5

RELEVANT CONSIDERATIONS FOR GRANTING BAIL

(a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. Vaman Narain Ghiya v. State Of Rajasthan, Hon’ble Supreme Court has held that:- Balance to be maintained between the personal liberty of the accused and the investigational right of the police. –An accused is not detained in custody with the object of punishing him on the assumption of his guilt. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt. Detailed discussion of the evidence and elaborate documentation of the merits is to be avoided while considering an application for bail- While considering an application for bail, detailed discussion of the evidence and elaborate documentation of the merits is to be avoided. This requirement stems from the desirability that no party should have the impression that his case has been pre-judged. Existence of a prima facie case is only to be considered. Elaborate analysis or exhaustive exploration of the merits is not required. (See Niranjan Singh and Anr. v. Prabhakar Rajram Kharote and Ors). Where the offence is of serious nature the question of grant of bail has to be decided keeping in view the nature and seriousness of the offence, character of the evidence and amongst others the larger interest of the public. (See State of Maharashtra v. Anand Chaintaman Dighe AIR 1990 SC 625 and State v. Surendranath Mohanty 1990 (3) OCR 462). Sukhwant Singh and Others v. State Of Punjab, it was held that:- Reputation of a person is his valuable asset and is a facet of his right under Article 21- Grant of interim bail pending regular bail application Following the decision of this Court in the case of Kamlendra Pratap Singh Vs. State of U.P. and Others [(2009) 4 SCC 437], we reiterate that a Court hearing a regular bail application has got inherent power to grant interim bail pending final disposal of the bail application. In our opinion, this is the proper view in view of Article 21 of the Constitution of India which protects the life and liberty of every person. The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution When a person applies for regular bail then the court concerned ordinarily lists that application after a few days so that it can look into the case diary which has to be obtained from the police authorities and in the meantime the applicant has to go to jail. Even if the applicant is released on bail thereafter, his reputation may be tarnished irreparably in society. The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution vide Deepak Bajaj v. State of Maharashtra and Another [(2008) 16 SCC 14]. Hence, we are of the opinion that in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application. Of course, it is in the discretion of the court concerned to grant interim bail or not but the power is certainly there. State of U.P. Through C.B.I v. Amarmani Tripathi Factors to be considered while granting bail: It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge;(iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (See Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi Administration) (1978) 1 SCC 118). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. Scope of interference in the matters of bail – Art 136 The general rule that this Court will not ordinarily interfere in matters relating to bail, is subject to exceptions where there are special circumstances and when the basic requirements for grant of bail are completely ignored by the High Court. Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Another Person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation Findings of a higher court or a coordinate bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, but the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country.In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting. Subsequent bail application – Allowed, if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country. Akhtari Bi (Smt.) v. State Of M.P. Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail To have speedy justice is a fundamental right which flows from Article 21 of the Constitution. Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail. This Court, has time and again, reminded the executive of their obligation to appoint requisite number of judges to cope with the ever increasing pressure on the existing judicial apparatus. Appeal being a statutory right, the trial court’s verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction. We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the Court.



5

Judgments Update

State Vs. Azam @Rihan in Crl.L.P.No. 576 of 2016 has held that the victim is the best witness to depose the factum of rape and by whom it was committed and same has to be given utmost importance. Moving forward the Court has held that “In order to establish a conflict between the ocular evidence and the medical evidence, there has to be specific and material contradictions.” Where the eye witnesses’ account is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive. The expert witness is expected to put before the court all material inclusive of the date which induced him to come to the conclusion and enlighten the court on the technical aspects of the case by examining the terms of science, so that the court, although not an expert, may form its own judgment on those material after giving due regard to the expert’s opinion. But wherein all the three material witnesses who are ocular witnesses including the victim, it is very well established on record that they had failed to identify the accused to be the same person who had committed the offence. In these circumstances whenever there is conflict between expert evidence and ocular testimony normally ocular testimony should be preferred unless it belied fundamental facts as has been held by Hon’ble Supreme Court in State of Punjab Vs. Hakam Singh 2005 (3) JCC 1554. K Vs. The State (NCT of Delhi) & Anr. Has held that the conviction solely on the basis of the DNA report is not sustainable which is only a corroborative piece of evidence. The trail court has failed to appreciate that even the proper custody of the case property has not been proved. Ramesh Chander Vs. State of Delhi C.A. 526 of 2002 It is necessary to establish the offence of Sec 498A IPC to prove the charges under Sec. 304BIPC. The prosecution has failed to lead sufficient evidence to prove the guilt of the appellant under Sec. 498A IPC, which tantamount to not proving the commission of offence under Sec. 304B IPC. The prosecution has miserably failed to establish beyond reasonable doubt any cruelty or harassment was meted out to the deceased by the appellant, let alone soon before her death- The prosecution has failed to establish that after the marriage of the deceased, there were circumstances of harassment or cruelty that took place on account of demand of dowry which could connect with the death of the deceased. It is not necessary for a witness to make a statement in consonance with the wording of the section of a statute- what is needed is to find out whether the evidence brought on record satisfy the ingredients thereof. The Court held that for the conviction under section 304B the necessary ingredients are: Deceased was the subject matter of cruelty on account of dowry and culminates into guilt of accused under section 498A IPC The death should have taken place due to bodily injuries other than normal circumstances; and iii. Such death was the subject matter of cruelty soon before death. And the presumption under section 113B of the Evidence Act can be drawn only where the ingredients of Section 304B are fulfilled. But since there is no evidence to prove the cruelty or harassment by the accused section 113B will not be applicable to the facts of the present case. Rajesh Vs. State (NCT of Delhi) Crl. Rev. P No 173 of 2016 and Crl.M.B. No. 411 of 2017, testimony of the Victim( Child) can be sole base of the conviction if there are no material infirmities or discrepancies extracted. No ulterior motive was assigned, prior to the incident there was no animosity or ill will between the parties to falsely rope in the accused for the heinous offence. If after careful scrutiny of the testimony of the child witness the court comes to the conclusion that there is impress of truth in it then there is no reason as to why the court should not accept the evidence of the child. 5. In Robin Vs. Jasbir Kaur in Crl.Misc.No M-25780 of 2015 Hon’ble Punjab and Haryana Court has held that a marriage wherein the husband is a Christian whereas the wife is a sikh is not void for the purpose of granting the maintenance under section 125 of Cr.P.C. Neither Section 11 now Section 12 of the Hindu Marriage Act, 1955 renders a marriage between a Hindu and a Christian void or voidable on the ground that the parties belong to two different religions. A Marriage between a Christian and a Hindu performed as per the Hindu rites with the full consent of both parties cannot be said to be invalid for purpose of claiming maintenance under Sec. 125 Cr.P.C. Further the court has held that a marriage between the person of two religion cannot be held to be void on the ground that it was not performed according to the provisions of Sec.5 of the Indian Christian Marriage Act. The parties are free to file the suit before the Civil Court for declaration that the marriage is void or voidable. Inasmuch as the finding of the Criminal Court in these summary proceedings is neither conclusive nor decisive in the civil proceedings that may be initiated. 6. In Chhaju Ram Vs. Smt. Asha Devi Cr.MMO No. 207 of 2014 Hon’ble Himachal Pradesh High Court has held that Section 12 of the Protection of Women from Domestic Violence Act, 2005 is embodied with the inherent fundamental principle that for amelioration of the financial state of affairs as well as mental agony and anguish that women suffers when she is compelled to leave her matrimonial home. The Statue commands that there has to be some acceptable arrangements so that she can sustain herself. Once the husband is an able bodied young man capable of earning sufficient money, he cannot simply deny his legal obligation of maintaining his wife. 7. In Sanjiv Kumar Jindal Vs. Anil Kumari @ Neelam Hon’ble Delhi High Court has held that the wife as under phychaitric treatment suffering from depression, abusive behaviour and left the house with informing the husband. It is not a simple case of normal wear and tear of the husband and wife. Unilateral termination of the pregnancy by the wife adds to mental torture inflicted upon the husband. The marriage stands annulled on the ground of cruelty as well as desertion.



5

156(3) of Cr PC-When police does not register FIR

The Power of The Magistrate Under Section 156 (3) of Cr.P.C The information under section 154 of Cr.P.C is generally known as FIR, It is pertinent to see that the word ” first” is not used in Cr.P.C in section 154 of Cr.P.C. Yet, it is popularly known as FIRST INFORMATION REPORT. Nevertheless a person,who is a grievance that police officer is not registering FIR under section 154 of Cr.P.C, such a person can approach Superintendent of Police (SP), with written application, under sub-section 3 of section 154 of Cr.P.C. In case of SP also does not still register FIR, or despite FIR is registered, no proper investigation is done, in such a case, the aggrieved person can approach Magistrate concerned under section 156 (3) of Cr.P.C. If that be so, it is very essential and interest to know the powers conferred on Magistrate under section 156 (3) of Cr.P.C. Therefore, I deem that it is very useful if it is discussed with relevant case law as to the powers of Magistrate under section of 156 (3) of Cr.P.C. Section 156(3) is very briefly worded. The powers of Magistrate are not expressly mentioned in section 156 (3) of Cr.P.C. If that be so, a paucity will be crept mind that whether 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 or not. That too, an aggrieved person has right to claim that the offence he alleges be investigated properly. However, The Hon’ble Supreme Court held 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. The Classification Of Magistrates: Before discussing the powers of Magistrate under section 156 (3) of Cr.P.C, it is necessary to understand the categories of Magistrates in our country. The classification of Magistrates is given in the Code of Criminal Procedure,1973. It stipulates that in each sessions district, there shall be · Executive Magistrates · Judicial Magistrate of Second Class · Judicial Magistrate of First Class; and · The Chief Judicial Magistrate Inasmuch as section 156 (3) of Cr.P.C says that ” Any Magistrate empowered under section 190 may order such an investigation as above mentioned”., we must understand section 190 of Cr.P.C. Let us see the relevant case law in order to know the power of Magistrate under section 156 (3) of Criminal Procedure Code,1973. – It has been held by The Hon’ble Apex 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”. This view was agreed in Sakiri Vasu vs State Of U.P. And Others. – In Sakiri Vasu vs State Of U.P. And Others, it was further held 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 Section 156 (3) Cr.P.C. before the learned Magistrate concerned. If such an application under Section 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. – Thus in Mohd. Yousuf vs. Smt. Afaq Jahan & Anr. JT 2006(1) SC 10, this Court observed: The clear position therefore is that any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigating under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.µ. – The same view was taken by this Court in Dilawar Singh vs. State of Delhi JT[1] (vide para 17). It was also observed in Sakiri Vasu vs State Of U.P. And Others that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) Cr.P.C., and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order orders as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) Cr.P.C. – Section 156 (3) states: Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.µ The words `as above mentioned obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station. – Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same. – The power in the Magistrate to order further investigation under Section 156(3) is an independent power, and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order re-opening of the investigation even after the police submits the final report, vide State of Bihar vs. A.C. Saldanna. – – It was further held that ” Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation”.- It was further held that ” It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution”. – It was further held that ” The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd edn. page 267):- If these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the legislative intent would likely be defeated by a most insignificant omission µ. In ascertaining a necessary implication, the Court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein”. – In Savitri vs. Govind Singh Rawat[3] the Hon’ble Supreme Court held that the power conferred on the Magistrate under Section 125Cr.P.C. to grant maintenance to the wife implies the power to grant interim maintenance during the pendency of the proceeding, otherwise she may starve during this period. – The Hon’ble Supreme Court has affirmed the doctrine of implied powers are Union of India vs. Paras Laminates AIR 1991 SC 696, Reserve Bank of India vs. Peerless General Finance and Investment Company Ltd AIR 1996 SC 646 (at p. 656), Chief Executive Officer & Vice Chairman Gujarat Maritime Board vs. Haji Daud Haji Harun Abu 1996 (11) SCC 23, J.K. Synthetics Ltd. vs. Collector of Central Excise, AIR 1996 SC 3527, State of Karnataka vs. Vishwabharati House Building Co-op Society 2003 (2) SCC 412 (at p. 432); Savitri vs. Govind Singh Rawat, and ITO, Cannanore vs. M.K. Mohammad Kunhi, AIR 1969 SC 430, etc. On observing the above rulings, in Sakiri Vasu vs State Of U.P. And Others, the Hon’ble Supreme Court held 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. And it was held that they are implied in the above provision. -In Sakiri Vasu vs State Of U.P. And Others, it was further held 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. And further held 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). – it was further that ”If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?” – And also held that ” 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.” – In Union of India vs. Prakash P. Hinduja and another 2003 (6) SCC 195 (vide para 13), it has been observed by The Hon’ble Apex Court that a Magistrate cannot interfere with the investigation by the police. However, in our opinion, the ratio of this decision would only apply when a proper investigation is being done by the police. If the Magistrate on an application under Section 156(3) Cr.P.C. is satisfied that proper investigation has not been done, or is not being done by the officer-in-charge of the concerned police station, he can certainly direct the officer in charge of the police station to make a proper investigation and can further monitor the same (though he should not himself investigate). – It may be further mentioned that in view of Section 36 Cr.P.C. if a person is aggrieved that a proper investigation has not been made by the officer-in-charge of the concerned police station, such aggrieved person can approach the Superintendent of Police or other police officer superior in rank to the officer-in-charge of the police station and such superior officer can, if he so wishes, do the investigation vide CBI vs. State of Rajasthan and another 2001 (3) SCC 333 (vide para 11), R.P. Kapur vs. S.P. Singh AIR 1961 SC 1117 etc. Also, the State Government is competent to direct the Inspector General, Vigilance to take over the investigation of a cognizable offence registered at a police station vide State of Bihar vs. A.C. Saldanna . – In CBI vs. State of Rajasthan and another 2001 (3) SCC 333, the Hon’ble Supreme Court held that ” the Magistrate cannot order investigation by the CBI”. – In Sakiri Vasu vs State Of U.P. And Others , it was held that 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. – In Secretary, Minor Irrigation & Rural Engineering Services U.P. and others vs. Sahngoo Ram Arya and another 2002 (5) SCC 521 (vide para 6) , the Hon’ble Apex Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by the CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation. – -Nareshbhai Manibhai Patel vs State Of Gujarat And Ors[4] ,In this ruling, it was held that under Section 156(3) of Cr.P.C., a Magistrate cannot direct C.B.I. to conduct an enquiry. A Court white exercising revisional powers put itself into the position of the Court passing the impugned order and then examines the question and revises the order if need be. Therefore, while exercising revisional powers this Court would not be competent to order an investigation through C.B.I. or C.I.D., as is prayed for by the revisioner. K. Vijaya Laxmi vs K. Laxminarayana And Ors[5]. The Hon’ble High Court of Andhra pradesh held as ” It is, however, unfortunate to note that the learned Magistrate proceeded under Section 156(3), Cr.P.C. in this case and then on filing of the charge-sheet by the police, took cognizance of the offence on the basis of such police report, ignoring the provisions under Section 198, Cr.P.C. Section 198 of Cr.P.C. contemplates that if the offence is under Section 494, I.P.C., then the Magistrate is prohibited from taking cognizance of such offence, except on a complaint made by some person aggrieved by the offence. In this case, the person aggrieved by the offence committed by accused 1 and 2 is the wife of the accused No. 1 i.e., the de facto complainant. The offence could have been taken cognizance on the complaint filed by the de facto complainant or on the complaint filed by some one on her behalf as contemplated under Section 198(1)(c) of Cr.P.C. In the light of this provision, the learned Magistrate ought not to have taken cognizance of the offence on the basis of the charge-sheet filed by the police. This may have grave consequences. I had half a mind to set the clock back and to quash the cognizance taken by the learned Magistrate and direct him to proceed from the stage of the complaint under Section 200, Cr.P.C. and other relevant provisions under Cr.P.C. But I am not inclined to do so considering the fact that the complaint was lodged as far back as in the year 1989. At this stage rolling back the proceedings would amount to causing great hardship to the accused, who would be required to go through the ordeal of almost a fresh trial after almost eleven years”. – The Hon’ble High Court of Madhya Pradesh observed that the judgment of the Apex Court in the case of Suresh Chand Jain v. State of Madhya Pradesh and Anr., I (2001) CCR 54 (SC) : 2001 (1) Crimes 171 (SC), in which it is held that in a private complaint the Magistrate has power to direct police for investigation under Section 156(3), Cr.P.C. before taking cognizance of the offence. The Magistrate can also order police to register the First Information Report and conduct investigation and in such case the Magistrate is not bound to examine the complainant. -In Polavarapu Jagadiswararao v. Kondapaturi Venkateswarlu, wherein it is held as follows :- “As noted supra, on receipt of a complaint under S. 200, Cr.P.C., the Magistrate shall record the sworn statements of the complainant and the witnesses, if any, present and (i) may take cognizance of the offence under S. 190(1)(a) and issue process, or (ii) postpone the issue of process under S. 202 and (a) inquire into the case himself or (b) direct investigation by police. Thus, the discretion under S. 202, Cr.P.C., lies with the Magistrate either to inquire into the case himself or direct investigation by the police. It is also open to the Magistrate to issue or postpone issue of process. While exercising his discretion, the Magistrate scrutinises the complaint, the sworn statement of the complainant and also of those recorded from the witnesses, if any, and then arrives at a decision as to whether to take cognizance of the offence under S. 190(1)(a) or to postpone issue of process under S. 202, Cr.P.C. or to refer the case to the police under S. 156(3), Cr.P.C. for investigation. It is only in case of deciding that the material is not sufficient to take cognizance of the offence he may refer the matter to the police under S. 156(3) for purposes of investigation. Therefore, when once the Magistrate after scrutinising the complaint, the sworn statements and other material comes to the conclusion that he can take cognizance of the offence, there is no need to have a resort to S. 156(3).” -The Hon’ble Supreme Court held in D. Lakshaminarayana v. V. Narayana, after comparing the relevant provisions of the 1898 Code and the 1973 Code, it was held as follows (at page 1365; of Cri LJ) :- “It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words ‘may take cognizance’ which in the context in which they occur cannot be equated with ‘must take cognizance’. The word ‘may’ gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under S. 156(3) will be conclusive to justice and save the valuable time to the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself. This raises the incidental question : What is meant by ‘taking cognizance of an offence’ by the Magistrate within the contemplation of Section 190 ? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under section 200 and the succeeding sections in Chapter XV of the Code of 1973 he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If, instead of proceeding under Chapter XV, he, has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under section 156(3), he cannot be said to have taken cognizance of any offence. The position under the Code of 1898 with regard to the power of a Magistrate having jurisdiction to send a complaint disclosing a cognizance offence – whether or not triable exclusively by the Court of Session – to the Police for investigation under section 156(3), remains unchanged under the Code of 1973. The distinction between a police investigation ordered under section 156(3) and the one directed under section 202, has also been maintained under the new Code; but a rider has been clamped by the 1st Proviso to Section 202(1) that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been committed, he shall not make any direction for investigation. Section 156(3) occurs in Chapter XII, under the caption : ‘Information to the Police and their powers to investigation’; while Section 202 is in Chapter XV which bears the heading ‘Of complaints to Magistrate’. The power to order police investigation under S. 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the precognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under S. 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or chargesheet under section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under section 202 to direct, within the limits circumscribed by that section, an investigation ‘for the purpose of deciding whether or not there is sufficient ground for proceeding.’ Thus the object of an investigation under section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.”



5

Aggrieved Fathers?

A lot number of cases are coming forward wherein the mothers under the pretext of going to their parental house along with their children, then decide not to come back to their Matrimonial home and file criminal as well as civil cases at their native place and the aggrieved fathers are denied the custody of their child for no reason whatsoever. Since the aggrieved fathers or his family members then had to face the false and baseless litigation at the place of the parental house of the wife, but situation becomes worse when they were even denied the visitation or custody of the child. But now the courts have started to think from husband and his family member’s point of view in granting the relief. Recently Hon’ble Delhi High Court qua Justice Pradeep Nandrajog and Justice Pratibha Rani had come to the rescue of such a father who had not met his daughter for three years. The court said: “A father, who is ready and willing to pay maintenance for his daughter, is also entitled to see his daughter at least on festivals, her birthday or at regular intervals.” Advocate Prashant Mendiratta said, “You cannot equate visitation rights with maintenance. Why should the earning capacity be linked with visiting the child? Having said this, it is the duty of every father to maintain his child. However, the current judgment would go as a precedent for those fathers who are maintaining their child and yet being kept away from them.”



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