Latest criminal cases, Summaries of Integrated Case Studies

Download Latest criminal cases and more Summaries Integrated Case Studies in PDF only on Docsity! Lalita Kumari v. Govt. of U.P One writ petition, under Article 32 of the Constitution, was filed by Lalita Kumari (minor) through her father, viz., Shri Bhola Kamat for the issuance of a writ of Habeas Corpus or direction(s) of like nature against the respondents for the protection of his minor daughter who has been kidnapped. The grievance in the said writ petition was that on 11.05.2008, a written report was submitted by the petitioner before the officer in-charge of the police station concerned who did not take any action on the same. Thereafter, when a representation to Superintendent of Police was moved, an FIR was registered. According to the petitioner, even thereafter, steps were not taken either for apprehending the accused or for the recovery of the minor girl child. A two-Judge Bench of SC in, Lalita Kumari vs. Government of Uttar Pradesh & Ors. (2008) 7 SCC 164, after noticing the disparity in registration of FIRs by police officers on case to case basis across the country, issued notice to the Union of India, the Chief Secretaries of all the States and Union Territories and Director Generals of Police/Commissioners of Police to the effect that if steps are not taken for registration of FIRS immediately and the copies thereof are not handed over to the complainants, they may move the Magistrates concerned by filing complaint petitions for appropriate direction(s) to the police to register the case immediately and for apprehending the accused persons, failing which, contempt proceedings must be initiated against such delinquent police officers if no sufficient cause is shown. Pursuant to the above directions, when the matter was heard by the very same Bench in Lalita Kumari vs. Government of Uttar Pradesh & Ors. (2008) 14 SCC 337. In view of the conflicting decisions of Supreme Court on the issue, the said bench, vide order dated 16.09.2008, referred the same to a larger bench. Ensuing compliance to the above direction, the matter pertaining to Lalita) Kumari was heard by a Bench of three-Judges in Lalita Kumari vs. Government of Uttar Pradesh & Ors. (2012) 4 SCC 1 wherein, Supreme Court, after hearing various counsel representing Union of India, States and Union Territories and also after adverting to all the conflicting decisions extensively, referred the matter to a Constitution Bench. ISSUE INVOLVED Whether under Section 154 CrPC, a police officer is bound to register an FIR when a cognizable offence is made out or he (police officer) has an option, discretion or latitude of conducting some kind of preliminary inquiry before registering the FIR? The follow directions were issued by the Constitution Bench of Supreme Court: ii) iii) iv) vi) vii) viii) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. If the information received does not disclose a _ cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/family disputes b) Commercial offences c) Medical negligence cases d) Corruption cases e) Cases where there is abnormal delay/laches in_ initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above. direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper direction to the police would be to register a case at the police station treating the complaint as the first information report and investigate into the same.” The impugned judgment and orders of the High Court was set aside by SC and directed the concerned Magistrates to proceed with the cases in accordance of law. Sakiri Vasu v. State of U.P. (2008) [Father demanding CBI investigation in the death case of son (Major in Indian Army, dead body found in Railway Station); inquiries held by Army held that it was a case of suicide] The Supreme Court observed that it has been held by this Court in CBI & another vs. Rajesh Gandhi and another 1997 Cr.L.J 63 (vide para 8) that no one can insist that an offence be investigated by a particular agency and agreed with the view in the aforesaid decision. An aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any particular agency of his choice. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C. by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Sec 156(3) Cr.P.C. before the learned Magistrate concerned. If such an application under Sec 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation. We are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they are implied in the above provision. We often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3). The Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C. It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere. Supreme Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should be done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them. In the present case, there was an investigation by the G.R.P., Mathura and also two Courts of Inquiry held by the Army authorities and they found that it was a case of suicide. Hence, in our opinion, the High Court was justified in rejecting the prayer for a CBI inquiry. D.K.Basu v. State of West Bengal, (1997) Certain letters received about the cases of custodial violence and custodial deaths by police were treated as writ petitions in public interest by the Supreme Court. These petitions were decided by a 2-Judge Bench. The Supreme Court observed as under: 1. Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society. 2. Custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. 3. In spite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third- degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. In this case, following important guidelines were issued by the Court as preventive measures to be followed as requirements in all cases of arrests and detention: (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of Accordingly, although, we are of the view that the legal position as to what constitutes arrest was correctly stated in the writ petitions filed by Lalit Kumar and Bhupinder, we confirm the order passed in Dinesh Kumar’s case and extend the same benefit to Lalit Kumar and Bhupinder also. The court reiterated the decision of this Court in Niranjan Singh v. Prabhakar (AIR 1980) where it was held that a person can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. The SC observed that It is no doubt true that in the instant case the accused persons had appeared before the concerned Magistrates with their learned advocates and on applying for bail were granted bail without being taken into formal custody, which appears to have swayed one of the benches of the Punjab and Haryana High Court to take a liberal view and to hold that no arrest had actually been effected. The said view, in our opinion, is incorrect as it goes against the very grain of Sections 46 and 439 of the Code. Arnesh Kumar v. State of Bihar, (2014) (498A IPC. Husband or relative of husband of a woman subjecting her to cruelty. ) The judgment arises from an appeal preferred by a husband who apprehended his arrest in a case under Section 498-A of the IPC and Section 4 of the Dowry Prohibition Act, 1961. The husband’s attempt to secure anticipatory bail was failed and hence he knocked the door of Supreme Court by way of SLP. The SC in this case ruled on the principles for making arrest and detention under the Cr.PC. The SC in its ruling has issued certain directions to be followed by the police authorities and the Magistrates while making arrest and/or authorizing detention of an accused. The Supreme Court, in its Ruling, emphasized on the need for caution while exercising the drastic power of arrest, which has for years, been treated as a tool for harassment and oppression in the hands of the police authorities and has greatly contributed to police corruption in India. Citing statistics to demonstrate the misuse of the power of arrest by the police authorities, the Supreme Court proceeded to set out certain objective criteria to be applied before making arrest under the Cr.P.C. The Supreme Court held that no arrest should be made only because the offence is non-bailable and cognizable. Neither should arrest be made in a routine, casual and cavalier manner or on a mere allegation of commission of an offence made against a person. Arrest should only be made after reasonable satisfaction reached after due investigation as to the genuineness of the allegation. Dealing with Section 41 (1) of the Cr.P.C., which provides for conditions precedent to making arrest, the Supreme Court emphasized that for making arrest, the police must be satisfied that all the conditions set out in the provision are met viz.,: Arrest is necessary: e to prevent such person from committing any further offence; or e for proper investigation of the case; or e to prevent destruction or tampering with evidence by the accused; or e to prevent such person from influencing the witnesses; or e to ensure presence of the accused in the court. Police must, in any case, record reasons for making, or not making the arrest in a particular case. Further, the Supreme Court laid down the circumstances in which the Magistrate might authorize detention of the accused. As per Article 22(2) of the Constitution of India and Section 57 of the Cr.P.C, an accused must be produced before the Magistrate without unnecessary delay and in no circumstance beyond 24 hours, excluding the time necessary for the journey. An accused may be kept in detention beyond 24 hours of his arrest, only when authorized by the Magistrate2. The Supreme Court held that when an accused is produced before the Magistrate, the police officer effecting the arrest must furnish the facts, the reasons and the conclusions for arrest and the Magistrate, only upon being satisfied that the conditions of Section 41of Cr.P.C. are met and after recording its satisfaction in writing, may proceed to authorize the detention of an accused. The Supreme Court, further, clarified that even in terms of Section 41 A of the Cr.P.C., where arrest of an accused is not required, the conditions precedent to arrest as envisaged under Section 41 of Cr.P.C. must be complied with and shall be subject to the same scrutiny by the Magistrate. The Supreme Court, in its Ruling, further condemned the practice of police mechanically reproducing reasons contained in Section 41 Cr.P.C. for effecting arrest in case diaries being maintained by the police officers. In light of the above, the Supreme Court has issued the following directions to all the State Governments: - e To instruct the police officers to not mechanically arrest the accused under Section 498 A of I.P.C. without satisfying themselves that the conditions of arrest are met; e All police officers to be provided with the check-list of conditions precedent prescribed under Section 41(1)(b)(ii) of Cr.P.C. This checklist is to be duly filed and forwarded to the Magistrate while producing the accused for further detention; e The Magistrate shall then peruse the report provided by the police officer and only after recording its satisfaction in writing, may authorize detention; e The decision to not arrest the accused should be forwarded to the Magistrate within two weeks from the date of institution of the case. The period may be extended by the Superintendent of police for reasons to be recorded in writing; e The notice of appearance in terms of Section 41 A Cr.P.C. should be served on the accused within two weeks from the date of institution of the case. The same may be extended by the Superintendent of police for reasons to be recorded in writing. e Failure to comply with the directives set out above may render police officers/Magistrates liable for departmental action and proceedings for contempt of court to be instituted before the High Court having territorial jurisdiction. e Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court. State v. Captain Jagjit Singh (1962) (Section 436, 498 of Cr. PC) The respondent who was a former Captain of the Indian Army and was employed in the delegation in India of a French Company was prosecuted along with two others for conspiracy and passing on Official Secrets to a foreign agency under ss.3 and 5 of the Official Secrets Act. The respondent applied for bail to the Sessions Judge; but his application was rejected by the Additional Sessions Judge, Delhi. Thereupon the respondent applied under Section 498 of the Code of Criminal Procedure to the High Court, and the main contention urged before the High Court was that on the facts disclosed the case against the respondent could only be under Section 5 of the Act, which is bailable and not under Section 3 which is non bailable. The High Court was of the view that it was hardly possible at that stage to go into the question whether Section 3 or Section 5 applied; but that there was substance in the suggestion on behalf of the respondent that the matter was arguable. Consequently the High Court took the view that as the other two persons prosecuted along with the respondent had been released on bail, the respondent should also be so released, particularly as it appeared that the trial was likely to take a considerable time and the respondent was not likely to abscond. The High Court, therefore, allowed bail to the respondent. Thereupon the State made an application for special leave which was granted. The error in the order of the High Court is that it did not consider whether the offence for which the respondent was being prosecuted was a bailable one or otherwise. Even if the High Court thought that it would not be proper at that stage, where commitment proceedings were to take place, to express an opinion on the question whether the offence in this case fell under Section 5 which is bailable or under Section 3 which is not bailable, it should have proceeded to deal with the application on the assumption that the offence was under Section 3 and therefore not bailable. The High Court, however, did not deal with the application for bail on this footing, for in the order it is said that the question whether e An accused person should not be required to produce a surety from the same district especially when he is a native of some other place e Bails covers release on one’s own bond, with or without sureties e Bail should be given liberally to poor people simply on a personal bond, if reasonable conditions are satisfied e The bail amount should be fixed keeping in mind the financial condition of the accused e When dealing with cases of persons belonging to the weak categories in monetary terms - indigent young persons, infirm individuals or women - court should be liberal in releasing them on their personal recognizance Gurcharan Singh v. State (Delhi Admn.) (1978) (Constitution Art. 136-When SC would interfere with order cancelling bail by High Court. Cr.PC 1973-Sections 437, 439 and 497-Bail-Principles for grant of-Cancellation of.) The prosecution is launched against the appellant accused who are ranging, from the Deputy inspector General of Police to the Police Constables on the ground that they were party to a criminal conspiracy to kill Sunder and caused his death by drowning him in Yamuna River pursuant to the conspiracy. Sunder was said to be a notorious dacoit who was wanted in several cases of murder and dacoity alleged to have been committed by him in Delhi and elsewhere. It is stated that by May 1976 Sunder became a security risk for Sanjay Gandhi. The appellants were arrested in connection with the prosecution. The Magistrate declined to release them on bail. Thereafter, they approached the Sessions Judge under s. 439(Z) of, the Cr.PC 1973. The Sessions Judge granted bail to the 4 appellants. Thereafter the State moved the High Court under s.439(2) against the order of the Sessions Judge for cancellation of the bail. The Sessions Judge while granting the bail held that the arguments of the prosecution that if the appellants were released on bail they would misuse their freedom to tamper with the witnesses was not quite convincing. The learned Judge further held that there was little to gain by tampering with the witnesses who have themselves already tampered with their evidence by making contradictory statements in respect of the same transaction. The learned Judge also held that there was inordinate delay in registering the case and that there was little probability of the appellants fleeing from justice or tampering with the witnesses and also having regard to the character of evidence the court was inclined to grant bail to the appellants. The High Court while setting aside the orders of the Sessions Judge observed, that considering the nature of the offence, character of the evidence, including the fact that some of the witnesses during preliminary enquiry did not fully support the prosecution case, the reasonable apprehension of witnesses being tampered with and all other factors relevant for consideration for grant or refusal of bail in a non-bailable offence punishable with death or imprisonment for life there was no option but to cancel the bail. Dismissing the appeal, HELD : (1) The change in language u/s. 437(1) does not affect the true legal position. Under the new Code as well as the old one an accused after being arrested is produced before the Magistrate. There is not a provision in the code Whereby an accused is for the first time produced after initial arrest before the Court of Sessions or before the High Court. It is not possible to hold that the Sessions Judge or the High Court certainly enjoying wide powers. will be oblivious of the considerations of the likelihood of the accused being guilty of an offence punishable with death or imprisonment for life. (2)A Court of Sessions cannot cancel a bail which has already been granted, by the High Court unless new circumstances arise during the progress of the trial after the accused person has been admitted to bail by the High Court. If, however, a Court of Sessions had admitted an accused person to bail the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State. The State may as well approach the High Court being the superior court under s. 439(2) to commit the accused to custody. This position follows from the subordinate position of the court of Sessions vis- a-vis the High Court. Under s. 397 the High Court and the Sessions Judge have concurrent powers of revision. However, when an application under that section has been put in by person to the High Court or to the Sessions Judge no further application by the same person shall be entertained by either authority. (3)Chapter XXXIII contains provisions in respect of bail and bonds. Section 436 provides for invariable rule for bail in case of bailable offences subject to the specified exception under sub-s.(2). Section 437 provides as to when bail may be taken in case of non-bailable offences. It makes a distinction between offences punishable with death or imprisonment for life on the, one hand and the rest of the offences on the other hand. (4)With regard to the first category if there are reasonable grounds for believing that an accused has been so guilty in other non-bailable cases judicial discretion will always be exercised by the court in favour of granting bail subject to s. 437(3) with regard to imposition of conditions, if necessary. In case of non-bailable offences punishable with death or imprisonment for life reasons have to be recorded for releasing a person on bail. The only limited enquiry by the Magistrate at that stage relates to the materials for the suspicion. The position would naturally change on investigation progress and more facts and circumstances come to light. The over-riding considerations in granting bail are the nature and gravity of the circumstances in which the offence is committed, the position and the status of the accused with reference to victim and the witnesses, the likelihood of the accused fleeing from justice, of repeating the offence, of jeopardising his own life being faced with a grim prospect of possible conviction in the case, of tampering with the witnesses, the history of the case as well as of its investigation and other relevant grounds which in view of so many variable factors, cannot be exhaustively set-out. The State v. Captain Jagjit Singh, [1962] (3) S.C.R.,622,referred to. (5)Ordinarily, the High Court would not exercise its discretion to interfere with an order of bail granted by the Sessions Judge in favour of the accused. In the present case, the Sessions Judge did not take into proper account the grave apprehension of the prosecution that there was likelihood of the appellants, tampering with the prosecution witnesses. In the peculiar nature of the case and the position of the appellants in relation to the eye witnesses it was incumbent upon the Sessions Judge to give proper weight to the serious apprehension of the prosecution with regard to the tampering with the eye witnesses. The manner in which the above plea was disposed of by the Sessions Judge was very casual. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail. The High Court has correctly appreciated the entire position and the Sessions Judge did not at the stage the case was before him. This court would not, therefore, be justified u/Art. 136 of the Constitution in interfering with the discretion exercised by the High Court in cancelling the bail. The Court, however, directed that the Magistrate without loss of further time, should pass an appropriate order under s. 209 Cr.PC and that Court of Sessions would thereafter commence trial at an early date and examine all the eye witnesses first and such other material witnesses thereafter as may be produced by the prosecution as early as possible and that trial should proceed day to day as far as practicable. The Court also observed that after the statements of the eye witnesses and the said Panch witness have been recorded it would be open to the accused to move the Sesions Judge for admitting them to bail. Sanjay Chandra v. Central Bureau of Investigation, (2012) (2G scam case) In this case the Court extensively dealt with the issue of granting or refusing the grant of Bail, that is, circumstances under which only Bail should be refused, and ordinarily, as a general rule, Bail should be given. 1. Purpose of Bail Otherwise, the number of applications for anticipatory bail will be as large, as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438. Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed. Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested. 3. However, a "blanket order" of anticipatory bail should not generally be passed. This flows from the very language of the section which requires the appellant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for which ever offence whatsoever". That is what is meant by a ‘blanket order’ of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be bad. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section. Apart from the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided. A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if the commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vacuum. 4. An order of bail can be passed under section 438(1) of the Code without notice to the Public Prosecutor. But notice should issue to the public prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad-interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. 6. Equally the operation of an order passed under section 438(1) need not necessarily be limited in point of time. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an F.I.R. in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the F.I.R. as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time. 7. Clause (1) of Section 438 is couched in terms, broad and unqualified. The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly; because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on bail. Sub-section (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, "may include such conditions in such directions in the light of the facts of the particular case, as it may think fit" including the conditions which are set out in clauses (i) to (iv) of sub-section (2). The proof of legislative intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non- bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offences asks for bail. In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437. 8. The amplitude of judicial discretion which is given to the High Court and the Court of Sessions, to impose such conditions as they may think fit while granting anticipatory bail, should not be cut down, by a process of construction, by reading into the statute conditions which are not to be found therein like those evolved by the High Court. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code. Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to The objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself, can be ascribed to the pressure of the prosecution. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail. SC held in the present case the evidence points in one direction only, leaving no manner of doubt that the respondent has misused the facility afforded to him by the High Court by granting anticipatory bail to him. Mohan Singh v. State of Bihar (2011) In this case the accused was charged with conspiracy for murder under sections 120B of IPC and of extortion under section 387 of IPC and was convicted by the lower courts. The accused filed an appeal before the SC where points were raised relating to errors in framing of charge. The purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial (SC judgement in V.C. Shukla v. State 1980 supp SCC 92). SC held in view of such consistent opinion of this Court, we are of the view that no prejudice has been caused to the appellant for non- mentioning of Section 302 I.P.C. in the charge since all the ingredients of the offence were disclosed. The appellant had full notice and had ample opportunity to defend himself against the same and at no earlier stage of the proceedings, the appellant had raised any grievance. Apart from that, on overall consideration of the facts and circumstances of this case we do not find that the appellant suffered any prejudice nor has there been any failure of justice. In the instant case, in the charge it has been clearly mentioned that the accused-appellant has committed the murder of Anil Jha. By mentioning that the accused has committed the murder of Anil Jha all the ingredients of the charge have been mentioned and the requirement of Section 211, sub-section (2) has been complied with. Therefore, we do not find any substance in the aforesaid grievance of the appellant. Ajay Kumar Parmar v. State of Rajasthan 2012 In respect of an incident of rape, an FIR was lodged. The Dy.S.P. recorded the statement of the prosecutrix, wherein she narrated the facts alleging rape against the accused. The prosecutrix appeared before the Chief Judicial Magistrate and lodged a complaint stating that the police was not investigating the case properly. She filed an application that her statement be recorded under Section 164 Cr.P.C. The prosecutrix had signed the said application. It was also signed by her lawyer. However, she was not identified by any one. The prosecutrix appeared before the Judicial Magistrate itself and her statement under Section 164 Cr.P.C. was recorded. After completing the investigation, charge-sheet was filed before the Judicial Magistrate. The Judicial Magistrate refused to take cognizance of the offences on the basis of the statement of the prosecutrix, recorded under Section 164 Cr.P.C. Aggrieved, the public prosecutor filed a revision before the Learned Sessions Judge, wherein, the aforesaid order was reversed on two grounds, firstly, that a case under Sections 376 and 342 IPC was triable by the Sessions Court and the Magistrate, therefore, had no jurisdiction to discharge/acquit the appellant on any ground whatsoever, as he was bound to commit the case to the Sessions Court, which was the only competent court to deal with the issue. Secondly, the alleged statement of the prosecutrix under Section 164 Cr.P.C. was not worth reliance as she had not been produced before the Magistrate by the police. The revisional court as well as the High Court held that the statement under Section 164 Cr.P.C. had not been recorded correctly. The said courts set aside the order of the Judicial Magistrate not taking the cognizance of the offence. Hence, appeal was filed before the SC by the accused. In view of the above, it is evident that this case is squarely covered by the judgment of the three Judge bench in Jogendra Nahak &Ors. v. State of Orissa & Ors., AIR 1999, which held that a person should be produced before a Magistrate, by the police for recording his statement under Section 164 Cr.P.C. The Chief Judicial Magistrate who entertained the application and further directed the Judicial Magistrate to record the statement of the prosecutrix, was not known to the prosecutrix in the case and the latter also recorded her statement, without any attempt at identification, by any court officer/lawyer/police or anybody else. SC observed in view of the judgment in Sanjay Gandhi v. Union of India, AIR 1978 SC it is evident from the aforesaid judgment that when an offence is cognizable by the Sessions court, the Magistrate cannot probe into the matter and discharge the accused. It is not permissible for him to do so, even after considering the evidence on record, as he has no jurisdiction to probe or look into the matter at all. His concern should be to see what provisions of the Penal statute have been mentioned and in case an offence triable by the Sessions Court has been mentioned, he must commit the case to the Sessions Court and do nothing else. Thus, we are of the considered opinion that the Magistrate had no business to discharge the appellant. In fact, Section 207-A in the old Cr.P.C., empowered the Magistrate to exercise such a power. However, in the Cr.P.C. 1973, there is no provision analogous to the said Section 207- A. He was bound under law, to commit the case to the Sessions Court, where such application for discharge would be considered. The order of discharge is therefore, a nullity, being without jurisdiction. More so, it was not permissible for the Judicial Magistrate to take into consideration the evidence in defence produced by the appellant as it has consistently been held by this Court that at the time of framing the charge, the only documents which are required to be considered are the documents submitted by the investigating agency along with the charge- sheet. Any document which the accused want to rely upon cannot be read as evidence. If such evidence is to be considered, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. The provision about hearing the submissions of the accused as postulated by Section 227 means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. Even if, in a rare case it is permissible to consider the defence evidence, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted, the instant case does not fall in that category. The court should not pass an order of acquittal by resorting to a course of not taking cognizance, where prima facie case is made out by the Investigating Agency. More so, it is the duty of the court to safeguard the right and interests of the victim, who does not participate in discharge proceedings. At the stage of application of Section 227, the court has to shift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. Thus, appreciation of evidence at this stage, is not permissible. (P. Vijayan v. State of Kerala & Anr., AIR 2010 SC 663; and R.S. Mishra v. State of Orissa &Ors., AIR 2011 SC 1103). The scheme of the Code, particularly, the provisions of Sections 207 to 209 Cr.P.C., mandate the Magistrate to commit the case to the Court of Sessions, when the charge-sheet is filed. A conjoint reading of these provisions makes it crystal clear that the committal of a case exclusively triable by the Court of Sessions, in a case instituted by the police is on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public Prosecutor has acted in good faith and the exercise of discretion by him is proper. The law, therefore, is that though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the court has to be satisfied, after considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice. The application and order under Section 321 is a result of panic reaction by overzealous persons without proper understanding of the problem and consideration of the relevant material, though they may not have any personal motive. It does not appear that anybody considered that if democratically-elected governments give an impression to the citizens of this country of being lawbreakers, would it not breed contempt for law; would it not invite citizens to become a law onto themselves. It may lead to anarchy. The Governments have to consider and balance the choice between maintenance of law and order and anarchy. It does not appear that anyone considered this aspect. It yielded to the pressure tactics of those who according to the Government are out to terrorise the police force and to overawe the elected Governments. It does not appear that anyone considered that with their action people may lose faith in the democratic process, when they see public authority flouted and the helplessness of the Government. The aspect of paralysing and discrediting the democratic authority had to be taken into consideration. It is the executive function to decide in the public interest to withdraw from prosecution as claimed, but it is also for the Government to maintain its existence. The self-preservation is the most pervasive aspect of sovereignty. To preserve its independence and territories is the highest duty of every nation and to attain these ends nearly all other considerations are to be subordinated. Of course, it is for the State to consider these aspects and take a conscious decision. In the present case, without consideration of these aspects the decision was taken to withdraw TADA charges. It is evident from material now placed on record before this Court that Veerappan was acting in consultation with secessionist organisations/groups which had the object of liberation of Tamil from India. There is no serious challenge to this aspect. None of the aforesaid aspects were considered by the Government or the Public Prosecutors before having recourse to Section 321 Cr.P.C. Zahira Habibulla H. Sheikh v. State of Gujarat (2004) ("Best Bakery Case"/Gujarat riots case) In 2002 a business concern known as "Best Bakery" at Vadodara was burnt down by an unruly mob of large number of people. In the ghastly incident 14 persons died. The attacks were stated to be a part of retaliatory action to avenge killing of 56 persons burnt to death in the Sabarmati Express. Zahira was the main eye-witness who lost family members including helpless women and innocent children in the gruesome incident. Many persons other than Zahira were also eye- witnesses. Accused persons were the perpetrators of the crime. After investigation charge sheet was filed in June 2002. During trial the purported eye-witnesses resiled from the statements made during investigation. Faulty and biased investigation as well as perfunctory trial were said to have marred the sanctity of the entire exercise undertaken to bring the culprits to books. By judgment the trial Court directed acquittal of the accused persons. One of the appeals before SC is by Zahira who claims to be an eyewitness to macabre killings allegedly as a result of communal frenzy. She made statements and filed affidavits after completion of trial and judgment by the trial Court, alleging that during trial she was forced to depose falsely and turn hostile on account of threats and coercion. That raises an important issue regarding witness protection besides the quality and credibility of the evidence before Court. The other rather unusual question interestingly raised by the State of Gujarat itself relates to improper conduct of trial by the public prosecutor. Last, but not the least that the role of the investigating agency itself was perfunctory and not impartial. Though its role is perceived differently by the parties, there is unanimity in their stand that it was tainted, biased and not fair. While the accused persons accuse it for alleged false implication, the victims’ relatives like Zahira allege its efforts to be merely to protect the accused. The state also filed applications for permissions to adduce additional evidence and for examination of certain persons as witness and to bring on record a document and to treat it as corroborative piece of evidence. The SC directed re-trial by a Court under the jurisdiction of Bombay High Court and appointment of another Public Prosecutor and kept it open to the affected persons to suggest any name which may also be taken into account in the decision to so appoint. Mohd. Hussain v. State (Govt. of NCT of Delhi) (2012) In appeal an issue was referred by a two-Judge Bench of SC in Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 2 SCC 584 for deciding whether the matter requires to be remanded for a de novo trial in accordance with law or not? The two-Judge Bench [Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 2 SCC 584] that heard the criminal appeal, was unanimous. that the appellant was denied the assistance of a counsel in substantial and meaningful manner in the course of trial although necessity of counsel was vital and imperative and that resulted in denial of due process of law. In their separate judgments, the learned Judges agreed that the appellant has been put to prejudice rendering the impugned judgments unsustainable in law. They, however, differed on the course to be adopted after it was held that the conviction and sentence awarded to the appellant by the trial court and confirmed by the High Court were vitiated. As noted above, H.L. Dattu, J. ordered the matter to be remanded to the trial court for fresh disposal in accordance with law after providing to the appellant the assistance of the counsel before the commencement of the trial till its conclusion if the accused was unable to engage a counsel of his own choice. On the other hand, C.K. Prasad, J. for the reasons indicated by him held that the incident occurred in 1997; the appellant was awarded the sentence of death more than seven years ago and at such distance of time it shall be travesty of justice to direct for the appellant's de novo trial. The three judge bench answered the reference by holding that the matter requires to be remanded for a de novo trial. ‘Speedy trial’ and ‘fair trial’ to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused’s right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused's right to speedy trial have to be weighed vis-a- vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered. and several High Courts of the country on the scope and extent of the powers of the courts under the criminal justice system to arraign any person as an accused during the course of inquiry or trial as contemplated under Section 319 of the Cr.P.C. Following questions answered by the Bench: (i) What is the stage at which power under Section 319 Cr.P.C. can be exercised? (ii) Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? (iii) Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? (iv) What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319(1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood convicted? (v) Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charged or who have been discharged? In this reference what the Bench was primarily concerned with, was the stage at which such powers can be invoked and, secondly, the material on the basis whereof the invoking of such powers can be justified. To add as a corollary to the same, thirdly, the manner in which such power has to be exercised, also has to be considered. The Court delivered a well-structured point wise judgment for the above issues which reads as follows: Question Nos.1 & III Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised? AND Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial? A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused. Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet. In view of the above position the word ‘evidence’ in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. Question No. II Q.II Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned? A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination. Question No. IV Q.IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted? A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for ?framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different. Question No.V Q.V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged? A. A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh. In view of the above, the law can be summarised to the effect that as ‘trial’ means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the ‘trial’ commences only on charges being framed. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken. Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) Cr.P.C. can be exercised at any time after the charge-sheet is filed and before the pronouncement of judgment, except during the stage of Section 207/208 Cr.P.C., committal etc., which is only a pre-trial stage, intended to put the process into motion. This stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. At this pre-trial stage, the Magistrate is required to perform acts in the nature of administrative work rather than judicial such as ensuring compliance of Sections 207 and 208 Cr.P.C., and committing the matter if it is exclusively triable by Sessions Court. Therefore, it would be legitimate for us to conclude that the Magistrate at the stage of Sections 207 to 209 Cr.P.C. is forbidden, by express provision of Section 319 Cr.P.C., to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the Court of Sessions. In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor the legislature could have contemplated this inasmuch as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by the prosecution "Witness" means a person whose statement has been recorded by the Investigating Officer under Section 161 Cr.P.C. pertaining to a crime punishable with death or life imprisonment. "Accused" means a person charged with or suspected with the commission of a crime punishable with death or life imprisonment. "Competent Authority" means the Member Secretary, Delhi legal Services Authority. ADMISSION TO PROTECTION: The Competent Authority, on receipt of a request from a witness shall determine whether the witness requires police protection, to what extent and for what duration. FACTORS TO BE CONSIDERED: In determining whether or not a witness should be provided police protection, Competent Authority shall take into account the following factors: i) The nature of the risk to the security of the witness which may emanate from the accused or his associates. ii) The nature of the investigation or the criminal case. iii) The importance of the witness in the matter and the value of the information or evidence given or agreed to be given by the witness. iv) The cost of providing police protection to the witness. OBLIGATION OF THE POLICE: (1) While recording statement of the witness under Section 161 Cr.P.C., it will be the duty of the Investigating Officer to make the witness aware of the "Witness Protection Guidelines" and also the fact that in case of any threat he can approach the Competent Authority. This the Investigating Officer will inform in writing duly acknowledged by the witness. (2) It shall be the duty of the Commissioner of Police to provide security to a witness in respect of whom an order has been passed by the Competent Authority directing police protection. We further direct that the respondent State shall give due publicity to the guidelines framed. We make it clear that the guidelines framed by us would not be in derogation of the powers of the concerned criminal court, if it forms an opinion that a witness requires police protection to so direct. Ajay Pandit @ Jagdish Dayabhai Patel v. State of Maharashtra (2012) Death sentence has been awarded by the High Court of Bombay to Ajay Pandit @ Jagdish Dayabhai Patel for double murder, in separate incidents. The Bombay High Court heard both the appeals together and rendered a common judgment in 2005 confirming the order of conviction and enhancing the sentence of life imprisonment to death and ordered to be hanged till death against which this appeal has been preferred. Appeal was made before the SC in which the court had to examine whether the High Court properly appreciated the purpose and object of Section 235(2) Cr.P.C. and applied the same bearing in mind the fact that they were taking away the life of a human being. Three Judges Bench of SC in Malkiat Singh v. State of Punjab; (1991) 4 SCC 341 indicated the necessity of adjourning the case to a future date after convicting the accused and held as follows: “On finding that the accused committed the charged offences, Section 235(2) of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him. Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the Court facts and material relating to various factors on the question of sentence and if interested by either side, to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty. Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence, to show grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be.” Supreme Court in a recent judgment in Rajesh Kumar v. State through Government of NCT of Delhi, (2011) examined at length the evaluation of sentencing policy and the concept of mitigating circumstances in India relating to the death penalty. The meaning and content of the expression “hearing the accused” under Section 235(2) and the scope of Sections 354(3) and 465 Cr.P.C. were elaborately considered. The Court held that the object of hearing under Section 235(2) Cr.P.C. being intrinsically and inherently connected with the sentencing procedure, the provisions of Section 354(3) Cr.P.C. which calls for recording of special reason for awarding death sentence, must be read conjointly. The Court held that such special reasons can only be validly recorded if an effective opportunity of hearing as contemplated under Section 235(2) Cr.P.C. is genuinely extended and is allowed to be exercised by the accused who stands convicted and is awaiting the sentence. SC observed that we find from the records that the High Court has only mechanically recorded what the accused has said and no attempt has been made to elicit any information or particulars from the accused or the prosecution which are relevant for awarding a proper sentence. The accused, of course, was informed by the Court of the nature of the show- cause-notice. What was the nature of show cause notice? The nature of the show-cause-notice was whether the life sentence awarded by the trial court be not enhanced to death penalty. No genuine effort has been made by the Court to elicit any information either from the accused or the prosecution as to whether any circumstance exists which might influence the Court to avoid and not to award death sentence. Awarding death sentence is an exception, not the rule, and only in rarest of rare cases, the Court could award death sentence. The state of mind of a person awaiting death sentence and the state of mind of a person who has been awarded life sentence may not be the same mentally and psychologically. The court has got a duty and obligation to elicit relevant facts even if the accused has kept totally silent in such situations. In the instant case, the High Court has not addressed the issue in the correct perspective bearing in mind those relevant factors, while questioning the accused and, therefore, committed a gross error of procedure in not properly assimilating and understanding the purpose and object behind Section 235(2) Cr.P.C. In such circumstances, we are inclined to set aside the death sentence awarded by the High Court and remit the matter to the High Court to follow Section 235(2) Cr.P.C. in accordance with the principles laid down. The conviction awarded by the High Court, however, stands confirmed. 154‘ Report of the Law Commission on The Criminal Procedure Code. CHAPTER XIII, PLEA BARGAINING Gian Singh v. State of Punjab (2012) The issue before the three judge bench of SC was whether Section 320 of the Cr.PC creates a bar or limits or affects the inherent powers of the High Court under Section 482 of the Cr.PC. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.” It is clear from the reading of the passages extracted above, that offence under Section 307 is not treated as a private dispute between the parties inter se but is held to be a crime against the society. Further, guidelines are laid down for the Courts to deal with such matters when application for quashing of proceedings is filed, after the parties have settled the issues between themselves. When we apply the ratio/principle laid down in the said case to the facts of the present case, we find that the injuries inflicted on the complainant were very serious in nature. The accused was armed with sword and had inflicted blows on the forehead, ear, back side of the head as well as on the left arm of the complainant. The complainant was attacked five times with the sword by the accused person out of which two blows were struck on his head. But for the timely arrival of brother of the complainant and another lady named Preeti, who rescued the complainant, the attacks could have continued. In a case like this, the High Court should not have accepted the petition of the accused under Section 482 of the Code. As a result of the aforesaid discussion, this appeal is allowed and the order of the High Court is set aside. The concerned Magistrate shall proceed with the trial of the case.