CPC Case Brief – SBI v. Emmsons International (First appeal)

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This is a case regarding first appeal mainly covered under section 96 of the CPC.

Facts: Most of the facts are not relevant to our course, but it needs to be understood that Emmsons, plaintiff, filed a case against SBI, defendant, in the trial for payment of Letter of Credit. The trial court framed 5 issues that needed to be considered for resolving its dispute. The trial court gave its order and then the decision was appealed by the aggrieved party to the High Court. The High Court reversed the order of the Trial court without passing judgment on the fifth issue in the case. The case has been appealed to the Supreme Court.

If you read from para 19 onwards it is clear that the SC is pissed off at the fact that the HC is not appreciated the case before and has been ignorant of the issues at hand.

SC quotes section 96 and a bunch of other cases and says that the High Court being the court of the first appeal ought to have appreciated the evidence at hand decided the case addressed all issues of fact and law before reversing the order of the trial court. SC said that the HC failed to exercise its jurisdiction under section 96 of the code and hence the judgement of the HC was reversed and a fresh hearing of the case ordered.

Below is the court’s justification verbatim: “The first appeal has to be decided on facts as well as on law. In the first appeal, parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on the law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title………”. In our view, the High Court failed to follow the fundamental rule governing the exercise of its jurisdiction under Section 96 of the Code of Civil Procedure, 1908 that where the first appellate court reverses the judgment of the trial court, it is required to consider all the issues of law and fact. This flaw vitiates the entire judgment of the High Court. The judgment of the High Court, therefore, cannot be sustained.

For the above reasons, we accept the appeal, set aside the impugned judgment of the High Court and restore First Appeal No. 225 of 2002 for rehearing and fresh decision. All contentions of the parties are kept open to be agitated at the time of the hearing of the first appeal. No order as to costs.

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CPC Case Brief – Sundar Bai v Devaji (Litigating under the same title rule for S. 11)

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Facts: – Devrao had two wives Sunderbai and Rangubahi . He had a son by name Shankar born to him by his wife Rangubai who died in about 1893. Shankar died in about 1902 leaving him surviving his widow Gangabai. Devarao died in the year 1904 leaving him surviving his widow Sunderabai, the Defendant 1. Devarao Was the sole surviving coparcener of the family and after his death the Defendant 1(Sunderabai) and Gangabai the widow of his pre-deceased son Shankar were the only two members of the family surviving. Gangabai adopted Devaji the plaintiff as a son to her deceased husband Shankar on or about the 18th February, 1934, and disputes arose between Gangabai and the plaintiff ( Devaji) on the one hand and the Defendant 1 ( Sunderbai ) on the other in regard to the validity of the adoption of the Plaintiff.( Devaji )

The dispute was referred to arbitrator who declared the following award

  • It is declared that the adoption of the plaintiff is not valid.
  • It is declared that the right of adoption is lost to Gangabai from the very beginning.
  • It is declared that the Plaintiff is not and can never become entitled to the property belonging to the family of Devarao Bapuji Deshpande.
  • Nevertheless, with the object of maintaining peace and good-will and affection in the family and the Defendant 1 (Sunderbai ) shall pay to the plaintiff rupees 8,000, eight thousand in one lump sum
  • The decree for maintenance obtained by Gangabai against the Defendant 1( Sunderbai ) shall continue permanently.

The Court made a consent decree accordingly on application filed by both the parties on 6th August, 1937 . Acting on some lawyer advice Gangabai again adopted the Devaji on 12th December, 1943 Coming to know of this adoption, the Sunder bai adopted her daughter’s son, Jivaji, the Defendant 2 as a son to her deceased husband Devarao. In regard of which Plaintiff/ Respondent, Devaji filed a suit for claiming possession of the properties belonging to the family in capacity of an adopted son to deceased Shankar. The Defendant 1/ Appellant in the written statement contended the plea of “Doctrine of Res- Judicata”

Issue :  Whether the present suit was barred by ‘res judicata’ by reason of the consent decree

Holding : Court held that the plaintiff, Devaji was “ Litigating under the Same title” .

Referring to ratio of Mt. Sardaran v. Shiv Lal, where it was held that where the right claimed in both suits is the same the subsequent suit would be barred as ‘res judicata’ though the right in the subsequent suit is sought to be established on a ground different from that in the former suit. It would be only in those cases where the rights claimed in the two suits were different that the subsequent suit would not be barred as ‘res judicata’ even though the property was identical. It is therefore clear that the Plaintiff in the case before us was litigating under the same title, i.e., in the same right as the adopted son of Shankar though that claim of his was sought to be based on a later adoption than the one in the former suit.

The terms of section 11 of the Civil Procedure Code would not be strictly applicable to the suit but the underlying principle of estoppel would still apply and plaintiff suit is liable to be set aside.

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Bailable– The person has a right to bail. The main reason is that there is no place in jail for the parties.

Non-bailable– The bail is at the discretion of the court.

Section 436- In what case bail to be taken: Here the person has to be in custody, and then the question of bail comes in if the offence is bailable. There have to be two sureties for the bail, or if the officer considers the person to be an indigent person the accused may be released on a personal guaranty.

Indigent person- is a person who cannot furnish the amount within a week. Explanation of Section 436

Section 446A- Cancellation of bond and bailbond: Bond is a matter of good faith and trust. Thus, if it is violated, then the privilege will not be extended again. The court may refuse bail. However, the terms which are put bail should not be unreasonable and the amount of bail should not be excessive in nature.

Section 436A-Maximum period for which an under trial prisoner can be detained: The person can be kept only for half the punishment time during the investigation. Moreover, the person can be detained for more than the maximum time period of the offence. However, the delay shall not be by the accused.

Bail:  This necessarily involves

Bond: Bond is when there are two people who assure that that you will appear in court. There may or may not be money involved.

Section 437 – When bail may be taken in case of non-bailable offence

  • This is in reference to an accused or a suspect
  • This is when a police makes an arrest without a warrant under Section 41. If the arrest is made with a warrant by the Magistrate, Court of Session, and High Court then the conditions of the warrant will be there in the warrant itself.
  • Bail cannot be granted without the consultation of the Public Prosecutor and/or the Counsel for the Complainant
  • Just and proper would refer to things like medical grounds (this is not very easy though). There may also be who you are? grounds for this. There would also be the bail status of the co-accused, i.e. if there are 3 other co-accused and they have been set free, the court will consider as to why you should or shouldn’t be set free in comparison to them.
  • Bail can’t be refused on the mere fact that you may be required as a witness.
  • Breach of the policies would lead to cancellation of the bail.

Public Prosecutor v. George Williams A.I.R. 1951 Mad. 1042

  • Cancellation of bail
  • Acts of violence
  • Tampering evidence
  • Not cooperating with the evidence
  • Breaches terms of bail

Section 167- Procedure when investigation cannot be completed in twenty-four hours

The difference between Section 167 and Section 437 –

Section 437A – Bail to require accused to appear before next appellate Court : This is applicable either to the appellate court or to the trial court. The accused has be given in a bond that he will appear before the appellate court.

Bail applications cannot be filed continuously, unless there is a MATERIAL CHANGE IN CIRCUMSTANCES

Section 438- Direction for grant of bail to person apprehending arrest– This is anticipatory bail. Anticipatory bail exhausts itself after arrest, i.e. when you are arrested when you are waiting for the decision on Anticipatory Bail.

Section 439- Special powers of High Court or Court of Session regarding bail

Section 389- Suspension of sentence pending the appeal; release of appellant on bail

Kalyan Chandra Sarkar v. Rajesh Ranjan

The respondent has been denied bail 9 times before this application. The present court in the two appeals has set aside the order by the HC of granting bail to the respondent. When the earlier appeals were filed, they were all demised on refusal to grant bail.

After the rejection of four bail applications earlier, the respondent filed a 5th application Crl. Miscellaneous 24068 of 2002 which came to be allowed by the High Court on the sole ground that since the respondent accused was under detention for more than one year, he should be released on bail without going into any other aspect of the case.

Later, an application was filed against the grant of bail on the ground that High Court while granting the bail did not keep in mind the requirement of Section 437(1) (i) of Cr. P.C.

The 6th and 7th application were also rejected.

8th Application was allowed. The ground for this was – that the accused-respondent had undergone incarceration for a period of 3 years and that there was no likelihood of the trial being concluded in the near future.

An application against this bail was allowed. On the ground that the court could not have allowed the bail application on the sole ground of delay in the conclusion of the trial without taking into consideration the allegation made by the prosecution in regard to the existence of the prima facie case, gravity of offence, and the allegation of tampering with the witness by threat and inducement when on bail.

The court recognised that an accused had a right to make successive applications for grant of bail the court entertaining such subsequent bail applications has duty to consider the reasons and grounds on which the earlier bail applications were rejected and in such cases the court also has a duty to record what are the fresh grounds which persuaded it to take a view different from the one taken in the earlier applications.

The 9th bail application was filed and then allowed.

The present appeal, the appellant contends that entertainment of the 9th bail application by the High Court on the very same grounds as those urged in the earlier petitions without there being any new facts or grounds amounts to an abuse of the process of the court and is in derogation of the earlier orders passed by this Court.

He also contends that the points raised by the accused in the 9th bail application has already been negatived by the HC and to allow this appeal now is to interferes with the previous order. Secondly,the existence of a prima facie case has already been established and that couldn’t have been overlooked.

Also, accused during his incarceration as well as during the short periods when he was out on bail which showed that he was interfering with the course of investigation and was threatening witnesses and that this accused had no respect for law.

The court accepted the contentions made by the Petitioner’s.

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Plea bargaining – CrPC Notes

Circumstances under which there will be no full criminal trial are:

  1. Accused Plea Bargains – Plea bargaining is under Section 265AApplication of the (Plea Bargaining) Chapter is not available for an offence whose punishment is above 7years and if the offence affects the socio-economic condition of the country. This has to come from the accused. The Magistrate has to satisfy himself that the plea bargaining is doing it on his own accord. If the person is convicted of the same offence before, then the trial must go forward.

A victim as defined under Section 2wa.

Section 265GFinality of the Judgement. The Judgment given by the Court is final and cannot be appealed except as an SLP under Article 136 or writ petition under Article 226 or 32. As per Section 265L plea bargaining under the Juvenile Justice Act is not available.

  1. Compounded –

Section 320- Compounding of offences

Compounding is allowed only under this offence.

Under subsection 1 the person aggrieved may compound without permission of the court. Under subsection 2 the person aggrieved may compound with permission of the court, the reason is the seriousness of the offence. Subsection 3 treats abetment to an offence in the same way that the original offence is treated (either under subsection 1 or 2). Subsection 4 says who can compound an offence. A person who does not have the capacity to compound himself shall be represented by a person called ‘next friend’.

If the person is under trial, the permission of the court needs to be taken to compound the offences. If the trial is in the appellate stage, they might not allow.

However, if the parties’ say that we have reached an out of court settlement, and then the court will let the person go under the sentence that it is the time which is already spent in jail. This is not compounding.

Withdrawn from Prosecution

Section 321- Withdrawal from Prosecution: The Public Prosecutor or Asst. Public Prosecutor can withdraw at any stage before the pronouncement of the judgement. The prosecutor can do it only with the permission of the Court. The Court has to satisfy itself that there is no ulterior motive involved AND that the conditions under Section 321(a) or 321(b).

This withdrawal has the effect of acquittal and is not like discharge or quashing therefore, as per Section 300 (double jeopardy), if a charge is withdrawn it cannot be tried for again.

During the proceedings:

Section 301- Appearance by Public Prosecutors

Section 304- Legal aid to accused at State expense in certain cases

Section 305 – Procedure when corporation or registered society is an accused

Section 306 and Section 307 – A pardon is being given in return for information or evidence.

Section 308- Trial of person not complying with conditions of pardon: If the person does not comply then the person may be prosecuted. However, if the person needs to be prosecuted again for false evidence, then the sanction of the court is needed. This person can now not be tried with the co-accused, it has to be separately.

Section 310- Local inspection

Section 311- Power to summon material witness, or examine person present: The court will not recalling a witness is done only in essential circumstances or when there is alteration of court or other specific circumstances. A witness can also be called in by the court. The importance of this witness

A court witness cannot be a hostile witness. Because if a witness is called as a hostile witness, then the person who introduced the witness themselves may cross- examine the witness.  This does not happen under normal circumstances.

Section 311A- Power of Magistrate to order person to give specimen signatures or handwriting: This shall be asked only of a person who is arrested.

Section 312 – Expenses of complainants and witnesses: The expenses have to be covered however this does not happen and thus it is a deterrent.

Section 313- Power to examine the accused: The purpose is not to prejudice the accused. This is to allow the accused to explain any circumstances against him. This can be answerable to the court’s proceeding. This is not for an inquisitorial proceeding. This is at the discretion of the Magistrate. This shall not be under oath, and he can give false answers. This however can be used in favour of or against him. The Court may take help of the Prosecutor and Defence Counsel to frame questions, this is at the discretion of the court. The statements in Section 313 can be used in parts and not wholly. However, a decision cannot be on the sole basis of the section.

Rautu Bodra v. State of Bihar (1999 SCC Cri. 1319)

Held: Inadequate examination may vitiate the proceedings.

Section 315- Accuse person to be competent witness: If the accused is a witness the person shall be treated as a normal witness. However, the accused has the right to refuse to be witness and this cannot be used against. The accused however, has to request to be witness in writing.

Section 316- No influence to be used to induce disclosure: Except for pardon, under 306 and 307, a person cannot be induced in any other manner to disclose any matter. For example for money etc

The term approver is applied to a person, supposed to be directly or indirectly concerned in or privy to an offence to whom a pardon is granted under Section 337 of the Code [Section 306 of new Code] with a view to securing his testimony against other persons guilty of the offence.

Section 319- Power to proceed against other persons appearing to be guilty of offence: If a person against who a new charge has been levied is brought into a case, then the court shall join the person as a co-accused. This would give rise to charges to be raised against him and the case to be started all over again.

Section 326- Conviction or commitment on evidence partly recorded by one Magistrate and partly by another: Usually the idea is that the same judge should be hearing throughout. However the problem is that the criminal cases go on for really long time. Therefore, the CrPC allows the successor may rely upon the evidence by the predecessor. However, the successor Magistrate may take the evidence again if he feels necessary. The successor might want to do this because the judges may also look into nature of the evidence and what transpired during the statements etc. This has to be done keeping in mind the time and resources available. The magistrate however has to be of the same designation. It can’t be that somebody has been promoted and the person can carry away the case with him.

There are two parts after this:

1)      Judgment – only after the certified copies come in do we apply for appeal. Additionally, the taken to apply for the certified copies is counted as part of the limitation period.

2)      Sentencing

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(Sections 211-224 of CrPC):

  • One of the basic requirements of a fair trial is to give precise information to the accused as to the accusation ­­against him. This is vitally important to the accused, to be informed at the beginning itself, so as to prepare a defence. In case of serious offences, the Code requires that the accusation are to be formulated and reduced to writing with great precision and clarity, after which it is read out and explained to the accused person – this is the procedure to be followed in trials of warrant cases and trials before the Court of Session {please see S. 240(2), 246(2) and 228(2)}.
  • There is no particular definition of charge in terms of what it is supposed to constitute. Section 2(b) includes any head of charge, when the charge contains more than one head.
  • The judge only needs to be convinced of a prima facie case, where there is no reason to adduce reasons for framing a charge. If he however dismisses the charge, then he needs to provide reasons in writing to do so.

Sections 211-214 deal with what the charge should contain, in terms of it’s content.

Sections 216 and 217 mention the power of the Court to alter the charge and what the procedure post the alteration is.

Section 218 provides the basic rule that for every distinct offence, there needs to be a separate charge and every such charge needs to be tried separately.

Flowing from the above, Sections 219, 220, 221, 223 give exceptions to the above.

Section 222 gives the circumstances in which a person can be convicted of an offence he was not charged with, to begin with.

Section 224 mentions the effect of withdrawal of remaining charges, when one of the charges has received a conviction.

Section 215 and 464 provide the effects of an error in stating the offence or other details in a charge.

NOTE: The above framework is necessary for contextualization and location of different sections and their purpose, under the overall umbrella of having to frame a charge.

The Trial must begin with a charge.

Section 211 – Contents of charge. A charge cannot be made under Common law, it must be coming out of a specific statute and this must be reflected in the charge. If you commit the same offence more than once then there can be an enhanced punishment. The fact that you have already served punishment period for an offence will not ensure that your punishment is not enhanced. If multiplicity of the offence is discovered during the course of trial, then the court is well within its powers to alter the charges. This is given under

212: specifies that the charge must contain particulars of time, place and person/thing related to alleged offence – the standard to be applied is anything that is reasonably sufficient to give the accused notice of the matter.

For example, if the above are not stated in case of housebreaking or theft, that would be a vague charge. However, in the case of adultery, it may be impossible to specify the particulars of when and where the sexual intercourse took place. In such cases, a broader period of start time and end time of the adultery may be specified.

Section 212(2) is drafted to meet certain contingencies and allows for the mention of the aggregate details and an overall accusation (instead of a precise one) involved in cases of criminal breach of trust OR dishonest misappropriation. The charge so framed shall be only of one offence.

213 and 214 – self explanatory.

215 – Basically stipulates that even if an error does occur in framing of the charge, it can only be regarded as material if it is shown that the accused was in fact misled by such an error or omission and has resulted in a failure of justice.

In this relation, S. 464 provides for a re-trial in cases where a material error has resulted in a failure of justice. In determining this, the courts must adopt a broad vision and look at substance, not at technicalities. The parameters for judging the aforementioned should be the manner in which the accused conducted his defence and the nature of the objection. If there happens to be a mismatch to the prejudice of the accused, then this is material. If it is clear from the answers of the accused and the nature of his case that it did not prejudice him, then not material.

Section 216- Court may alter charge. This can be done anytime before the judgement is given. The trial will then take place from the altered charge.

Alteration, addition or amendment of this charge is allowed. However, the importance of this section lies in prescribing the limitations imposed on this discretionary power of the Courts to ensure that the accused is not prejudiced as a result. For example, sub-sections (2) and (3) envisage scenarios where such changes do not particularly affect the defence/preparation of the accused, then the Court in it’s discretion can proceed with the immediately with the trial as though the amendment had been part of the original charge. Conversely, if it does cause such an adverse impact on the accused, then Court can order a new trial/adjournment.

The Court can make a change upon it’s own motion or by the prosecution, and the new charge needs to be explained to the accused. It is important to remember that a court cannot ignore the basic requisites of a charge when engaging in these changes. For example, rape cannot be substituted by adultery, as adultery requires only the husband to file this complaint.

Section 217 – Recall of witness when charge altered.

Section 218 – Separate charges for distinct offences

  • Every distinct offence must have a separate charge and every separate charge must be tried separately.
  • An accused has a right under this section to make an application for joinder of charges and the Magistrate can grant it if he thinks that shall not prejudicially affect the accused.
  • The object of S. 218 is to ensure that an accused is not at a disadvantage because he has to meet several charges that are in no way connected to one another. It is also to avoid prejudice from entering the mind of a court when it sees that in a different trial the person has been convicted on a different charge with different pieces of evidence on the same facts.
  • Distinct offence: The offences should not have a connection between them and should not be inter-related in any way. NOTE: A separate charge is required for every DISTINCT OFFENCE, not for every SEPARATE OFFENCE.

 Exception to Section 218 is

  1. Section 219 – Same offence

the rule is self-explanatory. Attempt to commit an offence , the offence itself come under the ambit of ‘same kind’ of offence to be tried within the twelve month time period. What the section laid down is that trial must be limited to is three offences, but any number of charges can be pressed. He can also be tried separately on a different trial for other charges.

 Section 220 – Same transaction

ONE TRIAL FOR SEVERAL OFFENCES – if in one series of acts which are so connected together so as to constitute the same transaction, more than one offence is committed, then he can be charged with and tried for every such offence at one trial itself. The real test to determine whether several offences are so connected as to form the ‘same’ transaction depends on whether they are so related to one another in the point of purpose, cause and effect, as principal and subsidiary acts so as to constitute one continuous action.

Section 221-


  • If there is a single act, or a series of acts, which is of such nature that it is doubtful which of the several offences such facts will constitute, the accused may be charged with all or any of the offences.
  • Even if he has been charged with a number of offences, but the one made out during the course of the trial is a different one, he may be convicted of the latter.
  • This section contemplates a set of facts that all amount to a single offence, but where it is doubtful as to which one it actually is. It applies to those rare cases where the prosecution is unable to establish exclusively any one offence.

 Section 223 – What persons may be charged jointly.

Section 224- Withdrawal of remaining charges on conviction on none of several charges

Section 228 – Framing of Charges

Section 227- Discharge (by Judge)

Section 239 – When accused shall be discharged (by Magistrate) – the magistrate can discharge on the basis of the police report under Section 173.

Quashing – is that it never existed, and can be done by the High Court and Supreme Court. This is the more popular remedy.

Sufficiency of grounds means that there must be a prima facie case of not, and this can be grounds for discharge.

Prima facie case if there is a document purport the possibility of existence of evidence.

P. Vijayan v. State of Kerala

Facts: The appellant in this case is a former police officer who was allegedly present when a fake encounter was taking place of Naxalite in Kerala.

Issue: Whether there are sufficient grounds for discharge of the appellant?

Decision: The court held that there are no sufficient grounds for discharge. The court can discharge the case if they feel that no sufficient case has been made out by the prosecution. However, if the court feels that there is a strong suspicion then the case should go on to the trial stage. The court has the discretionary authority to decide what is sufficient and what is not. The judge should apply his ‘judicial mind’.

Sampat Singh v. State of Haryana

An FIR was lodged against Dharampal; alleging misuse of authority and corruption.

The police submitted a report u/s 173 of the Cr. PC to the Magistrate calling for cancellation of the allegations against the accused. The Magistrate accepted the report and discharged the accused.

A petition was filed in the HC u/s 226 of the Constitution; for transferring the case of Dharmpal to the CBI. It was prayed that the accused, holds a position of power in the government; was in a position to influence the investigation of the police. Therefore, the investigation in order to be fair and impartial should be conducted by an independent agency i.e.  CBI.

The HC found no merit in the case, dismissed the petition.

It is against this that present SLP has been preferred.

So, a SLP was filed was filed u/s 136, which is basically a special leave to appeal against any order, judgment and decree of the SC, from any court or tribunal; praying for the investigation to be transferred to the CBI.

The SC examined the legality of the order, and said that u/s 173 of the Cr. PC, when an investigation culminates into a final report without delay; it is the duty of the competent court within its authority under sanction of the law, to scrupulously scrutinize the final report and apply its judicial mind and take a decision whether to accept or reject the final report.

The Magistrate had passed an unreasoned order and without application of his judicial mind accepted the report of the police.

In the instant case, it was also noted by the SC, that the case against the accused was registered under provisions of the Prevention of Corruption Act. Under this act, the provisions explicitly say that the offence under this act is triable by a Special Judge only.

So, the Magistrate before whom the cancellation report has been placed, instead of acting on it by him, should have forwarded the same to the Special Judge who was competent to try the case.

Held-: The order of the Magistrate was set aside and he was directed to transmit all the papers along with the cancellation report to the Special judge having jurisdiction.

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Rights of the court – judgement, contempt – CrPC Notes

Mithu v. State of Punjab

Decision: There is no rational justification for making a distinction in the matter of punishment between persons who commit murders whilst they are under the sentence of life imprisonment and persons who commit murders whilst they are not under the sentence of life imprisonment. Further, no rational distinction can be made in the matter of sentencing between a person who commits murder after serving out the sentence of life imprisonment and a person who commits murder while he is still under that sentence.

It is because the death sentence has been made mandatory by s. 303 I.P.C. in regard to a particular class of persons that, as a necessary consequence, they are deprived of the opportunity under s. 235 (2), Cr. P.C. to show cause why they should not be sentenced to death and the Court is relieved from its obligation under s.354 (3), Cr. P.C. to state the special reasons for imposing the sentence of death. The deprivation of these rights and safeguards which is bound to result in injustice is harsh, arbitrary and unjust.

If the law provides a mandatory sentence of death as section 303 of the Penal Code does, neither section 235(2) nor section 354(3) of the Code of Criminal Procedure can possibly come into play. If the Court has no option save to impose the sentence of death, it is meaningless to hear the accused on the question of sentence and it becomes superfluous to state the reasons for imposing the sentence of death. The blatant reason for imposing the sentence of death in such a case is that the law compels the court to impose that sentence.

Zahira Habibullah Sheikh v. State of Gujarat

Case in which she gives one testimony to the court and then changes testimony later.  The case discusses whether she is liable for contempt of court.

The Inquiry Officer has categorically recorded that Zahira had changed her stands at different stages and has departed from statements made before this Court. So far as the question whether she was threatened, coerced, lured, induced and/or in any manner pressurized to make statements in a particular way by any person or persons, it has been found that Zahira has not been able to explain the assets in her possession in spite of several opportunities having been granted.

The section 311, CrPC  is manifestly in two parts. Whereas the word used in the first part is “may”, the second part uses “shall”. In consequences, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant Facts.

Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial.

The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty.

Verdict : she is convicted and penalized for contempt.

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Fairness of the Trial

Conviction – The charges are proved.

Acquittal – The charges are either disproved or not proved

All trials need to fulfil pre conditions:

  • Free and Fair Trial must be there –
    1. The accused must be given a chance to present a case.
    2. Charges to be framed by the court – Section 228 and Section 240
    3. Right to know the charges – Section 205, Section 273. EXCEPTION: Section 317.
    4. Prosecution can’t withdraw the case without consent of the court – Section 321
    5. Some cases can’t be compounded without the permission of the court – Section 320
    6. Power to examine any witness – Section 311
    7. Court may or may not accept the plea of guilt – Section 229, Section 241, Section 252.
    8. There must be an open trial; this must not be in a confined space with restricted entry. This also means that there can be media in the court. But, there is a problem that if media is in the court they might mobilize the public opinion. It might become an unfair process. Thus, the media trial is subjected to reasonable procedure. The Supreme Court has held that there has to be certain rules operating for any trial if the media needs to be there. If this is not followed, it would lead to contempt of the court.

This may be waived if it is a rape case, family law cases, anti-terrorism case.

The trial can’t be held in your absentia (absence), physically

Exception : Section 317 of the CrPC (Provisions for inquiries and trial being held in the absence of accused in certain cases). The Judge/ Magistrate may decide that the presence of the accused is not needed or is disturbing. Then the person will be represented by the pleader. This is also for physically challenged people (but this is also discretion)

The second part of this is that the physical presence is useless unless the person understands the proceedings (language). Section 318- Procedure where accused does not understand proceedings.  Example: Rajiv Gandhi Assassination case, the accused did not understand the judgement; the whole thing was translated to Tamil.

  1. Impartial Judge – Section 479- Cases in which Judge or Magistrate is personally interested. (i.e. personal bias, pecuniary interest, pre conceived notion of the judge or apparent bias. Actual bias in not necessary.
  2. Due process
  3. Equal protection before laws
  4. Speedy Trial- Ramachandra Rao case they said that you cant put a time limit for trial because it might not be good for a proper trial. Section 167 and other sections point out specific time period. So, what is the status of speedy trial in India? The thing is that if you can see that there is an unnecessary delay, then you can question the fairness of the trial. This is different from limitation period. This is however just a useless section. There is no substance to it.
  • Trial is usually conducted by territorial jurisdiction. Section 177 – Ordinary place of inquiry and trial.

Exception: The transfer of a trial can be done to a different territorial jurisdiction if according to Section 178- Place of inquiry or trial; Section 179- Offence triable where act is done or consequence ensues; Section 180- Place of trial where act is an offence by reason of relation to other offence; Section 181- Place of trial in case of certain offences; Section 182- Offences committed by letters, etc.; Section 183- Offence committed on journey or voyage.

Section 406 – Power of Supreme Court to transfer cases and appeals, allows interstate transfer of case if it is for expedient justice. This is also given in Article 139.

Section 407- Power of High Court to transfer cases and appeals. The powers of the High Court is greater to that of the Supreme Court

CBI v. Hopeson

The court held:

  • ordinary place of trial is not congenial for a trial
  • Risk of intimidation of witness
  • Friction between various groups in the State

P. Ramachandra Rao v. Karnataka

Issues:  Whether bars of limitation on trial to ensure speedy trial can be enacted by the court when legislature has not done so? ( 5 judge) Whether earlier judgments which provides for limitation can be applied to POCA and other economic offences? Whether such limitations provided by case laws can be laid down?


The bench discussed cases previously decided which discussed the matter in detail

The 2 common clause case and the 2 Raj Deo Sharma cases are opposed to the directions set by the constitution bench in A.R.Antulay’s case which holds that it is not advisable/ feasible to prescribe time limits for criminal proceedings.

Whether dictum of Antulay’s case holds or general directions given in judgments are permissible and should be upheld?  (To be considered by a 7 judge bench)

  1. Maneka Gandhi v. UOI inspired a declaration in Hussainara Khatoon case that speedy trial is encompassed by the fundamental right to life and personal liberty enshrined under art. 21 of the constitution.
  2. Common Cause cases- Court issued two sets of directions: one, regarding bail, and the other, regarding quashing of trial. (contrary to guidelines set by constitution bench)
  3. The other set of directions  common cause( II) directed the trial in pending cases to be terminated and the accused to be discharged or acquitted depending on the nature of offence by reference to (i) the maximum sentence inflict able whether fine only or imprisonment, and if imprisonment, then the maximum set out in the law, and (ii) the period for which the case has remained pending in the criminal court
  4. Guidelines laid down in A.R. Antulay’s case:
  • Fair and just trial provides that an accused MUST to be tried.
  • This encompasses all stages starting with investigation.
  • Factors (local and other) have to be considered and who and what is responsible for a delay is to be taken into account.
  • Each delay does not disadvantage the accused and cannot be held unconstitutional
  • Court has to balance various factors.

Read S. (8) (9) (10) and(11)

Speedy trial is relative in nature.

Holding:  Bars of limitation are impractical, tantamount to impermissible legislation. They go against doctrine of precedents and their binding efficiency ( Antulay’s case).

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Section 46– Arrest how made

  • Can either be by police officer by touch or confining your body
  • One can also be arrest by wilful submission. There must be an intention to submit to custody
  • Citizens can also make an arrest.
  • Arrest can also be made by a police like agency or officer designated by law.
  • Reasonable force may be used.
  • Woman cannot be arrested before sunrise and after sunset.

D.K. Basu v. State of West Bengal

  • Arrest with warrant – This is when a magistrate issues and signs an order addressed to a police officer to specifically arrest a particular individual. This might be a preventive arrest as well to ensure public safety. This may also be in the cases when the person to be arrested is of such a high status that a police officer may hesitate to arrest them without a warrant.
  • Arrest without warrant (Section 41) – This may be done by a police officer or private citizens for certain crimes which are serious and grave in nature. However, such a person must be produced before a magistrate within 24 hours of arrest. Otherwise, there would be a violation of 22(2) of the Constitution of India.

The arrest warrant must have the following:

  • Section 70 requires the warrant to be written and signed by the presiding officer of a Court and bear the seal of the court. The warrant shall be in force until it is cancelled by the SAME court.
  • Section 71states that a court at its discretion may state in the warrant that if the person who is to be arrested can pay a certain sum of money as security assure his/her presence in the Court of law at the given date then they may pay such amount and avoid arrest.
  • Section 72 states that a warrant is addressed to one or more police officer of which one or all of them may execute it. However, the warrant may also be addressed to any other person as well.
  • Section 73 states that a warrant may be directed towards a person within the jurisdiction of a Chief Judicial Magistrate. The person may execute the warrant if the, person for whose arrest the warrant is, enters the territory or property.

According to Section 74, a warrant directed any police officer may also be executed by any other police officer whose in name is endorsed upon the warrant by the officer to whom it is directed or endorsed.


Section 77 states that a warrant may be executed in any part of India.

Section 78 states that a warrant may be forwarded for execution outside jurisdiction to the relevant Executive Magistrate of District Superintendent of Police or Commissioner.

Section 79 states that the warrant may be directed a police officer outside the jurisdiction of the Judicial Magistrate; however this must be endorsed by the Executive Magistrate or to a police officer not below the rank of an officer in charge of a police station.

Section 80 states that the procedure of arrest against whom warrant issued is that the person shall be arrested and taken to the court who issued the warrant if the court is within 30kms. Otherwise, the person shall be taken to the Executive Magistrate, District Superintendent of Police or Commissioner of Police.

Section 81 states that once the arrested person is produced before the Magistrate, the magistrate shall grant a bail to a person who is arrested for a bailable offense provided that the person is ready to provide the security. If the person is arrested for a non-bailable offense then the Magistrate may grant bail based on the documents of the case.


  • To know the ground of arrest
    1. Section 50(1)    without warrant
    2. Section 55    with warrant
    3. Section 75   when arrest is warrant
    4. Constitution of India – Article 22(1)
    5. Section 50A says that a friend or relative needs to be informed and an entry needs to be made in the register
    6. Magistrate needs to satisfy himself that all this has been done
  • Inform of right to be released on bail – Section 50(2)
  • Right to be taken before a judicial magistrate – This includes the right that the person must only be in a police station before being taken to a judicial officer – Section 56 and Section 76
  • Right to not be detained for more than 24 hours – Section 54 and Article 22(2)
  • Right to consult a legal Practitioner – Article 22(1) + Case law
  • Right to be examined by a medical practitioner – Section 54 and Section 53

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R.K. Anand v. UOI

Section 164 is brought

Absence of the original microchip can prove inconclusive only if the identity of the people is in question. In the case of R. K. Anand he never questioned the video in terms of the fact that he was not there in the video.

I.U. Khan on the other hand denies the fact that “bada sahib” is R. K. Anand. However, the court felt that the conduct f I.U.Khan was highly wrong as he was meeting the witness like that and was directing him to a “bada sahib”, irrespective of who it was. Thus, the court found him guilty. In addition to that the original microchip against IU Khan was present. This made the case stronger.

The sting operation, the court held, in itself was not wrong because it was in the interest public. The court rejected the argument that the sting operation is obstruction of justice or was a media trial in any manner. It only intended to expose a crime and did not intend to instigate one.

The court assesses the case in totality.


Section 53– Examination of accused by medical practitioner at the request of police officer.

  • Who can carry out examination: medical practitioner as defined under Section 2(h) of the Indian Medical Council Act, 1956 and whose name has been entered in a State Medical Register.

There are two laboratories which work 1) National Laboratories 2) State Laboratories.

  • The examination is conducted of the person who is accused or arrested. This is done on a reasonable belief that there is a need for this to be carried out
  • The medical examiner shall conduct this at the request of the police and not the magistrate. The police should not be below the rank of a sub-inspector
  • The tests which are conducted should be necessary for the particular.
  • These tests may be compelled.. “reasonably necessary.”
  • The definition of what can be examined is included. For example, dental records are not included but these tests are included.

M. Prakash v. State of Karnataka –deals with self-incrimination through compulsive medical tests.

DNA tests

DNA tests are very expensive, but it is less fungible. DNA kryptonite is in the chain of custody. The DNA evidence flow must be shown to be transparent and it must be shown that there has been no change of hands. Because it can be contaminated easily.

Also, there are issues of Right to Privacy which come about. This came up in the case of R.  v. C.C.S. York says that there is

Priya Dharshini case.


167 – gives the police the power to interrogate

  • Third degree interrogation: physical pain, but will include psychological duress. This is accusatory and leading questions will be posed. It is illegal.
    • Good Cop and Bad Cop
    • Light on the eyes and high pitched questions is the most common technique.
  • The police may detain person for more than 24 hours if it has to complete the investigation. The magistrate may order a further investigation of 15day max. A competent magistrate may also order the detention for a period of 90days, or 60days. After these days a bail needs to be given.
  • Torture is that which is causing mental or physical harm which is direct and not incidental in nature. This is defined under Article 1 f the Torture Convention.
  • The ticking time bomb scenario gives justification to the time bomb.
  • However, the evidence got out of the torture can be used under Section 27 if it can be corroborated by evidence.
  • Selvi vs. State of Karnataka– Held that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872.

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Search and Seizure – CrPC Notes

Search – There has to be a nexus for a search, it cannot be random.


Section 165– Search by police officer : Here the Investigating officer/ or the OC is conducting search when they have reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorised to investigate may be found in any place within the limits of the police station of which he is in charge.

Elements of Section 165:

  • When can he search? … Reasonable Grounds for believing – Section 93(1) gives the grounds under which the search warrant may be issued. The same standard of reasonable doubt exists.

Reason suspect is not equal to Reason to believe. Reason to suspect is a better ground.

  • What can be found? … Necessary for the purpose of investigation
  • Offense authorised to investigate – there are various levels of police officers who have responsibility. The job can be delegated but a junior officer cannot do the job at will. This is also given in Section 165(3)
  • Limits of Police Station
  • The search can become illegal if the search is not recorded in the Diary.

Procedure for Search: The police officer would come and get two ppl from the locality called the ‘Panchas’. The evidence of these ‘panchas’ are imp. if something is ceased. There is a document which they sign validating the search and its procedure. This is important otherwise the happening of the search cannot be substantiated.

A search memo needs to be made and submitted to the Magistrate. The Magistrate sends the memo to the owner/ the occupier of the place. This owner and occupier may not be the accused. Therefore, the accused may, at times, not get the memo at all, until the trial.

Section 47 – Search of place entered by person sought to be arrested: This gives duty to the person who or whose premises need to be searched by the person holding the warrant. If the police is not allowed in, they are allowed to break open the door. There is also an allowance for a ‘no-knock break-in’ to take place; this is to take the person by surprise.

A search memo needs to be made and submitted to the Magistrate. The Magistrate sends the memo to the owner/ the occupier of the place. This owner and occupier may not be the accused.. Therefore, the accused may, at times, not get the memo at all, until the trial.

Section 166 – When officer in charge of police station may require another to issue search warrant: A person of another limit may be requested to conduct any search, by the officer who is already conducting a search under Section 165. This has to be in accordance to Section 165. This other police officer must prepare a report and submit it to the original OC, after the search happens.

However, if an immediate search needs to be conducted in another jurisdiction, the officers may do so, but they would need to send a notice and the list of the search to the police station and to the nearest Magistrate.

Section 100 – Persons in charge of closed place to allow search

A police carrying a warrant should be allowed to conduct a search. If he is not allowed to conduct the search, then force may be used. The force used should however, be reasonable. The search is not only of premises but also of person. If it is a female, a female officer must search, with decency. The search should be made before two respectable people from the locality. If there are no people from the locality, then people from outside the locality may also be taken. These are the ‘Panchas’. The panchas need to sign the search document. These people need not necessarily be called as witnesses, infact they can’t be called as witnesses.

Section 187 of the IPC states there should be no omission to assist public servant when bound by law to give assistance.

Section 91 – Summons to produce document or other thing


  • Who can issue the summons? Court or Officer in Charge of Police Station
  • What can they summon? Document or any other thing
  • Why would they summon it? Necessary or desirable
  • Who would they summon it from? Whoever the police believes is in possession of the document or is in possession of the object
  • Where would the person produce it? The person may attend and produce it, or to produce it, at the time and place stated in the summons or order. The person may also ask someone else to produce it on his behalf.
  • Which documents cannot be summoned? Things under Bankers book, things under Section 123 and 124 of the Evidence Act (‘Evidence as to affairs of state’ and ‘Official communications’ resp.)

Section 92- Produce as to letters and telegrams

District Magistrate, Chief Judicial Magistrate, Court of Sessions or High Court are the only ones who can ask for the letters and telegrams to be produced. Other Judicial officers may as well however, ask for the stopping of such letters and telegrams, but such letters and telegrams would not be delivered to the officers.

Section 349 – Imprisonment or Committal of person refusing to answer or produce document

Section 345 – Procedure in some cases for contempt

Section 346 – Procedure where Court considers that case should not be dealt with under Section 345. – This becomes a case of perjury.

A person producing a document does not become a witness. Section 139 of the Indian Evidence Act it says that the person producing a document cannot be cross examined unless he is specifically called a witness.


Section 101

Section 102

Impounding – this is pertaining to documents.

Section 7A

Section 165

Constitutional Implications of Search and Seizure

There is no express constitutional bar to search and

Section 460– Irregularities, which do not vitiate proceedings

Amendment 4 and 5 of the US constitution


Exclusionary rule of evidence – this states that things which are found out of an illegal search or seizure are not admissible: Silverthrone Lumber Co. v. USA. The exceptions are that

  • they are discovered in spite of the tainted source, i.e., if whatever was found was stated by a witness who had no connection to the search.

In India however the ERoE is not generic in nature. One needs to show that the search was unfair in nature.

  • There is no exclusionary rule in India because under the India Evidence Act this is not there – Puranmal Case
  • State of Punjab v. Baldev Singh
  • State v. Natwarlal

M.P. Sharma case

State of Gujarath v. Shyamlal AIR 1965 SC 1251

Wire tap – Tapping of the phone. The power to do this the power is given by Section5(2) of the Indian Telegraph Act

UCL v. Union of India

Pooran Mal v. Dy. Of Inspections

Facts: A search warrant is issued under the Income Tax Act against the petitioners. The petitioners claim that this is illegal and the evidence cant be admissible. Furthermore, they ask for the exclusion of that part of the evidence which is acquired from the property which was not mentioned for in the search warrant.

Decision: The court hold that any statute can call for search and seizure to be conducted, as long as it broadly follows the principles as laid down in the CrPC. It also said that the findings of a search and seizure cant be held to be inadmissible merely on the ground of the illegality of the search and seizure. Also, it held that if there are some materials acquired during the search which are useless, this doesn’t mean the entire evidence is inadmissible. There are no constitutional prinicples or fundamental rights interpretation which gives for exclusion of evidence.


State of Punjab v. Balbir Singh

Issue: Whether any arrest and search of a person or search of a place without conforming to the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short), becomes illegal and consequently vitiates the conviction.

Held: If a police officer, even if he happens to be an “empowered” officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions ‘of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.

Neither Section 41(2) nor Section 42(1) mandates such empowered officer to record the grounds of his belief. It is only proviso to Section 42(1) read with Section 42(2) which makes it obligatory to record grounds for his belief. To that extent we have already held the provisions being mandatory. A fortiori, the empowered officer though is expected to record reasons of belief as required under Section 165, failure to do so cannot vitiate the trial particularly when Section 41 or 42 do not mandate to record reasons while making a search. Section 165 in the context has to be read along with Sections 41(2) and 42(1) where under he is not required to record his reasons. The general principles laid down regarding the irregularities committed in such searches, equally apply even to cases where the grounds of belief as required under Section 165 are not recorded.

The provisions of CrPC namely Sections 100 and 165 would be applicable to such arrest and search.

Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

State of Punjab v Baldev Singh


The petitions are regarding the exact scope and effect of sec 50 the Narcotic Drugs and – Psychotropic Substances Act, 1985. Section 50 states that, the designated officer, prior to the search, must inform the person to be searched about his right to be searched in front of a gazetted officer or magistrate. The question arises is this mandatory?


The court when discussing the nature and scope of the protection mentions that this is a protection offered by the legislature to a person being accused of such an act and one who is to be subject to the search. The purpose of this section is two-fold, it protects the person from fallacious charges and false claims and it ensures that there is a force of authority granted to the prosecution as well. This fulfills both purposes.

The court holds that this is obligatory on the officer in the case. Lack of such notice may not vitiate the trial process itself, but any conviction made solely on the basis of such evidence is unsustainable.

Also, any evidence adduced from such a search cannot be used as a presumption for a future search as, the grounds under 54 state that it must be in compliance with sec 50.

The provisions for search and seizure are in compliance with those of the CrPC, in sec 100 and 165 and the court relies on the decision of the court in state of Punjab v. Balbir Singh.

State of Maharashtra v. Natwarlal Damodardas Soni (SC – 1979)

Facts: The Anti-Corruption Bureau of the Police raided the house of the respondent and recovered gold biscuits with foreign markings stitched in a jacket lying in a steel trunk underneath some clothes. At the time of the raid, the respondent was not in the house but his wife and mother were present. At about the same time the Customs Authorities also raided his house and took proceedings under the Customs Act, 1962 in respect of the smuggled gold found in the house. The respondent, who remained absconding, surrendered to the police a week thereafter.

At the trial the respondent contended that the gold was brought into his house by someone and left there in his absence and that, therefore, he had no connection with the gold.

On appeal to this court it was contended on behalf of the respondent that (i) the search of his house and the seizure of gold by the police was illegal; (ii) that section 123 of the Customs Act was not applicable because the seizure was made not by the Customs Authorities but by the police under the Code- of Criminal Procedure and therefore the burden of proving the offence lay on the Police which it did not discharge.

Issue: Whether an illegal search will vitiate the trial? – relevant Sections of CrPC are 103, 105 and 165.

Analysis: Taking the first contention first, the court observed that the police had powers under the Code of Criminal Procedure to search and seize this gold if they had reason to believe that a cognizable offence was being committed. Even if the search was illegal (assuming), then also, it will not affect the validity of the seizure and further investigation by the Customs Authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs.

Two case-law were cited: In Radhakrishan v. State of U.P. – “So far as the alleged illegality of the search is concern ed, it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of ss. 103 and 165, Code of Criminal Procedure, are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues.”

In Shyam Lal Sharma & Anr. v. The State of Madhya Pradesh: “even if the search is illegal being in contravention with the requirements of Section 165, Criminal Procedure Code, 1898, that provision ceases to have any application to the subsequent steps in the investigation.”

V. S. Kuttan Pillai

This is given under Statements to Police – Self Incrimination

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