The PSS Act, 2007 provides for the regulation and supervision of payment systems in India and designates the Reserve Bank of India (Reserve Bank) as the authority for that purpose and all related matters. The Reserve Bank is authorized under the Act to constitute a Committee of its Central Board known as the Board for Regulation and Supervision of Payment and Settlement Systems (BPSS), to exercise its powers and perform its functions and discharge its duties under this statute.  The Act also provides the legal basis for “netting” and “settlement finality”. This is of great importance, as in India, other than the Real Time Gross Settlement (RTGS) system all other payment systems function on a net settlement basis.

Section 2(1) (i) of the PSS Act 2007 defines a payment system to  mean a system that enables payment to be effected between a payer and a beneficiary, involving clearing, payment or settlement service or all of them, but does not include a stock exchange (Section 34 of the PSS Act 2007 states that its provisions will not apply to stock exchanges or clearing corporations set up under stock exchanges).  It is further stated by way of an explanation that a “payment system” includes the systems enabling credit card operations, debit card operations, smart card operations, money transfer operations or similar operations.
All systems (except stock exchanges and clearing corporations set up under stock exchanges) carrying out either clearing or settlement or payment operations or all of them are regarded as payment systems. All entities operating such systems will be known as system providers. Also all entities operating money transfer systems or card payment systems or similar systems fall within the definition of a system provider. To decide whether a particular entity operates the payment system, it must perform either the clearing or settlement or payment function or all of them.

Under the PSS Act, 2007, dishonor of an electronic fund transfer instruction due to insufficiency of funds in the account etc., is an offence punishable with imprisonment or with fine or both, similar to the  dishonor of a cheque under the Negotiable Instruments Act 1881. Subject to complying with the procedures laid down under the PSS Act, 2007, criminal prosecution of defaulter can be initiated in such cases. This provision was introduced to discourage dishonour of   electronic payment instructions. (Section 25 of the Act).

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(CRL) 696/2008

DELHI COMMISSION FOR WOMEN ——–Petitioner

Through Ms. Aparna Bhat, Ms. Madhulika Mohta,

Advocates

Versus

DELHI POLICE ——–Respondent

Through Ms. Mukta Gupta, Standing Counsel for the

Coram:

HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE NEERAJ KISHAN KAUL

O R D E R

  1. 4.2009

Pursuant to the order dated 10.9.2008, Delhi Commission for

Women has filed draft guidelines to enable the authorities to

effectively tackle sexual offences including incest and child sexual

abuse offences. The guidelines have been prepared in consultation

with all departments, police and the judges of Delhi Higher Judicial

Service. A modified draft has also been placed on record keeping in

view of the suggestions made by the State as well as the Registry of

the High Court. Having considered the modified draft and also the

submissions made at the Bar, we issue the following guidelines to

police, hospitals/ doctors, Child Welfare Committees, Sessions Court, Magistrate Courts, Prosecutors and other concerned authorities. The

guidelines enumerated hereinafter shall be read in the context of the

following definitions:

“a. “Crises Intervention Centre” means a recognized agency,

appointed by the Delhi Police and the Delhi Commission for Women for

responding to calls of sexual assault at t6he police station to provide

counseling and other support services to victims of rape;

b. “Expert” means a person who is qualified and has experience

in dealing with cases of sexual violence;

c. “Guardian” includes besides the natural guardian, support

person or any person appointed by the Child Welfare

Committee for a specified period to take care of the victim

during the pendency of the trial;

d. “Rape Crises Cell” means a cell established under the Delhi

Commission for Women to provide legal assistance in the

cases of sexual assault who would coordinate the Crises

Intervention Centres and provide legal support to the victim

and her family;

e. “Support Person” means a person working in the capacity of a

counselor working with a recognized and registered crises

intervention centres, approved by the Delhi Commission for

Women; f. The expression “offence for the purpose of these guidelines

shall mean and include offences of rape, attempt to rate and

unnatural offences.

1) POLICE

a. Every Police Station shall have available round the clock a lady

police official/ officer not below the rank of Head Constable.

b. As soon as a complaint of the offence is received, the duty

officer receiving the complaint/ information shall call the lady

police official/ officer present at the police station and make the

victim and her family comfortable.

c. The duty officer, immediately, upon receipt of the complaint/

information intimate to the “Rape Crises Cell” on its notified

helpline number.

d. After making preliminary inquiry/ investigation, the Investigation

Officer along with the lady police official/ officer available, escort

the victim for medical examination.

e. The Assistant Commissioner of Police shall personally supervise

all investigation into the office.

f. The statement of victim shall be recorded in private, however,

the presence of family members while recording statement may

be permitted with a view to make the victim comfortable. In incest cases where there is a suspicion of complicity of the family

members in the crime such family members should not be

g. The Investigating Officer shall bring the cases related to “child in

need of care and protection” and the child victim involving in

incest cases to the Child Welfare Committee.

h. The accused should not be brought in the presence of victim

except for identification

i. Except the offences which are reported during the night no

victim of sexual offence shall be called or made to stay in the

police station during night hours. The Social Welfare

Department of the Government of NCT of Delhi shall ensure that

Superintendents of the Foster Hose for Women will provide

necessary shelter till formal orders are secured from the

concerned authorities.

j. The Investigating Officer shall endeavor to complete the

Investigation at the earliest and he shall ensure that in no case

the accused gets the undue advantage of bail by default as per

the provisions of Section 167 Cr.P.C. It is desirable that in cases

of incest the report under Section 173 Cr.P.C. is filed within 30

days. k. Periodically training to deal with rape cases should be provided

to the police officers, juvenile police officers, Welfare Officers,

Probationary Officers and Support persons. A Training Module

be prepared in consultation with the Delhi judicial Academy.

l. The Police should provide information to the Rape Crisis Cell

regarding the case including the arrest and bail application of the

accused, the date of filling of the investigation report before the

Magistrate;

m. The Police should keep the permanent address of the victim in

their file in addition to the present address. They should advise

the victim to inform them about the change of address in future.

n. Subject to the outcome of the W.P.(C) 2596/2007 titled Rajeev

Mohan Vs. State, pending before this Hon’ble Court in cases

where the victim informs the police about any threats received

by the accused family, the concerned DCP should consider the

matter and fresh FIR must be registered under Section 506 of

the Indian Penal Code.

II) DOCTORS/ HOSPITALS/ HEALTH DEPARTMENT

a. Special rooms to be set up in all government hospitals for

victims to be examined and questioned in privacy. b. A sexual assault evidence collection kit or sexual assault

forensic evidence (SAFE) kit consisting of a set of items used by

medical personnel for gathering and preserving physical evidence

following a sexual assault should be available with all the

Government Hospitals. A sexual assault evidence collection kit

should contain commonly available examination tools such as:

  • Detailed instructions for the examiner
  • Forms for documentation
  • Tube for blood sample
  • Urine sample container
  • Paper bags for clothing collection
  • Large sheet of paper for patient to undress over
  • Cotton swabs for biological evidence collection
  • Sterile water
  • Glass slides
  • Unwaxed dental floss
  • Wooden stick for fingernail scrapings
  • Envelopes or boxes for individual evidence samples
  • Labels

Other items needed for a forensic/ medical exam and treatment

that may be included in the rape kit are: • Woods lamp

  • Toluidine blue dye
  • Drying rack for wet swabs and/or clothing
  • Patient gown, cover sheet, blanket, pillow
  • Needles/ syringes for blood drawing
  • Speculums
  • Post-it Notes used to collect trace evidence
  • Camera (35 mm, digital, or Polaroid) film, batteries.
  • Medscope and/ or colcoscope
  • Microscope
  • Surgilube
  • Acetic acid diluted spray
  • Medications
  • Clean clothing and shower/ hygiene items for the victims

use after the examination

c. A detailed description of “Assault/ Abuse History” be

mentioned by the attending doctor on the MLC of the victim;

The doctor must ensure that the complete narration of the

history of the case detailed by the victim and her escort is

d. After the examination is complete the victim should be

permitted to wash up using toiletries provided by the hospital. The hospital should also have clothing to put on if her own

clothing is taken as evidence.

e. All hospitals should co-operate with the police and preserve

the samples likely to putrefy in their pathological facility till

such time the police are able to complete their paper work for

dispatch to forensic lab test including DNA.

III) CHILD WELFARE COMMITTEE

a) In cases of incest and child in need of care and protection,

the Child Welfare Committee shall examine the victim to

ascertain the nature of support she is getting from her

family and initiate steps for ensuring best interest of the

child. In such cases the Child Welfare Committee shall

conduct a home study to assess and ensure the safety of

the victim;

b) In cases where the child is placed in the shelter, the

Committee shall monitor the condition of the victim

c) In cases of incest, while the victim stays in the foster

home the family members should be allowed to meet the

victim only in the presence of the support person and care

be taken by the staff of the home that the meeting be not used to pressurize/ influence the victim to change for

d) Child Welfare Committee shall ensure that rehabilitation

facilities are provided to the victim in appropriate cases.

In cases of a prolonged stay, the victim should be given

educational and vocational training in order to enable the

victim to support herself after she leaves the foster home.

The Social Welfare Department and Child Welfare

Committee will develop and implement Foster Care

Services within two months.

e) Before passing any order of restoration of custody of child

to the family, the Child Welfare Committee shall conduct

an inquiry to assess the suitability of the victim being

restored to the family. The custody of the child will be

altered by the Child Welfare Committee only after

consultation with the stakeholders;

f) Child Welfare Committee shall ensure that the victim Is

provided with necessary medical and psychological aid

during her stay in foster home for the purpose of her

rehabilitation; g) Child Welfare Committee shall maintain a list of all registered

Foster Homes providing residential support, special services and

rehabilitation facilities to the victim.

IV PROSECUTORS

a) In cases where the child is placed in a shelter following the

orders of the Child Welfare Committee or a Metropolitan Magistrate,

the application seeking custody of the child made by the

parents/relatives of the victim should not be acceded to till such time,

the Public Prosecutor gets the status of the applicants verified with the

Rape Crisis Cell and also call for the records of the Child Welfare

Committee if it is not available.

V) COURTS

a) The Magistrate unless there are compelling reasons shall record

the statement of the victim under Section 164 Cr.P.C. on the day on

which the application is moved by the Investigating Officer. The

Magistrate before proceeding to record the statement shall ensure that

the child is made comfortable and she is free from any extraneous

b) An endeavour shall be made to commit such cases of offence to

the Court of Sessions expeditiously and preferably within 15 days.

c) The Hon’ble Supreme Court in Delhi Domestic Working Women

Forum Vs Union of India, 1995 (1) SCC 14 and reiterated by this

Hon’ble Court in Khem Chand Vs State of Delhi 2008 (4) JCC 2 497

had directed that the victim be provided with a counsel. The existing

practice of the victims being represented by a counsel from Rape Crisis

Cell may continue. In cases where the victim has a private lawyer,

she may be allowed to retain the private lawyer.

d) That as far as possible chief examination and cross examination

of the victim must be conducted on the same day;

e) The Additional Session Judge/District Judge shall maintain a

panel of psychiatrists, psychologists and experts in sign language etc.,

who would assist in recording the statement of witnesses as and when

requested by the Sessions Courts.

f) If it is brought to the notice of the Court from a support

person/Rape Crisis Cell Advocate/victim, regarding threats received by

the victim or her family members to compromise the matter, the judge

shall immediately direct the ACP to look into the matter and provide an

action taken report before the Court within 2 days. The Court must

ensure that protection is provided to the victim and her family.

g) In cases in which the witness is sent back unexamined and is

bound down, the Court shall ensure that at least the traveling

expenses for coming to and from for attending the Court are paid.

VI) SUPPORT SERVICES

a) A 24 hour helpline that can be contacted by the victims, police or

any member of the public will be created. The Commission shall notify

and widely publish its existing telephone number and that number will

be used till such time a toll-free number is made available.

b) The Rape Crisis Cell will have with them accredited support

services for shelter, social workers, counselors, mental health

professional, lawyers;

c) The list of these accredited support services will be provided to

the Prosecution Branch, the Commissioner of Police as well as to the

Registrar of this Hon’ble Court;”

2. The Commission shall prepare a brochure which will contain

these guidelines along with summary and directions passed by the

Supreme Court and this Court in Delhi Domestic Working Women’s

Forum Vs Union of India 1995 (1) SCC 14, Sakshi Vs Union of India

(2004) 5 SCC 518, Chairman Railway Board Vs Chandrima Das

(2000) 2 SCC 465 Sheeba Abidi Vs State & Anr. 113 (2004) DLT

125, Khem Chand Vs State of Delhi, 2008 (4) JCC 2,497, X(Ms.) Vs

State of NCT and Anr 149 (2008) DLT 194. The brochure shall be

prepared in consultation with the Registrar General of this Court and

learned Standing Counsel for the State Government so that it may be

circulated to all the departments/police/courts/ Child Welfare Committees/Hospitals/doctors/prosecutors to enable effective

implementation of the guidelines.

3. The brochure shall be maintained and kept with all the agencies/

authorities dealing with the victims of sexual assault and the

guidelines contained therein shall be strictly followed and

4. A copy of this order shall be circulated to all the Delhi

Government hospitals/Central Government hospitals and MCD

hospitals for enforcement of the guidelines and directions contained in

part II of the guidelines. The concerned Medical Superintendents of

the respective hospitals shall submit an action taken report to the

Registrar General of this Court within a period of two months. In so

far as the Child Welfare Committees are concerned, they shall file

quarterly action taken report(s) to the juvenile Justice Committee of

Delhi High Court.

5. Women’s Commission shall prepare a training module for

training of police officers, juvenile police officers, welfare officers,

probationary officers and support persons in consultation with the

Delhi Judicial Academy. The Principal, Police Training College, Delhi

shall hold periodical training programmes and ensure that all

concerned persons undergo training/sensitization programme in one

6. Learned Standing Counsel for the State Ms. Mukta Gupta states

that the draft rules for the foster care services have been prepared

and the rules will be notified within a period of two months from today. 7. We are informed by the counsel for Delhi Women Commission

that pursuant to the directions issued by the Supreme Court in Delhi

Domestic Working Women’s Forum Vs Union of India (Supra)

the Commission has submitted a draft scheme to the Delhi

Government for payment of compensation to victims of rape which is

under consideration of the State Government. The State Government

is directed to consider the draft scheme submitted by the Commission

and file a status report in this Court within a period of two months.

List on 29th July, 2009 for further directions.

CHIEF JUSTICE

 

NEERAJ KISHAN KAUL, J

APRIL 23, 2009

Flagging the issue in a judgment on Saturday, Justice Kailash Gambhir said rape cases are being used as “a weapon for vengeance and vendetta” to harass and even force a boy to marry.

While granting anticipatory bail to a man facing rape charges from a woman claiming to be his wife, HC added that in many cases woman first has consensual sex but later files rape case against her boyfriend when the relationship breaks up in order to force him to get married, making not only “mockery” of the marriage but also inflating the statistics of rape cases.

“Many of the cases are being reported by those women  who have consensual physical relationship with a man but when the relationship breaks due to one reason or the other, the women use the law as a weapon for vengeance and personal vendetta to extort money and sometimes even to force the boy to get married to her,” HC said advocating extreme caution to judges who should “cautiously examine the intentions of the girl to find out whether the rape complaint is genuine or has malafide motives”.

Earlier this week, Justice G P Mittal and Justice Suresh Kait in separate judgments quashed FIR’s relating to rape of a minor and gang-rape of a private executive respectively, after they found too many discrepancies or contradictions in victims’ statements. The common theme in all three judgments was the advice to courts not to get swayed by mere allegations of rape, howsoever heinous, but sift through evidence before convicting anyone.

Justice Gambhir, while dealing with the anticipatory bail plea pointed out that for a period of more than two years, the woman enjoyed physical intimacy with the boy. She lodged an FIR alleging rape only when he spurned her offer of marriage when she took help of the police to forcibly marry him even though the marriage was never consummated, as per the FIR.

In her complaint, she justified the delay on the grounds she was threatened and blackmailed by the boy and his kin to keep quiet otherwise she might have been killed. Being the victim of such a reprehensible crime, one should lodge a complaint immediately, or within a reasonable period of time unless there are sufficient reasons to explain the long delay, the court said.

“Delay in lodging an FIR, in such like cases can ultimately diminish the chances of conviction, as due to such delay, the medical evidence and the other circumstantial evidence may rarely be available to support the case of prosecution,” it said.

While acknowledging there is a manifold increase in the crime concerning rapes, HC said all the rape cases which are filed have their “own individual story and factual matrix”. It agreed most of the cases may be genuine, wherein the girl is a victim of the horrifying crime, or has been forced, blackmailed, threatened to enter into physical relationship with a male on the false pretext of marriage with the sole intent to physically exploit the girl “but there may be cases where both persons out of their own will and choice, develop a physical relationship”.

 

Sources: http://timesofindia.indiatimes.com/india/Women-using-rape-laws-for-vengeance-Delhi-high-court-says/articleshow/20267501.cms

 

For the purpose of granting or refusing bail there is no classification of the offences except the ban under Section 437(1) of the Criminal Procedure Code against grant of bail in the case ofoffences punishable with death or life imprisonment. Hence there is no statutory support or justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. When the Court has been granted discretion in the matter of granting bail and when there is no statute prescribing a special treatment in the case of a particular offence the Court cannot classify thecases and say that in particular classes bail may be granted but not in others. Not only in the caseof economic offences but also in the case of other offences the Court will have to consider the larger interest of the public or the State. Hence only the considerations which should normally weigh with the Court in the case of economic offences also. It cannot be said that bail should invariably be refused in cases involving serious economic offences.”

———————————————————————————————————————————————————————————————————

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ BAIL APPLN. 1770/2013

Date of Decision: 21st October, 2013

PARAMJEET ….. Petitioner Through Mr. Tanveer Ahmad Mir, Advocate

versus

STATE OF NCT OF DELHI ….. Respondent Through Ms. Asha Tiwari, APP for the State with SI Ashok Kumar, Crime Branch.

CORAM:

HON’BLE MS. JUSTICE SUNITA GUPTA

JUDGMENT

: SUNITA GUPTA, J.

1. This is an application under Section 439 of the Code of Criminal Procedure, 1973 filed by the petitioner for grant of bail in case FIR No.152/2013, under Section 419/420/467/468/471/120-B IPC PS Crime Branch.

2. As per the allegations in the FIR, secret information was received in SOS office that Pradeep and Devender were recruiting drivers and conductors on the basis of fake conductors’ licence-cum-badge and fake driving licence after charging huge amount. On this information, a raid was conducted. Decoy customers were deputed for being recruited as drivers and conductors. A trap was laid. Pradeep and Devender demanded Rs. 70,000/- for Bail.Appln.1770/2013 Page 1 of 8 conductor’s post in cluster bus service and Rs.40,000/- were demanded for the driver’s post and as per deal, part payment was made to Pradeep as advance money. Devender handed over fake conductor’s licence and first aid certificate to the decoy customer and Pradeep handed over the fake driving license to the second decoy customer. On signal from decoy customers, Pradeep and Devender were apprehended and fake documents handed over by them to decoy customers were seized. The numbered notes were also recovered from the possession of Devender and Pradeep. During the course of investigation, the above stated accused Devender disclosed that he got prepared the fake driving license, conductor and first aid certificate from one Amarjeet. Accused Pradeep disclosed that he got prepared driving license from one Chandra. Amarjeet was arrested. Accused Pradeep and Devender also disclosed about the involvement of applicant/accused Paramjeet @ Sanjay Dahiya. They disclosed that accused Paramjeet @ Sanjay Dahiya charged Rs. 36,500/- per recruitment of conductor and that more than 85 conductors were recruited through applicant/accused and as per disclosure statement, about 40 conductors were recruited on fake conductor’s license cum badge and first aid certificates.

3. It is further the case of the prosecution that the accused was Assistant Director in M/s Prehari Protection System (P) Ltd. and responsible for the recruitment and verification of conductors and the documents produced by the candidates. The accused and his associates have recruited more than two Bail.Appln.1770/2013 Page 2 of 8 thousand conductors.

4. It is submitted by learned counsel for the accused that the accused has been arrested only on the basis of disclosure statement of co-accused, which is inadmissible in evidence. Vide letter of award dated 28th March 2011, M/s Prehari Protection System (P) Ltd. was selected as a successful bidder by Delhi Integrated Multi Modal Transit System Limited (DIMTS) for providing fare collection and related services in operation of private stage carriage buses and the main job of the company was to provide the conductors to the said DIMTS. The applicant is not the Assistant Director but as per the letter of appointment, he is only Assistant Manager. He was never involved in the recruitment of conductors of DIMTS and in fact the applicants applied for the post of conductor on the prescribed format and they were selected as per the requirement of DIMTS. He is in custody since 09 th September 2013. Nothing has been recovered from the possession of the applicant. He has been falsely implicated in this case as such he be released on bail. Reliance was placed on Anil Mahajan vs. Commissioner of Custom, 2000 (84) DLT 854 wherein the legal position regarding grant of bail was summarised. The main emphasis was placed on c, d and n.

5. The bail application is vehemently opposed by learned Public Prosecutor for the State on the ground that it is a big racket which is recruiting drivers and conductors on the basis of fake document after taking huge amount from the customers. It was submitted that on receipt of secret Bail.Appln.1770/2013 Page 3 of 8 information, raid was conducted. Two customers were deputed and trap was laid; co-accused Pradeep and Devender were arrested. During investigation, accused Devender disclosed that he got prepared fake driving licenses, conductor and first aid certificate from one Mr. Amarjeet while accused Pradeep disclosed that he got prepared driving licenses from one Chandra. Amarjeet was arrested. Accused Pradeep and Devender also disclosed about the involvement of applicant Paramjeet @ Sanjay Dahiya. It was submitted that fake conductors’ license cum badge, I-card, receipt books and visiting cards have been recovered from applicant Paramjeet which shows his complicity in the crime. Statement of Inder Singh, s/o Ishwar Singh, R/o 4336, Defence Colony, Jind, Haryana and Rajesh Kumar s/o Rajender Singh r/o V.P.O. Hassangarh, District Rohtak, Haryana were recorded under Section 161 Cr.PC wherein they have stated that they were recruited by Paramjeet @ Sanjay Dahiya without having any conductor license/badge and first aid certificate and for this purpose they paid Rs.65,000/- each to Paramjeet and his associates. On interrogation, Paramjeet disclosed that he has so far appointed more than 2000 conductors with the help of Devender and Pradeep and some other associates out of which a number of candidates were appointed on the basis of forged document. The particulars of the conductors working on public transport cluster post are being verified from the concerned transport authorities. The verification report regarding five driving license of drivers appointed by this illegal racket has been received from ARDO Bail.Appln.1770/2013 Page 4 of 8 /Kanpur/U.P. which are reportedly found fake. Verification report regarding five First Aid Certificates recovered from accused person has also been received from St. John Ambulance Aassociation, Red cross Bhawan, New Delhi, which was also found fake. Keeping in view, the magnitude and primary stage of investigation coupled with the fact that other associates of this organisation are yet to be identified, it is submitted that if the accused is released on bail at this stage he may influence the witnesses, destroy/tamper the evidence.

6. I have given my considerable thoughts to the respective submissions of learned counsel for the parties. In Anil Mahajan (supra), this Court summarised the legal position regarding grant/refusal of bail. Learned counsel for the petitioner laid special emphasis on points c, d and n for submitting that the object of bail is to secure the attendance of the accused at the trial. Bail is not to be withheld as a punishment. Since accused has roots in the society, as such there is no chance of his absconding. Even in case of economic offences, the accused is to be granted bail. Points c, d and n relied upon by learned counsel for the petitioner are reproduced as under:- “(c) The object of bail is to secure the attendance of the accused at the trial. The principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the vent of the Court punishing him with imprisonment.

(d) Bail is not to be withheld as a punishment. Even assuming that the accused is prima facie guilty of a grave offence, bail cannot be refused in an indirect process of punishing the Bail.Appln.1770/2013 Page 5 of 8 accused person before he is convicted.

(n) For the purpose of granting or refusing bail there is no classification of the offences except the ban under Section 437(1) of the Criminal Procedure Code against grant of bail in the case of offences punishable with death or life imprisonment. Hence there is no statutory support or justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. When the Court has been granted discretion in the matter of granting bail and when there is no statute prescribing a special treatment in the case of a particular offence the Court cannot classify the cases and say that in particular classes bail may be granted but not in others. Not only in the case of economic offences but also in the case of other offences the Court will have to consider the larger interest of the public or the State. Hence only the considerations which should normally weigh with the Court in the case of economic offences also. It cannot be said that bail should invariably be refused in cases involving serious economic offences.”

7. However the other parameters laid down in (h), (i), (k) and (l) also cannot be ignored which are reproduced as under:-

“(H) There is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the Courts. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. The answer to the question whether to grant bail or not depends upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstances cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. (I) While exercising the discretion to grant or refuse bail the Court will have to take into account various consideration like the nature and seriousness of the offence; the circumstances in which the offence was committed; the character of the evidence; the

Bail.Appln.1770/2013 Page 6 of 8 circumstances which are peculiar to the accused; a reasonable apprehension of witnesses being influenced and evidence being tampered with; the larger interest of the public or the State; the position and status of the accused with reference to the victim and the witness; the likelihood of the accused fleeing from justice; the likelihood of the accused repeating the offence; the history of the case as well as the stage if investigation etc. In view of so many variable factors the considerations which should weigh with the Court cannot be exhaustively set out. However, the two paramount considerations are (i) the likelihood of the accused fleeing from justice, and (ii) the likelihood of the accused tampering with prosecution evidence. These two consideration in fact relate to ensuring a fair trial of the case in a court of justice and hence it is essential that due and proper weight should be bestowed on these two factors.

(K) If investigation has not been completed and if the release of the accused on bail is likely to hamper the investigation, bail can be refused in order to ensure a proper and fair investigation.

(L) If there are sufficient reasons to have a reasonable apprehension that the accused will flee from justice or will tamper with prosecution evidence he can be refused bail in order to ensure a fair trial of the case.”

8. In the light of the principles stated above, the facts and circumstances of the present case have to be considered. It is the case of prosecution that it is an organised racket which is recruiting drivers and conductors on the basis of forged documents. Statement of two witnesses have also been recorded u/s 161 Cr.P.C who have stated that they were recruited by the applicant without having any conductor’s licence/badge and first aid certificate and a sum of Rs.65,000/- each was paid to the accused and his associates. The Bail.Appln.1770/2013 Page 7 of 8 investigation further reveals that 5 driving licences of drivers and five first aid certificates were also found to be fake. The case is at primary stage of investigation. Larger interest of public is involved. Accused is one of the persons in the entire chain and in case he is released on bail, apprehension of the prosecution that he may influence the witness and may tamper with evidence cannot be ruled out.

9. Under the circumstances, keeping in view the magnitude of the crime and the primary stage of investigation, at this stage, accused is not entitled to be released on bail.

The application is accordingly dismissed.

SUNITA GUPTA, J

OCTOBER 21, 2013

“There is phenomenal increase in matrimonial disputes in recent years.
The institution of marriage is greatly revered in this country. Section
498-A of the IPC was introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband and his relatives. The
fact that Section 498-A is a cognizable and non-bailable offence has lent
it a dubious place of pride amongst the provisions that are used as weapons
rather than shield by disgruntled wives. The simplest way to harass is to
get the husband and his relatives arrested under this provision. In a
quite number of cases, bed-ridden grand-fathers and grand-mothers of the
husbands, their sisters living abroad for decades are arrested. “Crime in
India 2012 Statistics” published by National Crime Records Bureau,
Ministry of Home Affairs shows arrest of 1,97,762 persons all over India
during the year 2012 for offence under Section 498-A of the IPC, 9.4% more
than the year 2011. Nearly a quarter of those arrested under this
provision in 2012 were women i.e. 47,951 which depicts that mothers and
sisters of the husbands were liberally included in their arrest net. Its
share is 6% out of the total persons arrested under the crimes committed
under Indian Penal Code. It accounts for 4.5% of total crimes committed
under different sections of penal code, more than any other crimes
excepting theft and hurt. The rate of charge-sheeting in cases under
Section 498A, IPC is as high as 93.6%, while the conviction rate is only
15%, which is lowest across all heads. As many as 3,72,706 cases are
pending trial of which on current estimate, nearly 3,17,000 are likely to
result in acquittal.

 

Arrest brings humiliation, curtails freedom and cast scars forever.
Law makers know it so also the police. There is a battle between the law
makers and the police and it seems that police has not learnt its lesson;
the lesson implicit and embodied in the Cr.PC. It has not come out of its
colonial image despite six decades of independence, it is largely
considered as a tool of harassment, oppression and surely not considered a
friend of public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by Courts but has not yielded
desired result. Power to arrest greatly contributes to its arrogance so
also the failure of the Magistracy to check it. Not only this, the power
of arrest is one of the lucrative sources of police corruption. The
attitude to arrest first and then proceed with the rest is despicable. It
has become a handy tool to the police officers who lack sensitivity or act
with oblique motive.”



 

—————————————————————————————————————————————————————————————————-

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1277 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)
ARNESH KUMAR ….. APPELLANT

VERSUS

STATE OF BIHAR & ANR. …. RESPONDENTS
J U D G M E N T
Chandramauli Kr. Prasad

The petitioner apprehends his arrest in a case under Section 498-A of
the Indian Penal Code, 1860 (hereinafter called as IPC) and Section 4 of
the Dowry Prohibition Act, 1961. The maximum sentence provided under
Section 498-A IPC is imprisonment for a term which may extend to three
years and fine whereas the maximum sentence provided under Section 4 of the
Dowry Prohibition Act is two years and with fine.

Petitioner happens to be the husband of respondent no.2 Sweta Kiran.
The marriage between them was solemnized on 1st July, 2007. His attempt to
secure anticipatory bail has failed and hence he has knocked the door of
this Court by way of this Special Leave Petition.

 

Leave granted.

 

In sum and substance, allegation levelled by the wife against the
appellant is that demand of Rupees eight lacs, a maruti car, an
air-conditioner, television set etc. was made by her mother-in-law and
father-in-law and when this fact was brought to the appellant’s notice, he
supported his mother and threatened to marry another woman. It has been
alleged that she was driven out of the matrimonial home due to non-
fulfilment of the demand of dowry.

 

Denying these allegations, the appellant preferred an application for
anticipatory bail which was earlier rejected by the learned Sessions Judge
and thereafter by the High Court.

 

There is phenomenal increase in matrimonial disputes in recent years.
The institution of marriage is greatly revered in this country. Section
498-A of the IPC was introduced with avowed object to combat the menace of
harassment to a woman at the hands of her husband and his relatives. The
fact that Section 498-A is a cognizable and non-bailable offence has lent
it a dubious place of pride amongst the provisions that are used as weapons
rather than shield by disgruntled wives. The simplest way to harass is to
get the husband and his relatives arrested under this provision. In a
quite number of cases, bed-ridden grand-fathers and grand-mothers of the
husbands, their sisters living abroad for decades are arrested. “Crime in
India 2012 Statistics” published by National Crime Records Bureau,
Ministry of Home Affairs shows arrest of 1,97,762 persons all over India
during the year 2012 for offence under Section 498-A of the IPC, 9.4% more
than the year 2011. Nearly a quarter of those arrested under this
provision in 2012 were women i.e. 47,951 which depicts that mothers and
sisters of the husbands were liberally included in their arrest net. Its
share is 6% out of the total persons arrested under the crimes committed
under Indian Penal Code. It accounts for 4.5% of total crimes committed
under different sections of penal code, more than any other crimes
excepting theft and hurt. The rate of charge-sheeting in cases under
Section 498A, IPC is as high as 93.6%, while the conviction rate is only
15%, which is lowest across all heads. As many as 3,72,706 cases are
pending trial of which on current estimate, nearly 3,17,000 are likely to
result in acquittal.

 

Arrest brings humiliation, curtails freedom and cast scars forever.
Law makers know it so also the police. There is a battle between the law
makers and the police and it seems that police has not learnt its lesson;
the lesson implicit and embodied in the Cr.PC. It has not come out of its
colonial image despite six decades of independence, it is largely
considered as a tool of harassment, oppression and surely not considered a
friend of public. The need for caution in exercising the drastic power of
arrest has been emphasized time and again by Courts but has not yielded
desired result. Power to arrest greatly contributes to its arrogance so
also the failure of the Magistracy to check it. Not only this, the power
of arrest is one of the lucrative sources of police corruption. The
attitude to arrest first and then proceed with the rest is despicable. It
has become a handy tool to the police officers who lack sensitivity or act
with oblique motive.

Law Commissions, Police Commissions and this Court in a large number
of judgments emphasized the need to maintain a balance between individual
liberty and societal order while exercising the power of arrest. Police
officers make arrest as they believe that they possess the power to do so.
As the arrest curtails freedom, brings humiliation and casts scars forever,
we feel differently. We believe that no arrest should be made only
because the offence is non-bailable and cognizable and therefore, lawful
for the police officers to do so. The existence of the power to arrest is
one thing, the justification for the exercise of it is quite another. Apart
from power to arrest, the police officers must be able to justify the
reasons thereof. No arrest can be made in a routine manner on a mere
allegation of commission of an offence made against a person. It would be
prudent and wise for a police officer that no arrest is made without a
reasonable satisfaction reached after some investigation as to the
genuineness of the allegation. Despite this legal position, the Legislature
did not find any improvement. Numbers of arrest have not decreased.
Ultimately, the Parliament had to intervene and on the recommendation of
the 177th Report of the Law Commission submitted in the year 2001, Section
41 of the Code of Criminal Procedure (for short ‘Cr.PC), in the present
form came to be enacted. It is interesting to note that such a
recommendation was made by the Law Commission in its 152nd and 154th Report
submitted as back in the year 1994. The value of the proportionality
permeates the amendment relating to arrest. As the offence with which we
are concerned in the present appeal, provides for a maximum punishment of
imprisonment which may extend to seven years and fine, Section 41(1)(b),
Cr.PC which is relevant for the purpose reads as follows:

“41. When police may arrest without warrant.-(1) Any police officer may
without an order from a Magistrate and without a warrant, arrest any person

(a)x x x x x x

(b)against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence punishable with imprisonment for a term
which may be less than seven years or which may extend to seven years
whether with or without fine, if the following conditions are satisfied,
namely :-

(i) x x x x x

(ii) the police officer is satisfied that such arrest is necessary –

to prevent such person from committing any further offence; or

for proper investigation of the offence; or

to prevent such person from causing the evidence of the offence to
disappear or tampering with such evidence in any manner; or

to prevent such person from making any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to the police officer; or

as unless such person is arrested, his presence in the Court whenever
required cannot be ensured,

 

and the police officer shall record while making such arrest, his reasons
in writing:

Provided that a police officer shall, in all cases where the arrest of a
person is not required under the provisions of this sub-section, record the
reasons in writing for not making the arrest.

 

X x x x x x

 

From a plain reading of the aforesaid provision, it is evident that a
person accused of offence punishable with imprisonment for a term which may
be less than seven years or which may extend to seven years with or without
fine, cannot be arrested by the police officer only on its satisfaction
that such person had committed the offence punishable as aforesaid. Police
officer before arrest, in such cases has to be further satisfied that such
arrest is necessary to prevent such person from committing any further
offence; or for proper investigation of the case; or to prevent the accused
from causing the evidence of the offence to disappear; or tampering with
such evidence in any manner; or to prevent such person from making any
inducement, threat or promise to a witness so as to dissuade him from
disclosing such facts to the Court or the police officer; or unless such
accused person is arrested, his presence in the court whenever required
cannot be ensured. These are the conclusions, which one may reach based on
facts. Law mandates the police officer to state the facts and record the
reasons in writing which led him to come to a conclusion covered by any of
the provisions aforesaid, while making such arrest. Law further requires
the police officers to record the reasons in writing for not making the
arrest. In pith and core, the police office before arrest must put a
question to himself, why arrest? Is it really required? What purpose it
will serve? What object it will achieve? It is only after these questions
are addressed and one or the other conditions as enumerated above is
satisfied, the power of arrest needs to be exercised. In fine, before
arrest first the police officers should have reason to believe on the basis
of information and material that the accused has committed the offence.
Apart from this, the police officer has to be satisfied further that the
arrest is necessary for one or the more purposes envisaged by sub-clauses
(a) to (e) of clause (1) of Section 41 of Cr.PC.

 

An accused arrested without warrant by the police has the
constitutional right under Article 22(2) of the Constitution of India and
Section 57, Cr.PC to be produced before the Magistrate without unnecessary
delay and in no circumstances beyond 24 hours excluding the time necessary
for the journey. During the course of investigation of a case, an accused
can be kept in detention beyond a period of 24 hours only when it is
authorised by the Magistrate in exercise of power under Section 167 Cr.PC.
The power to authorise detention is a very solemn function. It affects the
liberty and freedom of citizens and needs to be exercised with great care
and caution. Our experience tells us that it is not exercised with the
seriousness it deserves. In many of the cases, detention is authorised in a
routine, casual and cavalier manner. Before a Magistrate authorises
detention under Section 167, Cr.PC, he has to be first satisfied that the
arrest made is legal and in accordance with law and all the constitutional
rights of the person arrested is satisfied. If the arrest effected by the
police officer does not satisfy the requirements of Section 41 of the Code,
Magistrate is duty bound not to authorise his further detention and release
the accused. In other words, when an accused is produced before the
Magistrate, the police officer effecting the arrest is required to furnish
to the Magistrate, the facts, reasons and its conclusions for arrest and
the Magistrate in turn is to be satisfied that condition precedent for
arrest under Section 41 Cr.PC has been satisfied and it is only thereafter
that he will authorise the detention of an accused. The Magistrate before
authorising detention will record its own satisfaction, may be in brief but
the said satisfaction must reflect from its order. It shall never be
based upon the ipse dixit of the police officer, for example, in case the
police officer considers the arrest necessary to prevent such person from
committing any further offence or for proper investigation of the case or
for preventing an accused from tampering with evidence or making inducement
etc., the police officer shall furnish to the Magistrate the facts, the
reasons and materials on the basis of which the police officer had reached
its conclusion. Those shall be perused by the Magistrate while authorising
the detention and only after recording its satisfaction in writing that the
Magistrate will authorise the detention of the accused. In fine, when a
suspect is arrested and produced before a Magistrate for authorising
detention, the Magistrate has to address the question whether specific
reasons have been recorded for arrest and if so, prima facie those reasons
are relevant and secondly a reasonable conclusion could at all be reached
by the police officer that one or the other conditions stated above are
attracted. To this limited extent the Magistrate will make judicial
scrutiny.

 

Another provision i.e. Section 41A Cr.PC aimed to avoid
unnecessary arrest or threat of arrest looming large on accused requires to
be vitalised. Section 41A as inserted by Section 6 of the Code of
Criminal Procedure (Amendment) Act, 2008(Act 5 of 2009), which is relevant
in the context reads as follows:

“41A. Notice of appearance before police officer.-(1) The police officer
shall, in all cases where the arrest of a person is not required under the
provisions of sub-section (1) of Section 41, issue a notice directing the
person against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists that he has
committed a cognizable offence, to appear before him or at such other place
as may be specified in the notice.

 

(2) Where such a notice is issued to any person, it shall be the duty of
that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he
shall not be arrested in respect of the offence referred to in the notice
unless, for reasons to be recorded, the police officer is of the opinion
that he ought to be arrested.

 

(4) Where such person, at any time, fails to comply with the terms of the
notice or is unwilling to identify himself, the police officer may, subject
to such orders as may have been passed by a competent Court in this behalf,
arrest him for the offence mentioned in the notice.”

 

Aforesaid provision makes it clear that in all cases where the
arrest of a person is not required under Section 41(1), Cr.PC, the police
officer is required to issue notice directing the accused to appear before
him at a specified place and time. Law obliges such an accused to appear
before the police officer and it further mandates that if such an accused
complies with the terms of notice he shall not be arrested, unless for
reasons to be recorded, the police office is of the opinion that the arrest
is necessary. At this stage also, the condition precedent for arrest as
envisaged under Section 41 Cr.PC has to be complied and shall be subject to
the same scrutiny by the Magistrate as aforesaid.

We are of the opinion that if the provisions of Section 41,
Cr.PC which authorises the police officer to arrest an accused without an
order from a Magistrate and without a warrant are scrupulously enforced,
the wrong committed by the police officers intentionally or unwittingly
would be reversed and the number of cases which come to the Court for grant
of anticipatory bail will substantially reduce. We would like to emphasise
that the practice of mechanically reproducing in the case diary all or most
of the reasons contained in Section 41 Cr.PC for effecting arrest be
discouraged and discontinued.

Our endeavour in this judgment is to ensure that police officers do not
arrest accused unnecessarily and Magistrate do not authorise detention
casually and mechanically. In order to ensure what we have observed above,
we give the following direction:

All the State Governments to instruct its police officers not to
automatically arrest when a case under Section 498-A of the IPC is
registered but to satisfy themselves about the necessity for arrest under
the parameters laid down above flowing from Section 41, Cr.PC;

All police officers be provided with a check list containing specified sub-
clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and furnish the
reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention;

The Magistrate while authorising detention of the accused shall peruse the
report furnished by the police officer in terms aforesaid and only after
recording its satisfaction, the Magistrate will authorise detention;

The decision not to arrest an accused, be forwarded to the Magistrate
within two weeks from the date of the institution of the case with a copy
to the Magistrate which may be extended by the Superintendent of police of
the district for the reasons to be recorded in writing;

Notice of appearance in terms of Section 41A of Cr.PC be served on the
accused within two weeks from the date of institution of the case, which
may be extended by the Superintendent of Police of the District for the
reasons to be recorded in writing;

Failure to comply with the directions aforesaid shall apart from rendering
the police officers concerned liable for departmental action, they shall
also be liable to be punished for contempt of court to be instituted before
High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the
judicial Magistrate concerned shall be liable for departmental action by
the appropriate High Court.

 

We hasten to add that the directions aforesaid shall not only apply to the
cases under Section 498-A of the I.P.C. or Section 4 of the Dowry
Prohibition Act, the case in hand, but also such cases where offence is
punishable with imprisonment for a term which may be less than seven years
or which may extend to seven years; whether with or without fine.

 

We direct that a copy of this judgment be forwarded to the Chief
Secretaries as also the Director Generals of Police of all the State
Governments and the Union Territories and the Registrar General of all the
High Courts for onward transmission and ensuring its compliance.

 

By order dated 31st of October, 2013, this Court had granted
provisional bail to the appellant on certain conditions. We make this order
absolute.

 

In the result, we allow this appeal, making our aforesaid order dated 31st
October, 2013 absolute; with the directions aforesaid.

 

………………………………………………………………J

(CHANDRAMAULI KR. PRASAD)

 

………………………………………………………………J

(PINAKI CHANDRA GHOSE)

 

NEW DELHI,
July 2, 2014.

 
———————–
21

 

 

 

 

 

Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.” The
provision no doubt requires the prosecution to furnish the copies of the statements of the persons whose
evidence is required to be recorded in the case. The purpose behind this is obviously to enable the accused to
meet the case that the witness is likely to say before the Court and enable him to properly cross-examine him
in view of his previous statement made before the investigating office

——————————————————————————————————————————————————————————————–

Gujarat High Court
Gujarat High Court
State Of Gujarat vs Thacker Kaku And Ors. on 16 September, 1965
Equivalent citations: AIR 1966 Guj 217, 1966 CriLJ 990, (1966) 0 GLR 829
Author: N Shelat
Bench: N Shelat, A Sarela
JUDGMENT
N.G. Shelat, J.
1. to 8. xx xx xx
9. With regard to the evidence of Gulabrai, it was urged by Mr. Mankad, the learned advocate appearing for
respondent No. 1, that his statement recorded by the investigating officer in the case was not supplied to the
accused as is required under Section 173 Sub-section (4) of the Criminal Procedure Code and that
consequently the probative value of his evidence would be materially affected. Sub-section (4) of Section 173
of the Criminal Procedure Code provides as under.-
After forwarding a report under this Section, the officer in charge of the police station shall, before the
commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of
the report for-worded under Sub-section (1) and of the first information report recorded under Section 184 and
of all other documents or relevant extract thereof, on which the prosecution proposes to rely, including the
statements and confessions, if any recorded under Section 164 and the statements recorded under Sub-section
(3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.” The
provision no doubt requires the prosecution to furnish the copies of the statements of the persons whose
evidence is required to be recorded in the case. The purpose behind this is obviously to enable the accused to
meet the case that the witness is likely to say before the Court and enable him to properly cross-examine him
in view of his previous statement made before the investigating officer. The Chapter XVIII of the Criminal
Procedure Code relates to the procedure to be followed by the Magistrate in inquiries preparatory to
commitment, in respect of proceedings instituted on a police report received by him under Section 173 of the
Criminal Procedure Code. Sub-section (3) of Section 207A of the Criminal Procedure Code then provides that
-
“At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before
him, satisfy himself that the documents referred to in Section 173 have been furnished to the accused and If he
finds that the accused has not been furnished with such documents or any of them, he shall cause the same to
be so furnished.”
A similar provision is contained in Section 251A of the Criminal Procedure Code, laying down procedure to
be adopted in the trial of warrant cases instituted on a police report, by the Magistrate. If appears from these
provisions that the obligation is cast on the Magistrate to satisfy himself that the documents referred to in
Section 173 have been furnished to the accused and if he finds that the accused has not been furnished with
such documents or any of them he shall cause the same to be so furnished In light of these provisions the
grievance of the accused as urged by Mr. K. N. Mankad for the respondent No. 1, has to be examined. Now it
is not suggested, much less said that the committing Magistrate had not made inquiry from the accused and
not satisfied in that respect. It has to be taken that the procedure as required in law was followed by him and
he had satisfied himself that the accused had recited all such statements as contemplated under Section 173(4)
read with Section 207A, Sub-section (3) of the Criminal Procedure Code The charge-sheet submitted by the
police in the case described the name of the witness Gulabrai as one of the witnesses to be examined for
prosecution in the case. When that was so, and if the accused had in fact not received the police statement of
witness Gulabrai. it was necessary for the accused to move the committing Magistrate before committal of the
accused to the Court of Sessions, that they have not received such a statement, and if they failed to do so then,
State Of Gujarat vs Thacker Kaku And Ors. on 16 September, 1965

 

we are informed that it was in practise in the State of U.P. in various courts that they refuse to supply the certified copies of 164 Cr.P.C. statement of a witness or the victim of an offence even if the party is willing to obtain a copy of such a document and is ready to pay the cost legally admissible for issuing the same.
We were in fact not ready to accept the contention. We were, prima facie, of the view that a statement under Section 164, Cr.P.C. was required to be recorded by a judicial Magistrate under that particular section in due discharge of his judicial functions and, as such, the act of recording the statement was a judicial act which was performed by a public servant while discharging his judicial functions and in our considered view that particular document is relevant under Section 35 of the Evidence Act as also under Section 72 of the Indian Evidence Act and as such, assumes the character of being a public document.”

 

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HIGH COURT OF JUDICATURE AT ALLAHABAD 

AFR
Court No.55
Criminal Misc. Writ Petition No. 3567 of 2012.
Raju …… Appellant.
Versus
State of U.P. & others ….. Respondents.
Hon’ble Dharnidhar Jha, J.
Hon’ble Ramesh Sinha, J.

We had by our order dated 3.4.2012 directed the petition to be listed before us for deciding the issue as to whether an accused or a victim of an offence was entitled to a copy of the statement of the victim recorded under Section 164, Cr.P.C. by a judicial Magistrate, if an application is duly made and the court fee which is required for obtaining such a copy of such statement is paid by the desirous person.
It so happened that while hearing this petition, we are informed that it was in practise in the State of U.P. in various courts that they refuse to supply the certified copies of 164 Cr.P.C. statement of a witness or the victim of an offence even if the party is willing to obtain a copy of such a document and is ready to pay the cost legally admissible for issuing the same.
We were in fact not ready to accept the contention. We were, prima facie, of the view that a statement under Section 164, Cr.P.C. was required to be recorded by a judicial Magistrate under that particular section in due discharge of his judicial functions and, as such, the act of recording the statement was a judicial act which was performed by a public servant while discharging his judicial functions and in our considered view that particular document is relevant under Section 35 of the Evidence Act as also under Section 72 of the Indian Evidence Act and as such, assumes the character of being a public document.”
We further went on to pass the following order:-
“We require the District and Sessions Judge, Bareilly also to furnish a report as to under what circumstances the copy, which was applied for of the above noted document, was refused to be supplied to the present petitioner. In the meantime, we wish that the petitioner had filed the rejected copy of the application for copy on the present record.”
In the light of the above directions issued to the District and Session Judge, Bareilly on 29.3.2012, the Registrar General of the Court had received a communication from the District and Session Judge, Bareilly vide his memo No. 541/XV dated 3rd April, 2012 in which the learned Judge was referring to Rule 263 of the General Rules (Civil) of the Court to inform us that there was prohibition on supplying the statement of a witness recorded under Section 161, Cr.P.C. or any other part of evidence collected by the Investigating Officer prior to reaching the stage of filing the charge-sheet and as such the accused can never ask for a copy or any part of the case dairy at any stage of the investigation. What the learned Judge further attempted to impress upon us was that the above Rule was created on the basis of a judicial pronouncement in Criminal Misc. Writ Petition No. 5840 of 2005, Mukesh and others Vs. State of U.P.
During the course of present hearing, learned counsel appearing on behalf of the petitioner produced before us yet another judgment rendered by this Court long back in 1932 which is reported in A.I.R. 1932 Allahabad 327, Bashiruddin and another Versus Emperor in which the Court was deciding that the statement under Section 164, Cr.P.C. was a public record and that was bound to be supplied to the accused on admissible cost if he had applied for it. In fact for issuing the above direction, the learned Judge supplied the following reasons:-
“Statements recorded under S. 164, Criminal P.C. are public documents, being the acts of a Judicial Officer done under the provisions of the Criminal Procedure Code, and the public servant in whose custody those documents were, was bound to issue copies thereof. An accused is undoubtedly entitled to inspect statements of prosecution witnesses recorded under S. 164, Criminal P.C. Such statements can be used by the prosecution for the purpose of corroborating the witnesses. They can likewise be used by the defence for the purpose of contradicting such witnesses. S. 164, Criminal P.C. clearly provides that statements recorded under that section shall be forwarded to the Magistrate by whom the case is to be enquired into or tried. It is difficult to appreciate the remark of the learned City Magistrate that the statements in question were not on the record. If they were not till then before him he should have forthwith sent for them, and if they had not been previously forwarded to him they should have been before him without any further delay.
Apart from this aspect of the case, the Magistrate trying the case has to protect the interests of the prosecution and the defence alike; even if the accused were not entitled as of right to inspect such statements, the Magistrate should have had no objection to exercising his discretion in favour of the accused in a matter of that kind. A Magistrate is expected to afford all facilities to the accused not only when he is compelled by law to do so, but also when he has a discretion in the matter and the ends of justice require that the accused should be apprised of what certain prosecution witnesses had previously stated in proceedings under S. 164, Criminal P.C. I am clearly of opinion that the learned Magistrate should have directed copies of the statements under S. 164 to be given to the accused on payment by them of the usual fees and in any case, should have allowed the advocate for the defence to inspect those statements.”
Following the said reason a Division Bench of this Court has rendered yet another judgment in the case of Shankar Lal and others Versus The State reported in A.I.R. 1954 Allahabad 779 (Vol.41, C.N. 308). In Shankar Lal (Supra) the question which is presently being considered by us was not directly in issue. The issue was of non supply of copies of statements of witnesses, whom the prosecution relied for proof of the charges. But for rendering the decision the Division Bench referred to Bashiruddin (Supra).
We had the privilege of perusing the judgment of another Division Bench of the Court in Criminal Misc. Writ Petition No. 5840 of 2005, Mukesh & others Versus State of U.P. & others which is the foundation of Rule 263 of the General Rules (Civil) and we are of the opinion that the judgment in Mukesh (Supra) was on a different issue. The accused had sought the copy of the case diary as the judicial Magistrate had issued process under Section 82 Cr.P.C. on application of police. That petition was dismissed by the Magistrate. The accused filed the writ petition urging that the order rejecting his application for copy of case diary was violative of Articles 21 and 22(1) of the Constitution of India and, as such, prayer (ii) in that Writ Petition was as under :-
“Issue a writ, order or direction in the nature of mandamus directing the respondents to provide copy of the case diary and other proceedings which relate to the petitioners so that they may be able to defend their cases.”
In our opinion, the judgment of the Division Bench in the case of Mukesh (Supra) could not be applied to decide the present issue framed by us.
We are of the opinion that the the statement of an accused or victim or a witness which is to be recorded under Section 164 Cr.P.C., might be a statement recorded during the course of investigation of a case but that is quite different from the statement of witnesses recorded under Section 161 Cr.P.C. The reason is that there is a full fledged provision under Section 164 Cr.P.C. authorizing the recording of such a statement by a judicial Magistrate. The practise and the procedure which is followed in recording such a statement is that the police has to file an application before the head of Magistracy, who is presently the Chief Judicial Magistrate, requesting for the statement of such a person to be recorded. On receipt of such an application, the Chief Judicial Magistrate gets the relevant record before him and thereafter passes an order in token of receipt of such an application and further passes an order upon the same and thereafter direct by the same order for deputation of a Magistrate to record the statement. He may also record the statement himself. In case of other judicial Magistrate being deputed for recording the statement under Section 164 Cr.P.C., the witness along with the judicial record is transmitted to the deputed judicial Magistrate, who records the receipt of the record for the purpose and proceeds to record the statement and as soon as it is recorded, he again records the recording of such a statement in the order-sheet of the same record and transmits the record along with the recorded statement under Section 164 Cr.P.C. to the Chief Judicial Magistrate. Thus, the whole exercise appears judicial in nature. Not only that, it further indicates that the orders drawn in the above behalf as also the statement recorded are the records of the judicial acts performed by him in discharge of official and judicial functions by a Judge. The recording of the statements is enjoined by the law of the country and the record in the form the recorded statement under Section 164 Cr.P.C. is the record of the act of a public servant discharging his official and judicial functions. In addition to that the statement recorded under Section 164 Cr.P.C. is never taken out of the judicial record nor it is handed over to the Investigating Officer or any other police officer. The copy of the statement is allowed to be copied in the relevant part of the case dairy. Thus, the recorded statement under Section 164 Cr.P.C. assumes the part of the judicial record of that particular case and, as such, it is the part of the case. This is the reason that we have pointed out that in spite of being a statement of a witness or any other interested person during the course of investigation, the recorded statement under Section 164 Cr.P.C. could not, strictu sensu, be said to be a mere statement during investigation which could be treated as part of the case dairy. It could never be put at par with a statement under Section 161 Cr.P.C. and as such it could never be said to be a part of case dairy.
On the reasons we have just assigned, we are of the opinion that the whole exercise of recording the statement under Section 164 Cr.P.C. has a presumption of regularity attached to it. It has to be presumed that the recording of the statement under Section 164, Cr.P.C. had regularly been performed as is envisages by Section 114 of the Indian Evidence Act. In addition to that, we are of the opinion that the recorded statement being the record indicating the performance of the official and judicial functions or acts of a Judge under the prevailing provisions of the law of the land could be a document properly covered by Section 35 of the Indian Evidence Act and, as such, assumes the character of a public record which is covered by Section 72 of the Evidence Act.
On these terms, we are of the view that any application, if made, by any concerned person to obtain a copy of the statement under Section 164 Cr.P.C., the same could never be denied to him if he is ready to pay the costs admissible under Rules. We are further of the view that this issue was properly considered by the learned Single Judge of the Court in the case of Bashiruddin (Supra) and this was not considered by the Hon’ble Judges of the Division Bench in case of Mukesh (Supra) and as such that decision could not be creating any obstruction in providing a copy of the statement to any person entitled thereto. We as such, are of the opinion that Rule 263 of the General Rules (Civil) of the Court was not relevant and cannot be used for denying the application for copies.
We have perused another document which has been referred to by the District and Session Judge in his letter as Circular Letter No. 29 of 2005. That letter is also not relevant for the present purpose as the very heading of that letter indicates, and rightly, that no accused could have the copy of the case dairy.
For the forgoing reasons, what we find is that no person, who is entitled to a copy of the statement under Section 164 Cr.P.C., could be denied the required copy of the said document, if he is ready to pay the cost admissible under Rules of the Court. The issue framed by us is, accordingly, answered.
Considering the importance of our observations and directions, we are of the view that the copy of this judgment may be circulated among the District Judges and Officers-in-Charge of copying department of different judgeships and with that in our view, we direct the laying down of a copy of the present judgment before the Hon’ble the Chief Justice.
Dated 08.05.2012
Shiraz.

Hon’ble Dharnidhar Jha, J
Hon’ble Ramesh Sinha, J.
Disposed of.
For orders, see order of date
passed on separate sheets.
Dated :- 08.05.2012
Shiraz

 

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