inherent powers becomes necessary as the trial
courts have no power to look into
unimpeachable material which could show that
trial is unwarranted & that such material can
be noticed only by the High Court in exercise
of inherent powers. This argument does not
seem to be jurisprudentially sound. The right
of the accused to silence need not be equated
Page 167 of 187to obligation to remain silent. It is not
clear as to how a person who is to face a
trial could be forced to remain silent.
Historical basis for the right of silence
recognised in a person accused is the torture
which he was subjected to in making
confessions. Therefore he cannot be forced to
speak. He was also not to be forced to
disclose his defence in advance of trial to
prevent his being prejudiced by the
prosecution bringing up fresh evidence to book
him, rather than put him to trial on the basis
of evidence collected before a charge-sheet is
filed. But when he has the protection of the
court, should he so desire, why could he not
state his defence? There is a good chance that
trial may be obviated and in any case
curtailed if he is, not forced, but permitted
to speak out. As an illustration one may take
case of voluntarily causing hurt. The accused
Page 168 of 187may admit that he did cause hurt but set up
right of private defence, in which case need
to record much of evidence could be curtailed.
In any case it defies logic that an accused
who cannot be heard till a charge is framed by
courts below has the same right when before
the High Court on the specious plea that if
there is no provision in the code to do
something, it can be done by invoking inherent
powers.
89. The learned senior counsel for the
applicants submitted that this issue is no
longer res integra and a Three Judge Bench of
the Supreme Court has already ruled to the
contrary in State of Orissa v. Debendra Nath
Padhi, reported in (2005) 1 SCC 568.
90. Even so it may not be necessary to gag
persons accused in a bulk of matters which are
Page 169 of 187landing up in this court from processes issued
for offence punishable under section 138 of
the Negotiable Instruments Act. In these cases
the complainant files an affidavit in lieu of
his evidence & since a full bench of this
court has already ruled that such affidavit is
a substitute for verification to be recorded
when a complaint is filed, even at the stage
of recording plea, there is evidence or
circumstances appearing in evidence- against
the accused. Evidence does not mean only a
completed deposition after cross examination,
since there could be many cases where there
may not be any cross examination. In warrant
trials instituted on complaints at the stage
of framing of charge there is already
precharge evidence of the complainant
available which has to be of such quality
that if un-rebutted, it would warrant
conviction of the accused. In all types of
Page 170 of 187trial by using the provisions of Sections 292
to 296 of the Code, there could be evidence
against the accused even before oral
examination of witnesses begins. Section 313
of the Code enables a trial court to examine
the accused on the circumstances appearing
against him in evidence at any stage, apart
from the duty to undertake such examination at
the end of the trial. If the courts make
proper use of this power, the accused could
have an opportunity to say something in his
defence, should he so wish, which may curtail
trial. Since first part of section 313 of the
Code is as yet not rendered a dead letter,
there is no reason why this tool may not be
used. If intelligently used a large number of
litigants may not be required to rush to this
court.
91. The following directions to trial
Page 171 of 187Courts and Session Courts, which merely reiterate the legislative diktat and what has
been already stated in several Judgments and
instructions, and only additionally emphasize
the use of technology available to ameliorate
the sufferings of persons who have to come
Courts, should be sufficient to set at rest
the bogey that unless power under Section 482
of the Code is used, the miseries of litigants
would not come to an end. These directions,
in so far as they are not inconsistent with
any law, rule, judgment of the Supreme Court
or a division bench of this court, may be
followed by the Courts scrupulously in
discharging their functions, without being
understood to have encroached on their
judicial discretion wherever recognized . They
are not entirely inflexible. In a given case
the Courts may record why deviation became
necessary.
Page 172 of 187(A) At the threshold while directing
investigation or issuing process:
(i) In private complaints or even police
investigations into offences arising
out of breach of contractual obligations
of parties, the basic ingredient of
allegation of existence of dishonest
intention at the time of entering into
contract, or development of such
dishonest intent must be first looked
into before exposing such persons to
process of Criminal Court.
(ii) Cases of persons who vanish with money
of several investors after promising
them with high returns of schemes of
providing freebies must be distinguished
from those of established businessmen
against whom there is allegation of
breach of a single contract or even
series of contracts between same parties
which may be the result of business
compulsions. The former need a tough
treatment and the latter need to be
initially looked at as mere breaches of
contract, unless element of cheating is
apparent.
(iii) Magistrates must realize that directing
an investigation under Section 156(3) is
a more serious matter than issuing
process, since after an investigation is
ordered, it would be the police officer,
who would control further actions, while
when a process is issued the magistrate
Page 173 of 187would have control. Unless, it is
absolutely necessary to involve police
in cracking the alleged crime, resort to
Section 156(3) may be avoided.
(B) Grant of bail and preventing harassment:
While Magistrates and Sessions Courts
must exercise their discretion having due
regard to facts & circumstances of each case,
the following principles may be borne in mind
while dealing with prayers for bail.
(i) Ordinarily, police are expected to carry
out investigation without curtailing the
liberty of a suspect. A charge sheet
could be filed after gathering
sufficient evidence even without
arresting the accused, ensuring that he
remains present in the Court. Necessity
of arrest must be justified by good
reasons and arrest cannot be a matter of
course only because an offence is
registered. Police have power of arrest
under section 41 of the Code & not the
duty to arrest in every case.
(ii) Persons against whom a crime is
registered but not yet arrested could
surrender before the Court concerned and
the magistrate could after hearing the
investigating officer decide as to how
to deal with such person.
(iii) While admitting a person to bail (or
refusing bail) apart from requirements
of relevant provision, what a Court may
Page 174 of 187
see is whether the person concerned
would be available for trial and whether
he has a potential for tampering with
evidence. It may not be appropriate to
look at every person, who comes before
the Court as a prospective absconder.
(iv) Orders directing that passport should be
deposited may be avoided and instead
condition requiring the person not to
leave India without the leave of the
Court may be enough.
(v) Verification of sureties could be done
on line by accessing data about
properties maintained by the revenue
department/Survey Department of State,
rather than making references to revenue
authorities.
(vi) If bail is granted the attempt should be
to see that the person can avail of the
order quickly, rather than being made to
languish in jail.
(C) Trials and proceedings after process is
issued:
(i) On the first day of appearance a
tentative time table for disposal of
case should be drawn up, preferably in
consultation with parties and lawyers
and recorded in the order
sheet/roznama, with copies being given
to parties. This would be entered in
Court Information System and would be
displayed on the website. The time
Page 175 of 187table should be adhered to unless
deviations are unavoidable in which
case revised schedules would be drawn
up.
(ii) Deviations from the schedule at the
request of whether prosecution or the
accused may come at a cost, not only to
be paid to adversary but to the State
also for the expenditure incurred in
listing and adjourning the case.
(iii) In summons cases on police reports,
whenever necessary recourse may be had
to powers under Section 258 of the Code
of Criminal Procedure for stopping
proceedings.
(iv) In warrant trials, unless standards
fixed for framing charge are complied
charge need not be framed.
(v) In summary/summons cases occasions for
matters to appear before the Court may
not ordinarily exceed four and in
warrant/Session cases may not exceed
six & seven respectively.
(vi) Feasibility of examining medical and
police officers via Video Conferencing
should be thought of and delays on
account of their absence should be
avoided. If program of trials could be
drawn up at the inception these
officers could be told well in advance
about the date on which they would be
expected to appear before the Court, so
that they could keep those days free.
Page 176 of 187(vii) All Court process should be posted on
website so that persons concerned can
know of the process, where ever they
may be.
(viii)Enough publicity should be given through
the Legal Services Authority to the
availability of information about trial
programs & witnesses summoned on the
website of the Court, so that should a
witness so desire, whether he actually
receives summons or not, on finding from
the website that his presence is
required he may appear before the Court.
Mischievous attempts to prevent
victims/material witnesses from
appearing before the Court could be thus
avoided. Help of local NGOs could be
taken to educate common man in this
behalf.
(ix) Insistence upon presence of accused as a
matter of form may be avoided and unless
there is a question of identification,
persons accused could be exempted from
personal appearance.
(x) Amended provisions of Section 313 of the
Code of Criminal Procedure could be
fully utilized.
(xi) Non appearance of witnesses duly served
may be sternly dealt with by invoking
powers under Section 350 of the Code or
even by making an example of a
recalcitrant police officer by seeking
bonds from him for appearance on all
dates on which his evidence is required
in other cases (which would be known to
Page 177 of 187the Court, as time tables of all cases
would have been already drawn up).
92. The Registry of this court may
consider if the guidelines mentioned above
could be issued in form of administrative
instructions and may, subject to requisite
administrative approvals from the Honorable
the Chief Justice, take steps, among others,
to:
(i) provide in the Court information system
the facility for drawing up programs for every
case the moment it is instituted,
(ii) provide for display & search of all trial
programs & all court processes on the web site
of courts concerned,
(iii) Ensure that trial courts have access to
property data bases of the State for verifying
sureties on line,
(iv) ask Police & Medical/Health authorities
to create adequate facilities at both ends
Courts & hospitals/ police offices -for
examining doctors & high ranking police
officers via video conferencing.
Page 178 of 18793. All these steps if earnestly taken
would reduce the rigors for litigants who
approach criminal courts & may obviate the
need to have recourse to extraordinary remedy
of invoking inherent powers. In any case
should there be an occasion, a litigant could
seek revision of orders passed, or seek
discharge at appropriate stage.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.584 OF 2010
M/s. Pricewaterhouse Coopers
Pvt. Ltd.,
- Versus -
1. Mr.C. Anthony Louis
2. The State of Maharashtra
PRONOUNCED ON: 22ND MARCH, 2012
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