The subject of confession is not defined in the Indian law. As per Article 22 of Stephen’s Digest of the Law of Evidence, Confession is defined as “an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime”.

Article 20(3) of the Constitution of India mandates that no person accused of any offence shall be compelled to be a witness against himself. In the light to the aforesaid provision, the Indian Legal System does not accord much significance to confessions by an accused.

Section 25 of Indian Evidence Act, 1872 deals with confession made by any person to a police officer and states that no such statement can be proved against any person accused of any offence. This section works on the logic that if confessions to police were allowed to be used as evidence, the police would torture the accused and force him to confess to a crime which he might not have committed. The words “statement made to a police officer” necessarily connote the idea of communication or in other words, a statement being communicated to a police officer by any person. These words also definitely imply that there should be some direct or indirect nexus or connection between the person making the statement and the police officer. Therefore, it is clear that there must be some communication to a police officer for the purposes of showing that the statement was made to a police officer.

Section 26 of Indian Evidence Act deals specifically with those confessions which are made by an accused whilst he is in the custody of a police officer and states that no such confession shall be proved against the person who is making it.

Section 27 of Indian Evidence Act lays down that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. This section was once a matter in controversy as the contents of it might appear to be contradictory to its preceding sections. It is more than a mere exception to all or any of the preceding sections; it deals with ”information” whereas the preceding sections deal with only confessions. Sections 25 and 26 of Indian Evidence Act overlap to some extent as a confession by a person in custody to a police officer is hit by both of them. Section 27 of Indian Evidence Act deals with any information confirmed by subsequent facts received from a person in custody whether such information is received by a police officer or by someone else.

A confession made by the accused, while he is in custody or not, to a police officer or the making of which is procured by inducement, threat or promise having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence. Confession made by the accused whilst in the custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate. That part of the information given by a person whilst in police custody whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered no more, is provable in a proceedings in which he is charged with the commission of an offence. A statement made a person to police officer in the course of an investigation of an offence under Chapter XIV of the Code of Criminal Procedure, cannot except to the extent permitted by Section 27 of the Indian Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence.

All these sections, the expression “accused person” in Section 24 of Indian Evidence Act and the expression “a person accused of any offence” have the same connotation, and describe the person, against whom evidence is sought to be led in a criminal proceeding. Even if it is an admission, if it is made in the course of investigation under the Cr.P.C. to a Police Officer, then the same will not be admissible under Section 162 of the Cr.P.C. as it clearly prohibits the use of the statement made to a police officer under Section 161 of the Cr.P.C. except for the purpose, which is mentioned therein.

A statement made by an accused person is admissible against others who are being jointly tried with him only if the statement amounts to a confession. Where the statement falls short of a confession, it is admissible only against its maker as an admission and not against those who are being jointly tried with him.

Sections 25 and 26 of Indian Evidence Act were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. By the combined operation of Section 27 of the Evidence Act and Section 162 of the Code of Criminal procedure, the admissibility in evidence against a person in a criminal proceedings of a statement made to police officer leading to the discovery of a facts depends for its determination on the question whether he was in custody at the time of making the statement. The said statement is provable if he was in custody at the time he made it, otherwise it is not. Where a person goes to a police officer and makes a statement which shows that an offence has been committed by him, he accuses himself and though he is formally not arrested, since he is not free to move wherever he likes after disclosure of the information to the police he must be deemed to be in custody of the police. After interrogation, the accused makes a statement and led the police to a field and thereafter produced certain articles which were the subject-matter of a criminal offence was sufficient to establish that there was submission on his part to police custody. The word ‘custody’ in Sections 26 or 27 of Indian Evidence Act, does not mean formal custody but includes such state of affairs in which the accused can be said to have come into the hands of a police or can be said to have been under some sort of surveillance or restriction. Thus in all cases the ‘police custody’ is deemed to extend even when the accused was deemed to have submitted to such custody of a police officer by submitting to the interrogation and by making statements about discovery and who could not thereafter be said to be a freeman. If the statement to police is hit under Sections 25 or 26 of Indian Evidence Act as tainted evidence.

The principle underlying Section 27 of Indian Evidence Act that the evidence relating to confessional or other statement made by a person while a person is in the custody of the police is tainted and, therefore, inadmissible. But if the truth of the information given by him is assured by discovery of a fact, it may be presumed to be untainted. This would on the one hand shut out all evidence of a tainted nature while on the other hand permit the proof of so-much of the information whether it amounts to confession or not distinctly leads to the discovery of a fact on the ground that its truth is assured.

In the light of these principles first consider whether the confession is hit by Sections 24 to 26 of Indian Evidence Act and thereafter consider the question of applicability of the proviso contained in Section 27 of Indian Evidence Act which creates the limited exception by making admissible that part of the information which distinctly relates to the facts discovered provided that the accused person is deemed to have submitted himself to the police custody.

Section 162 Cr.P.C. excludes a statement made to a police officer but would not exclude the incriminatory conduct of an accused decrypted and discerned. Section 162 Cr.P.C. bars the prosecution from relying on the statement of an accused, and not evidence relating to the accusing conduct, before, at the time of occurrence and thereafter, divulged and disseminated by the accused when confronted or questioned by the police officers. The said provision states that the conduct of a party, both antecedent and subsequent in reference to a proceeding or reference to any issue or relevant fact is relevant. Where inculpatory information or other clues are revealed by the accused, evidence of the Investigating Officer to this effect would be admissible under Section 8 of the Evidence Act, when the said fact is corroborated by a third person for the facts testified by the public witness would relate to the conduct of the accused. The information given by an accused that provides lead to the Investigating Officer that unravel facts relating to the accused’s conduct, which were till then unknown to the Investigating Officer and which could not have been known, but for such information coming from the accused when sufficiently proved and corroborated by a public witness would fall under Section 8. This evidence can be relied to prove the accused’s complicity. The evidence of conduct when led would carry the credibility and weight depending on the facts including nature of confirmation and back ground facts, as is the case of Section 27 of the Evidence Act. The probative value and weight are matters of assessment dependent upon the factual matrix of each case. Sometimes the disclosure statement made by the accused is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8 of the Evidence Act. The expression ‘fact discovered’ includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused.

Admission is defined in Section 17 of the Evidence Act, as a statement suggesting any inference as to any act in issue of relevant fact made by a party to a proceeding, such as an accused. Admissions are relevant and may be proved as against the person making them, vide Section 21 of Evidence Act. A confession is a specie of an admission of an accused. It is an acknowledgment in express words of the truth of the guilty fact charged. It is admission of all the facts in issue and consists expressly or impliedly of as many admissions as there are facts in issue.

The court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of the accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act.

The ‘right against self- incrimination’ does not protect persons who may be compelled to undergo the tests in the course of administrative proceedings or any other proceedings which may result in civil liability. It is also conceivable that a person who is forced to undergo these tests may not subsequently face criminal charges. In this context, Article 20(3) will not apply in situations where the test results could become the basis of non-penal consequences for the subject such as custodial abuse, police surveillance and harassment among others.

Similarly, a statement recorded under Section 67 of the NDPS Act cannot be used against an accused offender in the trial of an offence under the NDPS Act.

The Hon’ble Supreme Court noticed common deficiencies which occur in the course of criminal trials and certain practices adopted by trial courts in criminal proceedings for interpreting and exhibiting the disclosure statements. So, the Hon’ble Supreme Court has suo moto took the action to check and cure the anomaly. The Hon’ble Supreme Court has directed the Hon’ble High Courts to make the rules regarding the exhibiting of the disclosure statemnts of the accused. The hon’ble Supreme Court has observed that the Presiding Officers shall ensure that only admissible portion of Section 8 or Section 27 Indian Evidence Act, 1872 is marked and such portion alone is extracted on a separate sheet and marked and given an exhibit number. This will make the uniformity regarding the interpretation, appreciation and exhibition of the disclosure statement in the trial.

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When the criminal law is set into motion against the accused, then the accused has to appear before the investigating officer or before the Illaqa magistrate. Court itself or on the request of the investigating officer may issue warrant of arrest, when the accused do not appear before a police officer during investigation or when he does not appear before the Illaqa magistrate or trial court. The proclaimed offender is a person eluding the authorities and the law. Proclaimed offender (PO) procedure is a judicial process by which the person is declared a criminal and instructs the police officers concerned to arrest the person named in the proceedings and to present him before the court. Under section 82 Cr.P.C., if the court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of publishing such proclamation. The publication of proclamation shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides, the same shall be affixed at some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village, the copy of the publication of proclamation shall be affixed to some conspicuous part of the Court-house or if the Court thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. A statement of the official will be recorded in writing by the Court issuing the proclamation, to the effect that the proclamation was duly published on a specified day, in the manner specified. The statement shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. Where a proclamation published is in respect of accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a ‘proclaimed offender’ and make a declaration to that effect. Proclaimed Offender would be any offender who has suffered declaration after proclamation under Section 82(1) or Section 82(4) Cr.P.C. according to Section 82(2), (3) and Section 82(5) Cr.P.C. The persons accused of having committed offences mentioned under Section 82(4) Cr.P.C. can only be declared a proclaimed offender. Any person who has been declared a proclaimed person under Section 82(1) Cr.P.C. or under Section 82(4) Cr.P.C. will be at par for the purpose of all the liabilities and consequences attached to a person declared proclaimed offender. Order of declaring an accused a proclaimed offender cannot be challenged solely on the ground that the offence alleged to have been committed by him is not included in the sections mentioned in Section 82(4) Cr.P.C.

When proclamation is issued under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine. When a person is declared a ‘Proclaimed Offender’ u/s 82(4) CrPC he is liable for greater punishment up to 7 years whereas if he is declared ‘absconder’ or ‘proclaimed person’ u/s 82(1) CrPC he is liable for lesser punishment up to for 3 years.

Section 174A of Indian Penal Code prescribes punishment for non-appearance in response to a proclamation under section 82 of Cr.P.C.

If anyone is declared as a proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail. The declaration of the proclaimed offender means that any citizen of India can arrest the accused at anytime and anywhere. State of M.P. v. Pradeep Sharma, 2014 (2) SCC 171 & Lavesh v. State (NCT of Delhi), 2012 (8) SCC 730.

The sine qua non for an action under Section 82 of the Cr.P.C. is the prior issuance of a warrant of arrest by the Court. There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself so that such warrant cannot be issued. An attachment warrant under section 83 Cr.P.C. can be issued only after the issuance of a proclamation. Rohit Kumar alias Raju v. State of N.C.T., Delhi and Another, 2008(1) RCR (Criminal) 101.

Proclamation not publicly read in village where accused resided as per section 82 Cr.P.C. Non-compliance cannot be cured and renders proclamation proceedings subsequent thereto a nullity. Harvinder Singh v. State of Haryana and another, 2021 (1) RCR (Criminal) 493.

Section 82 Cr.P.C. shows that before a proclamation can be issued, the court should have reasons to believe that a person against whom a warrant was issued has absconded or is concealing himself and that the warrant cannot be executed. It may be subjective satisfaction but it cannot be totally without any material. Only after recording such satisfaction, the Court can direct eh publication of a written proclamation requiring such person to appear at a specified place within the period, not less than 30 days from the date of said publication. Where no effort is made by the trial court to serve the petitioner at the address given in the FIR either after challan was filed or during investigations, then issuing proclamation under Section 82 Cr.P.C. declaring him to be a proclaimed offender are not sustainable. It was also categorically held that the date of appearance of accused shall not be less than 30 days from the date of publication. Therefore, when no effort is made to serve the summons on the accused, he cannot be declared as Proclaimed Offender. Sunil Kumar v. State, 2002 (1) RCR (Criminal) 119.

A person charged with offences under sections 406, 420, and 120B of the Indian Penal Code cannot be declared a `proclaimed offender’ under Section 82(4) of the Code of Criminal Procedure. These provisions of IPC that the Investigating Agency was intended to invoke are not within the scope of Section 82(4) of the Cr.P.C. Arun Kumar Parihar v. State (Government of NCTD), 2021 (2) RCR (Criminal) 556.

Since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. The Courts have to be extra-cautious and careful while directing issue of non-bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. Whereby non-bailable warrant of arrest were issued against the accused, the court has to be prima facie satisfied that the person accused of committing a non-bailable offence is also evading his arrest. There has to be material before the court to reach at the aforesaid conclusion. Without recording such subjective satisfaction to the effect that the accused is also evading his arrest, which should be on the basis of the material placed before the court, warrants of arrest cannot be issued and such satisfaction can be derived from the police paper/case diary. Further, mere absence of the accused cannot give rise to a presumption that he is evading arrest which in turn cannot be the sole ground to issue warrant of arrest. Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791.

Declaring a person declared a felon will result in a Section 174A IPC, punishable by a sentence of up to 3 or 7 years. It affects the life and freedom of a person under Article 21 of the Constitution of India and it is necessary to ensure that the procedures of Sections 82 and 83 of the CrPC are not routinely enacted and that due process is followed. The second important aspect is that, once a person has been declared a criminal, the state must use all reasonable efforts to arrest them and confiscate their property, as well as initiate legal proceedings under Section 174A of the IPC. Sunil Tyagi v. Govt of NCT of Delhi & Anr., (2012) 8 SCC 730.

Normally arresting the accused is the duty of the police officer in the station near the place the criminal resides. But, a proclaimed offender can be arrested by any police officer in any jurisdiction without a warrant or an official confirmation from the Magistrate. Rather, a proclaimed offender can be apprehended by anybody and handed over to the local police station officer or a police station without hesitation. When an accused is apprehended, a statement is given to the police officer to take his name off the list. To summarise, a proclaimed offender is somebody who fails to appear in court even after warrants have been issued against him. As a result, the Criminal Procedure Code concisely mentions every procedure and scenario relating to proclaimed offenders and what must be done if they flee.

The concept of bail can be traced back to 399 BC, when Plato tried to create a bond for the release of Socrates. The modern bail system evolved from a series of laws originating in the middle ages in England. In the Magna Carta, in 1215, the first step was taken in granting rights to citizens. It said that no man could be imprisoned without being judged by his peers on the law of the land. In 1275, in United Kingdom, the Statute of Westminister was enacted which divided crimes as bailable and non-bailable. It also determined which judges and officials could make decisions on bail. In 1628, an English constitution document titled as `Petition of Rights’ was passed by the Crown, for setting out specific individual protection against the state. In 1679, the Habeas Corpus Act was added to the Right of Petition of 1628, which gave the rights to the accused to know about the charges against him, whether the charges against him are bailable or not. The Habeas Corpus Act, 1679 states, “A magistrate shall discharge prisoners from their imprisonment taking their recognizance, with one or more surety, in any sum according to the magistrate’s discretion, unless it shall appear that the party is committed for such matter offences for which by law the prisoner is not bailable.”

Bail is an instrument to guarantee the appearance of the accused person at trial or to make sure the reliability of the procedure by preventing from manipulation of the evidence or with the witness. Webster’s Law Dictionary defines Bail as, “a temporary release of a person in exchange for security given for the prisoner’s appearance at a later hearing”.

The Criminal Procedure Code, 1973, does not define bail. Although, the terms `bailable offences’ and `non-bailable offences’ have been defined in section 2(a) of Cr.P.C., which are as follows: “Bailable offences means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being in force, and non-bailable offence means any other offence.”

Further, Section 436 to 450 of Criminal Procedure Code set out the provisions for the grant of bail and bail bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a monetary cap on the bond. Unfortunately, it has been seen that courts have not been sensitive to the economic plight of the weaker sections of society.

According to the 78th report of the law commission as on april1, 1977, of a total prison population of 1, 84,169, as many as 1, 01,083 (roughly 55%) were under-trials.

First time in India, in the year 1977, Justice Krishna Iyer raised his voice against the unfair system of bail administration. Hon’ble Justice said that though while the system of pecuniary bail has a tradition behind it, a time for rethinking has come. It may well be that in most cases an undertaking would serve the purpose. (State of Rajasthan v. Balchand, AIR 1977 S.C. 2447)

In the words of Justice V.R. Krishna “The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.”

In Moti Ram and Ors. v. State of M.P., AIR 1978 S.C. 1594); Justice Krishna Iyer opined that the judges should be more inclined towards bail and not jail.

The term “Bailable Offence” is defined under section 2(a) of code of criminal procedure, as an offence which is shown as bailable in the 1st schedule of Cr.P.C. or which is made bailable by any other law for the time being in force, in the light of second part of the 1st schedule of Cr.P.C.

Any person who has been arrested for any offence which is constituted as a bailable, should be released on bail as it is mandatory in nature. The police have the power to grant bail in these types of cases. Bailable offences are those offences or crimes that are not very serious in nature and in such cases bail is to be granted to the person as a matter of right after depositing the bail bond with the police. (Rasiklal v. Kishore, AIR 2009 SC 1341)

The Sections 50, 56 and 57 of Cr.P.C. should be read cordially in order to understand the concept of bailable offences. When read tighter, there raises a question of constitutional validity of Article 22 of the constitution, where it is assured that the accused person would be informed of the grounds and the nature for the arrest so made. According to these sections, an officer incharge of the Police Station or the court is vested with the authority to release the accused from the custody either on executing personal bonds or with sureties.

The term “Non-Bailable Offence” is also defined under section 2(a) of Cr.P.C., as an offence other than bailable. Non-bailable offences are considered more serious or heinous in nature. The quantum of punishment is higher in non-bailable offences as compared to bailable offences and may extend to Life Imprisonment.

In Non- Bailable offences, bail cannot be claimed as a matter of right and court or the police officer has discretion to grant bail after considering the facts and circumstances of each case. Provisions for bail in non-bailable offence is provided under section 437 of Cr.P.C. Bail in cases where the offence is a non-bailable one, is a matter of prudence. When the discretions are made, it is to be applied by the court of justice and channeled and supervised by the law. The bail granted in non-bailable cases under the provisions of Cr.P.C. should not be indistinguishable and absurd. Instead, it should be made with great caution without any arbitrariness and should always be lawful.

Since the jurisdiction is discretionary, it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of society at large. (Mansab Ali v. Irsan, AIR 2003 S.C. 707)

Certain rules and regulation have been formed by the court and these are to be considered while granting bail to an accused:

1. The vastness of allegation;

2. The description of the indictment;

3. The type of evidence to support the same allegation;

4. The social status of the victim as compared to the accused;

5. The kind and severity of the situation in with the alleged crime is committed;

6. The fear of tampering of the witnesses/evidence;

7. The person who is already facing guilt, the likelihood of committing the offence more crimes;

8. The chance of the person to arrange his defence and to approach counsel of his own;

9. The age and sex of the person and the health of the same.

In Anil Kumar Yadav v. State (NCT) of Delhi and Anr, AIR 2017 S.C. 5398 it was held that “For ensuring fair trial, witnesses must be in a position to freely depose without fear and a fair trial can be ensured only if accused are not enlarged on bail.”

The proviso to Section 437 Cr.P.C. states that the Court may direct that a person be released on bail if such person is under the age of sixteen years or is a woman or sick or infirm. In Pawanbala v. State of H.P. 2015(3) Cri.C.C. 687. It was opined that it is expedient in the ends of justice to release the petitioner on anticipatory bail as per special provision of bail relating to women.

In Prabhakar Tewari v. State of U.P. & Anr., 2020(1) R.C.R. (Cri.) 831 court opined that “Even though several criminal cases were pending against accused, this factor by itself cannot be basis for refusal of prayer for bail.”

In Mohammad Shakil v. State of Haryana CRM-M 5923 of 2011, the opinion of the court in this, once an accused was enlarged on bail for certain offence and if during the investigation new Section is added for which minimum punishment is not life imprisonment or death penalty then Magistrate will be within its jurisdiction to ask the petitioner to furnish fresh bonds for the newly added Section. The accused is not required to seek fresh bail.

As per Section 41(1)(b), Cr.P.C., if accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, can be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid.

In Arnesh Kumar v. State of Bihar: (2014) 8 SCC 273 it was held that the petitioner should be arrested only when the Investigating Officer has reason to believe on the basis of information and material collected, that he has committed an offence.

In Union of India v. K.A. Najeeb, 2021 (3) SCC 713 it was decided that “Long period of incarceration and the number of witnesses mentioned in the challan should be considered for decision the bail application.”

In Sanjay Chandra v. CBI 2011 (4) Criminal Court Cases 892; it was held that The bail application would not survive after the filing of charge sheet. There is no good reason to detain the accused in custody where there was no serious contention that the accused, if released on bail, would interfere with the trial or tamper with evidence

State Of Punjab v. Manvinder Singh And Others 2012(1) RCR (Cri.) 302. Held that For deciding the bail application under section 167(2) Cr.P.C., the day of first remand order will be included while computation of 60/90 days of custody.

In Sanjay Dutt v. State, 1994(3) RCR (Criminal) 684, the constitution bench in this decided that the right under Section 167(2) of Criminal Procedure Code to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of the charge sheet. In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is filed, the said right to be released on bail would be lost. After the filing of the charge sheet, if the accused is to be released on bail, it can be only on merits.

The bail application under section 167(2) Cr.P.C. should be decided on the same day. State v. Zahid Hassan & Ors 2014 (3) Criminal Court Cases 308,

In Pragyna Singh Thakur v. State of Maharashtra 2012(1) RCR (Cri.) 302; Right of accused to be released on bail is not an absolute or indefeasible – Even if an application for bail is filed on the ground that charge-sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge-sheet is filed, the said right to be released on bail would be lost. At the time of deciding the application under section 167 (2) Cr.P.C. merits of the case cannot be looked into. The computation of the period of 60/90 days will start from the first order of remand and not date of arrest. –

In Subhash Chander v. State of Haryana 2020 (3) RCR (Cri.) 136 The period of interim bail will not be included in computation while deciding the bail application under section 167(2) Cr.P.C..

In Saravanan v. State represented by the Inspector of Police, 2020 (9) SCC 101 apex court held that “While considering application for default bail i.e. under section 167 (2) Cr.P.C., only requirement is that accused is in jail for more than 60 or 90 days, as case may be and no other condition can be imposed. Hon’ble Supreme Court quashed certain unnecessary conditions that were imposed while granting bail to the accused, like the accused was directed to deposit Rs. 8,00,000/- and to report before the concerned police station at 10:00 a.m. daily.”

While deciding bail petition it is the duty of the Court to take into consideration certain factors, like (i) the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonably apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) Prima facie satisfaction of the court in support of the charge.

In Neeru Yadav v. State of U.P. and Anr., 2015 (4) Cri.C.C. 293 it was held that when any person has a reason to believe that there is a chance to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move the court of Session or the High Court under Section 438 Cr.P.C. for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

Once a regular bail is granted by a subordinate Court on the strength of the interim/pre-arrest bail granted by the superior Court, even if the superior Court is to dismiss the plea of anticipatory bail upon fuller consideration of the matter, the regular bail granted by the subordinate Court would continue to hold the field, rendering the ultimate rejection of the pre-arrest bail by the superior court is meaningless. Rukmani Mahato v. State of Jharkhand, 2018 (1) SCC (Cri.) 828

The accused can surrender directly before High Court and pray for bail. There are no restrictions on High Court to entertain an application for bail provided the accused is in custody. Sundeep Kumar Bafna v. State of Maharashtra and another, 2014(3) Cri.C.C. 140

In Balan v. State of Kerala, 2003 (4) RCR (Cri.) 733. The accused seeking bail is not bound to approach the Court of Sessions before he can move the High Court.

Under Section 439 of Cr.P.C., High Court and Court of Sessions have special powers to issue directions that any accused of an offence who is in custody should be released on bail, if the offence is of nature defined under Section 437(3). It can direct any condition imposed by a magistrate when releasing any person on bail be set aside or modified.

The expression used in Second category of part II of Schedule I of the Criminal Procedure Code viz., that the term of imprisonment for three years or upwards, but not more than seven years, cannot be equated with the expression used in Section 63 of the Act viz., the imprisonment which may extend to three years. Rajeev Chaudhary v. State (NCT) of Delhi, AIR 2001 SC 2369 & Amarnath Vyas v. State of A.P., 2007 (3) R.C.R. (Cri.) 642.

There is no codified law to deal with the concept of bail. Though there are catena of judgments having the guidelines to grant or refusal of bail. But nuanced and precise guidelines would ultimately have to be laid down by the parliament to reduce the penumbra of ambiguity surrounding the provisions of bail. The criteria for granting bail and imposing conditions while granting bail should be based upon sociological, psychological, criminological, socio-economical and judicial factors. The classification of Bailable and Non-bailable offences as well as their relative seriousness and consequent imprisonment is frequently inconsistent. There should be consistency between the term of imprisonment for offences and their classification as Bailable or Non-Bailable. Section 41 should make it mandatory for the Investigation Officer to record the reasons in the Case Diary and Daily Diary Register, prior to making the arrest, after obtaining written approval by the Station House Officer. This will help in stopping the arbitrary arrests. The magistrate should also consider a two-way approach in order to ensure that the accused is not taken on remand through improper means as well as in determining whether the accused should be released or remanded. In every case the magistrate should pass a speaking and reasoned order to explain why the accused is required to send in judicial custody, after the police remand is over and after the presentation of charge sheet. It should consider the compelling need for the accused to remain in custody as well as the duration of under trial detention undergone by him/ her. In case an accused is in custody and the trial is getting postponed/ adjourned, the Court should release him/her on bail or remand the accused to further custody, for reasons to be recorded in writing. The crime against property and the crime against human body should also have separate guidelines to deal with the bail petitions, as now a days, criminal complaints are used as a means to harass a party or to seek quick relief in civil disputes. In the light of aforesaid discussion, the bail reforms lies on the idea of balancing the human rights of the accused and ensuring the conviction of the offender through a free and fair trial. Hence, the parliament and the Hon’ble Supreme Court needs to give special care to the fields of bail.

Introduction to Principles of Fair Trial:

There are two systems of Criminal Trial, they are 1. Inquisitorial 2. Adversarial system or adversary system. In Inquisitorial System the Judicial Investigation or enquiry by the Judge where the Public are excluded. This type of system is implementing in France & other countries.

In Inquisitorial System the Judicial Investigation or enquiry by the Judge where the public are excluded. This Type of System is implementing in France & other countries. In adversial system of criminal trial public are allowed in court. In India we have adopted adversial system of criminal trial in this process it has only to decide to which party has succeeded in proving his case.

In Adversarial System of Criminal trial generally speaking the prosecutor representing the state the Accused person is to prove his case beyond reasonable doubt. In this adversial system the rights and opportunities are recognized equally to both the parties i.e., the State and the Accused person to present this case before the court. The most vital, pivotal and indispensable condition for a fair trial is:

1) To have an independent, impartial competent judge to conduct the trial

2) A Fair Prosecutor

3) An atmosphere of Judicial Calm

India is signatory to the International covenants such as “International Covenant on Civil and Political Rights and also Universal declaration of Human rights, 1948“. The said International Covenants guarantee to the citizens of signatory nations to the said covenants various rights such as presumption of innocence etc. These salutary features of the International Convenants and Universal declaration of Human Rights are embodied into our constitutional scheme under various Articles viz. Artl. 14, 20, 21, 22 and 39-A, which deal with Fair Trial. Fair Trial is rule of law and heart of Criminal Jurisprudence of all modern civilized nations. Denial of fair trial is crucification of human rights.

II) WHAT IS TRIAL:-

The word Trial is not defined anywhere in Criminal Procedure Code. A Criminal trial is a judicial examination of the facts in the case process in the discovering truth to decide the facts in issues to arrive at a just decision of the controlling question being the guilt or innocence of the accused.

FAIR TRIAL:

India adopted a criminal justice system known as adversarial criminal justice system. The prime aim of system is to give fair trial to the citizens. Fair trial obviously would mean 1) a trial before an impartial judge, 25 2) a fair prosecutor and 3) an atmosphere of judicial calm. A fair trial means a trial in which bias or prejudice for or against the accused, the witness, or the cause which is being tried is eliminated. In a criminal case the fate of the proceedings cannot always by left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice-often referred to as the duty to vindicate and uphold the “Majesty of the Law”. The court administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. The Principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a 26 miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson’s eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.

III) THE SALIENT PRINCIPLES OF THE FAIR TRIAL:

The principle of Fair Trial is deep rooted in Article 21 of the Indian Constitution, which declares that no person shall be deprived of his “life” or “Personal liberty” except according to the procedure established by law. The golden principles of fair trial is:-

1) PRESUMPTION OF INNOCENCE:

The cordinal principles of Criminal jurisprudence is presumption of 27 innocence of the accused. The burden of proving the guilt of the accused beyond all reasonable doubt is upon the prosecution and unless it relieves itself of that burden, the court cannot record finding of the guilt of the accused. This presumption is seen to flow from the Latin Legal Principle i.e. incumbit probation qui dicit, non qui negat, means the burden of proof rests on who asserts, not on who denies. It is basic right of the accused person and human right as laid down in Narendra Singh v. State of Madhya Pradesh, Reported in 2004 Crl.L.J. 2842 and State of U.P. v. Naresh and others, Reported in 2001 (4) SCC 324, wherein the Supreme Court observed that

“Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right subject to the statutory exceptions. The said principles form the basis of criminal jurisprudence in India.” And another decision in Baijnath and others v. State of Madhya Pradesh, Reported in 2016 Law Suit (SC) 1089, a Two Judge Bench of the Supreme Court held that One of the essential ingredients of dowry death under Section 304 -B of the Indian Penal Code is that the accused must have subjected the woman to cruelty in connection with the demand for dowry soon before her death and that this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the court will presume that the accused has committed the offence of dowry death 28 under Section 113-B of the Indian Evidence Act.

If an innocent person is convicted the consequences are so serious that its reverberation are felt throughout the civilian society. It is only to ensure that the court does not wrongly convict an innocent person an accused is presumed to be innocent until proven guilty. At no stage of the trial of a case an accused, the accused is called upon to disprove his innocence.

2) PROHIBITION AGAINST SELF INCRIMINATION:-

The accused has right to remain silent. Article 20 (3) of Indian Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. To attract the protection of Article 20 (3) it must be shown that the accused was compelled to make the statement likely to be incriminative of himself. Compulsion means duress which includes threatening, beating or imprisoning of the wife, parent or child of a person. Thus where the accused makes a confession without any inducement, threat or promise Article 20(3) does not apply. As per Section 316 of Criminal Procedure Code no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter with in his knowledge. In the case of Selvi v. State of Karnataka, (AIR 2010 SC 1974), the Apex Court held that “Narcoanalysis, Polygraphy and Brain Finger Printing (BEAP) tests are testimonial compulsions and are prohibited by 29 Article 20(3) of the Constitution. It was further held that Lie Detector Tests can be done only with the consent of the accused in the presence of his Lawyer and Judicial Magistrate should record the consent of the accused.

3) PROTECTION AGAINST EXPOST FACTO LAW:-

An ex post facto law is a law which imposes penalties retrospectively, i.e., on acts already done and increases the penalty for such acts. Article 20(1) of Indian Constitution imposes a limitation on the law-making power of Legislature. Ordinarily, a Legislature can make prospective as well as retrospective laws, but clause (1) of Article 20 Prohibits the Legislature to make retrospective Criminal laws.

4) PROTECTION AGAINST DOUBLE JEOPARDY:-

The Maxim “Autrefois Acquit and Autrefois Convict“: states that if a person is tried and acquitted or convicted of an offence he cannot be tried again for the same offence or on the same facts for any other offence. Article 20(2) of out Constitution says that “no person shall be prosecuted and punished for the same offence more than once”. This clause empodies the common law rule of “nemo debt vis vexari” which means that no man should be put twice in peril for the same offence. If he is prosecuted again for the same offence for which he has already been prosecuted he can take complete defence of his former acquittal or conviction. Section 300(1) of Criminal Procedure Code also prohibits double jeopardy. 30 In the case of Kola Veera Raghav Rao v. Gorantla Venkateshwara Rao, (2011 (2) SCC 703) the Hon’ble Supreme Court observed that “the language used in Section 300 (1) of Criminal Procedure Code is different from the language used in Article 20 (2) of the constitution. The former is wider than the later. Article 20 (2) of the Constitution states that “no one can be prosecuted and punished for the same offence more than once”. Section 300 (1) of Criminal Procedure Code states that “A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence, for which a different charge from the one made against him might have been made under Sub-Section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof”.

5) SPEEDY TRIAL:

Section 309(1) Criminal Procedure Code provides “in every inquiry of trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded”. In Hussainara Khatoon (No.1) v. Home Secretary, State of Bihar, Reported in AIR 1979 SC 1360, a petition for a writ of habeas corpus was 31 filed by number of under trial prisoners who were in Jails in the State of Bihar for years awaiting their trial. The Supreme Court held that “right to a speedy trial” a fundamental right is implicit in the guarantee of life and personally liberty enshrined in Article 21 of the Constitution. Speedy trial is the essence of criminal justice. In Mangal Singh and Another v. Kishan Singh and others, Reported in AIR 2009 SC 1535, it is observed:-

“Any inordinate delay in conclusion of a criminal trial undoubtedly has highly deleterious effect on the society generally and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence.”

6. ACCUSED CAN ENGAGE COUNSEL OF HIS CHOICE:

Section 303 of Criminal Procedure Code provides that “Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code may of right be defended by a pleader of his choice”.

7. VICTIM CAN ENGAGE COUNSEL OF HIS CHOICE:

Proviso Section 24(8) of Criminal Procedure Code states that the court may permit the victim to engage an advocate of his choice to assist the 32 prosecution. Section 301 of Criminal Procedure Code provides that in any Court, any private person can engage a counsel of his choice and make such counsel to assist the public prosecutor and such a pleader can submit written arguments with the permission of the court, after evidence is closed in the case. In the case of Lokesh Singh v. the State of U.P. in Criminal Miscellaneous case No.3769/2013, dated 26.8.2013, the Allahabad High Court held that “after insertion of proviso to Section 24(8) Criminal Procedure Code if the court permits the victim to engage an advocate of choice, the court thereafter cannot deprive the advocate to address the court in addition to his right to file the written argument as contained in Section 301 Criminal Procedure Code after close of evidence”. Section 302 Criminal Procedure Code allows the victim to conduct prosecution personally or by a pleader before any Magistrate with the permission of the court.

8) RIGHT TO FREE LEGAL AID:

Article 39A of Indian Constitution directs the State to ensure that the operation of the legal system promote justice, on a basis of equal opportunities and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that make opportunities for securing justice are not denied to any citizen by of reason of economic or other disabilities. Section 304 of Criminal Procedure Code provides that “where in a trial before Court of Session, the accused is not represented by a pleader, and where it appears to the court that the accused has not sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the State”. In the case of Mohd. Hussain @ Julfikar Ali v. the State of (Govt. of NCT) Delhi, in Crl.Appeal No.1091/2006, dated 11.1.2012, the Hon’ble Supreme Court observed-

“the right of a person charged with crime to have the services of a lawyer is fundamental and essential to fair trail. The right to be defended by a legal practitioner, flowing from Article 22(1) of the Constitution has further been fortified by the introduction of the Directive Principles of State Policy embodied in Article 39A of the Constitution by the 42nd Amendment Act of 1976 and enactment of Sub Section 1 of Section 304 of the Code of Criminal Procedure.

Legal assistance to a poor person facing trial whose life and personal liberty is in jeopardy is mandated not only by the Constitution and the Code of Criminal Procedure but also by International Covenants’ and Human Rights Declarations. If an accused too poor to afford a lawyer is to go through the trial without legal assistance, such a trial cannot be regarded as reasonable, fair and just”.

9. PROSECUTION CAN EXAMINE WITNESSES:-

Sections 231, 242, 254 of Criminal Procedure Code offered opportunity to the prosecution to examine its witnesses and put forth oral and documentary evidence.

10. RIGHT OF THE ACCUSED TO PRODUCE EVIDENCE AND TO SUBMIT ARGUMENTS:

Sections 233, 247, 254(2) Criminal Procedure Code guarantees the accused to produce evidence in his defence. Section 314 Criminal Procedure Code provides that any party to a proceeding make oral arguments and can submit written arguments in support of his case. Section 315 of Criminal Procedure Code provides that any person accused of an offence before a criminal court shall be a competent witness for the offence and may give evidence on oath in disproof of the charges made against him.

11. RIGHT TO OPEN TRIAL:

Section 327 Criminal Procedure Code provides that the place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court, to which the public generally may have access. Section 273 Criminal Procedure Code provides that evidence to be taken in the presence of the accused. In the case of Naresh Sridhar Mirajkar v. State of Mharashtra, (AIR 1967 SC 1) the apex court observed that the right to open trial must not be 35 denied except in exceptional circumstances.

12. HEARING OF THE ACCUSED: (AUDI ALTERAM PARTEM):

Fair trial requires that the accused person is given adequate opportunity to defend himself. But this opportunity will have no meaning if the accused person is not informed of the accusation against him. The code therefore provides in Section 228, 239, 251 in plain words that when an accused person is brought before the court for trial, the particulars of the offence of which he is accused shall be stated to him. So that accused can prepare his defence for facing the trial. Section 313 of Criminal Procedure Code also provides that incriminating circumstances that the are appearing against the accused should be explained to the accused.

13. TRIAL BEFORE INDEPENDENT, IMPARTIAL AND COMPETENT JUDGES:

Article 50 of Constitution ensures that the State shall take steps to separate the judiciary for the executives in the public services of the State. Section 479 of Criminal Procedure Code no Judge or Magistrate shall try or commit for any trial any case to or in which he is a party or personally interested, and no judge or Magistrate shall hear, an appeal from any judgment or order passed or made by himself. The Hon’ble Apex court in Devender Pal Singh v. State of NCT of Delhi and another, (2002 (5) SCC 234) observed as follows:

“Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law.”

In Viscount Simon in Stirland v. Director of Public Prosecutor, Reported in 1944 (2) ALL ER 13 Court held as follows:

“A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape….. Both are public duties ….”

In the case of Zahira Habibullah Sheikh and another v. State of Gujarat and others, Reported in 2006 (3) SCC 374, the Hon’ble Apex court observed that If a criminal court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that he occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. 37 However, in the case of Sister Mina Lalitha Baruwa v. State of Orissa and others in Criminal Appeal No.2044/2013, dated 5.12.2013. The Hon’be Apex Court held that “a Criminal Court, while trying an offence, acts in the interest of the society and in public interest. As has been held by this Court in Zahira Habibullah H. Sheikh (supra), a Criminal Court cannot remain a silent spectator. It has got a participatory role to play and having been invested with enormous powers under Section 311 of Criminal Procedure Code, as well as Section 161 of the Evidence Act.”

Recently the Hon’ble High Court of Delhi by its order, dated 9.1.2017 observed that dishonest recording of Court proceedings does injustice”. “It is human beings who are put to trial, and they deserved to be treated as human beings with the same dignity as any other person, the court said. A judge who does not honestly and fairly record the proceedings does the greatest injustice to the parties, the Delhi High Court has observed. Transferring the case to another court, Justice Sanghi said the Special Judge, in his haste to conclude the trial, had conducted the proceedings unfairly and his approach in the case, and the orders passed by him, disqualify him from the proceeding any further in the matter. “I may only remind the learned Special Judge of the Off quoted phrase that “Justice should not only be done, but also be seen to be done”, the court said. 38

14. RIGHT TO A REASONED JUDGMENT AND AVAILABILITY OF JUDGMENT:-

A reasoned Judgment given in public, increases confidence in the Judiciary. The Justification for the reasoning in the Judgment must be based on the law and cannot appear to be attributed to personal opinions, prejudices or the socialization of Judge. Section 353 and 354 of Code together deal with the substantive and procedural requirements that a Judge must ensure are followed. Section 363 of the Code confirms the accused’s right to a copy of his judgment where he is sentenced to imprisonment; the court must immediately furnish a copy of the judgment to him free of cost. Article 21 is violated if the court fails to provide the accused with a copy of Judgment in tie to file an appeal Section 354(1)(b) mandates that Judgments must be reasoned.

15) COMPENSATION TO VICTIMS AND PERSONS GROUNDLESSLY ARRESTED:

If the victims of a crime are ignored it does not result in a Fair Trial. Section 357 and 357-A of Criminal Procedure Code provides scheme of compensation to victims of an offence. Similarly if a person causes a police officer unnecessarily arrest another simply acquit him does not result in Fair Trial. Section 358 of Criminal Procedure Code enables the Magistrate to award compensation to such groundlessly arrested person payable by the person who is responsible for such 39 arrest.

IV) CONCLUSION:

In India everyone shall be entitled to a fair trial by an Impartial Court established by Law. The salient requirement of Fair Trial is one without undue delay. The right to a speedy Trial according to Article 21 of the Constitution provides all the stages such as Investigation, Enquiry, trial, Appeal, Revision & re-trial. In criminal proceedings a conviction in a case cannot be based on testimony of witnesses whose examination-in-chief. In Manu Sharma v. State of NCT of Delhi cited in 2010 (6) SCC 1. A reasoned Judgement diminished the chances of Appeal & reduces the courts overload in State of Rajasthan v. Balchand cited in AIR 1997 SC 2447 the basic rule perhaps be tersely put as Bail not Jail, except where there are circumstances, suggestive of Fleeing from justice or thwarting the course of Justice or creating other troubles in shape of offences are intimidating, witnesses and Likely the Petitioner who seeks enlargement on Bail from the Court.

Discussion over the Legality of Intervention by a third party in a Criminal Proceedings has drastically changed over a time. That traditionally No Stranger has a right to intervene in the criminal proceedings in “Thakur Ram v. State of Bihar” cited in AIR 1966 SC 911 : 1966 SCR (2) 740 the Apex court had held that “the state will take all necessary steps on behalf of the aggrieved party in criminal matters by making the state the custodian of the social interests of the community at large, the court ruled out the locus standi of any private party that tries to intervene”.

2. “Locus Standi” refers to the Legal capacity of a person to take a stand before the court, it is the right of a party or a person to prove before the court its stand due to its connection to and harm from the law or action challenged to support that party’s participation in the case. The existence of Locus standi is necessary for any legal process of approaching the courts i.e., filing a suit or an action before the court, if the person lacks “Standi” to appear in the case the court may reject their arguments without going into the facts, merits of the case.

3.The intervention of third parties clearly cited in “Rajubhai Dhamirbhai Baria v. State of Gujarat” cited in 2004 CriLJ 771 : (2004) 1 GLR 404. It iterated the settled position of third parties having no locus standi for intervention in the criminal Proceedings. The Code of Criminal Procedure also makes it clear that Strangers have no right to appear before the court.

4. Subsequently the judgment given in “Subramanian Swamy v. Raju” cited in (2014) 8 SCC 390 stands on the same principle but recognizes the limited rights of third parties in certain exceptional situations.

5.The contention of the people who support the right of the third parties to intervene in the criminal proceedings that one of the fundamental principles of the criminal justice system is that wrong done to anyone is a wrong done to society. So, any person on behalf of society must have a right to seek justice.

6. In Criminal Proceedings, the State prosecutes the offender and the de-facto complainant or the victim does not have much role in the prosecution of the offender. However, this view has ironically changed after the Code of Criminal Procedure amendment Act 2008(5 of 2009), wherein certain amendments were made in the Cr.P.C to facilitate the participation of victim in criminal prosecution of an offender.

7. That according to Section 2(wa) definition of ‘victim’ has been added quoted herein below: 2(wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;

8. It is pertinent to mention that in Sub Section 8 of Section 24 of Cr.P.C a proviso has been added whereby court was authorized to permit the victim to engage an Advocate of his choice to assist the prosecution. The relevant provision of Section 24(1) and 24(8) are,

a) Section 24 relates to Public Prosecutors which states as infra:

(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.

(8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.

[Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.]

Further the victim is also given right to prefer an appeal under Section 372 Cr.P.C.

b) Section 372 relates to No appeal to lie unless otherwise provided

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.

Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.

9. From the above it is clear that legislature made certain amendments vide Act No. 5 of 2009 in Cr.P.C. by adding definition of victim and giving rights to victim to engage counsel of his choice during prosecution of accused under section 24 and also giving right to file an appeal under section 372.

10. The Hon’ble High Court at Allahabad in Lokesh Singh v. State of Uttar Pradesh, reported in 2013 (83) ACC 379, observed that the objective to be achieved by the aforesaid amendment as per proviso added in Section 24(8) of Cr.P.C seems to extend help the victims and to give more active role in dispensation of the criminal justice and to provide active participation of the victim in the justice delivery system keeping in view the concept of fair trial enshrined under article 21 of the Constitution of India.

11. Section 301 Cr.P.C provides that the Public Prosecutor or Assistant Public Prosecutor in-charge of a case may appear without any written authority before any court in which that particular case is under inquiry, trial or appeal. Sub-section 2 provides that if any private person instruct a pleader to prosecute any person in any court, the Public Prosecutor in charge of the case shall conduct the prosecution and pleader so instructed shall act therein under the direction of Public Prosecutor and may with the permission of the court submit written arguments after the evidence is closed in the case. Section 301 Cr.P.C. has not been amended vide Act No. 5 of 2008.

a. Proviso added to section 24(8) Cr.P.C, provides that victim defined in Section 2(wa) may be permitted to engage an advocate of his choice to assist the prosecution under this sub-section. Sub-section 8 provides appointment of Special Public Prosecutor, different from Public Prosecutor appointed under Section 7 of Sub-section 24 of Cr.P.C. The basic distinction drawn in the statute by introducing the proviso that if the victim defined under Section 2(wa) Cr.P.C, is permitted to engage a lawyer he will acquire status of Special Public Prosecutor subject to riders imposed under the proviso.

b. In proviso added to Section 24(8) Cr.P.C, the words used are “assist the prosecution” and not to ‘assist the public Prosecutor’ as mentioned in Section 301 Cr.P.C. There is difference in the scheme of two sections. From 6 perusal of Subsection 2 of section 301 Cr.P.C. made it clear that if in any case private person instructs a pleader to prosecute any person in any court even though the Public Prosecutor in charge of case shall conduct the prosecution and the pleader instructed shall act therein under the directions of the Public Prosecutor. Up to this stage no permission of court is needed for appointment of pleader by a private person. The permission is only required to the pleader if he wants to file written argument in the case. However after insertion of proviso to Section 24(8) Cr.P.C. the court can permit a victims advocate to assist the prosecution. The status and position of Advocate engaged by the victim would be changed because in that situation the court at the very inception may permit the Advocate of the choice of the victim to participate in the proceeding and to assist the prosecution and not to the public prosecutor. Prosecution includes investigation, enquiry, trial and appeal within the meaning of Section 24 Cr.P.C. Section 301 Cr.P.C. deals with only inquiry, trial or appeal. Inquiry has been defined in Section 2(g) Cr.P.C., means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. As such inquiry is different from investigation as defined in Section 2(h) Cr.P.C.

12. In view of the aforesaid definition the ‘end’ for which a plan or project is carried out is called prosecution. In respect of proviso to Section 24(8) Cr.P.C. prosecution in respect of an offence begin with putting the law into motion by any aggrieved party or sufferer of crime. The ‘end’ in a prosecution within the meaning of proviso to Sub Section 8 of Section 24 Cr.P.C. would be adjudication of guilt of an offender who is charged with commission of an offence in accordance with procedure established by law in a court constituted under this code. So the prosecution starts with giving information of commission of crime and continued during investigation or inquiry, trial of offender and if any appeal is filed finally end by an order passed in appeal.

13. The whole scheme if taken into consideration for prosecution and trial of an accused the dominant role is played by the public prosecutor but by insertion of proviso to Section 24(8) Cr.P.C. the Court is now authorized to permit the victim to engage a lawyer of his choice to assist the prosecution. The prosecution of an offender is virtually carried out in the court of law constituted under some statute presided over by a judge and not by any party to the proceedings. The public prosecutors, the advocate of the accused or 9 special counsel appointed by the aggrieved person or the Advocate engaged by a victim, all are officers of the court. They all assist the court to arrive at truth during prosecution of an accused. Therefore in Section 24 or in section 301, phrase ‘with the permission of court’ is used. So, once the permission is accorded to the advocate of the victim to assist the prosecution his assistance could not be restricted to the terminology of Section 301, i.e. only to assist the prosecutor. The court in view of the same can permit to advance the oral argument too to the advocate engaged by the victim apart from submission of the written argument. The importance of oral argument cannot be outweighed by saying that right to written argument has been given in Section 301 Cr.P.C.

14. Section 301 Cr.P.C. explicates and envisages that

301. Appearance by Public Prosecutors.

(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case, any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

15. Section 301 Cr.P.C. does not say that oral argument cannot be permitted to an advocate engage by the victim. It only prohibits that if a private party engaged a pleader he can assist the public prosecutor and court may permit him to file the written argument. There is difference between the pleader and advocate. Advocate is treated to be officer of the court and supposed to assist the court in arriving at the truth, so, right to address the court to an Advocate cannot be curtailed while representing his client in the light of provisions of Advocates Act.

16. In view of the Judgement delivered by Hon’ble Apex Court in Poonam v. Sumit Tiwari, reported in AIR 2010 SC 1385, discussed the importance of assistance of a lawyer in the light of Section 35 of Advocates Act and observed that in absence of proper assistance to Court by the lawyer, there is no obligation on the part of the Court to decide the case, for the simple reason that unless the lawyer renders the proper assistance to the Court, the Court is not able to decide the case properly. It is not for the Court itself to decide the controversy. The counsel cannot just raise the issues in his petition and leave it to the Court to give its decision on those points after going through the record and determining the correctness thereof. It is not for the Court itself to find out what the points 10 for determination can be and then proceed to give a decision on those points. In case counsel for the party is not able to render any assistance, the Court may decline to entertain the petition. Moreover if the petition is decided in such cases the judgment given may be violative of principles of natural justice as the opposite counsel would not “have a fair opportunity to answer the line of reasoning adopted” in this behalf.

17. Having regard to the above discussion, it is vivid & pellucid that under Cr.P.C it is possible to allow third-party intervention in criminal proceedings. The only problem that arises is with respect to a trial before a Court of Session. Section 302 speaks about trial before a Magistrate. This has to be read with Section 225 Cr.P.C which states that, in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. In my opinion, it makes sense to permit third party intervention in criminal cases.

Conclusion:

In the recent years United kingdom Courts have begun allowing third parties intervention that mostly consist of public bodies NGO’s etc Unlike in constitutional matters, interventions by a private party are only allowed when it has been established that the decisions of the court hearing the case will have much greater implications in the society or a section of society. Even an example where the London recognized the interveners’ contribution was the 2013 case of Hughes cousins-chang was arrested and held overnight with no access to reach his parents or an adult. Despite being a seventeen years old, he was treated an adult. The Haward League on panel reform and Coram Children’s legal center was granted a permission to intervene to make legal arguments on the rights of the young people in the criminal justice.

Hence from the above discussions with respect to the Intervention of third parties in criminal Proceedings is extended but under different circumstances though it is the rare situation as the state considers itself well equipped and motivated to meet the ends of justice conclusively it could be said that the intervention of third parties are envisages under CrPC not as the Legal right but rather as a safeguard embedded to ensure complete justice.

INTRODUCTION:

I. Article 22(2) of the Constitution of India:

That according to Article 22(2) of the Constitution of India that any person arrested & detained in Custody must be produced before the nearest Magistrate within 24 hrs without the authority of Magistrate similarly Sec 57 of CrPC 1973 explicates & envisages that every person who is arrested & detained in Police Custody shall be produced nearest Magistrate within 24 hrs of the arrest excluding the time necessary for the journey from the Place of Arrest excluding the time necessary for the Journey from the Place of Arrest to the court of the Magistrate and no such person shall be detained in the custody beyond the said period without the order of the Magistrate these two provisions are very essential and glaringly contemplates the intention of the Law in this regard.

The word “Remand” generally means to return or to send back but in the Legal world, it has two different meanings firstly it means to send the accused back in the custody at the competent authority & Secondly it means to send back the cases from Appellate court to Lower Court.

The Police cannot detains any person in its custody for more than 24 hrs according to Sec 57 of CrPC it specifically prohibits officials from detaining the arrested person for more than 24 hrs in Police Custody it was held in the case of “R.K. Naba Chandra Singh v. Manipur Administration” Cited in 1964 CriLJ 307 by the Hon’ble High Court that if the Police Officer considers that the Investigation cannot be completed within 24 hrs then it is his duty to produce the Accused the forthwith before the Magistrate.

1. Physical production of the accused for Judicial remand:- No Magistrate shall authorise detention in any custody under section 167 Cr.P.C. unless the accused is produced before him. If any question arises whether the accused person was produced before the magistrate, the production of the accused person may be proved by his signature on the order authorising detention. However, the Supreme Court has relaxed this rule on certain conditions and has laid down that in cases where accused cannot be produced in person due to sickness or if he is wanted in cases in two different courts in different districts on the same day, the remand may be granted in absence of the accused. This is an exception to the general rule provided under Section 167(2)(b) of Cr.P.C. [Raj Narain v. Superintendent of jail, AIR 1971 SC 178 : 1970 (2) SCC 750 : 1971 Cr.L.J. 244 : 1970 SCC (Cr.) 543].

2. Detention without Judicial remand order from Magistrate – effect of :- In the first place in a few cases the accused persons do not appear to her their arrest as required by Article 22 of the Constitution. The court does not wish to express any definite opinion in regard to this irregularity which prima facie appears to have occurred in a few cases, but the judges would strongly urge upon the state and its police authorities to see that this constitutional and 47 legal requirement to produce an arrested person before a judicial magistrate within 24 hours of the arrest must be scrupulously observed. It is also clear from the particulars furnished to the court from the record of the judicial magistrates that ;in some case particulars furnished to the court from the record of the judicial magistrates that in some cases particularly the accused persons were not produced before the judicial magistrates subsequent to their first production, any they continued to remain in jail without any remand orders being passed by the judicial magistrates. This was plainly contrary to law. It is difficult to detain these accused persons in jail without any remand orders. The Apex Court hope and trust that the state government will inquire as to why this irregularity was allowed to be perpetrated and will see to it that in future no such violations of the law are permitted to be committed by the administrators of the law. [Khatri v. State of Bihar, 1981 Cr.L.J. 470 (SC) : 1981 (1) SCC 627 : AIR 1981 SC 928 : 1981 SCC (Cr.) 228].

3. Period of remand of accused to Judicial Remand – criteria for computation:- The magistrate under Section 167(2) can authorise the detention of the accused in Judicial Remand as he thinks fit but it should not exceed 15 days as a whole at the first instance. It is held by the Supreme Court that the Remand after the expiry of the first 15 days can only be judicial custody during the rest of the period of 90 days or 60 days and that police custody if found necessary can be ordered only for first period of 15 days. The total period of remand of 90 days or 60 days will begin to run from the date of order of remand by the magistrate. Accordingly, the period of detention should be computed from the date of order of remand. Section 167(2A) lays down that if an arrested person is produced before the executive magistrate for remand, the same magistrate may authorise detention of the accused in custody not exceeding 7 days. The judicial magistrate, who is competent to make further order or detention will take into consideration the period of further order of detention ordered by executive magistrate for the purpose of computing the total period of detention. On combined reading of Section 167(2) and (2A) it emerges that the judicial magistrate to whom the executive magistrate has forwarded the arrested accused can order detention in such custody namely police or judicial under Section 167(2) for the rest of the first 15 days after deducting the period of detention ordered by the executive magistrate. The detention thereafter could only be in judicial Remand. Likewise, the remand under Section 309 of Cr.P.C. can only be to judicial custody. 48 In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of available information and obtain police custody. If during investigation, his complicity in more serious offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first 15 days. This limitation shall not apply to different occurrence in which complicity of the arrested accused is disclosed. It is held by the Hon’ble Supreme Court that re-arrest or second arrest and seeking police custody after the expiry of period of first fifteen days should be with regard to the investigation of a different case other than the specific one in respect of which the accused is already in custody. Central Bureau of Investigation, Special Investigation Cell, New Delhi v. Anupam J. Kulkarni, AIR 1992 SC 1768.

4. Computation of period of remand of the accused wanted in several case – The best example for the computation of the Remand is the case pertains to Dinesh Dalmia. The brief facts of the case are that A First Information Report was lodged against Dinesh Dalmia in Calcutta. He was arrested in New Delhi by C.B.I. in connection with another case. On transit remand, the accused Dinesh Dalmia was produced before the Additional Chief Metropolitan Magistrate, Chennai. The officer investigating the criminal case at Calcutta prayed for issuance of production warrant against the accused Dinesh Dalmia before the Chief Metropolitan Magistrate, Calcutta, who allowed the prayer and directed that the accused would be produced before him on or before 22-02-2006. The Additional Chief Metropolitan Magistrate, Chennai observed that the prayer of investigating officer of Calcutta would be considered after expiry of the period of C.B.I. custody. That on 27-02-2006 when the accused Dinesh Dalmia was in the custody of C.B.I. at Chennai, he voluntarily surrendered before the court of Metropolitan Magistrate at Chennai in connection with the criminal case started in Calcutta. That the surrender of the accused Dinesh Dalmia was accepted by the Magistrate at Chennai and remanded him to judicial custody till 13-03-2006. That on 11-03-2006 the accused Dinesh Dalmia Was handed over to Calcutta Police and on 13-03-2006 he was produced at the court of Chief Metropolitan Magistrate, Calcutta. The Investigation Officer prayed for police remand of the accused Dinesh Dalmia for fifteen days for the purpose of investigation. The accused Dinesh Dalmia moved an application for bail and contended that the period of police remand for first fifteen days of the total period of remand expired as he surrendered before the Court of Magistrate to Chennai in connection with this case on 27-02-2006. The Chief Metropolitan Magistrate, Calcutta took the view that the custody of the accused could not be considered unless and until he was physically produced before the court and since it was 49 done on 13-03-2006 on the strength of production warrant issued by him, the period of police remand was to be considered from the date of his physical production on 13-03-2006. the accused Dinesh Dalmia approached the High Court challenging the order passed by the Chief Metropolitan Magistrate, Calcutta. The High Court at Calcutta did not approve the view taken by the Chief Metropolitan Magistrate, Calcutta and held that the detention of the accused should be counted with effect from 27-02-2006 when the accused surrendered before the Court of Metropolitan Magistrate at Chennai. On appeal, the State of West Bengal challenged the order of the High Court. The crucial question which arose for consideration before the Supreme Court was whether the detention period should be counted from 13-03-2006 when the police took the accused in custody or from 27-02-2006 when the accused surrendered before the Metropolitan Magistrate at Chennai. By allowing the appeal and by setting aside the order of the High Court, it is held by the Supreme Court that the whole purpose of Section 167 of Cr.P.C. is that the accused should not be detained for more than twenty four hours and subject to fifteen days police remand the custody can further be extended up to total period of sixty days or ninety days as the case may be. According to Supreme Court, the police custody means the police custody in a particular case for investigation and not judicial custody in another case. In the case, at hand the accused was not arrested by the police, nor was he in police custody before 13-03-2006. the accused was very well aware that there were two cases registered against him in Calcutta for which he was required by the police and as such he voluntarily surrendered before the Metropolitan Magistrate, Chennai on 27-02-2006 when he was already in custody of C.B.I. in connection with another case. This voluntary surrender of the accused cannot be conceived to be detention under a case registered at Calcutta. Such notional surrender cannot be treated as police custody for computation of the required period. The period of detention before the Magistrate cannot be treated as device to avoid physical custody of the police and claim the benefit of proviso to sub-section (2) of Section 167 of Cr.P.C. The condition is that the accused must be in the custody of the police and the so-called deemed surrender in another criminal case cannot be taken as starting point for computation of fifteen days’ police remand or ninety days’ or sixty days’ of judicial remand as the case may be. Thus, the police custody of the accused Dinesh Dalmia was treated by the Supreme Court with effect from his physical production before the court of Chief Metropolitan Magistrate, Calcutta on 13- 03-2006 and not from the date of surrender before the Court of Metropolitan Magistrate at Chennai on 27-02-2006 while he was in the custody of C.B.I. in connection with another case. State of West Bengal v. Dinesh Dalmia AIR 2007 SC 1801.

5. Duty of police towards accused during police custody:- Where there was death of a person in police custody and it is established from the evidence of other witnesses, who were also beaten up and injured by police that the deceased became unconscious on receipt of injuries inflicted by police and died subsequently, and irresistible inference can be drawn that the police personnel, who caused his death, must also caused the disappearance of the body. It may be a legitimate right of any police officer to interrogate or arrest any suspect, on some credible material but such an arrest must be in accordance with the law and the interrogation does not mean inflicting injuries. Torturing a person and using third degree methods are of medieval in nature and they are barbaric and contrary to law. If the police officers who have to provide security and protection to the citizens indulge in such methods, they are creating a sense of insecurity in the minds of the citizens. It is more heinous than game keeper becoming a poacher. The conviction of the police personnel was upheld by the Supreme Court in the Landmark Judgement cited in Bhagwan Singh v. State of Punjab, AIR 1992 SC 1689.

6. Detention in custody of a person arrested under special Acts:- The code of criminal procedure gives power of arrest not only to a police officer and a magistrate, but also under certain circumstances to private persons. When an accused person appears before a magistrate or surrenders voluntarily, the magistrate is empowered to take that accused person into custody and deal with him according to law. To put it differently, taking of the person into judicial custody is followed after the arrest of the person concerned by the magistrate on his appearance or surrender. To invoke Section 167(1), it is not an indispensable prerequisite condition that in all circumstances the arrest should have been only by a police officer and none else and there must necessarily be records of entries of a case diary. The magistrate will take a person into his custody on his being satisfied to three preliminary conditions namely- (I) That the arresting officer is legally competent to make the arrest. (ii) That the particulars of the offence or the accusation for which the person is arrested do exist and are well founded. (iii) That the provisions of the special act in regard to the arrest of the persons and the production of the arrestee serve the purpose of Section 167(1) of the Code. A magistrate before whom a person arrested by the competent authority under the Foreign Exchange Regulation Act, 1973 or the Customs Act 1962 is protected, can authorise detention in exercise of power under Section 167 of Cr.P.C. Directorate of Enforcement v. Deepak Mohajan, AIR 1994 SSC 1775.

7. Police remand under POTA – Guidelines of the Apex Court– Let’s take the inhuman, draconian Godhra Incident. On 27-02-2002 some persons died at Godhra in the state of Gujarat and several others were injured when a train was brutally attacked and set ablaze. Initially the case was registered on the allegation of commission of offences punishable under various provisions of Indian Penal Code. Subsequently, an application was filed by the prosecution for addition of offences punishable under Sections 3(1)(a), (b) and 3(2) of POTA. The accused Maulavi Hussein Haji Abraham Umarji was arrested in connection with this case on 06-02-2003 and remanded to police custody till 11-02-2003 and again police custody was extended till 13- 02-2003. When the application for further extending the police remand was rejected, a criminal revision was filed before the Sessions judge. The Special Court was constituted under section 23 of POTA on 06-03-2003. The sanction order required under Section 50 of POTA was passed. Without pressing for revision application pending before the Sessions Court, the prosecution filed an application before the Special judge for police remand in terms of Section 49(2)(b) of POTA on 24-04-2003 and the same was allowed. The legality of the order of the Special Judge was challenged before the High Court by filing appeal under Section 34(1) of POTA and subsequently the order of the High Court was challenged by filing appeal before the Supreme Court. By dismissing the appeal it is held by the Supreme Court that a statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. In the instant case, the proviso inserted by section 49(2)(b) of POTA is in relation to the proviso to section 167(2) of Cr.P.C. and not in respect of section 167(2) itself. As section 49(2)(b) of POTA can be resorted to without any reference to the provisions of Section 167(2) of Cr.P.C. [Maulavi Hussein Haji Abraham Umarji v. State of Gujarat 2004 SCC (Cri) 1815].

Latest and Important judgments on the Police Custody and Judicial 56 Custody:-

1. In Dinubhai Boghabhai Solanki v. State Of Gujarat & Ors, Criminal Appeal No. 492 of 2014(Arising out of SLP (Crl.) No. 8406 of 2012) Date of judgment on 25 February, 2014, it was observed that the courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. As it is settled Principle that each case will have its own facts & merits. It was further observed that the judgments of courts are not to be construed as statutes and the observations must be read in the context in which they appear to have been stated. The Court went on to say that circumstantial applicability, one additional or different fact may make a world of difference between conclusions in two cases.” See. Bharat Petroleum Corporation v. N.R. Vairamani And Anr.

2. Sundeep Kumar Bafna v. State Of Maharashtra & Anr, Criminal Appeal No. 689 of 2014 [Arising out of SLP (Crl.) No.1348 of 2014, Dt. 27 March, 2014 where in it was observed that as follows: “we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167(2) of Cr.P.C of the Code is made out by the investigating agency.” See. Gurbaksh Singh Sibbia Etc v. State Of Punjab, AIR 1980 SC 1632..

3. As was observed in Dr. K.S. Rao v. State of Hydrabad, AIR 1957 AP 416, in remanding the accused to police custody the Magistrate ought to follow the provisions of section 167 of the Code and should give proper reasons for handing over the accused to the police custody.

4. Important rulings as to the subject matter of `police custody and judicial custody’ – State Rep by Inspector of Police and Ors v. NMT Joy Immaculate 2004 5 SCALE 330, CBI SIT New Delhi v. Anupam J. Kulkarni AIR 1992 SC 1768, Mithabhai Pashabhai Patel & Ors. v. St of Gujarat CDJ 2009 SC 1014.

5. Chaganti Satynarayana and Ors. v. State of Andhra Pradesh, [1986] 3 S.C.C. 14. As was held in 1981 CriLJ 1773 (1776 – Para 9), Perusal of the case diary is a must before remand of any kind – be judicial or police custody. It is a dereliction of duty if the Magistrate did not ask for and peruse the case diary before he authorizes any custody.

6. A remand to Police custody should not be given unless the officer making the Application is able to show definite and satisfactory grounds. Remand order should not be passed mechanically without proper application of 57 mind. State of UP v. Ramsagar Yadav, (1985) 1 Crimes 344.

7. S.167(2) only prescribes the maximum period of 15 days, but that does not authorize the Magistrate automatically to remand the accused for the period. At every stage when the Police seeks a remand, the Police must satisfy the Magistrate that there is sufficient evidence against the accused and further evidence might be obtained; and it is only when the Magistrate is satisfied, after looking into the case diary, that he should direct a remand. AIR 1956 Orissa 129. To authorize remand to Police custody is a very serious and sensitive judicial function of utmost responsibility.

8. The scheme of the section after the amendment of the year 1978 is intended to protect the accused from unscrupulous police officers. Great care has now been taken to see that the accused persons are not unnecessarily remanded. The object of the section is to see that the person arrested by the Police are brought before the Magistrate with the least possible delay so that the Magistrate could decide whether the person produced should further be kept in Police custody and also to allow said accused to make such representation as he wish to make, 1980 CriLJ 1195.

9. The Magistrate should not authorize detention of an accused to any custody mechanically in routine. If the Law Officers charged with the obligation to protect the liberty of the person, are mindless of the constitutional mandate and the dictates of the Code, how can freedom survive for the ordinary citizen. See. Mantoo Majumdar v. State of Bihar, AIR 1980 SC 847.

10. It was held in Kana v. St of Rajasthan, 1980 CriLJ 344, Magistrate must give reasons for authorizing detention of accused to custody. Such orders cannot be passed as a matter of course.

11. Order of Remand is a judicial order to be passed on application of mind to the contents of the Remand report submitted by the investigating officer. It is not a empty formality or a routine course to extend remand time and again as and when sought by the police. The order therefore should contain the reason to extend remand further. See. 2003 CriLJ 701 at page 702.

12. As has been observed in Muthoora v. Heera, AIR 1951 MB 70 : 17 WR 55, if the evidence is not forthcoming, the Magistrate must not remand the prisoner in the hope that fresh evidence may turn up.

13. See Arnesh Kumar v. State of Bihar, JT 2014 (7) SC 527, Joginder Kumar v. State Of Uttar Pradesh, 1994 (4) SCC 260 : AIR 1994 SC 1349, a critical and detailed observation of the Hon’ble Supreme Court in respect of unabated practice of mechanical arrests.

14. The Hon’ble Supreme Court in the case of Sanjay Chandra v. CBI (2012) 1 SCC 40 (Popularly known as 2G scam case), where in it was extensively discussed with the issue of granting or refusing the grant of Bail.

15. As was pointed out in Kalyan Chandra Sarkar v. Rajesh Ranjan, AIR 2004 SC 1866, while a vague allegation that the accused may temper with the evidence or witnesses may not be a ground to refuse a bail, if the accused is of such a 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 temper with the evidence, then bail may be refused.

In D.K. Basu v. State of West Bengal

This case gave a landmark judgement where guidelines regarding the arrest of a person for prescribed otherwise more offences were committed in the name of doing justice. It prevents any infringement with the rights of an individual during detention of administration of a criminal system existing in our country i.e., India needed an effective mechanism.

Conclusion

The Landmark Judgment In D.K. Basu v. State of West Bengal, AIR 1997 SC 610, the Hon’ble Supreme Court has given certain guidelines-

1) That Policemen must wear visible and legible identification when arresting a person and when carrying out interrogation. Names and Particulars of police personnel handling interrogation must be recorded in the register;

2) It is the right of every person detained or questioned by Police to know the grounds for detention or questioning;

3) The Person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or detention;

4) A person arrested must be produced before a Judicial Magistrate/ Judge within 24 hours of his/her arrest;

5) A person arrested should be medically examined at the time of arrest and major & minor injuries on arrested person be recorded in Inspection Memo duly signed by both Police officer carrying out the arrest and the person arrested and the copy of this memo be provided to the person arrested;

6) Any person arrested must be medically examined by a doctor from an independent and approved panel of doctors, every 48 hours during detention;

7) Arrest or Search of women should only take place in presence of Women Police Officers and it should not take place in night. And women should be detained separately from men;

8) While an accused is in Police custody, his lawyer should be permitted to visit him;

9) Information of the arrest of accused person should be given to the district Control Room and the State Police Headquarters. 20. Recent judgments in Rajesh Sharma v. Uttara Pradesh, Criminal Appeal No. 1265 of 2017 [Arising out of Special Leave Petition (Crl.) No.2013 of 2017] which was pronounced in July 27, 2017 and Maharashtra -based NGO Nyayadhar’s cases are also relevant to understand the issue of restoration of immediate arrest in matrimonial cases.

“Liberty of a person is foremost important & paramount; Personal Liberty is the paramount essential to human dignity and human happiness the Constitution of India protects the Life and Liberty of an individual. The personal Liberty of a person not merely the right to the continuance of a person’s animal existence.

• It is the duty of the courts to uphold the dignity of personal liberty.

• It is the duty of the court to see whether individual crosses the Lakshman Rekha i.e., carved out by law is dealt with appropriate as cited by the Hon’ble Supreme court of India in Dharmendra Kirthlal v. State of U.P. in AIR 2013 SC 2369 ii) Vikas v. State of Rajasthan (2014) 3 SCC 321.

• At this juncture it is stated that Hon’ble Supreme Court has categorically stated that Article 21 and Article 19 i.e. personal life & liberty and rights of Freedom of a citizen are the heart and soul of the constitution.

• “Article 50” glaringly states about separation of judiciary from executive. Hence Dr.B.R.Ambedkar describes the same as Conscience of the Constitution.

• The Hon’ble Supreme Court by going a further mile considered the vital & pivotal importance of Separation of Judiciary from Executive and Legislature also cited in Madras Bar Association v. Union of India & another in (2015) 8 SCC 583.

• That When a person is arrested and detained by the police immediately within 24 hours as per Article 22(2) of Constitution of India and also U/sec 56 & 57 Cr.PC is suppose to be produced before the nearest Magistrate. On being produced the learned magistrate U/Sec 167 Cr.PC has to remand in judicial custody either for 7 days (Executive Magistrate) for 15 days before the Judicial Magistrate at this juncture it is to be noted that in Arnesh Kumar v. State of Bihar reported in the 2014(8) SCC 273 wherein an Accused may be released under 41A Cr.PC if the alleged offence is upto 7 years or below 7 years.

• That the domain of the bail now came into the picture. The Cr.PC deals with Sec. 436, 437, 438, 439.

Wherein 436 deals with bail for Bailable offences by a Magistrate.

Wherein 437 deals with bail for Non-Bailable offences by the Magistrate of I Class.

Wherein 438 deals with Anticipatory bail for cognizable offence by Sessions Court and High Court.

Wherein 439 deals with bail by Hon’ble High Court and Sessions Court respectively.

• That it is Painfully stated that now a days in practice it is came into lime light that the accused are sent to Jail under 167 Cr.PC for 15 days by the learned Magistrate in a routine manner whereas it is specifically directed in Arnesh Kumar v. State of Bihar by the Hon’ble Supreme Court of India that it is the duty of the learned magistrate that when an accused is produced before the learned Magistrate then he has to be satisfied that condition precedent for arrest U/Sec 41 A Cr.PC. has been complied thereafter only, the learned Magistrate has to authorize detention of the accused; even before the same the learned magistrate has to satisfy himself whether penal section and the given facts could lead the detention of the accused or not

• That in P. Chidambaram v. Directorate of enforcement Reported in 2020(1) LRC 368 (SC) Hon’ble Supreme Court has categorically said that triple test is to be taken into consideration in granting the Regular Bail.

Whether there is an apprehension of fleeing from Justice.

Whether there is any threat to prosecution witness.

Whether there is any threat of tamper & hamper with the prosecution evidences.

• That similarly the Hon’ble Supreme Court lead by Hon’ble Three Judges Bench headed by Hon’ble CJI has categorically stated in case of Siddaram Satlingappa Mhetre v. State of Maharastra and others reported in 2011(1) SCC 694 while dealing with the Anticipatory bail. The Hon’ble Supreme Court has observed the following guidelines.

The Anticipatory Bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused’s likelihood to repeat similar or the other offences.

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) 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.

• That our holy constitution glaringly states that under any circumstances a Citizen’s person liberty is not be suppressed that’s why Article 21 plays a vital and pivotal role in the detention of the accused even there are certain conditions to be followed under PD Act, NDPS Act and other specialization Acts therefore a pre trail long detention must be always not suggestible to secure the complete justice. The circumstances of each an individual case pertains to Arrest and detention satisfies the triple test in regular bail and Anticipatory Bail; that under the guise of Investigation keeping the accused in Jail for 60 days or 90 days or 180 days is to be reconsidered and redefined in light of the Judgement delivered by the Hon’ble Supreme Court of India in Chandran Ratnaswamy v. K.C. Palavisani in AIR 2013 SC 1952.

• That after the conviction however the accused is to be Jailed to serve the sentence as a prisoner; before the same during the trail or pre trial as a under trail person a long term detention is neither required nor needed. Thus it could be reiterated that Article 21 shall be given the top priority in protecting the person’s life and liberty; as the Hon’ble Supreme Court has categorically stated that if a person is detained in Judicial Custody then his, his family’s reputation name, fame impact on children, in society will play a major role, therefore the courts do have a heavy responsibility to pass appropriate orders either under 167 Cr.PC. or in bailment in the backdrop of Article 21.

It’s all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth.

Satyameva Jayate (Literally: “Truth Stands Invincible“) is a mantra from the ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in Devanagari script at the base of the national emblem. The meaning of full mantra is as follows : “Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of Truth resides.”

In the unfortunate litigation, the Court’s serious Endeavour has to be to find out where in fact the truth lies. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth. Every trial is voyage of discovery in which truth is the quest. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that “every trial is a voyage of discovery in which truth is the quest”. In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.

The pre-eminence of truth is the guiding star in a judicial process forming the foundation of justice, had been aptly propounded by Supreme Court of India . It was ruled that the entire judicial system had been created only to discern and find out the real truth and that the Judges at all levels have to seriously engage themselves in the journey of discovering the same. Emphasizing that the quest for truth is the mandate of law and indeed the bounden duty of the courts, it was observed that the justice system will acquire credibility only when the people will be convinced that justice is based on the foundation of the truth. Every trial is voyage of discovery in which truth is the quest. Ritesh Tewari v. State of U.P. [Ritesh Tewari v. State of U.P., (2010) 10 SCC 677, Jones v. National Coal Board [Jones v. National Coal Board, (1957) 2 QB 55, Maria Margarida case [Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370, Pooja Pal v. Union of India and others, (2016) 3 SCC 135.

Introduction:-

Sole motive of every investigation and trial is not only to administer and secure the ends of justice but also to find out the truth, as the real justice can be imparted only after arriving at the truth, which can be achieved only by Fair, Just and proper investigation, which is essence of fair trial. Investigation is the structure on which the trial is based. Fair and proper investigation is an attribute of Article 21 of the Constitution of India The expression “fair and proper investigation” in criminal jurisprudence Connotes to encompass two imperatives; firstly, the investigation must be unbiased, honest, just and in accordance with law; and secondly, the entire emphasis has to be to bring out the truth of the case before the court of competent jurisdiction. Unfortunate part is when the investigating agency starts playing the role of either the complainant or the accused and in that way, truth is left behind, which leads to faulty & biased investigation. From the data with regard to presentation of final report either by way of cancellation report or by way of putting the report against the accused under section 173 Code of Criminal Procedure, the ratio of finding the guilt of accused by the courts is very low and similarly, as regards the cancellation reports, the courts on the protest petition filed by the complainant in many cases have exercised the jurisdiction to order further investigation or treating the protest petition as complaint under section 190 Cr.P.C, which ultimately have lead to conviction of the accused. This all leads to the conclusion that the investigation did not reveal the truth & thus the basic canons of Criminal Jurisprudence were not followed. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer “is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion. Babubhai v. State of Gujarat, (2010) 12 SCC 254, Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, Vinubhai Haribhai Malaviya and others v. State of Gujarat and another, (2019) 17 SCC 1, Kali Ram v. State of Himachal Pradesh, AIR 1973 Supreme Court 2773

Accountability and responsibility are the two factors, which are generally missing in the investigating agencies, which lead to flow of litigation in the courts. Criminal trials are flooded like anything in the courts. Any Criminal offence is one against the society at large casting an onerous responsibility on the State, as the guardian and purveyor of human rights and protector of law to discharge its sacrosanct role responsibility and committedly, always accountable to the law-abiding citizenry for any lapse.

There is indeed a need to protect society from criminals. The society intent in safety will suffer if persons who commit crime are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. State of Punjab v. Baldeo Singh, 1999(39) ACC 349)

Presumption of Innocence :

It is well settled Law that according to the Indian Criminal Jurisprudence every person accused of an offence is presumed to be innocent till he is proved guilty beyond a Reasonable doubt. The onus, therefore, is heavily on the prosecution to prove and establish the offence against the person beyond a reasonable doubt and that the burden never shifts on to the accused to disprove the charge framed against him. In the event of a doubt, the benefit thereof is to be given to the accused. Besides, if from the evidence coming on record two views are possible, then the one favourable to the accused has to be accepted. However Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes Inder Singh and another v. State (Delhi Administration), AIR 1978 Supreme Court 1091)

Maxim-

“let hundred guilty persons be acquitted, but not a single innocent be convicted”.”Falsus in uno falsus in omnibus”

The maxim “let hundred guilty persons be acquitted, but not a single innocent be convicted” is, in practice, changing world over and courts have been compelled to accept that “Society suffers by wrong convictions and it equally suffers by wrong acquittals. The courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. Mohan Singh and anr. v. State of M.P., (1999) 1 Supreme Court Reports 276, Krishna Mochi v. State of Bihar, 2002 SCC(Cri) 1220, AIR 2009 SC 1344, Munna @ Pooran Yadav v. State of Madhya Pradesh, (SC).

The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liars. The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. Jakki @ Selvaraj v. State Rep. by the IP, Coimbatore, 2007(9) SCC 589, C.S.D. Swami v. State, AIR 1960 SC 7.

Locus of Complainant:-

It is a well recognized principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enact or creating an offence indicates to the contrary. The scheme of the Criminal Procedure Code envisages two parallel and independent agencies for taking criminal offences to Court. Even for the most serious offence of murder, a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. Numerous statutory provisions, can be referred to in support of this legal position under as (i) Section 187A of Sea Customs Act, 1878, (ii) Section 97 of Gold Control Act, 1968, (iii) Section 6 of Imports and Exports Control Act, 1947, (iv) Section 271 and Section 279 of the Income Tax Act, 1961, (v) Section 61 of the Foreign Exchange Regulation Act, 1973, (vi) Section 621 of the Companies Act, 1956 and (vii) Section 77 of the Electricity (Supply) Act. This list is only illustrative and not exhaustive. While Section 190 of the Criminal Procedure Code permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfill to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the Criminal Procedure Code. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force (See section 2(n), Criminal Procedure Code, 1973) is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or, omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the Court would require an unambiguous statutory provision and a tangled web of argument for drawing a far-fetched implication, cannot be a substitute for an express statutory provision.

The scheme underlying Criminal Procedure Code clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge of a Police Station. If the offence complained of is a non-cognizable one, the Police Officer can either direct the complainant to approach the Magistrate or he may obtain permission of the Magistrate and investigate the offence. Similarly anyone can approach the Magistrate with a complaint and even if the offence disclosed is a serious one, the Magistrate is ‘competent to take cognizance of the offence and initiate proceedings. It is open to the Magistrate but not obligatory upon him to direct investigation by police. Thus two agencies have been set up for taking offences to Court.

Chapter XII of the Criminal Procedure Code, 1973 bears the heading ‘Information to the police and their powers to investigate’ Section 154 provides for information to police in cognizable cases. It casts a duty on the officer in charge, of a police station to reduce to writing every relating to commission of a cognizable offence given to him and the same will be read over to the informant and the same shall be signed by the informant and a copy thereof shall be given to him. If information given to an officer in charge of a Police Station disclosed a non-cognizable offence, he has to enter the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and to refer the informant to the Magistrate (Section 155(1).) Sub-section (2) puts an embargo on the power of the police officer-in-charge of police station to investigate a non-cognizable offence without the order of a Magistrate having power to try the case or commit the case for trial. Section 156 sets out the powers of the officer in charge of police station to investigate cognizable cases. Sub-section (2) of Section 156 may be noticed. It says that ‘no proceeding of a Police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under the section to investigate.’ Sub-section (3) confers power on the Magistrate empowered under Section 190 to take cognizance of an offence, to order an investigation as set out in sub-sections (1) and (2) of Section 156. Section 167 enables the Magistrate to remand the accused to police custody in the circumstances therein mentioned; Section 173 provides that ‘every investigation under Chapter XII shall be completed without unnecessary delay and as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, setting out various things enumerated in the section. Sub-section (8) of Section 173 provides that despite submission of the report on completion of the investigation, further investigation can be conducted in respect of the same offence and further evidence so collected has to be forwarded to the same Magistrate. The report of this further investigation shall by and large conform with the requirements of sub-sections (2) to (6). Fasciculus of sections in Chapter XIV prescribed conditions requisite for initiation of proceedings Section 190 provides that subject to the provisions of the Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2) may take cognizance of any offence – (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed Section 191 obliges the Magistrate when he takes cognizance of an offence under Clause (c) of sub-section (1) of Section 190, to inform the accused when he appears before him, that he is entitled to have the case inquired into or tried by another Magistrate. Section 193 provides that ‘except as otherwise expressly provided in the Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code.’

Cognizable offence has been defined in Section 2(c) of the Criminal Procedure Code to mean ‘an offence’ for which, and “cognizable case” means a case in which, a police officer may in accordance with the First Schedule or under any law for the time being in force, arrest without warrant’. Complaint is defined in Section 2(d) to mean ‘any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence, but does not include a police report.’ There is an explanation appended to the section which has some relevance. ‘A report made by a police officer in a case which disclosed, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be complainant.’ Section 2(e) defines ‘non-cognizable offence’ to mean ‘an offence for which’ and “non-cognizable” case means a case in which, a police officer, has no authority to arrest without warrant’. Police report is defined in Section 2(r) to mean ‘a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173.’ officer-in-charge of a police station’ has been defined in Section 2(o) to include any police officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present. In other words, a Head-constable of Police that is one step higher from a constable can be in charge of a police station., A.R. Antulay v. Ramdas Sriniwas Nayak(Larger Bench), AIR 1984 SC 718

Fair Trial

A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution of India, would be a hollow promise if the investigation in a case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in absence of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided. Mohan Lal v. State of Punjab (SC), AIR 2018 SC 3853.

Sterling worth: a witness worthy of credence

‘Sterling worth’ is not an expression of absolute rigidity. The use of such an expression in the context of criminal jurisprudence would mean a witness worthy of credence, one who is reliable and truthful. This has to be gathered from the entire statement of the witnesses and the demeanor of the witnesses, if any, noticed by the Court. Linguistically, ‘sterling worth’ means ‘thoroughly excellent’ or ‘of great value’. This term, in the context of criminal jurisprudence cannot be of any rigid meaning. It must be understood as a generic term. It is only an expression that is used for judging the worth of the statement of a witness. To our mind, the statements of the witnesses are reliable, trustworthy and deserve credence by the Court. They do not seem to be based on any falsehood. Kuria v. State of Rajasthan (SC), AIR 2013 SC(Crl) 162.

Voice:

Every individual has a distinctive style of speaking which makes identification by those acquainted possible. Identification of a known person by voice in the darkness has been well recognized in criminal jurisprudence. Even if a person tries to camouflage his voice in one call, given the limitations of human nature there will be a tendency to state certain words or sentences in an inimitable style exposing the identity. AIR 2019 SC 3524, Sanjay Rajak v. State of Bihar (SC).

Suspicion

Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ‘may be? proved and ‘will be proved?. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between ‘may be? and ‘must be? is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ‘may be? true and ‘must be? true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ‘may be? true and ‘must be? true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan (SC), AIR 2013 SC 3150, Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 Supreme Court 343; Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, AIR 1973 Supreme Court 2622; Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 Supreme Court 1622; Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702; Ashish Batham v. State of M.P., AIR 2002 Supreme Court 3206; Narendra Singh & Anr. v. State of M.P., AIR 2004 Supreme Court 3249; State through CBI v. Mahender Singh Dahiya, AIR 2011 Supreme Court 1017; and Ramesh Harijan v. State of U.P., AIR 2012 Supreme Court 1979)

Standard of Proof

Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence. Statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact. Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 Supreme Court 1622, Babu v. State of Kerala, (2010) 9 SCC 189, C.S.D. Swami v. State, (SC), AIR 1960 SC 7

Private Defence

The following principles emerge on scrutiny of the judgments :

i. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

ii. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.

iii. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

iv. The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.

v. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

vi. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

vii. It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

viii. The accused need not prove the existence of the right of private defence beyond reasonable doubt.

ix. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

x. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.

Failure of justice

The superior court must examine whether the issue raised regarding failure of justice is really a failure of justice or whether it is only a camouflage. The court must further examine whether the said aspect is of such a nature, that non-explanation of it has contributed to penalizing an individual, and if the same is true then the court may say, that since he was not given an opportunity to explain such aspect, there was failure of justice on account of non compliance with the principles of natural justice. The expression failure of justice is an extremely pliable or facile an expression which can be made to fit into any situation of a case.

The court must Endeavour to find the truth. There would be failure of justice not only by unjust conviction but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and safeguarded but they should not be over emphasized to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in the protections available to him under Indian Criminal Jurisprudence. Prejudice, is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there has been serious prejudice caused to him with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence, then the accused can seek benefit under the orders of the Court. Bhimanna v. State of Karnataka (SC), AIR 2012 SC 3026, Shamnsaheb M. Multtani v. State of Karnataka, 2001(1) RCR (Criminal) 617.

Bail

A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. Dataram Singh v. State of Uttar Pradesh, (SC), AIR 2018 SC 980

Sentence

Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.

Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal”. Sevaka Perumal etc. v. State of Tamil Naidu, (AIR 1991 Supreme Court 1463), Bikram Dorjee v. State of West Bengal, (SC), AIR 2009 SC 2539.

Death Penalty

Death penalty jurisprudence in India has been widely debated and differently perceived. The essential principles in this sphere of jurisprudence has been laid down by two Constitution Benches of Supreme Court of India in which dealt with the law after deletion of Section 367(5) of the old Code but prior to the enactment of Section 354(3) of the present Code). Subsequent opinions on the subject indicate attempts to elaborate the principles of law laid down in the aforesaid two decisions and to discern an objective basis to guide sentencing decisions so as to ensure that the same do not become judge centric.

i. Life imprisonment is the rule and death penalty is the exception.

ii. Death sentence must be imposed only in the gravest cases of extreme culpability, namely, in the “rarest of rare” where the alternative option of life imprisonment is “unquestionably foreclosed”.

iii. The sentence is a matter of judicial discretion to be exercised by giving due consideration to the circumstances of the crime as well as the offender. 2014(4) SCC 292, Mahesh Dhanaji Shinde v. State of Maharashtra (SC), Jagmohan Singh v. The State of U.P., 1973 (1) SCC 206.

Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of the Supreme Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs., 2012(2) RCR (Civil) 441. A timely reminder of that solemn duty was given, in the following words:-

“What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.“

The Criminal Jurisprudence is the backbone of Criminal Investigations & trials, however, the same is not being followed at times, resulting into failure of justice. Time has come that the legislature, investigating agencies are courts are reminded of their solemn duty to establish the truth, so that neither the complainant nor the accused dare to take law in his hands.

Q.1 WHAT IS JUDICIARY?

Judiciary, branch of government whose task is the authoritative adjudication of controversies over the application of laws in specific situations. Conflicts brought before the judiciary are embodied in cases involving litigants, who may be individuals, groups, legal entities (e.g., corporations), or governments and their agencies.

The judiciary is the branch of government which administers justice according to law. The term is used to refer broadly to the courts, the judges, magistrates, adjudicators and other support personnel who run the system. The courts apply the law, and settle disputes and punish law- breakers according to the law. Our judicial system is a key aspect of our democratic way of life. It upholds peace, order and good government.

Citizens look to the judiciary to uphold their rights and governments look to the courts to interpret laws. The judiciary must act without fear of powerful interests, and without favouring individual parties. A court’s ability to deliver justice depends on its power to enforce its rulings. Only a court of appeal can overturn the ruling of a lower court.

The Judiciary is the third organ of the government. It has the responsibility to apply the laws to specific cases and settle all disputes. The real `meaning of law’ is what the judges decide during the course of giving their judgments in various cases. From the citizen’s point of view, Judiciary is the most important organ of the government because it acts as their protector against the possible excesses of legislative and executive organs. Role of Judiciary as the guardian-protector of the constitution and the fundamental rights of the people makes it more respectable than other two organs.

Functions of Judiciary and Its Importance:

1. To Give Justice to the people:

The first and foremost function of the judiciary is to give justice to the people, whenever they may approach it. It awards punishment to those who after trial are found guilty of violating the laws of the state or the rights of the people.

The aggrieved citizens can go to the courts for seeking redress and compensation. They can do so either when they fear any harm to their rights or after they have suffered any loss. The judiciary fixes the quantity and quality of punishment to be given to the criminals. It decides all cases involving grant of compensations to the citizens.

2. Interpretation and Application of Laws:

One of the major functions of the judiciary is to interpret and apply laws to specific cases. In the course of deciding the disputes that come before it, the judges interpret and apply laws. Every law needs a proper interpretation for getting applied to every specific case. This function is performed by the judges. The law means what the judges interpret it to mean.

3. Role in Law-making:

The judiciary also plays a role in law-making. The decisions given by the courts really determine the meaning, nature and scope of the laws passed by the legislature. The interpretation of laws by the judiciary amounts to law-making as it is these interpretations which really define the laws.

Moreover, `the judgments delivered by the higher courts, which are the Courts of Records, are binding upon lower courts. The latter can decide the cases before them on the basis of the decisions made by the higher courts. Judicial decisions constitute a source of law.

4. Equity Legislation:

Where a law is silent or ambiguous, or appears to be inconsistent with some other law of the land, the judges depend upon their sense of justice, fairness, impartiality, honesty and wisdom for deciding the cases. Such decisions always involve law-making. It is usually termed as equity legislation.

5. Protection of Rights:

The judiciary has the supreme responsibility to safeguard the rights of the people. A citizen has the right to seek the protection of the judiciary in case his rights are violated or threatened to be violated by the government or by private organisations or fellow citizens. In all such cases, it becomes the responsibility of the judiciary to protect his rights of the people.

6. Guardian of the Constitution:

The judiciary acts as the guardian of the Constitution. The Constitution is the supreme law of the land and it is the responsibility of the judiciary to interpret and protect it. For this purpose the judiciary can conduct judicial review over any law for determining as to whether or not it is in accordance with the letter and spirit of the constitution. In case any law is found ultra vires (unconstitutional), it is rejected by the judiciary and it becomes invalid for future. This power of the court is called the power of judicial review.

7. Power to get its Decisions and Judgments enforced:

The judiciary has the power not only to deliver judgments and decide disputes, but also to get these enforced. It can direct the executive to carry out its decisions. It can summon any person and directly know the truth from him.

In case any person is held:

(i) Guilty of not following any decision of the court, or

(ii) Of acting against the direction of the court, or

(iii) Misleading the court, or

(iv) Of not appearing before the court in a case being heard by it, the Court has the power to punish the person for the contempt of court.

8. Special Role in a Federation:

In a federal system, the judiciary has to perform an additionally important role as the guardian of the constitution and the arbiter of disputes between the centre and states. It acts as an independent and impartial umpire between the central government and state governments as well as among the states. All legal centre-state disputes are settled by the judiciary.

9. Running of the Judicial Administration:

The judiciary is not a department of the government. It is independent of both the legislature and the executive. It is a separate and independent organ with its own organisation and officials. It has the power to decide the nature of judicial organisation in the state. It frames and enforces its own rules.

These govern the recruitment and working of the magistrates and other persons working in the courts. It makes and enforces rules for the orderly and efficient conduct of judicial administration.

10. Advisory Functions:

Very often the courts are given the responsibility to give advisory opinions to the rulers on any legal matter. For example, the President of India the power to refer to the Supreme Court any question of law or fact which is of public importance.

11. To Conduct Judicial Inquiries:

Judges are very often called upon to head Enquiry Commissions constituted to enquire into some serious incidents resulting from the alleged errors or omissions on the part of government or some public servants. Commissions of enquiry headed by a single judge are also sometimes constituted for investigating important and complicated issues and problems.

12. Miscellaneous Functions:

Besides the above major functions, the judiciary also performs several other functions. Some such functions are the appointment of certain local officials of the court, choosing of clerical and other employees. Cases relating to grant of licenses, patents, and copy rights, the appointment of guardians and trustees, the admission of wills, to appoint trustees to look after the property of the minors, to settle the issues of successions of property and rights, issue of administrating the estates of deceased persons, the appointment of receivers, naturalization of aliens, marriage and divorce cases, election petitions and the like.

Through all these functions, the Judiciary plays an important role in each state. It also plays a role in the evolution of Constitution through the exercise of its right to interpret and safeguard it against all legislative and executive excesses.

Importance of Independent Judiciary:

In the life of the citizens of a state, Judiciary is a source of confidence and fearlessness. The common man depends upon judiciary for getting justice. Without a security of rights and freedom guaranteed by the judiciary, they cannot really hope to carry out their jobs and enjoy their living. They are more dependent upon judiciary than the legislature and the executive. Without judicial protection, their lives can become miserable. From citizens point of view Judiciary is the most important organ of the government.

Garner highlights this view when he observes, “A society without legislature is conceivable, and indeed, legislative organs did not make their appearance in the state until modern times, but a civilised state without a judicial organ and machinery is hardly conceivable.”

Judiciary enjoys a big importance in the eyes of the people because it acts as:

(1) The dispenser of Justice.

(2) Protector of the rights of the people.

(3) Guardian protector of the Constitution of the State.

(4) Arbiter of center-state disputes.

(5) Safeguard against Legislative and executive excesses.

(6) Check against arbitrary exercise of powers by the power-holders.

(7) Guardian of Rule of Law and Justice.

An independent judiciary is always considered to be the most essential part of every democratic government worth its name. A government without judiciary is almost inconceivable. A government without independent judiciary is always held to be an authoritarian government.

Independence of Judiciary: An Essential Quality:

The chief quality which helps the judiciary to faithfully administer justice and to perform its functions efficiently is judicial independence. It is only when the judiciary works independently without any interference of the other two organs of the government that it can carry out its high responsibilities.

“The independence of judiciary,” writes Dr. P. Sharan, “is a corner stone of every democratic government and upon it is built the structure of civil liberty.” Judiciary can perform its functions only when it is free to administer justice according to law. Without being well-organised and independent it can never serve its purpose. Therefore, Judiciary must be organised in such a way as can enable the judges to give their judgments without any fear or favour.

Dr. B.R. Ambedkar describes Article 50 as conscience of Constitution. As per Article 50 enshrined as

Article 50 in the Constitution Of India 1949

50. Separation of judiciary from executive The State shall take steps to separate the judiciary from the executive in the public services of the State-

Organisation of Judiciary must be based on the following features:

(1) Appointment of only highly qualified and experienced judges.

(2) The Judiciary must have prevented the executive and legislature from committing excesses.

(3) The ability of the judiciary to maintain and independently run the judicial administration.

(4) The Judiciary must be made the guardian protector of the Constitution,

(5) The Judiciary must ensure full, fair and less- expensive opportunities to the people for defending their rights and getting justice.

(6) The method of appointment of judges must be fair, systematic, effective and transparent.

(7) Method of removal of judges should be difficult and no single should have the power to remove the judges.

(8) Judges must be paid high salaries, necessary allowances, good service conditions, and appropriate retirement benefits.

Furthermore as it is well said by the Hon’ble Supreme Court reported in AIR 1987 SC 1353 as It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

By incorporating all these features in the judicial system, a well organised and independent judiciary can be secured.

That’s why it is well noted the courts as

“The courts are last cathedral to the dying Man.”

Q 2. WHAT IS JUDICIOUS CONSCIENCE?

That ‘Judicious Conscience’ word has often been using by the Judges. When the matters is deeply related with the law and more particularly with the legal principles, which can affect the conscience of a person having knowledge or understanding of the principles of law, it become ‘Judicious Conscience’.

Law and conscience will of course often be perfectly consonant. Most of the time, this should be fairly unremarkable, and thus it will not be mentioned in the mine run of opinions. In those situations where no judge on the panel disagrees on any material matter in the case, so that only a majority opinion will be published, there is often little to be gained by adding considerations of conscience or morality to support what is already established law. It does happen, though, most commonly in instances in which the opinion underscores the judicial obligation of faithful adherence to precedent as a matter of institutional conscience. Other common circumstances for references to conscience as further support for an otherwise already legally tenable position include matters implicating issues of judicial resources and burdens on the courts other players in the justice system, issues of substantive or procedural fairness, and others still.

Such positions do not only appear in unanimous majority opinions, but also in dissents in those cases in which at least one judge believes that he is correct both on the law and on the morality, but is compelled to write in a dissenting opinion due to a difference of legal interpretation between the dissenter and others on the court. It is the expressions of the consonance of law and conscience that appear in the concurring and dissenting opinions, though, that turn out to be more worthy of note for the purposes of this discussion. Where the consonance appears in a majority opinion, it simply has that much less force or weight, in the light of the clarity of the established law. However, this article does not limit its discussion to cases in which conscience differs from law. Any resort or reference to conscience is ripe for discussion in the effort to develop a fuller and clearer understanding of what judicial conscience is and how it fits into the shape of the judicial role.

While there is perhaps an interesting academic question about the propriety of judicial reference to conscience in further support of an uncontroverted legal interpretation, the more difficult question is what ought to happen when a judge’s considerations of conscience are in conflict with established law, or at any rate with the interpretation of the law accepted by a majority of the relevant panel. Any judge who feels faced with a serious dissonance between law and conscience has an array of options at least apparently open to him. To state them roughly and in relatively short order, a judge could: (1) keep silent about the conflict and simply follow the law; (2) follow the law

When judges use words and phrases like “in good conscience” or “unconscionable,” they do so in many contexts and with a broad range of ideas apparently in mind. Though some scholarship in this area tends to be focused specifically on the role or expression of a judge’s religious faith, it can be hard to distinguish – and it is probably pointless to try to divine any distinction, for purposes of this paper – between religiously- based convictions and any other personal commitments that underlie actual judicial usage of the word `conscience.’ It is difficult to pin down a particular consensus definition of conscience or the unconscionable, either in the actual usage by judges or in the legal academic literature that has built up around this concept. Much might be included, but some usages are clearly of more import than others for this topic. Black’s Law Dictionary defines conscience as “1. The moral sense of right or wrong; esp., a moral sense applied to one’s own judgment and actions. 2. In law, the moral rule that requires justice and honest dealings between people.” This underscores the overlap and thus the lack of specific distinction, among the terms `conscience,’ `morality’ and `justice.

These terms must, to a certain extent, be left a bit muddy, because one must take them as the courts use them. Judges are not necessarily philosophers or linguists, and they are not typically concerned with precision about distinctions among these particular terms. Furthermore, to get too technical about the verbal or semantic distinctions here might even encourage an unwarranted and unhelpful formalism by judges.

Examination of the variety of uses of these terms by judges does however reveal some broad categories of apparent meaning. Sometimes it is a matter of a judge’s core personal conviction about right and wrong; sometimes it is a matter of responsibility for the integrity of the institution (for the proper role of the court, for its reputation, or for proper use of its resources, for example); sometimes it is an attempt to speak for something like a `common conscience’ or a common public notion of justice or other values; sometimes it is simply a matter of personal honesty about a particular view of the facts or the law in a given case. Very often, phrases like “in good conscience” or “unconscionable” or other variants on these, come up in cases having to do in one way or another with liberty interests, and of those very often the cases are before the court on appeals of denials of habeas petitions. These are decisions in which a panel’s collective decision may effectively be the end of the road on life and death issues. Another common context for these expressions of conscience is in dissents from denials of petitions for rehearing en banc – again, an end of the road determination, which may introduce frustration about the full court not taking up a matter a judge. Believes to be a moral imperative for further attention. Although judges certainly do use other related terms such as morality, injustice, and unfairness as well in these kinds of scenarios, this article limits the discussion to those specifically using `conscience’ and its cognates, in an attempt to get a clearer picture of what judges themselves see as the proper role for their conscientious commitments in their decision making and what that may reveal to help us better understand the larger shape of the judicial role.

THE SIGNIFICANCE OF SECTION 482

SEC 482 CR.P.C READS AS FOLLOWS:

“Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

WHY THE NEED FOR SECTION 482 CR.P.C.?

The powers of the High Court U/s 482 Cr.P.C are partly administrative and partly judicial. The section was added by the Code of Criminal Procedure (Amendment) Act of 1923, as the High Courts were unable to render complete justice even if in a given case the illegality was palpable and apparent. The Hon’ble Supreme Court in State of Karnataka v. Muniswami- AIR 1977 SC 1489, held that the section envisages 3 circumstances in which the inherent jurisdiction may be exercised, namely, “to give effect to an order under CrPC, to prevent abuse of the process of the court, and to secure the ends of justice“.

The Hon’ble Allahabad High Court went on to state that, “The section is a sort of reminder to the High Courts that they are not merely courts in law, but also courts of justice and possess inherent powers to remove injustice“. The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under section 482 is discretionary, therefore, the high court may refuse to exercise the discretion if a party has not approached it with clean hands.

WHAT ARE THE REAL POWERS OF THE HIGH COURT U/S 482 CR.P.C?

Inherent powers u/s 482 of Cr.P.C. include powers to quash FIR, investigation or any criminal proceedings pending before the Sessions Courts or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly and with caution.

It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and NOT where a specific remedy is provided by the statute. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, especially when the applicant may not have availed of that remedy.

Rules governing the petitions which pray for quashing of criminal proceedings

Section 482 of CrPC, which deals with the power of the court to quash criminal proceedings, hasn’t given the details of that what exactly constitutes the inherent power of the court. In that sense, the Code is very vague as it doesn’t lay out the grounds on which the foundations of the inherent power of court lay. Furthermore, there has been consistent inconsistency in the judgments of the Supreme Court of India with regard to the application of Section 482 of CrPC.

Consequently, the application of Section 482 of CrPC is a very agitated issue in litigation along with being a strongly debated concept in the legal academic circles. Nevertheless, there are some cases which have got wide acceptance in the legal fraternity and hence, are used as the minor guiding principles (landmark cases being the major ones) governing the cases of quashing of criminal proceedings. Some of these cases are:

1. Prashant Bharti v. State of NCT of Delhi (2013) 9 SCC 293

In order to determine the veracity of a prayer for quashing the criminal proceedings raised by an accused under Section 482 of the CrPC, the following questions were raised before the High Court. The court held that if the answer to all the following questions was in affirmative, then the Court should quash the proceedings by exercising its power under Section 482 of CrPC;

1. Whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

2. Whether the material relied upon by the accused is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

3. Whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

4. Whether proceeding with the trial would result in an abuse of process of the court and hence, would not serve the ends of justice?

2. Parbatbhai Ahir v. State of Gujarat (4 October 2017)

In this case, the Supreme Court referred to various precedents and summarised the following principles to govern the power of High Court under Section 482 of CrPC;

1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.

2. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non- compoundable.

3. Informing an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.

4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised;

4.1. To secure the ends of justice.

4.2. To prevent abuse of the process of any court.

5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.

6. In the exercise of the power under section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed, even though the victim or the family of the victim, have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.

7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned.

8. Criminal cases involving offences which arise from a commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.

9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice

10. There is yet an exception to the principle set out in propositions (viii) and above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.”

3. QUASHING OF CRIMINAL PROCEEDINGS IN MATRIMONIAL CASES (CASES FILED UNDER SECTION 498A)

The purpose of drafting Section 498A was to help the hapless women who were the worst victims and were harmed at the hands of their husbands. In the present times, there have been several instances where the section is misused. The situation became so severe that various non- government organizations (NGOs) came up for the purpose of advocating the repeal of Section 498.

The Supreme Court of India has, many a time, held that the proceedings being pursued under Section 498 – A of IPC ought to be quashed if the chances of conviction are very bleak or the case has been filed with ulterior motives. This is so because there are various cases where the purpose of the litigation is the ulterior motive of settling personal scores.

The following cases discuss quashing of proceedings in such matters;

1. The Supreme Court of India observed in the case of Sushil Kumar Sharma v. Union of India (19 July 2005),

“…The object of the provision is the prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have filed the cases with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery…”

1. In B.S. Joshi v. State of Haryana 2003 (4) SCC 675 the Supreme Court justified the exercise of powers under Section 482 CrPC to quash the proceedings in matrimonial cases to secure the ends of justice in view of the special facts and circumstances of the case even where the offences alleged are non-compoundable.

2. The judgment in B.S. Joshi v. State of Haryana was used by the Delhi High Court to quash criminal proceedings which had been initiated under Section 498 – A of the Indian Penal Code in the case of Girish Pandey v. State (20 October 2016).

3. Furthermore, it was held in the case of Geeta Mehrotra v. State of Uttar Pradesh (17 October 2012) by the Supreme Court that making general allegations against husband without any conclusive proof is ground enough to quash criminal proceedings instituted under Section 498- A of IPC.

The landmark Judgments in Quashing the Criminal cases delivered by the Hon’ble Supreme Court of India are:

(1) Janki Bai v. The state of Madhya Pradesh

(2) Rajave Textiles Private Ltd., v. Sourabh Biotech

(3) Raghavendra Sharma v. MPM KVV Construction Ltd., and also Hon’ble Telangana High Court is

(4) Sri Kota Reddy Veerappa Reddy v. State of Telangana.

4. TEST TO CHECK WHETHER HIGH COURT CAN INTERFERE OR NOT

Ordinarily, a High Court will not interfere at an interlocutory stage of criminal proceeding in a subordinate court but HC is under an obligation to interfere if there is harassment of any person (Indian citizen) by illegal prosecution. It would also do so when there are any exceptional or extraordinary reasons for doing so. The Supreme Court, in Madhu Limaye v. Maharashtra, has said, “Nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in Section 482. Where the impugned interlocutory order clearly brings about a situation which is an abuse of the process of the court then for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary and nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power of the High Court”.

The SC, further, in Madhu Limaye v. Maharashtra, has held that the following principles would govern the exercise of inherent jurisdiction of the HC:

1. Power is not to be resorted to, if there is specific provision in code for redress of grievances of aggrieved party.

2. It should be exercised sparingly to prevent abuse of process of any Court or otherwise to secure ends of justice.

3. It should not be exercised against the express bar of the law engrafted in any other provision of the code.

It can never be laid down more particularly or precisely when the High Court can and cannot use its powers, but attempts have been made on that behalf in several of the decisions of Supreme Court.

In the landmark case State of Haryana v. Bhajan Lal (1992 Supp.(1) SCC 335), a two-judge bench of the Supreme Court of India considered in detail, the provisions of section 482 and the power of the High Court to quash criminal proceedings or FIR. The Supreme Court summarized the legal position by laying the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:

1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or, where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

LIMITATION ON SECTION 482 OF CR.P.C

Even though the inherent jurisdiction of the High Court under Section 482 is very wide, it has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised exdebito justitiae to do real and substantial justice for the administration of which alone, courts exist. This view has been taken by the Hon’ble SC in many of its judgments including the recent Monica Kumar v. State of Uttar Pradesh.

In a proceeding under section 482, the High Court will not enter into any finding of facts, particularly when the matter has been concluded by concurrent finding of facts of two courts below.

In State of Bihar and another v. K.J.D. Singh, the Hon’ble Supreme Court had a question whether the Criminal Proceedings can be quashed even before the Commencement of the Trial. The Supreme Court went ahead and held that “The inherent power under Section 482 has to be exercised for the ends of the justice and should not be arbitrarily exercised to cut short the normal process of a criminal trial. After a review of catena of authorities, Pendian, J. in Janta Dal v. H.S. Chowdhary (supra) has deprecated the practice of staying criminal trials and police investigations except in exceptional cases and the present case is certainly not one of these exceptional cases.“

In R.P. Kapoor v. State of Punjab, Hon’ble Supreme court went on to limit the powers of the Hon’ble High Court within the ambit of the Cr.P.C. It was held, “Inherent power of the High Court cannot be invoked in regard to matters which are directly covered by specific provisions in the Cr.P.C.”.

It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and NOT where a specific remedy is provided by the statute. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy.

CONCLUSION

Section 482 Cr.P.C has a very wide scope and is an essential part of statue to meet the end of justice where injustice can take place but at the same time the said Power is too wide and hence, it is important for the courts to use it wisely and according to the guidelines laid down by High Courts and Supreme Court time to time. Section 482, in its current form has seen several changes with the changing times and needs of the hour and by the Guidelines framed by the Supreme Court in several of its judgments. The Courts are constrained to do so as the said Section which gives wide powers to the High Court, was highly abused by the Law Practitioners. Section 482 of Cr.P.C has made its space in Cr.P.C in order to enable the High Courts to provide proper justice and at the same time to curb filing of fictitious complaints just to avenge personal grudges.

Q. 5 JUSTICE, PRACTICE, PROFESSION

In the most common terms, justice is an ideal representing something that is just and right. It basically means being just, impartial, fair and right. … On the other hand, modern jurisprudence says justice means the implementation of concepts like equality and liberty.

For example, the natural law school of jurisprudence believes that justice means the implementation of religious laws. On the other hand, modern jurisprudence says justice means the implementation of concepts like equality and liberty. However, in both these examples, justice just means enforcement of what the law perceives to be right.

In the modern context, justice basically means the recognition and implementation of laws made by legislatures. Furthermore, in the modern context, unlike ancient states, this function lies largely on judicial organs.

According to Salmond, laws are the bodies of principles that tribunals recognize and apply while administering justice. Even Roscoe Pound defines laws to mean principles that public tribunals recognize and enforce.

Therefore, justice generally means the recognition, application and enforcement of laws by courts. This is different from the understanding of justice in the ancient period when it was given a religious and moralistic meaning.

KINDS OF JUSTICE

The concept of justice and its administration can be of the following types:

1) Public justice and Private justice

Public justice is basically that kind of justice which the state administers through its tribunals and courts. It explains the relationship between courts and citizens of a state. Courts usually enforce laws that the states make under public justice.

On the other hand, private justice regulates the legal relationship between individuals. It is limited to people enforcing concepts of justice amongst each other without approaching courts.

For example, let’s imagine that A and B entered into a business transaction in which A paid money to B as promised. B, instead of selling goods to A for the money, refused to fulfill his obligation. If A and B decide to settle their dispute through means of arbitration or negotiation, it is private justice. However, if A approaches a court and sues B, we refer to that as public justice.

2) Civil justice and Criminal justice

In terms of the subject matters of justice, we can categorize it as civil and criminal. Civil justice generally refers to private wrongs that affect specific people or entities.

For example, breach of a contract between two parties will affect only one of them. Trespassing of property is another example. The remedy of such civil wrongs is generally to approach civil courts.

Criminal justice, on the other hand, affects society in general even if specific people are victims. For example, the murder affects specific victims only but the law treats it as a crime against society.

Another feature of criminal justice is that it relates to laws made by a legislature. Only acts that are defined as crimes can be the subject matter of criminal justice.

In respect of Legal Profession is concerned it is well noted by the legal laurets that legal profession is a Nobel Profession.

The statement, “A lawyer is and must ever be the high priest at the shrine of justice”, a religious metaphor, reflects the view of the lawyer’s special role on the administration of justice as contemplated by the American Bar Association in the first national code of legal ethics in the USA. The religious metaphor was developed in the context of viewing Courts as the `shrines of justice’, and lawyers as the ministers of the “courts of justice robed in the priestly garments of truth, honor and integrity”. Even in a secular context, the statement still captures the essence of the role of an advocate in the mechanism of administration of justice in the society.

At the outset, it is necessary to appreciate the role an advocate plays in the society. The development of lawyers as a class of professionals can be attributed to the need for trained persons who can form the competent interface to facilitate the interaction between the lay persons and the judiciary. This involves providing legal advice in matters of rights, liberties or property of the client within the framework of legislative and legal rights, and representing the client in the event of a dispute before an adjudicatory body. In fact, if law is viewed as a `public good’ which is frequently technical and not self-executing, meaningful access to law requires the assistance of a lawyer. Particularly, in most jurisdictions, the members of the legal profession are conferred the status of privileged members of the community, and occupies an exclusive domain with the privilege of pleading and acting on behalf of suitors being restricted only to enrolled advocates and attorneys. This monopolistic character of the legal profession entails certain high traditions which its members are expected to upkeep and uphold.

Therefore, the lawyer plays an indispensible role in the mechanism of administration of justice.

However, the lawyer has a particularly onerous and multi-dimensional role to fulfill. As expressed by Mathew, J., “A Counsel has a tripartite relationship: one with the public, another with the court, and the third with his client. That is a unique feature. Other professions or callings may include one or two of these relationships but no other has the triple duty.”The satisfaction of the obligations and expectations arising out of these three relationships are frequently difficult to reconcile. The role of the advocate in these three capacities requires a closer scrutiny.

The lawyer, as a professional, to some extent, acts on behalf of the client, and representing the client. This is particularly relevant in an adversarial system of adjudication followed by common law countries which is characterized by a neutral adjudicating authority, which, on the basis of the arguments and evidence placed before it, arrives at a conclusion. The role of an advocate in an adversarial system, therefore, is to represent the case of the client before the adjudicating authority.

As a professional, the functional role of an advocate, in essence, is comparable to that of a legal technician. An advocate is specially trained in the technical profession of `law’, and with his grasp over the subject matter; professional function consists largely of providing counsel for clients about how to escape or mitigate the incidence of the law’s obligations, availing of the loopholes and the ambiguities of law. An advocate is essentially an adviser to his client. The contractual arrangement creates an obligation on the part of the advocate to offer sound legal service, and place before the court all that can fairly and reasonably be submitted on behalf of his client. The oft-quoted comment of Lord Reid in the celebrated case of Rondel v. Worley succinctly conveys the essence of the duty of an advocate towards his client: “Every counsel has the duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case”. More importantly, he should not let his personal opinion, or considerations of unpleasant consequences or reactions that he may expect to face in the performance of his duty towards his client affect the quality of services he provides to the client.

At the same time, it would be erroneous to view an advocate as merely a professional – that would lead to the risk of degenerating the legal profession into a trade or mere sordid pursuit for livelihood and accumulation of wealth, with professionals indulging in “briefs merchandise”.

It must be clarified that an advocate is obligated to act so as to protect and uphold the interest of his client by all fair and honorable means. As has been frequently emphasized, he also acts in the capacity of an officer of the Court. The role of advocates as officers of the Court is to assist the Court in the administration of justice. Lawyers collect materials relating to a case and thereby assist the Court in arriving at a correct judgment. Furthermore, being a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as the opposite side. The Bar and the Bench constitutes the two wheels of the carriage of justice. The success of the judicial process often depends on the services of the legal profession. The function of both the Bar and the Bench in an adversarial system of dispute resolution are clearly made out, and the need for a dynamic relationship of co-operation between the two is acute. Advocates, as members of the Bar and officers of the Court, have the responsibility of `keeping the stream of justice pure and unsullied’ so also to enable it to administer justice fairly and to the satisfaction of all concerned. This involves two aspects – firstly, to uphold the dignity of the judicial office and maintain a respectful attitude towards the Court, and secondly, to ensure that under no circumstance, any illegal or improper means is used to mislead the Court.

CONCLUSION

The public impact of the legal profession can be gauged by the observation by the Supreme Court in All India Judges Association v. Union of India, wherein it was expressed that the administration of justice and the part to be played by the advocates in the system must be looked into from the point of view of litigant public and the right to life and liberty guaranteed under Article 21 and right to grant legal aid as contemplated under Article 39A of the Constitution. The aspect of the advocate as a public servant is closely tied to the fact key role he plays in the developmental and dispute-processing activities and, above all, “in the building up of a just society and constitutional order.”[13] Being the custodian of the monopolistic power statutorily granted by the nation, the lawyer is obligated to rise to the expectations of him in being a member of the society worthy of confidence of the community in him as a vehicle of social justice.

Viewed in this context, it can be said that the lawyer is indeed the channel through which the general public can access the law, and avail of the protection of the law, in the shrine of justice.

1. Section 40 of the Indian Penal Code, 1860 (the IPC or the Code) defines “offence“. It provides that, “except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word “offence” denotes a thing made punishable by this Code”. Therefore, something which is punishable by IPC is an “offence” within the meaning of Section 40 thereof.

2. This article is not concerned with exceptions of Chapters and sections mentioned in clauses 2 and 3 of Section 40.

3. Section 375 of IPC defines rape. Section 376 of IPC provides punishment for rape. Thus, rape being punishable by Code is an “offence“, within the meaning of Section 40 thereof.

4. Exception 2 to Section 375 provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. Since this article is not concerned with an underage wife, one can simply state the exception 2 to Section 375 to mean that sexual intercourse or sexual acts by a man with his own wife, is NOT rape, irrespective of age issue, which has otherwise been matter of consideration by Hon’ble Supreme Court in the case of Independent Thought.

5. Thus, the thing covered by exception 2 to Section 375 is not an “offence” under Section 40.

6. Certain Writ Petitions have been filed before Delhi High Court in the lead case of RIT Foundation v. Union of India and similar Petitions challenging the aforesaid exception 2 to Section 375 as being unconstitutional and seeking a declaration to that effect.

7. An endeavour is being made in this article to demonstrate that aforesaid Petitions are neither maintainable in law nor otherwise tenable on merits. It may be stated that, though, if a Writ Petition is not maintainable, to start with, there is no occasion to go into merits of the matter. Nonetheless, merits of the matter are independently examined in this article, to see the basic merit of the matter, from an alternative point of scenario.

8. It is possible for an aggrieved party or for a public spirited individual or an organization to file a Writ Petition, challenging the validity or constitutionality of a provision. Such a Petition would be a Petition, such as the one challenging Section 377 of IPC. The underlying premise of such challenge is that certain provision of criminal law has unnecessarily criminalized something, which ought not to be a crime.

9. In such a challenge, it is open for a Constitutional Court under Article 226 of the Constitution to strike down the provision challenged or read down the same, to save it from the mounted challenge on the ground that the same is unconstitutional and hence invalid.

10. However, a question arises in the present context as to whether a Petition can be filed challenging something which is an exception to a crime and seek deletion thereof so that the excepted things becomes a crime. In other words, would a Writ Petition seeking to criminalized a thing, which is so far not a crime, is maintainable in law.

11. In the considered view of the author, such a Writ Petition by its very nature is not maintainable in law, speaking conceptually.

12. Declaration of something as a crime or an “offence” is a matter, which solely rests in the domain of legislature. It is entirely up to the legislature, whether to criminalize something or not. If the legislature chooses not to criminalize something, no writ of mandamus would lie against it to command it to criminalize something or otherwise criminalize it by way of a declaration or like.

13. For instance, begging is not a crime in India. A Writ Petition cannot be filed seeking a declaration that begging be made into a crime punishable by law. It is entirely up to the legislature whether to criminalize it or not.

14. However, once criminalized, it is open to Constitutional Court to examine whether such criminalization is good or bad in law or constitutional or unconstitutional, which is part and parcel of power of judicial review vested in the judiciary.

15. As happened in the case of begging itself, which was criminalized by a particularly legislation, which upon being challenged was struck down by Delhi High Court as in the case of Judgment of Justice Gita Mittal of Delhi High Court in this regard.

16. But is it not possible the other way around that someone get something declared as a crime by a Court of law, which otherwise is not a crime. This is not only unheard of, but also conceptually inconceivable and constitutionally impermissible.

17. Therefore, on the face of it, the Writ Petitions filed before Delhi High Court are not maintainable in law and ought to be dismissed without examining merits of the matter.

18. Assuming for the sake of arguments, while contending to the contrary, such Writ Petitions are assumed to be maintainable, nonetheless such Writ Petitions have no merits in it. This is for innumerable reasons. Some of these reasons are discussed now.

19. Firstly, Indian Penal Code is a criminal code and ought to be interpreted strictly. Even on interpretation, if possibly, two views are possible, whether an act or omission is a crime or not, that view must prevail, which holds that the act or omission complained of is not a crime. The principle of strict construction applies with much force and vigor in criminal law than in any other law. After all, criminal law affects the life and liberty of people.

20. Secondly, exception 2 to Section 375 is an exception and not an exemption. The difference between exception and exemption is a qualitative difference of nature and not quantitative difference of degree. An exception is something which is not part of the Rule. An exemption is something which is part of the Rule but excluded from the Rule for an artificial reason.

21. Thirdly, rape is primarily defined as an act of forcible intercourse by a man either against the `will’ of the woman or against her `consent’.

The moment a man and woman enters into the contract of matrimony, there is no occasion to say that any forcible intercourse thereafter, by the man is against the `will’ of the woman. In other words, the very fact that the woman has entered into matrimony with the man, converts them into wife and husband relationship borne out of wedlock. In such a relationship of matrimony, there is no question of anything happening against the `will’ of the wife in the legal sense inasmuch as by having voluntarily agreed to get married, the woman who has now become wife has given her `will’. This appears on first principle.

This in any case is also supported by Section 376B. Section 376B deals with an “offence” of sexual intercourse by a husband upon his wife during separation. Section 376B creates an “offence” only if the act complained of is, without her `consent’. Section 376B does not get triggered if it against the `will’ of the wife. In other words, law itself in the shape of Section 376B recognizes that the `will’ of the wife is present in a marital relationship and the only issue is about `consent’.

22. Insofar as the issue of act of intercourse, without `consent’ is concerned, it needs careful examination as to whether such `consent’ of wife is needed before every act of intercourse or there is something in the very marital relationship itself, which takes care of the same expressly or impliedly or otherwise.

23. The very idea of the marriage is to consume it. Failure to consume the marriage can lead to dissolution of marriage.

24. It is to be noted that either of the parties to a marriage can upon desertion by the other party apply for restitution of conjugal rights. The very idea of restitution of conjugal rights as a legal right, coupled with a remedy enforceable at law, is premised, irrespective of the consent of the parties. So long as there is a right, there is a remedy. So long as that right is there, remedy can be enforced, without consent of the other party. This would demonstrate that consent is not material for restitution of conjugal rights in matrimonial relationship.

25. Further, marriage as a relationship is based on the give and take relationship of the parties. Traditionally speaking, in a marital relationship, man provides for the needs of woman in terms of resources for food, clothing and shelter and woman in turn provides for man’s need for companionship. This relationship of give and take is not based upon consent of either party. There is no one to one co-relationship between one party providing for something in order to get something in return from another party. By its very nature the relationship is strong yet subtle, continuing yet renewing, contractual yet unlike any other contract.

26. Even though, the traditional basis of marital relationship has undergone a sea change, the underlying foundation or premise remains the same. It is something like, more the things changes, more they remain the same. Even though, there may have been cases of tectonic shift to the extent that the woman becomes bread earner and man takes care of the home, nonetheless, the fundamental premise remain the same i.e. civil union of opposite sexes. In any case, predominantly the traditional method, manner of marriage remains the same, be it as urban phenomena or as a rural pastime.

27. Therefore, it appears that the relationship is such that there is no requirement of `consent’ before every act of intercourse, though it may be utopian in an imaginary evolved society, which will never exist.

28. Even assuming that something is forcible and without consent (in the non-legal sense), it may be anything but rape. The very idea of marital rape is misnomer in itself. There is either a marriage or a rape. It cannot be both, as the law stands. It cannot also be both theologically or philosophically, even if the law is to be altered.

29. In fact, take a hypothetical situation that there is a separate non-descript “offence” created by legislature dealing with the act of forcible intercourse between married parties and the aforesaid exception 2 to Section 375 is absent from the statute book, it would still be open for an aggrieved party (husband) to challenge the same, seeking decriminalization of the same on any of the aforesaid grounds or on host of other grounds and such challenge may be successful, both logically and legally.

30. At this stage, the judgment of Hon’ble Supreme Court in the case of Independent Thought v. Union of India and Others – (2017) 10 SCC 800 is required to be referred to. The said judgment deals with Exception 2 to Section 376, insofar as it deals with sexual intercourse by a man with his own wife, aged between 15 and 18 years. The said judgment struck down aforesaid Exception 2 to Section 376, insofar as aforesaid age bracket is concerned.

31. Certain important things about above judgment are, firstly, the judgment makes it very clear that it is not dealing with the issue of marital rape of a woman, who is 18 years of age and above, since that issue was not before the Supreme Court. The judgment explicitly clarifies that the issue of marital rape is not even touched collaterally (Para 2 of Reported Judgment, also see Para 114 and Para 196). Secondly, the judgment confirms that Courts cannot create an offence (Para 190 of the Reported Judgment). Thirdly, the Court clearly holds that it is not creating any new offence (Para 191 to 194 of the Reported Judgment). Fourthly, at the cost of repetition, the Court observes that it is not commenting upon the issue of marital rape, one way or the other (Para 199 of the Reported Judgment). Fifthly, the judgment recognizes that historically speaking, even under English law, in spite of there being no statutory exception like Exception 2 to Section 376, nonetheless by a principle known as Hale’s principle named after Chief Justice of England, Sir Mathew Hale, recognized that a husband cannot be said to be guilty of raping his own wife, by laying down as below:

“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract”

The aforesaid principle was followed in England for many years for more than two centuries. This was based on the proposition that the wife gives up her body to her husband at the time of marriage. It was also presumed that upon marriage, a woman had given her irrevocable consent to have sexual intercourse with her husband.

32. At first blush, it appears as if there is no difference between the issue before the Supreme Court in Independent Thought and in the challenge to marital rape. The difference between the two is also obvious in one sense i.e. that Independent Thought itself recognizes the same. However, on a proper and deeper analysis, it would be revealed that there is a qualitative difference between the two, which though subtle is yet perceptible and of course logical.

33. Insofar as the right of privacy claimed by the Petitioner’s before the Delhi High Court is concerned, the said right, which is held to be fundamental right, as part of Article 21, is a right against the State. The said right, in no manner is against the husband. It goes without saying that State is not husband and equally, husband is not State. Therefore, question of claiming any fundamental right of privacy against the husband does not arise.

34. Fundamentally speaking, there is no compulsion to marry, whether statutorily or contractually. It is a voluntary union of opposite sexes. In the absence of any compulsion, question of claiming any right arising out of such voluntary union against the other partner in the relationship does not arise.

35. Matter can also be looked at from another angle i.e. what about husband’s right of privacy. Right of privacy is certainly not gender biased. If right of privacy is gender neutral, would not a husband have a fundamental right to privacy in his marital relationship? Can the husband not claim that State has no business to enter into his bedroom armed with a penal stick in its hand, more so, when the relationship between him and his wife is, contractual, mutual and voluntary. The very nature of the relationship speaks for itself.

36. In fine, without questioning the institution of marriage, criminalizing so called marital rape, is nothing but stark illegality, absurdity apart and in any case unconstitutional.