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.

You can find notes on other topics on CrPC here.  You can grab notes for other law subjects from here.

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?

Analysis:

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).

You can find notes on other topics on CrPC here.  You can grab notes for other law subjects from here.

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.

RIGHTS OF PERSON WHO IS ARRESTED

• 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

You can find notes on other topics on CrPC here.  You can grab notes for other law subjects from here.

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.

PHYSICAL EVIDENCE

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.

INTERROGATION

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.

You can find notes on other topics on CrPC here.  You can grab notes for other law subjects from here.

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

Seizure-

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

Elements:

• 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.

SEIZURE

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

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

Facts:

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?

Decision:

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

You can find notes on other topics on CrPC here.  You can grab notes for other law subjects from here.

According to the case of Maneka Gandhi v. Union of India (1978), laws can be struck down as unconstitutional on grounds of reasonability, as per Articles 21 and 19. This is the incorporation of due process in Indian law, where the Supreme Court can strike down laws plainly on the basis of how reasonable it is and how well it upholds the principles of fairness, equity and justice even if there is no explicit violation of fundamental rights of lack of competency.

Therefore, the CrPC has to conform to the fundamentals of due process or the SC can strike the relevant sections down as unconstitutional if they are inhumane or contrary to principles of natural justice.

• DUE PROCESS

Due Process – Fair process

Developed by Magna Carta and used by the American Constitution. In India it came in because of the 1975 Emergency. The Maneka Gandhi case brought about the idea of due process of law.

Article 21 talks about due process of the law.

Expressio unius est exclusio alterius – the US constitution gives everything else to the people and the state. The Indian Constitution includes it by interpreting it under A. 14 19 and 21.

Article 14, 19, 21 forms the due process. Only Royappa case read them together. Only later did they start reading them together.

Article 21 – No person shall be deprived of his life or personal liberty except according to procedure established by law.

1. Substantive due process
2. Procedural due process

• FAIR TRAIL

Zahira Habibulla H Sheikh v. State of Gujarat – Given under Rights of the Court

• TREATED EQUALLY- ART. 14

Article 14 – The State shall not deny to any person equality before the law¹ or the equal protection of the laws² within the territory of India.

² Equal protection would mean that the state extends to the state the duty to protect.

• “EX-POST FACTO LAWS”

Article 20(1) – Cant be convicted retrospectively (only in criminal cases not for civil cases). Even then the defences of estoppels and

Article 20(2) – Right against double jeopardy

Section 300 of the CrPC

• The elements of the section:
  • Tried by court of competent jurisdiction
  • Convicted or acquitted
  • Same offence or “same facts” – Section 26 of the General Clauses Act, Section 258 of the CrPC. There are different kinds of judgements which may be pronounced. They are conviction there is an acquittal and there is discharged and there is quashing. For S. 300 there needs to be only either conviction or acquittal.

Maneka Gandhi v. Union of India

The Supreme Court in this case reiterated the proposition that the fundamental rights under the constitution of India are not mutually exclusive but are interrelated. According to Justice K. Iyer, ‘a fundamental right is not an island in itself’. The expression “personal liberty” in Article 21 was interpreted broadly to engulf a variety of rights within itself. The court further observed that the fundamental rights should be interpreted in such a manner so as to expand its reach and ambit rather than to concentrate its meaning and content by judicial construction. Article 21 provides that no person shall be deprived of his life or personal liberty except in accordance with procedure established by law but that does not mean that a mere semblance of procedure provided by law will satisfy the Article , the procedure should be just , fair and reasonable. The principles of natural justice are implicit in Article 21 and hence the statutory law must not condemn anyone unheard. A reasonable opportunity of defense or hearing should be given to the person before affecting him, and in the absence of which the law will be an arbitrary one.

One of the significant interpretation in this case is the discovery of inter connections between Article 14, 19 and 21. Thus a law which prescribes a procedure for depriving a person of “personal liberty” has to fulfill the requirements of Article 14 and 19 also. Moreover the ‘procedure established by law’ as required under Article 21 must satisfy the test of reasonableness in order to conform with Article 14.

Justice Krishna Iyer in this case observed that, “the spirit of man is at the root of Article 21”, “personal liberty makes for the worth of the human person”.

Sunil Batra v. Delhi Administration

While it is true that a person who is convicted is deprived of certain fundamental rights like the right to carry on business from jail, in certain aspects, yet, his rights under Arts. 21 and 14 are still enforceable. Limitations on his right to life and movement are subject to the procedure established by law. The question here is whether the procedure is reasonable and just.

The term under the sentence of death is applicable only to prisoners who have exhausted all sources of appeal, i.e., all appeals till the plea for presidential/governor’s clemency. Only once the plea for clemency which is the highest appeal available is exhausted then only can any prisoners fall under this term. Till then, they are not under the ambit of the term.

Sec 366(2) directs that once a decision for death sentence has been granted by a sessions court, the prisoner is remanded to jail custody under a warrant. Sec 73 & 74 of the IPC show that solitary confinement is a substantive punishment.

It was contended here that sec 30(2) amounts to double jeopardy as they are facing punishments under sec 366(2) as well as sec 73 & 74 of the IPC which is violative of Art. 20(2) of the Indian constitution. The court holds that, ‘But as the prisoner is not to be kept in solitary confinement and the custody in which he is kept under s. 30(2) would prelude detention in solitary confinement, there is no chance of imposing a second punishment upon him and, therefore, s. 30(2) is not violative of Art. 20.’

It further holds that there is no unreasonable restriction on his life or liberty as once the obnoxious element of sec 30(2) is read down, it is in tune with the procedure established by law. The court holds that the prisoner should not be deprived of his rights as available to other prisoners, like the right to eat with them, to enjoy certain time outside of his cell, etc. This is all subject to certain limitations with regard to safety. Thus, it’s not violative of Art. 21.

Also, when looking at Art. 14 it is hard to dispute that a person under the sentence of death is in a separate category as compared to other prisoners. This classification looking at the scenario, state of the prisoners mind and safety is reasonable. Thus, sec 30(2) is not violative of Art. 14.

Regarding sec 56:

It was also held that the prisoners have a right to counsel provided by prison authorities to them so they can find recourse about the treatment meted out to them in jail. Majority of the prisoners are illiterate and need the assistance of the court in this regard.

Held:

Sec 30(2) is expanded to include certain liberties but is not considered ultra vires.

Sec 56 is read down and restrictions are to be imposed on it to ensure that bar fetters are used only in the rarest circumstances.

You can find notes on other topics on CrPC here.  You can grab notes for other law subjects from here.

This is the right of a person to not be tried for the same offence twice. There are three provisions in Indian law that deal with this. It is based upon the common law principle of ‘nimo bis in idipsum’ which means that no man ought to be punished twice for the same offence.

Autrefois acquit – if a person is charged and subsequently acquitted of the offence, he cannot be put on trial for the same offence again (embodied in S.300, not Art.20(1))

Autrefois convict – if a person is prosecuted and punished for a particular offence, he cannot be put on trial for the same offence again. (embodied in both, Art.20(1) and S.300)

Article 20(2), Constitution of India

“No person shall be prosecuted and punished for the same offence more than once.”

A limitation read into Art. 20 (2) is that the former ‘prosecution'(which indicates that the proceedings are of a criminal nature) must be before a court of law, or a judicial tribunal required by law to decide matters in controversy judicially on evidence and on oath which it must be authorized by law to administer, and not before a tribunal which entertains a departmental or administrative enquiry, even though set up by a statute, but not required to proceed on legal evidence given on oath. It is thus established that action taken by a quasi-judicial body does not bar a latter prosecution before a court. Thus, immunity against a second prosecution has become confined to a situation when the first proceeding has been before a court of law. The same will be the position when after ‘prosecution and punishment’ for an offence, further action is taken by a quasi-judicial body.

It also only refers to autrefois convict as it limits the applicability of the plea to a person who has been prosecuted and punished previously.

Section 300, CrPC

“(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under subsection (2) thereof.”

What does this mean?

• If a person is convicted or acquitted by a court of competent jurisdiction, he cannot be tried for the same offence.
• If charge has been made against a person under sub – section (1) of 221 and the facts are the same and he has been charged under sub -section (2) of Sec. 221 then he cannot be tried on the same facts. Of course this holds true only till the conviction or acquittal remains in force.
• “Tried” does not mean tried on merit. It just has to be an acquittal of the accused.
• The basic rule is that the offences should be same i.e. identical. It is therefore necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. 300 bars the trial for same offences and not different offences which may result from the commission or omission of the same set of acts. Where the legislature provides that on the same facts proceedings could be taken under two different sections and the penalties provided under those sections are also different, it is obviously intended to treat the two sections as distinct.

“(2) A person acquitted or convicted of any offence afterwards tried with the consent of ore State Government for any distinct offence for which a separate charges have been made against him at the former trial under sub-section (1) of section 220.”

What does this mean?

• Where a person has been acquitted or convicted of any offence and a separate charge for another offence could have been made but was not made against him in the former trial, he should not be liable to be again prosecuted for the other offence as a matter of course because this might lend itself to abuse.
• To provide a check against such abuse, 300 (2) makes it obligatory to obtain the consent of the State Government before a new prosecution is launched against any person for any distinct offence for which a separate charge might have been made against him at the formal trial under Sec. 220 (1).
• Where the charge on the second trial is for a distinct offence the trial is not barred i.e. the section permits a trial for a distinct offence.

“(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the court to have happened, at the time when he was convicted.”

What does this mean?

• This section is applicable only in cases of conviction and not in cases where there has been an acquittal.
• This section allows the re-trial of an accused for acts which did not come to light in front of the court of prior conviction.
• A conviction simply in itself does not bar re-trial of the accused for similar offences which were not bought to the notice of the courts. The facts or the circumstances must be such as to indicate a different kind of offence of which there could be no conviction at the first trial. The new evidence must constitute a different kind of offence for which the accused could not have been tried at the first trial. The new facts or consequences must have occurred since the conviction or acquittal at the first trial. For, if the new facts or consequences were known to the court at the time of the first trial, a second trial for the offence constituted by the new facts would be barred.

“(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.”

What does this mean?

• If any court is incompetent to try an accused of any offence which is the consequence of an offence for which he has already been convicted or acquitted, the prior acquittal or conviction would not act as a bar to the proceedings for the consequential offence as the court could not have possibly tried the accused of that offence.

“(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the court by which he was discharged or of any other court to which the first-mentioned court is subordinate.”

What does this mean?

• In a summons case instituted otherwise than upon a complaint the court has got power under 258 to stop the proceedings at any stage without pronouncing the judgment. If the stoppage of proceedings is made before the recording of the evidence of the principal witness, it shall have the effect of discharge of the accused person.
• However, according to 300 (5) such accused person cannot be tried again for the same offence without the consent of the concerned court. It is believed that this provision will be helpful as a safeguard against the abuse of power of fresh prosecution in such cases.

“(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.”

What does this mean?

• When S.26 applies, S.300 is not required.
• For S.26 to operate, the offences have to have the same ingredients.
• More on S.26 in the next section.

“Explanation: The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.”

These pleas are taken as a bar to criminal trial on the ground that the accused person had been once already charged and tried for the same alleged offence and was either acquitted or convicted. Therefore, it encompasses the plea of autrefois acquit as well.

Section 26, General Clauses Act

 “Provision as to offences punishable under two or more enactments – Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”

Although, the above Sec. 26 refers to “acts and omissions constituting an offence under two or more enactments”, the emphasis is not on the facts alleged in the two complaints, but rather on the ingredients which constitute the two offences with which a person is charged. This is obvious from the concluding portion of the section which refers to “shall not be liable to be punished twice for the same offence”. If the offences are not the same but are distinct, the ban provided by Sec. 26 cannot be imposed.

Kolla Veera Raghava Rao v. Gorantla Venkateswara Rao

Issue:

Whether a person can be prosecuted under the same facts, but for a different offence under a different statute? (Difference between Article 20(2) of the Constitution of India, 1949 and Section 300(1) of the Indian Penal Code)

Decision: Prosecution barred as Art.20 (2), Constitution of India, 1949- . Protection in respect of conviction for offences (2) No person shall be prosecuted and punished for the same offence more than once.

Section 300(1), IPC- Person once convicted or acquitted not to be tried for same offence-

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221 or for which he might have been convicted under Sub-section (2) thereof.

Difference between Article. 20 (2) and Sec 300 (1)

The Sec is wider in the sense that it says that no one can be tried and convicted for the same offence or a different offence ON THE SAME FACTS.

While Art 20(2) may leave a lingering doubt in our minds as to whether a person can be prosecuted for the same offence on different facts, the Sec makes it clear that as long as the facts are same, the person cannot be prosecuted at all.

Monica Bedi v. State of Andhra Pradesh

Facts:

1) Monica Bedi obtained a second passport in the assumed name of Sana Malik from the regional passport office in Secundarabad by submission of false documents such as residence proof, educational certificates etc. This was done with the help of accused no.4 to accused no. 7.

2) This passport was used to travel to Portugal and Lisbon.

3) The accused has been convicted under s. 419,420 and 120 B of IPC for the above mentioned offence.

4) Monica Bedi was convicted under section 256 of the IPC of Lisbon and served a part of her sentence.

Issues:

Was the convict entitled to the protection u/Art. 20(2) of the Constitution and S. 300 of the CrPC?

Decision:

The Judgment and sentence passed against Monica Bedi is not violative of Article 20(2) of the Constitution and s. 300 of CrPC.

Article 20(2) of the Constitution states that, “No person shall be prosecuted and punished for the same offence more than once”. This provision finds its roots in the common law principle that man shall not be brought into danger for one and the same offence more than once.Section 300 of the CrPC also embodies the same principle. It is important to note that the ban against second prosecution under s. 20(2) of the Constitution and s. 300 of CrPC can be attracted only when a person has been a) prosecuted and b) punished c) for the same offence.

Thus, there must be prosecution and punishment for the same offence. If the offences are distinct there can be no ban on second prosecution. In the case of State of Rajasthan v. Hat Singh it was held that if the same facts give rise to two distinct offences, then there can be no ban on second prosecution under s. 20(2) of the Constitution and s. 300 of CrPC.

In the present case, Monica Bedi was convicted in Lisbon u/s 265 of the IPC of Lisbon. However, it cannot be accepted or admitted that she was convicted for the offence of forgery of documents in Lisbon for which she was convicted under the IPC in India. Thus, same set of facts is giving rise to two distinct offences and therefore the ban of Art. 20(2) of the Constitution and s. 300 of CrPC is not applicable.

Institute of Chartered Accountants v. Vimal Surana

Facts:

A gentleman is found to be impersonating a Chartered Accountant and extracting money and entering into agreements with people. Therefore, he is culpable under Sections 24 and 26 of the Chartered Accountants Act. However, he is also liable to be punished under Sections 419, 420, 465, 467 and 473 read along with the sections of the Act.

Issues:

Whether the provisions contained in Sections 24, 24A and 26 of the Chartered Accountants Act, 1949 (for short, `the Act’) operate as a bar against the prosecution of a person who is charged with the allegations which constitute an offence or offences under other laws including the Indian Penal Code (IPC).

Holding:

A person can be convicted for the same actions under different acts as are applicable to the offences. The court recognised the inequality if someone who had committed an offence similar to the sections under the IPC but could also fall under the law in another act with lesser punishment.

You can find notes on other topics on CrPC here.  You can grab notes for other law subjects from here.

Section 169- Release of accused when evidence is deficient

Section 170- Cases to be sent to Magistrate when evidence is sufficient

• The Magistrate cannot direct the police to give a particular kind of report. However, once the report is given, the Magistrate needs to apply his mind. The Magistrate may then look at the police dairy to see the direction of the investigation. Under Section 156(3) the Magistrate may order a further investigation by the policy. The Magistrate may also drop the charges. The complainant may file a protest petition against this drop. However, this is a mere hearing and does not have a persuasive value.

Section 207- Supply to the accused of copy of police report and other documents

Section 171 – Complainant and witnesses not to be required to accompany police officer and not to subject to restraint.

The main reason is to ensure that they are not subjected to questioning.

Section 173 – Report of police officer on competition of investigation

Here there is a time frame within which investigation needs to be completed. This is however, not a hard rule and is flexible. The case will continue even if the time period is extended.

173(2)(ii)- This is just a protective measure to ensure that there is no compromise of the security of the complainant in any manner.

173(3) – The senior police officer is the Superintendent as given in Section 36.

 

173(6) – This is a strange power to the police officer that all documents need not be given to the accused. A reason however, has to be given as to why the documents are not being given. The denial of documents is only till the date of the trial. This power cannot deny the right to cross examine in any manner.

The defence, however, is not under any obligation to disclose their case. They only have to defend the case of the Prosecution.

173(8) – The police has the right to further investigate a case. This is different from the power with the Magistrate under Section156(3), where the Magistrate may ask for further investigation in a case.

Further investigation refers to the investigation subsequent to the initial report which has been filed by the police.

‘Investigation’ : Section 2(h)- Collection of physical evidence, statements, expert evidence, examination of a body etc. conducted by a police officer or by any person other than a magistrate, who is authorized by a Magistrate.

State of Bihar v. JAC Saldhana

ISSUE

• Whether the State Government was competent to –

1. Appoint further investigation to Inspector General Vigilance (a.k.a IGV) as per S.173(2) of the CrPC
2. Give the Magistrate jurisdiction to try the case

• Whether the Magistrate in exercising his jurisdiction committed an illegality to postpone the case?
• Whether the HC was justified in interfering with the investigation?

REASONING

1) a) In the present case, the State Government had given the investigation the Inspector General Vigilance.

36 – CrPC

The officer directed by the State Govt. to carry on the investigation is the Inspector General Vigilance who as per S.36 of the CrPC is an officer superior in rank to the officer in charge of a police station. In S. 36 –

• The use of word rank leads to the hierarchy of police officers
• The Vigilance Department is deemed to be a police station having its jurisdiction throughout the State of Bihar.
• They can also exercise the powers of an officer in charge of a police station throughout the local area to which he was appointed meaning the State of Bihar.

S. 173(8) – CrPC

The source of power of the State Government to direct IGV to investigate comes from S.173(8) which enables an officer in charge of a police station to carry on investigation. Also, due to the unfettered nature of the State Government’s power to direct an officer superior in rank to investigate is allowed with a combined reading of S.173(8) and S.36.

2) The power of the Magistrate under S.156(3) to direct further investigation is not in conflict with the power of the State government. The Magistrate can exercise the power even after submission of a report by the investigating officer to accept the conclusion or not. And this power does not affect the power of the investigating officer to further investigate the case as is provided in S.173(8). Therefore, the HC was in error holding that the State Government, in exercise of S.3 of the Police Act as superintendence, lacked the power to direct further investigation.

3) There is a clear-cut and demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendent over which vests in the State Government. The executive is charged with a duty to keep vigilance over law and the police investigates a crime. After the full investigation and when the Court takes cognizance of the offence, the police investigation comes to an end, as stated in S.173(8). The adjudication function by the state commences. The present case is at the stage where investigation is not complete and by the order of the HC there is interference in this investigation in exercise of extra-ordinary jurisdiction. The Court should take a step back and refrain from entering this sphere which is clearly demarcated for the police and executive.

Therefore, the order by HC is quashed and the order by Addl Chief Judicial Magistrate restored to continue investigation.

You can find notes on other topics on CrPC here.  You can grab notes for other law subjects from here.

S.2(g) CrPC 

• Inquiry, according to Sec. 2(g) Cr.P.C. means every inquiry, other than a trial, conducted under the Code, by a Magistrate or a Court.
• It follows that Inquiry, as contemplated in the Cr.P.C can be held either by a Magistrate or by a Court.
• What is done by a Police Officer under the Cr.P.C. can never be described as Inquiry.
• Inquiry is distinct and different from trial. In practice, trial begins when the Inquiry ends.
• The object of inquiry is determination of truth or falsehood of certain allegations with a view to taking further action according to law.
• Inquiry may involve examination of witnesses and inspection of the locale.

Types of Inquiry:

• Judicial Inquiry
• Non-Judicial/Administrative Inquiry
• Preliminary Inquiry
• Local Inquiry
• Inquiry into an offence
• Inquiry relating to a matter other than the offence 

S.No.	Subject	Investigation	Inquiry
1.	By Whom	By a Police Officer or a person other than a Magistrate who is authorised by a Magistrate	By a Court or Magistrate
2.	Object	Collection of Evidence	Ascertainment of Truth
3.	Nature	Always non-judicial, pertaining to an offence	It may relate to an offence or a matter other than the offence
4.	Initiation	It commences when there are grounds for investigation, based on information or otherwise.	It may start on vague rumours with shadowy beginning vide AIR 1968, Madras 117.
5.	Sequence	In cognizable offence, police investigation is a normal preliminary to the accused being put up for trial.	In a warrant case instituted other than on Police report, the proceeding upto the framing of the charge is inquiry. Here, Trial follows inquiry.

You can find notes on other topics on CrPc here.  You can grab notes for other law subjects from here.

S.174, S.175 and S.176 

• An inquest by the police falls under S.174 of the CrPC. The main object is to ascertain the cause of death in cases of suicide, unnatural death and death caused in commission of offence, etc. The police cannot administer oath to the person summoned for inquest.
• An inquest by the magistrate falls under S.176 of the CrPC. Its main object is to determine the cause of death occurring in police custody and in the cases mentioned in S.174. A magistrate is authorised to administer the oath to the people examined by him.
• 175 of the CrPC talks about the power to summon persons. It gives the police the authority to summon witnesses at the inquest. It is not necessary for the police officer to record any statements from them or get them to sign the inquest report. Their statements fall under S.162 of the CrPC.

Inquest Report:

• Document of vital importance and has to be prepared promptly as it is handed over to the doctor along with the dead body when it is being sent for the post-mortem examination.
• If the facts of the inquest are mentioned in the report, it shows the true version of the occurrence has been given therein. If they are not mentioned, it shows that the police officer was unsure about the facts.
• It is not substantive evidence.
• It can corroborate the evidence given by the officer making the report.

You can find notes on other topics on CrPc here.  You can grab notes for other law subjects from here.