CODE OF CRIMINAL PROCEDURE

PSDA ASSIGNMENT

By- Ayush Parashar 00916503822

B.A. LLB(Hons.) 2022-2027

To- Prof. Upma Gautam SEM- V

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ACKNOWLEGEMENT

First and foremost, I extend my appreciation to my Criminal Procedural law

professor Ms. Upma Gautam, whose guidance and insightful feedback were
invaluable in shaping my understanding of the subject. Your passion for the law
has inspired me to delve deeper into the complexities of criminal procedures.

I also wish to thank my classmates for their collaboration and stimulating

discussions, which helped enhance my perspective on various topics. The
exchange of ideas and resources proved to be incredibly beneficial during this
process.

This assignment represents not only my efforts but also the collective support of
those around me. Thank you all for contributing to my academic journey in
criminal procedural law.

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INDEX

1. ACKNOWLEDGEMENT………………………………………………...
2. INDEX…………………………………………………………………….
3. CONVENTIONAL LAW CASES………………………………………...
A. Priyanka Srivastava & Anr vs State of U.P.& Ors……………………….
B. State Of Haryana and Ors vs Ch. Bhajan Lal and Ors……………………
C. Satyajit Banerjee And Others vs State of West Bengal & Ors…………….
D. Arnesh Kumar vs State of Bihar & Anr…………………………………....
E. Delhi Domestic Working Women’s Forum vs Union of India & Ors………
4. SPECIAL LAW CASES………………………………………………….........
A. Nandini Satpathy vs Dani (P.L.) And Anr………………………………...
B. Pratap Singh vs State of Jharkhand & Anr…………………………...…….
C. Lalita Kumari vs. Government of U.P…………………………………….
D. Nikesh Tarachand Shah vs Union of India………………………………...
E. Goenka Sajan Kumar vs The State of A.P………………………………….

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COVENTIONAL LAW CASES-

||Case: 1||

❖ Priyanka Srivastava & Anr vs. State of U.P.& Ors (2015).

EQUIVALENT 2015 AIR SCW 2075, 2015 (6) SCC 287.

CITATTION
BENCH HMJ. Prafulla C. Pant & HMJ. Dipak Misra.

BEFORE Hon’ble Supreme Court of India.

INTRODUCTION-

1. This case revolves around the application of the provision of

sec.156(3)[1], i.e.- 156. Police Officer's power to investigate cognisable
case.
(1)Any officer-in-charge of a police station may, without the order of a
Magistrate, investigate any cognisable case which a Court having
jurisdiction over the local area within the limits of such station would have
power to inquire into or try under the provisions of Chapter XIII.
(2)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 this section to investigate.
(3)Any Magistrate empowered under section 190 may order such an
investigation as above mentioned.
2. Sec.156(3) justifies the application of judicial reasoning, through this
provision the courts are involved and it is not the police which is acting
under the provision of Sec.154(2) of the criminal procedure code.

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 3. It was Justice Balakrishnan who cites that- “Litigants are not free to
exercise the powers of a magistrate. A principled and truly troubled citizen
with clean hands must have free access to summon that power. But it
protects citizens when perverse legal controversies unfold. If they are
harassing fellow citizens in this way, attempts should be made to
submerge them and contain them.”
4. In this Landmark case of “Priyanka Srivastava Vs. State of U.P” before
the Hon’ble supreme court, the major procedural lapse which existed in
the criminal proceedings in the code was corrected and amended in such
a way which provided an obligation over the complainant under
Sec.156(3) to provide an affidavit on oath for his completion of due
process under Sec.154(1)[22] and 154(3)[23] of the code.
5. It is further contended that through this landmark case of “Priyanka
Srivastava Vs. State of U.P,”- the principle of filing an application which
must be supported by a duly declaration of facts by the applicant seeking
to invoke magistrate jurisdiction and since an application under section
156(3) is supported by a declaration of facts, the applicant should be
careful not to submit a false declaration of facts and endeavour to ensure
that it is submitted because as soon as the facts of declaration are found to
be false, the complainant becomes punishable under law for perjury.

FACTS OF THE CASE-

1. Defendant No.3, Prakash Bajaj, son of Pradeep Bajaj, took out a mortgage
on 21 January 2001 from Punjab National Bank Housing Finance Limited
(PNBHFL).
2. A loan was taken in his and his wife Jyotsna’s names. A late instalment
payment was treated as a non-performing asset (NPA).
3. The authority PNBHFL issued a notice pursuant to section 13(2)[4] of his
SARFAESI act of 2002, i.e. (The secured creditor issues a demand notice
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 to the borrower to repay the debt in full within 60 days and if the borrower
fails to pay within the 60-day period, the secured creditor can take
possession of the secured assets)
4. This application was filed by PNBHFL and was submitted before Varanasi
state DM to take necessary action under section 13(4)[5] of the act and in
its counter a written appeal was filed by the defendant which was
dismissed by the hon’ble Allahabad High court.
5. Defendant No.3 filed a criminal complaint under section 200 of the
criminal, procedure code against the respected persons Sahay, Sandesh
Tiwari, and VK Khanna for offences punishable under sections 163[6]
(Taking a gratification for the exercise of personal influence with a public
servant) 193[7] ( the punishment for giving false evidence in a judicial
proceedings) and 506[8] ( Punishment for criminal intimidation) of the
Indian Penal Code but the magistrate dismissed the complaint after taking
cognizance, hearing the complainant, and examining witnesses. Defendant
No.3 filed a revision petition with the additional sessions judge, who
received the case and overturned the previous ruling, remanding it to the
trial court with the directive that the complaint be heard fresh, and an order
be issued on the merits of the case.
6. In “Muljhibhai Kakadia & anr v Shailesh Bhai Patel” supreme court held
that an application for revision brought by the complainant in the high court
or the sessions judge challenged an order of the magistrate to bring the
complaint under section 203[11] of the code at the section 200[12] stage or
after that provided for in section 202[13] according to the code, the accused
or a person suspected of having committed the crime has the right to be
heard by the court of appeal.

PROCEDURAL LAPSES-

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 1. Defendant No.3 filed another application under section 156(3) of the
criminal procedure code against the accused, claiming criminal conspiracy
and document forgery. He also lodged an additional complaint alleging
property undervaluation, and the FIR was filed against the defendants.
2. Defendant No.3 have had the fortitude to indulge in judicial abuse.
Defendant No.3 filed various applications under section 156(3) code of
criminal procedure. On October 30, 2011, a learned additional chief
judicial magistrate filed a case against the current petitioner, but in fact no
case was registered with the police department as his FIR was not
registered.
3. The main procedural lapse before this case was that the defendant in his
counter filed several applications under sec.156(3) and sec. 200(2) before
magistrate to take the cognizance of the case or order an investigation to
the police to register an FIR (First information report) on false and
fabricated facts.
4. The issue before the supreme court was to limit this scope of complainants
to file an application under sec.156(3) for ordering an investigation by the
police through registration of an FIR in false and frivolous facts.

JUDGEMENT

1. It was held by HJM Dipak Misra that if upon reading the report, he finds
that the allegations contained therein reveal a recognizable criminal
offence, forwarding the report to the police for investigation pursuant to
section 156(3) will benefit the judiciary and save valuable magistrate time
wasted in investigating a matter, which was primarily the job of the police,
he will be entitled to take this route as an alternative to learning about the
crime himself.
2. However, once he gains such knowledge and initiates the procedure
embodied in chapter XV, he has no authority to return to the prior
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 knowledge phase and avail himself of section 156(3). It is thus
unequivocally clear that registration of FIR is mandatory and that it must
be recorded in the FIR book by assigning each FIR a unique year number
to ensure strict tracking of each registered FIR by senior police officers as
well as the competent court to which copies of each FIR must be sent.
3. It was categorically held by the learned bench of the hon’ble supreme
court that “a learned magistrate should be incredibly careful about
allegations, event dates, and whether identifiable incidents are far apart.”
4. Through this landmark judgement SC made it necessary for a way which
provided an obligation over the complainant under Sec.156(3) to provide
an affidavit on oath for his completion of due process under
Sec.154(1)[22] and 154(3)[23] of the code.
5. Through this landmark case of “Priyanka Srivastava Vs. State of U.P,”-
the principle of filing an application which must be supported by a duly
declaration of facts by the applicant seeking to invoke magistrate
jurisdiction and since an application under section 156(3) is supported by
a declaration of facts, the applicant should be careful not to submit a false
declaration of facts and endeavour to ensure that it is submitted because
as soon as the facts of declaration are found to be false, the complainant
becomes punishable under law for perjury.
6. This major procedural lapse that led to further concealment of perjury and
submissions of false affidavits was corrected by this very judgement of
the hon’ble supreme court.

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|| Case-2||

❖ State Of Haryana and Ors vs Ch. Bhajan Lal and Ors (1990).

EQUIVALENT 1992 AIR 604, 1990 SCR SUPL. (3) 259.

CITATTION
BENCH HMJ. S.R. Pandian & HMJ. K. Jayachandra Reddy.
BEFORE Hon’ble Supreme Court of India.

INTRODUCTION

1. “State of Haryana Vs. Bhajan Lal and Ors” is a landmark case of supreme
court in 1990 which deals with the court’s power to interfere in matters
of investigation related to corruption based on allegations. It particularly
deals with cases of abuse of the legal process for personal gains. This
verdict provided seven crucial guidelines regarding the application
of Article 226 of the Constitution. This deals specifically with cases
concerned with quashing First Information Reports and criminal
proceedings.
2. This landmark judgement managed to provide a structured framework,
which is also known as the “Bhajan Lal test”. This test has been very
widely cited in subsequent cases. This test consists of a two-step inquiry.
It involves subjective and objective criteria. The case acts as a guide to

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 the observations and criteria that are essential when considering
applications for quashing criminal proceedings.

FACTS OF THE CASE

1. Mr. Dharam Pal complained against Ch. Bhajan Lal before Ch. Devi Lal,
who was the Chief Minister. Ch. Bhajan Lal was the then Union Minister
for Environment and Forests when the proceedings were initiated. He had
previously served as a minister and was the Chief Minister of Haryana
between 1982 to 1987. There existed a massive political rivalry between
Ch. Devi Lal and Ch. Bhajan Lal. On account of this rivalry, both parties
filed several criminal cases and counter cases against each other.
2. On 12th November 1987, Dharam Pal accused Bhajan Lal of
accumulating huge properties worth crores of rupees. These allegations
included details about the construction of a lavish house, petrol pumps,
shops, and the purchase of land.
3. According to these allegations, he also held cars, jewellery, and shares in
the cinemas of Sirsa and Adampur. These properties were in the name of
his family members, relatives, and people close to him. The cost of the
properties seemed disproportionate to his known sources of income. He
cited 20 different allegations.
4. The allegation was that he was misusing his power, position, and
influence. He was undervaluing the market price of the properties and that
all the transactions were ‘benami’ in nature.
5. The Director General of Police (DGP) on the institution of complaint by
Mr. Devi Lal instructed the Superintendent of Police in Hisar to
investigate the allegations against Ch. Bhajan Lal.
6. A case was registered under Sections 161(the offense of a public servant
taking gratification other than legal remuneration in respect of an official
act) and 165(public servants who receive valuable things without

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 consideration from people involved in their business or proceedings) of
the Indian Penal Code, 1860, and also under Section 5(2) of the
Prevention of Corruption Act, 1988.

JUDGEMENT BY THE HIGH COURT

1. The High Court examined the contentions and the statements. It then
presented the following observations: -
A. The allegations seemed imaginary.
B. Dharam Pal’s only intention was to begin a criminal proceeding. He did
not verify his allegations and was solely dependent on the police
investigation to find proof.

C. The allegations were made to politically favour Devi Lal and to avenge his
loss against the petitioner’s wife.

D. The allegations were indiscriminate and were further made irresponsibly

and came from a desperate place.
2. The Punjab and Haryana High Court decided that the allegations
presented by Dharam Pal did not constitute a cognizable offence. The
court granted the petitioner’s request, and Dharam Pal was charged with
the costs of the Writ Petition. And the case was dismissed accordingly.
3. The state of Haryana appealed the judgment of hon’ble high court in the
supreme court of India in 1990.

ISSUES RAISED

1. Whether or not the registration of the case under Section 154(1) of the
CrPC by itself warrants an investigation under Chapter XII of the Code?

2. Whether or not, under Section 157 of the Code of Criminal Procedure, the
police officers have unrestricted power in the realm of investigation.
Whether the courts exercise judicial review over the power vested in the

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 police in the investigation stage or whether the police are wholly
exempted?

3. In what category of cases can FIRs or criminal proceedings be quashed in

the exercise of the power of the High Court under Article 226 of the
Constitution of India? And under what circumstances can the High Court
exercise its inherent powers under Section 482 of the CrPC?

PROCEDURAL LAPSES

1. The main procedural lapse that existed was that the provisions which
contains the inherent powers of the high court and their powers under the
code of criminal procedure to quash criminal proceedings even the non-
compoundable cases, the issue was of the extent to which the power can be
exercised by the high court in its inherent powers.
2. Another lapse which was contended by the petitioner was that the High
Court while exercising its jurisdiction under Article 226, overstepped.
Interfering with the investigating powers of the police officials nullified
the entire proceeding, starting from the registration.
3. Another major lapse which was contended by the petitioner was that the
observations of the High Court bench should not be endorsed. According
to them, accepting such observations could have disastrous consequences
for the democratic system. It could adversely affect the country’s welfare.
Allowing such a judgement could lead to future administrations turning a
blind eye to the wrongdoings of older governments.

JUDGEMENT BY THE SUPREME COURT

1. In its landmark judgement supreme court relied on to the State of Punjab

v. Gurdial Singh & Ors. (1979) which cited to justify that under Section
154(1) of the CrPC, it is mandatory for the police officer to register a case

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 if the allegations are cognizable offences. Further, Section 155(4) states
that when two offences are involved, in which one of them is cognisable,
then the entire case will be considered cognizable. Supreme court in this
case reiterated the previously established precedent of the court under
which the procedural lapse was cured.
2. Hon’ble Supreme Court in its judgement of State of Haryana Vs. Bhajan
Lal the order of the High Court was set aside. It was decided that in
quashing the FIR by the High Court was not valid because it was not legally
and factually sustainable. This part of the High Court judgement was set
aside. However, the commencement as well as the entire investigation too
were quashed.
3. Hon’ble supreme court acknowledged the fact that before an investigation
is initiated, it is essential for the court to ensure that the allegations are not
rooted in mala fide intent and further stated that the investigative
authorities must adhere strictly to the provisions. However, if one provision
is not followed, it does make the whole investigation illegal.
4. Supreme Court clarified the pre-existing procedural lapse and held that the
– “it is essential to have information on a cognizable offence for registering
an FIR. If the information satisfies the requirements under Section 154(1)
of the CrPC then the officer-in-charge has no option but to register a case
by filing an FIR. While a police officer cannot investigate a non-cognizable
offence, they can do so by obtaining an order from a magistrate having
proper authority, subject to the conditions mentioned in Section 155(3).”

CHANGE IN PROCEDURAL LAPSE

1. Supreme Court of India in its landmark judgement of State of Haryana Vs.

Bhajan Lal laid down seven guidelines followed by the High Court when

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 exercising the powers specified in Section 482 of the code of criminal
procedure. Also known as the Bhajan Lal Test or Bhajan Lal Guidelines.
A. If the allegations in the FIR do not prima facie constitute an offence, they
can be quashed. If it is found after consideration that the allegations are not
sufficient to establish or presume that there is an offence, then the court
can quash the FIR.
B. One ground for quashing an FIR is non-disclosure of any cognizable
offence in the allegations mentioned in the FIR.
C. FIRs can be quashed when undisputed allegations in the FIR fail to
establish essential elements of a criminal element
D. When the allegations only constitute a non-cognizable offence, the police
cannot begin an investigation without the permission of a magistrate.
E. Cases where the allegations in the complaint are too absurd and improbable
can warrant the quashing of the FIR.
F. There is an explicit prohibition or restriction that prevents the initiation or
continuation of criminal proceedings.
G. When the case is tainted with bad faith and has the underlying motive of
causing harm the FIR can be quashed. If the court determines that the
intention of filing the case is mala fide.
2. These seven laid down guidelines by the supreme court of India became
landmark because it completely revolutionized and amended the past
followed practices by the high courts while dealing with an application
under section 482 of the criminal procedure code, i.e.- Saving of inherent
powers 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.

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|| Case- 3||

❖ Satyajit Banerjee & Ors vs State of West Bengal & Ors (2004).

EQUIVALENT AIR 2005 SUPREME COURT 4161, 2004 AIR SCW

CITATION 6646.
BENCH HMJ. D.M. Dharmadhikari & HMJ. K.
SABHARWAL.
BEFORE Supreme Court of India.

INTRODUCTION

1. The case of Satyajit Banerjee & Ors vs State of West Bengal & Ors (2004),
is a landmark case in the Indian Criminal Jurisprudence which highlighted
the major lapse in certain provisions under which the High Courts
entertains certain powers to re-order trial and re-examination of accused
in an investigation under sec.311 of the criminal procedure code.

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2. This landmark judgement by the apex court laid down the certain
guidelines and operating procedures to be used by the High Courts while
entertaining applications under their inherent and special jurisdictional
powers under an appeal.

FACTS OF THE CASE

1. Appellant No.1 was married to the deceased in the year 1990. She
(deceased) was employed in Indian Railways and was regularly attending
to her duties. Her parents also lived not far away from her matrimonial
home.
2. On 25.10.1995 she was found dead. The accused-husband had informed
her parents of her death. It is the case of her mother that soon after the
incident, a First Information Report was lodged with the police alleging
harassment and cruel treatment to her by the husband. The FIR which
was produced was lodged on 22.12.1995 which led to the prosecution, and
acquittal of the accused by the trial court.
3. It is further submitted that through the course of investigation a suicide
note was seized from the mother-in-law of the deceased. The contents of
the suicide note read that the deceased had developed illicit relationship
with some other person and it was no longer possible for her to deceive
her husband. It was further written in the suicide note that she was lucky
to get such a husband and her father should treat him well and arrange for
his second marriage after her death.
4. In the Autopsy report the cause of death of the deceased was found to be
poisoning and also hanging as ligature marks were found on her neck.
5. The mother of the deceased in her deposition stated that in her frequent
visits to the house of the accused the deceased used to complain about her
physical and mental torture by the accused and also stated that her visit to

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 Dr. Baidyanath Chakraborty who had opined that there was no possibility
of her bearing child in her womb and she should opt for test-tube baby.
6. On the evidence produced before the court, the trial court recorded
its conclusion that evidence of cruel treatment to the deceased is not
reliable and the accused cannot be held guilty of the suicidal death. The
trial acquitted all of them.
7. The mother of the deceased filed a revision to the High Court. The High
Court observes: "The learned trial court ought to have been more, without
meaning any disrespect, dynamic and to have taken active truth instead of
resigning to the fate as ordained by the prosecution."
8. It was further submitted by the High Court in its order that where
prosecution lacks in bringing necessary evidence, the trial court ought to
have invoked its powers under Section 311(the power to summon,
examine, recall, or re-examine witnesses at any stage of a trial, inquiry,
or other proceeding) of the criminal procedure code and summoned
for examining the father of deceased and other additional witnesses
whom it considered necessary.
9. The High Court by observing thus set aside the order of acquittal passed
by the trial court and directed remand of the case ‘for fresh decision from
stage one.’
10. High Court in its final judgement held that – “Lest it may even
unconsciously influence the mind of the learned trial court, while on
remand it is made absolutely clear that by way of guiding formula the
observations here-in-above have been made but it cannot be said to have
a binding effect on the learned trial court which would be free to arrive at
its independent conclusion in accordance with law and in the suggested
formula here-in-above.”

PROCEDURAL LAPSE

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 1. In this landmark case of Satyajit Banerjee & Ors vs State of West Bengal
& Ors (2004), the major procedural lapse that occurred before the court
and also cited by the petitioner in their pleadings was that, sub-section
(3) of Section 401 prohibits the High Court in its revisional jurisdiction to
convert acquittal into conviction. By directing examination of
additional witnesses under Section 311 and making observations
mentioned above it has indirectly suggested the trial court to record a
conviction on retrial.
2. The major lapse which was contended by the petitioner was that when
Section 439(4) of the Code forbids the High Court from converting a
finding of acquittal into one of conviction, it is not proper that the High
Court should do the same indirectly by ordering a retrial.
3. Another major lapse which was contended was that the direction of the
High Court to the trial court to record further evidence and take a ‘fresh
decision from stage one’ is totally without jurisdiction as it suggests that
the evidence already recorded in the initial trial should be given no
consideration.

JUDGEMENT BY THE SUPREME COURT

1. Hon’ble Supreme Court of India while exercising its jurisdiction under

Special Leave Petition I.e. Article 136, refrained from upsetting the whole
judgment of the High Court. However, apex court considered it necessary
to set aside some of the uncalled-for observations made by the High Court
in the impugned judgment directing retrial.
2. Supreme Court of India relied on the cases cited by the petitioner. i.e. “K.
Chinnaswamy Reddy vs. State of Andhra Pradesh [1963 (3) SCR 412 at
413]” and particularly on the observations mentioned on the scope of
identical provisions of revision in the old Code of Criminal Procedure.
"That it was open to a High Court in revision and at the instance of a
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 private party to set aside an order of acquittal though the State might not
have appealed. But such jurisdiction should be exercised only
in exceptional cases, as where a glaring defect in the procedure or a
manifest error of law leading to a flagrant miscarriage of justice has taken
place.
3. It was further contended by the supreme court through putting strong
reliance on “Ram Bihari Yadav vs. State of Bihar [1998 (4) SCC 517] and
also on “Zahira Habibullah Sheikh vs. State of Gujarat [2004 (4) SCC
158]” which arise from mass killings during Gujarat riots, commonly
known to the public as "Best Bakery Case." The apex court cites this
case as an extraordinary case in which the supreme court was convinced
that the entire prosecution machinery was trying to shield the accused i.e.
the rioters. It was also found that the entire trial was a farce. The
witnesses were terrified and intimidated to keep them away from the
court. It is in the aforesaid extraordinary circumstances that the court not
only directed a de novo trial of the whole case but made further directions
for appointment of the new prosecutor and the re-trial of the case was
ordered to the state of Gujrat.
4. Supreme Court categorically held that the settled legal position that the
revisional jurisdiction, at the instance of the complainant, has to be
exercised by the High Court only in very exceptional cases where the High
Court finds defect of procedure or manifest error of law resulting in
flagrant miscarriage of justice.
5. Supreme Court in its judgement founds it necessary to clarify that the
High Court ought not to have directed the trial court to hold a de novo trial
and take decision on the basis of so called ’suggested formula.’ The High
Court in its concluding part of the judgment does state that any
observation in its judgment should not influence the mind of the trial court

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 but, at the same time, the High Court directs the trial court to take ‘a fresh
decision from stage one’ and on the basis of the ‘suggested formula.’
6. Supreme Court in landmark judgement of Satyajit Banerjee & Ors vs State
of West Bengal & Ors (2004) cited another landmark case of “Zahira
Habibullah Sheikh vs. State of Gujarat [2004 (4) SCC 158]” or the “Best
Bakery Case” which categorically states that- extraordinary
circumstances, cannot be applied to all cases against the established
principles of criminal jurisprudence. Direction for retrial should not be
made in all or every case where acquittal of accused is for want of
adequate or reliable evidence. In Best Bakery case, the first trial was
found to be a farce and is described as ’mock trial.’ Therefore, the
direction for retrial was in fact, for a real trial.
7. The landmark decision that came out through this case was that the
supreme court clarified its stance on the issue of re-trial of a case and held
that- “if a retrial is directed in exercise of revisional powers by the High
Court, the evidence already recorded at the initial trial cannot be erased or
wiped out from the record of the case. The trial judge has to decide the
case on the basis of the evidence already on record and the additional
evidence which would be recorded on retrial”. Which turned out to be
landmark in the rest of the criminal jurisprudence.

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 || Case-4 ||

❖ Arnesh Kumar vs State of Bihar & Anr (2014).

EQUIVALENT AIR 2014 SUPREME COURT 2756.

CITATTION
BENCH HMJ. PINAKI CHANDRA GHOSE & HMJ.
CHANDRAMAULI Kr. PRASAD.
BEFORE SUPREME COURT OF INDIA.

INTRODUCTION

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1. Arnesh Kumar is a historic case in criminal law in India. The extent of the
indiscriminate arrests and extended detention were prevalent throughout
the state. Arrests even in petty offences, and offences punishable within
seven years of imprisonment were being carried out. The police arbitrarily
exercised its powers of arrest, resulting in a delay of justice, and
overcrowding of prisons along with severe violations of the guaranteed
fundamental rights and basic human rights of an individual.
2. The landmark case of “Arnesh Kumar Vs. State of Bihar” turned out to be
revolutionary and landmark because of its ground effect which worked in
the grass-root levels and completely amended the concocted system of
arrest in India.
3. Through this case the hon’ble apex court laid down certain guidelines to
be followed before arresting an individual which was to be followed by
the police during arrest and by the magistrate while deciding upon the
detention of the accused.
4. Particularly the procedure of arrest which existed prior to the Arnesh
Kumar Case was majorly biased, authoritative and bias towards the
accused persons charged with the accusations, especially under certain
provisions like 498A(Cruelty by the relatives of the husband and husband)
and provisions of the Dowry Prevention Act, which penalized any death
in between the seven years of marriage as, ‘Dowry Death”, which was
very grave in nature and often times used with malicious intent of the
complainant to judicially harass the accused persons with the deep rooted
and concocted intent of frivolous litigation.
5. The situation that existed prior to the Arnesh Kumar Case was the
situation that prevailed was akin to a police state where the police
unnecessarily without competent jurisdiction or authority or evidence
indiscriminately arrested the accused. This was a gross violation of the
right to dignity and basic principles of natural justice.

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FACTS OF THE CASE

1. The case begins with an allegation of dowry harassment. The appellant is

the husband of respondent no. 2 (Swetha Kiran), the wife. Their marriage
was solemnised on 1st July 2007.
2. The wife claimed that a Maruti car, A/C, TV set, and 8 lakh rupees were
amongst the items demanded by her mother-in-law and father-in-law.
When the wife brought this to the notice of her husband, he threatened to
marry another woman if the demands were not fulfilled.
3. The wife further alleged that she was driven out of the house because she
failed to provide the Dowry that was demanded. The appellant was
charged under Section 498A of IPC and Section 4 of the Dowry
Prohibition Act,1961.

4. Thereafter, the appellant after coming to know about the charges levied
against him sought to obtain an anticipatory bail (Section 438 of criminal
procedure code i.e. Section 482 of BNSS), which was refused by the
Sessions Judge of Bihar and by the High Court of Patna.

5. Challenging the rejection of his anticipatory bail by the High Court of

Patna, Appellant Arnesh Kumar approached the hon’ble apex court of
India.

PROCEDURAL LAPSE

1. The major procedural lapse before the courts and in the criminal code
itself was the authority of the police to arrest an accused in cognizable
cases without a warrant, i.e. in Sec-41 of the criminal procedure code and
Sec-35 of BNSS, enlists the circumstances when the Police can arrest an
accused without a warrant. Section 41 is one of the most violated
provisions, where ensuring adherence is difficult. So, the ambit and

[23]
 definition or the scope of the arrest by the police without a warrant in a
cognizable case was needed to be maintained.
2. Another major procedural lapse before the criminal jurisprudence was the
non-adherence by the police to the provision of Sec-41A of the criminal
procedure code or now in Sec.35(6) of BNSS – “furnishing a notice to the
accused to appear before the police. It enables the police to order the
appearance of the accused if arrest is not necessary. Further, if there is a
reasonable belief that the person has committed a cognizable offence, then
a notice to appear before the police may be given. Section 41A (2)
specifies that once a notice is given the accused is duty-bound to appear.
Section 41A (3) enables the police to arrest the accused if he fails to
comply with the notice.
3. The major lapse on the side of the police which led to authoritarianism
and the benign rule of a police state was because of the blatant procedural
violation of sec-41 of the code along with the non-adherence to the
sec.41A of the code.

JUDGEMENT BY THE SUPREME COURT

1. In the Landmark judgement of ‘Arnesh Kumar vs. State of Bihar’ Hon’ble

Supreme Court of India took a larger view and opinion to deal with the
issue in a consolidated way and with respect to this only categorically
framed three issues on Substantial question of facts and law to deal with-
A. Whether anticipatory bail ought to have been given to the appellant or
not?
B. Whether indiscriminate arrests were prevalent or not?
C. Whether guidelines to curb indiscriminate arrests were necessary or not?
2. The apex court held that the purpose of Section 498A was good, the
Section is becoming prone to misuse. The court observed that because
Section 498A is a cognizable and non-bailable offence, the same has led
[24]
 to misuse of the provision as a shield for disgruntled wives. The simplest
form to get back at the husband or harass him was to get him and his
relatives arrested under this provision.
3. The court further observed that in several cases even bed-ridden
grandmothers, grandfathers of the husband, and sister living abroad are
arrested. And that the rate of filing charge sheets under Section 498A was
as high as 93.6%. However, the conviction rate was merely 15%, which
highlights the blatant misuse of the said provision.
4. It is further contended by the apex court in this landmark judgement that
the police officers believe that they possess the right to arrest however the
court observed to the contrary. The court held that merely because the
offence is cognizable and non-bailable, arrests cannot be made.
Reasonable justification for arrest needs to be specified. The court laid
down that arrests cannot be made routinely because of a mere allegation
of offence.
5. On answering the procedural lapses as abovementioned the apex court
interpreted the entire provisions under sec.41 of the criminal procedure
code and observed that a person arrested for an offence punishable with a
sentence of less than seven years or seven years cannot be arrested by the
police officer based on mere allegations. The Apex Court further observed
that it has to be necessary that the police officer can arrest in the above
situations only once they are satisfied that the arrest is necessary to
prevent the commission of further offences, or tampering with evidence,
or when the person arrested cannot be produced before the court. In
simple words, the police must be satisfied that the arrest is required under
Sections 41 (a) to (e).
6. While observing and clarifying the procedural lapses supreme court in
Arnesh Kumar Case, issued several guidelines to be followed by the

[25]
 police officers while arresting an accused and by the magistrate before
ordering an arrest; -
A. State governments have to pass instructions to check arrests. State
governments have to order police officers to exercise their power of
arrests cautiously. Arrests under Section 498A must be made only if it has
been satisfied that it is necessary and after following provisions of Section
41 of CrPC.
B. The state is obligated to provide all police officers with a checklist
containing the sub-clauses of Section 41 which need to be adhered to
before arrests.
C. While presenting the accused before the magistrate for detention, the
police officer is obliged to furnish the checklist and the reasons that
necessitated the arrest and the magistrate is required to prudently
analyse the checklist, reasons and other documents put before him
while granting or rejecting detention.
D. The notice must be mandatorily given to the accused before initiating
the case, in accordance with Section 41 of CrPC and failure to issue
notice can lead to departmental action against the police, and contempt
of court that can be initiated by the High Court possessing territorial
jurisdiction.
E. The court held that these guidelines shall be applicable in all non-
cognisable offences punishable with a maximum of seven years
imprisonment and not in the offences of domestic violence or dowry
deaths as in the present case.
7. Through this landmark case of Arnesh Kumar supreme court laid down
the abovementioned guidelines which turned out to be revolutionary with
the provisions of arrest in Indian criminal jurisprudence.

[26]
||Case-5||

❖ Delhi Domestic Working Women's Forum vs Union of India & Ors

EQUIVALENT 1995 SCC (1) 14, JT 1994 (7) 183.

CITATTION

[27]
BENCH HMJ. S. MOHAN, HMJ. S.B MAJUMDAR & HMJ.
VENKATACHALLIAH.
BEFORE SUPREME COURT OF INDIA.

INTRODUCTION

1. The case of Delhi Domestic Working Women's Forum vs Union of India

& Ors, is a landmark case that revolves around the strengthening of the
penal provisions of rape in India and turned out as a revolution in
penalising rape accused.
2. In this landmark case it was held that the complainants of sexual assault
cases should be provided with legal representation. It is important to have
someone who is well-acquainted with the criminal justice system. It is
important to secure continuity of assistance by ensuring that the same
person who looked after the complainants’ interests in the police station
represent her till the end of the case.

FACTS OF THE CASE

1. The incident took place during a train journey that was from Ranchi to
Delhi. This incident occurred with 6 women’s who were domestic
servants namely – Usha Minz, Shanti, Josphine Kerketa, Rosy Kerketa,
Nilli and Lili. One of the victim lily describes the incident that took place
on 10th -11th February, 1993 in SH coach.
2. Further, the train contained 8 Jawan in the coach which Lili along with
her co-village girls were travelling. The Jawan’s tried to molest the girls.
Two Jawan’s were Sikh and the remaining were clean- shaved men. As
the girls objected, the jawan’s caught their hair and began to beat them
up. They cried for help but the jawan shut their mouth and threatened them
to throw out of the running train. That one of the clean shaved men

[28]
 forcibly made Lili sit down on the lower seat and on the opposite side took
another girl and another clean shaved Fauji took Rossy to the Bathroom.
Consecutively, two other jawan made shanty to lie down on nearby seat
and another 2 men tried to take Usha and Nilli as they both hid under the
seat.
3. That on their way back, they tried to lodge a report with the police but no
one heard them. The train stopped at New Delhi Railway Station, Lili and
her friends made an attempt to catch the jawans as they got down from the
train and ran away. Eventually, they caught hold of Sardar Dhir Singh and
he was taken to the MCO office by police men. The first information
report for offences under section 376-B R/w Section 341 IPC was
registered at the Police Station, New Delhi Railway Station, after which
the rape victims were sent for medical checkup.

PROCEDURAL LAPSES

1. The major procedural lapse behind the hon’ble bench of the supreme court
was that the case was hanging for a prolonged period of time and the
unnecessary time period for a prolonged period of time violates the basic
fundamental rights guaranteed under the constitution of India.

JUDGEMENT BY THE SUPREME COURT

1. In its landmark judgement hon’ble supreme court held that the

complainants of sexual assault cases should be provided with legal
representation.
2. Further the landmark judgement held that the role of the victim’s advocate
would not only be to explain to the victim the nature of the proceedings,
to prepare her for the case and to assist her in the police station and in
Court but to provide her with guidance as to how she might obtain help of

[29]
 a different nature from other agencies, for example, mind counselling or
medical assistance.
3. Hon’ble bench further held that the Legal assistance will have to be
provided at the police station since the victim of sexual assault might very
well be in a distressed state upon arrival at the police station and further
the police should be under a duty to inform the victim of her right to
representation before any questions were asked of her.
4. The landmark decision that came out of this judgement was that in all rape
trials anonymity of the victim must be maintained, as far as necessary.
5. Further to expedite the investigation and trials in rape cases the apex court
held with regard to the DPSP under Article 38(1) of the constitution of
India to set up Criminal Injuries Compensation Board. Rape victims
frequently incur substantial financial loss. Some, for example, are too
traumatised to continue in employment. Compensation for victims shall
be awarded by the Court on conviction of the offender any by the Criminal
Injuries Compensation Board whether or not a conviction has taken place.
The Board will take into account pain, suffering and shock as well as loss
of earnings due to pregnancy and the expenses of child birth if this
occurred as a result of the rape.

SPECIAL LAW CASES-

|| Case- 6||

[30]
 ❖ Nandini Satpathy vs Dani (P.L.) And Anr (1978).

EQUIVALENT 1978 AIR 1025

CITATTION
BENCH HMJ.V.R. Krishna Iyer, HMJ. Jaswant Singh, HMJ. V.D.
Tulzapurkar
BEFORE SUPREME COURT OF INDIA.

INTRODUCTION

1. The landmark case of Nandini Satpathy vs Dani (P.L.) And Anr (1978),
gave an interpretation regarding the right of an accused person to be silent
while police interrogation in relation to Article 20(3)( hat no person
accused of an offense can be forced to be a witness against themselves) of
the Indian Constitution and Section 161(1)(gives police the authority to
examine witnesses and record their statements) of the CrPC.
2. In this landmark case supreme court held that the Article 20(3) of the
constitution is dealt with section 161 of the Code of Criminal Procedure
which says that while examining any person regarding the charges he is
booked for he has to answer every question of the investigating officer
truthfully, which clarified the procedural ambiguities and irregularities
that was practiced by the police.

FACTS OF THE CASE

1. The former CM of Orissa was booked under Section 5(2) read with
Section 5(1)(d) and (e) of the Prevention of Corruption Act, 1988 along
with Section 161, 165, 120B and 109 of the IPC by the Deputy
Superintendent of Police, Vigilance, Cuttack.
2. The appellant along with other persons who were involved in the
disproportionate asset case was interrogated on the basis of a written
[31]
 series of questions. Disproportionate asset means when a person owns
assets that exceed their total legal annual income. The charges are that she
during her tenure as the Chief Minister has misused her political power
and has gained illegal gratification which has increased her wealth.
3. The appellant imposed her fundamental right under Article 20(3) that is
right against self- incrimination can also be referred to as the right to be
silent against which a person is booked. Because of this act, she was
booked before the Sub-Divisional Judicial Magistrate, Sadar, Cuttack
under Section 179 of IPC(The refusal to answer a public servant who is
authorized to ask questions )the complaint of DSP, Vigilance, Cuttack and
a summons was passed against her.
4. It is further submitted that under these circumstances the accused
challenged the rationality of the power of the judicial magistrate by
moving to the High Court under Article 226 of the Indian Constitution
and Section 141 of the CrPC. But the High Court failed to answer the
limit of section 161(2) of CrPC when an accused imposes Article 20(3)
during police interrogation because of which the plea of the appellant was
rejected. And on receiving a certificate she appealed under Article
132(1) in the Supreme Court.

PROCEDURAL LAPSES/ ISSUES

1. Whether a suspected accused have a right to sanction their right to be

silent who has committed a criminal offence? What are the probable
criteria for an accused to impose Article 20(3) while the investigation of
the police is in the process?
2. When a person presents himself as a witness does it lead to a testimony
where a person can make themself guilty for wrongdoing or from a series
of answers obtained will it lead to proving or demonstrating guilt? What
are the boundaries of section 161 of CrPC? Do answers which are of
[32]
 inculpatory characteristics that have a probable chance of exposing a
person while an investigation or is in the trail are allowed?

JUDGEMENT BY THE SUPREME COURT

1. In this landmark case before the apex court the appellant argued that the
Section 161(1) of CrPC does not include an accused with the ambit of
‘any person’, and that when a series of questions are being asked from
the accused will form a chain of a link to the case of the prosecution but
questions which are not related will lead the appellant in exposing to other
criminal charge or charges because there are other cases against which a
charge-sheet can be produced.
2. On the other hand, the respondent contended that the Article 20(3) and
section 161(2) of CrPC does not go hand in hand during the stage of police
interrogation, in fact, Article 20(3) can only be operated when an accused
is presented in the court for trial.

3. The apex court quoted the judgment of the Privy council in the case
of Pakala Narayana Swami v. Emperor where the judge gave a verdict
regarding the limits of section 161 of CrPC and said that ‘any person’
includes an accused and suspected wrongdoer who is believed to be
familiar with the facts of the case by the police and this same verdict was
given in Mahabir Mandal vs. the State of Bihar.

4. The Court moved forward to the question of the constitutional validity of

Article 20(3) i.e. when does an accused is protected from answering
questions that can cause self-incrimination, the court concluded that a
person has his fundamental rights intact even if he is not in the court for
claiming their right to be silent.

[33]
 5. The court took the reference of M.P. Sharma’s case and said that the
umbrella of Article 20 (3) applies not only in the Courtroom where an
accused is compelled to self-incriminate himself for testimony but is also
protected when he is forced to self-incriminatory statements at the time of
police investigation.
6. On answering the prosecution of the accused under Sec.179 IPC by the
SDM, court held that the Sec.179 of IPC includes Mens rea when an
accused person does not intentionally turn down the claims but
unknowingly neglects the charges. Also, the benefit of the doubt is
awarded when the accused with his explanation points out acceptable
grounds for doubt and he cannot be forced to do otherwise unless he is
restricted to claim for his privileges.
7. In this landmark case of Nandini Satpathy vs Dani (P.L.) And Anr (1978),
supreme court held that the article 20(3) with section 161(2) of CrPC has
a broad concept and it protects the right to be silent. Therefore, the court
accepted the appeal of the appellant.

|| CASE- 7||

[34]
 ❖ Pratap Singh vs State of Jharkhand & Anr (2005).

EUIVALENT AIR 2005 SUPREME COURT 2731

CITATION
BENCH HMJ. N. Santosh Hegde, HMJ. S.N. Variava, HMJ. B.P.
Singh, HMJ. H.K. Sema
BEFORE SUPREME COURT OF INDIA.

INTRODUCTION

1. The landmark case of Pratap Singh v the State of Jharkhand provides he

objective of the juvenile justice system and the rights embedded therein.
2. This landmark case of the apex court completely transformed the entire
ecosystem of juvenility and the sexual crimes again the juveniles or by the
juveniles along with their care, protection and upliftment.
3. The main aim behind the Juvenile Justice Act,2015 was to provide care,
protection, treatment, development and rehabilitation to the juveniles
indulged in crimes and prevention of children accused of any crime
should not be in jails or police lock-up. The Act aims at the prevention of
children in juvenile homes.

FACTS OF THE CASE

1. There was a person named Pratap Singh who was accused of being
involved in a conspiracy with others for abducting and murdering the
deceased by poisoning as per Sections 364A, 302/201, and 120B of the
Indian Penal Code. The date of occurrence, i.e., the date of committing
the offence, was 31st December 1998. On being accused, he was arrested
and produced before the Chief Judicial Magistrate (CJM). The date of
production before the Court was on 22nd November 1999. When the
accused was produced before the Court, he was 18 years old.

[35]
2. A petition was filed in the Court of CJM on the behalf of the accused on
28th February 2000 claiming that he was a juvenile (i.e., below the age of
16 years) on the date of occurrence (i.e., 31st December 1998).
3. On the petition, the C.J.M. transferred the case to the Juvenile Court and
the accused was produced before the Juvenile Court on 3rd March 2000.
The Additional Chief Judicial Magistrate (ACJM) ordered the parties to
produce evidence of the minority before it. The parties were asked to
produce ‘School leaving certificate’ and the ‘mark sheet of the Central
Board of Secondary Education as evidence’. The certificate was produced
before the court and the date of birth of the accused recorded on it was
18th December 1983. Thus, based on this evidence produced, it was held
that the accused was a minor of below 16 years on the date of occurrence
of the crime (i.e., 31st December 1998).
4. The accused was released on bail by ACJM after the proof of his minority.
And the informant was aggrieved by the decision of the ACJM and filed
an appeal before the first Additional Session Judge (ASJ) for the
determination of the age of juvenility of the accused.
5. The Additional Session Judge (ASJ) quashed the decision of the Juvenile
Court. It was held that the Juvenile Court was wrong in its decision. The
date of production of the accused before the Court is the date for the
determination of the age of juvenility and not the date of occurrence of
crime
6. The Court also directed a fresh injury for the determination of the age of
the accused. The accused filed a criminal revision petition in the
Jharkhand High Court. The Jharkhand High Court held that the decision
of the Additional Session Judge was correct and reasonable and the
judgment by ASJ was upheld by the Jharkhand High Court.
7. Jharkhand High Court while in its judgement held that the-

[36]
 A. That the date of production before the court is the correct date for the
determination of the age of the juvenile.
B. That for determining the age of the accused, the Juvenile Justice (JJ) Act
of 1986 shall be applied and not the JJ Act of 2000.
C. That to produce evidence for the determination of the age of juvenility,
‘school certificate’ is the best evidence. Other pieces of evidence are of
inferior quality.
8. Aggrieved by this decision the Appellant Pratap Singh in 2005 filed an
appeal before the Hon’ble Supreme court and the Five judge constitutional
bench heard this matter.
9. The accused Pratap Singh was of the age of below 16 years at the date
when he committed the crime but he reached the age of 18 years on the
date of production before the court.

PROCEDURAL LAPSES/ ISSUES

1. Whether the date of occurrence (i.e., date of committing the crime by the
accused) is the correct date for the determination of the age of juvenility
of the date of production (i.e., date of production of the accused before the
Court? And if a person A is below 16 years on the date of committing a
crime and afterwards on the date on production before the Court, he
attains the age above 16 years, in this case, whether he would still be
considered as a juvenile or not? This was a major procedural lapse that
created serious irregularities in the determination of the age of a minor
accused/victim.

JUDGEMENT BY THE SUPREME COURT

1. In precedents by the apex court there was a clash in the judgements

by the apex court, For an example, In Amit Das v State of Bihar,
(2000) 5 SCC 488 provides that the date on which the accused is

[37]
 produced before the Court is the correct date for the determination of
the age of the juvenile and not the date of occurrence. Whereas the case
of Umesh Chandra v State of Rajasthan, (1982) 2 SCC 202 provides
that the date of occurrence of crime is the correct date for the
determination of the age of the juvenile and not the date of production
before the Court.
2. Supreme Court of India after the long sets of arguments upheld the
Umesh Chandra v State of Rajasthan, (1982) 2 SCC 202 which
provides that the date of occurrence of crime is the correct date for the
determination of the age of the juvenile and not the date of production
before the Court. And categorically reiterated that the “Date of
occurrence was held as the correct date for the determination of the age
of the juvenile and not the date of production.”
3. The case of Pratap Singh v State of Jharkhand was one of the
landmark cases on the subject of juvenile justice. The enhancement of
the care and protection provided to the juveniles was focused on in the
case.
4. Pratap Singh Vs. State of Jharkhand turned out to be the landmark
precedent law because it clearly sorted out the confusion for
determination of the age for a juvenile.

[38]
|| CASE-8||

❖ Lalita Kumari vs. State of Uttar Pradesh (2013).

EQUIVALENT AIR 2014 SC 187, (2014) 2 SCC 1

CITATION
BENCH HMJ. P Sathasivam (C.J), HMJ. B.S. Chauhan, HMJ.
Ranjana Prakash Desai, HMJ. Ranjan Gogoi, HMJ. S.A.
Bobde.
BEFORE SUPREME COURT OF INDIA

INTRODUCTION

1. The landmark case of “Lalita Kumari vs State of U.P”, clarified the

procedural lapses and functionality ambiguities in the registration of an
FIR i.e. First Information Report.

FACTS OF THE CASE

1. Ms. Lalita Kumari, a minor, filed a writ petition under Article 32 of the
Indian Constitution, with the Supreme Court of India, through her father,
Bhola Kamat. In the current case, the petitioner asked the Hon’ble Apex
Court to grant a writ of habeas corpus, directing the police to find,
produce, and protect the minor child who was kidnapped.
2. The petition stated that the police did not take any action when the
petitioner approached the concerned police station by submitting a written
complaint on 11th May 2008. It further stated that the FIR was only
registered after moving the complaint to the Superintendent of Police but

[39]
 no further action was taken after registration of FIR to locate the minor
girl child or to apprehend the accused in the case.
3. After the admission of the instant petition, a two-judge Supreme Court
bench issued notices to the relevant authorities directing them to approach
the concerned magistrates for the issuance of appropriate directives to the
police, asking them to file a formal complaint and begin an investigation
if they refuse to do so right away and provide the complainants with a
copy of the file. The Court stated that if the police officers disobeyed the
orders, contempt charges would be brought against them.

4. In furtherance of the above directions in the case, upon hearing arguments

from both sides, the two-judge bench of the Apex Court referred the case
to a larger bench due to the inconsistent rulings made on the current issue
over multiple judgements.

5. The instant petition was forwarded before a five-judge Constitution

bench for consideration of the issue of registration of FIR under Section
154 of the Code of Criminal Procedure, 1973, i.e.
- Section 154 – Provides for the procedure to be followed or steps to be
taken by a police officer on receipt of any information disclosing the
commission of any cognizable offence. Section 154(1) provides for
registration of FIR and the remaining portion of the Section lays down the
procedure in which the registration must take place. Section
154(3) provides a remedy if any police officer refuses to register an FIR
under sub-section (1). Such a person under this subsection can forward
such information to the concerned Superintendent of Police. Some of the
important mandates that are to be followed according to this provision
include the following.

[40]
 a. Reading out the information that has been reduced to writing to the
person providing it.

b. Signature of the informant on the information reduced in writing

(FIR) or written complaint.

c. Recording of information of offences relating to sexual offences by

a woman officer.

d. A copy of the FIR (recorded information) shall be given to the

informant.

PROCEDURAL LAPSES/ ISSUES

1. Whether the victim’s or complainant’s entitlement to a speedy

investigation of their complaint following allegations, can be
compromised by the police’s potential for manipulation as a result of the
refusal to immediately register an FIR?
2. Whether the police officer should mandatorily register an FIR under
Section 154 of the Code of Criminal Procedure, 1973 relating to a
Cognizable offence or the police officer, to check the authenticity of the
complaint and conduct a preliminary inquiry before registering an FIR?
3. Whether obligatory registration of FIR under Section 154 of the Code of
Criminal Procedure, 1973 without preliminary inquiry violate the right to
life of the accused under Article 21 of the Constitution?

JUDGEMENT BY THE SUPREME COURT

1. The Hon’ble Supreme Court held that the registration of FIR is mandatory
under Section 154 of CrPC and no preliminary inquiry is permissible if
the information received discloses the commission of any cognizable
offence. The court ruled that no police officer can abstain from the duty

[41]
 of registering an FIR if the commission of any cognizable offence is
disclosed in the information.
2. Moreover, the Court noted that in certain situations when the information
obtained does not reveal the commission of a cognizable violation, but
suggests the need for an investigation, a preliminary inquiry may be
carried out simply to determine whether any cognizable offence has been
committed. The Court clarified that the purpose of an inquiry is merely to
ascertain whether any cognizable offence has been committed or not but
not to check the veracity of the information.
3. The Court also mentioned the nature of cases in which a preliminary
inquiry can be conducted depending upon the facts and circumstances.
Some of the categories or illustrations of cases mentioned by the court
include-
A. Medical Negligence
B. Matrimonial Cases
C. Corruption cases
D. Commercial offences
E. Cases of abnormal delay in reporting.
4. The Hon’ble Apex Court through this judgment signified two main aspects
of the mandatory registration of FIR. The first is the maintenance of records
and the official assurance that the criminal procedure is initiated. The
second aspect is that the Court stressed upon the significance of mandatory
registration of FIR in preventing any kind of embellishment or any
tampering of FIR. The Court noted that the immediate registration of FIR
on the receipt of the information would ensure both objectives are served
5. The Court noted that the legislative intent behind Section 154 of CrPC was
to mandate the registration of FIR for every information that disclosed the
commission of cognizable offence without getting into the credibility and
reasonableness of the information. The consideration of legislative intent

[42]
 is of paramount importance as it assists in interpreting the provisions in a
fashion which the legislators intended.
6. Through this case the Hon’ble Supreme Court in this case has attempted to
limit the excessive discretionary power of the police. The Court has
ensured the protection of the fundamental right guaranteed under Article
14 of the Constitution that protects the individual from arbitrary and
unreasonable exercise of discretionary power.

|| CASE-9||

❖ Union Of India vs K.A. Najeeb (2013)

EUIVALENT AIR 2021 SUPREME COURT 712

CITATTION
BENCH HMJ. Aniruddha Bose, HMJ. Surya Kant, HMJ. N.V.
Ramana

BEFORE SUPREME COURT OF INDIA.

INTRODUCTION

1. The landmark case of The Union of India v. K.A. Najeeb is being touted
as a ray of justice for several accused arrested under the draconian
Unlawful Activities (Prevention) Act (UAPA).

2. The respondent, K.A. Najeeb, a member of a fundamentalist group was

accused of facilitating an attack on Professor TJ Joseph at Thodupuzha,
Kerala in 2010. Najeeb was first arrested by the National Investigation
Agency (NIA) in 2015 under the Unlawful Activities (Prevention) Act
(UAPA). Later, in 2019, the Kerala High court had granted him bail in the

[43]
 said case owing to pertinent delays in the trial, the same was challenged by
the NIA.

3. The NIA had filed a Special Leave Petition (SLP) in the Supreme Court,
challenging the Kerala High Court order since NIA special court had
previously rejected the bail based on the UAPA provisions. The
Investigation Agency had contended based on Section 43D (5) of UAPA
that repudiates bail for offences under the said Act.
4. In its final holding, even though the Supreme Court dismissed the appeal
raised by NIA citing respondents right to speedy trial protected under
Article 21 of the constitution, the Court steered clear of laying out a
principal standard that could make way for similar future cases.

5. In 2019, at the helm of its second term, the BJP government brought
amendments to UAPA (2004) and equipped it with broader definitions and
wider misuses. The government of India gave to itself the power to
categorise not only an organisation but also an individual as a ‘terrorist’
before the subject is proven guilty.

6. The act that supposedly had humble beginnings soon turned into a tool used
for transgressing fundamental rights of the very citizens it claims to protect.
Often labelled as ‘India’s anti-India act‘, UAPA contains provisions that
have been subjected to frequent criticism.

FACTS OF THE CASE

1. K.A. Najeeb (hereinafter known as the respondent), an active member of
an extremist organization called the Popular Front of India (PFI) was
arrested on the charges of being one of the main conspirators of a pre-
planned attack on Professor T.J. Joseph of Newman College, Thodupuzha.

[44]
2. The victim while framing a question paper had included a question that
was considered objectionable against a certain religion. The respondent in
association with the other members of an extremist Islamic organization
(Popular Front of India) decided to avenge their religious sentiments by
attacking the victim.
3. On July 4, 2010, at about 8 AM, a group of people with a common object,
attacked the victim while he was returning home with his mother and
sister. Over the course of the attack, members of the PFI forcefully
intercepted the victim’s car, restrained him and chopped off his right palm
with choppers, knives, and a small axe. Country-made bombs were also
hurled at bystanders to create panic and terror in their minds and to prevent
them from coming to the aid of the victim. An FIR was consequently
lodged against the attackers by the victim’s wife.
4. After the due course of the investigation, it was found that the attack was
part of a larger conspiracy that allegedly involved meticulous preplanning,
numerous failed attempts and the use of dangerous weapons. Hence, the
provisions under UAPA were invoked against him.
5. Although most of the respondent’s co-conspirators have been tried and
held guilty by the NIA special court, the accused was declared an
absconder. The co-accused were awarded a cumulative sentence ranging
between two- and eight-years’ rigorous imprisonment.

6. Najeeb was eventually found and arrested by the NIA and was put in
judicial custody for nearly five years without being tried or adjudicated by
any court.

7. The respondent approached the court for bail as many as six times
between 2015 and 2019, claiming parity with other co-accused who had
been enlarged on bail or acquitted. His pleas were rejected as the

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 respondent prima facie knew about the attack and had assisted and
facilitated the attack.
8. This made him ineligible for bail under Section 43D (5) of the UAPA, as
normal bail rules do not apply to an accused under UAPA, it allowed
courts to deny bail on the basis of reasonable doubt. The respondent, again
approached the High Court for the third time, questioning the Special
Court’s order denying bail.
9. The High Court through the impugned order, released the respondent on
bail noting that the undertrial respondent could not be kept in custody for
too long. Especially when the trial was not likely to commence in the near
future and not doing so would cause serious suffering to him.

10. The operation of the aforementioned bail order was, however, stayed by
the court and an appeal was filed by the NIA stating that the High Court
had erred. Hence, the present case.

PROCEDURAL LAPSE/ ISSUES

1. Whether a violation of Article 21 can oust the statutory rigours under

Section 43D (5) of UAPA
2. Whether the court is duty-bound to deny bail where the suspect is prima
facie believed to be guilty
3. Whether the court’s decision to grant bail can be challenged without any
special grounds

JUDGEMENT BY THE SUPREME COURT

1. The Supreme Court upheld the decision of the High Court attempting to
strike a balance between the appellant’s right to lead evidence of its choice
and establish the charges beyond any doubt and simultaneously, the

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 respondent’s rights guaranteed under Part III of the Constitution. Hence,
the SLP filed by the appellant was found unmaintainable.
2. On answering Whether the violation of Article 21 can oust the statutory
rigours under Section 43D (5) of UAPA, it was held that the presence of
statutory restrictions like Section 43D (5) of UAPA per se does not oust the
ability of Constitutional Courts to grant bail on grounds of violation of Part
III of the Constitution. It was held, “Courts are expected to appreciate the
legislative policy against grant of bail but the rigours of such provisions
will melt down where there is no likelihood of trial being completed
within a reasonable time and the period of incarceration already
undergone has exceeded a substantial part of the prescribed sentence.
Such an approach would safeguard against the possibility of provisions
like Section 43D (5) of UAPA being used as the sole metric for denial of
bail or for wholesale breach of constitutional right to speedy trial.”
3. While answering Whether the court is duty-bound to deny bail where
the suspect is prima facie believed to be guilty, it was further added that both
the restriction from the statute and the powers promised to the Supreme Court
under constitutional jurisdiction can be well harmonised. Despite the accused
being prima facie under the suspicion of being guilty, the judges while
acknowledging the nature of offences kept in mind the time the respondent
had spent in custody. But given the ‘unlikelihood of the trial being completed
anytime soon’, the High Court’s decision of granting bail was justified. The
court advanced, “An attempt has been made to strike a balance between
the appellant’s right to lead evidence of its choice and establish the
charges beyond any doubt and simultaneously the respondent’s rights
guaranteed under Part III of our Constitution have been well protected”
4. It was further held on answering Whether the court’s decision to grant bail
can be challenged without any special grounds It was said obiter dictum
(in passing) that Section 43D (5) of the UAPA is comparatively less
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 stringent than Section 37 of the NDPS. Unlike the NDPS where the
competent court needs to be satisfied that prima facie the accused is not
guilty and that he is unlikely to commit another offence while on bail; there
is no such precondition under the UAPA. Instead, Section 43D (5) of
UAPA merely provides another possible ground for the competent court to
refuse bail. This served as an additional point for the court to enlarge the
respondent on bail and therefore did not challenge the High Court’s
decision. Additional Conditions the Hon’ble bench imposed a few
additional conditions on the respondent in the best interest of society at
large and to ensure that the respondent didn’t indulge in any other
communal attacks. The respondent was ordered to mark his presence every
week on Monday at 10 AM at the local police station and inform in writing
that he is not involved in any other new crime.
5. Additionally, the respondent is refrained from participating in any activity
which might enrage communal sentiments. It was further held that any
violation of the bail conditions, tampering of evidence, or hampering the
trial will lead to the direct cancellation of the respondent’s bail.
6. Hence, this landmark case turned out as revolutionary in procedural lapses
in prosecution under the UAPA.

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|| CASE-10||

❖ Goenka Sajan Kumar vs The State of A.P(2014).

EUIVALENT Crl. Petition No.4161 of 2014.

CITATTION

BENCH HMJ. K.G SHANKAR.

BEFORE SUPREME COURT OF INDIA.

INTRODUCTION

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 1. This is a landmark case which dealt with a great procedural lapse for
prosecution of a person if he visited a brothel. This case clarified the statute
error which led to frivolous litigation.

FACTS OF THE CASE

1. The petitioner allegedly committed offences under the provisions of

Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956. The
petitioner submitted that according to the prosecution, the petitioner is one
of the customers of a brothel house and not a person running the brothel
house or acting as a pip for the personnel in the brothel house. He submitted
that under the provisions of the Act, a customer to the brothel house is not
punishable.

2. In support of his contention, the learned counsel for the petitioner placed
reliance upon a decision of this Court in Criminal Petition No.1230 of 2012
dated 20.04.2012. This Court held that Section 4 is meant to punish the
people living on the earnings of prostitution and “that a person who is
visiting the brothel house would not be covered by the Act”. Similar view
was taken by this Court in Z. Lourdiah Naidu v. State of Andhra Pradesh.
It is submitted by the learned counsel for the petitioner that no case can
prima facie be made out against the petitioner and that the petition against
him, therefore, deserves to be quashed. Section 3 of the Act imposes
punishment for maintaining a brothel house or allowing premises to be
used as a brothel house. Section 4 imposes penalty for living on the
earnings of prostitution. Section 5 deals with the procurement, inducement
or inducing for a person for the sake of prostitution. Section 6 of the Act
speaks about detaining a person in the premises where prostitution is
carried out.

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3. The apex court in its landmark judgement held that none of these sections
speak about punishment to the customer of a brothel house. Admittedly,
the petitioner does not fall under the provisions of Sections 3 to 7 of the
Act, as the petitioner was not running a brothel house nor did he allow his
premises to be used as a brothel house. The petitioner is not alleged to be
living on the earnings of prostitution. It is also not the case of the
prosecution that the petitioner was procuring, inducing or in dicing any
person for the sake of prostitution nor is it the case of the prosecution that
any person was earning on the premises where prostitution is carried out.
Therefore, the bench agreed with the contention of the learned counsel for
the petitioner that the petitioner is not liable for punishment under the
provisions of Sections 3, 4 and 5 of the Act, and the petition was dismissed
accordingly.

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