Cr.P.C. S.167(2): Statutory right should not be defeated by keeping application pending so that right which had accrued is extinguished-Union Of India Vs. Nirala Yadav, (2014) 8 SCALE 9 : (2014) 9 SCC 457 : 2014 AIR SCW 4298
Cr.P.C. S.389: In case of post conviction bail under Section 389, Cr.P.C, it is mandatory that appellate Court gives an opportunity to public prosecutor for showing cause in writing against such release. Suspension of sentence and release on bail. Appellate Court may even without hearing public prosecutor, decline to grant bail. However, in case appellate Court is inclined to consider release of convict on bail, public prosecutor shall be granted opportunity to show cause in writing as to why appellant be not released on bail. Despite such opportunity being granted to public prosecutor, in case no cause is shown in writing, appellate Court shall record that State has not filed any objection in writing. This procedure is intended to ensure transparency, to ensure that there is no allegation of collusion and to ensure that Court is properly assisted by State with true and correct facts with regard to relevant considerations for grant of bail in respect of serious offences, at post conviction stage -Atul Tripathi Vs. State Of U.P., (2014) 9 SCC 177: 2014 AIR SCW 4326
PUBLIC PROSECUTOR
Cr.P.C. S.301: Prosecution ought not to be persecution: In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor only. Permission to counsel appointed by the aggrieved to conduct the prosecution cannot be granted. Such Counsel can at the most play a role like a junior advocate. -Shiv Kumar Vs. Hukam Chand and another, (1999) 7 SCC 467. (The Apex Court agreed with the following observation of Andhra Pradesh in Medichetty Ramakistiah and Others Vs. The State of Andhra Pradesh, AIR 1959 AP 659 “A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such Courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party.”
Cr.P.C. S.231: Public Prosecutor can interview the witness before hand: The situation in a case where the prosecution cited categories of witnesses of the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the public prosecutor’s duty to the Court may require him to produce witnesses from the later category, also subject to his discretion to limit to one or two among them. But if the public prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in court about that fact and skip the witness from being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness before hand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in Court. -Banti alias Guddu Vs. State of Madhya Pradesh, AIR 2004 SC 261.
Evidence Act S.154: Cross-examination and Confrontation: Public Prosecutor Conceding whether a statement was found or not was deprecated: One curious practice not known to law adopted by him was that whenever a witness was asked about an omission with reference to the statement of the witness recorded by the investigating officer under Section 161, Cr.P.C., the learned Public Prosecutor would make a statement whether the statement referred to in evidence was to be found or was not to be found in the statement under Section 161, Cr.P.C. and no attempt was made to prove the omission. Such concession for proof of contradiction or omission lacks support of law and is likely to be unfair to the witness in that when the investigating officer is questioned with regard to the contradiction or omission, a further opportunity will be available to him to explain the contradiction or omission.- Muthu Naicker and others Vs. State of Tamil Nadu, AIR 1978 SC 1647.
DELAY IN RECORDING STATEMENT OF THE WITNESS BY THE I.O.
Cr.P.C. S.231: Unless the Investigating Officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be said down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfered with the conclusion.--Banti alias Guddu Vs. State of Madhya Pradesh, AIR 2004 SC 261.
CONSENT TO WITHDRAW PROSECUTION (S.321, Cr.P.C.)
Cr.P.C. S.321: Withdrawal from prosecution & Role of Court: Court is required to give an informed consent. Court cannot give such consent on a mere asking. It is expected of Court to consider material on record to see that application had been filed in good faith and it is in public interest and justice and whether such withdrawal would advance cause of justice.-Bairam Muralidhar vs. State of Andhra Pradesh, (2014) 9 SCALE 62 : JT 2014 (8) SC 519 : 2014 AIR SCW 4533
Cr.P.C. S.321: In spite of the fact that the Government has ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the Court has to be satisfied, after considering all that material, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice.- Abdul Karim Vs. State of Karnataka and others, AIR 2001 SC 116: (2001) CriLJ SC 148.
Cases in which consent for withdrawal was justified: Accused was a dreaded criminal. He set a charter of demands for release of an abducted film actor. He and his associates were out to demoralise the police force. They were acting in consultation with secessionist organizations.- Abdul Karim Vs. State of Karnataka and others, AIR 2001 SC 116
WORDS AND PHRASES
“Prosecution” means entire proceedings till judgment of Court is delivered.
“Immunity from prosecution” means freedom from punishment during a proceedings instituted and carried on by law.
LAW OFFICERS
Need not wait for the opinion of District Magistrate, to avoid delay in appeal: Law Officers' Rules, 1939 Rule 50: Amicus curiae. It has been submitted that although on the proposal initiated by the Public prosecutor for preferring appeal against order of acquittal the State Government takes the final decision, the State Government has felt that the opinion of the District Magistrate being in overall charge of the district is necessary for taking appropriate decision by State Government. The State Government should issue necessary instruction to the District Magistrate that the District Magistrate would send its views on the proposal as expeditiously as practicable so that proposed appeal may be filed within the period of limitation. If such opinion of the District Magistrate is not received by the appropriate Legal Department of the State within a reasonable time, the concerned Legal Department will not wait for the response of the District Magistrate on the proposal given by the Public prosecutor and a final decision will be taken by the State Government even in the absence of opinion of the District Magistrate so that the proposed appeal is not barred by limitation. Needless to point out that the State Government should take final decision within such time frame so that some reasonable time is left with the Government counsel to draw up the memorandum of appeal and to present appeal petition before the Court within the period of limitation-State of Gujarat Vs. Ratilal Laljibhai Tandol and Another, (1997) 7 SCC 227.
APPEAL AGAINST ACQUITTAL
(S.378, Cr.P.C.)
Section 378(1)(a) provides that in any case, if an order of acquittal is passed by a Magistrate in respect of a cognizable and non-bailable offence the District Magistrate may direct the Public Prosecutor to present an appeal to the court of Sessions.
Sub-section (1)(b) of Section 378 provides that in any case, the State Government may direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court not being an order under Clause (a) or an order of acquittal passed by the Court of Session in revision.
As per Section 378(1)(a) & (b), the State Government cannot direct the Public Prosecutor to file an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence because of the categorical bar created by Section 378(1)(b). Such appeals against orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence can only be filed in the Sessions Court at the instance of the Public Prosecutor as directed by the District Magistrate.
Section 378(1)(b) uses the words "in any case" but leaves out orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence from the control of the State Government. Therefore, in all other cases where orders of acquittal are passed appeals can be filed by the Public Prosecutor as directed by the State Government to the High Court.
Sub-section (2) of Section 378 refers to orders of acquittal passed in any case investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any other agency empowered to make investigation into an offence under any Central Act other than the Code. This provision is similar to Sub-section (1) except that here the words 'State Government' are substituted by the words 'Central Government'.
As per Section 378(3) appeals against orders of acquittal which have to be filed in the High Court Under Section 378(1)(b) and 378(2)(b) of the Code cannot be entertained except with the leave of the High Court.
Sub-section (4) of Section 378 makes provision for appeal against an order of acquittal passed in case instituted upon complaint. If the complainant makes an application to the High Court and the High Court grants special leave to appeal, the complainant may present such an appeal to the High Court. This Sub-section speaks of 'special leave' as against Sub-section (3) relating to other appeals which speaks of 'leave'. Thus, complainant's appeal against an order of acquittal is a category by itself.
The complainant could be a private person or a public servant. This is evident from Sub-section (5) which refers to application filed for 'special leave' by the complainant. It grants six months period of limitation to a complainant who is a public servant and sixty days in every other case for filing application.
Sub-section (6) states that if in any case complainant's application for 'special leave' under Sub-section (4) is refused no appeal from order of acquittal shall lie under Sub-section (1) or under Sub-section (2). Thus, if 'special leave' is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate not the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation. -Subhash Chand Vs. State (Delhi Administration), AIR 2013 SC 395.
ATTENDENCE OF THE I.O. DURING THE TRIAL
Cr.P.C. S.156 and 311: Presence of Investigating Officer during trial at the time of trial is must. It is his duty to keep witnesses present. If there is failure on part of any witness to remain present, it is the duty of the Court to take appropriate action including issuance of bailable/non-bailable warrants as the case may be. When the prosecution's evidence is closed on the ground that no adjournment application was filed by the prosecutor, the Court can still summon witnesses under section 311.-Shailendra Kumar Vs. State of Bihar, AIR 2002 SC 270.
Summoning additional accused
Criminal Procedure Code, 1973—Sections 209, 482, 207, 208, 2(g), 173, 228 and 319: The power under. Section 209, Cr. P. C. to summon a new offender was not vested with a Magistrate on the plain reading of its text as well as proceedings before him not being an ‘inquiry’ and material before him not being ‘evidence’. When such power was not vested, his refusal to exercise it cannot be corrected by a Court of Revision, which may be the Court of Session itself awaiting the case on commitment, merely on the specious ground that the Court of Session can, in any event, (sic) the accused to stand trial, along with the accused meant to be committed for trial before it. Presently it is plain that the stage for employment of Section 319, Cr. P. C. has not arrived. The Order of the Court of Session requiring the Magistrate to arrest and logically commit the appellant along with the accused proposed to be committed to stand trial before it, is patently illegal and beyond jurisdiction. Since the Magistrate has no such power to add a person as accused under Section 319, Cr. P. C. when handling a matter under Section 209, Cr. P. C., the Court of Session, in purported exercise of revisional powers cannot obligate it to do so.-Raj Kishore Prasad Versus State of Bihar and another, AIR 1996 SC 1931
Appreciation of Evidence
Motive: Where there is direct evidence of acceptable nature regarding commission of offence the question of motive cannot loom large in the mind of Court.-State of Andhra Pradesh Versus Bogam Chandraiah and another, AIR 1986 SC 1899.
Non-examination of the I.O. per se does not vitiate a criminal trial:-“It will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straight jacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial.”Bihari Prasad Vs. State of Bihar, AIR 1966 SC 2905:
Sentence
No leniency: In a case of S.302, I.P.C. for massacre of 10 persons, it was observed that Any leniency shown in the matter of sentence would not only be misplaced but will certainly give rise to and foster a feeling of private revenge among the people leading to destabilisation of the society.-Munawar Harun Shah Vs. State of Maharashtra, AIR 1983 SC 585
Special Reasons for less than minimum sentence: The words ‘special reasons’ in the context in which they are used could only mean special to the accused on whom sentence is being imposed. The court has to weigh reasons advanced in respect of each individual accused whose case is taken up for awarding sentence. The word ‘special’ has to be understood in contradistinction to word ‘general’ or ‘ordinary’.Thus anything which is common to a large class governed by the same statute cannot be said to be special to each of them. It would thus unquestionably appear that “special reasons” in the context of sentencing process must be special to the accused in the case or special to the facts and the circumstances of the case in which the sentence is being awarded. -Meet Singh Versus The State of Punjab, AIR 1980 SC 1141
Probation of Offenders Act s.6(1): Age to be considered is as on the date of consideration and not the date of offence. Ramji Missar and another Vs. State of Bihar, AIR 1963 SC 1088.
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