Category Archives: Criminal

What is the effect of non-explanation of injuries sustained by the accused persons

Supreme Court considered the effect of non-explanation of injuries sustained by the accused person in Takhaji Hiraji v. Thakore Kubersing Chamansing and others (2001) 6 SCC 145 and held as under:-

“17. The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajender Singh v. State of Bihar (2000) 4 SCC 298, Ram Sunder Yadav v. State of Bihar (1998) 7 SCC 365 and Vijayee Singh v. State of U.P. (1990) 3 SCC 190, all three-Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the 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 nonexplanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions:

(i) that 7 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. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.”

Juvenile Justice Board Under Juvenile Justice (Care and Protection of Children) Act, 2015

Juvenile Justice (Care and Protection of Children) Act, 2015

4. Juvenile Justice Board

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the State Government shall, constitute for every district, one or more Juvenile Justice Boards for exercising the powers and discharging its functions relating to children in conflict with law under this Act.
(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of First Class not being Chief Metropolitan Magistrate or Chief Judicial Magistrate (hereinafter referred to as Principal Magistrate) with at least three years experience and two social workers selected in such manner as may be prescribed, of whom at least one shall be a woman, forming a Bench and every such Bench shall have the powers conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate or, as the case may be, a Judicial Magistrate of First Class.
(3) No social worker shall be appointed as a member of the Board unless such person has been actively involved in health, education, or welfare activities pertaining to children for atleast seven years or a practicing professional with a degree in child psychology, psychiatry, sociology or law.
(4) No person shall be eligible for selection as a member of the Board, if he–
(i)has any past record of violation of human rights or child rights;
(ii)has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or has not been granted full pardon in respect of such offence;
(iii)has been removed or dismissed from service of the Central Government or a State Government or an undertaking or corporation owned or controlled by the Central Government or a State Government;
(iv)has ever indulged in child abuse or employment of child labour or any other violation of human rights or immoral act.
(5) The State Government shall ensure that induction training and sensitisation of all members including Principal Magistrate of the Board on care, protection, rehabilitation, legal provisions and justice for children, as may be prescribed, is provided within a period of sixty days from the date of appointment.
(6) The term of office of the members of the Board and the manner in which such member may resign shall be such, as may be prescribed.
(7) The appointment of any member of the Board, except the Principal Magistrate, may be terminated after holding an inquiry by the State Government, if he–
(i)has been found guilty of misuse of power vested under this Act; or
(ii)fails to attend the proceedings of the Board consecutively for three months without any valid reason; or
(iii)fails to attend less than three-fourths of the sittings in a year; or
(iv)becomes ineligible under sub-section (4) during his term as a member.

5. Placement of person, who cease to be a child during process of inquiry

Where an inquiry has been initiated in respect of any child under this Act, and during the course of such inquiry, the child completes the age of eighteen years, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued by the Board and orders may be passed in respect of such person as if such person had continued to be a child.

6. Placement of persons, who committed an offence, when person was below the age of eighteen years

(1) Any person, who has completed eighteen years of age, and is apprehended for committing an offence when he was below the age of eighteen years, then, such person shall, subject to the provisions of this section, be treated as a child during the process of inquiry.
(2) The person referred to in sub-section (1), if not released on bail by the Board shall be placed in a place of safety during the process of inquiry.
(3) The person referred to in sub-section (1) shall be treated as per the procedure specified under the provisions of this Act.

7. Procedure in relation to Board

(1) The Board shall meet at such times and shall observe such rules in regard to the transaction of business at its meetings, as may be prescribed and shall ensure that all procedures are child friendly and that the venue is not intimidating to the child and does not resemble as regular courts.
(2) A child in conflict with law may be produced before an individual member of the Board, when the Board is not in sitting.
(3) A Board may act notwithstanding the absence of any member of the Board, and no order passed by the Board shall be invalid by the reason only of the absence of any member during any stage of proceedings:
Provided that there shall be atleast two members including the Principal Magistrate present at the time of final disposal of the case or in making an order under sub-section (3) of section 18.
(4) In the event of any difference of opinion among the members of the Board in the interim or final disposal, the opinion of the majority shall prevail, but where there is no such majority, the opinion of the Principal Magistrate, shall prevail.

8. Powers, functions and responsibilities of the Board

(1) Notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, the Board constituted for any district shall have the power to deal exclusively with all the proceedings under this Act, relating to children in conflict with law, in the area of jurisdiction of such Board.
(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Children’s Court, when the proceedings come before them under section 19 or in appeal, revision or otherwise.
(3) The functions and responsibilities of the Board shall include’–
(a)ensuring the informed participation of the child and the parent or guardian, in every step of the process;
(b)ensuring that the child’s rights are protected throughout the process of apprehending the child, inquiry, aftercare and rehabilitation;
(c)ensuring availability of legal aid for the child through the legal services institutions;
(d)wherever necessary the Board shall provide an interpreter or translator, having such qualifications, experience, and on payment of such fees as may be prescribed, to the child if he fails to understand the language used in the proceedings;
(e)directing the Probation Officer, or in case a Probation Officer is not available to the Child Welfare Officer or a social worker, to undertake a social investigation into the case and submit a social investigation report within a period of fifteen days from the date of first production before the Board to ascertain the circumstances in which the alleged offence was committed;
(f)adjudicate and dispose of cases of children in conflict with law in accordance with the process of inquiry specified in section 14;
(g)transferring to the Committee, matters concerning the child alleged to be in conflict with law, stated to be in need of care and protection at any stage, thereby recognising that a child in conflict with law can also be a child in need of care simultaneously and there is a need for the Committee and the Board to be both involved;
(h)disposing of the matter and passing a final order that includes an individual care plan for the child’s rehabilitation, including follow up by the Probation Officer or the District Child Protection Unit or a member of a non-governmental organisation, as may be required;

(i)conducting inquiry for declaring fit persons regarding care of children in conflict with law;
(j)conducting at least one inspection visit every month of residential facilities for children in conflict with law and recommend action for improvement in quality of services to the District Child Protection Unit and the State Government;
(k)order the police for registration of first information report for offences committed against any child in conflict with law, under this Act or any other law for the time being in force, on a complaint made in this regard;
(l)order the police for registration of first information report for offences committed against any child in need of care and protection, under this Act or any other law for the time being in force, on a written complaint by a Committee in this regard;
(m)conducting regular inspection of jails meant for adults to check if any child is lodged in such jails and take immediate measures for transfer of such a child to the observation home; and
(n)any other function as may be prescribed.

9. Procedure to be followed by a Magistrate who has not been empowered under this Act

(1) When a Magistrate, not empowered to exercise the powers of the Board under this Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction.
(2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:
Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.
(3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.
(4) In case a person under this section is required to be kept in protective custody, while the person’s claim of being a child is being inquired into, such person may be placed, in the intervening period in a place of safety.

OBJECTIVE SAMPLE QUESTIONS ON THE CODE OF CRIMINAL PROCEDURE, 1973 [3RD SET ]

A

1. Point out incorrect response under Cr. P.C.–
(a) Inquiry is conducted by the Court (b) Inquiry is conducted after framing of charge
(c) Inquiry is conducted prior of framing of charge (d) Inquiry is conducted by the Magistrate (Ans : b)

2. In a cognizable offence a police officer
(a) Cannot arrest an accused without warrant
(b) May arrest an accused without warrant
(c) Can keep accused in police custody without a remand order
(d) In not required to produce accused before Magistrate (Ans : b)

3. Which of the following sentence may be passed by a Magistrate of second class? (Utch. C.J.)
(a) Imprisonment for a term not exceeding two years (b) Imprisonment for a term not exceeding one years
(c) Imprisonment for a term not exceeding six months (d) Only a fine not exceeding five thousand rupees (Ans : b)

4. The Chief Judicial Magistrate may pass a
(a) Sentence of imprisonment not exceeding 7 years (b) Sentence for life imprisonment
(c) Death sentence (d) Sentence of imprisonment exceeding seven years (Ans : a)

5. A private person may arrest any person who
(a) Is reported to be a criminal (b) In his presence commits a non-cognizable offence
(c) In his presence commits a bailable offence (d) In his presence commits a cognizable and non-bailable offence (Ans : d)

6. A person arrested by a police officer may be kept in custody for
(a) Two days (b) Three days (c) Twenty four hours (d) One week (Ans : c)

7. How are summons served?
(a) By a police officer (b) By an officer in Court (c) By an authorized public servant (d) By any of above (Ans : d)

8. To set aside forfeiture under section 96 of Criminal Procedure Code application may be given to
(a) Session Court (b) The High Court (c) Supreme Court (d) The any of these (Ans : b)

9. In which case the supreme Court held that section 125 Cr. P.C. was applicable to all irrespective of their religion?
(a) Mohd. Umar Khan Vs. Gulshan Begum (b) Mohd. Ahmad Khan Vs. Shah Bano Begum
(c) Mst. Zohara Khattoon Vs. Modh. Ibrahim (d) Noor Saba Khatoon Vs. Mohd. Quasim (Ans : b)

10. No wife shall be entitled to receive maintenance from her husband under section 125 of Cr. P.C. if– (U.P.P.C.S.J.)
(a) She has obtained a divorce from her husband and has not remarried (b) She is unable to maintain herself
(c) She refused to live with her husband on ground that keeps a mistress (d) She is living in adultery (Ans : d)

11. Which section of Cr. P.C. provides that no statement made by any person to police officer in course of an investigation shall, if reduced to writing be signed by person making it? (U.P.A.P.O.)
(a) Section 164 (b) Section 163 (c) Section 162 (d) Section 161 (Ans : c)

12. Point out incorrect answer
First Information Report means–
(a) Report about cognizable offence (b) Information given to police officer
(c) Information first in point of time (d) It must always be given in writing (Ans : d)

13. Under section 198 of the Code of Criminal Procedure, the court can take cognizance of any offence laid down under section 497 and 498 to the Indian Penal Code on complaint of– (M.P.A.P.O.)
(a) Husband of woman (b) Father of woman (c) Mother of woman (d) Any of these (Ans : d)

14. Which one of the following orders can be passed after trail of a case is over? (Utch. C.J.)
(a) Only an order of acquittal (b) Only an order of conviction
(c) Order of discharge (d) Either an order of acquittal or conviction (Ans : d)

15. Who can withdraw a case from the prosecution under Section 321, Cr. P.C.? (Utch. C.J.)
(a) The State Government (b) Public Prosecutor Incharge of a case with permission of court
(c) Public Prosecutor Incharge of a case even without permission of court (d) All of these (Ans : b)

16. The Court can record demeanour of a witness person can himself be competent witness? (Utch. C.J.)
(a) Section 280 (b) Section 279 (c) Section 278 (d) Section 281 (Ans : a)

17. Whenever a Magistrate is of opinion after hearing evidence for the prosecution and accused that accused is guilty and that he ought to receive a severe punishment then such Magistrate is empowered to inflict, the Magistrate may forward case to?
(a) The Session Judge (b) The Chief Judicial Magistrate
(c) The District Magistrate (d) Concerned police station (Ans : b)

18. Which of the following offence is not compoundable?
(a) Offence under section 323 I.P.C. (b) Offence under section 334 I.P.C.
(c) Offence under section 448 I.P.C. (d) Offence under section 307 I.P.C. (Ans : d)

19. There shall be no appeal by a convicted person where a Magistrate of first class passes only a Sentence of fine, not exceeding?
(a) One hundred rupees (b) Two hundred rupees
(c) Three hundred rupees (d) Two hundred and fifty rupees (Ans : a)

20. In one trial A is awarded with sentence, which is notappealable, whereas sentence against B is appealable, whether A can file an appeal against his sentence–
(a) No (b) Only with special leave (c) Yes (d) There is no such provision (Ans : c)


B

1.The object of investigation is
(a) To arrest the accused (b) To punish the accused (c) To collect evidence against the accused (d) None of these

Ans: C
2.Which of the following offence was made non bailable by the Cr.P.C. Amendment Act 2005?
(a) 325 (b) 353 (c) 328 (d) 331

Ans: B
3.Which one of the following proceedings is known as judicial proceeding?
(a) Investigation (b) Enquiry and Investigation
(c) Enquiry and Trial (d) Trial and Investigation

Ans: C
4.In a first information an offence is cognizable and other is non-cognizable. The whole case shall be deemed to be (a) Cognizable (b) Non-cognizable
(c) It is to be seen whether it is a Warrant case
(d) It is to be seen whether it is a summons case

Ans: A

5.In the Indian Constitution Criminal Procedure is included in the
(a) Concurrent list (b) Union list (c) State list (d) Either a. or b.

Ans: A

6.Which of the following section inserted as per the Cr.P.C. (Amendment) Act 2005?
(a) 105A (b) 166 A (c) 50 A (d) 433A

Ans: C

7.Offence under S. 324 is
(a) Compoundable (b) Non-Compoundable
(c) Compoundable with permission of court (d) Non of these

Ans:C

8.In which of the following Cases the Supreme court has held that the Magistrate has ample powers to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same
(a) CBI Vs State of Rajasthan (b) . Sakiri Vasu Vs State of U.P
(c) Manjt Pal Singh Vs State of Punjab (d) . Ramachandran Vs Udaya Kumar

Ans: b

9.In computing the period limitation in a criminal case,
(a) The day from which such period is to be computed shall not be excluded.
(b) The day from which such period is to be computed shall be excluded.
(c) The day from which such period is to be computed shall either be excluded or include
(d) d. None of these.

Ans: B

10.A report made by a police officer in a case which discloses a commission of a non cognizable offence after investigation shall deemed to be
(a) Police report (b) Charge sheet (c) Complaint (d) Final report

Ans: C
11. All the proceedings for the collection of evidence conducted by a police officer under Cr.P.C. is called
(a) Inquiry (b) Local inspection (c) Investigation (d) Judicial proceeding

Ans: C

12. An investigation into an offence cannot be conducted by
(a) Magistrate (b) A person authorized by a magistrate other than a police officer
(c) Both a. and b. (d) None of these

Ans: A

13. Any proceedings in the course of which evidence is taken on oath is called
(a) Inquiry (b) Investigation (c) Sworn statement (d) Judicial proceedings

Ans: d

14. The Code of Criminal Procedure 1973 came into force on
(a) 1st April 1973 (b) 1st April 1974 (c) 1st June 1973 (d) 1st June 1974

Ans: b

15. In which of the following cases the Kerala High Court has held that Even if earlier investigation was conducted by local police, there is no bar to refer the matter for investigation by the CBI in an appropriate case by the High Court
(a) J.Prabhavathi Amma Vs State of Kerala (b) Father Jose Pithrikkayil Vs CBI
(c) Nandakumar Vs State of Kerala (d) Jomn Puthen Purakkal vs CBI

Ans; a
16. The provisions of Cr.P.C. 1973 other than those relating to Chapters 8, 9 and 10 shall not apply
(a) Jammu and Kashmir (b) Nagaland (c) Tribal areas (d) B & C

Ans: d
17. Any act or omission made punishable by any law for the time being is called
(a) Wrong (b) Offence (c) Criminal case (d) Charge

Ans: b
18 Maximum sentence of fine C.J.M. can impose
(a) 25,000 (b) 50,000 (c) 10,000 (d) no limit

Ans: d
19.The maximum sentence of imprisonment a C.J.M. can impose
(a) 3 years (b) 7 years (c) 10 years (d) no limit
Ans: b

20.Power to arrest a person committing a non cognizable offence is given to a police officer on
(a) The permission of superior officer (b) On refusal to give name and residence
(c) The presence of a Magistrate (d) Cannot be arrested in any situation

Ans; b

21. A private person can arrest an accused as provided under section
(a) 41 (b) 42 (c) 43 (d) 44

Ans: c

22. Any police officer may arrest without warrant any person
(a) Who has been concerned in any cognizable offence
(b) Who has been proclaimed as an offender
(c) Who is reasonably suspected of being a deserter from any armed forces
(d) All the above

Ans: d

23. The categories of persons who can be arrested without a warrant is described in section
(a) 41 (b) 42 (c) 40 (d) 50

Ans: a

24. Under section 37 of Cr.P.C., every person is bound to assist a Magistrate or Police officer
(a) In the taking or preventing the escape of any other person who such Magistrate or police officer is authorized to arrest
(b) In the prevention or suppression of a breach of peace
(c) In the prevention of any injury to be committed to any railway.
(d) In all the above cases

Ans: d

25. Under section 39 of Cr.P.C. ever person aware of the commission of an offence punishable under _________ of the following sections of IPC.
(a) Sections 121 to 126 Cr.P.C. (b) Sections 143 to 148 Cr.P.
(c) c. 302 and 304 (d) all the above

Ans: d

26. Who is the competent authority to decide as to who is the successor-in-office of any additional or assistant sessions Judge
(a) Sessions Judge (b) High Court (c) District Magistrate (d) None of these

Ans: a

27.The powers of superior police officers are mentioned in section
(a) 2(h) (b) 36 (c) 156 (d) Police Act

Ans: b

28. Arrest by Magistrate is mentioned in section
(a) 43 (b) 44 (c) 45 (d) 46

Ans: c
29. The guidelines regarding the arrest of Judicial officers by the police where issued by the Supreme Court in
(a) Joginder Kumar Vs. State of Utter Pradesh
(b) M.
(c) Abraham Vs. State of Maharashtra (2003 (2) SCC 649) c.
(d) K. Basu Vs. State of West Bengal (AIR 1997 SC 610) d. Delhi Judicial Service Association Vs. State of Gujarat (AIR 1991 SC 2176)

Ans: d

30. The new chapter incorporated by the Criminal law (amendment) 2005.
(a) XXI A (b) XXIII A (c) XXII A (d) XXIV A

Ans: a

31. Members of Armed Forces cannot be arrested except after obtaining the consent of
(a) D.G.P. (b) Central Government (c) Chief of concerned Army Force (d) Magistrate
Ans: b

32. Who is given protection from arrest under 45 of Cr.P.C.
(a) President of India (b) Judicial Officers
(c) Members of Armed Forces (d) Members of Parliament

Ans: C

33. The judicial pronouncement which led to the incorporation of section 46(4) of Cr.P.C. by the amendment Act of 2005
(a) Joginder Kumar Vs. State of Utter Pradesh
(b) M.
(c) Abraham Vs. State of Maharashtra (2003 (2) SCC 649) c.
(d) K. Basu Vs. State of West Bengal (AIR 1997 SC 610) d. State of Maharashtra Vs. Christian Community Welfare of India

Ans; d

34. In which of the following cases, the Supreme Court held that, even without the presence of a lady constable, police can arrest a female offender
(a) Joginder Kumar Vs. State of Utter Pradesh
(b) M.
(c) Abraham Vs. State of Maharashtra (2003 (2) SCC 649) c.
(d) K. Basu Vs. State of West Bengal (AIR 1997 SC 610) d. State of Maharashtra Vs. Christian Community Welfare of India

Ans: d

35. Section 265A deals with
(a) Summary trial (b) Plea bargaining (c) Identification of accused
(d) Medical examination of rape victim

Ans: b

36. The form of summons is mentioned in section
(a) 61 (b) 62 (c) 91 (d) 92

Ans: a

37.The section newly added in Chapter V (arrest of persons) by the Cr.P.C. Amendment Act 2005
(a) 46(4) (b) 50(A) (c) 53(A) (d) All the above

Ans: d

38.The procedure for arrest is described in section
(a) 46 (b) 50 (c) 51 (d) 57
Ans: a

39. Rejection of anticipatory bail application itself is not a ground for the immediate arrest of the accused and the arrest of persons in all cases is unnecessary�. The Supreme Court gave the above preposition in
(a) Joginder Kumar Vs. State of Utter Pradesh
(b) Abraham Vs. State of Maharashtra (2003 (2) SCC 649) c.
(c) K. Basu Vs. State of West Bengal (AIR 1997 SC 610) d. Delhi Judicial Service Association Vs. State of Gujarat (AIR 1991 SC 2176)

Ans: b

40.In a case involving offence under section 304B, the period of remand under section 167(2) is
(a) 15 days (b) 60 days (c) 90 days (d) 180 days

Ans: C

41.The Kerala High Court has held the following proposition �section 159 does not confer any power to the magistrate to proceed to the place and conduct local investigation� in
(a) Sukumaran Vs. State of Kerala (b) In Re Sister Abhaya (2006 (2) KLT 1001)
(c) Vijayan Vs. State of Kerala (d) Acharaparambil Pradeepan Vs. State of Kerala

Ans: b

42.An enquiry into the apparent cause of death is called
(a) Post mortem examination (b) Mahazar (c) Inquest (d) Investigation
Ans: c

43.Before accepting a Refer Report, court is bound to issue notice to
(a) Accused (b) First informant (2006 (2) KLT 588)
(c) Investigating officer (d) Prosecutor

Ans: b
44.Agreement entered into at Calcutta for a project to be carried at Calcutta, payments required to be made at Calcutta, cheques were issued from registered office at Ernakulam the court to having jurisdiction to quash the proceedings
(a) Magistrate Court Calcutta (b) Calcutta High Court (2006 (2) KLT 525)
(c) Kerala High Court (d) Both b. and c.

Ans: c
45.The procedure for inquest is mention in section
(a) 173 (b) 174 (c) 176 (d) 172
Ans: b

46. At the stage of 200 what is needed is
(a) Complainant has to adduce evidence (b) Examination of complainant by magistrate
(c) Chief examination of complainant only (d) None of these
Ans: b

47.The Bar under section 196 is against
(a) Registration of crime (b) Investigation by police
(c) Submission of report by police (d) Taking cognizance (2006 (3) KLT 830)
Ans: d

48. Plea bargaining introduced in India by
(a) The Amendment Act of 1980 (b) The Criminal Law Amendment Act 2005
(c) The Code of Criminal Procedure Amendment Act 2005 (d) Act 25 of 2005
Ans: b

49. Power under section 319 Cr.P.C. covers
(a) Post cognizance stage (2006 (1) KLT SN 60) (b) Pre cognizance stage
(c) Both a. and b. (d) None of these

Ans: a

50. Under which of the following Sections of Criminal Procedure Code police can arrest an accused without warrant? MP APO -2002
(a) Section 37 (b) Section 40 (c) Section 42 (d) Section 41

Ans: d

OBJECTIVE SAMPLE QUESTIONS ON THE CODE OF CRIMINAL PROCEDURE, 1973 [2ND SET ]

1. As per the Explanation to Section 2(d) of the Cr.PC, 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 ________ .
Answer: Complaint.

2. __________ includes all the proceedings under the Cr.PC for the collection of evidence conducted by a police officer.
Answer: Investigation[Sectiom 2 (h)]

3. Warrant case is a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. It is defined in ______ .
Answer: 2(x)

4. Section 6 of the CrPC defines ________ .
Answer: Classes of Criminal Courts.

5. The Court of Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding _______ years or of fine not exceeding _______ or of both.
Answer: 3 , 10000 rupees.[Section 29(2)]

6. Where imprisonment has been awarded as part of substantive sentence, the imprisonment in default of payment of fine shall not exceed __________ of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of fine.
Answer: one-fourth[Section 30(1)(b)]

7. Duty of public to give information about certain offences is provided under_________ .
Answer: Section 39.

8. Any person who has in his possession any implement of house-breaking without lawful excuse __________ arrested without warrant.
Answer: can be.[Section 41(1)(b)]

9. A habitual thief as provided in Section. 110 __________ arrested without warrant.
Answer: can be[Section 41(2)]

10. Any magistrate may arrest any person ________________.
Answer: within his local jurisdiction.[Sec 44(2)]

11. As per which provision a police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place inorder to liberate himself or any other person who, having lawfully entered for the purpose of making arrest, detained therein.
Answer: S. 47(3)

12. According to Sec.70(1) of the Code, every warrant of arrest issued by a Court ________ in writing.
Answer: shall be.

13. Power of Court to issue proclamation aginst person absconding is provided in _______ 
Answer: S. 82

14. Can a court issue warrant in lieu of summons?
Answer: Yes. [Sec.87]

15. Power of Court of Judicial Magistrate of first class to detain document within the custody of postal or telegraph authority is provided under ________ .
Ans: 92(2)

16. Power of Judicial Magistrate to issue search warrant to search persons wrongfully confined under circumstances that the confinement amounts to an offence is provided under __________ .
Ans: S.97.

17. Plea Bargaining is contained in ___________.
Answer: Chapter XXI A

18. ______________ independent and respectable inhabitants of the locality in which the place to be searched is situated is necessary for a search with warrant.
Answer: 2 or more[sec.100(4)]

19. According to Sec.102 __________ is empowered to seize property alleged or suspected to have been stolen.
Answer: any police officer.

20. Executive Magistrate may order a person likely to commit breach of peace to execute a bond for keeping the peace for a period upto ______ year/s.?
Answer: One[Section 107(1)]

21. Enforcement of order of maintenance is provided under Section________ .
Answer: 128

22. Power of conditional order for removing nuisance can be exercised by _________ .
Answer: Executive Magistrate.[Sec.133]

23. Any person disobeying conditional order u/S.133 may be penalised with simple imprisonment of _________ or fine of _______ rupees, or with both.
Answer: 1 months, 200[Section 136 of CrPC r/w Section 188 of IPC]

24. A police officer’s power to seize false weights and measures are provided in_______ .
Answer: Section 153(2)

25. If an offence is committed by a person in the presence of a Magistrate, the magistrate can arrest that person if the offence is ________ .
Answer: either cognizable/or non-cognisable[sec.44-any offence]

26. Police officer’s power to require attendance of persons acquainted with facts and circumstances of the case is mentioned in ___________ .
Answer: Section 160(1)

27. A police officer may reduce into writing the oral examination of persons acquainted with the case. This is provided under ________ .
Ans: Section 161(3)

28. No statement under Sec.161 is to be signed. ___________ is an exception.
Answer: Section 27 of Indian Evidence Act.[162(2)]

29. Section 164 of the Code of Criminal Procedure deals with ___________ .
A: Recording of Confessions and statements by Magistrate.

30. Can a police officer on whom the powers of magistrate is conferred record confession under Section164?
A: No[Proviso to Sec.164(1)]

31. Further investigation in respect of an offence after report has been forwarded is provided under ______ .
A: S.173(8)

32. When an officer in charge of a police station receives information that a person has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation to the nearest _________ .
A: Executive Magistrate.[174(1)]

33. Where it is uncertain in which of the several local areas an offence was committed, it may be inquired into and tried by a Court having jurisdiction over ________ local area.
A: any of such [Sec.178]

34. Transfer of cases on application of accused is provided under _______ .
Answer: Section 191.

35. Who can make a complaint when the victim is under age of 18 years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to local customs and manners, ought not to be compelled to appear in public?
Answer: Any person on behalf with leave of court.[Proviso (a) to Section 198]

36. If a public servant acting in discharge of his official duties makes a complaint the Magistrate _________ examine on oath the complainant.
Answer: Need Not[Proviso to Section 200]

37. Any Magistrate __________ postpone issue of process against the accused on receipt of complaint, when the accused is residing at a place beyond the area in which he exercises jurisdiction.
Answer: shall[Sec.202(1)]

38. A magistrate, under S.259 of the Code of Criminal Procedure has the power to convert a summons trial to a warrant trial relating to offence punishable for a term exceeding _________.
A: 6 months.

39. Dismissal of complaint is provided under Sec.________.
Ans: 203.

40. Generally absent applications are filed in the court as per Sec. ________.
A: 317

41. If same case upon complaint and police report against same accused, the Magistrate __________ try together the complaint case and the case arised out of the police report as if both the cases were instituted on a police report.
Ans: shall [Sec.210(2)]

42. Section 240 of the Code of Criminal Procedure deals with ____________ by magistrate in warrant cases.
A: Framing of charge.

43. A is tried for causing grievous hurt and convicted. The person injured afterwards dies. Can A may be tried againg for culpable homicide?
Ans: Yes.[Sec.300(3)]

44. The Court _______ summon and examine or recall and re-examine any person if his evidence appears to it to be essential to the just decision of the case.
A: shall[second head of Sec.311]

45. High Court’s power of revision is provided under Section_______.
Answer: 401.

46. Government can commute sentence __________ the consent of the person sentenced.
Ans: without[Section 433]

47. Order for disposal of property at conclusion of trial is provided under_______ and disposal of property pending trial in certain cases is provided under_______.
Answer: 452, 451

48. A search warrant issue by magistrate not empowered by law under Sec.94 ______vitiate proceedings.
A: will not [460]

49. As per Sec.468 of Cr.PC, for an offence punishable with imprisonment for a term exceeding one year but not exceeding three years, the period of limitation is ______.
A: 3 years.

50. Can two or more persons be the complainant in one case?
A: No.

OBJECTIVE SAMPLE QUESTIONS ON THE CODE OF CRIMINAL PROCEDURE, 1973 [1ST SET ]

THE CODE OF CRIMINAL PROCEDURE, 1973

1. Section 2 in Cr.P.C. defining “victim” as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged includes
(a) victim’s guardian
(b) victim’s guardian or legal heir
(c) victim’s neighbour
(d) victim’s close friend.
2. According to section 41A(1) of Cr.P.C. the Police Officer shall issue a notice directing the alleged accused though he has committed a cognizable offence, to appear before him or at such other place as specified in notice in all the cases where the arrest of a person is not required under the
(a) provisions of sub-section (1)(a) of section 41
(b) provisions of sub-section (1)(b) of section 41
(c) provisions of sub-section (1)(c) of section 41
(d) provisions of sub—section (1) of section 41
3. Within the meaning of provisions under section 41C(1) of the Criminal Procedure Code every State Government shall establish a Police Control Room (PCR) in
(a) every district
(b) State level only
(c) both district and at State level
(d) State Secretariat only.
4. Criminal Procedure Code which comes under Concurrent List of Constitution of India is
(a) unduly rigid and does not make room for any special law & procedure
(b) not unduly rigid and makes room for any special law & procedure and generally I gives
precedence to such special law and procedure
(c) not unduly rigid and makes room for any special law 8:‘ procedure but generally gives
precedence to the law & procedure given under the Code
(d) either (a) or (c).
5. What is true to Code of Criminal Procedure
(a) it is mainly, though not purely, an adjective or procedural law
(b) there are also certain provisions which are partly in the nature of substantive law
(c) both (a) & (b)
(d) neither (a) nor (b).
6. Which classification of offence comes under Criminal Procedure Coder
(a) cognizable & non-cognizable
(b) bailable & non-bailable
(c) summons cases 8: warrant cases
(d) all the above.
7. Classification of offences given in the Code of Criminal Procedure under
(a) section 320
(b) the lst Schedule
(c) the llnd Schedule
(d) section 482.
8. Cognizable offence under IPC has been defined
(a) under section 2(a) of Cr.P.C.
(b) under section 2(c) of Cr.P.C.
(c) under section 2(i) of Cr.P.C.
(d) under section 2(1) of Cr.P.C.
9. In a cognizable case under IPC, the police has the
(a) authority to arrest a person without warrant
(b) authority to investigate the offence without permission of the Magistrate
(c) both (a) &(b)
(d) either (a) or (b).
10. In a cognizable case under IPC, the police will have all the powers to
(a) investigate except the power to arrest without warrant V
(b) investigate including the power to arrest without warrant
(c) investigate and arrest without warrant only after seeking permission from the Magistrate
(d) investigate and arrest without warrant only after informing the Magistrate having
jurisdiction to inquire into or try the offence.
11. A Magistrate has the power to direct the police to investigate into an offence in IPC under
(a) section 156(1) of Cr PC
(b) section 156(2) of Cr PC
(c) section 156(3) of Cr PC
(d) all of the above.
12. A Magistrate has the power under Cr. P.C. to direct the police to investigate into
(a) a non-cognizable offence
(b) a cognizable offence
(c) only a non~cognizable offence, as in a cognizable offence the police is under a duty to investigate
(d) both (a) and (b).
13. In a non-cognizable case under IPC, the police has the authority
(a) to investigate into the offence without order given by the Magistrate but cannot arrest the
accused without warrant
(b) to investigate and even arrest the accused without warrant
(c) neither to investigate without order of the Magistrate nor can arrest the accused without
warrant
(d) cannot investigate without orders of the Magistrate but can arrest without warrant.
14. Non-cognizable offence has been defined
(a) under section 2(a)
(b) under section 2(c)
(c) under section 2(i)
(d) under section 2(1).
15. A case which includes cognizable offences and non-cognizable offences is
(a) a cognizable ease but requires sanction of the Magistrate for investigation into the noncognizable
part under section 155(2) of Cr PC
(b) a cognizable case and as such the investigation of the case does not require any sanction
of the Magistrate under section 155(2) of Cr ‘PC
(c) a non-cognizable case and as such the investigation of the case requires sanction of the
Magistrate under section 155(2) of Cr PC
(d) a non-cognizable case but does not require sanction of the Magistrate under section
155(2) of Cr PC
16. In a non-cognizable case, the accused
(a) can object to the grant of permission under section 155(2) of Cr PC as a matter of right
(b) can object to the grant of permission under section 155(2) of Cr PC with the I leave of the
Magistrate K
(c) can object to the grant of permission under section 155(2) of_ Cr PC with the leave of the
High Court f I
(d) has no right to participate in the proceedings and cannot object to the grant of permission
under section 155(2) of Cr PC
17. Under the Scheme of Criminal Procedure non-cognizable offences are
(a) public wrongs
(b) private wrongs
(c) both public and private wrongs
(d) none of the above.
18. A Magistrate has the power to direct the police to investigate in respect of an offence
(a) under the Indian Penal Code
(b) under any local or special law
(c) both (a) and (b)
(d) only (a) and not (b).
19. Leave to investigate into ya non-cognizable offence can be granted by a
(a) Magistrate in any part of India
(b) Magistrate in any part of the State t
(c) Magistrate having jurisdiction to try the case
(d) either (a) or (b) or (c).
20. In a bailable offence, the bail is granted as a matter of right
(a) by the police officer
(b) by the court
(c) both by the police officer & the court
(d) either (a) or (b).
21. In a bailable offence
(a) conditions can be imposed while granting bail by the police officer
(b) conditions can be imposed while granting bail by the court
(c) no condition can be imposed while granting bail by the police officer or by the court
(d) only mild conditions can be imposed by the court only.
22. Warrant case has been defined under section 2(x) of Cr PC as a case relating to an
offence punishable with death, imprisonment for life or imprisonment for a term .
(a) exceeding three years
(b) exceeding two years
(c) exceeding one year
(d) exceeding one year but less than two years.
23. Classification of summons case AND warrant case
(a) is useful to determine the trial procedure to be adopted
(b) is useful to determine the investigation procedure to be adopted
(c) is useful to decide the question of issuance of process to the accused
(d) (a) & (c) are correct.
24. Complaint, as provided under section 2(d) of Cr PC
(a) can be in writing only
(b) can be oral
(c) either in writing or oral
(d) can be by gestures.
25. Complaint as provided under section 2(d) of Cr PC
(a) can be to a police officer
(b) can be to a Magistrate
(c) both (a) 8: (b)
(d) must necessarily to be a Magistrate only.
26. Complaint may relate to
(a) a cognizable offence
(b) a non-cognizable offence
(c) both (a) & (b) are correct
(d) must be for a non-cognizable offence as the police has no power to investigate such an
offence.
27. In respect of investigation as provided under section 2(h) of Cr PC, which of the following is incorrect
(a) investigation can be conducted by a police officer
(b) investigation can be conducted by any person so authorised by a Magistrate
(c) investigation can be conducted by a Magistrate himself
(d) both (a) & (b).
28. When a complaint is presented to a Magistrate, and the Magistrate proceeds to examine the complainant & the witnesses
(a) the Magistrate is conducting investigation
(b) the Magistrate is conducting an inquiry
(c) Magistrate is conducting a trial
(d) both (b) & (c).
29. The word Magistrate mentioned in section 156(3) of Cr PC means
(a) a Judicial Magistrate
(b) a Special Executive Magistrate
(c) an Executive Magistrate
(d) either (a) or (b) or (c).
30. A Metropolitan Magistrate, has the power to pass sentence, as provided under section 29 of Cr PC
(a) any sentence authorized by law except a sentence of death, or
(b) imprisonment for life or of imprisonment for a term exceeding seven years
(c) imprisonment for a term not exceeding three years and fine not exceeding Rs. 10,000
(d) imprisonment for a term not exceeding one year and fine not exceeding Rs. 1,000.
31. A Metropolitan Magistrate can award sentence of imprisonment -in default of payment of fine
(a) equal to the term of imprisonment which he is competent to inflict as substantive
punishment
(b) not exceeding half of the term of imprisonment which he is competent to inflict as
substantive sentence
(c) not exceeding one-third of the term of imprisonment which he is competent to inflict as
substantive sentence
(d) not exceeding one-fourth of the term of imprisonment which he is competent to inflict as
substantive sentence.
32. The imprisonment in default of fine
(a) shall be in addition to a substantive sentence maximum awardable under section 29
without any specific order
(b) shall be in addition to a substantive sentence only when a specific order to that effect is
passed.
(c) shall not be in addition to the substantive sentence awardable by the Magistrate
(d) shall be in addition to the substantive sentence awardable but subject (to the upper limit
for substantive sentence prescribed under section 29.
33. In cases of consecutive sentence on conviction of several offences at one trial by a Metropolitan Magistrate the aggregate punishment
(a) shall not exceed twice the amount of punishment which the Magistrate is competent to
inflict for a single offence
(b) shall not exceed the amount of punishment which the Magistrate is competent to inflict
for a single offence as prescribed under section 29 of Cr PC
(c) shall not exceed three times the amount of punishment which the Magistrate .is competent
to inflict for a single offence
(d) Shall not exceed 14 years.
34. Classification of compoundable & non-compoundable offences has been provided under
(a) lst Schedule
(b) Ilnd Schedule
(c) section 320 of Cr PC
(d) section 321 of Cr PC.
35. Offences other than those mentioned in section 320 of Cr PC are
(a) not compoundable’
(b) Compoundable with the permission of the court
(c) Compoundable by the Court of Sessions
(d) Compoundable by the High Court.
36. Arrest means
(a) every compulsion or physical restraint
(b) total restraint and complete deprivation of liberty
(c) both (a) & (b)
(d) neither (a) nor (b).
37. A warrant of arrest is a command
(a) must be a Written order
(b) signed, sealed & issued by a Magistrate
(c) addressed to a police officer
(d) all of the above.
38. A person can be arrested without warrant
(a) for securing attendance of accused at trial
(b) as a preventive or precautionary measure
(c) for obtaining correct name & address
(d) all the above.
39. Which of the following is correct
(a) Magistrate cannot arrest a person
(b) a private person cannot arrest a person
(c) a police officer can arrest a person
(d) both (a) & (b).
40. It is mandatory for a police officer to inform the person arrested, the grounds of arrest and right of bail if the offence is not non-bailable, under
(a) section 49 of Cr PC
(b) section 50 of Cr PC
(c) section 51 of Cr PC
(d) section 54 of Cr PC.
41. A police officer arresting a person may carry out the personal search after compliance of ..
(a) under section 50 of Cr PC
(b) under section 51 of Cr PC
(c) under section 54 of Cr PC
(d) under section 56 of Cr PC.
42. Section 54 of Cr PC provides for
(a) medical examination of the accused at the request of the police officer
(b) medical examination of the accused at the request of the accused
(c) both (a) & (b)
(d) neither (a) nor (b).
43. It is mandatory to produce the person arrested before the Magistrate, within 24 hours
of his arrest, under
(a) section 56 of Cr PC
(b) section 57 of Cr PC
(c) section 58 of Cr PC
(d) section 59 of Cr PC.
44. A proclamation under section 82 of Cr PC can be issued against a person against whom a warrant has been issued. Thus a proclamation can be issued against
(a) accused offender
(b) a surety
(c) a witness
(d) all the above.
45. A proclamation requiring a person to appear must be published giving
(a) not less than 30 days time to the person concerned
(b) not less than 10 days time to the person concerned
(c) not less than 20 days time to the person concerned
(d) not less than 15 days time to the person concerned.
46. Attachment of the property of the person absconding
(a) can only be issued after publication of the proclamation under section 82 of Cr PC
(b) can be issued before publication of – the proclamation under section 82 of Cr PC
(c) can be issued simultaneously with the issue of proclamation under section’82 of Cr PC
(d) all the above.
47. Period of limitation for filing claims & objections to the attachment of any property
attached under section 83 of Cr PC, by any person other than the proclaimed person, as
provided under section 84 of Cr PC
(a) within three months of attachment
(b) within six months of attachment
(c) within one year of attachment
(d) within two months of attachment.
48. Period of limitation for filing a suit to establish the right over the property attached, by a person other than the person proclaimed, who has filed claims & objection to attachment, is
(a) three months from the date of disallowing the claim
(b) six months from the date of disallowing the claim
(c) one year from the date of disallowing the claim
(d) three years from the date of disallowing the claim.
49. If the person proclaimed appears within the period specified in the proclamation, the property attached
(a) shall not be released from attachment
(b) shall be released from attachment
(c) shall be forfeited
(d) both (a) & (c).
50. If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment
(a) shall not be sold until expiry of six months from the date of attachment
(b) shall not be sold until any claim or objection under section 84 have been disposed of
(c) both (a) 8: (b)
(d) either (a) or (b).
51. A proclaimed person whose property has been attached can claim the property or the sale proceeds, on appearance
(a) within 6 months of attachment
(b) within 2 years of attachment
(c) within 3 years of attachment
(d) within 1 year of attachment.
52. An arrested person has a right to consult a legal practitioner of his choice. The consultation with the lawyer
(a) may not be in the presence of the police officer
(b) may be in the presence of the police officer but not within his hearing
(c) may be in the presence of the police officer and within his hearing
(d) both (a) & (b).
53. A search warrant is a written authority given to a police officer or any other person for the search of any place
(a) generally
(b) for specified things or documents
(c) generally as well as for specified things or documents
(d) only (b) of above.
54. Section 91 of Cr PC does not apply to
(a) the complainant
(b) the accused
(c) the witness
(d) a person who is neither a complainant nor an accused nor a witness.
55. The issuance of summons to a person to produce a document(s) under section 91 of Cr PC is
(a) declaration
(b) mandatory
(c) discretionary
(d) either (a) or (c).
56. Under section 91 of Cr PC, a person who is summoned to produce a document(s) on appearance before the court
(a) becomes a Witness and can be subjected to cross-examination
(b) does not become a witness and can not be subjected to cross-examination
(c) becomes a witness but cannot be subjected to cross-examination
(d) does not become a witness but can be subjected to cross-examination.
57. A person who is required merely to produce a document(s)/thing under section 91 of Cr PC
(a) has to attend personally to produce the document(s) / thing
(b) can cause the document(s)/ thing to be produced in the Court
(c) either attend personally or cause the document(s) / thing produced in the Court
(d) only (a) and not (b) or (c).
58. Section 92 of Cr PC lays down the procedure for
(a) production of document(s) in the custody of postal or telegraph authority
(b) production of document(s) in the custody of any person other than the accused
(c) production of document(s) in the custody of an accused person
(d) all of the above.
59. Where a person summoned to produce a document(s)/thing under section 91 of Cr PC,
fails to attend personally or causes the document(s)/thing produced in the court against
such person
(a) a search warrant can be issued under section 93 of Cr PC
(b) a prosecution for offence under section 175, I.P.C. can be launched
(c) either (a) or (b)
(d) both (a) and (b).
60. In the prosecution for an offence punishable under section 175, I.P.C. for noncompliance disobedience of the summon/issued under section 91 of Cr PC
(a) the accused can not take the defence that the document(s) / thing ordered to be produced
is not necessary or desirable for the investigation, inquiry or trial
(b) the accused can take the defence that the l document(s) / thing ordered to be produced is
not necessary or desirable for the investigation, inquiry or trial
(c) the accused;cannot question the necessity or desirability of the document(s)/thing, ordered
to be produced, for the investigation, inquiry or trial
(d) the accused cannot be permitted to take the defence that the document(s) / thing ordered
to be produced is not necessary or desirable for the investigation, inquiry or trial, as the
necessity or desirability already stands adjudged before the issuance of summon to produce
the document(s) / thing.
61. Who amongst the following is not competent under section 92 of Cr PC to order the
postal or telegraph authority to deliver the document(s)/thing
(a) District Magistrate
(b) Judicial Magistrate
(c) Metropolitan Magistrate
(d) none of the above.
62. The word ‘inspection’ used in section 93(1)(c), Cr PC refers to
(a) things or documents
(b) locality 8: place
(c) both (a) & (b)
(d) either (a) or (b).
63. A search warrant can be issued in respect of a place
(a) used for deposit & sale of stolen property
(b) used for deposit, sale & production of counterfeit coin, currency notes & stamps
(c) used for deposit, sale & production of forged documents & false seals
(d) all the above.
64. Under section 95 of Cr PC certain publications can be forfeited and search warrant can be
issued for the same. In this context, the propositions are
A. A newspaper cannot be forfeited & search warrant cannot be issued for the same as it
would be violative of the fundamental right of speech & expression and involves the fourth
estate.
B. A book can be forfeited & search warrant can be issued for the same.
C. A document can be forfeited & search warrant can be issued‘ for the same.
Which of the following is correct
(a) A & B are correct
(b) A & C are correct
(c) B & C are correct
(d) A, B & C all are correct.
65. Section 87 of Cr PC authorizes issuance of warrant.
(a) in lieu of summon
(b) in addition to summons
(c) both (a) & (b)
(d) none of the above.
66. A declaration of forfeiture under section 95 of Cr PC can be set aside by
(a) Magistrate issuing the search warrant
(b) Chief Judicial Magistrate / Chief Metropolitan Magistrate
(c) Court of Sessions
(d) High Court.
67. The period of limitation for an application to set aside the declaration of forfeiture has been provided
(a) under section 95 of Cr PC
(b) under section 96 of Cr PC
(c) under section 97 of Cr PC
(d) under section 98 of Cr PC.
And the ‘same is
(a) one month from the date of publication of declaration
(b) two months from the date of publication if declaration
(c) three months from the date of publication of declaration
(d) six months from the date of publication of declaration.
68. During investigation a search can be conducted without warrant by
(a) any police officer
(b) the investigating officer
(c) both (a)&(b)
(d) either (a) or (b).
69. Search without warrant can be conducted under section 103 of Cr PC
(a) in the presence of the Magistrate who is competent to issue search warrant in respect of
any place
(b) in the presence of the Magistrate who is not competent to issue search warrant in respect
of any place
(c) both (a) I3: (b)
(d) neither (a) nor (b).
70. Search warrant in respect of a place
(a) includes search of a person present in or about that place
(b) does not include search of a person in or about that place’
(c) includes search of a person in or about that place only if such person is suspected
of concealing about his person any article for which search is being made
(d) none of the above.
71. Joining of two or more independent and respectable inhabitants of the locality in which
the place is to be searched is the mandate under
(a) section 100(1) of Cr PC
(b) section l0O(2).of Cr PC
(c) section 100(3) of Cr PC
(d) section 100(4) of Cr PC.
72. Where a Magistrate, not empowered by law to issue a search warrant for a place suspected to contain stolen property, erroneously issues a search warrant
(a) the search proceedings shall be void & liable to be set aside
(b) the search proceedings shali not be void & not liable to be set aside
(c) the search proceedings shall be set aside only if challenged by any person aggrieved by
the search
(d) either (a) or (c).
73. Section 93(3) of Cr PC provides that no Magistrate other than a District Magistrate or
Chief judicial Magistrate shall issue warrant of search for a document, parcel or other
thing in the custody of postal & telegraph authority. If any Magistrate not so specified
issues such a warrant
(a) the search proceedings shall be void
(b) the search proceedings shall be voidable if challenged, at the instance of person aggrieved
(c) shall remain valid
(d) none of the above.
74. In a non-cognizable case, when a Magistrate orders the police to investigate, in that it
will be at par with the cognizable offence case and the police will have all the powers in
respect of investigation
(a) including the power to arrest without warrant
(b) except the power to arrest without warrant
(c) both are correct depending ion the circumstances
(d) none of the above.
75. Sections 39 8: 40 of Cr PC make it mandatory to give information regarding commission of certain offences. Such information can be given to
(a) a Magistrate
(b) a police officer
(c) either to a Magistrate or to a police officer
(d) the Magistrate 8: the police officer both simultaneously.
76. When the police registers a case regarding commission of a cognizable offence, the
registration of the case is under
(a) section 154 of Cr PC
(b) section 155 of Cr PC
(c) section 156(3) of Cr PC
(d) section 190 of Cr PC
77. Usually a copy of F.I.R. is filed with the Magistrate having jurisdiction to take
cognizance, by the police officer in compliance to
(a) section 156 of Cr PC
(b) section157 of Cr PC
(c) section 158 of Cr PC
(d) section 159 of Cr PC.
78. Delay in dispatching the FIR to the Magistrate under section 157 of Cr PC
(a) shall always throw out the prosecution case in its entirety
(b) shall never be a circumstance providing a legitimate basis for suspecting the FIR
(c) may or may not be a circumstance providing a legitimate basis for suspecting the FIR
depending on the facts and circumstance brought on record
(d) either (b) or (c).
79. Where the FIR discloses, prima facie, commission of a cognizable offence, and there is a
delay in sending the FIR to the Magistrate, under section 157 of Cr PC
(a) the investigation must go on
(b) the Magistrate can order for stopping of investigation on account of delay in sending the FIR
(c) the Magistrate can order for stopping of investigation irrespective of the delay in sending the FIR
(d) the Magistrate can order for stopping of investigation generally.
80. The investigating police officer in a case has power to require attendance of a person
acquainted with the facts and circumstances of the case, under
(a) section 158 of Cr PC
(b) section 159 of Cr PC
(c) section 160 of Cr PC
(d) section 161 of Cr PC
81. The power to direct investigation under section 156(3) of Cr PC can be exercised by
(a) a Magistrate
(b) a Session judge
(c) both (a) and (b)
(d) either (a) or (b).
82. Section 156(2) of Cr PC takes care and cures
(a) any ‘ irregularity in the conducting of investigation by the police officer
(b) any illegality in the conducting of investigation by the police officer
(c) both (a) and (b)
(d) only (a) and not (b).
83. Under section 159 of Cr PC, a preliminary inquiry into the commission of offence can
be conducted
(a) by the Magistrate having jurisdiction. To take cognizance
(b) by any Magistrate subordinate to the Magistrate having jurisdiction, under the orders of
such Magistrate
(c) by the police
(d) only (a) & (b).
84. The powers under section 159 of Cr PC can be exercised by the Magistrate
(a) when the police is still investigating the case
(b) when the police decides not to investigate the case
(c) when the police has filed the report under section 173 of Cr PC
(d) all the above.
85. The power to require attendance of a person acquainted with the facts and
circumstances of the case under section 160 of Cr PC, requires
(a) notice by telephone
(b) notice in writing
(c) either (a) or (b)
(d) both (a) and V P
86. The investigating officer under section 160 of Cr PC cannot require the attendance at a
place other than the place of residence, of
(a) a male who is under the age of 18 years
(b) a male who is under the age of 16 years
(c) a woman
(d) either (a) or (b) or (c).
87. The investigating officer under section 160 of Cr PC cannot require the attendance of a
male, at a place other than the place of his residence, who is
(a) under the age of 15 years
(b) under the age of 16 years
(c) under the age of 18 years
(d) under the age of 21 years.
88. A trial on a police report initiated by the breach of the mandatory provision relating to
investigation,
(a) is vitiated and liable to be set aside
(b) is‘ not vitiated and cannot be set aside unless the illegality in the investigation can be
shown to have brought about a miscarriage of justice
(c) is not vitiated and cannot be set aside at all
(d) either (b) or (c).
89. The propositions are:
I. Delay in despatch of the MR is not a circumstance which can throw out the
prosecution case in its entirety.
II; Delay in despatch of the FIR is a circumstance which can throw out the prosecution
case in its entirety.
III. The extra-ordinary delay in sending the FIR is a circumstance which provides a
legitimate basis for suspecting that the FIR was recorded much later than the stated
date and hour, affording sufficient time to the prosecution to introduce improvements.
Which of the following is correct in respect of the aforesaid proposition
(a) I is true, II & III are false
(b) I & III are true, II is false
(c) II & III are true, I is false
(d) III is true, I & II are false.
90. Section 159 of Cr PC empowers the Magistrate
(a) to restrain police investigation and order magisterial inquiry when the investigation of a
cognizable offence by the police is already in process
(b) to order magisterial inquiry into a cognizable offence only in those cases in which the
police decides not to investigate the case empowers the
(c) to order » magisterial inquiry into a cognizable offence where the investigation by the
police is already in process
(d) either (a) or (b) or (c).
91. Under section 159 of Cr PC, the Magistrate has the power to
(a) direct-investigation by the police
(b) depute any Magistrate subordinate to him to hold a preliminary inquiry
(c) either (a) or (b)
(d) only (b) and not (a).
92. Section 160 of Cr PC authorises a police officer to
(a) summon a person as a witness
(b). summon a person for the production of documents
(c) summon a person for the production of an article(s)
(d) all of the above.
93. A person can be summoned as a witness under section 160 of Cr PC, by
(a) any Police Officer
(b) the Station House Officer
(c) an Investigating Officer
(d) any of the above.
94. A person who fails to attend on being served with an order under section 160 of Cr PC of an investigating officer, is liable to be prosecuted under
(a) section 173,I.P.C.
(b) section 174, I.P.C.
(c) section 186,I.P.C.
(d) all of the above.
95. Laying of trap is a part of
(a) investigation
(b) inquiry
(c) preliminary inquiry
(d) trial.
96. Section 161 of Cr PC covers the cases of information received by the police
(a) before the commencement of investigation
(b) after the commencement of investigation
(c) after the conclusion of trial
(d) both (a) and (b).
97. Who amongst the following is not a police officer
(a) enforcement officer investigating the case under FERA
(b) An officer invested with powers under NDPS Act
(c) officer of Railway Protection Force
(d) all of the above.
98. An unjustified and unexplained long delay on the part of the investigating officer in
recording the statement of a material witness would render the evidence of such witness
(a) unreliable
(b) inadmissible
(c) inadmissible and unreliable
(d) only (b) and not (a).
99. Statement made under section 161, Cr. P.C. during investigation of a cross-case is
(a) always admissible in the main case
(b) may be admissible in the main case
(c) not at all admissible in the main case
(d) admissible in the main case with the leave of the Court.
100. A refusal to answer questions put to a witness under section 161 of Cr PC is an offence under
(a) section 176, I.P.C.
(b) section 179, l.P.C.
(c) section 187,I.P.C.
(d) neither (a) nor (b) nor (c).
101. Complaint to the police or statements made to the police that fall within exception of section 499, I.P.C., can claim
(a) absolute privilege
(b) qualified privilege
(c) both absolute as well as qualified privilege
(d) neither absolute nor qualified privilege.
102. Under section 161 of Cr PC, the investigating police officer has the power to examine orally any person acquainted with the facts & circumstances of the case. The expression ‘any person acquainted with the facts & circumstances of the case’
(a) includes accused
(b) does not include accused
(c) refers to the prosecution witnesses only
(d) both (b) &(c).
103. The investigating officer during the investigation records the statement of a witness
under
(a) section 160 of Cr PC
(b) section 162 of Cr PC
(c) section 161 of Cr PC
(d) section 164 of Cr PC
104. The Magistrate records the confession of an accused or a statement of a witness during investigation, under
(a) section 164 of Cr PC
(b) section 281 of Cr PC
(c) section 162 of Cr PC
(d) chapter XXIII of Cr PC
105. A joint statement of several witnesses, recorded during investigation
(a) will render these persons as incompetent witnesses
(b) will render their evidence as inadmissible
(c) will neither render these persons ‘ as incompetent witnesses nor their evidence
inadmissible
(d) will render these persons as incompetent witnesses and also their evidence inadmissible.
106. A statement of a witness recorded under section 161 of Cr PC, in writing during
investigation and is signed by the person making the statement is hit by
(a) section 161(2) of Cr PC
(b) section 161(3) of Cr PC
(c) section 162(1) of Cr PC
(d) section 162(2) of Cr PC.
107. FIR is not a substantive evidence, it can be used during trial
(a) to corroborate the informant
(b) to contradict theinformant
(c) both (a) &(b/)
(d) neither (a)”n0r (b).
108. FIR can be given by the accused also. If FIR is given by the accused the same can be
used
(a) for corroboration of the accused
(b) for contradiction of the accused
(c) as an admission if the same is non-confessional
(d) against the accused as confession.
109. Statement recorded during investigation under section 161_of Cr PC can be used
during trial
(a) for corroborating the witness
(b) for contradicting the witness
(c) both (a) & (b) above
(d) neither (a) nor (b).
110. If a person whose statement is recorded by the police during investigation is called
as a defence witness, his previous statements before the police
a) can be used for corroborating him
b) can be used for contradicting him
c) cannot be used for any purpose
d) both (a) & (b).
111. Section 162 of Cr PC provides that
(a) the statement made by a person to the police officer during investigation and reduced to
writing, shall be signed by the person making the statement
(b) the statement made by a person to the police officer during investigation and reduced to
writing, may not be signed by the person making the statement
(c) no statement made by a person to the police officer during investigation and reduced to
writing shall be signed by the person making the statement
(d) statement made by a person to the police officer during investigation and reduced to
writing shall be signed by the person making the statement only if the police officer has
obtained prior permission of the court to obtain signature thereon.
112. The prohibition contained in section 162 of Cr PC
(a) shall not apply where the statement made to the police during investigation is made
admissible under any other provision of the Code.
(b) shall apply even where the statement made to the police officer during investigation is
made admissible under any other provision of the code as section 162 has an over-riding
effect
(c) may or may not apply where the statement made to the police during investigation is
made admissible under any other provisions of the Code, depending on the facts and
circumstances of the case.
(d) may or may not apply where the statement made to the police during investigation is
made admissible under any other provision of the Code, depending on the discretion of the
Court.
113. The bar created by section 162 of Cr PC does not apply to
(a) civil proceedings C
(b) proceedings under Article 34 of the constitution
(c) proceedings under Article 226 of the constitution
(d) all of the above.
114. The word ‘statement’ within the meaning of section 162 of Cr PC, means
(a) narration
(b) signs and gestures
(c) both (a) and (b)
(d) only (a) and not (b).
115. Which of the following is not a ‘statement’ within the ‘meaning of section 162 of Cr
PC
(a) record of the search made by the police
(b) signatures and handwriting or thumb impressions taken for the purpose of comparison
(c) both (a) and (b)
(d) only (a) and not (b).
116. Which of the following statements is/are covered under section 162 of Cr PC
(a) a statement made to a Magistrate in the presence and hearing of a police-officer
(b) a statement made to a third person in the presence of a police officer
(c) a statement made to a person assisting the police in the investigation of a case
(d) neither (a) nor (b) nor (c).
117. Section 162 of Cr PC applies to statements made to a police officer during investigation by
(a) a witness
(b) an accused person
(c) an accused who turns approver
(d) all of the above.
118. Section 162 of Cr PC prohibits a statement from being used in evidence, made in the course of
(a) inquiry
(b) investigation
(c) trial
(d) either (a) or (b)_
119. Section 162 of Cr PC applies to statements made to a police—officer
(a) in the course of investigation
(b) before the investigation began
(c) after the investigation had ended.
(d) all of the above.
120. The question whether a statement was recorded in the course of investigation is a
(a) question of law
(b) question of fact
(c) mixed question of law and fact
(d) question of law or question of fact depending on the facts and circumstances.
121. The previous statement of a witness which can be used for the purposes of
contradicting the witness as provided under the proviso to section 162(1), Cr. P.C., may
be the one
(a) reduced in writing
(b) not reduced in writing
(c) oral
(d) either (a) or (b) or (c). I
122. Where a witness is called by the court as a Court witness, a previous statement
made by him to the police can
(a) be used by the accused for contradicting such witness
(b) be used by the prosecution for contradicting such witness with the permission of the court
(c) either (a) or (b)
(d) not be used either by the accused or by the prosecution for any purpose.
123. In re-examination, the previous statement made to a police officer can be used for
(a) the purposes of contradicting what is stated in the cross-examination
(b) the purposes of explaining what is left over in the examination-in-chief
(c) the purpose of explaining any matter in the cross-examination
(d) all of the above.
124. Which of the following is not outside the provision of section 162(1) of Cr PC
(a) statement falling under section 32(1) of the Indian Evidence Act
(b) statement falling under section 27 of the Indian Evidence Act
(c) statements recorded by the police officer during investigation
(d) neither (a) nor (b) nor (c).
125. The non-compliance with the provisions of section 164 of Cr PC
(a) reduces the statement recorded by the Magistrate to a nullity
(b) is an irregularity curable under section 463 of Cr PC
(c) Both (a) and (b)
(d) Neither (a) nor (b)
126. The confession of an accused or the statement of a witness, under section 164 of Cr PC, can be recorded during
(a) inquiry
(b) investigation
(c) trial
(d) either (a) or (b) or (c).
127. The confession of an accused or the statement of a witness, under section 164 of Cr
PC, may be recorded
(a) before the beginning of the investigation
(b) in the course of investigation only
(c) in the course of investigation or at any time afterwards before the commencement of inquiry
or trial
(d) in the course of investigation or at any time afterwards during the inquiry but before the
commencement of trial.
128. A confession under section 164 of Cr PC can be recorded by
(a) Metropolitan/Iudicial Magistrate
(b) Executive Magistrate
(c) Police officer on whom the power of a Magistrate has been conferred
(d) either (a) or (b).
129. Maintenance of a case diary by an investigating officer is
(a) directory
(b) mandatory
(c) discretionary
(d) neither (b) nor (c).
130. Maintenance of a case diary by an investigating officer is mandatory under
(a) Section 162 of Cr PC
(b) Section 167 of Cr PC
(c) section 172 of Cr PC
(d) Section 174 of Cr PC
131. Section 167 of Cr PC authorizes remand of an accused in
(a) police custody
(b) judicial custody
(c) either (a) or (b)
(d) neither (a) nor (b).
132. Section 167 of Cr PC is applicable during
(a) investigation
(b) enquiry
(c) trial
(d) all of the above.
133. …….is competent to record the statement or confession under section 164 of Cr PC
(a) a police officer
(b) a police officer conferred with powers of special Executive Magistrate
(c) an Executive Magistrate
(d) neither a police officer nor a police officer conferred with powers of special Executive
Magistrate nor an Executive Magistrate.
134. Under section 164 of Cr PC, statements other than confession
(a) can be recorded by a Magistrate where the person who intends to make such statement
appears before the Magistrate on his own
(b) can be recorded by a Magistrate where the person who intends to make such statement is
produced or sponsored by the defence.
(c) cannot be recorded by a Magistrate unless the person who intends to make such statement is
produced or sponsored by the investigating officer
(d) can be recorded by the Magistrate without going into the question as to how or who has
produced or sponsored the person who intends to make such statement.
135. Obtaining signature on the confession of the person making the confession, under
section 164 of Cr PC is
(a) mandatory
(b) directory, being procedural
(c) discretionary
(d) optional.
136. Failure to get the signature of the person making the confession is
(a) not very material if the making of such statement is not dispatched by the accused
(b) not very material even if the making of statement is disputed by the accused
(c) not very material irrespective of whether making of such statement is disputed or notdisputed
by the accused and the defect is curable under section 463 of Cr PC
(d) very material in all circumstances and is fatal.
137. Section 164 of Cr PC provides for recording of
(a) confession by accused persons and statements by any person other than the accused
(b) confession by t accused persons and statements by any person including an accused
(c) statements by witness only
(d) confession and statements by an accused person.
138. Section 164 of Cr PC provides a special procedure for recording of
(a) confessions
(b) statements made- during the course of investigation
(c) confessions as well as statements made during the course of investigation
(d) either (a) or (b).
139. A non-confessional statement recorded under section 164 of Cr PC
(a) is a substantive piece of evidence
(b) is not a substantive evidence
(c) may or may not be substantive evidence depending on the facts & circumstances
(d) all of the above.
140. A confessional statement recorded in accordance with the special procedure under
section 164 of Cr PC
(a) can be used as a substantive evidence without being formally proved
(b) cannot be used as a substantive evidence at all
(c) cannot be used as a substantive evidence without being formally proved
(d) either (b) or (c).
141. A confessional statement under section 164 of Cr PC can be recorded
(a) during the course of investigation only & not afterwards
(b) during the course of investigation or at any time afterwards before the commencement of
inquiry or trial
(c) during investigation as well as during inquiry but before commencement of trial
(d) during the investigation, inquiry or trial.
142. Statements of witness recorded under section 164 of Cr PC are
(a) substantive evidence
(b) corroborative evidence
(c) both substantive and corroborative evidence
(d) neither substantive nor corroborative evidence.
143. If a magistrate, administers oath before recording the confession, the confessional statement is
(a) good in law and admissible in evidence
(b) good in law but admissible in evidence only on corroboration
(c) bad in law and inadmissible in evidence
(d) bad in law but admissible in evidence if corroborated from other evidence.
144. Where an accused remained in police custody for maximum’ period of fifteen days,
he can further be remanded to police custody by
(a) a Magistrate
(b) a Session Court
(c) the High Court in exercise of its inherent powers
(d) neither (a) nor (b) nor (c).
145. Under section 167 of Cr PC, the longest period for which an accused can be remanded to police custody is
(a) fifteen days
(b) fourteen days
(c) l ten days
(d) twenty-eight days.
146. Where an accused is granted bail under section 167(2), proviso (a) of Cr PC and on
filing on charge-sheet the investigation revealed that the accused has committed a
serious offence, the bail so granted under section 167(2), proviso (a) of Cr PC
(a) cannot be cancelled in the absence of special reasons
(b) can be cancelled under section 437(5)
(c) can be cancelled under section 439(2)
(d) can be cancelled under section 437(5) or section 439(2).
147. Entries in the case diary maintained by an investigating officer under section 172 of
Cr PC can be used
(a) as an evidence
(b) to explain contradiction .
(c) for aiding the court to decide on a point
(d) both (b) and (c).
148. Under section 172 of Cr PC, the bar against production and use of case diary» is
intended to operate in
(a) an inquiry or trial for an offence
(b) civil proceedings
(c) writ proceedings
(d) all of the above.
149. Where the police submits a final report under section 173 of Cr PC, to a Magistrate,
the Magistrate is
(a) bound by the conclusion drawn by the police and can not order re-investigation
(b) not bound by the conclusion drawn by the police and may direct re-investigation, or issue
process.
(c) bound by the conclusions drawn by the police and has to issue process
(d) both (a) and (c).
150. Where the police submits a final report under section 173(2) of Cr PC for dropping
of proceedings to a Magistrate, the Magistrate
(a) may accept the same
(b) may reject the same and take cognizance
(c) may reject the same and order further investigation
(d) any of the above. I
151. In submitting the final report under section 173 of Cr PC, the investigating agency
(a) is obliged to seek the opinion of a public prosecutor
(b) can be compelled by the court-opinion of a public prosecutor
(c) has to carry out a combined operation with the public prosecutor
(d) neither (a) nor (b) or (c)
152. Re-opening of investigation under section 173(8) of Cr PC
(a) can be done by the investigating officer only
(b) can be done only under the orders of the Magistrate
(c) can be done only after seeking opinion of the public prosecutor, and on the direction of the
State Government
(d) can be done by the police of its own or under the orders of the court.
153. Before ordering further investigation under section 173(8) of Cr PC the Court is
(a) under an obligation to hear the accused
(b) under no inhibition
(c) under an obligation to hear the public prosecutor
(d) under an obligation to hear the accused person not sent for trial.
154. Further investigation within the meaning of section 173(8) of Cr PC is
(a) the continuation of the earlier investigation
(b) fresh investigation ab initio wiping out the earlier investigation altogether
(c) re-investigation ab initio wiping out the earlier investigation
(d) either (a) or (b) or (c).
155. Section 463 of Cr PC permits
(a) oral evidence by the Magistrate of the confession made to him
(b) oral evidence to prove that the procedure laid down under section 164, Cr PC had actually
been followed, where the record, which ought to show that, does not do so
(c) both (a)&(b) X
(d) neither (a) nor (bi).
156. Under section 172 of Cr PC, it is mandatory for every investigating officer to
maintain a ease diary. The said case diary can be used, during trial.
(a) by the court
(b) by the police officer making a statement during trial to refresh his memory
(c) by the accused to a very limited extent
(d) all the above.
157. Under section 167 of Cr PC an accused person can be remanded to police custody or judicial custody, the authorization of such detention
(a) cannot exceed fourteen days at one time
(b) cannot exceed fifteen days at one time
(c) cannot exceed ten days at one time
(d) cannot exceed thirty days at one time.
158. Under section 167 of Cr PC the nature of custody can be altered from judicial custody to police custody & vice-versa, this alteration can be done
(a) during the period of first seven days
(b) during the period of first ten days
(c) during the period of first fifteen days
(d) during the period of first fourteen days.
159. For the authorization of detention in any custody
(a) the accused must be produced before the Magistrate
(b) the accused need not be produced before the Magistrate at all .
(c) may be produced or may not be produced
(d) not necessarily be produced.
160. Under section 167 of Cr PC, the Magistrate can authorise detention for a total period of 90 days during investigation, in» cases of offences punishable
(a) with death
(b) with imprisonment for life
(c) with imprisonment for a term not less than 10 years
(d) all the above.
161. Under section 167 of Cr PC, for detention for a total period of 90 days during investigation, the expression ‘for a term of imprisonment not less than 10 years’ means
(a) more than 10 years
(b) upto 10 years
(c) less than 10 years
(d) both (b) & (c).
162. Under section 167 of Cr PC for offences other than those punishable with death, imprisonment for life or imprisonment for a period not less than 10 years, the detention during investigation, can be authorised for a total period of
(a) 30 days
(b) 45 days
(c) 60 days
(d) 75 days.
163. If the investigation is not completed within 90 days or 60 days as the case may be, and the accused is in custody, on the expiry of said period the accused is entitled to be
(a) discharged
(b) released on bail or making an application for release on bail
(c) released on bail without making an application for release on bail
(d) acquitted.
164. For the purposes of computation of period of 90 days or 60 days as the case may be, for the purposes of section 167(2) of Cr PC
(a) the day of arrest of the accused has to be excluded
(b) the day on which the accused was remanded is to be excluded
(c) the day of arrest of the accused and the day on which the accused was remanded, if
different, both have to be excluded
(d) the day of arrest of the accused only has to be excluded and the day on which the accused
was remanded, even if different, cannot be excluded.
165. An accused was arrested for offence under section 302, IPC on 1-1-2002, and remanded to judicial/police custody on 2-1-2002, now for the purposes of section 167(2) of Cr PC, in computing the period of ninety days
(a) the day of arrest i.e. 1-1-2002 only has to be excluded and shall be computed w.e.f. 2-1-2002
when remanded, thus 90th day shall fall on 1-4-2002
(b) the day of arrest i.e. 1-1-2002 and the day of remand i.e. 2-1-2002, both have to be excluded
and the 90th day shall fall on 2-4-2002
(c) neither 1-1-2002 i.e. the day of arrest nor 2-1’-2002, the day of remand is to be excluded, and
the 90th day shall fall on 31-3-2002
(d) either (a) or (c).
166. In a case triable by a Magistrate as a summons case, the investigation can not be continued under section 167(5) of Cr PC
(a) beyond a period of six months from the date of arrest of the accused
(b) beyond a period of six months from the date of commission of the offence
(c) beyond a period of maximum term of imprisonment prescribed for the offence from the date
of arrest of the accused
(d) beyond a period of maximum term of imprisonment prescribed for the offence from the date
of commission of the offence.
167. Continuation of investigation, in a summons case triable by a Magistrate, beyond the period of six months, from the date of arrest of the accused, without the previous permission of the Magistrate
(a) shall render the entire investigation vitiated bad and the accused is liable to be discharged
(b) shall not render the entire investigation bad but the accused is liable to be discharged
(c) shall not render the entire investigation bad, but the prosecution can not rely on the
investigation so carried out and the evidence so collected shall not be admissible
(d) either (a) or (b)
168. After completion of investigation, the police is to submit a final report to the Magistrate. The Magistrate
(a) is bound by the conclusions drawn by the police and accept the same if the police
recommended that there is no sufficient ground for proceeding further
(b) is not bound by the conclusions drawn by the police and may order further investigation
(c) may issue a process against the accused person(s)
(d) (d) both (b) 8: (c).
169. Upon the report being forwarded under section 1-73(2) of Cr PC to the Magistrate for dropping of proceedings, before deciding not to take cognizance the Magistrate
(a) must give notice to & provide the informant an opportunity of being heard
(b) need not give notice to & provide the informant an opportunity of being heard at all
(c) may or may not give notice to 8: provide the informant an opportunity of being heard,
depending on the facts & circumstances
(d) both (b) & (c).
170. The orders passed under section 125 of Cr PC are
(a) summary in nature and do not finally determine the rights and obligations of the parties
(b) summary in nature and do not finally determine the rights and obligations of the parties
which are to be finally determined by a civil court
(c) substantive in nature and finally determine the right and obligations of the parties
(d) substantive in nature and are not subject to determination of a right of the parties by a
civil court.
171. Section 125 of Cr PC provides a remedv
(a) by way of summary procedure which is co-extensive with the civil liabilities under the
personal law
(b) by way of summary procedure which is co-extensive with the civil liabilities under the civil
law
(c) by way of summary procedure which is not co-extensive with the civil liabilities under the
personal law or civil law
(d) both (a) and (b).
172. Which of the following statements, in the context of section 125 of Cr PC, is not
correct
(a) it is inconsistent with section 23 of the Hindu Adoption and Maintenance Act, 1956 and both
cannot stand together
(b) section 24 of the Hindu Marriage Act, 1955 does not stand in the way of relief under section
125 of Cr PC
(c) sections 18 and 20 of the Hindu Adoption and Maintenance Act, .1956 have not affected the
right of the wife or the child under section 125 of Cr PC
(d) section 25 of the Hindu Marriage Act, 1955 does not stand in the way of relief under section
125 of Cr PC
173. Section 125 of Cr PC is applicable to
(a) Hindus
(b) Muslims
(c) Christians
(d) all persons belonging to all religions.
174. The Muslim Women (Protection of Rights on Divorce) Act, 1986, deals with
(a) claim of maintenance by a Muslim woman
(b) claim of maintenance by a Muslim divorced women
(c) claim of maintenance by the children of the marriage with said Muslim divorced women
(d) both (b) and (c).
175. Under section 125 of Cr PC who cannot be ordered to provide maintenance
(a) a father
(b) a husband
(c) a daughter
(d) none of the above.
176. Where the husband has obtained a decree of divorce against the wife on the ground
of desertion, under section 125, it is
(a) no bar for the wife to claim maintenance against the husband
(b) bar for the wife to claim maintenance against the husband
(c) may be a bar for the wife to claim maintenance against the husband
(d) either (a) or (c).
177. In proceedings under section 125, Cr. P.C.
(a) strict proof of marriage is necessary
(b) standard of proof is very high as required in a proceeding under the Hindu Marriage Act,
1955
(c) prima facie proof showing that the parties are living as husband and wife is sufficient
(d) prima facie proof showing that the parties are living on husband and wife is not sufficient and
something more is required.
178. Under section 125 of Cr PC the father and the mother i.e. the parents can claim maintenance from their
(a) son
(b) daughter
(c) stepson
(d) both son and daughter.
179. The expression ‘mother’ under section 125(1) means and is referable to
(a) real or natural mother
(b) stepmother generally
(c) both (a) and (b)
(d) neither (a) nor (b).
180. Section 188 of Cr PC provides for extra- territorial jurisdiction over
(a) Indian citizens
(b) non-citizens
(c) foreigners
(d) all of the above.
181. A stepmother can claim maintenance under section 125 of Cr PC from her stepson
(a) provided she is childless and widow
(b) provided she is childless, and her husband is incapable of supporting and maintaining her
(c) provided she is childless though her husband is capable of supporting and maintaining her
(d) both (a) and (b).
182. Maintenance under section 125 of Cr PC can be claimed
(a) by a legally wedded wife during the subsistence of marriage
(b) by a divorced wife who has not remarried
(c) both (a) and (b)
(d) only (a) &(b)
183. Maintenance under section 125 of Cr PC cannot be claimed
(a) by a married daughter having attained majority
(b) by legitimate or illegitimate minor child
(c) by father or mother
(d) all the above.
184. Who amongst the following can claim maintenance under section 125 of Cr PC
(a) a legitimate or illegitimate major male child, suffering from physical or mental abnormality
(b) a legitimate or illegitimate minor child
(c) wife including divorced but not remarried woman –
(d) all the above.
185. Amount of maintenance under section 125 of Cr PC is
(a) limited to Rs. 500 per month
(b) limited to Rs. 1000 per month
(c) limited to Rs. 5000 per month
(d) without any limit.
186. Section 125 of Cr PC does not contemplate payment of maintenance allowance
(a) by mother to children
(b) by wife to husband
(c) both (a) & (b)
(d) neither (a) nor (b).
187. Under section 125(4) of Cr PC who of the following cannot claim maintenance
(a) wife living in adultery
(b) wife living separately by mutual consent
(c) both (a) and (b)
(d) either (a) or (b).
188. Under section 125 of Cr PC, a Magistrate
(a) has the power to grant interim maintenance & the expenses of the proceedings
(b) has no power to grant interim maintenance & the expenses of the proceedings
(c) has power to grant interim maintenance but no power to grant expenses of the
proceedings
(d) has no power to grant interim maintenance but has the power to grant expenses of the
proceedings.
189. Monthly allowance for maintenance or interim maintenance & expenses for
proceedings are payable
(a) from the date of the order (b) from the date of the application if specifically ordered
(c) from the date of the application even if not specifically ordered
(d) both (a)&(b).
190. Monthly allowance or the interim monthly allowance can be altered, as provided
(a) under section 125(5) of Cr PC
(b) under section 126 of Cr PC
(c) under section 127 of Cr PC
(d) under section 128 of Cr PC.
191. An order for maintenance or interim allowance can be cancelled under the
circumstances stated in
(a) under section 125(5) of Cr PC
(b) under section 127(2) of Cr PC
(c) under section 127(3) of Cr PC
(d) all the above.
192. Proceedings under section 125 of Cr PC
(a) can be instituted where the wife is residing on the date of the application
(b) can be instituted where the husband resides or is residing on the date of the application
(c) where the husband & the wife last resided
(d) either (a) or (b) or (c).
193. Application for interim monthly allowance & expenses of the proceedings
(a) is to be decided within 30 days of the service of notice of the application to such person
(b) is to be decided within 60 days of the service of notice of the application to such person
(c) is to be decided within 90 days of the service of notice of the application to such person
(d) is to be decided within 6 months of the service of notice of the application to such person.
194. Under section 125 of Cr PC, imprisonment of the defaulter
(a) is a mode of satisfying the liability
(b) is the mode of enforcement only
(c) is both mode of satisfying the liability & of enforcement
(d) a person ordered to pay maintenance stands absolved by his being sent to jail.
195. Period of limitation for execution of the order of maintenance is
(a) one year from the date on which it becomes due
(b) three years from the date on which it becomes due
(c) twelve years from the date on which it becomes due
(d) thirty years from the date on which it becomes due.
196. In case where an inquiry, trial or other proceedings have been conducted in a wrong Place
(a) the inquiry, trial or other proceedings shall be void ab imtio
(b) the inquiry, trial or other proceedings cannot be set aside as void unless it has occasioned
in failure of justice
(c) the inquiry, trial or other proceedings, cannot be set aside even if it has occasioned in
failure of justice
(d) either (a) or (c).
197. Objection as to the lack of territorial jurisdiction of the criminal court
(a) can be taken before or at the time of commencement of trial
(b) can be taken at any time after the commencement of trial
(c) can be taken in appeal for the first time
(d) all the above.
198. Under the scheme of Cr PC the original jurisdiction to take cognizance of an offence is vested in
(a) the Court of Sessions
(b) the Court of Magistrate
(c) the High Court
(d) all the above.
199. Court of Sessions has the original jurisdiction to take cognizance of offences, by virtue of
(a) section 190 of Cr PC
(b) section 193 of Cr PC
(c) section 199 of Cr PC
(d) section 198 of Cr PC.
200. Court of Sessions under section 199 of Cr PC has the original jurisdiction to take cognizance
(a) on an oral complaint of a private person
(b) on an oral complaint of the public prosecutor
(c) on a written complaint of a private person
(d) on a written complaint of the public prosecutor.
201. Period of limitation prescribed for making a complaint to the Court of Sessions in original jurisdiction is
(a) three months from the date of commission of the offence
(b) six months from the date of commission of the offence
(c) one year from the date of commission of the offence
(d) as provided under section 468 of Cr PC.
202. Under section 188 of Cr PC sanction of the Central Government is
(a) a condition precedent for taking cognizance of the offence
(b) not a condition precedent for taking cognizance and could be obtained before trial begins
(c) not necessary
(d) necessary only where a foreigner is involved in the commission of the offence.
203. Taking cognizance is
(a) a judicial function
(b) an administrative function
(c) a supervisory function
(d) both (a) and (b).
204. While taking cognizance, the court takes cognizance of
(a) the offence
(b) the offender
(c) the offenders if there are more than one
(d) all of the above.
205. The court is said to have taken cognizance when it
(a) orders investigation under section 156(3) of Cr PC
(b) issues a search warrant for the purpose of investigation P
(c) both (a) and (b)
(d) neither (a) nor (b).
206. The competency and jurisdiction of the Magistrate to take cognizance of the offence
(a) affected by the illegality committed in the course of investigation
(b) affected by the irregularity committed in the court of investigation
(c) neither (a) nor (b)
(d) both (a) and (b).
207. At the time of taking cognizance the Magistrate is to see
(a) whether there are sufficient grounds on record to proceed against the accused person
(b) whether there is a prima facie case against the accused person to frame the charge
(c) sift or appreciate the evidence with reference to the material and come to the conclusion
whether prima facie case is made out against the accused
(d) all of the above.
208. Where the Magistrate takes cognizance suo motu under section 190(1)(c) of Cr PC,
the compliance with the provisions of section 191 of Cr PC is
(a) directory, being procedural
(b) mandatory
(c) discretionary
(d) optional.
209. Non-compliance with the provisions under section 191 of Cr PC where cognizance is taken by the Magistrate under section 190(1)(c) of Cr PC
(a) vitiates the trial and the proceeding will be wholly void
(b) is an irregularity curable under section 460 of Cr PC
(c) does not vitiate the trial unless it has caused prejudice to the accused
(d) amounts to waiver of his right by the accused.
210. Section 190 of Cr PC provides for taking of cognizance by the Magistrate
(a) on a police report filed under section 173 of Cr PC
(b) on a complaint within the meaning of section 2(d) of Cr PC
(c) suo motu
(d) all the above.‘
211. On receipt of a complaint within the meaning of section 2(d) of Cr PC, the Magistrate
(a) has the jurisdiction to conduct an inquiry himself
(b) has the jurisdiction to direct the police to investigate
(c) both (a) & (b)
(d) only (b) & not (a).
212. Cognizance of offence punishable under Chapter X of IPC can be taken by the Magistrate
(a) on a police report
(b) on a written complaint of the public servant
(c) both (a) & (b)
(d) only (a) & not (b).
213. The provisions of section 195 of Cr PC are
(a) directory, being procedural
(b) discretionary, depending on the facts and circumstances of the case
(c) optional for the court
(d) mandatory
214. The provisions of section 195 of Cr PC require
(a) a complaint in writing
(b) an oral complaint
(c) either'(a) or (b)
(d) neither (a) nor (b).
215. Under section 195 of Cr PC the complaint in writing must be by
(a) the public servant concerned
(b) an officer to whom such public servant is administratively subordinate
(c) either (a) or (b)
(d) both (a) and (b).
216. Sections 195 to 199 of Cr PC lay down
(a) rules of procedure simply without creating any bar to the taking a cognizance by a court
(b) create a bar to the taking of cognizance unless some requirements are complied with
(c) create an absolute bar to the taking of cognizance irrespective of whether the requirement are
complied with or not
(d) either (a) or (c).
217. Under section 195 of Cr PC a complaint can be filed by
(a) a public servant
(b) a private individual
(c) police
(d) either (a) or (b) or (c) .
218. Section 197 of Cr PC affords protection to
(a) private individuals
(b) employees of public sector undertakings
(c) public servants
(d) all the above.
219. Prosecution for offences against marriage under Chapter XX of IPC
(a) can be launched by any person through a complaint
(b) can be launched by any person aggrieved by the offence through a complaint
(c) can be launched by the police
(d) all the above.
220. Cognizance of offence under section 498A of IPC can be taken
(a) on a police report
(b) on the complaint of the person aggrieved
(c) on the complaint of father, mother, brother or sister of the person aggrieved
(d) all the above.
221. Cognizance of offence of defamation under Chapter XXI of IPC can be taken
(a) on a police report
(b) on a complaint made by an aggrieved person
(c) suo motu
(d) all the above.
222. Where the Magistrate takes cognizance of the offence on a complaint made to him
and considers, before the issue of process to the accused that the matter should be
investigated, such investigation can be ordered, under
(a) section 156(3) of Cr PC
(b) section 190 of Cr PC
(c) section 173(8) of Cr PC
(d) section 202 of Cr PC
223. On receipt of a complaint, before ordering investigation by the police, under section
156(3) of Cr PC, the Magistrate has to see that
(a) the complaint discloses cognizable offence(s) triable by the Magistrate
(b) the‘ complaint discloses cognizable offence(s) exclusively triable by the Court of Session
(c) the coniplaint discloses cognizable offence(s) irrespective of whether the same is triable by
the Magistrate or exclusively by the Court of Session
(d) the complaint discloses cognizable offence(s) only triable by the Magistrate and not
exclusively triable by the Court of Sessions, as it is for the Magistrate to enquire himself into
offences exclusively triable by the Court of Sessions.
224. In a complaint disclosing commission of offence triable by a Magistrate
(a) it is necessary to examine the complainant and all the other witnesses on oath
(b) it is not necessary to examine the complainant and all the other witnesses
(c) it is necessary to examine the complainant on oath & it is not necessary to examine all
the other witnesses
(d) both (a) & (c).
225. Recording of pre-summoning, evidence may be dispensed with under section 200 of Cr
PC
(a) if the complaint is supported by the affidavit of the complainant
(b) if the complaint is made in writing by a public servant in the discharge of his official duties
(c) both (a) & (b) are correct
(d) only (a) is correct but (b) is incorrect.
226. Once the Magistrate has proceeded with examination of the complainant or decided to
record the statement of the complainant on oath
(a) the police cannot be directed to investigate under section 156(3) of Cr PC
(b) the police can still be directed to investigate under section 156(3) of Cr PC
(c) the police may or may not be so directed under section 156(3) of Cr PC depending on the
facts & circumstances of the case
(d) both (b) &(c).
227. On a complaint for offence(s) triable by a Magistrate, after the recording of the
statement of the complainant & the witnesses, if any on oath
(a) the-police can be directed to investigate under section 156(3) of Cr PC
(b) the police can be directed to investigate under section 202 of Cr PC
(c) both (a) & (b)
(d) neither (a) nor (b).
228. On a complaint for offence(s) triable by the Court of Sessions, after recording of the
statement of the complainant & the witnesses on oath
(a) the police can be directed to investigate under section 156(3) of Cr PC
(b) the police can be directed to investigate under section 202 of Cr PC
(c) the police cannot be directed to investigate at all and the Magistrate himself has to conduct an
enquiry
(d) both (a) & (b).
229. Direction to the police to investigate under section 202 of Cr P C
(a) can be given without examining the complainant on oath
(b) cannot be given without examining the complainant on oath
(c) can be given before or after the examining of the complainant on oath
(d) both (a) & (c).
230. In a, complaint disclosing commission of offence(s) exclusively triable by the Court
of Sessions
(a) it is necessary that the complainant & some of the witnesses be examined on oath
(b) it is necessary to examine the complainant on oath 8: no witness need be examined on oath
(c) it is necessary to examine the complainant and all the witnesses of the complainant on oath
(d) either (a) or (b).
231. Filing of list of witnesses by the complainant before issuance of summons or warrant
to the accused under section 204 of Cr PC
(a) is mandatory
(b) is directory
(c) neither mandatory nor directory
(d) either mandatory or directory.
232. If the complainant fails to file the list of witnesses before issuance of summons or
warrant to the accused
(a) the same cannot be filed thereafter
(b) the same can be filled at any time thereafter without the permission of the court
(c) the same can be filed at any time thereafter only with the permission of the court
(cl) either (a) or (b).
233. Special summons under section 206 of Cr PC can be issued
(a) by a Magistrate only
(b) by a Court of Sessions
(c) by a Magistrate as well as the Court of Sessions
(d) ” by the High Court.
234. A case can be committed to the Court of Sessions, by a Magistrate
(a) under section 209 of Cr PC
(b) under section 323 of Cr PC
(c) under section 324 of Cr PC
(d) both (a) & (b) above.
235. Under section 209 of Cr PC, a case can be committed to the Court of Sessions
(a) if the offenceis exclusively triable by the Court of Sessions
(b) if the Magistrate thinks that the case ought to be tried by the Court of Sessions l
(c) both (a) &: (b)
(d) only (b) & not (a).
236. Section 323 of Cr PC provides for committal of cases to the Court of Sessions
(a) which disclose commission of offences exclusively triable by the Court of Sessions
(b) which the Magistrate thinks ought to be tried by the Court of Sessions
(c) both (a) & (b)
(d) only (a) & not (b).
237. Section 210 of Cr PC provides for
(a) stay of police investigation
(b) stay of proceedings in complaint case
(c) both (a)/1&2 (b)
(d) neither (a) nor (b).
238. Section 210 of Cr PC can be invoked
(a) when there is a complaint case & police is also investigating the matte.
(b) when there is a complaint case but no police investigation is in progress
(c) when there is a complainant case & the police has already completed the
investigation & filed the final report
(d) all the above.
239. In case of merger of the complaint with the police report the procedure to be
followed for the trial
(a) shall be of the complaint case
(b) shall be of the case instituted on the police report
(c) shall be of both as per convenience during the trial,
(d) shall be the one as directed ‘by the Magistrate.
240. Before issuance of process against the accused, in a complaint case ‘
(a) the accused has a right to participate in the proceedings
(b) the accused has no right to participate in the proceedings
(c) the accused has a right to watch the proceedings
(d) both (b) & (c).
241. Order of issuance of process against the accused in a complaint case under section
204 of Cr PC, by the Magistrate
(a) can be reviewed by the court issuing the summons
(b) cannot be reviewed by the Magistrate as under the Cr PC the Magistrate has no powers to
review the order
(c) can only be revised by the Court of Sessions or the High Court
(d) both (b) & (c) are correct.
242. After dismissal of a complaint under section 203, a fresh similar complaint on the
same facts
(a) is banned
(b) is not banned but will be entertained only in exceptional circumstances
(c) in not banned and will be entertained in all circumstances
(d) either (a) or (c).
243. Committal proceedings under section 209 of Cr PC are in the nature of
(a) aid in investigation
(b) inquiry
(c) trial
(d) either inquiry or trial.
244. Jurisdiction to grant bail under section 438 of Cr PC vests with
(a) the Court of Magistrate
(b) the Court of Sessions
(c) the High Court
(d) the Court of Sessions and the High Court and not in the Court of Magistrate.
245. Under section 436 of Cr PC bail can be granted
(a) by police
(b) by the Magistrate
(c) by the police as well as the Magistrate
(d) by the Magistrate only & not the police.
246. A person who is granted bail under section 436 Cr PC fails to comply with the
conditions of time 8: A place of attendance, on a subsequent occasion
(a) again entitled to bail as a matter of right
(b) is not entitled to bail as a matter of right
(c) the court may refuse to release him on bail
(d) both (b) & (c). V
247. Under section 437 Cr PC, on a mere fact that an accused person may be required
for being identified by witnesses during investigation
(a) bail can be refused
(b) bail cannot be refused
(c) bail should be refused
(d) bail can be & should be refused.
248. In a non-bailable offence triable by a Magistrate, application for bail under section
437 of Cr PC can be moved before the Court of
(a) Magistrate competent to try & entertain the case
(b) Chief Judicial Magistrate or additional Chief Judicial Magistrate
(c) Court of Sessions
(d) only (a) & (c).
249. Conditions on the release on bail can be imposed
(a) in a bailable offence
(b) in all the non-bailable offences
(c) in non-bailable offences punishable with imprisonment may extend to seven years or more
(d) only in (b) & (c).
250. Any condition imposed by a Magistrate while releasing the accused in a nonbailable
offence case can be set aside or modified
(a) by the Magistrate himself
(b) by the Court of Sessions
(c) by the High Court
(d) all the above.
251. Under section 439 of Cr PC, the jurisdiction to cancel the bail vests with
(a) the Court of Sessions
(b) the High Court
(c) the court of Magistrate
(d) only (a) & (b).
252. Under section 437 of Cr PC the jurisdiction to cancel the bail vests with
(a) the Magistrate competent to try & entertain the offence
(b) the Magistrate where the Magistrate has not ordered the release on bail
(c) the Magistrate only where the Magistrate has ordered the release on bail
(d) all the above.
253. In a case of non-bailable offence, a bail granted by a Magistrate can be cancelled
under section 437(5) of Cr PC
(a) by the Magistrate granting the bail
(b) by the Court of Sessions
(c) by the High Court
(d) all of the above.
254. Bail amount fixed by the Magistrate can be
(a) reduced by the Magistrate
(b) reduced by the Court of Sessions 261.
(c) reduced by the High Court
(d) only (b) & (c).
255. Section 438 of Cr PC can be invoked
(a) in cases of non-bailable offences
(b) in cases of bailable offence
(c) both (a) & (b) 262.
(d) neither (a) nor (b).
256. Cash in lieu of surety bond can be permitted by virtue of
(a) section 441 of Cr PC
(b) section 442 of Cr PC
(c) section 445 of Cr PC
(d) section 444 of Cr PC.
257. For non-payment & non-recovery of penalty from the surety under the surety bond,
the surety can be sentenced to
(a) simple imprisonment only
(b) rigorous imprisonment only
(c) civil imprisonment only
(d) either (a) or (b) or (c).
258. Surety can be sentenced to civil imprisonment in default of payment of penalty
under the surety bond for a maximum period of
(a) six months .
(b) three months
(c) two months
(d) one month.
259. Penalty under the surety bond
(a) cannot be remitted
(b) can be remitted in full
(c) can be remitted in part only
(d) can be remitted in full or in part.
260. Propositions as regards the liability of the surety under the surety bond are:—
I. The liability of the surety is mutually exclusive of the liability of the accused under his
personal bond.
II. The liability of the surety is contingent on the liability of the accused under his personal
bond the liability of the surety. is limited to the amount of the surety bond.
Now which of the following is correct
(a) I & III are correct
(b) I & ll are correct
(c) II & III is correct
(d) I, ll & III, all are correct.
261. The personal attendance of the accused can be dispensed with
(a) under section 207 of Cr PC
(b) under section 206 of Cr PC
(c) under section 205 of Cr PC
(d) under section 256 of Cr PC.
262. Error or omission in framing of charge
(a) is material in all circumstances shall vitiate the trial
(b) is material only if it has occasioned a failure of justice to the accused
(c) is material and the accused is liable to be acquitted
(d) both (a) & (c).
263. Addition or alteration of charge has been provided
(a) under section 214 of Cr PC
(b) under section 215 of Cr PC
(c) under section 216 of Cr PC
(d) under section 218 of Cr PC.
264. Under section 216 of Cr PC, the Court has the power to
(a) add to the charge(s) already framed
(b) alter the charge(s) already framed
(c) only alter & not to add to the charge already framed
(d) add to and alter the charge both.
265. Under section 217 of Cr PC, on addition or alteration of charge
(a) the prosecution has a right to re-call the witnesses already examined
(b) the accused has a right to re-call the witnesses already examined
(c) the prosecution has a right to call any further witness
(d) all the above.
266. Joinder of charges is permissible
(a) under section 219 of Cr PC
(b) under section 220 of Cr PC
(c) under section 221 of Cr PC
(d) all the above.
267. Joint trial of several persons is permissible
(a) under section 219 of Cr PC
(b) under section 223 ‘of Cr PC
(c) under section 221 of Cr PC
(d) under section 222 of Cr PC.
268. Which of the following is incorrect
(a) two diametrically different versions can be put to a joint trial
(b two versions which one not mutually exclusive can be put to a joint trial
(c) the joint trial of several per/sons partly by applying one clause and partly by applying another
clause of section 223 is authorised
(d) the various clauses of section 223, Cr PC are not mutually exclusive.
269. If an accused is charged of a major offence, but on the facts established he cannot be
held guilty of that major offence. At the same time the facts established indicate that a
minor offence has been committed, the person so tried for major offence can be
convicted for such minor offence. It has been so provided
(a) under section 220 of Cr PC
(b) under section 223 of Cr PC
(c) under section 222 of Cr PC
(d) under section 221 of Cr PC.
270. The forms in which the charges may be framed are set forth in
(a) section 211 of Cr PC
(b) section 214 of Cr PC
(c) lst Schedule of Cr PC
(d) 2nd Schedule of Cr PC.
271. If one is accused of an act which may amount to theft, or receiving stolen property
or cheating and is charged for theft only and from the evidence it appears that he has
committed cheating, he can be convicted for cheating though no charge for cheating has
been formally framed, by virtue of
(a) section 214 of Cr PC
(b) section 221 of Cr PC
(c) section 223 of Cr PC
(d) section 224 of Cr PC.
272. Due to non-framing of charge, or due to any error, omission or irregularity in the
charge, finding, sentence or any order by a court of competent jurisdiction
(a) shall be invalid always
(b) shall be valid generally
(c) shall be invalid only when infact it has occasioned failure of justice
(d) both (b) & (c).
273. Under section 267 production warrants in respect of a person detained in prison,
can be issued for the purposes of
(a) investigation
(b) inquiry
(c) trial
(d) all the above.
274. In a criminal trial evidence on affidavit can be given
(a) for allegation made in respect of a public servant
(b) for any person whose evidence is of formal character
(c) both (a)& (b)
(d) neither (a) nor (b).
275. In criminal trial, admission denial of documents can be done by the prosecution or
the accused,
(a) under section 294 of Cr PC
(b) under section 293 of Cr PC
(c) under section 295 of Cr PC
(d) under section 296 of Cr PC.
276. Reports of certain Government scientific experts are admissible in evidence without
any formal proof, under
(a) section 291 of Cr PC
(b) section 292 of Cr PC
(c) section 293 of Cr PC
(d) section 294 of Cr PC.
277. Examination of witnesses in the absence of the accused can be done, under
(a) section 299 of Cr PC
(b) section 321 of Cr PC
(c) section 224 of Cr PC
(d) section 301 of Cr PC.
278. Rule autre for’s aquit or autre f0r’s commit is contained in
(a) section 321 of Cr PC
(b) section 320 of Cr PC
(c) section 300 of Cr PC
(d) section 298 of Cr PC.
279. During inquiry or trial, the accused is remanded to custody
(a) under section 167(1) of Cr PC
(b) under section 167(2) of Cr PC
(c) under section 309(1) of Cr PC
(d) under section 309(2) of Cr PC.
280. During inquiry or trial, under section 309 of Cr PC Magistrate can remand the
accused
(a) for a maximum of one month at a time
(b) for a maximum of 15 days at a time
(c) for a maximum period of 14 days at a time
(d) for a period till next date irrespective of days.
281. Hearing on sentence by a Magistrate is required, on conviction
(a) in a summons trial case under section 255(2) of Cr PC
(b) in a warrant trial case under section 248(2) of Cr PC
(c) both (a) & (b)
(d) only (b) & not (a).
282. Under section 248(2) of Cr PC
(a) conviction & sentence can be passed on the same day
(b) conviction & sentence cannot be passed on the same day I
(c) conviction & sentence passed on the same day shall be valid unless occasions failure of
justice
(d) both (a) & (c).
283. In a summons case, instituted on a complaint, the accused having been summoned is
liable to be acquitted under section 256 of Cr PC
(a) on account of death of the complainant
(b) on account of non-appearance of the complainant
(c) both (a) & (b)
(d) only (b) & not (a).
284. In a summons trial case instituted on a complaint wherein the summons have been
issued to the accused, the non-appearance or death of the complainant shall entail
(a) discharge of the accused
(b) acquittal of the accused
(c) either discharge or acquittal depending on the facts & circumstances of the case
(d) (d) only (a) & (c) above.
285. Withdrawal of a complaint under section of Cr PC results in
(a) acquittal of the accused in cases where charge has already been framed
(b) discharge of the accused in cases where the charge has not yet been framed
(c) acquittal of the accused irrespective of whether the charge has been framed or not
(d) either (a) or (b).
286. Compounding of offence under section 320 of Cr PC results in
(a) acquittal of the accused under all circumstances
(b) acquittal of the accused only where the charge has already been framed
(c) discharge of the accused where the charge has not yet been framed
(d) either (b) or (c).
287. Proceedings under section 258 of Cr PC can be stopped
(a) in a summons case instituted upon a complaint
(b) in a summons case instituted otherwise than upon a complaint
(c) in a warrant case instituted upon a complaint
(d) in a warrant case instituted otherwise than upon a complaint,
288. Stoppage of proceedings under section 258 of Cr PC has the effect of
(a) acquittal under all circumstances
(b) acquittal where the evidence of the principal witness has been recorded
(c) discharge in all other cases where the evidence of the principal witness has not been
recorded
(d) only (b) & (C).
289. Magistrate has the power under section 259 of Cr PC to convert a summons trial
case into a warrant trial case
(a) relating to any offence irrespective of the punishment prescribed.
(b) relating to an offence punishable for a term exceeding six months
(c) relating to an offence punishable for a term exceeding one year
(d) relating to an offence punishable for a term exceeding two years.
290. Under section 260‘ of Cr PC which of the following offences cannot be tried
summarily
(a) offences punishable with imprisonment exceeding three months
(b) offences punishable with imprisonment exceeding six months
(c) offences punishable with imprisonment exceeding one year
(d) offences punishable with imprisonment exceeding two years.
291. Under section 311 of Cr PC, a witness can be called
(a) on the motion of the prosecution
(b) on the motion of the defence
(c) on its own motion by the court
(d) all the above.
292. Power to re-call any witness(es) under section 311 of Cr PC can be exercised
(a) even after the evidence of both the sides is closed
(b) after the evidence of the prosecution is closed, but before the evidence of defence is closed
(c) before the evidence of the prosecution is closed, if the witness is to be called on the motion of
the prosecution
(d) after the evidence of the prosecution is closed if the witness is called on the motion of the
defence.
293. Power under section 311 of Cr PC can be exercised
(a) to re-call any witness(es) already examined
(b) to summon any witness who has been cited as a witness but not produced or examined before
the evidence is closed
(c) to summon any witness who has not been cited as a witness
(d) all the above.
294. Under section 313 of Cr PC, the statement of the accused
(a) has to be recorded on oath
(b) has to be recorded without oath
(c) either on oath or without oath depending on whether the case is a summons trial or a
warrant trial
(d) either on oath or without oath as per the discretion of the court.
295. Recording of the statement of the accused
(a) can never be dispensed with
(b) may be dispensed with in a summons trial case generally
(c) may be dispensed with in a summons trial case where the personal attendance of the
accused has been dispensed with
(d) may be dispensed with in a warrant trial case where the personal attendance of the
accused has been dispensed with.
296. Answers given by the accused to the question put to him while recording his
statement under section 313 of Cr PC can be taken into consideration for
(a) judging the innocence of the accused
(b) judging the guilt of the accused
(c) for judging the innocence or guilt of the accused
(d) neither for judging the innocence nor the guilt of the accused.
297. Each material circumstance appearing in evidence against the accused must be put
to the accused specifically, distinctly & separately. In this context, the propositions are
I. Failure to put the material evidence to the accuse/d always vitiates the trial
II. Failure to put the material evidence amounts to a serious irregularity which can not be
cured & vitiates the trial, if it has prejudiced the accused.
III. Failure to put the material evidence is not considered to services 8: is curable if in fact no
failure of justice has occasioned to the accused.
Now which of the following is correct
(a) I & II are correct
(b) I & III are correct
(c) I, II & III all are correct
(d) II & III are correct.
298. Offences can be compounded under section 320 of Cr PC by the legal guardian of
(a) a person under the age of 18 years
(b) a person who is an idiot
(c) a person who is lunatic
(d) all the above.
299. If the person who is competent to compound is dead, the compounding
(a) can not be done
(b) can be done by the legal representative of the deceased without the permission of the court
(c) can be done by the legal representative of the deceased only with the permission of the court
(d) both (b) & (c).
300. Under section 321 of Cr PC
(a) prosecution can be withdrawn in summons case without consent of the court
(b) prosecution can be withdrawn in a warrant case without consent of the court
(c) in any type of cases but only with the consent of the court
(d) both (a) & (b).
301. I. Withdrawal of prosecution can only be for all the accused persons in a case if there is
more than one offence
II. Withdrawal of prosecution can be in respect of any one or more of the offences
III. Withdrawal of prosecution has to be in respect of all the offences as it is the withdrawal
of the case
Which of the following is correct
(a) I, II &: III all are correct
(b) I & II are correct
(c) I & III are correct
(d) II & Ill are correct.
302. Legal effect of withdrawal is
(a) acquittal irrespective of whether the charge has been framed or not
(b) acquittal when made after the framing of change(s) and discharge if made before the
framing of charge(s)
(c) discharge irrespective of the stage at which the case is pending
(d) either (a) or (c).
303. Under section 315 of Cr PC
(a) an accused can not be a witness ‘
(b) an accused can be compelled to give his own evidence generally
(c) an accused can be called as a witness only on his own request in writing
(d) either (a) or (b).
304. In a joint trial where several accused persons are being tried, one accused examines
himself as a witness, now
(a) all the other co-accused, if there are more than one co-accused other than the accused,
examining himself as a witness, have a right to cross-examine that accused, on a matter of
right
(b) all the other co-accused have a right to cross-examine that accused if the accused examining
himself deposing something against one of the co-accused
(c) only that co-accused has a right to cross- examine the accused examining himself as witness,
against whom such an accused has deposed something
(d) the co-accused do not have any right at all to cross-examine, the accused examining himself
as a witness under any circumstances.
305. An accused having made a request in writing to examine himself and having been
called to examine himself
(a) must necessarily examine himself
(b) has the liberty not to give evidence without giving rise to any presumption against him
(c) has the liberty not to give evidence, but in such a case a presumption against him arises
(d) has the liberty not to give evidence but in such a case a presumption arises against him &
other co-accused tried alongwith him jointly.
306. Power under section 319 of Cr PC can be exercised
(a) by the Magistrate and the Court of Sessions both only after recording of evidence during
the inquiry or trial
(b) by the Magistrate before recording of evidence but by the Court of Sessions only after
recording of evidence
(c) by the Magistrate and the Court of Sessions both even before recording of evidence
(d) by the Magistrate only after recording evidence but by the Court of Sessions before
recording of evidence.
307. The Magistrate has the power to grant compensation to the victim as, provided
under
a) section 360 of Cr PC
b) section 359’ of Cr PC
c) section 358 of Cr PC
d) section 357 of Cr PC
308. The compensation to the victim under section 357 of Cr PC can be granted on
(a) Conviction
(b) Acquittal
(c) Discharge
(d) either (a) or (b) or (c).
309. Order under section 357 of Cr PC granting compensation to the victim can be
passed by
(a) the trial court
(b) the appellate court
(c) the revision court 317. Under section 456 of Cr PC
(d) either (a) or (b) (c).
310. Compensation can be ordered to be paid under section 357 of Cr PC
(a) when fine does not form part of the sentence
(b) when fine form part of the sentence
(c) either (a) or (b)
(d) only (b) and not (a)
311. Disposal of property‘ during the pendency of trial is governed
(a) by section 454 of Cr PC
(b) by section 451 of Cr PC
(c) by section 452 of Cr PC
(d) by section 453 of Cr PC.
312. Disposal of property at the conclusion of trial is governed by
(a) section 452 of Cr PC
(b) section 453 of Cr PC
(c) section 454 of Cr PC
(d) section 455 of Cr PC.
313. Property within the meaning of section 451 of Cr PC
(a) can be moveable property alone
(b) can be immoveable property
(c) can be moveable & immoveable property both
(d) can be chattels only.
314. Order passed under section 451 of Cr PC is
(a) a final order .
(b) an interlocutory order
(c) both (a) & (b)
(d) either (a) or (b).
315. For application of section 451 of Cr PC. The property
(a) must have been produced before the court during inquiry or trial
(b) must have been the subject matter of offence
(c) must have been used in the commission of the offence
(d) all the above.
316. The prosecution of judges and public servants are provided in
(a) section 197 of Cr PC
(b) section 179 of Cr PC
(c) section 297 of Cr PC
(d) section 279 of Cr PC.
317. Under section 456 of CrPC
(a) possession of an immoveable property cannot be restored at all and a person has to resort
to civil court
(b) possession of an immoveable property can be restored only in case the person is
convicted
(c) possession of an immoveable property can be restored even in case of the person is
acquitted
(d) possession of an immoveable property can be restored in case of conviction even though
the findings of the civil court are in favour of the person convicted.
318. When the property is not produced before the court pending or during the inquiry
or trial, the disposal of property shall be governed by
(a) section 454 of Cr PCP
(b) section 455 of Cr PC
(c) section 457 of Cr PC
(d) section 458 of Cr PC.
319. While passing an order for disposal of property
(a) the Magistrate has to decide the question of title
(b) the Magistrate has to decide the question of entitlement of possession without deciding the
title –
(c) the Magistrate has to decide the question of title as well as the question of entitlement of
possession
(d) the Magistrate has to decide the question of entitlement of possession on the basis of decision
as to the question of title.
320. Under section 459 of Cr PC, the Magistrate may order for the selling of property by
the Government, if no claimant appears
(a) within 3 months
(b) within 6 months
(c) within one year
(d) within three years.
321. A Magistrate not empowered by law to order, under section 155 of Cr PC, the police
to investigate an offence, orders the police to investigate the offence. Such order is
(a) illegal and cannot be protected under section 460 of Cr PC
(b) irregular and is protected under section 460 of Cr PC
(c) illegal but not liable to be set aside unless it amounts to miscarriage of justice
(d) irregular but liable to be set aside.
322. In a non-cognizable case, investigation made by the police, without order of the
Magistrate under section 155(2) of Cr PC, is an
(a) illegality not curable under section 460 of Cr PC
(b) irregularity curable under section 460 of Cr PC
(c) illegality, but the Magistrate can proceed on the report if so desires and can be validated
subsequently
(d) irregularly and the Magistrate has to proceed on the report submitted.
323. Irregularities which do not vitiate trial have been stated in
(a) section 460 of Cr PC
(b) section 461 of Cr PC
(c) section 462 of Cr PC
(d) section 466 of Cr PC.
324. Irregularities which vitiate trial have been stated in
(a) section 460 of Cr PC
(b) section 461 of Cr PC
(c) section 466 of Cr PC
(d) section 467 of Cr PC.
325. For an offence punishable with fine only, the period of limitation prescribed under
section 468 of Cr PC is
(a) three months
(b) six months
(c) one year
(d) three years.
326. Under section 468 of Cr PC, the period of limitation for an offence punishable with
a ten not exceeding one year is
(a) six months
(b) one year
(c) two years
(d) three years.
327. Period of limitation for an offence punishable with a term of two years, as per
section 468 of Cr PC is
(a) six months
(b) one year
(c) two years
(d) three years.
328. Period of limitation for an offence punishable for a term more than three years is
(a) three years
(b) twelve years
(c) thirty years
(d) no limitation prescribed.
329. Date from which the period of limitation is to commence has been prescribed under
(a) section 472 of Cr PC
(b) section 471 of Cr PC
(c) section 469 of Cr PC
(d) section 470 of Cr PC.
330. Period of limitation shall commence
a) from the date of the offence generally
b) from the date of knowledge of the commission of the offence if not known earlier
c) from the date of establishment of the identity of the accused if not known at the time of
commission of the offence
d) all the above.
331. Court can condone the delay
a) under section 470 of Cr PC
b) under section 471 of Cr PC
c) under section 473 of Cr PC
d) under section 472 of Cr PC.
332. In computing the period of limitation the time during which
(a) the accused avoided arrest by absconding has to be excluded
(b) the accused remained absent from India has to be excluded
(c) both (a) & (b)
(d) only (a) is correct & (b) is incorrect.
333. The FIR can be quashed in the exercise of inherent powers by
(a) the Magistrate’s Court
(b) the Court of Session
(c) the High Court
(d) either (a) or (b) or (c).
334. Under the scheme of Cr. PC. the inherent powers vest in
(a) the High Court
(b) the Court of Session
(c) the Court of District & Sessions judge
(d) all of the above.
335. The inherent powers of the High Court are contained in
(a) section 462 of Cr PC
(b) section 472 of Cr PC
(c) section 482 of Cr PC
(d) section 492 of Cr PC
336. Once police records information report (FIR), a copy of same should be given to
complainant under
(a) section 153 of Cr PC
(b) section 154 of Cr PC
(c) section 155 of Cr PC
(d) section 156 of Cr PC
337. In which among the following cases the Supreme Court held that High Court cannot
directly entertain bail application of POTA accused without its refusal by special court?
(a) State of Gujarat v. Shalimbhai Abdul Gaffar Shaikh
(b) State of Maharashtra v. S.K. Dhinde
(c) State of Gujarat v. Santosh Kumar
(d) State of Uttar Pradesh v. S.N. Srivastava.
338. The special court is
(a) not subordinate to High Court
(b) is subordinate to High Court
(c) superior to High Court ‘
(d) supplement to High Court.
339. In which of the following cases the prosecution witness was prosecuted for Perivry
(a) Iessica Lal case (2007) .
(b) Nitish Katara case (2007) I ‘
(c) Priyadarshni Mattoo case (2006)
(d) None of the above.
340. The person seeking suspension of conviction should specifically draw the attention
of the Appellate Court to the consequences that may arise if the conviction is not stayed
as held by the Supreme Court in
(a) Sheo Prasad Bhor v. State of Assam, AIR 2007 SC 918
(b) P.V. George v. State of Kerala, AIR 2007 SC 1034
(c) Navjot Singh Sidhu v. State of Punjab, AIR 2007 SC 1003
(d) Kuldip Nayar v. Union of India, (2006) 7 SCC 1
341. When ‘ the approver willfully suppresses material facts or gives false evidence
(a) the court itself has inherent power to proceed against Approver
(b) the court does not have inherent power to proceed against Approver
(c) police can take action against him
(d) on the request of police, court take action against Approver.
342. Any‘ effort to settle disputes and claims by applying pressure through criminal
prosecution
(a) should depend upon the present criminal system
(b) should depend upon the discretion of the court
(c) should be deprecated and dis-couraged
(d) should not be deprecated and dis-couraged.
343. If the police does not take action on complaint in respect of cognizable offences, the complainant
(a) has right under section 190 of Cr PC to complaint before local Magistrate
(b) has no right under section 190 of Cr PC to complaint before local Magistrate
(c) has right under section 290 of the Cr PC to complaint before Magistrate
(d) has right under section 390 of the Cr PC to complaint before Magistrate.
344. Whether suspicion is
(a) a substitute for proof of offence
(b) not a substitute for proof of offence
(c) a relevant factor for proof of offence
(d) not a dependent factor.
345. Inherent power of the court to order a joint trial of cases, is excercised when it appears to the court
(a) that some common question of law or fact arises in both proceedings
(b) the right to relief claimed thereof is in respect of the same transaction
(c) the right to relief claimed thereof arises out of the same series of transactions
(d) all the above.
346. In which of the following cases it was held that section 164 of Cr PC is required to be strictly complied with
(a) Babu Bhai Udesinh Parmar v. State of Gujarat, AIR 2007 SC 420
(b) Rajesh Ranjan Yadav v. CB1, AIR 2007 SC 451
(c) Naveen Chandra v. State of llttaranclzal, AIR 2007 SC 363
(d) Amrit Singh v. State of Punjab, AIR 2007 SC
347. In 2007 which High Court ordered ‘No arrest of a woman before sunrise and after sunset’
(a) Delhi High Court
(b) Rajasthan High Court
(c) Allahabad High Court
(d). Bombay High Court
348. Which section of the Cr PC provides that, in no case the aggregate of consecutive sentences passed against an accused shall exceed 14 years
(a) Section 31 of Cr PC
(b) Section 51 of Cr PC
(c) Section 34 of Cr PC
(d) Section 41 of Cr PC
349. The procedure for trial before a Court of Sessions is provided under sections
(a) 260 to 265 Cr PC
(b) 238 to 250 Cr PC
(c) 251 to 259 Cr PC
(d) 225 to 237 Cr PC.
350. The offence committed under which section of IPC is not compoundable under section 320 of Cr PC
(a) Section 352
(b) Section 353
(c) Section 354
(d) Section 355
351. When there is a dispute between two courts relating to exercise of jurisdiction in a criminal matter and said courts are under subordination of different High Courts, the matter shall be decided under section 186 of Cr PC by the
(a) Supreme Court
(b) High Court of the larger State
(c) High Court having more judges
(d) High Court within whose local limits of appellate jurisdiction the proceeding first
commenced.
352. In which case it was held that: Identity of victim is not to be disclosed even in judgment of court?
(a) Slzashikant v. CBI, AIR 2007 SC 351
(b) Dinesh v. State of Rajasthan, AIR 2006 SC
(c) Naveen Chandra v. State of Uttarancnal, AIR 2007 SC 363
(d) none of the above.
353. Within the meaning of section 311A of Cr PC who among the following authorities has power to order person to give specimen signature or handwriting
(a) Magistrate of First Class
(b) Magistrate of Second class
(c) Sessions Judge
(d) any Magistrate.
354. The “Directorate of Prosecution” the provision added in the Cr PC by the Code of Criminal Procedure (Amendment) Act, 2005, shall be established by:
(a) Central Government
(b) each“ State Government
(c) CB1
(d) RAW
355. Within the meaning of section 144A of Cr PC, who among the following authorities
has power to prohibit carrying arms in procession or mass drill or mass training with
arms?
(a) SDIM
(b) Munsiff
(c) District Magistrate
(d) any judicial Magistrate
356. “Plea Bargaining” a new chapter was added in Criminal Procedure Code, 1973 by the Criminal Law Amendment Act, 2005 (2 of 2006) is contained in
(a) Sections 265A to 265E
(b) Sections 265A to 265L
(c) Sections 265A to 265M
(d) Sections 265A to 265N
357. The Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005) came into force on
(a) 22nd ]une, 2006 I
(b) 21st June, 2005
(c) 23rd Iune, 2006
(d) 23rd ]uly, 2006
358. Chapter XXIA “Plea Bargaining” (containing sections 265A to 265L) of Cr PC came into force on
(a) 5th Iuly, 2006
(b) 16th April, 2006
(c) 23rd Iune, 2005
(d) 23rd June, 2006
359. Provision relating to plea bargaining comes under which Chapter in Criminal Procedure Code
(a) XXI
(b) XXA
(c) VIIA
(d) XXIA
360. Irregularities which do not vitiate proceedings have been stated in
(a) section 460 of Cr PC
(b) section 461 of Cr PC
(c) section 462 of Cr PC
(d) section 486 of Cr PC.
361. The amount of fine which can be imposed by a Magistrate of the First Class has been enhanced by Criminal Procedure (Amendment) Act, 2005 (25 of 2005) from RS. 5000 to
(a) Rs. 5000
(b) Rs. 7000
(c) Rs. 10000
(d) none of the above.
362. The amount of fine which can be imposed by a Magistrate of the second Class has
been enhanced by Criminal Procedure (Amendment) Act, 2005 (25 of 2005) from Rs.
1000 to
(a) Rs. 3000
(b) Rs. 5000
(c) Rs. 7000
(d) none of the above.
363. 363 Which of the following statements is true:
(a) a woman can never be arrested after sunset and before sunrise under the provisions of Cr. P.C.
(b) a woman can be arrested after sunset and before sunrise only under exceptional circumstances
(c) a woman can be arrested after sunset and before sunrise only under exceptional circumstances
with the prior permission of Judicial Magistrate of first class within whose jurisdiction the
offence is committed or the arrest is to be made
(d) none of the above.
364. Examination of person accused of rape by medical practitioner as inserted by Criminal Procedure (Amendment) Act, 2005 (25 of 2005) has been provided under
(a) section 50A
(b) section 53A
(c) section 54A
(d) section 54.
365. The section making it mandatory for the police officer making arrest to inform about the arrest and place where the arrested person is being held to a nominated person as inserted by Criminal ‘ Procedure (Amendment) Act, 2005 (25 of 2005) is
(a) section 50A
(b) section 53A
(c) section 54A
(d) section 53B
366. The section dealing with the medical examination of the victim of rape as inserted by Criminal Procedure (Amendment) Act, 2005 (25 of 2005) is
(a) section 164A
(b) section 166A
(c) section 166B
(d) section 53A.
367. In case of special summons in cases of petty offence under section 206, the amount of fine specified is such summons has, in view of Criminal Procedure (Amendment) Act, 2005 (25’of 2005) has been enhanced from Rs. 100 to
(a) Rs. 200
(b) Rs. 500
(c) Rs. 1000 5
(d) Rs. 2000.
368. Plea Bargaining inserted by Criminal Law (Amendment) Act, 2005 (2 of 2006) does
not apply in case of ‘
(a) offences affecting socio-economic conditions of the country
(b) offences committed against woman
(c) offences against children below the age of fourteen years
(d) all of the above.
369. The judgment delivered by a court in cases of plea bargaining is
(a) final
(b) appealable and appeal lies to the High Court
(c) final and no appeal except SLP under Article 136 and writ petition under Articles 226 & 227
lies
(d) appeal lies directly to the Supreme Court.
370. The statements or facts stated by an accused in an application for plea bargaining:
(a) can be used by the court in any. other case against the accused.
(b) can be used in any other case against the accused only with the permission of the court before
which the application for plea bargaining was made.
(c) cannot be used for any other purpose except for the purpose of this chapter.
(d) None of the above.
371. The powers of Magistrate to order person to give specimen signatures or
handwriting has been inserted by Criminal Procedure (Amendment) Act, 2005 (25 of
2005) under
(a) section 310A
(b) section 311A
(c) section 312A
(d) section 313A.
372. A witness or any other person may file a complaint in relation to an offence under
section 195A of IPC is provided under of Cr.P.C. as inserted by the Code of Criminal
Procedure (Amendment) Act, 2008 (5 of 2009) with effect from 31-12-2009
(a) section 195A
(b) section 196A
(c) section 197A
(d) section 198A.
373. Every State Government in co-ordination with the Central Government shall
formulate Victim Compensation Scheme (VCS) for providing fund for compensation to
victims falls under section 357A of Cr.P.C. with effect from 31-12-2009. This section
was inserted by
(a) Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009)
(b) Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005)
(c) Criminal Procedure Law (Amendment) Act, 2005 (2 of 2006)
(d) Code of Criminal Procedure (Amendment) Act, 2001 (50 of 2001).
374. What is true about Criminal Procedure Code in respect of the offences by criminals other than the offences under Indian Penal Code?
(a) Criminal Procedure Code cannot be followed
(b) Criminal Procedure Code can be followed only against offences under Indian Penal Code
(c) Criminal Procedure Code can be followed as it is uniform procedural law in criminal
proceedings
(d) Criminal Laws other than Indian Penal Code have their own procedural application.
375. The term “victim” is defined under
(a) section 2(w)
(b) section 2(wa)
(c) section 2(u)
(d) none of the above.
376. As per section 26 any offence under section 276 and section 376A to 376D of IPC shall be tried as far as practicable by a court presided over by
(a) a woman V
(b) judicial Magistrate of First Class
(c) chief Judicial Magistrate
(d) a High Court judge.
377. Under the provisions of section 198(6) where an offence under section 676 of IPC consists of sexual intercourse by a man with his own wife, the wife being under ……. ..years of age, no court shall take cognizance of the offence if more than one year has elapsed from the date of the commission of the offence
(a) 13
(b) 15
(c) 16
(d) 18
378. Payment of compensation to a victim is provided under
(a) section 356
(b) section 357
(c) section 357A
(d) none of the above.
379. What is about position of Cr. P.C., when former Chief Justices of India are alleged as corrupted after their Retirement from Supreme Court?
(a) Cr. P.C. can be applied with the offence to be charged under IPC.
(b) Cr. P.C. can be applied with offence to be charged under Prevention of Corruption Act, 1988.
(c) Cr. P.C. is silent about to be applied
(d) Cr. P.C. is meant for non-officials only.
380. In which of the following cases the Supreme Court held that FIR was not
substantive evidence and could only be used to corroborate its maker?
(a) Union of India v. A. Kumar, AIR 2010 SC 2735.
(b) C. Magesh v. State of Karrzataka, AIR 2010 SC 2768.
(c) Anil Kumar v. B. S. Neelakanta, AIR 2010 SC 2715.
(d) Viietn Gazm v. State, AIR 2010 SC 2712.

POSSIBLE ANSWERS
1 B 49 B 97 D 145 A 193 B 241 a 289 b 337 a
2 D 50 C 98 A 146 A 194 B 242 b 290 d 338 a
3 C 51 B 99 C 147 C 195 A 243 b 291 d 339 a
4 B 52 D 100 D 148 A 196 B 244 d 292 a 340 c
5 C 53 C 101 B 149 B 197 A 245 c 293 d 341 a
6 D 54 B 102 A 150 D 198 B 246 d 294 b 342 c
7 B 55 C 103 C 151 D 199 B 247 b 295 c 343 a
8 B 56 B 104 A 152 D 200 D 248 d 296 c 344 b
9 C 57 C 105 C 153 B 201 B 249 d 297 d 345 d
10 B 58 A 106 C 154 A 202 B 250 d 298 d 346 a
11 C 59 D 107 C 155 B 203 A 251 d 299 c 347 b
12 D 60 B 108 C 156 D 204 A 252 c 300 c 348 a
13 C 61 B 109 B 157 B 205 D 253 d 301 b 349 d
14 D 62 B 110 C 158 C 206 C 254 d 302 b 350 b
15 B 63 D 111 C 159 A 207 A 255 a 303 c 351 d
16 D 64 C 112 A 160 D 208 B 256 c 304 c 352 b
17 B 65 C 113 D 161 B 209 A 257 c 305 b 353 a
18 C 66 D 114 C 162 C 210 D 258 a 306 a 354 b
19 C 67 B 115 C 163 B 211 C 259 d 307 d 355 c
20 C 68 B 116 D 164 C 212 B 260 a 308 a 356 b
21 C 69 A 117 D 165 B 213 D 261 c 309 d 357 c
22 B 70 C 118 B 166 A 214 A 262 b 310 b 358 a
23 D 71 D 119 A 167 C 215 C 263 c 311 b 359 d
24 C 72 D 120 B 168 D 216 B 264 d 312 a 360 a
25 D 73 A 121 A 169 A 217 A 265 d 313 c 361 c
26 C 74 B 122 D 170 B 218 C 266 d 314 b 362 b
27 C 75 C 123 C 171 C 219 B 267 b 315 d 363 c
28 D 76 A 124 C 172 A 220 D 268 a 316 a 364 b
29 A 77 B 125 A 173 D 221 B 269 c 317 b 365 a
30 C 78 C 126 B 174 B 222 D 270 d 318 c 366 a
31 D 79 A 127 C 175 D 223 C 271 b 319 b 367 c
32 A 80 C 128 A 176 A 224 C 272 d 320 b 368 d
33 A 81 A 129 B 177 C 225 B 273 d 321 b 369 c
34 C 82 C 130 C 178 D 226 A 274 c 322 a 370 c
35 A 83 D 131 C 179 A 227 B 275 a 323 a 371 b
36 B 84 B 132 A 180 D 228 C 276 c 324 b 372 a
37 D 85 B 133 D 181 D 229 B 277 a 325 b 373 a
38 D 86 C 134 C 182 C 230 c 278 c 326 b 374 c
39 C 87 A 135 A 183 A 231 b 279 d 327 d 375 b
40 B 88 B 136 A 184 D 232 c 280 b 328 d 376 a
41 B 89 B 137 B 185 D 233 a 281 c 329 c 377 d
42 B 90 B 138 C 186 C 234 d 282 b 330 d 378 c
43 B 91 C 139 B 187 C 235 a 283 c 331 c 379 c
44 D 92 A 140 A 188 A 236 b 284 b 332 c 380 b
45 A 93 C 141 B 189 D 237 b 285 c 333 c
46 C 94 B 142 B 190 C 238 a 286 a 334 a
47 D 95 A 143 C 191 D 239 b 287 b 335 c
48 C 96 B 144 D 192 D 240 d 288 d 336 b

Mercy Petition to the President of India

Law Library

STATISTIC 

  • Rajendra Prasad accepted 180 mercy pleas and rejected just one.
  • Sarvapalli Radhakrishnan allowed 57 mercy petitions while rejecting none.
  • Zakir Hussain did not send a single man to the gallow, accepting 22 mercy pleas.
  • VV Giri too did not reject a mercy petition, and accepted three pleas.
  • Fakrudhin Ali Ahmed and N Sanjeeva Reddy did not deal with any mercy petitions in their tenures.
  • Zail Singh rejected 30 mercy petitions, allowing just two.
  • R Venkatraman holds the record of rejecting the highest number of mercy pleas – 45. He allowed five petitions.
  • SD Sharma did not hand out a single commutation, rejecting 18 pleas for mercy.
  • KR Narayanan kept all mercy petitions pending.
  • APJ Kalam ruled on just two pleas, rejecting one and accepting the other.
  • Pratibha Patil commuted 34 mercy petitions and rejected five.

[ Law Commission of India Data]

Ram Nath Kobind

 Jagat Rai – 23.04.2018- The mercy petition was rejected by the President.

Superintendent of Police, C.B.I. and others Vs Tapan Kr. Singh [ALL SC 2003 APRIL]

KEYWORD:- GD ENTRY-PUTTING WRONG SECTIONS BY POLICE IN FIR-
supreme court of india 1

  • The mentioning of a particular Section in the F.I.R. is not by itself conclusive as it is for the Court to frame charges having regard to the material on record. Even if a wrong Section is mentioned in the F.I.R., that does not prevent the Court from framing appropriate charges.

AIR 2003 SC 4140 : (2003) 3 SCR 485 : (2003) 6 SCC 175 : JT 2003 (4) SC 26 : (2003) 3 SCALE 777 : (2003) CriLJ SC 2322

(SUPREME COURT OF INDIA)

Superintendent of Police, C.B.I. and others Appellant
Versus
Tapan Kr. Singh Respondent

(Before : N. Santosh Hegde And B. P. Singh, JJ.)

Criminal Appeal No. 938 of 1995, Decided on : 10-04-2003.

Criminal Procedure Code, 1973—Sections 154 and 156—FIR—Scope of—General Diary Entry disclosing commission of cognizable offence can be treated as FIR—Same cannot be discarded as vague on ground that full details of alleged offence under Section 13, P.C. Act was missing—Police investigation based on such entry—Not illegal.

General Diary Entry may be treated as a First Information Report, where it discloses the commission of a cognizable offence. In the instant case, the facts stated in the G.D. Entry are that the respondent was a corrupt official and was in the habit of accepting illegal gratification; that he had demanded and accepted cash to the tune of rupees one lakh approximately; and that he would be carrying with him the said amount while travelling in train. If these assertions are accepted on their face value, clearly an offence of criminal misconduct under Section 13 of the Prevention of Corruption Act, 1988 is made out. It cannot be disputed that such offence of criminal misconduct is a cognizable offence having regard to the second item of the last part of Schedule 1 of the Code of Criminal Procedure under head “II Classification of Offences Against—Other law.” Therefore, said information received by the police could be treated as First Information Report. Same could not be discarded as vague on the ground that it was not stated from whom the sum of rupees one lakh was demanded and accepted nor was it stated that such demand or acceptance was made as motive or reward for doing or forbearing to do any official act, or for showing or forbearing to show in exercise of his official function, favour or disfavour to any person or for rendering, attempting to render any service or disservice to any person. Thus the investigation and arrest of respondent-accused by police could not be said to be illegal as the allegations stated in the General Diary Entry certainly give rise to a suspicion that a cognizable offence may have been committed by the respondent.

Criminal Procedure Code, 1973—Section 154—FIR—Informant not knowing name of victim or his assailant—Whether empowered to lodge FIR—Yes.

A First Information Report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of victim or his assailant. He may not even know how the occurrence took place. A First Information need not necessarily be an eye-witness so as to be able to disclose in great details all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect on the basis of the information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details, he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the concerned police officer is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the facts, if he can.

Criminal Procedure Code, 1973—Section 154—FIR—Informant not an eye-witness—Whether empowered to lodge FIR—Yes.

Criminal Procedure Code, 1973—Section 154—FIR—Scope—Whether General Diary Entry disclosing cognizable offence can be treated as FIR—Held, yes.

Criminal Procedure Code, 1973—Section 154—FIR—Contents of—Mentioning of all ingredients of offence in FIR—Not necessary—However, information given in FIR must disclose commission of cognizable offence and such information must provide a basis for police to suspect commission of cognizable offence.

Counsel for the Parties:

P. P. Malhotra, Sr. Advocate, Tufail A. Khan, P. Parmeswaran, Advocates with him, for Appellants

S. B. Sanyal, Sr. Advocate, N. R. Choudhary, Somnath Mukherjee, J. P. Pandey and Devashish Bharua, Advocates, with him, for Respondent.

Judgment

B. P. Singh, J—The Union of India, Superintendent of Police, Central Bureau of Investigation and other officers of the said Bureau have come up in appeal against the judgment and order of the High Court of Judicature at Calcutta dated February 28, 1992 in Criminal Revision No. 1913 of 1990 whereby the High Court while allowing the revision petition quashed the investigation on the basis of G. D. Entry No. 681 as also the First Information Report recorded on October 20, 1990. It further quashed R. C. Case No. 51 of 1990 under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act. Consequently it also quashed the search and seizure effected on October 18, 1990 and directed that the money and articles seized be returned to the person from whom they were seized.

2. The brief facts of the case are as follows :-

On October 17, 1990 the Superintendent of Police, Central Bureau of Investigation (S.P.E.) (A.C.B.), Calcutta received information from reliable source on telephone that respondent, who was then Director (Personnel), Eastern Coal Fields Limited, was a corrupt officer in the habit of demanding and accepting illegal gratification, had demanded and accepted a sum of rupees one lakh which he was carrying with him while going to Nagpur by Gitanjali Express on October 17, 1990. Since the parties have advanced arguments before as on the question whether the said report could be treated to be an information within the meaning of Section 154 of the Code of Criminal Procedure, it is convenient to reproduce the General Diary Entry No. 681 of October 17, 1990 in extenso which is as follows :-

“G.D. Entry No. 681 of 17-10-1990 of C.B.I. S.P.E., A.C.B., CALCUTTA

11.30 hours Information received from a reliable source indicate that Shri Tapan Kumar Singh, Director (Personnel), Eastern Coalfields Limited, Sanctorai, West Bengal is an out and out corrupt official and is in habit of demanding and accepting illegal gratification. Information further revealed that he demanded and accepted huge cash to the tune of ` 1 lakh approximately which he would be carrying with him while going to Nagpur by Geetanjali Express on 17-10-1990. He would be boarding the train at Tata. The matter was discussed with the DIG, CBI, Calcutta and it was decided to verify the information by intercepting him enroute and to take other follow up actions, if necessary.

Since there is no time for further verification into the matter. I am leaving for Nagpur for Geetanjali Express today (17-10-1990) scheduled to start from Howrah at 13.10 hrs. with a team of C.B.I. officers comprising of Inspector, S. R. Majumdar, Inspector, R. K. Sarkar, Inspector, S. N. Bhattacharjee and Inspector S. K. Dasgupta, this is as per provision of Section 157 of the Cr. P. C.

                                                                              Sd/- T. K. Sangyal

                                                         SP, CBI, SPE, ACB, Calcutta”

3. As would be apparent from the said G.D. Entry, the Superintendent of Police, C.B.I. discussed the matter with D.I.G., C.B.I., Calcutta but since there was no time for further verification into the matter, the Superintendent of Police, C.B.I. decided to leave for Nagpur by Gitanjali Express with a view to intercept the respondent and take further necessary action. In the said G.D. Entry it is stated that the Superintendent of Police, C.B.I. left with a team of C.B.I. officers and that the action was taken as per the provisions of Section 157 of the Code of Criminal Procedure.

4. It is not in dispute that on October 18, 1990 at 11.30 hours the police party intercepted the respondent at Nagpur Railway Station and conducted his personal search as well as the search of his belongings as also the search of his residential flat at Nagpur. A huge amount of money was recovered pursuant to such search and the said amount along with other articles was seized. After returning to Calcutta on October 20, 1990 the Superintendent of Police, C.B.I. lodged a First Information Report alleging commission of offences punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. On the basis of the said report, R.C. Case No. 51 of 1990 (Calcutta) was registered.

5. The respondent filed a revision petition before the High Court of Calcutta challenging the proceeding and sought quashing of the investigation as well as the General Diary Entry No. 681 of October 17, 1990 and the First Information Report lodged by the Superintendent of Police, C.B.I. He also prayed for return of the money and other articles seized from him by the Superintendent of Police, C.B.I. on October 18, 1990.

6. Before the High Court several submissions were urged on behalf of the respondent seeking quashing of the investigation as well as G.D. Entry and the First Information Report.

7. It was firstly submitted that the General Diary Entry did not disclose the commission of any cognizable offence and hence the Superintendent of Police, C.B.I. had no authority to investigate the allegations made therein under Section 157 of the Code of Criminal Procedure, since he could exercise the power to investigate only if the information given to the police related to the commission of a cognizable offence. Secondly it was urged that since the investigation itself was illegal, the search and seizure made pursuant thereto under Section 165 of the Code of Criminal Procedure were also illegal. Thirdly it was submitted that failure of the Superintendent of Police, C.B.I. to record in writing the ground for his belief that the things necessary for the purpose of investigation might be found in the place of search, amounted to breach of a mandatory condition and, therefore, vitiated the search. The search was thus illegal and without jurisdiction and, therefore, any recovery made or articles seized pursuant thereto should be returned to the person from whom they were recovered. Lastly it was submitted that the information received prior to investigation must be distinguished from the information collected during investigation. The latter cannot take the place of First Information Report. After conducting partial investigation the police officer cannot go back and record a First Information Report under Section 154 of the Criminal Procedure Code. Such First Information Report is illegal and no action can be taken on the basis of such an illegal First Information Report.

8. On behalf of the appellants it was contended before the High Court that the G.D. Entry was not the First Information Report and only the report made on October 20, 1990 was the First Information Report. The action taken by the Superintendent of Police, C.B.I. after recording the G.D. Entry and before lodging the formal First Information Report was only in the nature of a preliminary inquiry before investigation. Secondly the mere mention of a wrong section in the G.D. Entry did not vitiate the exercise of powers if such exercise can be traced to a legitimate source. Lastly it was submitted that even in a preliminary inquiry before initiation of investigation, search and seizure was permissible.

9. The High Court after considering the submissions urged on behalf of the parties came to the conclusion that the General Diary entry did not disclose the commission of a cognizable offence and, therefore, investigation pursuant to such a General Diary Entry was illegal. The First Information Report which was lodged after investigation was conducted in part was also illegal and consequently no case could be initiated on the basis of such an illegal First Information Report. It further held that this was not a case in which a preliminary inquiry before investigation was justified. In any event, the Superintendent of Police, C.B.I. did not in fact make any preliminary enquiry and proceeded to take steps for investigation as was apparent from the G.D. Entry wherein he stated that he was taking action under Section 157 of the Code of Criminal Procedure. The submission that a wrong section was mentioned in the G.D. Entry by him was rejected on the grounds firstly, that a senior officer like the Superintendent of Police, C.B.I. was not expected to make such a mistake and secondly, that the State was unable to mention the correct section which he should have mentioned therein. Moreover, there was no provision in the Code of Criminal Procedure authorizing a police officer to make a preliminary enquiry before investigation. The steps taken by the Superintendent of Police, C.B.I. were the steps which an investigating officer is authorized to take while investigating a case on the basis of a report disclosing commission of a cognizable offence, such as apprehension of the accused, collection of evidence, search and seizure etc. Though it was not disputed that in law, in an appropriate case, a G.D. Entry may be treated as a First Information Report and can provide the basis for investigation, in the instant case however, the Superintendent of Police, C.B.I. lodged a First Information Report two days later. The steps taken by him after recording the G.D. Entry and before lodging the First Information Report on 20-10-1990 were the steps in investigation and not the steps in a preliminary enquiry prior to initiation of regular investigation.

10. The High Court also held that the alleged First Information Report lodged on 20-10-1990 was not a First Information Report in law, as it was recorded after the investigation had proceeded to some extent, and was therefore covered by Sections 161 and 162 of the Code.

11. On the question whether the G.D. Entry itself disclosed the commission of a cognizable offence, the Court observed:-

“Now let me look into the G.D. Entry on the basis of which the instant investigation has been started. On a careful scrutiny of the said G.D. Entry I am of the opinion that the said G.D. Entry contains some vague allegations and does not disclose the commission of any cognizable offence. It has been stated that the present petitioner was an out and out corrupt official and was in the habit of demanding and accepting illegal gratification such statement certainly does not disclose the commission of any offence. It has been further stated that the petitioner demanded and accepted huge cash to the tune of ` 1,00,000. The statement is equally vague, it has not been stated from whom such huge cash was demanded and accepted. Nor has it been stated that such demand or acceptance was made as a motive or reward for doing or forbearing to do any official act or for showing or for bearing to show in exercise of his official function, favour or disfavour of any person or for rendering/attempting to render any service or disservice to any person. The information as recorded in G.D. Entry No. 681 is extremely (sic) cognizable offence. On such information as recorded in the said G.D. Entry it cannot be said that the Police Officer reasonably had reason to suspect the commission of any cognizable offence. As the information as recorded in G.D. Entry No. 681 on the basis of which the instant investigation has been started does not disclose the commission of any cognizable offence and as the police officer cannot reasonably had any reason to suspect the commission of a cognizable offence on such hold information, this Court in view of the aforesaid decision of the Supreme Court holds that the investigation on the basis of the said G.D. Entry is unlawful and without jurisdiction and should, therefore, be quashed.”

12. Lastly, the High Court held that the search and seizure conducted by the Superintendent of Police, C.B.I. were not in accordance with law as a mandatory requirement of Section 165 of the Code was not fulfilled inasmuch as the officer making the investigation failed to record in writing the grounds for his belief that anything necessary for the purpose of an investigation into any offence which he was authorized to investigate may be found in any place and that such thing could not, in his opinion, be otherwise obtained without undue delay. The search and seizure was, therefore, illegal and the things recovered in pursuance of such illegal search must be returned to the person from whom they were seized.

13. On these findings, the High Court allowed the Criminal Revision Petition and quashed the G.D. Entry, the First Information Report as well as the investigation, and directed return of the money and articles seized.

14. The crucial finding recorded by the High Court is that the facts stated in the G.D. Entry did not disclose the commission of a cognizable offence, and consequently the police had no power or jurisdiction to investigate the allegations made therein. Thus, the investigation undertaken, and the search and seizures made were illegal and without jurisdiction and deserved to be quashed.

15. It is the correctness of this finding which is assailed before us by the appellants. They contend that the information recorded in the G.D. Entry does disclose the commission of a cognizable offence. They submitted that even if their contention, that after recording the G.D. Entry only a preliminary enquiry was made, is not accepted, they are still entitled to sustain the legality of the investigation on the basis that the G.D. Entry may be treated as a First Information Report, since it disclosed the commission of a cognizable offence.

16. The parties before us did not dispute the legal position that a G.D. Entry may be treated as a First Information Report in an appropriate case, where it discloses the commission of a cognizable offence. If the contention of the appellants is upheld, the order of the High Court must be set aside because there was in law a First Information Report disclosing the commission of a cognizable offence, the police had the power and jurisdiction to investigate, and in the process of investigation to conduct search and seizure. It is, therefore, not necessary for us to consider the authorities cited at the Bar on the question of validity of the preliminary enquiry and the validity of the search and seizure.

17. We have earlier in this judgment reproduced the G.D. Entry dated 17-10-1990 in extenso. The facts stated therein are that the respondent was a corrupt official and was in the habit of accepting illegal gratification; that he had demanded and accepted cash to the tune of rupees one lakh approximately; and that he would be carrying with him the said amount while going to Nagpur by Gitanjali Express on 17-10-1990.

18. The information so recorded does make a categoric assertion that the respondent has accepted a sum of rupees one lakh by way of illegal gratification, and that he was carrying the said amount with him while going to Nagpur by Gitanjali Express on that day. If these assertions are accepted on their face value, clearly an offence of criminal misconduct under Section 13 of the Prevention of Corruption Act, 1988 is made out. It cannot be disputed that such offence of criminal misconduct is a cognizable offence having regard to the second item of the last part of Schedule I of the Code of Criminal Procedure under the head “II- Classification of Offences Against – other law.”

19. The High Court fell into an error in thinking that the information received by the police could not be treated as a First Information Report since the allegation was vague inasmuch as it was not stated from whom the sum of rupees one lakh was demanded and accepted. Nor was it stated that such demand or acceptance was made as motive or reward for doing or forbearing to do any official act, or for showing or forbearing to show in exercise of his official function, favour or disfavour to any person or for rendering, attempting to render any service or disservice to any person. Thus there was no basis for a police officer to suspect the commission of an offence which he was empowered under Section 156 of the Code to investigate.

20. It is well settled that a First Information Report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. An informant may lodge a report about the commission of an offence though he may not know the name of the victim or his assailant. He may not even know how the occurrence took place. A first informant need not necessarily be an eye-witness so as to be able to disclose in great details all aspects of the offence committed. What is of significance is that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. If he has reasons to suspect on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. Similarly, even if the information does not furnish all the details, he must find out those details in the course of investigation and collect all the necessary evidence. The information given disclosing the commission of a cognizable offence only sets in motion the investigative machinery, with a view to collect all necessary evidence, and thereafter to take action in accordance with law. The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the concerned police officer is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation. The question as to whether the report is true, whether it discloses full details regarding the manner of occurrence, whether the accused is named, and whether there is sufficient evidence to support the allegations are all matters which are alien to the consideration of the question whether the report discloses the commission of a cognizable offence. Even if the information does not give full details regarding these matters, the investigating officer is not absolved of his duty to investigate the case and discover the true facts, if he can.

21. In the instant case the information received by the Superintendent of Police, C.B.I. clearly spells out the offence of criminal misconduct under Section 13 of the Prevention of Corruption Act, 1988, inasmuch as there is a clear allegation that the respondent has demanded and accepted a sum of rupees one lakh by way of illegal gratification. The allegation is not as vague and bald as the High Court makes it out to be. There is a further assertion that the respondent is carrying with him the said sum of rupees one lakh and is to board the Gitanjali Express going to Nagpur. The allegation certainly gives rise to a suspicion that a cognizable offence may have been committed by the respondent, which the Superintendent of Police, C.B.I. was empowered to investigate. Therefore, if the Superintendent of Police, C.B.I. proceeded to intercept the respondent and investigate the case, he did only that which he was in law obliged to do. His taking up the investigation, therefore, cannot be faulted.

22. The High Court has also quashed the G.D. Entry and the investigation on the ground that the information did not disclose all the ingredients of the offence, as if the informant is obliged to reproduce the language of the section, which defines “criminal misconduct” in the Prevention of Corruption Act. In our view the law does not require the mentioning of all the ingredients of the offence in the First Information Report. 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 investigating agency.

23. The High Court also held that before conducting the search and seizure the mandatory requirement of Section 165 was not fulfilled inasmuch as the Investigating Officer did not record in writing the grounds for his belief as required by the said section. It is premature at this stage to consider whether search and seizure was done in accordance with law as that is a question which has to be considered by the Court, if the accused is ultimately put up for trial and he challenges the search and seizure made. Similarly, the question as to whether the G.D. Entry, or the F.I.R. formally recorded on October 20, 1990, is the F.I.R. in the case, is a matter which may be similarly agitated before the Court. Where two informations are recorded and it is contended before the Court that the one projected by the prosecution as the F.I.R. is not really the F.I.R. but some other information recorded earlier is the F.I.R. that is a matter which the Court trying the accused has jurisdiction to decide. Similarly, the mentioning of a particular Section in the F.I.R. is not by itself conclusive as it is for the Court to frame charges having regard to the material on record. Even if a wrong Section is mentioned in the F.I.R., that does not prevent the Court from framing appropriate charges.

24. We are, therefore, of the considered view that the High Court erred in exercising its revisional jurisdiction to quash the G.D. Entry, the F.I.R. and the investigation undertaken by the Superintendent of Police, C.B.I. in the facts and circumstances of this case. The High Court also erred in granting relief to the respondent by directing the return of the seized amount and other articles. This appeal, therefore, deserves to be allowed and is accordingly allowed. The judgment and order of the High Court is set aside and the appellants are directed to proceed with the investigation in accordance with law and thereafter to take all steps as are required to be taken in law.

25. Since we have directed the investigation to continue, the investigating agency should complete the investigation and thereafter take such action as may be justified in law. Nothing said in this judgment should be construed as expression of opinion on the merit of the case. It is for the investigating agency to collect all necessary evidence and take such steps as may be justified, having regard to the evidence collected by it. We should not be understood to have expressed any opinion on the truthfulness or otherwise of the allegations made in the report on the basis of which the investigation was undertaken. Observations, if any, have been made only for the purpose of deciding the question as to whether the investigating agency was justified in taking up the investigation pursuant to the G.D. Entry No. 681 recorded on the 17th October, 1990. Similarly, any observation made by the High Court while disposing of the Revision should not prejudice the case of the parties.

Union of India and another Vs W.N. Chadha[ ALL SC 1992 DECEMBER]

KEYWORD:-Notice before investigation- LETTER ROGATORY-

supreme court of india 1

AIR 1993 SC 1082 : (1992) 3 Suppl. SCR 594 : (1993) 4 Suppl. SCC 154 : JT 1992 Suppl. SC 255 : (1992) 3 SCALE 396 : (1993) CriLJ SC 859

(SUPREME COURT OF INDIA)

Union of India and another Appellant
Versus
W.N. Chadha Respondent

(Before: S. Ratnavel Pandian And K. Jayachandra Reddy, JJ.)

Criminal Appeal No. 567 of 1992, Decided on: 17-12-1992.

Investigation—Natural Justice—Application of—Claim of accused of right of prior notice or of being heard at the stage of investigation—Such right is not available to an accused.

When the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under Section 173(2) of Cr.P.C. follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but whether the occasion for its attraction exists at all.

Under the scheme of Chapter XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a mater of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise that on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding the said offence is triable by a Magistrate or triable exclusively by the Court of Session, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. An accused cannot claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or seizure of any property in his possession connected with the crime unless otherwise provided under the law.

There are certain rights conferred on an accused to be enjoyed at certain stages under the Code of Criminal Procedure—such as Section 50 whereunder the person arrested is to be informed of the grounds of his arrest and of his right of bail and under Section 57 dealing with person arrested not to be detained for more than 24 hours and under Section 167 dealing with the procedure if the investigation cannot be completed in 24 hours—which are all in conformity with the ‘Right to Life’ and ‘Personal Liberty’ enshrined in Article 21 of the Constitution and the valuable safeguards ingrained in Article 22 of the Constitution for the protection of an arrestee or detenu in certain cases. But so long as the investigating agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of a criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impinge upon the proceedings of arrest or detention during investigation as the case may be, in accordance with the provisions of the Code of Criminal Procedure.

Investigation—Power to commence—Necessity of reason with the police officer to suspect—It is necessary that police officer should have “reason to suspect” with regard to commission of an offence.

Natural justice—Audi alteram partem—Principle of—It is a rule of justice—It cannot be applied to defeat the ends of justice—Administrative decision followed by full fledged enquiry is a significant factor to decide whether hearing should be afforded at that stage.

Criminal Procedure Code, 1973—Section 157(1)—Investigation—Power to commence—Necessity of reason with the police officer to suspect—It is necessary that police officer should have “reason to suspect” with regard to commission of an offence.

Counsel for the Parties:

Mr. Altaf Ahmed, Addl. Solicitor General, Mr. Ashok Bhan and Mr. C.V.S. Rao, Advocates with him, for Appellants.

Mr. Rajendra Singh and Mr. Dinesh Mathur, Sr. Advocates, Mr. Ashok Grover, Mr. Rahul P. Dave, Mr. Krishan Kumar and Ms. Ruby Anand, Advocates with them, for Respondent.

Judgment

S. Ratnavel Pandian, J—The above appeal is preferred before this Court, challenging the judgment of the High Court of Delhi dated 2nd September, 1992 rendered in Criminal Writ No. 501/91 knocking down the very registration of the First Information Report and all the proceedings arising thereon including the issue of letters rogatory in the second round of the bout of this litigation.

2. The first round of the litigation came before this Court on an appeal preferred by Sh. H. S. Chowdhary challenging the order of the learned single Judge, Justice M. K. Chawla of the High Court of Delhi dated 19th December 1990 dismissing his petition on the ground that he has no locus standi to file his petition and a few other appeals preferred by the Union of India and some political parties which had been seriously litigated before this Court on the earlier occasion and resulted in the pronouncement of an order dated 27th August 1991, giving only the conclusions and the final judgment on 28th August 1992 vide Janata Dal v. H. S. Chowdhary (1991) 3 SCC 756 and (1992) 4 SCC 305 the decisions of which were rendered by this Bench.

3. The synoptical resumption of the case of the prosecution leading to the initiation of the proceedings inclusive of the organic synthesis of the events and the circumstances veering the case have been encapsuled and presented in the order and judgment of this Court rendered in the first round of the batch of appeals. Nonetheless, to assimilate the controversial issues both legal and factual involved, we would like to give a terse sketch, shorn of the detailed facts of the case, as borne out from the records, which has given rise to this appeal.

4. The respondent, namely, W. N. Chadha who is now residing at Dubai in United Arab Emirates (UAE) had his first agreement in 1978 with M/s. A. B. Bofors (hereinafter referred to as ‘Bofors) to provide representation services to it in India with regard to supply of arms and ammunition to Indian Government. The terms of the said representation services agreement were extended from time to time until the end of 1985. However, in January, 1986, Bofors and Anatronic General Corporation Private Ltd. (for short ‘AGC’) promoted by the respondent entered into a consultancy agreement in 1986 with Bofors in respect of its business in India. According to the respondent, at no stage he or any of his concerns was made agent of Bofors. Similarly, he or his concern was not entitled to enter into negotiations with Government of India on behalf of Bofors or to commit or to bind Bofors to any agreement or arrangement with the Government of India but as stated supra, he was to render administrative consultancy services to Bofors.

5. The Ministry of Defence, Government of India approved in August, 1980 a proposal forwarded by Army headquarters recommending, inter alia, the introduction of 155 min calibre medium guns both towed and self-propelled to meet its defence operational requirements. The choice for purchasing the said guns was shortlisted in December, 1982 to (1) M/s. Sofma of France, (2) M/s. A. B. Bofors of Sweden (Bofors), (3) M/s. International Military Services (IMS) of U.K., and (4) M/s. Voest Alpine of Austria.

6. In April 1984, the Cabinet Committee on Political Affairs (‘CCPA’ for short) approved the proposal for procurement of 155 min guns along with certain related equipments and ammunition at a total estimated cost of ` 1600 crores. In May 1984, a Negotiating Committee comprising of the Defence Secretary as the Chairman, Secretary (DP and S), Scientific Adviser to Raksha Mantri (i.e. Secretary, Research and Development), Secretary (Expenditure), Additional Secretary, Department of Economic Affairs, Financial Adviser, Defence Services and the Deputy Chief of Army Staff as members was constituted for detailed negotiations with the various suppliers.

7. The Negotiating Committee started its deliberation in June, 1984 and decided that fresh sealed technical and commercial offers should be invited from the four shortlisted firms. After the offers were received from the aforesaid four firms, technical and commercial negotiations were held with all the said firms and thereafter revised offers were invited and the same were received on 1St September. Offers were also invited from the ammunition manufacturers. After seeking certain clarifications from the’ aforesaid firms with a view to evaluate the offers of all the competitors, all the four firms submitted fresh commercial offers on 10th May, 1985. Thereafter, members of the Negotiating Committee requested the Army Headquarters to give their recommendations of the guns acceptable to them taking into account the technical aspects, delivery schedule etc. and clearly indicate their preference from amongst the acceptable guns. The then Deputy Chief of the Army Staff told the committee that the French gun was the best and the Swedish gun was the second best and that if the price difference was marginal, they should go for the former. The recommendations of the Army Headquarters to shortlist only M/s. Sofma of France and M/s. A. B. Bofors of Sweden for further negotiations were accepted by the Negotiating Committee which, however, felt that the choice between the two was open and it would depend on a combination of technical and financial considerations. The above two shortlisted firms were called for negotiation in the middle of December, 1985. Three ammunition manufacturers were also called in the middle of January, 1986. The commercial, contractual and technical aspects of purchase and licenced production were negotiated with the said two firms.

8. On 4th March, 1986, the Negotiating Committee expressed the view that Bofors gun had a clear edge over Sofma gun of France with which view the then Deputy Chief of the Army Staff also agreed. On 12th March 1986, the Negotiating Committee recommended that a letter of intent might be issued to Bofors to the effect that the Government of India would be willing to award the contract to them subject to the condition of being satisfied on all aspects of the purchase, licensed production, credit and other arrangements. Finally, the order was placed by the Government of India to Bofors on 24th March, 1986 for the supply of 410 numbers (400 plus 10 free) of 155 mm Field Howitzer 77-B gun system/spare guns vide contract No. 6(9)/ 84/ D (GS-IV) for a total amount of SEK 8410.66 million (Swedish-Kroners) equivalent to about ` 1437.71 crores. The related contract for supply of the gun package (towed) and other related agreements/ contracts were concluded, approved and signed on 24th March, 1986 with Bofors.

9. On 17th April, 1987, some newspapers in India gave prominent coverage to a Swedish Radio broadcast made on the previous day, broadcasting that bribes had been paid to senior Indian politicians and key Defence figures to win the contract awarded by the Government of India to Bofors on 24th March, 1986.

10. The above news item was again broadcast by Swedish Radio on 17th April, 1987 claiming that it had documentary proof of pay-offs in four instalments to Indian accounts in Swiss Banks and it had checked with Skandinaviska Enskilds Banken, the bankers for Bofors. This news item was refuted by Bofors denying the allegations of paying any kickbacks to Indian politicians or officials in respect of the deal. The Government of India also issued a statement on 17th April, 1987 itself denying the allegations of payments of alleged kickbacks. On 20th April 1987, Shri K. C. Pant, the then Minister of ‘Defence made a suo motu statement in the Lok Sabha stating inter alia, that the Government of India did not employ and representative/ agent for the contract and added that “for administrative services, e.g. hotel bookings, transportation, forwarding of letters, telexes etc., they use the services of a local firm”. The then Defence Minister added that “if any evidence is produced involving violations of the law, the matter will be thoroughly investigated and the guilty, whoever they may be punished.” A similar statement was also made by the Minister of State for Defence in the Rajya Sabha on 21st April, 1987.

11. This issue created furore both in the Lok Sabha and the Rajya Sabha. Several issues were raised by the Members of both Houses not only with regard to the alleged kickbacks paid by Bofors for winning the contract but also about the quality and suitability of the gun selected for procurement.

12. On 20th April 1987, Shri Rajiv Gandhi, the then Prime Minister of India intervening in the debate in the Lok Sabha reaffirmed the statement of Minister for Defence in the following words:

“…………And like Panditji has said now, you show us any evidence, we do not want proof. We will bring the proof. You show us any evidence that there has been involvement of middlemen, of pay-offs or of bribes or commissions, we will take action and we will see that nobody however high-up is allowed to go free.”

13. Again the then Minister for Defence made the assurance based on the statement of the then Prime Minister.

14. A demand was made by the Members of both Houses – Lok Sabha and Rajya Sabha – to make a probe into the matter by a Parliamentary Committee. When the matter stood thus, on 4th June 1987, the Swedish Embassy in India forwarded a copy of the report dated 1st June, 1987 of the Swedish National Audit Bureau (‘SNAB’ for short with a note to the Ministry of -External Affairs, Government of India, stating that what is made available to the Government of India was only one part of the report of the SNAB but not the report in its entirety and the rest was withheld by the Government of Sweden on the bank secrecy requirement. (The summary of the observations of SNAB is extracted in the Report of Joint Parliamentary Committee).

15. It may be noted that the said Report did not disclose the names of the recipients of the kickbacks. The then Prime Minister after having the discussion about this matter with the leaders of the opposition parties on 17th June, 1987 decided to request to the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha to set up a Joint Parliamentary Committee (for short JPQ. As both the Speaker and the Chairman declined to set up the JPC on their own motion, on 29th June 1987 the then Minister for Defence (Shri K. C. Pant) moved a motion in the Lok Sabha for appointment of the JPC, and added in justification of the constitution of the same that “The Government has nothing to hide. The Government wants to get at the truth and that is why this Committee has been set up.” Accordingly, the JPC was constituted on 28th August, 1987 to make a probe, into the above allegations. The JPC submitted its Report on 22nd April 1988 with its conclusions and also with the dissenting note of one of its members. The said report of the JPC was presented to Lok Sabha on 26th April 1988 and then laid on the table of the Rajya Sabha on the same day. In spite of the report of the JPC, the allegations of malpractices in the deal with Bofors, payments of kickbacks and receipt of illegal gratification were persistently reiterated and the matter was relentlessly agitated. In the meanwhile, there was a change in the Government.

16. Thereafter, on 22nd January, 1990 the Superintendent of Police, CBI/DSPE/ACUIV, New Delhi registered the impugned First Information Report in Crime No. RCI(A)/ 90 / ACU-IV under S. 120B read with Ss. 161, 162, 163, 164 and 165-A of the Indian Penal Code read with Sections 5(2), 5(1)(d) and 5(2)/5(1)(c) of the Prevention of Corruption Act, 1947 read with Ss. 409, 420, 468 and 471 of the Indian Penal Code against 14 accused of whom three are named, they being (1) Shri Martin Ardbo, former President of M/s. A. B. Bofors, Sweden, (2) Shri Chadha alias Win Chadha, S/o Shri Assa Nand, President of M/s. Anatronic General Corporation/ Anatornic General Companies Ltd., C/4, Main Market, Vasant Vihar, New Delhi and Shri G. P. Hinduja, New Zealand House, Hay Market, London SW-1. The rest of the 11 accused are stated in general as Directors/ employees/ holders/ beneficiaries of account code and public servants of the Government of India. The prefatory note of the First Information Report reveals that the case was registered “on the basis of reliable information received from certain sources, certain facts and circumstances that have become available, media reports, report dated 1st June 1987 of the Swedish National Audit Bureau (SNAB), certain facts contained in the report dated 22nd April, 1988 of the Joint Parliamentary Committee (JPC) and the report dated 28th April 1988 of the Comptroller and Auditor General of India (CAG)”. The First Information. Report gives a detailed sequence of the events relating to the purchase of guns from M/s. A. B. Bofors, Sweden and the related agreements entered thereupon in violation of the Government’s policy i.e. not to involve any agent and the existing law of this land. Various allegations are mentioned in the FIR regarding the payment of bribes/ kickbacks and receipt of illegal gratification. It is further averred in the First Information Report that even in the letter dated 3-10-86 sent to the Swedish National Bank, Bofors had referred to some of the payments to Svenska Inc. and the codename ‘Mont Blame’ as “commission payments” and that the payment to M/s. Moresco/Moineao/SA/ Pitco, Geneva was deposited by Bofors in three code name accounts, namely, “Lotus” in Suissee Bank Corporation, 2 Rue de law Confederation 1204, Geneva “Tulip” in Manufacturers Hannover Trust Company, 84 Rue du Rhone, 1204, Geneva and “Mont Blane” in Credit Suissee, 2 Place Belle Air, 1204, Geneva and that these payments to code name accounts are without mentioning or disclosing the payer’s names. Ultimately, reference was also made in paragraph 112 of the FIR to the statement of Mr. Thulholm, Chairman of Noble Industries.

17. In the FIR, it is summed up that the facts and circumstances set out in the FIR disclose that the above named and unnamed accused persons and others had entered into a criminal conspiracy at New Delhi and other places during 1982-87 in pursuance of which the accused public servants obtained illegal gratification in the form of money from Bofors, a Swedish company through the agent firms/ companies/ persons as motive or reward for such public servants who by corrupt or illegal means or by otherwise dishonestly abusing their official position as public servants caused pecuniary advantage to themselves, Bofors, the agents and others in the matter of the said contract finalised on 24th March 1986 and that there is reason to believe that in pursuance of the said criminal conspiracy, the impugned payments were made by Bofors and obtained by the above firms/ companies/ persons as gratifications and as motive or reward for their inducing or having induced, by corrupt or illegal means or by the exercise of personal influence, the said public servants of the Government of India in the matter of processing and award of the said contracts to Bofors and that the public servants had also abetted the same.

18. After the registration of the case, the Director, CBI by his letter dated 23rd January, 1990 followed by another letter dated 26th January, 1990 requested the concerned authority in Switzerland for freezing/ blocking certain bank accounts said to be relevant to the case, on which the Federal Department of Justice and Police, Switzerland moved a Geneva and a Zurich Judge who froze certain bank accounts on 29th January, 1990. It was, however, pointed out that the relevant accounts would remain frozen till 28th February, 1990 and that further necessary assistance would be rendered only on receipt of the letter rogatory from a competent judicial authority in India.

19. On 2nd February, 1990, the second appellant (C. B. I.) requested Shri R. C. Jain, Special Judge, Delhi to issue a letter rogatory/ request to Switzerland urgently for getting the necessary assistance so that the investigation can be conducted in Switzerland. lest very important and relevant evidence would remain uncollected and the cause of justice would be frustrated.

20. The Special Judge after hearing the prosecution allowed the application by his order dated 5th February, 1990. The said order reads thus:

“In the result, the application of the CBI is allowed to the extent that a request to conduct the necessary investigation and to collect necessary evidence which can be collected in Switzerland and to the extent directed in this order shall be made to the Competent Judicial Authorities of the Confederation of Switzerland through the Ministry of External Affairs, Government of India subject to the filing of the requisite/paper undertaking ‘required by the Swiss Law and assurance for reciprocity.” 21. It appears that though the Examining Magistrate of Geneva decided on 26th March, 1990 to accept the letter of request, on a challenge by two of the affected parties, the Criminal Court of Canton of Geneva held that the request for mutual judicial assistance presented by India did not in its form satisfy the requirement of Article 28 of the Federal Act on International Mutual Assistance in Criminal Matters (for short ‘IMAC) and sent back the letter rogatory for compliance of certain procedural formalities. Thereafter, the CBI submitted another application to the Special Judge on 16th August, 1990 praying for issuance of an amended letter rogatory to the competent judicial authority in the Constitution of Switzerland. It was also prayed to have the proceedings on this application in camera since the proceedings arising thereon involve sensitive aspects. By that time, Shri V. S. Aggarwal assumed charge as Special Judge in place of Shri R. C. Jain.

22. It was at this relevant time i.e, on 13th August, 1990 Shri H. S. Chowdhary, an Advocate claiming to be the General Secretary of an Organisation named as Rashtriya Jan Parishad as a public interest litigant filed Criminal Miscellaneous Case No. 12 of 1990 before the Special Judge seeking certain prayers inclusive of not to issue letter rogatory on the request of the CBI unless the allegations against the named persons. are established and that no request for feezing bank account be made to Swiss Government etc. The details of the prayers are given in our judgments in (1991) 3 SCC 756 and (1992) 4 SCC 305. The Special Judge, Shri V. S. Aggarwal dismissed the petition of Shri H. S. Chaudhary on l8th August, 1990 holding that he has no locus standi. Then the Special Judge for the reasons mentioned in his order issued (1) Note of compliance and (2) Amended Letter rogatory on August 21, 1990.

23. It may be recalled that H. S. Chaudhary filed a criminal revision before the High Court of Delhi which came up for hearing before Justice M. K. Chawla who by his order dated l9th December, 1990 dismissed the revision petition holding that H. S. Chaudhary had no locus standi to present the revision but took suo motu cognizance of the matter in exercise of powers vested on him under Sections 397 and 401 read with Section 482 of the Criminal Procedure Code and directed the issuance of show cause notice to the CBI and the State calling them “as to why the proceedings initiated on the filing of FIR No. RC 1(A)/90/ACU-IV dated 22-1-90 pending in the Court of Shri V. S. Aggarwal, Special Judge, Delhi, be not quashed.”

24. On being aggrieved by the order of Justice M. K. Chawla, H. S. Chaudhary preferred an appeal challenging the findings of the High Court that he had no locus standi and the appellant herein (Union of India) and several political parties such as Janata Dal, Communist Party of India (Marxist) and Indian Congress (Socialist) preferred appeals canvassing the correctness of the order of Justice M. K. Chawla taking suo motu cognizance and issuing notice calling upon the CBI and the State to show cause as to why the proceedings initiated on the strength of the FIR be not quashed. One independent writ petition was also filed for the same relief as sought for by the political parties. This Court by its order dated 27th August, 1991 allowed the appeal of the Union of India and quashed the suo motu action of the High Court but reserved the reasons to be given later on vide Janata Dal v. H. S. Chaudhary, (1991) 3 SCC 756. Thereafter, this Bench rendered its final judgment on 28th August, 1992 giving the reasons in justification of its earlier order. In the final judgment, this Court confined the question only with regard to the scope and object of public interest litigation and the suo motu exercise and inherent powers of the High Court and ultimately held that H. S. Chowdhary did not have any locus standi to challenge the veracity of the First Information Report and the proceedings arising thereon and quashed the show cause notice issued to the CBI and the State. However, in the earlier Order itself, we expressed our view as regards the right of parties aggrieved by initiation of criminal proceedings to challenge the said proceedings, in the following words: “Even if there are million questions of law to be deeply gone into and examined in a criminal case of this nature registered against specified accused persons, it is for them and them alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants.”

25. After the first round of the bout (i.e. the public interest litigation) was lost by H. S. Chowdhary, Shri W. N. Chadha, the respondent herein who is one of the named accused in the FIR has entered into the arena by preferring Criminal Writ No. 501 of 1991 before the High Court of Delhi through his pairokar, Shri S. Nandi of Delhi challenging the legality and validity of the First Information Report dated 22nd January, 1990 and the letter rogatory issued by the Special Court vide its order dated 5th February, 1990 and the amended letter rogatory issued by the Special Court on 21st August, 1990. and praying for quashing of the F.I.R. and all other proceedings arising thereon inclusive of the letters rogatory and for restraining the appellants from further proceeding in the investigation on the basis of the FIR.

26. It appears from the judgment of the High Court that a volley of attacks had been triggered on against the entire criminal proceedings inclusive of the registration of the case, the main contentions of which are as follows:

(1) The report of the JPC pertaining to the subject-matter of the impugned FIR would constitute a legal bar not only for the registration of the FIR and the continuation of the investigation in pursuance of it but also for any further inquiry or investigation by the CBI or trial of any offence with regard to the subject-matter of the proceedings in question which had been deeply gone into by the JPC and finally decided as borne out from the Report of the JPC.

(2) The First Information Report does not disclose the commission of any offence and at any rate against the respondent even assuming that the respondent had received certain amount by way of winding up charges/ commission through some other company.

(3) The very fact that no civil case has yet been filed by the Government of India for recovery of the so-called commission in India and elsewhere by invoking the arbitration clause of the contract, the entire controversy is to be held as being based on mere conjectures and surmises.

(4) The report of the JPC clearly reveals that the Bofors gun was best amongst the other available guns and was offered at the minimum price.

(5) Though 31 months have passed by since the registration of the FIR, no public servant has been brought on record as accused so far.

(6) The FIR was conceived with a mala fide motivation of the persons in authority and the criminal proceeding has been initiated with an oblique purpose.

(7) The letters rogatory are liable to be quashed on the grounds:firstly that the Special Judge had no jurisdiction to issue letter rogatory and secondly he had not complied with the principle of audi alteram partem in the sense that he failed to issue notice to the respondent who is a named accused in the FIR and to afford him a reasonable opportunity of being heard before issuing letter rogatory on 5/7th February, 1990 as well on 21/22nd August, 1990.

8) The Special Judge had erred both in law and on fact in issuing the letters rogatory as he failed to appreciate that the FIR does not disclose the involvement of the accused persons whose properties are attached and rights are affected by the letters rogatory.

9) The allegations in the F.I.R. do not constitute any offence against the respondent warranting an investigation, leave apart the question of dual criminality.

27. In addition to the above contentions, the respondent has also raised some more legal contentions before the High Court, those being:

1) That the Memorandum of Understanding (MOU) entered into between India and Switzerland is neither a Treaty nor an enforceable contract between the two Governments.

2) The Memorandum of Understanding is incompetent because India’s Ambassador in Switzerland has no authority to negotiate or execute such a document.

3) The Memorandum of Understanding was not subsequently ratified by the President of India or by the Parliament.

28. The appellants besides filing their counter-affidavit to the main writ petition made their written submissions refuting all the challenges made by the respondent.

29. The High Court rejected the contention of the respondent that MOU is not a Treaty holding, “We do not find any merit in this contention”. Similarly, the High Court rejected the second contention of the respondent that the Ambassador of India in Switzerland has no authority to negotiate and execute the MOU holding that such a contention “is also without merit in view of the letter of credence, a copy of which has been annexed by the respondents along with their additional written submissions”. As regards the contention that the MOU was not ratified, it has been held “We also do not find any merit in the third contention that MOU was not ratified by the President or Parliament as there is no express provision in MOU envisaging its ratification”.

30. Dealing with the contention raised on behalf of the respondent that the Report of the JPC constitutes a bar to the registration of the FIR and the continuation of the investigation, the High Court observed as follows:

“Since there is no provision in the Code of Criminal Procedure barring investigation by CBI in a case where the matter has been inquired into by JPC, we do not find any merit in this contention. But JPC being a High Power Committee of both Houses of Parliament and having gone into substantial evidence we are of the opinion that we also cannot totally ignore the conclusions arrived at by the JPC.”

31. The above observation shows that the High Court did not favour the contention that the report of the JPC constitutes a legal bar for the registration of the FIR and continuation of the investigation.

32. Though the High Court rejected some of the submissions made on behalf of the respondent as abovementioned, allowed the writ petition on the other grounds and gave the following findings drawing strength from various documents, namely, the letter dated 29-11-1985 of the then Chief of Army Staff, report of the JPC, the approval of the CCPA in 1984 regarding the proposal for procurement of 155 mm guns along with certain related equipments and ammunition, the negotiations of the Negotiating Committee comprising of high ranking officials, the report of the Comptroller and Auditor General of India dated 26th April, 1989 containing the comments regarding the engagement of agents in the Bofors deal, the opinion the then Attorney General, embodied in the JPC Report etc. The findings are:

1) The decision regarding the finalisation of the contract with Bofors was taken in accordance with well established procedure.

2) Bofors had brought down their price compared to the competitive Sofma and gave other concessions amounting approximately to ` 10.5 crores even after the issuance of letter of intent. All this clearly shows that the procedure adopted for finalisation of the contract with Bofors was perfect and bona fide.

3) There is no allegation even in the FIR that any favour was shown by the Negotiating Committee to M/s. A. B. Bofors.

4) In the FIR, no public servant has been named as an accused.

5) Though no stay was granted to proceed with the investigation, even after expiry of more than 31 months from the date of the registration of the FIR, CBI has failed to name any public servant as an accused

6) In the absence of any public servant being brought as an accused, the respondent cannot be treated as an abettor. 7) As Bofors, as borne out from the records, has been corresponding directly with the authorities of the Government of India, the respondent cannot be held to have acted as a middleman. The respondent never represented on behalf of Bofors in the finalisation of the contract and if at all anybody is alleged to have played any role in the finalisation of the contract, it is AE Services Ltd. with whom the association of the respondent has not been alleged even in the FIR:

8) The dominant factors in the finalisation of the contract were the price and quality of the gun system .

9) No offence under any of the provisions as mentioned in the F.I.R. is made out.

10) No offence either under Sec. 409 or under any other sections of I. P.C. is made out in the F.I.R. No suit has been filed or any arbitration proceeding has been initiated for recovery of the alleged commission.

33. The High Court has also made reference to the judgment of this Court dated 28th August, 1992 (supra) in which this Court after examining the FIR did not agree with a positive assertion of Justice M. K. Chawla stating “that the FIR filed by the CBI in this case on the face of it does not disclose any offence”. For proper understanding, we would like to reproduce the earlier observation of this Court in the above cited case which reads as follows:

“We have carefully and scrupulously gone through the First Information Report and we are unable to share this view of Mr. Justice Chawla, quite apart from the other grounds on which the accused may like to attack the First Information Report,”

34. After making reference to the above observation, the High Court in its impugned judgment has recorded the following finding in unequivocal and unambiguous terms:

“With respect, we are also of the view that it may not be correct to say that the FIR on the face of it does not disclose any offence against any one, named or unnamed accused.”

(Emphasis supplied)

35. Notwithstanding of the above specific finding, the High Court rendered the following conclusion:

“But while dealing with the issues raised by the petitioner, in this case, we have come to the conclusion that if the allegations made in the FIR are read by themselves or along with the conclusions by JPC (which was a high powered committee, representing both Houses of Parliament), which are based on evidence collected by the said Committee and conclusions arrived at by us, explained hereinabove, which are again based on the records of the case, and further that CBI has failed to name any public servant as an accused in the case, even after the expiry of more than 31 months from the registration of the case, as explained earlier, no offence is made out against the petitioner under Sections 120B, I.P.C. read with Ss. 161, 162, 163, 164 and 165A of the I.P.C. read with Sections 5(2)/5(1)(d) and 5(2)/5(1)(c) of the Prevention of Corruption Act, 1947 read with Ss 409, 420, 468 and 471 of I.P.C.”

36. In the result, the High Court allowed the writ petition and quashed the impugned First Information Report, the letters rogatory issued on two occasions and other proceedings taken and orders passed in pursuance of the said FIR by its impugned judgment dated 2nd September, 1992.

37. It appears from the judgment under challenge that after the judgment was reserved by the High Court, an application being Crl. M. 334 of 1992 was filed by Shri Prashant Bhushan, Advocate as a public interest litigant expressing his grievance that no proper submission was made as regards the legality of the issue of letter rogatory and the competence of the Special Court in issuing the same. Such submissions were made in the form of a written argument, The High Court after issuing notice to the counsel for the CBI as well as the respondent herein and hearing the parties held that all the relevant points mentioned in the written argument filed by Shri Prashant Bhushan were fully argued by the counsel for the CBI and, therefore, the allegations made against the counsel for CBI are unfounded and accordingly disposed of that application.

38. The facts and the sequence of events of this case which we have chronologically narrated more in a summary way than in describing the galaxy of facts in detail in order to avoid prolixity clearly show that while Shri Harinder Singh Chaudhary was seeking quashing of the letter rogatory, FIR and all other proceedings arising thereon as a public interest litigant on behalf of the accused named and unnamed inclusive of this respondent in the FIR, the respondent (W. N. Chadha) was inexplicably silent but only after Harinder Singh Chaudhary had miserably become unsuccessful in his attempt of thwarting the criminal proceedings even at the door step on the ground that he had no locus standi, the respondent (W. N. Chadha) has come out of his shell-that too through his Pairokar and challenged the criminal proceedings raising various questions which, of course, are available to him de hors the questions which have already been decided and concluded by this Court during the first round of litigation. In fact, we ourselves in our earlier order dated 27th August, 1991 have expressed the view that it is for the aggrieved parties inclusive of this respondent to agitate and challenge the criminal proceedings at the appropriate time before the proper forum.

39. The appellants, namely, the Union of India through its Secretary, Ministry of Home Affairs, New Delhi and the Central Bureau of Investigation through its Director have, without loss of time, approached this Court by preferring the SLP even on 4th September, 1992 along with a petition for ad interim ex parte stay. A three Judges Bench of this Court presided over by Hon’ble the Chief Justice took the matter on the very same day i.e. on 4-9-1992 and passed the following order:

“Issue notice. Learned Counsel for the respondent accepts notice. To come up for admission on 17th September, 1992, preferably before a Bench presided over by Hon’ble Pandian, J.

In the mean time, it is directed that the impugned judgment of the High Court shall not be utilised before any Cantonal Court or Authority for the purpose of obtaining release of any bank account which has been frozen or for the return or release of any information or documents till the S. L. Ps. are disposed of or till further orders.

Learned Counsel for the respondent states that respondent will not make any application for the release of any documents in his favour till further orders on the basis of the impugned judgment.”

40. Thereafter on 17-9-1992, this Court to which one of us (S. Ratnavel Pandian, J.) was a party granted leave and directed the interim order passed on 4-9-1992 to continue and in addition made a further direction that the impugned judgment shall not be utilised for any purpose until further orders.

41. The core of the grievance of the appellants is that the High Court without assimilating the averments made in the First Information Report in the proper perspective and on a misconception that the entire proceedings are plauged by procedural wrangles and controversies has entered into the realm of conjectures and surmises and rendered the manifestly erroneous impugned findings. According to them, the conclusions arrived at by the High Court by overstepping its jurisdiction are totally opposed to the well established principles of law laid down by a series of decisions of this Court. Further, it is contended that this impugned verdict has prevented the crucial evidence from ever surfacing which otherwise could have been unearthed and collected to establish the allegations made in the FIR.

42. Seriously challenging the findings of the High, Court, Mr. Altaf Ahmad, the learned Additional Solicitor General assisted by M/s. C. V. Subba Rao and Ashok Bhan, learned advocates has articulated that the High Court by slipping and stumbling on many slippery grounds has rendered its findings which are not only opposed to law but also are contumacious. According to him it surprises in extreme that the High Court has thought that in exercise of its prerogative powers under Article 226 of the Constitution, it could quash the F. I. R. even though the said FIR discloses the offence/ offences against the named and unnamed accused and the investigation has not yet commenced in its true sense except a preliminary effort of obtaining some information from the Swiss Banks as. regards the names of the account holders and to have an access to secret bank accounts linked with the Bofors payments. The learned Additional Solicitor General submits that there is an overwhelming weight of authority in favour of his view that the FIR cannot be quashed if the allegations do make a prima facie case. He cited some decisions of this Court spelling out the circumstances under which the High Court could exercise its discretion.

43. In continuation of his submission, the learned Additional Solicitor General submits that there is no legal bar in having requested the Special Court to issue letters rogatory/request for assistance to the competent judicial authorities in the Confederation of Switzerland for investigation and collection of evidence for solving the Bofors mystery because the investigating agency, namely, the CBI has to establish the names of the beneficiaries, the quantum of the amounts they were paid and the nature of their services even-by cutting through the thicket of legal tangles. By the impugned judgment quashing letters rogatory, the High Court has now subverted and forestalled the collection of the requisite vital and valuable particulars which lie buried in Swiss vaults and that unless the embargo now created by the impugned judicial pronouncement is removed by setting aside the impugned judgment, the CBI will be paralysed and precluded from, unearthing the evidence and the wider conspiracy with international dimensions and bringing the culprits within the dragnet of prosecution and that the entire proceedings taken so far will be frustrated and halted.

44. Regarding the finding of the High Court that even after 31 months from the registration of the case, the CBI not only failed to produce any material against anyone of the accused inclusive of the respondent but also could not name even a single public servant as accused, it is submitted that the logic of this line of reasoning is totally fallacious in law and on fact, and this finding will be fraught with serious consequences, resulting in the destruction of the investigation so far carried on. According to the Additional Solicitor General, it is only during the course of the investigation, the identity of the accused persons can be brought on record; but in the present case, unfortunately the CBI is not allowed to have access to the bank accounts which would alone reveal the identity of the accused persons. Further, ever since the registration of the case various attempts were/are made by initiating multiple proceedings as aforementioned to thwart the investigation by putting spoke in its wheel at every stage. Therefore, the delay has occasioned more due to the multiple obstructions put forth by H. S. Chawdhary and thereafter by the present respondent and it is not due to any procrastination on the part of the prosecution and that it cannot be said that the case is kept dangling endlessly without any evidence against anyone of the accused.

45. The learned Additional Solicitor General has seriously urged that a bare perusal of the FIR manifestly demonstrates that huge payments have been deposited in the account of Svenska Inc. in Swiss Bank Corporation, the principal beneficiary of which is the respondent, W. N. Chadha. He clarifies the above submission stating that there is a clear link between Svenska Inc. Panama and Anatronic General Corporation of which the respondent is admittedly the President, as described in detail in paragraphs 53-59 of the FIR, a perusal of which will leave no doubt whatsoever that Svenska Inc. Panama is just a front Company and belongs to the respondent. According to him, there are sufficient materials indicating the involvement of the respondent in the commission of the offences in question. It is further stated that the connection between Svenska Inc. Panama and AGC is discernible from the agreements of the years 1978, 1984 and 1986 entered into by Bofors with the two aforementioned concerns.

46. Finally, he requested this Court to pronounce the verdict as early as possible.

47. It may be mentioned in this connection that the first Bench presided over by the Chief Justice while issuing notice on 4-9-1992 in this appeal also issued notice in Criminal M. P. No. 4999/92 seeking for leave to file a SLP by Shri Prashant Bhushan. There is a foot-note in the order dated 4-9-92 reading “SLP filed by Mr. Prashant Bhushan shall also be put up along with this petition”. Apart from this petition two other unnumbered. S LPs are also filed – (1) by Shri George Fernandes through his counsel Prashant Bhushan; and (2) another by one Shri Jaswant Singh through his counsel Ms. Kamini Jaiswal along with two Criminal M.P. Nos. 5201 and 5160 of 1992 seeking leave to file the special leave petitions. Mr. Shanti Bhushan, the learned senior Counsel who appeared in the unnumbered two SLPs filed by Prashant Bhushan addressed this Court on the question of locus standi as both the SLPs are public interest litigations. Mr. Ram Jethmalani, the learned senior Counsel appeared in the unnumbered SLP filed by Jaswant Singh and addressed his arguments. Both the learned Counsel while addressing their arguments on locus standi of all the above three petitioners in preferring their respective SLPs which are public interest litigations incidentally touched upon the merits of the case and supplemented the submissions of the Additional Solicitor General. Mr. Jethmalani waxed eloquent on the disastrous consequences that are likely to follow due to the quashing of the F.I.R. and the entire other proceedings and characterised the impugned judgment as being a judicial transgression and castration of the criminal law of this land. He said that the allegations made in the FIR are very serious and outrageous in nature and the circumstances veering the case bear chilling evidence and that if such evidence is buried fathoms deep pursuant to the impugned judgment, the people of this nation who are having and reposing great trust and confidence in judiciary will lose their faith in the entire system of judicial administration. He continues to state that the repetitive attempts of the respondent to frustrate and filibuster “the proceedings of the prosecution – firstly through H. S. Chowdhary as his proxy raising the same issues and secondly through his Pairokar after having become unsuccessful in his first attempt are nothing but a poly to escape the clutches of law. According to him the respondent residing in United Arab Emirates has committed serious violation of the provisions of the Foreign Exchange Regulations Act and Income-tax Act by keeping his account in foreign country and that the FIR contains sufficient allegations that the respondent had received huge amount for himself and for passing off to the public servants, and therefore, in order to purify the stream of justice, the impugned judgment of the High Court has to be quashed. The learned Counsel has further urged that the respondent on the pretext of false reasons of health is purposely residing in United Arab Emirates with which country there is no extradition treaty and to which country Indian summons and warrants can not reach and, therefore, the respondent who is an outlaw is not at all entitled to the assistance of the law of this country.

48. According to the respondent, even the entire allegations in the FIR do not constitute any offence against any of the accused much less against him and they are all frivolous, baseless and nothing more than mud slinging. Further, he has started attacking the conduct of the investigating agency in requesting the Court to issue letter rogatory and the authority of the Special Court in issuing letters rogatory on 5/7th February, 1990 and subsequently the ratified letter rogatory issued on 21/22nd August, 1990. In short, before the High Court his effort was to show that the entire criminal proceeding is an aimless voyage or a roving expedition with oblique motive and that he has been caught in a political cross fire which smacks of personal vendetta and in which he has absolutely no role to play. The above breath taking deliberation and debate made before the High Court has yielded the desired effect of quashing the F.I.R., letters rogatory, and all other proceedings ‘arising therefrom, as pointed out earlier.

49. The vital. issues involved in this case have stirred much debate before this Court on previous occasion which was the first round of litigation by a public interest litigant and the result is the pronouncement of the preliminary order in August 1991 followed by the detailed judgment therefor in August 1992 as repeatedly pointed out in the preceding of this judgment. The vital part of conclusion of our detailed judgment reads thus:

“However, it has become necessary at least to deal with the first alleged illegality. We are constrained to do so because of the assertion of the High Court; that being “that the First Information Report on the face of it does not disclose any offence……………….

We have carefully and scrupulously gone through the First Information Report and we are unable to share this view of Mr. Justice Chawla, quite apart from the other grounds on which the accused may likely to attack the First Information Report. None of the named accused came before Mr. Justice Chawla raising this question of lack of allegations and particulars in the FIR so as to constitute any offence, much less a cognizance of offence.”

50. The above conclusions clearly spell out that this Court did not share the view that the First Information Report does not disclose any offence but however the other questions which might be available for the accused persons to attack The First Information could be availed of.

51. To understand the above conclusions, it is relevant to note that one of the propositions for consideration set out by Mr. Justice M. K. Chawla for his suo motu consideration was whether the First Information Report filed by the CBI does disclose any offence;

52. Notwithstanding the above finding of this Court, the High Court in its impugned judgment has examined various legal and factual issues inclusive of the question. whether the First Information Report does disclose any offence against the named and unnamed accused persons and pronounced its final verdict. In fact, the High Court has taken on its shoulder some of the issues which were not really agitated upon by the respondent about which we would deal in the later part of this judgment.

53. We shall now examine the tenability of the various grounds on the basis of which the High Court has rendered its impugned judgment. Firstly we shall deal with vital ground relating to the issue of letters rogatory.

Whether issue of letter rogatory is opposed to law and violative of the principle of natural justice and thereby has become liable to be quashed?

54. It appears from the impugned judgment that it has been contended before the High Court that there is no jurisdiction to issue letter rogatory by the Special Judge unless he is satisfied with regard to the extent of dual criminality and the prima facie involvement of the accused persons whose property or rights are sought to be affected by the letter rogatory. This being a condition precedent, the Special Judge could exercise his jurisdiction only after giving prior notice and affording a reasonable opportunity of being heard to the named accused and the Special Judge by non-compliance of that condition, has erred in law and on fact by issuing letter rogatory. It has been urged that the Special Judge has failed to appreciate that the First Information Report in this case does not disclose any offence whatsoever, leave apart any offence of dual ciminality.

55. The above contentions were tested by the Court on the arvil of two legal propositions, namely, (1) There is no compliance of the principle of audi alteram partem, in that the Special Judge – has not afforded any reasonable opportunity of being heard before issuing the letter rogatory and (2) The Special Judge has not applied his mind to all facts and circumstances of the case before passing his -orders directing issue of letters rogatory,

56. After making a long deliberation on the aspect of this question, the High Court gave its conclusion quashing letters rogatory as follows: “In view of the above discussion, we are of the view that the Special Judge had jurisdiction to issue letter rogatory on the basis of MOU 20th February, 1989 between Government of India and Government of Switzerland and Section 166A, Cr. P.C. Since in the present case, the learned Special Judge failed to issue notice and deemed (denied) opportunity of hearing to the petitioner whose property and rights were sought to be affected by the issue of the impugned letter rogatory and further there was non-application of mind by the learned Special Judge, we quash letters rogatories issued in pursuance of the above orders dated 5th February, 1990 and 21st August, 1990 passed by the learned Special Judge.”

57. Before embarking upon a discussion on this question, we shall see what the expression ‘letter rogatory’ means.

58. The lexical meaning of the word ‘rogatory’ is given in ‘Webster’s Encyclopedic Unabridged Dictionary of the English Language’ as follows:

“pertaining to asking or requesting”

59. ‘Collins English Dictionary’ gives the meaning of the word ‘rogatory’ as under:

“ (esp. in legal contexts) seeking or authorised to seek information”

60. Black’s Law Dictionary (Sixth Edition) at page 905 defines the expression ‘letter rogatory’ as follows:

“A request by one court of another court in an independent jurisdiction, that a witness be examined upon interrogatories sent with the request. The medium whereby one country, speaking through one of its courts, requests another country, acting through its own courts and by methods of court procedure peculiar thereto and entirely within the latter’s control, to assist the administration of justice in the former country.

A formal communication in writing, sent by a court in which an action is pending to a court or Judge of a foreign country, requesting that the testimony of a witness resident within the jurisdiction of the latter court may be there formally taken under its direction and transmitted to the first court for use in the pending action.

This process was also in use, at an early period between the several states of the Union. The request rests entirely upon the comity of courts towards each other.”

61. It is clear from the above meaning of the said expression that ‘Letter Rogatory’ is a formal communication in writing sent by a Court in which action is pending to a foreign Court or Judge requesting the testimony of a witness residing within the jurisdiction of that foreign Court may be formally taken thereon under its direction and transmitted to the issuing Court making such request for use in a pending legal contest or action. This request entirely depends upon the comity of Courts towards each other, that is to say, on the friendly recognition accorded by the Court of one nation to the laws and usages of the Court of another nation.

62. It appears from the records that the First Information Report was laid before the Special Court on 22nd January, 1990. On 23rd January, the request was made by the Director of CBI followed by another letter of request dated 26th January, 1990 to the concerned authorities in Switzerland for freezing/ blocking certain bank accounts, relevant to this case. The Federal Department of Justice and Police, Switzerland moved the Judge of Geneva and the concerned Judge of Zurich who on being prima facie convinced of dual criminality and the need for investigation in Switzerland froze the relevant bank accounts in this regard on 26th January, 1990 as intimated by the Federal Department of Justice and Police through the Embassy of India in Switzerland. As per the intimation, the relevant accounts in the bank had been blocked up to 28th February, 1990. Therefore, it had become necessary for freezing the accounts beyond 28th February, 1990 and to make a request for judicial assistance to Switzerland failing which the Swiss law obliges the withdrawal of the instructions to block the accounts. It is further disclosed from the records that the Federal Department of Justice and Police at Berne which corresponds to the Ministry of Law and Home of the Government of India have assured that the Swiss authorities would render assistance in the investigation in Switzerland in accordance with the mutual assistance agreement dated 20th February, 1989 subject to the condition of the receipt of letter rogatory from the competent judicial authority in India. This necessitated to send letter rogatory to Switzerland urgently for getting the necessary assistance for the investigation to be conducted in Switzerland lest very valuable and relevant evidence would remain uncollected and the cause of justice would suffer.

63. It was only under those pressing circumstances, the DSP, CBI/ACU-(IV)/ DSPE, New Delhi (the investigating officer) submitted an application on 2nd February, 1990 before the Special Judge praying issue of letter rogatory with certain enclosures for assistance to the competent judicial authorities in the Confederation of Switzerland so that during the investigation of this case, the necessary evidence could be collected in Switzerland and the investigation is taken to its logical conclusions as per the requirements of the law. The Special Judge after satisfying himself accepted the request by its order dated 5th February, 1990 and issued letter rogatory/ request enclosing therewith the copies of certain documents on 7th February, 1990 to the competent judicial authorities in the Confederation of Switzerland. The Federal Department of Justice and Police, Berne found the letter rogatory in order and forwarded the same to the Examining Magistrate of Geneva for taking necessary action thereon. The Examining Magistrate, Geneva after satisfying himself that the said letter of rogatory was in order accepted the same on 26th March, 1990 and commenced the investigation as requested.

64. While it was so, two of the affected parties in Geneva filed appeals in the Criminal Court of Canton of Geneva. The Criminal Court of Geneva passed an order on 3rd July, 1990 on the appeals expressing its view that the letter rogatory did not, in its form, satisfy the requirement of Article 28 of the Federal Act of International Mutual Assistance in Criminal Matters (IMAQ and annulled the order of admissibility of mutual judicial assistance handed down by the Examining Magistrate on 26th March, 1990 and sent back the letter rogatory for compliance of certain procedural formalities. In that order, the Criminal Court of Canton, Geneva observed that the provisional measures ordered by the Examining Magistrate, in particular, the seizure of documents and/or bank accounts are not affected by the order.

65. The above order dated 3rd July, 1990 was submitted to the Special Court in India on 16th August, 1990 with some enclosures since the CBI got the copy of the order dated 3rd July, 1990 on 13th August, 1990 from the Delhi Administration. In the second application dated 16th August, 1990 the CBI requested to issue amended letter rogatory/ request. The Special Judge, Shri V. S. Aggarwal who by then took charge of the Special Court issued Note of Compliance and amended letter rogatory on August 22, 1990.

66. Be it noted that on 5/7th February, 1990 when the first letter rogatory was sent by Shri R. C. Jain, Special Judge, Section 166-A of the Criminal Procedure Code was not in vogue. It was only thereafter an Ordinance, namely, the Criminal Procedure Code (Amendment) Ordinance, 1990 was promulgated coming into force from 19th February, 1990. Section 166A(1) as introduced by the Ordinance authorised the investigating officer or an officer superior in rank to the investigating officer to issue a letter of request. Sub-section (2) of Section 166-A of the Ordinance authorised the Criminal Court to issue a letter of request in its discretion on an application made by the investigating officer or any officer superior to the rank of investigating officer. Section 166-B introduced by the above Ordinance deals with the letter of request from a country or a place outside India to a Court or authority for investigation in India. Thereafter, the Criminal Procedure Code (Amendment Act), 10 of 1990 was enacted on 20th April, 1990 conferring the power only on the Criminal Court but not on the investigating officer or any officer superior to the rank of investigating officer to issue a letter of request as introduced by the Ordinance.

67. It appears from the impugned judgment that though on behalf of the respondent, a contention was raised that the Special Judge had no jurisdiction or power to issue letter rogatory on 5/7th February, 1990, the High Court except simply mentioning that contention in the discussion part of its judgment and then proceeding with the counter submission made by the learned Counsel for CBI submitting that the said letters rogatory were issued by the Special Judge on the strength of the memorandum of understanding between Government of. India and Switzerland and in the discharge of his obligation mandated on him by the Constitution and the law, did not go into that question of the jurisdiction or power of the Special Judge to issue letter rogatory on 5/7th February, 1990 despite the fact that copies of the letters rogatory along with their enclosures issued on 7th February, 1990 and 22nd August, 1990 have been made available to the Court. Section 166-A which was introduced after the issue of letter rogatory on 5/7th February, 1990 confers jurisdiction on the Special Judge to issue such letters. The result is that there is no specific discussion with regard to the authority of the Court in issuing the first letter rogatory.

68. It would be significant, in this connection, to refer to the remark of the High Court reading thus:

“We may point out here that in reply to written submissions filed by the petitioner, CBI had filed additional written submissions and had stated therein that besides three contentions mentioned in the preceding paragraphs, the learned Counsel for the petitioner, during the course of oral arguments, had not pressed the contention that the Special Judge had no jurisdiction to issue the first letter rogatory on 5/7th February, 1990. “

69. There is no challenge before us to the above additional written submissions of the CBI.

70. The High Court coming to the legal aspect has observed thus:

“Similarly once the power has been conferred on the Criminal Court to issue the letter rogatory, it follows that the court will have to apply its mind and give an opportunity of hearing to the person whose property of rights are sought to be affected by letter rogatory.”

71. After observing so, the High Court proceeded only on the ground that the Special Judge has not complied with the principle of audi alteram partem and also has not applied his mind to the facts and circumstances of the case before issuing letters of rogatory, as aforementioned.

72. Therefore, we are not called upon to go into the question of the jurisdiction of the Special Judge in issuing the letter rogatory but have to deal only with the other two grounds on the basis of which the High Court quashed the letters rogatory.

73. It would not be out of place to mention here that as rightly pointed out by the Additional Solicitor General that the amended letter rogatory issued on 22nd August, 1990 has got legal sanction under Section 166-A of the Criminal Procedure Code (for short Code) notwithstanding the fact that this provision was not in the statute on 5th February, 1990.

74. The High Court drawing strength from the decision of this Court in Smt. Maneka Gandhi v. Union of India (1978) 1 SCC 248 has observed that the principle of audi alteram partem which mandates that no one shall be condemned unheard is part of the rules of natural justice which is a great humanising principle intended to invest law with fairness and to secure justice. According to the High Court, there is a violent breach of this principle in the case on hand; in that the respondent has not been put on notice with regard to the issue of letter rogatory and afforded a reasonable opportunity of being heard.

75. No doubt it is true that a seven Judges Bench of this Court in Smt. Maneka Gandhi has opened a new vista in the area of personal liberty as enshrined under Art. 21 of the Constitution and emphasised the audi alteram partern rule which emphasis is of affording a fair opportunity of being heard on prior notice to a party to whose prejudice an order is intended to be passed by the Government or its officials. Further, it is stated by the High Court that all the safeguards in favour of an accused contained in the Criminal Procedure Code have now become a part of the constitutional provisions and they are governed by Arts. 14, 19, 20, 21 and 22 and that the procedure contemplated under Article 21 requires that it should not be arbitrary, fanciful, oppressive or discriminatory. Therefore, the failure on the part of the Special Judge in issuing notice to the respondent and affording him a reasonable opportunity of being heard vitiates the letters rogatory.

76. Countering the above arguments, the learned Additional Solicitor General seriously contended that there is no provision conferring any right of audience on an accused before issuing letter rogatory the object of which is to collect evidence which may be used against the accused during the course of the trial. According to him, the accused has no right to control or interfere with the manner in which the evidence is to be collected. Chapter XII of the Code under the heading ‘Information to the Police and other Powers to Investigate’ covering Ss. 154 to 176 does not provide for application of the concept of audi alteram partem for an accused from the very inception of a criminal proceeding till its culmination in filing of a report under S. 173 of Cr. P.C. He continues to state that an order of the Court issued in exercise of the powers under S. 166-A of the Code is only for the purpose of collecting the evidence and in the very nature of things such an order does not affect any right of an accused and, therefore, the said order is beyond the purview of the High Court power even under S. 397 of the Code. Hence there is no question of the rule of audi alteram partem being attracted in the instant case. Therefore, the only important question that arises for our consideration is whether the issue of letters rogatory on 5/7th February, 1990 and on 22nd August, 1990 are liable to be quashed on the ground of non-compliance of the rule of audi alteram partem.

77. The rule of audi alteram partem is not attracted unless the impugned order is shown to have deprived a person of his liberty or his property. In the present case, no such consequences have arisen from the letter rogatory. If the letter rogatory is accepted by the foreign Court and acted upon it will then disclose only the relevant. facts about the identity of the account holders, quantum of the amounts standing in the names of the individual account holders representing the credit of Bofors money and the nature of such accounts. The follow up consequences would be that the corpus of the offence would be preserved intact from preventing the withdrawal of the money from those accounts or closure of the accounts by the account holders till the merit of the case is decided.

78. In fact the Special Judge in Delhi is not possessed with any power or authority to deprive the liberty of the respondent residing out of the jurisdiction of Indian Courts and having his property in question in a foreign country. Only in case where a public officer has got such a power, the question of fair play in action will be attracted. This rule was explained by Lord Denning M.R. in Schmidt v. Secretary of State for Home Affairs (1969) 2 Chancery Division 149 stating that “where a public officer has power to deprive a person of property, the general principal is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf. “

79. The above explanation is quoted in Maneka Gandhi (supra).

80. The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. In A.S. de Smith’s Judicial Review of Administrative Action, 4th Ed. at page 184, it is stated that in administrative law, a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication in the presence of some factors, singly or in combination with another. Those special factors are mentioned under items (1) to (10) under the heading “Exclusion of the audi alteram partem rule”. 81. Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law ‘lifeless; absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation’ and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands.

82. Bhagwati, J. (as the learned Chief Justice then was) in Maneka Gandhi (supra) speaking for himself, Untawalia and Murtaza Fazal Ali, JJ. has stated thus:

“Now, it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty to act fairly, or to use the words of Lord Morris of Borth-y-Gest, from ‘fair play in action’, it may equally be excluded where, having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion.”

83. Thus, it is seen from the decision in Menaka Gandhi that there are certain exceptional circumstances and situations whereunder the application of the rule of audi alteram. partem is not attracted.

84. Paul Jackson in Natural Justice at pages 112 and 113 observed thus:

“……….It was seen that anybody making a decision affecting party’s right or legitimate expectation must observe the rules of natural justice. Conversely a decision which does not affect rights, because for example, it is a prelude to taking further proceedings in the course of which the party concerned will have an opportunity to be heard will, very likely, not itself be subject to the requirements of natural justice, or only in a modification form. A fortiori, the decision by, for example, the responsible Minister or official to initiate the procedure necessary to reach a preliminary conclusion or to examine the existence of a prima facie case can be taken

77. The rule of audi alteram without first giving the person affected a hearing ……….”

85. See also (1) Wiseman v. Borneman, 1971 AC 297; (2) Pearlberg v. Varty (Inspector of Taxes) (1972) 1 WLR 534; (3) Regina v. Barnet and Camden Rent Tribunal, Ex. p. Frey Investments Ltd., (1972) 2 QBD 342, and (4) Herring v. Templeman (1973) 3 All ER 569.

86. In R. v. Peterborough Justice, Ex. p. Hicks (1977) 1 WLR 1371., it has been held that search warrants under the Forgery Act, 1913, S. 13 may issue without the party affected being heard.

87. A Division Bench of the Allahabad High Court in Indian Explosive. Ltd. (Fertiliser Division) Panki, Kanpur v. State of Uttar Pradesh (1981) 2 Lab LJ 159 after referring to the decision in Regina (supra) and Norwest Hoist Ltd. v. Secretary of State for Trade (1978) 1 Ch Div 201 (202) said thus:

“Thus, it has been recognised by Judges of undoubted eminence that a decision on substantive rights of parties is one thing and a mere decision that another body investigate and decide on those substantive rights is quite another, and the principle of hearing is not applicable to the latter class of cases.”

88. The principle of law that could be deduced from the above decisions is that it is no doubt true that the fact that a decision, whether a prima facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full-fledged enquiry follows is a relevant and indeed a significant factor in deciding whether at that stage there ought to be hearing which the statute did not expressly grant.

89. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under S. 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram. partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but where the occasion for its attraction exists at all.

90. Under the scheme of Chap. XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.

91. In State of Haryana v. Bhajan Lal, (1992) 1 Suppl. SCC 335 at 359, this Court to which both of us (Ratnavel Pandian and K. Jayachandra Reddy, JJ.) were parties after making reference to the decision of the Privy Council in Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 and the decision of this Court in State of Bihar v. J. A. C. Saldanha[1], (1967) 3 SCR 668 has pointed out that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation ………..”

92. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under S. 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under S. 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding the said offence is triable by a Magistrate or triable exclusively by the Court of Session, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under S. 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.

93. It may be noted that under S. 227 of the Code dealing with discharge of an accused in a trial before a Court of Session under Chap. XVIII, the accused is to be heard and permitted to make his submissions before the stage of framing the charge. Under S. 228 of the Code, the trial Judge has to consider not only the records of the case and documents submitted therewith but also the submissions of the accused and the prosecution made under S. 227. Similarly, under S. 239 falling under Chapter XIX dealing with the trial of warrant cases, the Magistrate may give an opportunity to the prosecution and the accused of being heard and discharge the accused for the reasons to be recorded in case the Magistrate considers the charge against the accused to be groundless. S. 240 of the Code dealing with framing of charge also reaffirms the consideration of the examination of an accused under S. 239 before the charge is framed.

94. Under S. 235(2), in a trial before a Court of Sessions and under S. 248(2) of the trial of warrant cases, the accused as a matter of right, is to be given an opportunity of being heard. Unlike the above provisions which we have referred to above by way of illustration, the provisions relating to the investigation under Chapter XII do not confer any right of prior notice and hearing to the accused and on the other hand they are silent in this respect.

95. It is relevant and significant to note that a police officer, in charge of a police station, or a police officer making an investigation can make and search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to any one or any opportunity of being heard. The basic objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it unnecessary to make a detailed examination on this aspect except saying that an accused cannot claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or Seizure of any property in his possession connected with the crime unless otherwise provided under the law.

96. True, there are certain rights conferred on an accused to be enjoyed at certain stages under the Code of Criminal Procedure such as S. 50 whereunder the person arrested is to be informed of the grounds of his arrest and of his right of bail and under S. 57 dealing with person arrested not to be detained for more than 24 hours and under S. 167 dealing with the procedure if the investigation cannot be completed in 24 hours which are all in conformity with the ‘Right to Life’ and ‘Personal Liberty’ enshrined in Art. 21 of the Constitution and the valuable safeguards ingrained in Art. 22 of the Constitution for the protection of an arrestee or detenu in certain cases. But so long as the investigating agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of a criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impinge upon the proceedings of arrest or detention during investigation as the case may be, in accordance with the provisions of the Code of Criminal Procedure.

97. Incidentally, it may be stated that there is no question of attachment of money of the respondent or any of the accused, named or unnamed, standing to the credit of the account holders in Swiss Banks linked with Bofors mystery but it was only freezing of the accounts as per the request made by the Director, CBI by his letter dated 23rd January 1990 and followed by another letter dated 26th January 1990 and thereafter pursuant to the request through letters rogatory for judicial assistance in Switzerland. But for the request made by the letter rogatory, the Swiss law obliges withdrawal of all the instructions to block the account. Therefore, we are of the view that the detailed discussion of the High Court with reference to the Criminal Law Amendment Ordinance of 1944 though is not warranted in this regard. However, we will deal with Ordinance with relevant provisions in the later part of this judgment.

98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.

99. Reverting to the facts, it is not the case of the respondent that he is having any account in Swiss banks connected with Bofors mystery and that that account is frozen to his prejudice. When the respondent himself has not come forward with any specific case stating as to what was the quantum of the amount standing to his credit in Swiss banks and in what manner he is now aggrieved by the letter rogatory and in what way he is deprived of his properties, it is incomprehensible as to how the High Court has come to the conclusion that the respondent is deprived of his property. Similarly, any one or the other named or unnamed accused or any third party, not named in the FIR, has not come forward with a complaint of grievance on account of the freezing of the accounts.

100. It will be relevant in this context to refer to a decision of the Constitution Bench] of this Court in M.P. Sharma v. Satish Chandra, (1954) SCR 1077 where in it has been held that “a power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law,” and that a search and seizure of a document tinder the provisions of Ss. 94 and 96 of the Code of Criminal Procedure (old) is not a compelled production thereof within the meaning of Art. 20(3) and hence does not offend the said Article.

101. Shri Rajinder Singh, learned senior counsel appearing for the respondent made his submission that the Special Judge had acted unilaterally in issuing the letter rogatory and without having a full dress enquiry. The learned counsel after referring to S. 91 of the Code corresponding to S. 94 of the old Code and to Ss. 4 and 5 of the Bankers’ Books Evidence Act, 1891 and relying on a decision in Central Bank of India Ltd. v. P. D. Shamdasani AIR 1938 Bom 33 at 35 wherein it has been held that a Magistrate making an order under S. 94 of the Code (old) for production of documents does not thereby commit himself to the proposition that inspection of all the documents, the production of which is ordered must necessarily follow and the party producing the documents is not precluded from objecting to their subsequent inspection, seriously contended that the banks should have been given prior notice and heard. According to him, the banks, in such a circumstance, probably might have objected to the production of the bank accounts.

102. We are unable to see any force in the above submission of Shri Rajinder Singh because, firstly there is no request for production of the documents; secondly there is no prayer in the letter rogatory for production of the entire account books and, thirdly till date no objection is taken by the Swiss Banks. It is pertinent to note that the High Court has not found fault with the validity of the letter rogatory on the ground of alleged production of bank accounts or the failure of any notice to the Swiss Banks.

103. It has been contended on behalf of the respondent that the Special Judge has exhibited a partiality towards the respondent by not giving any opportunity of being heard when the prosecution was given a right of audience before issuing letter rogatory.

104. Merely because the Special Judge heard counsel for the CBI before issuing letter rogatory the respondent cannot make such a complaint that he should have also been given prior notice to present his case as we have repeatedly pointed out that the stage of investigation is only at the door. The order sought for from the Special Judge by the CBI is only for process of judicial assistance from the competent judicial authorities in the Confederation of Switzerland for investigation and collection of evidence. In such a case the accused has no right to raise the voice of opposition.

105. For the aforementioned discussion, we hold that the facts and circumstances of the case do not attract the audi alteram partem rule requiring a prior notice and an opportunity of being heard to the respondent and that the respondent has never been prejudiced and deprived of his right to property due to the alleged non-compliance of the principle of audi alteram partem.

Whether the issue of letter rogatory is vitiated by non-application of mind by the Special Judge?

106. The High Court for drawing its conclusion that the issue of letter rogatory suffers from non-application of mind and the said letter was issued in a very casual and mechanical manner prejudicial to the respondent has given the following reasons:

(a) By the letter rogatory, not only the information regarding assets owned / possessed by many persons (besides the named accused) including certain Indian citizens who are neither named in the First Information Report nor is there any allegation against them has been asked for but also the Swiss authorities are requested to freeze the bank accounts of all those persons.

(b) The Special Judge did not apply his mind to all the points raised by the Cantonal Court for rectification of the letter rogatory issued on 5/7th February, 1990.

(c) The Special Judge has not at all applied his mind before issuing the amended letter rogatory to the objections raised by the Cantonal Court of Geneva with regard to the pasting of a piece of paper containing certain names which were earlier mentioned in the letter dated 26th January, 1990 given by Mr. M. K. Madhavan, CBI to the Federal Department of Justice and Police. The nonreference to the earlier letter of the CBI in the letter rogatory issued by the Special Judge on 5/7th February, 1990 and also its absence as one of the annexures to the letter rogatory show that the letter rogatory issued by the Special Judge had been tampered with.

(d) The CBI in its note of compliance clarifying the observations of the order of 3rd July, 1990 of the Criminal Court of Geneva not only referred to the Criminal Law Amendment Ordinance, 1944 which empower the District Judge to pass ad interim orders attaching the money or other property but also enclosed a copy of the same for the purpose of showing the power of the Criminal Courts in India. Under S. 4(1) of the said Ordinance a District Judge is empowered to pass an ad interim order attaching the money or other property alleged to have been procured by means of any offence but in terms of S. 4(2) of the said Ordinance the District Judge was required to issue a notice to the person whose money or other property is being attached; accompanied by copies of the order, the application and affidavits and to the evidence if any recorded calling upon the person to show cause why the order of attachment should not be made absolute.

(e) When the CBI itself has relied upon the provisions of the above Ordinance, the Special Judge ought to have complied with the mandate of S. 4(2) by issuing a show cause notice to the respondent.

107. Though in the writ petition, this ground has not been specifically taken in the manner in which the learned Judges have framed the question, however, under ground No. (Z), it is pleaded:

“That the Special Judge ought to have conducted a preliminary enquiry by trying to look into the entire materials placed before him by thoroughly investigating before acting pursuant to the First Information Report, which in the respectful submission of the petitioner, the learned Judge failed to do so, thus causing miscarriage of justice to the petitioner ……..”

108. From the judgment, it is seen that certain documents which are said to have been claimed as secret and confidential documents by the ASG are taken into consideration for reaching to the conclusion that there was non-application of mind.

109. Then the puzzling question that comes up for consideration is as to how all the correspondence, namely, the copy of the order of the Canton Court of Geneva and the note of compliance of the CBI came to the knowledge of the High Court especially when these documents were not available with the respondent and not produced by the Court. The clue for answering the above question is found in the judgment itself which reads thus:

“We may point out here that pursuant to our directions copies of the original letters rogatory along with their enclosures issued on 7th February, 1990 and 22nd August, 1990 have been made available to us.”

110. In yet another part of the impugned judgment, it is stated as follows:

“From records, we, however, find that through letter rogatory information regarding assets owned / possessed by many persons (besides the named accused) including certain Indian citizens, who are neither named accused in the FIR, nor there is any allegation against them in the FIR has been asked for and even the Swiss Authorities were requested to freeze their bank accounts.”

111. In this connection, the additional grounds filed by the appellants may be taken note of.

112. Ground No. ‘N’ of the additional. grounds reads thus:

“It is submitted that the entire original record was offered to the High Court in confidence from which the High Court has even quoted ………”

113. Ground No. ‘Q’ of the additional grounds, the appellants have stated thus:

“ ………… High Court has recorded findings beyond the scope of arguments urged at the bar on behalf of respondent herein and the pleadings on record.”

114. During the argument before this Court, the Additional Solicitor General reaffirms that certain secret and confidential documents at the instance of the Court namely the letters of the CBI to the Federal Department of Justice and Police, Berne, Switzerland dated 23rd and 26th January, 1990, the order dated 3rd July 1990 of the Cantonal Court, the note of compliance of the CBI, the letters of the Chief of Army Staff, the minutes of the meeting of the Negotiating Committee etc. etc. were handed over in a sealed cover with an oral request not to reveal the document to the other side or to refer them in the judgment since otherwise the Government would be claiming privilege on the said documents. In other words, oral privilege was claimed under S. 124 of the Evidence Act. The Additional Solicitor General continues to state that the High Court unfortunately despite the oral request made on behalf of the CBI has freely made use of those confidential documents inclusive of the copy of the order of the Cantonal Court. Leaving apart the submission made by the learned Additional Solicitor General before this Court, the impugned judgment itself pellucidly discloses that the High Court has considered certain documents which were not placed by the respondent before it, but evidently by the appellants and has relied upon those documents for quashing the letters rogatory on the ground of non-application of mind. In fact, Mr. Prashant Bhushan in his unnumbered SLP has supported the plea of the Additional Solicitor General. No specific objection has been raised from the side of the respondent with regard to the oral request made by the CBI not to make use of those confidential documents in the judgment.

115. In these circumstances, we have no other option except to hold that the High Court has used all those confidential documents which the Court ought not to have used for the reasons, firstly those documents are stated to have been claimed as secret documents and secondly ignoring the request of the CBI said to be made and without notice to the appellants herein. Besides free use of the documents, some portion of the documents are extensively quoted. The only inescapable inference that could be drawn in those circumstances would be that the Court has made up its mind as to the expediency of quashing the letter rogatory and thereafter has conveniently made use of those documents for the end product.

116. Be that as it may, after having gone through the orders of the Special Court dated 5th February, 1990 and 21st August, 1990 and all the connected records placed before the Court, the Special Judges cannot be found fault to have issued letter rogatory casually or mechanically but only after applying their mind and on being satisfied that, the FIR constitutes a cognizable offence or offences and that a competent officer under the Code of Criminal Procedure has made a request for issuance of letter rogatory.

117. Hence we see absolutely no reason to sustain the conclusion of the High Court that the issue of letter rogatory suffers from nonapplication of mind by the Special Judge.

118. In this connection, we would like to refer to a decision of the Bombay High Court in Kekoo J. Maneckji v. Union of India, 1980 Cri LJ 258. In that case a request was made by the CBI to the Magistrate for issuing letter rogatory through the Ministry of External Affairs, Govt. of India, New Delhi to the District Court of the United States for the Western District of Washington for issuing directions to the Washington Mutual Savings Bank, Citadel to make available certain documents duly certified under an affidavit to the CBI, the investigating officer in that case in India. The request was granted by the learned Magistrate, which order was challenged as illegal in the High Court. It appears that the documents called for came into possession of the CBI. Having regard to the facts of the case while rejecting the challenge made by the petitioner, Chandurkar, J. (as he then was) while dismissing the writ petition observed:

“Now, assuming for a moment that the order of the learned Magistrate is wholly illegal and without jurisdiction as a result of that order these documents have already come into the possession of the investigating agency …………

Once the documents are in the possession of the investigating agency, assuming that they are received by following a procedure which is illegal in the eye of law, that would not by itself make the evidence irrelevant or inadmissible. The value to be attached to the evidence will depend on its relevancy and consequently its admissibility and whenever such documents are produced before the appropriate Court, notwithstanding the Manner in which those documents could come into the possession of the prosecuting agency, they would still be tendered in evidence by the prosecution after satisfying the Court about their admissibility and relevancy under law.”

119. Sawant, J. (as he then was) while agreeing with the dismissal of the petition added his opinion stating thus:

“This is admittedly a stage where the prosecuting agency is still investigating the offences and collecting evidence against the accused. The petitioner, who is the accused, has therefore, no locus standi at this stage to question the manner in which the evidence should be collected. The law of this country does not give any right to the accused to control, or interfere with, the collection of evidence. The only stage at which the accused can come in the picture vis-a-vis the evidence, is the stage when the evidence is sought to be tendered against him, and he can challenge it only on the ground that the evidence is inadmissible. That is why, according to me, the petitioner cannot be said to be a person aggrieved at this stage, and hence he cannot claim any relief from this Court by filing a petition either under Art. 227 of the Constitution or under S. 397 or 482 of the Code of Criminal Procedure as has been done in this case ………..

That is why, even assuming that the provisions of S. 91, Cr. P.C. were not open to be invoked for getting the letter rogatory issued, the petitioner-accused is not the person who can complain against such issuance. Hence, this petition was liable to be dismissed in limine on the short ground that the accused had no locus standi to file the same. It matters, therefore, very little whether the documents were received or were yet to be received in this country when the petition was filed. Even if the documents were yet to be received in this country, we would have still dismissed the petition on the aforesaid grounds …………………. The prosecuting agency in the present case could have secured the said documents from the United States on its own and without reference to a Court of law. There is nothing in law to bar the prosecuting agency from collecting evidence in that manner.”

120. For all the aforesaid reasons we unhesitatingly set aside the order of the High Court quashing the letter rogatory dated 5/7th February, 1990 and the rectified letter rogatory dated 21/22nd August, 1990 issued in pursuance of the orders passed by the Special Judge. The respondent who is a named accused in the FIR has no locus standi at this stage to question the manner in which the evidence is to be collected. However, it is open for the respondent to challenge the admissibility and reliability of the evidence only at the stage of trial in case the investigation ends up in filing a final report under S. 173 of the Code indicating that an offence appears to have been committed.

Does the First Information Report prima facie disclose any offence against the respondent W.N. Chadha and is there any material the respondent with prima facie the dealings of Bofors relating to the purchase of guns?

121. For answering the first part of the above question the High Court has made a lengthy discussion with reference to the various documents and examined them under various heads -namely.

(a) Whether the decision for entering into and finalising the contract was followed by the well established procedure?

(b). Whether the contract finally entered is perfect and bona fide?

(c) Whether the allegations made in the FIR do constitute an offence / offences against the respondent W. N. Chadha? and

(d) Whether the non-tracing of the names of the unnamed public servants or at least any one of them generally mentioned in the FIR is entirely due to indolence or remissness on the part of CBI?

122. In dealing with the question of the procedure followed by the Government of India in entering into the contract with Bofors the High Court has traced the history commencing from the proposal for procurement of 155 min guns along with certain equipments and ammunition approved in April, 1984 and ending with its finalisation on 24th March, 1986, mostly relying on some original records inclusive of certain confidential documents which, according to the Additional Solicitor General, were made available to the Court at its instance. The fact that original documents were made use of and relied upon by the High Court is strengthened by the following observation made in the impugned judgment itself:

“The urgency of acquisition of 155 mm gun is evident from the letter dated 29th November, 1985 written by the then Chief of Army Staff to the then Raksha Rajya Mantri (A), which we have perused from the original record.”

123. A scrutiny of the judgment demonstrably shows that the High Court has gone through some original records which in the very nature of them could not have been made available by the respondent. As indicated above, the Additional Solicitor General states that the original documents were produced by the Government in a sealed cover for the Court’s perusal with an oral request not to reveal the documents to the other side and to make use of them in the judgment, besides orally claiming privilege. However, the High Court has not only referred to those documents but also very much relied upon them. In fact the High Court has reproduced a relevant portion of the letter dated 29-11-1985 of the then Chief of Army Staff and also a portion of the ‘Minute of the meeting of the Negotiating Committee recorded on the 4th March, 1986. It was only on the basis of the above documents the High Court drew its final conclusion regarding the procedure followed from the very proposal of the contract till its finalisation. The relevant conclusion reads thus:

“From the facts mentioned hereinabove, it is clear that the decision regarding finalisation of the contract with Bofors was not taken by one or two persons, it was based on the recommendations of the Negotiating Committee of five Secretaries. Financial Advisor and DCAOS and these recommendations were dully examined and approved by then Secretaries of the various departments as also by the then two Ministers of State for Defence, the then Finance Minister and the then Prime Minister (as RM). Thus, the decision was taken in accordance with the well established procedure

(Emphasis supplied)

124. After having recorded its finding with regard to the procedure followed the High Court has passed on to the second question as regards the bona fide nature of the contract.

125. By making reference to the keen competition between the two finally shortlisted firms, namely, M/s. Bofors and Sofma and the lower price quoted by Bofors than that of Sofma in addition to certain further concessions amounting to approximately ` 10.5 crores, the Court held thus:

“All this clearly shows that the procedure adopted for finalisation of the contract with Bofors was perfect and bona fide.”

(Emphasis supplied)

126. The High Court, after recording the above conclusions as regards the procedure followed and the nature of the contract, has examined the vital issue as to whether the allegations made in the FIR do constitute an offence / offences under any of the provisions mentioned in the FIR warranting a thorough investigation against the respondent.

127. Based on the correspondence exchanged between Bofors and the authorities of the Government of India and the opinion of the then Attorney-General of India contained in paras 8.6 and 8.16 of the report of the JPC the High Court has held as follows:

“The petitioner (W. N. Chadha) who was getting 1 lakh SEK per month for administrative services e.g. transportation, forwarding of letters, telex etc. cannot be called a middleman as he never represented on behalf of Bofors for the finalisation of the contract as explained hereinabove.”

128. Rejecting the contention on behalf of the CBI that the principal beneficiary of payments made by Bofors to Svenska Inc. in connection with the gun deal in question is the petitioner who is owning the AGC, the High Court has observed thus:

“…….. that contractual obligation between M/s. Bofors on the one hand and Svenska Inc. and AGC on the other had existed much before the decision of the Government of India taken in November, 1984 prohibiting the involvement of agents and middlemen in relation to the gun contract.”

It has been further concluded by the High Court:

“ ………… it is clear that if at all anybody can be alleged having played any role for finalisation of the contract, it is AE Services Limited with whom association of the petitioner has not been alleged even in the FIR.”

129. The High Court has also held that the averments made in the FIR against the respondent on the basis of media reports are nothing but only surmises and conjectures.

130. As regards the payment of SEK 1 lakh per month to AGC as revealed by the letter dated 10th March, 1986 of Bofors (vide para 96 of the FIR) it has been held by the Court below that even as per the allegations in the FIR the said amount paid to the respondent was legitimate one towards the administrative services.

131. Then quoting the opinion of the then Chief of Army Staff recorded in his letter dated 29th November, 1985, the opinion of the then Attorney-General contained in paragraph 8.13 of the report of the JPC, the agreement between Bofors and AGC dated 24th October, 1978 and another agreement between Svenska Inc. Panama and Bofors entered into in December, 1978 the period of which was further validated in 1984 the High Court has held:

“After the Government of India’s policy decision prohibiting involvement of agents, Bofors might have been required to settle their contractual obligations with their agents which is a matter purely between Bofors and their former agents. If Bofors made payments out of its own resources as alleged by the CBI to their former agents as winding up charges or commission in whatever form may be for termination of the earlier existing contract, it would not constitute any criminal offence.”

132. Thereafter, referring to the opinion of the then Attorney-General contained in paragraphs 8.7, 8.9 and Cl. 26 of the agreement entered into between Government of India and Bofors it has held:

“………. that unless there is a specific allegation regarding payment of any money to a public servant in India it cannot be said that the amount paid by Bofors to any of his agents outside India was a bribe meant for certain public servants.”

133. According to the Court below, when there is no reference to any agent or middleman in the contract and when the procedure followed for finalisation of the contract has been perfect, there can be no case of cheating under S. 420 of the Indian Penal Code or abetment of cheating against the respondent as well as under any of the penal provisions mentioned in the FIR. As there is no allegation of wrongful gain or loss levelled against any of the named and unnamed accused by the Bofors or their agents barring the media reports, there is no question of offences under Ss. 468 and 471 having been committed. Further in the absence of any material indicating criminal breach of trust, there cannot be any offence under S. 409, IPC even on the basis of the allegations as contained in the FIR.

134. The High Court has further pointed out that the non-filing of any suit and the failure to initiate any arbitration proceeding for the recovery of the alleged commission by the Government support the conclusion that there is no breach of trust.

135. At the outset we are constrained to observe that we are terribly shocked on seeing that the High Court has gone out of its authority and overstepped its province by making use of certain original records and then on the basis of the said records proceeded to examine the entire procedure followed right from the proposal up to the finalisation of the contract between Bofors and Government of India and its genuineness and bona fide and ultimately affixed its seal of judicial approval holding that the contract is perfect and bona fide.

136. It is to be noted that the High Court appears to have waded through the entire original records produced before it by the Government for its perusal and on the strength of those documents, the Court has raised the two questions, namely, whether the proper procedure in the execution of the contract was followed and whether the contract finalised is perfect and bona fide – and answered both the questions in affirmative, that is, in favour of the respondent and prejudicial to the appellants.

137. The perusal of the impugned judgment clearly discloses that the learned Judges of the High Court have freely used those documents which are said to be secret and confidential and not only referred but also quoted certain portion of those documents in extenso as stated (supra). According to the learned A.S.G., the line of course taken by the High Court to its conclusions on the seriously disputed questions of law and fact taking its cue from the original records cannot be countenanced. In our view, the documents (the copies of which are produced before us claiming to be secret documents) from their very nature could have never been in possession of any third party much less with the respondent and in such a case, the High Court was not at all justified in making use of those documents for its findings especially in a case of this nature where there are serious and outrageous allegations. In these circumstances, one would be constrained (to) observe that the High Court has prejudged the issue and thereby laid down the foundation for its subsequent findings for quashing the entire proceedings. No doubt every Court has its plenary powers to deliberate upon every issue agitated before it as well as any other issue arising on the materials placed before it in the manner known to law after giving a prior notice and affording an opportunity of being heard. This power of discharging the statutory functions whether discretionary or obligatory should be in the interest of justice and confined within the legal permissibility. In doing so, the Judge should disengage himself of any irrelevant and extraneous materials which come to his knowledge from any source other than the one presented before him in accordance with law and which are likely to influence his mind one way or the other. In this context, it may be appropriate to recall the following view expressed by Benchamin Govdozo in his Treatise ‘The Judge as a Legislator’:

“The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system ………………..”

138. We feel that it is not necessary to go deep into the matter any further except saying that the High Court is not justified in affixing its seal of approval to the contract by holding it to be bona fide, on being executed following the proper procedure.

139. For all the reasons stated above we without any hesitation quash those finding with regard to the nature of the contract and the procedure followed.

140. Now let us switch over to the later part of the question and examine whether there are materials prima facie connecting the respondent with the dealings of Bofors.

141. Admittedly the respondent was earlier Bofors’ representative in India appointed in the year 1978 and from January, 1986 he was appointed as Bofors’ Administrative Consultant. According to the respondent, in the agreement covering the period up to the end of 1985, there was a provision for the payment of commission on sales to him, but his role during this period was essentially supportive in nature and not that of a full-fledged agent who could bind Bofors in any way or enter into negotiation on their behalf.

142. The learned ASG referring to the secret part of SNAB report published by Hindu in its issue dated 9th October, 1989 and certain other relevant documents published in the issue of Indian Express and Statesman of 13-10-1989 states that an Indian who had been agent of Bofors for 10-15 years was the principal beneficiary of payment made by Bofors to Svenska Inc. in connection with the gun deal in question and that the respondent was very much connected with Svenska Inc. Of course, Mr. Rajinder Singh has denied any connection of the respondent with Svenska Inc. and added that if the period of 10 or 15 years mentioned by the learned ASG is calculated backwards from 1985, it would show that the connection of the alleged agent with Bofors should have started from 1975 and, therefore, the expression ‘agent’ as appeared in the Press could not refer to the respondent who became the agent only in 1978. The arguments of Mr. Rajinder Singh has been refuted by the ASG who relied on the statement of the respondent before the investigating agencies engaged by JPC wherein the respondent is stated to have admitted that he was a representative of M/s. Aerotronics General Agency (for short ‘AGA’) and tried to sell some laser guns to India but was not successful and that some time in 1915-76 this Company AGA was taken over by Bofors and it was renamed as Bofors Aerotronics and this was his first contract with Bofors. On the basis of the above statement, the ASG has submitted that the respondent was working with Bofors at least since 1975 which would unmistakably show that he was the sole beneficiary of the payment made to M/s. Svenska Inc. through his first formal agreement with the Bofors in the name of Aerotronics General Corporation signed in 1978. According to him, the fact that in 1978 there was a written contract between Bofors and AGC, of which the respondent is admittedly the President – signed by the respondent on 24-10-1978 and by Bofors 21-12-1978 validating the contract till 30-9-1981. Coinciding in point of time another agreement was signed between Svenska Inc. Panama and Bofors signed by Svenska on 14-12-1978 and Bofors on 21-12-1978 validating up to 31-9-1981 The learned ASG drew our attention to the similarities between the aforesaid agreement of Bofors with Svenska Inc. and AGC. According to him on 11-3-1981 through identical letters signed by Martin Ardbo (one of the named accused in the FIR) who is the former President of Bofors, both agreements i.e. one between AGC and Bofors and the other between Svenska Inc. and Bofors were renewed for another period of three years up to 30-9-1984 and that in 1984 Bofors signed another agreement with Svenska Inc. and with AGC which are also having similarities. He continues to state that Svenska Inc. Panama belonged to the respondent and the statement made by Bofors President on 1812-1986 before officials of the Swiss National Bank makes it clear that the principal beneficiary in Svenska Inc. is an Indian who has been an agent for Bofors for 10-15 years as alleged in para25 of the FIR. He further states that the description of the payments as commission or as winding up cost is not correct but the payment was remitted by Bofors on 30-5-1986 to the account of Svenska Inc. with Swiss Banking Corporation was to make payments to public servants in Government of India as motivation or reward for such public servants who helped finalisation of the contract by dishonestly abusing their official position. It is further submitted by the ASG that there are sufficient materials connecting the respondent with payment of the bribe amount and therefore, the finding of the High Court that the amount paid to the respondent was a legitimate one as the same was for administrative services and the said amount could not be termed as bribe by any stretch of imagination absolutely incorrect and bereft of the incriminating documentary evidence. The above argument advanced on behalf of the appellants was stoutly resisted by the learned counsel for the respondent, according to whom there was a clear understanding between Government of India and Bofors that there should not be any middle man or agent and in fact the agreement finalised for purchase of the guns does not spell out the engagement of any middle man or agent.

143. One should not lose sight of the fact that the oral understanding has not been incorporated in the written agreement about which there is no dispute. What is stated at the bar is that the oral understanding has been confirmed by subsequent correspondence between the parties. The High Court has extensively quoted the opinion of the then learned Attorney-General and very much relied on it for its observation, reading thus:

“After the Government of India’s policy decision prohibiting involvement of agents, Bofors might have been required to settle their contractual obligations with their agents which is a matter purely between Bofors and their former agents. If Bofors made payments out of its own resources as alleged by the CBI to their former agents as winding up charges or commission in whatever form may be for termination of the earlier existing contract, it would not constitute any criminal offence.”

144. Be that as it may, we feel that it is not necessary to go deep into the matter in the light of our earlier finding given in Criminal Appeal No. 304/91 etc. etc. the judgment of which is reported in (1991) 3 SCC 756 and (1992) 4 SCC 305 under the caption Janata Dal v. H. S. Chowdhary wherein we have stated that we were unable to share the assertion of Mr. Justice M. K. Chawla holding that the FIR on the face of it does not disclose any offence. Further this Court has also expressed its feeling on the statement of Justice Chawla in the following terms:

“While so, it shocks our judicial conscience that Mr. Justice M. K. Chawla before whom no aggrieved or affected party had come challenging the FIR, has taken suo motu action and recorded such a categorical assertion that ‘no offence’ thereby meaning much less a cognizable offence is made out in the FIR.”

145. In fact, the High Court in its impugned judgment itself has recorded its finding that they are also of the same view as that of this Court that it may not be correct that the FIR does not disclose any offence against any one named or unnamed accused which definitely includes the respondent also. In the background of the finding of this Court and that of the High Court it is not necessary to go deep into the matter by referring to various documents such as report of the JPC, the opinion of the then learned Attorney General, report of the Comptroller and Auditor-General of India etc. lest it may affect either of the parties if the investigation ends up with the trial of the case. Though we refrain from giving any positive finding with regard to the alleged payment of the bribe amount to the respondent, the allegations made in the FIR under S. 154 of the Code of Criminal Procedure prima facie constitute the offence alleged therein. Hence we set aside the finding of the High Court that no offence is made out against the respondent under various provisions of the different Statutes.

146. It has been vehemently argued by the counsel for the respondent saying that the allegations of corruption which are wrapped in a cocoon of ambiguity, falsehood and vagueness were conceived with mala fide motivation of the persons in authority at the time of the registration of the case and the criminal proceedings were initiated only with an oblique political purpose. According to the counsel, the investigation geared up by those who were in power in the then outgoing Government in order to gain mileage in the journey of their political career is highly polarised and politicalised.

147. The above argument cannot be countenanced. As observed in Bhajan Lal (supra), when the entire matter is only at a preliminary stage and when the investigation has yet to go a long way to gather the requisite evidence the Court cannot come to a conclusion one way or the other on the plea of mala fide at such a stage. Further in case the investigation discloses that the entire proceeding has been initiated only with mala fides, probably the prosecution itself may throw the case overboard. Answering a similar contention, Bhagwati, C.J. in Sheonandan Paswan v. State of Bihar (1987) 1 SCC 288 has observed as follows:

“It is a well established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant.”

148. The said observations made in Bhajan Lal and Sheonandan Paswan in this regard apply with all force to the case on hand.

149. The submission that the Government has neither filed any civil suit nor has initiated any arbitration proceeding to recover the amount of alleged commission serves as one of the factors compelling the Court not to accept the case of the prosecution has to be simply mentioned only to be rejected. We are of the view that this submission is meritless.

150. The High Court appears to have taken a serious note of a piece of paper pasted by the CBI on the letter rogatory forwarded by the Special Judge to the Cantonal Court of Geneva and expressed its view stating, “Whatever explanation for this may be, we disapproved the said action of the officer of CBI who had done this as it may amount to tampering with the judicial records.”

151. It has been vehemently contended on behalf of the appellants that the above observation of the High Court is unwarranted and unjustified since the said observation was made without properly understanding the circumstances under which the piece of paper containing certain names of account holders became necessary to be pasted. In relation to this observation, a Criminal Misc. Petition No. 6365 of 1992 is filed in this appeal by Shri K. Madhavan who was then the Joint Director and Special Inspector General of Police, Central Bureau of Investigation and was in charge of the investigation of the Bofors case along with some other officers and who is now stated to have voluntarily retired from the service w.e.f. 1st November 1992. According to Mr. Madhavan, this dispraging observation was made by the High Court without giving him any opportunity to explain the circumstances under which the piece of paper was pasted. Mr. N. Natarajan, learned senior counsel for Madhavan explains the circumstances stating under Art. 18 of the Federal Act on International Mutual Assistance for Criminal Matters, a letter of request dated 23rd January 1992 was given by the Director of CBI to the Federal Department of Justice and Police, Federal Government of Switzerland, Berne requesting for their assistance in the investigation and for freezing / blocking the credit balances / amounts available in various accounts in Swiss banks. Thereafter, a supplementary request for freezing and blocking of more accounts was given to the Federal Department of Justice and Police by Shri K. Madhavan on 26th January 1990 in which he had given the particulars of the names of the account holders in respect of whose accounts the request for freezing / blocking had been made. In continuation of his submission, he has stated that a copy of the above letter was shown to Shri R. C. Jain, Special Judge who had perused the same and that the then Additional Solicitor General, Shri Arun, Jaitley who appeared on behalf of the CBI before the Special Judge in fact clarified to the learned Judge that the names mentioned in that letter had been furnished on the basis of information received by the CBI. But the learned Judge, Shri R. C. Jain has not enclosed the copy of the letter along with other annexures to the letter rogatory dated 7th February 1990 forwarded to the Swiss authorities. It was under these circumstances, Shri Madhavan happened to paste a slip containing the names of those account holders as contained in the letter dated 26th January 1990 and handed over the letter rogatory with the enclosures to the Swiss authorities. But when the entire letter rogatory was sent back to the Special Judge for compliance of certain procedural formalities, this disputed piece of paper was also attached to the letter rogatory. Thereafter, the entire matter came before Shri V. S. Aggarwal, the then Special Judge who after going through the entire records inclusive of the slip of paper sent the amended letter rogatory. It is further stated that when Shri V. S. Aggarwal, Special Judge enquired the then Additional Solicitor General as to whether the letter dated 26th January 1990 had been shown to his predecessor, Shri R. C. Jain, the Additional Solicitor General confirmed the same stating that the said letter was shown to Shri R. C. Jain and it was only thereafter the amended letter rogatory was forwarded to the Swiss authorities with the piece of paper already pasted on the letter. In other words, Shri V. S. Aggarwal, Special Judge has approved the piece of paper already pasted to the letter rogatory and forwarded the same and, therefore, according to Shri Natarajan, the High Court without appreciating and understanding the circumstances under which the piece of paper was pasted has made this disparaging observation and requested that this observation may be expunged. In support of the above arguments, a letter dated 16th November 1992 of the then Additional Solicitor General, Shri Arun Jaitley is produced which letter was given by Shri Arun Jaitley to the query asked by Shri Madhavan in his letter dated 15th November 1992. In his letter, Shri Arun Jaitley has explained the entire matter which fully supports the present plea of the applicant, Shri Madhavan. We in order to satisfy ourselves perused the letter of Shri Madhavan dated 26th January and the typed piece of paper pasted on the letter rogatory and are satisfied that the piece of paper containing the names of the account holders tally with the names mentioned in the letter dated 26th January 1990 and that it is only reproduction of one paragraph in verbatim.

152. Though initially, Mr. Rajinder Singh took a serious objection to the conduct of the CBI in pasting this piece of paper to the letter rogatory without the permission of the Court, when confronted by the subsequent approval of Shri V. S. Aggarwal, Special Judge he has no answer to sustain the remark of the High Court. We are now fully convinced that there was no tampering of judicial letter rogatory but only additional particulars were furnished for ready reference of the names of the account holders as contained in the letter dated 26th January 1990. Even if it is to be held that the piece of paper should not have been pasted, leave apart the explanation offered since Shri V. S. Aggarwal has approved the letter rogatory with the pasted piece of paper on being satisfied the circumstances under which it was pasted, the CBI cannot be ostracised. It must be noted by pasting that slip Shri Madhavan has not added any additional information on his own. Therefore, we expunge the remark of the High Court, as prayed for in the Cr. M.P. In view of this finding, we hold that the High Court was not correct in holding that this has amounted to tampering of judicial records.

153. The High Court has taken into consideration two factors along with the conclusions arrived at by the JPC in its report for granting the relief to the respondent despite its finding that the allegations in the First Information Report discloses an offence against all the accused about which we will deal in the later part of this judgment.

154. Of the two, first relates to the alleged failure on the part of the CBI to name any one of the public servant as accused even after the 31 months from the registration of the case and the second relates to the impounding of the passport of the respondent.

155. In dealing with the first question of the two, the High Court said:

“………… even after the expiry of more than 31 months from the registration of the FIR, CBI has failed to name any public servant as an accused.”

156. The above reasoning of the High Court is neither legally nor factually sustainable. As rightly pointed out by the Additional Solicitor General whose submissions we have already summarised in the earlier part of this judgment, it is not due to any indolence or procrastination on the part of the investigation but it is due to the obstructions put on the track of investigation for scuttling the same by approaching the judiciary firstly by Shri H. S. Chowdhary as public interest litigant and secondly by the respondent through his pairokar. However, the CBI all through is maintaining stoic silence unmindful of all the scornful criticism and vilification levelled against it, and is relentlessly and tirelessly fighting all the litigations so that it can successfully proceed with the investigation and collect all the materials to espouse the cause of justice. To say that the prosecution has failed to name any one of the public servants as an accused even after 31 months from the registration of the case, is a very uncharitable criticism. A survey of the various proceedings of this litigation reveals that the investigating agency, namely the CBI was fettered at every stage and made to spare its energy more in Court proceedings than in proceeding with the investigation. Only if the investigation is freely allowed without any hindrance, the investigating agency can collect all the requisite particulars and bring the names of those public servants on record, the secrecy of which, it is said, is deeply buried in various places and under various Departments. Hence this reasoning is devoid of any merit.

157. In the penultimate paragraph of the impugned judgment, the High Court has observed:

“……….. It may be noted here that pursuant to the registration of the FIR against the petitioner his passport has been impounded. Non-bailable warrants for his arrest were issued and the same have been quashed by a learned single Judge of this Court and the matter is now pending before the Supreme Court. In these circumstances, it is a fit case where investigation cannot be allowed to continue against the petitioner.”

158. We are not able to see any logic in the above reasoning. When we asked the counsel for the respondent as to whether this material of the impounding of passport was placed before the High Court, he hesitatingly stated that the order of the High Court in Cri. Misc. (Main) No. 1318 of 1990 titled Washeshwar Nath Chadha v. State has been reported in 1991 (1) Delhi Lawyer 394 (sic) and thereby requested the Court to infer that the High Court might have taken note of that reported judgment, though the judgment spells out nothing about the source of information in this regard. At the instance of this Court, a copy of the reported judgment in Crl. Misc. case has been placed before this Court by the respondent.

159. Be that as it may, the respondent who was the petitioner in the above case filed a petition before the High Court under S. 482, Cr. P.C. read with Art. 227 of the Constitution seeking certain reliefs, namely, to permit him to inspect the FIR which is the impugned FIR in this case, and to quash the non-bailable warrants issued against him relating to a case registered under the provisions of the Passport Act, 1967.

160. We are surprised that the High Court has taken a serious view of the impounding of the passport as being a supportive reason for its finding of annulling the proceedings. In fact that proceeding under the Passport Act cannot have any bearing in this proceeding initiated for quashing the FIR even though the impounding of the passport is to secure the presence of the respondent for the investigation purposes in connection with the case on hand. However, in passing we would like to quote a sentence from the order of that case, whatever purpose it may serve. The sentence reads “………petitioner does not want the quashing of the FIR nor is he making a request to this Court to interfere the investigation of the case.”

(Emphasis supplied)

161. It may be stated that the petitioner in that case is the respondent herein and the FIR referred to above is the impugned FIR in the present case.

162. Now we shall pass on to a very important aspect of the case which renders the very conclusions of the High Court quashing the FIR as highly unsustainable.

163. Coming to the close of the judgment the High Court itself has expressed its view stating “………….it may not be correct to say that the FIR on the face of it does not disclose any offence against any one, named or unnamed accused”(Emphasis supplied) which we have already extracted above. Having held so, the High Court thought that in exercise of its powers under Art. 226, it could quash the FIR on its findings on the other issues. It surprises us as to how the High Court quashed the FIR after having positively found that the FIR discloses an offence / offences against named and unnamed accused which will include the respondent also. But in the next breath, it is held that no offence is made out.

164. This Court, in its earlier proceedings, has rejected the contention that the FIR does not disclose any offence. This observation is binding on the High Court yet the High Court strangely by way of self-contradiction has held that no offence is made out against the petitioner and thereby stonewalled the CBI probe. This paradoxical finding perhaps by the High Court is sought to be justified by feebly relying on the fact that the investigating agency has failed to name any public servant as an accused, on the conclusions of the JPC and also on the circumstances of the impounding of the passport of the respondent. These aspects have been dealt by us and we have categorically held that these aspects do not in any way affect the contents of the validity of the FIR. Placing reliance on these aspects which are irrelevant at this stage, the High Court ought not to have taken the extreme step of quashing the very FIR.

165. We, therefore, are of the firm view the self-contradictory findings of the High Court itself gives a frontal attack to the impugned judgment, rendering it unsustainable both in law and fact To put it ironically the impugned judgment ‘profusely bleeds due to its self-inflicted injury.’

166. Shri Rajinder Singh, the counsel for the respondent when confronted with the above inconsistent conclusions, finding himself on a sticky wicket unhesitatingly stated that he is not accepting the finding of the High Court holding that the FIR discloses the offence which finding in his opinion is an incorrect and incoherent finding. This reply of Shri Rajinder Singh cannot be countenanced and accepted. The respondent cannot be permitted to blow hot and cold, thereby attacking one part of the judgment as erroneous and untenable and attempting to sustain the other part as being well founded on sound reasonings.

167. It cannot be said that the Report of the JPC has acquitted the respondent and others of all the charges levelled against them on appraisal of the entire evidence. On the other hand, the Report spells out that Bofors did not co-operate and the evidence relating to the recipients of the amount was not forthcoming. Though we are not inclined to make a detailed survey of the Report, it would suffice to refer to some of the conclusions of the JPC which would serve our purpose. For proper understanding, we shall reproduce hereunder the relevant portions of some of the conclusions, recorded under Chapter IX of the Report of JPC.

Conclusion (vi)

“………………. Despite persistent demands from the Government of India, Bofors declined to give details of these payments and the recipients thereof “

Conclusion No. (vii)

“Bofors have expressed inability to furnish copies of their initial as well as the termination agreements with the three companies to whom winding up costs were paid, on the plea of commercial secrecy. They have complained that such disclosure would be a breach of their confidentiality agreement with these companies.” Conclusion No. (ix)

“On the ground of commercial confidentiality, Bofors have not furnished full details of the persons to whom winding up costs were paid. Nobody has come forward with any evidence in regard to the identity of recipients of payments made by Bofors …………….. It has not been possible for either our investigating agencies or any other sources to find any evidence regarding the identity of recipients. The Committee have, therefore, not been able to reach any conclusion in regard to the identity of recipients.”

Conclusion No. (xi)

“There is no evidence to show that any middleman was involved in the process of the acquisition of the Bofors gun. There is also no evidence to substantiate the allegations of commissions or bribes having been paid to anyone. Therefore, the question of payments to any Indian or Indian company whether resident in India or not, does not arise, especially as no evidence to the contrary is forthcoming from any quarter.”

Conclusion No. (xii)

“Mere suspicion as regards existence of middleman and / or payments of commissions does not constitute sufficient ground for initiating action to terminate the contract with Bofors or to raise claims for the reimbursement to Government of payments made by Bofors to the three foreign companies.”

Conclusion No. (xiii)

“There is no evidence to establish that the Bofors’ payments totalling SEK 319.4 million involved a violation of any Indian law.”

Conclusion No. (xiv)

“There is no evidence of any other payment having been made by Bofors for winning the Indian contract.”

168. A perusal of the above conclusions shows that the JPC was not able to secure the entire evidence and that the Bofors also was not fully co-operating with the enquiry furnishing the relevant documents and that, the JPC submitted its report on the available materials collected and the legal opinion of the then learned Attorney General of India.

169. Now it is shown that the Swiss authorities are coming forward to give full co-operation and assistance in the collection of evidence at their end. Therefore, when all those are extending their helping hands though so far yet so close, there is no reason to forestall the investigation. In fact, Shri Rajiv Gandhi, the then Prime Minister of India himself wanted a complete probe and made a statement in this behalf in the Lok Sabha on 20th April 1987 which we have already extracted in our earlier part of this judgment. However, it may be recalled, in this connection also, his statement reading “You show us evidence we do not want proof, we will bring the proof”. This assurance was affirmed and reaffirmed on more than one occasion by the Minister for Defence during the course of the discussion in the Parliament. The JPC itself has felt some suspicion as regards the existence of middlemen, but what the report says is that the mere suspicion does not constitute sufficient ground for initiating action.

170. It may not be out of place to state, in this context, that there are certain provisions in the Criminal Procedure Code which authorise a police officer to register a case and investigate the matter if there is any reason to suspect the commission of an offence or reasonable suspicion of commission of any offence. Section 157(1) requires an officer in charge of a police station who ‘from information received or otherwise’ has reason to suspect the commission of an offence – that is a cognizable offence, he can investigate the matter under S. 156. The expression “reason to suspect” as occurring in S. 157(l) is not qualified as in S. 41(a) and (g) of the Code, wherein the expression “reasonable suspicion” is used. Therefore, what S. 157(l) requires is that the police officer should have ‘reason to suspect’ with regard to the commission of an offence. See Bhajan Lal (supra).

171. Therefore, the suspicion entertained by the JPC gives room for a probe especially when there is scope of getting sufficient assistance to make the probe. The opinion of the then learned Attorney General in the JPC report was based only on the materials available on that day and at that stage, but not on the materials which is still to be unearthed and brought over the surface.

172. This Court in Bhajan Lal (supra) has already examined the principle of law in dealing with the exercise of the inherent power under Art. 226 or the inherent powers under S. 488 (482?) of the Code in the matter of quashing the First Information Report and also has listed out the circumstances, by way of illustration though not exhaustively, under which the High Court can quash a FIR. We feel that it is not necessary to recapitulate the various decisions of this Court which are already cited in the decision of Bhajan Lal.

Cr. M. P. Nos. 4999, 5201 and 4160 of 1992.

173. All the above criminal miscellaneous petitions are filed seeking leave to file appeals challenging the judgment impugned in this case. Admittedly, none of them was a party to the proceeding in the High Court except Shri Prashant Bhushan who filed his petition before the High Court, when the matter was reserved for judgment, as a public interest litigant making a complaint that no proper submissions were made on behalf of the appellants herein with regard to the legality of the issue of letter rogatory and competence of the Special Judge in issuing letters rogatory. This petition was disposed of by the High Court as the allegations in that petition were unfounded.

174. Before this Court, Shri Shanti Bhushan appearing on behalf of Shri Prashant Bhushan stated that every crime is perpetrated only against the society and that is why the State takes up the cause on behalf of the Society and, therefore, these petitioners who evince their interest in the protection of the society should be granted leave to canvass the correctness of the impugned judgment as public interest litigants. In support of his submissions, he placed reliance on the observation of this Court in Arunachalam v. P. S. R. Sadhanantham, (1979) 2 SCC 297 (para 5) and Union Carbide Corporation v. Union of India, (1991) 4 SCC 584.

175. In Arunachalam, challenging the order of acquittal of the accused in a case of murder passed by the High Court, the brother of the deceased by name Arunachalam filed a SLP and obtained leave from this Court. A doubt was raised about the competency of the private party as distinguished from the State to invoke the jurisdiction of this Court under Art. 136 of the Constitution. It was only in that context, Chinnappa Reddy, J. observed that “we do not have slightest doubt that we can entertain appeals against judgments of acquittal of the High Court at the instance of private parties also.”

176. On going through the judgment, we are of the view that it will not be of any assistance for the petitioners herein since none of them was a party to the proceedings and moreover the investigating agency, namely, the CBI and the Union of India who are the affected parties have preferred the appeal.

177. In Union Carbide Corporation (supra), it has been said that any member of the society must have locus to initiate a prosecution as well as to resist withdrawal of such prosecution if initiated.

178. That proposition is also, in our opinion, cannot be availed of as the prosecution was initiated by the appellants herein and they are persecuting and pursuing the matter up to this Court. The proposition that any one can initiate a criminal proceeding is not in dispute.

179. We have already considered the locus standi of a third party in a criminal case and rendered a considered finding in Janata Dal (supra) when this matter came before us in the first round of its litigation. Reference also may be made to Simranjit Singh Mann v. Union of India, JT 1992 (5) SC 441 .

180. Before the Supreme Court of United States, a similar question arose in Whitmore v. Arkansas (1900) 495 US 149:109 L Ed 2d 135:110 S Ct 1717 whether a next friend can invoke the jurisdiction of the Court when a real party was not able to litigate his or her own cause. The Supreme Court dismissed the writ of certiorari. for want of jurisdiction on the ground that Whitmore, an independent person lacked standing to proceed in the case. In said case of Whitmore, reliance has been placed on a decision, namely Gusman v. Marrero, (1900) 180 US 81, 87:45 L. Ed 436:21 S Ct 293 in which it has been held thus:

“However friendly he may be to the doomed man and sympathetic for his situation; however concerned he may be lest unconstitutional laws be enforced, and however laudable such sentiments are, the grievance they suffer and feel is not special enough to furnish a cause of action in a case like this.”

181. In fact when this case on hand came up before this Court arising out of the Public interest litigation of Shri H. S. Chowdhary, some other political parties approached this Court as public interest litigants to challenge the impugned judgment in that case, but this Court rejected all those appeals on the ground of locus standi.

182. For the above reasons stated above, all the Criminal Miscellaneous Petitions are dismissed.

183. The investigation is only at an infant stage and it has to go a long way to collect all the materials. Only after requisite particulars are collected by the investigating agency, the further course of action would be decided. Whatever it may be, without the battle lines being properly drawn, the Court will not be justified in making any further positive pronouncement on the merits of the serious and cloudy issues involved in this case de hors the findings recorded in this judgment. However, as we feel that there may be a battle to be waged on a later occasion by the litigants if the matter come up for trial, we do not propose to make any further observations.

184. In the result, for the discussion made above, we set aside the impugned judgment of the High Court quashing the letters rogatory – both dated 5/7th February 1990 and 21/22nd August 1990 issued by the Special Judge and the FIR registered by the CBI against the respondent under various provisions of different Statutes and other proceedings and orders based on the said FIR.

185. Criminal Appeal No. 567 of 1992 is allowed accordingly. Crl. M. P. No. 6365 of 1992 filed by Shri K. Madhavan to expunge the observation of the High Court is also allowed.

186. Before we part with this case, we have to observe that any views expressed or observations made by this apex Court should be borne in mind and given effect to. In the instant case, in spite of the finding of this Court in Janata Dal (supra), the High Court has grossly erred in quashing the FIR, the same has resulted in a glaring injustice, namely, that the investigation into grave and serious crime has got scotched and all the efforts so far taken by the investigating agency in digging out the requisite evidence got buried. Therefore, we find it imperative to quash the impugned judgment of the High Court.

[1]. It seems the citation should be AIR 1980 SC 326 and not 1967 (3) SCR 668 – Ed.

Murugan Vs. State of Tamil Nadu[ALL SC 2018 MAY]

KEYWORDS:- MURDER- CIRCUMSTANTIAL EVIDENCE-

c

DATE:- May 02, 2018

A theory of “accused last seen in the company of the deceased” is a strong circumstance against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged.

ACTS:- Sections 364 and 302/34 of the Indian Penal Code, 1860

SUPREME COURT OF INDIA

Murugan Vs. State of Tamil Nadu

[Criminal Appeal No. 1498 of 2010]

Abhay Manohar Sapre, J.

1. This appeal is filed by the accused against the final judgment and order dated 25.04.2007 passed by the High Court of Judicature at Madras in Criminal Appeal No. 804 of 2006 whereby the High Court dismissed the appeal filed by the appellant(Accused) and confirmed the order dated 02.08.2006 passed by the Additional Sessions Judge, Namakkal (Fast Track Court) in Sessions 1 Case No.5 of 2006 convicting the appellant under Sections 364 and 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and sentenced him to undergo rigorous imprisonment for 7 years under Section 364 IPC and to pay a fine of Rs.1000/-, in default of payment of fine, to undergo further simple imprisonment for one month and imprisonment for life under Section 302/34 IPC and to pay a fine of Rs.5000/- in default of payment of fine, to undergo further simple imprisonment for two months. The sentences would run concurrently.

2. In order to appreciate the issues arising in the case, it is necessary to set out the prosecution case in detail:

3. One person by name “Kumar” (since dead) was the uncle of a girl “Geetha”. At the relevant time, Geetha was in sixth standard. Kumar was married but living separately from his wife. Kumar and Geetha were living in the one locality at a short distance. Kumar had developed liking for Geetha and wanted to marry her.

4. Murugan (father of Geetha) was not agreeable to the Kumar’s proposal to marry Geetha. Murugan(Geetha’s father) used to say that Kumar had already ruined the life of his wife and now he wanted to ruin his daughter’s life also. Kumar, on the other hand, used to threaten Geetha that one day he would kidnap her and marry her.

5. It is the case of prosecution, that on 01.12.2002 afternoon, Kumar went to the house of Geetha and demanded “Chili” to cook mutton. At that time, Geetha was alone in the house. When Geetha refused him to give Chili, Kumar entered into the house and took Chili of his own and left the house saying that one day, he would kidnap her and rape her.

6. On the same day at around 10 P.M., Kumar along with Murugan(appellant), who is his cousin brother (his aunt’s son) went to Geetha’s house and invited Murugan(Geetha’s father) for a drink and non-veg. dinner at his house. Murugan(Geetha’s father) accepted the invitation and went along with both of them to Kumar’s house.

7. When Murugan(Geetha’s father) did not return home, Geetha (PW-1) alone went to Kumar’s house at around 11 P.M. to find out as to why her father has not returned so far and what was he doing in Kumar’s house for such a long time. On reaching there, she, however, found that trio (Kumar, Murugan and the appellant) were sitting in the room on one iron cot and were dining together. The trio told Geetha that her father – Murugan would be coming shortly. Thereafter Geetha returned to her house.

8. Since Murugan did not return home till next day morning, Geetha (PW-1) and her mother Saroja (PW-2) went early morning to Kumar’s house to find out why Murugan has not returned so far to his house. The front door of the Kumar’s house was closed. Both of them, therefore, pushed the front door and on opening, they found that Murugan’s dead body was lying in the room near iron cot with many injuries on his body.

9. It is this incident which gave rise to filing of FIR dated 02.12.2002 (Ex-P-18) by Geetha (PW-1) in PS Jedarpalayam, which was registered as Crime No. 224 of 2002 under Sections 302/364/34 of IPC. The police then started investigation, visited the house of Kumar, prepared Mahazar (Ex.P-13), drawn rough sketch (Ex.P-19), took photographs, prepared inquest report, recorded the statements of witnesses, conducted post-mortem of the dead body (Ex.P-4) and recovered the articles (M.O. 5 and 12 ).

10. The police then on 03.12.2002 arrested Kumar, who confessed his guilt. His confessional statement was accordingly recorded (Ex.P-15). Thereafter the police recovered weapon used in the crime (Aruval-MO-14) and the blood stained green shirts at his instance from his father’s house. It was then followed by the appellant’s arrest on the same day.

11. The police, on completing the investigation, filed the charge sheet against Kumar and the appellant herein for commission of the offences punishable under Sections 364 and 302/34 of IPC. The case was then committed to the Additional Sessions Judge, Namakkal for trial (Sessions Trial No. 5/2006).

12. Before the trial could begin, the main accused- Kumar died. The trial against him, therefore, stood abated whereas it continued against the co-accused 6 – appellant herein. The appellant, however, abjured the guilt.

13. In order to prove the charges, the prosecution examined 12 witnesses, marked 20 exhibits and produced material objects. In the proceedings under Section 313 of the Criminal Procedure Code, 1973 (hereinafter referred to as “the Code”), the appellant was asked to explain the circumstances appearing against him but he denied the charges including the circumstances without offering any explanation.

14. By order dated 02.08.2006, the Additional Sessions Judge held the charges proved against the appellant and accordingly convicted him for commission of the offences punishable under Sections 364 and 302 read with Section 34 of IPC and awarded life imprisonment under Section 302 IPC and seven years under Section 364 and a fine amount of Rs. 5,000/- and Rs.1000/- respectively.

15. The appellant felt aggrieved by his conviction and the sentences awarded by the Additional Sessions Judge and filed appeal in the High Court.

16. By impugned judgment, the High Court dismissed the appeal and confirmed the judgment of the Additional Sessions Judge, which has given rise to filing of the appeal by way of special leave by the accused – Murugan in this Court.

17. Heard Ms. Chitrangda Rastravara, learned counsel for the appellant and Mr. M. Yogesh Kanna, learned counsel for the respondent.

18. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.

19. We have perused the evidence with a view to find out whether the approach, reasoning and conclusion arrived at by the two Courts below are legally sustainable or not.

20. It is a settled principle of law that when the Courts below have recorded concurrent findings against the accused person which are based on due appreciation of evidence, this Court under Article 136 of the Constitution of India would be slow to interfere in such concurrent findings and would not appreciate the evidence de novo unless it is prima facie shown that both the Courts below did not either consider the relevant piece of evidence or there exists any perversity or/and absurdity in the findings recorded by both the Courts below etc.

21. We, however, made endeavour to peruse the evidence with a view to find out as to whether the concurrent findings of both the Courts below have any kind of infirmity or/and whether the concurrent findings are capable of being legally and factually sustainable or need to be reversed. Having gone through the evidence, we are of the view that the findings are legally and factually sustainable in law.

22. In our considered opinion, the two Courts below have rightly held that the appellant’s conviction was based on circumstantial evidence which, in this case, the prosecution was able to prove it by adducing evidence. In other words, we also find that the prosecution was able to prove the chain of circumstances/events appearing against the appellant without any break therein and hence the appellant’s conviction deserves to be upheld.

23. On perusal of the evidence, we find that the prosecution examined three witnesses (PW-1, PW-2 and PW-3) to prove material circumstances and the chain of events against the appellant which first included the motive behind the commission of the crime followed by the manner in which the incident took place leading to the death of Murugan.

24. The motive, according to the prosecution, was that Kumar had a grudge against the deceased because he was not agreeable to the Kumar’s 10 proposal to marry his daughter-Geetha. This was proved with the evidence of PWs-1, 2 and 3. It was believed by the two Courts below and, in our opinion, rightly.

25. The prosecution then proved that the appellant along with Kumar had gone to the house of the deceased for inviting him for dinner at Kumar’s house on the same night. The deceased accepted the invitation and went to Kumar’s house to have dinner with Kumar and the appellant.

26. It was then proved that Geetha (PW-1) had gone to Kumar’s house at around 11 P.M. to see why her father did not return to his house and on reaching there, she found all the three sitting on iron cot and were having dinner. As per post-mortem report, it was proved that Murugan died between 11 P.M. and 12 P.M. the same night.

27. In our opinion, when the appellant was sitting in the company of the deceased (Murugan) till 11 11 P.M. along with Kumar in his house and had dinner with Murugan and Kumar and immediately thereafter Murugan died, the appellant in cross-examination of PWs-1,2 and 3 was not able to elicit anything to discredit the evidence of the abovesaid three witnesses and to disprove the circumstances deposed against him.

28. That apart, in our opinion, it was necessary for the appellant to have explained the aforementioned circumstances appearing against him in the proceedings under Section 313 of the Code. The appellant, however, failed to explain any circumstances and denied his involvement in the crime.

29. We find from the evidence eight circumstances appearing against the appellant. These circumstances are:

First motive was against the deceased due to his not agreeing to the proposal of marriage of Kumar with his daughter;

Second, the appellant and Kumar, both being the cousins, knew each other very well;

Third, both went together to the house of the deceased to invite him for a dinner at Kumar’s house;

Fourth, all the three had dinner together at Kumar’s house;

Fifth, Murugan died immediately after dinner;

Sixth, Kumar gave his confessional statement;

Seventh, recovery of weapon and cloths at the instance of Kumar; and

Eighth, the dead body was found lying near iron cot where Murugan(deceased) had last dinner with Kumar and the appellant.

30. In our view, the aforementioned eight circumstances do constitute a chain of events against the appellant and lead to draw a strong conclusion against the appellant and Kumar for having committed the murder of Murugan.

31. In our view, it clearly establishes that both (Kumar and the appellant) had a common intention to eliminate Murugan. In our view, there could be no other person other than the appellant and Kumar, who committed the crime in question.

32. A theory of “accused last seen in the company of the deceased” is a strong circumstance against the accused while appreciating the circumstantial evidence. In such cases, unless the accused is able to explain properly the material circumstances appearing against him, he can be held guilty for commission of offence for which he is charged. In this case, it was rightly held by the two Courts below against the appellant and we find no good ground to disturb this finding.

33. We are not impressed by the submission of the learned counsel for the appellant when she argued that Kumar (main accused) having died without facing the trial, the present appellant is entitled for a clean acquittal because nothing now survives against the appellant after Kumar’s death for 14 appellant’s prosecution. We do not agree with this submission.

34. In our view, death of Kumar was of no significance so far as the appellant’s prosecution is concerned. The reason being that this was a case of common intention of the two accused persons to eliminate Murugan and the appellant was one of the accused persons, who was found actively participating in the crime till last along with the other accused, who died.

35. In our view, the two Courts below, therefore, were right in holding the appellant guilty of commission of the offences in question by properly appreciating the ocular evidence of the prosecution witness notwithstanding the death of the co-accused, which was of no relevance for deciding the involvement of the appellant in commission of crime.

36. We, therefore, find no good ground to take a different view than what is taken by the two Courts below and concur with their reasoning and conclusion with our additional reasoning elaborated above.

37. The appeal is thus found to be devoid of any merit. It fails and is accordingly dismissed.

……………………………………..J. [R.K. AGRAWAL]

……………………………………..J. [ABHAY MANOHAR SAPRE]

New Delhi;

May 02, 2018

Dilawar Vs. State of Haryana & ANR[ALL SC 2018 MAY]

KEYWORDS:-Modification of a Disposed Order- Speedy Investigation-

c

DATE:-May 01, 2018.

TIME BOUND INVESTIGATION: –No investigating agency can take unduly long time in  completing investigation. Speedy investigation is recognized as a part of fundamental right of fair procedure under Article 21 of the Constitution.

“Since accused has been in custody for more than two years and investigation is pending with the CBI for more than one and a half years, we are of the view that CBI must complete investigation at the most within next two months.”

We direct the MHA to place on record among other data, the figures of all pending investigations beyond one year and action plan to complete them in a proposed time frame.

ACTS:-

SUPREME COURT OF INDIA

Dilawar Vs. State of Haryana & ANR.

[M.A. No.267 of 2017 In SLP (CRL.) No.657 of 2017]

O R D E R

1. This application has been filed by CBI in a disposed of matter for modification of order of this Court dated 31st January, 2017.

2. FIR No.118 dated 27th February, 2016 was registered with the Police Station, Urban Estate, Rohtak alleging mob violence in ‘jat agitation’. The petitioner was one of the accused arrested on 20th April, 2016 and was said to be in custody since then. The state police, after completing the investigation, filed chargesheet on 27th May, 2016 before the Court. However, the investigation was thereafter transferred, on 30th September, 2016, to the CBI along with several other cases. Court proceedings were also transferred from regular courts to the CBI Court at Panchkula. The petitioner applied for bail before the Additional Sessions Judge, Rohtak which was dismissed on 12th July, 2016.

Though some of the co-accused were granted bail by the High Court, bail application of the petitioner was dismissed by the High Court on 2nd December, 2016. The High Court observed that prima facie the petitioner appeared to be the leader of the mob which indulged in arson, loot and mischief of burning of the house of a Cabinet Minister. When the matter came up before this Court against the order declining bail by the High Court, this Court while not granting bail directed that the trial be concluded as far as possible within six months.

3. In the present application it is stated that CBI is conducting investigation and has taken over only on 6th October, 2016. There is voluminous task which is time consuming. Thus, trial cannot commence unless report under Section 173 Cr.P.C. filed by the CBI which will take long time.

4. From the above narration of facts, it is clear that even if CBI commenced investigation on 6th October, 2016, one and a half years have already gone by. There is no indication as to what proceedings have been taken by the CBI so far and why more time will be required and how much more time will be required. No investigating agency can take unduly long time in  completing investigation. Speedy investigation is recognized as a part of fundamental right of fair procedure under Article 21 of the Constitution.

5. Accordingly, when the matter came up for hearing on the last date, learned ASG sought time to assist the Court as to whether there should be timelines for completing investigation. In the present case, since accused has been in custody for more than two years and investigation is pending with the CBI for more than one and a half years, we are of the view that CBI must complete investigation at the most within next two months so that trial can commence latest by July 10, 2018 and concluded by the end of the year. Since order declining bail was passed on 30th January, 2017 and more than one year has gone by, it will be open to the petitioner, if he is still in custody, to move a bail application before the trial court in accordance with law. This application will stand disposed of accordingly except for consideration of the issue indicated hereafter.

6. We have come across number of cases where investigations remain pending for unduly long time which is not conducive to administration of criminal justice. There is, thus, clear need for timelines for completing investigation and for having in-house oversight mechanism wherein accountability for adhering to laid down timelines can be fixed at a different levels in the hierarchy.

7. It is not necessary to refer to all the decisions of this Court articulating the mandate of the Constitution that there is implicit right under Article 21 for speedy trial which in turn encompasses speedy investigation, inquiry, appeal, revision and retrial. To determine whether undue delay has occurred, one must have regard to nature of offence, number of accused and witnesses, workload of the court and the investigating agency, systemic delays. Inordinate delay may be taken as presumptive proof of prejudice particularly when accused is in custody so that prosecution does not become persecution.

Court has to balance and weigh several relevant factors. Though it is neither advisable nor feasible to prescribe any mandatory outer time limit and the court may only examine effect of delay in every individual case on the anvil of Article 21 of the Constitution, there is certainly a need for in-house mechanism to ensure that there is no undue delay in completing investigation. This obligation flows from the law laid down by this Court inter-alia in Maneka Gandhi versus Union of India1, Hussainara Khatoon (I) versus Home Secy., State of Bihar2, Abdul Rehman Antulay versus R.S. Nayak3 and P. Ramachandra Rao versus State of Karnataka4.

8. There is undoubted need for a mechanism to take remedial steps if there is undue delay in investigation. Section 57 Cr.P.C. puts a bar on detention by a police officer beyond 24 hours excepting time necessary for the journey from the place of arrest to the Magistrate’s court. Section 167(1) Cr.P.C. provides that where investigation cannot be completed within 24 hours, the accused has to be produced before the Magistrate and further detention of the accused has to be authorized by the Magistrate. It is well established that authorization for such detention has to be given having regard to the progress in investigation.

Even a Magistrate cannot authorise detention in police custody beyond 15 days. After judicial custody for more than 90 days in serious cases stipulated therein and 60 days in other cases, there is a provision for mandatory default bail requirement if there is delay in investigation beyond the said period. In summons case, if investigation is not concluded within six months, the (1980) same has to be stopped unless continuation is found necessary5.

However, there is no express outer limit for investigation in other cases but delay in investigation may affect reasonableness of procedure specially when a person is in custody and is unable to furnish bail. Hence the need to lay down timelines for completing investigation with a view to give effect to the mandate of Article 21 of the Constitution. This aspect has also been discussed in the Law Commission’s Report including the 14th report (1958) and 154th Report (1996) as noticed by this Court6.

9. In view of the above, we implead Union of India as a party. We have asked learned ASG to represent the Union of India. We direct the Ministry of Home Affairs to have inter action on the subject with all the Central and State investigating agencies on or before May 31, 2018 either on video conferencing or in person. The points emerging from the inter action may be recorded and examined by an appropriate committee which may constituted for the purpose.

The said committee may give its report latest by June 30, 2018. We direct the MHA to place on record among other data, the figures of all pending investigations beyond one year and action plan to complete them in a proposed time frame. With regard to State agencies also such information may be collected and furnished by the MHA. Put up the matter for further consideration on 3rd July, 2018.

……………………………….J. (Adarsh Kumar Goel)

……………………………….J. (Indu Malhotra)

New Delhi;

May 01, 2018.

______________________________________________

1 (1978) 1 SCC 248 5

2 (1980) 1 SCC 81

3 (1992) 1 SCC 225

4 (2002) 4 SCC 578

5 167(5) Cr.P.C.

6 Rakesh Kumar Paul vs. State of Assam (2017) 15 SCC 67, paras 30 and 31.

Prashant Bharti vs State Of NCT Of Delhi [ALL SC 2013 JANUARY]

KEYWORDS:-False rape charge-

c

DATE:- 23 January, 2013

ACTS:-Section 376 IPC

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEAL NO. 175 OF 2013
(Arising out of SLP (Criminal) No. 1800 OF 2009)

Prashant Bharti vs State Of Nct Of Delhi

Bench: D.K. Jain, Jagdish Singh Khehar

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1. Leave granted.

2. On 16.2.2007, Priya (hereinafter referred to as, the complainant/prosecuterix), aged 21 years, a resident of Tughlakabad Extension, New Delhi, made a phone call to the Police Control Room (hereinafter referred to as, the PCR). Police personnel immediately reached her residence. She made a statement to the police, leading to the registration of first information report no. 47 of 2007 at Police Station Lodhi Colony, New Delhi, under Sections 328 and 354 of the Indian Penal Code. In her statement to the police, the complainant/prosecuterix alleged, that the appellant herein Prashant Bharti (hereinafter referred to as, the appellant-accused) was known to her for about four months. The appellant-accused was a resident of Lodhi Colony, New Delhi. It was alleged that on the preceding day i.e., on 15.2.2007, the appellant-accused had made a phone call to the complainant/prosecuterix, at about 8.45 pm, and asked her to meet him at Lodhi Colony, New Delhi. When she – reached Lodhi Colony, he drove her around in his car. He also offered the complainant/prosecuterix a cold drink (Pepsi) allegedly containing a poisonous/intoxicating substance. According to the complainant/prosecuterix she felt inebriated after taking the cold drink. In her aforesaid state, the appellant-accused started misbehaving with her. He also touched her breasts. Inspite of the complainant/prosecuterix stopping him, it was alleged, that the appellant-accused continued to misbehave with her. The complainant/prosecuterix then got the car stopped, and hired an auto-rickshaw to return to her residence. In her statement, the complainant/prosecuterix requested the police to take legal action against the appellant-accused.

3. Immediately after recording the statement of Priya (the complainant/prosecuterix) on 16.2.2007, the police took her to the All India Institute of Medical Sciences (hereinafter referred to as, the AIIMS), New Delhi. She was medically examined at 1.44 pm. It is sufficient to record herein, that as per the medical report prepared at the AIIMS, there was no evidence of poisoning.

4. Based on the statement made by the complainant/prosecuterix, the appellant-accused Prashant Bharti was arrested at 6 pm, on the same day on which the complainant recorded her statement, i.e., on 16.2.2007, a day after the occurrence.

5. After a lapse of five further days, on 21.2.2007, at 8.20 am, the complainant/prosecuterix made a supplementary statement to the police. On this occasion, she alleged, that Prashant Bharti, the appellant-accused, had been having physical relations with her in his house, on the assurance

that he would marry her. It was alleged by the complainant/prosecuterix, that the appellant-accused had subsequently refused to marry her. With reference to the incident of 15.2.2007, she alleged, that she had been administered some intoxicant in a cold drink (Pepsi) by Prashant Bharti, so as to enable him to have a physical relationship with her. But, it was alleged, that she did not succumb to his said desire on 15.2.2007. The complainant/prosecuterix further alleged, that after she returned to her residence on 15.2.2007, she did not feel well and accordingly, had gone to sleep. She therefore explained, why she had made her earlier complaint, on the following day of the incident. In her supplementary statement, she requested the police to take legal action against Prashant Bharti, the appellant-accused, for having physical relations with her (on 23.12.2006, 25.12.2006 and 1.1.2007) at his residence, on the basis of a false promise to marry her.

6. Immediately after recording her supplementary statement, the complainant/prosecuterix was taken to the AIIMS. She was medically examined at the AIIMS at 12 noon, on 21.2.2007. In the medical report prepared at the AIIMS after her examination, it was recorded, that she had no external injuries, and that her hymen was not intact. It was pointed out, that a vaginal smear was not taken, because more than a month had elapsed from the date of the alleged intercourse(s). Likewise, it was pointed out, that her clothes were not sent for forensic examination, because she had changed the clothes worn by her at the time of the alleged occurrence(s). In other words, the assertions made by the accused could not be tested scientifically, because the complainant was being medically examined, after a substantial delay.

7. Based on the supplementary statement of Priya (the complainant/prosecuterix) recorded on 21.2.2007, the offence under Section 376 was added to the case.

8. On 27.2.2007, the statement of the complainant/prosecuterix was recorded under Section 164 of the Code of Criminal Procedure by the Metropolitan Magistrate, New Delhi (in first information report no. 47 of 2007). A relevant extract of the aforesaid statement, is being reproduced below:-

“… then Prashant asked for my number and detail of address. I gave my office telephone number to him. In evening, Mr. Prashant Bharti called me and talked about loan and after some days, Prashant Bharti came to meet in my office and thereafter we became good friends and one day, Prashant Bharti told me that he loves me and wish to marry me and thereafter, we started meeting frequently and I consented for marriage.

One day, when all the family members were gone somewhere, Prashant Bharti called me to his home for party and he told me that he will marry me soon and will inform to his parents about our relationship and he made relation with me. And, whenever his home was vacant, he usually calls me up and when his parents came, I asked him to tell them about our relationship and he did not inform this and on this issue, we have fight with each other and I informed to his parents. Then his parents called Prashant about this and Prashant Bharti denied our relationship to his father and neither he wish to marry me and on that day, I was sent to my home by his parents.

After two days, Prashant Bharti called me and asked me to meet him, as he wish to tender apology and when I was going to reach my home from office, then I, through auto rickshaw, reached at Central School, Lodhi Colony, where Prashant Bharti was standing near to his Santro Car, and he met me there and he asked me that he has committed mistake and he wish to tender apology and after some – time, he took me to his car and thereafter, he told me that he is feeling thirsty and thereafter, he brought Pepsi in car and we both took the Pepsi. And, after drinking the same, I lost my conscious and thereafter, he started misbehaving with me and I asked him that why he was doing so, then he told me that, as I complained to his father, he will take revenge from me, and he forcibly misbehaved with me, and I immediately got down from the car and by Auto, I came to my house and as I was unwell, I could not lodge my complaint with police. On the next day, I called 100 number PCR and there police official, accompanies me and I informed everything to SHO Surinder Jeet and on that basis, he was arrested.”

9. By an order dated 12.3.2007, the Additional Sessions Judge, Delhi granted bail to the appellant-accused. In the aforesaid order passed on 12.3.2007, the following factual position was relied upon, to extend the benefit of bail to the appellant-accused. The appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh on 15.2.2007. He was at Noida before 7.55 pm. He, thereafter, remained at different places within Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh etc. From 9.15 pm to 11.30 pm on 15.2.2007, he remained present at a marriage anniversary function celebrated at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An affidavit to the aforesaid effect filed by the appellant-accused was found to be correct by the investigating officer, on the basis of his mobile phone call details. Verification of the mobile phone call details of the complainant/prosecuterix Priya revealed, that on 15.2.2007, no calls were made by the appellant-accused to the complainant/prosecuterix, and that, it was the complainant/prosecuterix who had made calls to him. The complainant/prosecuterix, on and around the time referred to in the complaint dated 16.2.2007, was at different places of New Delhi i.e., in Defence Colony, Greater Kailash, Andrews Ganj and finally at Tughlakabad Extension, as per the verification of the investigating officer on the basis of her mobile phone call details. Even though the complainant/prosecuterix was married to one Manoj Kumar Soni, S/o Seeta Ram Soni (as indicated in an affidavit appended to the Delhi police format for information of tenants and duly verified by the investigating officer, wherein she had described herself as married), in the complaint made to the police (on 16.2.2007 and 21.2.2007), she had suggested that she was not married. At the time when the complainant/prosecuterix alleged, that the appellant-accused had misbehaved with her and had outraged her modesty on 15.2.2007 (per her complaint dated 16.2.2007), she was actually in conversation with her friends (as per the verification made by the investigating officer on the basis of her mobile phone call details). Even though the complainant/prosecuterix had merely alleged in her complaint dated 16.2.2007, that the accused had outraged her modesty by touching her breasts, she had subsequently through a supplementary statement (on 21.2.2007), levelled further allegations against the accused of having repeatedly raped her (on 23.12.2006, 25.12.2006 and 1.1.2007), on dates preceding the first complaint.

10. On 28.6.2007, the police filed a chargesheet under Sections 328, 354 and 376 of the Indian Penal Code. In the chargesheet, it was clearly mentioned, that the police investigation, from different angles, had not yielded any positive result. However, the chargesheet was based on the statement made by the complainant/prosecuterix before the Metropolitan Magistrate, New Delhi under Section 164 of the Code of Criminal Procedure, which was found to be sufficient for the charges alleged – against the appellant-accused. A relevant extract of the chargesheet depicting the aforesaid factual position, is being reproduced below:-

“I the Inspector, tried my best from all angles to recover the intoxicating substance/Pepsi/Pepsi glass and undergarments worn at the time of the rape. But nothing could be recovered and for this reason, the blood sample of accused could not be sent to FSL. As from the investigation so far conducted, no proof could be found in support of the crime under Section 328/354 IPC and even the position of accused Prashant Bharti is not available at Lodhi Colony at the date and time as his mobile phone ill. However, prosecuterix Priya Porwal made statement on 21.2.2007 and on 27.2.2007 under Section 164 Cr.P.C. which is sufficient in support of his challan for the offence under Section 376 IPC.” (emphasis is ours)

11. Aggrieved by the first information report (bearing no. 47 of 2007) registered at the Police Station Lodhi Colony, New Delhi, the appellant-accused filed Writ Petition (Crl.) no. 1112 of 2007 before the Delhi High Court for quashing the said first information report on the ground, that the appellant-accused had been falsely implicated. The High Court, dismissed the said writ petition on 27.8.2007, without going into the merits of the controversy, by recording the following observations:-

“This Court cannot quash the FIR on the ground that FIR was false FIR. In case of a false FIR, it must be brought to its logical conclusion and Investigating Officer must give a report to that effect. In this case, if it is found that the petitioner has been falsely implicated and the complaint was false, it would be obligatory on the part of the Investigating Officer to register a case and book the prosecuterix for falsely implicating the person in an offence under Section 376 IPC.

It is a very serious matter that a prosecuterix just by making a false statement can book somebody in offence under Section 376 IPC, which is serious in nature and invites a minimum punishment of 07 years. I consider that Investigating Officer shall submit a detailed report and in case, it is that the petitioner was falsely implicated, he would take steps for booking the complainant for falsely implicating the petitioner.”

12. Interestingly, even the complainant/prosecuterix filed Writ Petition (Crl.) no. 257 of 2008 before the Delhi High Court seeking quashing of the first information report lodged by the complainant/prosecuterix herself. The High Court noticed the observations recorded in the order dated 27.8.2007 (passed in Writ Petition (Crl.) no. 1112 of 2007) and dismissed the writ petition filed by the complainant/prosecutrix.

13. On 1.12.2008, the Additional Sessions Judge, New Delhi, framed charges against the appellant-accused, by observing as under:-

“4. Considering the facts and circumstances of the case that prosecuterix has levelled specific allegations against the accused that she was given pepsi to drink and after consuming the same she was intoxicated and accused teased her, moved his hands on her breast and earlier made physical relations with her on the assurance of marriage, I am of the considered opinion that prosecution has brought prima facie sufficient material on record against the accused for charge under Sections 354/328/376 IPC. Let charge be framed accordingly.”

14. Dissatisfied with the action of the trial Court in framing charges against him, the appellant-accused filed Criminal Revision Petition no. 08 of 2009, whereby he assailed the order dated 1.12.2008 passed by the Additional Sessions Judge, New Delhi. The Delhi High Court dismissed the revision petition on 16.1.2009, by interalia observing as under:-
“12. Truthfulness or falsity of the allegations, essentially pertains to the realm of evidence and the same cannot be pre-judged at this initial stage. I do not find any illegality or infirmity in the impugned order. Consequently, this Revision Petition is dismissed in limine while making it clear that anything herein shall not be construed as an opinion on merits at trial.”

15. Despite notice having been issued to the complainant/prosecuterix by this Court in the present case, she failed to enter personal appearance (or be represented through counsel). To procure her presence, bailable – warrants were issued in furtherance of this Court’s order dated 12.5.2010 and again on 16.10.2012. Priya, the complainant/prosecuterix entered personal appearance on 8.11.2012. During the course of hearing, consequent upon clarifications sought from her in respect of her marital status (at the time of the alleged occurrences with the appellant-accused), she informed this Court, that even though she was married earlier, she had divorced her previous husband before the dates of occurrence. To verify the factual position pertaining to her marital status as on the dates of occurrence(s), she was asked to produce the judgment and decree of divorce, from her previous husband. She accordingly produced a certified copy of the judgment and decree of the Court of the Civil Judge (Senior Division), Kanpur (Rural) dated 23.9.2008. A photocopy thereof duly attested by Priya, the complainant/prosecuterix, and her counsel, were taken on record. A perusal of the same reveals, that the complainant/prosecuterix was married to Lalji Porwal on 14.6.2003. She was divorced from her said husband by mutual consent under Section 13B of the Hindu Marriage Act, 1955, on 23.9.2008. Priya, the complainant/prosecuterix also affirmed, that she had remarried thereafter. She also produced before us a “certificate of marriage” dated 30.9.2008. A photocopy thereof duly attested by Priya and her counsel, was also taken on record. A perusal of the same reveals, that Priya (date of birth, 17.6.1986), daughter of Anup Kumar was married to Manoj (date of birth, 8.12.1983), son of Ram Kumar, on 30.9.2008.

16. The factual position narrated above would enable us to draw some positive inferences on the assertion made by the complainant/prosecuterix – against the appellant-accused (in the supplementary statement dated 21.2.2007). It is relevant to notice, that she had alleged, that she was induced into a physical relationship by Prashant Bharti, on the assurance that he would marry her. Obviously, an inducement for marriage is understandable if the same is made to an unmarried person. The judgment and decree dated 23.9.2008 reveals, that the complainant/prosecuterix was married to Lalji Porwal on 14.6.2003. It also reveals, that the aforesaid marriage subsisted till 23.9.2008, when the two divorced one another by mutual consent under Section 13B of the Hindu Marriage Act. In her supplementary statement dated 21.2.2007, the complainant/prosecuterix accused Prashant Bhati of having had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007 at his residence, on the basis of a false promise to marry her. It is apparent from irrefutable evidence, that during the dates under reference and for a period of more than one year and eight months thereafter, she had remained married to Lalji Porwal. In such a fact situation, the assertion made by the complainant/prosecuterix, that the appellant-accused had physical relations with her, on the assurance that he would marry her, is per se false and as such, unacceptable. She, more than anybody else, was clearly aware of the fact that she had a subsisting valid marriage with Lalji Porwal. Accordingly, there was no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage. If the judgment and decree dated 23.9.2008 produced before us by the complainant/prosecuterix herself is taken into consideration alongwith the factual position depicted in the supplementary statement dated 21.2.2007, – it would clearly emerge, that the complainant/prosecuterix was in a relationship of adultery on 23.12.2006, 25.12.2006 and 1.1.2007 with the appellant-accused, while she was validly married to her previous husband Lalji Porwal. In the aforesaid view of the matter, we are satisfied that the assertion made by the complainant/prosecuterix, that she was induced to a physical relationship by Prashant Bharti, the appellant-accused, on the basis of a promise to marry her, stands irrefutably falsified.

17. Would it be possible for the prosecution to establish a sexual relationship between Priya, the complainant/prosecuterix and Prashant Bharti, the appellant-accused, is the next question which we shall attempt to answer. Insofar as the instant aspect of the matter is concerned, medical evidence discussed above reveals, that the complaint made by the complainant/prosecuterix alleging a sexual relationship with her by Prashant Bharti, the appellant-accused, was made more than one month after the alleged occurrences. It was, therefore, that during the course of her medical examination at the AIIMS, a vaginal smear was not taken. Her clothes were also not sent for forensic examination by the AIIMS, because she had allegedly changed the clothes which she had worn at the time of occurrence. In the absence of any such scientific evidence, the proof of sexual intercourse between the complainant/prosecuterix and the appellant- accused would be based on an assertion made by the complainant/prosecuterix. And an unequivocal denial thereof, by the appellant-accused. One’s word against the other. Based on the falsity of the statement made by the complainant/prosecuterix noticed above (and other such like falsities, to be narrated hereafter), it is unlikely, that a – factual assertion made by the complainant/prosecuterix, would be acceptable over that of the appellant-accused. For the sake of argument, even if it is assumed, that Prashant Bharti, the appellant-accused and Priya, the complainant/prosecuterix, actually had a physical relationship, as alleged, the same would necessarily have to be consensual, since it is the case of the complainant/prosecuterix herself, that the said physical relationship was with her consent consequent upon the assurance of marriage. But then, the discussion above, clearly negates such an assurance. A consensual relationship without any assurance, obviously will not substantiate the offence under Section 376 of the Indian Penal Code, alleged against Prashant Bharti.

18. Insofar as the assertion made by the complainant/prosecuterix, in her first complaint dated 16.2.2007 is concerned, it is apparent, that on the basis thereof, first information report no. 47 of 2007 was registered at Police Station Lodhi Colony, New Delhi. In her aforesaid complaint, Priya, the complainant/prosecuterix had alleged, that the appellant-accused had called her on her phone at 8.45 pm and asked her to meet him at Lodhi Colony, New Delhi. When she reached there, he drove her around in his car.

He also offered her a cold drink (Pepsi) containing a poisonous/intoxicating substance. Having consumed the cold drink, she is stated to have felt inebriated, whereupon, he took advantage of her and started misbehaving with her, and also touched her breasts. Insofar as the instant aspect of the matter is concerned, the presence of the complainant/prosecuterix, as well as the appellant-accused, at the alleged place of occurrence (Lodhi Colony, New Delhi), on the night of – 15.2.2007 after 8.45 pm, has been established to be false on the basis of mobile phone call details of the parties concerned. Details in this respect have been summarized in paragraph 8 above. The same are not being repeated for reasons of brevity. The proof of the aforesaid factual matter must be considered to be conclusive for all intents and purposes, specially, in view of the observations made by this Court in Gajraj Vs. State (NCT) of Delhi [(2011) 10 SCC 675], wherein it was held as under:-

“19. In the aforesaid sense of the matter, the discrepancy in the statement of Minakshi PW23, pointed out by the learned counsel for the accused-appellant, as also, the reasoning rendered by the High Court in the impugned judgment becomes insignificant. We are satisfied, that the process by which the accused-appellant came to be identified during the course of investigation, was legitimate and unassailable. The IEMI number of the handset, on which the accused-appellant was making calls by using a mobile phone (sim) registered in his name, being evidence of a conclusive nature, cannot be overlooked on the basis of such like minor discrepancies . In fact even a serious discrepancy in oral evidence, would have had to yield to the aforesaid authentic digital evidence which is a byproduct of machine operated electronic record having no manual interference. For the reasons recorded hereinabove, we find no merit in the first contention advanced at the hands of the learned counsel for the accused-appellant.” The aforesaid factual conclusion, that the two concerned parties were not present at Lodhi Colony, New Delhi after 8.45 pm on 15.2.2007, as has been established on the basis of the investigation carried out by the police, cannot be altered at the culmination of the trial, since the basis of the aforesaid determination is scientific evidence. Neither has the said material been contested by the complainant/prosecutrix. Once it is concluded, that the complainant/prosecuterix and the appellant-accused were at different places, far away from one another, and certainly not in Lodhi Colony, New Delhi on the night of 15.2.2007, it is obvious that the allegation made by Priya, the complainant/prosecuterix against Prashant Bharti, the appellant-accused of having outraged her modesty, was false. What stands established now, as has been discussed above, will have to be reaffirmed on the basis of the same evidence at the culmination of the trial. Such being the fact situation, we have no other alternative but to conclude, that the allegations levelled by the complainant/prosecuterix, which culminated in the registration of a first information report at Police Station Lodhi Colony, New Delhi on 16.2.2007, as well as her supplementary statement, would never lead to his conviction.

19. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Cr.P.C.”) has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor (Criminal Appeal No…… of 2013, arising out of SLP (Crl.) no.4883 of 2008, decided on 23.1.2013) wherein this Court inter alia held as under:

22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section -482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.”

20. The details in respect of each aspect of the matter, arising out of the complaints made by Priya on 16.2.2007 and 21.2.2007 have been examined in extensive detail in the foregoing paragraphs. We shall now determine whether the steps noticed by this Court in the judgment extracted hereinabove can be stated to have been satisfied. In so far as the instant aspect of the matter is concerned, the factual details referred to in the foregoing paragraphs are being summarized hereafter.

Firstly, the appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh on 15.2.2007. He was at Noida before 7.55 pm. He, thereafter, remained at different places within Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh etc. From 9.15 pm to 11.30 pm on 15.2.2007, he remained present at a marriage anniversary function celebrated at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An affidavit to the aforesaid effect filed by the appellant- accused was found to be correct by the investigating officer on the basis of his mobile phone call details. The accused was therefore not at the place of occurrence, as alleged in the complaint dated 16.2.2007. Secondly, verification of the mobile phone call details of the complainant/prosecuterix Priya revealed, that on 15.2.2007, no calls were made by the appellant-accused to the complainant/prosecuterix, and that, it was the complainant/prosecuterix who had made calls to him. Thirdly, the complainant/prosecuterix, on and around the time referred to in the – complaint dated 16.2.2007, was at different places of New Delhi i.e., in Defence Colony, Greater Kailash, Andrews Ganj and finally at Tughlakabad Extension, as per the verification of the investigating officer on the basis of her mobile phone call details. The complainant was also not at the place of occurrence, as she herself alleged in the complaint dated 16.2.2007. Fourthly, at the time when the complainant/prosecuterix alleged, that the appellant-accused had misbehaved with her and had outraged her modesty on 15.2.2007 (as per her complaint dated 16.2.2007), she was actually in conversation with her friends (as per the verification made by the investigating officer on the basis of her mobile phone call details). Fifthly, even though the complainant/prosecuterix had merely alleged in her complaint dated 16.2.2007, that the accused had outraged her modesty by touching her breasts, she had subsequently through a supplementary statement (on 21.2.2007), levelled allegations against the accused for offence of rape. Sixthly, even though the complainant/prosecuterix was married to one Manoj Kumar Soni, s/o Seeta Ram Soni (as indicated in an affidavit appended to the Delhi police format for information of tenants and duly verified by the investigating officer, wherein she had described herself as married), in the complaint made to the police (on 16.2.2007 and 21.2.2007), she had suggested that she was unmarried. Seventhly, as per the judgment and decree of the Civil Judge (Senior Division), Kanpur (Rural) dated 23.9.2008, the complainant was married to Lalji Porva on 14.6.2003. The aforesaid marriage subsisted till 23.9.2008. The allegations made by the complainant dated 16.2.2007 and 21.2.2007 pertain to occurrences of 23.12.2006, 25.12.2006, 1.1.2007 and -15.2.2007, i.e., positively during the subsistence of her marriage with Lalji Porwal. Thereafter, the complainant Priya married another man Manoj on 30.9.2008. This is evidenced by a “certificate of marriage” dated 30.9.2008. In view of the aforesaid, it is apparent that the complainant could not have been induced into a physical relationship, based on an assurance of marriage. Eighthly, the physical relationship between the complainant and the accused was admittedly consensual. In her complaints Priya had however asserted, that her consent was based on a false assurance of marriage by the accused. Since the aspect of assurance stands falsified, the acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC. Especially because the complainant was a major on the date of occurrences, which fact emerges from the “certificate of marriage” dated 30.9.2008, indicating her date of birth as 17.7.1986. Ninthly, as per the medical report recorded by the AIIMS dated 16.2.2007, the examination of the complainant did not evidence her having been poisoned. The instant allegation made by the complainant cannot now be established because even in the medical report dated 16.2.2007 it was observed that blood samples could not be sent for examination because of the intervening delay. For the same reason even the allegations levelled by the accused of having been administered some intoxicant in a cold drink (Pepsi) cannot now be established by cogent evidence. Tenthly, The factual position indicated in the charge-sheet dated 28.6.2007, that despite best efforts made by the investigating officer, the police could not recover the container of the cold drink (Pepsi) or the glass from which the – complainant had consumed the same. The allegations made by the complainant could not be verified even by the police from any direct or scientific evidence, is apparent from a perusal of the charge-sheet dated 28.6.2007. Eleventhly, as per the medical report recorded by the AIIMS dated 21.2.2007 the assertions made by the complainant that the accused had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007, cannot likewise be verified as opined in the medical report, on account of delay between the dates of occurrences and her eventual medical examination on 21.2.2007. It was for this reason, that neither the vaginal smear was taken, nor her clothes were sent for forensic examination.

21. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, the material relied upon by the accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. Even in the charge sheet dated 28.6.2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 of the Cr.P.C.

22. Based on the holistic consideration of the facts and circumstances summarized in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar’s case (supra) stand satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the accused-appellant, in exercise of the inherent powers vested with it under Section 482 of the Cr.P.C. Accordingly, based on the conclusions drawn hereinabove, we are satisfied, that the first information report registered under Sections 328, 354 and 376 of the Indian Penal Code against the appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed.

Disposed of in the aforesaid terms.

 

J. (D.K. Jain)

 J. (Jagdish Singh Khehar)

New Delhi;
January 23, 2013.

Guidelines for the High Court to interfere with the judgment and order of Acquittal passed by the Trial Court

Indian Law Encyclopedia

 Supreme Court  has laid down the guidelines for the High Court to interfere with the judgment and order of Acquittal passed by the Trial Court. The appellate court should not ordinarily set aside a judgment of Acquittal in a case where two views are possible, though the view of the Appellate Court may be more probable one. While dealing with a judgment of Acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. Interference with the order of Acquittal is permissible only in “exceptional circumstances” for “compelling reasons”. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court.

The expressions like ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc., are not intended to curtail the extensive powers of an appellate court in an appeal against Acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with the Acquittal. Thus, where it is possible to take only one view i.e. the prosecution evidence points to the guilt of the accused and the judgment is on the face of it perverse, the appellate Court may interfere with an order of Acquittal.

The appellate court should also bear in mind the presumption of innocence of the accused and further that the trial Court’s Acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.

(See: Sanwat Singh and Ors. v. State of Rajasthan, AIR 1961 SC 715; Suman Sood alias Kamaljeet Kaur v. State of Rajasthan, (2007) 5 SCC 634; Brahm Swaroop and Anr. v. State of U.P., AIR 2011 SC 280; V.S. Achuthanandan v. R. Balakrishna Pillai and Ors., (2011) 3 SCC 317; and Rukia Begum and Ors. v. State of Karnataka, (2011) 4 SCC 779).

Thus, in such cases, this Court would usually not interfere unless

a. The finding is vitiated by some glaring infirmity in the appraisal of evidence. (State of U.P. v. Sahai, AIR 1981 SC 1442 at paras 19-21)

b. The finding is perverse. (State of M.P. v. Bachhudas, (2007) 9 SCC 135 at para 10 and State of Punjab v. Parveen Kumar, (2005) 9 SCC 769 at para 9)

c. The order suffers from substantial errors of law and fact (Rajesh Kumar v. Dharamvir, (1997) 4 SCC 496 at para 5)

d. The order is based on misconception of law or erroneous appreciation of evidence (State of U.P. v. Abdul, (1997) 10 SCC 135; State of U.P. v. Premi, (2003) 9 SCC 12 at para 15)

e. High Court has adopted an erroneous approach resulting in miscarriage of justice (State of T.N. v. Suresh, (1998) 2 SCC 372 at paras 31 and 32; State of M.P. v. Paltan Mallah, (2005) 3 SCC 169 at para 8)

f. Acquittal is based on irrelevant grounds (Arunachalam v. Sadhanatham, (1979) 2 SCC 297 at para 4

g. High Court has completely misdirected itself in reversing the order of conviction by the Trial Court (Gaurishanker Sharma v. State of U.P., AIR 1990 SC 709)

h. The judgment is tainted with serious legal infirmities (State of Maharashtra v. Pimple, AIR 1984 SC 63 at para 75)

18. In reversing an Acquittal, this Court keeps in mind that presumption of innocence in favour of the accused is fortified by an order of Acquittal and if the view of the High Court is reasonable and founded on materials on record, this Court should not interfere.

19. However, if this Court is of the opinion that the Acquittal is not based on a reasonable view, then it may review the entire material and there will be no limitation on this Court’s jurisdiction under Article 136 to come to a just decision quashing the Acquittal (See, (1985) 4 SCC 476 at para 45; (1996) 7 SCC 471 at para 4)

 

 

Smt. Selvi and OTHERS Versus State of Karnataka[ALL SC 2010 MAY]

KEYWORDS:- Scientific techniques, namely narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test-

c

DATE:-05-05-2010-

  • Forcing an individual to undergo any of the impugned techniques violates the standard of ‘substantive due process’ which is required for restraining personal liberty.

JT 2010 (5) SC 11 : (2010) 4 SCALE 690 : (2010) 7 SCC 263 : 2010 AIR SC 1974

(SUPREME COURT OF INDIA)

Smt. Selvi and OTHERS Appellant
Versus
State of Karnataka Respondent

(Before : K. G. Balakrishnan, C.J.,R. V. Raveendran and J. M. Panchal, JJ.)

Criminal Appeal Nos. 1267 of 2004, 54, 55, 56, 57, 58 and 59 of 2005, 1199 of 2006, 1471 of 2007, 987 and 990 of 2010 (Arising out of SLP (Crl.) Nos. 10 of 2006 and 6711 of 2007); Decided On: 05-05-2010

Criminal Procedure Code, 1973—Sections 39, 156(1), 313(3), 315(1) and 161(2)—Federal Rules, 1975—Rules 702, 707 and 403—Constitution of India, 1950—Articles 20(3), 14(3)(g), 6(2), 20 and 21—Evidence Act, 1872—Sections 24, 25 and 26.

JUDGMENT

K.G. Balakrishnan, C.J—Leave granted in SLP (Crl.) Nos. 10 of 2006 and 6711 of 2007. 1. The legal questions in this batch of criminal appeals relate to the involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases. This issue has received considerable attention since it involves tensions between the desirability of efficient investigation and the preservation of individual liberties. Ordinarily the judicial task is that of evaluating the rival contentions in order to arrive at a sound conclusion. However, the present case is not an ordinary dispute between private parties. It raises pertinent questions about the meaning and scope of fundamental rights which are available to all citizens. Therefore, we must examine the implications of permitting the use of the impugned techniques in a variety of settings.

2. Objections have been raised in respect of instances where individuals who are the accused, suspects or witnesses in an investigation have been subjected to these tests without their consent. Such measures have been defended by citing the importance of extracting information which could help the investigating agencies to prevent criminal activities in the future as well as in circumstances where it is difficult to gather evidence through ordinary means. In some of the impugned judgments, reliance has been placed on certain provisions of the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 to refer back to the responsibilities placed on citizens to fully co-operate with investigation agencies. It has also been urged that administering these techniques does not cause any bodily harm and that the extracted information will be used only for strengthening investigation efforts and will not be admitted as evidence during the trial stage. The assertion is that improvements in fact-finding during the investigation stage will consequently help to increase the rate of prosecution as well as the rate of acquittal. Yet another line of reasoning is that these scientific techniques are a softer alternative to the regrettable and allegedly widespread use of ‘third degree methods’ by investigators.

3. The involuntary administration of the impugned techniques prompts questions about the protective scope of the ‘right against self-incrimination’ which finds place in Article 20(3) of our Constitution. In one of the impugned judgments, it has been held that the information extracted through methods such as ‘polygraph examination’ and the ‘Brain Electrical Activation Profile (BEAP) test’ cannot be equated with ‘testimonial compulsion’ because the test subject is not required to give verbal answers, thereby falling outside the protective scope of Article 20(3). It was further ruled that the verbal revelations made during a narcoanalysis test do not attract the bar of Article 20(3) since the inculpatory or exculpatory nature of these revelations is not known at the time of conducting the test. To address these questions among others, it is necessary to inquire into the historical origins and rationale behind the ‘right against self-incrimination’. The principal questions are whether this right extends to the investigation stage and whether the test results are of a ‘testimonial’ character, thereby attracting the protection of Article 20(3). Furthermore, we must examine whether relying on the test results or materials discovered with the help of the same creates a reasonable likelihood of incrimination for the test subject.

4. We must also deal with arguments invoking the guarantee of ‘substantive due process’ which is part and parcel of the idea of ‘personal liberty’ protected by Article 21 of the Constitution. The first question in this regard is whether the provisions in the Code of Criminal Procedure, 1973 that provide for ‘medical examination’ during the course of investigation can be read expansively to include the impugned techniques, even though the latter are not explicitly enumerated. To answer this question, it will be necessary to discuss the principles governing the interpretation of statutes in light of scientific advancements. Questions have also been raised with respect to the professional ethics of medical personnel involved in the administration of these techniques. Furthermore, Article 21 has been judicially expanded to include a ‘right against cruel, inhuman or degrading treatment’, which requires us to determine whether the involuntary administration of the impugned techniques violates this right whose scope corresponds with evolving international human rights norms. We must also consider contentions that have invoked the test subject’s ‘right to privacy’, both in a physical and mental sense.

5. The scientific validity of the impugned techniques has been questioned and it is argued that their results are not entirely reliable. For instance, the narcoanalysis technique involves the intravenous administration of sodium pentothal, a drug which lowers inhibitions on part of the subject and induces the person to talk freely. However, empirical studies suggest that the drug-induced revelations need not necessarily be true. Polygraph examination and the BEAP test are methods which serve the respective purposes of lie-detection and gauging the subject’s familiarity with information related to the crime. These techniques are essentially confirmatory in nature, wherein inferences are drawn from the physiological responses of the subject. However, the reliability of these methods has been repeatedly questioned in empirical studies. In the context of criminal cases, the reliability of scientific evidence bears a causal link with several dimensions of the right to a fair trial such as the requisite standard of proving guilt beyond reasonable doubt and the right of the accused to present a defence. We must be mindful of the fact that these requirements have long been recognised as components of ‘personal liberty’ under Article 21 of the Constitution. Hence it will be instructive to gather some insights about the admissibility of scientific evidence.

6. In the course of the proceedings before this Court, oral submissions were made by Mr. Rajesh Mahale, Adv. (Crl. App. No. 1267 of 2004), Mr. Manoj Goel, Adv. (Crl. App. Nos. 56-57 of 2005), Mr. Santosh Paul, Adv. (Crl. App. No. 54 of 2005) and Mr. Harish Salve, Sr. Adv. (Crl. App. Nos. 1199 of 2006 and No. 1471 of 2007) – all of whom argued against the involuntary administration of the impugned techniques. Arguments defending the compulsory administration of these techniques were presented by Mr. Goolam E. Vahanvati, Solicitor General of India [now Attorney General for India] and Mr. Anoop G. Choudhari, Sr. Adv. who appeared on behalf of the Union of India. These were further supported by Mr. T.R. Andhyarujina, Sr. Adv. who appeared on behalf of the Central Bureau of Investigation (CBI) and Mr. Sanjay Hegde, Adv. who represented the State of Karnataka. Mr. Dushyant Dave, Sr. Adv., rendered assistance as amicus curiae in this matter.

7. At this stage, it will be useful to frame the questions of law and outline the relevant sub-questions in the following manner:

I. Whether the involuntary administration of the impugned techniques violates the ‘right against self-incrimination’ enumerated in Article 20(3) of the Constitution? I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject?

I-B. Whether the results derived from the impugned techniques amount to ‘testimonial compulsion’ thereby attracting the bar of Article 20(3)?

II. Whether the involuntary administration of the impugned techniques is a reasonable restriction on ‘personal liberty’ as understood in the context of Article 21 of the Constitution?

8. Before answering these questions, it is necessary to examine the evolution and specific uses of the impugned techniques. Hence, a description of each of the test procedures is followed by an overview of their possible uses, both within and outside the criminal justice system. It is also necessary to gauge the limitations of these techniques. Owing to the dearth of Indian decisions on this subject, we must look to precedents from foreign jurisdictions which deal with the application of these techniques in the area of criminal justice.

DE SCR IPTIONS OF TESTS – USES, LIMITATIONS AND PRECEDENTS

Polygraph Examination

9. The origins of polygraph examination have been traced back to the efforts of Lombroso, a criminologist who experimented with a machine that measured blood pressure and pulse to assess the honesty of persons suspected of criminal conduct. His device was called a hydrosphygmograph. A similar device was used by psychologist William Marston during World War I in espionage cases, which proved to be a precursor to its use in the criminal justice system. In 1921, John Larson incorporated the measurement of respiration rate and by 1939 Leonard Keeler added skin conductance and an amplifier to the parameters examined by a polygraph machine.

10. The theory behind polygraph tests is that when a subject is lying in response to a question, he/she will produce physiological responses that are different from those that arise in the normal course. During the polygraph examination, several instruments are attached to the subject for measuring and recording the physiological responses. The examiner then reads these results, analyzes them and proceeds to gauge the credibility of the subject’s answers. Instruments such as cardiographs, pneumographs, cardio-cuffs and sensitive electrodes are used in the course of polygraph examinations. They measure changes in aspects such as respiration, blood pressure, blood flow, pulse and galvanic skin resistance. The truthfulness or falsity on part of the subject is assessed by relying on the records of the physiological responses. [See: Laboratory Procedure Manual – Polygraph Examination (Directorate of Forensic Science, Ministry of Home Affairs, Government of India, New Delhi – 2005)]

11. There are three prominent polygraph examination techniques:

i. The relevant-irrelevant (R-I) technique

ii. The control question (CQ) technique

iii. Directed Lie-Control (DLC) technique

Each of these techniques includes a pre-test interview during which the subject is acquainted with the test procedure and the examiner gathers the information which is needed to finalize the questions that are to be asked. An important objective of this exercise is to mitigate the possibility of a feeling of surprise on part of the subject which could be triggered by unexpected questions. This is significant because an expression of surprise could be mistaken for physiological responses that are similar to those associated with deception. [Refer: David Gallai, ‘Polygraph evidence in federal courts: Should it be admissible?’ 36 American Criminal Law Review 87-116 (Winter 1999) at p. 91]. Needless to say, the polygraph examiner should be familiar with the details of the ongoing investigation. To meet this end the investigators are required to share copies of documents such as the First Information Report (FIR), Medico-Legal Reports (MLR) and Post-Mortem Reports (PMR) depending on the nature of the facts being investigated.

12. The control-question (CQ) technique is the most commonly used one and its procedure as well as scoring system has been described in the materials submitted on behalf of CBI. The test consists of control questions and relevant questions. The control questions are irrelevant to the facts being investigated but they are intended to provoke distinct physiological responses, as well as false denials. These responses are compared with the responses triggered by the relevant questions. Theoretically, a truthful subject will show greater physiological responses to the control questions which he/she has reluctantly answered falsely, than to the relevant questions, which the subject can easily answer truthfully. Conversely, a deceptive subject will show greater physiological responses while giving false answers to relevant questions in comparison to the responses triggered by false answers to control questions. In other words, a guilty subject is more likely to be concerned with lying about the relevant facts as opposed to lying about other facts in general. An innocent subject will have no trouble in truthfully answering the relevant questions but will have trouble in giving false answers to control questions. The scoring of the tests is done by assigning a numerical value, positive or negative, to each response given by the subject. After accounting for all the numbers, the result is compared to a standard numerical value to indicate the overall level of deception. The net conclusion may indicate truth, deception or uncertainty.

13. The use of polygraph examinations in the criminal justice system has been contentious. In this case, we are mainly considered with situations when investigators seek reliance on these tests to detect deception or to verify the truth of previous testimonies. Furthermore, litigation related to polygraph tests has also involved situations where suspects and defendants in criminal cases have sought reliance on them to demonstrate their innocence. It is also conceivable that witnesses can be compelled to undergo polygraph tests in order to test the credibility of their testimonies or to question their mental capacity or to even attack their character.

14. Another controversial use of polygraph tests has been on victims of sexual offences for testing the veracity of their allegations. While several states in the U.S.A. have enacted provisions to prohibit such use, the text of the Laboratory Procedure Manual for Polygraph Examination [supra.] indicates that this is an acceptable use. In this regard, Para 3.4 (v) of the said Manual reads as follows:

(v) In cases of alleged sex offences such as intercourse with a female child, forcible rape, indecent liberties or perversion, it is important that the victim, as well as the accused, be made available for interview and polygraph examination. It is essential that the polygraph examiner get a first hand detailed statement from the victim, and the interview of the victim precede that of the suspect or witnesses….

[The following article includes a table which lists out the statutorily permissible uses of polygraph examination in the different state jurisdictions of the United States of America: Henry T. Greely and Judy Illes, ‘Neuroscience based lie- detection: The urgent need for regulation’, 33 American Journal of Law and Medicine, 377-421 (2007)]

15. The propriety of compelling the victims of sexual offences to undergo a polygraph examination certainly merits consideration in the present case. It must also be noted that in some jurisdictions polygraph tests have been permitted for the purpose of screening public employees, both at the stage of recruitment and at regular intervals during the service-period. In the U.S.A., the widespread acceptance of polygraph tests for checking the antecedents and monitoring the conduct of public employees has encouraged private employers to resort to the same. In fact the Employee Polygraph Protection Act, 1998 was designed to restrict their use for employee screening. This development must be noted because the unqualified acceptance of ‘Lie-detector tests’ in India’s criminal justice system could have the unintended consequence of encouraging their use by private parties.

16. Polygraph tests have several limitations and therefore a margin for errors. The premise behind these tests is questionable because the measured changes in physiological responses are not necessarily triggered by lying or deception. Instead, they could be triggered by nervousness, anxiety, fear, confusion or other emotions. Furthermore, the physical conditions in the polygraph examination room can also create distortions in the recorded responses. The test is best administered in comfortable surroundings where there are no potential distractions for the subject and complete privacy is maintained. The mental state of the subject is also vital since a person in a state of depression or hyperactivity is likely to offer highly disparate physiological responses which could mislead the examiner. In some cases the subject may have suffered from loss of memory in the intervening time-period between the relevant act and the conduct of the test. When the subject does not remember the facts in question, there will be no self-awareness of truth or deception and hence the recording of the physiological responses will not be helpful. Errors may also result from ‘memory-hardening’, i.e. a process by which the subject has created and consolidated false memories about a particular incident. This commonly occurs in respect of recollections of traumatic events and the subject may not be aware of the fact that he/she is lying.

17. The errors associated with polygraph tests are broadly grouped into two categories, i.e., ‘false positives’ and ‘false negatives’. A ‘false positive’ occurs when the results indicate that a person has been deceitful even though he/she answered truthfully. Conversely a ‘false negative’ occurs when a set of deceptive responses is reported as truthful. On account of such inherent complexities, the qualifications and competence of the polygraph examiner are of the utmost importance. The examiner needs to be thorough in preparing the questionnaire and must also have the expertise to account for extraneous conditions that could lead to erroneous inferences.

18. However, the biggest concern about polygraph tests is that an examiner may not be able to recognise deliberate attempts on part of the subject to manipulate the test results. Such ‘countermeasures’ are techniques which are deliberately used by the subject to create certain physiological responses in order to deceive the examiner. The intention is that by deliberately enhancing one’s reaction to the control questions, the examiner will incorrectly score the test in favour of truthfulness rather than deception. The most commonly used ‘countermeasures’ are those of creating a false sense of mental anxiety and stress at the time of the interview, so that the responses triggered by lying cannot be readily distinguished.

19. Since polygraph tests have come to be widely relied upon for employee screening in the U.S.A., the U.S. Department of Energy had requested the National Research Council of the National Academies (NRC) to review their use for different purposes. The following conclusion was stated in its report, i.e. The Polygraph and Lie-Detection: Committee to Review the scientific evidence on the Polygraph (Washington D.C.: National Academies Press, 2003) at pp. 212-213:

Polygraph Accuracy: Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy. The physiological responses measured by the polygraph are not uniquely related to deception. That is, the responses measured by the polygraph do not all reflect a single underlying process: a variety of psychological and physiological processes, including some that can be consciously controlled, can affect polygraph measures and test results. Moreover, most polygraph testing procedures allow for uncontrolled variation in test administration (e.g., creation of the emotional climate, selecting questions) that can be expected to result in variations in accuracy and that limit the level of accuracy that can be consistently achieved.

Theoretical Basis: The theoretical rationale for the polygraph is quite weak, especially in terms of differential fear, arousal, or other emotional states that are triggered in response to relevant or comparison questions. We have not found any serious effort at construct validation of polygraph testing.

Research Progress: Research on the polygraph has not progressed over time in the manner of a typical scientific field. It has not accumulated knowledge or strengthened its scientific underpinnings in any significant manner.

Polygraph research has proceeded in relative isolation from related fields of basic science and has benefited little from conceptual, theoretical, and technological advances in those fields that are relevant to the psychophysiological detection of deception.

Future Potential: The inherent ambiguity of the physiological measures used in the polygraph suggests that further investments in improving polygraph technique and interpretation will bring only modest improvements in accuracy.

20. A Working Party of the British Psychological Society (BPS) also came to a similar conclusion in a study published in 2004. The key finding is reproduced below, [Cited from: A Review of the current scientific status and fields of application of polygraph deception detection – Final Report (6 October, 2004) from The British Psychological Society (BPS) Working Party at p. 10]:

A polygraph is sometimes called a lie detector, but this term is misleading. A polygraph does not detect lies, but only arousal which is assumed to accompany telling a lie. Polygraph examiners have no other option than to measure deception in such an indirect way, as a pattern of physiological activity directly related to lying does not exist (Saxe, 1991). Three of the four most popular lie detection procedures using the polygraph (Relevant/Irrelevant Test, Control Question Test and Directed Lie Test, …) are built upon the premise that, while answering so-called ‘relevant’ questions, liars will be more aroused than while answering so-called ‘control’ questions, due to a fear of detection (fear of getting caught lying). This premise is somewhat naive as truth tellers may also be more aroused when answering the relevant questions, particularly: (i) when these relevant questions are emotion evoking questions (e.g. when an innocent man, suspected of murdering his beloved wife, is asked questions about his wife in a polygraph test, the memory of his late wife might re-awaken his strong feelings about her); and (ii) when the innocent examinee experiences fear, which may occur, for example, when the person is afraid that his or her honest answers will not be believed by the polygraph examiner. The other popular test (Guilty Knowledge Test, …) is built upon the premise that guilty examinees will be more aroused concerning certain information due to different orienting reactions, that is, they will show enhanced orienting responses when recognising crucial details of a crime. This premise has strong support in psychophysiological research (Fiedler, Schmidt & Stahl, 2002).

21. Coming to judicial precedents, a decision reported as Frye v. United States (1923) 54 App DC 46, dealt with a precursor to the polygraph which detected deception by measuring changes in systolic blood pressure. In that case the defendant was subjected to this test before the trial and his counsel had requested the court that the scientist who had conducted the same should be allowed to give expert testimony about the results. Both the trial court and the appellate court rejected the request for admitting such testimony. The appellate court identified the considerations that would govern the admissibility of expert testimony based on scientific insights. It was held, Id. at p. 47:

…Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well- recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.

We think the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.

22. The standard of ‘general acceptance in the particular field’ governed the admissibility of scientific evidence for several decades. It was changed much later by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc. 509 US 579 (1993). In that case the petitioners had instituted proceedings against a pharmaceutical company which had marketed ‘Bendectin’, a prescription drug. They had alleged that the ingestion of this drug by expecting mothers had caused birth defects in the children born to them. To contest these allegations, the pharmaceutical company had submitted an affidavit authored by an epidemiologist. The petitioners had also submitted expert opinion testimony in support of their contentions. The District Court had ruled in favour of the company by ruling that their scientific evidence met the standard of ‘general acceptance in the particular field’ whereas the expert opinion testimony produced on behalf of the petitioners did not meet the said standard. The Court of Appeals for the Ninth Circuit upheld the judgment and the case reached the U.S. Supreme Court which vacated the appellate court’s judgment and remanded the case back to the trial court. It was unanimously held that the ‘general acceptance’ standard articulated in Frye (supra.) had since been displaced by the enactment of the Federal Rules of Evidence in 1975, wherein Rule 702 governed the admissibility of expert opinion testimony that was based on scientific findings. This rule provided that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

23. It was held that the trial court should have evaluated the scientific evidence as per Rule 702 of the Federal Rules of Evidence which mandates an inquiry into the relevance as well as the reliability of the scientific technique in question. The majority opinion (Blackmun, J.) noted that the trial judge’s first step should be a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid and whether it can be properly applied to the facts in issue. Several other considerations will be applicable, such as:

• whether the theory or technique in question can be and has been tested

• whether it has been subjected to peer review and publication

• its known or potential error rate

• the existence and maintenance of standards controlling its operation

• whether it has attracted widespread acceptance within the scientific community

24. It was further observed that such an inquiry should be a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. It was reasoned that instead of the wholesale exclusion of scientific evidence on account of the high threshold of proving ‘general acceptance in the particular field’, the same could be admitted and then challenged through conventional methods such as cross-examination, presentation of contrary evidence and careful instructions to juries about the burden of proof. In this regard, the trial judge is expected to perform a ‘gate-keeping’ role to decide on the admission of expert testimony based on scientific techniques. It should also be kept in mind that Rule 403 of the Federal Rules of Evidence, 1975 empowers a trial judge to exclude any form of evidence if it is found that its probative value will be outweighed by its prejudicial effect.

25. Prior to the Daubert decision (supra.), most jurisdictions in the U.S.A. had disapproved of the use of polygraph tests in criminal cases. Some State jurisdictions had absolutely prohibited the admission of polygraph test results, while a few had allowed consideration of the same if certain conditions were met. These conditions included a prior stipulation between the parties to undergo these tests with procedural safeguards such as the involvement of experienced examiners, presence of counsel and proper recording to enable subsequent scrutiny. A dissonance had also emerged in the treatment of polygraph test results in the different Circuit jurisdictions, with some jurisdictions giving trial judges the discretion to enquire into the reliability of polygraph test results on a case-by-case basis.

26. For example, in United States v. Piccinonna 885 F.2d 1529 (11th Circ. 1989), it was noted that in some instances polygraphy satisfied the standard of ‘general acceptance in the particular field’ as required by Frye (supra.). It was held that polygraph testimony could be admissible under two situations, namely when the parties themselves agree on a stipulation to this effect or for the purpose of impeaching and corroborating the testimony of witnesses. It was clarified that polygraph examination results could not be directly used to bolster the testimony of a witness. However, they could be used to attack the credibility of a witness or even to rehabilitate one after his/her credibility has been attacked by the other side. Despite these observations, the trial court did not admit the polygraph results on remand in this particular case.

27. However, after Daubert (supra.) prescribed a more liberal criterion for determining the admissibility of scientific evidence, some Courts ruled that weightage could be given to polygraph results. For instance in United States v. Posado 57 F.3d 428 (5th Circ. 1995), the facts related to a pre-trial evidentiary hearing where the defendants had asked for the exclusion of forty-four kilograms of cocaine that had been recovered from their luggage at an airport. The District Court had refused to consider polygraph evidence given by the defendants in support of their version of events leading up to the seizure of the drugs and their arrest. On appeal, the Fifth Circuit Court held that the rationale for disregarding polygraph evidence did not survive the Daubert decision. The Court proceeded to remand the case to the trial court and directed that the admissibility of the polygraph results should be assessed as per the factors enumerated in Daubert (supra.). It was held, Id. at p. 434:

There can be no doubt that tremendous advances have been made in polygraph instrumentation and technique in the years since Frye. The test at issue in Frye measured only changes in the subject’s systolic blood pressure in response to test questions. [Frye v. United States …] Modern instrumentation detects changes in the subject’s blood pressure, pulse, thoracic and abdominal respiration, and galvanic skin response. Current research indicates that, when given under controlled conditions, the polygraph technique accurately predicts truth or deception between seventy and ninety percent of the time. Remaining controversy about test accuracy is almost unanimously attributed to variations in the integrity of the testing environment and the qualifications of the examiner. Such variation also exists in many of the disciplines and for much of the scientific evidence we routinely find admissible under Rule 702. [See McCormick on Evidence 206 at 915 & n. 57] Further, there is good indication that polygraph technique and the requirements for professional polygraphists are becoming progressively more standardized. In addition, polygraph technique has been and continues to be subjected to extensive study and publication. Finally, polygraph is now so widely used by employers and government agencies alike.

To iterate, we do not now hold that polygraph examinations are scientifically valid or that they will always assist the trier of fact, in this or any other individual case. We merely remove the obstacle of the per se rule against admissibility, which was based on antiquated concepts about the technical ability of the polygraph and legal precepts that have been expressly overruled by the Supreme Court.

(internal citations omitted)

28. Despite these favourable observations, the polygraph results were excluded by the District Court on remand. However, we have come across at least one case decided after Daubert (supra.) where a trial court had admitted expert opinion testimony about polygraph results. In United States v. Galbreth 908 F. Supp 877 (D.N.M. 1995), the District Court took note of New Mexico Rule of Evidence 11-707 which established standards for the admission of polygraph evidence. The said provision laid down that polygraph evidence would be admissible only when the following conditions are met: the examiner must have had at least 5 years experience in conducting polygraph tests and 20 hours of continuing education within the past year; the polygraph examination must be tape recorded in its entirety; the polygraph charts must be scored quantitatively in a manner generally accepted as reliable by polygraph experts; all polygraph materials must be provided to the opposing party at least 10 days before trial; and all polygraph examinations conducted on the subject must be disclosed. It was found that all of these requirements had been complied with in the facts at hand. The District Court concluded with these words, Id. at p. 896:

…the Court finds that the expert opinion testimony regarding the polygraph results of defendant Galbreth is admissible. However, because the evidentiary reliability of opinion testimony regarding the results of a particular polygraph test is dependent upon a properly conducted examination by a highly qualified, experienced and skilful examiner, nothing in this opinion is intended to reflect the judgment that polygraph results are per se admissible. Rather, in the context of the polygraph technique, trial courts must engage upon a case specific inquiry to determine the admissibility of such testimony.

29. We were also alerted to the decision in United States v. Cordoba, 104 F.3d 225 (9th. Circ. 1997). In that case, the Ninth Circuit Court concluded that the position favouring absolute exclusion of unstipulated polygraph evidence had effectively been overruled in Daubert (supra.). The defendant had been convicted for the possession and distribution of cocaine since the drugs had been recovered from a van which he had been driving. However, when he took an unstipulated polygraph test, the results suggested that he was not aware of the presence of drugs in the van. At the trial stage, the prosecution had moved to suppress the test results and the District Court had accordingly excluded the polygraph evidence. However, the Ninth Circuit Court remanded the case back after finding that the trial judge should have adopted the parameters enumerated in Daubert (supra.) to decide on the admissibility of the polygraph test results. It was observed, Id. at p. 228:

With this holding, we are not expressing new enthusiasm for admission of unstipulated polygraph evidence. The inherent problematic nature of such evidence remains. As we noted in Brown, polygraph evidence has grave potential for interfering with the deliberative process. [Brown v. Darcy 783 F.2d 1389 (9th Circ. 1986) at 1396-1397] However, these matters are for determination by the trial judge who must not only evaluate the evidence under Rule 702, but consider admission under Rule 403. Thus, we adopt the view of Judge Jameson’s dissent in Brown that these are matters which must be left to the sound discretion of the trial court, consistent with Daubert standards.

30. The decisions cited above had led to some uncertainty about the admissibility of polygraph test results. However, this uncertainty was laid to rest by an authoritative ruling of the U.S. Supreme Court in United States v. Scheffer 523 US 303 (1998). In that case, an eight judge majority decided that Military Rule of Evidence 707 (which made polygraph results inadmissible in court-martial proceedings) did not violate an accused person’s Sixth Amendment right to present a defence. The relevant part of the provision follows:

(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence.

31. The facts were that Scheffer, a U.S. Air Force serviceman had faced court-martial proceedings because a routine urinalysis showed that he had consumed methamphetamines. However, a polygraph test suggested that he had been truthful in denying the intentional consumption of the drugs. His defence of ‘innocent ingestion’ was not accepted during the court-martial proceedings and the polygraph results were not admitted in evidence. The Air Force Court of Criminal Appeals affirmed the decision given in the court-martial proceedings but the Court of Appeals for the Armed Forces reversed the same by holding that an absolute exclusion of polygraph evidence (offered to rebut an attack on the credibility of the accused) would violate Scheffer’s Sixth Amendment right to present a defence. Hence, the matter reached the Supreme Court which decided that the exclusion of polygraph evidence did not violate the said constitutional right.

32. Eight judges agreed that testimony about polygraph test results should not be admissible on account of the inherent unreliability of the results obtained. Four judges agreed that reliance on polygraph results would displace the fact-finding role of the jury and lead to collateral litigation. In the words of Clarence Thomas, J., Id. at p. 309:

Rule 707 serves several legitimate interests in the criminal trial process. These interests include ensuring that only reliable evidence is introduced at trial, preserving the jury’s role in determining credibility, and avoiding litigation that is collateral to the primary purpose of the trial. The rule is neither arbitrary nor disproportionate in promoting these ends. Nor does it implicate a sufficiently weighty interest of the defendant to raise a constitutional concern under our precedents.

33. On the issue of reliability, the Court took note of some Circuit Court decisions which had permitted trial courts to consider polygraph results in accordance with the Daubert factors. However, the following stance was adopted, Id. at p. 312:

…Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner’s conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams. Individual jurisdictions therefore may reasonably reach differing conclusions as to whether polygraph evidence should be admitted. We cannot say, then, that presented with such widespread uncertainty, the President acted arbitrarily or disproportionately in promulgating a per se rule excluding all polygraph evidence.

34. Since a trial by jury is an essential feature of the criminal justice system in the U.S.A., concerns were expressed about preserving the jury’s core function of determining the credibility of testimony. It was observed, Id. at p. 314:

…Unlike other expert witnesses who testify about factual matters outside the jurors’ knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion, in addition to its own, about whether the witness was telling the truth. Jurisdictions, in promulgating rules of evidence, may legitimately be concerned about the risk that juries will give excessive weight to the opinions of a polygrapher, clothed as they are in scientific expertise and at times offering, as in respondent’s case, a conclusion about the ultimate issue in the trial. Such jurisdictions may legitimately determine that the aura of infallibility attending polygraph evidence can lead jurors to abandon their duty to assess credibility and guilt….

35. On the issue of encouraging litigation that is collateral to the primary purpose of a trial, it was held, Id. at p. 314:

…Allowing proffers of polygraph evidence would inevitably entail assessments of such issues as whether the test and control questions were appropriate, whether a particular polygraph examiner was qualified and had properly interpreted the physiological responses, and whether other factors such as countermeasures employed by the examinee had distorted the exam results. Such assessments would be required in each and every case. It thus offends no constitutional principle for the President to conclude that a per se rule excluding all polygraph evidence is appropriate. Because litigation over the admissibility of polygraph evidence is by its very nature collateral, a per se rule prohibiting its admission is not an arbitrary or disproportionate means of avoiding it.

36. In the same case, Kennedy, J. filed an opinion which was joined by four judges. While there was agreement on the questionable reliability of polygraph results, a different stand was taken on the issues pertaining to the role of the jury and the concerns about collateral litigation. It was observed that the inherent reliability of the test results is a sufficient ground to exclude the polygraph test results and expert testimony related to them. Stevens, J. filed a dissenting opinion in this case.

37. We have also come across a decision of the Canadian Supreme Court in R v. Beland [1987] 36 C.C.C. (3d) 481. In that case the respondents had been charged with conspiracy to commit robbery. During their trial, one of their accomplices had given testimony which directly implicated them. The respondents contested this testimony and after the completion of the evidentiary phase of the trial, they moved an application to re-open their defence while seeking permission for each of them to undergo a polygraph examination and produce the results in evidence. The trial judge denied this motion and the respondents were convicted. However, the appellate court allowed their appeal from conviction and granted an order to re-open the trial and directed that the polygraph results be considered. On further appeal, the Supreme Court of Canada held that the results of a polygraph examination are not admissible as evidence. The majority opinion explained that the admission of polygraph test results would offend some well established rules of evidence. It examined the ‘rule against oath-helping’ which prohibits a party from presenting evidence solely for the purpose of bolstering the credibility of a witness. Consideration was also given to the ‘rule against admission of past or out-of-court statements by a witness’ as well as the restrictions on producing ‘character evidence’. The discussion also concluded that polygraph evidence is inadmissible as ‘expert evidence’.

38. With regard to the ‘rule against admission of past or out- of-court statements by a witness’, McIntyre, J. observed (in Para. 11):

…In my view, the rule against admission of consistent out-of-court statements is soundly based and particularly apposite to questions raised in connection with the use of the polygraph. Polygraph evidence when tendered would be entirely self-serving and would shed no light on the real issues before the court. Assuming, as in the case at bar, that the evidence sought to be adduced would not fall within any of the well recognized exceptions to the operation of the rule – where it is permitted to rebut the allegation of a recent fabrication or to show physical, mental or emotional condition – it should be rejected. To do otherwise is to open the trial process to the time-consuming and confusing consideration of collateral issues and to deflect the focus of the proceedings from their fundamental issue of guilt or innocence. This view is summarized by D.W. Elliott in ‘Lie-Detector Evidence: Lessons from the American Experience’ in Well and Truly Tried (Law Book Co., 1982), at pp. 129-30:

A defendant who attempts to put in the results of a test showing this truthfulness on the matters in issue is bound to fall foul of the rule against self- serving statements or, as it is sometimes called, the rule that a party cannot manufacture evidence for himself, and the falling foul will not be in any mere technical sense. The rule is sometimes applied in a mechanical unintelligent way to exclude evidence about which no realistic objection could be raised, as the leading case, Gillie v. Posho shows; but striking down defence polygraph evidence on this ground would be no mere technical reflex action of legal obscurantists. The policy behind the doctrine is a fundamental one, and defence polygraph evidence usually offends it fundamentally. As some judges have pointed out, only those defendants who successfully take examinations are likely to want the results admitted. There is no compulsion to put in the first test results obtained. A defendant can take the test many times, if necessary “examiner- shopping”, until he gets a result which suits him. Even stipulated tests are not free of this taint, because of course his lawyers will advise him to have several secret trial runs before the prosecution is approached. If nothing else, the dry runs will habituate him to the process and to the expected relevant questions.

39. On the possibility of using polygraph test results as character evidence, it was observed (Para. 14):

…What is the consequence of this rule in relation to polygraph evidence? Where such evidence is sought to be introduced it is the operator who would be called as the witness and it is clear, of course, that the purpose of his evidence would be to bolster the credibility of the accused and, in effect, to show him to be of good character by inviting the inference that he did not lie during the test. In other words, it is evidence not of general reputation but of a specific incident and its admission would be precluded under the rule. It would follow, then, that the introduction of evidence of the polygraph tests would violate the character evidence rule.

40. Mcintyre, J. offered the following conclusions (at Paras. 18, 19 and 20):

18. In conclusion, it is my opinion, based upon a consideration of rules of evidence long established and applied in our courts, that the polygraph has no place in the judicial process where it is employed as a tool to determine or to test the credibility of witnesses. It is frequently argued that the polygraph represents an application of modern scientific knowledge and experience to the task of determining the veracity of human utterances. It is said that the courts should welcome this device and not cling to the imperfect methods of the past in such an important task. This argument has a superficial appeal, but, in my view, it cannot prevail in the face of realities of court procedures.

19. I would say at once that this view is not based on a fear of the inaccuracies of the polygraph. On that question we were not supplied with sufficient evidence to reach a conclusion. However, it may be said that even the finding of a significant percentage of errors in its results would not, by itself, be sufficient ground to exclude it as an instrument for use in the courts. Error is inherent in human affairs, scientific or unscientific. It exists within our established court procedures and must always be guarded against. The compelling reason, in my view, for the exclusion of the evidence of polygraph results in judicial proceedings is two-fold. First, the admission of polygraph evidence would run counter to the well established rules of evidence which have been referred to. Second, while there is no reason why the rules of evidence should not be modified where improvement will result, it is my view that the admission of polygraph evidence will serve no purpose which is not already served. It will disrupt proceedings, cause delays, and lead to numerous complications which will result in no greater degree of certainty in the process than that which already exists.

20. Since litigation replaced trial by combat, the determination of fact, including the veracity of parties and their witnesses, has been the duty of judges or juries upon an evaluation of the statements of witnesses. This approach has led to the development of a body of rules relating to the giving and reception of evidence and we have developed methods which have served well and have gained a wide measure of approval. They have facilitated the orderly conduct of judicial proceedings and are designed to keep the focus of the proceedings on the principal issue, in a criminal case, the guilt or innocence of the accused. What would be served by the introduction of evidence of polygraph readings into the judicial process? To begin with, it must be remembered that however scientific it may be, its use in court depends on the human intervention of the operator. Whatever results are recorded by the polygraph instrument, their nature and significance reach the trier of fact through the mouth of the operator. Human fallibility is therefore present as before, but now it may be said to be fortified with the mystique of science….

Narcoanalysis technique

41. This test involves the intravenous administration of a drug that causes the subject to enter into a hypnotic trance and become less inhibited. The drug-induced hypnotic stage is useful for investigators since it makes the subject more likely to divulge information. The drug used for this test is sodium pentothal, higher quantities of which are routinely used for inducing general anaesthesia in surgical procedures. This drug is also used in the field of psychiatry since the revelations can enable the diagnosis of mental disorders. However, we have to decide on the permissibility of resorting to this technique during a criminal investigation, despite its’ established uses in the medical field. The use of ‘truth-serums’ and hypnosis is not a recent development. Earlier versions of the narcoanalysis technique utilised substances such as scopolamine and sodium amytal. The following extracts from an article trace the evolution of this technique, [Cited from: C.W. Muehlberger, ‘Interrogation under Drug-influence: The so-called Truth serum technique’, 42(4) The Journal of Criminal Law, Criminology and Police Science 513-528 (Nov- Dec. 1951) at pp. 513-514]:

With the advent of anaesthesia about a century ago, it was observed that during the induction period and particularly during the recovery interval, patients were prone to make extremely naove remarks about personal matters, which, in their normal state, would never have revealed.

Probably the earliest direct attempt to utilize this phenomenon in criminal interrogation stemmed from observations of a mild type of anaesthesia commonly used in obstetrical practice during the period of about 1903-1915 and known as ‘Twilight sleep’. This anaesthesia was obtained by hypodermic injection of solutions of morphine and scopolamine (also called ‘hyoscine’) followed by intermittent chloroform inhalations if needed. The pain relieving qualities of morphine are well known. Scopolamine appears to have the added property of blocking out memories of recent events. By the combination of these drugs in suitable dosage, morphine dulled labor pains without materially interfering with the muscular contractions of labor, while scopolamine wiped out subsequent memories of the delivery room ordeal. The technique was widely used in Europe but soon fell into disrepute among obstetricians of this country, largely due to overdosage.

During the period of extensive use of ‘twilight sleep’ it was a common experience that women who were under drug influence, were extremely candid and uninhibited in their statements. They often made remarks which obviously would never have been uttered when in their normal state. Dr. Robert E. House, an observant physician practising in Ferris, Texas, believed that a drug combination which was so effective in the removal of ordinary restraints and which produced such utter candor, might be of value in obtaining factual information from persons who were thought to be lying. Dr. House’s first paper presented in 1922 suggested drug administration quite similar to the standard ‘twilight sleep’ procedure: an initial dose of grain of morphine sulphate together with 1/100 grain of scopolamine hydrobromide, followed at 20-30 minute intervals with smaller (1/200 – 1/400 grain) doses of scopolamine and periods of light chloroform anaesthesia. Subjects were questioned as they recovered from the light chloroform anaesthesia and gave answers which subsequently proved to be true. Altogether, Dr. House reported about half-a-dozen cases, several of which were instrumental in securing the release of convicts from State prisons, he also observed that, after returning to their normal state, these subjects had little or no recollection of what had transpired during the period of interrogation. They could not remember what questions had been asked, nor by whom; neither could they recall any answers which they had made.

42. The use of the ‘Scopolamine’ technique led to the coining of the expression ‘truth serum’. With the passage of time, injections of sodium amytal came to be used for inducing subjects to talk freely, primarily in the field of psychiatry. The author cited above has further observed, Id. at p. 522:

During World War II, this general technique of delving into a subject’s inner consciousness through the instrumentality of narcotic drugs was widely used in the treatment of war neuroses (sometimes called ‘Battle shock’ or ‘shell shock’). Fighting men who had been through terrifically disturbing experiences often times developed symptoms of amnesia, mental withdrawal, negativity, paralyses, or many other mental, nervous, and physical derangements. In most instances, these patients refused to talk about the experiences which gave rise to the difficulty, and psychiatrists were at a loss to discover the crux of the problem. To intelligently counteract such a force, it was first necessary to identify it. Thus, the use of sedative drugs, first to analyze the source of disturbance (narcoanalysis) and later to obtain the proper frame of mind in which the patient could and would ‘talk out’ his difficulties, and, as they say ‘get them off his chest’ – and thus relieve himself (narco-synthesis or narco-therapy) – was employed with signal success.

In the narcoanalysis of war neuroses a very light narcosis is most desirable. With small doses of injectable barbiturates (sodium amytal or sodium pentothal) or with light inhalations of nitrous oxide or somnoform, the subject pours out his pent-up emotions without much prodding by the interrogator.

43. It has been shown that the Central Investigation Agency (C.I.A.) in the U.S.A. had conducted research on the use of sodium pentothal for aiding interrogations in intelligence and counter-terrorism operations, as early as the 1950’s [See ‘Project MKULTRA – The CIA’s program of research in behavioral modification’, On file with Schaffer Library of Drug Policy, Text available from ]. In recent years, the debate over the use of ‘truth-serums’ has been revived with demands for their use on persons suspected of involvement in terrorist activities. Coming to the test procedure, when the drug (sodium pentothal) is administered intravenously, the subject ordinarily descends into anaesthesia in four stages, namely:

(i) Awake stage

(ii) Hypnotic stage

(iii) Sedative stage

(iv) Anaesthetic stage

44. A relatively lighter dose of sodium pentothal is injected to induce the ‘hypnotic stage’ and the questioning is conducted during the same. The hypnotic stage is maintained for the required period by controlling the rate of administration of the drug. As per the materials submitted before us, the behaviour exhibited by the subject during this stage has certain specific characteristics, namely:

• It facilitates handling of negative emotional responses (i.e. guilt, avoidance, aggression, frustration, non-responsiveness etc.) in a positive manner.

• It helps in rapid exploration and identification of underlying conflicts in the subject’s mind and unresolved feelings about past events.

• It induces the subject to divulge information which would usually not be revealed in conscious awareness and it is difficult for the person to lie at this stage

• The reversal from this stage occurs immediately when the administration of the drug is discontinued.

[Refer: Laboratory Procedure Manual – Forensic Narco-Analysis (Directorate of Forensic Science, Ministry of Home Affairs, Government of India, New Delhi – 2005); Also see John M. Macdonald, ‘Truth Serum’, 46(2) The Journal of Criminal Law, Criminology and Police Science 259-263 (Jul.-Aug. 1955)]

45. The personnel involved in conducting a ‘narcoanalysis’ interview include a forensic psychologist, an anaesthesiologist, a psychiatrist, a general physician or other medical staff and a language interpreter if needed. Additionally a videographer is required to create video-recordings of the test for subsequent scrutiny. In India, this technique has been administered either inside forensic science laboratories or in the operation theatres of recognised hospitals. While a psychiatrist and general physician perform the preliminary function of gauging whether the subject is mentally and physically fit to undergo the test, the anaesthesiologist supervises the intravenous administration of the drug. It is the forensic psychologist who actually conducts the questioning. Since the tests are meant to aid investigation efforts, the forensic psychologist needs to closely co-operate with the investigators in order to frame appropriate questions.

46. This technique can serve several ends. The revelations could help investigators to uncover vital evidence or to corroborate pre-existing testimonies and prosecution theories. Narcoanalysis tests have also been used to detect ‘malingering’ (faking of amnesia). The premise is that during the ‘hypnotic stage’ the subject is unable to wilfully suppress the memories associated with the relevant facts. Thus, it has been urged that drug-induced revelations can help to narrow down investigation efforts, thereby saving public resources. There is of course a very real possibility that information extracted through such interviews can lead to the uncovering of independent evidence which may be relevant. Hence, we must consider the implications of such derivative use of the drug- induced revelations, even if such revelations are not admissible as evidence. We must also account for the uses of this technique by persons other than investigators and prosecutors. Narcoanalysis tests could be requested by defendants who want to prove their innocence. Demands for this test could also be made for purposes such as gauging the credibility of testimony, to refresh the memory of witnesses or to ascertain the mental capacity of persons to stand trial. Such uses can have a direct impact on the efficiency of investigations as well as the fairness of criminal trials. [See generally: George H. Dession, Lawrence Z. Freedman, Richard C. Donnelly and Frederick G. Redlich, ‘Drug-Induced revelation and criminal investigation’, 62 Yale Law Journal 315-347 (February 1953)]

47. It is also important to be aware of the limitations of the ‘narcoanalysis’ technique. It does not have an absolute success rate and there is always the possibility that the subject will not reveal any relevant information. Some studies have shown that most of the drug-induced revelations are not related to the relevant facts and they are more likely to be in the nature of inconsequential information about the subjects’ personal lives. It takes great skill on part of the interrogators to extract and identify information which could eventually prove to be useful. While some persons are able to retain their ability to deceive even in the hypnotic state, others can become extremely suggestible to questioning. This is especially worrying, since investigators who are under pressure to deliver results could frame questions in a manner that prompts incriminatory responses. Subjects could also concoct fanciful stories in the course of the ‘hypnotic stage’. Since the responses of different individuals are bound to vary, there is no uniform criteria for evaluating the efficacy of the ‘narcoanalysis’ technique.

48. In an article published in 1951, C.W. Muehlberger (supra.) had described a French case which attracted controversy in 1948. Raymond Cens, who had been accused of being a Nazi collaborator, appeared to have suffered an apoplectic stroke which also caused memory loss. The French Court trying the case had authorised a board of psychiatrists to conduct an examination for ascertaining the defendant’s amnesia. The narcoanalysis technique was used in the course of the examination and the defendant did not object to the same. However, the test results showed that the subject’s memory was not impaired and that he had been faking amnesia. At the trial, testimony about these findings was admitted, thereby leading to a conviction. Subsequently, Raymond Cens filed a civil suit against the psychiatrists alleging assault and illegal search. However, it was decided that the board had used routine psychiatric procedures and since the actual physical damage to the defendant was nominal, the psychiatrists were acquitted. At the time, this case created quite a stir and the Council of the Paris Bar Association had passed a resolution against the use of drugs during interrogation. [Refer C.W. Muehlberger (1951) at p. 527; The Raymond Cens case has also been discussed in the following article: J.P. Gagnieur, ‘The Judicial use of Psychonarcosis in France’, 40(3) Journal of Criminal Law and Criminology 370-380 (Sept.-Oct. 1949)]

49. An article published in 1961 [Andre A. Moenssens, ‘Narcoanalysis in Law Enforcement’, 52(4) The Journal of Criminal Law, Criminology and Police Science 453-458 (Nov.- Dec. 1961)] had surveyed some judicial precedents from the U.S.A. which dealt with the forensic uses of the narcoanalysis technique. The first reference is to a decision from the State of Missouri reported as State v. Hudson 314 Mo. 599 (1926). In that case, the defence lawyer in a prosecution for rape attempted to rely on the expert testimony of a doctor. The doctor in turn declared that he had questioned the defendant after injecting a truth-serum and the defendant had denied his guilt while in a drug-induced state. The trial court had refused to admit the doctor’s testimony by finding it to be completely unreliable from a scientific viewpoint. The appellate court upheld the finding and made the following observation, Id. at p. 602:

Testimony of this character – barring the sufficient fact that it cannot be classified otherwise than a self-serving declaration – is, in the present state of human knowledge, unworthy of serious consideration. We are not told from what well this serum is drawn or in what alembic its alleged truth compelling powers are distilled. Its origin is as nebulous as its effect is uncertain….

50. In State v. Lindemuth 56 N.M. 237 (1952) the testimony of a psychiatrist was not admitted when he wanted to show that the answers given by a defendant while under the influence of sodium pentothal supported the defendant’s plea of innocence in a murder case. The trial court’s refusal to admit such testimony was endorsed by the appellate court, and it was noted, Id. at p. 243:

Until the use of the drug as a means of procuring the truth from people under its influence is accorded general scientific recognition, we are unwilling to enlarge the already immense field where medical experts, apparently equally qualified, express such diametrically opposed views on the same facts and conditions, to the despair of the court reporter and the bewilderment of the fact- finder.

51. However, Andre Moenssens (1961) also took note of a case which appeared to endorse an opposing view. In People v. Jones 42 Cal. 2d 219 (1954), the trial court overruled the prosecution’s objection to the introduction of a psychiatrist’s testimony on behalf of the defendant. The psychiatrist had conducted several tests on the defendant which included a sodium pentothal induced interview. The Court found that this was not sufficient to exclude the psychiatrist’s testimony in its entirety. It was observed that even though the truth of statements revealed under narcoanalysis remains uncertain, the results of the same could be clearly distinguished from the psychiatrist’s overall conclusions which were based on the results of all the tests considered together.

52. At the federal level, the U.S. Court of Appeals for the Ninth Circuit dealt with a similar issue in Lindsey v. United States 237 F. 2d 893 (9th Circ. 1956). In that case, the trial court had admitted a psychiatrist’s opinion testimony which was based on a clinical examination that included psychological tests and a sodium pentothal induced interview. The subject of the interview was a fifteen-year old girl who had been sexually assaulted and had subsequently testified in a prosecution for rape. On cross-examination, the credibility of the victim’s testimony had been doubted and in an attempt to rebut the same, the prosecution had called on the psychiatrist. On the basis of the results of the clinical examination, the psychiatrist offered his professional opinion that the victim had been telling the truth when she had repeated the charges that were previously made to the police. This testimony was admitted as a prior consistent statement to rehabilitate the witness but not considered as substantive evidence. Furthermore, a tape recording of the psychiatrist’s interview with the girl, while she was under narcosis, was also considered as evidence. The jury went on to record a finding of guilt. When the case was brought in appeal before the Ninth Circuit Court, the conviction was reversed on the ground that the defendant had been denied the ‘due process of law’. It was held that before a prior consistent statement made under the influence of a sodium pentothal injection could be admitted as evidence, it should be scientifically established that the test is absolutely accurate and reliable in all cases. Although the value of the test in psychiatric examinations was recognised, it was pointed out that the reliability of sodium pentothal tests had not been sufficiently established to warrant admission of its results in evidence. It was stated that “Scientific tests reveal that people thus prompted to speak freely do not always tell the truth”. [Cited from Andre A. Moenssens (1961) at pp. 455- 456]

53. In Lawrence M. Dugan v. Commonwealth of Kentucky 333 S.W.2d. 755 (1960), the defendant had been given a truth serum test by a psychiatrist employed by him. The trial court refused to admit the psychiatrist’s testimony which supported the truthfulness of the defendant’s statement. The defendant had pleaded innocence by saying that a shooting which had resulted in the death of another person had been an accident. The trial court’s decision was affirmed on appeal and is was reasoned that no court of last resort has recognised the admissibility of the results of truth serum tests, the principal ground being that such tests have not attained sufficient recognition of dependability and reliability.

54. The U.S. Supreme Court has also disapproved of the forensic uses of truth-inducing drugs in Townsend v. Sain 372 US 293 (1963). In that case a heroin addict was arrested on the suspicion of having committed robbery and murder. While in custody he began to show severe withdrawal symptoms, following which the police officials obtained the services of a physician. In order to treat these withdrawal symptoms, the physician injected a combined dosage of 1/8 grain of Phenobarbital and 1/230 grain of Hyoscine. Hyoscine is the same as ‘Scopolamine’ which has been described earlier. This dosage appeared to have a calming effect on Townsend and after the physician’s departure he promptly responded to questioning by the police and eventually made some confessional statements. The petitioner’s statements were duly recorded by a court reporter. The next day he was taken to the office of the prosecutor where he signed the transcriptions of the statements made by him on the previous day. [The facts of this case have also been discussed in: Charles E. Sheedy, ‘Narcointerrogation of a Criminal Suspect’, 50(2) The Journal of Criminal Law, Criminology and Police Science 118-123 (July- Aug 1959) at pp. 118-119]

55. When the case came up for trial, the counsel for the petitioner brought a motion to exclude the transcripts of the statements from the evidence. However, the trial judge denied this motion and admitted the court reporter’s transcription of the confessional statements into evidence. Subsequently, a jury found Townsend to be guilty, thereby leading to his conviction. When the petitioner made a habeas corpus application before a Federal District Court, one of the main arguments advanced was that the fact of Scopolamine’s character as a truth-serum had not been brought out at the time of the motion to suppress the statements or even at the trial before the State Court. The Federal District Court denied the habeas corpus petition without a plenary evidentiary hearing, and this decision was affirmed by the Court of Appeals. Hence, the matter came before the U.S. Supreme Court. In an opinion authored by Earl Warren, C.J. the Supreme Court held that the Federal District Court had erred in denying a writ of habeas corpus without giving a plenary evidentiary hearing to examine the voluntariness of the confessional statements. Both the majority opinion as well as the dissenting opinion (Stewart, J.) concurred on the finding that a confession induced by the administration of drugs is constitutionally inadmissible in a criminal trial. On this issue, Warren, C.J. observed, 372 US 293 (1963), at pp. 307-308:

Numerous decisions of this Court have established the standards governing the admissibility of confessions into evidence. If an individual’s ‘will was overborne’ or if his confession was not ‘the product of a rational intellect and a free will’, his confession is inadmissible because coerced. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement. It is difficult to imagine a situation in which a confession would be less the product of a free intellect, less voluntary, than when brought about by a drug having the effect of a ‘truth serum’. It is not significant that the drug may have been administered and the questions asked by persons unfamiliar with hyoscine’s properties as a ‘truth serum’, if these properties exist. Any questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible.

(internal citations omitted)

56. In United States v. Swanson 572 F.2d 523 (5th Circ. 1978), two individuals had been convicted for conspiracy and extortion through the acts of sending threatening letters. At the trial stage, one of the defendants testified that he suffered from amnesia and therefore he could not recall his alleged acts of telephoning the co-defendant and mailing threatening letters. In order to prove such amnesia his counsel sought the admission of a taped interview between the defendant and a psychiatrist which had been conducted while the defendant was under the influence of sodium amytal. The drug-induced statements supposedly showed that the scheme was a joke or a prank. The trial court refused to admit the contents of this sodium amytal induced interview and the Fifth Circuit Court upheld this decision. In holding the same, it was also observed, Id. at p. 528:

…Moreover, no drug-induced recall of past events which the subject is otherwise unable to recall is any more reliable than the procedure for inducing recall. Here both psychiatrists testified that sodium amytal does not ensure truthful statements. No re-creation or recall, by photograph, demonstration, drug-stimulated recall, or otherwise, would be admissible with so tenuous a predicate.

57. A decision given by the Ninth Circuit Court in United States v. Solomon 753 F. 2d 1522 (9th Circ. 1985), has been cited by the respondents to support the forensic uses of the narcoanalysis technique. However, a perusal of that judgment shows that neither the actual statements made during narcoanalysis interviews nor the expert testimony relating to the same were given any weightage. The facts were that three individuals, namely Solomon, Wesley and George (a minor at the time of the crime) were accused of having committed robbery and murder by arson. After their arrest, they had changed their statements about the events relating to the alleged offences. Subsequently, Wesley gave his consent for a sodium amytal induced interview and the same was administered by a psychiatrist named Dr. Montgomery. The same psychiatrist also conducted a sodium amytal interview with George, at the request of the investigators.

58. At the trial stage, George gave testimony which proved to be incriminatory for Solomon and Wesley. However, the statements made by Wesley during the narcoanalysis interview were not admitted as evidence and even the expert testimony about the same was excluded. On appeal, the Ninth Circuit Court held that there had been no abuse of discretion by the trial court in considering the evidence before it. Solomon and Wesley had contended that the trial court should have excluded the testimony given by George before the trial judge, since the same was based on the results of the sodium amytal interview and was hence unreliable. The Court drew a distinction between the statements made during the narcoanalysis interview and the subsequent statements made before the trial court. It was observed that it was open to the defendants to show that George’s testimony during trial had been bolstered by the previous revelations made during the narcoanalysis interview. However, the connection between the drug-induced revelations and the testimony given before the trial court could not be presumed. It was further noted, Id. at p. 1525:

The only Ninth Circuit case addressing narcoanalysis excluded a recording of and psychiatric testimony supporting an interview conducted under the influence of sodium pentothal, a precursor of sodium amytal. [Lindsey v. United States 237 F.2d 893 (9th Cir. 1956) …] The case at bar is distinguishable because no testimony concerning the narcoanalysis was offered at trial. Only George’s current recollection of events was presented.

In an analogous situation, this circuit has held that the current recollections of witnesses whose memories have been refreshed by hypnosis are admissible, with the fact of hypnosis relevant to credibility only [United States v. Adams 581 F.2d 193, 198-199 (9th Cir. 1978) …], cert. denied. We have cautioned, however, that “great care must be exercised to insure” that statements after hypnosis are not the product of hypnotic suggestion. Id.

We find no abuse of discretion in the trial court’s ruling to admit the testimony of the witness George. The court’s order denying Solomon’s Motion to Suppress reflects a careful balancing of reliability against prejudicial dangers:

59. However, Wesley wanted to introduce expert testimony by Dr. Montgomery which would explain the effects of sodium amytal as well as the statements made during his own drug-induced interview. The intent was to rehabilitate Wesley’s credibility after the prosecution had impeached it with an earlier confession. The trial court had held that even though narcoanalysis was not reliable enough to admit into evidence, Dr. Montgomery could testify about the statements made to him by Wesley, however without an explanation of the circumstances. On this issue, the Ninth Circuit Court referred to the Frye standard for the admissibility of scientific evidence. It was also noted that the trial court had the discretion to draw the necessary balance between the probative value of the evidence and its prejudicial effect. It again took note of the decision in Lindsey v. United States 237 F. 2d 893 (1956), where the admission of a tape recording of a narcoanalysis interview along with an expert’s explanation of the technique was held to be a prejudicial error. The following conclusion was stated, 753 F.2d 1522, at p. 1526:

Dr. Montgomery testified also that narcoanalysis is useful as a source of information that can be valuable if verified through other sources. At one point he testified that it would elicit an accurate statement of subjective memory, but later said that the subject could fabricate memories. He refused to agree that the subject would be more likely to tell the truth under narcoanalysis than if not so treated.

Wesley wanted to use the psychiatric testimony to bolster the credibility of his trial testimony that George started the fatal fire. Wesley’s statement shortly after the fire was that he himself set the fire. The probative value of the statement while under narcoanalysis that George was responsible, was the drug’s tendency to induce truthful statements.

Montgomery admitted that narcoanalysis does not reliably induce truthful statements. The judge’s exclusion of the evidence concerning narcoanalysis was not an abuse of discretion. The prejudicial effect of an aura of scientific respectability outweighed the slight probative value of the evidence.

60. In State of New Jersey v. Daryll Pitts 56 A.2d 1320 (N.J. 1989), the trial court had refused to admit a part of a psychiatrist’s testimony which was based on the results of the defendant’s sodium-amytal induced interview. The defendant had been charged with murder and had sought reliance on the testimony to show his unstable state of mind at the time of the homicides. Reliance on the psychiatrist’s testimony was requested during the sentencing phase of the trial in order to show a mitigating factor. On appeal, the Supreme Court of New Jersey upheld the trial court’s decision to exclude that part of the testimony which was derived from the results of the sodium-amytal interview. Reference was made to the Frye standard while observing that “in determining the admissibility of evidence derived from scientific procedures, a court must first ascertain the extent to which the reliability of such procedures has attained general acceptance within the relevant scientific community.” (Id. at p. 1344) Furthermore, the expert witnesses who had appeared at the trial had given conflicting accounts about the utility of a sodium-amytal induced interview for ascertaining the mental state of a subject with regard to past events. It was stated, Id. at p. 1348:

On the two occasions that this Court has considered the questions, we have concluded, based on the then-existing state of scientific knowledge, that testimony derived from a sodium-amytal induced interview is inadmissible to prove the truth of the facts asserted. [See State v. Levitt 36 N.J. 266, 275 (1961)…; State v. Sinnott …132 A.2d 298 (1957)] Our rule is consistent with the views expressed by other courts that have addressed the issue.

…The expert testimony adduced at the Rule 8 hearing indicated that the scientific community continues to view testimony induced by sodium amytal as unreliable to ascertain truth. Thus, the trial court’s ruling excluding Dr. Sadoff’s testimony in the guilt phase was consistent with our precedents, with the weight of authority throughout the country, and also with contemporary scientific knowledge as reflected by the expert testimony….

(internal citations omitted)

61. Since a person subjected to the narcoanalysis technique is in a half-conscious state and loses awareness of time and place, this condition can be compared to that of a person who is in a hypnotic state. In Horvath v. R [1979] 44 C.C.C. (2d) 385, the Supreme Court of Canada held that statements made in a hypnotic state were not voluntary and hence they cannot be admitted as evidence. It was also decided that if the post- hypnotic statements relate back to the contents of what was said during the hypnotic state, the subsequent statements would be inadmissible. In that case a 17 year old boy suspected for the murder of his mother had been questioned by a police officer who had training in the use of hypnotic methods. During the deliberate interruptions in the interrogation sessions, the boy had fallen into a mild hypnotic state and had eventually confessed to the commission of the murder. He later repeated the admissions before the investigating officers and signed a confessional statement. The trial judge had found all of these statements to be inadmissible, thereby leading to an acquittal. The Court of Appeal had reversed this decision, and hence an appeal was made before the Supreme Court.

62. Notably, the appellant had refused to undergo a narcoanalysis interview or a polygraph test. It was also evident that he had not consented to the hypnosis. The multiple opinions delivered in the case examined the criterion for deciding the voluntariness of a statement. Reference was made to the well-known statement of Lord Summer in Ibrahim v. R [1914] A.C. 599 (P.C.), at p. 609:

It has long been established as a positive rule of English criminal law that no statement made by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

63. In Horvath v. R (supra.), the question was whether statements made under a hypnotic state could be equated with those obtained by ‘fear of prejudice’ or ‘hope of advantage’. The Court ruled that the inquiry into the voluntariness of a statement should not be literally confined to these expressions. After examining several precedents, Spence J. held that the total circumstances surrounding the interrogation should be considered, with no particular emphasis placed on the hypnosis. It was observed that in this particular case the interrogation of the accused had resulted in his complete emotional disintegration, and hence the statements given were inadmissible. It was also held that the rule in Ibrahim v. R (supra.) that a statement must be induced by ‘fear of prejudice’ or ‘hope of advantage’ in order to be considered involuntary was not a comprehensive test. The word ‘voluntary’ should be given its ordinary and natural meaning so that the circumstances which existed in the present case could also be described as those which resulted in involuntary statements. 64. In a concurring opinion, Beetz., J. drew a comparison between statements made during hypnosis and those made under the influence of a sodium-amytal injection. It was observed, at Para. 91:

91. Finally, voluntariness is incompatible not only with promises and threats but actual violence. Had Horvath made a statement while under the influence of an amytal injection administered without his consent, the statement would have been inadmissible because of the assault, and presumably because also of the effect of the injection on his mind. There was no physical violence in the case at bar. There is not even any evidence of bodily contact between Horvath and Sergeant Proke, but through the use of an interrogation technique involving certain physical elements such as a hypnotic quality of voice and manner, a police officer has gained unconsented access to what in a human being is of the utmost privacy, the privacy of his own mind. As I have already indicated, it is my view that this was a form of violence or intrusion of a moral or mental nature, more subtle than visible violence but not less efficient in the result than an amytal injection administered by force.

65. In this regard, the following observations are instructive for the deciding the questions before us, at Paras. 117,118:

117. It would appear that hypnosis and narcoanalysis are used on a consensual basis by certain police forces as well as by the defence, and it has been argued that they can serve useful purposes.

118. I refrain from commenting on such practices, short of noting that even the consensual use of hypnosis and narcoanalysis for evidentiary purposes may present problems. Under normal police interrogation, a suspect has the opportunity to renew or deny his consent to answer each question, which is no longer the case once he is, although by consent, in a state of hypnosis or under the influence of a ‘truth serum’.

(internal citation omitted)

66. Our attention has also been drawn to the decision reported as Rock v. Arkansas 483 US 44 (1987), in which the U.S. Supreme Court ruled that hypnotically-refreshed testimony could be admitted as evidence. The constitutional basis for admitting such testimony was the Sixth Amendment which gives every person a right to present a defence in criminal cases. However, the crucial aspect was that the trial court had admitted the oral testimony given during the trial stage rather than the actual statements made during the hypnosis session conducted earlier during the investigation stage. It was found that such hypnotically-refreshed testimony was the only defence available to the defendant in the circumstances. In such circumstances, it would of course be open to the prosecution to contest the reliability of the testimony given during the trial stage by showing that it had been bolstered by the statements made during hypnosis. It may be recalled that a similar line of reasoning had been adopted in United States v. Solomon 753 F. 2d 1522 (9th Circ. 1985), where for the purpose of admissibility of testimony, a distinction had been drawn between the statements made during a narcoanalysis interview and the oral testimony given during the trial stage which was allegedly based on the drug-induced statements. Hence, the weight of precedents indicates that both the statements made during narcoanalysis interviews as well as expert testimony relating to the same have not been given weightage in criminal trials.

Brain Electrical Activation Profile (BEAP) test

67. The third technique in question is the ‘Brain Electrical Activation Profile test’, also known as the ‘P300 Waves test’. It is a process of detecting whether an individual is familiar with certain information by way of measuring activity in the brain that is triggered by exposure to selected stimuli. This test consists of examining and measuring ‘event-related potentials’ (ERP) i.e. electrical wave forms emitted by the brain after it has absorbed an external event. An ERP measurement is the recognition of specific patterns of electrical brain activity in a subject that are indicative of certain cognitive mental activities that occur when a person is exposed to a stimulus in the form of an image or a concept expressed in words. The measurement of the cognitive brain activity allows the examiner to ascertain whether the subject recognised stimuli to which he/she was exposed. [Cited from: Andre A Moenssens, ‘Brain Fingerprinting – Can it be used to detect the innocence of persons charged with a crime?’ 70 University of Missouri at Kansas City Law Review 891-920 (Summer 2002) at p. 893]

68. By the late 19th century it had been established that the brain functioned by emitting electrical impulses and the technology to measure them was developed in the form of the electroencephalograph (EEG) which is now commonly used in the medical field. Brain wave patterns observed through an EEG scan are fairly crude and may reflect a variety of unrelated brain activity functions. It was only with the development of computers that it became possible to sort out specific wave components on an EEG and identify the correlation between the waves and specific stimuli. The P300 wave is one such component that was discovered by Dr. Samuel Sutton in 1965. It is a specific event-related brain potential (ERP) which is triggered when information relating to a specific event is recognised by the brain as being significant or surprising.

69. The P300 waves test is conducted by attaching electrodes to the scalp of the subject, which measure the emission of the said wave components. The test needs to be conducted in an insulated and air-conditioned room in order to prevent distortions arising out of weather conditions. Much like the narcoanalysis technique and polygraph examination, this test also requires effective collaboration between the investigators and the examiner, most importantly for designing the stimuli which are called ‘probes’. Ascertaining the subject’s familiarity with the ‘probes’ can help in detecting deception or to gather useful information. The test subject is exposed to auditory or visual stimuli (words, sounds, pictures, videos) that are relevant to the facts being investigated alongside other irrelevant words and pictures. Such stimuli can be broadly classified as material ‘probes’ and neutral ‘probes’. The underlying theory is that in the case of guilty suspects, the exposure to the material probes will lead to the emission of P300 wave components which will be duly recorded by the instruments. By examining the records of these wave components the examiner can make inferences about the individual’s familiarity with the information related to the crime. [Refer: Laboratory Procedure Manual – Brain Electrical Activation Profile (Directorate of Forensic Science, Ministry of Home Affairs, Government of India, New Delhi – 2005)]

70. The P300 wave test was the precursor to other neuroscientific techniques such as ‘Brain Fingerprinting’ developed by Dr. Lawrence Farwell. The latter technique has been promoted in the context of criminal justice and has already been the subject of litigation. There is an important difference between the ‘P300 waves test’ that has been used by Forensic Science Laboratories in India and the ‘Brain Fingerprinting’ technique. Dr. Lawrence Farwell has argued that the P300 wave component is not an isolated sensory brain effect but it is part of a longer response that continues to take place after the initial P300 stimulus has occurred. This extended response bears a correlation with the cognitive processing that takes place slightly beyond the P300 wave and continues in the range of 300-800 milliseconds after the exposure to the stimulus. This extended brain wave component has been named as the MERMER (Memory-and- Encoding-Related-Multifaceted-Electroencephalographic Response) effect. [See generally: Lawrence A. Farwell, ‘Brain Fingerprinting: A new paradigm in criminal investigations and counter-terrorism’, (2001) Text can be downloaded from ]

71. Functional Magnetic Resonance Imaging (FMRI) is another neuroscientific technique whose application in the forensic setting has been contentious. It involves the use of MRI scans for measuring blood flow between different parts of the brain which bears a correlation to the subject’s truthfulness or deception. FMRI-based lie-detection has also been advocated as an aid to interrogations in the context of counter-terrorism and intelligence operations, but it prompts the same legal questions that can be raised with respect to all of the techniques mentioned above. Even though these are non- invasive techniques the concern is not so much with the manner in which they are conducted but the consequences for the individuals who undergo the same. The use of techniques such as ‘Brain Fingerprinting’ and ‘FMRI-based Lie-Detection’ raise numerous concerns such as those of protecting mental privacy and the harms that may arise from inferences made about the subject’s truthfulness or familiarity with the facts of a crime. [See generally: Michael S. Pardo, ‘Neuroscience evidence, legal culture and criminal procedure’, 33 American Journal of Criminal Law 301-337 (Summer 2006); Sarah E. Stoller and Paul Root Wolpe, ‘Emerging neurotechnologies for lie detection and the fifth amendment’, 33 American Journal of Law and Medicine 359-375 (2007)]

72. These neuroscientific techniques could also find application outside the criminal justice setting. For instance, Henry T. Greely (2005, Cited below) has argued that technologies that may enable a precise identification of the subject’s mental responses to specific stimuli could potentially be used for market-research by business concerns for surveying customer preferences and developing targeted advertising schemes. They could also be used to judge mental skills in the educational and employment-related settings since cognitive responses are often perceived to be linked to academic and professional competence. One can foresee the potential use of this technique to distinguish between students and employees on the basis of their cognitive responses. There are several other concerns with the development of these ‘mind-reading’ technologies especially those relating to the privacy of individuals. [Refer: Henry T. Greely, ‘Chapter 17: The social effects of advances in neuroscience: Legal problems, legal perspectives’, in Judy Illes (ed.), Neuroethics – Defining the issues in theory, practice and policy (Oxford University Press, 2005) at pp. 245-263]

73. Even though the P300 Wave component has been the subject of considerable research, its uses in the criminal justice system have not received much scholarly attention. Dr. Lawrence Farwell’s ‘Brain Fingerprinting’ technique has attracted considerable publicity but has not been the subject of any rigorous independent study. Besides this preliminary doubt, an important objection is centred on the inherent difficulty of designing the appropriate ‘probes’ for the test. Even if the ‘probes’ are prepared by an examiner who is thoroughly familiar with all aspects of the facts being investigated, there is always a chance that a subject may have had prior exposure to the material probes. In case of such prior exposure, even if the subject is found to be familiar with the probes, the same will be meaningless in the overall context of the investigation. For example, in the aftermath of crimes that receive considerable media-attention the subject can be exposed to the test stimuli in many ways. Such exposure could occur by way of reading about the crime in newspapers or magazines, watching television, listening to the radio or by word of mouth. A possibility of prior exposure to the stimuli may also arise if the investigators unintentionally reveal crucial facts about the crime to the subject before conducting the test. The subject could also be familiar with the content of the material probes for several other reasons.

74. Another significant limitation is that even if the tests demonstrate familiarity with the material probes, there is no conclusive guidance about the actual nature of the subject’s involvement in the crime being investigated. For instance a by- stander who witnessed a murder or robbery could potentially be implicated as an accused if the test reveals that the said person was familiar with the information related to the same. Furthermore, in cases of amnesia or ‘memory-hardening’ on part of the subject, the tests could be blatantly misleading. Even if the inferences drawn from the ‘P300 wave test’ are used for corroborating other evidence, they could have a material bearing on a finding of guilt or innocence despite being based on an uncertain premise. [For an overview of the limitations of these neuroscientific techniques, see: John G. New, ‘If you could read my mind – Implications of neurological evidence for twenty-first century criminal jurisprudence’, 29 Journal of Legal Medicine 179-197 (April-June 2008)]

75. We have come across two precedents relatable to the use of ‘Brain Fingerprinting’ tests in criminal cases. Since this technique is considered to be an advanced version of the P300 Waves test, it will be instructive to examine these precedents. In Harrington v. Iowa 659 N.W.2d 509 (2003), Terry J. Harrington (appellant) had been convicted for murder in 1978 and the same had allegedly been committed in the course of an attempted robbery. A crucial component of the incriminating materials was the testimony of his accomplice. However, many years later it emerged that the accomplice’s testimony was prompted by an offer of leniency from the investigating police and doubts were raised about the credibility of other witnesses as well. Subsequently it was learnt that at the time of the trial, the police had not shared with the defence some investigative reports that indicated the possible involvement of another individual in the said crime. Harrington had also undergone a ‘Brain Fingerprinting’ test under the supervision of Dr. Lawrence Farwell. The test results showed that he had no memories of the ‘probes’ relating to the act of murder. Hence, Harrington approached the District Court seeking the vacation of his conviction and an order for a new trial. Post-conviction relief was sought on grounds of newly discovered evidence which included recantation by the prosecution’s primary witness, the past suppression of police investigative reports which implicated another suspect and the results of the ‘Brain Fingerprinting’ tests. However, the District Court denied this application for post-conviction relief. This was followed by an appeal before the Supreme Court of Iowa.

76. The appellate court concluded that Harrington’s appeal was timely and his action was not time barred. The appellant was granted relief in light of a ‘due process’ violation, i.e. the failure on part of the prosecution at the time of the original trial to share the investigative reports with the defence. It was observed that the defendant’s right to a fair trial had been violated because the prosecution had suppressed evidence which was favourable to the defendant and clearly material to the issue of guilt. Hence the case was remanded back to the District Court. However, the Supreme Court of Iowa gave no weightage to the results of the ‘Brain Fingerprinting’ test and did not even inquire into their relevance or reliability. In fact it was stated: “Because the scientific testing evidence is not necessary to a resolution of this appeal, we give it no further consideration.” [659 N.W.2d 509, at p. 516]

77. The second decision brought to our attention is Slaughter v. Oklahoma 105 P. 3d 832 (2005). In that case, Jimmy Ray Slaughter had been convicted for two murders and sentenced to death. Subsequently, he filed an application for post- conviction relief before the Court of Criminal Appeals of Oklahoma which attempted to introduce in evidence an affidavit and evidentiary materials relating to a ‘Brain Fingerprinting’ test. This test had been conducted by Dr. Lawrence Farwell whose opinion was that the petitioner did not have knowledge of the ‘salient features of the crime scene’. Slaughter also sought a review of the evidence gathered through DNA testing and challenged the bullet composition analysis pertaining to the crime scene. However, the appellate court denied the application for post-conviction relief as well as the motion for an evidentiary hearing. With regard to the affidavits based on the ‘Brain Fingerprinting’ test, it was held, Id. at p. 834:

10. Dr. Farwell makes certain claims about the Brain Fingerprinting test that are not supported by anything other than his bare affidavit. He claims the technique has been extensively tested, has been presented and analyzed in numerous peer-review articles in recognized scientific publications, has a very low rate of error, has objective standards to control its operation, and is generally accepted within the ‘relevant scientific community’. These bare claims, however, without any form of corroboration, are unconvincing and, more importantly, legally insufficient to establish Petitioner’s post-conviction request for relief. Petitioner cites one published opinion, Harrington v. State 659 N.W.2d 509 (Iowa 2003), in which a brain fingerprinting test result was raised as error and discussed by the Iowa Supreme Court (‘a novel computer-based brain testing’). However, while the lower court in Iowa appears to have admitted the evidence under non-Daubert circumstances, the test did not ultimately factor into the Iowa Supreme Court’s published decision in any way.

Accordingly, the following conclusion was stated, Id. at p. 836:

18. Therefore, based upon the evidence presented, we find the Brain Fingerprinting evidence is procedurally barred under the Act and our prior cases, as it could have been raised in Petitioner’s direct appeal and, indeed, in his first application for post-conviction relief. We further find a lack of sufficient evidence that would support a conclusion that Petitioner is factually innocent or that Brain Fingerprinting, based solely upon the MERMER effect, would survive a Daubert analysis.

CONTENTIOUS ISSUES IN THE PRESENT CASE

78. As per the Laboratory Procedure manuals, the impugned tests are being conducted at the direction of jurisdictional courts even without obtaining the consent of the intended test subjects. In most cases these tests are conducted conjunctively wherein the veracity of the information revealed through narcoanalysis is subsequently tested through a polygraph examination or the BEAP test. In some cases the investigators could first want to ascertain the capacity of the subject to deceive (through polygraph examination) or his/her familiarity with the relevant facts (through BEAP test) before conducting a narcoanalysis interview. Irrespective of the sequence in which these techniques are administered, we have to decide on their permissibility in circumstances where any of these tests are compulsorily administered, either independently or conjunctively.

79. It is plausible that investigators could obtain statements from individuals by threatening them with the possibility of administering either of these tests. The person being interrogated could possibly make self-incriminating statements on account of apprehensions that these techniques will extract the truth. Such behaviour on part of investigators is more likely to occur when the person being interrogated is unaware of his/her legal rights or is intimidated for any other reason. It is a settled principle that a statement obtained through coercion, threat or inducement is involuntary and hence inadmissible as evidence during trial. However, it is not settled whether a statement made on account of the apprehension of being forcibly subjected to the impugned tests will be involuntary and hence inadmissible. This aspect merits consideration. It is also conceivable that an individual who has undergone either of these tests would be more likely to make self-incriminating statements when he/she is later confronted with the results. The question in that regard is whether the statements that are made subsequently should be admissible as evidence. The answers to these questions rest on the permissibility of subjecting individuals to these tests without their consent.

I. Whether the involuntary administration of the impugned techniques violates the ‘right against self- incrimination’ enumerated in Article 20(3) of the Constitution?

80. Investigators could seek reliance on the impugned tests to extract information from a person who is suspected or accused of having committed a crime. Alternatively these tests could be conducted on witnesses to aid investigative efforts. As mentioned earlier, this could serve several objectives, namely those of gathering clues which could lead to the discovery of relevant evidence, to assess the credibility of previous testimony or even to ascertain the mental state of an individual. With these uses in mind, we have to decide whether the compulsory administration of these tests violates the ‘right against self-incrimination’ which finds place in Article 20(3) of the Constitution of India. Along with the ‘rule against double-jeopardy’ and the ‘rule against retrospective criminalisation’ enumerated in Article 20, it is one of the fundamental protections that controls interactions between individuals and the criminal justice system. Article 20(3) reads as follows:

No person accused of any offence shall be compelled to be a witness against himself.

81. The interrelationship between the ‘right against self- incrimination’ and the ‘right to fair trial’ has been recognised in most jurisdictions as well as international human rights instruments. For example, the U.S. Constitution incorporates the ‘privilege against self-incrimination’ in the text of its Fifth Amendment. The meaning and scope of this privilege has been judicially moulded by recognising it’s interrelationship with other constitutional rights such as the protection against ‘unreasonable search and seizure’ (Fourth amendment) and the guarantee of ‘due process of law’ (Fourteenth amendment). In the International Covenant on Civil and Political Rights (ICCPR), Article 14(3)(g) enumerates the minimum guarantees that are to be accorded during a trial and states that everyone has a right not to be compelled to testify against himself or to confess guilt. In the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1) states that every person charged with an offence has a right to a fair trial and Article 6(2) provides that ‘Everybody charged with a criminal offence shall be presumed innocent until proved guilty according to law’. The guarantee of ‘presumption of innocence’ bears a direct link to the ‘right against self- incrimination’ since compelling the accused person to testify would place the burden of proving innocence on the accused instead of requiring the prosecution to prove guilt.

82. In the Indian context, Article 20(3) should be construed with due regard for the inter-relationship between rights, since this approach was recognised in Maneka Gandhi’s case, (1978) 1 SCC 248. Hence, we must examine the ‘right against self-incrimination’ in respect of its relationship with the multiple dimensions of ‘personal liberty’ under Article 21, which include guarantees such as the ‘right to fair trial’ and ‘substantive due process’. It must also be emphasized that Articles 20 and 21 have a non-derogable status within Part III of our Constitution because the Constitution (Fourty-Fourth amendment) Act, 1978 mandated that the right to move any court for the enforcement of these rights cannot be suspended even during the operation of a proclamation of emergency. In this regard, Article 359(1) of the Constitution of India reads as follows:

359. Suspension of the enforcement of the rights conferred by Part III during emergencies. – (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order….

83. Undoubtedly, Article 20(3) has an exalted status in our Constitution and questions about its meaning and scope deserve thorough scrutiny. In one of the impugned judgments, it was reasoned that all citizens have an obligation to co- operate with ongoing investigations. For instance reliance has been placed on Section 39, CrPC which places a duty on citizens to inform the nearest magistrate or police officer if they are aware of the commission of, or of the intention of any other person to commit the crimes enumerated in the section. Attention has also been drawn to the language of Section 156(1), CrPC which states that a police officer in charge of a police station is empowered to investigate cognizable offences even without an order from the jurisdictional magistrate. Likewise, our attention was drawn to Section 161(1), CrPC which empowers the police officer investigating a case to orally examine any person who is supposed to be acquainted with the facts and circumstances of the case. While the overall intent of these provisions is to ensure the citizens’ cooperation during the course of investigation, they cannot override the constitutional protections given to accused persons. The scheme of the CrPC itself acknowledges this hierarchy between constitutional and statutory provisions in this regard. For instance, Section 161(2), CrPC prescribes that when a person is being examined by a police officer, he is not bound to answer such questions, the answers of which would have a tendency to expose him to a criminal charge or a penalty or forfeiture.

84. Not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence. At the trial stage, Section 313(3) of the CrPC places a crucial limitation on the power of the court to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself/herself liable to punishment by refusing to answer such questions, or by giving false answers to them. Further, Proviso (b) to Section 315(1) of CrPC mandates that even though an accused person can be a competent witness for the defence, his/her 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 person charged together with him at the trial. It is evident that Section 161(2), CrPCenables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of Section 313(3) and Proviso (b) to Section 315(1) of the same code, adverse inferences cannot be drawn on account of the accused person’s silence during the trial stage.

Historical origins of the ‘right against self-incrimination’

85. The right of refusal to answer questions that may incriminate a person is a procedural safeguard which has gradually evolved in common law and bears a close relation to the ‘right to fair trial’. There are competing versions about the historical origins of this concept. Some scholars have identified the origins of this right in the medieval period. In that account, it was a response to the procedure followed by English judicial bodies such as the Star Chamber and High Commissions which required defendants and suspects to take ex officio oaths. These bodies mainly decided cases involving religious non-conformism in a Protestant dominated society, as well as offences like treason and sedition. Under an ex officio oath the defendant was required to answer all questions posed by the judges and prosecutors during the trial and the failure to do so would attract punishments that often involved physical torture. It was the resistance to this practice of compelling the accused to speak which led to demands for a ‘right to silence’.

86. In an academic commentary, Leonard Levy (1969) had pointed out that the doctrinal origins of the right against self-incrimination could be traced back to the Latin maxim ‘Nemo tenetur seipsum prodere’ (i.e. no one is bound to accuse himself) and the evolution of the concept of ‘due process of law’ enumerated in the Magna Carta. [Refer: Leonard Levy, ‘The right against self-incrimination: history and judicial history’, 84(1) Political Science Quarterly 1-29 (March 1969)] The use of the ex officio oath by the ecclesiastical courts in medieval England had come under criticism from time to time, and the most prominent cause for discontentment came with its use in the Star Chamber and the High Commissions. Most scholarship has focussed on the sedition trial of John Lilburne (a vocal critic of Charles I, the then monarch) in 1637, when he refused to answer questions put to him on the ground that he had not been informed of the contents of the written complaint against him. John Lilburne went on to vehemently oppose the use of ex-officio oaths, and the Parliament of the time relented by abolishing the Star Chamber and the High Commission in 1641. This event is regarded as an important landmark in the evolution of the ‘right to silence’.

87. However, in 1648 a special committee of Parliament conducted an investigation into the loyalty of members whose opinions were offensive to the army leaders. The committee’s inquisitional conduct and its requirement that witnesses take an oath to tell the truth provoked opponents to condemn what they regarded as a revival of Star Chamber tactics. John Lilburne was once again tried for treason before this committee, this time for his outspoken criticism of the leaders who had prevailed in the struggle between the supporters of the monarch and those of the Parliament in the English civil war. John Lilburne invoked the spirit of the Magna Carta as well as the 1628 Petition of Right to argue that even after common-law indictment and without oath, he did not have to answer questions against or concerning himself. He drew a connection between the right against self-incrimination and the guarantee of a fair trial by invoking the idea of ‘due process of law’ which had been stated in the Magna Carta.

88. John H. Langbein (1994) has offered more historical insights into the emergence of the ‘right to silence’. [John H. Langbein, ‘The historical origins of the privilege against self- incrimination at common law’, 92(5) Michigan Law Review 1047-1085 (March 1994)] He draws attention to the fact that even though ex officio oaths were abolished in 1641, the practice of requiring defendants to present their own defence in criminal proceedings continued for a long time thereafter. The Star Chamber and the High Commissions had mostly tried cases involving religious non-conformists and political dissenters, thereby attracting considerable criticism. Even after their abolition, the defendants in criminal courts did not have the right to be represented by a lawyer (‘right to counsel’) or the right to request the presence of defence witnesses (‘right of compulsory process’). Hence, defendants were more or less compelled to testify on their own behalf. Even though the threat of physical torture on account of remaining silent had been removed, the defendant would face a high risk of conviction if he/she did not respond to the charges by answering the material questions posed by the judge and the prosecutor. In presenting his/her own defence during the trial, there was a strong likelihood that the contents of such testimony could strengthen the case of the prosecution and lead to conviction. With the passage of time, the right of a criminal defendant to be represented by a lawyer eventually emerged in the common law tradition. A watershed in this regard was the Treason Act of 1696 which provided for a ‘right to counsel’ as well as ‘compulsory process’ in cases involving offences such as treason. Gradually, the right to be defended by a counsel was extended to more offences, but the role of the counsel was limited in the early years. For instance defence lawyers could only help their clients with questions of law and could not make submissions related to the facts.

89. The practice of requiring the accused persons to narrate or contest the facts on their own corresponds to a prominent feature of an inquisitorial system, i.e. the testimony of the accused is viewed as the ‘best evidence’ that can be gathered. The premise behind this is that innocent persons should not be reluctant to testify on their own behalf. This approach was followed in the inquisitional procedure of the ecclesiastical courts and had thus been followed in other courts as well. The obvious problem with compelling the accused to testify on his own behalf is that an ordinary person lacks the legal training to effectively respond to suggestive and misleading questioning, which could come from the prosecutor or the judge. Furthermore, even an innocent person is at an inherent disadvantage in an environment where there may be unintentional irregularities in the testimony. Most importantly the burden of proving innocence by refuting the charges was placed on the defendant himself. In the present day, the inquisitorial conception of the defendant being the best source of evidence has long been displaced with the evolution of adversarial procedure in the common law tradition. Criminal defendants have been given protections such as the presumption of innocence, right to counsel, the right to be informed of charges, the right of compulsory process and the standard of proving guilt beyond reasonable doubt among others. It can hence be stated that it was only with the subsequent emergence of the ‘right to counsel’ that the accused’s ‘right to silence’ became meaningful. With the consolidation of the role of defence lawyers in criminal trials, a clear segregation emerged between the testimonial function performed by the accused and the defensive function performed by the lawyer. This segregation between the testimonial and defensive functions is now accepted as an essential feature of a fair trial so as to ensure a level-playing field between the prosecution and the defence. In addition to a defendant’s ‘right to silence’ during the trial stage, the protections were extended to the stage of pre-trial inquiry as well. With the enactment of the Sir John Jervis Act of 1848, provisions were made to advise the accused that he might decline to answer questions put to him in the pre-trial inquiry and to caution him that his answers to pre-trial interrogation might be used as evidence against him during the trial stage.

90. The judgment in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424, at pp. 438-439, referred to the following extract from a decision of the US Supreme Court in Brown v. Walker 161 US 591 (1896), which had later been approvingly cited by Warren, C.J. in Miranda v. Arizona 384 US 436 (1966):

The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which have long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, were not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the SCALE of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the case with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the inequities of the ancient system impress themselves upon the minds of the American colonists that the State, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.

Underlying rationale of the right against self-incrimination

91. As mentioned earlier, ‘the right against self-incrimination’ is now viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives – firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion, threats or inducements during the investigative stage. When a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the ‘rule against involuntary confessions’ is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts.

92. The concerns about the ‘voluntariness’ of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements – often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense, ‘the right against self-incrimination’ is a vital safeguard against torture and other ‘third-degree methods’ that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important, otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such ‘short-cuts’ will compromise the diligence required for conducting meaningful investigations. During the trial stage, the onus is on the prosecution to prove the charges levelled against the defendant and the ‘right against self- incrimination’ is a vital protection to ensure that the prosecution discharges the said onus.

93. These concerns have been recognised in Indian as well as foreign judicial precedents. For instance, Das Gupta, J. had observed in State of Bombay v. Kathi Kalu Oghad, (1962) 3 SCR 10, at pp. 43-44:

…for long it has been generally agreed among those who have devoted serious thought to these problems that few things could be more harmful to the detection of crime or conviction of the real culprit, few things more likely to hamper the disclosure of truth than to allow investigators or prosecutors to slide down the easy path of producing by compulsion, evidence, whether oral or documentary, from an accused person. It has been felt that the existence of such an easy way would tend to dissuade persons in charge of investigation or prosecution from conducting diligent search for reliable independent evidence and from sifting of available materials with the care necessary for ascertainment of truth. If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of laborious investigation and prolonged examination of other men, materials and documents? It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law ‘to sit comfortably in the shade rubbing red pepper into a poor devils’ eyes rather than to go about in the sun hunting up evidence.’ [Sir James Fitzjames Stephen, History of Criminal Law, p. 442] No less serious is the danger that some accused persons at least, may be induced to furnish evidence against themselves which is totally false – out of sheer despair and an anxiety to avoid an unpleasant present. Of all these dangers the Constitution makers were clearly well aware and it was to avoid them that Article 20(3) was put in the Constitution.

94. The rationale behind the Fifth Amendment in the U.S. Constitution was eloquently explained by Goldberg. J. in Murphy v. Waterfront Commission 378 US 52 (1964), at p. 55:

It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self- accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state- individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contests with the individual to shoulder the entire load; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life; our distrust of self- deprecatory statements; and our realization that the privilege, while sometimes a shelter to the guilty, is often a protection to the innocent.

A similar view was articulated by Lord Hailsham of St. Marylebone in Wong Kam-ming v. R [1979] 1 All ER 939, at p. 946:

…any civilised system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary.

95. V.R. Krishna Iyer, J. echoed similar concerns in Nandini Satpathy’s case, (1978) 2 SCC 424, at p. 442:

…And Article 20(3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic ante-chamber of a police station. And in the long run, that investigation is best which uses stratagems least, that policeman deserves respect who gives his fists rest and his wits restlessness. The police are part of us and must rise in people’s esteem through firm and friendly, not foul and sneaky strategy.

96. In spite of the constitutionally entrenched status of the right against self-incrimination, there have been some criticisms of the policy underlying the same. John Wigmore (1960) argued against a broad view of the privilege which extended the same to the investigative stage. [Refer: John Wigmore, ‘The privilege against self-incrimination, its constitutional affectation, raison d’etre and miscellaneous implications’, 51 Journal of Criminal Law, Criminology and Police Science 138 (1960)] He has asserted that the doctrinal origins of the ‘rule against involuntary confessions’ in evidence law and those of the ‘right to self-incrimination’ were entirely different and catered to different objectives. In the learned author’s opinion, the ‘rule against involuntary confessions’ evolved on account of the distrust of statements made in custody. The objective was to prevent these involuntary statements from being considered as evidence during trial but there was no prohibition against relying on statements made involuntarily during investigation. Wigmore argued that the privilege against self-incrimination should be viewed as a right that was confined to the trial stage, since the judge can intervene to prevent an accused from revealing incriminating information at that stage, while similar oversight is not always possible during the pre-trial stage.

97. In recent years, scholars such as David Dolinko (1986), Akhil Reed Amar (1997) and Mike Redmayne (2007) among others have encapsulated the objections to the scope of this right. [See: David Dolinko, ‘Is There a Rationale for the Privilege Against Self-Incrimination?’, 33 University of California Los Angeles Law Review 1063 (1986); Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles (New Haven: Yale University Press, 1997) at pp. 65-70; Mike Redmayne, ‘Re-thinking the Privilege against Self- incrimination’, 27 Oxford Journal of Legal Studies 209-232 (Summer 2007)] It is argued that in aiming to create a fair state-individual balance in criminal cases, the task of the investigators and prosecutors is made unduly difficult by allowing the accused to remain silent. If the overall intent of the criminal justice system is to ensure public safety through expediency in investigations and prosecutions, it is urged that the privilege against self-incrimination protects the guilty at the cost of such utilitarian objectives. Another criticism is that adopting a broad view of this right does not deter improper practices during investigation and it instead encourages investigators to make false representations to courts about the voluntary or involuntary nature of custodial statements. It is reasoned that when investigators are under pressure to deliver results there is an inadvertent tendency to rely on methods involving coercion, threats, inducement or deception in spite of the legal prohibitions against them. Questions have also been raised about conceptual inconsistencies in the way that courts have expanded the scope of this right. One such objection is that if the legal system is obliged to respect the mental privacy of individuals, then why is there no prohibition against compelled testimony in civil cases which could expose parties to adverse consequences. Furthermore, questions have also been asked about the scope of the privilege being restricted to testimonial acts while excluding physical evidence which can be extracted through compulsion.

98. In response to John Wigmore’s thesis about the separate foundations of the ‘rule against involuntary confessions’, we must recognise the infusion of constitutional values into all branches of law, including procedural areas such as the law of evidence. While the above-mentioned criticisms have been made in academic commentaries, we must defer to the judicial precedents that control the scope of Article 20(3). For instance, the interrelationship between the privilege against self- incrimination and the requirements of observing due process of law were emphasized by William Douglas, J. in Rochin v. California 342 US 166 (1951), at p. 178:

As an original matter it might be debatable whether the provision in the Fifth Amendment that no person ‘shall be compelled in any criminal case to be a witness against himself’ serves the ends of justice. Not all civilized legal procedures recognize it. But the choice was made by the framers, a choice which sets a standard for legal trials in this country. The Framers made it a standard of due process for prosecutions by the Federal Government. If it is a requirement of due process for a trial in the federal courthouse, it is impossible for me to say it is not a requirement of due process for a trial in the state courthouse.

I-A. Whether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject?

99. The respondents have submitted that the compulsory administration of the impugned tests will only be sought to boost investigation efforts and that the test results by themselves will not be admissible as evidence. The next prong of this position is that if the test results enable the investigators to discover independent materials that are relevant to the case, such subsequently discovered materials should be admissible during trial. In order to evaluate this position, we must answer the following questions:

• Firstly, we should clarify the scope of the ‘right against self-incrimination’ – i.e. whether it should be construed as a broad protection that extends to the investigation stage or should it be viewed as a narrower right confined to the trial stage?

• Secondly, we must examine the ambit of the words ‘accused of any offence’ in Article 20(3) – i.e. whether the protection is available only to persons who are formally accused in criminal cases, or does it extend to include suspects and witnesses as well as those who apprehend incrimination in cases other than the one being investigated?

• Thirdly, we must evaluate the evidentiary value of independent materials that are subsequently discovered with the help of the test results. In light of the ‘theory of confirmation by subsequent facts’ incorporated in Section 27 of the Indian Evidence Act, 1872 we need to examine the compatibility between this section and Article 20(3). Of special concern are situations when persons could be compelled to reveal information which leads to the discovery of independent materials. To answer this question, we must clarify what constitutes ‘incrimination’ for the purpose of invoking Article 20(3).

Applicability of Article 20(3) to the stage of investigation

100. The question of whether Article 20(3) should be narrowly construed as a trial right or a broad protection that extends to the stage of investigation has been conclusively answered by our Courts. In M.P. Sharma v. Satish Chandra, (1954) SCR 1077, it was held by Jagannadhadas, J. at pp. 1087-1088:

Broadly stated, the guarantee in Article 20(3) is against ‘testimonial compulsion’. It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions….”

“Indeed, every positive volitional act which furnished evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is ‘to be a witness’ and not to ‘appear as a witness’: It follows that the protection afforded to an accused in so far 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. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case.”

101. These observations were cited with approval by B.P. Sinha, C.J. in State of Bombay v. Kathi Kalu Oghad and Ors., (1962) 3 SCR 10, at pp. 26-28. In the minority opinion, Das Gupta, J. affirmed the same position, Id. at p. 40:

…If the protection was intended to be confined to being a witness in Court then really it would have been an idle protection. It would be completely defeated by compelling a person to give all the evidence outside court and then, having what he was so compelled to do proved in court through other witnesses. An interpretation which so completely defeats the constitutional guarantee cannot, of course, be correct. The contention that the protection afforded by Article 20(3) is limited to the stage of trial must therefore be rejected.

102. The broader view of Article 20(3) was consolidated in Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424:

…Any giving of evidence, any furnishing of information, if likely to have an incriminating impact, answers the description of being a witness against oneself. Not being limited to the forensic stage by express words in Article 20(3), we have to construe the expression to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the police level is embraced by Article 20(3).This is precisely what Section 161(2) means. That Sub-section relates to oral examination by police officers and grants immunity at that stage. Briefly, the Constitution and the Code are coterminus in the protective area. While the code may be changed, the Constitution is more enduring. Therefore, we have to base our conclusion not merely upon Section 161(2) but on the more fundamental protection, although equal in ambit, contained in Article 20(3).” (at p. 435)

“If the police can interrogate to the point of self- accusation, the subsequent exclusion of that evidence at the trial hardly helps because the harm has already been done. The police will prove through other evidence what they have procured through forced confession. So it is that the foresight of the framers has pre-empted self- incrimination at the incipient stages by not expressly restricting it to the trial stage in court. True, compelled testimony previously obtained is excluded. But the preventive blow falls also on pre-court testimonial compulsion. The condition, as the decisions now go, is that the person compelled must be an accused. Both precedent procurement and subsequent exhibition of self-incriminating testimony are obviated by intelligent constitutional anticipation. (at p. 449)

103. In upholding this broad view of Article 20(3), V.R. Krishna Iyer, J. relied heavily on the decision of the US Supreme Court in Ernesto Miranda v. Arizona 384 US 436 (1966). The majority opinion (by Earl Warren, C.J.) laid down that custodial statements could not be used as evidence unless the police officers had administered warnings about the accused’s right to remain silent. The decision also recognised the right to consult a lawyer prior to and during the course of custodial interrogations. The practice promoted by this case is that it is only after a person has ‘knowingly and intelligently’ waived of these rights after receiving a warning that the statements made thereafter can be admitted as evidence. The safeguards were prescribed in the following manner, Id. at pp. 444-445:

…the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. […] As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

104. These safeguards were designed to mitigate the disadvantages faced by a suspect in a custodial environment. This was done in recognition of the fact that methods involving deception and psychological pressure were routinely used and often encouraged in police interrogations. Emphasis was placed on the ability of the person being questioned to fully comprehend and understand the content of the stipulated warning. It was held, Id. at pp. 457-458:

In these cases, we might not find the defendant’s statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect the precious Fifth Amendment right is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures…. It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carried its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. [Professor Sutherland, ‘Crime and Confessions’, 79 Harvard Law Review 21, 37 (1965)] The current practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles – that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.

105. The opinion also explained the significance of having a counsel present during a custodial interrogation. It was noted, Id. at pp. 469-470:

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more ‘will benefit only the recidivist and the professional.’ [Brief for the National District Attorneys Association as amicus curiae, p. 14] Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. [Cited from Escobedo v. State of Illinois 378 U.S. 478, 485 …] Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.

106. The majority decision in Miranda (supra.) was not a sudden development in U.S. constitutional law. The scope of the privilege against self-incrimination had been progressively expanded in several prior decisions. The notable feature was the recognition of the interrelationship between the Fifth Amendment and the Fourteenth Amendment’s guarantee that the government must observe the ‘due process of law’ as well as the Fourth Amendment’s protection against ‘unreasonable search and seizure’. While it is not necessary for us to survey these decisions, it will suffice to say that after Miranda (supra.), administering a warning about a person’s right to silence during custodial interrogations as well as obtaining a voluntary waiver of the prescribed rights has become a ubiquitous feature in the U.S. criminal justice system. In the absence of such a warning and voluntary waiver, there is a presumption of compulsion with regard to the custodial statements, thereby rendering them inadmissible as evidence. The position in India is different since there is no automatic presumption of compulsion in respect of custodial statements. However, if the fact of compulsion is proved then the resulting statements are rendered inadmissible as evidence.

Who can invoke the protection of Article 20(3)?

107. The decision in Nandini Satpathy’s case, (supra.) also touched on the question of who is an ‘accused’ for the purpose of invoking Article 20(3). This question had been left open in M.P. Sharma’s case (supra.). Subsequently, it was addressed in Kathi Kalu Oghad (supra.), at p. 37:

To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, anytime after the statement has been made.

108. While there is a requirement of formal accusation for a person to invoke Article 20(3) it must be noted that the protection contemplated by Section 161(2), CrPC is wider. Section 161(2) read with 161(1) protects ‘any person supposed to be acquainted with the facts and circumstances of the case’ in the course of examination by the police. The language of this provision is as follows:

161. Examination of witnesses by police.

(1) Any police officer making an investigation under this Chapter, 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 answers 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.

109. Therefore the ‘right against self-incrimination’ protects persons who have been formally accused as well as those who are examined as suspects in criminal cases. It also extends to cover witnesses who apprehend that their answers could expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigated. Krishna Iyer, J. clarified this position, (1978) 2 SCC 424, at p. 435:

The learned Advocate General, influenced by American decisions rightly agreed that in expression Section 161(2) of the Code might cover not merely accusations already registered in police stations but those which are likely to be the basis for exposing a person to a criminal charge. Indeed, this wider construction, if applicable to Article 20(3), approximates the constitutional clause to the explicit statement of the prohibition in Section 161(2). This latter provision meaningfully uses the expression ‘expose himself to a criminal charge’. Obviously, these words mean, not only cases where the person is already exposed to a criminal charge but also instances which will imminently expose him to criminal charges.

It was further observed, Id. at pp. 451-452 (Para. 50):

…’To be a witness against oneself’ is not confined to the particular offence regarding which the questioning is made but extends to other offences about which the accused has reasonable apprehension of implication from his answer. This conclusion also flows from ‘tendency to be exposed to a criminal charge’. A ‘criminal charge’ covers any criminal charge then under investigation or trial or which imminently threatens the accused.

110. Even though Section 161(2) of the CrPC casts a wide protective net to protect the formally accused persons as well as suspects and witnesses during the investigative stage, Section 132 of the Evidence Act limits the applicability of this protection to witnesses during the trial stage. The latter provision provides that witnesses cannot refuse to answer questions during a trial on the ground that the answers could incriminate them. However, the proviso to this section stipulates that the content of such answers cannot expose the witness to arrest or prosecution, except for a prosecution for giving false evidence. Therefore, the protection accorded to witnesses at the stage of trial is not as wide as the one accorded to the accused, suspects and witnesses during investigation [under Section 161(2), CrPC]. Furthermore, it is narrower than the protection given to the accused during the trial stage [under Section 313(3) and Proviso (b) to Section 315(1), CrPC]. The legislative intent is to preserve the fact- finding function of a criminal trial. Section 132 of the Evidence Act reads:

132. Witness not excused from answering on ground that answer will criminate. – A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind.

Proviso. – Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

111. Since the extension of the ‘right against self- incrimination’ to suspects and witnesses has its basis in Section 161(2), CrPCit is not readily available to persons who are examined during proceedings that are not governed by the code. There is a distinction between proceedings of a purely criminal nature and those proceedings which can culminate in punitive remedies and yet cannot be characterised as criminal proceedings. The consistent position has been that ordinarily Article 20(3) cannot be invoked by witnesses during proceedings that cannot be characterised as criminal proceedings. In administrative and quasi-criminal proceedings, the protection of Article 20(3) becomes available only after a person has been formally accused of committing an offence. For instance in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, (1961) 1 SCR 417, the contention related to the admissibility of a statement made before an inspector who was appointed under the Companies Act, 1923to investigate the affairs of a company and report thereon. It had to be decided whether the persons who were examined by the concerned inspector could claim the protection of Article 20(3). The question was answered, Id. at p. 438:

The scheme of the relevant sections is that the investigation begins broadly with a view to examine the management of the affairs of the company to find out whether any irregularities have been committed or not. In such a case there is no accusation, either formal or otherwise, against any specified individual; there may be a general allegation that the affairs are irregularly, improperly or illegally managed ; but who would be responsible for the affairs which are reported to be irregularly managed is a matter which would be determined at the end of the enquiry. At the commencement of the enquiry and indeed throughout its proceedings there is no accused person, no accuser, and no accusation against anyone that he has committed an offence. In our opinion a general enquiry and investigation into the affairs of the company thus contemplated cannot be regarded as an investigation which starts with an accusation contemplated in Article 20(3) of the Constitution….

112. A similar issue arose for consideration in Romesh Chandra Mehta v. State of West Bengal, (1969) 2 SCR 461, wherein it was held, at p. 472:

Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before an officer competent to investigate it, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial of the offence. Where a Customs Officer arrests a person and informs that person of the grounds of his arrest, [which he is bound to do under Article 22(1) of the Constitution] for the purpose of holding an inquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence. In the case of an offence by infringement of the Sea Customs Act which is punishable at the trial before a Magistrate, there is an accusation when a complaint is lodged by an officer competent in that behalf before the Magistrate.

113. In Balkishan A. Devidayal v. State of Maharashtra, (1980) 4 SCC 600, one of the contentious issues was whether the statements recorded by a Railway Police Force (RPF) officer during an inquiry under the Railway Property (Unlawful Possession) Act, 1996 would attract the protection of Article 20(3). Sarkaria, J. held that such an inquiry was substantially different from an investigation contemplated under the CrPC, and therefore formal accusation was a necessary condition for a person to claim the protection of Article 20(3). It was observed, Id. at p. 623:

To sum up, only a person against whom a formal accusation of the commission of an offence has been made can be a person ‘accused of an offence’ within the meaning of Article 20(3). Such formal accusation may be specifically made against him in an FIR or a formal complaint or any other formal document or notice served on that person, which ordinarily results in his prosecution in court. In the instant case no such formal accusation has been made against the appellant when his statements in question were recorded by the RPF Officer.

What constitutes ‘incrimination’ for the purpose of Article 20(3)?

114. We can now examine the various circumstances that could ‘expose a person to criminal charges’. The scenario under consideration is one where a person in custody is compelled to reveal information which aids the investigation efforts. The information so revealed can prove to be incriminatory in the following ways:

• The statements made in custody could be directly relied upon by the prosecution to strengthen their case. However, if it is shown that such statements were made under circumstances of compulsion, they will be excluded from the evidence.

• Another possibility is that of ‘derivative use’, i.e. when information revealed during questioning leads to the discovery of independent materials, thereby furnishing a link in the chain of evidence gathered by the investigators.

• Yet another possibility is that of ‘transactional use’, i.e. when the information revealed can prove to be helpful for the investigation and prosecution in cases other than the one being investigated.

• A common practice is that of extracting materials or information, which are then compared with materials that are already in the possession of the investigators. For instance, handwriting samples and specimen signatures are routinely obtained for the purpose of identification or corroboration.

115. The decision in Nandini Satpathy’s case (supra.) sheds light on what constitutes incrimination for the purpose of Article 20(3). Krishna Iyer, J. observed, at pp. 449-450:

In this sense, answers that would in themselves support a conviction are confessions but answers which have a reasonable tendency strongly to point out to the guilt of the accused are incriminatory. Relevant replies which furnish a real and clear link in the chain of evidence indeed to bind down the accused with the crime become incriminatory and offend Article 20(3) if elicited by pressure from the mouth of the accused….

An answer acquires confessional status only if, in terms or substantially, all the facts which constitute the offence are admitted by the offender. If his statement also contains self-exculpatory matter it ceases to be a confession. Article 20(3) strikes at confessions and self- incriminations but leaves untouched other relevant facts.

116. Reliance was also placed on the decision of the US Supreme Court in Samuel Hoffman v. United States 341 US 479 (1951). The controversy therein was whether the privilege against self-incrimination was available to a person who was called on to testify as a witness in a grand-jury investigation. Clark, J. answered the question in the affirmative, at p. 486:

The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. […]

But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. […]

(internal citations omitted)

To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure may result.” (at p. 487)

117. However, Krishna Iyer, J. also cautioned against including in the prohibition even those answers which might be used as a step towards obtaining evidence against the accused. It was stated, (1978) 2 SCC 424, at p. 451:

The policy behind the privilege, under our scheme, does not swing so wide as to sweep out of admissibility statements neither confessional per se nor guilty in tendency but merely relevant facts which, viewed in any setting, does not have a sinister import. To spread the net so wide is to make a mockery of the examination of the suspect, so necessitous in the search for truth. Overbreadth undermines, and we demur to such morbid exaggeration of a wholesome protection….

In Kathi Kalu Oghad’s case, this Court authoritatively observed, on the bounds between constitutional proscription and testimonial permission:

‘In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provisions, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused at least probable, considered by itself.’, (1962) 3 SCR 10, 32

Again the Court indicated that Article 20(3) could be invoked only against statements which ‘had a material bearing on the criminality of the maker of the statement’. ‘By itself’ does not exclude the setting or other integral circumstances but means something in the fact disclosed a guilt element. Blood on clothes, gold bars with notorious marks and presence on the scene or possession of the lethal weapon or corrupt currency have a tale to tell, beyond red fluid, precious metal, gazing at the stars or testing sharpness or value of the rupee. The setting of the case is an implied component of the statement.

118. In light of these observations, we must examine the permissibility of extracting statements which may furnish a link in the chain of evidence and hence create a risk of exposure to criminal charges. The crucial question is whether such derivative use of information extracted in a custodial environment is compatible with Article 20(3). It is a settled principle that statements made in custody are considered to be unreliable unless they have been subjected to cross- examination or judicial scrutiny. The scheme created by the Code of Criminal Procedure and the Indian Evidence Act also mandates that confessions made before police officers are ordinarily not admissible as evidence and it is only the statements made in the presence of a judicial magistrate which can be given weightage. The doctrine of excluding the ‘fruits of a poisonous tree’ has been incorporated in Sections 24, 25 and 26 of the Indian Evidence Act, 1872 which read as follows:

24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding. – A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

25. Confession to police officer not proved. – No confession made to a police officer shall be proved as against a person accused of any offence.

26. Confession by accused while in custody of police not to be proved against him. – No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

119. We have already referred to the language of Section 161, CrPC which protects the accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case. It would also be useful to refer to Sections 162, 163 and 164 of the CrPC which lay down procedural safeguards in respect of statements made by persons during the course of investigation. However, Section 27 of the Evidence Act incorporates the ‘theory of confirmation by subsequent facts’ – i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which ‘furnish a link in the chain of evidence’ needed for a successful prosecution. This provision reads as follows:

27. How much of information received from accused may be proved. – 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.

120. This provision permits the derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda warnings. However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3). The relationship between Section 27 of the Evidence Act and Article 20(3) of the Constitution was clarified in Kathi Kalu Oghad (supra.). It was observed in the majority opinion by Jagannadhadas, J., at pp. 33-34:

The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that Section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of Clause (3) of Article 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of Section 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion has been used in obtaining the information.

(emphasis supplied)

This position was made amply clear at pp. 35-36:

Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was, in fact, exercised. In other words, it will be a question of fact in each case to be determined by the Court on weighing the facts and circumstances disclosed in the evidence before it.

121. The minority opinion also agreed with the majority’s conclusion on this point since Das Gupta, J., held at p. 47:

Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. It cannot be disputed that by giving such information the accused furnishes evidence, and therefore is a ‘witness’ during the investigation. Unless, however he is ‘compelled’ to give the information he cannot be said to be ‘compelled’ to be a witness; and so Article 20(3) is not infringed. Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases where an accused in custody is compelled to give the information later on sought to be proved under Section 27. There will be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give information it will be an infringement of Article 20(3); but there is no such infringement where he gives the information without any compulsion….

122. We must also address another line of reasoning which was adopted in one of the impugned judgments. It was stated that the exclusionary rule in evidence law is applicable to statements that are inculpatory in nature. Based on this premise, it was observed that at the time of administering the impugned tests, it cannot be ascertained whether the resulting revelations or inferences will prove to be inculpatory or exculpatory in due course. Taking this reasoning forward, it was held that the compulsory administration of the impugned tests should be permissible since the same does not necessarily lead to the extraction of inculpatory evidence. We are unable to agree with this reasoning.

123. The distinction between inculpatory and exculpatory evidence gathered during investigation is relevant for deciding what will be admissible as evidence during the trial stage. The exclusionary rule in evidence law mandates that if inculpatory evidence has been gathered through improper methods (involving coercion, threat or inducement among others) then the same should be excluded from the trial, while there is no such prohibition on the consideration of exculpatory evidence. However, this distinction between the treatment of inculpatory and exculpatory evidence is made retrospectively at the trial stage and it cannot be extended back to the stage of investigation. If we were to permit the admission of involuntary statement on the ground that at the time of asking a question it is not known whether the answer will be inculpatory or exculpatory, the ‘right against self-incrimination’ will be rendered meaningless. The law confers on ‘any person’ who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory. Furthermore, it is also likely that the information or materials collected at an earlier stage of investigation can prove to be inculpatory in due course.

124. However, it is conceivable that in some circumstances the testimony extracted through compulsion may not actually lead to exposure to criminal charges or penalties. For example this is a possibility when the investigators make an offer of immunity against the direct use, derivative use or transactional use of the testimony. Immunity against direct use entails that a witness will not be prosecuted on the basis of the statements made to the investigators. A protection against derivative use implies that a person will not be prosecuted on the basis of the fruits of such testimony. Immunity against transactional use will shield a witness from criminal charges in cases other than the one being investigated. It is of course entirely up to the investigating agencies to decide whether to offer immunity and in what form. Even though this is distinctly possible, it is difficult to conceive of such a situation in the context of the present case. A person who is given an offer of immunity against prosecution is far more likely to voluntarily cooperate with the investigation efforts. This could be in the form of giving testimony or helping in the discovery of material evidence. If a person is freely willing to cooperate with the investigation efforts, it would be redundant to compel such a person to undergo the impugned tests. If reliance on such tests is sought for refreshing a cooperating witness’ memory, the person will in all probability give his/her consent to undergo these tests.

125. It could be argued that the compulsory administration of the impugned tests can prove to be useful in instances where the cooperating witness has difficulty in remembering the relevant facts or is wilfully concealing crucial details. Such situations could very well arise when a person who is a co- accused is offered immunity from prosecution in return for cooperating with the investigators. Even though the right against self-incrimination is not directly applicable in such situations, the relevant legal inquiry is whether the compulsory administration of the impugned tests meets the requisite standard of ‘substantive due process’ for placing restraints on personal liberty.

126. At this juncture, it must be reiterated that Indian law incorporates the ‘rule against adverse inferences from silence’ which is operative at the trial stage. As mentioned earlier, this position is embodied in a conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and Proviso (b) of Section 315(1) of the CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence. This rule was lucidly explained in the English case of Woolmington v. DPP (1935) AC 462, at p. 481:

The ‘right to silence’ is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court.

127. The 180th Report of the Law Commission of India (May 2002) dealt with this very issue. It considered arguments for diluting the ‘rule against adverse inferences from silence’. Apart from surveying several foreign statutes and decisions, the report took note of the fact that Section 342(2) of the erstwhile Code of Criminal Procedure, 1898 permitted the trial judge to draw an inference from the silence of the accused. However, this position was changed with the enactment of the new Code of Criminal Procedure in 1973, thereby prohibiting the making of comments as well as the drawing of inferences from the fact of an accused’s silence. In light of this, the report concluded:

…We have reviewed the law in other countries as well as in India for the purpose of examining whether any amendments are necessary in the Code of Criminal Procedure, 1973. On a review, we find that no changes in the law relating to silence of the accused are necessary and if made, they will be ultra vires of Article 20(3) and Article 21 of the Constitution of India. We recommend accordingly.

128. Some commentators have argued that the ‘rule against adverse inferences from silence’ should be broadly construed in order to give protection against non-penal consequences. It is reasoned that the fact of a person’s refusal to answer questions should not be held against him/her in a wide variety of settings, including those outside the context of criminal trials. A hypothetical illustration of such a setting is a deportation hearing where an illegal immigrant could be deported following a refusal to answer questions or furnish materials required by the concerned authorities. This question is relevant for the present case because a person who refuses to undergo the impugned tests during the investigative stage could face non-penal consequences which lie outside the protective scope of Article 20(3). For example, a person who refuses to undergo these tests could face the risk of custodial violence, increased police surveillance or harassment thereafter. Even a person who is compelled to undergo these tests could face such adverse consequences on account of the contents of the test results if they heighten the investigators’ suspicions. Each of these consequences, though condemnable, fall short of the requisite standard of ‘exposure to criminal charges and penalties’ that has been enumerated in Section 161(2) of the CrPC. Even though Article 20(3) will not be applicable in such circumstances, reliance can be placed on Article 21 if such non-penal consequences amount to a violation of ‘personal liberty’ as contemplated under the Constitution. In the past, this Court has recognised the rights of prisoners (undertrials as well as convicts) as well as individuals in other custodial environments to receive ‘fair, just and equitable’ treatment. For instance in Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, it was decided that practices such as ‘solitary confinement’ and the use of bar- fetters in jails were violative of Article 21. Hence, in circumstances where persons who refuse to answer questions during the investigative stage are exposed to adverse consequences of a non-penal nature, the inquiry should account for the expansive scope of Article 21 rather than the right contemplated by Article 20(3).

I-B. Whether the results derived from the impugned techniques amount to ‘testimonial compulsion’ thereby attracting the bar of Article 20(3)?

129. The next issue is whether the results gathered from the impugned tests amount to ‘testimonial compulsion’, thereby attracting the prohibition of Article 20(3). For this purpose, it is necessary to survey the precedents which deal with what constitutes ‘testimonial compulsion’ and how testimonial acts are distinguished from the collection of physical evidence. Apart from the apparent distinction between evidence of a testimonial and physical nature, some forms of testimonial acts lie outside the scope of Article 20(3). For instance, even though acts such as compulsorily obtaining specimen signatures and handwriting samples are testimonial in nature, they are not incriminating by themselves if they are used for the purpose of identification or corroboration with facts or materials that the investigators are already acquainted with. The relevant consideration for extending the protection of Article 20(3) is whether the materials are likely to lead to incrimination by themselves or ‘furnish a link in the chain of evidence’ which could lead to the same result. Hence, reliance on the contents of compelled testimony comes within the prohibition of Article 20(3) but its use for the purpose of identification or corroboration with facts already known to the investigators is not barred.

130. It is quite evident that the narcoanalysis technique involves a testimonial act. A subject is encouraged to speak in a drug-induced state, and there is no reason why such an act should be treated any differently from verbal answers during an ordinary interrogation. In one of the impugned judgments, the compulsory administration of the narcoanalysis technique was defended on the ground that at the time of conducting the test, it is not known whether the results will eventually prove to be inculpatory or exculpatory. We have already rejected this reasoning. We see no other obstruction to the proposition that the compulsory administration of the narcoanalysis technique amounts to ‘testimonial compulsion’ and thereby triggers the protection of Article 20(3).

131. However, an unresolved question is whether the results obtained through polygraph examination and the BEAP test are of a testimonial nature. In both these tests, inferences are drawn from the physiological responses of the subject and no direct reliance is placed on verbal responses. In some forms of polygraph examination, the subject may be required to offer verbal answers such as ‘Yes’ or ‘No’, but the results are based on the measurement of changes in several physiological characteristics rather than these verbal responses. In the BEAP test, the subject is not required to give any verbal responses at all and inferences are drawn from the measurement of electrical activity in the brain. In the impugned judgments, it has been held that the results obtained from both the Polygraph examination and the BEAP test do not amount to ‘testimony’ thereby lying outside the protective scope of Article 20(3). The same assertion has been reiterated before us by the counsel for the respondents. In order to evaluate this position, we must examine the contours of the expression ‘testimonial compulsion’.

132. The question of what constitutes ‘testimonial compulsion’ for the purpose of Article 20(3) was addressed in M.P. Sharma’s case (supra.). In that case, the Court considered whether the issuance of search warrants in the course of an investigation into the affairs of a company (following allegations of misappropriation and embezzlement) amounted to an infringement of Article 20(3). The search warrants issued under Section 96 of the erstwhile Code of Criminal Procedure, 1898 authorised the investigating agencies to search the premises and seize the documents maintained by the said company. The relevant observations were made by Jagannadhadas, J., at pp. 1087-1088:

…The phrase used in Article 20(3) is ‘to be a witness’. A person can ‘be a witness’ not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness [see Section 119 of the Evidence Act or the like]. ‘To be a witness’ is nothing more than ‘to furnish evidence’, and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes….

Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part….

133. These observations suggest that the phrase ‘to be a witness’ is not confined to oral testimony for the purpose of invoking Article 20(3) and that it includes certain non-verbal forms of conduct such as the production of documents and the making of intelligible gestures. However, in Kathi Kalu Oghad (supra.), there was a disagreement between the majority and minority opinions on whether the expression ‘to be a witness’ was the same as ‘to furnish evidence’. In that case, this Court had examined whether certain statutory provisions, namely – Section 73 of the Evidence Act, Sections 5 and 6 of the Identification of Prisoners Act, 1920 and Section 27 of the Evidence Act were compatible with Article 20(3). Section 73 of the Evidence Act empowered courts to obtain specimen handwriting or signatures and finger impressions of an accused person for purposes of comparison. Sections 5 and 6 of the Identification of Prisoners Act empowered a Magistrate to obtain the photograph or measurements of an accused person. In respect of Section 27 of the Evidence Act, there was an agreement between the majority and the minority opinions that the use of compulsion to extract custodial statements amounts to an exception to the ‘theory of confirmation by subsequent facts’. We have already referred to the relevant observations in an earlier part of this opinion. Both the majority and minority opinions ruled that the other statutory provisions mentioned above were compatible with Article 20(3), but adopted different approaches to arrive at this conclusion. In the majority opinion it was held that the ambit of the expression ‘to be a witness’ was narrower than that of ‘furnishing evidence’. B.P. Sinha, C.J. observed,, (1962) 3 SCR 10, at pp. 29-32:

‘To be a witness’ may be equivalent to ‘furnishing evidence’ in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. ‘Furnishing evidence’ in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that – though they may have intended to protect an accused person from the hazards of self- incrimination, in the light of the English Law on the subject – they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. Furthermore it must be assumed that the Constitution- makers were aware of the existing law, for example, Section 73 of the Evidence Act or Section 5 and 6 of the Identification of Prisoners Act (XXXIII of 1920).

…The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not ‘to be a witness’. ‘To be a witness’ means imparting knowledge in respect of relevant fact, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said ‘to be a witness’ to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma’s case, (1954) SCR 1077, that the prohibition in Clause (3) of Article 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him….

…Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a ‘personal testimony’. The giving of a ‘personal testimony’ must depend on his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to ‘furnishing evidence’ in the larger sense, is not included within the expression ‘to be a witness’.

In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person atleast probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony’.

134. Hence, B.P. Sinha, C.J. construed the expression ‘to be a witness’ as one that was limited to oral or documentary evidence, while further confining the same to statements that could lead to incrimination by themselves, as opposed to those used for the purpose of identification or comparison with facts already known to the investigators. The minority opinion authored by Das Gupta, J. (3 judges) took a different approach, which is evident from the following extracts, Id. at pp. 40-43:

That brings us to the suggestion that the expression ‘to be a witness’ must be limited to a statement whether oral or in writing by an accused person imparting knowledge of relevant facts; but that mere production of some material evidence, whether documentary or otherwise would not come within the ambit of this expression. This suggestion has found favour with the majority of the Bench, we think however that this is an unduly narrow interpretation. We have to remind ourselves that while on the one hand we should bear in mind that the Constitution-makers could not have intended to stifle legitimate modes of investigation we have to remember further that quite clearly they thought that certain things should not be allowed to be done, during the investigation, or trial, however helpful they might seem to be to the unfolding of truth and an unnecessary apprehension of disaster to the police system and the administration of justice, should not deter us from giving the words their proper meaning. It appears to us that to limit the meaning of the words ‘to be a witness’ in Article 20(3) in the manner suggested would result in allowing compulsion to be used in procuring the production from the accused of a large number of documents, which are of evidentiary value, sometimes even more so than any oral statement of a witness might be….

…There can be no doubt that to the ordinary user of English words, the word ‘witness’ is always associated with evidence, so that to say that ‘to be a witness’ is to ‘furnish evidence’ is really to keep to the natural meaning of the words….

…It is clear from the scheme of the various provisions, dealing with the matter that the governing idea is that to be evidence, the oral statement or a statement contained in a document, shall have a tendency to prove a fact – whether it be a fact in issue or a relevant fact – which is sought to be proved. Though this definition of evidence is in respect of proceedings in Court it will be proper, once we have come to the conclusion, that the protection of Article 20(3) is available even at the stage of investigation, to hold that at that stage also the purpose of having a witness is to obtain evidence and the purpose of evidence is to prove a fact.

The illustrations we have given above show clearly that it is not only by imparting of his knowledge that an accused person assists the proving of a fact; he can do so even by other means, such as the production of documents which though not containing his own knowledge would have a tendency to make probable the existence of a fact in issue or a relevant fact.

135. Even though Das Gupta, J. saw no difference between the scope of the expressions ‘to be a witness’ and ‘to furnish evidence’, the learned judge agreed with the majority’s conclusion that for the purpose of invoking Article 20(3) the evidence must be incriminating by itself. This entailed that evidence could be relied upon if it is used only for the purpose of identification or comparison with information and materials that are already in the possession of the investigators. The following observations were made at pp. 45-46:

…But the evidence of specimen handwriting or the impressions of the accused person’s fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself….

…This view, it may be pointed out does not in any way militate against the policy underlying the rule against ‘testimonial compulsion’ we have already discussed above. There is little risk, if at all, in the investigator or the prosecutor being induced to lethargy or inaction because he can get such handwriting or impressions from an accused person. For, by themselves they are of little or of no assistance to bring home the guilt of an accused. Nor is there any chance of the accused to mislead the investigator into wrong channels by furnishing false evidence. For, it is beyond his power to alter the ridges or other characteristics of his hand, palm or finger or to alter the characteristics of his handwriting.

We agree therefore with the conclusion reached by the majority of the Bench that there is no infringement of Article 20(3) of the Constitution by compelling an accused person to give his specimen handwriting or signature; or impressions of his fingers, palm or foot to the investigating officer or under orders of a court for the purpose of comparison under the provisions of Section 73 of the Indian Evidence Act; though we have not been able to agree with the view of our learned brethren that ‘to be a witness’ in Article 20(3) should be equated with the imparting of personal knowledge or that an accused does not become a witness when he produces some document not in his own handwriting even though it may tend to prove facts in issue or relevant facts against him.

136. Since the majority decision in Kathi Kalu Oghad (supra.) is the controlling precedent, it will be useful to re- state the two main premises for understanding the scope of ‘testimonial compulsion’. The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to ‘personal testimony’ thereby coming within the prohibition contemplated by Article 20(3). In most cases, such ‘personal testimony’ can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators. The bar of Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or ‘furnish a link in the chain of evidence’ needed to do so. We must emphasize that a situation where a testimonial response is used for comparison with facts already known to investigators is inherently different from a situation where a testimonial response helps the investigators to subsequently discover fresh facts or materials that could be relevant to the ongoing investigation.

137. The recognition of the distinction between testimonial acts and physical evidence for the purpose of invoking Article 20(3) of the Constitution finds a close parallel in some foreign decisions. In Armando Schmerber v. California 384 US 757 (1966), the U.S. Supreme Court had to determine whether an involuntary blood test of a defendant had violated the Fifth Amendment. The defendant was undergoing treatment at a hospital following an automobile accident. A blood sample was taken against his will at the direction of a police officer. Analysis of the same revealed that Schmerber had been intoxicated and these results were admitted into evidence, thereby leading to his conviction for drunk driving. An objection was raised on the basis of the Fifth Amendment and the majority opinion (Brennan, J.) relied on a distinction between evidence of a ‘testimonial’ or ‘communicative’ nature as opposed to evidence of a ‘physical’ or ‘real nature’, concluding that the privilege against self-incrimination applied to the former but not to the latter. In arriving at this decision, reference was made to several precedents with a prominent one being United States v. Holt 218 US 245 (1910). In that case, a defendant was forced to try on an article of clothing during the course of investigation. It had been ruled that the privilege against self-incrimination prohibited the use of compulsion to ‘extort communications’ from the defendant, but not the use of the defendant’s body as evidence.

138. In addition to citing John Wigmore’s position that ‘the privilege is limited to testimonial disclosures’ the Court in Schmerber also took note of other examples where it had been held that the privilege did not apply to physical evidence, which included ‘compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.’ However, it was cautioned that the privilege applied to testimonial communications, irrespective of what form they might take. Hence it was recognised that the privilege not only extended to verbal communications, but also to written words as well as gestures intended to communicate [for, e.g., pointing or nodding]. This line of thinking becomes clear because the majority opinion indicated that the distinction between testimonial and physical acts may not be readily applicable in the case of Lie-Detector tests. Brennan, J. had noted, 384 US 757 (1966), at p. 764:

Although we agree that this distinction is a helpful framework for analysis, we are not to be understood to agree with past applications in all instances. There will be many cases in which such a distinction is not readily drawn. Some tests seemingly directed to obtain ‘physical evidence,’ for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege ‘is as broad as the mischief against which it seeks to guard.’ […]

In a recently published paper, Michael S. Pardo (2008) has made the following observation in respect of this judgment [Cited from: Michael S. Pardo, ‘Self-Incrimination and the Epistemology of Testimony’, 30 Cardozo Law Review 1023-1046 (December 2008) at pp. 1027-1028]:

the Court notes that even the physical-testimonial distinction may break down when physical evidence is meant to compel ‘responses which are essentially testimonial’ such as a lie-detector test measuring physiological responses during interrogation.

139. Following the Schmerber decision (supra.), the distinction between physical and testimonial evidence has been applied in several cases. However, some complexities have also arisen in the application of the testimonial-physical distinction to various fact-situations. While we do not need to discuss these cases to decide the question before us, we must take note of the fact that the application of the testimonial- physical distinction can be highly ambiguous in relation to non-verbal forms of conduct which nevertheless convey relevant information. Among other jurisdictions, the European Court of Human Rights (ECtHR) has also taken note of the distinction between testimonial and physical acts for the purpose of invoking the privilege against self-incrimination. In Saunders v. United Kingdom (1997) 23 EHRR 313, it was explained:

…The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence… The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing.

Evolution of the law on ‘medical examination’

140. With respect to the testimonial-physical distinction, an important statutory development in our legal system was the introduction of provisions for medical examination with the overhauling of the Code of Criminal Procedure in 1973. Sections 53 and 54 of the CrPC contemplate the medical examination of a person who has been arrested, either at the instance of the investigating officer or even the arrested person himself. The same can also be done at the direction of the jurisdictional court.

141. However, there were no provisions for authorising such a medical examination in the erstwhile Code of Criminal Procedure, 1898. The absence of a statutory basis for the same had led courts to hold that a medical examination could not be conducted without the prior consent of the person who was to be subjected to the same. For example in Bhondar v. Emperor, AIR 1931 Cal 601, Lord Williams, J. held, at p. 602:

If it were permitted forcibly to take hold of a prisoner and examine his body medically for the purpose of qualifying some medical witness to give medical evidence in the case against the accused there is no knowing where such procedure would stop.

…Any such examination without the consent of the accused would amount to an assault and I am quite satisfied that the police are not entitled without statutory authority to commit assaults upon prisoners for the purpose of procuring evidence against them. If the legislature desires that evidence of this kind should be given, it will be quite simple to add a short section to the Code of Criminal Procedure expressly giving power to order such a medical examination.”

S.K. Ghose, J. concurred, at p. 604:

Nevertheless the examination of an arrested person in hospital by a doctor, not for the benefit of the prisoner’s health, but simply by way of a second search, is not provided for by Code, and is such a case the doctor may not examine the prisoner without his consent. It would be a rule of caution to have such consent noted in the medical report, so that the doctor would be in a position to testify to such consent if called upon to do so.

A similar conclusion was arrived at by Tarkunde, J. in Deomam Shamji Patel v. State of Maharashtra, AIR 1959 Bom 284, who held that a person suspected or accused of having committed an offence cannot be forcibly subjected to a medical examination. It was also held that if police officers use force for this purpose, then a person can lawfully exercise the right of private defence to offer resistance.

142. It was the 37th and 41st Reports of the Law Commission of India which recommended the insertion of a provision in the Code of Criminal Procedure to enable medical examination without the consent of an accused. These recommendations proved to be the precursor for the inclusion of Sections 53 and 54 in the Code of Criminal Procedure, 1973. It was observed in the 37th Report (December 1967), at pp. 205-206:

…It will suffice to refer to the decision of the Supreme Court in Kathi Kalu, AIR 1961 SC 1808 which has the effect of confining the privilege under Article 20(3) to testimony – written or oral. [Fn …] The Supreme Court’s judgment in Kathi Kalu should be taken as overruling the view taken in some earlier decisions, [Fn 6, 7 …] invalidating provisions similar to Section 5, Identification of Prisoners Act, 1920.

The position in the U.S.A. has been summarised [Fn 8 – Emerson G., ‘Due Process and the American Criminal Trial’, 33 Australian Law Journal 223, 231 (1964)]

‘Less certain is the protection accorded to the defendant with regard to non-testimonial physical evidence other than personal papers. Can the accused be forced to supply a sample of his blood or urine if the resultant tests are likely to further the prosecution’s case? Can he be forced to give his finger prints to wear a disguise or certain clothing, to supply a pair of shoes which might match footprints at the scene of the crime, to stand in a line-up, to submit to a hair cut or to having his hair dyed, or to have his stomach pumped or a fluoroscopic examination of the contents of his intestines? The literature on this aspect of self- incrimination is voluminous. [Fn…]

The short and reasonably accurate answer to the question posed is that almost all such physical acts can be required. [Fn…] Influenced by the historical development of the doctrine, its purpose, and the need to balance the conflicting interests of the individual and society, the courts have generally restricted the protection of the Fifth Amendment to situations where the defendant would be required to convey ideas, or where the physical acts would offend the decencies of civilized conduct.

(some internal citations omitted)

Taking note of Kathi Kalu Oghad (supra.) and the distinction drawn between testimonial and physical acts in American cases, the Law Commission observed that a provision for examination of the body would reveal valuable evidence. This view was taken forward in the 41st Report which recommended the inclusion of a specific provision to enable medical examination during the course of investigation, irrespective of the subject’s consent. [See: 41st Report of the Law Commission of India, Vol. I (September 1969), Para 5.1 at p. 37]

143. We were also alerted to some High Court decisions which have relied on Kathi Kalu Oghad (supra.) to approve the taking of physical evidence such as blood and hair samples in the course of investigation. Following the overhaul of the Code of Criminal Procedure in 1973, the position became amply clear. In recent years, the judicial power to order a medical examination, albeit in a different context, has been discussed by this Court in Sharda v. Dharampal, (2003) 4 SCC 493. In that case, the contention related to the validity of a civil court’s direction for conducting a medical examination to ascertain the mental state of a party in a divorce proceeding. Needless to say, the mental state of a party was a relevant issue before the trial court, since insanity is a statutory ground for obtaining divorce under the Hindu Marriage Act, 1955. S.B. Sinha, J. held that Article 20(3) was anyway not applicable in a civil proceeding and that the civil court could direct the medical examination in exercise of its inherent powers under Section 151 of the Code of Civil Procedure, since there was no ordinary statutory basis for the same. It was observed, Id. at p. 508:

Yet again the primary duty of a court is to see that truth is arrived at. A party to a civil litigation, it is axiomatic, is not entitled to constitutional protections under Article 20 of the Constitution of India. Thus, the civil court although may not have any specific provisions in the Code of Civil Procedure and the Evidence Act, has an inherent power in terms of Section 151 of the Code of Civil Procedure to pass all orders for doing complete justice to the parties to the suit.

Discretionary power under Section 151 of the Code of Civil Procedure, it is trite, can be exercised also on an application filed by the party. In certain cases medical examination by the experts in the field may not only be found to be leading to the truth of the matter but may also lead to removal of misunderstanding between the parties. It may bring the parties to terms. Having regard to development in medicinal technology, it is possible to find out that what was presumed to be a mental disorder of a spouse is not really so. In matrimonial disputes, the court also has a conciliatory role to play – even for the said purpose it may require expert advice.

Under Section 75(e) of the Code of Civil Procedure and Order 26, Rule 10-A the civil court has the requisite power to issue a direction to hold a scientific, technical or expert investigation.

144. The decision had also cited some foreign precedents dealing with the authority of investigators and courts to require the collection of DNA samples for the purpose of comparison. In that case the discussion centered on the ‘right to privacy’. So far, the authority of investigators and courts to compel the production of DNA samples has been approved by the Orissa High Court in Thogorani v. State of Orissa 2004 Cri L J 4003 (Ori).

145. At this juncture, it should be noted that the Explanation to Sections 53, 53A and 54 of the Code of Criminal Procedure, 1973 was amended in 2005 to clarify the scope of medical examination, especially with regard to the extraction of bodily substances. The amended provision reads:

53. Examination of accused by medical practitioner at the request of police officer.-

(1) 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 a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

Explanation. – In this section and in Sections 53A and 54, –

(a) ‘examination’ shall include the examination of blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;

(b)’registered medical practitioner’ means a medical practitioner who possesses any medical qualification as defined in Clause (h) of Section 2 of the Indian Medical Council Act , 1956 (102 of 1956) and whose name has been entered in a State Medical Register.

(emphasis supplied)

146. The respondents have urged that the impugned techniques should be read into the relevant provisions – i.e. Sections 53 and 54 of CrPC. As described earlier, a medical examination of an arrested person can be directed during the course of an investigation, either at the instance of the investigating officer or the arrested person. It has also been clarified that it is within the powers of a court to direct such a medical examination on its own. Such an examination can also be directed in respect of a person who has been released from custody on bail as well as a person who has been granted anticipatory bail. Furthermore, Section 53 contemplates the use of ‘force as is reasonably necessary’ for conducting a medical examination. This means that once a court has directed the medical examination of a particular person, it is within the powers of the investigators and the examiners to resort to a reasonable degree of physical force for conducting the same.

147. The contentious provision is the Explanation to Sections 53, 53A and 54 of the CrPC (amended in 2005) which has been reproduced above. It has been contended that the phrase ‘modern and scientific techniques including DNA profiling and such other tests’ should be liberally construed to include the impugned techniques. It was argued that even though the narcoanalysis technique, polygraph examination and the BEAP test have not been expressly enumerated, they could be read in by examining the legislative intent. Emphasis was placed on the phrase ‘and such other tests’ to argue that the Parliament had chosen an approach where the list of ‘modern and scientific techniques’ contemplated was illustrative and not exhaustive. It was also argued that in any case, statutory provisions can be liberally construed in light of scientific advancements. With the development of newer technologies, their use can be governed by older statutes which had been framed to regulate the older technologies used for similar purposes.

148. On the other hand, the counsel for the appellants have contended that the Parliament was well aware of the impugned techniques at the time of the 2005 amendment and consciously chose not to include them in the amended Explanation to Sections 53, 53A and 54 of the CrPC. It was reasoned that this choice recognised the distinction between testimonial acts and physical evidence. While bodily substances such as blood, semen, sputum, sweat, hair and fingernail clippings can be readily characterised as physical evidence, the same cannot be said for the techniques in question. This argument was supported by invoking the rule of ‘ejusdem generis’ which is used in the interpretation of statutes. This rule entails that the meaning of general words which follow specific words in a statutory provision should be construed in light of the commonality between those specific words. In the present case, the substances enumerated are all examples of physical evidence. Hence the words ‘and such other tests’ which appear in the Explanation to Sections 53, 53A and 54 of the CrPC should be construed to include the examination of physical evidence but not that of testimonial acts.

149. We are inclined towards the view that the results of the impugned tests should be treated as testimonial acts for the purpose of invoking the right against self-incrimination. Therefore, it would be prudent to state that the phrase ‘and such other tests’ [which appears in the Explanation to Sections 53, 53A and 54 of the CrPC] should be read so as to confine its meaning to include only those tests which involve the examination of physical evidence. In pursuance of this line of reasoning, we agree with the appellant’s contention about the applicability of the rule of ‘ejusdem generis’. It should also be noted that the Explanation to Sections 53, 53A and 54 of the CrPC does not enumerate certain other forms of medical examination that involve testimonial acts, such as psychiatric examination among others. This demonstrates that the amendment to this provision was informed by a rational distinction between the examination of physical substances and testimonial acts.

150. However, the submissions touching on the legislative intent require some reflection. While it is most likely that the Parliament was well aware of the impugned techniques at the time of the 2005 amendment to the CrPC and deliberately chose not to enumerate them, we cannot arrive at a conclusive finding on this issue. While it is open to courts to examine the legislative history of a statutory provision, it is not proper for us to try and conclusively ascertain the legislative intent. Such an inquiry is impractical since we do not have access to all the materials which would have been considered by the Parliament. In such a scenario, we must address the respondent’s arguments about the interpretation of statutes with regard to scientific advancements. To address this aspect, we can refer to some extracts from a leading commentary on the interpretation of statutes [See: Justice G.P. Singh, Principles of Statutory Interpretation, 10th edn. (New Delhi: Wadhwa & Co. Nagpur, 2006) at pp. 239-247]. The learned author has noted, at pp. 240-241:

Reference to the circumstances existing at the time of the passing of the statute does not, therefore, mean that the language used, at any rate, in a modern statute, should be held to be inapplicable to social, political and economic developments or to scientific inventions not known at the time of the passing of the statute…. The question again is as to what was the intention of the law makers: Did they intend as originalists may argue, that the words of the statute be given the meaning they would have received immediately after the statute’s enactment or did they intend as dynamists may contend that it would be proper for the court to adopt the current meaning of the words? The courts have now generally leaned in favour of dynamic construction. […] But the doctrine has also its limitations. For example it does not mean that the language of an old statute can be construed to embrace something conceptually different.

The guidance on the question as to when an old statute can apply to new state of affairs not in contemplation when the statute was enacted was furnished by Lord Wilberforce in his dissenting speech in Royal College of Nursing of the U.K. v. Dept. of Health and Social Security (1981) 1 All ER 545, which is now treated as authoritative. (…) Lord Wilberforce said, at pp. 564-565:

In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliament’s policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend on the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the new subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take under the law of this country: they cannot fill gaps; they cannot by asking the question, ‘What would Parliament have done in this current case, not being one in contemplation, if the facts had been before it?’ attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.

(internal citations omitted)

151. The learned author has further taken note of several decisions where general words appearing in statutory provisions have been liberally interpreted to include newer scientific inventions and technologies. [Id. at pp. 244-246] The relevant portion of the commentary quotes Subbarao, J. in Senior Electric Inspector v. Laxminarayan Chopra, AIR 1962 SC 159, at p. 163:

It is perhaps difficult to attribute to a legislative body functioning in a static society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them.

152. In light of this discussion, there are some clear obstructions to the dynamic interpretation of the amended Explanation to Sections 53, 53A and 54 of the CrPC. Firstly, the general words in question, i.e. ‘and such other tests’ should ordinarily be read to include tests which are in the same genus as the other forms of medical examination that have been specified. Since all the explicit references are to the examination of bodily substances, we cannot readily construe the said phrase to include the impugned tests because the latter seem to involve testimonial responses. Secondly, the compulsory administration of the impugned techniques is not the only means for ensuring an expeditious investigation. Furthermore, there is also a safe presumption that Parliament was well aware of the existence of the impugned techniques but deliberately chose not to enumerate them. Hence, on an aggregate understanding of the materials produced before us we lean towards the view that the impugned tests, i.e. the narcoanalysis technique, polygraph examination and the BEAP test should not be read into the provisions for ‘medical examination’ under the Code of Criminal Procedure, 1973.

153. However, it must be borne in mind that even though the impugned techniques have not been expressly enumerated in the CrPC, there is no statutory prohibition against them either. It is a clear case of silence in the law. Furthermore, in circumstances where an individual consents to undergo these tests, there is no dilution of Article 20(3). In the past, the meaning and scope of the term ‘investigation’ has been held to include measures that had not been enumerated in statutory provisions. For example, prior to the enactment of an express provision for medical examination in the CrPC, it was observed in Mahipal Maderna v. State of Maharashtra 1971 Cri L J 1405 (Bom), that an order requiring the production of a hair sample comes within the ordinary understanding of ‘investigation’ (at pp. 1409-1410, Para. 17). We must also take note of the decision in Jamshed v. State of Uttar Pradesh 1976 Cri L J 1680 (All), wherein it was held that a blood sample can be compulsorily extracted during a ‘medical examination’ conducted under Section 53 of the CrPC. At that time, the collection of blood samples was not expressly contemplated in the said provision. Nevertheless, the Court had ruled that the phrase ‘examination of a person’ should be read liberally so as to include an examination of what is externally visible on a body as well as the examination of an organ inside the body. [See p. 1689, Para 13]

154. We must also refer back to the substance of the decision in Sharda v. Dharampal, (supra.) which upheld the authority of a civil court to order a medical examination in exercise of the inherent powers vested in it by Section 151 of the Code of Civil Procedure, 1908. The same reasoning cannot be readily applied in the criminal context. Despite the absence of a statutory basis, it is tenable to hold that criminal courts should be allowed to direct the impugned tests with the subject’s consent, keeping in mind that there is no statutory prohibition against them either.

155. Another pertinent contention raised by the appellants is that the involvement of medical personnel in the compulsory administration of the impugned tests is violative of their professional ethics. In particular, criticism was directed against the involvement of doctors in the narcoanalysis technique and it was urged that since the content of the drug- induced revelations were shared with investigators, this technique breaches the duty of confidentiality which should be ordinarily maintained by medical practitioners. [See generally: Amar Jesani, ‘Willing participants and tolerant profession: Medical ethics and human rights in narco-analysis’, Indian Journal of Medical Ethics, Vol. 16(3), July-Sept. 2008] The counsel have also cited the text of the ‘Principles of Medical Ethics’ adopted by the United Nations General Assembly [GA Res. 37/194, 111th Plenary Meeting] on December 18, 1982. This document enumerates some ‘Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture, and other cruel, inhuman or degrading treatment of punishment’. Emphasis was placed on Principle 4 which reads:

Principle 4

It is a contravention of medical ethics for health personnel, particularly physicians:

To apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments;

156. Being a court of law, we do not have the expertise to mould the specifics of professional ethics for the medical profession. Furthermore, the involvement of doctors in the course of investigation in criminal cases has long been recognised as an exception to the physician-patient privilege. In the Indian context, the statutory provisions for directing a medical examination are an example of the same. Fields such as forensic toxicology have become important in criminal- justice systems all over the world and doctors are frequently called on to examine bodily substances such as samples of blood, hair, semen, saliva, sweat, sputum and fingernail clippings as well as marks, wounds and other physical characteristics. A reasonable limitation on the forensic uses of medical expertise is the fact that testimonial acts such as the results of a psychiatric examination cannot be used as evidence without the subject’s informed consent.

Results of impugned tests should be treated as ‘personal testimony’

157. We now return to the operative question of whether the results obtained through polygraph examination and the BEAP test should be treated as testimonial responses. Ordinarily evidence is classified into three broad categories, namely oral testimony, documents and material evidence. The protective scope of Article 20(3) read with Section 161(2), CrPC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability of Article 20(3) is decided by the trial judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that is already in the possession of investigators.

158. We have already stated that the narcoanalysis test includes substantial reliance on verbal statements by the test subject and hence its involuntary administration offends the ‘right against self-incrimination’. The crucial test laid down in Kathi Kalu Oghad, (supra.) is that of ‘imparting knowledge in respect of relevant fact by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation’ [Id. at p. 30]. The difficulty arises since the majority opinion in that case appears to confine the understanding of ‘personal testimony’ to the conveyance of personal knowledge through oral statements or statements in writing. The results obtained from polygraph examination or a BEAP test are not in the nature of oral or written statements. Instead, inferences are drawn from the measurement of physiological responses recorded during the performance of these tests. It could also be argued that tests such as polygraph examination and the BEAP test do not involve a ‘positive volitional act’ on part of the test subject and hence their results should not be treated as testimony. However, this does not entail that the results of these two tests should be likened to physical evidence and thereby excluded from the protective scope of Article 20(3). We must refer back to the substance of the decision in Kathi Kalu Oghad (supra.) which equated a testimonial act with the imparting of knowledge by a person who has personal knowledge of the facts that are in issue. It has been recognised in other decisions that such personal knowledge about relevant facts can also be communicated through means other than oral or written statements. For example in M.P. Sharma’s case (supra.), it was noted that “…evidence can be furnished through the lips or by production of a thing or of a document or in other modes” [Id. at p. 1087]. Furthermore, common sense dictates that certain communicative gestures such as pointing or nodding can also convey personal knowledge about a relevant fact, without offering a verbal response. It is quite foreseeable that such a communicative gesture may by itself expose a person to ‘criminal charges or penalties’ or furnish a link in the chain of evidence needed for prosecution.

159. We must also highlight that there is nothing to show that the learned judges in Kathi Kalu Oghad (supra.) had contemplated the impugned techniques while discussing the scope of the phrase ‘to be a witness’ for the purpose of Article 20(3). At that time, the transmission of knowledge through means other than speech or writing was not something that could have been easily conceived of. Techniques such as polygraph examination were fairly obscure and were the subject of experimentation in some Western nations while the BEAP technique was developed several years later. Just as the interpretation of statutes has to be often re-examined in light of scientific advancements, we should also be willing to re-examine judicial observations with a progressive lens. An explicit reference to the Lie-Detector tests was of course made by the U.S. Supreme Court in the Schmerber decision, 384 US 757 (1966), wherein Brennan, J. had observed, at p. 764:

To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment.

160. Even though the actual process of undergoing a polygraph examination or a BEAP test is not the same as that of making an oral or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject’s mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject’s physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject’s familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact. It is also significant that unlike the case of documents, the investigators cannot possibly have any prior knowledge of the test subject’s thoughts and memories, either in the actual or constructive sense. Therefore, even if a highly-strained analogy were to be made between the results obtained from the impugned tests and the production of documents, the weight of precedents leans towards restrictions on the extraction of ‘personal knowledge’ through such means.

161. During the administration of a polygraph test or a BEAP test, the subject makes a mental effort which is accompanied by certain physiological responses. The measurement of these responses then becomes the basis of the transmission of knowledge to the investigators. This knowledge may aid an ongoing investigation or lead to the discovery of fresh evidence which could then be used to prosecute the test subject. In any case, the compulsory administration of the impugned tests impedes the subject’s right to choose between remaining silent and offering substantive information. The requirement of a ‘positive volitional act’ becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition.

162. Some academics have also argued that the results obtained from tests such as polygraph examination are ‘testimonial’ acts that should come within the prohibition of the right against self-incrimination. For instance, Michael S. Pardo (2008) has observed [Cited from: Michael S. Pardo, ‘Self- Incrimination and the Epistemology of Testimony’, 30 Cardozo Law Review 1023-1046 (December 2008) at p. 1046]:

The results of polygraphs and other lie-detection tests, whether they call for a voluntary response or not, are testimonial because the tests are just inductive evidence of the defendant’s epistemic state. They are evidence that purports to tell us either: (1) that we can or cannot rely on the assertions made by the defendant and for which he has represented himself to be an authority, or (2) what propositions the defendant would assume authority for and would invite reliance upon, were he to testify truthfully.

163. Ronald J. Allen and M. Kristin Mace (2004) have offered a theory that the right against self-incrimination is meant to protect an individual in a situation where the State places reliance on the ‘substantive results of cognition’. The following definition of ‘cognition’ has been articulated to explain this position [Cited from: Ronald J. Allen and M. Kristin Mace, ‘The Self-Incrimination Clause explained and its future predicted’, 94 Journal of Criminal Law and Criminology 243-293 (2004), Fn. 16 at p. 247]:

…’Cognition’ is used herein to refer to these intellectual processes that allow one to gain and make use of substantive knowledge and to compare one’s ‘inner world’ (previous knowledge) with the ‘outside world’ (stimuli such as questions from an interrogator). Excluded are simple psychological responses to stimuli such as fear, warmness, and hunger: the mental processes that produce muscular movements; and one’s will or faculty for choice….

(internal citations omitted)

164. The above-mentioned authors have taken a hypothetical example where the inferences drawn from an involuntary polygraph test that did not require verbal answers, led to the discovery of incriminating evidence. They have argued that if the scope of the Fifth Amendment extends to protecting the subject in respect of ‘substantive results of cognition’, then reliance on polygraph test results would violate the said right. A similar conclusion has also been made by the National Human Rights Commission, as evident from the following extract in the Guidelines Relating to Administration of Polygraph Test [Lie Detector Test] on an Accused (2000):

The extent and nature of the ‘self-incrimination’ is wide enough to cover the kinds of statements that were sought to be induced. In M.P. Sharma, AIR 1954 SC 300, the Supreme Court included within the protection of the self- incrimination rule all positive volitional acts which furnish evidence. This by itself would have made all or any interrogation impossible. The test – as stated in Kathi Kalu Oghad, AIR 1961 SC 1808 – retains the requirement of personal volition and states that ‘self- incrimination’ must mean conveying information based upon the personal knowledge of the person giving information. By either test, the information sought to be elicited in a Lie Detector Test is information in the personal knowledge of the accused.

165. In light of the preceding discussion, we are of the view that the results obtained from tests such as polygraph examination and the BEAP test should also be treated as ‘personal testimony’, since they are a means for ‘imparting personal knowledge about relevant facts’. Hence, our conclusion is that the results obtained through the involuntary administration of either of the impugned tests (i.e. the narcoanalysis technique, polygraph examination and the BEAP test) come within the scope of ‘testimonial compulsion’, thereby attracting the protective shield of Article 20(3).

II. Whether the involuntary administration of the impugned techniques is a reasonable restriction on ‘personal liberty’ as understood in the context of Article 21 of the Constitution?

166. The preceding discussion does not conclusively address the contentions before us. Article 20(3) protects a person who is ‘formally accused’ of having committed an offence or even a suspect or a witness who is questioned during an investigation in a criminal case. However, Article 20(3) is not applicable when a person gives his/her informed consent to undergo any of the impugned tests. It has also been described earlier that the ‘right against self-incrimination’ does not protect persons who may be compelled to undergo the tests in the course of administrative proceedings or any other proceedings which may result in civil liability. It is also conceivable that a person who is forced to undergo these tests may not subsequently face criminal charges. In this context, Article 20(3) will not apply in situations where the test results could become the basis of non-penal consequences for the subject such as custodial abuse, police surveillance and harassment among others.

167. In order to account for these possibilities, we must examine whether the involuntary administration of any of these tests is compatible with the constitutional guarantee of ‘substantive due process’. The standard of ‘substantive due process’ is of course the threshold for examining the validity of all categories of governmental action that tend to infringe upon the idea of ‘personal liberty. We will proceed with this inquiry with regard to the various dimensions of ‘personal liberty’ as understood in the context of Article 21 of the Constitution, which lays down that:

‘No person shall be deprived of his life and liberty except according to procedure established by law’.

168. Since administering the impugned tests entails the physical confinement of the subject, it is important to consider whether they can be read into an existing statutory provision. This is so because any form of restraint on personal liberty, howsoever slight it may be, must have a basis in law. However, we have already explained how it would not be prudent to read the explanation to Sections 53, 53A and 54 of the CrPC in an expansive manner so as to include the impugned techniques. The second line of inquiry is whether the involuntary administration of these tests offends certain rights that have been read into Article 21 by way of judicial precedents. The contentions before us have touched on aspects such as the ‘right to privacy’ and the ‘right against cruel, inhuman and degrading treatment’. The third line of inquiry is structured around the right to fair trial which is an essential component of ‘personal liberty’.

169. There are several ways in which the involuntary administration of either of the impugned tests could be viewed as a restraint on ‘personal liberty’. The most obvious indicator of restraint is the use of physical force to ensure that an unwilling person is confined to the premises where the tests are to be conducted. Furthermore, the drug-induced revelations or the substantive inferences drawn from the measurement of the subject’s physiological responses can be described as an intrusion into the subject’s mental privacy. It is also quite conceivable that a person could make an incriminating statement on being threatened with the prospective administration of any of these techniques. Conversely, a person who has been forcibly subjected to these techniques could be confronted with the results in a subsequent interrogation, thereby eliciting incriminating statements.

170. We must also account for circumstances where a person who undergoes the said tests is subsequently exposed to harmful consequences, though not of a penal nature. We have already expressed our concern with situations where the contents of the test results could prompt investigators to engage in custodial abuse, surveillance or undue harassment. We have also been apprised of some instances where the investigation agencies have leaked the video-recordings of narcoanalysis interviews to media organisations. This is an especially worrisome practice since the public distribution of these recordings can expose the subject to undue social stigma and specific risks. It may even encourage acts of vigilantism in addition to a ‘trial by media’.

171. We must remember that the law does provide for some restrictions on ‘personal liberty’ in the routine exercise of police powers. For instance, the CrPC incorporates an elaborate scheme prescribing the powers of arrest, detention, interrogation, search and seizure. A fundamental premise of the criminal justice system is that the police and the judiciary are empowered to exercise a reasonable degree of coercive powers. Hence, the provision that enables Courts to order a person who is under arrest to undergo a medical examination also provides for the use of ‘force as is reasonably necessary’ for this purpose. It is evident that the notion of ‘personal liberty’ does not grant rights in the absolute sense and the validity of restrictions placed on the same needs to be evaluated on the basis of criterion such as ‘fairness, non- arbitrariness, and reasonableness’.

172. Both the appellants and the respondents have cited cases involving the compelled extraction of blood samples in a variety of settings. An analogy has been drawn between the pin-prick of a needle for extracting a blood sample and the intravenous administration of drugs such as sodium pentothal. Even though the extracted sample of blood is purely physical evidence as opposed to a narcoanalysis interview where the test subject offers testimonial responses, the comparison can be sustained to examine whether puncturing the skin with a needle or an injection is an unreasonable restraint on ‘personal liberty’.

173. The decision given by the U.S. Supreme Court in Rochin v. California 342 US 165 (1952), recognised the threshold of ‘conduct that shocks the conscience’ for deciding when the extraction of physical evidence offends the guarantee of ‘due process of law’. With regard to the facts in that case, Felix Frankfurter, J. had decided that the extraction of evidence had indeed violated the same, Id. at pp. 172-173:

…we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents – this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.

…Use of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though statements contained in them may be independently established as true. Coerced confessions offend the community’s sense of fair play and decency. So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.

174. Coming to the cases cited before us, in State of Maharashtra v. Sheshappa Dudhappa Tambade AIR 1964 Bom 253, the Bombay High Court had upheld the constitutionality of Section 129A of the Bombay Prohibition Act, 1949. This provision empowered prohibition officers and police personnel to produce a person for ‘medical examination’, which could include the collection of a blood sample. The said provision authorised the use of ‘all means reasonably necessary to secure the production of such person or the examination of his body or the collection of blood necessary for the test’. Evidently, the intent behind this provision was to enforce the policy of prohibition on the consumption of intoxicating liquors. Among other questions, the Court also ruled that this provision did not violate Article 21. Reliance was placed on a decision of the U.S. Supreme Court in Paul H. Breithaupt v. Morris Abram 352 US 432 (1957), wherein the contentious issue was whether a conviction on the basis of an involuntary blood-test violated the guarantee of ‘due process of law’. In deciding that the involuntary extraction of the blood sample did not violate the guarantee of ‘Due Process of Law’, Clark, J. observed, at pp. 435-437:

…there is nothing ‘brutal’ or ‘offensive’ in the taking of a blood sample when done as in this case, under the protective eye of a physician. To be sure, the driver here was unconscious when the blood was taken, but the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional right and certainly the test administered here would not be considered offensive by even the most delicate. Furthermore, due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of ‘decency and fairness’ that has been woven by common experience into the fabric of acceptable conduct. It is on this bedrock that this Court has established the concept of due process. The blood test procedure has become routine in our everyday life. It is a ritual for those going into the military service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same, though a longer, routine in becoming blood donors. Likewise, we note that a majority of our States have either enacted statutes in some form authorizing tests of this nature or permit findings so obtained to be admitted in evidence. We therefore conclude that a blood test taken by a skilled technician is not such ‘conduct that shocks the conscience’ [Rochin v. California 342 US 165, 172 (1952)], nor such a method of obtaining evidence that it offends a ‘sense of justice’ [Brown v. Mississippi 297 US 278, 285 (1936)]…

175. In Jamshed v. State of Uttar Pradesh 1976 Cri L J 1680 (All), the following observations were made in respect of a compulsory extraction of blood samples during a medical examination (in Para 12):

We are therefore of the view that there is nothing repulsive or shocking to the conscience in taking the blood of the appellant in the instant case in order to establish his guilt. So far as the question of causing hurt is concerned, even causing of some pain may technically amount to hurt as defined by Section 319 of the Indian Penal Code. But pain might be caused even if the accused is subjected to a forcible medical examination. For example, in cases of rape it may be necessary to examine the private parts of the culprit. 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 purposes the law permits the use of necessary force. It cannot, therefore, be said that merely because some pain is caused, such a procedure should not be permitted.

A similar view was taken in Ananth Kumar Naik v. State of Andhra Pradesh 1977 Cri L J 1797 (A.P.), where it was held (in Para. 20):

…In fact Section 53 provides that while making such an examination such force as is reasonably necessary for that purpose may be used. Therefore, whatever discomfort that may be caused when samples of blood and semen are taken from an arrested person, it is justified by the provisions of Sections 53 and 54, CrPC.

We can also refer to the following observations in Anil Anantrao Lokhande v. State of Maharashtra 1981 Cri L J 125 (Bom), (in Para. 30):

…Once it is held that Section 53 of the Code of Criminal Procedure does confer a right upon the investigating machinery to get the arrested persons medically examined by the medical practitioner and the expression used in Section 53 includes in its import the taking of sample of the blood for analysis, then obviously the said provision is not violative of the guarantee incorporated in Article 21 of the Constitution of India.

176. This line of precedents shows that the compelled extraction of blood samples in the course of a medical examination does not amount to ‘conduct that shocks the conscience’. There is also an endorsement of the view that the use of ‘force as may be reasonably necessary’ is mandated by law and hence it meets the threshold of ‘procedure established by law’. In this light, we must restate two crucial considerations that are relevant for the case before us. Firstly, the restrictions placed on ‘personal liberty’ in the course of administering the impugned techniques are not limited to physical confinement and the extraction of bodily substances. All the three techniques in question also involve testimonial responses. Secondly, most of the above-mentioned cases were decided in accordance with the threshold of ‘procedure established by law’ for restraining ‘personal liberty’. However, in this case we must use a broader standard of reasonableness to evaluate the validity of the techniques in question. This wider inquiry calls for deciding whether they are compatible with the various judicially-recognised dimensions of ‘personal liberty’ such as the right to privacy, the right against cruel, inhuman or degrading treatment and the right to fair trial.

Applicability of the ‘right to privacy’

177. In Sharda v. Dharampal, (supra.) this Court had upheld the power of a civil court to order the medical examination of a party to a divorce proceeding. In that case, the medical examination was considered necessary for ascertaining the mental condition of one of the parties and it was held that a civil court could direct the same in the exercise of its inherent powers, despite the absence of an enabling provision. In arriving at this decision it was also considered whether subjecting a person to a medical examination would violate Article 21. We must highlight the fact that a medical test for ascertaining the mental condition of a person is most likely to be in the nature of a psychiatric evaluation which usually includes testimonial responses. Accordingly, a significant part of that judgment dealt with the ‘right to privacy’. It would be appropriate to structure the present discussion around extracts from that opinion.

178. In M.P. Sharma (supra.), it had been noted that the Indian Constitution did not explicitly include a ‘right to privacy’ in a manner akin to the Fourth Amendment of the U.S. Constitution. In that case, this distinction was one of the reasons for upholding the validity of search warrants issued for documents required to investigate charges of misappropriation and embezzlement. Similar issues were discussed in Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295, where the Court considered the validity of police-regulations that authorised police personnel to maintain lists of ‘history-sheeters’ in addition to conducting surveillance activities, domiciliary visits and periodic inquiries about such persons. The intention was to monitor persons suspected or charged with offences in the past, with the aim of preventing criminal acts in the future. At the time, there was no statutory basis for these regulations and they had been framed in the exercise of administrative functions. The majority opinion (Ayyangar, J.) held that these regulations did not violate ‘personal liberty’, except for those which permitted domiciliary visits. The other restraints such as surveillance activities and periodic inquiries about ‘history-sheeters’ were justified by observing, at Para. 20:

…the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.

179. Ayyangar, J. distinguished between surveillance activities conducted in the routine exercise of police powers and the specific act of unauthorised intrusion into a person’s home which violated ‘personal liberty’. However, the minority opinion (Subba Rao, J.) in Kharak Singh took a different approach by recognising the interrelationship between Article 21 and 19, thereby requiring the State to demonstrate the ‘reasonableness’ of placing such restrictions on ‘personal liberty’ [This approach was later endorsed by Bhagwati, J. in Maneka Gandhi v. Union of India, AIR 1978 SC 597, see p. 622]. Subba Rao, J. held that the right to privacy ‘is an essential ingredient of personal liberty’ and that the right to ‘personal liberty is ‘a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.’ ,[AIR 1963 SC 1295, at p. 1306]

180. In Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148, the Supreme Court approved of some police-regulations that provided for surveillance activities, but this time the decision pointed out a clear statutory basis for these regulations. However, it was also ruled that the ‘right to privacy’ was not an absolute right. It was held, at Para. 28:

“The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute.”

…Assuming that the fundamental right explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest. (at p. 157, Para. 31)

181. Following the judicial expansion of the idea of ‘personal liberty’, the status of the ‘right to privacy’ as a component of Article 21 has been recognised and re-inforced. In R. Raj Gopal v. State of Tamil Nadu, (1994) 6 SCC 632, this Court dealt with a fact-situation where a convict intended to publish his autobiography which described the involvement of some politicians and businessmen in illegal activities. Since the publication of this work was challenged on grounds such as the invasion of privacy among others, the Court ruled on the said issue. It was held that the right to privacy could be described as the ‘right to be let alone and a citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among others. No one can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical’. However, it was also ruled that exceptions may be made if a person voluntarily thrusts himself into a controversy or any of these matters becomes part of public records or relates to an action of a public official concerning the discharge of his official duties.

182. In People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568, it was held that the unauthorised tapping of telephones by police personnel violated the ‘right to privacy’ as contemplated under Article 21. However, it was not stated that telephone-tapping by the police was absolutely prohibited, presumably because the same may be necessary in some circumstances to prevent criminal acts and in the course of investigation. Hence, such intrusive practices are permissible if done under a proper legislative mandate that regulates their use. This intended balance between an individual’s ‘right to privacy’ and ‘compelling public interest’ has frequently occupied judicial attention. Such a compelling public interest can be identified with the need to prevent crimes and expedite investigations or to protect public health or morality.

183. For example, in X v. Hospital Z, (1998) 8 SCC 296, it was held that a person could not invoke his ‘right to privacy’ to prevent a doctor from disclosing his HIV-positive status to others. It was ruled that in respect of HIV-positive persons, the duty of confidentiality between the doctor and patient could be compromised in order to protect the health of other individuals. With respect to the facts in that case, Saghir Ahmad, J. held, at Para. 26-28:

…When a patient was found to be HIV (+), its disclosure by the Doctor could not be violative of either the rule of confidentiality or the patient’s right of privacy as the lady with whom the patient was likely to be married was saved in time by such disclosure, or else, she too would have been infected with a dreadful disease if marriage had taken place and been consummated.

184. However, a three judge bench partly overruled this decision in a review petition. In X v. Hospital Z, (2003) 1 SCC 500, it was held that if an HIV-positive person contracted marriage with a willing partner, then the same would not constitute the offences defined by Sections 269 and 270 of the Indian Penal Code. [Section 269 of the IPC defines the offence of a ‘Negligent act likely to spread infection of disease dangerous to life’ and Section 270 contemplates a ‘Malignant act likely to spread infection of disease dangerous to life’.] A similar question was addressed by the Andhra Pradesh High Court in M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd., AIR 2001 AP 502, at pp. 513- 514:

There is an apparent conflict between the right to privacy of a person suspected of HIV not to submit himself forcibly for medical examination and the power and duty of the State to identify HIV-infected persons for the purpose of stopping further transmission of the virus. In the interests of the general public, it is necessary for the State to identify HIV-positive cases and any action taken in that regard cannot be termed as unconstitutional as under Article 47 of the Constitution, the State was under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, in our opinion, will not be in breach of Article 21 of the Constitution of India….

185. The discussion on the ‘right to privacy’ in Sharda v. Dharampal, (supra.) also cited a decision of the Court of Appeal (in the U.K.) in R (on the application of S) v. Chief Constable of South Yorkshire (2003) 1 All ER 148 (CA). The contentious issues arose in respect of the retention of fingerprints and DNA samples taken from persons who had been suspected of having committed offences in the past but were not convicted for them. It was argued that this policy violated Articles 8 and 14 of the European Convention on Human Rights and Fundamental Freedoms, 1950 [Hereinafter ‘EctHR]. Article 8 deals with the ‘Right to respect for private and family life’ while Article 14 lays down the scope of the ‘Prohibition Against Discrimination’. For the present discussion, it will be useful to examine the language of Article 8 of the EctHR:

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

186. In that case, a distinction was drawn between the ‘taking’, ‘retention’ and ‘use’ of fingerprints and DNA samples. While the ‘taking’ of such samples from individual suspects could be described as a reasonable measure in the course of routine police functions, the controversy arose with respect to the ‘retention’ of samples taken from individuals who had been suspected of having committing offences in the past but had not been convicted for them. The statutory basis for the retention of physical samples taken from suspects was Section 64(1A) of the Police and Criminal Evidence Act, 1984. This provision also laid down that these samples could only be used for purposes related to the ‘prevention or detection of crime, the investigation of an offence or the conduct of a prosecution’. This section had been amended to alter the older position which provided that physical samples taken from suspects were meant to be destroyed once the suspect was cleared of the charges or acquitted. As per the older position, it was only the physical samples taken from convicted persons which could be retained by the police authorities. It was contended that the amended provision was incompatible with Articles 8 and 14 of the EctHR and hence the relief sought was that the fingerprints and DNA samples of the concerned parties should be destroyed.

187. In response to these contentions, the majority (Lord Woolf, C.J.) held that although the retention of such material interfered with the Article 8(1) rights of the individuals (‘right to respect for private and family life’) from whom it had been taken, that interference was justified by Article 8(2). It was further reasoned that the purpose of the impugned amendment, the language of which was very similar to Article 8(2), was obvious and lawful. Nor were the adverse consequences to the individual disproportionate to the benefit to the public. It was held, at Para. 17:

So far as the prevention and detection of crime is concerned, it is obvious the larger the databank of fingerprints and DNA samples available to the police, the greater the value of the databank will be in preventing crime and detecting those responsible for crime. There can be no doubt that if every member of the public was required to provide fingerprints and a DNA sample this would make a dramatic contribution to the prevention and detection of crime. To take but one example, the great majority of rapists who are not known already to their victim would be able to be identified. However, the 1984 Act does not contain blanket provisions either as to the taking, the retention, or the use of fingerprints or samples; Parliament has decided upon a balanced approach.

Lord Woolf, C.J. also referred to the following observations made by Lord Steyn in an earlier decision of the House of Lords, which was reported as Attorney General’s Reference (No. 3 of 1999) (2001) 1 All ER 577, at p. 584:

…It must be borne in mind that respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public.

On the question of whether the retention of material samples collected from suspects who had not been convicted was violative of the ‘Prohibition against Discrimination’ under Article 14 of the EctHR, it was observed, (2003) 1 All ER 148 (CA), at p. 162:

In the present circumstances when an offence is being investigated or is the subject of a charge it is accepted that fingerprints and samples may be taken. Where they have not been taken before any question of the retention arises, they have to be taken so there would be the additional interference with their rights which the taking involves. As no harmful consequences will flow from the retention unless the fingerprints or sample match those of someone alleged to be responsible for an offence, the different treatment is fully justified.

188. In the present case, written submissions made on behalf of the respondents have tried to liken the compulsory administration of the impugned techniques with the DNA profiling technique. In light of this attempted analogy, we must stress that the DNA profiling technique has been expressly included among the various forms of medical examination in the amended explanation to Sections 53, 53A and 54 of the CrPC. It must also be clarified that a ‘DNA profile’ is different from a DNA sample which can be obtained from bodily substances. A DNA profile is a record created on the basis of DNA samples made available to forensic experts. Creating and maintaining DNA profiles of offenders and suspects are useful practices since newly obtained DNA samples can be readily matched with existing profiles that are already in the possession of law-enforcement agencies. The matching of DNA samples is emerging as a vital tool for linking suspects to specific criminal acts. It may also be recalled that the as per the majority decision in Kathi Kalu Oghad, (supra.) the use of material samples such as fingerprints for the purpose of comparison and identification does not amount to a testimonial act for the purpose of Article 20(3). Hence, the taking and retention of DNA samples which are in the nature of physical evidence does not face constitutional hurdles in the Indian context. However, if the DNA profiling technique is further developed and used for testimonial purposes, then such uses in the future could face challenges in the judicial domain.

189. The judgment delivered in Sharda v. Dharampal, (supra.) had surveyed the above-mentioned decisions to conclude that a person’s right to privacy could be justifiably curtailed if it was done in light of competing interests. Reference was also made to some statutes that permitted the compulsory administration of medical tests. For instance, it was observed, at Para. 61-62:

Having outlined the law relating to privacy in India, it is relevant in this context to notice that certain laws have been enacted by the Indian Parliament where the accused may be subjected to certain medical or other tests.

By way of example, we may refer to Sections 185, 202, 203 and 204 of the Motor Vehicles Act, Sections 53 and 54 of the Code of Criminal Procedure and Section 3 of the Identification of Prisoners Act, 1920. Reference in this connection may also be made to Sections 269 and 270 of the Indian Penal Code. Constitutionality of these laws, if challenge is thrown, may be upheld.

190. However, it is important for us to distinguish between the considerations that occupied this Court’s attention in Sharda v. Dharampal, (supra.) and the ones that we are facing in the present case. It is self-evident that the decision did not to dwell on the distinction between medical tests whose results are based on testimonial responses and those tests whose results are based on the analysis of physical characteristics and bodily substances. It can be safely stated that the Court did not touch on the distinction between testimonial acts and physical evidence, simply because Article 20(3) is not applicable to a proceeding of a civil nature.

191. Moreover, a distinction must be made between the character of restraints placed on the right to privacy. While the ordinary exercise of police powers contemplates restraints of a physical nature such as the extraction of bodily substances and the use of reasonable force for subjecting a person to a medical examination, it is not viable to extend these police powers to the forcible extraction of testimonial responses. In conceptualising the ‘right to privacy’ we must highlight the distinction between privacy in a physical sense and the privacy of one’s mental processes.

192. So far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person ‘to impart personal knowledge about a relevant fact’. The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of ‘personal liberty’ under Article 21. Hence, our understanding of the ‘right to privacy’ should account for its intersection with Article 20(3). Furthermore, the ‘rule against involuntary confessions’ as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties.

193. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person’s mental processes is not provided for under any statute and it most certainly comes into conflict with the ‘right against self-incrimination’. However, this determination does not account for circumstances where a person could be subjected to any of the impugned tests but not exposed to criminal charges and the possibility of conviction. In such cases, he/she could still face adverse consequences such as custodial abuse, surveillance, undue harassment and social stigma among others. In order to address such circumstances, it is important to examine some other dimensions of Article 21.

Safeguarding the ‘right against cruel, inhuman or degrading treatment’

194. We will now examine whether the act of forcibly subjecting a person to any of the impugned techniques constitutes ‘cruel, inhuman or degrading treatment’, when considered by itself. This inquiry will account for the permissibility of these techniques in all settings, including those where a person may not be subsequently prosecuted but could face adverse consequences of a non-penal nature. The appellants have contended that the use of the impugned techniques amounts to ‘cruel, inhuman or degrading treatment’. Even though the Indian Constitution does not explicitly enumerate a protection against ‘cruel, inhuman or degrading punishment or treatment’ in a manner akin to the Eighth Amendment of the U.S. Constitution, this Court has discussed this aspect in several cases. For example, in Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, V.R. Krishna Iyer, J. observed at pp. 518-519:

True, our Constitution has no ‘due process’ clause or the VIII Amendment; but, in this branch of law, after Cooper, (1970) 1 SCC 248 and Maneka Gandhi, (1978) 1 SCC 248 the consequence is the same. For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counter-productive, is unarguably unreasonable and arbitrary and is shot down byArticle 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. Part III of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner’s shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. Is a person under death sentence or undertrial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears? Emphatically no, lest social justice, dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom (Article 19) become chimerical constitutional claptrap. Judges, even within a prison setting, are the real, though restricted, ombudsmen empowered to proscribe and prescribe, humanize and civilize the life- style within the carcers. The operation of Articles 14, 19 and 21 may be pared down for a prisoner but not puffed out altogether….

195. In the above-mentioned case, this Court had disapproved of practices such as solitary-confinement and the use of bar- fetters in prisons. It was held that prisoners were also entitled to ‘personal liberty’ though in a limited sense, and hence judges could enquire into the reasonableness of their treatment by prison-authorities. Even though ‘the right against cruel, inhuman and degrading punishment’ cannot be asserted in an absolute sense, there is a sufficient basis to show that Article 21 can be invoked to protect the ‘bodily integrity and dignity’ of persons who are in custodial environments. This protection extends not only to prisoners who are convicts and under-trials, but also to those persons who may be arrested or detained in the course of investigations in criminal cases. Judgments such as D.K. Basu v. State of West Bengal, AIR 1997 SC 610, have stressed upon the importance of preventing the ‘cruel, inhuman or degrading treatment’ of any person who is taken into custody. In respect of the present case, any person who is forcibly subjected to the impugned tests in the environs of a forensic laboratory or a hospital would be effectively in a custodial environment for the same. The presumption of the person being in a custodial environment will apply irrespective of whether he/she has been formally accused or is a suspect or a witness. Even if there is no overbearing police presence, the fact of physical confinement and the involuntary administration of the tests is sufficient to constitute a custodial environment for the purpose of attracting Article 20(3) and Article 21. It was necessary to clarify this aspect because we are aware of certain instances where persons are questioned in the course of investigations without being brought on the record as witnesses. Such omissions on part of investigating agencies should not be allowed to become a ground for denying the protections that are available to a person in custody.

196. The appellants have also drawn our attention to some international conventions and declarations. For instance in the Universal Declaration of Human Rights [GA Res. 217 A (III) of December 10 1948], Article 5 states that:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 7 of the International Covenant on Civil and Political Rights (ICCPR) [GA Res. 2200A (XXI), entered into force March 23, 1976] also touches on the same aspect. It reads as follows:

…No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Special emphasis was placed on the definitions of ‘torture’ as well as ‘cruel, inhuman or degrading treatment or punishment’ in Articles 1 and 16 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

Article 1

1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Article 16

1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Article 10, 11 , 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.

2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion.

197. We were also alerted to the Body of Principles for the Protection of all persons under any form of Detention or Imprisonment [GA Res. 43/173, 76th plenary meeting, 9 December 1988] which have been adopted by the United Nations General Assembly. Principles 1, 6 and 21 hold relevance for us:

Principle 1

All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person.

Principle 6

No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No circumstance whatever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment.

The term ‘cruel, inhuman or degrading treatment or punishment’ should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time.

Principle 21

1. It shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person.

2. No detained person while being interrogated shall be subjected to violence, threats or methods of interrogation which impair his capacity of decision or judgment.

198. It was shown that protections against torture and ‘cruel, inhuman or degrading treatment or punishment’ are accorded to persons who are arrested or detained in the course of armed conflicts between nations. In the Geneva Convention relative to the Treatment of Prisoners of War (entry into force 21 October 1950) the relevant extract reads:

Article 17

…No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind….

199. Having surveyed these materials, it is necessary to clarify that we are not absolutely bound by the contents of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) [Hereinafter ‘Torture Convention’] This is so because even though India is a signatory to this Convention, it has not been ratified by Parliament in the manner provided under Article 253 of the Constitution and neither do we have a national legislation which has provisions analogous to those of the Torture Convention. However, these materials do hold significant persuasive value since they represent an evolving international consensus on the nature and specific contents of human rights norms.

200. The definition of torture indicates that the threshold for the same is the intentional infliction of physical or mental pain and suffering, by or at the instance of a public official for the purpose of extracting information or confessions. ‘Cruel, Inhuman or Degrading Treatment’ has been defined as conduct that does not amount to torture but is wide enough to cover all kinds of abuses. Hence, proving the occurrence of ‘cruel, inhuman or degrading treatment’ would require a lower threshold than that of torture. In addition to highlighting these definitions, the counsel for the appellants have submitted that causing physical pain by injecting a drug can amount to ‘Injury’ as defined by Section 44 of the IPC or ‘Hurt’ as defined in Section 319 of the same Code.

201. In response, the counsel for the respondents have drawn our attention to literature which suggests that in the case of the impugned techniques, the intention on part of the investigators is to extract information and not to inflict any pain or suffering. Furthermore, it has been contended that the actual administration of either the narcoanalysis technique, polygraph examination or the BEAP test does not involve a condemnable degree of ‘physical pain or suffering’. Even though some physical force may be used or threats may be given to compel a person to undergo the tests, it was argued that the administration of these tests ordinarily does not result in physical injuries. [See: Linda M. Keller, ‘Is Truth Serum Torture?’ 20 American University International Law Review 521-612 (2005)] However, it is quite conceivable that the administration of any of these techniques could involve the infliction of ‘mental pain or suffering’ and the contents of their results could expose the subject to physical abuse. When a person undergoes a narcoanalysis test, he/she is in a half- conscious state and subsequently does not remember the revelations made in a drug-induced state. In the case of polygraph examination and the BEAP test, the test subject remains fully conscious during the tests but does not immediately know the nature and implications of the results derived from the same. However, when he/she later learns about the contents of the revelations, they may prove to be incriminatory or be in the nature of testimony that can be used to prosecute other individuals. We have also highlighted the likelihood of a person making incriminatory statements when he/she is subsequently confronted with the test results. The realisation of such consequences can indeed cause ‘mental pain or suffering’ for the person who was subjected to these tests. The test results could also support the theories or suspicions of the investigators in a particular case. These results could very well confirm suspicions about a person’s involvement in a criminal act. For a person in custody, such confirmations could lead to specifically targeted behaviour such as physical abuse. In this regard, we have repeatedly expressed our concern with situations where the test results could trigger undesirable behaviour.

202. We must also contemplate situations where a threat given by the investigators to conduct any of the impugned tests could prompt a person to make incriminatory statements or to undergo some mental trauma. Especially in cases of individuals from weaker sections of society who are unaware of their fundamental rights and unable to afford legal advice, the mere apprehension of undergoing scientific tests that supposedly reveal the truth could push them to make confessional statements. Hence, the act of threatening to administer the impugned tests could also elicit testimony. It is also quite conceivable that an individual may give his/her consent to undergo the said tests on account of threats, false promises or deception by the investigators. For example, a person may be convinced to give his/her consent after being promised that this would lead to an early release from custody or dropping of charges. However, after the administration of the tests the investigators may renege on such promises. In such a case the relevant inquiry is not confined to the apparent voluntariness of the act of undergoing the tests, but also includes an examination of the totality of circumstances.

203. Such a possibility had been outlined by the National Human Rights Commission which had published ‘Guidelines relating to administration of Polygraph test (Lie Detector test) on an accused (2000)’. The relevant extract has been reproduced below:

…The lie detector test is much too invasive to admit of the argument that the authority for Lie Detector tests comes from the general power to interrogate and answer questions or make statements. (Sections 160-167 CrPC) However, in India we must proceed on the assumption of constitutional invasiveness and evidentiary impermissiveness to take the view that such holding of tests is a prerogative of the individual, not an empowerment of the police. In as much as this invasive test is not authorised by law, it must perforce be regarded as illegal and unconstitutional unless it is voluntarily undertaken under non-coercive circumstances. If the police action of conducting a lie detector test is not authorised by law and impermissible, the only basis on which it could be justified is, if it is volunteered. There is a distinction between: (a) volunteering, and (b) being asked to volunteer. This distinction is of some significance in the light of the statutory and constitutional protections available to any person. There is a vast difference between a person saying, ‘I wish to take a lie detector test because I wish to clear my name’, and when a person is told by the police, ‘If you want to clear your name, take a lie detector test’. A still worse situation would be where the police say, ‘Take a lie detector test, and we will let you go’. In the first example, the person voluntarily wants to take the test. It would still have to be examined whether such volunteering was under coercive circumstances or not. In the second and third examples, the police implicitly (in the second example) and explicitly (in the third example) link up the taking of the lie detector test to allowing the accused to go free.

204. We can also contemplate a possibility that even when an individual freely consents to undergo the tests in question, the resulting testimony cannot be readily characterised as voluntary in nature. This is attributable to the differences between the manner in which the impugned tests are conducted and an ordinary interrogation. In an ordinary interrogation, the investigator asks questions one by one and the subject has the choice of remaining silent or answering each of these questions. This choice is repeatedly exercised after each question is asked and the subject decides the nature and content of each testimonial response. On account of the continuous exercise of such a choice, the subject’s verbal responses can be described as voluntary in nature. However, in the context of the impugned techniques the test subject does not exercise such a choice in a continuous manner. After the initial consent is given, the subject has no conscious control over the subsequent responses given during the test. In case of the narcoanalysis technique, the subject speaks in a drug-induced state and is clearly not aware of his/her own responses at the time. In the context of polygraph examination and the BEAP tests, the subject cannot anticipate the contents of the ‘relevant questions’ that will be asked or the ‘probes’ that will be shown. Furthermore, the results are derived from the measurement of physiological responses and hence the subject cannot exercise an effective choice between remaining silent and imparting personal knowledge. In light of these facts, it was contended that a presumption cannot be made about the voluntariness of the test results even if the subject had given prior consent. In this respect, we can re-emphasize Principle 6 and 21 of the Body of Principles for the Protection of all persons under any form of Detention or Imprisonment (1988). The explanation to Principle 6 provides that:

The term ‘cruel, inhuman or degrading treatment or punishment’ should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time.

Furthermore, Principle 21(2) lays down that:

No detained person while being interrogated shall be subjected to violence, threats or methods of interrogation which impair his capacity of decision or judgment.

205. It is undeniable that during a narcoanalysis interview, the test subject does lose ‘awareness of place and passing of time’. It is also quite evident that all the three impugned techniques can be described as methods of interrogation which impair the test subject’s ‘capacity of decision or judgment’. Going by the language of these principles, we hold that the compulsory administration of the impugned techniques constitutes ‘cruel, inhuman or degrading treatment’ in the context of Article 21. It must be remembered that the law disapproves of involuntary testimony, irrespective of the nature and degree of coercion, threats, fraud or inducement used to elicit the same. The popular perceptions of terms such as ‘torture’ and ‘cruel, inhuman or degrading treatment’ are associated with gory images of blood-letting and broken bones. However, we must recognise that a forcible intrusion into a person’s mental processes is also an affront to human dignity and liberty, often with grave and long-lasting consequences. [A similar conclusion has been made in the following paper: Marcy Strauss, ‘Criminal Defence in the Age of Terrorism – Torture’, 48 New York Law School Law Review 201-274 (2003/2004)]

206. It would also be wrong to sustain a comparison between the forensic uses of these techniques and the practice of medicine. It has been suggested that patients undergo a certain degree of ‘physical or mental pain and suffering’ on account of medical interventions such as surgeries and drug- treatments. However, such interventions are acceptable since the objective is to ultimately cure or prevent a disease or disorder. So it is argued that if the infliction of some ‘pain and suffering’ is permitted in the medical field, it should also be tolerated for the purpose of expediting investigations in criminal cases. This is the point where our constitutional values step in. A society governed by rules and liberal values makes a rational distinction between the various circumstances where individuals face pain and suffering. While the infliction of a certain degree of pain and suffering is mandated by law in the form of punishments for various offences, the same cannot be extended to all those who are questioned during the course of an investigation. Allowing the same would vest unlimited discretion and lead to the disproportionate exercise of police powers.

Incompatibility with the ‘Right to fair trial’

207. The respondents’ position is that the compulsory administration of the impugned techniques should be permitted at least for investigative purposes, and if the test results lead to the discovery of fresh evidence, then these fruits should be admissible. We have already explained in light of the conjunctive reading of Article 20(3) of the Constitution and Section 27 of the Evidence Act, that if the fact of compulsion is proved, the test results will not be admissible as evidence. However, for the sake of argument, if we were to agree with the respondents and allow investigators to compel individuals to undergo these tests, it would also affect some of the key components of the ‘right to fair trial’.

208. The decision of this Court in D.K. Basu v. State of West Bengal, AIR 1997 SC 610, had stressed upon the entitlement of a person in custody to consult a lawyer. Access to legal advice is an essential safeguard so that an individual can be adequately apprised of his constitutional and statutory rights. This is also a measure which checks custodial abuses. However, the involuntary administration of any of the impugned tests can lead to a situation where such legal advice becomes ineffective. For instance even if a person receives the best of legal advice before undergoing any of these tests, it cannot prevent the extraction of information which may prove to be inculpatory by itself or lead to the subsequent discovery of incriminating materials. Since the subject has no conscious control over the drug-induced revelations or substantive inferences, the objective of providing access to legal advice are frustrated.

209. Since the subject is not immediately aware of the contents of the drug-induced revelations or substantive inferences, it also conceivable that the investigators may chose not to communicate them to the subject even after completing the tests. In fact statements may be recorded or charges framed without the knowledge of the test subject. At the stage of trial, the prosecution is obliged to supply copies of all incriminating materials to the defendant but reliance on the impugned tests could curtail the opportunity of presenting a meaningful and wholesome defence. If the contents of the revelations or inferences are communicated much later to the defendant, there may not be sufficient time to prepare an adequate defence.

210. Earlier in this judgment, we had surveyed some foreign judicial precedents dealing with each of the tests in question. A common concern expressed with regard to each of these techniques was the questionable reliability of the results generated by them. In respect of the narcoanalysis technique, it was observed that there is no guarantee that the drug- induced revelations will be truthful. Furthermore, empirical studies have shown that during the hypnotic stage, individuals are prone to suggestibility and there is a good chance that false results could lead to a finding of guilt or innocence. As far as polygraph examination is concerned, though there are some studies showing improvements in the accuracy of results with advancement in technology, there is always scope for error on account of several factors. Objections can be raised about the qualifications of the examiner, the physical conditions under which the test was conducted, the manner in which questions were framed and the possible use of ‘countermeasures’ by the test subject. A significant criticism of polygraphy is that sometimes the physiological responses triggered by feelings such as anxiety and fear could be misread as those triggered by deception. Similarly, with the P300 Waves test there are inherent limitations such as the subject having had ‘prior exposure’ to the ‘probes’ which are used as stimuli. Furthermore, this technique has not been the focus of rigorous independent studies. The questionable scientific reliability of these techniques comes into conflict with the standard of proof ‘beyond reasonable doubt’ which is an essential feature of criminal trials.

211. Another factor that merits attention is the role of the experts who administer these tests. While the consideration of expert opinion testimony has become a mainstay in our criminal justice system with the advancement of fields such as forensic toxicology, questions have been raised about the credibility of experts who are involved in administering the impugned techniques. It is a widely accepted principle for evaluating the validity of any scientific technique that it should have been subjected to rigorous independent studies and peer review. This is so because the persons who are involved in the invention and development of certain techniques are perceived to have an interest in their promotion. Hence, it is quite likely that such persons may give unduly favourable responses about the reliability of the techniques in question.

212. Even though India does not have a jury system, the use of the impugned techniques could impede the fact-finding role of a trial judge. This is a special concern in our legal system, since the same judge presides over the evidentiary phase of the trial as well as the guilt phase. The consideration of the test results or their fruits for the purpose of deciding on their admissibility could have a prejudicial effect on the judge’s mind even if the same are not eventually admitted as evidence. Furthermore, we echo the concerns expressed by the Supreme Court of Canada in R v. Beland [1987] 36 C.C.C. (3d) 481, where it was observed that reliance on scientific techniques could cloud human judgment on account of an ‘aura of infallibility’. While judges are expected to be impartial and objective in their evaluation of evidence, one can never discount the possibility of undue public pressure in some cases, especially when the test results appear to be inculpatory. We have already expressed concerns with situations where media organisations have either circulated the video-recordings of narcoanalysis interviews or broadcasted dramatized re-constructions, especially in sensational criminal cases.

213. Another important consideration is that of ensuring parity between the procedural safeguards that are available to the prosecution and the defence. If we were to permit the compulsory administration of any of the impugned techniques at the behest of investigators, there would be no principled basis to deny the same opportunity to defendants as well as witnesses. If the investigators could justify reliance on these techniques, there would be an equally compelling reason to allow the indiscrete administration of these tests at the request of convicts who want re-opening of their cases or even for the purpose of attacking and rehabilitating the credibility of witnesses during a trial. The decision in United States v. Scheffer 523 US 303 (1998), has highlighted the concerns with encouraging litigation that is collateral to the main facts in issue. We are of the view that an untrammelled right of resorting to the techniques in question will lead to an unnecessary rise in the volume of frivolous litigation before our Courts.

214. Lastly, we must consider the possibility that the victims of offences could be forcibly subjected to any of these techniques during the course of investigation. We have already highlighted a provision in the Laboratory Procedure Manual for Polygraph tests which contemplates the same for ascertaining the testimony of victims of sexual offences. In light of the preceding discussion, it is our view that irrespective of the need to expedite investigations in such cases, no person who is a victim of an offence can be compelled to undergo any of the tests in question. Such a forcible administration would be an unjustified intrusion into mental privacy and could lead to further stigma for the victim.

Examining the ‘compelling public interest’

215. The respondents have contended that even if the compulsory administration of the impugned techniques amounts to a seemingly disproportionate intrusion into personal liberty, their investigative use is justifiable since there is a compelling public interest in eliciting information that could help in preventing criminal activities in the future. Such utilitarian considerations hold some significance in light of the need to combat terrorist activities, insurgencies and organised crime. It has been argued that such exigencies justify some intrusions into civil liberties. The textual basis for these restraints could be grounds such as preserving the ‘sovereignty and integrity of India’, ‘the security of the state’ and ‘public order’ among others. It was suggested that if investigators are allowed to rely on these tests, the results could help in uncovering plots, apprehending suspects and preventing armed attacks as well as the commission of offences. Reference was also made to the frequently discussed ‘Ticking Bomb’ scenario. This hypothetical situation examines the choices available to investigators when they have reason to believe that the person whom they are interrogating is aware of the location of a bomb. The dilemma is whether it is justifiable to use torture or other improper means for eliciting information which could help in saving the lives of ordinary citizens. [The arguments for the use of ‘truth serums’ in such situations have been examined in the following articles: Jason R. Odeshoo, ‘Truth or Dare?: Terrorism and Truth Serum in the Post- 9/11 World, 57 Stanford Law Review 209-255 (October 2004); Kenneth Lasson, ‘Torture, Truth Serum, and Ticking Bombs: Toward a pragmatic perspective on coercive interrogation’, 39 Loyola University Chicago Law Journal 329-360 (Winter 2008)]

216. While these arguments merit consideration, it must be noted that ordinarily it is the task of the legislature to arrive at a pragmatic balance between the often competing interests of ‘personal liberty’ and public safety. In our capacity as a constitutional court, we can only seek to preserve the balance between these competing interests as reflected in the text of the Constitution and its subsequent interpretation. There is absolutely no ambiguity on the status of principles such as the ‘right against self-incrimination’ and the various dimensions of ‘personal liberty’. We have already pointed out that the rights guaranteed in Articles 20 and 21 of the Constitution of India have been given a non-derogable status and they are available to citizens as well as foreigners. It is not within the competence of the judiciary to create exceptions and limitations on the availability of these rights.

217. Even though the main task of constitutional adjudication is to safeguard the core organising principles of our polity, we must also highlight some practical concerns that strengthen the case against the involuntary administration of the tests in question. Firstly, the claim that the results obtained from these techniques will help in extraordinary situations is questionable. All of the tests in question are those which need to be patiently administered and the forensic psychologist or the examiner has to be very skilful and thorough while interpreting the results. In a narcoanalysis test the subject is likely to divulge a lot of irrelevant and incoherent information. The subject is as likely to divulge false information as he/she is likely to reveal useful facts. Sometimes the revelations may begin to make sense only when compared with the testimony of several other individuals or through the discovery of fresh materials. In a polygraph test, interpreting the results is a complex process that involves accounting for distortions such as ‘countermeasures’ used by the subject and weather conditions among others. In a BEAP test, there is always the possibility of the subject having had prior exposure to the ‘probes’ that are used as stimuli. All of this is a gradually unfolding process and it is not appropriate to argue that the test results will always prove to be crucial in times of exigency. It is evident that both the tasks of preparing for these tests and interpreting their results need considerable time and expertise.

218. Secondly, if we were to permit the forcible administration of these techniques, it could be the first step on a very slippery-slope as far as the standards of police behaviour are concerned. In some of the impugned judgments, it has been suggested that the promotion of these techniques could reduce the regrettably high incidence of ‘third degree methods’ that are being used by policemen all over the country. This is a circular line of reasoning since one form of improper behaviour is sought to be replaced by another. What this will result in is that investigators will increasingly seek reliance on the impugned techniques rather than engaging in a thorough investigation. The widespread use of ‘third-degree’ interrogation methods so as to speak is a separate problem and needs to be tackled through long-term solutions such as more emphasis on the protection of human rights during police training, providing adequate resources for investigators and stronger accountability measures when such abuses do take place.

219. Thirdly, the claim that the use of these techniques will only be sought in cases involving heinous offences rings hollow since there will no principled basis for restricting their use once the investigators are given the discretion to do so. From the statistics presented before us as well as the charges filed against the parties in the impugned judgments, it is obvious that investigators have sought reliance on the impugned tests to expedite investigations, unmindful of the nature of offences involved. In this regard, we do not have the authority to permit the qualified use of these techniques by way of enumerating the offences which warrant their use. By itself, permitting such qualified use would amount to a law- making function which is clearly outside the judicial domain.

220. One of the main functions of constitutionally prescribed rights is to safeguard the interests of citizens in their interactions with the government. As the guardians of these rights, we will be failing in our duty if we permit any citizen to be forcibly subjected to the tests in question. One could argue that some of the parties who will benefit from this decision are hardened criminals who have no regard for societal values. However, it must be borne in mind that in constitutional adjudication our concerns are not confined to the facts at hand but extend to the implications of our decision for the whole population as well as the future generations. Sometimes there are apprehensions about judges imposing their personal sensibilities through broadly worded terms such as ‘substantive due process’, but in this case our inquiry has been based on a faithful understanding of principles entrenched in our Constitution. In this context it would be useful to refer to some observations made by the Supreme Court of Israel in Public Committee Against Torture in Israel v. State of Israel H.C. 5100/94 (1999), where it was held that the use of physical means (such as shaking the suspect, sleep-deprivation and enforcing uncomfortable positions for prolonged periods) during interrogation of terrorism suspects was illegal. Among other questions raised in that case, it was also held that the ‘necessity’ defence could be used only as a post factum justification for past conduct and that it could not be the basis of a blanket pre-emptive permission for coercive interrogation practices in the future. Ruling against such methods, Aharon Barak, J. held at p. 26:

…This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the ‘Rule of Law’ and recognition of an individual’s liberty constitutes an important component in its understanding of security.

CONCLUSION

221. In our considered opinion, the compulsory administration of the impugned techniques violates the ‘right against self- incrimination’. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual’s choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible ‘conveyance of personal knowledge that is relevant to the facts in issue’. The results obtained from each of the impugned tests bear a ‘testimonial’ character and they cannot be categorised as material evidence.

222. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of ‘substantive due process’ which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of ‘ejusdem generis’ and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the ‘right to fair trial’. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the ‘right against self-incrimination’.

223. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872. The National Human Rights Commission had published ‘Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused’ in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the ‘Narcoanalysis technique’ and the ‘Brain Electrical Activation Profile’ test. The text of these guidelines has been reproduced below:

(i) No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.

(ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.

(iii) The consent should be recorded before a Judicial Magistrate.

(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.

(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a ‘confessional’ statement to the Magistrate but will have the status of a statement made to the police.

(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.

(vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.

(viii) A full medical and factual narration of the manner of the information received must be taken on record.

224. The present batch of appeals is disposed of accordingly.


Counsel for the Parties:

Goolam E. Vahanvati, SG, Dushyant Dave, A.V., Anoop G. Chaudhari, June Chaudhari, R.R. Andhyarujina and Harish N. Salve, Sr. Advs., Rajesh Mahale, A.S. Bhasme, Santosh Paul, Aanchal Jain, M.J. Paul, Priyank Adhyaru and Manoj Goel, Advs. for Shivaji M. Jadhav, S.S. Shinde, Ravindra Keshavrao Adsure, Bina Madhavan, S.U.K. Sagar and Minakshi Grover, Advs. for Lawyer’s Knit and Co., A. Sumathi, Sanjay R. Hegde, Amit Kr. Chawla, S. J. Aristotle and Devvrat, Advs. for P. Parmeswaran, A. Subba Rao, T. Srinivasa Murthy, Devdatt Kamat, Sushma Suri, Manjula Gupta, D.M. Nargolkar, Saurav Kirpal, Hemantika Wahi, Jesal, Pinky, Devendra Kr. Singh, D. Bharathi Reddy, Ajit S. Bhasme, Hage Lampu, Raghavendra Srivastava, Mukta Gupta, Vibhor Garg, Mukul Gupta, Sangeeta Singh, Tushar Mehta and Venayagam, Advs. for Lawyers’ Knit and Co. and Altaf Fathima, Adv.

Maharashtra Control of Organised Crime Act, 1999

TERRORISM

Maharashtra Control of Organised Crime Act, 1999
(Maharashtra Act No. 30 – of 1999)

STATEMENT OF OBJECTS AND REASONS

Organised crime has been for quite some years now come up as a very serious threat to our society. It knows no national boundaries and is fueled by illegal wealth generated by contract, killing, extortion, smuggling in contrabands, illegal trade in narcotics kidnappings for ransom, collection of protection money and money laundering, etc. The illegal wealth and black money generated by the organised crime being very huge, it has had serious adverse effect on our economy. It was seen that the organised criminal syndicates made a common cause with terrorist gangs and foster narco terrorism which extend beyond the national boundaries. There was reason to believe that organised criminal gangs have been operating in the State and thus, there was immediate need to curb their activities.

It was also noticed that the organized criminals have been making extensive use of wire and oral communications in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission would be an indispensable aid to law enforcement and the administration of justice.

2. The existing legal framework i. e. the penal and procedural laws and the adjudicatory system were found to be rather inadequate to curb or control the menace of organised crime. Government, therefore, decided to enact a special law with stringent and deterrent provisions including in certain circumstances power to intercept wire, electronic or oral communication to control the menace of the organised crime.

It is the purpose of this act to achieve there objects.

CONTENTS

1. Short title, extent and commencement
2. Definitions.
3. Punishment for organised crime.
4. Punishment for possessing unaccountable wealth on behalf of member of organised crime syndicate.
5. Special Courts
6. Jurisdiction of special courts.
7. Power of special courts with respect to other offences.
8. Public prosecutor.
9. Procedure and powers of special courts.
10. Trial by special courts to have precedence.
11. Power to transfer cases to regular courts.
12. Appeal.
13. Appointment of competent Authority.
14. Authorisation of wire, electronic or oral communication.
15. Constitution of Review Committee for review of authorisation orders.
16. Interception and disclosure of wire, electronic or oral communications prohibited.
17. Special rules of evidence.
18. Certain confessions made to police officer to be taken into consideration.
19. Protection of witnesses.
20. Forfeiture and attachment of property.
21. Modified application of certain provisions of the coste.
22. Presumption as to offences under section 3.
23. Cognizance of, and investigation into, an offence.
24. Punishment for public servants failing in the discharge of their duties.
25. Overriding effect.
26. Protection of action taken in good faith.
27. Annual report of interception.
28. Power of high court to make rules.
29. Powers of State Government to makes rules.
30. Repeal of Mah. Ord. III of 1999 and saving


MAHARASHTRA CONTROL OF ORGANISED CRIME ACT, 1999
(MAHARASHTRA ACT NO 30- OF 1999)

THE ACT
To make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang, and for matters connected there will or incidental thereto.

WHEREAS it was expedient to make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang and for matters connected therewith or incidental thereto;

AND WHEREAS, the Governor of Maharashtra was satisfied that Circumstances existed which rendered if necessary for him to take immediate action to make law, for the purposes aforesaid.

It is hereby enacted in the Fiftieth Year of the Republic of India as follows :

1. Short title, extend and commencement-

(1) This Act may he called the Maharashtra Control of Organised Crime Act, 1999.

(2) It extends to the whole of the State of Maharashtra.

(3) It shall be deemed to have come into force on the 24th February 1999.

2. Definitions-

(1) In this Act, unless the context otherwise requires,-

(a) “abet”, with its grammatical variations and congnate expressions, includes,-

(i) the communication or association with any person with the actual knowledge or having reason to believe that such person is engaged in assisting in any manner, an organised crime syndicate; (ii) the passing on or publication of, without any lawful authority, any information likely lo assist the organised crime syndicate and the passing on or publication of or distribution of any document or matter obtained from the organised crime syndicate; and

(iii) the rendering of any assistance, whether financial or otherwise, to the organised crime Syndicate;

(b) “code” means the Code of Criminal Procedure, 1973;

(c) “Competent Authority” means the Competent Authority appointed under section 13;

(d) “continuing unlawful activity” means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such, syndicate in respect of which more than one charge-sheets have been field before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence;

(e) “organised crime” means any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any person or promoting insurgency;

(f) “organised crime syndicate” means a group of two or more persons who, acting either singly or collectively, as a syndicate of gang indulge in activities of organised crime; (g) “Special Court” means the Special Court constituted under section 5.

(2) Words and expressions used but not defined in this Act and defined in the Code shall have the meanings respectively assigned to them in the Code shall have the meanings respectively assigned to them in the code.

3. Punishment for organised crime-

(1) Whoever commits an offence of organised crime shall,

(i) if such offence has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees one lac;

(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.

(2) Whoever conspires or attempts to commit or advocates, abets or knowingly facilitates the commission of an organised crime or any act preparatory to organised crime, shall be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life, and shall also be liable to a .fine, subject to a minimum of rupees five lacs.

(3) Whoever harbours or conceals or attempts to harbour or conceal, any member of an organised crime syndicate; shall be punishable, With imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a, fine, subject to a minimum fine of rupees five lacs.

(4) Any person who is a member of an organised crime syndicate shall be punishable with imprisonment for a term which shall not be less, than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.

(5) Whoever holds any property derived of obtained from commission of an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with a term which, shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lacs.

4. Punishment for possessing unaccountable wealth on behalf of member of organised crime syndicate.

If any person on behalf of a member of an organised crime syndicate is, or, at any time bus been, in possession of movable or immovable property which he cannot satisfactorily account for, he shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to ten years and shall also be liable to fine, subject to a minimum fine of rupees one lac and such property shall also liable for attachment and forfeiture, as provided by section 20.

Organised criminals are undoubtedly hard core criminals. They have no derth of most modern weapons. Extorting money by spreading terrorism in society is their aim. They target elite class of society. Naturally, the money they recover is of unusual proportion. The money is not spent on just causes but to derail state economy. It is therefore, essential to provide for strictest punishment. Punishment envisaged in the Act is 3 to 10 years of imprisonment which can be extended to life imprisonment. Death penalty can also be imposed on the criminals kill any one. So also a fine of 3 to 10 lacs can also be imposed.

It will be interesting to compare the criminals under this Act with criminals under recently repealed Tada Act. Criminals under both Acts differ in attitude and approach. Criminals under Tada aim at disruptive activities. They are threat to the sovereignty of Nation. On the contrary criminals under present law are extortionist.

This law also proposes punishment to those who possess any type of property accumulated through illegal means.

5. Special Courts

(1) The State Government may, by notification in the Official Gazette, constitute one or more Special Courts for such area or areas, or for such case or class or group of cases, as may be specified in the notification.

(2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the State Government whose decision shall be final.

(3) A Special Court shall be presided over by a judge to be appointed by the State Government, with the concurrence of the Chief Justice of the Bombay High Court. The State Government may also appoint, with the concurrence of the Chief Justice of the Bombay High Court, additional judges to exercise jurisdiction in a Special Court-

(4)A person shall not be qualified for appointment as a judge or an additional judge of a Special Court, unless he immediately before such a appointment, is a sessions judge or an additional sessions judge.

(5) Where any additional judge is or additional judges are appointed in a Special Court, the judge of the Special Court may, from time to time, by general or special order in writing, provide for the distribution of the business of the Special Court among himself and the additional judge or additional judges and also for the disposal of urgent business in the event of his absence or the absence of any additional judges.

6. Jurisdiction of Special Court

Notwithstanding anything contained in the Code, every offence. punishable under this Act shall, be triable only by the Special Court within whose local jurisdiction it was committed or at the case may be, by the Special Court constituted for trying such offence under subsection (1) of section 5.

7. Power of Special Court with respect to other offences.

(1) When trying any offence punishable under this Act, a Special Court may also try any other offence with which the accused may, under the Code, be charged at the same trial, if the offence is connected with such other offence.

(2) If, in the course of any trial of any offence under this Act, it is found that the accused person has committed any other offence under this Act or under any other law, the Special Court may, convict, such person of such other offence and may pass any sentence authorised by this Act or, as the case may be, such other law for the punishment thereof.

8. Public Prosecutor.

(1) For every Special Court, the State Government shall appoint a person to be the Public Prosecutor and may appoint one or more persons to be the Additional Public Prosecutor or Additional Public Prosecutors:

Provided that, the State Government may also appoint for any case or group of cases, a Special Public Prosecutor

(2) A Person shall not be qualified to be appointed as a Public Prosecutor, an Additional Public Prosecutor or a Special Public Prosecutor unless he has been in practice as an Advocate for not less than ten years.

(3) Every person appointed as a Public Prosecutor or Additional Public Prosecutor or Special Public Prosecutor, under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code, and the provisions of the Code shall have effect accordingly.

9. Procedure and powers of Special Court

(1) A Special Court may take cognizance of any offence without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts.

(2) Where an offence triable by a Special Court is punishable with imprisonment for a term not exceeding three years or with fine or with both, the Special Court may, notwithstanding anything contained in sub- section (1) of section 260 or section 262 of the Code, try the offence in a summary way in accordance with the procedure prescribed in the Code and the provisions of section 263 to 265 of the Code shall, as far as may be, apply to such trial:

Provided that, where-in the course of a summary trial under this sub-section, it appears to the Special Court that the nature of the case is such that it is undesirable to try in a summary way, the Special Court shall recall any-witnesses who may have been examined and proceed to re-hear the case in the manner provided by the provisions of the Code for the trial of such offence and the said provisions shall apply to and in relation, to a Special Court as they apply to and relation, to a Magistrate:

Provided further that, in case of any conviction in a summary trial under this section, it shall be lawful for a Special Court to pass a sentence of imprisonment for a term not exceeding two years.

(3) A Special Court may, with a view to obtaining the evidence of any person, supposed to have been directly or indirectly concerned in or privy to an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abetter, in the commission thereof, and any pardon so tendered shall, for the purposes of section 308 of the Code, be deemed to have been tendered under section 307 thereof.

(4) Subject to other provisions of this Act, a Special Court shall; for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of session, so far as may be, in accordance with the procedure prescribed in the Code for the trial before a Court of Session.

10. Trial by Special Courts to have precedence.

The trial of any offence under this Act by a Special Court shall have precedence over the trial of any other case against the accused in any other Court (not being a Special Court) and shall be concluded in preference of the trial of such other case and accordingly the trial of such other cases shall remain in abeyance.

11. Power to transfer cases to regular Courts.

Where, after taking cognizance of an offence, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for trial of such offence to any Court having jurisdiction under the Code and the Court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.

12. Appeal.

(1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgement, sentence or order, not being an interlocutory order, of a Special Court to the High Court.

(2) Every appeal under this section shall be preferred within thirty days from the date of the judgement, sentence or order.

13. Appointment of Competent Authority.

The State Government may appoint any of its officer, in Home Department not below the rank of Secretary to Government, to be the Competent Authority for the purposes of section 14.

14. Authorization of interception of wire, electronic or oral communication.

(1) A Police officer not below the rank of Superintendent of Police Supervising the investigation of an organised crime under this Act may

submit an application in writing to the Competent Authority for an order authorising or approving the interception of wire, electronic or oral communication by the investigating officer when such interception may provide or has provided evidence of any offence involving an organised crime.

(2) Each application shall include the following information :

(a) the indentity of the investigative or law enforcement officer making the application, and the head of the department authorising the application :

(b) a statement of the facts and circumstance, relied upon by the applicant, to justify his belief that an order should be issued, including-.

(i) details as to the offence of organised crime that has been, is being, or is about to be committed;

(ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted;

(iii) a particular description of the type of communications sought to be intercepted; and

(iv) the identity of the person, if known, committing the offence of organised crime whose communications are to be intercepted;

(c) a statement as to whether or not other modes of enquiry or intelligence gathering have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous or is likely to expose the identity of those connected with the operation of interception;

(d) a statement of the period of time for which the interception is required to be maintained. If, the nature of the enquiry is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to be believe that additional communications of the same type will occur thereafter;

(e) a statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to the Competent Authority for authorization to intercept; or for approval of interceptions of, wire electronic or oral communications involving any of the same persons, facilities or places specified in the application and the action taken by the Competent Authority on each such application; and

(f) where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.

(3) The Competent Authority may require the applicant to furnish additional oral or documentary evidence in support of the application.

(4) Upon such application, the Competent Authority may after recording the reasons in writing reject the application, or issue an order, as requested or as modified, authorising or approving interception of wire, electronic or oral communications, if the Competent Authority, on the basis of the facts submitted by the applicant that-

(a) there is a probable cause for belief that an individual is committing, has committed, or is about to commit a particular offence described and made punishable under section 3 and 4 of this Act;

(b) there is a probable cause for belief that particular communications concerning that offence will be obtained through such interception

(c) normal modes of enquiry and, intelligence gathering have been tried and have failed, or reasonably appear to be unlikely to succeed if tried or to be too dangerous or is likely to expose the identity of those connected with the operation of interception;

(d) there is probable cause for belief that the facilities from which, or the place where, the wire, electronic or oral communications are to be intercepted or be used or are about to be used, in, connection with the commission of such offence, leased to, or are listed in the name of or commonly used by such person.

(5) Each order by the Competent Authority authorizing or approving the interception of any wire, electronic or oral communication under this section shall specify-

(a) the identity of the person, if know, whose communications are to be intercepted;

(b) the nature, and location of the communication facilities as to which, or the place where, authority to intercept is granted;

(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offence to which it relates;

(d) the identity of the agency authorized, to intercept, the communications, and of the person authorizing the application; and

(e) the period of time during which such interception is authorized, including a statement as to whether or not the interception ;shall automatically terminate when the described communication has been first obtained. (6) The Competent Authority shall immediately passing the order under sub-section (4), but in any case not later than seven days from the passing of the order, submit a copy of the same to the Review Committee constituted under section 15 alongwith all the relevant underlying papers; record and his own, findings, etc; in respect of the said order, for consideration and approval of the order by the Review Committee

(7) An order authorizing the interception of a wire, electronic or oral communication under this section shall, upon request of the applicant, direct that a provider of wire or electronic communication service, landlord, custodian or other person shall furnish to the applicant fortwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such service provider, landlord, custodian, or person is providing to the person whose communications are intercepted.

(8) An order issued under this section may authorize or approve the interception of any wire, electronic or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than sixty days. Such sixty days period shall begin-on the day immediately preceding the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten days after the order is issued, whichever is earlier. Extension of an order may be granted, but only upon an application for an extension is made in accordance with subsection (1) and the Competent Authority making the findings required by sub-section (4). The period of extension shall be no longer than the Competent Authority-deems necessary to achieve the purposes for which it, was granted and in no event for longer than sixty days at a time. Every order and extension, thereof shall contain a provision that the authorization to intercept any event shall be executed as soon as practicable and shall be conducted in such a way or manner as to minimize the interception of communications not otherwise subject to interception under this section and must terminate upon attainment of the authorized, objective, or in any event on expiry of the period of the order. In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language-or code is nor reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception. An interception under this section may be conducted in whole or in part by public servant, or by an individual operating under a contract with the State Government, acting under the supervision of the investigative or law enforcement officer authorized to conduct the interception.

(9) Whenever an order authorizing interception is issued pursuant to this section, the order may require reports to be made to the Competent Authority who issued the order showing that progress has been made towards achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the Competent Authority may require.

(10) Notwithstanding anything contained in any other provision of this section, an Officer not below the rank of Additional Director General of Police who reasonably determines that-

(a) an emergency situation exists that involves.

(i) immediate danger of death or serious physical injury to any person;

(ii) conspiratorial activities threatening the security or interest of the State; or

(iii) conspiratorial activities, characteristic of organized crime, that requires a wire, electronic or oral communication to be intercepted before an order from the Competent Authority authorizing such interception can, with due deligence, be obtained, and

(b) there are grounds upon which an order could be issued under this section to authorize such interception, may authorise, in writing, the investigating Police Officer to intercept such wire, electronic or oral communication, if an application for an order, approving the interception is made in accordance with the provisions. Of sub-sections (1) and (2) within forty-eight hours after the interception has occurred, or begins to occur.

(11) In the absence of an order approving the interception made under sub-section (10), such interception shall immediately terminate when the communication sought is obtained or when the application for the order is rejected, whichever is earlier. In the event where an application for permitting interception is rejected under sub-section (4) or an application under sub-section (10) for approval is rejected, or in any other case where the interception is terminated without an order having been issued, the contents of any wire, electronic or oral communication intercepted shall be treated as having been obtained in violation of this section.

(12) (a) The contents of any wire, electronic or oral communication intercepted by any means authorized by this section shall, if possible, be recorded on tape or wire or other comparable devise. Recording of the contents of any wire, electronic or oral communication under this sub-section shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of order, or extension thereof, such recordings shall be made available to the Competent Authority issuing such order and shall be scaled under this directions. Custody of the recordings shall be wherever the Competent Authority orders. They shall not be destroyed except upon an order of the Competent Authority and in any event shall be kept for ten years.

(b) Applications made and orders issued under this section shall be sealed by the Competent Authority. Custody of the applications and orders shall be wherever the Competent Authority directs, and shall not be destroyed except on an order of the Competent Authority, and in any event shall be kept for ten years.

The Competent Authority upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and orders as the Competent Authority determines to be in the interest of justice.

(13) Notwithstanding anything in the Code or in any other law for the time being in force, the evidence collected through the interception of wire, electronic or oral communication under this section shall be admissible as evidence against the accused in the Court during the trial of a case.

Provided that, the contents of any wire, electronic or oral communication intercepted pursuant to this section or evidence derived there from shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in any court unless each party, not less than ten days before trial, hearing or proceeding, has been furnished with a copy of the order of the Competent Authority, and accompanying application, under which the interception was authorised or approved :

Provided further that, this ten days period may be waived by the judge, trying the matter, if he finds that it was not possible to furnish the party with the above information ten days before the trial, hearing or proceeding and that the party will not be prejudiced by the delay in receiving such information.

Explanation.–For the purposes of this section—

(a) ‘write communication” means any aural transfer made in whole

or part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection between (he point of origin and the point of connection, between the point of origin and (he point of reception (including the use of such connection in switching station) and such term includes any electronic storage of such communication;

(b) ‘oral communication’ means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation but such terms does not include any electronic communication;

(c) “electronic communication’ means any transfer of signs, ‘signals,’ writings, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system that affects inland or foreign commerce but does not include—

(i) The radio portion of a cordless telephone communication-that is transmitted between the wireless telephone hand-set and the base unit;

(ii) any wire or oral communication;

(iii) any communication made through a tone only paging device; or

(iv) any communication from a tracking device;

(d) ‘intercept’ means the aural or other acquisition of the contents by wire, electronic or oral communication through the use of any electronic, mechanical or other device.

15. Constitution of Review Committee for review of authorisation orders.

(1) There shall be a Review Committee to review every order passed by the Competent Authority under section 14.

(2) The Review Committee shall consist of the following ex officio members namely ;

(i) the Chief Secretary to Government, Chairman.

(ii) the additional Chief Secretary or the senior most Principal Secretary as the case may be, in the Home Department…Member.

(iii) Principal Secretary or Secretary and Remembrancer of Legal Affairs, Law and Judiciary Department…Member.

(3) Every order passed by the Competent Authority under section 14. placed before the Review Committee, shall be considered by the

Review Committee within ten days after its receipt, to decide whether the order, authorising or approving the application under subsection (4) of section 14, for interception or disapproving the interception made under sub-section (10) of that section in emergency situation, passed by the Competent Authority was necessary, reasonable and justified.

(4) The Review Committee, after examining the entire record and holding such enquiry, if any, deemed necessary may, by order in writing. either approve the order passed by the Competent Authority or may issue order disapproving by the same. On issue of an order of disapproval by the Review Committee, the interception, if any, already commenced shall be fortwith discontinued. The intercepted communication, if any, in the form of tape, wire or other device shall, thereupon, not be admissible as evidence in any case and shall be directed to be destroyed.

16. Interception and disclosure of wire, electronic or oral communications prohibited.

Except as otherwise specifically provided in section 14, any police officer who—

(a) intentionally intercepts, endeavours to intercept, or procures any other person to intercept or endeavour to intercept any wire, electronic or oral communication;

(b) intentionally uses; endeavours to use, Or procures any other person to use or endeavours to use any electronic, mechanical or other device to intercept any oral communication when-

(i) such device is affixed to, or otherwise transmits a signal through a wire, cable, or other like connection used in wire communication; or

(ii) such device transmits communications by radio, or interferes with the transmission of such communication;

(c) intentionally discloses, or endeavours to disclose, to any other person the contents of any wire, electronic or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication in violation of this sub-section;

(d) intentionally uses, or endeavours to use, the contents of any wire, electronic or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication in violation of this subsection; or

(e) (i) intentionally discloses, or endeavours to disclose, to any other person the contents of any wire, electronic or oral communication, intercepted by means authorized by section 14;

(ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation under this Act;

(iii) having obtained or received the information in connection with a criminal investigation; and

(iv) with intent to improperly obstruct, impede, or interfere with a duly authorised criminal investigation; or

(f) intentionally continues the interception of wire, electronic or oral communication after the issue of an order of disapproval by the Review Committee under sub-section (4) of section 15, shall for such violation be punishable with imprisonment for a term which may extend to one year and with fine upto rupees fifty thousand.

17. Special Rules of evidence.

(1) Notwithstanding anything to the contrary contained in the Code, or the Indian Evidence Act, 1872, for the purpose of trial and punishment for offences under this Act or connected offences, the Court may take into consideration as having probative value, the fact that the accused was,–

(a) on any previous occasion bound under section 107 or section 110 of the Code;

(b) detained under any law relating to preventive detention; or

(c) on any previous occasion was prosecuted in the Special Court under this Act.

(2) Where it is proved that any person involved in an organised crime or any person on his behalf is or has at any time been in possession of movable or immovable property which he cannot satisfactorily account for, the Special Court shall, unless contrary is proved, presume that such property or pecuniary resources have been acquired or derived by his illegal activities.

(3) Where it is proved that the accused has kidnapped or abducted any person, the Special Court shall presume that it was for ransom.

18. Certain confessions made to police officer to be taken into consideration.

(1) Notwithstanding anything in the Code or in the Indian Evidence Act 1872, but subject to the provisions of this section, a confession made by a person before a police officer not below the rank of the Superintendent of Police and recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator:

Provided that, the co-accused, abettor or conspirator is charged and tried in the same case together with the accused.

(2) The confession shall be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him.

(3) The Police Officer shall, before recording any confession under sub-section (1), explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall, after recording such voluntary confession, certify in writing below the confession about his personal satisfaction of the voluntary character of such confession, putting the dace and time of the same.

(4) Every confession recorded under sub-section (1) shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so receive to the Special Court which may take cognizance of the offence.

(5) The person from whom a confession has been recorded under sub-section (I) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under sub-section (4) alongwith the original statement of confession, written or recorded on mechanical device without unreasonable delay.

(6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement, if any, made by the accused so produced and get his .signature and in case of any complaint of torture, the person shall be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon.

19. Protection of Witness,

(1) Notwithstanding anything contained in the Code, the proceeding under this Act may be held in Camera, if the Special Court so desires;:

(2) A Special Court may, on an application made by a witness in any proceeding before it or by the Public Prosecutor in relation to such witness or on its own motion, take such measures as it deems fit for keeping the identity and address of any witness secret.

(3) In particular, and without prejudice to the generality of the provisions of sub-section (2), the measures which a Special Court may take under that sub-section may include,– (a) the holding of the proceedings at a place to be decided by the Special Court;

(b) the avoiding of the mention of the names and addresses of the witnesses in its orders or judgements or in any records of, the case accessible to public.

(c) the issuing of any directions for securing that the identity and addresses of the witnesses are not disclosed;

(d) that, it is in the public interest to order that all or any of the proceeding pending before such a Court shall not be published in any manner. (4) Any person who contravenes any direction issued under subsection (3) shall be punishable with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees.

20. Forfeiture and attachment of property.

(l) Where a person has been convicted of any offence punishable under, this Act, the Special Court may, in addition to awarding any punishment, by order in writing, declare that any property, movable or immovable or both, belonging to the accused and specified in the order, shall stand forfeited to the State Government, free from all encumbrances.

(2) Where any person is accused of any offence under this Act, it shall be open to the Special Court trying him, to pass on order that all or any properties, movable or immovable or both belonging to him, shall, during the period of such trial, be attached, and where such trial ends in conviction, the properties so attached shall stand forfeited to the State Government free from all encumbrances.

(3)(a) If, upon a report in writing made by an investigating police officer with the approval of the supervisory officer referred to in subsection (1) of section 14, any Special Court has reason to believe that any person, who has committed an offence punishable under this Act has absconded or is concealing himself so that he may not be apprehended, such Court may, notwithstanding anything contained in section 82 of the Code, publish a written proclamation requiring him to appear at a specified place and at a specified time not less than fifteen days but not more than thirty days from the publication of such proclamation.

Provided that, if the investigating police officer concerned fails to arrest the accused, who has absconded or is concealing himself, within a period of three months from the date of registering the offence against such person, the officer shall, on the expiry of the said period, make a report to the Special Court for issuing the proclamation.

(b) The Special Court issuing a proclamation under clause (a) may, at any time, order the attachment of any property, movable or immovable or both; belonging to the proclaimed person, and thereupon the provisions of sections 83 to 85 of the Code shall apply to such attachment as if such attachment were made under that Code.
(c) If, within six months from the date of attachment, any person, whose property is, or has been, at the disposal of the State Government under sub-section (2) of section 85 of the Code, appears voluntarily or is apprehended and brought before the Special Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond-or conceal himself for the purpose of avoiding apprehension and that he had not received such notice of the proclamation as to enable him to attend within the specified time therein, such property or, if the same has been sold, the net proceeds of the same and the residue of the property, shall, after satisfying therefore all costs incurred in consequence of the attachment, be delivered to him.

21. Modified application of certain provisions of the code.

(1) Notwithstanding anything contained in the Code or in any other law, every offence punishable under this Act, shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code and “cognizable case” as defined in that clause shall be construed accordingly.

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modifications that, in sub-section(2),–

(a) the reference to “‘fifteen days”, and “sixty days” wherever they occur, shall be construed as references to “thirty days” and “ninety days” respectively;

(b) after the proviso, the following proviso shall be inserted, namely :-

“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Special Court shall extend the said period upto one hundred and eighty days, on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days”

(3) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act.

(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless-

(a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and

(b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that lie is not likely to commit any offence while on bail.

(5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Court that he was on bail in an offence under this Act, or under any other Act, on the date of the offence in question.

(6) The limitations on granting of bail specified in sub-section (4) are in addition to the limitations under the Code or any other law for the time being in force on the granting of bail.

(7) The police officer seeking the custody of any person for pre- indictment or pre-trial interrogation from the judicial custody shall file a written statement explaining the reason for seeking such, custody and also for the delay, if any in seeking the police custody.

22. Presumption as to offences under section 3.

(1) In a prosecution for an offence of organised crime punishable under section 3, if it is proved—

(a) that unlawful arms and other material including documents or papers were recovered from the possession of the accused and there is reasons to believe that such unlawful arms and other material including documents or papers were in the commission of such offence; or

(b) that by the evidence of an expert, the finger prints of the accused were found at the site of the offence or on anything including unlawful arms and other material including documents or papers and vehicle used in connection with the commission of such offence, the Special Court shall presume, unless the contrary is proved, that the accused had committed such offence.

(2) In a prosecution for an offence of organised crime punishable under sub-section (2) of section 3, if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence of organised crime, the Special Court shall presume, unless the contrary is-proved, that such person has committed the offence under the said sub-section (2).

23. Cognizance of, and investigation into, an offence.

(1) Notwithstanding anything contained in the Code

(a) no information about the commission of an offence of organised crime under this Act, shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police;

(b) no investigation of an offence under the provisions of this Act shall be carried our by a police officer below the rank of the Deputy Superintendent of Police.

(2) NO Special Court shall take cognizance of any offence under this Act without the precious, sanction of the police officer not below the rank of Additional Director General of Police.

24. Punishment for public servants failing in the discharge of their duties.

Whoever being a public servant renders any help or support in any manner in the commission of organised crime as defined in clause (e) of section 2, whether before or after the commission of any offence by a member of an organised crime syndicate or abstains from taking lawful measures under this Act or intentionally avoids to carry out the directions of any Court or of the superior police officers in this respect, shall be punished with imprisonment of either description for a term which may extend to three years and also with fine.

25. Overriding effect.

The provisions of this Act or any rule made there under or any order made under any such rule shall, have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having the force of law.

26. Protection of action taken in good faith.

No Suit, prosecution or other legal proceeding shall lie against the State Government or any officer or authority of the State Government for anything which is in good faith done or intended to be done in pursuance of this Act or any rule made there under or any order issued .under any such rule.

27. Annual Report of Interceptions.

(1) The State Government shall cause an annual report to be prepared giving a full account of,

(i) the number of applications for authorisation of interceptions received by the Competent Authority from the Police Department in which; prosecutions have been launched;

(ii) the number of such applications permitted or rejected;

(iii) the number of interceptions carried out in emergency situations and the number of ex-post-facto authorisations or approvals granted or rejected in such matters; (iv) the number of prosecutions launched based on such interceptions and, convictions resulting from such interceptions, alongwith an explanatory memorandum giving general assessment of the utility and importance of the interceptions authorised.

(2) Such annual report shall be laid by the State Government before each House of the State Legislature within three months of the completion of every calendar year:

Provided that, if the State Government is of the opinion that the inclusion of any matter in the annual report would be prejudicial to the security of the State, or to the prevention or detection of any organised crime,: the State Government may exclude such matter from being included in such annual report.

28. Power of High Court to make rules.

The High Court may, by notification in the Official Gazette, make such rules as it may deem necessary for carrying out the provisions of, this. Act relating to the Special Courts.

29. Power of State Government to make rules.

(1) Without prejudice to the powers of the High Court to make rules under section 28, the State Government may, by notification in the Official Gazette, make rules for carrying out the purpose of this Act.

(2) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of the State Legislature, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, and notify such decision in the Official Gazette, the rule shall, from the date of publication of such notification have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

30. Repeal of Mali. Ord. III of 1999 and saving

(1) The Maharashtra Control of Organised Crime Ordinance 1999 is hereby repealed.

(2) Notwithstanding such repeal anything done or any action taken under the said Ordinance shall be deemed to have been done or taken, as the case may be, under the corresponding provisions of this Act.

Zahira Habibulla H. Sheikh and another Vs State of Gujarat and others[ALL SC 2004 APRIL]

KEYWORDS:-The principle of fair trial- Retrial-

c

DATE:-12-04-2004

  • “A somewhat an unusual mode in contract to the lapse committed by non-examining victims and injured witnesses adopted by the investigating agency and the prosecutor was examination of six relatives of accused persons. They have expectedly given a clean chit to the accused and labeled them as saviors”.

AIR 2004 SC 3114 : (2004) 3 SCR 1050 : (2004) 4 SCC 158 : JT 2004 (1) Suppl. SC 94 : (2004) 4 SCALE 375 : (2004) CriLJ SC 2050

(SUPREME COURT OF INDIA)

Zahira Habibulla H. Sheikh and another Appellant
Versus
State of Gujarat and others Respondent

(Before : Doraiswamy Raju And A. Pasayat, JJ.)

Criminal Appeal Nos. 446-449 with 450-452 of 2004 (arising out of S.L.P. (Cri.) Nos. 538-541 with 1039-1041 of 2004), Decided on : 12-04-2004.

Criminal Procedure Code, 1973—Sections 391, 32, 385(2), 386, 406, 173(8) and 311—Evidence Act, 1872—Section 165—Constitution of India, 1950—Article 136.

Counsel for the Parties:

Kapil Sibal, Sr. Advocate, Mihir Desai, Ms. Aparna Bhat, P. Ramesh Kumar, Ms. Priya Kiran, Brijesh Kalappa, Advocates with him, for Appellants.

Mukul Rohtagi, Addl. Solicitor General, Ms. Hemantika Wahi, Ms. Prachi Bajpai, Advocates with him, for State of Gujarat; Sushil Kumar, K. T. S. Tulsi, Sr. Advocates, Nikhil Goel, Adolf Mathew, Vinay Arora, Sanjay Jain, Dr. Kailash Chand and Vijay Patel, Advocates with them, for Respondents.

Judgment

Arijit Pasayat, J—Leave granted.

2. The present appeals have several usual features and some of them pose very serious questions of far-reaching consequences. The case is commonly to be known as “Best Bakery Case”. One of the appeals is by Zahira who claims to be an eye-witness to macabre Killings allegedly as a result of communal frenzy. She made statements and filed affidavits after completion of trial and judgment by the trial Court, alleging that during trial she was forced to depose falsely and turn hostile on account of threats and coercion. That raise an important issue regarding witness protection besides the quality and credibility of the evidence before Court. The other rather unusual question interestingly raised by the State of Gujarat itself relates to improper conduct of trial by the public prosecutor. Last, but not the least that the role of the investigating agency itself was perfunctory and not impartial. Though its role is perceived differently by the parties, there is unanimity in their stand that it was tainted, biased and not fair. While the accused persons accuse it for alleged false implication, the victims’ relatives like Zahira allege its efforts to be merely to protect the accused.

3. The appeals are against judgment of the Gujarat High Court in Criminal Appeal No. 956 of 2003 upholding acquittal of respondent-accused by the trial Court. Along with said appeal, two other petitions namely Criminal Miscellaneous Application No. 10315 of 2003 and Criminal Revision No. 583 of 2003 were disposed of. The prayers made by the State for adducing additional evidence under Section 391 of the Code of Criminal Procedure, 1973 (in short the “Code”), and/or for directing re-tiral were rejected. Consequently, prayer for examination of witnesses under Section 311 of the Code was also rejected.

4. In a nutshell the prosecution version which led to trial of the accused persons is as follows :

5. Between 8.30 p.m. of 1-3-2002 and 11.00 a.m. of 2-3-2002, a business concern known as “Best Bakery” at Vadodara was burnt down by an unruly mob of large number of people. In the ghastly incident 14 persons died. The attacks were stated to be a part of retaliatory action to avenge killing of 56 persons burnt to death in the Sabarmati Express. Zahira was the main eye-witness who lost family members including helpless women and innocent children in the gruesome incident. Many persons other than Zahira were also eye-witnesses. Accused persons were the perpetrators of the crime. After investigation charge-sheet was filed in June, 2002.

6. During trial the purported eye-witnesses resiled from the statements made during investigation. Faulty and biased investigation as well as perfunctory trial were said to have marred the sanctity of the entire exercise undertaken to bring the culprits to books. By judgment dated 27-6-2003, the trial Court directed acquittal of the accused persons.

7. Zahira appeared before National Human Rights Commission (in short the ‘NHRC’) stating that she was threatened by powerful politicians not to depose against the accused persons. On 7-8-2003 an appeal not up to the mark and neither in conformity with the required care, appears to have been filed by the State against the judgment of acquittal before the Gujarat High Court, NHRC moved this Court and its Special Leave Petition has been treated as a petition under Article 32 of the Constitution of India, 1950 (in short the ‘Constitution’). Zahira and another organisation – Citizens for Justice and Peace filed SLP (Crl.) No. 3770 of 2003 challenging judgment of acquittal passed by the trial Court. One Sahera Banu (sister of appellant-Zahira) filed the afore-noted Criminal Revision No. 583 of 2003 before the High Court questioning the legality of the judgment returning a verdict of acquittal. Appellant-State filed an application (Criminal Misc. Application No. 7677 of 2003) in terms of Sections 391 and 311 of the Code for permission to adduce additional evidence and for examination of certain persons as witness. Criminal Miscellaneous Application No. 9825 of 2003 was filed by the State to bring on record a document and to treat it as corroborative piece of evidence. By the impugned judgment the appeal, revision and the applications were dismissed and rejected.

8. The State and Zahira had requested for a fresh trial primarily on the following grounds :

9. When a large number of witnesses have turned hostile it should have raised a reasonable suspicion that the witnesses were being threatened or coerced. The Public Prosecutor did not take any step to protect the star witness who was to be examined on 17-5-2003 specially when four out of seven injured witnesses had on 9-5-2003 resiled from the statements made during investigation, Zahira Sheikh – the Star witness had specifically stated on affidavit about the threat given to her and the reason for her not coming out with the truth during her examination before Court on 17-5-2003.

10. The Public Persecutor was not acting in a manner befitting the position held by him. He even did not request the Trial Court for holding the trial in-camera when a large number of witnesses were resiling from the statements made during investigation.

11. The trial Court should have exercised power under section 311 of the Code and recalled and re-examined witnesses as their evidence was essential to arrive at the truth and a just decision in the case. The power under Section 165 of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’) was not resorted to at all and that also had led to miscarriage of justice.

12. The Public Prosecutor did not examine the injured witnesses. Exhibit 36/68 was produced by the Public Prosecutor which is a statement of one Rahish Khan on the commencement of the prosecution case, though the prosecution was neither relying on it nor it was called upon by the accused, to be produced before the Court. The said statement was wrongly allowed to be exhibited and treated as FIR by the public prosecutor.

13. Statement of one eye-witness was recorded on 4-3-2002 by P1 Baria at SSG Hospital, Vadodara disclosing names of five accused persons and when he was sought to be examined before the Court, summons were issued to this person on 27-4-2003 for examination on 9-5-2003. It could not be served on the ground that he had left for his native place in Uttar Pradesh. Therefore, fresh summons were issued on 9-6-2003 for recording his evidence on the next day i.e. on 10-6-2003, giving only one day time. When it could not be served, then summons were issued on 13-6-2003 for remaining present before the Court on 16-6-2003. It could not be also served for the same reasons. Ultimately, the Public Prosecutor gave purshis for dropping him as witness and surprisingly the same was granted by the Trial Court. This goes to show that both the Public Prosecutor as well as the Court were not only oblivious but also failed to discharge their duties. An important witness was not examined by the prosecutor on the ground that he, Sahejadkhan Hasankhan (PW-48) was of unsound mind. Though the witness was present, the Public Prosecutor dropped him on the ground that he was not mentally fit to depose. When such an application was made by the prosecution for the dropping on the ground of mental deficiency it was the duty of the learned trial Judge to at least make some minimum efforts to find out as to whether he was actually of unsound mind or not, by getting him examined from the Civil Surgeon or a doctor from the Psychiatric Department. This witness (PW-48) has received serious injuries and the doctor Meena (PW-9) examined him. She has not stated in her evidence that he was mentally deficient. The police has also not reported that this witness was of unsound mind. During investigation also it was never stated that he was of unsound mind. His statement was recorded on 6-3-2002.

14. Sahejadkhan Hasankhan – the witness was unconscious between 2nd-6th of March, 2002. When he regained conscious, his statement was recorded on 6-3-2002. He gave names of four accused persons i.e. A-5, A-6, A-8 and A-11. This witness has also filed an affidavit before this Court in a pending matter narrating the whole incident. This clearly shows that the person was not of unsound mind as was manipulated by the prosecution to drop him.

15. In the case of one Shailun Hasankhan Pathan summons were issued on 9-6-2003 requiring his presence on 10-6-2003 which could not be served on him. He disclosed the names of three accused persons i.e. A-6, A-8 and A-11. This witness was also surprisingly treated to be of deficient mind without any material and even without taking any efforts to ascertain the truth or otherwise of such serious claims.

16. Similarly, one injured eye-witness Tufel Habibulla Sheikh was not examined, though he had disclosed the names of four accused i.e. A-5, A-6, A-8 and A-11. No summons was issued to this witness and he was not at all examined.

17. Another eye-witness Yasminbanu who had disclosed the names of A-5, A-6 and A-11 was also not examined. No reason whatsoever was disclosed for non-examination of this witness.

18. The affidavit filed by different witnesses before this Court highlighted as to how and why they have been kept unfairly out of trial. Lalmohamad Khudabax Shaikh (PW-15) was hurriedly examined on 27-5-2003 though summons was issued to him for remaining present on 6-6-2003. No reason has been indicated as to why he was examined before the dated stipulated.

19. Strangely the relatives of the accused were examined as witnesses for the prosecution obviously with a view that their evidence could be used to help the accused persons.

20. According to the appellant-Zahira there was no fair trial and the entire effort during trial and at all relevant times before also was to see that the accused persons got acquitted. When the investigating agency helps the accused, the witnesses are threatened to depose falsely and prosecutor acts in a manner as if he was defending the accused, and the Court was acting merely as an onlooker and there is no fair trial at all, justice becomes the victim.

21. According to Mr. Sibal, learned counsel appearing for the appellant-Zahira, the High Court has not considered the stand taken by the appellant and the State of Gujarat in the proper perspective. Essentially, two contentions were raised by the State before the High Court, in addition to the application filed by the appellant-Zahira highlighting certain serious infirmities in the entire exercise undertaken. The State had made prayers for acceptance of certain evidence under Section 391 of the Code read with Section 311 of the Code. So far as the acceptance of additional evidence is concerned, the same related to affidavits filed by some injured witnesses who on account of circumstances indicated in the affidavits were forced not to tell the truth before the trial Court, making justice a casualty. The affidavits in essence also highlighted the atmosphere that prevailed in the trial Court. The affidavit in fact were not intended to be used as the evidence. A prayer was made that the witnesses who had filed affidavits before this Court should be examined, so that the truth can be brought on record. The High Court surprisingly accepted the extreme stand of learned counsel for the accused persons that under Section 386 of the Code the Court can only peruse the record of the case brought before it in terms of Section 385(2) of the Code and the appeal has to be decided on the basis of such record only and no other record can be entertained or taken into consideration while deciding the appeal. It was the stand of learned counsel for the accused before the High Court that by an indirect method certain materials were sought to be brought on record which should not be permitted. The High Court while belittling and glossing over the serious infirmities and pitfalls in the investigation as well as trial readily accepted the said stand and held that an attempt was being made to bring on record the affidavits by an indirect method, thought they were not part of the record of the trial Court. It further held that no one including the State can be allowed to take advantage of its own wrong and thereby make capricious exercise of powers in favour of the prosecution to fill in the lacuna, overlooking completely the obligation cast on the Courts also to ensure that the truth should not become a casualty and substantial justice is not denied to victims as well. With reference to these conclusions it was submitted that the High Court did not keep in view the true scope and ambit of Section 391 as also the need or desirability to resort to Section 311 of the Code and virtually rendered the provisions otiose by nullifying the very object behind those provisions. The conclusion that the appeal can be decided only on the basis of records brought before the High Court in terms of Section 385(2) would render Section 391 of the Code and other allied powers conferred upon Courts to render justice completely nugatory.

22. Further, after having held that the affidavits were not to be taken on record, the High Court has recorded findings regarding contents of those affidavits, and has held that the affidavits are not truthful and false. Unfortunately, the High Court has gone to the extent of saying that the appellant-Zahira has been used by some persons with oblique motives. The witnesses who filed affidavits have been termed to be of unsound mind, untruthful and capable of being manipulated, without any material or reasonable and concrete basis to support such conclusions. In any event, the logic applied by the High Court to discard the affidavits of Zahira and others that they have fallen subsequently into the hands of some who remained behind the curtain, can be equally applied to accept the plea that accused or persons acting at their behest only had created fear on the earlier occasion before deposing in Court by threats, in the minds of Zahira and others. After having clearly concluded that the investigation was faulty and there were serious doubts about the genuineness of the investigation, it would have been proper for the High Court to accept the prayer made for additional evidence and/or re-trial. Abrupt conclusions drawn about false implication not only cannot stand the test of scrutiny but also lack judicious approach and objective consideration, as is expected of a Court.

23. Section 391 of the Code is intended to subserve the ends of justice by arriving at the truth and there is no question of filling of any lacuna in the case on hand. The provision though a discretionary one is hedged with the conditions about the requirement to record reasons. All these aspects have been lost sight of and the judgment, therefore, is indefensible. It was submitted that this is a fit case where the prayer for re-trial as sequel to acceptance of additional evidence should be directed. Though the re-trial is not the only result flowing from acceptance of additional evidence, in view of the peculiar circumstances of the case, the proper course would be to direct acceptance of additional evidence and in the fitness of things also order for a re-trial on the basis of the additional evidence.

24. It was submitted by the appellants that in view of the atmosphere in which the case was tried originally there should be a direction for a trial outside the State in case this Court thinks it so appropriate to direct, and evidence could be recorded by video conferencing so that a hostile atmosphere can be avoided. It is further submitted that the fresh investigation should be directed as investigation already conducted was not done in a fair manner and the prosecutor did not act fairly. If the State’s machinery fails to protect citizen’s life, liberties and property and the investigation is conducted in a manner to help the accused persons, it is but appropriate that this Court should step in to prevent undue miscarriage of justice that is perpetrated upon the victims and their family members.

25. Mr. Rohtagi, learned Additional Solicitor General appearing for the State of Gujarat in the appeal filed by it submitted that the application under consideration of the High Court was in terms of Section 311 and Section 391 of the Code. Though the nomenclature is really not material, the prayer was to permit the affidavits to be brought on record, admit and take additional evidence of the persons filing the affidavits by calling/re-calling them in addition to certain directions for re-trial if the High Court felt it to be so necessary after considering the additional evidence. Though there was no challenge to Zahira’s locus standi to file an appeal, it is submitted that prayer, for re-hearing by another High Court and/or for trial outside that State cannot be countenanced and it is nobody’s case that the Courts in Gujarat cannot be complete justice and such moves do not serve anybody’s purpose.

26. There is no proper reason indicated by the High Court to refuse to take on record the affidavits and the only inferable reason as it appears i.e. that the affidavits were also filed in this Court in another proceeding is no reason in the eye of law. Admissibility of material is one thing and what is its worth is another thing and relates to acceptability of the evidence. Since they were relevant, being filed by alleged eye-witnesses, there was no basis for the High Court to discard them. Even if the appellant-Zahira has taken different stands as concluded by the High Court, it was obligatory for the Court to find out as to what is the correct stand and real truth which could have been decided and examined by accepting the prayer for additional evidence. The High Court has, without any material or sufficient basis, come to hold that the FIR was manipulated, and the fax message referred to by the State could also have been manipulated. There is no basis for coming to such a conclusion. There was no material before the trial Court to conclude that the FIR was lodged by one Rahish Khan, though the statement of appellant-Zahira was anterior in point of time. The stand of the State was that it was relying on Zahira’s version to be the FIR. The State had filed the application for acceptance of additional evidence as it was of the view that the FIR registered on the basis of Zahira’s statement was an authentic one and no evidence aliunde was necessary. In the absence of even any material the abrupt conclusion about manipulation and the other conclusions of the High Court are perverse and also contradictory in the sense the after having said that affidavits were not to be brought on record it went on to label it as not truthful. The High Court should not have thrown out the application as well as the materials sought to be brought on record even at the threshold and yet done on to surmise on reasons, at the same time, professing to decide on its correctness.

27. The stands taken before the High Court to justify acceptance of additional evidence and directions for retrial were reiterated.

28. Mr. Sushil Kumar, learned senior counsel for the accused submitted that it is not correct to say that application under Section 391 of the Code was not admitted. It was in fact admitted and rejected on merits. It is also not correct to say that the investigation was perfunctory. The affidavits sought to be brought on record were considered on their own merits. While Zahira’s prayer was for fresh investigation, the State’s appeal in essence was for fresh trial. The four persons whose affidavits were pressed into service were PWs 1, 6, 47 and 48. They were examined as PWs and there was no new evidence. There can be no re-examination on the pretext used by the State for re-trial. The original appeal filed by the State was Appeal No. 956 of 2003. There was first an amendment in September 2003, and finally in December 2003. The stand got changed from time to time. What essentially was urged or sought for, related to fresh trial on the ground that investigation was not fair. The stand taken by the State in its appeal is also contrary to evidence on record. Though one of the grounds seeking fresh trial was the alleged deficiencies of the public prosecutor in conducting the trial and for not brining on record the contradictions with reference to the statements recorded during investigation, in fact it has been done. There was nothing wrong in treating statement of Rahish Khan as the FIR. The High Court has rightly concluded that Zahira’s statement was manipulated as if she had given information at the first point of time which is belied by the fact that it reached the concerned Court after three days. The High Court after analysing the evidence has correctly come to the conclusion that the police manipulated in getting false witnesses to rope in wrong people as the accused. Irrelevant and out of context submissions are said to have been made, and grounds taken and reliefs sought for by Zahira in her appeal.

29. Mr. KTS Tulsi, learned senior counsel also appearing for the accused persons in the appeal filed by the State submitted that in Section 311 the key words are “if his evidence appears to it to be essential to the just decision of the case”. Therefore, the Court must be satisfied that the additional evidence is necessary and it is not possible to arrive at a just conclusion on the basis of the records. For that purpose it has to apply its mind to the evidence already on record and thereafter decided whether it feels any additional evidence to be necessary. For that purpose, the Court has to come to a prima facie conclusion that an appeal cannot be decided on the basis of materials existing on record. Therefore, before dealing with an application under Section 391 the Court has to analyse the evidence already existing. Since the High Court in the instant case has analysed the evidence threadbare and come to the conclusion that the trial was fair and satisfactory and a positive conclusion has been arrived at after analysing the evidence, the question of pressing into service Section 391 of the Code does not arise.

30. In essence three points were urged by Mr. Tulsi. They are as follows :

31. For the purpose of exercise of power under Section 391 of the Code, the Court has to come to a conclusion about the necessity for additional evidence which only could be done after examining evidence on record. In other words the Court must arrive at a conclusion that the existing material is insufficient for the purpose of arriving at a just decision.

32.The High Court has undertaken an elaborate exercise for the purpose of arriving at the conclusion as to whether additional evidence was necessary after examining every relevant aspect. It has come to a definite conclusion that the trial of the case was fair, satisfactory and neither any illegalities were committed nor any evidence was wrongly accepted or rejected. The extraneous factors have been kept out of consideration as these may have influenced the witnesses in changing their evidence and giving a go by to substantive evidence tendered in Court. A need for giving finality to trial in criminal proceedings is paramount as otherwise prejudice is caused to the accused persons and in fact it would be a negation of the fundamental rule of law to make the accused to undergo trial once over which has the effect of derailing system of justice. Elaborating the points it is submitted that if the Court feels that additional evidence is not necessary after analysing the existing evidence and the nature of materials sought to be brought in, it cannot be said that the Court has acted in a manner contrary to law. In fact, the High Court has felt that extraneous, materials are now sought to be introduced and it is not known as to whether the present statement of the witnesses is correct or what was stated before the trial Court originally was the truth. The Court analysed the evidence of the material witnesses and noticed several relevant factors to arrive at this conclusion. The necessity and need for additional evidence has to be determined in the context of the need for a just decision and it cannot be used for filling up a lacuna. Reference is made to the decisions of this Court in Jamatraj Kewalji Govani vs. The State of Maharashtra, (1967) 3 SCR 415 and Mohanlal Shamji Soni vs. Union of India and another (1991) 1 Suppl. SCC 27. The High Court has also come to definite conclusion that the submissions of the State and the Sahera cannot be accepted because non-examination of certain persons was on account of the circumstances indicated by the trial Court and that conclusion has been arrived at after analysing the factual background. There is no guarantee, as rightly observed by the High Court, that the subsequent affidavits are true. On the contrary, in the absence of any contemporary grievance having been made before the Court about any pressure or threat, the affidavits and the claims now sought to be made have been rightly discarded.

33. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involve a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.

34. In 1846, in a judgment which Lord Chancellor Selborne would later describe as “one of the ablest judgments of one of the ablest judges who ever sat in this court.” Vice-Chancellor Knight Bruce said :

“The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however, valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination. Truth, like all other good things, may be loved unwisely – may be pursued too keenly – may cost too much.”

The Vice-Chancellor went on to refer to paying “too great a price… for truth”. This is a formulation which has subsequently been frequently invoked, including by Sir Gerard Brennan. On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms : “The evidence has been obtained at a price which is unacceptable having regard to prevailing community standards.”

35. Restraints on the processes for determining the truth are multi-faceted. They have emerged in numerous different ways, at different times and affect different areas of the conduct of legal proceedings. By the traditional common law method of induction there has emerged in our jurisprudence the principle of a fair trial. Oliver Wendell Holmes described the process :

“It is the merit of the common law that it decides the case first and determines the principles afterwards….. It is only after a series of determination on the same subject-matter, that it becomes necessary to “reconcile the cases”, as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest is to resist it at every step.”

36. The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation – peculiar at times and related to the nature of crime, persons involved – directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.

37. As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the laws of evidence. There is, however, an overriding and, perhaps, unifying principle. As Deane, J. put it :

“It is desirable that the requirement of fairness be separately identified since it transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law.”

38. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice – often referred to as the duty to vindicate and uphold the ‘majesty of the law’. Due administration of justice has always been viewed as a continuous process. not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in rational to proceedings, even if a fair trial is till possible, except at the risk of undermining the fair name and standing of the Judges or impartial and independent adjudicators.

39. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will be not correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson’s eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.

40.While dealing with the claims for the transfer of a case under Section 406 of the Code from one State to another this Court in Mrs. Maneka Sanjay Gandhi and Anr. v Ms. Rani Jethmalani, (1979) 4 SCC 157, emphasised the necessity to ensure fair trial, observing as hereunder :

“Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services of like mini-grievances. Something more substantial, more compelling, more imperilling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. We have to test the petitioner’s grounds on this touchstone bearing in mind the rule that normally the complainant had the right to choose any court having jurisdiction and the accused cannot dictate where the case against him should not tried. Even so, the process of justice should not harass the parties and from that angle the court may weight the circumstances.

A more serious ground which disturbs us in more ways then one is the alleged absence of congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our country that court proceedings are being disturbed by rude hoodlums and unruly crowds, jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse. This tendency of toughs and street roughs to violate the serenity of court is obstructive of the course of justice and must surely be stamped out. Likewise, the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for a transfer may not be dismissed summarily. It causes, disquiet and concern to a court of justice if a person seeking justice is unable to appear, present one’s case, bring one’s witnesses or adduce evidence. Indeed, it is the duty of the court to assure propitious conditions which conduce to comparative tranquillity at the trial Turbulent conditions putting the accused’s life in danger or creating chaos inside the court hall may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary. Likewise, if there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides and polluting the climate, vitiating the necessary neutrality to hold detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer. In a decision cited by the counsel for the petitioner, Bose, J., observed

…….But we do feel that good grounds for transfer from Jashpurnagar are made out because of the bitterness of local communal feeling and the tenseness of the atmosphere there. Public confidence in the fairness of a trial held in such an atmosphere would be seriously undermined, particularly among reasonable Christians all over India not because the Judge was unfair or biased but because the machinery of justice is not geared to work in the midst of such conditions. The calm detached atmosphere of a fair and impartial judicial trial would be wanting, and even if justice were done it would not be “seen to be done”. (A.X. Francis vs. Banke Behari Singh, AIR 1958 SC 309).

Accepting this perspective we must approach the facts of the present case without excitement, exaggeration or eclipse of a sense of proportion. It may be true that the petitioner attracts a crowd in Bombay. Indeed , it is true of many controversial figures in public life that their presence in a public place gathers partisans for and against, leading to cries and catcalls or “jais” or “zindabads”. Nor is it unnatural that some persons may have acquired, for a time a certain quality of reputation, sometimes notoriety, sometimes glory, which may make them the cynosure of popular attention when they appear in cities even in a court. And when unkempt crowds press into a court hall it is possible that some pushing, some nudging, some brash ogling or angry staring may occur in the rough and tumble resulting in ruffled feelings for the victim. This is a far cry from saying that the peace inside the court has broken down, that clam inside the court is beyond restoration, that a tranquil atmosphere for holding the trial is beyond accomplishment or that operational freedom for Judge, parties, advocates and witnesses has creased to exist. None of the allegations made by the petitioner, read in the pragmatic light of the counter-averments of the respondent and understood realistically, makes the contention of the counsel credible that a fair trial is impossible. Perhaps, there was some rough weather but it subsided, and it was a storm in the tea cup or transient tension to exaggerate, which is unwarranted. The petitioner’s case of great insecurity or molestation to the point to threat to life is, far as the record bears out, difficult to accept. The more word of an interested party is insufficient to convince us that she is in jeopardy or the court under conditions of detachment, neutrality or uninterrupted progress. We are disinclined to stampede ourselves into conceding a transfer of the case on this score, as things stand now.

Nevertheless, we cannot view with unconcern the potentiality of a flare up and the challenge to a fair trial, in the sense of a satisfactory participation by the accused in the proceedings against her. Mob action may throw out of gear the wheels of the judicial process. Engineered fury may paralyse a party’s ability to present his case or participate in the trial. If the justice system grinds to a halt through physical manoeuvres or sound and fury of the senseless populace the rule of law runs aground. Even the most hated human anathema has a right to be heard without the rage of ruffians or huff of toughs being turned against him to unnerve him as party or witness or advocate. Physical violence to a party, actual or, imminent, is reprehensible when he seeks justice before a tribunal. Manageable solutions must not sweep this Court off its feet into granting an easy transfer but uncontrollable or perilous deterioration will surely persuade us to shift the venue. It depends. The frequency of mobbing manoeuvres in court precincts is a had omen for social justice in its wider connotation. We, therefore, think it necessary to make a few cautionary observations which will be sufficient, as we see at present, to protect the petitioner and ensure for her a fair trial.

41. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial and not by an isolated scrutiny.

42. Failure to accord fair hearing either to be accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and presence. Since the fair hearing requires and opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial.

43. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.

44. “Witnesses” as Benthem said : are the eyes and ears of justice. Hence. the importance and primacy of the quality of trail process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being nor in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously adopted to smoother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate causalties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting wintesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting lainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the “TADA Act”) have taken note of the reluctance shown by witnesses to depose against dangerous criminalsterrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies.

45. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Defects which illegimately affect the presentations of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair as noted above to the needs of the society. On the contrary, the efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance if not more, as the interests of the individual accused. In this Courts have a vital role to play.

46. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Courts cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands to such prosecuting agency showing indifference or adopting an attitude of total aloofness.

47.The power of the Court under Section 165 of the Evidence Act is in a way complementary to is power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohan Lal vs. Union of India (1991) 1 Suppl. SCC 271 this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, ‘any Court’ “at any stage”, or “any enquiry or trial or other proceedings” “any person” and “any such person” clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case – ‘essential’, to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to upheld the truth.

48. It is not that in every case where the witness who had given evidence before Court wants to change his mind and is prepared to speak differently, that the Court concerned should readily accede to such request by lending its assistance. If the witness who deposed one way earlier comes before the appellate Court with a prayer that he is prepared to give evidence which is materially different from what he has given earlier at the trial with the reasons for the earlier lapse, that Court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. It is not that the power is to be exercised in a routine manner, but being an exception to the ordinary rule of disposal of appeal on the basis of records received in exceptional cases or extraordinary situation the Court can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The Court can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has tell-tale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits of the material sought to be brought in.

49. Ultimately, as noted above, ad nauseam the duty of the Court is to arrive at the truth and subserve the ends of justice. Section 311 of the Code does not confer any party any right to examine, cross-examine and re-examine any witness. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by Courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a just decision in the case.

50. Section 391 of the Code is another salutary provision which clothes the Courts with the power to effectively decide an appeal. Though Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the Court can deal with an appeal. Section 391 is one such exception to the ordinary rule and if the appellate Court considers additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate Court to call for further evidence before the appeal is disposed of. The appellate Court can direct the taking up of further evidence in support of the prosecution; a fortiori it is open to the Court to direct that the accused persons may also be given a chance of adducing further evidence. Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, specially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of guilty man’s escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the Court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable.

51. The legislative intent in enacting Section 391 appears to be the empowerment of the appellate Court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391.

52. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court. As reiterated supra the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the public prosecutor is also entitled to justice. The case of the community deserve equal treatment at the hands of the Court in the discharge of its judicial functions.

53.In Rambhau and Anr. vs. State of Maharashtra (2001) 4 SCC 759 it was held that the object of Section 391 is not to fill in lacuna, but to subserve the ends of justice. The Court has to keep these salutary principle in view. Though wide discretion is conferred on the Court, the case has to be exercised judicially and the Legislature had put the safety valve by requiring recording of reasons.

54.Need for circumspection was dealt with by this Court in Mohanlal Shamji Soni’s case (supra) and Ram Chander vs. State of Haryana (1981) 3 SCC 191 which dealt with the corresponding Section 540 of Code of Criminal Procedure, 1898 (in short the ‘Old Code’) and also in Jamatrai’s case (supra). While dealing with Section 311 this Court in Rajendra Prasad vs. Narcotic Cell thr. Its officer in Charge, Delhi (1999) 6 SCC 110 held as follows :

“It is a common experience in criminal Courts that defence counsel would raise objections whenever Courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the Court could not “fill the lacuna in the prosecution case”. A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage “to err is human” is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a Court cannot fill up.

Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the original Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better”.

55. Whether a retrial under Section 386 or taking up of additional evidence under Section 391 is the proper procedure will depend on the facts and circumstances of each case for which no strait-jacket formula of universal and invariable application can be formulated.

56. In the ultimate analysis whether it is a case covered by Section 386 or Section 391 of the Code the underlying object which the Court must keep in view is the very reasons for which the Courts exist i.e. to find out the truth and dispense justice impartially and ensure also that the very process of Courts are not employed or utilized in a manner which give room to unfairness or lend themselves to be used as instruments of oppression and injustice.

57. Though justice is depicted to be blind-folded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administer justice and not to ignore or turn the mind/attention of the Court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of Courts and erode in stages faith inbuilt in judicial system ultimately destroying the very justice delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings.

58. The Courts at the expense of repetition we may state, exist for doing justice to the persons who are affected. The Trial/First Appellate Courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself.

59.As pithily stated in Jennison vs. Backer (1972 (1) All ER 1006), “The law should not be seen to sit limply, while those who defy it go free and, those who seek its protection lose hope”. Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies. Courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. (See Shakila Abdul Gafar Khan (Smt.) vs. Vasant Raghunath Dhobe, (2003) 7 SCC 749.

60.This Court in Vineet Narian vs. Union of India (1998) 1 SCC 226 has directed that steps should be taken immediately for the constitution of able and impartial agency comprising persons of unimpeachable integrity to perform functions akin to those of the Director of Prosecution in England. In the United Kingdom, the Director of Prosecution was created in 1879. His appointment is by the Attorney General from amongst the members of the Bar and he functions under the supervision of Attorney General. The Director of Prosecution plays a vital role in the prosecution system. He even administers “witness Protection Programmes”. Several countries for example Austriala, Canada and USA have even enacted legislation in this regard. The Witness Protection Programmes are imperative as well as imminent in the context of alarming rate of somersaults by witnesses with ulterior motives and purely for personal gain or fear for security. It would be a welcome step if something in those lines are done in our country. That would be a step in the right direction for a fair trial. Expression of concern merely in words without really the mind to concrete it by positive action would be not only useless but also amounts to betrayal of public confidence and trust imposed.

61.Though it was emphasised with great vehemence by Mr. Sushil Kumar and Mr. KTS Tulsi that the High Court dealt with the application under Section 391 of the Code in detail and not perfunctorily as contended by learned counsel for the appellants; we, find that nowhere the High Court has effectively dealt with the application under Section 391 as a part of the exercise to deal with and dispose of the appeal. In fact the High Court dealt with it practically in one paragraph, i.e. Paragraph 36 of the judgment accepting the stand of learned counsel for the accused that the consideration of the appeal has to be limited to the records sent up under Section 385(2) of the Code for disposal of the appeal under Section 386. This perception of the powers of the appellate Court and misgivings as to the manner of disposal of an appeal per se vitiates the decision rendered by the High Court. Section 386 of the Code deals with the manner and disposal of the appeal in the normal or ordinary course. Section 391 is in the nature of exception of Section 386. As was observed in Rambhau’s case (supra) if the stand of learned counsel for the accused as was accepted by the High Court is maintained, it would mean that Section 391 of the Code would be a dead letter in the statute book. The necessity for additional evidence arises when the Court feels that some evidence which ought to have been before it is not there or that some evidence has been left out or erroneously brought in. In all cases it cannot be laid down as a rule of universal application that the Court has to first find out whether the evidence already on record is sufficient. The nature and quality of the evidence on record is also relevant. If the evidence already on record is shown or found to be tainted, tailored to suit or help a particular party or side and the real truth has not and could not have been spoken or brought forth during trial, it would constitute merely an exercise in futility, if it considered first whether the evidence already on record is sufficient to dispose of the appeals. Disposal of appeal does not mean disposal for statistical purposes but effective and real disposal to achieve the object of any trial. The exercise has to be taken up together. It is not that the Court has to be satisfied that the additional evidence would be necessary for rendering a verdict different from what was rendered by the trial Court. In a given case even after assessing the additional evidence, the High Court can maintain the verdict of the trial Court and similarly the High Court on consideration of the additional evidence can upset the trial Court’s verdict. It all depends upon the relevance and acceptability of the additional evidence and its qualitative worth in deciding the guilt of innocence of the accused.

62. Merely because the High Court permits additional evidence to be adduced, it does not necessarily lead to the conclusion that the judgment of the trial Court was wrong. That decision has to be arrived at after assessing the evidence that was before the Trial Court and the additional evidence permitted to be adduced. The High Court has observed that question of accepting application for additional evidence will be dealt with separately, and in fact dealt with it in a cryptic manner practically in one paragraph and did not think it necessary to accept the additional evidence. But at the same time made threadbare analysis of the affidavits as if it had accepted it as additional evidence and was testing its acceptability. Even the conclusions arrived at with reference to those affidavits do not appear to be correct and seem to suffer from apparent judicial obstinacy and avowed determination to reject it. For example, to brand a person as not truthful because a different statement was given before the trial Court unmindful of the earliest statement given during investigation and the reasons urged for turning hostile before Court negates the legislative intent and purpose of incorporating Section 391 of the Code. The question of admission of evidence initially or as additional evidence under Section 391 is distinct from the efficacy, reliability and its acceptability for consideration of claims in the appeal on merits. It is only after admission, the Court should consider in each case whether on account of earlier contradiction before Court and the testimony allowed to be given as additional evidence, which of them or any one part or parts of the depositions are creditworthy and acceptable, after a comparative analysis and consideration of the probabilities and probative value of the materials for adjudging the truth. To reject it merely because of contradiction and that too in a sensitised case like the one before Court with a horror and terror oriented history of its own would amount to conspicuous omission and deliberate dereliction of discharging functions judiciously and with a justice-orientated mission. In a given case when the Court is satisfied that for reasons on record the witness had not stated truthfully before the trial Court and was willing to speak the truth before it, the power under Section 391 of the Code is to be exercised. It is to be noted at this stage that it is not the prosecution which alone can file an application under Section 391 of the Code. It can also be done, in an appropriate case by the accused to prove his innocence. Therefore, any approach without pragmatic consideration defeats the very purpose for which Section 391 of the Code has been enacted. Certain observations of the High Court like, that if the accused persons were really guilty they would not have waited for long to commit offences or that they would have killed the victims in the night taking advantage of the darkness and/or that the accused persons had saved some persons belonging to the other community were not only immaterial for the purpose of adjudication of application for additional evidence but such surmises could have been carefully avoided at least in order to observe and maintain the judicial calm and detachment required of the learned Judges in the High Court. The conclusions of the High Court that 65 to 70 persons belonging to the attacked community were saved by the accused or others appears to be based on the evidence of the relatives of the accused who were surprisingly examined by prosecution. We shall deal with the propriety of examining such persons, infra. These aspects could have been, if at all permissible to be done, considered after accepting the prayer for additional evidence. It is not known as to what extent these irrelevant materials have influenced the ultimate judgment of the High Court, in coming with such a strong and special plea in favour of a prosecuting agency which has miserably failed to demonstrate any credibility by its course of action. The entire approach of the High Court suffers from serious infirmities, its conclusion lopsided and lacks proper or judicious application of mind. Arbitrariness is found writ large on the approach as well as the conclusions arrived at in the judgment under challenge, in unreasonably keeping out relevant evidence from being brought on record.

63. Right from the beginning, the stand of the appellants-Zahira was that the investigating agency was trying to help the accused persons and so was the public prosecutor. If the investigation was faulty, it was not the fault of the victims or the witnesses. If the same was done in a manner with the object of helping the accused persons as it appears to be apparent from what has transpired so far, it was an additional ground just and reasonable as well for accepting the additional evidence.

64.In the case of a defective investigation the Court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 or at a later stage also resorting to Section 391 instead or throwing hands in the air in despair. 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. (See Karnel Singh vs. State of M.P. (1995) 5 SCC 518.

65.In Paras Yadav and Ors. vs. State of Bihar (1999) 2 SCC 126 it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. the contaminated conduct of officials should not stand on the way of Courts getting at the truth by having recourse to Sections 311, 391 of the Code, and Section 165 of the Evidence Act at the appropriate and relevant stages and evaluating the entire evidence; otherwise the designed mischief would be perpetuated with a premium to the offenders and justice and would not only be denied to the complainant party but also made an ultimate casualty.

66.As was observed in Ram Bihari Yadav vs. State of Bihar and Ors. (1998) 4 SCC 517 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 in the hands of Courts. The view was again reiterated in Amar Singh vs. Balwinder Singh and Ors. (2003) 2 SCC 518.

67. It is no doubt true that the accused persons have been acquitted by the trial Court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on legal process and the resultant decision of courts – coram non judis and non est. There is, therefore, every justification to call for interference in these appeals.

68. In a country like us with heterogeneous religions and multiracial and multilingual society which necessitates protection against discrimination on the ground of caste or religion taking lives of persons belonging to one or the other religion is bound to have dangerous repercussions and reactive effect on the society at large and may tend to encourage fissiparous elements to undermine the unity and security of the nation on account of internal disturbances. It strikes at the very root of an orderly society, which the founding fathers of our Constitution dreamt of.

69. When the ghastly killings take place in the land of Mahatma Gandhi it raises a very pertinent question as to whether some people have become so bankrupt in their ideology that they have deviated from everything which was so dear to him. When large number of people including innocent and helpless children and women are killed in a diabolic manner it brings disgrace to the entire society. Criminals have no religion. No religion teachers violence and cruelty-based religion is no religion at all, but a mere cloak to usurp power by fanning ill feeling and playing on feelings aroused thereby. The golden thread passing through every religion is love and compassion. The fanatics who spread violence in the name of religion are worse than terrorist and more dangerous than an alien enemy.

70. The little drops of humanness which jointly make humanity a cherished desire of mankind had seemingly dried up when the perpetrators of the crime had burnt alive helpless woman and innocent children. Was it their fault that were born in the houses of persons belonging to a particular community ? The still, said music of humanity had become silent when it was forsaken by those who were responsible for the Killings.

“Little drops of

Water, little grains of sand

Make the mighty ocean

And the pleasant land.

Little deeds of kindness,

Little words of love

Help to make earth happy

Like the heaven above”

Said Julia A.F. Cabney in “Little Things”

71. If one even cursorily glances through the records of the case, one gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court. The Court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. The role of the State Government also leaves much to be desired. One gets a feeling that there was really to seriousness in the State’s approach in assailing the Trial Court’s judgment. This is clearly indicated by the fact that the first memorandum of appeal filed was an apology for the grounds. A second amendment was done, that too after this Court expressed its unhappiness over the perfunctory manner in which the appeal was presented and challenge made. That also was not the end of the matter. There was a subsequent petition for amendment. All this sadly reflects on the quality of determination exhibited by the State and the nature of seriousness shown to pursue the appeal. Criminal trial should not be reduced to be the mock trials or shadow boxing or fixed trials. Judicial Criminal Administration System must be kept clean and beyond the reach of whimsical political wills or agendas and properly insulated from discriminatory standards or yardsticks of the type prohibited by the mandate of the Constitution.

72. Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown to real anxiety. Large number of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation. The modern day “Neros” were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and Justice become flies in the hands of these “wanton boys”. When fences state to swallow the crops, no scope will be left for survival of law and order or truth and justice. Public order as well as public interest become martyrs and monuments.

73. In the background of principles underlying Section 311 and Section 391 of the Code and Section 165 of the Evidence Act it has to be seen as to whether the High Court’s approach is correct and whether it had acted justly, reasonably and fairly in placing premiums on the serious lapses of grave magnitude by the prosecuting agencies and the Trial Court, as well. There are several infirmities which are tell tale even to the naked eye of even an ordinary common man. The High Court has come to a definite conclusion that the investigation carried out by the police was dishonest and faulty. That was and should have been per se sufficient justification to direct a re-trial of the case. There was no reason for the High Court to come to the further conclusion of its own about false implication without concrete basic and that too merely on conjecture. On the other hand, the possibility of the investigating agency trying to shield the accused persons keeping in view the methodology adopted and outturn of events can equally be not ruled out. When the investigation is dishonest and faulty, it cannot be only with the purpose of false implication. it may also be noted at this stage that the HIgh Court has even gone to the extent of holding that the FIR was manipulated. There was no basis for such a presumptive remark or arbitrary conclusion.

74.The High Court has come to a conclusion that Zahira seems to have unfortunately for some reasons after the pronouncement of the judgment fallen into the hands of some who prefer to remain behind the curtain to come out with the affidavit alleging threat during trial. It has rejected the application for adducing additional evidence on the basis of the affidavit, but has found fault with the affidavit and hastened to conclude unjustifiably that they are far from truth by condemning those who were obviously victims. The question whether they were worthy of credence, and whether the subsequent stand of the witnesses was correct needed to be assessed, and adjudged judiciously on objective standards which are the hallmark of a judicial pronouncement. Such observations if at all could have been only made after accepting the prayer for additional evidence. The disclosed purpose in the State Government’s prayer with reference to the affidavits was to bring to High Court’s notice the situation which prevailed during trial and the reasons as to why the witnesses gave the version as noted by the Trial Court. Whether the witness had told the truth before the Trial Court or as stated in the affidavit, were matters for assessment of evidence when admitted and tendered and when the affidavit itself was not tendered as evidence, the question of analysing it to find fault was not the proper course to be adopted. The affidavits were filed to emphasise the need for permitting additional evidence to be taken and for being considered as the evidence itself. The High Court has also found that some persons were not present and, therefore, question of their statement being recorded by the police did not arise. For coming to this conclusion, the High Court noted that the statements under Section 161 of the Code were recorded in Gujarati language though the witnesses did not know Gujarati. The reasoning is erroneous for more reason than one. There was no material before the High Court for coming to a finding that the person did not know Gujarati since there may be a person who could converse fluently in a language though not a literate to read and write. Additionally, it is not a requirement in law that the statement under Section 161 of the Code has to be recorded in the language known to the person giving the statement. As a matter of fact, the person giving the statement is not required to sign the statement as is mandated in Section 162 of the Code. Sub-section (1) of Section 161 of the Code provides that the competent police officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case. Requirement is the examination by the concerned police officer. Sub-section (3) is relevant, and it requires the police officer to 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. Statement made by a witness to the police officer during investigation may be reduced to writing. It is not obligatory on the part of the police officer to record any statement made to him. He may do so if he feels it necessary. What is enjoined by the Section is a truthful disclosure by the person who is examined. In the above circumstances the conclusion of the High Court holding that the persons were not present is untenable. The reasons indicated by the High Court to justify non-examination of the eye-witnesses is also not sustainable. In respect of one it has been said that whereabouts of the witness may not be known. There is nothing on record to show that the efforts were made by the prosecution to produce the witness for tendering evidence and yet the net result was “untraceable”. In other words, the evidence which should have been brought before the Court was not done with any meticulous care or seriousness. it is true that the prosecution is not bound to examine each and every person who has been named as witness. A person named as a witness may be given up when there is material to show that he has been gained over or that there is no likelihood of the witness speaking the truth in the Court. There was no such material brought to the notice of the Courts below to justify non-examination. The materials on record are totally silent on this aspect. Another aspect which has been lightly brushed aside by the High Court is that one person who was to be examined on a particular date was examined earlier than the date fixed. This unusual conduct by the prosecutor should have been seriously taken note of by the Trial Court and also by the High Court. It is to be noted that the High Court has found fault with DCP Shri Piyush Patel and has gone to the extent of saying that he has miserably failed to discharge his duties; while finding at the same time that police inspector Baria had acted fairly. The criticism according to us is uncalled for. Role of Public Prosecutor was also not in line with what is expected of him. Though a Public Prosecutor is not supposed to be a prosecutor, yet the minimum that was required to be done to fairly present the case of the prosecution was not done. Time and again, this Court stressed upon the need of the investigating officer being present during trial unless compelling reasons exist for a departure. In the instant case, this does not appear to have been done, and there is no explanation whatsoever why it was not done. Even Public Prosecutor does not appear to have taken note of this desirability. In Shailendra Kumar vs. State of Bihar and Ors. (2001(8) Supreme 513), it was observed as under:

“In our view, in a murder trial, it is sordid and repulsive matter that without informing the police station officer-in-charge, the matters are proceeded by the court and by the APP and tried to be disposed of as if the prosecution has not led any evidence. From the facts stated above, it appears that accused wants to frustrate the prosecution by unjustified means and it appears that by one way or the other the Addl. Sessions Judge as well as the APP have not taken any interest in discharge of their duties. It was the duty of the sessions judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on part of any witness to remain present, it is the duty of the court to take appropriate action including issuance of bailable/non-bailable warrants as the case may be. It should be well understood that prosecution cannot be frustrated by such methods and victims of the crime cannot be let in lurch.”

75. A somewhat an unusual mode in contract to the lapse committed by non-examining victims and injured witnesses adopted by the investigating agency and the prosecutor was examination of six relatives of accused persons. They have expectedly given a clean chit to the accused and labeled them as saviors. This unusual procedure was highlighted before the High Court. But the same was not considered relevant as there is no legal bar. When we asked Mr. Rohtagi, learned counsel for the State of Gujarat as to whether this does not reflect badly on the conduct of investigating agency and the prosecutor, he submitted that this was done to show the manner in which the incident had happened. This is a strange answer. Witnesses are examined by prosecution to show primarily who is the accused. In this case it was nobody’s stand that the incident did not take place. That the conduct of investigating agency and the prosecutor was not bona fide, is apparent and patent.

76. So far as non-examination of some injured relatives are concerned, the HIgh Court has held that in the absence of any medical report, it appears that they were to present and, therefore, held that the prosecutor might have decided not to examine Yasminbanu because there was no injury. This is nothing but a wishful conclusion based on presumption. It is true that merely because the affidavit has been filed stating that the witnesses were threatened, as a matter of routine, additional evidence should not be permitted. But when the circumstances as in this case clearly indicate that there is some truth of prima facie substance in the grievance made, having regard to background of events as happened that appropriate course for the courts would be to admit additional evidence for final adjudication so that the acceptability or otherwise of evidence tendered by way of additional evidence can be tested properly and legally tested in the context of probative value of the two versions. There cannot be straight-jacket formula or rule of universal application when alone it can be done and when, not. As the provisions under Section 391 of the Code are by way of an exception, the Court has to carefully consider the need for and desirability to accept additional evidence. We do not think it necessary to highlight all the infirmities in the judgment of the High Court or the approach of the Trial Court lest nothing credible or worth mentioning would remain in the process. This appears to be a case where the truth has become a casualty in the trial. We are satisfied that it is fit and proper case, in the background of the nature of additional evidence sought to be adduced and the perfunctory manner of trial conducted on the basis of tainted investigation a re-trial is a must and essentially called for in order to save and preserve the justice delivery system unsullied and unscathed by vested interests. We should not be understood to have held that whenever additional evidence is accepted, re-trial is a necessary corollary. The case on hand is without parallel and comparison to any of the cases where even such grievances were sought to be made. It stands on its own as an exemplary one, special of its kind, necessary to prevent its recurrence. It is normally for the Appellate Court to decide whether the adjudication itself by taking into account the additional evidence would be proper or it would be appropriate to direct a fresh trial, though, on the facts of this case, the direction for re-trial becomes inevitable.

77.Prayer was made by learned counsel for the appellant that the trial should be conducted outside the State so that the unhealthy atmosphere which led to failure of miscarriage of justice is not repeated. This prayer has to be considered in the background and keeping in view the spirit of Section 406 of the Code. It is one of the salutary principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case or that general allegations of a surcharged atmosphere against a particular community alone does not suffice. The Court has to see whether the apprehension is reasonable or not. The State of mind of the person who entertains apprehension, no doubt is a relevant factor but not the only determinative or concluding factor. But the Court must be fully satisfied about the existence of such conditions which would render inevitably impossible the holding of a fair and impartial trial, uninfluenced by extraneous considerations that may ultimately undermine the confidence of reasonable and right thinking citizen, in the justice delivery system. The apprehension must appear to the court to be a reasonable one. This position has been highlighted in Gurcharan Das Chadha vs. State of Rajasthan (1966) 2 SCR 678, and K. Ambazhagan vs. The Superintendent of Police and others etc. JT 2003 (9) SC 31.

78. Keeping in view the peculiar circumstances of the case, and the ample evidence on record, glaringly demonstrating subversion of justice delivery system no congeal and conducive atmosphere still prevailing, we direct that the re-trial shall be done by a Court under the jurisdiction of Bombay High Court. The Chief Justice of the said High Court is requested to fix up a Court of competent jurisdiction.

79. We direct the State Government to appoint another Public Prosecutor and it shall be open to the affected persons to suggest any name which may also be taken into account in the decision to so appoint. Though the witnesses or the victims do not have any choice in the normal course to have a say in the matter of appointment of a Public Prosecutor, in view of the unusual factors noticed in this case, to accord such liberties to the complainants party, would be appropriate.

80. The fees and all other expenses of the public prosecutor who shall be entitled to assistance of one lawyer of his choice shall initially be paid by the State of Maharashtra, who will thereafter be entitled to get the same reimbursed from the State of Gujarat. The State of Gujarat shall ensure that all the documents and records are forthwith transferred to the Court nominated by the Chief Justice of the Bombay High Court. The State of Gujarat shall also ensure that the witnesses are produced before the concerned court whenever they are required to attend that Court. Necessary protection shall be afforded to them so that they can depose freely without any apprehension of threat or coercion from any person. In case, any witness asks for protection, the State of Maharashtra shall also provide such protection as deemed necessary, in addition to the protection to be provided for the State of Gujarat. All expenses necessary of the trial shall be initially borne by the State of Maharashtra, to be reimbursed by the State of Gujarat.

81. Since we have directed re-trial it would be desirable to the investigating agency or those supervising the investigation, to act in terms of Section 173(8) of the Code, as the circumstances seem to or may so warrant. The Director General of Police, Gujarat is directed to monitor re-investigation, if any, to be taken up with the urgency and utmost sincerity, as the circumstances warrant.

82. Sub-section (8) of Section 173 of the Code permits further investigation, and even de hors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted.

83. Before we part with the cases it would be appropriate to note some disturbing factors. The High Court after hearing the appeal directed its dismissal on 26-12-2003 indicating in the order that the reasons were to be subsequently given, because the Court was closing for winter holidays. This course was adopted “due to paucity of time”. We see no perceivable reason for the hurry. The accused were not in custody. Even if they were in custody, the course adopted was not permissible. This Court has in several cases deprecated the practice adopted by the High Court in the present case.

84.About two decades back this Court in State of Punjab vs. Jagdev Singh Talwandi (AIR 1984 SC 444) had inter alia observed as follows ;

“We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts of pronouncing the final order without a reasoned judgment. It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement. Suppose, for example, that a final order, without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the other, or that a person accused of a serious charge is acquitted, or that a state is unconstitutional or, as in the instant case, that a detenu be released from detention. If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.”

85. It may be thought that such orders are passed by this court, and therefore, there is no reason why the High Courts should not do the same. We would like to point out that the orders passed by this Court are final and no further appeal lies against them. The Supreme Court is the final Court in the hierarchy of our Courts. Orders passed by the High Court are subject to the appellate jurisdiction of this court under Articles 136 of the Constitution and other provisions of the concerned statutes. We thought it necessary to make these observations so that a practice which is not a very desirable one and which achieves no useful purpose may not grow out of and beyond its present infancy. What is still more baffling is that written arguments of the State were filed on 29-12-2003 and by the accused persons on 1-1-2004. A grievance is made that when the petitioner in Criminal Revision No. 583 of 2003 wanted to file notes of arguments that were not accepted making a departure from the cases of the State and the accused. If the written arguments were to be on record, it is not known as to why the High Court dismissed the appeal. If it had already arrived at a particular view there was no question of filing written arguments.

86. The High Court appears to have miserably failed to maintain the required judicial balance and sobriety in making unwarranted reference to personalities and their legitimate moves before competent courts – the highest court of the nation, despite knowing fully well that it could not deal with such aspects or matters. Irresponsible allegations, suggestions and challenges may be made by parties, though not permissible or pursued defiantly during course of arguments at times with the blessings or veiled support of the Presiding Officers of Court. But, such besmirching tacts, meant as innuendos or serve as surrogacy ought not to be made or allowed to be made, to become part of solemn judgments, of at any rate by High Courts, which are created as Court of record as well, Decency, decorum and judicial discipline should never be made casualities by adopting such intemperate attitudes of judicial obstinacy. The High Court also made some observations and remarks about persons/constitutional bodies like NHRC who were not before it. We had an occasion to deal with this aspect to certain extent in the appeal relating to SLP (Crl.) Nos. 530-532/2004. The move adopted and manner of references made, in para No. 3 of the judgment except the last limb (sub-para) is not in good taste or decorous. It may be noted that certain reference is made therein or grievance purportedly made before the High Court about role of NHRC. When we asked Mr. Sushil Kumar who purportedly made the submissions before the High Court, during the course of hearing, he stated that he had not made any such submission as reflected in the judgment. This is certainly intriguing. Proceedings of the court normally reflect the true state of affairs. Even if it is accepted that any such submission was made, it was not proper or necessary for the High Court to refer to them in the judgment, to finally state that no serious note was taken of the submissions. Avoidance of such manoeuvres would have argued well with the judicial discipline. We order the expunging and deletion of the contents of para 3 of the judgment except the last limb of the sub-para therein and it shall be always read to have not formed part of the judgment.

87. A plea which was emphasised by Mr. Tulsi related to the desirability of restraint in publication/exhibition of details relating to sensitive cases, more particularly description of alleged accused persons in the print/electronic/board cast medias. According to him, “media trial” causes indelible prejudice to the accused persons. This is sensitive and complex issue, which we do not think it proper to deal in detail in these appeals. The same may be left open for an appropriate case where the media is also duly and effectively represented.

88. If the accused persons were not on bail at the time of conclusion of the trial, they shall go back to custody. If on the other hand they were on bail that order shall continue unless modified by the concerned Court. Since we are directing a re-trial, it would be appropriate if same is taken up on day-to-day basis keeping in view the mandate of Section 309 of the Code and completed by the end of December, 2004.

89. The appeals are allowed on the terms and to the extent indicate above.

Mehboob Batcha and Others Vs State rep. by Supdt. of Police[ALL SC 2011 March]

KEYWORDS:- CUSTODIAL DEATH – VIOLENCE-

c

DATE: 29-03-2011

JT 2011 (3) SC 541 : (2011) 4 SCALE 20 : (2011) 7 SCC 45 : (2011) 3 SCC (Cri) 70

(SUPREME COURT OF INDIA)

Mehboob Batcha and Others Appellant
Versus
State rep. by Supdt. of Police Respondent

(Before : Markandey Katju and Gyan Sudha Misra, JJ.)

Criminal Appeal No. 1511 of 2003 : Decided On: 29-03-2011

Penal Code, 1860—Sections 302 and 306—Constitution of India—Article 21—CUSTODIAL violence—Rape and murder by Policemen—Conviction and sentence—Prosecution case fully proved by evidence of witnesses as well as medical evidence—No self respecting woman would come forward in Court to falsely make such humiliating statement against her honour—Horrendous manner in which victims were treated by policemen was shocking and atrocious, and calls for no mercy—Accused should have been charged under Section 302, IPC and awarded DEATH sentence, as murder by policemen in police custody is in category of rarest of rare cases deserving DEATH sentence—As no charge under Section 302, IPC was framed, Court cannot straightaway record conviction under that provision and enhance punishment—Appeal dismissed.

Counsel for the Parties:

S. Shunmu Gavelayutham, Sr. Adv., K.K. Mani, Abhishek Krishna and Mayur R. Shah, Advs.R. Sunmugasundaram, Sr. Adv. and Promila, S. Thananjayan, Advs.

JUDGMENT

Markandey Katju, J—

Bane hain ahal-e-hawas muddai bhi

munsif bhi

Kise vakeel karein kisse munsifi

chaahen

— Faiz Ahmed Faiz

1. If ever there was a case which cried out for DEATH penalty it is this one, but it is deeply regrettable that not only was no such penalty imposed but not even a charge under Section 302 IPC was framed against the accused by the Courts below.

2. Heard learned Counsel for the parties.

3. The facts in detail have been stated in the impugned judgment of the High Court as well as of the trial court and hence we are not repeating the same here, except where necessary.

4. The Appellants are policemen who wrongfully confined one Nandagopal in police custody in Police Station Annamalai Nagar on suspicion of theft from 30.5.1992 till 2.6.1992 and beat him to DEATH there with lathis, and also gang raped his wife Padmini in a barbaric manner. The accused also confined several other persons (who were witnesses) and beat them in the police station with lathis.

5. Both the trial Court and the High Court have found the Appellants guilty and we see no reason to disagree with their verdict. To prove the charges the prosecution examined as many as 37 witnesses, and they have proved the guilt of the accused beyond reasonable doubt.

6. PW1 Padmini has given her evidence in great detail and we see no reason to disbelieve the same. We have read her evidence which discloses the inhuman and savage manner in which the accused, who were police personnel, treated Nandagopal and Padmini. We may quote just parts of her testimony which are as follows:

…on Sunday at about 1.00 p.m. two policemen came in an auto to my house. They are A3, A6 and A8. All of them beat me by lathis on my buttocks. A3 caught hold of my leg and pulled me saying get into the auto. I ran outside. Two autos came and in one auto Subramaniam and Nandagopal were sitting with handcuffs jointly. Unable to bear pain I sat by their side. The auto went to Annamalai Nagar police station and they asked me to go inside and I went inside. A6 beat me up. I was surrounded by 4, 5 persons who were beating me. At that time my jacket (blouse) was torn. Some one tore off my jacket and I do not remember as to who tore off that jacket. They said `you will not bear any more and go and sit’ I sat in the corner where the Head constable was sitting earlier. Some time afterwards two women police came there. Thinking that I would be let off, I stated to them that I took oleander seeds, for that the women police gave me water mixed with tamarind and soap and asked me to drink it. That night myself and the women police were lying down in the room where the Sub Inspector of Police was sitting and in the early morning the women police went out. My husband’s sister’s daughter by name Priya gave coffee. I could talk anything. I ate idly. My husband told me why you are coming here, I am being tortured by them. I told him that they would not do anything and they would let you free. At that time a policeman came and told `what are you talking to her’, and saying so he kicked him and pushed him down. A6, beat my husband and kept him in the lock up. Subramani, Kolanchi and Subramaniam were also in the lock up. Then I was given good meals and my husband was given waste food. Therefore I gave my food to Nandagopal. For that A1 said you should take that food and be good and why did you give it him, by saying so he beat me by lathi. In the evening all of them jointly discussed with themselves saying that each one of them should give ` 50/- for giving a party. One police man asked for what purpose you are giving a party and one police man whispered some thing in his ear. On hearing that, he asked were you not born with your sisters, and saying so he left that place. On Monday at about 8.00 pm night, Nandagopal was brought out from the lock up. A6 told that he should see some one has to remove my saree. He called the accused Kolanchi from the lock up and asked him to remove my saree. He was holding my palla, but I was holding it tightly without leaving it. The said Kolanchi told that he should not pull it. Immediately the first accused beat him with a lathi. Then after beating him, he asked him to get to the side of the open court yard. Immediately A3 came to remove my saree. A3 removed the entire saree of mine. At that time I was wearing petty coat and jacket. A1, A3, A6, A8 and A10 removed my jacket and petty coat and made me nude. They asked me to run through the court yard and beat me and I fell down. All the five accused person one by one embarrassed me and kissed me. Then I fell down. At that time one said `your private part is big in size, cannot you bear this pain’. I cried and asked him to stop beating. At that time some one came there in connection with a case. They said not to say this to anyone outside. I wrapped the saree over the body and sat. At that time two women police came there. I stated to them what had happened. They said that no one will beat you hereafter, and I went to lie down along with them in a room. In the early morning on Tuesday one Senthil came and brought coffee. Senthil is the son of my husband’s sister. On that evening my husband was taken outside and brought to the police station along with Rani, Dandapani. Rani is the younger sister of Nandagopal. Dandapani is the husband of Rani. When Dandapani was asked about the tape recorder, he showed a bill of a shop where he purchased it. For that the police said `why are you telling a lie’. Yesterday we have removed the saree of the wife of Nandagopal and saw, and it would be proper if we remove the saree of your wife. At that time there were bleeding injuries on the back, leg and shoulder of Nandagopal and blood was oozing out in strips. Police stated like that. My husband sustained injury on account of beatings by the police A1, A3, A6, A8 and A10 beat my husband. Then the police asked Rani and Dandapani to go to their house. On Tuesday night two women police came to the police station. They were talking with each other as to whether any clothes have been brought for staying in the night. Along with them one male police came and asked whether they had seen Tamil picture `Sembaruthi’. I asked them not to leave me alone and asked them to take me along with them. They said they would not do anything, by saying so those two women police went out. I cannot identify those police properly and I do not remember their names. On Tuesday at about 10.30 pm my husband Nandagopal was brought to the open court yard from the lock up. Myself and Nandagopal were brought to a room opposite to the open court yard. My husband was kept in a standing position on the wall and beaten up by them. A6 Dhass pulled out my saree. A10 removed my jacket and petty coat and made me to become nude and I was beaten and pushed down. My leg had stuck into a bench and I could not remove it. At that time the 2nd accused Sub-Inspector of police came to Annamalai Nagar police station. He said that he would go first. At that time he used rubber loop at the genital organ and committed rape on me. A2, A3, A6, A8 and A10 also raped me forcibly. All of them have used rubber loop. All of them raped me in the presence of my husband. At that time my husband Nandagopal requested them not to do harm to my wife, and leave her. At that time A6 beat Nandagopal with lathi on his genital part. He fell down. He asked water by gesture. At that time after wrapping the saree over my body I took water from the pot. At that time the said five police men surrounded me and said if you want to give water to Nandagopal, you should give a kiss to everyone. Then I gave kisses to all the five. When I went to take water to my husband, they threw it away. That fell down. With an intention to spoil me again, they pulled me and I said I cannot come and leave me, by saying so I sat down. When A6 came and tried to force me, I fell on his leg and bit. On account of the sexual intercourse, I sustained bleeding injuries on the breast and genital organ and then I fell unconscious. When I woke up after regaining consciousness, the clothes were wrapped halfly. I said I wanted to see my husband. I was brought outside saying that my husband was sent to court. One of the policemen asked me to get into the van. I was kept at Chidambaram police station. They offered me idli and coffee. I ate it. One lady police was with me. All the other policemen went out with lathis. The woman police who was with me stated that there was students’ agitation and some one was done to DEATH at Annamalai Nagar Police Station. I wept and then I was left out. I asked the auto man at Mariamman temple to take me in the auto. He asked me whether I am the wife of Nandagopal, I said yes. He said that Nandagopal was done to DEATH by the police and asked me not to go there. Then I went to court in the auto. This occurrence was talked in court. Then I went to Tahsildar’s office immediately. I stated what had happened there. The Officers have gone to take action and they asked me to be here. I was sitting there. I went to Annamalai Nagar police station in a Jeep. There was a crowd there. I cried saying that not only I was raped by five persons but they also assaulted my husband and done him to DEATH. One of the police men who raped me was standing there. I beat him with a chappal. He is A10. R.D.O. was there. He asked me what had happened and I said what had happened. I fell down unconscious. Then I was taken to the hospital. At about 1.00 pm one male doctor examined me. Then I came to the police station at Annamalai Nagar and gave my statement. That was recorded by them. Ex.P.1 is the statement typed by R.D.O. and obtained my signature therein. Then I went to the house of my mother in law. Nandagopal was lying dead. I was weeping. At that time Balakrishnan, Jankirani and politicians came there. I stated to them what had happened. Balakrishnan is the District Secretary of Communist Party, Janki Rani is the President of All Indian Madhar Sangam at Chidambaram. Janki Rani is the wife of Balakrishnan. I gave a petition to the R.D.O. to send me to the hospital that is Ex.P.2. I was admitted in the hospital at about 11.00 pm in the night. On the next day at about 7 or 7.30 am I was examined by a lady doctor. After coming from the hospital, on Thursday evening my husband was buried. On 5.6.1992 I sent a petition to the District Superintendent of Police. After I came to my house, a police officer came to my house. I have stated to him what had happened….

7. Padmini also stated:

…The two police asked me to come to the rest room. Then at the same time three police without any uniform came inside. Then I cried in front of the lock up where my husband was kept inside saying that are calling me, but no one to help me. My husband was brought from the lock to the open court yard with handcuff. I cried to the police by kneeling down. At that time Subramaniam asked them not to do anything to my sister and not to beat my friend. Then they removed the jacket and saree and made me to become nude in the open yard and squeezed my breast and bit and the old aged police hit against my private part with a stick saying that it is very big and I have to see how long it would go….

…Five police men came smelling of Brandy in their mouth. My husband was beaten while he was taken from the lock up and myself and my husband were kept in a room where the rice bags were kept. I was made to become nude. My husband cried to the police with handcuff to release him. The police kicked my husband on his chest. You would be alive only tonight and if you want you can enjoy. By saying so they hit him with gun. At that time Sub-Inspector stated that others can do only if I say because I am the officer here and so I will do first and other can afterwards, and by saying so he raped me. I raised a noise saying I am having much pain and asked him to leave me and the other police men were beating my husband. My husband asked them to remove the handcuff put on him. They did not do so. After finishing the work, Sub Inspector went away and asked others to do the same and he would see whether anybody is coming and asked them to finish the work. I was asked to lie facing up, one of them was holding my leg and another one was holding the hand and another one was lying on me and had intercourse with me. Like that all the five persons spoiled me….

8. We see no reason to disbelieve Padmini’s evidence. Ordinarily no self respecting woman would come forward in Court to falsely make such a humiliating statement against her honour.

9. The learned Counsel for the accused referred to some discrepancies in her evidence, but it is well settled that minor discrepancies cannot demolish the veracity of the prosecution case. In our opinion there is no major discrepancy in the prosecution case, which is supported by the evidence of a large number of witnesses, including injured witnesses, apart from the testimony of Padmini, who identified the accused in the identification parade held on 13.8.1992 in Central Jail, Cuddalore. Although A10 was not identified by her, the High Court has given good reasons for holding him guilty too, and we agree with the same.

10. The Medical Officer who examined Padmini found multiple nail scratches on her breasts. She complained of severe pain in her private parts. There were multiple abrasions on her vagina and cervix with discharge of foul smelling fluids. The chemical analysis of her vaginal smear showed plenty of pus cells and epithetical cells. The doctors also examined Subramaniam and Chidambaranathan who were beaten by the accused policemen with lathis.

11. We have held in Satya Narain Tiwari @ Jolly and Anr. v. State of U.P., JT 2010 (12) SC 154 and in Sukhdev Singh v. State of Punjab, SLP (Criminal) No. 8917 of 2010 decided on 12.11.2010 that crimes against women are not ordinary crimes committed in a fit of anger or for property. They are social crimes. They disrupt the entire social fabric, and hence they call for harsh punishment.

12. The horrendous manner in which Padmini was treated by policemen was shocking and atrocious, and calls for no mercy.

13. The post-mortem report of Nandagopal shows the following injuries:

I. A rope like ligature mark centre of neck encircling obliquely upwards. M Right to left neck with knot like mark on right neck. (Size about “1/2 in width O Rope mark). Middle lateral aspect. Underlying skin dry parchment in colour.

II. An abrasion 1 x 1 cm left cheek.

III. An abrasion 3 x 1 cm right hip anterior.

IV. An abrasion 2 x 1 cm left leg middle anterior.

V. An abrasion 3 x 1 cm right leg middle anterior.

VI. An abrasion 2 x 1 cm left arm shoulder posterior lower.

VII. An abrasion 2 x 1 cm right arm shoulder posterior lower.

VIII. An abrasion 2 x 1 cm left elbow antero-medical.

IX. An abrasion 2 x 1 cm right elbow posterior lower.

X. An abrasion 2 x 1 cm right scrotum lower antero- lateral. No underneath haemotoma injuries are ante-mortem in nature.

XI. Tongue bitten in between the teeth partially protruded outside.

The post-mortem certificate contains the final opinion of the doctor that Nandagopal died on asphyxial DEATH due to atypical hanging about 10 to 24 hours prior to post- mortem.

14. The above injuries show the horrible manner in which Nandagopal was beaten and killed in police custody. In her evidence Padmini stated that on the evening of Sunday, “Four policemen beat my husband with sticks. They kicked my husband with boots on his chest.” She also stated “At that time there were bleeding injuries on back leg and shoulder (of Nandagopal) and blood was oozing out and found in strip form”. Even when she was being raped by the policemen Nandagopal was beaten.

15. We are surprised that the accused were not charged under Section 302 IPC and instead the Courts below treated the DEATH of Nandagopal as suicide. In fact they should have been charged under that provision and awarded DEATH sentence, as murder by policemen in police custody is in our opinion in the category of rarest of rare cases deserving DEATH sentence, but surprisingly no charge under Section 302 IPC was framed against any of the accused. We are constrained to say that both the trial Court and High Court have failed in their duty in this connection.

16. The entire incident took place within the premises of Annamalai Nagar police station and the accused deserve no mercy.

17. In this appeal the Appellant No. 1 has been given the sentence of 3 years rigorous imprisonment and a fine, while the other Appellants have been given sentence of 10 years rigorous imprisonment with a fine.

18. In the normal course, we could have issued notice of enhancement of sentence, but as no charge under Section 302 IPC was framed, we cannot straightaway record conviction under that provision and enhance the punishment.

19. For the reasons given above this appeal is dismissed.

20. Before parting with this case, we once again reiterate that CUSTODIAL violence in police custody is in violation of this Court’s directive in D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 and we give a warning to all policemen in the country that this will not be tolerated. The graphic description of the barbaric conduct of the accused in this case shocks our conscience. Policemen must learn how to behave as public servants in a democratic country, and not as oppressors of the people.

21. In D.K. Basu’s case this Court observed:

…CUSTODIAL violence, including torture and DEATH in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. CUSTODIAL violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society.

In spite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and DEATHs in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third-degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the morning newspapers almost everyday carrying reports of dehumanising torture, assault, rape and DEATH in custody of police or other governmental agencies is indeed depressing. The increasing incidence of torture and DEATH in custody has assumed such alarming proportions that it is affecting the credibility of the rule of law and the administration of criminal justice system. The community rightly feels perturbed. Society’s cry for justice becomes louder.

CUSTODIAL DEATH is perhaps one of the worst crimes in a civilized society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights’ jurisprudence. The answer, indeed, has to be an emphatic `No’….

                                                                                (emphasis supplied)

22. Let a copy of this order be sent to Home Secretary and Director General of Police of all States and Union Territories, who shall circulate the same to all police officers up to the level of S.H.O. with a directive that they must follow the directions given by this Court in D.K. Basu’s case (supra), and that CUSTODIAL violence shall entail harsh punishment.

K. M. Mathew Appellant Vs K. A. Abraham and others[ALL SC 2002 AUGUST]

KEYWORDS:-DEFAMATION-NEWSPAPER-

c

DATE:-23-08-2002

In the case of publication of any newspaper, each copy of the publication shall contain the names of the owner and the editor who have printed and published that newspaper.

AIR 2002 SC 2989 : (2002) 1 Suppl. SCR 662 : (2002) 6 SCC 670 : JT 2002 (6) SC 248 : (2002) 6 SCALE 82 : (2002) CriLJ SC 4111

(SUPREME COURT OF INDIA)

K. M. Mathew Appellant
Versus
K. A. Abraham and others Respondent

WITH

Vivek Goenka Appellant
Versus
Padam Sambhav Jain and another Respondent

WITH

Hari Narain Nigam Appellant
Versus
State of Bihar and others Respondent

(Before : U. C. Banerjee And K. G. Balakrishnan, JJ.)

Criminal Appeal No. 701 of 1998 with Crl. A. Nos. 849 and 848 of 2002 (arising out of S.L.P. (Cri.) Nos. 399 and 520 of 2001), Decided on : 23-08-2002.

DEFAMATION—Libelous publication—Prosecution against appellants, Managing Editor or Resident Editor—Presumption under Section 7 of Press and Registration Act, 1867 that Editor of publication is responsible for selecting the matter of publication—Does not staturoly immune the appellants from their prosecution—Knowledge of alleged publication attributed to appellants in complaint—Quashing of prosecution against them not proper.

There is no statutory immunity against Managing Editor, Resident Editor or Chief Editor against any prosecution for the alleged publication of any matter in the newspaper over which these persons exercise control. The provisions contained in Section 7 of the Act clearly go to show that there could be presumption against the Editor whose name is printed in the newspaper to the effect that he is the Editor of such publication and that he is responsible for selecting the matter for publication. Though, a similar presumption cannot be drawn against the Chief Editor, Resident Editor or Managing Editor, nevertheless, the complainant can still allege and prove that they had knowledge and they were responsible for the publication of the defamatory news item. Even the presumption under Section 7 is a rebuttable presumption and the same could be proved otherwise. That by itself indicates that somebody other than Editor can also be held responsible for selecting the matter for publication in a newspaper.

In the instant appeals, the complainant in each case has alleged that appellants who are either Managing Editor, Chief Editor or Resident Editor had knowledge and were responsible for publishing defamatory matter in their respective newspaper publications. Moreover, in none of these cases, the ‘Editor’ had come forward and pleaded guilty to the effect that he was the person responsible for selecting the alleged defamatory matter published. It is a matter of evidence in each case. If the complaint is allowed to proceed only against the ‘Editor’ whose name is printed in the newspaper against whom there is a statutory presumption under Section 7 of the Act, and in case such ‘Editor’ succeeds in proving that he was not the ‘Editor’ having control over the selection of the alleged libelous matter published in the newspaper, the complainant would be left without any remedy to redress his grievance against the real culprit. Therefore, quashing of complaint against the appellants not proper.

Penal Code, 1860—Section 500—DEFAMATION—Libelous publication—Prosecution against appellants, Managing Editor or Resident Editor—Presumption under Section 7 of Press and Registration Act, 1867 that Editor of publication is responsible for selecting the matter of publication—Does not staturoly immune the appellants from their prosecution—Knowledge of alleged publication attributed to appellants in complaint—Quashing of prosecution against them not proper.

Counsel for the Parties:

F. S. Nariman, S.K. Dholakia, L. Nageswara Rao, Vijay Bahuguna, Sr. Advocate, E. M. S. Anam, Fazlin Anam, N. B. Joshi, Rajshekhar Rao, Ms. Indu Malhotra, Sanjeev Sen, D. N. Ray, R. N. Karanjawala, Ms. Malini Poduval, C. Jayaraj, M. K. D. Namboodiri, A. P. Mayee, Mrs. Rucha Mayee, Nilesh A. Pandya, Advocate for C. K. Sasi, Ms. Ruby Singh Ahuja, Advocate (NP), Javed Mahmud Rao, Mrs. Nandini Gore, Arjun Bobde, Mrs. Manik Karanjawala, Subhash Sharma, Ms. Lansinglu Rongmei, Ranji Thomas, Advocates with them, for Appearing Parties.

Judgment

K. G. Balakrishnan, J—Leave granted.

2. Common questions of law arise in these appeals; hence they are being disposed of by this common judgment. Appellants are either Managing Editor, Chief Editor or Resident Editor of their respective newspaper publications. Separate criminal complaints were filed against the appellants alleging that in their newspaper publications, libellous matter was published and that these appellants had knowledge and they were responsible for such publication and thus they committed the offence of DEFAMATION besides other allied offences. In all these cases, the Magistrate had taken cognizance of the offences and issued summons to these appellants. The appellants challenged their prosecution and contended that in view of Section 7 of the Press and Registration of Books Act, 1867 (hereinafter referred to as “the Act”), they are not liable to be prosecuted and that the Editor of the newspaper whose name is printed on it as the “Editor” of that Publication alone is liable to be prosecuted for any of the offence for such libellous publication.

3. The appellant in Criminal Appeal No. 701 of 1998 is the Chief Editor of “Malayalam Manorma”, a daily having wide circulation in Kerala and other places. According to the appellant in this case, he is the Chief Editor of the “Malayalam Manorma” and that there is also an Editor for this publication who alone can be charged for the offence under Section 500 of Indian Penal Code in view of the statutory presumption under Section 7 of the Act.

4. In Criminal Appeal arising out of S.L.P. (Crl.) No. 399 of 2001, the appellant is the Managing Editor of Indian Express, Jansatta and Financial Express and certain other publications. A criminal complaint was filed against the appellant and others alleging that on 21st January, 1992 a news item was published in “Jansatta” which, according to the complainant, was defamatory and thus the appellant had committed the offence under Section 500 IPC. The complaint was filed before the Judicial Magistrate, Kota in Rajasthan.

5. The appellant in the Criminal Appeal arising out of S.L.P. (Crl.) No. 520 of 2000 was the Resident Editor of a daily, namely, “Hindustan” and the complainant therein alleged that some articles published on 7-12-1986 and 8-12-1986 in that newspaper (“Hindustan”) were defamatory and thereby the appellant committed offence under Section 500 IPC.

6. In all these cases, the respective Magistrate took cognizance of the offence alleged in the complaint and issued process to the appellants and the appellants filed petitions under Section 482 of the Code of Criminal Procedure for quashing the proceedings on the ground that they are not liable to be prosecuted for the offence of DEFAMATION for the alleged libellous publication as they are not the Editors of such publications. The plea raised by the appellants was not accepted by the High Courts and the impugned orders passed in those proceedings are challenged before us.

7. We have heard learned counsel for the appellants as well as counsel for the respondents. As noticed earlier, the contention of the appellants is that in view of Section 7 of the Act, there cannot be any prima facie case against the appellants and the Editor whose name is printed in such publications alone can be prosecuted.

8. Section 7 of the Press and Registration of Books Act, 1867 reads as follows:

“7. Office copy of declaration to be prima facie evidence – In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declarations, or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, or printed on such newspaper, as the case may be, that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every newspaper whereof the title shall correspond with the title of the newspaper mentioned in the declaration or the editor of every portion of that issue of the newspaper of which a copy is produced”.

9. The expression “Editor” has also been defined in Section 1 of the Act as under:

“‘Editor’ means the person who controls the selection of the matter that is published in a newspaper”.

It is also relevant to quote Section 5(1) of the Act:

“5. Rules as to publication of newspapers.- No newspaper shall be published in India, except in conformity with the rules hereinafter laid down:

(1) Without prejudice to the provisions of section 3, every copy of every such newspaper shall contain the names of the owner and editor thereof printed clearly on such copy and also the date of its publication.

(2) **********”

10. The preamble to the Act says that it is expedient to provide for the regulation of printing presses and of newspapers, for the preservation of copies of every book and newspaper printed in India and for the registration of such books and newspapers.

11. Section 5 of the Act prescribes certain rules regarding the publication of newspapers. It says that the newspaper shall contain the names of the owner and editor printed clearly on each copy and also the date of its publication. Sub-section (2) of Section 5 further says that the printer and the publisher of every such newspaper shall appear in person before the District, Presidency or Sub-divisional Magistrate and shall make a declaration that he was the printer or publisher or printer and publisher of that newspaper.

12. It is also pertinent to note that Section 8A of the Act provides that if any person, whose name has appeared as editor on a copy of a newspaper, may, within two weeks of his becoming aware that his name has been so publis