CRPC

CRIMINAL COURTS

Harbans Lal vs State of Haryana- Accused being tried at Court of Ambala, appeals in HC saying offence committed somewhere between rohtak and delhi so court of ambala has no jursdiction. HC dismiss appeal. SC says facts tell accussed smuggled goods from pakistan to bahadurgarh, high court. Prima facie must have passed through ambala. Thus jurisdiction valid. However court may transfer the case if appellant can prove tht trial in ambala highly inconvenient. S 183

Mohan Baitha vs. State of Bihar -

S 177 CrPC General rule for place of trial, but subject to specific exception

in different laws. The accussed had cliamed that in FIR and complaint filed, the offence was written to have been done in Jahanngarh in UP, but the magistrate had filed case in Bhagalpur, State of Bihar. There was no territorial  jurisdiction for the magistrate. Court said facts allow couurt to believe the offence committed under 304 B of IPC. The same same transa transacti ction on doctri doctrine ne depend dependant ant on facts, facts, and here here facts facts allow allow to believ believee nexus nexus betwe between en difere diferent nt circumstances thus allowing the court to apply S 220 of CrPC . Territorial jurisdiction nt exceeded.

CBI vs State of Rajasthan-

S 156(3) CrPC - Confers power on magistrate to order an “officer in charge of

police station” to investigate any cognizable case over over which Magistrate has jurisdiction – BUTBUT- Magistrate cannot direct a superior police officer to conduct the investigation , but if the superior officer conducts investigation suo moto or on direction of a superior officer, such investigation would be deemed to have been conducted by the officer in charge of the police station ---- S 36 CrPC only meant to supplement to supplement the powers of the officer in charge. Delhi Special Police Establishment Act ,1946 – S 5 & 6 – Do not confer power on Magistrate to direct CBI for investigation. Only SC under Art 32 &142 and HC under Art 226 have power to do so.

Standard Chartered Bank vs. Directorate of Enforcement-

Overuled the previous judgement of Assitant

Commissioner vs. Veliappa Textiles. Textiles. Just read the headnotes of module

POWERS AND FUNCTIONS OF POLICE

Nandini Satpathy vs. P.L. Dani -

S 160, 160 (1), 161, 161, 161 (1), 162 (2), (2), 240, 242 (1) and and 401 of Criminal Criminal

Procedure Code, Code, 1973, Art20 (3) and 22 (1) of Constitution of of India - no person person can be be compelled to be witness against himself - such ban operates in police interrogation also - police authorized to examine witness by virtue of

Section 161 - such authority does not extend to compel such witness to give testimony against himself - right of witness to keep silence extents to other matters also if it expose him to criminal charges in other cases - compelled testimonies cannot be admitted as potent evidence.

Bijoy Singh vs. State of Bihar-

S 154, 155 and 156, 157- Importance of FIR- Ad per 157, officer in chagre

required to forward a copy of FIR to magistrate , if there is a delay, it does not render the prosecution entire doubtful but would put the court on guard- Delay mst be reasonably explained- If no proper reasons for delay courts should minutely examine the facts to ensure there is no false implication of innocent victims. Facts here supported the conclusion that the delay in lodging a police report when the injured was admitted to hospital 100 mtrs away from it. Delay was to rope in innocents. As per 157, magistrate while receiving copy of FIR, should note the time as well as the date of receipt.

M.C. ABRAHAM vs. State of Maharashtra – 

S 41 (Arrest) and S 438 ( Anticipatory Bail) Mere rejection of

anticipatory bail application of a person no ground for arrsting him He may or may not be arrested depending on the facts and circumstances of other aspects of the case. S 156(3) , 169 , 173 , 190 –  When investigating ofiicer having regard to facts and circumstances considered arrest unnecessary, Highh Court, under Art 226, had no  jurisdiction to direct State to arrest those persons even though the case was still at the stage of investigation as that would amount to unjustiied interference with the investigation. HC also exceeded jurisdction in directing the investigating officer to submit a charge-sheet.

State of Himachal Pradesh vs Sree Kant Shekari –

S 154- Delay in lodging FIR of 6 months. Held in

offences like rape, delay in lodging FIR is not per say a mitigating factor if such delay can be explained satisfactorily. Here victim was a 14 year old girl, who after being ravished by her teacher did not disclose it to anyone due to threats of accused . Few days later , raped again. Victim complained of stomach ache. Mom her took to hospital. Pregnant. Girl reveals truth. Girls too tender and completey unaware abt the crime being committed against her. Court believed delay was due to satisfacry reasons.

PROSECUTORS – ROLE, DUTIES and FUNCTIONS

Abdul Karim vs State of Karnataka-

S 321 CrPC –  Veerappan abducted Rajkumar, demanded withdrawal of

framed charges against his men and him.Special PP under the insistence of State Govt submitted application for withdrawal from prosecution. Petition challenged it . Court saidPublic prosecutor should act only after satisfying himself about the need for withdrawal of prosecution. They should not simply follow the directions of the State government. The judge, before allowing the prosecution to be withdrawn, must satisfy himself that: 1. There is an application of mind by the PP. 2. Withdrawal of prosecution is in public interest. Court was not satisfied and considered withdrawal bad in law and against the process of justice

Banti vs State of M.P.-

S 226, 231, 161 of CrPC ------------ S 226, PP at liberty to state before the

court, that the witness might not support the prosecution, if believes so, or he could wait for their evidence and

then decide whether he needs to question them in support of prosecution. PP cannot be compelled to examine the witness for prosecution. S 231 – PP to produce evidence in support of prosecution and not against it. PP has choice whom he wants to examine in court if there are more than 1 witness and may inform the court of nt examining the rest. PP should examine those instead which are not related to victim and can limit them to 2 as per his discretion. PP should not produce a witness who'll be against prosecution, but if he does defence may cite him. S 161- Mere delay in examination of witnesses does not render prosecution case suspect. Defence can't have an advantage of delay, if court beieves its reason plausible.

Assistant Commissioner of Central Excise vs. SABNIFE Power System-

S 377 (2) , 24 (8) , 401

HC said under S 377 (2) , only Public Prosecutor could file an appeal for enhancement of sentence whereas appelant was a Special PP. SC said HC wrong. S 24 (8) empowers Central or State Govt to appoint SPP for a case or class of cases and such SPP would be PP for all purposes of Act. Also, in these facts, case was fit for revison petition under S 401 and the appellant should have been permitted to convert the appeal as a revision petition.

SB Shahane vs. State of Maharashtra-

S 25

, 24 --- Separation of prosecution agency from

investigating agency. Case where police prosecutors functioning under the control of Inspector general of Police as Assitant PP by a notification under S 25 issued by State Govt. Court said- Such APP could not be allowed to continue as personnel of Police Dept. State Govt directed to constitute a separate cadre of APP by creating a separate Prosecution Dept making its head directly responsible to Govt. A Police Prosecutor is not eligible for being appointed as APP, but since no such ques raised and Police Prosecutors appointed as APP for past 21 yrs, SC does not express opinion on that. Rule applicable only in Maharashtra. Police prosecutor continue to be in Kolkata

PROCESS TO COMPEL APPEARANCE and PRODUCTION OF THINGS State of Maharashtra vs. Tapas Neogy -

S 102 (1) ---------

Police officer's powe to cease property

 –  Conditions for such power – Bank account of accussed or his relation constitutes “property”.Magistrate said locker and contents not property but account was. HC said bank account can't be property. State appealed to the SC saying that the bank account was ‘property’ and since it was a joint account with his mother, she should be allowed to operate it. SC held that the account was property for the purposes of search & seizure.

MAINTENANCE OF PUBLIC ORDER AND TRANQUILITY Gulam Abbas v. St of UP- The entire basis of action under Section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquility which is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations. It would not be proper exercise of discretion on the part of the Executive

Magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor section of the community rather than prevent a large section more vociferous and militant.

Kachrulal Bhagirath Agarwal vs State of Maharashtra (Chilli Powder case) –

S 133 (1) (b) ,

S 144 ---

Provision deals with phyical comforts of community , and not with those acts which are not in themselves a nuisance but in course of which public nuisance is created. In order to bring a trade or occupation within the provision it must be shown that a large section is affected and interference with public comfort is considerable . Community cannot be taken to merely mean members of a residential house but rather residents of entire locality. Courts to determine on facts of each case. Procceding under this are in civil nature and not criminal. For 133 (b) Temporal nature of nuisance required, conduct of trade must be in praesenti and the danger should be imminent and the provision does not deal with potent nuisance. Provisions of Chapter X should be balanced between rights of all individuals and the chapter should not become a nuisance itself. Balance between, full enjoyment of property and free from nuisance of other. Duty of Magistrate to conduct enquiry and decide applicabilty of 133 which is a specific provision depending on circumstances and fulfillment of conditions while 144 is more general and nuisance under it is absolute.

State of Karnataka vs. Praveen Bhai Togadia :

S 144 (1) & (2) , S 20 ----- S 144 - Administration has

a duty while permitting any meeting to find out who the speakers and the participants are, taking into account their past order and antecedents and on its basis, prohibitory orders may be passed to preserve public tranquilty by even temprarily overriding private rights in view of public interest patently inbuilt in S 144. Lenghty considerations of pros and cons and prior service of ntice to persons concerned may be waived in interests of swift and effective actions . Judicial Review - Courts normally not to interfer with matters relating law and order. Administrative authorities are in best position to assess and handle the situation and their decision may involve subjectivity. Facts would determine validity and no fast guidelines. Interference by courts as a matter of course and as though adjudicating an appeal will defeat the purpose of legislation Provisions of CrPC suffcient inbuilt safeguards to control and check any unwarrated exercise or abuse. S 20 – Appointment of ADM which is diff and distinct from DM. Under 20(2) ADM may exercise all powers of Dmthough the two authorities cannot be equated. Person appointed as ADM empowered to act under S 144 like a DM . Person challenging authority of ADM has to provide evidence. However, administration also required to do the same to prove person is ADM under order.

Shantikumar Panda vs Shakuntala Devi :

S 145 , 146 , 145 (6) , 146(1) -

Under 145 –  Magistrate has

power if he believes from a report or info that a dispute is likely to cause breach of peace, to call parties to his court to solve dispute. There was a dispute between K aand appellant related to a property and when appellant filed a complainat, SDM asked appellant and K to attend his court fearing any breeach peace. The respondent who was in actual possession pleaded to be a party in the dispute so she may claim her possession. But SDM didnt allow that and disposed of the dispute givind possession to appellant. BUT- Competent court like Civil Court not bound by finding of Magstrate which he gives under the power of 145, it has value of only an evidence. Order passed by

145 (6) means- Eviction of party is successful

competent court supersedes order of Magistrate under 145 /146.

 just before Magistrate, and the adjudication of title actually lies with a competent court, only what competent court decides would be final. Party unsuccessful before magistrate may may dispute the correctness of finding before court. 146 (1)- Competent court does not mean just Civil Court, but court having jurisdictional competence to decide title of parties as to entitlement and possession. Order under 145,146  just temporal and subject to

adjuducation by coompetent court.

PREVENTIVE ACTION -- State of Punjab vs. Lal Chand –  Police had power under S 149 CrPC 1898 to arrest or oyerpose for the purpose of preventing any cognizable offence. But the facts failed to justify such power under 149 and 127/128. Such power can't be absolute but ther should be enough justifiable reasons for it.

INITIATION OF PROCEEDINGS CREF Finance vs. Shree Shanthi Homes-

S 190 (1) , 200 ,

204 --- Cognizance of offence -- Once the

court on persual of complaint is satisfied that it discloses the commission of an offence, and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of offence, even if the words “cogniznce taken” are absent in the order. Issuance of process is evidence of cognizance taken if facts prove that magistrate initiated the process after application of his mind to the facts

Centre for Public Interest Litigation vs UOI - S 197 ---- Protection of civil servants in corruption casesPreliminary enquiiry by court to determine applicabilty of such protection. Which is available onnly when the alleged act done by public servant is reasonably connected with the discharge of his offcial duty and is not merely a cloak for doing his objectionable act. Thus, concept of 197 not immediately attracted on istituion of complaint. “Official Duty” implies act or omission must have been done byy public servant in the course of his service and that it should fall within the scope and range of his official duty. Test is whether omission or neglect to do that act would have brought on the charge of dereliction of his official duty.

CHARGE State of Orissa vs. Debebdra Nath Padhi -

S 227 & 228 ,

239 & 240

,

91 ,

482 --

Framing of 

Charges – Accused can't produce evidence at stage of framing but only later at trial. Trial Court can only consider material provided by prosecution at that stage. No provision in CrPC grants to the accussed any right to file any material at the stage of framing of charges. That right is granted only at the stage of trail. 91 , 227, 228,

239 & 240 – Accused cannot at the framing of charges invoke S 91 to seek production of any document to prove his innocence. Under S 91, A police officer may move the court for summoning and production of a document at any stages mentioned in the section but the accused can seek such order only at the stage of defence. No right to produce document to prove defence at stage of fraing of charges. Necessity and desirabilty of the document is to be examined considering the stage when such a prayer is made and the party who makes it whether police or accused.

K Sainarayana Babu vs. M Sivaram Murthy -

S 228 --- Framing of Charge-- Technical Defect -- Two

people accused. Charges framed in Trial Court, but the trial court acquitted them Respondent filed appeal in HC sayin technical error in charges framed, the acquittal was not proper coz the charges framed were themselves not proper. Either signature was absent or section was not written. HC said retrial needed and set aside acquittal. SC said when the accused had no grievance of improper framing of charges, there is no point in setting aside  judgement. When charges are framed improperly, it is the accused who faces danger of wrogly implicated. But when he did not had a grievance and he was subsequently acquiteed despite improper framing of charges, case ends there.

Kamalanantha vs. State of T.N.-

S 160 proviso --- Police officer's power to require attendance of witnessess

before himself. Victims removed from ashram and examined and interrogated in women police stations so that they may speak the truth without fear – S 160 not violated.

S 218 , 464 , 465

- S 218 prescribes that for every

distinct offence there shall be separate charge and every charge shall be tried separately . 218 under the head of Chapter XVII “Joinder of Charges” - It would be misjoinder of charges , if the joinder of charges are in contravention of procedure prescribed in 218. But such misjoinder is not illegality but just irregualrity which can be cured under S 464 , 465 provided no failure of justice has occasioned. Duty of court to determine whether facts were clearly explained to him and whether he was given a fair chance to defend h imself. S 156 , 157, 160 ---

Third degree treatment by police to prosecutrix to elicit information- Justified if meant for removing fear psychosis and make them free to speak truth.

S 31 --- Term “imprisonment” not defined under it . S 31 deals

with power of courts, S 28 empowers HC to pass any sentence authoorised by law. Session Court may also pass any except death which needs to be confirmed by HC.

S 432 , 433 --- Power of sentencing court to BAR 

Remission or AMNESTY -- SC upheld decison of Trial court to bar any future anmnesty given the horrible facts --- Art 72 and 161 not violated.

INQUIRIES AND TRIAL

Zahira Sheikh vs. State of Gujarat -

S 406 -- Power of SC to transfer cases and appeals --

S 173 (8) ---

Reinvestigation –  It is open to police to to conduct proper investigation even after court has taken cognizance of offence. Investigation was tainted, biased and not fair, thus investigating agency directed to r e-investigate under the direction of Director Generalof Police .

Art 14 & 21 – Right to fair trial --- A trail which is based on

ascertaining the truth has to fair to all concerned .

S 311 -- Does not confer on any party any right to examie

,cross- examine , and re-examine any witness . Two parts to S 311 – 1) That gives discretion to court to examine the witness at any stage and 2) mandatory portion whic compels the court to examine a witness if his evidence appears to be “essential to the just decision of the court”. Court to determine whic is applicable. S 391 -- grounds for rejecting addiional evidence wrong given by the said HC. S 386 (1) –  Whether retrial under 386(1) or taking up of additional evidence under 391 proper procedure, will depend on facts and circumstaces of each case. S 391Additional evidence not to be rejected at threshold merely because of contradictions with previous evidences, especially in sensitive cases like this one.

Badrilal vs State of M.P. -

S 320 -- Joint petition of compromise -- Compromise not possible in non-

compoundable offence like 307 IPC . But, while awarding sentence, the effect of compromise can be taken into consideration. Thus, HC reduced the sentence to six years which was further reduced to 14 months, time already spent in prison

VICTIMS UNDER CrPC Jogendra Nahek v. St of Orissa : If victim asks for his statement to be recorder, it must be recorded by the police. Right to be a winess

Bhagwant Singh vs. Commissioner of Police -

S 154

and 173 -- Person lodging FIR entitled to hearing

when on the basis of police report Magistrate prefers to drop the proceedings instead of taking cognizance of offence. Person injured or relative of those who dies in the incident of which complaint is made, has no such right of hearing except a standing to appear before Magistrate who can also upon his discretion give notice to them for hearing.

KPS Gill vs State (Ass-slap case)-

S

357 -- Order to pay compensation –  Victim refues to accept

compensation and asked to be given to any women's organisation, she has the freedom to not accept the money, CJ of punjab to decide its use . S 190 -- 3-4 months delay in filing complaint not fatal to maintainabilty of complaint.

Bodhisattawa Gautam vs. Subhra Chakraborty -- Interim Compensation u/s 357 -- However, this petition was only for quashing. Te court awarded Rs. 1500 p/month s compensation. Nothing was said about what will happen when an order of acquittal was passed against the accused.

Mangilal vs State of M.P. ---

S 357 (4) (3) & (1) –  Power of court to award compensation to victims of

offence- It is not ancilliary to to other sentences but is in addition to them. Such power can be exercised by appellate/revisional court even in absence of impostion of fine. Under 357 (4) – It is the discretion of appellate and revisonal courts to exercis their power to impose fine as the word used is “may”. Not obligatory

BAILS Prahlad Singh Bhati vs NCT Delhi -

S 437 , 438 , 439 --- Magistrate's power to grant bail in case of non-

bailable offence-- Magistrate can grant bail only when there is no reasonable ground to believe that the accused is guilty of offence punishable with sentence of death or life imprisonment, unless the accused is covered by the provisons of 437(1) -which are factors to be kept in mind while granting of bail . Merey because accused was granted anticipatory bail ( S 438 ) for a lesser offence would not entitle him to grant of a regular bail under 437 when later he was found to be involved in graver offence like murder.

Gurbaksh Singh v. St of Punjab- Whether s. 437 can be read with s. 438. -- proper to leave to High Court and Court of Sessions should exercise their jurisdiction under Section 438 by wise and careful use of their discretion Section 438 (1) lays down conditions to be satisfied before granting anticipatory bail - applicant must show that he has 'reasons to believe' that he may be arrested for some non-bailable offence - provision cannot be invoked on basis of vague and general allegations as if to arm oneself in perpetuity against possible arrest - anticipatory bail is neither passport to commit crime nor shield against any kinds of accusation - filing of f irst information report (FIR) is not condition precedent to exercise power under Section 438 (1) - bail under Section 438 (1) can be granted even after FIR so long as arrest is not made - 'blanket Order' of anticipatory bail should not be generally passed.

Panchanan Mishra vs Digambar Mishra --

S 437 (5) & 439 (2) -- Cancellation of bail –  If there is delay

in effecting order under said sections for cancellation of bail it has to effected immediately. If there is delay, object of cancellation of bail practically loses all its purpose and significance to the greatest prejudice and the interest of the prosecution.

Adri Dharan Das vs. State of W.B. ---ANTICIPTORY BAIL ---- S 438 - In the said facts, exercise of such power not warranted. Belief of expectation of arrest must be on reasonable grounds. Mere fear not enough. Such bail can be effected only pre-arrest in order to prevent stage and not later. During pendency of application for anticipatory bail, court cannot pass an interim ordern not to arrest the applicant. Such bail given only for limited duration so as to enable the the accused to move the regular court for bail under S 439. Such duration cannot

extend to few days later than the date of expiration of anticipatory bail, so as to enable the accused to apply for regular bail and to move to higher court . Leagality of impending arrest cannot be gone into, in the application for anticipatory bail. Once arrested, if ther was no application made under 438, or after expiration of term of such bail, his remedy lies under 437 or 439.

S 155-157 , 41-44 , 437-439 -- Scope of Judicial

Interferencce . Role of investigator is well defined and jurisdictional scope of interference by courts in process of investigation is limited. Court ordinarily will not interfere with the investigation of crime or with the arrest of the accused in a cognizable offence.

S. 445- Deposit instead of recognizance. Not allowed in the case of Charles Shobraj as he had jumped bail earlier.

R Rathinam vs State --

S 439

- Challenge to order of Single Judge of HC for granting bail under 439 . No

person or advocate having nothing to do with particular case, can challenge the order by Single Judge by moving the same HC subsequently. Only remedy available is to move SC undep SLP, Art 136 . S 439 (2) –  HC has power to direct arrest of person who had earlier been released on bail by the same HC on judicail consideration and commit him to custody. Such may be done even by HC suo moto, or any person may petition reminding HC to do so. Group of advocates had rightly petitioned to ask HC to exercise its suo moto power.

MISCELLANEOUS CASES-

Vaidya Laxmi Case – Withdrawal of prosecution - Challenged the cancellation of prosecuting agencies (prosecutors)

Mohd Mumtaz v Nandini Satpathy – Withdrawal of prosecution - Chief Minister of Orissa started earning more income once she became the CM. She appointed public prosecutor who withdrew the case. Mohd Mumtaz challenged the petition. HC did not hear the petition. SC held that the withdrawal was correct on the basis of lack of evidence.

N. Siya Ram Case – Police Power to Arrest -- He filed the case under a writ petition in Bombay HC against the police who were not arresting the accused. The HC directed the police to arrest the accused. The SC held it is appropriate to leave it entirely on the police to decide, in which it can arrest the accused or not.

Shri Lekha Vidyarthi vs. State of U.P. - Withdrawal of Prosecution -- The SC held that the function of withdrawal of prosecution of the public prosecutor relates to a public purpose entrusting him with the responsibility of so acting only in the interests of administration of justice. This cannot be whittled down by the assertion that their engagement is purely profession between the client and his lawyer with no public element attached to it.

State of Bombay v Kathi Kalu Oghad -- Medical Examination; Self Incrimination -- SC held that Section 53 is not violative of Article 20(3) and that a person cannot be said to have been compelled “to be a witness against himself if he’s merely required to undergo a medical examination in accordance with the provisions of section 53.

Bhajan Lal case : FIR: Mandatory or Discretionary? -- FIR is mandatory Rajan Singh Gatoch case -- Land Dispute. In civil matters, FIR is discretionary. Prafulla B Desai v State of Maharashtra-- Witness making statement through videoconferencing is considered as the witness is physically present in Court.

Girija vs. State of Orissa – Cancellation of Bail - Can bail granted under 439 be cancelled in case the bailee threatens the witnesses? Yes, under 439 (2) any bail granted under any section of Chapter XXXIII can be cancelled. Under section 437(5), cancellation of bail is with regard to bail granted only under that section. Therefore, the power of cancellation under 439(2) is much wider.

Ratlam municipality case (Sewage Drainage case) -- 133(c) – Private place affecting public sphere