Showing posts with label chargesheet. Show all posts
Showing posts with label chargesheet. Show all posts

29 November 2020

Investigation and filling of chargesheet under The Immoral Traffic (Prevention) Act, 1956 should be done only by Special Police Officer empowered under Section 13 of the Act

Learned counsel also took my attention to Joseph v. State of Kerala [2011 (2) KHC 958]. In that decision, while dealing with Sections 3, 4, 5, 14 (ii) of the Act, it has been held that authorisation given by the Special Police Officer to his subordinate officer must mention the name of any of the persons to be arrested. It is also held that Special Police Officer cannot authorise investigation of the case to be conducted by any other officer. In paragraph No.4 of the said judgment, the ambit and scope of Section 13 has been dealt with, which is relevant in this context to be extracted and it reads as follows:
"4. There is also yet another aspect that is required to be looked into. Under S.13 of the Act, a Special Police Officer shall be appointed 'for dealing with the offences under this Act in that area'. 'Dealing with the case' means doing everything connected with the progress of the case. The Supreme Court in the decision referred supra considered that question and held that the expression would include detection, prevention and investigation of offences and other duties which have been specifically imposed on the Special Police Officer under the Act. It is seen from the records that investigation of the case was conducted by the Circle Inspector though, as authorised by the Special Police Officer and the role of the Special Police Officer was only to verify the investigation and submit final report. S.14(ii) of the Act does not empower the Special  
Investigation and filling of chargesheet under The Immoral Traffic (Prevention) Act, 1956 should be done only by Special Police Officer empowered under Section 13 of the Act
Police Officer to authorise investigation of the case to be conducted by any other officer. If that be so the investigation conducted by the officer other than the Special Police Officer is against the provisions of law.
"[Para No.8]

03 November 2020

At the time of taking cognizance on chargesheet, Magistrate is not supposed to act as a Post Office

At the time of consideration of charge Magistrate can take into consideration certain facts and documents pointed out and/or submitted by or on behalf of accused 


Filing of Civil Suit for redressal of damages does not bar a person from initiating a criminal case involving ingredients of criminal offence entitling plaintiff/complainant to initiate criminal case against the offender


    It is settled that at the time of taking cognizance of offence, it is not necessary for the Magistrate to find out as to whether trial is clearly going to culminate into conviction of accused or not, but the Magistrate has only to see whether there is prima-facie evidence on record so as to construe that there is possibility of commission of offence by the accused and even if there is evidence raising suspicion of commission of offence by accused the cognizance can be taken by the Magistrate and thereafter the accused has a right to put his version before the Court on the basis of evidence on record at the time of framing of Charge.[Para No.15]

    Parameters to be taken into consideration by the Court at the time of framing of charge are altogether different than that to be taken into consideration at the time of taking cognizance. At the time of taking of cognizance, Magistrate has to look into that material only which is placed before him by the Prosecution/Investigating Agency, but at the time of consideration of charge Magistrate can take into consideration certain facts and documents pointed out and/or submitted by or on behalf of accused and thereafter he can take a decision as to whether there is sufficient material for framing of charge or not. Recently this Court in case Siemens Enterprise Communications Pvt.. Ltd. now known as Progility Technologies Pvt. Ltd. vs. Central Bureau of Investigation, reported in 2019 (3) Shim. LC 1691, on the basis of ratio of law propounded by the Apex Court in its various pronouncements, has reiterated the power of the Magistrate as well as parameters to be taken into consideration at the time of framing of charge. It is also settled that at the time of undertaking such exercise at the time of framing of charge the Magistrate is not supposed to conduct a mini trial at the stage of framing of charge and not to appreciate evidence as warranted at the stage of conclusion of trial, but he has power to evaluate material and the documents on record alongwith material being referred by the accused if the said parameter confirms to the parameters laid down by the Apex Court reiterated in Siemens' case supra. Whereas at the stage of taking cognizance, as already stated supra, on consideration of material placed before Magistrate by prosecution/investigating agency, even if there is evidence raising suspicion of commission of offence by accused the cognizance can be taken.[Para No.16]

    No doubt, the evidence or material placed before the Magistrate, at the time of taking cognizance, is not to be evaluated on merit, but definitely it is duty of the Court to see as to whether some evidence is available on record or not.
At the time of taking cognizance on chargesheet, Magistrate is not supposed to act as a Post Office
In case, there is no evidence on record to indicate commission of alleged offence(s), the Magistrate is not supposed to act as a Post Office, but is expected to apply his judicial mind according to facts and circumstances of the case for accepting or rejecting the challan/report filed before him under Section 173 Cr.P.C.[Para No.17]

27 October 2020

Bail can not be denied to chargesheeted accused on the ground of abscondence of other accused

It is pertinent to note that the other ground raised by the prosecution is that the co­accused, who is relative of the present applicant, is absconding and, therefore, present petitioner may not be enlarged on bail.
Bail can not be denied to chargesheeted accused on the ground of abscondence of other accused
Now, it is well settled principle of criminal jurisprudence that even for securing presence or for getting whereabouts of the co­accused, no police custody remand could be granted. The same principle will apply in the case where bail is sought by the accused and the charge sheet is already filed against him/her. If there is laxity or inability of the prosecution to arrest the co­accused, on that ground the other accused against whom investigation is over and charge sheet is filed cannot be denied the right of getting bail in a given case.[Para No.7]

24 September 2020

If charge sheet is not corroborating with the facts stated in the Motor Vehicle Accident Claim Petition, then the Tribunal should not considered the Claim Petition at all

The entire facts and circumstances raises a doubt in the mind of the Court. As far as the accident claims are concerned, the facts must be unambiguous. Even in case, there is a loss of memory or the claimant due to the injury, unable to provide the correct vehicle number, at least the Police Investigation should reveal the accident occurring time and the place specified as in the Claim Petition. If the charge sheet of the Police is not corroborating with the facts stated in the Claim Petition, then the Tribunal ought not to have considered the Claim Petition at all. In most of the cases, the facts stated in the FIR has been taken for consideration to establish the accident. But, in the present case, even after the investigation and filing of the charge sheet, Police officials deposed that the facts stated in the Claim Petition is mistaken facts. This being the Primafacie case established before the Tribunal, the Tribunal has not appreciated the contradiction in the Claim Petition as well as in the FIR and the Charge sheet filed by the Police. The deposition of Mr.Raja cannot be taken as a valid evidence, in view of the fact that he is an interested witness. However, the FIR and the Charge sheet cannot be neglected and it is to be given due weightage. If the basic facts regarding the accidents are not corroborating with the FIR as well as the charge sheet filed by the Police, then there is every reason to disbelieve the case of the respondent/claimant. This Court is of the considered opinion that many number of false claims are filed, processed and the Tribunals are also awarding compensation in a routine manner. Though the issues were dealt on several occasions by the Hon'ble High Court as well as by the Hon’ble Supreme Court, still such false claims are being noticed. Full Proof System in the matter of accident claims are necessary in order to avoid the bogus and fraudulent claims. This apart, unethical practices in settlement of claims are to be eradicated in order to protect the interest of the genuine accident victims. Undoubtedly, the accident victims are to be provided medical treatment immediately and 'just compensation' is to be granted without any lapse of time. The very purpose and object of the statute is to ensure speedy remedy to the accident victims. However, such things are not happening on account of various corrupt practices in the process of settling the compensation. Courts are also struggling to minimize such irregularities and illegalities. In the process of rectification, Court can make suggestions and issue directions to improve the system, so as to minimize the level of corruption and any other illegal activities in Motor Accident cases. This being the factum and the case of false claims are brought to the notice of the Courts, the Hon'ble High Court and the Hon’ble Supreme Court, on several occasions, issued directions, so as to ensure the genuine claimants receive compensation at the earlier point of time in accordance with law.[Para No.10]

If charge sheet is not corroborating with the facts stated in the Motor Vehicle Accident Claim Petition, then the Tribunal should not considered the Claim Petition at all

    Both the above provisions of the Motor Vehicles Act, 1988 unambiguously reveals that the Police officer, on receipt of information regarding any accident involving death or bodily injured to any person, has to register the F.I.R and conduct investigation and submit a report and such a report is to be communicated to the Claims Tribunal as well as the insurer and the copy should be made available to the owner of the vehicle also. The above statutory provisions is crystal clear that the duty of the Police officer to prepare the Accident Information Report and the detailed accident report and communicate the report to the Tribunal and Insurance company and thereafter, the Claims Tribunal under Section 166(4) of the Act shall treat the report of Accidents forwarded to the Tribunal as an application under Sub-Section (6) of Section 158 for compensation under the Motor Vehicles Act.[Para No.15]

16 September 2020

Oral prayer of default bail u/s.167(2) can be allowed in hearing of Regular Bail Application u/s.439 of Cr.P.C. if chargesheet is not filed within prescribed period

In the present case, it was also argued by learned counsel for the State that the petitioner did not apply for ‘default bail’ on or after 4th January, 2017 till 24th January, 2017 on which date his indefeasible right got extinguished on the filing of the charge sheet. Strictly speaking this is correct since the petitioner applied for regular bail on 11th January, 2017 in the Gauhati High Court – he made no specific application for grant of ‘default bail’. However, the application for regular bail filed by the accused on 11th January, 2017 did advert to the statutory period for filing a charge sheet having expired and that perhaps no charge sheet had in fact being filed. In any event, this issue was argued by learned counsel for the petitioner in the High Court and it was considered but not accepted by the High Court. The High Court did not reject the submission on the ground of maintainability but on merits. Therefore it is not as if the petitioner did not make any application for default bail – such an application was definitely made (if not in writing) then at least orally before the High Court. In our opinion, in matters of personal liberty, we cannot and should not be too technical and must lean in favour of personal liberty. Consequently, whether the accused makes a written application for ‘default bail’ or an oral application for ‘default bail’ is of no consequence. The concerned court must deal with such an application by considering the statutory requirements namely, whether the statutory period for filing a charge sheet or challan has expired, whether the charge sheet or challan has been filed and whether the accused is prepared to and does furnish bail.[Para No.40]

Oral prayer of default bail u/s.167(2) can be allowed in hearing of Regular Bail Application u/s.439 of Cr.P.C. if chargesheet is not filed within prescribed period
    We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of this Court and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court.[Para No.41]

    Strong words indeed. That being so we are of the clear opinion that adapting this principle, it would equally be the duty and responsibility of a court on coming to know that the accused person before it is entitled to ‘default bail’, to at least apprise him or her of the indefeasible right. A contrary view would diminish the respect for personal liberty, on which so much emphasis has been laid by this Court as is evidenced by the decisions mentioned above, and also adverted to in Nirala Yadav.[Para No.44]

    On 11th January, 2017 when the High Court dismissed the application for bail filed by the petitioner, he had an indefeasible right to the grant of ‘default bail’ since the statutory period of 60 days for filing a charge sheet had expired, no charge sheet or challan had been filed against him (it was filed only on 24 th January, 2017) and the petitioner had orally applied for ‘default bail’. Under these circumstances, the only course open to the High Court on 11 th January, 2017 was to enquire from the petitioner whether he was prepared to furnish bail and if so then to grant him ‘default bail’ on reasonable conditions. Unfortunately, this was completely overlooked by the High Court.[Para No.45]

03 July 2020

Accused is not entitled for default bail u/s.167(2) of Cr.P.C. if chargesheet has already been filed before his surrender in the court

Offence u/s. 420, 406, 409, 465, 467, 468, 471, 120-B of IPC and 7 & 13(1) A of Prevention of Corruption Act, 1988 - Chargesheet against one accused filed on 23.01.2019 - applicant-accused shown as absconded - on 23.11.2019 applicant-accused surrendered before the court - application for default bail u/s.167(2) of Cr.P.C. filed om 24.02.2020

Held: It is not essential for a person to be arrested before chargesheet can be presented against him. The only requirement for applicability of the proviso to Section 167(2) Cr.P.C. is that investigation should be pending against the petitioner-accused and no investigation can be said to be pending if chargesheet is filed before his arrest or surrender before the court.


   A perusal of the challan presented on 23.01.2019, a copy whereof is annexed as Annexure P-2, shows that list of the case property had been filed therewith along with a list of witnesses. Thereafter, the facts of the case have been narrated. The last few lines are reproduced:-
"The warrants have been got issued from the Learned Illaqa Magistrate against Sandeep Kumar son of Jagdish Chander r/o Panj Ke Utar Police Station Guruharsahai, Rishu Matneja w/o Sandeep Kumar r/o Panj Ke Utar Police Station Guruharsahai, Jaswinder Pal Singh son of Gurmeet Singh r/o Dashmesh Nagar Jalalabad, Jasmeet Singh son of Amarjeet Singh r/o Jalalabad. Hansa Singh, Inspector Grade 2, resident of Shamshabad, District Fazilka, Harpreet Singh son of Gurmeet Singh resident of Dashmesh Nagar, Jalalabad and after arresting them supplementary challan would be presented in the court and after getting evidence of involvement of staff of Punjab National Bank, a separate supplementary challan would be submitted against them. The pending enquiry of the case after taking the record and thereafter supplementary challan shall be presented. As per the evidence, the investigation till and the evidence collected on file challan under Sections 420, 465, 467, 468, 471, 406, 120-B IPC against accused Sandeep Kumar is required to be presented and the same after being prepared against Sandeep Kumar under Sections 420, 465, 467, 468, 471, 406, 120-B IPC is being presented to the Court. The witnesses mentioned
in Column no.6 shall give their statements as required."[Para No.11]
Accused is not entitled for default bail u/s.167 of Cr.P.C. if chargesheet has already been filed before his surrender in the court
From the aforementioned reproduction from the challan it is evident that evidence necessary for commencement of trial against the petitioner and his co-accused has/had been collected by the investigating agency. The petitioner was kept in column No.2 only because he had not been arrested as is the practice in the State of Punjab. Learned counsel for the petitioner has not refuted the submission of the learned State counsel that such a practice exists in the State of Punjab. Warrants of arrest had been requested for and this would not have been the case if the petitioner had not been found guilty. The challan dated 24.02.2020 against the petitioner was only a formality. In Dinesh Dalmia (supra) it has been held as follows:-

10 June 2020

While framing charge court cannot act as a mouthpiece of the prosecution

Now, let us examine the decisions which have a bearing on the point in issue.
   11. In State of Bihar v. Ramesh Singh MANU/SC/0139/1977 : (1977) 4 SCC 39 : 1977 SCC (Cri) 533 considering the scope of Sections 227 and 228 of the Code, it was held that at the stage of framing of charge it is not obligatory for the judge to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. At that stage, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion, at the initial stage of framing of charge, is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused.
While framing charge court cannot act as a mouthpiece of the prosecution
12. In Supdt. and Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja MANU/SC/0266/1979 : (1979) 4 SCC 274 : 1979 SCC (Cri) 1038 : (1980) 1 SCR 323 a three-Judge Bench held that the Magistrate at the stage of framing charges had to see whether the facts alleged and sought to be proved by the prosecution prima facie disclose the commission of offence on general consideration of the materials placed before him by the investigating police officer. (emphasis supplied) Though in this case the specific question whether an accused at the stage of framing of charge has a right to produce any material was not considered as such, but that seems implicit when it was held that the Magistrate had to consider material placed before it by the investigating police officer.
   13. In State of Delhi v. Gyan Devi MANU/SC/0649/2000 : (2000) 8 SCC 239 : 2000 SCC (Cri) 1486 this Court reiterated that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons.
   14. In State of M.P. v. S.B. Johari MANU/SC/0025/2000 : (2000) 2 SCC 57 : 2000 SCC (Cri) 311 it was held that the charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted, cannot show that the accused committed the particular offence. In that case, there would be no sufficient ground for proceeding with the trial.
   15. In State of Maharashtra v. Priya Sharan Maharaj MANU/SC/ 1146/1997 : (1997) 4 SCC 393 : 1997 SCC (Cri) 584 it was held that at Sections 227 and 228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
   16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be a well-settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau v. P. Suryaprakasam 1999 SCC (Cri) 373 where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that.[Para No.10]
   11. Thus it is settled position of law that at the time of framing of charge, the Court is not supposed to look into the evidence of the case in detail and is only to consider whether there is a strong suspicion against the accused on the basis of the material that comes before it. The court has the power to sift the evidence for the limited purpose of finding out, whether or not a prima facie case is made out against the accused. However, the Court is not supposed to delve deeply into the merits of the matter and start a roving expedition into the evidence that is brought forth it, as if conducting a trial. Further there is no one fixed definition that may be ascribed to the term prima facie' nor can the term strong suspicion have a singular meaning. While coming to the conclusion of a strong prima facie case or strong suspicion, the Court shall have to decide each case on the basis of its own independent facts and circumstances.[Para No.11]
   26. It is trite law that at the stage of framing of charge, the Court is not to delve deeply with the evidence brought forth, but the same does not mean that the Court should ignore gaping holes apparent on the face of the record, in the case of the prosecution, and the court cannot act as a mouthpiece of the prosecution.[Para No.26]
Delhi High Court
Reena
Vs.
State Of Nct Of Delhi 
Decided on 08/06/2020



16 May 2020

Submission of the charge-sheet is not a lock gate to seek anticipatory bail

F.I.R. alleging non bailable offence registere - During the course of investigation notices under Section 41(A) of Cr.P.C. have been served upon the accused upon which he has given reply through Email - After completion of the investigation, a charge-sheet against the accused filed in the Court - Court took cognizance and issued summons to accused.

Is application seeking anticipatory bail after filling of chargesheet tenable?

   Submission of the charge-sheet is not a lock gate for the applicant to be enlarged on anticipatory bail.

28 April 2020

What procedure should be adopted by court when chargesheet is filed against some accused out of several accused persons?

separate-trial

   The catch comes when against one or more accused persons, a Report labelling them responsible for commission of the offence(s) is submitted vide chargesheet and it is also indicated that investigation is pending against the other named/unknown accused or otherwise. In such a situation, the Court has two options:


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