ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

International criminal court ICC

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
PREAMBLE

The States Parties to this Statute,

Conscious that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time,

Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity,

Recognizing that such grave crimes threaten the peace, security and well-being of the world,

Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,

Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,

Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations,

Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State,

Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole,

Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions,

Resolved to guarantee lasting respect for and the enforcement of international justice,

Have agreed as follows

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THE EXIT FROM PAKISTAN (CONTROL) ORDINANCE, 1981

THE EXIT FROM PAKISTAN (CONTROL) ORDINANCE, 1981
(XLVI OF 1981)

[21st December, 1981]

An Ordinance to provide for the control of exit of certain persons from Pakistan.
Whereas it is expedient to provide for the control of exit of certain persons from Pakistan.

And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action:

Now, therefore, in pursuance of the Proclamation of the Fifth day of July, 1977, read with
the Provisional Constitution Order, 1981(CMLA Order No 1 of 1981) and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:

1. Short title, extent and commencement.— (1) This Ordinance may be called the Exit from Pakistan (Control) Ordinance, 1981.

(2) It extends to the whole of Pakistan.

(3) It shall come into force at once.

2. Power to prohibit exit from Pakistan.— (1) The Federal Government may, by order,
prohibit any person or class of persons from proceeding from Pakistan to a destination outside Pakistan, notwithstanding the fact that such person is in possession of valid travel documents.

(2) Before making an order under sub-section (1), the Federal Government shall not be
necessary to afford an opportunity of showing cause to the person against the order.

(3) If, while making an order under sub-section (1) it appear to the Federal Government
that it will not be in the public interest to specify the ground on which the order is proposed to be made, it shall not be necessary for the Federal Government to specify such grounds.

3. Review.— (1) Any person aggrieved by an order of the Federal Government under subsection (1) of section 2 may, within fifteen days of the making of the order, make a representation to the Federal Government for a review of the order, setting out in the representation the grounds on which he seeks the review.

(2) The Federal Government may, after giving the person making a representation an
opportunity of being heard, make such order as it may deem fit.

(3) Subject to the order of the Federal Government in review, an order under subsection (1) of section 2 shall be final and shall not be called in question before any courts or other authority.

4. Punishment.— Whoever contravenes, or attempts or conspires to contravene, or abets
the contravention of, any order made under sub-section (1) of section 2 shall be punishable with imprisonment for a term which may extend to five years.

5. Power to make rules.— The Federal Government may, by notification in the official
Gazette, make rules for carrying out the purposes of this Ordinance.

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.

Calcutta High Court ordered for verifiable independent expert opinion on Police Investigation Report-15/11/2019

Facts: A person who was employed as an officer in the Sashatra Seema Bal ( under Ministry of Home Affairs) and was heading the intelligence wing of the department was murdered on 17.04.2018 while on duty. He was posted in Panitanki (Indo- Nepal Border) and mainly entrusted with the job of collecting intelligence reports relating to cross border trafficking, smuggling of narcotics etc. Being in the Intelligence department, he was in possession of several vital information relating to smugglers operating in that area and probably due to that reason he was murdered by the miscreants. His corpse was found near a railway track in the Panitanki area. An U/D case by GRPS was initiated. After 30 days, an FIR was registered u/s 304 stating that the death was due to a railway accident. Police never entertained the grievance of the deceased’s family members and were hell-bent from the beginning to show the death as accidental and not homicidal. The Post mortem report clearly stated that the death was due to sudden hit with sharp weapons and the death was certainly not accidental. Further, the injuries were ante-mortem in nature.

Family members prayed for the addition of Section 302 before the ACJM, Siliguri and upon order of the ACJM, 302 was added. There was no progress in the investigation till then.

A writ petition was filed praying for transfer of investigation to the CBI or any other independent agency of similar stature. On different occasions before the high court, the IO prayed for time to file a progress report. On the last occasion, Justice Moushumi Bhattacharya directed to file a completion report of investigation in 4 weeks. Yesterday,the matter was moved before justice Subrata Talukder. Meanwhile, the IO submitted a final report stating the incident as accidental and also filed that report before the High Court yesterday. Justice Talukder passed an order that an independent 3rd party opinion relating to the investigation done by police so far, is required to ascertain whether the investigation was tainted or not and directed me to give name of any independent agency to which the records can be transferred to test the authenticity/quality of investigation done by police so far. Only after the expert opinion is obtained, the court will decide whether a further investigation by any other investigating authority is required or not.

Such kind of direction seems quite unusual.


The text of the Order as below :

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.

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

 

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]

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.


Sudam @ Rahul Kaniram Jadhav Vs. State of Maharashtra-01/10/2019

SUPREME COURT OF INDIA JUDGMENTS

Scope of the review jurisdiction of Supreme Court in criminal proceedings

Rejection of a review petition could never be completely reconsidered in curative jurisdiction

  • The entire case of the prosecution is built upon circumstantial evidence.
  •  SC committed an error apparent on the face of the record in placing reliance upon the extra judicial confession allegedly made by the Petitioner before PW-6, by noting that such evidence had been relied upon by the Courts below, when in fact it had been rightly rejected by the Trial Court.
  • The Criminal review petitions are allowed to the extent that the sentence of death awarded to the Petitioner is commuted to imprisonment for the remainder of his life sans any right to remission.

REVIEW OF JUDGMENT: Review proceedings pertain to Review Petition (Cri.) No. D19901 of 2012 seeking to review the final judgment and order dated 04.07.2011 passed by this Court in Criminal Appeal Nos. 185-86 of 2011 dismissing the appeal filed by the Review Petitioner (in short “the Petitioner”) and confirming his conviction under Sections 201 and 302 of the Indian Penal Code (in short, “IPC”). Vide the impugned judgment, this Court upheld the sentence under Section 201, IPC and the death sentence under Section 302, IPC imposed upon the Petitioner.

Act: Sections 201 and 302 of the Indian Penal Code

BENCH: J. N.V. Ramana, J. Mohan M. Shantanagoudar,  J. Indira Banerjee

SUPREME COURT OF INDIA

Sudam @ Rahul Kaniram Jadhav Vs. State of Maharashtra

[Review Petition (CRL.) Nos. 401-402 of 2012 in Criminal Appeal Nos. 185-186 of 2011]

MOHAN M. SHANTANAGOUDAR, J.

The instant review proceedings pertain to Review Petition (Cri.) No. D19901 of 2012 seeking to review the final judgment and order dated 04.07.2011 passed by this Court in Criminal Appeal Nos. 185-86 of 2011 dismissing the appeal filed by the Review Petitioner (in short “the Petitioner”) and confirming his conviction under Sections 201 and 302 of the Indian Penal Code (in short, “IPC”). Vide the impugned judgment, this Court upheld the sentence under Section 201, IPC and the death sentence under Section 302, IPC imposed upon the Petitioner.

2. The brief facts pertaining to this case are as follows:

2.1 On the morning of 21.08.2007, the bodies of four children were discovered floating in the village pond (known as Juna Pani talav) in the village of Rupla Naik Tanda, District Nanded, Maharashtra. A male child aged six years along with a female child aged ten years were found tied together, and a female child aged ten months along with a male child of two to four years, were found tied separately. The body of an unidentified woman with a mangalsutra on her neck was also subsequently discovered below a nearby boulder by the police. The deceased persons were eventually identified as Anita, the daughter of one Maroti Madavi, the two children born to her from her first husband and the two children born to her from the Petitioner. The Petitioner was found by the police on 24.08.2007, but is alleged to have absconded subsequently, and was arrested only on 22.09.2007.

3. The investigation revealed that the deceased Anita had been living with the Petitioner as his wife and had come to know about his marriage with PW-6 Muktabai. The deceased was opposed to this relationship, which led to a serious dispute amongst the three of them. The Petitioner allegedly divorced PW-6, and agreed to pay her a sum of Rs. 15,000/-, which the deceased Anita promised to bear. Thereafter, PW-6 went to her village, and the Petitioner, the deceased Anita and her four children came to the village of Juna Pani, where, because of the strained relationship with his wife, the Petitioner murdered her and the four children by strangulating them.

4. The principal evidence put forth by the prosecution against the Petitioner includes the motive of the accused, the evidence put forth by PW-8 Prahlad that the deceased were last seen with the Petitioner, and that of PW-6 Muktabai and PW-9 Ishwar with respect to the extra-judicial confessions made to them by the Petitioner. The Trial Court convicted the Petitioner for the offences stated supra on the basis of the last seen circumstance as deposed to by PW-8; the motive of the accused as deposed to by PW-5, the mother of the deceased Anita; the extra-judicial confession made by the Petitioner to PW-9 Ishwar; the fact that the Petitioner had absconded after the commission of the offence; and his failure to explain the circumstances leading to the homicidal deaths of the deceased. The High Court confirmed the conviction and sentence as awarded by the Trial Court, including the sentence of death, holding that the case at hand falls into the category of the rarest of rare cases warranting punishment with death. This Court, in appeal, confirmed the same.

5. Review Petition (Cri.) No. D19901 of 2012 filed by the Petitioner against the above judgment and order of this Court was dismissed by circulation vide order dated 26.07.2012. A criminal miscellaneous petition was filed by the Petitioner seeking reopening of this review petition, placing reliance on the decision of this Court in Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India , (2014) 9 SCC 737, which held that in light of Article 21 of the Indian Constitution, review petitions arising out of appeals where the death sentence had been affirmed were required to be heard orally by a 3-Judge Bench, and specifically permitted the reopening of review petitions in all cases where review petitions had been dismissed by circulation. This Court subsequently recalled the order dated 26.07.2012 passed in Review Petition No. D19901/2012 and permitted the re-hearing of such petition in open Court.

6. Learned counsel for the Petitioner, Ms. Nitya Ramakrishnan, argued for the acquittal of the Petitioner, contending that there are various infirmities in how the material on record has been appreciated by the Courts, in addition to highlighting errors apparent on the face of the record. The broad thrust of her argument was that the entire case was built on circumstantial evidence, i.e. the “last seen” evidence, two purported extra-judicial confessions, and the motive of the Petitioner, all of which were erroneously relied upon.

6.1 Thus, she virtually seeks a re-appreciation of the entire evidence, submitting that it is permissible to raise any additional ground at the stage of review. To make this submission, learned Counsel relied on the permission given by this Court to the petitioner in Md. Arif @ Ashfaq v. Registrar, Supreme Court of India , vide order dated 19.01.2016 passed in Review Petition (Criminal) No. 692 of 2015 in Writ Petition (Criminal) No. 77 of 2014, to raise any additional ground as may be legally permissible in the rehearing of his review petition. The relevant observation from the said order is reproduced below: “We permit the petitioner to raise all such additional grounds in support of the said review petition as may be legally permissible to him.”

6.2 We would like to deal with this argument raised by learned Counsel for the Petitioner at this juncture itself. It has been well-settled by a catena of decisions of this Court that review proceedings cannot be treated as an appeal in disguise. Particularly, in criminal proceedings, the scope of review jurisdiction of this Court is guided by Article 137 of the Indian Constitution as well as Order XL Rule 10 of the Supreme Court Rules, 1966, which permit the Court to correct miscarriage of justice caused by an error apparent on the face of the record. In this regard, it would be fruitful to refer to the decision of this Court in Vikram Singh v. State of Punjab, (2017) 8 SCC 518, where the Court was re-hearing a review petition against the award of the death penalty to the review petitioner therein, pursuant to the decision in Md. Arif @ Ashfaq v. The Registrar, Supreme Court (supra). In this decision, after comprehensively explaining the scope of the review jurisdiction of this Court in criminal proceedings and revisiting its earlier decisions on this aspect, including P.N. Eswara Iyer v. The Supreme Court, (1980) 2 SCR 889 and Suthendraraja v. State, (1999) 9 SCC 323, this Court concluded as follows:

“23. In view of the above, it is clear that scope, ambit and parameters of review jurisdiction are well defined. Normally in a criminal proceeding, review applications cannot be entertained except on the ground of error apparent on the face of the record. Further, the power given to this Court under Article 137 is wider and in an appropriate case can be exercised to mitigate a manifest injustice. By review application an applicant cannot be allowed to reargue the appeal on the grounds which were urged at the time of the hearing of the criminal appeal. Even if the applicant succeeds in establishing that there may be another view possible on the conviction or sentence of the accused that is not a sufficient ground for review. This Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in the earlier decision due to judicial fallibility. There has to be an error apparent on the face of the record leading to miscarriage of justice to exercise the review jurisdiction under Article 137 read with Order 40 Rule 1. There has to be a material error manifest on the face of the record with results in the miscarriage of justice.”

(emphasis supplied)

6.3 We prefer not to burden this judgment with further discussion on this issue. Suffice it to say that there can be no argument that this Court cannot re-appreciate evidence in its entirety in the exercise of its review jurisdiction. Furthermore, it is evident that the reference to “additional grounds” in the observations in the order dated 31.10.2018 in Md. Arif @ Ashfaq v. State (NCT of Delhi) (supra) reproduced above pertains to additional grounds which could have been raised by the review petitioner before this Court in the exercise of its review jurisdiction and had not been raised when the review petition had originally been filed before this Court.

6.4 In fact, a reading of the entire order reveals that the Court at that juncture was dealing with a criminal miscellaneous application seeking that the scope of the permission granted by this Court in Md. Arif @ Ashfaq v. The Registrar, Supreme Court (supra) to re-hear review petitions dismissed vide circulation be extended to also include cases where a curative petition had been dismissed vide circulation after the dismissal of review, since this category of cases had been specifically denied the relief of re-hearing by the Court. With particular regard for the fact that the petitioner therein was the only person to be denied an open Court hearing due to this limitation, and in light of the limited grounds on which a curative petition could be filed, which meant that the rejection of a review petition could never be completely reconsidered in curative jurisdiction, this Court in its order dated 31.10.2018 extended the relief of re-hearing to dismissed curative petitions as well. It was while doing so that the observations that have been relied upon by learned Counsel for the Petitioner came to be passed.

6.5 In view of the above discussion, we are constrained to reject the contention raised by learned Counsel for the Petitioner that the above observations have created a window for this Court to re-appreciate the entire evidence on record while hearing review petitions. The submissions of learned Counsel for the Petitioner have to be considered keeping the above discussion in mind.

7. With respect to the evidence for the circumstance of “last seen”, learned Counsel led us through the evidence of PW-8 Prahlad to point out the inherent improbabilities in his testimony, pointing out that he had testified that his statement was recorded by the police on 19.8.2007, whereas the bodies of the deceased were discovered only on 21.8.2007. She argued that the Trial Court had erroneously supplied possible reasons to explain this incongruity, which went to the root of the matter, since PW-8 is a timeline witness, especially in the absence of any re-examination in this regard.

7.1 With regard to the evidence of PW-9 Ishwar, one of the witnesses for the extra-judicial confessions, it was argued that since his statement was only recorded on 30.11.2007, there was a high likelihood of concoction of evidence, rendering it unreliable. She also contended that there was a complete absence of any semblance of a timeline in PW-9’s testimony, which also materially contradicted the “last seen” testimony, inasmuch as PW-9 deposed that he saw the Petitioner with his wife and children four to five days before the purported extra judicial confession was made.

7.2 Coming to the second extra judicial confession, learned Counsel pointed out that the High Court and this Court had erred in relying on the testimony of PW-6 regarding the confession made by the Petitioner to her over a mobile phone conversation, by ignoring the admission to the contrary made in the cross-examination. The testimony of PW-6 pertaining to the extra-judicial confession had been correctly discarded by the Trial Court on this basis. The Trial Court had further found such testimony unreliable due to non-corroboration by call records. It was contended that the High Court and this Court had both overlooked this aspect and wrongly relied on this extra-judicial confession, and this Court had even gone on to incorrectly note that the Trial Court had relied on the confession, which was an error apparent on the face of the record.

7.3 It was further submitted that PW-13, the Investigation Officer had deposed that he had not obtained the call records of PW-9’s mobile (to which the Petitioner had allegedly made calls and over which he had allegedly made the extra-judicial confession to PW-6) even though he deposed in the same breath that he had called for the same but could not obtain them. In such a situation, the Court was entitled to proceed on the basis that such evidence had not been adduced even though it could have been, and on that basis draw an adverse inference against the prosecution under Section 114 of the Evidence Act, 1872.

7.4 With respect to the motive, it was submitted that the motive for the commission of the offence was weak since the dispute between the Petitioner and the deceased Anita regarding the Petitioner’s relationship with PW-6 Muktabai had already been settled.

7.5 She therefore argued that there was no reliable evidence connecting the Petitioner to the crime, in the absence of direct or forensic evidence.

7.6 On the aspect of sentencing, learned Counsel argued that the Petitioner had no previous record of bad behaviour, and further that the death penalty may not be imposed for a conviction based solely on circumstantial evidence. It was further submitted that this Court, while imposing the death penalty, had travelled beyond the record to observe that the face of the deceased had been crushed with a stone, which had unfairly prejudiced the Court.

8. Learned counsel for the Respondent, i.e. the State of Maharashtra, Mr. Nishant Ramakantrao Katneshwarkar, on the other hand, argued in favour of the judgments rendered by the Courts. In particular, he stressed that even if part of the testimony of PW-6 had been misread by the Courts, her evidence against the Petitioner remained unshaken on other aspects, such as motive, since she had deposed that the Petitioner had admitted to her that he had been harassing Anita. He also highlighted that as per the Post Mortem Report (Exh. P-43) of the deceased Anita, as spoken to by the examining doctor PW-4, the probable cause of her death was asphyxia due to throttling, and PW-4 had specifically denied the possibility of self-strangulation.

8.1 On the aspect of sentencing, he argued that in light of the menace posed to society, even if the death penalty were to be commuted, a minimum mandatory sentence of 30 years must be imposed upon the Petitioner.

9. We have perused the record of the case after hearing the learned Counsel on either side.

10. At the outset, it is important to note that the entire case of the prosecution is built upon circumstantial evidence. As already mentioned supra, this Court, in appeal, affirmed the findings of the Courts below regarding the conviction of the Petitioner. For the reasons already noted above, we cannot delve into the submissions of either party that pertain to appreciation of evidence anew. However, we deem it appropriate to briefly refer to the evidence on record, i.e. the circumstance of the Petitioner being last seen with the deceased as deposed by PW-8, the extra judicial confessions made to PWs 6 and 9, and the motive of the Petitioner.

11. The “last seen” circumstance is spoken to by PW-8 Prahlad, who deposed that on 19.08.2007, when he was at his house, the Petitioner along with his wife and four children came to his house and asked for water, and further that though he requested the Petitioner to stay back, the Petitioner left with his family. 12. PW-9 Ishwar’s testimony pertains to an extra judicial confession, as he deposed that the Petitioner had confessed before him that he had strangulated the four children and the deceased Anita to death, and thrown their bodies in the pond, as Anita was harassing him.

13. The deposition of PW-5, Anusayabai, the mother of the deceased Anita, as well as that of PW-6 Muktabai, is pertinent with respect to the motive of the Petitioner to commit the murders. As per PW-5, her daughter bore two children with her first husband Anil Gedam, but Anita started living with the Petitioner after Anil deserted her. PW-5 deposed that the Petitioner had married PW-6 Muktabai, and that the Petitioner had committed the murder of Anita and her children on account of the dispute caused by the Petitioner’s marriage with PW-6. 13.1 PW-6 Muktabai, in her turn, deposed that a few days after her marriage with the Petitioner, while they were visiting PW-6’s parental village, Anita had visited them, claiming that the Petitioner was her husband and they had two children together, and went to the Police Station with the Petitioner. However, only Anita returned, saying that the Petitioner had run away, and subsequently stayed for a few days with PW-6. A few days after Anita had left, the Petitioner returned to PW-6, and revealed that Anita was harassing him, also admitting that he had two children with her. He later got arrested and Anita got him released. After a few days, Anita again confronted PW- 6 and the Petitioner, who offered to maintain both women, but Anita was not amenable to the offer. The Petitioner then wrote PW-6 a divorce, and Anita agreed to pay Rs. 15,000/- to PW-6.

14. We are of the considered opinion that there is no ground for interference with any finding of the Courts with respect to the appreciation of the testimony relating to the “last seen” circumstance, the extra judicial confession made to PW-9, and the motive of the Petitioner.

14.1 However, crucially, this Court, in appeal, also relied upon the deposition of PW-6 with respect to the extra-judicial confession made to her, inasmuch as she deposed in her examination-in-chief that the Petitioner had confessed to her over a telephonic call that he had murdered the deceased. However, it is clear that the Court omitted to appreciate that PW-6 had admitted in her cross-examination that the Petitioner had not told her that he had murdered the deceased, which in fact was a reason for the Trial Court to not rely on her testimony. Thus, we find substance in the submission of the learned Counsel for the Petitioner that this Court committed an error apparent on the face of the record in placing reliance upon the extra judicial confession allegedly made by the Petitioner before PW-6, by noting that such evidence had been relied upon by the Courts below, when in fact it had been rightly rejected by the Trial Court.

15. There is yet another crucial aspect of the matter that we must turn our attention to. We find strength in the submission made by the Counsel for the Petitioner that this Court, in determining the correctness of the quantum of sentence assessed by the High Court, while noting that the offence appeared to be premeditated and well-planned, erroneously observed that the Petitioner had crushed the face of the deceased Anita to avoid identification. We find that this observation is unsupported by the medical evidence on record. PW-4, the doctor who conducted the post-mortem (at Exh. P- 25) on Anita’s body, only deposed to the presence of contused lacerated wounds on her face. There is no evidence to the effect that her face was marred beyond recognition or that there appeared to be any attempt to do so. We find that this is yet another error apparent on the face of the record.

16. Having found there have been errors apparent on the face of the record in the appreciation of evidence by this Court in appeal, we must now consider the effect thereof on the conviction as well as on the sentence awarded. We find it worth repeating that we do not seek to re-appreciate the evidence on record, and merely wish to determine whether the evidence as assessed by this Court in appeal, keeping aside the extra-judicial confession to PW-6, was sufficient to affirm the finding of guilt and the award of the punishment of death to the Petitioner.

17. As noted previously, the evidence relied upon in the instant case is purely circumstantial, including the motive to commit the offence, the circumstance of the deceased being last seen with the Petitioner, and two extra-judicial confessions. Thus, keeping aside the extra-judicial confession to PW-6, it is evident that evidence as to the circumstance of motive, the “last seen” circumstance as well as one extra-judicial confession still survive. It is our considered view that the chain of circumstances establishing the guilt of the Petitioner beyond reasonable doubt is not materially affected even if we discard one of the two extra-judicial confessions. Thus, we find that this Court rightly affirmed the conviction of the Petitioner under Sections 302 and 201, IPC, and there is no cause for us to interfere with such finding of guilt in the exercise of our review jurisdiction.

18. We must now turn our attention to the question of whether the evidence on record, apart from the extra-judicial confession to PW-6 and the observation pertaining to the facial injuries of the deceased Anita, is sufficient to affirm the death sentence awarded to the Petitioner.

18.1 At this juncture, it must be noted that though it may be a relevant consideration in sentencing that the evidence in a given case is circumstantial in nature, there is no bar on the award of the death sentence in cases based upon such evidence (see Swamy Shraddananda v. State of Karnataka, (2007) 12 SCC 288; Ramesh v. State of Rajasthan, (2011) 3 SCC 685).

18.2 In such a situation, it is up to the Court to determine whether the accused may be sentenced to death upon the strength of circumstantial evidence, given the peculiar facts and circumstances of each case, while assessing all the relevant aggravating circumstances of the crime, such as its brutality, enormity and premeditated nature, and mitigating circumstances of the accused, such as his socio-economic background, age, extreme emotional disturbance at the time of commission of the offence, and so on.

18.3 In this regard, it would also be pertinent to refer to the discussion in Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747, where this Court elaborated upon the concept of “residual doubt”-which simply means that in spite of being convinced of the guilt of the accused beyond reasonable doubt, the Court may harbour lingering or residual doubts in its mind regarding such guilt. This Court noted that the existence of residual doubt was a ground sometimes urged before American Courts as a mitigating circumstance with respect to imposing the death sentence, and noted as follows:

“33. In California v. Brown [93 L Ed 2d 934 : 479 US 538 (1987)] and other cases, the US courts took the view, “residual doubt” is not a fact about the defendant or the circumstances of the crime, but a lingering uncertainty about facts, a state of mind that exists somewhere between “beyond a reasonable doubt” and “absolute certainty”. The petitioner’s “residual doubt” claim is that the States must permit capital sentencing bodies to demand proof of guilt to “an absolute certainty” before imposing the death sentence. Nothing in our cases mandates the imposition of this heightened burden of proof at capital sentencing.

34. We also, in this country, as already indicated, expect the prosecution to prove its case beyond reasonable doubt, but not with “absolute certainty”. But, in between “reasonable doubt” and “absolute certainty”, a decision-maker’s mind may wander, possibly in a given case he may go for “absolute certainty” so as to award death sentence, short of that he may go for “beyond reasonable doubt”. Suffice it to say, so far as the present case is concerned, we entertained a lingering doubt as to whether the appellant alone could have executed the crime single-handedly, especially when the prosecution itself says that it was the handiwork of a large group of people. If that be so, in our view, the crime perpetrated by a group of people in an extremely brutal, grotesque and dastardly manner, could not have been thrown upon the appellant alone without charge-sheeting other group of persons numbering around 35. All the element test as well as the residual doubt test, in a given case, may favour the accused, as a mitigating factor.”

(emphasis added)

18.4 While the concept of “residual doubt” has undoubtedly not been given much attention in Indian capital sentencing jurisprudence, the fact remains that this Court has on several occasions held the quality of evidence to a higher standard for passing the irrevocable sentence of death than that which governs conviction, that is to say, it has found it unsafe to award the death penalty for convictions based on the nature of the circumstantial evidence on record. In fact, this question was given some attention in a recent decision by this Bench, in Md. Mannan @ Abdul Mannan v. State of Bihar, R.P. (Crl.) No. 308/2011 in Crl. A. No. 379/2009 (decision dated February 14, 2019), where we found it unsafe to affirm the death penalty awarded to the accused in light of the nature of the evidence on record, though the conviction had been affirmed on the basis of circumstantial evidence. 18.5 In Md. Mannan (supra), this Court affirmed the proposition that the quality of evidence is a relevant circumstance in the sentencing analysis, referring to the following observations of this Court in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498:

“56. At this stage, Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] informs the content of the sentencing hearing. The court must play a proactive role to record all relevant information at this stage. Some of the information relating to crime can be culled out from the phase prior to sentencing hearing. This information would include aspects relating to the nature, motive and impact of crime, culpability of convict, etc. Quality of evidence adduced is also a relevant factor. For instance, extent of reliance on circumstantial evidence or child witness plays an important role in the sentencing analysis. But what is sorely lacking, in most capital sentencing cases, is information relating to characteristics and socio-economic background of the offender. This issue was also raised in the 48th Report of the Law Commission.”

(emphasis added)

18.6 The Court also relied on Ramesh v. State of Rajasthan (supra) and Ram Deo Prasad v. State of Bihar, (2013) 7 SCC 725, which follow Bariyar (supra) in this respect, and referred to Sushil Sharma v. State (NCT of Delhi), (2014) 4 SCC 317, Kalu Khan v. State of Rajasthan, (2015) 16 SCC 492 and Sebastian @ Chevithiyan v. State of Kerala, (2010) 1 SCC 58, where a similar position has been adopted.

18.7 We find it pertinent to observe that the above trend only affirms the “prudence doctrine” enunciated by this Court in Bachan Singh v. State of Punjab, (1980) 2 SCC 684. In this regard, we may refer to the following observations made in Bariyar (supra):

“149. Principle of prudence, enunciated by Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] is sound counsel on this count which shall stand us in good stead-whenever in the given circumstances, there is difference of opinion with respect to any sentencing prop (sic)/rationale, or subjectivity involved in the determining factors, or lack of thoroughness in complying with the sentencing procedure, it would be advisable to fall in favour of the “rule” of life imprisonment rather than invoking the “exception” of death punishment.”

18.8 The Court in Bariyar (supra) further observed that the irrevocable punishment of death must only be imposed when there is no other alternative, and asserted that in cases resting on circumstantial evidence, the doctrine of prudence should be invoked:

“167. The entire prosecution case hinges on the evidence of the approver. For the purpose of imposing death penalty, that factor may have to be kept in mind. We will assume that in Swamy Shraddananda (2), this Court did not lay down a firm law that in a case involving circumstantial evidence, imposition of death penalty would not be permissible. But, even in relation thereto the question which would arise would be whether in arriving at a conclusion some surmises, some hypothesis would be necessary in regard to the manner in which the offence was committed as contradistinguished from a case where the manner of occurrence had no role to play. Even where sentence of death is to be imposed on the basis of circumstantial evidence, the circumstantial evidence must be such which leads to an exceptional case.

168. We must, however, add that in a case of this nature where the entire prosecution case revolves round the statement of an approver or is dependent upon the circumstantial evidence, the prudence doctrine should be invoked. For the aforementioned purpose, at the stage of sentencing evaluation of evidence would not be permissible, the courts not only have to solely depend upon the findings arrived at for the purpose of recording a judgment of conviction, but also consider the matter keeping in view the evidences which have been brought on record on behalf of the parties and in particular the accused for imposition of a lesser punishment…”

(emphasis added)

18.9 In light of the above discussion, we find it appropriate to gauge, in the exercise of our review jurisdiction, whether there is a reasonable probability that this Court, in appeal, on the strength of the evidence on record as it stands, without the errors apparent on the face of the record, would have concluded that the balance of aggravating and mitigating circumstances lies in favour of preserving the Petitioner’s life. Such probability would be sufficient to set aside the sentence of death affirmed by this Court, in light of the doctrine of prudence, which really only reflects the dictum of this Court in Bachan Singh (supra) that the Court must keep in mind while awarding the punishment of death that the alternative option, i.e. imposition of life imprisonment, must be unquestionably foreclosed.

19. We make it clear that we do not wish to re-enter into an appreciation of the aggravating and mitigating circumstances relied upon by the Courts until this stage to award the death sentence to the Petitioner. However, before proceeding further, we would like to briefly revisit the sentencing assessment already done by this Court in appeal. While arriving at the conclusion that the instant case fell into the category of the rarest of rare cases, this Court took into account the premeditated nature of the crime, and its brutal and barbaric nature, observing that the same was sufficient to shock the collective conscience of the society. The Court also opined that the Petitioner was a menace to society and could not be reformed, and that lesser punishment would expose society to peril at his hands.

20. Evidently, even the fact that the evidence was circumstantial in nature did not weigh very heavily on the Court’s mind, let alone the strength and nature of the circumstantial evidence. Be that as it may, we find that the material on record is sufficient to convince the Court of the Petitioner’s guilt beyond reasonable doubt; however, the nature of the circumstantial evidence in this case amounts to a mitigating circumstance significant enough to tilt the balance of aggravating and mitigating circumstances in the Petitioner’s favour, keeping in mind the doctrine of prudence. Moreover, it is also possible that the incorrect observations pertaining to Anita’s facial injuries further led the Court to conclude in favour of imposing the death sentence on the Petitioner. Thus, we are of the considered opinion that there was a reasonable probability that this Court would have set aside the sentence of death in appeal, since the only surviving evidence against the Petitioner herein pertains to his motive to commit the crime, the circumstance of “last seen” and a solitary extra-judicial confession. In other words, it cannot be said that the punishment of life imprisonment is unquestionably foreclosed in the instant case, in spite of the gravity and barbarity of the offence.

21. We are thus compelled to conclude that the award of the death penalty in the instant case, based on the evidence on record, cannot be upheld.

22. At the same time, we conclude that a sentence of life imprisonment simpliciter would be inadequate in the instant case, given the gruesome nature of the offence, and the menace posed to society at large by the Petitioner, as evinced by the conduct of the Petitioner in jail. As per the report submitted in pursuance of the order of this Court dated 31.10.2018, it has been brought on record that the conduct of the Petitioner in jail has been unsatisfactory, and that he gets aggressive and indulges in illegal activities in prison, intentionally abusing prisoners and prison staff and provoking fights with other prisoners. Two FIRs have also been registered against the Petitioner for abusing and threatening the Superintendent of the Nagpur Central Prison.

22.1 As this Court has already held in a catena of decisions, by way of a via media between life imprisonment simpliciter and the death sentence, it may be appropriate to impose a restriction on the Petitioner’s right to remission of the sentence of life imprisonment, which usually works out to 14 years in prison upon remission. We may fruitfully refer to the decisions in Swamy Shraddhananda (2) v. State of Karnataka, (2008) 13 SCC 767 and Union of India v. V. Sriharan, (2016) 7 SCC 1, in this regard. We therefore direct that the Petitioner shall remain in prison for the remainder of his life.

23. In light of the above discussion, the review petitions are allowed to the extent that the sentence of death awarded to the Petitioner is commuted to imprisonment for the remainder of his life sans any right to remission.

J. (N.V. Ramana)

J. (Mohan M. Shantanagoudar)

J. (Indira Banerjee)

New Delhi;

October 01, 2019

Assam Jail Manual

ASSAM PRISONS ACT, 2013
The Good Conduct Prisoners’ Probational Release Act, 1938 (Assam Act II of 1938)
The Prisoners (Attendance in Court) Act, 1955 (Central Act XXIX of 1955)
The Transfer of Prisoners Act, 1950 (Central Act XXIX of 1950)
The Prisoners Act, 1900 (Central Act III of 1900)
The Prisons Act, 1894

Rules for Superintendence and Management of Jails in the State of Assam
Assam Jail Service Rules, 1986
Assam Prisons (Leave & Emergency Release) Rules, 1968
Rules under the Good Conduct Prisoners’ Probational Release Act, 1938