CHARGE SHEET OF MUMBAI TERROR ATTACK CASES 26TH NOVEMBER 2008

FINAL FORM / REPORT

(Under Section 173 Cr.P.C.)

IN THE COURT OFADDL. CH. M.M., 37TH COURT, ESPLANADE, MUMBAI

The Chief Investigating Officer of the sensational and diabolic attacks by the terrorists at different iconic locations in Mumbai on 26th November 2008, hereby submits a report under Section 173 of Criminal Procedure Code, 1973 as under.A heinous criminal conspiracy has beenplanned and hatched in Pakistan by the internationally banned Lashkar-e-Taiba to execute a series of attacks at prominent places in Mumbai, the financial capital of the country on 26thNovember 2008. This was with the express intention to destabilize India, wage war against this country, terrorize its citizens, create financial loss and issue a warning to other countries whose citizens were also targetted , humiliated and cold-bloodedly killed. This Fidayeen Mission was part of a larger criminal conspiracy planned in Pakistan for attacking the commercial capital of India with intent to wage war, to weaken India economically and to create terror and dread amongst the citizens of the Mumbai metropolis in particular and India in general and, thereby, through the said unlawful activities its perpetrators committed terrorist acts.

Lashkar-e-Taiba (Lashkar-e Tayyiba; literally means Army of the Good, translated as Army of the Righteous, or Army of the Pure) — also pronounced and spelt as Lashkar-i-Tayyaba, Lashkar-e-Tayyaba, Lashkar-e-Tayyiba, Lashkar-i-Taiba, or LeT — is one of the largest, most active and lethal militant organizations in South Asia.Lashkar-e-Taiba – “The Army of the Pure” is a militant offshoot of Markaz-ud-Dawa-wal- Irshad (MDI), an Islamic fundamentalist organization. Markaz-ud-Dawatul-wal- Irshad has since been renamed as Jamaat-ud-Dawa.It was founded by Hafiz Muhammad Saeed and Zafar Iqbal in the Kunar province of Afghanistan in 1989. It has its headquarter at Muridke near Lahore, Pakistan. It operates numerous training camps in Pakistan occupied Kashmir as well as in other parts of Pakistan. Lashkar has forged cooperative and operational ties with religious militant groups throughout the Middle East, South East Asia and also in other parts of the world.The Militant group’s defining objective is to Islamicise South Asia with its main aim being freedom for Muslims in India-administered Kashmir.The Lashkar-e-Taiba is banned as a terrorist organization by India, Pakistan, the United States, the United Kingdom, the European Union, Russia, Australia besides a host of other countries. Hafiz Saeed has been listed as the leader of the Lashkar-e-Taiba. The United Nations Security Council has also listed Zaki-ur-Rehman Lakhvi, Haji Mohammad Ashraf, and Mahmoud Mohammad Ahmed Bahaziq as senior members of the Lashkar-e-Taiba.Zaki-Ur-Rehman Lakhvi is listed as the terror group’s chief of Anti-India operations. Haji Mohammed Ashraf is the group’s chief of finance whereas Mahmoud Mohammed Bahaziq, a Saudi national who served as the leader of Lashkar-e-Taiba in Saudi Arabia, is a senior financier. Jamaat – Ud – Dawa has been recently declared as a terrorist front group by the United Nations (UN) as per its Resolution 1267. UN believes that this organization also supports Al-Qaeda and the Taliban.

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Supreme Court redefined and explained the role of Public and Private prosecutors in case of Sessions Trial

The scope of the role of Public prosecutor and Private prosecutor in case of sessions Trial

we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. If the victim’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. For instance, if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872.

Rekha Murarka Versus The State of West Bengal and Anr-20/11/2019

ACT: Section 301(2) read with 24(8) of Criminal Procedure Code

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1727 OF 2019 [Arising out of SLP (Crl.) No. 7848 of 2019]

Rekha Murarka …..Appellant

Versus

The State of West Bengal and Anr. …..Respondents

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

1. Leave granted.

2. This appeal arises out of judgment dated 29.07.2019 passed by the Hon’ble High Court of Calcutta in revisional application C.R.R. No. 2357 of 2018, affirming the order dated 25.07.2018 passed by the Additional District and Sessions Judge, Fast Track Court, Calcutta rejecting an application filed by the Appellant herein, the de facto Complainant in Sessions Case No. 43 of 2014.

The brief facts giving rise to this appeal are as follows:

3.1 The Appellant herein is the widow of one Gyan Prakash Murarka (“the deceased”), who is alleged to have been stabbed and murdered by Respondent No. 2 herein on 16.01.2014. The Appellant is also said to have sustained serious injuries while trying to save her husband. Bowbazar Police Station Case No. 19 of 2014 came to be registered against Respondent No. 2 and on 18.12.2015, charges was framed against him for the commission of offences punishable under Sections 302 and 326 of the Indian Penal Code, 1860. Respondent No. 2 pleaded not guilty and the trial began before the Sessions Court.

3.2 While the evidence was being recorded, the Appellant sought an expeditious trial of the case vide C.R.R. No. 833 of 2016, which was allowed on 09.03.2016. Subsequently, on 10.07.2018, she filed another application under Section 301 read with the proviso to Section 24(8) of the Code of Criminal Procedure, 1973 (“the CrPC”) praying for the following reliefs:

“(a) to advance oral argument in support of question of law and fact only after the learned Public Prosecutor, if so required;

(b) to raise objection in case any irrelevant question is put to any prosecution witness, if so required;

(c) to examine the prosecution witnesses only after the learned Public Prosecutor, if so required;

(d) to cross­examine the defence witnesses, if adduced, only after the learned Public Prosecutor, if so required;

(e) to assist the process of justice in accordance with law;

(f) pass such further or other order(s) and/or direction(s) as it may deem fit and proper.”

3.3 Vide order dated 25.07.2018, the learned Additional District and Sessions Judge, Fast Track Court, Calcutta rejected the said prayer. This was done on the basis that the right of a victim or private individual to participate in the prosecution of a Sessions trial is restricted, and the prosecution is subject to the control of the Public Prosecutor. It was observed that Section 301 of the CrPC does not have an overriding effect over Section 225, which mandates that the prosecution be conducted by the Public Prosecutor. However, in view of Section 301(2) of the CrPC, the learned Judge gave permission to the de facto Complainant to furnish written arguments after the completion of the arguments of the prosecution.

3.4 This order was challenged before the Hon’ble High Court of Calcutta in C.R.R. No. 2357 of 2018. Vide the impugned judgment dated 29.07.2019, the High Court affirmed the order of the Sessions Judge, discussing the crucial role played by the Public Prosecutor in a Sessions trial. Alluding to Section 225 of the CrPC, it was held that the mandate therein that a Sessions trial shall be conducted by a Public Prosecutor is unequivocal and cannot be diluted by the proviso to Section 24(8), which allows the victim to engage a counsel to assist the prosecution. Drawing a distinction between assisting the prosecution and conducting it, the High Court took note of instances where allowing a free hand to the victim’s counsel may hamper the prosecution’s case and impact the fairness of the trial. In view of this, it was held that the request of the victim’s counsel to cross­ examine the defence witnesses after the Public Prosecutor could not be allowed. Accordingly, C.R.R. No. 2357 of 2018 was dismissed. Hence, this appeal.

4. Learned Senior Counsel for the Appellant drew our attention to the relevant provisions in the CrPC, i.e. Sections 301 and 302, the proviso to Section 24(8) and Section 2(w)(a). He argued that these provisions should be read together, and Section 301 should not be read as a bar to Section 24(8) so as to limit the role of the victim’s counsel to mere filing of written arguments. Alluding to the Report of the Malimath Committee on Reforms of Criminal Justice System, 2003 and that of the Madhav Menon Committee on Victim Orientation to Criminal Justice, 2007, he emphasized how victims had been neglected in the criminal justice system. He argued that the 2009 amendment introducing the proviso to Section 24(8) to the CrPC was made in this context, so as to account for instances where the Public Prosecutor may shirk his responsibility or make an omission by oversight.

Relying on the  decisions of several High Courts in Sathyavani Ponrani v. Samuel Raj & Ors. 2010 (2) MWN (Cr.) 273, Shankar v. State of Karnataka & Ors. (2013) 2 AIR Kant R 265, Lokesh Singh v. State of Uttar Pradesh (2013) 83 ACC 379, Uma Saha v. State of Tripura 2014 SCC OnLine Tri 859, Suneel Kumar Singh v. State of Uttar Pradesh 2019 SCC OnLine All 957, and Khumukcham Nikita Devi v. State of Manipur (2017) 176 AIC 839, he argued that the role of the victim’s counsel should extend to putting questions to victims, raising objections to irrelevant questions put by the Public Prosecutor, and making oral arguments in addition to those made by the Public Prosecutor.

5. Per contra, learned Senior Counsel for Respondent No. 1, the State of West Bengal, emphasized that a crucial role has been envisaged for a Public Prosecutor under the scheme of the CrPC. He submitted that the Public Prosecutor is an officer of the Court and a minister of justice, as evident from the mandate placed upon him under Section 225 of the CrPC to conduct a Sessions trial. He argued that the role of such a person cannot be diluted by allowing the victim’s counsel, who may be relatively inexperienced at times, to conduct the prosecution with a free hand. Further, he argued that the use of the words “under this sub­section” in the proviso to Section 24(8) implies that the engagement of a victim’s counsel is only with respect to a Special Public Prosecutor, which is the subject matter of Section 24(8), and not beyond. As regards the Committee Reports mentioned supra leading to the 2009 amendment, he submitted that the replacement of the initially proposed phrase “cooperate with the prosecution” in the proviso to Section 24(8) with “assist the prosecution” indicates a deliberate intention to have a limited role for the victim’s counsel. At the same time, acknowledging the reasons for ensuring greater participation of the victim in the prosecution, he submitted that the extent of the counsel’s assistance should be limited and subject to the permission of the Public Prosecutor. In this regard, he relied on the decision of the Tripura High Court in Uma Saha v. State of Tripura, 2014 SCC OnLine Tri 859 and submitted that in instances where an issue of importance is raised by the victim’s counsel, such as the Public Prosecutor failing to examine or cross­examine a witness properly, the victim’s counsel can suggest some questions to the Court, which may then pose them to the witness, if deemed necessary.

6. Heard learned Senior Counsel representing both the parties.

7. In light of the arguments advanced, the main question to be considered is the extent to which a victim’s counsel can participate in the prosecution of a case. Since this is closely tied with the role that is envisaged for the Public Prosecutor, we will first deal with the same.

8. In our criminal justice system, the Public Prosecutor occupies a position of great importance. Given that crimes are treated as a wrong against the society as a whole, his role in the administration of justice is crucial, as he is not just a representative of the aggrieved person, but that of the State at large. Though he is appointed by the Government, he is not a servant of the Government or the investigating agency. He is an officer of the Court and his primary duty is to assist the Court in arriving at the truth by putting forth all the relevant material on behalf of the prosecution. While discharging these duties, he must act in a manner that is fair to the Court, to the investigating agencies, as well to the accused. This means that in instances where he finds material indicating that the accused legitimately deserves a benefit during the trial, he must not conceal it. The space carved out for the Public Prosecutor is clearly that of an independent officer who secures the cause of justice and fair play in a criminal trial.

9. In light of this exposition, we find it useful to advert to certain provisions of the CrPC that highlight the role of a Public Prosecutor and the prerequisites for a person holding that office, most significant amongst which is Section 24:

“24. Public Prosecutors– (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be…

(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor…

only if he has been in practice as an advocate for not less than seven years.

(8) The Central Government or the State Government may appoint, for the purpose of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.

Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub­section.”

(emphasis supplied)

Other important provisions are as follows:

“225. Trial to be conducted by Public Prosecutor– In every trial before a Court of Session, the prosecution shall be conducted by a Public

Prosecutor.

x x x

301. Appearance by Public Prosecutors– (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case

is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

302. Permission to conduct prosecution– (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than police officer below the rank of Inspector; but no person, other than the Advocate­General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission…

(2) Any person conducting the prosecution may do so personally or by a pleader.”

10. From a reading of these provisions, it is clear that a Public Prosecutor is entrusted with the responsibility of conducting the prosecution of a case. That this is a crucial role is evident from conditions such as in Section 24(7), which stipulates a minimum legal experience of seven years for a person to be eligible to be a Public Prosecutor. It is further clear from a joint reading of Section 301 and the proviso to Section 24(8) that the two provisions are mutually complementary. There is no bar on the victim engaging a private counsel to assist the prosecution, subject to the permission of the Court.

11. Contrary to the argument made by learned Senior Counsel for Respondent No. 1, we do not find that the use of the words “under this sub­section” in the proviso to Section 24(8) implies that a victim’s counsel can only be engaged to assist a Special Public Prosecutor. Such an interpretation would go against Section 301(2), which makes the pleader instructed by a private person subject to the directions of the Public Prosecutor or the Assistant Public Prosecutor.

In our considered opinion, a harmonious reading should be given to these provisions to give them full effect. Furthermore, credence should be given to the overall emphasis on victimology underlying the 2009 Amendment Bill, as reflected in its Statement of Objects and Reasons:

“Statement of Objects and Reasons.– The need to amend the Code of Criminal Procedure, 1973 to ensure fair and speedy justice and to tone up the criminal justice system has been felt for quite sometime. The Law Commission has undertaken a comprehensive review of the Code of Criminal Procedure in its 154th Report and its recommendations have been found very appropriate, particularly those relating to provisions concerning… victimology…

2. … At present victims are the worst sufferers in a crime and they don’t have much role in the Court proceedings. They need to be given certain rights and compensation so that there is no distortion of the criminal justice system.”

In view of this context and the provisions of the CrPC, there appears to be no justifiable basis for applying the provision only with respect to Special Public Prosecutors. Thus, we find that the assistance given by the victim’s counsel is meant to be given to the prosecution in general.

12. In light of this, we now proceed to consider the extent to which such assistance can be accorded. As mentioned supra, learned Senior Counsel for the Appellant has argued that there may be instances where the Public Prosecutor may fail to perform his functions properly, whether deliberately or due to oversight, which may obstruct justice instead of furthering it. To meet the ends of justice in such cases, he submitted that the role of the victim’s counsel should not be limited to filing of written arguments as provided with respect to pleaders engaged by private parties under Section 301(2). Instead, it should extend to making oral arguments and examining witnesses as well. On a perusal of the arguments advanced and the decisions relied on by both the parties, we find that such a broad mandate for the victim’s counsel cannot be given effect, as it is not rooted in the text of the Cr.PC.

12.1 The use of the term “assist” in the proviso to Section 24(8) is crucial, and implies that the victim’s counsel is only intended to have a secondary role qua the Public Prosecutor. This is supported by the fact that the original Amendment Bill to the CrPC had used the words “co­ordinate with the prosecution”. However, a change was later proposed and in the finally adopted version, the words “co­ordinate with” were substituted by “assist”. This change is reflective of an intention to only assign a supportive role to the victim’s counsel, which would also be in consonance with the limited role envisaged for pleaders instructed by private persons under Section 301(2). In our considered opinion, a mandate that allows the victim’s counsel to make oral arguments and cross­examine witnesses goes beyond a mere assistive role, and constitutes a parallel prosecution proceeding by itself. Given the primacy accorded to the Public Prosecutor in conducting a trial, as evident from Section 225 and Section 301(2), permitting such a free hand would go against the scheme envisaged under the CrPC.

12.2 In some instances, such a wide array of functions may also have adverse consequences on the fairness of a trial. For instance, there may be a case where the Public Prosecutor may make a strategic call to examine some witnesses and leave out others. If the victim’s counsel insists upon examining any of the left out witnesses, it is possible that the evidence so brought forth may weaken the prosecution case. If given a free hand, in some instances, the trial may even end up becoming a vindictive battle between the victim’s counsel and the accused, which may further impact the safeguards put in place for the accused in criminal trials. These lapses may be aggravated by a lack of advocacy experience on the part of the victim’s counsel. In contrast, such dangers would not arise in the case of a Public Prosecutor, who is required to have considerable experience in the practice of law, and act as an independent officer of the Court. Thus, it is important to appreciate why the role of a victim’s counsel is made subject to the instructions of the Public Prosecutor, who occupies a prime position by virtue of the increased responsibilities shouldered by him with respect to the conduct of a criminal trial.

12.3 At the same time, the realities of criminal prosecutions, as they are conducted today, cannot be ignored. There is no denying that Public Prosecutors are often overworked. In certain places, there may be a single Public Prosecutor conducting trials in over 2­3 courts. Thus, the possibility of them missing out on certain aspects of the case cannot be ignored or discounted. A victim­centric approach that allows for greater participation of the victim in the conduct of the trial can go a long way in plugging such gaps. To this extent, we agree with the submission made by the learned Senior Counsel for the Appellant that the introduction of the proviso to Section 24(8) acts as a safety valve, inasmuch as the victim’s counsel can make up for any oversights or deficiencies in the prosecution case. Further, to ensure that the right of appeal accorded to a victim under the proviso to Section 372 of the Cr.P.C. is not rendered meaningless due to the errors of the Public Prosecutor at the trial stage itself, we find that some significant role should be given to the victim’s counsel while assisting the prosecution. However, while doing so, the balance inherent in the scheme of the CrPC should not be tampered with, and the prime role accorded to the Public Prosecutor should not be diluted.

12.4 In this regard, given that the modalities of each case are different, we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. Though we cannot detail and discuss all possible scenarios that may arise during a criminal prosecution, we find that a victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross­examine witnesses. As stated in Section 301(2), the private party’s pleader is subject to the directions of the Public Prosecutor. In our considered opinion, the same principle should apply to the victim’s counsel under the proviso to Section 24(8), as it adequately ensures that the interests of the victim are represented. If the victim’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of the CrPC, but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim’s counsel.

12.5 However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim’s counsel, the victim’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872.

In this regard, we agree with the observations made by the Tripura High Court in Smt.Uma Saha v. State of Tripura (supra) that the victim’s counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself.

13. In view of the foregoing discussion, we find that the High Court was correct in dismissing the application made by the Appellant seeking permission for her counsel to cross­examine witnesses after the Public Prosecutor. However, in future, if the Sessions Judge finds that the assistance of a private counsel is necessary for the victim, he may permit it keeping in mind the observations made supra. The instant appeal is dismissed accordingly.

J. (Mohan M. Shantanagoudar)

J. (Deepak Gupta)

New Delhi;

November 20, 2019.

Jyotsna Roy -VS- State of West Bengal & Ors [CHC] 15/11/2019

Considering the nature of duties and in the jurisdiction exercised by the deceased and considering the death of the deceased at the age of 52 years while in service, such an event cannot be taken lightly, irrespective of whether a writ petition had been filed or not. The writ petition has only added substance to the requirement of an in-depth investigation. The Court is therefore in requirement of a verifiable independent expert opinion on the results of the investigation collected so far.

SL-3 15.11.2019
Court No.1
KB/G.S.D

Calcutta High Court
In the Circuit Bench at Jalpaiguri
WPA 201 of 2019

CAN 1 of 2019

Jyotsna Roy -VS- State of West Bengal & Ors.

Appearance: 

Mr. Arjun Chowdhury
… for the petitioner

Mr. Subir Kr. Saha
Mr. Bikramaditya Ghosh
… For the State

Mr. Samir Pal

    … For the Respondent Nos. 2 and 6

Party/Parties is/are represented in the order/orders of their name/names as printed above in the cause title.

Abundant documents are placed on behalf of both the petitioner and the Investigating Officer, i.e. the State respondents, connected to the alleged cause of death of the writ petitioner.

This Court also notices the order of the Hon’ble Single Bench dated September 11, 2019 directing, inter alia, the Investigating Agency to file a complete Report on the investigation on November 5, 2019 before the Hon’ble Bench.

Today, Mr. Chowdhury, Learned Advocate, appears for the petitioner and assails the Report of the Investigating Officer of the Siliguri (T), GRP dated September 9, 2019 as filed before Court.

However, Mr. Ghosh, Learned State Counsel, points out that the Report dated September 9, 2019 has since been superseded by filing a Final Report under the Code of Criminal Procedure dated 14th November, 2019 again by the self-same Investigating Officer, without being able to draw a conclusion with regard to the investigation. This Court has also heard Mr. Pal, Learned Counsel, appearing for the RPF.

Considering the nature of duties and in the jurisdiction exercised by the deceased and considering the death of the deceased at the age of 52 years while in service, such an event cannot be taken lightly, irrespective of whether a writ petition had been filed or not. The writ petition has only added substance to the requirement of an in-depth investigation. The Court is therefore in requirement of a verifiable independent expert opinion on the results of the investigation collected so far.

For the above reasons, the parties and, particularly the petitioner, is permitted to revert to the Court with appropriate instructions on the next date.

Let this matter appear before the next available Circuit Bench, subject to its convenience, along with the connected application.

(SUBRATA TALUKDAR  J. )

15.11.2019


Original order :

Jyotsna Roy -VS- State of West Bengal & Ors.[PDF]

Abhinandan Jha and others Vs Dinesh Mishra-17/04/1967

SUPREME COURT OF INDIA JUDGMENTS

It will be seen that the Code, as such does not use the expression ‘charge-sheet’ or ‘final report’. But is understood in the Police Manual containing Rules and Regulations, that a report by the police, filed under Section 170 of the Code(Old), is referred to as a ‘charge-sheet’. But in respect of the reports sent under Section 169(old) i. e., when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, it is termed variously, in different States, as either ‘referred charge’, ‘final report’, or ‘Summary’.

AIR 1968 SC 117 : (1967) 3 SCR 668 : (1968) CriLJ SC 97

SUPREME COURT OF INDIA

Abhinandan Jha and others Versus Dinesh Mishra

AND

Roopchand Lal and another
Appellant

Versus

State of Bihar and another
Respondent

(Before : M. Hidayatullah And C. A. Vaidialingam, JJ.)

Criminal Appeals Nos. 218 and 238 of 1966, Decided on : 17-04-1967

Final report—Disagreement by Magistrate—Procedure—Magistrate has no power to direct the Police to submit charge sheet—He can only either direct further investigation or take cognizance of offence.

A very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under Section 190(1)(c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed.

But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under Section 156(3), to make a further investigation. That is, if the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3). The police, after such further investigation, may submit a charge sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report.

There is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial.

Counsel for the Parties:

M/s B. P. Jha and Subhag Mal Jain, Advocates, for Appellants (In Cr. A. No. 218 of 1966)

M/s. Nuruddin Ahmed and R. C. Prasad, Advocates, for Appellants (In Cr. A. No 238 of 1966)

Mr. U. P. Singh, Advocate, for the Respondents (In both the Appeals) .

Judgment

Vaidialingam, J—The common question, that arises for consideration, in these two criminal appeals, by special leave, is as to whether a Magistrate can direct the police to submit a charge-sheet, when the police, after investigation into a cognizable offence, had submitted a final report, under Section 173 of the Code of Criminal Procedure (hereinafter called the Code) . There is a conflict of opinion, on this point, between the various High Courts in India. The High Courts of Madras, Calcutta, Madhya Pradesh, Assam and Gujarat have taken the view that the Magistrate has no such power, whereas the Patna and Bombay High Courts have held a contrary view.

2. In Criminal Appeal No. 218 of 1966, the respondent, Dinesh Mishra, lodged a first information report, on June 3, 1965, at the Rajoun Police Station, that he saw a thatched house, of one Uma Kant Misra, situated on the northern side of his house, burning, and the petitioners herein, running away from the scene. The police made an investigation and submitted what is called a ‘final report’, under Section 173 (1) of the Code, to the effect that the offence complained of, was false. The Sub-divisional Magistrate received this report on July 13, 1965, but in the meanwhile, the respondent had filed what is termed ‘a protest petition’, challenging the correctness of the report submitted by the police. The Magistrate appears to have perused the police diary, and, after hearing the counsel for the respondent and the Public Prosecutor passed an order on Oct. 27, 1965, directing the police to submit a charge-sheet, against the petitioners, herein. The petitioners challenged this order, without success, both before the learned Sessions Judge, Bhagalpur, and the Patna High Court. It was held by the High Court, following its previous decision that the Magistrate has jurisdiction to call for a charge-sheet, when he disagrees with the report submitted by the police, under Section 173 (1) of the Code. The petitioners in this appeal challenge these orders.

3. Similarly, in Criminal Appeal No. 238 of 1966, the second respondent therein, had lodged a written report, on February 24, 1964, before the police, at Malasalami police station, that his daughter, Hiramani, was missing from February 21, 1964, and that the appellants in that appeal had kidnapped her. A case, under Section 366 I. P. C. was registered against them. The police, after investigation, submitted a final report to the Magistrate, to the effect that the girl concerned, had been recovered and that she had stated that she had, of her own accord, eloped; and therefore the police stated that the case might be treated as closed.

4. The second respondent filed a ‘protest petition’ in Court, challenging the statements of the police and he also flied a complaint, under Sec. 498 I. P. C. The Magistrate after a perusal of the case diary of the police, and hearing the lawyer for the appellants and the second respondent, as also the Public Prosecutor, passed an order directing the Investigating Officer to submit a charge-sheet against the accused persons, under Section 366 1. P. C. This order has been confirmed by the learned Sessions Judge as well as the Patna High Court. Here also, the Patna High Court, in accordance with its previous decision held that the Magistrate had jurisdiction to pass the order in question. All these orders are challenged by the appellants in this appeal.

5. On behalf of the appellants, in Criminal Appeal No. 218 of 1966, Mr. Jha, learned counsel, pointed out that when a final report is submitted by the police, under Section 173 (1) of the Code, stating that no case is made out, the Magistrate has no jurisdiction to direct the police to file a charge-sheet. It may be open, counsel points out, to the Magistrate, to direct further investigation to be made by the police, or to treat the protest petition filed by the second respondent, as a complaint and take cognizance of the offence and proceed, according to law. The scheme of Chap. XIV of the Code, counsel points out, clearly indicates that the formation of an opinion, as to whether or not there is a case to place the accused on trial, is that of the investigating officers and the Magistrate cannot compel the police to form a particular opinion on the investigation and to submit a report, according to such opinion. In this case, there is nothing to show that the protest petition, filed by the second respondent, has been treated as a complaint, in which case, it may be open to the Magistrate to take cognizance of the offence; but in the absence of any such procedure being adopted, according to counsel, the order of the Magistrate directing a charge-sheet to be filed, is illegal and not warranted by the provisions of the Code. These contentions have been adopted, and reiterated by Mr. Nuruddin Ahmed, on behalf of the appellants, in Criminal Appeal No. 238 of 1966.

6. Both the learned counsel pressed before us, for acceptance, the views, as expressed by the Gujarat High Court in its Full Bench judgment, reported as State of Gujarat vs. Shah Lakhamsi, AIR 1966 Guj 283 (FB) . On the other hand, Mr. U. P. Singh, learned counsel for the respondent, in Criminal Appeal No. 218 of 1966, has pointed out that the Magistrate has jurisdiction, in proper cases, when he does not agree with the final report submitted by the police to direct them to submit a charge-sheet. Otherwise, counsel points out, the position will be that the entire matter is left to the discretion of the police authorities, and the Courts will be powerless, even when they feel that the action of the police is not justified. Quite naturally, counsel prays for acceptance of the views expressed by the dissenting Judges, in A. K. Roy vs. State of W. B., AIR 1962 Cal 135 (FB) and by the Bombay and Patna High Courts, in the decisions reported as State vs. Murlidhar Govardhan, AIR 1960 Bom 240 and Ram Nandan vs. State. AIR 1966 Pat 438, respectively.

7. In order, properly to appreciate the duties of the police, in the matter of investigation of offences, as well as their powers, it is necessary to refer to the provisions contained in Chapter XIV of the Code. That chapter deals with ‘Information to the Police and their Powers to investigate’, and it contains the group of Sections beginning from Section 154, and ending with Section 176. Section 154 deals with information relating to the commission of a cognizable offence, and the procedure to be adopted in respect of the same. Section 155, similarly deals with information in respect of non-cognizable offences. Sub-section (2) , of this Section, prohibits a police officer from investigating a non-cognizable case, without the order of a Magistrate. Section 156 authorizes a police officer, in-charge of a police station, to investigate any cognizable case, without the order of a Magistrate. Therefore, it will be seen that large powers are conferred on the police, in the matter of investigation into a cognizable offence. Sub-section (3) , of Section 156, provides for any Magistrate, empowered under Section 190, to order an investigation. In cases where a cognizable offence is suspected to have been committed, the officer in-charge of a police station, after sending a report to the Magistrate, is entitled under Section 157 to investigate the facts and circumstances of the case and also to take steps for the discovery and arrest of the offender. Clause (b) , of the proviso to Section 157 (1) , gives a discretion to the police officer not to investigate the case, if It appears to him that there is no sufficient ground for entering on an investigation. Section 158 deals with the procedure to be adopted in the matter of a report to be sent, under Section 157. Section 159 gives power to a Magistrate, on receiving a report under Section 157, either to direct an investigation or, himself or through another Magistrate subordinate to him, to hold a preliminary enquiry into the matter, or otherwise dispose of the case, in accordance with the Code. Sections 160 to 163 deal with the power of the police to require attendance of witnesses, examine witnesses and record statements. Sections 165 and 166 deal with the power of police officers, in the matter of conducting searches during an investigation, in the circumstances, mentioned therein. Section 167 provides for the procedure to be adopted by the police, when investigation cannot be completed in 24 hours. Section 168 provides for a report being sent to the officer, in-charge of a police station, about the result of an investigation, when such investigation has been made by a subordinate police officer, under Chapter XIV. Section 169 authorises a police officer to release a person from custody, on his executing a bond, to appear, if and when so required before a Magistrate, in cases when, on investigation under Chapter XIV, it appears to the officer, in-charge of the police station, or to the police officer making the investigation, that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Section 170 empowers the officer, incharge of a police station, after investigation under Chapter XIV, and if it appears to him that there is sufficient evidence, to forward the accused, under custody, to a competent Magistrate or to take security from the accused for his appearance before the Magistrate, in cases where the offence is bailable. Section 172 makes it obligatory on the police officer making an investigation, to maintain a diary recording the various particulars therein and in the manner indicated in that Section. Section 173 provides for an investigation, under Chapter XIV, to be completed, without unnecessary delay and also makes it obligatory, on the officer in charge of the police station to send a report to the Magistrate concerned in the manner provided for therein, containing the necessary particulars.

8. It is now only necessary to refer to Section 190, occurring in Chapter XV, relating to jurisdiction of criminal Courts in inquiries and trials. That Section is to be found under the heading ‘Conditions requisite for initiation of proceedings’ and sub-section (1) is as follows:

“(1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police-officer;

(c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed.”

9. From the foregoing Sections, occurring in Chapter XIV, it will be seen that very elaborate provisions have been made for securing that an investigation does take place into a reported offence and the investigation is carried out within the limits of the law, without causing any harassment to the accused and is also completed without unnecessary or undue delay. But the point to be noted is that the manner and method of conducting the investigation, are left entirely to the police, and the Magistrate, so far as we can see, has no power under any of these provisions, to interfere with the same. If, on investigation, it appears to the officer, in-charge of a police station, or to the officer making an investigation, that there is no sufficient evidence or reasonable grounds of suspicion justifying the forwarding of an accused to a Magistrate, Section 169 says that the officer shall release the accused, if in custody, on his executing a bond to appear before the Magistrate. Similarly if on the other hand, it appears to the officer in-charge of a police station, or to the officer making the investigation, under Chapter XIV, that there is sufficient evidence or reasonable ground to justify the forwarding of an accused to a Magistrate, such an officer is required, under Section 170, to forward the accused to a Magistrate; or if the offence is bailable to take security from him for his appearance before such Magistrate. But, whether a case comes under Section 169, or under Section 170 of the Code, on the completion of the investigation, the police officer has to submit a report to the Magistrate, under Section 173, in the manner indicated therein, containing the various details. The question as to whether the Magistrate has got power to direct the police to file a charge sheet on receipt of a report under Sec. 173 really depends upon the nature of the jurisdiction exercised by a Magistrate, on receiving a report.

10. In this connection, we may refer to certain observations, made by the Judicial Committee in King Emperor vs. Nazir Ahmed, 71 Ind App 203 and by this Court in H. N. Rishbud vs. State of Delhi, (1955) 1 SCR 1150 . In Nazir Ahmad’s case, (supra) , Lord Porter observes, at page No. 212 (of Ind App) as follows:

“Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. In India as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the Judiciary and the police are complementary, not overlapping and the combination of individual liberty with a duo observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the court’s functions begin when a charge is preferred before it, and not until then.”

These observations have been quoted with approval, by this Court, in State of West Bengal vs. S. N. Basak, AIR 1963 SC 447. This Court in Rishbud and Inder Singh’s case, (supra) , observes at page No. 1156 of SCR as follows:

“Investigation usually starts on information relating to the commission of an offence given to an officer in-charge of a police station and recorded under Section 154 of the Code. If from information so received or otherwise, the officer in-charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. Thus investigation primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it includes all the proceedings under the Code for the collection of evidence conducted by a police officer.”

Again, after a reference to some of the provisions in Chapter XIV of the Code, it is observed at page No. 1157 of SCR :

“Thus, under the Code investigation consists generally of the following steps:(1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, If the officer thinks fit, (b) the search of places of seizure of things considered necessary of the investigation and to be produced at the trial and (5) Formation of the opinion as to whether on the material collected there is case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing of a charge-sheet under Section 173 . . . It is also clear that the final step in the investigation, viz., the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in-charge of the police station.”

11. We are referring to these observations for the purpose of emphasizing that the scheme of Chapter XIV, clearly shows that the formation of an opinion as to whether or not there is case to place the accused on trial, has been left to the officer in-charge of a police station. Bearing in mind these principles referred to above, we have to consider the question that arises for consideration, in his case. The High Courts, which have held that the Magistrate has no jurisdiction to call upon the police to file a charge-sheet, under such circumstances, have rested their decision on two principles viz., (a) that there is no express provision in the Code empowering a Magistrate to pass such an order; and (b) such a power, in view of the scheme of Chapter XIV, cannot be inferred vide Venkata Subba vs. Anjanayulu, AIR l932 Mad 673; Abdul Rahim vs. Abdul Muktadin, AIR 1953 Assam 112; Amar Premanand vs. State, AIR 1960 Madh Pra 12; the majority view in AIR 1962 Cal 135 and ILR (1966) Guj 285 (FB) . On the other hand, the High Courts which have recognised such a power, rest their decision again on two grounds viz., (a) when a report is submitted by the police after investigation, the Magistrate has to deal with it judicially, which will mean that when the report is not accepted, the Magistrate can give suitable directions to the police; and (b) the Magistrate is given supervision over the conduct of investigation by the police, and therefore, such a power can be recognised in the Magistrate vide AIR 1960 Bom 240; and AIR 1966 Pat 438.

12. Though it may be that a report submitted by the police may have to be dealt with judicially, by a Magistrate, and although the Magistrate may have certain supervisory powers, nevertheless, we are not inclined to agree with the further view that from these considerations alone it can be said that when the police submit a report that no case has been made out for sending up an accused for trial, it is open to the Magistrate to direct the police to file a charge-sheet. But, we may make it clear, that this is not to say that the Magistrate is absolutely powerless, because, as will be indicated later, it is open to him to take cognizance of an offence and proceed, according to law. We do not also find any such power under Section 173 (3) , as is sought to be inferred, in some of the decisions cited above. As we have indicated broadly the approach made by the various High Courts in coming to different conclusions, we do not think it necessary to refer to those decisions in detail.

13. It will be seen that the Code, as such does not use the expression ‘charge-sheet’ or ‘final report’. But is understood in the Police Manual containing Rules and Regulations, that a report by the police, filed under Section 170 of the Code, is referred to as a ‘charge-sheet’. But in respect of the reports sent under Section 169 i. e., when there is no sufficient evidence to justify the forwarding of the accused to a Magistrate, it is termed variously, in different States, as either ‘referred charge’, ‘final report’, or ‘Summary’.

14. In these two appeals, which are from the State of Bihar, the reports, under Section 169, are referred to as ‘final report.’ Now, the question as to what exactly is to be done by a Magistrate, on receiving a report, under Section 173, will have to be considered. That report may be in respect of a case, coming under Section 170, or one coming under Section 169. We have already referred to Section 190, which is the first Section in the group of Sections headed ‘Conditions requisite for Initiation of Proceedings.’ Sub-section (1) , of this Section, will cover a report sent, under Section 173. The use of the words ‘may take cognizance of any offence’, in sub-section (1) of Section 190, in our opinion, imports the exercise of a ‘judicial discretion’, and the Magistrate, who receives the report, under Section 173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence. From this it follows, that it is not as if, that the Magistrate is bound to accept the opinion of the police that there is a case for placing the accused, on trial. It is open to the Magistrate to take the view that the facts, disclosed in the report do not make out an offence for taking cognizance or he may take the view that there is no sufficient evidence to justify an accused being put on trial. On either of these grounds, the Magistrate will be perfectly justified in declining to take cognizance of an offence, irrespective of the opinion of the police. On the other hand, if the Magistrate agrees with the report, which is a charge-sheet submitted by the police, no difficulty whatsoever is caused, because he will have full jurisdiction to take cognizance of the offence, under Section 190 (1) (b) of the Code. This will be the position, when the report, under Section 173, is a charge-sheet.

15. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for trial, which report as we have already indicated, is called, in the area in question, as a ‘final report’.? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under S. 156 (3) , to make a further investigation. That is, the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156 (3) . The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190 (1) (b) , notwithstanding the contrary opinion of the police, expressed in the final report.

16. In this connection, the provisions of Section 169 of the Code, are relevant. They specifically provide that even though, on investigation, a police officer, or other investigating Officer, is of the opinion that there is no case for proceeding against the accused, he is bound, while releasing the accused, to take a bond from him to appear, if and when required, before a Magistrate. This provision is obviously to meet a contingency of the Magistrate, when he considers the report of the investigating officer, and judicially takes a view different from the police.

17. We have to approach the question, arising for consideration in this case, in the light of the circumstances pointed out above. We have already referred to the scheme of Chapter XIV, as well as the observations of this Court in Rishbud and Inder Singh’s Case AIR 1955 SC 196 that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is 1eft to the officer in-charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, under Section 190 (1) (c) of the Code. That provision in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, under Section 190 (1) (c) , on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed. Therefore, these circumstance will also clearly negative the power of a Magistrate to call for a charge-sheet from the police, when they have submitted a final report. The entire scheme of Chapter XIV clearly indicates that the formation of the opinion, as to whether or not there is a case to place the accused for trial, is that of the Officer in-charge of the police station and that opinion determines whether the report is to be under Section 170, being a ‘chargesheet,’ or under Section 169, ‘a final report’. It is no doubt open to the Magistrate, as we have already pointed out, to accept or disagree with the opinion of the police and, if he disagrees, he is entitled to adopt any one of the courses indicated by us. But he cannot direct the police to submit a charge-sheet, because the submission of the report depends upon the opinion formed by the police, and not on the opinion of the Magistrate. The Magistrate cannot compel the police to form a particular opinion, on the investigation, and to submit a report, according to such opinion. That will be really encroaching on the sphere of the police and compelling the police to form an opinion so as to accord with the decision of the Magistrate and send a report either under S. 169, or under Section 170, depending upon the nature of the decision. Such a function has been left to the police under the Code.

18. We have already pointed out that the investigation, under the Code, takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet, or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, as pointed out earlier, is the final step in the investigation, and that final step is to be taken only by the police and by no other authority.

19. The question can also be considered from another point of view. Supposing the police send a report, viz., a charge-sheet, under Section 170 of the Code. As we have already pointed out the Magistrate is not bound to accept that report, when he considers the matter judicially. But can he differ from the police and call upon them to submit final report, under Section 169? In our opinion, the Magistrate has no such power. If he has no such power, in law, it also follows that the Magistrate has no power to direct the police to submit a charge-sheet, when the police have submitted a final report that no case is made out for sending the accused for trial. The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe (sic. impinge?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view.

20. Therefore, to conclude, there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge-sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial.

21. In these two appeals one other fact will have to be taken note of. It is not very clear as to whether the Magistrate, in each of those cases, has chosen to treat the protest petitions, filed by the respective respondents, as complaints, because, we do not find that the Magistrate has adopted the suitable procedure indicated in the Code, when he takes cognizance of an offence, on a complaint made to him. Therefore, while holding that the orders of the Magistrate, in each of those cases, directing the police to file charge-sheets, is without jurisdiction, we make it clear that it is open to the Magistrate to treat the respective protest petitions, as complaints and take further proceedings, according to law, and, in the light of the views expressed by us, in this judgment.

22. Mr. Nuruddin Ahmed, learned counsel for the appellants, in Criminal Appeal No. 238 of 1966, particularly urged that it is unnecessary to direct further proceedings to be continued, so far as his clients are concerned. Learned counsel pointed out that the police report before the Magistrate, clearly shows that the girl, in question, who is stated to be above 19 years of age has herself stated that she had eloped, of her own accord and that if that is so, further proceedings against his clients, are absolutely unnecessary, to be continued. We are not inclined to accept these contentions of the learned counsel. As to whether an offence is made out or whether any of the appellants or both of them are guilty of the offences, with which they may be charged, are all matters which do not require to be considered of, by this Court, at this stage.

23. In the result, subject to the directions contained above, the orders of the Magistrate, directing the police to file a charge, will be set aside, and the appeals allowed, to that extent.

Michael Machado and anr Vs Central Bureau of Investigation and anr-17/02/2000

The basic requirements for invoking Section 319 Cr.P.C. is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned.

It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused. But even then, what is conferred on the Court is only a discretion as could be discerned from the words “the Court may proceed against such person”. The discretionary power so conferred should be exercised only to achieve criminal justice.

SUPREME COURT OF INDIA

Michael Machado and another
Appellant

Versus

Central Bureau of Investigation and another
Respondent

(Before: K. T. Thomas And Ajay Prakash Misra, JJ.)

Criminal Appeal No. 184 of 2000 (arising out of S.L.P. (Cri) No. 3780 of 1999), Decided on: 17-02-2000.

Summoning of accused—Additional accused—Summoning of, at belated stage after cross-examination of large number of witnesses—Not permissible.

R. N. Trivedi, Addl. Solicitor General, Subhash Jha, Sanjay Mann, Ms. Sangeeta Kumar, Ajay K. Agarwala, Ms. Rekha Pandey, P. Parmeswaran, G.B. Sathe, S.V. Deshpande, Ashwini Garg, Ms. Sushma Suri, Advocates, with him, for appearing parties.

Judgement

Thomas, J—When the trial in a criminal case against four accused persons proceeded to the penultimate stage (after examining 54 witnesses by then) the Metropolitan Magistrate, before whom the case was being tried, ordered two more persons to be arrayed as accused. If the order of the Magistrate is to sustain, the proceedings in respect of the newly added persons are to be re-commenced afresh, which means that the entire massive evidence thus far collected and the time which the Court has thus far spent for recording the evidence of such a large number of witnesses, besides the cost involved for all concerned to reach up to the present stage, would all become, for all practical purposes, a waste – a colossal waste. Is it so very necessary at this belated stage to bring such two more additions to the array of the accused at the cost of such a de novo trial ?

2. When the persons, against whom the Metropolitan Magistrate passed the order, challenged it before the High Court of Bombay a learned single Judge of the High Court felt it unnecessary to interfere on the premise that the affected persons can approach the trial Court and pray for discharging them from the case. Aggrieved by the said order of the learned single Judge the concerned persons have filed this petition for special leave to appeal. Leave is granted.

3. The background in which the Metropolitan Magistrate passed the order against the appellants can now be shown with more details.

4. First appellant was Chief Manager of the Malad Branch of the Corporation Bank at Mumbai, and the second appellant was Chief Manager of the Wadala Branch (Mumbai). A complaint was lodged with the police by the Deputy Manager of the Bank with the allegations that a huge amount, more than half a crore of rupees, had been defrauded by certain persons and the Bank was put to great loss to the above extent. An FIR was registered on its basis for certain offences and after completion of the investigation the police laid two charge-sheets before the said Metropolitan Magistrate arraigning 4 persons as accused for offences under Sections 120-B, 420, 467, 468 and 471 of the Indian Penal Code. The Central Bureau of Investigation which conducted the investigation and laid the charge-sheet has stated in the final report that the 4 accused along with certain other persons secured loans from the bank to the tune of more than half a crore of rupees in the names of existing as well as non-existing persons from three branches of the Corporation Bank (Malad and Wadala Branches at Mumbai and Liberty Branch at Ahmedabad) on the strength of bogus share certificates purported to have been issued from various companies. The CBI has further stated that the materials collected by them are insufficient to show the involvement of three officers of the Bank (including the two appellants) in the perpet-ration of the said crime. However the CBI has recommended to the Bank for initiating departmental actions against those officers.

5. The Metropolitan Magistrate, after perusing the said charge-sheet filed against 4 accused persons, felt that the CBI was shielding the appellants from prosecution and hence he sought the explanation from the CBI regarding that aspect. After considering the explanation offered by the CBI officials learned Magistrate felt that the investigating officer has committed the offence under Section 219 of the Indian Penal Code (making a report corruptly or maliciously, knowing that it is contrary to law), and issued notice to him. But at the same time learned Magistrate decided to implead the appellants as additional accused in the criminal cases. That order of the Magistrate was challenged by the concerned investigating officer and the High Court quashed that order, but made an observation that it is open to the Magistrate to consider at the appropriate stage whether any action is necessary under 319 of the Code of Criminal Procedure (for short “the Code”). Following is what the High Court has then observed:

“As far as the present case is concerned, there is absolutely no material in evidence so far to proceed against those 2 bank officers. The learned counsel for the petitioner submitted that there may be some material against them to proceed departmentally, but nothing is presently on record of the Court. He further stated that in case such material or evidence comes before the Court the Court can pass order under Section 319 to join them as accused.”

6. The trial which commenced as against the 4 accused persons progressed substantially. Until 49 witness were examined by the prosecution the trial Magistrate had no reason to feel the necessity to implead the appellants. But when evidence of the remaining 3 witnesses was recorded it appeared to the Magistrate that appellants are also involved in the crime. So he passed the order on 16-10-1999, the relevant portion of which reads thus:

“After perusal of the evidence of Mrs. Sathe, Dayanand Hejmadi and Naushad, similarly after going through Ex. 16, I am satisfied that there is sufficient evidence against Branch Manager Mr. N. Ramamurthy as well as Branch Manager Mr. Michael Machado as alleged in present case along with other accused persons. The evidence on record is sufficient to show that they were also party to the conspiracy, cheating and forgery of valuable security.”

7. It was the said order which the appellants challenged before the High Court. While dismissing that challenge learned single Judge of the High Court has, inter alia, observed thus;

“In my opinion, it would be improper to interfere with the exercise of his jurisdiction u/S. 319(1). The sufficiency of the material placed before him cannot be gone into by the High Court unless it is a case of no evidence at all. No doubt Mr. Jha argued that in the evidence of the three witnesses nothing has come on record as against the present petitioners but as pointed out by Mr. Mehta, there is some indication that the petitioners could be concerned with the case though I am making it clear that I am not giving any final opinion on this point. All I wish to say is that this certainly is not a case where this Court in its power u/S. 482 of the Criminal Procedure Code will interfere with the discretionary power of the learned Magistrate passed u/S. 319(1) of the Cr.P.C.”

8. In this context we may point out that even according to the trial Magistrate “the first 49 witnesses did not utter a single word against any of them; last witnesses disclosed their role.” We have perused the evidence of the aforesaid three witnesses. No doubt there is a reference in their evidence to the role played by the appellants, but such reference is insufficient to make out a case of criminal conspiracy under Section 120B of the IPC against the appellants. The reason for the CBI to refrain from making the appellants as accused along with the other arraigned persons, has been stated that the evidence as against the appellants was too inadequate to send them as accused before a Court of law. Following is the stand adopted by the CBI in that regard:

“However, after investigation the petitioners were not charge-sheeted by the CBI but CBI recommended for initiation of regular departmental action for major penalty against the 2 petitioners. That as provided under CBI Crime Manual the case investigated by the CBI are referred to the Ministry or Departments concerned for taking regular departmental action against the public servants under the disciplinary rules instead of launching prosecution in the Court of law under the following circumstances:-

(a) When in opinion of CBI there is inadequate evidence for a successful criminal prosecution but there is good evidence for departmental action.

(b) When the charges established by the enquiry are breaches of departmental rules or misconduct not strictly amounting to criminal offences under the law.

(c) When the departmental action is preferable to prosecution for some other important reasons.”

9. Hence the CBI has chosen to recommend departmental proceedings against the appellants, instead of arraigning them as accused along with the four persons. We are not now concerned with the wisdom with which CBI has chosen the aforesaid course. We are only to see whether the action of the magistrate in joining the appellants as additional accused at that belated stage is legally sustainable.

10. Powers under Section 319 of the Code can be invoked in appropriate situations. This section is extracted below:

“319. Power to proceed against other persons appearing to be guilty of offence.- (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then –

(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.”

11. The basic requirements for invoking the above section is that it should appear to the Court from the evidence collected during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, had committed an offence for which that person could be tried together with the accused already arraigned. It is not enough that the Court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the Court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.

12. But even then, what is conferred on the Court is only a discretion as could be discerned from the words “the Court may proceed against such person”. The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the Court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. It must be remembered that there is no compelling duty on the Court to proceed against other persons.

13. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi, (1983) 1 SCC 1 this Court has struck a note of caution, while considering whether prosecution can produce evidence to satisfy the Court that other accused against whom proceedings have been quashed or those who have not been arrayed as accused, have also committed an offence in order to enable the Court to take cognizance against them and try them along with the other accused. This was how learned Judges then cautioned:

“But we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.”

14. The Court while deciding whether to invoke the power under Section 319 of the Code, must address itself about the other constraints imposed by the first limb of sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be re-commenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite a large in number the Court must seriously consider whether the objects sought to be achieved by such exercise is worth wasting the whole labour already undertaken. Unless the Court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the Court should refrain from adopting such a course of action.

15. In the present case, as pointed out above, the prosecution has already examined quite a large number of witnesses and they were cross-examined by the defence. The Metropolitan Magistrate felt the need to start afresh only because next three witnesses disclosed something against the appellants. They are:

(1) Mrs. Anuradha Anand Sathe, a Clerk-cum-Cashier of Malad Branch of the Corporation Bank.

(2) Dayanand Hejmadi, an officer in the saving Accounts Department of the Bank.

(3) Naushad Ali, Special Assistant attached to the same Branch.

16. The statements of those three witnesses were placed before us. No doubt the statements may create some suspicion against the appellants. But suspicion is not sufficient to hold that there is reasonable prospect of convicting the appellants of the offence of criminal conspiracy.

17. We strongly feel that a situation has not reached as to waste the whole massive evidence already collected by the trial Court thus far, against the 4 accused arraigned in the case. Hence the order of the trial Court in exercise of Section 319 of the Code has to be interfered with for enabling the trial to proceed to its normal culmination.

18. We, therefore, allow this appeal and set aside the impugned judgment of the High Court as well as the order of the Metropolitan Magistrate under challenge. We direct him to proceed with the trial with the existing accused arraigned before the Court.


AIR 2000 SC 1127 : (2000) 1 SCR 981 : (2000) 3 SCC 262 : JT 2000 (2) SC 531 : (2000) 1 SCALE 624 : (2000) CriLJ SC 1706

Section 301 of the Code of Criminal Procedure

Section 301 of Cr.P.C

301. Appearance by Public Prosecutors:- (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.


As is clear from the above while Sub-section (1) stipulates that the Public Prosecutor or-Assistant Public Prosecutor is competent to appear and plead without any written authority, what Sub-section (2) enables is assistance to the Assistant Public Prosecutor by another counsel of the party’s choice. However, as clear from the Section itself, what is important in this regard is the grant of permission by the Court. Even if the permission is granted, the role of the said counsel allowed to assist the Assistant Public Prosecutor is very much limited. The rein is still held by the Public Prosecutor. If the Court so permits, the assisting counsel can submit written arguments after the evidence is closed in the case. That is all. The Section does not envisage any other authority or independent power for the counsel who is engaged to assist the Assistant Public Prosecutor. In other words, even after permission is granted for rendering assistance under Section 301 (2) of the Cr.P.C. the responsibility for conduct of the prosecution continues to be with the Assistant Public Prosecutor. It naturally follows that he is the person who is to decide how the prosecution should proceed and whether recall of any witness under Section 311 is necessary. According to me, the right to file an application under Section 311 in a case where the Court grants permission under Section 301(1) of the Cr. P.C. is available only to the Assistant Public Prosecutor and not to the counsel who is allowed to assist the Assistant Public Prosecutor.’

The proper course would have been for the first respondent/de facto complainant to have moved an application to assist the prosecution in keeping with Section 301 Cr.P.C. Learned senior counsel submitted that even when such course is adopted, it would not be open to first respondent/de facto complainant to move any petition u/s.319 Cr.P.C. on her own. Amidst several decisions, learned senior counsel referred to decisions of the Apex Court in Brindaban Das and others v. State of West Bengal [2009 (13) SCC 329] and Hardeep Singh and others v. State of Punjab and others [2014 (3) SCC 92]. Touching upon the decision in K.Anbazhagan v. Selvi J Jayalalitha and another [2015 (6) SCC 156] wherein the Apex Court found no merits in an interlocutory application seeking intervention in pending appeals of accused towards assisting the Special Public Prosecutor, learned senior counsel also referred to judgment of the High Court of Kerala in reported in 2001 Crl. LJ 4370. [Murugesan vs Malathi [MHC]-26/07/2017]

Murugesan vs Malathi [MHC]-26/07/2017

The right to file an application under Section 311 in a case where the Court grants permission under Section 301(1) of the Cr. P.C. is available only to the Assistant Public Prosecutor and not to the counsel who is allowed to assist the Assistant Public Prosecutor.

Murugesan vs Malathi 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

CORAM: THE HONOURABLE MR.JUSTICE C.T.SELVAM

Crl.R.C.No.1164 of 2010
and
M.P.No.1 of 2010

1. Murugesan
S/o Nanjappa

2. Thilakavathi
W/o Murugesan

3. E.M. Jayaprakash
S/o Murugesan

4. Geetha
W/o Chandu …Petitioners

Versus

1. Malathi
D/o M. Masilamani

2. The State of Tamil Nadu
Rep. by Sub Inspector of Police,
All Women Police Station,
Kondalampatti Salem.

3. Ravi Shankar
S/o Murugesan …Respondents

Criminal Revision Petition filed under Sections 397 & 401 of Cr.P.C against the order dated 14.10.2010 made in C.M.P.No. 2423/2010 in CC.No.161/2009 on the file of Judicial Magistrate IV, Salem.

For Petitioners : Mr. B. Kumar, Senior Counsel
for Mr.J.Nandagopal

For Respondents : Mr.L.Mouli [R1]
Mr.V.Arul,
Additional Public Prosecutor [R2]
No appearance,
Mr.T.Murugamanickam [R3]

O R D E R

This revision is preferred against the order of learned Judicial Magistrate IV, Salem, passed in C.M.P.No.2423 of 2010 in CC.No.161 of 2009 on 14.10.2010.

2. The order under challenge reads as follows:

‘Heard both sides & perusal records. The petitioner in this application has suo moto filed this petition without seeking prior permission of this court and even without filing a petition seeking permission to assist the prosecution while so the respondents have filed their counter in this regard. The petitioner have approached the Hon’ble High Court had in its order dated 29.4.2010 accordingly directed the Lower court to proceed as contemplated under section 319 Cr.P.C. Keeping in mind, the above direction and also the endorsement of the APP who would not object to the adding of parties this petition is allowed in the interest of justice. The petitioner counsels are advised to seek prior permission of court in future instances facilitating the court to render justice properly.

Issue summon to the proposed properties as Accused 2, 3, 4, 5 as there is prima facie case made out in the evidence of PW1 & 2 in against A2-A5.’

3. The direction of this Court in Crl.O.P.No.10180 of 2010 dated 29.04.2010, referred to by Court below, is to the following effect:

‘3. On completion of investigation, the first respondent has thought it fit to file a charge sheet for offence under Section 498(A) IPC as against the petitioner’s husband. If in the course of trial, it appears to the lower Court that offences have been committed by others, it will be open to the lower Court to proceed as contemplated under Section 319 Cr.P.C. With the above observations, the Criminal Original Petition is dismissed.’

4. Heard learned senior counsel for petitioner and learned counsel for first respondent and learned Additional Public Prosecutor for second respondent. There is no appearance for third respondent.

5. The contention of learned senior counsel for petitioner is to the effect that first respondent/de facto complainant ought not to have been permitted to move a petition in C.M.P.No.2423 of 2010 in C.C.No.161 of 2009. The proper course would have been for the first respondent/de facto complainant to have moved an application to assist the prosecution in keeping with Section 301 Cr.P.C. Learned senior counsel submitted that even when such course is adopted, it would not be open to first respondent/de facto complainant to move any petition u/s.319 Cr.P.C. on her own. Amidst several decisions, learned senior counsel referred to decisions of the Apex Court in Brindaban Das and others v. State of West Bengal [2009 (13) SCC 329] and Hardeep Singh and others v. State of Punjab and others [2014 (3) SCC 92]. Touching upon the decision in K.Anbazhagan v. Selvi J Jayalalitha and another [2015 (6) SCC 156] wherein the Apex Court found no merits in an interlocutory application seeking intervention in pending appeals of accused towards assisting the Special Public Prosecutor, learned senior counsel also referred to judgment of the High Court of Kerala in reported in 2001 Crl. LJ 4370. In Brindaban Das’s case, the Apex Court has observed thus:

’25. The common thread in most matters where the use of discretion is in issue is that in the exercise of such discretion each case has to be considered on its own set of facts and circumstances. In matters relating to invocation of powers under Section 319, the court is not merely required to take note of the fact that the name of a person who has not been named as an accused in the FIR has surfaced during the trial, but the court is also required to consider whether such evidence would be sufficient to convict the person being summoned. Since issuance of summons under Section 319 CrPC entails a de novo trial and a large number of witnesses may have been examined and their re-examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity.

26. Although a somewhat discordant note was struck in Rajendra Singh case[(2007) 7 SCC 378 : (2007) 3 SCC (Cri) 375] the views expressed in the majority of decisions of this Court on the point subscribe to the view that the power under Section 319 CrPC is to be invoked, not as a matter of course, but in circumstances where the invocation of such power is imperative to meet the ends of justice.

27. The fulcrum on which the invocation of Section 319 CrPC rests is whether the summoning of persons other than the named accused would make such a difference to the prosecution as would enable it not only to prove its case but to also secure the conviction of the persons summoned.’ In Hardeep Singh’s case, the Apex Court has observed thus:

’98. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

99. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if it appears from the evidence that any person not being the accused has committed any offence is clear from the words for which such person could be tried together with the accused. The words used are not for which such person could be convicted. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.’ In decision reported in 2001 Crl. LJ 4370, the High Court of Kerala has held thus:

‘4. It is Section 301 of the Code of Criminal Procedure that enables the Court to allow a counsel to assist the Public Prosecutor. It is useful to quote the said provision here :

301. Appearance by Public Prosecutors :- (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

As is clear from the above while Sub-section (1) stipulates that the Public Prosecutor or-Assistant Public Prosecutor is competent to appear and plead without any written authority, what Sub-section (2) enables is assistance to the Assistant Public Prosecutor by another counsel of the party’s choice. However, as clear from the Section itself, what is important in this regard is the grant of permission by the Court. Even if the permission is granted, the role of the said counsel allowed to assist the Assistant Public Prosecutor is very much limited. The rein is still held by the Public Prosecutor. If the Court so permits, the assisting counsel can submit written arguments after the evidence is closed in the case. That is all. The Section does not envisage any other authority or independent power for the counsel who is engaged to assist the Assistant Public Prosecutor. In other words, even after permission is granted for rendering assistance under Section 301 (2) of the Cr.P.C. the responsibility for conduct of the prosecution continues to be with the Assistant Public Prosecutor. It naturally follows that he is the person who is to decide how the prosecution should proceed and whether recall of any witness under Section 311 is necessary. According to me, the right to file an application under Section 311 in a case where the Court grants permission under Section 301(1) of the Cr. P.C. is available only to the Assistant Public Prosecutor and not to the counsel who is allowed to assist the Assistant Public Prosecutor.’

6. Learned counsel for first respondent/de facto complainant contended that it was open to first respondent/de facto complainant to move a petition as in decision of the Supreme Court in Guriya @ Tabassum Tauquir and others v. State of Bihar and another [AIR 2008 SC 95(1)], it has been held as follows:

’14. Power under Section 319 of the Code can be exercised by the Court suo motu or on an application by someone including accused already before it, if it is satisfied that any person other than accused has committed an offence and he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word ”evidence” in Section 319 contemplates evidence of witnesses given in Court. Under sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned. (See Lok Ram v. Nihal Singh and another (AIR 2006 SC 1892)).’ Learned counsel submitted that the order of the Court below did not call for interference. Learned counsel also submitted that Court below was empowered to exercise powers u/s.319 Cr.P.C. suo motu.

7. This Court has also heard learned Additional Public Prosecutor on the above submissions.

8. This Court may straight away observe that Court below in passing the order under challenge was, on a bare reading of the order of this Court passed in Crl.O.P.No.10180 of 2010 dated 29.04.2010, upon a duty to inform that it appeared to it that offences stood committed by others. Court below also was in error in passing orders merely because the Additional Public Prosecutor attached to such Court has made an endorsement that he has no objection. Such reasons alone would suffice remittal of the matter to Court below.

9. Following the rationale of judgments of Supreme Court extracted herein above and expressing our agreement with the view informed in the decision reported in 2001 Crl. LJ 4370, this Court would direct as follows:

(i)The order of learned Judicial Magistrate IV Salem, passed in C.M.P.No.2423 of 2010 in CC.No.161 of 2009 on 14.10.2010, is set aside.

(ii)It would be open to first respondent/de facto complainant to move a petition u/s.301 Cr.P.C. to assist the prosecution. Such application shall be considered by Court below on merits.

(iii)In the event of first respondent/de facto complainant being permitted to assist the prosecution, it would be open to her to bring to the notice of the Public Prosecutor the need for moving a petition u/s.319 Cr.P.C. It would then be for the Public Prosecutor to move such petition. In the event of the Public Prosecutor being of the view that it is not a fit case for moving a petition u/s.319 Cr.P.C., the remedy for respondent/de facto complainant would be by way of filing a petition u/s.482 Cr.P.C informing her grievance.

(iv)If and when Court below decides to exercise powers u/s.319 Cr.P.C. on petition made before it or suo motu, it would be duty bound to follow the procedure informed therein.

The Criminal Revision Case is disposed of with the above direction. Connected miscellaneous petition is closed.

C.T. SELVAM, J

26.07.2017


 Copy to:

1.The Judicial Magistrate IV,
Salem.

2.The Sub Inspector of Police,
All Women Police Station,
Kondalampatti Salem.

3.The Public Prosecutor,
High Court, Madras.


Section 265 A of The Code of Criminal Procedure 1973

Plea Bargaining Section 265 A of The Code of Criminal Procedure 1973

Plea Bargaining

265A. Application of the Chapter

(1) This Chapter shall apply in respect of an accused against whom–

(a)the report has been forwarded by the officer in charge of the police station under section 173 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or

(b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining complainant and witnesses under section 200, issued the process under section 204, but does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years.

(2) For the purposes of sub-section (1), the Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country.

265B. Application for plea bargaining

(1) A person accused of an offence may file an application for plea bargaining in the Court in which such offence is pending for trial.

(2) The application under sub-section (1) shall contain a brief description of the case relating to which the application is filed including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a Court in a case in which he had been charged with the same offence.
(3) After receiving the application under sub-section (1), the Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the case.
(4) When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed under sub-section (3), the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where –
(a)the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case;
(b)the Court finds that the application has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this Code from the stage such application has been filed under sub-section (1).

265C. Guidelines for mutually satisfactory disposition

In working out a mutually satisfactory disposition under clause (a) of sub-section (4) of section 265B, the Court shall follow the following procedure, namely:
(a)in a case instituted on a police report, the Court shall issue notice to the Public Prosecutor, the police officer who has investigated the case, the accused and the victim of the case to participate in the meeting to work out a satisfactory disposition of the case:
Provided that throughout such process of working out a satisfactory disposition of the case, it shall be the duty of the Court to ensure that the entire process is completed voluntarily by the parties participating in the meeting:
Provided further that the accused may, if he so desires, participate in such meeting with his pleader, if any, engaged in the case;
(b)in a case instituted otherwise than on police report, the Court shall issue notice to the accused and the victim of the case to participate in a meeting to work out a satisfactory disposition of the case:
Provided that it shall be the duty of the Court to ensure, throughout such process of working out a satisfactory disposition of the case, that it is completed voluntarily by the parties participating in the meeting:
Provided further that if the victim of the case or the accused, as the case may be, so desires, he may participate in such meeting with his pleader engaged in the case.

265D. Report of the mutually satisfactory disposition to be submitted before the Court

Where in a meeting under section 265C, a satisfactory disposition of the case has been worked out, the Court shall prepare a report of such disposition which shall be signed by the presiding officer of the Court and all other persons who participated in the meeting and if no such disposition has been worked out, the Court shall record such observation and proceed further in accordance with the provisions of this Code from the stage the application under sub-section (1) of section 265B has been filed in such case.

265E. Disposal of the case

Where a satisfactory disposition of the case has been worked out under section 265D, the Court shall dispose of the case in the following manner, namely:
(a)the Court shall award the compensation to the victim in accordance with the disposition under section 265D and hear the parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition under section 360 or for dealing with the accused under the provisions of the Probation of Offenders Act, 1958(20 of 1958) or any other law for the time being in force and follow the procedure specified in the succeeding clauses for imposing the punishment on the accused;
(b)after hearing the parties under clause (a), if the Court is of the view that section 360 or the provisions of the Probation of Offenders Act, 1958(20 of 1958) or any other law for the time being in force are attracted in the case of the accused, it may release the accused on probation or provide the benefit of any such law, as the case may be;
(c)after hearing the parties under clause (b), if the Court finds that minimum punishment has been provided under the law for the offence committed by the accused, it may sentence the accused to half of such minimum punishment;
(d)in case after hearing the parties under clause (b), the Court finds that the offence committed by the accused is not covered under clause (b) or clause (c), then, it may sentence the accused to one-fourth of the punishment provided or extendable, as the case may be, for such offence.

265F. Judgment of the Court

The Court shall deliver its judgment in terms of section 265E in the open Court and the same shall be signed by the presiding officer of the Court.

265G. Finality of the judgment

The judgment delivered by the Court under section 265G shall be final and no appeal (except the special leave petition under article 136 and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court against such judgment.

265H. Power of the Court in plea bargaining

A Court shall have, for the purposes of discharging its functions under this Chapter, all the powers vested in respect of bail, trial of offences and other matters relating to the disposal of a cast in such Court under this Code.

265I. Period of detention undergone by the accused to be set off against the sentence of imprisonment

The provisions of section 428 shall apply, for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this Chapter, in the same manner as they apply in respect of the imprisonment under other provisions of this Code.

265J. Savings

The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of this Code and nothing in such other provisions shall be construed to constrain the meaning of any provision of this Chapter.
Explanation.–For the purposes of this Chapter, the expression “Public Prosecutor” has the meaning assigned to it under clause (u) of section 2 and includes an Assistant Public Prosecutor appointed under section 25.

265K. Statements of accused not to be used

Notwithstanding anything contained in any law for the time being in force, the statements or facts stated by an accused in an application for plea bargaining filed under section 265B shall not be used for any other purpose except for the purpose of this Chapter.

265L. Non-application of the Chapter

Nothing in this Chapter shall apply to any juvenile or child as defined in clause (k) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000).”

List of the Offences affect socio-economic condition

List of the Offences affect socio-economic condition

Offences affect socio-economic condition in India for the purposes of sub-section (1) of section 265A of Cr.P.C

Central Government Notification by S.O. 1042(E), dated 11th July, 2006.

PLEA BARGAINING

The list of Acts affected under sub-section (1) of section 265A of Cr.P.C

(i) Dowry Prohibition Act, 1961.
(ii) The Commission of Sati Prevention Act, 1987.
(iii) The Indecent Representation of Women (Prohibition) Act, 1986
(iv) The Immoral Traffic (Prevention) Act, 1956.
(v) The Protection of Women from Domestic Violence Act, 2005
(vi) The Infant Milk Substitutes, Feeding Bottles and Infant Foods
(Regulation of Production, Supply and Distribution) Act, 1992.
(vii) Provisions of Fruit Products Order, 1955 (issued under the
Essential Services Commodities Act, 1955).
(viii) Provisions of Meat Food Products Orders, 1973) (issued under
the Essential Commodities Act, 1955).
(ix) Offences with respect to animals that find place in Schedule I and
Part II of the Schedule II as well as offences related to altering of
boundaries of protected areas under the Wildlife (Protection) Act,
1972.
(x) The Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
(xi) Offences mentioned in the Protection of Civil Rights Act, 1955.
(xii) Offences listed in sections 23 to 28 of the Juvenile Justice (Care
and Protection of Children) Act, 2000.
(xiii) The Army Act, 1950.
(xiv) The Air Force Act, 1950.
(xv) The Navy Act, 1957.
(xvi) Offences specified in sections 59 to 81 of the Delhi Metro
Railway (Operation and Maintenance) Act, 2002.
(xvii) The Explosives Act, 1884.
(xviii) Offences specified in sections 11 to 18 of the Cable Television
Networks (Regulation) Act, 1995.
(xix) The Cinematograph Act, 1952.

Section 265A of Cr.P.C

Older Position on Plea Bargain was observed in State of Uttar Pradesh v. Chandrika JT 1999 (8) SC 481:

Concept of plea bargaining is not recognized and is against public policy under our criminal justice system. Section 320, Cr.P.C. provides for compounding of certain offences with the permission of the Court and certain others even without permission of the Court. Except the above, the concept of negotiated settlement in criminal cases is not permissible. This method of short circuiting the hearing and deciding the criminal appeals or cases involving serious offences requires no encouragement. Neither the State nor the public prosecutor nor even the Judge can bargain that evidence would not be led or appreciated in consideration of getting flee bite sentence by pleading guilty. It is settled law that on the basis of plea bargaining Court cannot dispose of criminal cases. The Court has to decide it on merits. If accused confesses his guilt, appropriate sentence is required to be imposed. Further, the approach of the Court in appeal or revisions should be to find out whether the accused is guilty or not on the basis of evidence on record. If he is guilty, appropriate sentence is required to be imposed or maintained. If the appellant or his counsel submits that he is not challenging the order of conviction, as there is sufficient evidence to connect the accused with the crime, then also the Court’s conscious must be satisfied before passing final order that the said concession is based on the evidence on record. In such cases, sentence commensurating with the crime committed by the accused is required to be imposed. Mere acceptance or admission of the guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the Court that as he is pleading guilty sentence be reduced. In the instant case the Sessions Judge, Ballia by his judgement and order convicted the respondent under Section 304, IPC and sentenced him to under go eight years R.I. Aggrieved by the said order, respondent preferred an appeal before the High Court and at the time of hearing opted not to challenge the findings of conviction, recorded by the trial Court with a view to bargain on the question of sentence. High Court accepted the bargain and allowed the appeal by observing inter alia that as the incident had taken place long back and since the appellant had been in jail for sometime, both as under-trial prisoner and as a convict, it was desirable to substitute his remaining period of jail sentence as awarded by the trial Court and altered the sentence to period already undergone. Order passed by the High Court is illegal and erroneous as same has been based on concept of plea of bargaining.

In Thippeswamy Versus State of Karnataka AIR 1983 SC 747 :

It is obvious that by reason of plea-bargaining, the appellant pleaded guilty and did not avail of the opportunity to defend himself against the charge, which is a course he would certainly not have followed if he had known that he would not be let off with a mere sentence of fine but would be sentenced to imprisonment. It would be clearly violative of Article 21 of the Constitution to induce or lead an accused to plead guilty under a promise or assurance that he would be let off lightly and then in appeal or revision, to enhance the sentence. Of course when we say this, we do not for a moment wish to suggest that the court of appeal or revision should not interfere where a disproportionately low sentence is imposed on the accused as a result of plea-bargaining. But in such a case, it would not be reasonable, fair and just to act on the plea of guilty for the purpose of enhancing the sentence. The Court of appeal or revision should, in such a case, set aside the conviction and sentence of the accused and remand the case to the trial Court so that the accused can, if he so wishes, defend himself against the charge and if he is found guilty, proper sentence can be passed against him.

In Kasambhai Abdulrehmanbhai Sheikh Versus State of Gujarat and another AIR 1980 SC 854 : (1980) 2 SCR 1037

Prevention of Food Adulteration Act, 1954—Sections 7 and 16—plea bargaining

The conviction of the appellant was based solely on the plea of guilty entered by him and this confession of guilt was the result of plea bargaining between the prosecution, the defence and the learned Magistrate. It is obvious that such conviction based on the plea of guilty entered by the appellant as a result of plea bargaining cannot be sustained. It is to our mind contrary to public policy to allow a conviction to be recorded against an accused by inducing him to confess to a plea of guilty on an allurement being held out to him that if enters a plea of guilty, he will be let off very lightly. Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of the new activist dimension of Article 21 of the Constitution.

It would have the effect of polluting the pure fount of justice, because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishment rather than go through a long and arduous criminal trial which, having regard to our cumbrous and unsatisfactory system of administration of justice, is not only long drawn out and ruinous in terms of time and money, but also uncertain and unpredictable in its result and the Judge also might be likely to be deflected from the path of duty to do justice and he might either convict an innocent accused by accepting the plea of guilty or let off a guilty accused with a light sentence, thus, subverting the process of law and frustrating the social objective and purpose of the anti adulteration statute. This practice would also tend to encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of justice. There is no doubt in our mind that the conviction of an accused based on a plea of guilty entered by him as a result of plea bargaining with the prosecution and the Magistrate must be held to be unconstitutional and illegal. The High Court should have therefore, set aside the conviction of the appellant and sent the case back to the learned Magistrate for trial in accordance with law, ignoring the plea of guilty entered by the appellant. The High Court was clearly in error in not doing so.


 

Central Bureau of Investigation etc. Vs. Mrs. Pramila Virendra Kumar Agarwal & ANR. etc 25/09/2019

The absence of sanction no doubt can be agitated at the threshold but the invalidity of the sanction is to be raised during the trial. In the instant facts, admittedly there is a sanction though the accused seek to pick holes in the manner the sanction has been granted and to claim that the same is defective which is a matter to be considered in the trial.

ACTS: Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988

SUPREME COURT OF INDIA

Central Bureau of Investigation etc. Vs. Mrs. Pramila Virendra Kumar Agarwal & ANR. etc.

[Criminal Appeal Nos. 14891490 of 2019 arising out of SLP (Criminal) Nos. 8968-8969 of 2019 arising out of Diary No. 23350/2017]

A.S. Bopanna,J.

Delay condoned.

2. Leave granted.

3. The appellant Central Bureau of Investigation (CBI) is before this Court assailing the order dated 14.12.2015 passed by the High Court of Judicature at Bombay in Criminal Revision Application Nos. 284/2013 and 323/2013. Through the said order the High Court has allowed the Criminal Revision Application No. 284/2013 and discharged the accused No. 2 and further the Criminal Revision Application No. 323/2013 filed by the appellant herein was dismissed.

4. The brief facts limited to the disposal of these appeals is that the first respondent in both these appeals, namely, Smt. Pramila Virendra Kumar Agarwal and Shri Virendra Kumar Agarwal were charged under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (‘P.C. Act’ for short) and Section 109 of IPC. The respondent No. 1 in SLP (Crl.) D.No. 23350/2017 is the wife of the respondent No.2. They are charged as accused No. 2 and accused No. 1 respectively and are proceeded against in CBI, ACB Special Case No. 21/2010. In the said proceedings both the accused filed separate applications seeking their discharge. The application of accused No. 1 Shri Virendra Kumar Agarwal was registered as Exhibit 13 while that of accused No. 2 Smt. Pramila Virendra Kumar Agarwal was registered as Exhibit 20. The Special Court on consideration of the application for discharge has allowed the application of accused No. 1 – Shri Virendra Kumar Agarwal through the order dated 15.01.2013 and discharged him from the offences charged against him under FIR No. RC 49(A)/2007:CRI:ACE:Mumbai. Insofar as the application filed by accused No. 2 Smt. Pramila Virendra Kumar Agarwal the Special Court through the order dated 22.02.2013 had rejected the application.

5. In that background the appellant herein – CBI claiming to be aggrieved by the discharge of accused No. 1 had filed the Criminal Revision Application No. 284/2013 before the High Court. The accused No. 2, Smt. Pramila Virendra Kumar Agarwal claiming to be aggrieved by the rejection of her application for discharge had filed the Criminal Revision Application No. 323/2013 before the High Court. Since both the Criminal Revision Applications were arising out of the same proceedings before the Special Court, in Special Case No. 21/2010, the High Court had clubbed and considered the same and disposed of through the common order dated 14.12.2015 by which the Revision Application of the accused No. 2 was allowed while the Revision Application of the appellant herein assailing the discharge of accused No. 1 was dismissed. It is in that light the appellant herein – CBI has instituted these appeals assailing the said common order dated 14.12.2015.

6. Heard Shri K.M. Natraj, learned Additional Solicitor General, for the appellant and Ms. Sonia Mathur, learned Senior Advocate, for the private respondents as also Shri Nishant Katneshwarkar, learned standing counsel for the State of Maharashtra and perused the appeal papers.

7. The learned Additional Solicitor General at the outset would point out that the High Court though had taken up both the Revision Applications and disposed of the same through the common order and in the operative portion has allowed the application of accused No. 2 and dismissed the Revision Application of the appellant herein, the order impugned does not indicate any reasons for consideration and disposal of the Revision Application whereby the appellants had challenged the discharge order of accused No. 1. It is further contended that the reasons as assigned by the Special Court as also the High Court for discharge of the accused on the ground that they were not provided opportunity to explain and the explanation offered is not a part of the charge sheet is not justified. It is contended that in the criminal investigation such procedure is not contemplated and as such both the Courts have committed an error.

It is also contended by the learned Additional Solicitor General that the Special Court as well as the High Court has erred in concluding that the sanction for prosecution is not done in accordance with law since that aspect can only be considered during trial and not in the manner as has been done presently since the contention was of defective sanction and not that the proceedings was without sanction. It is his case that the proceedings were initiated against the private respondents herein based on information received and when the investigation revealed disproportionate assets the charge sheet was filed in that regard. The correctness of the charge is to be established with evidence during trial and in that circumstance the discharge granted based on certain assumptions is not justified.

8. The learned senior counsel for the private respondents on the other hand sought to contend that the initial order of discharge of accused No. 1 by the Special Court and the subsequent order of discharge of accused No. 2 by the High Court is on proper consideration and the same do not call for interference. It is contended that though the prosecution has sought to charge the private respondents herein alleging that they had during the check period i.e. 01.01.1994 to 21.10.2007 accumulated assets to the tune of Rs. 1,06,89,194/- disproportionate to the known source of income, the agency has wrongly clubbed the assets of both the private respondents merely because they are husband and wife.

It is contended that both of them are employed and have their separate earning and as such the clubbing of the assets would not be justified. It is contended, in that circumstance if the individual assets of the accused No. 1 and 2 are taken into consideration the charge of accumulation of disproportionate assets would not be justified. In that light it is contended that the Special Court as also the High Court having appreciated these aspects has found the charge to be not justified.

The learned senior counsel has further sought to refer to the details of the income during the check period as also the assets of each of the accused to contend that the charge is not justified and in that circumstance if the provisions in Section 13(1)(e) of the P.C. Act is kept in view the charge was without basis. It is also the contention of the learned senior counsel that the sanction order is without application of mind and is non est since such sanction order has also been granted in the background of clubbing the income of two public servants who had independent source of income and were assessed to tax independently. Hence the learned senior counsel sought to sustain the order passed by the High Court which is impugned herein.

9. In the background of contention as urged, a perusal of the order would indicate that the High Court has not separately considered the correctness or otherwise of the order passed by the Special Court, one while rejecting the discharge application of the accused No. 2 and the other while allowing the discharge application of accused No. 1. However, a perfunctory consideration has been made by raising the question for consideration as to whether the Investigating Officer was under obligation to record explanation offered by the accused and whether such explanation should be part of the charge sheet and in that light a question is also raised as to whether the sanctions for prosecution were defective.

10. While addressing the same the High Court has referred to the decisions of this Court wherein it is held that the investigation must be fair and reasonable and that the Enquiry Officer must not act under any preconceived idea of guilt of the accused person. The judgment of the Bombay High Court in the case of N.P Lotlikar vs. C.B.I was referred to indicate that it was held therein that mere possession of assets is not an offence but failure to explain or account for the same would amount to an offence. The said decision was also relied upon since it was held therein that before registration of offence an opportunity ought to have been given to the accused to explain the source of funds for acquiring and possessing the assets.

Having taken note of the same the learned Judge of the High Court has also taken note of the submission of the learned Special Prosecutor who had pointed out that during the investigation the accused were called and their statements were recorded. However, not being satisfied with the submission to that effect, the learned Judge was of the opinion that the Investigating Officer ought to have given specific opportunity to the accused for submitting an explanation. Thus, having considered the same to be a lapse it was held that if sanctions for prosecutions were sought in that circumstance, the Sanctioning Authority would not have an opportunity to see the explanation and, therefore, sanction also would be defective.

11. Firstly, it is to be taken note that as contended by the prosecution, in the course of the investigation the accused have been summoned and their statements have been recorded which by itself is for the purpose that they were required to provide an explanation with regard to the assets which were according to the prosecution disproportionate to the known source of income. The said procedure to be followed in the course of investigation does not contemplate the consideration of the explanation in the nature of a mini trial, if not satisfactory, even before the charge sheet is filed based on the material collected and the statement recorded in the course of investigation. The details indicated in the charge sheet after making reference to the income and expenditure is as hereunder:

A) The value of the assets of the beginning of the check period as per Statement “A” 1,30,000/-

B) The value of the assets at the end of the check period as per Statement “B” 1,34,45,426/-

C) The total assets found during the check period (BA) 1,33,15.426/-

D) The total income found during the check period as per Statement “C” 51,02,106/-

E) The total expenditure during check period as per Statement “D” 24,75,874/-

F) Likely saving during check period (DE) 26,26,232/-

G) The Disproportionate assets (CF) Viz 209.50% 1,06,89,194/12.

Even if it is accepted that the above statement is on clubbing the income and assets of the husband and wife who have individual source of income, the very details furnished by the CBI before the High Court by splitting it in the individual capacity will also prima facie indicate the nature of the income and the disproportionate assets allegedly possessed by them at Rs.47,93,946/and Rs.56,75,812/- respectively.

The High Court in fact has not adverted on that aspect to arrive at a conclusion that in that circumstance even if the case as put forth by the investigating agency is taken as correct the same would not constitute an offence and, therefore, they are to be discharged, which in fact is the nature of consideration required. Further the Special Court also has merely stated that it has perused the documents and a reference in that regard is made to the document at Serial No. 3, namely, the Agreement of Sale of Flat No. A 305, Shiv Geeta Cooperative Housing Society Ltd., Vasai. In any event the conclusion reached therein had been assailed before the High Court but the High Court has not adverted to those aspects of the matter.

13. Further the issue relating to validity of the sanction for prosecution could have been considered only during trial since essentially the conclusion reached by the High Court is with regard to the defective sanction since according to the High Court, the procedure of providing opportunity for explanation was not followed which will result in the sanction being defective. In that regard, the decision in the case of Dinesh Kumar vs. Chairman, Airport Authority of India, (2012) 1 SCC 532 relied upon by the learned Additional Solicitor General would be relevant since it is held therein that there is a distinction between the absence of sanction and the alleged invalidity on account of nonapplication of mind. The absence of sanction no doubt can be agitated at the threshold but the invalidity of the sanction is to be raised during the trial. In the instant facts, admittedly there is a sanction though the accused seek to pick holes in the manner the sanction has been granted and to claim that the same is defective which is a matter to be considered in the trial.

14. In the above background, the impugned order would indicate that the High Court has not adverted to the charge made against the accused wherein the charge against the accused No. 2 is also of abetting the commission of offence by the accused No.1 and in that regard the conclusion reached by the High Court is not that the charge is not sustainable for the reasons recorded by it. In fact, neither there is any reasons recorded nor application of mind to that aspect. Insofar as the question raised and considered by the High Court, no credence whatsoever has been given to the case of the prosecution that the statement of the accused has been recorded which also forms the basis of the charge sheet and the explanation thus accorded by the accused does not provide satisfactory answer for the charge of disproportionate assets. In that regard the High Court has proceeded at a tangent and has on that basis also arrived at the conclusion that the sanction for prosecution is not proper.

15. Further it is noticed that the High Court has recorded that the statement of the accused made to the police during investigation is not admissible and the procedure adopted during investigation is found to be defective. Such conclusion would arise for consideration only during trial and if the statement made is retracted and there is no other material or evidence on record to establish the charge. Hence the very manner in which the High Court has proceeded to consider the matter is erroneous and the conclusion reached is unsustainable. The private respondents/accused in any event would have the opportunity of putting forth their defence in the trial and as such all contentions in that regard are to be left open and any of the observations herein are limited to the consideration of the applications for discharge and the same shall not prejudice the case of the accused. It is for the said reason we have not thought it appropriate to advert more into the contentions relating to the charge except for noticing the charge made relating to the disproportionate assets without stating on its correctness or otherwise.

16. In that view, the order dated 14.12.2015 passed by the High Court and order dated 15.01.2013 passed by Special Court are set aside. The proceedings in Special Case No.21 of 2010 is restored to file of the Special Court. All contentions on merits of both the sides are left open to be urged before the Special Court in accordance with law.

17. Accordingly, the appeals are allowed with no order as to cost. All pending applications shall stand disposed of.

J. (R. BANUMATHI)

J. (A.S. BOPANNA)

New Delhi,

September 25, 2019