Section-164 A of Cr.P.C.- Medical examination of the victim of rape.

164 A. Medical examination of the victim of rape. – (1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of a such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.

(2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her and prepare a report of his examination giving the following particulars, namely:-

(I) the name and address of the woman and of the person by whom she was brought;

(II) the age of the woman;

(III) the description of material taken from the person of the woman for DNA profiling;

(IV) marks of injury, if any, on the person of the woman;

(V) general mental condition of the woman; and

(VI) other material particulars in reasonable detail.

(3)  The report shall state precisely the reasons for each conclusion arrived at.

(4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained.

(5) The exact time of commencement and completion of the examination shall also be noted in the report.

(6) The registered medical practitioner shall, without delay forward the report to the investigation officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.

Explanation. – For the purposes of this section, “examination” and “registered medical practitioner” shall have the same meanings as in section 53’

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section164 of Cr.P.C.-Recording of confessions and statements.

164. Recording of confessions and statements.

(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:

Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody.

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If the person holding the identification is a Magistrate of the first class, or one of the second class specially empowered, Section 164 Cr. P. C. applies and his identification memo is admissible in evidence under Section 80 of the Evidence Act without proof. But if other Magistrates, or private persons, hold it they must be called in evidence to prove their memo. Where Section 164 Cr. P. C. operates the proceedings are independent even of the territorial jurisdiction of the Magistrate concerned.

There remains to consider the legal status of an identification memo prepared on the one hand by a Magistrate of the first class or a Magistrate of the second class specially empowered, and on the other by the remaining kinds of Magistrates. In the case of the former the memo, as already shown, is the record of a statement taken under the provisions of Section 164 Cr. P. C. It is therefore evidence given “before any officer authorised by law to take such evidence”.

(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect.

 

ALLAHABAD HIGH COURT.

Asharfi And Anr. vs The State

on 19 May, 1960

Equivalent citations: AIR 1961 All 153, 1961 CriLJ 340

Author: James

Bench: B James, J Takru

Police Officer’s power to require attendance of witnesses-section 160 of Cr.P.C.

160. Police Officer’s power to require attendance of witnesses.

(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:

Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.

(2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence.

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“powers on a lowest rank of police official and lays down no guidelines for exercise of the powers of issuing notice so as to ensure that there was no misuse or abuse of power. It is submitted thatSection 160 Cr.P.C was also violative of Article 21 of the Constitution of India as it encroaches upon the liberty of a citizen. The facts stated in the petition are peculiar to the petitioners and not relevant in considering the question whether Section 160 Cr.P.C is unconstitutional or not. The constitutionality of Section 160 has to be considered per se.”

 

The powers under Section 160 Cr.P.C are necessary for the police for proper and effective investigation of a crime. A police officer who receives information that a person may be acquainted with the facts of the case can issue notice under Section 160 Cr.P.C to call such person and interrogate him. No specific guidelines are required for issuing such notice as issuance of such notice would not in any way infringes the W.P. (Crl.) No.1422/08 & 152/2010 Page 3 Of 7 personal liberty of any person. Chapter IV of Cr.P.C casts a duty on the public person to provide necessary help to Magistrate and police as and when demanded regarding information about commission of a crime and help apprehending the criminals. A duty has been cast upon the public to give information of certain offences as mentioned in Section 39 Cr. P.C. Section 41 of Cr.P.Cgives power to police not only to arrest a person, without warrants, if he has been involved in a cognizable offence or against whom credible information has been received of his having been involved in an offence.

The cord registered and notices under Section 160 Cr.P.C were issued to the petitioners and the petitioners made this writ petition. 9. The petitioners have already obtained a copy of complaint by using provisions of RTI Act. It is not obligatory on the part of the police to furnish a copy of FIR/complaint to the accused. Section 154(2) puts an obligation on police to furnish a copy of FIR/complaint to the complainant and not to the accused. Police has got every right to issue noticeunder Section 160 Cr.P.C and notice under Section 160 cannot be quashed by a Court. Notice under Sections 160 Cr.P.C is a step in furtherance of investigation and the court cannot interfere into investigation. If the petitioners were apprehending arrest on account of their alleged involvement, the appropriate course available for the W.P. (Crl.) No.1422/08 & 152/2010 Page 6 Of 7 petitioner was to apply for bail and not to approach this Court for quashing the notices underSection 160 Cr.P.C. As far as allegations of surveillance by taping the phones of petitioners are concerned, no material has been placed on record.

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: November 01, 2010

Date of Order: November 30, 2010

+ W.P. (Crl.) No.152/2010

% 30.11.2010 Satish Mohan Agarwal & Anr. …Petitioner

Versus

UOI & Ors. …Respondents 

 

section 473 of Cr.p.c.-Extension of period of limitation in certain cases.

 

 

section 473 of Cr.p.c.Extension of period of limitation in certain cases.-

Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.

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“The said provision reads as under: 473 – Extension of period of limitation in certain cases. Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may make cognizance of an offence after the expiry of the period of limitations, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice

instant case, it is not the contention of the Petitioner that the complainant was responsible in any manner for the delay, if any, in the learned MM taking cognisance of the offence complained of. Section 473 CrPC has not been adverted to by the Supreme Court in the judgment in Krishna Pillai. Even if one were to go by the judgment in Krishna Pillai then it would mean that the date of taking cognisance should be construed as 27th January, 1990 and not the date of the filing of the complaint which is 12th May, 1987. That would in turn mean that there is a delay in the learned MM taking cognisance. Given that this is a case of statutory offence involving a police officer in which the complainant, has without unnecessary delay, lodged a complaint, there is no reason why the complainant should suffer the fate of dismissal of the complaint on a technical plea of limitation brought about not by any conscious act of the complainant but for the failure of the court to take the steps to issue the summoning order. The act of court can do no wrong, and this is perhaps what is encapsulated,:

 

DELHI HIGH COURT.

Inspector Ran Singh vs State Of Delhi And Anr.

on 30 January, 2008

Author: S Muralidhar

Bench: S Muralidhar

 

Section 451 of Cr.P.C.-Order for custody and disposal of property pending trial in certain cases.

451.Order for custody and disposal of property pending trial in certain cases.-

When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

Explanation.- For the purposes of this section, “property” includes –

(a) property of any kind or document which is produced before the Court or which is in its custody,

(b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence.

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“the petitioner sought interim custody of the tanker lorry by invoking Section 451 Cr.P.C. By Annexure A-1 order dated 30.8.2003 the Trial Court rejected the said application holding inter alia that the vehicle with the secret chamber which is the main evidence in the case if released to the petitioner was likely to be misused and that the vehicle was liable.”

 

We are afraid that we cannot agree with the above submissions made by the Director General of Prosecution. A reading of the decision of the Apex Court in Sunderbai Ambalal Desai v. State of Gujarat, (2003) SCC (Crl.) 1943, will indicate that the guidelines therein regarding interim custody of properties produced in Court are applicable to all categories of properties including vehicles. Of course, it is true that those directions and guidelines are for the purpose of giving interim custodyunder Section 451 Cr.P.C. till the conclusion of trial after which the property will have to be brought back to the custody of the Court to be made available for final disposal under Section452 Cr.P.C. Then the further question is whether there is any express or implied bar under the Enforcement Act or the Standards Act or the Rules framed thereunder to exclude the application ofSection 451 Cr.P.C. to properties such as tanker lorries like the one produced in this case. Prima facie, it appears to be a far-fetched argument on behalf of the prosecution.

 

 

KERLA HIGH COURT.

Salu vs Assistant Controller on 20 June, 2005

Equivalent citations: 2005 (3) KLT 520

Author: V Ramkumar

Bench: K P Nair, V Ramkumar

 

 

 

section 444. of Cr.P.C.-Discharge of sureties.

444.Discharge of sureties.-

(1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants.

(2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him.

(3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may commit him to jail,

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“The petitioner stood surety for one Rajesh J. Trivedi for an amount of Rs. 3,00,000/-. This surety bond was executed on 27-8-1991 pursuant to the order of the Court by which the accused was to be released on bail in the amount of Rs. 4,00,000/- out of which the accused Rajesh Trivedi deposited Rs. 1,00,000/- and for the remaining amount of Rs. 3,00,000/- the petitioner stood surety.”

 

The case debated on whether the arrest of the accused had automatically discharged surety bond – The surety bond was executed in 1991 and the notice of forfeiture was issued in 1996 – The facts showed that the accused had been arrested on non-bailable warrant in 1994 and was thereafter released on the basis of the same surety – It was held that the magistrate ought to have noticed surety regarding his continuance as surety to the accused – However, the surety had not automatically discharged and hence, the revision against order of forfeiture was not sustainable.

Decision:

Bombay High Court.

Mr. Parkar Hasan Abdul Gafoor vs State Of Maharashtra & Others

on 22 December, 1998

Equivalent citations: 1999 (5) BomCR 481, 1999 BomCR Cri

Author: D Deshpahde

Bench: D Deshpande

 

Section 319 Cr.P.C..Power to proceed against other persons appearing to be guilty of offence.

Section 319 Cr.P.C..Power to proceed against other persons appearing to be guilty of offence.-

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1), then-

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

 

“In view of the above referred judgment of the Hon’ble Supreme Court of India which is a complete answer to the contention raised on behalf of the petitioners, there remains no doubt about the legal proposition that Sections 319 and 190 of the Code operate in entirely different fields andSection 319 in no manner whatsoever impinges upon the powers of the Magistrate underSection 190 of the Code. The impugned order Page 3470 passed by learned Metropolitan Magistrate was on the basis of the report submitted to him under Section 173 of the Code of Criminal Procedure and the material available on record and as such it cannot be held that the learned Metropolitan Magistrate had no powers to take cognizance of the offence and summon the petitioners as accused, two of whom had been shown in Column No. 2 and regarding remaining two, there was some material available to summon them as accused persons. The impugned order, therefore, does not suffer from any infirmity.”

 

DDELHI HIGH COURT

Anirudh Sen vs State (N.C.T. Of Delhi)

Decided on 8 November, 2006

Author: B D Ahmed

Bench: B D Ahmed

 

 

 

 

Section 299 of Cr.P.C..Record of evidence in absence of accused.

Section 299 of Cr.P.C..Record of evidence in absence of accused.-

(1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

(2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India.

 

IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl MC No. 487 of 2008()

1. SRI. REJI, S/O. KALAPPURAKKAL SUDESAN, … Petitioner

Vs

1. STATE OF KERALA, REPRESENTED BY

… Respondent

For Petitioner :SRI.M.C.GOPI

For Respondent : No Appearance

The Hon’ble MR. Justice V.RAMKUMAR

Dated :05/02/2008

O R D E R

V. RAMKUMAR, J.

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Crl.M.C. No. 487 OF 2008

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Dated this the 5th day of February, 2008 O R D E R

Petitioner who is the 3rd accused in Crime No.402 of 1994 of Irinjalakuda Police Station for offences punishable under Sections 143, 147, 148, 447, 323, 324 read with Section 149 IPC seeks to quash the proceedings in CC No.115 of 1998 pending before the Judicial First Class Magistrate Court, Irinjalakuda. Consequent on the abscondance of the petitioner in CC No.194 of 1995, the case against him was split up and re-filed as CC No.115 of 1998. Subsequently, the case was transferred to the long pending register where it was numbered as LPR 42 of 2001.

2. Admittedly, non bailable warrants of arrest are pending against the petitioner. The circumstances under which such warrants came to be issued are not discernible to this court. The petitioner has a contention that the first informant while giving evidence under Section 299 CrPC, before including the case in the long pending register, as per Annexure A1 deposition dt.18.05.2000 has deposed before the Magistrate that he does not know whether the petitioner herein was one among the assailants
 Crl.MC No. 487 of 2008

2

and that he has no grievance against the petitioner herein. If that is so, the petitioner can very well seek a discharge by filing an appropriate petition before the learned Magistrate. If the petitioner files an application for a discharge within three weeks from today, the learned Magistrate shall consider the same without insisting on the personal appearance of the petitioner and shall pass appropriate orders taking into account the deposition of the first informant de facto complainant, while examined under Section 299 CrPC.

V. RAMKUMAR, JUDGE

 

Section 239 of Cr.P.C..When accused shall be discharged.

Section 239 of Cr.P.C..When accused shall be discharged.-

If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

 

 

“ If charges are framed in accordance with Section 240 CrPC on a finding that a prima facie case has been made out — as has been done in the instant case — the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence.”

 

 

Author: T Thakur

Bench: B.S. Chauhan, T.S. Thakur

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NO.4606 of 2011

Helios & Matheson Information

Technology Ltd. & Ors. … Petitioners

Versus

Rajeev Sawhney & Anr. …Respondents With

SPECIAL LEAVE PETITION (CRL.) No.4672 of 2011

 

Section 227 of Cr.P.C..Discharge of Accused.

Section 227 of Cr.P.C..Discharge of Accused.

If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

 

“Section 228. Framing of charge- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and 8

explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”

It is clear that the Judge concerned has to consider all the records of the case, the documents placed, hear the submission of the accused and the prosecution and if there is “not sufficient ground” (Emphasis supplied) for proceeding against the accused, he shall discharge the accused by recording reasons. If after such consideration and hearing, as mentioned in Section 227, if the Judge is of the opinion that “there is ground for presuming” (Emphasis supplied) that the accused has committed an offence, he is free to direct the accused to appear and try the offence in accordance with the procedure after framing charge in writing against the accused.”

 

 

Bench: P Sathasivam, A R Dave

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2010 (Arising out of S.L.P. (Crl.) No. 6374 of 2010) Sajjan Kumar …. Appellant (s) Versus

Central Bureau of Investigation …. Respondent(s) JUDGMENT

P. Sathasivam, J.

1) Application for intervention is allowed. 2) Leave granted.