were published in the journal. In the process, not only
punctuation marks like comma, semi-colon, etc. were added in the text of the judgment
but also corrections were made in the judgement for which the consent was obtained
from the judge concerned, the author of said judgment; headnotes and long notes were
prepared and editorials, wherever necessary, were added. The respondents, on the
other hand, were preparing and seeling CD ROMs of the Supreme Court judgments. The
respondents were bringing new CD ROM every year. The respondents had put into CD
ROMs about 7,000 judgments from 1940, till March, 2000 implying thereby that the CD
ROM contained judgments even for that period for which there were no Supreme Court
Cases Journals. Not only this, it was explained that the Central Acts and the Rules
framed thereunder were available in the said CD ROM, that various search mechanism
had been provided, namely, subject-wise, by name, by parties names, name of advocate,
name of High Court, name of Act, by date of the judgment, etc., that court references
for each judgment were also provided and that even details regarding judgments, which
had been reversed, had been provided. The respondent further claimed to have its own
infrastructure with formidable work force, who put together their collective brains, skill
and labour in producing the products in question. The appellant filed suits for
permanent injunction, restraining infringement of copyright, moral rights, unfair
competition, damages, etc. against the respondent and/or at the most some of the texts
of the judgments are reported by the appellant in its SCC journal might have been lifted
in preparing CD ROMs. The copyright was claimed by the appellant under (i) original
literary work, (ii) editorial work comprising of selection, sequence and arrangement of
headnotes, editorial notes, and comments, para numbers, verification cross citation,
preference and footnotes, and (iii) copy editing working and proof reading. The
appellant had also filed interim application for injunction, which was rejected by the
Single Judge and it was ordered that during the pendency of the appeals, the
respondents were entitled to sell their CD ROMs with the text of the judgment of the
Supreme Court along with their own headnotes which should not in any way be copy of
the headnotes and the text of the appellants. It was held that the law stands well-settled
that a copyright can be calimed on short notes. Short notes are not necessarily an
abridgement of judgment.
The doctrine of ‘stare decisis’ is well-known concept of law of precedent which is
taken recourse to by the lawyers when it is found that instead of repeating the
arguments over again in a similar matter citation of the judgments, which had laid down
the law in an earlier case served the purpose.
Role and importance of law reports stand recognized in all legal systems and all the
jurisdiction of the world. Law reports, therefore, have been considered to be the
original library work, particularly in those old days when the solicitors used to remain
present in the court during arguments and in their reports used to state the fact of the
matter and arguments presented by the counsel.
The Court said that a copyright could be claimed in the editorial. Editorial notes are
the creation of the editor himself. In such editorial note a personal thought, a precept is
reflected in the law report and the same cannot form part of the main judgment itself.
Such editorial notes and comments are given not only at the beginning of the judgment
but also in between the judgment or footnote.
Copyright can be claimed only in derivative work. A derivative work consists of a
contribution of original material to a pre-existing work so as to recast, transform or
adapt the pre-existing work. This would include a new version of a work in the public
domain and abridgement, adaptation, arrangement, dramatization or translation. A
collective work will quality for copyright by reason of the original effort expended in the
process of compilation, even if no new matter is added. In order to qualify for a separate
copyright as a derivative or collective work, the additional matter injected in a prior
work or the manner of rearranging or otherwise transforming a prior work, must
constitute more than a minimal contribution.
Section 2(a) clearly stipulates that a work, which is made or published under the
direction or control of any Court, the Tribunal or judicial authority in India, is a
Government work. As per section 52(1)(q), the reproduction or publication of any
judgment or order of the Court, the Tribunal or other judicial authority shall not
constitute infringement of copyright of the Government in these works.
Once a person has right to obtain certified copy of the judgment from the Registry of
a Court and to publish it can as well have right to take the text of the judgment from a
journal where it is already reported, he need not obtain it from the Court only in order
to publish it. Once a thing is in public domain and no copyright can be claimed therein,
it would be permissible for any person to copy the same.
Even if while preparing the head note, the sentences appearing in the judgment at
various places are simply reproduced, definitely labour and skill is still involved in
selecting those sentences, which give palm top idea of wider screen, namely, the wider
version. These head notes become tools for initial research and many times in knowing
the ratio of the case and also where to locate the same in the judgment. Head notes
have given rise to publication of Digest, which is an important tool for making research
and also to find case law on particular issue involved.
In fact, the abridged version of CD-ROM of the appellant, namely ‘SCC Online’ itself
contains only the head notes followed by long notes and not the entire text of the
judgment. Therefore, there would be copyright in the head notes to the judgment
prepared by the appellant.
The footnotes and editorial comments were undeniably publisher’s own creations
and based on publisher’s own research. The respondents conceded that the appellant
shall have a copyright in the headnotes as well as footnotes and editorial comments.
However, reproduction from the judgment in the long headnotes by itself may not
give rise to right of copyright, but the arrangements made from different portions of the
judgment may give rise to a limited right in that behalf.
The product, namely, CD-ROM cannot be compared with the printed book. For
operating a CD-ROM, one needs a computer. The access to the CD-ROM and search for
a particular judgment can be by adopting various search mechanism for a particular
judgment. The quality of a CD-ROM depends on search mechanism inputs provided by
its producer. The ultimate product, therefore, may be entirely different from printed
journal, namely, Supreme Court Cases in the instant case. The respondent pointed out
the special features of its CD-ROMs and had its own infrastructure with formidable
work force, who put their collective brains, skill and labour in producing the products.
The latest versions of CD-ROMs of these respondents were materially different from the
appellant’s publication. Therefore, no useful purpose would be served in granting the
relief of injunction as claimed by the appellant.
Hence, the ends of justice would be met, if the order of the Single Judge was
modified by directing that the respondents/defendants shall be entitled to sell their CD
ROMs with the text of the judgments of the Supreme Court along with their own
headnotes, editorial notes, if any, which should not in any way be copy of the headnotes
of the appellant/plaintiff. Eastern Book Company v. D.B. Modak, 2003 PTR 30.
In this case, the appellants are manufacturing and selling the snuff under the name
and style of ‘D.S.’. The trademark ‘D.S.’ is respondent is also manufacturing and
marketing the same in the sachets with similar get up and colour scheme under the
name “E.T.S”. The court held that although the colour schemes on background of
sachets is same but marks ‘D.S.’ and ‘E.T.S’ are not confusingly similar. Colour scheme
used alone would not amount to infringement as the goods are known in the market by
their trade names which were not identical. Dhana Vilas Madras Snuff Co. v. Vani Vilas
Snuff Co., 2003(27) PTC 417 (Mad) (DB).
In this case, a case was registered under the Copyright Act, 1957 punishable under
section 63, 64 & 2(c). The release of goods were seized by the police. Writ petition was
filed under Article 226 seeking the release of goods. The Court observed that the
petitioner is not remedyless. The peitioner may make appropriate application to the
concerned Metropolitan Magistrate/Additional Sessions Judge under whose jurisdiction
the proceedings are pending for appropriate directions for the release of the goods in
question. The petitioner can also file civil suit and seek necessary directions in this
respect. It is stated at the cost of repetition that this issue does not fall for consideration
in the present petition. On petition, the custom authorities said that they have released
the goods. The police have taken custody of goods in exercise of its powers contained in
the provisions of Criminal Procedure Code. If the petitioner wants to challenge the said
action of the Police authorities as illegal, it would be open to the petitioner to take out
appropriate proceeding in this behalf. Shubham Goodwill (P) Ltd. v. Commissioner of
Customs, 2003 (26) PTC 377, Delhi High Court.
In this case the court held on the issue of punitive damages that these are founded
on philosophy of corrective justice. Whenever an action has criminal propensity also,
the punitive damages are clearly called for so that the tendency to violate the laws and
infringe the rights of other with a view to make money is curbed. In appropriate cases
these must be awarded to give a signal to wrongdoers that law does not take a breach
merely as a matter between rival parties but feels concerned about those who are not
party to this but suffer on account of breach. Time Incorporated v. Lokesh Srivastava,
2005(116) DLT 599, Delhi High Court.
The recent of the Delhi High Court in Microsoft Corporation v. Deepak Rawal & Anr.
[2006(33)PTC 122 (Del)] has the potential to set India’s strong and candid judicial
response to the menance of copyright infringement as well as the infringement if other
IP rights. It was held by Justice Arjun Sikri of the Delhi High Court that:
“This court has no hesitation in saying that the time has come when the courts
dealing with actions for infringement of trade marks, copyrights, patents etc., should
not only grant compensatory damages also with a view to discourage and dishearten
law breakers who indulge in violations with impunity out of lust for money so that they
realize that in case they are caught, they would be liable not only to reimbusse the
aggrieved Party but would be liable to pay punitive damages also, which may spell
financial disaster for them.”
The Court further held in no uncertain terms that rempant IP rights violations can
only be prevented by imposing punitive damages and not by merely making the
infringer reimburse the IP owner for the loses suffered. The court said that in the
present case, the claim of punitive damages is of Rs. 5 Lacs only ($10,500) which can be
safely awarded. Had it been higher even, this Court would not have hesitated in
awarding the same. This Court is of the view that punitive damages should be really
punitive and not flea bite and quantum thereof should depend upon the flagrancy of
infringement. Microsoft Corporation v. Deepak Rawal & Anr., [(2006 (33) PTC 122
(Del)].
In this case, the plaintiff was a registered proprietor of the trade mark “Apcolite”,
“Asian Paints (Devise)”, “Utsav”, “Tractor” and “Tractor Devise”. The defendants were
also manufacturing look alike products by using the trade marks “Super Asian”, “Great
Asian”, “Asian Gold” in the same manner. The plaintiff claimed for damages and
injunction against the infringement of trade mark, copyright and passing off. The Court
observed that the object from the judicial aspect is to relieve a pressure on the overload
systen of criminal justice by providing civil alternative to criminal prosecution of minor
crimes. The result of the actions of defendants is that plaintiffs, instead of putting its
energy for expansion of its business and sale of products, has to use its resources to be
spread over a number of litigations to bring to book the offending traders in the market.
In view of the aforesaid, the court is of the considered view that the plaintiff would also
be entitled to damages which are quantified at Rs. 3 lakh. A decree was passed in
favour of the plaintiff. The plaintiff was also entitled to costs including the amount spent
on the fee of the local commissioner. Asian Paints (India) Ltd. v. Balaji Paints and
Chemicals, 2006 (130) DLT 150 Delhi High Court.
In this case, Section 15(2), 14(c) and 51 was involved and the point of law was
involved that what are the determinations with respect to copyright in desings
registered or registrable under the Design Act? The court held that Section 15 provides
that copyright subsists under the Copyright Act in any design, which is registered under
the Design Act, 1911 and in case a design is capable of being registered under the
Design Act, 1911, the copyright shall cases as long as any article to which the design
has been applied has been reproduced more than 50 times by an industrial process by
the owner of the copyright or his licence. It is not in dispute that reproduction has
occurred more than 50 times. It is not also in dispute that there is no registration which
has taken place under the Design Act, 1911 (or under the Design Act, 2000). It is not in
dispute that the plaintiff is not registered proprietor of the designs under the said Act.
In terms of section 11 of the Designs Act, 2000 when a design is registered, the
registered proprietor of the design has copyright in the design for 10 yars, which could
be extended by another 5 years. The legal proceedings under section 22 of the Designs
Act, 2000 would arise during the existence of the copyright in any design. The
conspectus of the aforesaid shows that what the plaintiff was actually required to do
was to register the designs which the plaintiff has failed to do. The court observed that
the patterns and designs of the plaintiff failed to do so with the result that the
protection is not available to the plaintiff which would have arisen if they had been so
registered. Microfibers Inc. v. Girdhar & Co., 2006(128) DLT 238, Delhi High Court.
In a very significant development, the Delhi High Court held that export of a
patented invention for experimental purposes is also covered under section 107A of the
Patents Act, 1970 (India’s Bolar exemption) and thus does not amount to patent
infringement. It accordingly allowed Natco to export Bayer’s patented drug ‘Sorafenib
Tosylate’ (for which it was granted a compulsory license in 2012) to China for the
purpose of conducting development/clinical studies and trials. However, two months
later, the order was stayed by a Division Bench which asked Natco to file a separate
application seeking permission for exporting the drug for experimental purposes and
observed that it would be permitted to export only a limited quantity of the drug. Bayer
Corporation v. Union of India, 2014(60) PTC 277 (Bom).
In a landmark decision the Supreme Court conclusively settled an extremely
important issue that whether, upon the institution of a suit for infringement under the
Trademarks Act, the remedies for rectification of a trademark under sections 47 and 57
(before the IPAB) are still available to the litigant, in case the plea of validity has been
abandoned by the relevant litigant. The Supreme Court took note of the conflicting
decisions of the various High Courts, and found that where the question of validity has
not been taken up by the court, the statutory authority has the power to decide a
rectification claim by the litigant. However, in a case where the court comes to a prima
facie conclusion on validity, the only remedly available is an appeal. Patel Field Marshal
Agencies Ltd. v. PM Diesels Ltd. & Ors., 2018(2) SCC 112
In a notable development for Indian trademark law, the Supreme Court reitered that
IP right are “territorial” and not “global”. The court refused to grant an injunction
restraining the defendant from using its registered trademark ‘Prius’ even though
Toyota was a prior user of the mark. It reasoned that even though Toyota’s mark was
well-known outside India, Toyota failed to prove that it enjoyed a reputation in the
‘Indian’ market at the relevant point of time i.e, the year 2001 when the defendant
began using the mark in India. Toyota Jidosha Kabushiki Kaisha v. M/s Prius Auto
Industries Ltd.
In a welcome development, the Delhi Court ruled that there is no obligation on the
intermediaries to screen content alleged to be violative of intellectual property laws
before publishing the same (i.e. on an ex-ante basis). It, therefore, refused to direct E-
bay to remove listings of water purifiers that allegedly infringed Kent RO’s registered
design from its website or to issue a prohibitory injunction preventing E-bay from
publishing the same in the future. Kent RO Systems Ltd. & Anr. v. Amit Kotak & Ors. CS
(Comm) 1655/20168 [Link]. 15914/16.
The judgment filled up some of the void in the jurisprudence relating to the inter-
play between the rights of the producer of a cinematograph film and that of the authors
of underlying works. The Madras High Court, deciding on the question whether dubbing
of a film into another language would fall foul of the rights of the scriptwriter, held that
the producers have the right to replace the sound recording the original film with
different language. The court based its finding on an expansive reading of the phrase
‘communication to the public’ under section 2(ff) and observed that ‘dubbing’ would fall
under the said definition. The Court also observed that dubbing is distinct from
translation, and the producer’s rights to communicate the film to the public, through
dubbing, does not affect the rights of the author of the underlying script. Nevertheless,
on the question of whether the right to communicate a film to the public includes the
right to remake the film entirely, the Court answered the same in the negative as it felt
that this would entail making changes to the underlying script, without the author’s
consent. Triagarajan Kumararaja v. M/S Capital Film Works and Anr. or Appeal No. 22
of 2017 Madras High Court.
In a notable decision on the effect of misrepresentation in a suit, which seeks
equitable reliefs, the Delhi High Court held that suppression or misrepresentation of
facts in the plaint was fatal to a claim for equitable relief. The bigger takeaway from the
decision is that even when the Plaintiff has registered a mark, dishonesty on its part
would result in its right to claim equitable relief, including relief in the form of interim
injunction, being rendered nugatory. Paramount Surgimed Ltd. v. Paramount Bed India
Pvt. Ltd. CS (Comm) 222/2017.
The judgement shed light into the relatively unchartered territory of section 17(c) of
the Copyright Act and clarified that when the ownership of copyright is disputed
between an employer and an employee, it is the terms of employment that have to be
looked into. The Court went on to even clarify what is to be looked into to determine the
terms of employment. For instance, in the case of a Director, it is any subsisting
agreement, or the Articles of Association or the Memorandum of Association of the
company. Relying on this principle, the Court held that in the instant case although the
Plaintiff was working as a Director of the Defendant No. 2 company from 2012 to 2014,
it is noted that the Defendants had failed to prove that the literary work was authored
as part of her duties and obligations as a Director and granted an injunction in favour of
the Plaintiff. Neetu Singh v. Rajiv Saumitra CS (Comm) 935/2016 Delhi High Court.
In yet another Justice Patel master class, the learned Judge came down heavily on
the tendency of parties to approach the court at the eleventh hour seeking injunction
against impending movie release. The judgment laid down in no uncertain words that
the attempts to snatch last minute injunctions at the cost of putting both the opposite
party and the court machinery under undue pressure should in no way be tolerated,
especially when not even a prima facie case of copyright infringement was made out by
the Plaintiff in the instant case. In a double whammy to the plaintiff, who sought
injunction against the release of the Defendant’s movie Phillauri, Justice Patel, relying
on the provisions of the Commercial Courts Act, 2015, imposed a cost of Rs. 5,00,000/-
on the plaintiff. Dashrath B. Rathod & Ors. v. Fox Star Studios India Pvt. Ltd & Ors.
Notice of Motion (L) No. 693/2017.
In a very well-reasoned interim order, the Bombay High Court refused to grant an
ad-interim injunction in a claim of passing off by the makers of the film ‘Veere ki
Wedding’ (under production) against the makers of the film ‘Veere di Weeding’ (then
soon to be released). The court noted that not only was the title (“Veere Di Wedding”
translating into “My best friend’s wedding”) extremely common, the plaintiff needed to
prove reputation through consumer recognition–i.e. the title should be associated with
the public mind as referring only to the plaintiff’s work, which according to it was next
to impossible in this case because the movie was not even in existence. It also rejected
the argument on misrepresentation, clarifying that just be virtue of having a made a film
with a similar title, the defendant cannot be said to have attempted to deceive the
public. Anil Kapoor Film Co. Ptv. Ltd. Put Make My Day Entertainment & Anr. Suit (L)
No. 319/2017 TP (Civil) No. 1944/2017.
In appeals against two orders of the Controller of Designs, the Calcutta High Court
clarified some important aspects of the Designs Act, 2000, namely, the scope of ‘new
and original design’ and the responsibility of the Controller in issuing orders. In the first
judgment, inter alia, the court considered the distinction between a shape and
configuration and a pattern or ornament, and opined that ornaments or patterns,
particularly if pronounced (as in the case of grooves in a hot water bottle or markings
on a chair) may also constitute a ‘shape or ornament’, applied upon an article, and
asked the Deputy Controller to make a reasoned decision on the issue as to whether the
surface pattern constitutes a shape, configuration, pattern or ornament. In the second
judgment the court held that ‘in order to claim novelty, there has to be a significant
change or difference in the design, although, it may have a common source.’ It further
held that the Controller has the expertise to decide the matter of similarity between the
two designs, and that the Appellate Court would not interfere with the Controller’s
order unless it found that the Controller ‘proceeded on some wrong principle’. Krishna
Plastic Industries v. Controller of Patents and Designs & Anuradha Doval v. The
Controller of Patents And Designs & Ors. AID 5 of 2013.
In this case, the issue was whether the author of a work even after assignment of
work will have special rights to claim authorship of his work provided under section
57(1) of the Copyright Act?
The appellants, Sajeev Pillai, a film director and a script writer claimed to have
researched the history of the grand festival Mamankam and prepared a script for a
movie based on the same epic. He went VenuKunnapalli and signed a MoU with Kavya
Film Company which was associated with Kunnapalli. Sajeev was initially appointed as
the director but then his service was terminated and was replaced by someone else. The
shooting of the movie was thereafter completed which Sajeev alleged was done by
mutilating, distorting and modifying his script. Sajeev in light of that filed a suit seeking
various reliefs. An interim injunction application was also filed to restrain the
respondents from releasing, publishing, distributing and exploiting the film and issuing
pre-release publicity without providing adequate authorship credits to Pillai as per film
industry standards.
Judgement: In deciding the issue, the court noted that the first sub-section of section
57(1) provides the author to restrain third parties and the second sub-section provides
the author the entitlement to claim damages by such third party in respect of any
distortion, mutilation or other modifications to his work or any other action, in relation
thereto which would be prejudicial to his honour or reputation. This provided the
appellant an unparalleled advantage in the case and that his assignment of the work
would not exhaust the legal right to claim authorship over it. Sajeev Pillai v.
VenuKunnapalli & Anr. Kerala High Court decided on 11.12.2019.
In this case, the issue was whether there exists a statutory licensing scheme under
the Copyright Act to online streaming services?
Background: The dispute centers around section 31D of the Copyright Act, 1957
which provides for statutory licensing scheme, as whereby any ‘broadcasting
organization’ desirous of ‘communicating to the public’ any sound recording, can obtain
a statutory license to do so, provided they pay royalty rates to the copyright owners at
rates fixed by the Intellectual Property Law Board.
Facts: Tips Industries Ltd. (Plaintiff) is an India music label that exercise copyright
over a significant music repository that, in 2016, granted Wynk Music Ltd. (Defendant)
license to access this music repository. At the expiry of the said license both the parties
attempted to renegotiate the licensing conditions but failed to do so and hence Wynk
took refuge by invoking section 31D of the Copyright Act. Tips challenged Wynk’s
invocation of Section 31D, and prosecuted Wynk pursuant to section 14(1)(e) for breach
of their exclusive rights of sound recording.
Judgement: After hearing the contentions of both the parties the Bombay High
Court came to a conclusion finding Wynk to be guilty of direct infringement on two
counts–1. To offer the copyrighted work under section 14(1)(e)(ii) which allowed the
users to download and listen to the plaintiff’s work offline and 2. Under section 14(1)(e)
(iii) for communicating the plaintiff’s works to the users via their streaming service.
In addition to that the Bombay High Court sought this opportunity to clear out the
air regarding the ambiguity that existed with respect to online streaming services
falling within the scope of section 31D:
1. Under section 31D of the Copyright Act, ‘Download/Purchase’, of copyrighted
works is not covered.
Wynk Music permitted the users to download and store copyrighted music for
unlimited future use which instituted to be a ‘sale’ and not ‘communication made to
public’ which constitutes as a ‘broadcast’ for the purpose of section 31D and hence
there exists no claim for statutory license for the use of such copyrighted work by Wynk
music.
2. The application of Section 31D of the Copyright Act does not include internet
broadcasting.
The case of the defendant was based primarily on the presumption that Section 31D
covered internet streaming services under ‘radio broadcasting’ as described in a 2016
DPIIT office circular, given that ‘radio broadcasting’ included ‘internet broadcasting’
under section 31D.
The Court had an opposing view which resulted in the rejection of the interpretation
put forth by the defendant.
The Court found section 31D to be an exception to copyright which ought to only be
strictly interpreted. Upon careful examination of the statutory scheme of section 31D
and the rules accompanying it, it becomes apparent that statutory licensing was
intended to only cover radio and television broadcasting and not internet broadcasting.
After examining the history associated with section 31D, the court derived that, despite
the global existence of internet streaming services when the section was inserted
through an Amendment Act of 2012, the legislation even though being aware of it
omitted to include internet streaming services from the ambit of Section 31D, in
addition to that, the memorandum presented by the defendant does not contain any
additional weightage of their claim as a memorandum only acts as ‘guidelines’ and lacks
statutory authority and therefore has no influence to the extent of their claim.
The judgement was passed in the favour of the plaintiff and the court held that the
plaintiff was entitled to interim injunction, having regard to the reality that they had
made a prima facie case, would suffer irreparable harm in the way of lost revenue. Tips
Industries v. Wynk Music commercial IP Suit (L) No. 114 of 2018.
In this case, the issue was whether an Architect, as the creator and legally the
‘author’ of a structure has a right vested in him to obect to such modification or
demolition of their work by the owner of the building?
Background: The dispute centres around section 57 of the Copyright Act, 1957
under which the plaintiff has filed for a mandatory injunction to reinstate the building
according to the original plans. Section 57 of the Copyright Act, 1957 provides the
author with special rights called ‘moral rights’ which subsists with the author of the
work over and above economic rights of others.
Facts: The present case talks about one Mr. Raj Rewal who designed and Mr.
Mahendra Raj who was the structural designer of the Hall of Nations building. The said
building was hailed as an icon of modernist Indian architecture and was erected in the
Pragati Maidan grounds in New Delhi. The ITPO in 2016, made a proposal to demolish
the Hall of Nations complex in order to build an ‘Integrated Exhibition cum Convention
Centre’. Despite of several attempts made by the Plaintiff to protect the building from
demolition it resulted in what ITPO desired. Post demolition of the building the Plaintiff
instituted a suit against the actions of ITPO by claiming that the actions of demolition
had derogated the Plaintiff’s special rights under section 57.
Judgement: Rejecting the plaintiff’s claims the Court framed the issue as a conflict
of two different rights, namely–the arhitect’s rights under section 57, and the
landowner’s rights to practice acts pertaining to their property.
The court observed that the plaintiff in this case cannot be allowed to prevent the
demolition of the building by the defendant as it would in turn amount to restriction of
the defendant’s right to practice their control over their property and land which is
provided to them under Article 300A which is a constitutional right which prevails over
the statutory rights of the plaintiff which they claim to exist under section 57 of
Copyright Act, 1957.
The court further states that the author’s right under section 57 to prohibit
‘distortion, multilation or mofdification’ of his work does not permit an author to
prevent complete destruction of their work since “that what cannot be viewed, seen,
heard or felt, cannot be imperfect and cannot affect the honour or reputation of the
author”. Therefore, the extent to which the right vested in the architect extents to is to
prevent the building owner to refrain from making changes in the design made by the
architect and passing it off as if the design was made by the arhitect. The Court in
furtherance to that also relied upon section 52(1)(x) which acts as an exception to
copyright of the architect. The Court in furtherance to that also relied upon section
52(1)(x) which acts as an exception to copyright of the architect. The Court reasoned
that the ‘reconstruction’ envisaged under section 52(1)(x) could only take place if the
building had already been demolished. Noting that the Copyright Act must be read
harmoniously, the court therefore stated that Section 57 could not reasonably
contemplate the right to object to the demolition of a building.
In conclusion the court dismissed the suit due to lack of cause of action against the
demolition of the Hall of Nations. Raj Rewal v. Union of India & [Link](Comm) No. 3 of
2018.
In this case issue was whether copyright can subsist in a cinematography film
independent of the underlying works that is comprised of? (2) Whether the expression
under section 14 to ‘make a copy of the film’ mean making physical copy of the film
only? And between the two films is there a substantial and material similarity?
Facts: A copyright infringement suit was filed against Sri Sai Ganesh Productions &
Ors. by Yash Raj Films Pvt. Ltd. on the grounds that it blatantly copied the movie Band
Baja Baarat produced under the YRF banner and producing Jabardasht which
showcased substantial and material similarities in terms of theme, concept, plot,
character, sketches, story, script, form and expression amongst other things.
The court while determining the first issue relied on the judgement handed down by
the Delhi High Court in the case of MRF Limited v. Metro Tyres Ltd., in which the court
held that copyright exists in the ‘cinematographic film’ independent from other
underlying works that come together to constitute it and that there is a requirement of
originality to exist in ‘cinematographic films’ which can be read into from Section 13(1)
(b) of the Copyright Act, 1957 through Sections 13(3)(a) and 2(d) of the said Act even
though it has not been explicity mentioned.
The court while determining the second issue held that the expression ‘to make a
copy of the film’ provided in section 14(d)(i) of the said Act does not simply mean
creating a physical copy of the film by process of duplication. Furthermore, as the films
are protected just like original works, the court extended the test of originality set out
in the case of R.G. Anand v. Deluxe Films to distinguish between the two films on the
basis of ‘substance, foundation and kernal’ and understand the viewpoint of an average
moviegoer as to whether they would have an unmistakable impression that one work
was a copy of the other. In the instant case the court found that the defendants had
blatantly copied the fundamental, essential and distinctive features of the plaintiff’s
film. YRF v. Sri Sai Ganesh Production.
In this case the issue was how should the Court deal with the hydra headed ‘Rogue
Websites’ which on being blocked, eventually multiply and resurface as rediret or
mirror or alphanumeric websites?
Facts: UTV Software Communications Ltd. (Plaintiff)., is one such company which is
engaged in creating content, producing and distributing cinematographic content
around the world. The plaintiff has brought a suit against thirty identified websites,
multiple John Doe defendants, the Ministry of Electronic and Information Technology,
the Department. of Telecom and various ISPs. The contention of the plaintiff was based
on the fact that the defendant websites host and provide access to their copyrighted
content which infringes their rights derived from the Copyright Act, 1957. The plaintiff
provided access to a sample of such infringing content as evidence that the websites
were primarily engaging in online piracy. Majority of the websites did not respond to
the summons presumably since they were hosted outside of India and due to that an
amicus curae was appointed in their place as the isue was pertaining to be a question of
law of general public importance.
Judgement: The most notable contribution this case made was that it introduced a
new procedure to extend website blocking injunctions beyond those specified in the
court order but also to those websites which are ‘mirror/alphanumeric/redirect’
websites created after the injunction order was already passed by the court. This
extension was termed as ‘dynamic injunction’. Singapore High Court’s decision in
Disney v. M1 was referred by the High Court of Delhi while deciding on the issue where
the court introduced the concept of ‘dynamic injunction’ whereby a plaintiff could file an
additional affidavit stating to the court why a new website fell within the purview of an
existing blocking order, and forwarding the same to an ISP, which could dispute the
merits of the blocking order. This process would prove to be helpful in curtailing piracy
by such ‘Rogue Websites’ and reduce the burden on the copyright owners to go through
the tough route of litigation over and again. UTV Software Communication Ltd., v. 1337
X. TO and Ors.

(2) Trade-Marks
The function of a trade mark is to give an indication to the purchaser or
possible purchaser as to the manufacture or quality of the goods, to give an
indication to his eye of the trade source from which the goods come, or the
trade hands through which they pass on their way to the market. The trade
mark is also one of the branch of the intellectual property. The difference
between copyright and trade mark is that where the copyright in a literary
work derives from the labour, skill and capital invested by the author of the
work in creating such a work, the right to use a name derives from the
goodwill that has been developed in such a name when, used in association
with a particular product or group of products in a trade mark. For a
commercial point of view, it is therefore important to ensure that the trade
marks of an organization are protected in the same manner as, any other
tangible assets of the said organization.
A trade mark may be used to indicate not only that the goods are of a
particular maker but are goods of that maker of a particular kind or quality.
Under the modern business conditions a trade mark performs three functions
—(1) it identifies the product and its origin, (2) it guarantees its unchanged
quality, and (3) it advertises the product. Under the present law a trade
mark is defined as a mark used or proposed to be used in relation to goods
for the purpose of indicating or so as to indicate a connection in the course
of trade between the goods and the proprietor with or without any indication
of the identity of that person. As the goods of the proprietor gains popularity
by virtue of the inherent qualities of the product, it becomes increasingly
important for the mark that is associated with such goods and that
distinguishes such goods from others of the same class that are available in
the market, to be declared conclusively as the property of the manufacturer
of the goods.
If the mark or name is not protected adequately the consequences are
easy to imagine. Any person who manufacture the same product albeit of a
different quality, could easily sell his goods under the mark of the original
manufacturer and use the goodwill developed by the original manufacturer
to dupe the customer into believing, that the products he is purchasing are
of the same quality as the products of the original manufacturer.
In India, a trade mark is associated with a particular product that is
traded. In other jurisdictions, a trade mark may be conferred on the mark or
name used to identify a particular brand of services provided. These services
could range from the services provided by advertising agencies, courier
agencies, restaurant, hotels, etc. These marks are known as “Service marks”
and under current Indian law, not entitled to trade mark registration.
The statutory law relating to trade marks is codified in the Trade and
Merchandise Marks Act, 1958. In this act, a system of registration of trade
mark is evolved which gives statutory recognition to ownership of trade
marks, and defined the rights conferred by registration and prescribed
remedies in respect of infringement of those rights.

Registration
After choosing a suitable mark, registration of the mark can be obtained
by following the procedure prescribed by the rules.

What marks are registrable?

It is not any trade mark which is registrable. To be registrable the mark
should be distinctive and should not be similar to any other trade mark
registered for the same or similar goods or used by a competitor whether
registered or not. In the case of a similar work used by a competitor but not
registered, difficulties for registration will arise only if the owner of the
mark chooses to oppose the registration. In choosing a trade marks therefore
one has to see whether the mark satisfies the requirement of distinctiveness
contained in Section 9 of the Trade and Merchandise Marks Act, 1958.
Thereafter the applicant has to verify as far as possible whether a similar
mark has been registered or used by others for similar goods. The applicant
can make a search in the indexes kept for public inspection at the Trade
Marks Office with or without professional assistance. In the alternative a
request for a search report may be made to the Registrar of Trade Marks in
the prescribed form. So, after independently adopting the mark, it should be
ascertained whether a similar mark has been registered or used or already
applied for registration. If the investigations disclose the existence of
similar mark, it is best to discard the mark chosen and start again the whole
process.

What are Good Trade Marks?

The best marks are invented words, non-descriptive words and distinctive
devices. Device marks are popular for ordinary consumer goods like
cosmetic, textiles house hold articles and articles of food.
Device marks have one advantage over other marks, in that if the device
is original it can be considered as an artistic work capable of being
protected under the copyright law. If the device is distinctive it can be
protected under the trade mark law also. Even where the device is not
capable of registration as a trade mark, if it is original not necessarily
having any artistic merit, copyright will subsist in it and any person copying
it can be sued for infringement of copyright. Hence it gets double protection.
It may therefore be advisable to adopt in addition to a word mark, a
distinctive original device as part of the trade mark.
The Act provides for registration of a trade mark either in Part A or in
Part B. The qualification for registration in Part B are less stringent than
those required for Part A registration. Thus, some of the marks which are
refused registration in Part A may be accepted in Part B. The benefits
conferred by registration in Part A or Part B are practically the same except
that in the matter of infringement and rectification the protection afforded
to Part A registration is somewhat better. The Act does not make any
distinction between the two kinds of registration.

Duration and Renewal of Registration

If the application for registration after its advertisement in unopposed, or
if opposed decided in favour of registration the mark will be registered as of
the date of the application for registration. The first registration is for a
period of ten years which can be renewed from time to time by paying the
renewal fee.

Marks not Registrable

The following marks are not registrable:
(1) a mark the use of which would be likely to deceive or cause confusion
[Section 11(a)]
(2) a mark the use of which would be contrary to any law for the time
being in force. [Section 11(b)]
(3) a mark comprising or containing scandalous or obscene matter
[Sectioin 11(c)]
(4) a mark comprising or containing any matter likely to hurt the
religious susceptibilities of any class or section of the citizens of
India. [Section 11(d)]
(5) a mark which would be disentitled to protection in a court of law
[Section 11(e)]
(6) a mark which is identical with or deceptively similar to a trade mark
already registered in respect of the same goods or goods of the same
description. [Section 12(1)]
 (7) a word which in the accepted name of any single chemical name or
chemical compound in respect of chemical substances. [Section 13]

Assignment and Transmission

A registered mark can be assigned or transmitted whether with or without
the goodwill of the business concerned. Ordinarily, an unregistered trade
mark in assignable or transmissible only along with the goodwill of the
business concerned but in certain circumstances it can also be assigned or
transmitted without the goodwill of business.
An assignment of a trade mark must be in writing. No specific form has
been prescribed. The law relating to transmission of a trade mark is the
same as that for assignment. The assignment will not take effect unless the
assignee advertises the assignment in newspapers in accordance with the
directions of the Registrar, given on application made for the purpose.
The procedure for entering the name of the subsequent proprietor of the
trade mark as a result of assignment or transmission is contained in Section
44 and Rules 71 to 81.

Registered User
In addition to any person who has registered the trade mark in respect of
certain goods, any other person may be registered as a registered user of
the trade mark provided that such registered user, together with the owner
of the trade mark, makes an application in this regard, before the Registrar.
Such registered user may only use the trade mark in respect of the goods,
for the duration and subject to the conditions specified by the owner of the
trade mark and mentioned in the application to the Registrar.

Infringement, Threat and Trade Label

A registered trade mark gives to the registered proprietor the exclusive
right to use the trade mark in relation to the goods for which it is registered.
It enables the proprietor to file a suit for infringement of this right and
obtain injunction, damage and other reliefs against an infringer.

Rights conferred by registration

The exclusive rights conferred by registration is circumscribed by various
limitations. These are:
1. The right can be challenged on the ground that the registration is not
valid. Validity can be considered only in an application for
rectification.
2. It is subject to any conditions and limitations entered on the register.
Any use of mark beyond the periphery of such conditions and
limitations is not protected by registration and an action for
infringement will not lie against such use by others.
3. Registration will not operate against persons who are registered
proprietors of identical or similar marks.
4. Where the mark is registered in Part B, in an action for infringement
an injuction or other relief will not be granted if the defendant shows
that the use of the mark complained of is not likely to deceive or cause
confusion.
5. Certain acts do not constitute infringement by express provision of the
Act (Section 30).
6. The registered proprietor cannot interfere with prior users of the same
or similar works.
7. The registered proprietor cannot interfere with any bonafide use by a
person of his own name or that of his place of business, or the use of
any bonafide description of the character or quality of the goods.
 8. In the case of a word mark, if in course of time it becomes the name of
an article or substance, then the rights conferred by registration
ceases.
9. Registration of a mark is not a defence against an action for passing
off, (See Sections 27 (2) & 28 (1)).

Infringement of Trade Marks

A registered trade mark will be infringed if a person in the course of
trade, in relation to the same goods for which the mark is registered, uses
without authority the same mark.
The mark must be used in the course of trade and use must be of a
printed or other visual representation of the mark.
In the following cases a registered trade mark may be used without
infringement:
(a) Where a trade mark is registered subject to any conditions or
limitations, any use of the mark beyond the scope of such conditions
will not constitute infringement.
(b) The use of the mark in relation to goods to which the mark has been
lawfully applied or where the registered proprietor has consented to
the use of the mark. This applies to cases where the goods are
purchased in bulk and sold in retail applying the mark.
(c) The use of the mark in relation to parts of or accessories to the goods
in respect of which the mark is registered if the use is reasonably
necessary to indicate that the goods are so adapted. This generally
arises in the case of machinery, automobiles, cycles, etc., where the
parts and accessories are manufactured by different persons.
(d) The use of the mark or a similar mark in the exercise of right
conferred by independent registration. This arises where identical or
similar marks are registered by more than one person.
(e) Assignment of the registered trade mark to another person will not
affect the right of a person to sell or deal in the goods bearing the
mark lawfully purchased by him before assignment.

Penal provision under Trade Mark Act

103. Penalty for applying false trade marks, trade descriptions, etc.—Any
person who—
(a) falsifies any trade mark; or
(b) falsely applies to goods or services any trade mark; or
(c) makes, disposes of, or has in his possession, any die, block, machine, plate or
other instrument for the purpose of falsifying or of being used for falsifying, a
trade mark; or
(d) applies any false trade description to goods or services; or
(e) applies to any goods to which an indication of the country or place in which
they were made or produced or the name and address of the manufacturer or
person for whom the goods are manufactured is required to be applied under
section 139, a false indication of such country, place, name or address; or
(f) tampers with, alters or effaces an indication of origin which has been applied
to any goods to which it is required to be applied under section 139; or
(g) causes any of the things above mentioned in this section to be done,
shall, unless he proves that he acted, without intent to defraud, be punishable with
imprisonment for a term which shall not be less than six months but which may extend
to three years and with fine which shall not be less than fifty thousand rupees but which
may extend to two lakh rupees:
Provided that the court may, for adequate and special reasons to be mentioned in
the judgment, impose a sentence of imprisonment for a term of less than six months or a
fine of less than fifty thousand rupees.
 104. Penalty for selling goods or providing services to which false trade
mark or false trade description is applied.—Any person who sells, lets for hire or
exposes for sale, or hires or has in his possession for sale, goods or things, or provides
or hires services, to which any false trade mark or false trade description is applied or
which, being required under section 139 to have applied to them an indication of the
country or place in which they were made or produced or the name and address of the
manufacturer, or person for whom the goods are manufactured or services provided, as
the case may be, are without the indications so required, shall, unless he proves,—
(a) that, having taken all reasonable precautions against committing an offence
against this section, he had at the time of commission of the alleged offence no
reason to suspect the genuineness of the trade mark or trade description or
that any offence had been committed in respect of the goods or services; or
(b) that, on demand by or on behalf of the prosecutor, he gave all the information
in his power with respect to the person from whom he obtained such goods or
things or services; or
(c) that otherwise he had acted innocently,
be punishable with imprisonment for a term which shall not be less than six months but
which may extend to three years and with fine which shall not be less than fifty
thousand rupees but which may extend to two lakh rupees:
Provided that the court may, for adequate and special reasons to be mentioned in
the judgment, impose a sentence of imprisonment for a term of less than six months or a
fine of less than fifty thousand rupees.
 105. Enhanced penalty on second or subsequent conviction.—Whoever having
already been convicted of an offence under section 103 or section 104 is again
convicted of any such offence shall be punishable for the second and for every
subsequent offence, with imprisonment for a term which shall not be less than one year
but which may extend to three years and with fine which shall not be less than one lakh
rupees but which may extend to two lakh rupees:
Provided that the court may, for adequate and special reason to be mentioned in the
judgement, impose a sentence of imprisonment for a term of less than one year or a fine
of less than one lakh rupees:
Provided further that for the purposes of this section, no cognizance shall be taken
of any conviction made before the commencement of this Act.
106. Penalty for removing piece goods, etc., contrary to section 81.—If any
person removes or attempts to remove or causes or attempts to cause to be removed for
sale from any premises referred to in section 81 or sells or exposes for sale or has in his
possession for sale or for any purpose of trade or manufacture piece goods or cotton
yarn or cotton thread which is not marked as required by that section, every such piece
and every such bundle of yarn and all such thread and everything used for the packing
thereof shall be forfeited to Government and such person shall be punishable with fine
which may extend to one thousand rupees.
107. Penalty for falsely representing a trade mark as registered.—(1) No
person shall make any representation—
(a) with respect to a mark, not being a registered trade mark, to the effect that it
is a registered trade mark; or
(b) with respect to a part of a registered trade mark, not being a part separately
registered as a trade mark, to the effect that it is separately registered as a
trade mark; or
(c) to the effect that a registered trade mark is registered in respect of any goods
or services in respect of which it is not in fact registered; or
(d) to the effect that registration of a trade mark gives an exclusive right to the use
thereof in any circumstances in which, having regard to limitation entered on
the register, the registration does not in fact give that right.
(2) If any person contravenes any of the provisions of sub-section (1), he shall be
punishable with imprisonment for a term which may extend to three years, or with fine,
or with both.
(3) For the purposes of this section, the use in India in relation to a trade mark of
the word “registered”, or of any other expression, symbol or sign referring whether
expressly or impliedly to registration, shall be deemed to import a reference to
registration in the register, except—
(a) where that word or other expression, symbol or sign is used in direct
association with other words delineated in characters at least as large as those
in which that word or other expression, symbol or sign is delineated and
indicating that the reference is to registration as a trade mark under the law of
a country outside India being a country under the law of which the registration
referred to is in fact in force; or
(b) where that other expression, symbol or sign is of itself such as to indicate that
the reference is to such registration as is mentioned in clause (a); or
(c) where that word is used in relation to a mark registered as a trade mark under
the law of a country outside India and in relation solely to goods to be exported
to that country or in relation to services for use in that country.
108. Penalty for improperly describing a place of business as connected with
the Trade Marks Office.—If any person uses on his place of business, or on any
document issued by him, or otherwise, words which would reasonably lead to the belief
that his place of business is, or is officially connected with, the Trade Marks Office, he
shall be punishable with imprisonment for a term which may extend to two years, or
with fine, or with both.
109. Penalty for falsification of entries in the register.—If any person makes,
or causes to be made, a false entry in the register, or a writing falsely purporting to be a
copy of an entry in the register, or produces or tenders or causes to be produced or
tendered, in evidence any such writing, knowing the entry or writing to be false, he
shall be punishable with imprisonment for a term which may extend to two years, or
with fine, or with both.
110. No offence in certain cases.—The provisions of sections 102, 103, 104 and
105 shall, in relation to a registered trade mark or proprietor of such mark, be subject
to the rights created or recognised by this Act and no act or omission shall be deemed
to be an offence under the aforesaid sections if,—
(a) the alleged offence relates to a registered trade mark and the act or omission is
permitted under this Act; and
(b) the alleged offence relates to a registered or an unregistered trade mark and
the act or omission is permitted under any other law for the time being in
force.
111. Forfeiture of goods.—(1) Where a person is convicted of an offence under
section 103 or section 104 or section 105 or is acquitted of an offence under section 103
or section 104 on proof that he acted without intent to defraud, or under section 104 on
proof of the matters specified in clause (a), clause (b) or clause (c) of that section, the
court convicting or acquitting him may direct the forfeiture to Government of all goods
and things by means of, or in relation to, which the offence has been committed, or but
for such proof as aforesaid would have been committed.
(2) When a forfeiture is directed on a conviction and an appeal lies against the
conviction, an appeal shall lie against the forfeiture also.
(3) When a forfeiture is directed on acquittal and the goods or things to which the
direction relates are of value exceeding fifty rupees, an appeal against the forfeiture
may be preferred, within thirty days from the date of the direction, to the court to
which, in appealable cases, appeals lie from sentences of the court which directed the
forfeiture.
(4) When a forfeiture is directed on a conviction, the court, before whom the person
is convicted, may order any forfeited articles to be destroyed or otherwise disposed of
as the court thinks fit.
112. Exemption of certain persons employed in ordinary course of business.
—Where a person accused of an offence under section 103 proves—
(a) that in the ordinary course of his business he is employed on behalf of other
persons to apply trade marks or trade descriptions, or as the case may be, to
make dies, blocks, machines, plates, or other instruments for making, or being
used in making, trade marks; and
(b) that in the case which is the subject of the charge he was so employed, and
was not interested in the goods or other thing by way of profit or commission
dependent on the sale of such goods or providing of services, as the case may
be; and
(c) that, having taken all reasonable precautions against committing the offence
charged, he had, at the time of the commission of the alleged offence, no
reason to suspect the genuineness of the trade mark or trade description; and
(d) that, on demand made by or on behalf of the prosecutor, he gave all the
information in his power with respect to the persons on whose behalf the trade
mark or trade description was applied,
he shall be acquitted.
113. Procedure where invalidity of registration is pleaded by the accused.—
(1) Where the offence charged under section 103 or section 104 or section 105 is in
relation to a registered trade mark and the accused pleads that the registration of the
trade mark is invalid, the following procedure shall be followed:—
(a) If the court is satisfied that such defence is prima facie tenable, it shall not
proceed with the charge but shall adjourn the proceeding for three months
from the date on which the plea of the accused is recorded to enable the
accused to file an application before the Appellate Board under this Act, for the
rectification of the register on the ground that the registration is invalid.
 (b) If the accused proves to the court that he has made such application within the
time so limited or within such further time as the court may for sufficient cause
allow, the further proceedings in the prosecution shall stand stayed till the
disposal of such application for rectification.
(c) If within a period of three months or within such extended time as may be
allowed by the court the accused fails to apply to the Appellate Board for
rectification of the register, the court shall proceed with the case as if the
registration were valid.
(2) Where before the institution of a complaint of an offence referred to in sub-
section (1), any application for the rectification of the register concerning the trade
mark in question on the ground of invalidity of the registration thereof has already been
properly made to and is pending before the tribunal, the court shall stay the further
proceedings in the prosecution pending the disposal of the application aforesaid and
shall determine the charge against the accused in conformity with the result of the
application for rectification in so far as the complainant relies upon the registration of
his mark.
114. Offences by companies.—(1) If the person committing an offence under this
Act is a company, the company as well as every person in charge of, and responsible to,
the company for the conduct of its business at the time of the commission of the offence
shall be deemed to be guilty of the offence and shall be liable to be proceeded against
and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person
liable to any punishment if he proves that the offence was committed without his
knowledge or that he exercised all due diligence to prevent the commission of such
offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under
this Act has been committed by a company and it is proved that the offence has been
committed with the consent or connivance of, or that the commission of the offence is
attributable to any neglect on the part of, any director, manager, secretary or other
officer of the company, such director, manager, secretary or other officer shall also be
deemed to be guilty of that offence and shall be liable to be proceeded against and
punished accordingly.
Explanation.—For the purposes of this section—
(a) “company” means any body corporate and includes a firm or other association
of individuals; and
(b) “director”, in relation to a firm, means a partner in the firm.
115. Cognizance of certain offences and the powers of police officer for
search and seizure.—(1) No court shall take cognizance of an offence under section
107 or section 108 or section 109 except on complaint in writing made by the Registrar
or any officer authorised by him in writing:
Provided that in relation to clause (c) of sub-section (1) of section 107, a court shall
take cognizance of an offence on the basis of a certificate issued by the Registrar to the
effect that a registered trade mark has been represented as registered in respect of any
goods or services in respect of which it is not in fact registered.
(2) No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of
the first class shall try an offence under this Act.
(3) The offences under section 103 or section 104 or section 105 shall be cognizable.
(4) Any police officer not below the rank of deputy superintendent of police or
equivalent, may, if he is satisfied that any of the offences referred to in sub-section (3)
has been, is being, or is likely to be, committed, search and seize without warrant the
goods, die, block, machine, plate, other instruments or things involved in committing
the offence, wherever found, and all the articles so seized shall, as soon as practicable,
be produced before a Judicial Magistrate of the first class or Metropolitan Magistrate,
as the case may be:
Provided that the police officer, before making any search and seizure, shall obtain
the opinion of the Registrar on facts involved in the offence relating to trade mark and
shall abide by the opinion so obtained.
 (5) Any person having an interest in any article seized under sub-section (4), may,
within fifteen days of such seizure, make an application to the Judicial Magistrate of the
first class or Metropolitan Magistrate, as the case may be, for such article being
restored to him and the Magistrate, after hearing the applicant and the prosecution,
shall make such order on the application as he may deem fit.
116. Evidence of origin of goods imported by sea.—In the case of goods brought
into India by sea, evidence of the port of shipment shall, in a prosecution for an offence
under this Act or under clause (b) of section 112 of the Customs Act, 1962 (52 of 1962)
relating to confiscation of goods under clause (d) of section 111 and notified by the
Central Government under clause (n) of sub-section (2) of section 11 of the said Act for
the protection of trade marks relating to import of goods, be prima facie evidence of the
place or country in which the goods were made or produced.
117. Costs of defence or prosecution.—In any prosecution under this Act, the
court may order such costs to be paid by the accused to the complainant, or by the
complainant to the accused, as the court deems reasonable having regard to all the
circumstances of the case and the conduct of the parties and the costs so awarded shall
be recoverable as if they were a fine.
118. Limitation of prosecution.—No prosecution for an offence under this Act or
under clause (b) of section 112 of the Customs Act, 1962 (52 of 1962), relating to
confiscation of goods under clause (d) of section 111 and notified by the Central
Government under clause (n) of sub-section (2) of section 11 of the said Act for the
protection of trade marks, relating to import of goods shall be commenced after
expiration of three years after the commission of the offence charged, or two years after
the discovery thereof by the prosecutor, whichever expiration first happens.
119. Information as to commission of offence.—An officer of the Government
whose duty it is to take part in the enforcement of the provisions of this Chapter shall
not be compelled in any court to say whence he got any information as to the
commission of any offence against this Act.
120. Punishment of abetment in India of acts done out of India.—If any
person, being within India, abets the commission, without India, of any act which, if
committed in India, would, under this Act, be an offence, he may be tried for such
abetment in any place in India in which he may be found, and be punished therefor with
the punishment to which he would be liable if he had himself committed in that place
the act which he abetted.
Action for Infringement
A suit for infringement of registered trade mark must be filed in a District
Court having jurisdiction or in a High Court having original jurisdiction to
entertain such suits. The jurisdiction of the Court and the procedure are
governed by the Code of Civil Procedure. The period of limitation for filing
the suit its three years from the date of infringement. In Hiralal Prabhudas
v. Ganesh Trading Co., AIR 1984 Bom. 218 , it has been laid down—
(a) Marks are remembered by general impressions or by some
significant, rather that by a photographic recollection of the whole;
(b) Overall similarity is the touching stone;
(c) Marks must be looked at from the first impression of a person of
average intelligence and imperfect recollection;
(d) Overall structure, phonetic similarity and similarity of idea are
important and both evident.

Important Cases
Facts: Bisleri International Pvt. Ltd. (Defendant) is an Indian beverages company,
best known for bottled water. It sold and assigned the trademark ‘MAAZA’ including the
right to formulate, intellectual property right and goodwill attached to the mark for
India to Coca-Cola.
In the year 2008, the defendant filed an application for registration of trademark
‘Maaza’ in Turkey, and then started exporting the mango flavoured fruit drink with the
mark ‘Maaza’.
Coca-Cola Co. (Plaintiff) filed a petition for permanent injunction and damages for
passing-off and infringement of trademark.
Issue: Issue before the Hon’ble Delhi High Court was, whether exporting a product
with the mark is considered as infringement in the exporting country.
Arguments: It was argued on behalf of the Plaintiff that as the mark ‘Maaza’ with
regard to Indian market was assigned to Coca-Cola, any manufacture of the product
with such mark whether for sale in India or for the purpose of export would be
considered as infringement.
The defendants argued that as the product is sold in Turkey and not in India,
plaintiff’s rights are not being infringed. It was further argued as the mark ’Maaza’ was
registered by the defendant worldwide, can sell products with that mark anywhere on
earth.
Decision: It was held that exporting of goods from a country is considered as sale
within the country from where the goods are exported and the same amounts to
infringement of trademark. As the defendants were manufacturing and exporting the
product with the mark ‘Maaza’ from India, Delhi High Court had jurisdiction to
entertain the matter. Court granted an interim injunction against defendant from using
the mark in India as well as for export market. Coca-Cola Co. v. Bisleri International
Pvt. Ltd.
Napster Case–In A&M Records, Inc. v. Napster, Inc. External Link, 230 F. 3d 1004
(2001), the Court of Appeals for the Ninth Circuit held that a peer-to-peer file sharing
service could indeed be held liable for contributory and vicarious infringement of
copyright. This landmark intellectual property case put an end to any speculation that
such services could facilitate copyright infringement, but still shield themselves from
any liability due to fact that it was the users that chose to share illegal copies of
protected works.
Case Background: Napster was an early peer-to-peer file sharing network which
could be used for transmitting various files, but which attained massive popularity as a
way to share music through MP3s. Unsurprisingly, major record companies took issue
with large-scale distribution of their music for free, and sued Napster for direct,
contributory, and vicarious infringement of copyright in order to protect their
intellecual property.
The Holding
As stated above, the Court ruled against Napster.
 The first issue the court dealt with was “fair use”. Fair use is a defense to
infringement codified at 17 U.S.C. $ 107, which states that otherwise infringing
activities are permitted if pursued, “[F] or purposes such as criticism, comment, news
reporting, teaching... scholarship, or research”. In order to determine whether the
defense is met in a particular case, the statute directs Courts to consider the following
four factors.
The purpose and character of the use, including whether such use is of a commercial
nature or is for non-profit educational purposes.
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
The effect of the use upon the potential market for or value of the copyrighted work.
In Napster case, their platform allowed for “repeated and exploitative” copying,
which met the meaning of the first factor, even though no sales were taking place. In
addition, songs were found to be “close to the core” of the types of creative works
intended to be protected by copyright, and entire songs were downloaded, setting the
second and third factors against Napster. Finally, the effect of the downloads was found
to harm possible album sales, which was the final nail in the coffin of Napster’s
argument in favour of a fair use defense.
As for the contributory infringement claim, Napster knew of widespread
infringement taking place on its system, and its policing efforts were quite thin.
Moreover, Napster materially contributed to the infringement, making success on this
claim likely for the appellants. Similarly, the court found that Napster’s lack of effort to
reduce infringement, combined with the fact that the company financially benefited
therefrom, made success on the vicarious infringement claim likely as well.
As a result, the court ordered the creation of an appropriate consistent with its
opinion against any of Napster’s future infringing activities.

(3) Patents
A patent is a monopoly right granted to a person who has invented a new
and useful article or an improvement of an existing article or a new process
of making an article. It consists of an exclusive right to manufacture the
new article invented or manufacture an article according to the invented
process for a limited period. After the expiry of the duration of patent,
anybody can make use of the invention.
The object of granting a patent is to encourage and develop new
technology and industry. Thus the opportunity of acquiring exclusive rights
in an invention stimulates technical progress in four ways:
(1) That it encourages research and invention.
(2) That it induces an inventor to disclose his discoveries instead of
keeping them as a trade secret.
(3) That it offers a reward for the expenses of developing inventions to
the stage at which they are commercially practicable.
(4) That it provides an inducement to invest capital in new lines of
production which might not appear profitable if many competing
producers embanked or them simultaneously.
Thus, a patent holder grants third parties a license to use the invention in
return for agreed fee or royalty. More often than not, the use of a particular
invention would involve multiple patents and a licensee would have to obtain
licenses from all these patent holders, before using the invention. The three
essential requirement of a patent table invention are novelty, inventiveness,
i.e., inventive step or lack of obviousness and utility. In the absence of these
criteria, the invention would not be entitled to a patent.
Traditionally, patents were granted for industrially or commercially
useful products such as new machines, chemical compounds or materials and
processes for making things. In recent times, several countries have been
pushing the limits of patent protection to spill out of the traditionally
accepted arena of inventions into more abstract areas, such as protection of
software by perceiving a wrong notion that there is greater protection
available to patent holders.

Inventions not Patentable

The following inventions are not patentable:
(i) A method or process of testing applicable during the process of
manufacture.
(ii) A method of agriculture or horticulture.
(iii) Any process for the medical, or other treatment of human beings,
animals or plants.
(iv) A mere juxtaposition of known devices in which each device functions
independently.
(v) A substance obtained by a mixture resulting only in the aggregation
of the properties of the components thereof or a process for
producing such substance.
(vi) The discovery of a new property or new use for a known substance.
(vii) An invention relating to atomic energy.
(viii) In respect of food medicine and drug, patents are granted only
for the process of manufacture of the substance but not for the
substance itself.
(ix) In respect of substances produced by chemical processes (including
alloys optical glass, semi-conductors and intermediate compounds)
patents are granted only for the process of manufacture but for the
substance itself.
(x) Inventions which are frivolous or contrary to law.
(xi) The mere discovery of a scientific principle or the formulation of an
abstract theory.

How to obtain a Patent?

An application for a patent may be made by the actual inventor of the
invention, or an assignee has the right to make an application or a legal
representative of either. It is the person who first applies for a patent who is
entitled to the grant. A prior inventor of the invention who applies
subsequently will not get the patent as against the first applicant. A person
who has merely communicated an idea to another, who actually gave
practical shape to the idea and developed the invention, cannot claim to be
the first and true inventor.
The right to apply for a patent is assignable. Whether in a particular case
the invention made by the employee should belong to the employer depends
upon the contractual relations, express or implied, between the employer
and employee. In the absence of special contract, the invention of a servant
even though made in the employer’s time and with the employer’s materials
and at the expense of the employer does not become the property of the
employer.

Procedure
An application for a patent in the prescribed form along with the
prescribed fee should be filed in the appropriate office of the patent office.
The application should be accompanied by a provisional or complete
specification and should be filed within twelve months from the date of filing
the application. If this is not done, the application will be deemed to be
abandoned.
The complete specification should fully and particularly describe the
invention and the method of performing the invention known to be applicant
and end with a claim or claims defining the scope of invention for which
protection is claimed. The claim should relate to a single invention. The
specification should be accompanied by drawings where appropriate and
necessary.
The examiner of patents will examine the application to see whether it
complies with the requirements of the Act and the Rules, whether there is in
any lawful ground of objection to the grant of the patent, and whether the
invention has already been published or claimed by any other person.
After examination of the application, the patent office will communicate
to the applicant, the objections, if any, to the grant of a patents. Where the
applicant has satisfactorily removed the official objections, the controller
will accept the complete specification and advertise it in the Official
Gazette. Any person interested may give notice of opposition within three
months from the date of advertisement in the official gazette. The controller
will forward a copy of the notice of opposition to the applicant who may file
a reply statement within one month from the date of receipt of the copy.
Thereafter the parties may file their evidence in support of their respective
cases and the matter will be heard and decided.
Where the application is accepted either without opposition or after
opposition, a patent will be granted if a request for sealing is made by the
applicant.

Term of Patent
Under Indian law the term of patent is not same for all kinds of inventions
as in most other developed countries. In respect of process patents relating
to drugs and food, the term is five years from the date of sealing the patents
or seven years from the date of the patent whichever is shorter. In respect of
all other patents, the term is fourteen years. A patent can be further
extended or kept alive only by paying the renewal fee from time to time.

Grounds of Opposition
An application for a patent may be opposed by any person interested on
one or more of the following grounds and no other:
(1) Obtaining wrongfully.
(2) Prior publication in any Indian specification or prior publication in
any other documents in India or elsewhere.
(3) Prior claim in a concurrent application.
(4) Prior public use or public knowledge in India.
(5) Obviousness and lack of inventive step.
(6) Invention not patentable under the Act.
(7) Insufficient description of the invention.
(8) Failure to disclose information relating to foreign applications, and
(9) In the case of a convention application, not made within the
prescribed time.
Register of patents
At the Patent Office there is a register of patents in which the following
particulars are entered:
(a) The name, address, etc., of the guarantee, the title of the invention,
the date of the patent, the date of sealing and the official number of
the patent.
(b) Notification of assignments, transmissions, licenses, amendments and
revocation of patents, and
(c) Particulars of such other matters affecting the validity or
proprietorship of patents. No notice of any trust, whether express,
implied or constructive, will be entered in the register.
The register of patents is open to public inspection.

Transfer of Patent Rights

A patent is recognised as a species of property and can be transferred
from the original patentee to any other person by assignment or by operation
of law. A patentee can also give licenses to others to exploit the patent.
Where a patent is granted to two or more persons, each of these persons,
in the absence of an agreement to the contrary, is entitled to an equal share
in the patent. But a co-owner cannot assign or license share in the patent
except with the consent of the other co-owners.

Assignments
A patentee may assign the whole or any part of the patent right for the
whole of India or for a part thereof. Assignee includes the legal
representative (That is a person who in law represents the estate of a
deceased person) of a deceased assignee. There are three kinds of
assignment—(1) Legal Assignment (2) Equitable Assignment, and (3)
Mortgages.
(1) Legal Assignment—An assignment of an existing patent is a legal
assignment. A legal assignee is entitled to his name entered on the register
patents as the proprietor of the patent and can thereafter exercise all the
rights of the proprietor of a patent.
(2) Equitable Assignment— Any document (including a letter) in which
the patentee agrees with another person to give him a certain defined share
of the patent with immediate effect, is an equitable assignment of the patent.
As an equitable assignment, it is a document which affects the
proprietorship of the patent. An equitable assignee cannot get his name
entered in the register until he obtains a legal assignment. He can, however,
sue the assignor to compel him to execute a legal assignment.
(3) Mortgage—A mortgage is a document transferring the patent rights
wholly or partly, to the mortgage with a view to secure the payment of a sum
of money.

Transmission of Patent
Transfer of patents by operation of law occurs when the patentee dies or
becomes bankrupt or, in the case of a company, is dissolved.

Licenses
A patentee may, by a license, permit others to make, use, or exercise. The
invention which would otherwise be illegal for them to do. A license is not
valid unless it is in writing and an application for registration of the
document embodying the terms of license is filed with the controller.
A license may be express, implied or statutory. It may be exclusive, non-
exclusive or limited. An exclusive licence excludes all other persons
including the patentee from a right to use the invention. In a limited license
the limitation may arise as to persons, time, place, manufacture, use or sale.

Infringement of Patents
 What constitutes infringement of patent is not defined in the Patents Act.
But infringement of a patent is the violation of the monopoly right conferred
by the grant.
In determining whether what the alleged infringer is doing amounts to an
infringement.
There is no infringement of an invalid patent. On the question of
infringement intention or the absence of intention is not material. If the
defendant did not know that the patent existed, he will not be liable to pay
damages or account of profits.

Action for Infringement

An action for infringement of a patent must be instituted by way of a suit
in any District Court or a High Court having jurisdiction to try the suit.
The cause of action must have arisen in a place within the jurisdiction of
the court where the suit is to be filed. The procedure to be followed in
conducting a suit for infringement is governed by the relevant provisions of
the Code of Civil Procedure. A suit for infringement can be instituted only
after the patent has been sealed.
The period of limitation for bringing the suit is three years from the date
of infringement. No notice of infringement to the defendant before filing the
suit is necessary.

Relief against Patent Infringement

The reliefs available to a successful plaintiff in a suit for infringement
include:—
(1) an injunction, and (2) Either damages or an account of profits.
Offences and Penalities
Under the Patent Act, the following acts or omissions are offences
punishable with imprisonment of a maximum period of two years or five or
with both:
(1) Contravention of secrecy directions given by the controller
prohibiting the publication or communication of information relating
to inventions relevant for defence purposes.
(2) Making of an application for a patent in a foreign country by a
resident Indian in respect of an invention subject to secrecy
directions without the permission of the controller.
(3) Making of an application for a patent in a foreign country by any
resident Indian before making a similar application in India.
(4) Failure to supply information to the controller regarding the use of
patented invention in India (Fine only).
(5) Fabrication of entries in the register of patents or production of a
false copy of an entry in the register as evidence.
(6) Wrongful use of the words “Patent Office” by any person which will
lead to the belief that his place of business is connected with the
patent office.
(7) Making false representation by a person that any article sold by him
in patented in India or is the subject of an application for a patent.
(8) A false indication that the goods are the subject of an existing patent
(Offence under Trade and Merchandise Marks Act, 1956).
(9) Describing or holding himself out by any person as a patent agent
who is not a registered patent Agent.
Particular patent three questions are involved:
1. The extent of monopoly right conferred by the patent which has to be
ascertained by a contraction of the specification.
2. Whether the alleged acts amount to making, using, exercising, selling
or distributing a product or using or exercising a method or process
in the case of a process patent.
3. Whether what the alleged infringer is doing amounts to an
infringement of the monopoly conferred by the patent grant.

Onus
The onus of establishing infringement is on the Plaintiff. There is no
obligation on the part of the patentee to warn the infringer, but his conduct
should not amount to acquiescence.
There is no provision for taking criminal proceedings against
infringement of patents as in trade marks and copyright.
Action of law enforcement agencies in all types of Infringement of
Intellectual Property
In all types of infringement of intellectual property, i.e., copyright, trade
mark, etc. There are two types of relief which are mentioned in the legal
provision:
(1) First, in Civil action
(2) Secondly, Criminal action
The police officials will have nothing to do with civil action. In criminal
action of the infringement of the intellectual property, the provisions
relating to the Code of Criminal Procedure, will apply in relation to F.I.R.,
Investigation, search and seizure, etc.



Chapter–30
Cyber Crime Investigation
In India, today as in the rest of the world, computers have become an
integral part of the fast developing society. Already computers are being
used in banking, manufacturing, health care, defence, insurance, scientific
research, strategic policy making, law enforcement, etc., apart from its
routine use as office automation and decision support tools. It is certain that
computers are going to further revolutionise the life styles of human beings
in more and more ways in the years to come.

What is Computer Crime

One of the characteristic features of computer crime is its transnational
character. Computer crimes often extend across national borders but the
technogical growth that has made geographical borders insignificant.
Broadly, computer crimes are those that are committed either on a
computer system or with the aid of such a system. The United Nation Manual
on the Prevention and Control of Computer–related crime classifies such
crime into five categories:
1. Computer fraud by manipulation of the inputs, output or throughout of
a computer based system.
2. Computer forgery, which involves changing images of data stored in
computers.
3. Deliberate damage caused to computer data or programmes through
virus programmes or logic bombs.
4. Unauthorised access of computers by “Hacking” into system or
stealing passwords, and
5. Unauthorised reproduction of computer programmes or software
piracy.

Investigation
The word “Investigation” is derived from Latin word “ Investigare” which
means “to trace out or to search into”, i.e., to probe into for finding out the
truth. Hence in criminal cases, the duty of the investigator is not merely to
bolster up a prosecution case with such evidence as may enable the court to
record a conviction but is being out the real unvarnished truth. Jamuna v.
State of Bihar, AIR 1974 SC 1822 . Richard H. Ward says, “The primary
function of the criminal investigator is to gather information, determine the
validity of the information, identify and locate the perpetrator of the crime
and provide evidence of his guilt for a court of law.” Inherent in this function
is the responsibility to protect the innocent. He continues, “The mean by
which the investigator carries out this function may be classified into two
ways–Internal and External.”
Internal refers to the process of logic, expertise, intuition, experience and
knowledge that he brings to the investigation.
External refers to the tools, scientific aids, additional personal and other
resources that he brings to bear on the investigation.

Steps for Investigation

The first step in the preparation for F.I.R. is the completion of legal
formalities prior to inspection of the scene of crime besides forming a core
team. In F.I.R., it must include the description of the offence and relevant
section of I.T. Act, date, time and place of offence, suspects or accused, date
and time when the offence was discovered, by whom and how discovered,
suspect organizations or companies, if any, victim company or organization,
details of hardware and software configuration of the computer system
which have been the target of attack, details of damage caused including
extent of financial loss caused, details of damage caused including extent of
financial loss caused besides e-mail address of the host computer, etc.
The investigator must determine the Modus Operandi or motive behind
the computer crime. Whether the damage caused is due to hardware failure
or software failure, or whether it happened due to negligence or
carelessness, or whether it is caused by mischief, wilfully malicious act, who
is the real beneficiary for the kind of acts, etc.

Investigation of Computer Crime

Computer crime are difficult to detect and even more difficult to prove.
Criminals often leave no trace. Computer crimes may even transcend
national borders making investigations complicated. Recovery of computer
based evidence is a difficult task involving data recovery techniques. Search
and seizure of electronic evidence also demands high technical skills.
Computer investigation require a considerable amount of time because of
the large volume of data to be scanned for detecting the crime and for
evidential purposes. The investigations also involve interaction with victims.
Victims could be experts and sometimes the perpetrators of the crime
themselves. Technical knowledge of computer systems, operating systems
and various computer software would be a must for effective investigation.
Steps for Investigation
1st Step-F.I.R.—The following information should be incorporated in the
First Information Report:
(a) Description of the offence and relevant sections of law
(b) Date, time and place of offence
(c) Suspects or accused
(d) Date and time when the offence was discovered, by whom and how
discovered
(e) Suspect companies or organisations
(f) Victim organisation
(g) Details of hardware and software configuration of the computer
system which have been the target of attack
(h) Phone number and E-mail of host computer
(i) Details of damage caused including extent of financial loss caused
(j) Modus operandi
(k) Details of the informant or complainant and how he/she came across
the information
(l) Details of the inspection of the computer system conducted, if any, to
detect the crime and status of the computer systems at the time of
such inspection.
Interpol has already designed a standard computer crime message format,
which could be used by the member countries. There is need for rapid
communication of computer crime message. This is because the effects of
computer hacking and viruses can spread throughout computer networks at
the speed of light.
IInd Step — Investigation of computer related crimes requires computer
skills. Various technical experts may also have to be associated with the
investigations. One of the most difficult tasks for the investigator is to
isolate machine failure from human failure such as errors and mischief. The
investigator has to determine:
(a) What is the damage caused?
(b) What is caused by hardware failure?
(c) What is caused by software failure?
(d) Was there negligence or carelessness on the part of human beings?
(e) Was it caused by mischief a wilful and malicious act?
(f) What was the motive fun, financial loss to the organisation and
corresponding gain to the perpetration?
(g) Who was the beneficiary?
IIIrd Step—(1) (a) The first step would be to thoroughly inspect the
computer systems which were used by the criminal to commit the crime. This
could be done with the help of technical experts in hardware and software of
the subject organisation.
(b) Before checking the files, it may be necessary to check the system for
VIRUSES. Virus check and inspection of the computer system should be
properly documented. Virus check includes virus scan, identification of the
viruses present and their removal. It may have to be investigated whether
the viruses were introduced into the systems by the hacker alter commission
of the crime.
(c) An inventory of the computer systems, hardware, operating system,
utility software, DBMS/RDBMS packages used, application software, data
communication and networking systems, peripherals such as scanners,
printers, modems, etc. should be prepared.
(d) Details of back up facilities, back up tapes, a listing of authorised
users of the system and their password including the super user or system
administrator’s password should be obtained and documented. The computer
system may have to be impounded depending on the damage done to the
system and the possibilities of manipulations of destruction of computer
based evidence.
(e) A description of the data security features of the system, if any,
should be made. This would include physical security, access restrictions,
details of authorised users and their log-in user ID, user name, and password
which could be listed with the help of the system administrator or the person
in charge of the computer system. The computer system will have to be
examined to find the access right of each individual authorised user and
whether any recent changes were made in the access rights of any user.
(2) A listing or back up of all files in the system could be prepared using a
backup tape or optical disk. The log-in details of the system for one or two
months preceding the crime incident should be obtained from the system
with the help of a technical expert in the presence of the system and
database administrator of the system.
(3) Details of employees past and present should be obtained and their
presence or where about obtained.
(4) All the employees past and present should be examined to ascertain
their antecedents, their financial needs, recent financial transactions or
acquisition of assets, extent of their technical knowledge and their loyalty to
the organisation concerned. It is necessary to identify whether any employee
was disgruntled and whether any employee was included to break the trust
reposed in him or her. Usually, insiders are suspects in computer related
crimes.
(5) All user and technical manuals of the system including software listing
should be obtained and examined.
(6) Systems logs maintained, if any, should be seized and scrutinised.
IVth Step — Searches may have to be conducted in the houses of offices of
the suspects or accused. During searches, computer systems, if any,
installed in the premises as also modems and communication lines or
telephone lines should be thoroughly inspected. The inspection of computer
systems should be done by an expert in the presence of the owner of the
system, if available, and in the presence of two independent witnesses.
Presence of notebook or portable computers should also be checked as it is
possible to establish communication with the target computer systems
through a notebook computer with modem connected to any telephone line.
A listing of telephone calls made from the telephone or telephones
installed in the premises may be useful for ascertaining whether any
telephonic link was established with the computer system in question on the
relevant data and at the relevant time.
Vth Step—Tracking and examination of suspects or accused persons:
Suspects should be immediately traced and apprehended. In a case
reported by Roger Addelson, an Amsterdam bank officer had fraudulently
transferred $15.1 million to a Swiss account opened by two accomplices. The
banker had used the password of an executive network failure, a second
transfer could not be effected and the system’s apology for the failure
exposed the fraud. The Swiss bankers and the police were quickly notified
and when the culprits tried to withdraw part of the funds in Zurich, they
were apprehended by the police. The following persons who are connected
with the target computer system should be examined by the police:
(a) Database Administrator
(b) System Administrator
(c) System Analysts/Programmers attending to the maintenance of the
system
(d) System Analysts/Programmers who developed the application
software used
 (e) Computer operations.
Vlth Step — Identifying the time of break in (logging in and logging out),
the log in name used for break in and the communication channel used may
be crucial to the investigations. For identifying the communication channel,
the telephone number and address of the target called would have to be
ascertained.
Vllth Step Analytical tools — Operating systems or programs which do
the basic tasks of a computer, closely monitor the activities of anyone using
the system. The operating system should be examined by the computer
expert or forensic computer technologist to list the log of all users of the
system and the files accessed by the users prior to the incident in question
and relevant to the incident. These may serve as audit trials or electronic
footprints.
In the case of physical break in and criminal trespass, it may be
necessary to look for latent finger prints of the criminal. The keyboard or the
mouse may have to be examined by finger print experts in this connection.
Handwriting examination may also become relevant in the case if funds
transferred and collect at the destination against a voucher filled in by the
criminal or his associate.

Handling, Labelling and Packing of Computer Evidence

It is advisable to collect all relevant material from the scene of crime
including all hardware, software, computer diskettes, tape and other storage
media, documents found at the scene, peripheral equipment including
printers, modems, cables, etc., discarded documentation, printouts, printer
ribbons and trash collected from waste bin.
(A) The investigating officer should, however, follow certain guidelines in
handling the potential. Following are some do’s and don’ts:

Do not
– Don’t disconnect the power before evaluating the overall problem.
– Don’t touch the Keyboard (as far as possible).
– Don’t change the computer’s current state (do not abandon the
program).
– Don’t disconnect the telephone or autodialler from its source.

Do
– Videotape the scene to document the system configuration and the
initial condition of the site on your arrival and the condition of the
equipment you see.
– Photograph the equipment with its serial number, model number and
wiring schemes.
– Label all evidence so that cables and other equipment can be
reassembled in the same exact configuration.
– Write–protect all diskettes at the scene and make sure that they are
labelled.
– In case of mainframe computer, secure the equipment and determine
relevant parts of hardware and software that require close scrutiny
and then collect the same. Connect a dialled number recorded to
telephone or auto dialler for tracing the intruder. Place an outgoing
call recorded through each auto dialler or telephone number storage
board and obtain a printed record of the stored telephone number or
telephone access code within the resident memory.
The following auditing tools and utilities can be used depending upon the
nature of investigation:
1. Test data method which modifies the processing accuracy of the
computer application systems.
 2. Integrated test facility which reviews those functions of auto
applications that are internal to the computer.
3. Similar simulation which processes live data files and simulates
normal computer application processing.
4. Snap shot which takes a picture of an computer memory that contains
the data elements in a computerised decision making process at the
time the decision is made.
5. Mapping which assesses the extent of computer testing and identifies
specific program logic that has not been tested.
6. Code comparison which compares two copies made at different times,
of the program coding for a particular application.
7. Check sums which provide a numerical value to the execution module
that can be computer to later suspected modules.
(B) The following guidelines may be observed while handling and packing
computer evidence:
1. For wrapping the equipment or the media, anti-static plastic material
should be used.
2. Before wrapping, all the equipment should be disconnected from
power and should be brought to room temperature.
3. Since the physical machine might not actually be part of the
evidence, a copy of the hard disk should be made first to conduct
major part of the investigation.
4. The Central Processing Unit (CPU) should be thoroughly checked and
the hard disk drive read/write heads should be secured with
appropriate software commands. The drive should not be separately
wrapped after duly labelling each part including cables and ports.
The keyboard should be separately packed. Any external or removable
hardware, floppy diskette devices should be wrapped separately after
proper labelling.
In case of printers and plotters, the dip switch settings should be noted
and the ribbon removed carefully as it may provide information on most
recent text printed. The modems and other coupling devices should be
disconnected from the telephone and label should be placed on both ends of
cables describing the connection to PC, printer, modem, etc., and then wrap
it as usual.
The magnetic media such as floppy diskettes, hard disks and others
should not be wrapped in plastic covers because of the risk of static electric
discharge. The label indicating deep away from x-rays and magnetic fields
should be affected.
All manuals, hardware notes, loose sheets, pads and other documents
should be handled with gloves to preserve latent finger prints for
examinations. Similarly, the printouts, listings should also be carefully
handled for latent finger print examinations and all these items can be
packed in card board boxes.

Examination of Computer Evidence

After following the rules of chain of custody of evidence, actual
examination can be undertaken in the following steps:
1. Mark and initial each piece of evidence and segregate them for
undertaking different types of studies such as accounting, latent finger
print examinations, cryptography record verification and other minute
analysis.
2. Inspect the using of suspect system disk and the software, the
investigator should use his own system disk to examine the computer.
3. If the system involved in the computer crime is operational, check to
determine if the system is fully operational at the time of seizure if not
take logical steps to make the system operational.
 4. Protect all diskettes, identify the computer to be used for examination,
convert the operating system, if necessary, create directory or
subdirectory testing and check for hidden or deleted files using
custom software and take a printout of all files.
5. After making a detailed analysis in conjunction with related data
obtained from various sources and observations made during analysis,
prepare a report documenting the process adopted for analysis in a
chronological order.
6. The report should include the printouts and other observations and
conclusions on each of the points raised in the investigation. Finally,
repack all the hardware as packed initially.
Standard tools such as compilers, assemblers, dissemblers and debuggers
are required for reverse engineering of software that is essential for
interpretation of evidence. Digital storage oscilloscopes and logic analysers
to computer hardware and communication protocols are required for reliable
and non-destructive analysis of hardware evidence.
The characteristics of computer crime are different from that of
conventional crime in that it is relatively easy to commit, difficult to detect
and even harder to probe. The criminals, who with basic skills and
persistence, can easily move large sums of money across countries or enter
and destroy valuable data and cause very high damage to the affected
organisations.
With computer crime detection being a difficult task, bringing the
criminals to book becomes a formidable challenge since the laws in many
countries have not kept pace with technology.
The vulnerability for computer crimes could be the hardware, software,
data or communications. Hardware includes the basic computer terminals,
printers, modem, storage media and other peripherals.
Software includes operating systems and application programme. Most of
the attacks on software are on proprietary and menu driven application
programmes which are meant for performing business operation such as
accounting, inventory, billing, etc.
Data are the life blood of all organisation when people steal data they are
stealing as asset, just as they do when they steal money or equipment. Data
files may be stored on a number of different types of media–diskitter, disks,
CD-ROM, magnetic tapes or even a hard copy.
Communications take place on a network. A network is essentially a wire
that connects two or more computers. The internet is a global
interconnection of a variety of international networks. Connecting a
computer to any kind of network inevitably increases the vulnerability of the
information stored on it. Therefore, the internet and other large
international inter connected networks pose a special problem. Crackers can
use one machine on a network to connect to another machine, perhaps on
another network, often without leaving any evidence. Networks also permit
users to access a number of different services to exchange information, to
leave messages or get new programmes that are in the public domain.

Steps involved in commission of computer crime

There are four stages in the commission of computer crime viz, planning,
execution, concealment and conversion.
1. Planning: Most of the computer crimes are not spontaneously done
but carefully planned after for extensive periods. For this purpose, the
criminal acquires certain information such as data entry practices,
programme listing, system documentation, locations of the system data and
other system details in addition to the controls on system access and system
security procedures.
2. Execution: Execution of computer crime differs from execution of
other crimes. The presence of the perpetrators is not necessary for the
computer crime to be committed. There are different methods for
commission of computer crimes such as using terminals or communication
channels to gain access, modifying application programmes or operating
system, entering extra or modified transanction to an input file, physical
removal of programmes or data, accessing controlled information and
copying the same, physical action such as arson or theft and manipulating
the actions of programmes or people.
3. Concealment: Once the crime has been committed, the tendency of
the criminal is to remove traces of crimes. There are several ways to hide
the crime including representing the crime as an error or omission in an
otherwise normal ruruns representing a fraudulent transaction as a normal
transaction being executed, modifying an individual account but
manipulating the system taken to reflect normal result, misrepresenting a
criminal activity as an error or flaw within a system and performing the
illegal act in conjunction with an authorised activity.
 4. Conversion: Once the crime has been committed, the immediate
problem for the criminal is converting the assets into a more useful form.
Conversion may take forms such as sale of data unauthorisedly acquired,
destruction of data in cases of revenge or in most of the cases financial gain.

Who commits a Computer Crime?

The perpetrators of computers crime in an organisation can be either
insider or outsider. The motive for committing the computer related crime is
particularly personal/financial gain apart from revenge or entertainment fun.
The perpetrators of computer crime may be—
a. Employee of an Organisation.
b. Competitors or rival Organization.
c. Organised criminals, terrorists, conspirators, etc.
d. Juveniles.
e. Students or unemployed youth.

Techniques of Committing Computer Crime

The techniques of committing computer crime are as under—
(a) Sabotage: Physical or logical damage to computer programme or data
by use of any liquid, gas, fire, projectile, electric or electromagnetic shocks
or by living organisms. It includes physical breakage of computer or its
peripheries or damage to them.
(b) Eaves dropping and spying: Wire tapping and monitoring
radiofrequeney emanations are kept in this category. Criminal is in a
position to insert unauthorised signals an a communication line or data
channel.
(c) Scanning: This is the process of preventing sequentially changed
information to an automated system to identify those items that receives a
positive response from computer. This method is used to identify telephone
numbers that access computer user IDs and passwords that facilitate access
to computers as well as Credit-card number that can be used illegally or
ordering merchandise or services through telemarketing.
(d) Impersonation: In this process, one person assumes the identity of
authorised user by acquiring identification items such as metal key, stripe,
Card knowledge (password) characteristic (facial characteristics, hand
geometry, voice, etc.)
(e) Piggy backing and tailgating: The first term is used for gaining entry
into a controlled area where access is controlled by electronic or
mechanically locked doors either by accompanying the authorised worker or
immediately following him. An unauthorised individual with his hands full of
computer related objects like tape reels stands near the locked room. When
the authorised user arrives and open the door, the unauthorised persons
goes in after along with him. This can be prevented by mantraps, television
cameras or a stationed guard.
Electronic piggy backing can also take place in an on line computer
system where individuals use terminals and the identification of the user is
verified by the computer system by means of password and signature.
Tailgating involves connecting a computer in the same session as and
under the same identifier as another computer user whose session has been
interrupted. This situation happens when a dial-up or direct connect session
is abruptly terminated and a communication controller (Concentrator or
packet assembler/dissembler) incorrectly allows a second user to be patched
directly into the first user still upon files.
(f) Data Diddling: (False data Entry): This is done at the time of computer
feeding. This is the simplest, safest and most common method of committing
computer crime. In this method, data is changed before or during their input
to computers or during output from a computer. The changes can be made by
anybody associated with or having access to the process for creating,
recording, transporting, encoding, examining, checking or converting data
entry to a computer. Examples includes forging or counterfeiting douments,
exchanging valid computer tapes, floppy discs, pressing extra key or
avoiding necessary key.
(g) Super Zapping and Scavenging: This is to use whatever is already in
the computer to destroy valuable information stored in the computer. Super
zapping is the unauthorised use of utility programmes to modify, destroy,
copy, disclose, insert, use or deny use of data stored in a computer media. In
any computer system which has secure operating mode needs a super
programme that will bypass all the modes and controls to disclose the
contents in case of emergency. Such utility programmes are required by
system administrator or system programmer but it can become dangerous if
it falls in the wrong hands. (The utility programmes, normally used by
system programmers and computer operators who maintain computer
operating system, should be kept secure from unauthorised use). Scavenging
sometimes called browsing, a method of obtaining information that may be
left in or around a system after executing a job.
(h) Salami Technique: This type of computer crime is prevalent in banks,
insurance companies, financial institutions, etc. Salami technique consist of
reducing–either by a slight change in certain programme or by inserting
extra instructions into programmes–interest bearing accounts by fraction
when calculating interest/dividends and then transferring the accounts to an
account under an assumed name. Because the customers accounts are
rounded down to the nearest rupee, account are balanced and the EDP
Auditor unless alerted by an informer is satisfied and does not look for any
discrepancy. Programmer/Analysts, System Analysts/System Programmers
and EDP Auditors are the only ones who have sufficient skills and access to
financial application to pull of such computer crimes.
(i) Trojan Horse: This type of computer aided crime which consists of
covertly inserting unauthorised instructions into a production programme
might be done to achieve material gain, to sabotage a programme and to
botch up the system, or to have some “fun.” The last category is done to see
if a few extra instructions can have impact on the performance of a
programme. Whatever the reason, this computer crime effects monetary loss
to the organization.
System Programmer, Programmer/Analysts, Computer Operators and
Users are possible perpetrators.
(j) Time (or logic) bomb or trap door: A time bomb is almost impossible to
detect or prevent and it is almost impossible to catch the person who devised
it because the clever programmer can write the instruction in such a way
when the bomb erases the target programme, application or system, it
destroys itself as well. Usually, the disgruntled employees are the potential
perpetrators.
Although the technique is somewhat similar to Trojan Horse, the goal of a
time, or a logic bomb or trap door is always sabotage. Specially, the covert
instructions are triggered to be executed at a specific time by a pre-defined
data or condition. A logic bomb can erase specified programme or file (s) or
cause an application software such as payroll, accounts receivable, or the
whole system to crash. Because the execution of the instructions can be
programmed so that it is delayed from one month to a year by the sabotage
actually occurs the perpetrator is usually long gone from the company, if not
the area.
(k) Virus: A programmer writes a virus which is nothing more than a few
lines of numbers or letters that instruct the computer to change or destroy
information inside another computer. It may be planted for fun or revenge.
The virus instruction are hidden inside a legitimate programme–one that
might contain a spreadsheet or a word processing programme. It can enter
through a disk or even through phone lines. The computer reads the virus
along with the real software programme.
A virus can be spread from computer to computer system over a telephone
line and electronic bulletin boards and floppies/discs. It can damage the
computer memory and knockout the total system.
Potential perpetrators are outside hackers as well as people computer
professionals.

Varieties of Computer Crime

The variety of criminal activity which can be committed with or against
information systems is surprisingly diverse. Some of these are not really new
in substance; only the medium is new. Others represent new forms of
illegality altogether.
The following generic forms of illegality, involving information systems as
instruments and/or as targets of crime, are the subject of this paper and of a
larger book on which it is based. These forms of crime are not necessarily
mutually exclusive nor is the following list complete.
Theft of Information Services
Ever since the original “phreakers” of a quarter century ago attacked
telephone systems out of curiosity, telecommunications services have been
vulnerable to theft. From those whose motives were confined to simple
mischief making, to those who have made theft of services a way of life and a
major criminal industry, those who steal services pose a significant
challenge to carriers, service providers, and to the general public, who often
bear the financial burden of fraud.
The market for stolen communications services is large. There are those
who simply seek to avoid or to obtain a discount on the cost of a telephone
call. There are others, such as illegal immigrants, who are unable to acquire
legitimate information services without disclosing their identity and their
status. There are others still who appropriate information services to
conduct other illicit business with less risk of detection.
The means of stealing telecommunications services are diverse, and
include the “cloning” of cellular phones, counterfeiting of telephone cards,
and unauthorised access to an organisation’s telephone switchboard. In one
case, hackers were reported to have obtained unauthorised access to the
telephone facilities of Scotland Yard, and made US $1 million in phone calls.

Communications in furtherance of criminal conspiracies

Modern information systems clearly provide an effective means by which
offenders can communicate in order to plan and execute their activities.
There is evidence of information systems being used to facilitate organised
drug trafficking, gambling, prostitution, money laundering, child
pornography and trade in weapons (in those jurisdictions where such
activities are illegal). Although the use of information facilities does not
cause such illegal conduct to occur, it certainly enhances the speed and ease
with which individuals may act together to plan and to execute criminal
activity.
Emerging technologies of encryption and high speed data transfer can
greatly enhance the capacity of sophisticated criminal organizations, and
place their communications outside the reach of police. Increasingly, police
are encountering encrypted communications, and as cryptography becomes
more widely accessible its use to conceal criminal communications may be
expected to increase markedly.

Information Piracy/Counterfeiting/Forgery
Each year, it has been estimated that losses of between US $15 and US
$17 billion are sustained by industry by reason of copyright infringement.
Arguably, the speed and accuracy with which copies of works may now be
made has been dramatically enhanced by such modern technology as on-line
information networks. Copyright infringement may occur quickly and without
difficulty, and be carried out by anyone capable of using the Internet. The
Software Publishers Association has estimated that $ 7.4 billion worth of
software was lost to piracy in 1993 with $ 2 billion of that being stolen from
the Internet.
As broadband services continue to become available with text, graphics,
sound and video information being freely accessible via cable modems, the
potential for copyright infringement involving such works will be enhanced
enormously. Already in the United States it is possible to download compact
disks and feature films from the Internet.

Dissemination of Offensive Materials

Content considered by some to be objectionable exists in abundance in
cyberspace. This includes, among much else, sexually explicit materials,
racist propaganda, and instructions for the fabrication of incendiary and
explosive devices. Information systems can also be used for harassing,
threatening or intrusive communications, from the traditional obscene
telephone call to its contemporary manifestation in “cyber-stalking”, in
which persistent messages are sent to an unwilling recipient. In one recent
case, a student composed a sadistic fantasy and sent it out over the Internet.
He used the name of fellow student as the story’s victim, and was initially
charged with communicating a threat, although this was later withdrawn.
The rich diversity in thresholds of tolerance around the world, combined
with the global reach of information make this a particularly difficult
regulatory challenge. What is offensive to authorities in the People’s
Republic of China, might be welcome in overseas Tibetan communities.
Materials offensive to religious leaders in Iran may fail to raise an eyebrow
elsewhere.

Electronic Money Laundering

For some time now, electronic funds transfers have assisted in concealing
and in moving the proceeds of crime. Emerging technologies will greatly
assist in concealing the origin of ill-gotten gains. Large financial institutions
will no longer be the only ones with the ability to achieve electronic funds
transfers transitting numerous jurisdictions at the speed of light. The
development of informal banking institutions and parallel banking systems
may permit central bank supervision to be bypassed, but can also facilitate
the evasion of cash transaction reporting requirements in those nations
which have them. Traditional underground banks, which have flourished in
Asian countries for centuries, will enjoy even greater capacity through the
use of information technology.
With the emergence and proliferation of various technologies of
electronic commerce, one can easily envisage how traditional counter
measures against money laundering may soon be of limited value. I may soon
be able to sell you a quantity of heroin, in return for an untraceable transfer
of stored value to my “smart-card”, which I then download anonymously to
my account in a financial institution situated in an overseas jurisdiction
which protects the privacy of banking clients. I can discretly draw upon
these funds as and when I may require, downloading them back to my stored
value card.
Electronic Vandalism and Terrorism
As never before, Western industrial society is dependent upon complex
data processing and information systems. Damage to, or interference with,
any of these systems can lead to catastrophic consequences. A recent United
States Government study estimated that some 250,000 separate attempts to
penetrate United States defence installations had occurred during the
previous year. Not all of these are attributable to harmless curiosity.
Defence planners around the world are investing substantially in Information
warfare means of disrupting the information technology infrastructure of
defence systems. Whether motivated by curiosity, vindictiveness or greed,
electronic intruders cause inconvenience at best, and have the potential for
inflicting massive harm.

Sales and Investment Fraud

The use of the telephone for fraudulent sales pitches, deceptive
charitable solicitations, or bogus investment overtures is a billion dollar a
year industry in the United States. The intensification of commercial activity
in the United States and globally, combined with emerging communications
technologies, would seem to heighten the risk of sales fraud. Already
evidence is emerging of fraudulent sales and investment offers having been
communicated over computer networks and Bulletin Boards. Further
developments in electronic marketing will provide new opportunities for the
unscrupulous and new risks for the unwitting.

Illegal Interception of Information

 Developments in information provide new opportunities for electronic
eavesdropping. From activities as time-honoured as surveillance of an
unfaithful spouse, to the newest forms of political and industrial espionage,
information interception has increasing applications. Here again,
technological developments create new vulnerabilities. In New York, for
example, two individuals recently used a sophisticated scanning device to
pick-up some 80,000 cellular telephone numbers from motorists who drove
past their Brooklyn apartment. Had the two not been arrested, they could
have used the information to create cloned mobile telephones which could
have resulted in up to $ 100 million in illegal calls being made. The
electromagnetic signals emitted by a computer may themselves be
intercepted. Cables may act as broadcast antennas. Existing law does not
prevent the remote monitoring of computer radiation.

Electronic Funds Transfer Fraud

The proliferation of electronic funds transfer systems will enhance the
risk that such transactions may be intercepted and diverted. Existing
systems, such as Automated Teller Machines, and Electronic Funds Transfer
at Point of Sale technologies have already been the targets of fraudulent
activity and the development of stored value cards or smart cards, super
smart cards and optical memory cards will no doubt invite some individuals
to apply their talents to the challenge of electronic counterfeiting and
overcoming security access systems. Just as the simple telephone card can
be reprogrammed, smart cards are vulnerable to re-engineering. Credit card
details can be captured and used by unauthorised persons. The transfer of
funds from home between accounts and in payment of transactions will also
create vulnerabilities in terms of theft and fraud and the wide-scale
development of electronic money for use on the Internet will lead to further
opportunities for crime. What for the past quarter century has been loosely
described as “computer fraud” will have numerous new manifestations.
The above forms of illegality are not necessarily mutually exclusive, and
need not occur in isolation. Just as an armed robber might steal an
automobile to facilitate a quick geteway, so too can one steal information
services and use them for purposes of vandalism, fraud, or in furtherance of
a criminal conspiracy.
Communication of some forms of prohibited material (such as that
relating to the manufacture of drugs or explosive devices) may itself entail
criminal conspiracy. Even legitimate telemarketing may be regarded as
intrusive and offensive to some recipients. Intrusions and interceptions for
purposes of industrial espionage may also be accompanied by theft of
intellectual property.
In addition, a number of themes run through each of the forms of
illegality described above. Foremost of these are the technologies for
concealing the content of communications. Technologies of encryption can
limit access by law enforcement agents to communications carried out in
furtherance of a conspiracy, or to the dissemination of objectionable
materials between consenting parties.
Also important are technologies for concealing a communicator’s identity.
Electronic impersonation, colloquially termed “spoofing”, can be used in
furtherance of a variety of criminal activities, including fraud, criminal
conspiracy, harassment and vandalism. Technologies of anonymity further
complicate the task of identifying a suspect.

The Transnational implications of crime in cyberspace

International crime of a more conventional nature has proved to be a very
difficult challenge for law enforcement. Computer and telecommunications-
related crime poses even greater challenges. There may be lack of
agreement between authorities in different jurisdictions about whether or
not the activity in question is criminal at all, who has committed it, whether
in fact it has been committed, who has been victimised because of it, who
should investigate it and who should adjudicate and punish it. If an on-line
financial newsletter originating in the Bahamas contains fraudulent
speculation about the prospects of a company whose shares are traded on
the Australian Stock Exchange, where has the offence occurred.
Other issues which may complicate investigations entail the logistics of
search and seizure during real time, the sheer volume of material within
which incriminating evidence may be contained, and the encryption of
information, which may render it entirely inaccessible, or accessible only
after a massive application of description technology.

Counter Measures
It has long been recognised that the criminal justice system is a very
imperfect means of social.

Cyber Laws in India offences thereunder

With computer crime detection being a difficult task bringing the
criminals to book becomes a formidable challenge since the laws in many
countries have not kept pace with technology laws were originally designed
to protect tangible assets and may not be sufficient to guarantee the
protection of electronic bits of data. It is often difficult to attribute guilt
using the existing statutes since the act of trespassing into a system and
tampering with virtual data may not necessarily be specifically provided for
in law. However, this point is being increasingly recognized as an area of
concern and more and more countries are, therefore, enacting specific and
comprehensive legislation to cover the acts of computer criminals.
In India, the Information Technology Act, 2000 has been passed to
provide the legal framework for electronic commerce and is enable
electronic governance in the country. This in the long awaited cyber law
legistation in India.
The Information Technology Act, 2000 also seeks to make consequential
amendments in the Indian Penal Code, 1860 and the Indian Evidence Act,
1872. This act applies to the whole of India and also to any offence or
contravention thereunder commutted outside India by any person.

Cyber Offences
In the Information Technology Act, 2000 (As amended 2009), these are
the following offences—
Section 65 – Tampering with Computer source documents.
Section 66 – Computer related offences.
Section 66A – Sending offensive messages through communication
service, etc.
Section 66B – Punishment for dishonestly receiving stolen
computer resource or communication device.
Section 66C – Identity theft.
Section 66D – Cheating by personation by using computer
resources.
Section 66E – Violation of privacy.
Section 66F – Cyber terrorism.
Section 67 – Publishing or transmitting obscene material in electronic
form.
Section 67A – Publishing or transmitting of material containing
sexually explicit act, etc., in electronic form.
Section 67B – Publishing or transmitting of material depicting
children in sexually explicit act, etc., in electronic form.
Section 67C – Contravention of the provision by intermediary on
preservation and retention of information.
 Section 68 – Failing to comply the order given by controller by any
person.
Section 69 – Failing to assist the authority/agency on interception or
monitoring or decryption of any information through any
computer resource.
Section 69A – Failing to comply the directions for blocking for
public access of any information through any computer
resource by intermediary.
Section 69B – Contravening the provisions by intermediary to
authorise to monitor and collect traffic data or information
through any computer resource for cyber security.
Section 70 – Securing or attempting to secure access to protected
system by any person.
Section 71 – Penalty for misrepresentation for obtaining any licence or
E-signature certificate suppressing the material fact.
Section 72 – Penalty for breach of confidentiality and privacy.
Section 79 – Exemption from liability of Intermediary in certain cases.
Section 84B – Punishment for abetment of offences.
Section 84C – Punishment for Attempt to commit offences.
All the cyber crime investigation and searches must be done by any police
officer, not below the rank of a Inspector or any officer of the Central
Government or State Government authorized by the Central Government in
this behalf (Section 80 IT Act, 2000).
Section 67–Non-Compoundable Offences–First respondent has filed first
information alleging an offence punishable under section 419A I.P.C. and
also for an offence punishable under section 67 of the Information
Technology Act against her petitioner husband. Application moved by wife
for permission for withdrawing complaint and for quashing of Criminal
proceeding pending against spouse–Petitioner submit that their marriage has
been dissolved by a decree of divorce and they are living separately and she
has no issues and she is not interested in prosecuting the case–Proceeding
quashed under inherent powers of High Court under section 482 Cr.P.C.
Arun Raju v. Smt. Lydia Anjali, 2013 (7) RCR (Cri.) 1548.
Evidence Handling
The following guidelines prepared by the Computer Analysis and
Response Team of FBI Headquarters Lab, Washington DC are useful for
Investigators:
1. For wrapping the equipment or media, anti-static plastic material
should be used.
2. Before wrapping, all the equipment should be disconnected from
power and should be brought to room temperature.
3. Since the physical machine might not actually be part of the evidence,
a copy of the hard disk should be made first to conduct major part of
the investigation.
4. The Central Processing Unit (CPU) should be thoroughly checked and
the hard disk drive read/write heads should be secured with
appropriate software commands. The drive should not be removed from
the computer. The monitor and the CPU should be separately wrapped
after duly labelling each part including cables and ports. The key-
board should be separately packed. Any external or removable
hardware, floppy diskette devices should be wrapped separately after
proper labelling.
In case of printers and plotters, the dip switch settings should be noted
and the ribbon removed carefully as it may provide information on most
recent text printed. The modems and other coupling devices should be
disconnected from the telephone and label should be placed on both ends of
cables describing the connection to PC, printer, modem, etc. and then wrap
it as usual.
The magnetic media such as floppy diskettes, hard disks and others
should not be wrapped in plastic covers because of the risk of static electric
discharge. The label indicating ‘Keep away, from x-rays and magnetic fields’
should be affixed.
All manuals, hardware, notes, loose sheets, pads and other documents
should be handled with gloves to preserve latent finger prints for
examinations. Similarly, the printouts, listings should also be carefully
handled for latent fingerprint examinations and all these items can be
packed in cardboard boxes.

Search and Seizure

Conducting search in a computer environment is, no doubt, a new
challenge to the law enforcement officers. By way of adopting the new skills
and thought processes, the principles of search and seizure and the
procedure, should be adopted. The assistance of expert to the investigating
officer is essential in the process of search and seizure of an electronic
device like computer.

Preliminary Preparation
Before taking actual search, preliminary preparation is necessary. At
first, the investigating officer must clear in his mind about three things–(1)
the kind of search environment and other concerns about, (2) where to
conduct the examination of evidence, and (3) when the search is to be
conducted.

Search Environments
The search is to be conducted depends upon how the computers are
connected and what function they perform. The search site may comprise any
one or a combination of the following:
(i) Stand above computers: A computer, ordinarily comprises of a
central processing unit (CPU) as input device (such as keyboard), an
output device (such as monitor or printer). It may also be having
additional devices for input, output or storage. Stand above computer
 means that it is self-contained and is not directly connected to
another computer. It has its own operating system. Example Desktop
personal computer. In such stand above computer evidence will be
found in one place.
(ii) Networks: When two or more computers are electronically connected,
i.e., as a network, the resources of all the attached computers
constitute as a whole. So, the evidence may not found at one place. It
may be found almost any where in the network.
(iii) Mainframes: In this type of environment, many terminals are attached
is a large computer. There terminals do not have ability to process
information. All of that is done at the mainframe. It processes, prints,
stores and directs information to terminals. It is the solitary and
central “brain” in the system.

Searching Place
The examination of electronic evidence should be conducted only in two
places:
(1) at the place where it is found, and
(2) at the laboratory.

Timing
When the search is to be conducted, it has to be decided upon two
factors:
(a) states of the computer system, and
(b) presence or absence of particular persons.
Late night or early morning will be ideal to undertake the search, as the
computer are likely to be found either down or engaged in off-line functions.

Actual search
After obtaining the search warrant, the first duty of the law enforcement
officer is to secure a scene, i.e., take control of location and persons therein
for several reasons after entering upon the location. After securing the scene
from physical and environmental threats–separate people from computers,
and determine if any evidence is at immediate risk. Close-up photography of
all connections between individual pieces of hardware is required.
Once the above tasks is completed, it is important to establish a stable
working environment and Investigating Officer may begin the actual search
besides allowing to lift the finger prints from each computer components by
the experts, if necessary should be marked as to where cables are connected.
Either a descriptive (i.e., LPT 1 Serial port, monitor connector) or numerical
(i.e. Port 1, connector 1) labelling system may be used.
Once all of the documentation of the system is complete, disassembling
can begin. Where there are multiple computer systems, it is important to
keep items from one system separate from others. It is necessary to handle
the computer equipment gently.

Determine Computer Environment

Inspection of scene of search should identify at least the following
minimum:
1. Number of CPUs
2. Type of CPUs
3. Location of CPUs and peripherals
4. Type and Typology of network
5. Network operating system
6. Size and nature of storage media
7. Existence of back up media
On Scene Examination
Depending on the legal, practical and logistical concerns present, it may
be necessary to conduct an examination of the evidence on site. Conversely,
there is very large volume of material, a limited examination may need to be
conducted to eliminate non-pertinent machines and/or media. It is necessary
to seize those items which are likely to contain evidence.

Mark and Initial Items

Before disconnecting or disassembling any computer components,
everything should be labelled or tagged, initiated and dated. It is suggested
that items with a single Central Processing Unit be assigned a single item
number with appropriate sub-numbers. If the room in which the computer is
seized marked as “F”, a single computer might have marked as “F-5”. The
keyboard might be assigned on “F-5-1”, the monitor “F-5-2” and CPU as “F-5-
3” and so on. It is also necessary that cabling be documented precisely prior
to removal. This is accomplished by using tape and/or tags to mark each end.
A corrersponding tape or mark is placed on the device to which it is
connected.

Initial and dated on Seized Items

Each items should be initialled and dated by the seizing person. This will
ensure that if a single item is entered into evidence, there will be a solid
chain of custody.
It is more convenient to have a single person act as seizing agent for a
single machine. It will allow one person to authenticate the evidence rather
than several.
After completing the seizure, the Investigating Officer must follow the
guidelines and procedure as given in procedural law and departmental
orders while documentation.
Further, Investigating Officer must keep in mind the provisions of the
Criminal Procedure Code in relation to any entry, search or arrest made in
this regard. (See. Section 80 of I.T. Act, 2000)

Important Rulings
Physical presence in the court-rooms–According to section 273 of the Criminal
Procedure Code, 1973, the evidence in course of trial or other proceedings shall be
recorded in the presence of the accused. If the personal attendance of the accused has
been exempted, then the evidence shall be recorded in the presence of the pleader.
Hon’ble Supreme Court held that section 273 Cr.P.C. does not provide that at that time
of recording evidence witness/victim must remain present physically before the accused
so that accused may see him/her eye to eye. In this way, it is permissible to take
evidence through video conferencing under section 273 Cr.P.C. Sakhi v. Union of India,
2004 Cr.L.J. 2882 SC.
Evidence by Video conferring–Supreme Court held that it is permissible to record
the evidence by way of video conferencing, only when it is not possible to procure the
attendance of a witness without any amount of delay, inconvenience or expense; State
of Maharashtra v. Dr. P. Desia, AIR 2003 SC 2053.
Evidence-Protection of witness–It is the duty of the court to provide protection to the
witness/victim on one hand, so that witness/victim can give evidence without any fear
and on the other hand to protect the interests of the accused and thus ensure a fair trial
also. From this perspective, it is quite possible that the accused may not see the
witness/victim, face to face. It is true that the accused has no right to compel face to
face presence of witness/victim but it is equally not dishonest to say that he has the
right to hear the voice of the victim/witness clearly and known what is being deposed
against him. Zahira v. State of Gujarat, AIR 2004 SC 3114.
Tape and Video recording admissible–The tape and video records can only be used
as corroborative, which needs to be supported that the tape records and video records
can only be used as corroborative evidence, which needs to be supported by an
independent testimony. R.K. Malkani v. State of Maharashtra, AIR 1973 SC 157.
 Tape recording conversation–The tape recorded conversation could only be relied
upon a corroborative evidence of conversation deposed by any of the parties of the
conversation. In the absence of any such corroborative evidence the tape is not proper
evidence and could not be relied upon. Mahabir Prasad v. Surinder Kaur, AIR 1982 SC
1043.
Tape and video records–Tape and video records can only be used as corroborative
evidence, which need to be supported that the tape records and video records can only
be used as corroborative evidence which needs to be supported by an independent
testimony. Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Others, AIR
1975 SC.
Tape and Video records–Tape recording can be legal evidence by way of
corroborating the statement of a person who deposed that he overhead the conversation
between the two persons and what they actually stated has been tape recorded. Weight
to be given to such evidence will depend on other factors which may be established in a
particular case. R.K. Malkani v. State of Maharashtra, AIR 1973 SC 157.
Tape & Video records–The time and place and accuracy of the recording must be
proved by a competent witness and the voices must be properly identified. One of the
features of magnetic tape recording is the ability to erase and reuse the recording
medium. Because of this facility of erasure and re-use, the evidence must be received
with caution. The court must be satisfied beyond reasonable doubt that the record has
not been tempered with. Yusuf Ali Nagree v. State of Maharashtra, AIR 1968 SC 147.
Admissiblity of electronic re-recordable evidence–The Apex Court had decided on
the admissibility of electronic re-recordable evidence and had cited from Halsburg’s
law, that the record and tape recording are admissible in witness a resgestae and can
only be relied upon for corroborating and contradicting the evidence subject to the
following conditions:—
(a) Voice of the speaker must be identified by the maker of the record as well as by
other people recognizing his voice.
(b) Accuracy of the tape-recorded evidence must be proved by the maker of the
record by strict evidence.
(c) There must be no possibility of tampering with or erasure of any part of tape-
recorded evidence, otherwise it would be in admissible as evidence.
(d) The recording must be carefully sealed and kept in a safe or official custody.
Ram Singh v. Ram Singh, AIR 1986 SC 3.
Tape and Video evidence–The authenticity of the video and audio recording has not
been certified by forensic laboratory and therefore not admissible. Mahendra Singh v.
Gulab, AIR 2005 SC 2575.
Expert opinion on handwriting or typewriting–The Apex Court held that
‘handwriting’ in section 45 of the Evidence Act can be construed to include
“typewriting”. In many cases the words “notice in writing” in section 138 of the
Negotiable Instrument Act, were construed to include a notice by fax. State of Punjab v.
Amritsar Beverage Ltd., AIR 2006 SC 2820.
Audio-Video safeguards–There was a legal proceedings alleging infringement of
copyright were between an Indian citizen and a US Company based in California. The
issue involved in the case was with regard to examination of witnesses in USA either by
way of commissions or by way of Audio-Video link. The Karnataka High Court while
permitting recording of evidence by use of Audio-Video link held that Audio-Video link is
a technology developed by electronic media to avoid the physical presence and to avoid
the loss in [Link] is a speedy medium/method evolved for the purpose of speedy
decision. Even in Audio-Video link party is definitely present in person and his presence
to reflected on the screen. The Court laid down certain safeguards for this purpose.
These are as under:
(a) Before a witness is examined in terms of the Audio-Video link, witness is to file
an affidavit or undertaking duly verified before a notary or a judge that the
person who is shown as a witness is the same person as who is going to depose
on the screen. A copy is to be made available to other side.
 (b) The person who examines the witness on the screen is also to file an
affidavit/undertaking before examining the witness with a copy to the other side
with regard to identification.
(c) The witness should not plead any inconvenience on account of time difference
between India & USA.
(d) The witness has to be examined during working hours of Indian Courts. Oath is
to be administered through the media.
(e) Before examination of witness, a set of plaint, written statement and other
documents must be sent to the witness so that the witness has acquaintance with
the documents and an acknowledgement is to be filed before the court in that
regard.
(f) Learned Judge is to record such remarks as is material regarding the demur of
the witness while on the screen.
(g) Learned Judge must note the objections raised during recording of witness and
to decide the same at the time of argument.
(h) After recording the evidence, the same is to be sent to the witness and his
signature is to be obtained in the presence of a Notary Public and thereafter it
forms part of the suit proceedings.
(i) The visual is to be recorded and the record would be at both ends. The witness
also is to be alone at the time of video conference and notary is to certify to this
effect. Twentieth Century Fox Film Corporation v. NRI Film Production
Associates, AIR 2003 Ker. 148.
ATM is not Computer–ATM’s cannot be considered as “Computer terminals” but can
be considered as “electronic goods”. Pootholi Damodaran Nain v. Babu, 2005(2) KLT
707 (Ker.).
Computer Programme–Computer programme means a set of instructions expressed
in words, codes, schemes or in any other form, including a machine, readable medium,
capable of causing a computer to perform a particular task or achieve a particular
result. Tata Consulting Services v. State of Andhra Pradesh, AIR 2005 SC 371.
Computer–Computer includes any electronic or similar device having information
processing capabilities. Tata Consulting Services v. State of Andhra Pradesh, AIR 2005
SC 371.
Section 65–Fabrication of Electronic record–There was a complaint against the
editor of newspaper for publication of a scandalous news item with an object to
stigmatize image of particular minister. The editor showed inability in providing original
CD on basis of which newspaper reporting was done. A copy of CD as provided allegedly
by an employee of the newspaper on anaylsis was found interpolated. Fabrication of the
electronic record contained on the CD Clip Disc continuities out broken AV footage, post
production editing. It was held that bare perusal of the contents of the FIR and the
factual aspect, the FIR at its face value cannot said to be false & prima facie constitute
offence and make out the case against the accused. Bhim Sen Garg v. State of
Rajasthan, 2006 Cr.L.J. 3643 (Raj.).
Section 65–Tampering of Reliance handset–In the instant case cell phone handsets
with CDM-A technology supplied by Reliance India Communication Ltd. to its
subscribers under a scheme these model handsets are to be exclusively used by
Reliance India Mobile Ltd. only. Tata Indicom staff tampering with pre-programmed
CDM-A digital handsets belonging to Reliance Customer and activating with their
network. Allegations that 63 customers belonging to Reliance Indicomm so far migrated
to TATA Indicomm by illegal means. It was held when the Electronic 32-bit Number
(ESN) is altered, offence under section 65 of IT Act, is attracted. Every cell phone
operator is required to obtain SID from the licensor Government of India. Further ESN
is permanent part of the phone whereas MIN and SID are programmed into phone when
one purchases a service plan and have the phone activity. Syed Asifuddin & others v.
State of Andhra Pradesh, 2005 Cr. L.J. 4314.
Section 65–In this case, M/s Kensoft Infotech Limited has developed application
software for the first petitioner company i.e. M/s Sundaram B.N.P. Paribas Home
Finance Ltd. and was providing annual maintenance support to the said software.
During the renewal of AMC, the said KENSOFT. Without the knowledge of the first
petitioner company has introduced that the software is licensed to the first petitioner
company on objection, the said clause was removed in the annual maintenance contract.
Therefore, the relationship in respect of the development of software on work on hire
basis. Due to frequent disruption of this software, the first petitioner company has
decided to migrate to a more efficient integrated application software developed by
Sundaram Infotech Solutions. The KENSOFT has filed a case of injunction before the
Crime Branch, Mumbai Police for offences under section 406 & 420 IPC besides the
provisions of the IT Act and Copyright Act. Offences maintained. M/s Sundaram BNP
Paribas Home v. State of Tamil Nadu, Cr.L.J. 2011 Mad.
Section 65–In order to know whether a particular computer source code has been
tampered or not the first thing that is required to be done is to obtain the original
version of the Computer Source Code and the alleged tampered version of Computer
Source Code. So that by comparison of the two, it could be ascertained whether both
the versions are same or not. In the instant matter, this exercise has not been
performed by the CBI which further exposes the ignominious investigation of the case
by CBI. Ram Shanker Singh v. State of U.P., Cr.L.J. 2017 (All.).
Section 65–Accused working as project co-ordinator in a computer software
company by name “soft solution” owned by the complainant senthil kumar committed an
offence of hacking of hard disk owned by the complainant and used the source code for
his personal gains. Based on the complaint, a case has been registered under section 65
of IT Act read with 408 IPC. During the course of investigation, the Hard Disk used by
the complainant and other persons/accused for the computerization of the bank records
were seized and subjected to digital of the complainant’s banking software by these
persons offence maintained. P. Abdul Razak v. State, Cr.L.J. 2017 (TN).
Section 65–The applicant, CEO cum director of one xaited Information System Pvt.
Ltd. incorporated under Companies Act had approached the court praying for exercise
of its inherent jurisdiction for setting aside the criminal case registered with cyber code
under sections 43, 65 & 66 of the IT Act read with 420/34 IPC, on inspection, it was
revealed that someone had made changes in the instructions of source code of server.
Provisioning Application (SP) in such a way that. The servers Provisioning Application of
CBCRM system would stop working from 16-7-2017. In connection with same when
inspection of the logs on firewall of the said server was made, it was found that the said
Internet activity of 25.6.2017 had occurred from IP address of M/s Tech Mahindra Ltd.
who were previously giving service of the keeping support and maintenance of CBCRM
system. Further, the IP Addresses were belongs to Prasanna Salimath and Rajesh
Sharma of M/s Tech. Mahendra Ltd. who were doing the work through a distant mode
(VPN). Court held, prima facie case made out and no quash of FIR. Ajay Murlidhar
Batheja v. State of Maharashtra, 2018 Cr.L.J. (Mah.).
Section 66–In this case, the accused had sent obscene messages and calls to the e-
mail ID of the complainant and threatened her with dire consequences of Life and
thereby committed the offence under sections 354D & 506 IPC and under section 66 of
the IT Act. It was revealed that the complainant knows the accused person for the last
four years and due to wrong impression she had filed the complaint against the accused
& police had conducted the mahazar. Later, she turned hostile. Allegations/Charge not
proved. State by Nagadi Road v. Fairoz Akhtar, 2018 Cr. L.J. (Kar.).
Section 66–In this instant case, hacking was perpetrated on the complainant’s
computer system only which said to have data pertaining to its client. It was submitted
that on some of the websites. These data are already available. The parties had filed
civil suits also in respect of the same dispute. The entire dispute between the parties
was resolved by amicable settlements. The complaint does not contain any essential
ingredient for maintaining criminal proceedings for alleged offence. The disputes
appears to be private in nature. Held, no case maintanable. Nirav Navinbhai Shah
Others v. State of Gujarat, Cr. L.J. 2006 (Guj.).



INDEX
Absconder.............................416
Accomplice...........................696
– who is..........................................697
– as witness...................................698
– evidentiary value of .................698
– types of corroborative evidence 699
Accused...................................66
– FIR..................................................66
– as witness...................................751
– when not challanged by police 386
– interview and dieting ..............453
– remand of...................................449
– surrender/bail...........................485
– signature on memo...................553
– how to prove identity..............632
– notice u/s 91 Cr.P.C. ...............567
– medical exam by.......................760
– statement u/s 313 .....................751
Action on spot.....................829
Admission.............................722
– before police..............................722
Alibi.......................................661
– nature of.....................................661
– burden of Proof.........................663
Anticipatory Bail.................458
Approver...............................679
– who is..........................................679
– when and why............................679
– precautions................................681
– who can tender pardon ...........682
– procedure...................................682
– illegality......................................686
– acceptance of pardon..............686
– examination of...........................686
– custody and bail........................687
– if unconstitutional....................688
– status of......................................688
– remand to custody....................689
– value of statement ..................689
Arrest....................................342
– on written order u/s 55 CrPC 344
– on ground of..............................344
– on defective warrant...............345
– difference between sec. 41 and 55 353
– presumption u/s 114(e) Evidence Act 349
– without warrant........................349
– by officer in non-cognizable cases 353
– on reasonable ground ..............353
– effected ......................................355
– by a private persons ................355
– by magistrate.............................356
– be deferred.................................356
– re-arrest of accused .................356
– is handcuffing afterways necessary 357
– torture in police custody ........358
– on telegram................................362
– of MP & MLA.............................363
– judicial officers.........................363
– guidelines...................................364
– procedure...................................370
Arrest without warrant ......349
– by police officer........................349
– by SHO........................................352
Assistance.............................855
– by public.....................................855
Bad Character............................650
– proof of previous conviction ..650
– Proof of antecedents ................650
Bail...............................................455
– in bailable cases.......................455
– cancellation of bail..................456
– anticipatory ..............................458
– blanket........................................460
– when anticipatory granted .....460
– jurisdiction to grant ................472
– u/s 437 Cr.P.C ..........................474
– on following grounds by High Court 481
– cancelled on following grounds by
supreme court...........................482
– cases requiring identification 482
– in Non-bailable cases ..............482
– surrender in Court...................485
– amount and nature of surety 485
– condition in non-bailable offences 486
– revision against order of refusing 487
– special provisions.....................487
– by High Court and Session Court 488
– power to Cancel........................489
– of Approver................................505
– after conviction u/s 389(3) Cr.P.C 506
– during pendency of appeal .....506
– cancellation of bond at the time of
commitment...............................509
– by police.....................................510
– direction while taking bond ...512
– forfeiture....................................512
– in bride burning cases ............232
Blood.....................................867
– location, search, test .....867, 868
Bride Burning......................214
– offences u/s 306 498A .............221
– Bail in..........................................232
Burnt documents................875
– secret documents.....................876
– inks...............................................876
– do's and don't............................876
Case Diary............................331
– definition....................................331
– some points................................331
– use of...........................................333
– can police officer be compelled
to refresh his memory.............337
– use of case diary in court .......338
– by prosecution...........................338
– by defence..................................338
– effect of irregularity in investigation 338
– not authorised to investigate 340
Charge..............................1, 156
– of murder....................................204
– cognizable offence........................2
Challan or Final Report 372, 373
– who can send chargesheet .....372
– magistrate not direct the police to
send chargesheet ......................376
– chargesheet................................379
– incomplete chargesheet ..........380
– after submission of chargesheet 383
 – expert report.............................385
– fresh challan..............................386
– accused not challan by police 386
– can the session court add accused 388
– summonning of accused not named
in FIR...........................................390
– can court amalgamate.............398
– additional list of witnesses ....400
– sanction for prosecution.........401
– delay in investigation..............413
Confession............................720
– definition....................................720
– admissibility..............................722
– to police officer........................722
– meaning of police officer .......723
– admission-difference ...............725
– extra judicial.............................726
– judicial........................................727
– person is authority ...................730
– precautions for magistrate ....741
– evidentiary value......................743
– details in.....................................744
– value of extra judicial .............744
– value of retracted.....................744
– corroboration if necessary .....750
Complaint...............................74
– not be filed...................................74
– under section 182.......................75
– which section 211.......................75
– who should lodge........................76
– magistrate can order to investigate 120
– u/s 202 Cr.P.C...........................122
– by a private person ..................124
Conviction...............................63
– Solitary witness..........................63
Copies....................................327
– of statement in case diary .....326
– of Fir medical reports .............327
Copyright..............................885
– ownership and assignment .....886
– licences.......................................887
– what is.........................................887
– duration......................................887
– non voluntary.............................888
– compulsory.................................888
– work for hire..............................889
– infrigement ...............................889
– literary........................................891
– dramatic......................................891
– musical........................................891
– artistic work..............................891
– computer programme..............892
– sound recording........................892
– cinematograph...........................893
– factor consider in infrigement 893
– importation of infringing copies 894
– remedies.....................................895
– action...........................................895
– criminal proceeding.................895
– seizure.........................................896
– who may file a complaint .......897
Cyber Crime Investigation 939
– what is.........................................939
– investigation..............................939
 – steps for......................................940
– handling labeling and packing 944
– don't, do......................................944
– examination of evidence .........946
– stages in commission of ..........947
– who commits..............................948
– techniques of committing .......948
– varieties of.................................950
– theft of information.................951
– criminal conspiracies..............951
– information piracy....................951
– counterfeiting............................951
– forgery.........................................951
– offensive material....................952
– money laundering.....................952
– electronic vandalism ...............953
– terrorism.....................................953
– investment fraud......................953
– illegal interception of information 953
– electronic funds transfer ........953
– transnational implication of crime 954
– counter measures offences ....955
– evidence handling....................957
– search..........................................957
– seizure.........................................957
– preliminary preparation .........957
– searching place.........................958
– timing..........................................958
– determine computer environment 959
– on scene examination..............959
– mark and intial items..............959
– initial and dated on seized items 959
Delay........................................44
– FIR..................................................44
– investigation................................99
– in challan....................................413
Digestion..............................777
– to determine time.....................777
Disinterment of body.........776
DNA, Finger Printing.........878
Dying Declaration...............782
– admissibility..............................782
– evidentiary value......................783
– oral and written........................788
– who to record in FIR...............806
– whether relevant in other death 806
– whether relevant in suicides . 806
Expert Report......................383
Effect of Denial...................674
False FIR.................................73
– action against informant ..........74
– complaint under sec. 182, 211 74
– who lodge complaint..................76
Forfeiture.............................512
– bail bond.....................................513
First Information Report .......1
– Object............................................42
– definition.........................................1
– what is.............................................1
– who can lodge................................4
– who is write....................................7
– jurisdiction...................................12
– suo-moto registration................14
 – report to be given to S.H.O. ....14
– how to record...............................14
– omission of names of accused . 17
– statutory duty to be register ...17
– do’s & don’ts in registering .....17
– supply of copy..............................18
– refusing to sign...........................18
– test of FIR.....................................19
– to be on definite information . .19
– in conspiracy cases ....................21
– in corruption cases.....................22
– in murder cases...........................22
– authentic information................22
– on telegram..................................23
– on telephone................................23
– telephonic message ....................23
– independent to each other .......25
– procedure......................................28
– special report..............................29
– when written report received ..34
– if an informant refused to sign 34
– if a police office refused to write 34
– essential........................................35
– intrance of....................................36
– description of culprits ...............37
– description....................................41
– description of Articles ...............41
– blind ..............................................44
– delay in lodging...........................44
– effect of delay..............................45
– delay fatal.....................................50
– delay explained...........................50
– guarantee of Truth.....................53
– prompt FIR...................................55
– mentioned the witnesses ..........56
– solitary witnesses .......................63
– two version and challan ............65
– by accused....................................66
– essential to tender in evidence 68
– informant must be produced ....69
– must be proved............................69
– where to write ............................69
– use..................................................70
– when substantive evidence ......71
– public document..........................72
– statement if previleged ............72
– false FIR........................................73
Finger print.........................858
– history.........................................859
– kinds............................................861
– methods.......................................862
– comparison.................................863
Footprints.............................864
– importance.................................876
Forensic Ballistics..............876
Hair and Fibres...................870
– evidentary value.......................870
– how to Collect...........................870
– method.........................................871
Hand cuffing........................357
Identification.......................610
– importance and value..............610
– of accused on bail ....................620
– by police.....................................620
 – who can hold..............................625
– precautions................................625
– right of accused to demand . . .626
– special features........................630
– statement of the witness ........632
– refusal to join............................635
– appreciation...............................636
– dock..............................................635
– second parade...........................639
– animal & articles......................640
– list of stolen property .............642
– of sealed sample and articles 647
– bad Character and previous convicts 650
– Criminal Procedure Identification
(Act), 2022.................................653
Information of Police.........856
Inquest Report....................771
Intellectual Property.........884
– copyright.....................................885
– trade mark..................................919
– patents........................................932
Investigation when to start 77, 86
– in non-cognizable........................81
– in cognizable................................83
– when start.....................................86
– court can interfere.....................87
– quashing of...................................90
– quashing of FIR...........................92
– delay in..........................................99
– curbs on delay...........................100
– can police reopen u/s 173 ......108
– in cases requires sanction .....111
– u/s 156 (3)................................. 112
– can magistrate order for ........120
– is police empowered ................122
– should magistrate withdraw u/s 202 124
– procedure...................................125
– order u/s 159.............................126
– can investigation be dispensed with 126
Investigation ......................129
– what is.........................................129
– custodial torture.......................130
– essential qualities of I.O. .......131
– who to start................................133
– defective.....................................135
– territorial jurisdiction .............136
– steps for .....................................138
– site inspection...........................138
– scene of Crime..........................140
– reaching the spot.....................141
– important cases........................146
– two right plan prepared by I.O. 147
– relevant for contradiction ......148
– inspection by Court..................148
– advantage of plan.....................148
Investigation in murder cases 237
– by poisoining.............................237
– circumstantial evidence ..........243
– corpus delicti.............................259
– motive..........................................265
– extra judicial confession ........272
– evidence......................................277
– importance of injuries .............280
– injured witness..........................282
 – injured accused.........................285
Judicial Officers..................363
– arrest...........................................363
Law of Posession.................516
– joint possession........................519
– how to prove animus................520
– wife or husband........................522
– onus of Proof.............................524
– temporary possession is
not an offence............................524
– presumption...............................525
– deceased property unaccounted
by accused..................................529
– challan in 411 IPC Cases ........531
Lie Detector, Voice Print . .879
List of stolen property .......642
Murder..................................150
– definition....................................150
– suicide.........................................151
– present view..............................153
– difference between suicide
and murder.................................154
– previous conduct of deceased 154
– site of injury..............................154
– direction of wounds .................155
– other circumstances ................156
– faticide infaticide.....................157
– when it is....................................161
– definition sec 300 ..........161, 164
– when it is not.............................171
– when it is hurt only ..................188
– various liability for..................191
– common intention.....................191
– when no common intention....196
– when it is....................................200
– common object..........................201
– extent of liability ......................202
– self defence................................209
– burden of proof.........................212
– trial..............................................213
– bride burning.............................214
– dowry death...............................216
– offences u/s 306, 498A ............221
– bail in bride burning cases ....232
Medical expert.....................765
Medical evidence................758
– importance and value..............758
– injury statement.......................760
– weapon........................................763
– prosecutor must show.............764
– inquest report...........................771
– post mortem examination.......771
Non Cognizable.....................79
– Sanction........................................79
– pre requisites..............................79
– power of police in ......................80
– investigation without sanction 81
Onus of Proof.......................524
– possession..................................524
Patents..................................932
– inventions not patentable ......932
– how to obtain.............................933
– procedure...................................933
 – term of.........................................934
– grounds of opposition ..............934
– register of...................................935
– transfer of rights ......................935
– assignments...............................935
– transmission..............................936
– licences.......................................936
– infrigement................................936
– action for infrigement ............936
– relief against infringement ....936
– offences and penalties ............937
Photography.........................878
Police Custody.....................358
– torture.........................................358
Post Mortem examination . 774
Production............................569
– at pointing out of accused .....572
Proclaimed offender ........416
– challan u/s 299 CrPC ...............423
Previous Convict.................650
Preventive Measures .......832
– Sec. 106 Cr.P.C .........................832
– Sec. 107 Cr.P.C .........................833
– bail in..........................................841
– Sec. 108 Cr.P.C .........................841
– Sec. 109 Cr.P.C .........................841
– Who can arrest..........................842
– admission before police officer 843
– Sec. 110 Cr.P.C ........................843
– Sec. 133 Cr.P.C ........................848
– Sec. 144 Cr.P.C .........................850
– action u/s 145 Cr.P.C ..............851
– action u/s 149 Cr.P.C ..............853
– action under section 151 Cr.P.C. 853
– action u/s 152 Cr.P.C .............853
– dharna/Picket............................854
Rearrest of accused............356
Recovery memo...................554
– suggestion in writing..............553
– signature of accused ...............553
– confession or admission .........555
– use of...........................................555
– place of.......................................555
– effect of.......................................556
Refusal to write FIR.............34
Remand.................................425
– after 60/90 days of arrest ......429
– cancellation of bail granted
u/s 167(2)...................................433
– person arrested under Custom Act 441
– of a convict................................442
– who can apply............................442
– how 24 hours are to be counted 442
– should accused produced
before magistrate.....................444
– ground of....................................444
– no remand on arrest u/s 41 . . .447
– remand on refused to ..............448
– before whom to be produced . 448
– not to produce before
witness magistrate...................449
– application when in judicial
custody of accused ...................449
 – paper sent with application ...450
– surrender of accused in court 452
– useful points..............................452
– interviewer and dieting of accused 453
Rioting..................................809
– legal requirements ...................809
– extent of liability ......................812
Scientific Techniques........858
– finger print.................................858
– foot print....................................864
– blood............................................867
– hair and fibres...........................870
– document & forgeries ..............872
– hand writing..............................872
– burnt document.........................875
– forensic ballistics.....................876
– photography...............................878
– DNA finger print.......................878
– lie-detector, voice print ..........879
– in burglary.................................879
– in road accidents......................880
– in Arson.......................................881
– in poisoining..............................882
Searches...............................535
– u/s 165, 166......................535, 536
– warrants Power of....................567
– by officer in charge .................536
– by subordinates.........................539
– darabandi....................................542
– formalities of.............................543
– police evidence.........................547
– locality of....................................544
– respectability............................543
– effect of irregular & illegal ...556
– entry for......................................551
– seizure list–effect of sec. 100 545
– witnesses....................................547
– occupant’s presence ................551
– himself be search before ........551
– member watch the....................552
– articles be recovered ..............552
– of person.....................................563
– of woman.....................................563
– if unconstitutional....................567
– for letters & telegrams ...........568
– seizure under L & SL ...............561
– illegal...........................................556
– list of Articles............................552
– memo............................................553
– notice u/s 91 CrPC ...................567
Special Report.......................29
– FIR..................................................29
Summoning of witnesses...289
– definition 160 CrPC .................289
– police officer can call witnesses 289
– interrogation....................292, 307
– written statement of ................294
– not examining witnesses during
investigation effect of.............298
– witnesses examined with delay 299
– how to record statement ........299
– two examinations......................302
– should I.O. get statement u/s 161 304
– some important deductions . . .304
 – can accused refused to answer 309
– can accused be interrogated during
judicial custody.........................310
– evidence of dog tracking .......312
Statement before Police....313
– use of...........................................313
– method.........................................317
– condradict of witnesses ..........318
– effect of contradiction ............321
– how to prove..............................321
– value of contradiction.............322
– effect of ommission ..................323
– investigation admissible in evidence 324
– exception....................................325
– statement of accused during
investigation..............................325
– recovered by police ..................326
Section 27 Statement.........576
– admissibility..............................576
– when concealed.........................578
– recovery how.............................579
– fact discovered..........................581
– custody essential......................584
– accused of...................................584
– how to record ..................584, 602
– where to record........................589
– importance of P.W.’s...............590
– discovery must follow ..............592
– joint statement..........................599
– under compulsion.....................605
– evidentiary value......................608
Specimen..............................654
– of thumb......................................654
– of hand writing..........................655
– of hair..........................................656
– of blood.......................................656
– of semen, urine etc. .................657
Statement u/s 164..............667
– procedure...................................668
– value of.......................................672
– copy of.........................................674
– use of...........................................675
– witness resiles from.................677
Tourture................................358
– in police custody.......................358
Trade Mark...........................919
– registration................................920
– what are registrable................920
– what are good............................920
– duration and renewal of registration 921
– not registrable..........................921
– assignment and transmission 921
– registered user..........................922
– infringement, threat and label 922
– rights conferred by registration 922
– infringement .............................923
– action for infringement...........930
Traps............................703, 704
– law with regard of offences of
corruption...................................703
– who can organize......................704
– in following cases.....................704
– status of a decoy witness .......706
– deductions from the above one 708
 – actual laying out of traps consists 714
– disability of magistrate to join 717
– is a panch witness....................718
– statement of accused ...............718
Unidentified dead body .....645
– murder investigation when recovered 646
Unlawful Assemblies..........829
– use of force................................829
– when.............................................829
Weapon of offence..............763
Witnesses.......................63, 706
– Solitory..........................................63
– Status of decoy 706