Bail cannot be withheld merely as a punishment

When accused surrendered before Sessions court, the court has powers u/s.439 of Cr.P.C. to release accused on personal bond for a short period pending the disposal of a bail application

    Bail is the antithesis of custody. In the absence of any riders or restrictions under S. 439 CrPC, any person accused of a non-bailable offence, under any penal law, including the violations under the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989, can apply under section 439 CrPC, offering to surrender and simultaneously seeking interim bail. On receipt of such application, the Court is to satisfy that the applicant stands arraigned as an accused in a FIR disclosing Non-Bailable offences, if all these parameters are complete, then the Courts are under an obligation to accept surrender. Since custody is a sine qua non for considering a bail application, the Court is under an obligation to consider the prayer for interim bail after this deemed custody. All such pleas fall under the scope of S. 439 CrPC itself, and there is no need to invoke S. 482 CrPC. After that, granting or refusing interim bail is a Judicial function.[Para No.63]

   While granting interim bail, the rights of the victims, their families, the oppressed communities, the existence of reasonable grounds for believing that a person has committed an offence punishable with death or transportation for life, the gravity and heinous nature of the crime, the criminal history of the accused, as well as of the possibility of false implication, should always be gone into. Bail cannot be withheld merely as a punishment. One of the most significant considerations is the accused's conduct, which was not to abscond but voluntarily to surrender and submit herself to the majesty of Justice. Each case will have to be decided on the cumulative effect of all events put before the Court. However, there would be no justification in entering into a roving inquiry on either party's allegations[Para No.64]

    The Court must decide the prayer for interim bail on that day itself when it takes the accused in its custody. Such interim bail can extend till the bail application's final disposal, on the police file's production, or the status report. However, powers to grant interim bail should be exercised in a judicial and not in an arbitrary manner, and if given, then for the purpose of interim bail, personal bonds alone would suffice. If the allegations are serious, keeping in view the object of the SCSTPOA and the purpose for which this stringent provision in SCSTPOA was enacted, then indeed, such interim protection either be rejected or, if granted, can always be withdrawn on the next hearings.[Para no.66]

Neither District Administration nor Police have any powers to seize immovable property for violation of lockdown orders

The present writ petition has been filed for quashing the order as contained in memo no.705/GO dated 26th April, 2020 passed by the Sub Divisional Magistrate, Dhalbhum, Jamshedpur- respondent no.2 with a further direction to the respondents to remove the seal from "The Alcor Hotel", situated at Holding No.4, Ramdas Bhatta, opposite Indian Oil Petrol Pump, Bistupur, Jamshedpur, District East Singhbhum (hereinafter to be referred as 'the said premises')[Para No.2]

    The factual background of the case as stated in the writ petition is that the petitioner owns the Hotel Alcor, which provides facilities such as restaurants, bar, spa etc. On 25th April, 2020, a first information report being Bistupur P.S. Case no.87 of 2020 was registered under Sections 188, 269 & 270 of the Indian Penal Code; Section 54 of the Disaster Management Act, 2005; and Section 3 of the Epidemic Diseases Act, 1897, alleging that during the lockdown period, a raid was conducted on 25th April, 2020 in the Hotel Alcor wherein it was found that the spa was opened and few people including two girls were present in the conference hall, adjoining the spa. Seeing the raiding party, some persons fled away, however, three persons were apprehended on spot. Thereafter, the said premises was sealed on 26th April, 2020 by the Special Officer, Jamshedpur Notified Area Committee and the Executive Magistrate-cum-Incident Commander, East Singhbhum, Jamshedpur in terms with the office order as contained in memo no.705/GO dated 26th April, 2020 passed by the respondent no.2. Another first information report, being Bistupur P.S. Case no.88 of 2020 was registered under Sections 3, 4, 5 & 6 of the Immoral Traffic (Prevention) Act, 1956 against one of the Directors of the petitioner- Company, namely, Rajiv Singh Dugal and other accused persons on 27th April, 2020, alleging therein that one Sharad Poddar had kept a lady, namely, XXXXXXXXXX in the said hotel for last one month and had been establishing physical relationship with her since then. The petitioner vide letter dated 7th May, 2020 requested the Deputy Commissioner, East Singhbhum, Jamshedpur- respondent no.1 to unseal the hotel premises, so that day to day business of the petitioner-Company and firms having their registered offices located at Alcor Hotel Premises could function in a regular manner. The copies of the said letters were also sent to other authorities, however, no action in this regard was taken. The petitioner also served a reminder vide letter dated 15th May, 2020 to the respondent no.1, however, the same was also not responded. Hence the present writ petition.[Para No.3]

    To appreciate the rival submissions of learned counsel for the parties, it would be relevant to refer the judgment of the Hon'ble Supreme Court rendered in the case of Nevada Properties Private Limited through its Directors vs. state of Maharashtra & Anr., reported in 2019 SCC Online SC 1247. The relevant paragraphs of the said judgment are quoted as under:-

"20. Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though documents of title, etc. relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word 'seize' would include such action of attachment and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it. In the absence of the Legislature conferring this express or implied power under Section 102 of the Code to the police officer, we would hesitate and not hold that this power should be inferred and is implicit in the power to effect seizure. Equally important, for the purpose of interpretation is the scope and object of Section 102 of the Code, which is to help and assist investigation and to enable the police officer to collect and collate evidence to be produced to prove the charge complained of and set up in the charge sheet. The Section is a part of the provisions concerning investigation undertaken by the police officer. After the charge sheet is filed, the prosecution leads and produces evidence to secure conviction. Section 102 is not, per se, an enabling provision by which the police officer acts to seize the property to do justice and to hand over the property to a person whom the police officer feels is the rightful and true owner. This is clear from the objective behind Section 102, use of the words in the Section and the scope and ambit of the power conferred on the Criminal Court vide Sections 451 to 459 of the Code. The expression 'circumstances which create suspicion of the commission of any offence' in Section 102 does not refer to a firm opinion or an adjudication/finding by a police officer to ascertain whether or not 'any property' is required to be seized. The word 'suspicion' is a weaker and a broader expression than 'reasonable belief' or 'satisfaction'. The police officer is an investigator and not an adjudicator or a decision maker.This is the reason why the Ordinance was enacted to deal with attachment of money and immovable properties in cases of scheduled offences. In case and if we allow the police officer to 'seize' immovable property on a mere 'suspicion of the commission of any offence', it would mean and imply giving a drastic and extreme power to dispossess etc. to the police officer on a mere conjecture and surmise, that is, on suspicion, which has hitherto not been exercised. We have hardly come across any case where immovable property was seized vide an attachment order that was treated as a seizure order by police officer under Section 102 of the Code. The reason is obvious. Disputes relating to title, possession, etc., of immovable property are civil disputes which have to be decided and adjudicated in Civil Courts. We must discourage and stall any attempt to convert civil disputes into criminal cases to put pressure on the other side (See Binod Kumar v. State of Bihar (2014)10SCC663). Thus, it will not be proper to hold that Section 102 of the Code empowers a police officer to seize immovable property, land, plots, residential houses, streets or similar properties. Given the nature of criminal litigation, such seizure of an immovable property by the police officer in the form of an attachment and dispossession would not facilitate investigation to collect evidence/material to be produced during inquiry and trial. As far as possession of the immovable property is concerned, specific provisions in the form of Sections 145 and 146 of the Code can be invoked as per and in accordance with law. Section 102 of the Code is not a general provision which enables and authorises the police officer to seize immovable property for being able to be produced in the Criminal Court during trial. This, however, would not bar or prohibit the police officer from seizing documents/papers of title relating to immovable property, as it is distinct and different from seizure of immovable property. Disputes and matters relating to the physical and legal possession and title of the property must be adjudicated upon by a Civil Court.

21. In view of the aforesaid discussion, the Reference is answered by holding that the power of a police officer under Section 102 of the Code to seize any property, which may be found under circumstances that create suspicion of the commission of any offence, would not include the power to attach, seize and seal an immovable property."[Para No.12]

    The Hon'ble Supreme court in the aforesaid judgment has held that Section 102 Cr.P.C. postulates seizure of the property. However, an immovable property cannot, in its direct sense, be seized, though documents of title etc. relating to immovable properties can be seized, taken into custody and produced. Language of Section 102 Cr.P.C. does not support the interpretation that the police officer has the power to dispossess a person who is in occupation, to take possession of an immovable property in order to seize it.[Para No.13]

    It is, thus, well settled that the power of sealing of property carries civil consequences. A person can be deprived of the property only by following due procedure in accordance with law. No person shall be deprived of the right of property, except by the procedure prescribed under law.[Para No.16]

When an offence is committed in secrecy inside a house, then a corresponding burden will be on the inmates of the house to give a cogent explanation as to how the crime was committed

In the instant case, the appellant does not deny her presence at the scene of crime (the house where deceased and accused lived). Except the appellant and her child, no other persons were present at the scene of crime and she was the inmate of the house where the offence is committed in secrecy inside the house. The initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by prosecution to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be comparatively lighter in character. In view of Section 106 of Evidence Act, there will be corresponding burden on the inmates of the house to give cogent explanation as to how crime was committed.[Para No.26]

    As observed herein above, appellant being the only inmate of the house, did not offer any explanation as to how the incident took place. Further she has not explained in her statement recorded under Section 313 of Cr.P.C the circumstances in which deceased had sustained injuries except denying every question by answering 'do not know' or 'false'. It is the duty of the accused to furnish an explanation in her statement recorded under Section 313 Cr.P.C. regarding incriminating material that has been produced against her. Accused has been given freedom to remain silent during the investigation, as well as before the Court, then, the appellant/accused may choose to maintain silence or even deny entire prosecution case. In the present case, as observed above, the appellant in her statement under Section 313 Cr.P.C except saying 'false' and 'do not know', has not explained how the incident took place or who had committed the offence (if known) or the reason for her husband sustaining head injury and lying in a pool of blood. In such circumstances, we will have to draw an adverse inference against the appellant for not furnishing the explanation in her statement recorded under Section 313 of Cr.P.C.[Para no.27]

   Where an accused is alleged to have committed the murder of her husband and the prosecution succeeded in leading the evidence to show that shortly before the commission of crime, they were seen together and the offence had taken place in the house where husband and wife normally resides, then, it is for the accused to explain. For this proposition, we place reliance on the judgment of the Apex Court in TRIMUKH MAROTI KIRKAN V. STATE OF MAHARASHTRA reported in (2006) 10 SCC 681 wherein it came to be held:

Testimony of police official as a witnesses cannot be rejected on the ground of non­ corroboration by independent witness

Having gone through the entire evidence on record and the findings recorded by the courts below, we are of the opinion that in the present case the prosecution has been successful in proving the case against the accused by examining the witnesses PW3, PW4, PW5, PW7 and PW8. It is true that all the aforesaid witnesses are police officials and two independent witnesses who were panchnama witnesses had turned hostile. However, all the aforesaid police witnesses are found to be reliable and trustworthy. All of them have been thoroughly cross­examined by the defence. There is no allegation of any enmity between the police witnesses and the accused. No such defence has been taken in the statement under Section 313, Cr.P.C. There is no law that the evidence of police officials, unless supported by independent evidence, is to be discarded and/or unworthy of acceptance.

    It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non­corroboration by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non­examination is not necessarily fatal to the prosecution case, [see Pardeep Kumar (supra)].

    In the recent decision in the case of Surinder Kumar v. State of Punjab, (2020) 2 SCC 563, while considering somewhat similar submission of non­examination of independent witnesses, while dealing with the offence under the NDPS Act, in paragraphs 15 and 16, this Court observed and held as under:

“15. The judgment in Jarnail Singh v. State of Punjab (2011) 3 SCC 521, relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status. 

16. In State (NCT of Delhi) v. Sunil, (2011) 1 SCC 652, it was held as under: (SCC p. 655) “It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy.
  As a proposition of law, the presumption should be the other way round. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature.”

If accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution u/s.138 of N.I. Act can fail

With regard to the facts in the present case, we can also refer to the following observations in M.M.T.C. Ltd. and Anr. v. Medchl Chemicals & Pharma (P) Ltd., (2002) 1 SCC 234 (Para. 19):

"... The authority shows that even when the cheque is dishonoured by reason of stop payment instruction, by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the `stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused. ..."

(emphasis supplied)[Para No.13]

    In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.[Para No.14]

Complaint u/s. 138 of N.I. Act for cheque bounce is maintainable if cheque is presented and gets dishonoured for the second time after the period of first demand notice is expired

The expression ‘cause of action’ appearing in Section 142 (b) of the Act cannot therefore be understood to be limited to any given requirement out of the three requirements that are mandatory for launching a prosecution on the basis of a dishonoured cheque. Having said that<, every time a cheque is presented in the manner and within the time stipulated under the proviso to Section 138 followed by a notice within the meaning of clause (b) of proviso to Section 138 and the drawer fails to make the payment of the amount within the stipulated period of fifteen days after the date of receipt of such notice, a cause of action accrues to the holder of the cheque to institute proceedings for prosecution of the drawer.[Para No.20]

    There is, in our view, nothing either in Section 138 or Section 142 to curtail the said right of the payee, leave alone a forfeiture of the said right for no better reason than the failure of the holder of the cheque to institute prosecution against the drawer when the cause of action to do so had first arisen. Simply because the prosecution for an offence under Section 138  must on the language of Section 142 be instituted within one month from the date of the failure of the drawer to make the payment does not in our view militate against the accrual of multiple causes of action to the holder of the cheque upon failure of the drawer to make the payment of the cheque amount. In the absence of any juristic principle on which such failure to prosecute on the basis of the first default in payment should result in forfeiture, we find it difficult to hold that the payee would lose his right to institute such proceedings on a subsequent default that satisfies all the three requirements of Section 138.[Para No.21]

    That brings us to the question whether an offence punishable under Section 138 can be committed only once as held by this Court in Sadanandan Bhadran’s case (supra). The holder of a cheque as seen earlier can present it before a bank any number of times within the period of six months or during the period of its validity, whichever is earlier. This right of the holder to present the cheque for encashment carries with it a corresponding obligation on the part of the drawer to ensure that the cheque drawn by him is honoured by the bank who stands in the capacity of an agent of the drawer vis-à-vis the holder of the cheque. If the holder of the cheque has a right, as indeed is in the unanimous opinion expressed in the decisions on the subject, there is no reason why the corresponding obligation of the drawer should also not continue every time the cheque is presented for encashment if it satisfies the requirements stipulated in that clause (a) to the proviso to Section 138. There is nothing in that proviso to even remotely suggest that clause (a) would have no application to a cheque presented for the second time if the same has already been dishonoured once. Indeed if the legislative intent was to restrict prosecution only to cases arising out of the first dishonour of a cheque nothing prevented it from stipulating so in clause (a) itself. In the absence of any such provision a dishonour whether based on a second or any successive presentation of a cheque for encashment would be a dishonour within the meaning of Section 138 and clause (a) to proviso thereof. We have, therefore, no manner of doubt that so long as the cheque remains unpaid it is the continuing obligation of the drawer to make good the same by either arranging the funds in the account on which the cheque is drawn or liquidating the liability otherwise. It is true that a dishonour of the cheque can be made a basis for prosecution of the offender but once, but that is far from saying that the holder of the cheque does not have the discretion to choose out of several such defaults, one default, on which to launch such a prosecution. The omission or the failure of the holder to institute prosecution does not, therefore, give any immunity to the drawer so long as the cheque is dishonoured within its validity period and the conditions precedent for prosecution in terms of the proviso to Section 138 are satisfied.[Para No.22]

Information given by the accused u/s.27 of Evidence Act can not be lead in evidence if it is in respect of discovery of fact that has already been discovered

Another elementary statutory breach which we notice in record-ing the evidence of the above witnesses is that of Section 27 of the Evidence Act. 

Evidence was led through the above three police witnesses that in consequence of information received from the three appellants on June 30, 1992 they discovered the place where the dead body of Khurshid was thrown. As already noticed, the dead body of Khurshid was recovered on June 27, 1992 and therefore the question of discovery of the place where it was thrown thereafter could not arise. Under Section 27 of the Evidence Act if an information given by the accused leads to the discovery of a fact which is the direct outcome of such information then only it would be evidence but when the fact has already been discovered as in the instant case the evidence could not be led in respect thereof.[Para No.17]

Once a Magistrate takes cognizance of the offence, he is, thereafter, precluded from ordering an investigation under Section 156(3) of CrPC

After calling report u/s.202 of CrPC, Magistrate can not order investigation u/s.156(3) of CrPC.

   I may first deal with the question as to whether the Magistrate ought to have proceeded under Section 156(3), after receipt of enquiry report from Senior Superintendent of Police, Srinagar, sought on taking cognizance of complaint and after deferment of process or was required to proceed under Section 202(1) and what are the parameters for exercise of power under the two provisions.[Para No.12]

     The two provisions are in two different chapters of the Code, though common expression 'investigation' is used in both the provisions. Normal rule is to understand the same expression in two provisions of an enactment in same sense unless the context otherwise requires. Heading of Chapter XII is "Information to the Police and their Powers to Investigate" and that of Chapter XV is "Complaints to Magistrate". Heading of Chapter XIV is "Conditions Requisite for Initiation of Proceedings". The two provisions i.e. Sections 156 and 202 in Chapters XII and XV respectively are as follows :

"156. Police officer's power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable 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.
202. Postponement of issue of process.-
(1) Any Magistrate , on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made, -
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."[Para No.13]

   Cognizance is taken by a Magistrate under Section 190 (in Chapter XIV) either on "receiving a complaint", on "a police report" or "information received" from any person other than a police officer or upon his own knowledge.

    Chapter XV deals exclusively with complaints to Magistrates. Reference to Sections, 202, in the said Chapter, shows that it provides for "postponement of issue of process" which is mandatory if accused resides beyond the Magistrate's jurisdiction (with which situation this case does not concern) and discretionary in other cases in which event an enquiry can be conducted by the Magistrate or investigation can be directed to be made by a police officer or such other person as may be thought fit "for the purpose of deciding whether or not there is sufficient ground for proceeding". I am skipping the proviso as it does not concern the question under discussion. Clause (3) provides that if investigation is by a person other than a police officer, he shall have all the powers of an officer incharge of a police station except the power to arrest.[Para No.14]

   Chapter XII, dealing with the information to the police and their powers to investigate, provides for entering information relating to a 'cognizable offence' in a book to be kept by the officer incharge of a police station (Section 154) and such entry is called "FIR". If from the information, the officer incharge of the police station has reason to suspect commission of an offence which he is empowered to investigate subject to compliance of other requirements, he shall proceed, to the spot, to investigate the facts and circumstances and, if necessary, to take measure, for the discovery and arrest of the offender (Section 157(1).[Para No.15]

    Power under Section 202 is of different nature. Report sought under the said provision has limited purpose of deciding "whether or not there is sufficient ground for proceeding". If this be the object, the procedure under Chapter XV of the Code of Criminal Procedure are required to be adhered to in letter and spirit.[Para No.19]

    Admittedly the Magistrate has taken cognizance and find it necessary to postpone issuance of process, therefore, directed for enquiry by the Police and on receipt of the report from SSP, Srinagar, the Magistrate was required to proceed in terms of the provisions contained in Chapter XV of the Criminal Procedure Code. Thus, I answer the first question by holding that the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued, when Magistrate takes cognizance and postpones issuance of process, the Magistrate has yet to determine "existence of sufficient ground to proceed" and these cases fall under Section 202. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case.[Para No.20]

    To reiterate for the guidance of all the Magistrates in the Union Territory of Jammu and Kashmir and Union Territory of Ladakh, it has become necessary to refer the Judgment reported in (2010) 4 Supreme Court Cases 185 titled Rameshbhai Pandurao Hedau Vs. State of Gujrat, which postulates that while the power to direct a police investigation under Section 156(3) is exercisable at the pre-cognizance stage, the power to direct an investigation or an enquiry under Section 202(1) is exercisable at the post-cognizance stage, when the Magistrate is in seisin of the case.[Para No.21]

    The settled legal position has been enunciated by the Hon'ble Supreme Court in several decisions and has observed that the Courts are ad idem on the question that the powers under Section 156(3) can be invoked by the Magistrate at a pre-cognizance stage, whereas powers under Section 202 of the Code are to be invoked after cognizance is taken on a complaint, but before issuance of process. Such a view has been expressed in Suresh Chand Jain case reported in (2001) 2 SCC 628: 2001 SCC (Cri) 377 as well as in Dharmeshbhai Vasudevbhai case, reported in (2009) 6 SCC 576: (2009) 3 SCC (Cri) 76 and in Devarapalli Lakshminarayana Reddy case, reported in (1976) 3 SCC 252: 1976 SCC (Cri) 380.[Para No.22]

After dismissal of petition for quashing of offence under STSC Atrocity Act, application u/s. 438 for anticipatory bail can not be considered

The appellants upon such filing of the complaint, raised an issue that the ingredients of the offences are prima facie not established and thereby initially, preferred a petition for quashing before the High Court, being Criminal Misc. Application No.6223 of 2017 and by raising multiple contentions about non-applicability of the provisions of the Act, a request was made to quash the complaint. But, after hearing both the sides at length, the said petition for quashing came to be withdrawn vide order dated 11.12.2019 and the interim order which was granted earlier on 6.3.2017 was vacated. Of-course for a period of one week, the said protection was extended.[Para No.3]

    It appears from the record that after disposal of the petition for quashing, the present appellants appeared to have rushed down for anticipatory bail under Section 438 of the Criminal Procedure Code ('the Code' for short) before learned District and Sessions Judge, (Special Atrocity Court) at Surat, which application came up for consideration before learned 7th Additional Sessions Judge, Surat, who by order dated 24.12.2019 was pleased to dismiss the same, which has given rise to present Criminal Appeal before this court [Para No.4]

    At this stage, even if the Court may consider that after disposal of the petition for quashing, application under Section 438 of the Code can be considered, but, in view of the fact that after exhausting meritorious contentions, the petition for quashing came to be disposed of and hence very little scope is left for the Court to consider Section 438 request of the appellants, since prima facie, it cannot be said that no offence is made out and further, it is not open for the bail Court to jump to a conclusion of this elementary stage that this complaint is nothing but abuse of process of law, particularly when the quashing petition is already disposed of. Therefore, with full effect, embargo created by the Statute by way of Section 18 and 18A of the Atrocity Act, the request for anticipatory bail cannot be considered.The intention of the legislature is not to be brushed aside as has been held by the Apex Court. Large number of decisions which are pressed into service, in the considered opinion of this Court, are of no avail to the appellants, particularly when in recent pronouncement of the judgment in the case of Prathvi Raj Chauhan (supra), the Court has expressly made it clear that liberal use of power to grant pre- arrest bail would defeat the intention of the Parliament. So, the Court would not like to exercise the discretion in view of this peculiar set of circumstance and having gone through the overall material on record, the appeal is found to be merit-less since facts are altogether different.[Para No.12]

Non-finding of injury upon the victim of rape does not necessarily mean that there is no rape

So far as regards the non-finding of injury upon the victim, as per the medical evidence, it is to be noted that injury is not a sine qua non for deciding whether rape has been committed or not. It has to be decided on the factual matrix of each case. The Hon'ble Apex Court in (2013) 11 SCC 688, Radhakrishna Nagesh - Vs- State of Andhra Pradesh, it has been held that penetration itself proves offence of rape, but contrary is not true, i.e.,even if there is no penetration, it does not necessarily mean that there is no rape. The Hon'ble Apex Court further held that absence of injuries would justify any adverse inference against prosecution. In (2014) 13 SCC 574; Krishan - Vs- State of Haryana, it was also held by the Hon'ble Apex Court that it is not expected that every rape victim should have injuries on her body to prove her case.[Para No.31]

    The chastity of a woman ruined as soon as such offence is committed, while in a civilized society, respect or reputation is a basic right. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. Youthful excitement and an attempt for momentary pleasure on the part of a person upon a woman, had a devastating effect in the entire body and mind of the victim. It is to be kept in mind that such offence lowers the dignity of a woman and mars her reputation. The Courts are sensitized that rape is a violation of victim's fundamental right under Article 21 of the Constitution and rape victim is placed on a higher pedestal than an injured witness. Being the most hatred crime, rape tantamount to a serious blow to the supreme honour of a woman and is a crime against the entire society as well.[Para No.33]

Trial is not vitiated if investigation is conducted by the informant/police officer who himself is the complainant

Now we consider the relevant provisions of the Cr. P. C. with respect to the investigation.

    Section 154 Cr.P.C. provides that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction.

    Section 156 Cr.P.C. provides that any officer in charge of a police station may investigate any cognizable offence without the order of a Magistrate. It further provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Therefore, as such, a duty is cast on an officer in charge of a police station to reduce the information in writing relating to commission of a cognizable offence and thereafter to investigate the same.

    Section 157 Cr.P.C. specifically provides that if, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of the offender.

    Therefore, considering Section 157 Cr.P.C., either on receiving the information or otherwise (may be from other sources like secret information, from the hospital, or telephonic message), it is an obligation cast upon such police officer, in charge of a police station, to take cognizance of the information and to reduce into writing by himself and thereafter to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender. Take an example, if an officer in charge of a police station passes on a road and he finds a dead body and/or a person being beaten who ultimately died and there is no body to give a formal complaint in writing, in such a situation, and when the said officer in charge of a police station has reason to suspect the commission of an offence, he has to reduce the same in writing in the form of an information/complaint. In such a situation, he is not precluded from further investigating the case. He is not debarred to conduct the investigation in such a situation. It may also happen that an officer in charge of a police station is in the police station and he receives a telephonic message, may be from a hospital, and there is no body to give a formal complaint in writing, such a police officer is required to reduce the same in writing which subsequently may be converted into an FIR/complaint and thereafter he will rush to the spot and further investigate the matter. There may be so many circumstances like such. That is why, Sections 154, 156 and 157 Cr.P.C. come into play.[Para No.9]

Benefit of bail u/s.436A of Cr.P.C. is available only to under-trial prisoners and not to convicted who has filed an appeal

Upon the closer examination of the language used in Section 436-A of the Code, it can be seen without any difficulty or doubt that the benefit intended to be given is for a person who has, during the period of investigation, inquiry or trial under the Code of an offence, not being an offence for which capital punishment has been prescribed as one of the punishments, undergone detention for a period extending up to one half of the maximum period of imprisonment specified for that offence under that law. In such a case, the person is required to be released on his personal bond with or without sureties in normal course of circumstances. But, there could be some special circumstances justifying his further detention, for reasons to be recorded, which makes the right of the person limited and not absolute. This is evident from the first proviso which lays down that the Court may, after hearing the Public Prosecutor and for reasons to be recorded in writing, order continued detention of the person for a period longer than one half of the period mentioned in the Section or release him on bail instead of the personal bond with or without sureties. However, this limited right has the potential of becoming absolute when the condition prescribed in second proviso is fulfilled. The condition is that if the person has been detained during the period of investigation, inquiry or trial for more than maximum period of imprisonment provided for an offence under that law, the person has to be released. There is also an explanation appended to the section. It lays down that in computing the period of detention for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.[Para No.18]

    Reading the Section as a whole, we find that the benefit under the section has been intended to be given only to the under-trial prisoners. The words "during the period of investigation, inquiry or trial" and the words "maximum period of imprisonment specified for that offence" are significant. They indicate that only that person who has undergone detention for a period of one half or more of the maximum prescribed punishment during investigation, inquiry or trial under the Code who is eligible for his release on personal bond with or without sureties or bail, as the case may be. The Section does not say that a person who has been detained for one half period of imprisonment imposed would be eligible. Mentioning of "the maximum period of imprisonment specified for that offence under that law" and omission of the words "punishment imposed" shows that the legislature was aware of the difference in the status of an undertrial prisoner and a convict, and with it of the consequences of detaining a person who enjoys presumption of innocence till found guilty for unduly long time. Such presumption of innocence being absent in case of a convict, the legislature refrained, and consciously, from mentioning the words "punishment imposed". This clearly shows the intention of the legislature to confer the benefit on the under- trials and not the convicts. This being the position, we do not think that rule of liberal construction would have any application here.[Para No.19]

    There are further indications about the clarity of intention of the legislature. The provision refers to "investigation, inquiry and trial under  the Code". There can be no doubt about what "investigation or inquiry" means as they have been defined in Section 2(h) and Section 2(g) of the Code respectively. The doubt, however, could be about meaning of the word "trial" as it has not been defined in the Code. It has not been defined in the General Clauses Act either. So, we have to turn to its dictionary meaning, if it helps. In Black's Law Dictionary (9th Edition page 1644) "trial" has been defined to be a formal judicial examination of evidence and determination of legal claims in a advisory proceeding. This definition is too general an explanation of "trial" and, therefore, it would not help us in understanding its meaning here. So, we must again revert to the Code, in an attempt to understand the sense in which the word "trial" has been used in Section 436-A of the Code or to be precise, to know, as to whether or not the trial of an accused goes beyond his conviction and continues, if appeal is filed under 374 of the Code, till it is finally decided, or it culminates upon acquittal or conviction for the purpose of Section 436-A of the Code.[Para No.20]

    As these provisions create a step-wise mechanism to procedurally deal with crimes and so the word, "trial" used in Section 436-A would get it's meaning in the context of this scheme of the Code, at least for the purpose which is sought to be achieved by the provision of Section 436-A. Under this scheme of the Code, "trial" of a person accused of an offence is contemplated only by a Court having original criminal jurisdiction or assuming original criminal jurisdiction after committal of a Sessions case and appeal as a remedy against the judgment of conviction and/or sentence or even acquittal has been made available before the Court exercising Appellate jurisdiction. In this sense, so far as the Section 436- A benefit is concerned, the word "trial" has to be understood in contra-distinction to an "appeal proceeding". Our conclusion is further bolstered up by the provisions contained in Section 353. Provisions contained in Section 389 also help us in drawing of such an inference. It would be, therefore, convenient for us to quote relevant portions of these sections here. They are as under :

"353. Judgment - (1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders,
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c)  by reading out the operative part of thej udgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader."
   "389. Suspension of sentence pending the appeal; release of appellant on bail. - (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:
Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:"

    It is clear from Section 353 that it requires a criminal Court to pronounce judgment in every trial in open Court immediately "after the termination of the trial or at some subsequent time". It is indicative of the fact that upon pronouncement of the judgment, in the contemplation of the scheme of the Code, there occurs termination of the trial. If we examine Section 389 of the Code, on the backdrop of Section 353, we would find that under the scheme of the Code, appeal has been considered to be a stage separate from trial, which comes into being after pronouncement of the judgment upon termination of the trial. In other words, unless there is termination of trial, there is no question of stage of appeal being born. That means the words "trial" and "appeal" have been used in distinctive sense thereby signaling that no one makes a mistake in understanding that "trial" is not synonymous with "appeal", when it comes to extending benefit available to an under trial prisoner to a convict undergoing sentence of imprisonment.

Of course, in general sense, appeal could be said to be an extension of trial on the parameters of rights available to a convict, principles to be followed by Appellate Court in appreciation of evidence and power of Appellate Court. But, this is not so for the purposes of Section 436-A of the Code. This is the reason why in Section 389 of the Code, the words "trial of the person", "are not used and instead the words, "pending any appeal by a convicted person" are employed for considering suspension of sentence of the convict and grant of bail to him.[Para No.23]

Bail can not be refused on the ground of seriousness of offence and criminal antecedent alone

Learned counsel for the appellant has submitted that the accused Vikram Singh is involved in at least five other criminal cases under the same Police Station, Jagdishpur. He has also brought to our notice the witness statement of one Narendra Dev Upadhyay. This statement was recorded on 29 th March 2019. The part of his statement to which our attention has been drawn by learned counsel for the appellant records that the said witness saw Vikram Singh standing near National Highway 56 Flyover on the date of occurrence of the incident in Warisganj with 6 or 7 accomplices and all of them were talking about plans of killing the victim.

    Learned Counsel for the State of Uttar Pradesh supported the appellant’s stand. Mr. C.A. Sundram, learned senior counsel for the accused contested the present appeal. His main argument is that the statement of Narendra Dev Upadhyay, on which reliance was placed by the prosecution and the appellant was recorded after fifty days from the date of occurrence of the incident. On the question of granting bail, Mr. Sundram has argued, such a statement was unreliable. He has also submitted that even as per the F.I.R. or the witness statements recorded under Section 161 of the Code of Criminal Procedure, 1973, his client was not named as having participated in the act of assault or being present at the place of occurrence while the assault took place.[Para No.4]

    On considering the submissions of the learned counsel for the parties. Having regard to the circumstances of this case, in our opinion, there has been no wrong or improper exercise of discretion on the part of the High Court in granting bail to the accused. The factors outlined in the case of Mahipal (supra) for testing the legality of an order granting bail are absent in the order impugned. The materials available do not justify arriving at the conclusion that the order impugned suffers from non-application of mind or the reason for granting bail is not borne out from a prima-facie view of the evidence on record. The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail. The High Court has exercised its discretion in granting bail to the accused Vikram Singh upon considering relevant materials. No ex-facie error in the order has been shown by the appellant which would establish exercise of such discretion to be improper. We accordingly sustain the order of the High Court granting bail. This appeal is dismissed.[Para No.7]

appeal u/s.372 of Cr.P.C. seeking enhancement of sentence at the instance of the victim, is not maintainable

Chapter XXIX of the Code of Criminal Procedure, 1973 deals with ‘Appeals’ and Section 372 makes it clear that no appeal to lie unless otherwise provided by the Code or any other law for the time being in force. It is not in dispute that in the instant case appellant has preferred appeal only under Section 372, Cr.PC. The proviso is inserted to Section 372, Cr.PC by Act 5 of 2009. Section 372 and the proviso which is subsequently inserted read as under:

“372. No appeal to lie unless otherwise provided. – No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.” 

  A reading of the proviso makes it clear that so far as victim’s right of appeal is concerned, same is restricted to three eventualities, namely, acquittal of the accused; conviction of the accused for lesser offence; or for imposing inadequate compensation. While the victim is given opportunity to prefer appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 377, Cr.PC gives the power to the State Government to prefer appeal for enhancement of sentence. While it is open for the State Government to prefer appeal for inadequate sentence under Section 377, Cr.PC but similarly no appeal can be maintained by victim under Section 372, Cr.PC on the ground of inadequate sentence. It is fairly well settled that the remedy of appeal is creature of the Statute. Unless same is provided either under Code of Criminal Procedure or by any other law for the time being in force no appeal, seeking enhancement of sentence at the instance of the victim, is maintainable. Further we are of the view that the High Court while referring to the judgment of this Court in the case of National Commission for Women v. State of Delhi & Anr. (2010) 12 SCC 599 has rightly relied on the same and dismissed the appeal, as not maintainable.[Para No.9]

Magistrate has powers u/s.451 and 457 of Cr.P.C. to order de-freezing of bank account seized by police

Questions may often arise as to the legal remedy which a person can resort to, upon being aggrieved by the seizure of his bank account which reveals no nexus with the alleged offence.

In case the seizure is illegal and the account freezed lacked direct link with the offences alleged, the legal remedy open to the aggrieved is to approach the concerned Magistrate under Section 451 or 457 of the CrPC as the case may be, and seek to get the account de-freezed. But if the freezing is per se contrary to the provisions of law and could be assailed as illegal without reference to factual disputes involved in the matter, nothing precludes the affected person from approaching this Court for appropriate relief.[Para No.23]

    If a Police Officer wants to depart from the normal procedure of getting a warrant or such permission from the concerned Magistrate, he must then have to draw a search memorandum in writing containing sufficient grounds for his belief as to how the assets in the account are associated with the alleged offences and also as to how an emergent freezing of account would be justified in the circumstances of the case on hand. He must forward the same to the nearest Magistrate forthwith as required under Section 165(5). If there is breach in this respect, it is to be considered as being irregular than illegal. All that the Magistrate has to decide on the motion made for defreezing of the account is whether the seizure complained of is illegal and the account did have any direct/close nexus or link with the offences in question. In other words, despite there could be complaint of irregularity in the matter of seizure also, once the Magistrate is satisfied that the account seized nevertheless has got direct or close link with the offences in question, then it is not a case where the account could be ordered to be de-freezed at the request of the aggrieved. This will not, however, preclude the Magistrate from reporting the violation if any, committed by the erring Police Officer, to his departmental head for initiating necessary disciplinary action.[Para No.24]

Opinion expressed by High Court; while deciding bail application, can not be cited as a precedent in any other case

The appellant was the Secretary of the Mohammedpur Bujurg Kisan Sewa Sahkari Samiti Limited, Vikas Khand, Laksar, District Haridwar. While declining to grant bail, the High Court, by its order dated 20 February 2020, has come to the conclusion that the appellant falls under the definition of a “public servant”, as contained in Section 2(c)(viii) of the Act.[Para No.3]

    Assailing the finding of the High Court, Mr Aditya Singh, learned counsel appearing on behalf of the appellant, submitted that in pursuance of the earlier order of the High Court dated 27 January 2020, the Inspector, Vigilance Signature Not Verified Establishment, Dehradun, who is the investigating officer, filed an affidavit Digitally signed by ARJUN BISHT Date: 2020.08.24 18:25:18 IST Reason:

clarifying that the Society does not receive any financial assistance or aid from the State government. On this basis, learned counsel submitted that the 1 Act appellant does not fulfill the description of a “public servant” within the meaning of Section 2(c) of the Act.[Para No.4]

   In our view, it is not appropriate at the present stage to enter into a finding on whether or not the appellant fulfills the description of “public servant” as contained in Section 2(c) of the Act. Similarly, we are of the view that the issue whether the cooperative society is ‘State’ within the meaning of Article 12 of the Constitution did not arise for consideration before the High Court, and should not have been decided. This also is an issue on which no final opinion should be rendered at this stage in the context of adjudicating upon an application for bail. We, therefore, clarify that the impugned order of the High Court shall not be construed as an expression of any conclusive opinion nor will it be cited as a precedent in any other case.[Para No.6]

Evidence of child witness without oath can be relied upon if child witness is able to understand the questions and able to give rational answers thereof

Master Krishna Akhade (PW-4), son of deceased Sangita and the appellant -accused, was 4 year old tender aged child. It is abundantly clear from the evidence of Mr Mangesh Sonawane (PW-2) and Mr Mahesh Pagare (PW-3) that, Krishna Akhade (PW-4) was present in the house when the incident took place. As already referred to in foregoing paragraphs, master Krishna Akhade (PW-4) had not seen entire incident. Material portion of his testimony is as under:

"I am taking education in Balwadi. My mother's name is Sangita. The name of my father is Bhatu. The name of my sister is Divya. There was quarrel on that day in between my mother and father. My father beat to my mother by means of wooden log. I had seen the said incident. There was smoke in the house. Door was opened by Sonu uncle and Golu Uncle."[Para No.22]

    Record reveals that, before recording the evidence learned Additional Sessions Judge, Dhule ascertained as to whether master Krishna Akhade is a competent witness and whether oath can be administered to him by putting certain preliminary questions. Record further reveals that, considering very tender age of master Krishna Akhade, learned Additional Sessions Judge, Dhule decided not to administer oath to him. During cross-examination master Krishna Akhade clearly stated that, he had been awakened from sleep hearing shouting, which clearly establishes that, he had seen the incident not fully, but partly. Nothing is brought on record through his cross-examination, on the basis of which, his evidence can be discarded branding it to be tutored. No doubt, cross-examination of master Krishna Akhade (PW-4) reveals that, 1½ months prior to recording of his evidence maternal uncle Mangesh Sonawane (PW-2) had taken him to his house from the house of parental grandfather and grandmother. Merely for the reason that, master Krishna Akhade (PW-4) was in the custody of Mangesh Sonawane (PW-2) prior to his entering into the witness box, inference cannot be drawn that, Mr Mangesh Sonawane (PW-2) had tutored him before coming to the court for giving evidence. It is pertinent to note that, on very next day of the incident, statement of master Krishna Akhade under Section 161 of CrPC was recorded. Testimony of master Krishna Akhade is free from any omission or contradiction. Since the statement of master Krishna Akhade (PW-4) under Section 161 of CrPC was recorded on very next day of the incident when he was in the custody of parents of the appellant, question of his tutoring at that time by his maternal uncle Mr Mangesh Sonawane (PW-2) does not arise.[Para No.23]

    In the matter of Dattu Ramrao Sakhare Vs. State of Maharashtra, 1997 (3) Mh.L.J. 452, the Hon'ble Supreme Court while dealing with the aspect of competency and credibility of child witness under Section 115 of the Indian Evidence Act, 1872, in paragraph no.5 of the Judgment, held as under :

"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."[Para no.24]

U/s. 62 of The Indian Evidence Act, carbon copies can be taken into consideration as primary evidence

Briefly stated case of the prosecution is that the respondent was running a medical shop viz., M/s. Sri Balaji Medicals. On the directions issued by the Assistant Director of Drugs Control, Salem Zone, the Drugs Inspectors had inspected the respondent's medical shop on 17.12.2008. In the course of inspection, it was found that certain drugs were stored without a valid drug licence and the same were seized. A memo dated 22.12.2008 had been issued to the respondent-accused alleging contravention of section 18(c) of the Drugs and Cosmetics Act, 1940. The respondent had caused reply (Ex.-P4) to the said memo without furnishing details of purchase. The Drug Inspector has fled a charge sheet against the respondent informing commission of offence punishable under Sections 27(b) (ii) and 28 of the Drugs and Cosmetics Act, 1940. Upon consideration of evidence, the trial court after referring to Ex.-P4 held that the respondent has admitted that he has no licence to the premises for sale of drugs. The trial court further held that Exs.P-4 to P-7 though were carbon copies, as per section 62 of the Indian Evidence Act, they can also be considered as primary evidence. On those findings to, the trial court convicted the respondent and sentenced him to undergo rigorous imprisonment for one year and imposed fne of Rs. 5000/- under Section 27(b)(ii) of the Drugs and Cosmetics Act and fne of Rs. 500/- under section 28 of the Drugs and Cosmetics Act. Aggrieved by the verdict of conviction and the sentence of imprisonment, respondent-accused preferred an appeal in Criminal Appeal No.18 of 2013 before the appellate court-Principal Sessions Judge, Krishnagiri which was dismissed vide order dated 29.08.2013.[Para No.3]

    Per contra, the learned counsel for the respondent has submitted that the prosecution has failed to prove that the respondent is the owner of M/s Sri Balaji Medicals and the non-examination of Kamalakannan and Jayanthi was fatal to the prosecution case. Learned counsel further submitted that the alleged statement of the respondent in Exs.P-4, P-7 and P-10 relied upon by the prosecution were only carbon copies and the courts below could not have based the conviction upon Exs.P-4, P-7 and P-10 and that the High Court has rightly reversed the same.[Para No.6]

    Learned counsel for the respondent has submitted that Exs.P-4 and P-7, that is, the statements of respondent were only carbon copies and that admission of such carbon copies raises serious doubt about the prosecution case. As pointed out by the trial court as well as by the first appellate court, under section 62 of the Indian Evidence Act, carbon copies can be taken into consideration primary evidence and we find no infirmity in admitting carbon copies of those documents.[Para No.14]

In absence of the depositions or the evidence of the victim; conviction u/s. 4 & 5 of the Immoral Trafic (Prevention) Act can not be sustained

PW-4, P.I., Madan Manohar Ballal of Crime Branch, Thane, claimed that at the relevant time, he was attached to A.H.T.C. and the investigation of the present Crime No. I-475 of 2013 of Manpada Police Station was handed over to him and he has received the relevant documents viz. complaint, panchanama, Pre-raid panchanama, raid panchanama, spot panchanama, muddemal and Police statements of witnesses. He claimed that he has obtained the documents of registration of the said flat, which is the place of offence, so also R.C. book of motorcycle. He claimed that he has requested the learned Judicial Magistrate, First Class, Kalyan on 7 th December, 2013 and 13th January, 2014 so as to record the statements of victims under Section 164 of Cr.P.C. vide Exhibit 38 and 39. According to him, he has also sent a letter to Rescue Foundation to produce the victim girls vide Exhibits 40 to 45 for recording the statements of the victim girls under Section 164 of Cr.PC. However, according to him, the victims were sent to Bangladesh through Rescue Foundation, whereas victim no.6, Pinki Mandol was sent to West Bengal.[Para No.20]

    As such from the aforesaid testimony of the investigating officer, what can be gathered is the statement of the victim girls could not be recorded under Section 164 Cr.P.C. though efforts were made as the five victims were sent back to Bangladesh by the Rescue Foundation, whereas victim Pinki to West Bengal. No efforts were made by the prosecution to record the statement of victim girls under Section 164 Cr.P.C. by video conferencing or their oral evidence during the course of trial.[Para No.22]

    Similarly as observed hereinabove the conviction under the provisions of Immoral Traffic (Prevention) Act, 1956 is also not sustainable as it is not established that the accused were either the owner or licensee or as a tenant of the flat in question, which is the place of offence and they were in actual possession of the premises particularly in absence of testimony of the flat owner. Similarly, it is also not established that the vehicle i.e. two wheeler was seized from the custody of or ownership of the accused. That being so, the conviction of the appellants for an offence punishable under Section 3 of Immoral Traffic (Prevention) Act, 1956 is not sustainable. In absence of the depositions or the evidence of the victims, it is difficult to even sustain the conviction of an offences punishable under Section 4 of the Act particularly in absence of testimony of the victim girls, so also the conviction under Section 5 as there is no material to demonstrate that the victim girls were procured or by inducing or forcing them for the sake of prostitution.[Para No.30]

Criminal appeal against conviction cannot be dismissed for default owing to the absence of the appellant or his counsel

This is the oldest Single Judge Bench criminal appeal of this Court. It was presented on 22.04.1988, admitted on 27.04.1988 and the appellant was directed to be released on bail and realization of fine amount was stayed. After its admission, the case was listed before different Benches on different occasions for hearing but it was adjourned either on the prayer of the learned counsel for the appellant or learned counsel for the Vigilance Department. The matter was listed before me for hearing on 06.08.2020 and I took up the matter through Video Conferencing. The report of the Superintendent of Police, Vigilance Cell, Cuttack revealed that it was intimated to the appellant that the matter would be taken up on 06.08.2020. In spite of that, none appeared on behalf of the appellant. Since the appeal was pending before this Court for more than thirty years, in presence of the learned Senior Standing Counsel for the Vigilance Department, Mr. Deba Prasad Das, Advocate who is having extensive practice on criminal law for more than thirty five years, both in the trial Court as well as before this Court was appointed as Amicus Curiae to conduct the case for the appellant and the Registry was directed to supply the paper book to Mr. Das by 07.08.2020 and to intimate him that the matter would be taken up for hearing in the week commencing from 10.08.2020. Accordingly, Registry supplied the paper book to Mr. Das. On 13.08.2020 when the matter was again listed for hearing and it was taken up through video conferencing, Mr. Das, learned Amicus Curiae was ready for hearing but the learned counsel for the appellant who had filed the criminal appeal in the year 1988 appeared and sought for two weeks adjournment which was refused and accordingly, the hearing was taken up and concluded on that date itself and the judgment was reserved. Mr. Das, learned Amicus Curiae took time till 17.08.2020 to file his written note of submission and accordingly he also filed the same.

    In the case of Bani Singh and others -Vrs.- State of Uttar Pradesh reported in 1996 (II) Orissa Law Reviews (SC) 216, a three Judge Bench of the Hon'ble Supreme Court was called upto to decide the question as to whether the High Court can dismiss an appeal filed by the accused-appellant against the order of conviction and sentence issued by the trial Court, for non-prosecution. Considering the provisions under sections 385 and 386 of Cr.P.C., it was held that the law does not envisage the dismissal of appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. It was further held that the law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. If the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. The ratio laid down in the case of Bani Singh (supra) was followed in the case of K.S. Panduranga -Vrs.- State of Karnataka reported in (2013)3 Supreme Court Cases 721 wherein it was held that the High Court cannot dismiss an appeal for non-prosecution simplicitor without examining the merits and the Court is not bound to adjourn the matter if both the appellant or his counsel/lawyer are absent. The Court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so. It can dispose of the appeal after perusing the record and judgment of the trial Court. If the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the appellant-accused if his lawyer is not present, and if the lawyer is absent and the Court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the Court from doing so.

    In the case of Shridhar Namdeo Lawand-Vrs.-State of Maharastra reported in 2013 (10) SCALE 52, a three Judge Bench of the Hon'ble Supreme Court held that it is the settled law that Court should not decide criminal case in the absence of the counsel for the accused, as an accused in a criminal case should not suffer for the fault of his counsel and the Court should, in such a situation must appoint another counsel as an amicus curiae to defend the accused.

    In the case of Christopher Raj -Vrs.- K.Vijayakumar reported in (2019)7 Supreme Court Cases 398, it was held that when the accused did not enter appearance in the High Court, the High Court should have issued second notice to the appellant-accused or the High Court Legal Services Committee to appoint an Advocate or the High Court could have taken the assistance of Amicus Curiae. When the accused was not represented, without appointing any counsel as Amicus Curiae to defend the accused, the High Court ought not to have decided the criminal appeal on merits.