The following two questions arise for consideration in the Appeal titles as “     ABHILASHA      vs   PARKASH & ORS. In  CRIMINAL APPEAL NO. 615 of 2020  (arising out of SLP (Crl.) No.8260/2018

  • Whether the appellant, who although had attained majority and is still unmarried is entitled to claim maintenance from her father in proceedings under Section 125 Cr.P.C. although she is not suffering from any physical or mental abnormality/injury?
  • Whether the orders passed by learned Judicial Magistrate as well as learned Revisional Court limiting the claim of the appellant to claim maintenance till she attains majority on 26.04.2005 deserves to be set aside with direction to the respondent No.1 to continue to give maintenance even after 26.04.2005 till the appellant remains unmarried?

Both the questions being interconnected, we proceed to take them together. Application under Section125 Cr.P.C.was filed on 17.10.2002 by the 
applicants including the appellant as applicant No.4 against Parkash, father of the appellant. The date of birth of the appellant being 26.04.1987, she was minor at the time when the application was filed. Learned Judicial Magistrate allowed the application of the appellant for maintenance till she attains majority. Learned Revisional Court has also affirmed the judgment with modification that appellant was entitled to receive maintenance till 26.04.2005 instead of 07.02.2005, which is date when she attains majority. In support of application under Section 125 Cr.P.C., applicant had examined Surya Dev Pandey as PW1, Chunni Lal Saini as PW2, Vikas Saini as PW3 and Dr. Raj Saini as PW4. The claim of the applicant Nos. 1, 2 and 3 was rejected, which was also affirmed by Courts below and is not subject matter of this appeal.

9. The question to be answered in the present case is as to whether a Hindu unmarried daughter is entitled to claim maintenance from her father under Section 125 Cr.P.C. only till she attains majority or she can claim maintenance till she remains unmarried. Section 125(1) Cr.P.C., which is relevant for the present case is as follows:-

“125. Order for maintenance of wives, children and parents.–(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, XXXXXXXXXXXXXXXXXXXXXXXX”

The provision on which learned counsel for the appellant has placed reliance, i.e., Section 20 of the Hindu Adoptions and Maintenance Act, 1956, needs to be noted, which provides for maintenance of children and aged parents, which is as follows:-

“20. Maintenance of children and aged parents.— (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents. (2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. (3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. Explanation.— In this section “parent” includes a childless step-mother.”

The Act, 1956 was enacted to amend and codify the law relating to adoptions and maintenance among Hindus. A bare perusal of Section 125(1) Cr.P.C. as well as Section 20 of Act, 1956 indicates that whereas Section 125 Cr.P.C. limits the claim of maintenance of a child until he or she attains majority. By virtue of Section 125(1)(c), an unmarried daughter even though she has attained majority is entitled for maintenance, where such unmarried daughter is by reason of any physical or mental abnormality or injury is unable to maintain itself. The Scheme under Section 125(1) Cr.P.C., thus, contemplate that claim of maintenance by a daughter, who has attained majority is admissible only when by reason of any physical or mental abnormality or injury, she is unable to maintain herself. In the present case, the Revisional Court has returned a finding that appellant is not suffering from any physical or mental abnormality or injury due to which she is unable to maintain herself. The above findings are not even questioned before us. What is contended that even if she is not suffering from any physical or mental abnormality or
injury, by virtue of Section 20 of Act, 1956, she is entitled to claim maintenance till she is unmarried.

The provision of Section 20 of Act, 1956 cast clear statutory obligation on a Hindu to maintain his unmarried daughter who is unable to maintain herself. The right of unmarried daughter under Section 20 to claim maintenance from her father when she is unable to maintain herself is absolute and the right given to unmarried daughter under Section 20 is right granted under personal law, which can very well be enforced by her against her father. The judgment of this Court in Jagdish Jugtawat (supra) laid down that Section 20(3) of Act, 1956 recognised the right of a minor girl to claim maintenance after she attains majority till her marriage from her father. Unmarried daughter is clearly entitled for maintenance from her father till she is married even though she has become major, which is a statutory right recognised by Section 20(3) and can be enforced by unmarried daughter in accordance with law.

 After enactment of Family Courts Act, 1984, a Family Court shall also have the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of Cr.P.C. relating to order for maintenance of wife, children and parents. Family Courts shall have the jurisdiction only with respect to city or town whose population exceeds one million, where there is no Family Courts, proceedings under Section 125 Cr.P.C. shall have to be before the Magistrate of the First Class. In an area where the Family Court is not established, a suit or proceedings for maintenance including the proceedings under Section 20 of the Act, 1956 shall only be before the District Court or any subordinate Civil Court.

 There may be a case where the Family Court has jurisdiction to decide a case under Section 125 Cr.P.C. as well as the suit under Section 20 of Act, 1956, in such eventuality, Family Court can exercise jurisdiction under both the Acts and in an appropriate case can grant maintenance to unmarried daughter even though she has become major enforcing
her right under Section 20 of Act, 1956 so as to avoid multiplicity of proceedings as observed by this Court in the case of Jagdish Jugtawat (supra). However the Magistrate in exercise of powers under Section 125 Cr.P.C. cannot pass such order.

In the case before us, the application was filed under Section 125 Cr.P.C. before Judicial Magistrate First Class, Rewari who passed the order dated 16.02.2011. The Magistrate while deciding proceedings under Section 125 Cr.P.C. could not have exercised the jurisdiction under Section 20(3) of Act, 1956 and the submission of the appellant cannot be accepted that the Court below should have allowed the application for maintenance even though she has become major. We do not find any infirmity in the order of the Judicial Magistrate First Class as well as learned Additional Magistrate in not granting maintenance to appellant who had become major.

 Admissibility of electronic evidence and Certificate under Section 65B(4) of Evidence Act.

The Hon’ble Supreme Court: In a reference dealing with the interpretation of Section 65B of the Evidence Act, 1872 that deals with admissibility of electronic records, the 3-judge bench has held that the certificate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in by the 3-judge bench in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and incorrectly “clarified” by a division bench in Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801. The Court further clarified that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced.


The High Court then set out Sections 65-A and 65-B of the Evidence Act, and referred to this Court’s judgment in Anvar P.V. (supra).

The Court held in paragraph 65 of the impugned judgment that the CDs that were produced by the Election Commission could not be treated as an original record and would, therefore, have to be proved by means of secondary evidence. Finding that no written certificate as is required by Section 65-B(4) of the Evidence Act was furnished by any of the election officials, and more particularly, the RO, the High Court then held:

“69. In substantive evidence, in the cross examination of Smt. Mutha, it is brought on the record that there was no complaint with regard to working of video cameras used by the office. She has admitted that the video cameras were regularly used in the office for recording the aforesaid incidents and daily VCDs were collected of the recording by her office. This record was created as the record of the activities of the Election Commission. It is brought on the record that on the first floor of the building, arrangement was made by keeping electronic gazettes like VCR players etc. and arrangement was made for viewing the recording. It is already observed that under her instructions, the VCDs were marked of this recording.

Thus, on the basis of her substantive evidence, it can be said that the conditions mentioned in section 65-B of the Evidence Act are fulfilled and she is certifying the electronic record as required by section 65-B (4) of the Evidence Act. It can be said that Election Commission, the machinery avoided to give certificate in writing as required by section 65-B (4) of the Evidence Act. But, substantive evidence is brought on record of competent officer in that regard. When the certificate expected is required to be issued on the basis of best of knowledge and belief, there is evidence on oath about it of Smt. Mutha. Thus, there is something more than the contents of certificate mentioned in section 65-B (4) of the Evidence Act in the present matters. Such evidence is not barred by the provisions of section 65-B of the Evidence Act as that evidence is only on certification made by the responsible official position like RO. She was incharge of the management of the relevant activities and so her evidence can be used and needs to be used as the compliance of the provision of section 65-B of the Evidence Act. This Court holds that there is compliance of the provision of section 65-B of the Evidence Act in the present matter in respect of aforesaid electronic record and so, the information contained in the record can be used in the evidence.” Based, therefore, on “substantial compliance” of the requirement of giving a certificate under Section 65B of the Evidence Act, it was held that the CDs/VCDs were admissible in evidence, and based upon this evidence it was found that, as a matter of fact, the nomination forms by the RC had been improperly accepted. The election of the RC was therefore was declared void in the impugned judgment.

9. Shri Ravindra Adsure, learned advocate appearing on behalf of the Appellant, submitted that the judgment in Anvar P.V. (supra) covered the case before us. He argued that without the necessary certificate in
writing and signed under Section 65B(4) of the Evidence Act, the CDs/VCDs upon which the entirety of the judgment rested could not have been admitted in evidence. He referred to Tomaso Bruno and Anr. v.

State of Uttar Pradesh (2015) 7 SCC 178, and argued that the said judgment did not notice either Section 65B or Anvar P.V. (supra), and was therefore per incuriam. He also argued that Shafhi Mohammad (supra), being a two-Judge Bench of this Court, could not have arrived at a finding contrary to Anvar P.V. (supra), which was the judgment of three Hon’ble Judges of this Court. In particular, he argued that it could not have been held in Shafhi Mohammad (supra) that whenever the interest of justice required, the requirement of a certificate could be done away with under Section 65B(4). Equally, this Court’s judgment dated 03.04.2018, reported as (2018) 5 SCC 311, which merely followed the law laid down in Shafhi Mohammad (supra), being contrary to the larger bench judgment in Anvar P.V. (supra), should also be held as not having laid down good law. He further argued that the Madras High Court judgment in K. Ramajyam v.

Inspector of Police (2016) Crl. LJ 1542, being contrary to Anvar P.V.

(supra), also does not lay down the law correctly, in that it holds that evidence aliunde, that is outside Section 65B, can be taken in order to
 make electronic records admissible. In the facts of the present case, he contended that since it was clear that the requisite certificate had not been issued, no theory of “substantial compliance” with the provisions of Section 65B(4), as was held by the impugned judgment, could possibly be sustained in law.

10. Ms. Meenakshi Arora, learned Senior Advocate appearing on behalf of the Respondents, has taken us in copious detail through the facts of this case, and has argued that the High Court has directed the Election Commission to produce before the Court the original CDs/VCDs of the video-recording done at the office of the RO, along with the necessary certificate. An application dated 16.08.2016 was also made to the District Election Commission and RO as well as the Assistant RO for the requisite certificate under Section 65B. A reply was given on 14.09.2016, that this certificate could not be furnished since the matter was sub-judice. Despite this, later on, on 26.07.2017 her client wrote to the authorities again requesting for issuance of certificate under Section 65B, but by replies dated 31.07.2017 and 02.08.2017, no such certificate was forthcoming.

Finally, after having run from pillar to post, her client applied on 26.08.2017 to the Chief Election Commissioner, New Delhi, stating that the authorities
were refusing to give her client the necessary certificate under Section 65B and that the Chief Election Commissioner should therefore ensure that it be given to them. To this communication, no reply was forthcoming from the Chief Election Commissioner, New Delhi. Given this, the High Court at several places had observed in the course of the impugned judgment that the authorities deliberately refused, despite being directed, to supply the requisite certificate under Section 65B, as a result of which the impugned judgment correctly relied upon the oral testimony of the RO herself.

According to Ms. Arora, such oral testimony taken down in the form of writing, which witness statement is signed by the RO, would itself amount to the requisite certificate being issued under Section 65B(4) in the facts of this case, as was correctly held by the High Court. Quite apart from this, Ms. Arora also stated that – independent of the finding given by the High Court by relying upon CDs/VCDs – the High Court also relied upon other documentary and oral evidence to arrive at the finding that the RC had not handed over nomination forms directly to the RO at 2.20 p.m (i.e. before 3pm). In fact, it was found on the basis of this evidence that the nomination forms were handed over and accepted by the RO only after 3.00 p.m. and
 were therefore improperly accepted, as a result of which, the election of the Appellant was correctly set aside.

11. On law, Ms. Arora argued that it must not be forgotten that Section 65B is a procedural provision, and it cannot be the law that even where a certificate is impossible to get, the absence of such certificate should result in the denial of crucial evidence which would point at the truth or falsehood of a given set of facts. She, therefore, supported the decision in Shafhi Mohammad (supra), stating that Anvar P.V. (supra) could be considered to be good law only in situations where it was possible for the party to produce the requisite certificate. In cases where this becomes difficult or impossible, the interest of justice would require that a procedural provision be not exalted to such a level that vital evidence would be shut out, resulting in manifest injustice.

12. Shri Vikas Upadhyay, appearing on behalf of the Intervenor, took us through the various provisions of the Information Technology Act, 2000 along with Section 65B of the Evidence Act, and argued that Section 65B does not refer to the stage at which the certificate under Section 65B(4) ought to be furnished. He relied upon a judgment of the High Court of Rajasthan as well as the High Court of Bombay, in addition to Kundan
 Singh v. State 2015 SCC OnLine Del 13647 of the Delhi High Court, to argue that the requisite certificate need not necessarily be given at the time of tendering of evidence but could be at a subsequent stage of the proceedings, as in cases where the requisite certificate is not forthcoming due to no fault of the party who tried to produce it, but who had to apply to a Judge for its production. He also argued that Anvar P.V. (supra) required to be clarified to the extent that Sections 65A and 65B being a complete code as to admissibility of electronic records, the “baggage” of Primary and Secondary Evidence contained in Sections 62 and 65 of the Evidence Act should not at all be adverted to, and that the drill of Section 65A and 65B alone be followed when it comes to admissibility of information contained in electronic records.

13. It is now necessary to set out the relevant provisions of the Evidence Act and the Information Technology Act, 2000. Section 3 of the Evidence Act defines “document” as follows:

“Document.– “Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.” “Evidence” in Section 3 is defined as follows:

 “Evidence.”– “Evidence” means and includes—(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;

such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.” The Evidence Act also declares that the expressions “Certifying Authority”, “electronic signature”, “Electronic Signature Certificate”, “electronic form”, “electronic records”, “information”, “secure electronic record”, “secure digital signature” and “subscriber” shall have the meanings respectively assigned to them in the Information Technology Act.

14. Section 22-A of the Evidence Act, which deals with the relevance of oral admissions as to contents of electronic records, reads as follows:

“22A. When oral admission as to contents of electronic records are relevant. — Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.”

15. Section 45A of the Evidence Act, on the opinion of the Examiner of Electronic Evidence, then states:

 “45A. Opinion of Examiner of Electronic Evidence.–

When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact.

Explanation.– For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.”

16. Sections 65-A and 65-B of the Evidence Act read as follows:

“65A. Special provisions as to evidence relating to electronic record.–The contents of electronic records may be proved in accordance with the provisions of section 65B.” “65B. Admissibility of electronic records.- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process
information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether-

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, –

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and
 whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; —

(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation. — For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.”

17. The following definitions as contained in Section 2 of the Information Technology Act, 2000 are also relevant:

“(i) “computer” means any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network;” “(j) “computer network” means the inter-connection of one or more computers or computer systems or communication device through– (i) the use of satellite,
 microwave, terrestrial line, wire, wireless or other communication media; and (ii) terminals or a complex consisting of two or more interconnected computers or communication device whether or not the inter-connection is continuously maintained;” “(l) “computer system” means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions;” “(o) “data” means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer;” “(r) “electronic form”, with reference to information, means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device;” “(t) “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche;”

18. Sections 65A and 65B occur in Chapter V of the Evidence Act which is entitled “Of Documentary Evidence”. Section 61 of
 the Evidence Act deals with the proof of contents of documents, and states that the contents of documents may be proved either by primary or by secondary evidence. Section 62 of the Evidence Act defines primary evidence as meaning the document itself produced for the inspection of the court. Section 63 of the Evidence Act speaks of the kind or types of secondary evidence by which documents may be proved. Section 64 of the Evidence Act then enacts that documents must be proved by primary evidence except in the circumstances hereinafter mentioned. Section 65 of the Evidence Act is important, and states that secondary evidence may be given of “the existence, condition or contents of a document in the following cases…”.

19. Section 65 differentiates between existence, condition and contents of a document. Whereas “existence” goes to “admissibility” of a document, “contents” of a document are to be proved after a document becomes admissible in evidence. Section 65A speaks of “contents” of electronic records being proved in accordance with the provisions of Section 65B. Section 65B speaks of “admissibility” of electronic records which deals with “existence” and “contents” of electronic records being
 proved once admissible into evidence. With these prefatory observations let us have a closer look at Sections 65A and 65B.

20. It will first be noticed that the subject matter of Sections 65A and 65B of the Evidence Act is proof of information contained in electronic records. The marginal note to Section 65A indicates that “special provisions” as to evidence relating to electronic records are laid down in this provision. The marginal note to Section 65B then refers to “admissibility of electronic records”.

21. Section 65B(1) opens with a non-obstante clause, and makes it clear that any information that is contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document, and shall be admissible in any proceedings without further proof of production of the original, as evidence of the contents of the original or of any facts stated therein of which direct evidence would be admissible. The deeming fiction is for the reason that “document” as defined by Section 3 of the Evidence Act does not include electronic records.

22. Section 65B(2) then refers to the conditions that must be satisfied in respect of a computer output, and states that the test for being
 included in conditions 65B(2(a)) to 65(2(d)) is that the computer be regularly used to store or process information for purposes of activities regularly carried on in the period in question. The conditions mentioned in sub-sections 2(a) to 2(d) must be satisfied cumulatively.

23. Under Sub-section (4), a certificate is to be produced that identifies the electronic record containing the statement and describes the manner in which it is produced, or gives particulars of the device involved in the production of the electronic record to show that the electronic record was produced by a computer, by either a person occupying a responsible official position in relation to the operation of the relevant device; or a person who is in the management of “relevant activities” – whichever is appropriate. What is also of importance is that it shall be sufficient for such matter to be stated to the “best of the knowledge and belief of the person stating it”. Here, “doing any of the following things…” must be read as doing all of the following things, it being well settled that the expression “any” can mean “all” given the context (see, for example, this Court’s judgments in Bansilal Agarwalla v. State of Bihar (1962) 1 SCR 331 and 1 “3. The first contention is based on an assumption that the word “any one” in Section 76 means only “one of the directors, and only one of the shareholders”. This question as regards the interpretation of the word “any one” in Section 76 was raised in Criminal Appeals Nos. 98 to 106 of 1959 (Chief Inspector of Mines, etc.) and it has been decided there that the word “any one” should be interpreted there as “every one”. Thus under Section 76 every one of the shareholders of a private company owning the mine, and every one of the directors of a public Om Parkash v. Union of India (2010) 4 SCC 172). This being the case, the conditions mentioned in sub-section (4) must also be interpreted as being cumulative.

24. It is now appropriate to examine the manner in which Section 65B was interpreted by this Court. In Anvar P.V. (supra), a three Judge Bench of this Court, after setting out Sections 65A and 65B of the Evidence Act, held:

“14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, company owning the mine is liable to prosecution. No question of violation of Article 14 therefore arises.” 2 “70. Perusal of the opinion of the Full Bench in B.R. Gupta-I [Balak Ram Gupta v. Union of India, AIR 1987 Del 239] would clearly indicate with regard to interpretation of the word “any” in Explanation 1 to the first proviso to Section 6 of the Act which expands the scope of stay order granted in one case of landowners to be automatically extended to all those landowners, whose lands are covered under the notifications issued under Section 4 of the Act, irrespective of the fact whether there was any separate order of stay or not as regards their lands. The logic assigned by the Full Bench, the relevant portions whereof have been reproduced hereinabove, appear to be reasonable, apt, legal and proper.” (emphasis added)
without further proof or production of the original. The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-B(2).

Following are the specified conditions under Section 65- B(2) of the Evidence Act:

(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

15. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) There must be a certificate which identifies the electronic record containing the statement;

(b) The certificate must describe the manner in which the electronic record was produced;

(c) The certificate must furnish the particulars of the device involved in the production of that record;

(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and

(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

17. Only if the electronic record is duly produced in terms of Section 65-B of the Evidence Act, would the question arise as to the genuineness thereof and in that situation, resort can be made to Section 45-A—opinion of Examiner of Electronic Evidence.

18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65-B of the Evidence Act are not complied with, as the law now stands in India.

xxx xxx xxx

20. Proof of electronic record is a special provision introduced by the IT Act amending various provisions
under the Evidence Act. The very caption of Section 65-A of the Evidence Act, read with Sections 59 and 65-B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65-B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield.

21. In State (NCT of Delhi) v. Navjot Sandhu a two-Judge Bench of this Court had an occasion to consider an issue on production of electronic record as evidence. While considering the printouts of the computerised records of the calls pertaining to the cellphones, it was held at para 150 as follows: (SCC p. 714) “150. According to Section 63, “secondary evidence” means and includes, among other things, ‘copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies’. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para

276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service-providing company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance with the requirements of Section 65-B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is
not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.” It may be seen that it was a case where a responsible official had duly certified the document at the time of production itself. The signatures in the certificate were also identified. That is apparently in compliance with the procedure prescribed under Section 65-B of the Evidence Act. However, it was held that irrespective of the compliance with the requirements of Section 65-B, which is a special provision dealing with admissibility of the electronic record, there is no bar in adducing secondary evidence, under Sections 63 and 65, of an electronic record.”

22. The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case, does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65-B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of
taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.

. Section 31.3 indicates the method of proving the integrity of an electronic documents system, by or in which an electronic document is recorded or stored.

Section 31.3 reads as follows:

 Presumption of integrity 31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven

(a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system;

(b) if it is established that the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it; or

(c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it.

43. Section 31.5 is an interesting provision which permits evidence to be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored. This is for the purpose of

 determining under any rule of law whether an electronic document is admissible. Section 31.5 reads as follows:

Standards may be considered 31.5 For the purpose of determining under any rule of law whether an electronic document is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored, having regard to the type of business, enterprise or endeavour that used, recorded or stored the electronic document and the nature and purpose of the electronic document.

44. Under Section 31.6(1), matters covered by Section 31.2(2), namely the printout of an electronic document, the matters covered by Section 31.3, namely the integrity of an electronic documents system, and matters covered by Section 31.5, namely evidence in respect of any standard, procedure, usage or practice, may be established by affidavit. Section 31.6 reads as follows:

Proof by affidavit


 31.6(1) The matters referred to in subsection 31.2(2) and sections 31.3 and 31.5 and in regulations made under section 31.4 may be established by affidavit.

Cross­examination (2) A party may cross­examine a deponent of an affidavit referred to in subsection (1) that has been introduced in evidence

(a) as of right, if the deponent is an adverse party or is under the control of an adverse party; and

(b) with leave of the court, in the case of any other deponent.

45. Though a combined reading of Sections 31.3 and 31.6(1) of the Canada Evidence Act, 1985, gives an impression as though a requirement similar to the one under Section 65B of Indian Evidence Act, 1872 also finds a place in the Canadian law, there is a very important distinction found in the Canadian law.

Section 31.3(b) takes care of a contingency where the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to produce it. Similarly, Section 31.3(c) gives leverage for the party relying upon an
 electronic document to establish that the same was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it.

IV. Conclusion

46. It will be clear from the above discussion that the major jurisdictions of the world have come to terms with the change of times and the development of technology and fine­tuned their legislations. Therefore, it is the need of the hour that there is a relook at Section 65B of the Indian Evidence Act, introduced 20 years ago, by Act 21 of 2000, and which has created a huge judicial turmoil, with the law swinging from one extreme to the other in the past 15 years from Navjot
 Sandhu to Anvar P.V.to Tomaso Bruno to Sonu to Shafhi Mohammad.

47. With the above note, I respectfully agree with conclusions reached by R. F. Nariman, J. that the appeals are to be dismissed with costs as proposed.

Cases referred : Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal 

         CIVIL APPEAL NOS. 20825-20826 OF 2017
          Supreme Court of India.

Section 197 of the Code of Criminal Procedure 1973 is set out hereinbelow for convenience:

197. Prosecution of Judges and public servants.

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression” State Government” occurring therein, the expression” Central Government” were substituted.

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression” Central Government” occurring therein, the expression” State Government” were substituted.

To effectively adjudicate the issues raised in this appeal, it is necessary to examine the scope and effect of Section 197 of the Criminal Procedure Code and/or Section 170 of the Karnataka Police Act, 1963. It is necessary to examine whether want of sanction would vitiate criminal proceedings against a police officer, in all cases? If not, what are the circumstances in which sanction is necessary.

 The object of sanction for prosecution, whether under Section 197 of the Code of Criminal Procedure, or under Section 170 of the Karnataka Police Act, is to protect a public servant/police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. As held by a Constitution Bench of this Court in Matajog Dobey v. H.C. Bhari13 held:

“Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction.”

 In Pukhraj v. State of Rajasthan and Another14 this Court held:

“2. While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention.

Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty.

The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty.

It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the ‘capacity in which the act is performed’, ‘cloak of office’ and ‘professed exercise of the office’ may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty.”

 In Amrik Singh v. State of Pepsu this Court referred to the judgments of the Federal Court in Dr. Hori Ram Singh v. Emperor16; H.H.B. Gill v. Emperor17 and the judgment of the Privy Council in H.H.B. Gill v. R18 and held:

“The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.”

 Section 197 of the Code of Criminal Procedure 1898, hereinafter referred to as the old Criminal Procedure Code, which fell for consideration in Matajog Dobey (supra), Pukhraj (supra) and Amrik Singh (supra) is in pari materia with Section 197 of the Code of Criminal Procedure 1973. The Code of Criminal Procedure, 1973 has repealed and replaced the old Code of Criminal Procedure.

 In Ganesh Chandra Jew (supra) this Court held:

“7 The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution.

This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection.

The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties.

It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty.”

(emphasis supplied)

 In State of Orissa v. Ganesh Chandra Jew (supra) this Court interpreted the use of the expression “official duty” to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the Section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty.

. In Shreekantiah Ramayya Munipalli v. State of Bombay this Court explained the scope and object of Section 197 of the old Criminal Procedure Code, which as stated hereinabove, is in pari materia with Section 197 of the Code of Criminal Procedure. This Court held:

Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official’s duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. What it says is- ‘When any public servant is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty’ We have therefore first to concentrate on the word ‘offence’.

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

IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE  JURISDICTION

[Criminal Appeal No. 458 of 2020 arising out of SLP (C) No. 1882 of 2018]

D. Devaraja Vs. Owais Sabeer Hussain

Indira Banerjee, J.

1. Leave granted.

2. This appeal is against a judgment and order dated 31-1-2018 passed by the Karnataka High Court, disposing of the application of the appellant under Section 482 of the Code of Criminal Procedure for quashing an order dated 27-12-2016 passed by the Additional Chief Metropolitan Magistrate III, Bengaluru City in PCR No.17214 of 2013, taking cognizance of a private complaint being PCR No.17214 of 2013 inter alia against the accused appellant, for offences punishable under Sections 120-B, 220, 323, 330 348, 506B read with Section 34 of the Indian Penal Code.

The High Court did not quash the impugned order of the Additional Chief Metropolitan Magistrate dated 27.12.2006, but remitted the complaint back to the Learned Additional Chief Metropolitan Magistrate instead, with inter alia liberty to the accused appellant to apply for discharge.

3. The accused appellant is a police officer of the rank of Superintendent of Police. On or about 10-8-2012, when the accused appellant was posted as Deputy Commissioner of Police (Crime), Bangalore city, the Commissioner of Police, Bangalore passed an order transferring a case being Crime No.12/2012 registered at the Ulsoor Police Station, Bangalore, to the Central Crime Branch, Bangalore.

4. After the aforesaid order was passed, the Deputy Commissioner of Police (Eastern Division) Bangalore City directed the Inspector of Police, Ulsoor Police Station to transmit the entire case records relating to Crime No.12/2012 to the Crime Branch.

5. The accused appellant, who was posted as Deputy Commissioner of Police (Crime) received the case records and handed over investigation of the case to the Inspector of Police by a memo dated 2-1-2013. Thereafter, the Inspector of Police, being the 3rd accused took up investigation under the guidance of the Assistant Commissioner of Police being the 2nd accused, with the assistance of the Sub-Inspector of Police being the accused No.4.

6. The accused appellant has stated that police officers of the Crime Department enquired into the history of the respondent and his family and found that the respondent was involved in the following cases.

Cases against Owais Sabeer Hussain/ Respondent

Sl. No.   Date      Police Station     FIR Number        Sections

1              26.02.2013           HSR Layout, Bengaluru  110/2013              420, 465, 468 of IPC

2              03.05.2013           Subramanyanagar, Bangalore     44/2013                420 of IPC

7. There were also other cases registered against the brothers of the respondent under various sections of the Indian Penal Code. According to the accused appellant, as per available information the respondent and the members of his family were involved in 13 cases, in all. Particulars of the other cases are given below:

Cases Registered against the brothers of Respondent

Sl. No.   Date      Police Station     FIR Number        Sections

1              01.09.2009           Andersonpet, KGF          3/2009  143, 149, 354, 504,506 of IPC

2              01.11.2009           Andersonpet, KGF          4/2009  107 of IPC

3              02.12.2009           Andersonpet, KGF          13/2009                379,427,447, 500 of IPC

4              04.02.2009           Andersonpet, KGF          51/2009                107 of IPC

5              10.03.2011           High Grounds, Bengaluru             187/2011              506 of IPC

6              03.02.2012           High Grounds, Bengaluru             57/2012                323, 324, 241, 353, 506(B) of IPC

7              21.03.2012           Andersonpet,KGF           27/2012                107 of IPC

8              02.01.2013           Ashoknagar, Bangalore 52/2013                417, 419, 420, 465, 468, 471, 120(B), r/w 34 of IPC

9              25.05.2012           High Grounds, Bengaluru             135/2012              423, 404, 465, 468, 471, 472, 474, 475, 476, 463, 464 of IPC

10           03.05.2013           Sanjaynagar, Bengaluru                75/2013                420, 468, 471, 506 r/w 34 of IPC

11           21.08.2011           High Grounds, Bengaluru             153/2011              468, 471, 420, 506 of IPC

8. On receipt of information that the respondent was involved in Crime No.12/2012 of Ulsoor Police Station, the Inspector of Police being the 3rd accused, along with Sub-Inspector of Police and other personnel raided House No.116 1st Floor, 1st Cross, New BEL Road, Bangalore belonging to the respondent. The respondent was also detained in connection with the aforesaid case, and later arrayed as accused in the aforesaid case (Crime No. 12/2012)

9. The respondent was arrested under panchnama on 27-2-2013, after which he was produced before the jurisdictional Magistrate being the Additional Chief Metropolitan Magistrate I at Bengaluru on 28-2-2013. By an order dated 28-2-2013, the learned Additional Chief Metropolitan Magistrate I, Bengaluru remanded the respondent to police custody, observing that the respondent had not complained of any ill-treatment by the Police.

10. On 1-3-2013, the Investigating Officer seized a stolen car being Tata Manza car which was parked on the road adjacent to the respondent’s house, allegedly pursuant to a voluntary statement of the respondent. Inquiry revealed that the car was related to Crime No.110 of 2013 registered with HSR Layout police station.

11. On or about 2-3-2013, K. M. Hussain, father of the respondent, filed a Habeas Corpus Petition being WP(HC) No. 57 of 2013 in the karnataka High Court at Bengaluru, seeking an order for production of the respondent from alleged illegal detention. On 4-3-2013, the learned Magistrate passed an order for medical examination of the respondent in view of allegations made by the respondent and/or his father, of ill-treatment of the respondent, by the Police.

The respondent was taken to Jayadev Institute of Cardiology and later to Victoria hospital for check-up and treatment. The doctors gave a detailed report ruling out any abnormalities and injuries on the respondent, after perusal of which, the learned 1st Additional Chief Metropolitan Magistrate, Bengaluru passed an order dated 4-3-2013, observing that there were no abnormalities and injuries found on the respondent.

12. On 6-3-2013 the accused appellant, as Deputy Commissioner of Police (CCB), Bangalore filed an affidavit in WP(HC) No.57 of 2013 in the Karnataka High Court at Bengaluru. An enquiry report was filed along with the said affidavit, stating that the Investigating Officer had apprehended the respondent, Sabir Hussain @ Uwaiz Hussain in relation to Crime No.12/2012 registered in Halasuru Police Station, for offence under Section 381 of IPC and produced him before the Court of the jurisdictional Magistrate in accordance with law.

13. By an order dated 8-03-2013, the Karnataka High Court dismissed the Habeas Corpus Petition being WP(HC) No.57 of 2013 filed by the respondent’s father, observing inter alia that eight criminal cases were pending against the respondent and that he had been produced before the jurisdictional Magistrate in accordance with law.

14. On 18-3-2013, Crime No.110 of 2013 HSR Layout Police Station was transferred to the Central Crime Branch. After the respondent was released from judicial custody, he filed the aforesaid private complaint being P.C.R. No.17214 of 2013 against the accused appellant and other police officials, in the Court of the learned IIIrd Additional Chief Metropolitan Magistrate at Bengaluru alleging illtreatment and police excesses while the respondent was in police custody from 27-2-2013 to 4-3-2013.

15. By an order dated 27-12-2016, the IIIrd Additional Chief Metropolitan Magistrate, Bengaluru, was pleased to take cognizance against the appellant in P.C.R. No. 17214 of 2013, even though no previous sanction had been obtained from the Government. The accused appellant filed Criminal Petition No.319 of 2017 under Section 482 of the Code of Criminal Procedure in the Karnataka High Court at Bengaluru inter alia for quashing the order dated 27-12- 2016 in P.C.R. No.17214 of 2013.

16. By the impugned order dated 31-1-2018, the Karnataka High Court was pleased to hold that it was a well recognised principle of law, that sanction was a legal requirement, which empowered the Court to take cognizance of a private criminal complaint against a public servant. After recording its finding, as aforesaid, the High Court proceeded to observe that the Magistrate had tentatively opined that sanction was not necessary to proceed against the accused appellant, having regard to the documents produced by the complainant before him, and remanded the complaint back to the Trial Court, with a direction on the accused appellant to appear before the Trial Court and file an application under Section 245 of the Code of Criminal Procedure for discharge.

The Magistrate was directed to pass an appropriate order on the application for discharge, if filed, before recording evidence on the merits of the allegations.

17. Being aggrieved by the aforesaid order dated 31-1-2018, to the extent that the appellant has been remanded back to the learned Magistrate and directed to file a discharge application under Section 245 of the Code of Criminal Procedure, the appellant has filed this appeal.

18. The short question involved in this appeal is, whether the learned Magistrate could, at all, have taken cognizance against the appellant, in the private complaint being P.C.R No.17214 of 2013, in the absence of sanction under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, 1963, as amended by the Karnataka Police (Amendment) Act, 2013, and if not, whether the High Court should have quashed the impugned order of the Magistrate concerned, instead of remitting the complaint to the Magistrate concerned and requiring the accused appellant to appear before him and file an application for discharge.

19. Section 170 of the Karnataka Police Act, 1963 provides as follows:-

“170. Suits or prosecutions in respect of acts done under colour of duty as aforesaid not to be entertained without sanction of Government. –

(1) In any case of alleged offence by the Commissioner, a Magistrate, Police Officer or Reserve Police Officer or other person, or of a wrong alleged to have been done by such Commissioner, Magistrate, Police Officer or Reserve Police Officer or other person, by any act done under colour or in excess of any such duty or authority as aforesaid, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained except with the previous sanction of the Government.

(2) In the case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall be bound to give to the alleged wrongdoer one month’s notice at least of the intended suit with sufficient description of the wrong complained of, failing which such suit shall be dismissed.

(3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service, and shall state whether any, and if so, what tender of amends has been made by the defendant. A copy of the said notice shall be annexed to the plaint endorsed or accompanied with declaration by the plaintiff of the time and manner of service thereof.”

20. Section 197 of the Code of Criminal Procedure 1973 is set out hereinbelow for convenience:

197. Prosecution of Judges and public servants.

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression” State Government” occurring therein, the expression” Central Government” were substituted.

(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.

(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression” Central Government” occurring therein, the expression” State Government” were substituted.

21. Learned Senior Counsel appearing on behalf of the appellant, Mr. Saajan Poovayya submitted that the private complaint as also the order dated 27-12-2016 of the Magistrate taking cognizance of the private complaint, ought to have been quashed by the High Court, in the absence of sanction under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, 1963.

22. Mr. Poovayya argued that even otherwise there was no case against the accused appellant. Even assuming that there was any illtreatment meted out to the appellant, while he was in police custody, there was no specific allegation against the accused appellant, who was not the Investigating Officer, but the Deputy Commissioner of Police.

23. Mr. Poovayya also emphatically argued that the respondent was arrested on 27.02.2013, and produced before the Magistrate on 28.02.2013, on which date he was remanded to police custody with the finding that there was no ill-treatment by the police. Even after the respondent’s father filed the Habeas Corpus Petition in the High Court, there was no finding of any ill-treatment by the High Court.

24. Mr. Poovayya argued that the allegation of police excesses in course of investigation, and police custody of the respondent, has a reasonable nexus with the duty of the appellant as a police officer. Even if the act was in dereliction of duty or in excess of duty, it was nevertheless in exercise of authority as a police officer, in connection with investigation of an alleged crime in which the respondent was alleged to be involved. The police officers were duty bound to investigate into an offence. The excesses alleged were in course of discharge of such official duty of investigating into an offence.

25. Mr. Poovayya emphatically argued that under Section 170 of the karnataka Police Act, no prosecution is to be entertained against a Police Officer, except with the previous sanction of the Government, in case of any wrong alleged to have been done by such officer, by any act in pursuance of any duty imposed or authority conferred on him by any provision of the Karnataka Police Act, 1963, or any other law for the time being in force, or even any act done under colour of or in excess of any such duty or authority.

The criminal complaint against the accused appellant should, therefore, have been quashed under Section 482 of the Criminal Procedure Code for want of sanction under Section 197 of the Code of Criminal Procedure 1973, read with Section 170 of the Karnataka Police Act, 1963. In support of his argument, Mr. Poovayya cited the judgments of this Court in D.T. Virupakshappa v. C. Subash1, Virupaxappa Veerappa Kadampur v. State of Mysore2, Sankaran Moitra v. Sadhna Das and Another3 and K.K. Patel and Another v. State of Gujarat and Another4. Mr. Poovayya also cited State of Orissa v. Ganesh Chandra Jew5.

26. On the other hand, Mr. Sidharth Luthra, Senior Advocate appearing on behalf of the respondent argued that, whether sanction was necessary or not, had to be decided, keeping in mind the nature of the complaint, which, in this case, was of physical torture and illtreatment of the respondent. Ill-treatment and torture could never be in exercise of official duty, or even under the colour of official duty.

27. Mr. Luthra further argued that, in any case, whether sanction was necessary or not, would have to be determined in course of the trial, having regard to the materials brought on record by the respective parties. A complaint should not be nipped in the bud on the ground of want of sanction.

28. Mr. Luthra also submitted that, an order of a Magistrate, taking cognizance of a complaint was not amenable to challenge under Section 482 of the Code of Criminal Procedure. The High Court rightly remanded the complaint to the Trial Court.

 29. Mr. Luthra concluded with the argument that the accused appellant can have no grievance against the judgment and order under appeal, since the High Court has given the accused appellant the liberty to apply for discharge under Section 245 of the Code of Criminal Procedure and has directed the Trial Court to decide such application, if made, before recording evidence on the merit of the allegations made against him.

30. In support of his arguments, Mr. Sidharth Luthra has cited following cases:

(1) Devinder Singh & Ors. v. State of Punjab through CBI6

(2) State of Maharashtra v. Atma Ram 7

(3) Bhanuprasad Hariprasad Dave v. State of Gujarat8

(4) State of Andhra Pradesh v. N. Venugopal and Others9

(5) Satyavir Singh Rathi, Assistant Commissioner of Police & Ors. v. State Thr. CBI10

(6) Bakhshish Singh Brar v. Gurmej Kaur & Anr.11

(7) Om Prakash & Ors. v. State of Jharkhand & Anr.12

31. To effectively adjudicate the issues raised in this appeal, it is necessary to examine the scope and effect of Section 197 of the Criminal Procedure Code and/or Section 170 of the Karnataka Police Act, 1963. It is necessary to examine whether want of sanction would vitiate criminal proceedings against a police officer, in all cases? If not, what are the circumstances in which sanction is necessary.

32. The object of sanction for prosecution, whether under Section 197 of the Code of Criminal Procedure, or under Section 170 of the Karnataka Police Act, is to protect a public servant/police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. As held by a Constitution Bench of this Court in Matajog Dobey v. H.C. Bhari13 held:

“Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction.”

33. In Pukhraj v. State of Rajasthan and Another14 this Court held:

“2. While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention.

Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty.

The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty.

It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the ‘capacity in which the act is performed’, ‘cloak of office’ and ‘professed exercise of the office’ may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty.”

34. In Amrik Singh v. State of Pepsu this Court referred to the judgments of the Federal Court in Dr. Hori Ram Singh v. Emperor16; H.H.B. Gill v. Emperor17 and the judgment of the Privy Council in H.H.B. Gill v. R18 and held:

“The result of the authorities may thus be summed up: It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution.”

35. Section 197 of the Code of Criminal Procedure 1898, hereinafter referred to as the old Criminal Procedure Code, which fell for consideration in Matajog Dobey (supra), Pukhraj (supra) and Amrik Singh (supra) is in pari materia with Section 197 of the Code of Criminal Procedure 1973. The Code of Criminal Procedure, 1973 has repealed and replaced the old Code of Criminal Procedure.

36. In Ganesh Chandra Jew (supra) this Court held:

“7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution.

This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection.

The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties.

It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty.”

(emphasis supplied)

37. In State of Orissa v. Ganesh Chandra Jew (supra) this Court interpreted the use of the expression “official duty” to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the Section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty.

38. In Shreekantiah Ramayya Munipalli v. State of Bombay19 this Court explained the scope and object of Section 197 of the old Criminal Procedure Code, which as stated hereinabove, is in pari materia with Section 197 of the Code of Criminal Procedure. This Court held:

“18. Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official’s duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. What it says is- ‘When any public servant is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty’ We have therefore first to concentrate on the word ‘offence’.

19. Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against the second accused are, first, that there was an ‘entrustment’ and/or ‘dominion’; second, that the entrustment and/or dominion was ‘in his capacity as a public servant’; third, that there was a ‘disposal’; and fourth, that the disposal was ‘dishonest’.

Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely, the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because the second accused could not dispose of the goods save by the doing of an official act, namely, officially permitting their disposal; and that he did.

He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it.”

39. The scope of Section 197 of the old Code of Criminal Procedure, was also considered In P. Arulswami vs. State of Madras20 where this Court held:

“It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted.” If the act is totally unconnected with the official duty, there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable.”

40. In B. Saha and Others v. M.S. Kochar21 this Court held:

“18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.”

41. In Virupaxappa Veerappa Kadampur v. State of Mysore (supra) cited by Mr. Poovayya, a three Judge Bench of this Court had, in the context of Section 161 of the Bombay Police Act, 1951, which is similar to Section 170 of the Karnataka Police Act, interpreted the phrase “under colour of duty ” to mean “acts done under the cloak of duty, even though not by virtue of the duty”.

42. In Virupaxappa Veerappa Kadampur (supra) this Court referred to the meaning of the words “colour of office” in Wharton’s Law Lexicon, 14th Ed. Which is as follows:

“Colour of office” “When an act is unjustly done by the countenance of an office, being grounded upon corruption, to which the office is as a shadow and colour.”

43. This Court also referred to the meaning of “colour of office in Stroud’s Judicial Dictionary, 3rd Edition, set out hereinbelow: Colour:

“Colour of office” is always taken in the worst part, and signifies an act evil done by the countenance of an office, and it bears a dissembling face of the right of the office, whereas the office is but a veil to the falsehood, and the thing is grounded upon Vice, and the Office is as a shadow to it. But ‘by reason of the office’ and ‘by virtue of the office are taken always in the best part.”

44. After referring to the Law Lexicons referred to above, this Court held:

“It appears to us that the words under colour of duty have been used in s.161(1) to include acts done under the cloak of duty, even though not by virtue of the duty. When he (the police officer) prepares a false Panchnama or a false report he is clearly using the existence of his legal duty as a cloak for his corrupt action or to use the words in stroud’s Dictionary as a veil to his falsehood. The acts thus done in dereliction of his duty must be held to have been done “under colour of the duty”.”

45. In Om Prakash and others vs. State of Jharkhand and Anr. (supra) this Court, after referring to various decisions, pertaining to the police excess, explained the scope of protection under Section 197 of the Code of Criminal Procedure as follows:

“32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh [AIR 1960 SC 266]).

The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection (Ganesh Chandra Jew [(2004) 8 SCC 40]).

If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood.”

(emphasis supplied)

46. In Sankaran Moitra v. Sadhna Das and Another22 the majority referred to H.H.B Gill v. R23, H.H.B Gill v. Emperor24; Shreekantiah Ramayya Munippali v. State of Bombay25; Amrik Singh v. State of Pepsu26; Matajog Dobey v. H.C. Bhari27; Pukhraj v. State of Rajasthan28; B. Saha and Others v. M.S. Kochar29; Bakhshish Singh Brar v. Gurmej Kaur30; Rizwan Ahmed Javed Shaikh and Others v. Jammal Patel and Others31 and held :

“25. The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier.

The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system.

So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of learned counsel for the complainant that this is an eminently fit case for grant of such sanction.”

47. The dissenting view of C.K. Thakkar J. in Sankaran Moitra (supra) supports the contention of Mr. Luthra to some extent. However, we are bound by the majority view. Further more even the dissenting view of C.K. Thakkar, J was in the context of an extreme case of causing death by assaulting the complainant.

48. In K.K. Patel and Another vs. State of Gujarat and Anr.32 this Court referred to Virupaxappa Veerappa Kadampur (supra) and held:-

“17. The indispensable ingredient of the said offence is that the offender should have done the act “being a public servant”. The next ingredient close to its heels is that such public servant has acted in disobedience of any legal direction concerning the way in which he should have conducted as such public servant. For the offences under Section 167 and 219 IPC the pivotal ingredient is the same as for the offence under Section 166 IPC.

The remaining offences alleged in the complaint, in the light of the averments made therein, are ancillary offences to the above and all the offences are parts of the same transaction. They could not have been committed without there being at least the colour of the office or authority which the appellants held.”

49. Mr. Poovayya argued that the complaint filed by the respondent against the accused appellant was in gross abuse of process, frivolous and malafide. Controverting the allegation of the respondent in his complaint, of police excesses while the respondent was in police custody between 27th February, 2013 and 14th March, 2013 in connection with Crime No12/2012, Mr. Poovayya referred to the order of the learned Chief Metropolitan Magistrate dated 28th February, 2013 in the said crime case, observing that the respondent had not complained of any ill-treatment by the police.

50. Mr. Poovayya submitted that the learned Chief Metropolitan Magistrate had, in any case, passed an order for medical examination of the respondent in view of his complaint of ill-treatment, but the medical reports, upon such examination, showed that there was no injury on the respondent. Mr. Poovayya argued that the accused appellant had been arrayed as accused vindictively, out of vengeance, since the accused appellant had, in his capacity as Deputy Commissioner of Police (Central Crime Branch), submitted an affidavit in the Habeas Corpus Petition filed by the respondent’s father in the Karnataka High Court. The said affidavit led to the dismissal of the Habeas Corpus Petition.

51. Citing the judgment of this Court in State of Haryana and Others v. Bhajan Lal and Others33, Mr. Poovayya argued that where a criminal proceeding is manifestly prompted by malafides and instituted with the ulterior motive of vengeance due to private or personal grudge, power under Section 482 of the Criminal Procedure Code ought to be exercised to prevent abuse of the process of Court and/or to secure the ends of justice.

52. In State of Orissa vs. Ganesh Chandra Jew (supra) cited by Mr. Poovayya, this Court had, in similar circumstances, referred to and followed Bhajan Lal (supra) and held:

“the factual scenario as indicated above goes to show that on 28-2-1991 the respondent was produced before the Magistrate. He was specifically asked as to whether there was any ill-treatment. Learned SDJM specifically records that no complaint of any ill-treatment was made.

This itself strikes at the credibility of the complaint though there are several other aspects highlighted in the version indicated in the complaint and the materials on record are there, we do not think it necessary to go into them because of the inherent improbabilities of the complainant’s case and the patent male fides involved”

53. In K.K. Patel and Anr. vs. State of Gujarat and Anr. this Court held:

“11. That apart, the view of the learned Single Judge of the High Court that no revision was maintainable on account of the bar contained in Section 397(2) of the Code, is clearly erroneous. It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana (1977) 4 SCC 137, Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551, V.C. Shukla v. State through CBI 1980 Supp SCC 92 and Rajendra Kumar Sitaram Pande v. Uttam (1999) 3 SCC 134).

The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable.

12. Therefore, the High Court went wrong in holding that the order impugned before the Sessions Court was not revisable in view of the bar contained in Section 397(2) of the Code.”

54. In D.T. Virupakshappa v. C. Subash (supra), cited by Mr. Poovayya, the question raised by the appellant before this Court was, whether the learned Magistrate could not have taken cognizance of the alleged offence which was of police excess in connection with investigation of the criminal case, without sanction from the State Government under Section 197 of the Code of Criminal Procedure and whether the High Court should have quashed the proceedings on that ground alone.

55. This Court held that the whole allegation of police excess in connection with the investigation of the criminal case, was reasonably connected with the performance of the official duty of the appellant. The learned Magistrate could not have, therefore, taken cognizance of the case, without previous sanction of the State Government. This Court found that the High Court had missed this crucial point in passing the impugned order, dismissing the application of the concerned policeman under Section 482 of the Code of Criminal Procedure.

56. In Ganesh Chandra Jew (supra), the Magistrate had, as in this case, specially recorded that there was no complaint of any illtreatment. This Court was of the view that continuance of the proceeding would amount to the abuse of the process of law. Accordingly, this Court set aside the judgment of the High Court whereby the High Court refused to exercise its power under Section 482 of the Criminal Procedure Code to quash an order of sub- Divisional Judicial Magistrate, in a complaint against police officials, without sanction under Section 197 of the Criminal Procedure code.

57. Devinder Singh & Ors. v. State of Punjab through CBI (supra) cited by Mr. Luthra is clearly distinguishable as that was a case of killing by the police in fake encounter. Satyavir Singh Rathi, Assistant Commissioner of Police & Ors. v. State Thr. CBI (supra) also pertains to a fake encounter, where the deceased was mistakenly identified as a hardcore criminal and shot down without provocation. The version of the police, that the police had been attacked first and had retaliated, was found to be false.

In the light of these facts, that this Court held that it could not, by any stretch of imagination, be claimed by anybody that a case of murder could be within the expression “colour of duty”. This Court dismissed the appeals of the concerned policemen against conviction, inter alia, under section 302 of Indian Penal Code, which had duly been confirmed by the High Court. The judgment is clearly distinguishable.

58. The Judgment of this Court in State of Andhra Pradesh v. N. Venugopal (supra) is distinguishable in that the policemen concerned, being the Sub Inspector, Head Constable and a Constable attached to a police station had without warrant illegally detained the complainant for interrogation under Section 161 of the Criminal Procedure Code in connection with a private complaint of house break and theft, assaulted him along with the private complainant to extract statements and left him in an injured condition.

59. In the context of aforesaid, this Court held that an act is not “under” a provision of law merely because the point of time at which it is done coincides with the point of time when some act in the exercise of the powers granted by the provision or in performance of the duty imposed by it. To be able to say that an act is done “under” a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation, the act cannot be said to be done under the particular provision of law.

It cannot be said that beating a person suspected of a crime or confining him or sending him away in an injured condition, at a time when the police were engaged in investigation, were acts done or intended to be done under the provisions of the Madras District Police Act or the Criminal Procedure Code or any other law conferring powers on the police. It could not be said that the provisions of Section 161 of the Criminal Procedure Code authorised the police officer examining a person to beat him or to confine him for the purpose of inducing him to make a particular statement.

60. In Bhanuprasad Hariprasad Dave v. State of Gujarat (supra) the Head Constable concerned was accused of preparing a false report with the dishonest intention of saving a person from whom ganja had been seized, after obtaining illegal gratification. The Court held that demand and/or acceptance of illegal gratification could not be said to be an act done under colour of duty. Significantly, the concerned policemen had been tried and convicted and their conviction was affirmed by the High Court. The concerned Head Constable was seeking bail in this Court.

61. The Judgment in State of Maharashtra v. Atma Ram (supra), was rendered in an appeal from a judgment and order of the High Court, whereby the High Court had reversed the conviction of the concerned policemen under Sections 330, 342, 343 and 348 of the Indian Penal Code, holding the prosecution to be barred under Section 161(1) of the Bombay Police Act.

Allowing the appeal of the State, this Court held that Section 64(b) which confers duty on every police officer to obtain intelligence concerning the commission of cognizable offences or designs to commit such offences and to take such other steps to bring offenders to justice or to prevent the commission of cognizable and non cognizable offences, did not authorise any police officer to beat persons in the course of examination for the purpose of inducing them to make any particular statement or to detain such persons. The acts complained were factually found not to have been done under colour of any duty or authority. The Order of the High Court acquitting the concerned policemen was thus, set aside.

62. In Bakhshish Singh Brar v. Gurmej Kaur (supra), the question raised before this Court was, whether while carrying out investigation in performance of duty as a policeman, it was necessary for the concerned policeman to conduct investigation in such a manner as would result in injury and death. This Court held that trial of a police officer accused of causing grievous injury and death in conducting raid and search, need not to be stayed for want of sanction for prosecution of the police officer, at the preliminary stage, observing that criminal trial should not be stayed at the preliminary stage in every case, as it might cause damage to the evidence. The Court observed that if necessary the question of sanction might be agitated at a later stage.

63. In Om Prakash and others v. State of Jharkhand and Anr. (supra) this Court held:

“34. In Matajog Dobey(AIR 1956 SC 44) the Constitution Bench of this Court was considering what is the scope and meaning of a somewhat similar expression “any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty” occurring in Section 197 of the Criminal Procedure Code (5 of 1898). The Constitution Bench observed that no question of sanction can arise under Section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty.

On the question as to which act falls within the ambit of abovequoted expression, the Constitution Bench concluded that there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim that he did it in the course of performance of his duty.

While dealing with the question whether the need for sanction has to be considered as soon as the complaint is lodged and on the allegations contained therein, the Constitution Bench referred to Hori Ram Singh (AIR 1939 FC 43) and observed that at first sight, it seems as though there is some support for this view in Hori Ram Singh (AIR 1939 FC 43) because Sulaiman, J. has observed in the said judgment that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution and Varadachariar, J. has also stated that: (Matajog Dobey case (AIR 1956 SC44), AIR p. 49, para 20)

“20. the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceedings.”

The legal position is thus settled by the Constitution Bench in the above paragraph. Whether sanction is necessary or not may have to be determined from stage to stage. If, at the outset, the defence establishes that the act purported to be done is in execution of official duty, the complaint will have to be dismissed on that ground.

42. It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system.

They amount to State-sponsored terrorism. But, one cannot be oblivious of the fact that there are cases where the police, who are performing their duty, are attacked and killed. There is a rise in such incidents and judicial notice must be taken of this fact. In such circumstances, while the police have to do their legal duty of arresting the criminals, they have also to protect themselves.

The requirement of sanction to prosecute affords protection to the policemen, who are sometimes required to take drastic action against criminals to protect life and property of the people and to protect themselves against attack. Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel. The plea regarding sanction can be raised at the inception.

43. In our considered opinion, in view of the facts which we have discussed hereinabove, no inference can be drawn in this case that the police action is indefensible or vindictive or that the police were not acting in discharge of their official duty. In Zandu Pharmaceutical Works Ltd. [(2005) 1 SCC 122] this Court has held that the power under Section 482 of the Code should be used sparingly and with circumspection to prevent abuse of process of court but not to stifle legitimate prosecution.

There can be no two opinions on this, but, if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of court, the power under Section 482 of the Code must be exercised and proceedings must be quashed. Indeed, the instant case is one of such cases where the proceedings initiated against the police personnel need to be quashed.”

64. In Pukhraj v. State of Rajasthan (supra) the accused Post Master General, Rajasthan had allegedly kicked and abused a union leader who had come to him when he was on tour, to submit a representation. This Court held that Section 197 of the Code of Criminal Procedure, which is intended to prevent a public servant from being harassed does not apply to acts done by a public servant in his private capacity. This Court however left it open to the accused public servant to place materials on record during the trial to show that the acts complained of were so interrelated with his official duty as to attract the protection of Section 197 of the Criminal Procedure Code.

65. In Rizwan Ahmed Javed Shaikh and others v. Jammal Patel and Others34, this Court held that where the gravamen of the charge was failure on the part of the accused policemen to produce the complainants, who were in their custody, before the Judicial Magistrate, the offence alleged was in their official capacity, though it might have ceased to be legal at a given point of time, and the accused police officers would be entitled to the benefit of Section 197(2) of the Criminal Procedure Code.

66. The Judgment in B. Saha v. M.S. Kochar (supra) was rendered in the context of allegations against Customs Authorities of misappropriation or conversion of goods. This Court held that while the seizure of goods by the concerned custom officers was an act committed in discharge of official duty, the subsequent acts of misappropriation or conversion of the goods could not be said to be viewed as under the colour of official duty. Accordingly this Court held that sanction for prosecution was not necessary.

67. The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by a police officer under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court, inter alia by its decisions referred to above.

68. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate government.

69. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act.

70. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.

71. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him.

72. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.

73. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.

74. If the act alleged in a complaint purported to be filed against the policeman is reasonably connected to discharge of some official duty, cognizance thereof cannot be taken unless requisite sanction of the appropriate government is obtained under Section 197 of the Code of Criminal Procedure and/or Section 170 of the Karnataka Police Act.

75. On the question of the stage at which the Trial Court has to examine whether sanction has been obtained and if not whether the criminal proceedings should be nipped in the bud, there are diverse decisions of this Court.

76. While this Court has, in D.T. Virupakshappa (supra) held that the High Court had erred in not setting aside an order of the Trial Court taking cognizance of a complaint, in exercise of the power under Section 482 of Criminal Procedure Code, in Matajog Dobey (supra) this Court held it is not always necessary that the need for sanction under Section 197 is to be considered as soon as the complaint is lodged and on the allegations contained therein.

The complainant may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty and/or under colour of duty. However the facts subsequently coming to light in course of the trial or upon police or judicial enquiry may establish the necessity for sanction. Thus, whether sanction is necessary or not may have to be determined at any stage of the proceedings.

77. It is well settled that an application under Section 482 of the Criminal Procedure Code is maintainable to quash proceedings which are ex facie bad for want of sanction, frivolous or in abuse of process of court. If, on the face of the complaint, the act alleged appears to have a reasonable relationship with official duty, where the criminal proceeding is apparently prompted by mala fides and instituted with ulterior motive, power under Section 482 of the Criminal Procedure Code would have to be exercised to quash the proceedings, to prevent abuse of process of court.

78. There is also no reason to suppose that sanction will be withheld in case of prosecution, where there is substance in a complaint and in any case if, in such a case, sanction is refused, the aggrieved complainant can take recourse to law. At the cost of repetition it is reiterated that the records of the instant case clearly reveal that the complainant alleged of police excesses while the respondent was in custody, in the course of investigation in connection with Crime No.12/2012. Patently the complaint pertains to an act under colour of duty.

79. Significantly, the High Court has by its judgment and order observed “it is well recognized principle of law that sanction is a legal requirement which empowers the Court to take cognizance so far as the public servant is concerned. If at all the sanction is absolute requirement, if takes cognizance it becomes illegal therefore an order too overcome any illegality the duty of the magistrate is that even at any subsequent stages if the sanction is raised it is the duty of the Magistrate to consider”.

80. In our considered opinion, the High Court clearly erred in law in refusing to exercise its jurisdiction under Section 482 of the Criminal Procedure Code to set aside the order of the Magistrate impugned taking cognizance of the complaint, after having held that it was a recognized principle of law that sanction was a legal requirement which empowers the Court to take Cognizance. The Court ought to have exercised its power to quash the complaint instead of remitting the appellant to an application under Section 245 of the Criminal Procedure Code to seek discharge.

81. The appeal is allowed. The judgment and order under appeal is set aside and the complaint is quashed for want of sanction.

…………………J. [ R. BANUMATHI ]

…………………J. [ INDIRA BANERJEE ]

NEW DELHI.

JUNE 18, 2020

1 (2015) 12 SCC 231

2 AIR 1963 SC 849

3 (2006) 4 SCC 584

4 (2000) 6 SCC 195

5 (2004) 8 SCC 40

6 (2016) 12 SCC 87

7 AIR 1966 SC 1786

8 AIR 1968 SC 1323

9 AIR 1964 SC 33

10 (2011) 6 SCC 1

11 (1987) 4 SCC 663

12 (2012) 12 SCC 72

13 AIR 1956 SC 44

14 (1973) 2 SCC 701

15 AIR 1955 SC 309

16 AIR 1939 FC 43

17 AIR 1947 FC 9

18 AIR 1948 PC 128

19 AIR 1955 SC 287

20 AIR 1967 SC 776

21 (1979) 4 SCC 177

22 (2006) 4 SCC 584

23 AIR 1948 PC 128,

24 AIR 1947 FC 9

25 AIR 1955 SC 287

26 AIR 1955 SC 309

27 AIR 1956 SC 44

28 (1973) 2 SCC 701

29 (1979) 4 SCC 177

30 (1987) 4 SCC 663

31 (2001) 5 SCC 7

32 (2000) 6 SCC 195

33 1992 Suppl. (1) SC 335

34 (2001) 5 SCC 7

Latest Supreme Court Judgments Back

“ It has become a common practice to use the provisions of Section 498- A IPC as a weapon rather than shield by disgruntled wives. The simplest way to harass is to get the relatives of the husband roped in under this provision, no matter they are bed ridden grand parents of the husband or the relatives living abroad for decades. The case in hand is also of similar nature. The complainant has failed to make out a prima facie case against the petitioners regarding allegation of inflicting physical and mental torture to the complainant or demanding dowry from her. The complaint does not disclose specific allegation against the petitioners except casual reference of their names that husband of the complainant gave her beatings at the instance of petitioners. The Hon’ble Supreme Court in Geeta Mehrotra Vs. State of U.P. (2012) 10 SCC 741 quashed the FIR registered against the unmarried sister of 8 of 9 the husband on the ground that prima facie case was not attracted against her in the absence of specific allegations.

19. In view of the aforementioned facts and circumstances, this court is of the opinion that the case in hand is a sheer abuse of process of law and therefore, is a fit case to exercise the jurisdiction of this Court under Section 482 Cr.P.C. Consequently, the complaint No.31861/13 dated 06.12.2016 and all subsequent proceedings arising therefrom including the orders dated 06.12.2016 and 04.08.2017 qua petitioners are quashed.”

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

                             IN THE HIGH COURT FOR THE STATES OF PUNJAB AND

                                                         HARYANA AT CHANIGARH

                                                      CRM-M No.13517 of 2018

                                   Amarjit Kaur and others                                          ..

                                             versus

                            Jaswinder Kaur and another                                       …

JAISHREE THAKUR. J

1. This is a petition that has been filed under Section 482 Cr.P.C. seeking to quash Criminal Complaint No.31861/13 dated 06.09.2012 and the summoning order dated 06.12.2016 whereby petitioners herein have been summoned to face trial under Sections 498-A, 506, 120-B IPC and order dated 04.08.2017 declaring the petitioners as proclaimed offenders. Petitioners herein are the father-in-law, brother-in-law and sister-in-law of the respondent No.1 Jaswinder Kaur (hereinafter referred to as the complainant).

2. In brief, the facts are that the abovesaid criminal complaint had been made by the complainant, who got married with Jaswant Singh on 05.08.1989. Jaswant Singh is none other than the real brother of petitioners No.1 and 2 and son of petitioner No.3. In the complaint it was averred that marriage was solemnized lavishly and a sum of `4 lakhs was spent thereon, apart from giving dowry articles, gold ornaments and other luxurious items.

1 of 9 The complaint was made against the husband Jaswant Singh, Amarjit Kaur alleged to be second wife of Jaswant Singh, father-in-law Dilbagh Singh, mother-in-law Charan Kaur, brother-in-law Ranjit Singh and the sister-in-law Amarjit Kaur.

3. It was further alleged that soon after the marriage, the accused persons named in the complaint started harassing the complainant on account of not bringing enough dowry and they raised a demand of Maruti 800 car along with an amount of `50,000/-. Though the complainant persuaded the accused persons with regard to inability of her parents to fulfill their demands, in the month of March, 1990, husband of the complainant at the instance of other accused gave her beatings and stated that she would have no place in the house if the demands are not fulfilled. Accused No.4 in the complaint i.e. mother-in-law of the complainant also raised a demand of gold ornament.

4. On 24.07.1993, the complainant gave birth to a girl child namely Manjinder Kaur at Nawanshahar and entire expenses of the delivery were borne by parents of the complainant. It was alleged that after the birth of girl child, the mother-in-law raised a demand of `5 lakhs. The husband and petitioners herein along with mother-in-law taunted the complainant for not giving birth to a male child. In the year 2002, the complainant was turned out of the matrimonial home and at that point of time, her mother-in-law took all gold ornaments and other articles belonged to the complainant. It was further alleged that on 24.01.2008, husband of the complainant at the instance of his family members turned her out of matrimonial home and on 23.02.2008 also left the daughter with the complainant at Jalandhar and threatened her of dire consequences if she made a complaint against him. In this regard, the complainant made a complaint to SSP, Nawanshahr on 15.04.2008 but no 2 of 9 action had been taken. In the month of September, 2009, severe blows were given in her stomach by accused No.1 i.e. the husband. She came to know that her husband solemnized a second marriage with one Amarjit Kaur (who was made accused No.2 in the complaint) without taking any divorce from her. She filed a petition under Section 125 Cr.P.C. and also an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. A complaint was also made by her to the Commissioner of Police on 5.76.2012 but no action had been taken.

5. In support of her complaint, complainant stepped into witness box as CW1 and examined one Balkiat Singh as CW-2 and Piar Kaur as CW3, who reiterated the version of the complaint. She placed on record photographs of her husband with second wife as Ex.C3 to C5 and copies of petition filed under Section 9 of the Hindu Marriage Act against her and against his second wife as Ex.C6 and C7 respectively. The Judicial Magistrate 1st Class, Jalandhar on appreciation of material placed before it, vide order dated 25.03.2013 summoned the husband to face trial under Sections 406, 498-A, 506 and 494 IPC and the mother-in-law under Sections 406, 498-A and 506 IPC whereas the other accused persons were discharged including the petitioners herein.

6. The aforementioned order was challenged by the complainant in revision before the Additional Sessions Judge, Jalandhar who vide order dated 02.02.2015 while noting the fact that there are specific allegations against accused No.3, 5 and 6 i.e. petitioners herein set aside the order passed by the Judicial Magistrate 1st Class, Jalandhar and directed to pass appropriate summoning order after re-considering the evidence placed before him.

7. Since the revisional court set aside the order passed by the Judicial Magistrate, the complainant filed a petition before this Court to the extent that since the husband and mother-in-law did not challenge their summoning order, the revisional court gravely erred in setting aside the order in toto. This Court vide order dated 21.08.2015 clarified that the summoning order passed by the trial Court against husband Jaswant Singh and mother-in-law Charan Kaur will not be deemed to have been set aside.

8. The trial Court on reconsideration of the evidence before it passed order dated 06.12.2016 whereby accused Nos.3, 5 and 6 i.e. petitioners herein have also been ordered to be summoned to face trial under Sections 498-A, 506 and 120-B IPC.

9. Pursuant to the summoning order, notice were issued to the petitioners and since they did not put in appearance despite publication, they were declared as proclaimed offenders vide order dated 04.08.2017.

10. Mr. Bhrigu Dutt Sharma, learned counsel appearing on behalf of the petitioners would submit that there is no specific allegation levelled against the petitioners in the complaint and therefore, the Judicial Magistrate vide order dated 25.03.2013 after appreciating the material placed before it gave a finding that no offence is made out against the petitioners herein and only summoned the husband and mother-in-law of the complainant to face trial under Sections 406, 498-A, 506 IPC. Even in the revision petition filed by the complainant against the aforementioned order, the revisional court failed to consider the fact that a right had been accrued in favour of the petitioner vide order dated 25.03.2013 passed by the Judicial Magistrate and therefore, an opportunity of hearing ought to have been given to the petitioners before setting aside the said order and gravely erred in remanding the matter back to 4 of 9 the trial Court for reconsideration of the evidence. On remand, the trial Court failed to take into consideration that there is no specific allegation levelled against the petitioners in the complaint and in the absence of any specific allegation, a complaint is liable to be dismissed.

11. He further contended that in pursuance to the summoning order dated 06.12.2016, summons issued to the petitioners were never served as the address of the petitioners given in the complaint by the complainant was incorrect as they were not residing at the said address at the relevant point of time. In support of his contention, he relied upon zimni orders dated 22.12.2016, 03.01.2017, 20.01.2017, 08.02.2017, 28.02.2017, 09.03.2017, 01.04.2017 and 24.04.2017 annexed with the petition as Annexure P-7 (colly). On the application moved by the complainant for effecting service upon the petitioners by way of substituted service, the trial Court vide order dated 24.04.2017 ordered the petitioners to be summoned by way publication. The proclamation published in the newspaper would show that petitioners No.2 and 3 were shown to be residents of Shaheed Bhagat Singh Nagar whereas they were actually residing in Canada since 1996 and the said fact was very well in the knowledge of the complainant. Moreover, petitioner No.1 was residing in her matrimonial home at Roper and therefore, was not aware of the pendency of the proceedings. The proclamation was published on 16.07.2017 and petitioners were required to be appeared before the trial Court on 17.07.2017 i.e. the very next day after the publication made in the newspaper. Even order dated 04.08.2017 declaring the petitioners as proclaimed persons has been passed before the expiry of 30 days of the publication of proclamation on 16.07.2017, which is in violation of the 5 of 9 provisions of Section 82 (1) and 82 (4) of the Code of Criminal Procedure and therefore, is not sustainable in the eyes of law.

12. Per contra, Mr. Ish Puneet Singh, learned counsel appearing on behalf of complainant-respondent No.1 supported the orders under challenge whereby petitioners have been ordered to be summoned to face trial and declared as proclaimed persons, while contending that the same have been passed on appreciation of material placed before the trial Court. The husband and the mother-in-law did not challenge the order whereby the husband had been ordered to face trial under Sections 406, 498-A, 506, 494 IPC and the mother-in-law under Sections 406, 498-A and 506 IPC. There are specific allegations levelled against the petitioners in para Nos.3, 5 and 6 of the complainant and therefore, they have rightly been summoned to face trial on the appreciation of evidence by the trial Court.

13. I have heard learned counsel for the parties and have perused the paper book.

14. It is the conceded position on record that in the first round of appreciation of evidence, the trial Court vide order dated 25.03.2013 gave a finding that no offence as levelled in the complaint is made out against the petitioners herein and summoned only husband and the mother-in-law to face trial. The complainant challenged the said order in revision petition and the revisional court remanded the matter to the trial court to pass a fresh order qua petitioners after re-appreciation of evidence. On re-appreciation of evidence, the trial court vide order dated 06.12.2016 summoned the petitioners to face trial under Sections 498-A, 506 and 120-B IPC and in pursuance to summoning order when the petitioners had failed to appear 6 of 9 before it, the trial Court vide order dated 04.08.2017 declared them as proclaimed persons.

15. It would be in the interest of justice to see at the first instance whether any offence is made out against the petitioners as per allegations levelled against them in the complaint or not? Because if the complaint fails, as a necessary corollary, all subsequent proceedings arising therefrom would automatically go. The allegations levelled against the petitioners in paras No.3, 5 and 6 of the complaint are reproduced as under:-

“3.That on showing the incapability to arrange for Maruti 800 car and more dowry articles, in the month of March 1990, the accused No.1 at the instance of respondents No.3 to 6 started giving merciless beatings to the complainant…….

5. That it is also not out of place to mention here that the accused No.1, 3 to 6 used to taunt the complainant for not giving birth to a male child……..

6. That on 24.1.2008 the accused No.1 at the instance of accused No.3 to 6 started beating the complainant and further turned out the complainant from her matrimonial house in bare three clothes………All the dowry articles and shtridhan belonging to the complainant is in custody of accused No.1, 3 to 6 and are using the same for their personal gain since then the complainant is living at the mercy of her brothers and widow mother.”

16. A perusal of the aforementioned would reveal that there are no direct and specific allegations against the petitioners that they had given beatings to the complainant or demanded any dowry article or misappropriated the shrtidhan. The expression used is ‘at the instance of accused No.1’. The 7 of 9 complainant has failed to bring on record any evidence to show that she had been physically abused by the petitioners or entrustment of any dowry article.

17. Petitioner No.1 is the sister-in-law of the complainant, who got married on 04.02.1989 and has been residing in her matrimonial home since then and therefore, there is not even a remotest possibility that husband of the complainant was used to give beatings to her at the instance of petitioner No.1. Petitioner No.2 was born on 12.07.1979 and was 11 years of age in March, 1990 when the complainant alleged that she was given beatings by her husband at the instance of petitioner No.2. Moreover, he had left for Canada in March, 1996 and is residing there since then. Similarly, petitioner No.3 aged 74 years had left for Canada in 1996 and is residing there since then with petitioner No.2. In such an eventuality, it is hard to believe that petitioners had harassed the complainant as alleged in the complaint.

18. It has become a common practice to use the provisions of Section 498- A IPC as a weapon rather than shield by disgruntled wives. The simplest way to harass is to get the relatives of the husband roped in under this provision, no matter they are bed ridden grand parents of the husband or the relatives living abroad for decades. The case in hand is also of similar nature. The complainant has failed to make out a prima facie case against the petitioners regarding allegation of inflicting physical and mental torture to the complainant or demanding dowry from her. The complaint does not disclose specific allegation against the petitioners except casual reference of their names that husband of the complainant gave her beatings at the instance of petitioners. The Hon’ble Supreme Court in Geeta Mehrotra Vs. State of U.P. (2012) 10 SCC 741 quashed the FIR registered against the unmarried sister of 8 of 9 the husband on the ground that prima facie case was not attracted against her in the absence of specific allegations.

19. In view of the aforementioned facts and circumstances, this court is of the opinion that the case in hand is a sheer abuse of process of law and therefore, is a fit case to exercise the jurisdiction of this Court under Section 482 Cr.P.C. Consequently, the complaint No.31861/13 dated 06.12.2016 and all subsequent proceedings arising therefrom including the orders dated 06.12.2016 and 04.08.2017 qua petitioners are quashed.

20. The petition is allowed accordingly.

                                                      (JAISHREE THAKUR)

                                                         JUDGE

The High Court does not have the power to convert the writ Petition to Appeal.

The Hon’ble Supreme Court in the matter of :   MOHD. INAM   vs SANJAY KUMAR SINGHAL & ORS.   in  CIVIL APPEAL NO._2697 OF 2020 held and relied on earlier judgments that:-

 In the present case, we are of the considered view, that the approach of the High Court in exercising the jurisdiction under Article 227 of the Constitution of India was 11 (1975) 1 SCC 858 12 (1977) 4 SCC 587 13 (1978) 2 SCC 573 14 (1982) 3 SCC 514 15 (1986) 4 SCC 447 16 (1987) 3 SCC558 17 (2001) 1 SCC 4 18 (2003) 6 SCC 641 19 (2004) 3 SCC 682 20 (2008) 9 SCC 1 21 (2010) 1 SCC 217 totally erroneous. The learned District Judge while exercising his power under Section 18 of the U.P. Act, 1972 and after finding that the order passed by the Rent Controller and Eviction Officer was totally contrary to the law laid down by this Court in Harish Tandon (supra), while interpreting clause (b) of sub­section (1) of Section 12 of the U.P. Act, 1972 and also that the order passed was totally on a perverse reading of the evidence, had interfered with the said order and reversed the same. The High Court totally misinterpreting the order passed by the earlier learned judge in Writ Petition No.7(MS) of 2003 dated 23.8.2006, on an erroneous premise, held that the vacancy order could not have been challenged along with the final order. The finding is totally contrary to the law laid down by the bench of three learned judges of this Court in Achal Misra (supra), a relevant part of which was reproduced by the High Court in its earlier order dated 23.8.2006. The learned judge ignoring Achal Misra (supra), which is a binding precedent, relies on an order of one paragraph of the two learned judges of this Court while holding that the revision was not maintainable. We, therefore, are of the considered view, that the exercise of jurisdiction by the High Court under Article 227 in the present case was patently unwarranted and unjustified.

It is a well settled principle of law, that in the guise of exercising jurisdiction under Article 227 of the Constitution of India, the High Court cannot convert itself into a court of appeal. It is equally well settled, that the supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and seeing that they obey the law. It has been held, that though the powers under Article 227 are wide, they must be exercised sparingly and only to keep subordinate courts and Tribunals within the bounds of their authority and not to correct mere errors. Reliance in this respect can be placed on a catena of judgments of this Court including the ones in Satyanarayan Laxminarayan Hegde & Ors. vs. Millikarjun Bhavanappa Tirumale10, Bathutmal Raichand Oswal vs. Laxmibai R. 10 (1960) 1 SCR 890 Tarta & Anr.11, M/s India Pipe Fitting Co. vs. Fakruddin M. A. Baker & Anr.12, Ganpat Ladha v. Sashikant Vishnu Shinde13, Mrs. Labhkuwar Bhagwani Shaha & Ors. vs. Janardhan Mahadeo Kalan & Anr.14, Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram15, Venkatlal G. Pittie and another vs. Bright Bros (Pvt.) Ltd.16, State of Maharashtra vs. Milind & Ors.17, State Through Special Cell, New Delhi vs. Navjot Sandhu Alias Afshan Guru and others18, Ranjeet Singh vs. Ravi Prakash19, Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (Deceased) Through LRs. and others20, Celina Coelho Pereira (Ms.) and others vs. Ulhas Mahabaleshwar Kholkar and others21.

 Bail is the rights of an accused who is in custody pending investigation and where the investigation is not completed within the period prescribed under Section 167(2) of the Cr.P.C.

================================================================

The law on the point as to the rights of an accused who is in custody pending investigation and where the investigation is not completed within the period prescribed under Section 167(2) of the Code, is crystallized in the judgment of this Court in Uday Mohanlal Acharya v. State of Maharashtra1. This case took into account the decision of this Court in Hitendra Vishnu Thakur and Others v. State of Maharashtra and others 2, Sanjay Dutt v. State through C.B.I., Bombay (II) 3 and Bipin Shantilal Panchal v. State of Gujarat4. Justice Pattanaik (as the learned Chief Justice then was) speaking for the majority recorded conclusions in para 13 of his judgment. For the present purposes, we may extract conclusions 3 and 4 as under:-

(2001) 5 SCC 453 (1994) 4 SCC 602 (1994) 5 SCC 410 (1996) 1 SCC 718 .

3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated.  ”

 The principles laid down in Uday Mohanlal Acharya (supra) have been consistently followed by this Court namely in State of W.B. v. Dinesh Dalmia5; Sanjay Kumar Kedia v. Intelligence Officer, Narcotics Control Bureau and Another6; Union of India v. Nirala Yadav7 and in Ranbeer (2007) 5 SCC 773 (2009) 17 SCC 631 (2014) 9 SCC 457 Shokeen v. State (NCT of Delhi)8. It must therefore be taken to be well settled that in terms of 3rd conclusion as recorded in Uday Mohanlal Acharya (supra), on the expiry of the period stipulated, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period stipulated and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

12. The questions however arise in the present matter are slightly of different dimension. Here investigation was completed and Challan under Section 173 was filed on 05.07.2018. However, just two days before that, an order had been passed by the High Court recording submission of the public prosecutor that investigation in the matter would be conducted by a Gazetted Police Officer. The investigation which led to the filing of the report on 05.07.2018, was not in conformity with the statement made before the High Court. It was for this reason that the papers were returned by the Magistrate. All this happened before the expiry of 90 th day. Can it be said that the investigation was complete for the purposes of Section 167(2) of the Code so as to deny the benefit to the accused in terms of said provision. Additionally another issue which arises for consideration is whether the (2018) 4 SCC 405 order passed by the High Court could be construed as one under which the period for completing the investigation was extended.

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

  “167 . Procedure when investigation cannot be completed in twenty-four hours. – (1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:” Provided that (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, — (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.”

————————————————————————————————————————————— Read the Judgment—————————————————————–

                                    IN THE SUPREME COURT OF INDIA

                                         CRIMINAL APPELLATE JURISDICTION

                                     CRIMINAL APPEAL NO. 1218    OF 2018

                              @ SPECIAL LEAVE PETITION (CRIMINAL) NO.6453 OF 2018

                         Achpal @ Ramswaroop & Another                          …… Appellant

                                                          Versus

                         State of Rajasthan                                     ..…. Respondent

                                                       JUDGMENT

Uday Umesh Lalit, J.

1. Leave granted.

2. This appeal challenges the correctness of the judgment and order dated 23.07.2018 passed by the High Court of Judicature for Rajasthan Bench at Jaipur in SBCRMB No.9035 of 2018.

Signature Not Verified

3. FIR No.16 of 2018 was registered on 24.03.2018 with Police Station Digitally signed by R NATARAJAN Date: 2018.09.24 16:13:47 IST Reason:

Baharwanda Kalan, Distt. Sawai Madhopur for offences punishable under Sections 143, 341, 323, 452, 336, 302 read with Section 149 of the Indian Penal Code against 18 persons. The appellants were named as Accused Nos.1 and 2 in said crime and came to be arrested on 08.04.2018. They were subsequently remanded to police/magisterial custody from time to time.

4. Later, Criminal Misc. Petition No.3517 of 2018 was filed by the complainant praying for fair and impartial investigation in the matter, in which an order came to be passed by the High Court on 03.07.2018. Said order recorded the submission of the Public Prosecutor as under:

“The learned Public Prosecutor for the State, to allay the apprehension of the petitioner, at the outset, has submitted that not only fair investigation shall be conducted by a gazetted police officer, not below the rank of Additional Superintendent of Police but the report of the investigation along with the opinion of the Investigating Officer shall be submitted in the concerned Court within a period of two months from the date of receipt of certified copy of this order by the Investigating Officer.” The petition was disposed of in terms of the submissions so recorded.

5. Since the appellants had been in custody from 08.04.2018, the investigation, in terms of Section 167 of the Code of Criminal Procedure (the Code for Short) had to be completed by 07.07.2018. On 05.07.2018 a report under Section 173 of the Code was filed by the police before the concerned Judicial Magistrate. Since said report was filed by a police officer lower in rank than an ASP and was thus contrary to the order passed by the High Court on 03.07.2018, an application was filed by the complainant placing certified copy of the aforesaid order dated 03.07.2018. The Magistrate having noted the contents of said order, returned the charge- sheet with certified copy of the order dated 03.07.2018 to the police for due compliance. Thus as on the expiry of 90 th day i.e. on 07.07.2018 no report under Section 173 of the Code was on record with the Magistrate.

6. Immediately after the expiry of 90 days the appellants filed an application for bail under the provisions of Section 167(2) of the Code.

7. The Judicial Magistrate, Khandar, Distt. Sawai Madhopur by his order dated 09.07.2018 rejected the prayer for benefit under Section 167(2) of the Code. It was observed that since the charge-sheet filed on 05.07.2018 was not in compliance of the order passed by the High Court, the charge-sheet was returned due to technical fault. It was further observed that the effect of the order dated 03.07.2018 passed by the High Court was extension of period within which the investigation could be completed.

8. The rejection as aforesaid came to be challenged by filing SB Crl. Misc. Bail No.9035 of 2018 and the High Court while rejecting said petition on 23.07.2018 stated as under:

“No case for grant of bail under Section 167(2) Cr.P.C. is made out, as the time was extended by the High Court in Criminal Miscellaneous (Petition) No.3517 of 2018 and Investigating Officer was afforded two months time to file charge-sheet. It is also important to note that the Investigating Officer had produced the charge-sheet before the concerned Court prior to 90 days but the same was returned in view of the order of the High Court.”

9. The order passed by the High Court is presently under appeal. We heard Mr. Siddhartha Dave, learned Advocate for the appellants, Mr. Milind Kumar, learned Advocate for the State and Mr. M.C. Dhingra, learned Advocate for the complainant. It was submitted by Mr. Dave, learned Advocate that the report filed under Section 173 of the Code on 05.07.2018 having been returned by the Magistrate for due compliance of the High Court order dated 03.07.2018, as on the expiry of 90 days, there was no charge-sheet for the consideration of the Court. He further submitted that the Code does not contemplate any extension of period within which the investigation could be completed and as such the High Court order dated 03.07.2018 can never be construed to have extended the period for investigation. In his submission, the appellants having shown their willingness to be admitted to the benefit of bail and preferred appropriate application, in view of the law laid down by this Court they were entitled to be released on bail. The learned Advocates for the State and the complainant on the other hand submitted that the investigation was completed and appropriate charge-sheet was filed on 05.07.2018 and the return of the papers in compliance of the order dated 03.07.2018 ought to be construed as a step towards further investigation in the matter.

10. The law on the point as to the rights of an accused who is in custody pending investigation and where the investigation is not completed within the period prescribed under Section 167(2) of the Code, is crystallized in the judgment of this Court in Uday Mohanlal Acharya v. State of Maharashtra1. This case took into account the decision of this Court in Hitendra Vishnu Thakur and Others v. State of Maharashtra and others 2, Sanjay Dutt v. State through C.B.I., Bombay (II) 3 and Bipin Shantilal Panchal v. State of Gujarat4. Justice Pattanaik (as the learned Chief Justice then was) speaking for the majority recorded conclusions in para 13 of his judgment. For the present purposes, we may extract conclusions 3 and 4 as under:-

(2001) 5 SCC 453 (1994) 4 SCC 602 (1994) 5 SCC 410 (1996) 1 SCC 718 “……………………………………

3. On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

4. When an application for bail is filed by an accused for enforcement of his indefeasible right alleged to have been accrued in his favour on account of default on the part of the investigating agency in completion of the investigation within the specified period, the Magistrate/court must dispose of it forthwith, on being satisfied that in fact the accused has been in custody for the period of 90 days or 60 days, as specified and no charge-sheet has been filed by the investigating agency. Such prompt action on the part of the Magistrate/court will not enable the prosecution to frustrate the object of the Act and the legislative mandate of an accused being released on bail on account of the default on the part of the investigating agency in completing the investigation within the period stipulated.  ”

11. The principles laid down in Uday Mohanlal Acharya (supra) have been consistently followed by this Court namely in State of W.B. v. Dinesh Dalmia5; Sanjay Kumar Kedia v. Intelligence Officer, Narcotics Control Bureau and Another6; Union of India v. Nirala Yadav7 and in Ranbeer (2007) 5 SCC 773 (2009) 17 SCC 631 (2014) 9 SCC 457 Shokeen v. State (NCT of Delhi)8. It must therefore be taken to be well settled that in terms of 3rd conclusion as recorded in Uday Mohanlal Acharya (supra), on the expiry of the period stipulated, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period stipulated and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

12. The questions however arise in the present matter are slightly of different dimension. Here investigation was completed and Challan under Section 173 was filed on 05.07.2018. However, just two days before that, an order had been passed by the High Court recording submission of the public prosecutor that investigation in the matter would be conducted by a Gazetted Police Officer. The investigation which led to the filing of the report on 05.07.2018, was not in conformity with the statement made before the High Court. It was for this reason that the papers were returned by the Magistrate. All this happened before the expiry of 90 th day. Can it be said that the investigation was complete for the purposes of Section 167(2) of the Code so as to deny the benefit to the accused in terms of said provision. Additionally another issue which arises for consideration is whether the (2018) 4 SCC 405 order passed by the High Court could be construed as one under which the period for completing the investigation was extended.

13. We may at this stage extract the relevant provisions namely Section 167 (1) & (2) of the Code:

“167 . Procedure when investigation cannot be completed in twenty-four hours. – (1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:” Provided that (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, — (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.”

14. The historical background which led to the enactment of Section 167 of the Code, as it presently stands has been dealt with by Madan B. Lokur, J. in paragraphs 11 to 15 of his judgment in Rakesh Kumar Paul v. State of Assam9. Paragraphs 11 and 12 extract portions from the report of Law Commission of India in its 41st report, the proposed provisions as suggested by the Law Commission and the Statement of Objects and Reasons dated 07.11.1970 while introducing the Code. Said Paragraphs 11 and 12 are quoted here:-

“11. Unfortunately, all laws tend to be misused whenever opportunity knocks, and Section 167 of the Code of Criminal Procedure, 1898 was no exception. Since there was a practical difficulty in completing investigations within the 15-day time-

limit, the prosecution often took recourse to the provisions of Section 344 of the Code of Criminal Procedure, 1898 and filed a preliminary or incomplete report before the Magistrate to keep the accused in custody. The Law Commission of India noted this in its 41st Report (after carefully studying several (2017) 15 SCC 67 earlier Reports) and proposed to increase the time-limit for completion of investigations to 60 days, acknowledging that: “14.19. … such an extension may result in the maximum period becoming the rule in every case as a matter of routine; but we trust that proper supervision by the superior courts will prevent that.” (emphasis supplied) The view expressed by the Law Commission of India and its proposal is as follows:

“14.19. Section 167.—Section 167 provides for remands. The total period for which an arrested person may be remanded to custody—police or judicial—is 15 days. The assumption is that the investigation must be completed within 15 days, and the final report under Section 173 sent to court by then. In actual practice, however, this has frequently been found unworkable. Quite often, a complicated investigation cannot be completed within 15 days, and if the offence is serious, the police naturally insist that the accused be kept in custody. A practice of doubtful legal validity has therefore grown up. The police file before a Magistrate a preliminary or “incomplete” report, and the Magistrate, purporting to act under Section 344, adjourns the proceedings and remands the accused to custody. In the Fourteenth Report, the Law Commission doubted if such an order could be made under Section 344, as that section is intended to operate only after a Magistrate has taken cognizance of an offence, which can be properly done only after a final report under Section 173 has been received, and not while the investigation is still proceeding. We are of the same view, and to us also it appears proper that the law should be clarified in this respect. The use of Section 344 for a remand beyond the statutory period fixed under Section 167 can lead to serious abuse, as an arrested person can in this manner be kept in custody indefinitely while the investigation can go on in a leisurely manner. It is, therefore, desirable, as was observed in the Fourteenth Report, that some time-limit should be placed on the power of the police to obtain a remand, while the investigation is still going on; and if the present time-limit of 15 days is too short, it would be better to fix a longer period rather than countenance a practice which violates the spirit of the legal safeguard. Like the earlier Law Commission, we feel that 15 days is perhaps too short, and we propose therefore to follow the recommendation in the Fourteenth Report that the maximum period under Section 167 should be fixed at 60 days. We are aware of the danger that such an extension may result in the maximum period becoming the rule in every case as a matter of routine; but we trust that proper supervision by the superior courts will prevent that. We propose accordingly to revise sub-sections (2) and (4) of Section 167 as follows: ‘167. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days at a time and sixty days in the whole. If he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that—

(a) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;

(b) no Magistrate of the Second Class not specially empowered in this behalf by the High Court shall authorise detention in the custody of the police.

* * * (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.’”

12. The recommendations of the Law Commission of India were carefully examined and then accepted. The basic considerations for acceptance, as mentioned in the Statement of Objects and Reasons dated 7-11-1970 for introducing the (new) Code of Criminal Procedure, 1973 were:

“3. The recommendations of the Commission were examined carefully by the Government, keeping in view among others, the following basic considerations—

(i) an accused person should get a fair trial in accordance with the accepted principles of natural justice;

(ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and

(iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community.

The occasion has been availed of to consider and adopt where appropriate suggestions received from other quarters, based on practical experience of investigation and the working of criminal courts.”

15. As observed by the Law Commission in paragraph 14.19 of its 41 st Report, a practice of doubtful legal validity had grown up where Police used to file before a Magistrate a preliminary or incomplete report and the Magistrate, purporting to act under Section 344 of the Code of Criminal Procedure, 1898 used to adjourn the proceeding and remand the accused to custody. It was observed that such remand beyond the statutory period fixed under Section 167 would lead to serious abuse and therefore some time limit was required to be placed on the power of the police to obtain remand and as such the maximum period for completion of investigation was suggested. The objects and Reasons for introduction of new Code voiced similar concern.

16. The letter of and spirit behind enactment of Section 167 of the Code as it stands thus mandates that the investigation ought to be completed within the period prescribed. Ideally, the investigation, going by the provisions of the Code, ought to be completed within first 24 hours itself. Further in terms of sub-section (1) of Section 167, if “it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57” the concerned officer ought to transmit the entries in the diary relating to the case and at the same time forward the accused to such Magistrate. Thereafter, it is for the Magistrate to consider whether the accused be remanded to custody or not. Sub-Section (2) then prescribes certain limitations on the exercise of the power of the Magistrate and the proviso stipulates that the Magistrate cannot authorize detention of the accused in custody for total period exceeding 90 or 60 days, as the case may be. It is further stipulated that on the expiry of such period of 90 and 60 days, as the case may be, the accused person shall be released on bail, if he is prepared to and does furnish bail.

17. The provision has a definite purpose in that; on the basis of the material relating to investigation, the Magistrate ought to be in a position to proceed with the matter. It is thus clearly indicated that the stage of investigation ought to be confined to 90 or 60 days, as the case may be, and thereafter the issue relating to the custody of the accused ought to be dealt with by the Magistrate on the basis of the investigation. Matters and issues relating to liberty and whether the person accused of a charge ought to be confined or not, must be decided by the Magistrate and not by the Police. The further custody of such person ought not to be guided by mere suspicion that he may have committed an offence or for that matter, to facilitate pending investigation.

18. In the present case as on the 90th day, there were no papers or the charge-sheet in terms of Section 173 of the Code for the concerned Magistrate to assess the situation whether on merits the accused was required to be remanded to further custody. Though the charge-sheet in terms of Section 173 came to be filed on 05.07.2018, such filing not being in terms of the order passed by the High Court on 03.07.2018, the papers were returned to the Investigating Officer. Perhaps it would have been better if the Public Prosecutor had informed the High Court on 03.07.2018 itself that the period for completing the investigation was coming to a close. He could also have submitted that the papers relating to investigation be filed within the time prescribed and a call could thereafter be taken by the Superior Gazetted Officer whether the matter required further investigation in terms of Section 173(8) of the Code or not. That would have been an ideal situation. But we have to consider the actual effect of the circumstances that got unfolded. The fact of the matter is that as on completion of 90 days of prescribed period under Section 167 of the Code there were no papers of investigation before the concerned Magistrate. The accused were thus denied of protection established by law. The issue of their custody had to be considered on merits by the concerned Magistrate and they could not be simply remanded to custody dehors such consideration. In our considered view the submission advanced by Mr. Dave, learned Advocate therefore has to be accepted. We now turn to the subsidiary issue, namely, whether the High Court could have extended the period. The provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality. There are enactments such as the Terrorist and Disruptive Activities (Prevention) Act, 1985 and Maharashtra Control of Organised Crime Act, 1999 which clearly contemplate extension of period and to that extent those enactments have modified the provisions of the Code including Section 167. In the absence of any such similar provision empowering the Court to extend the period, no Court could either directly or indirectly extend such period. In any event of the matter all that the High Court had recorded in its order dated 03.07.2018 was the submission that the investigation would be completed within two months by a Gazetted Police Officer. The order does not indicate that it was brought to the notice of the High Court that the period for completing the investigation was coming to an end. Mere recording of submission of the Public Prosecutor could not be taken to be an order granting extension. We thus reject the submissions in that behalf advanced by the learned Counsel for the State and the complainant.

In our considered view the accused having shown their willingness to be admitted to the benefits of bail and having filed an appropriate application, an indefeasible right did accrue in their favour.

19. We must at this stage note an important feature. In Rakesh Kumar Paul (supra), in his conclusions, Madan B. Lokur, J. observed in para 49 as under:

“49. The petitioner is held entitled to the grant of “default bail” on the facts and in the circumstances of this case. The trial Judge should release the petitioner on “default bail” on such terms and conditions as may be reasonable. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the petitioner is entitled to petition for grant of regular bail which application should be considered on its own merit. We also make it clear that this will not impact on the arrest of the petitioner in any other case.” In his concurring judgment, Deepak Gupta, J. agreed10 with conclusions drawn and directions given by Madan B. Lokur, J. in paragraphs 49 to 51 of his judgment. According to the aforesaid conclusions, it would not prohibit or otherwise prevent the arrest or re-arrest of the accused on cogent grounds in respect of charge in question and upon arrest or re-arrest the accused would be entitled to petition for grant of regular bail which application would then be considered on its own merit.

20. We, therefore, allow this appeal and direct that the appellants are entitled to be admitted to bail in terms of Section 167(2) of the Code on such conditions as the trial Court may deem appropriate. The matter shall be immediately placed before the trial court upon receipt of copy of this Judgment. We also add that in terms of conclusions arrived at in the majority Judgment of this Court in Rakesh Kumar Paul (supra), there would be no prohibition for arrest or re-arrest of the appellants on cogent grounds and in such eventuality, the appellants would be entitled to petition for grant of regular bail.

Para 86 of the Judgment of Hon’ble Deepak Gupta

21. The appeal thus stands allowed.

(Abhay Manohar Sapre) …………………..……J.

(Uday Umesh Lalit)

The order reads thus:

“Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release.”

————————————————————————————————————————————————–Read the full Judgment————————————————–

HIGH COURT OF JUDICATURE AT ALLAHABAD

In Chamber

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 2249 of 2020

Applicant :- Suraj Kumar Singh

Opposite Party :- State of U.P.

Counsel for Applicant :- Brajesh Kumar Singh

Hon’ble Manoj Kumar Gupta,J.

This is second bail application seeking release of applicant on bail in Criminal Case No. 1789 of 2007 (State vs. Surendra Nath Dubey and others) arising out of Case Crime No.35 of 1994 under Sections 420, 467, 468, 406, 409, 411 IPC Police Station Panaki District Kanpur Nagar. The first bail application was rejected by this Court by order dated 21.11.2019 in the absence of counsel for the applicant by recording that either the trial had concluded or the applicant had lost interest in the matter.

The instant bail application has been filed wherein it is stated that trial is still pending. It is stated that initially the first bail application was filed through Sri M.N. Singh Advocate but lateron the applicant changed his counsel and engaged Sri B.K. Singh advocate. The mother of Sri B. K. Singh advocate had expired on 20.11.2019 on account of which the clerk could not mark the case in the cause list resulting in its rejection on 21.11.2019. It is thus not in dispute that the bail application was not rejected on merit but for non prosecution.

The allegation in the first information report is that 50 bundle of Janta Dhoti was taken out from godown of UPIKA for being sold in market in collusion with the employees of UPIKA and NCCF. The allegation against the applicant in the first information report is that the transaction got materialised through the applicant who is an employee of NCCF.

The submission is that there was no independent eye witness; that the applicant was falsely implicated; that initially the applicant was granted bail in the matter and he was duly appearing before the court on every date; since he was a resident of Aurangabad (Bihar) he was facing extreme difficulty in attending the court on each date; he filed application on 1.10.2019 for exemption of his personal appearance; the said application was allowed on 1.10.2019 itself; thereafter, the case was listed on 5.1.2000 on which date, counsel for the applicant could not appear as a result of which non bailable warrant was issued. The applicant challenged non bailable warrant before this Court by filing Criminal Misc. Application No.4420 of 2019 which was disposed of by order dated 7.2.2019. In pursuance of aforesaid order of this Court, the applicant surrendered before the trial court and moved bail application, but which was rejected. Learned counsel for the applicant states that the applicant has given specific undertaking in paragraph 28 of the affidavit filed in support of earlier bail application and the said undertaking is being reiterated once again that the applicant would appear on each and every date before the trial court and will not seek any unnecessary adjournment if enlarged on bail as he is languishing in jail since 6.3.2019.

Learned AGA Sri Pankaj Srivastava has opposed the bail application but did not dispute that initially the applicant was on bail but came to be arrested in pursuance of non bailable warrant, subsequent to rejection of his bail application. He submitted that in case of grant of bail, the trial court be directed to expedite the trial.

Having regard to the submissions made but without commenting on merits of the case, I am of the opinion that the applicant is entitled to be enlarged on bail subject to certain conditions.

Let the applicant Suraj Kumar Singh involved in aforesaid case crime be enlarged on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice.

(i) In the facts and circumstances of the case, the trial court is directed to expedite the trial of the case and make serious endeavour to conclude the same, preferably within a period of one year.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

(v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

(vii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

In view of the extraordinary situation prevailing in the State due to Covid-19, the directions of this Court dated 6.4.2020 passed in Public Interest Litigation No. 564 of 2020 (In re vs. State of U.P.), shall also be complied.

The order reads thus:

“Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release.”

(Manoj Kumar Gupta, J.) Order Date :- 29.5.2020

In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry.

Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. (See Pritish v. State of Maharashtra [Pritish v. State of Maharashtra, (2002) 1 SCC 253: 2002 SCC (Cri) 140].) In the same decision, the Court also took note of the following observations made by a Constitution Bench of this
Court in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 in relation to the scope of Section 340 of the CrPC:

In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint.” (emphasis supplied) Notably, however, the decision in Amarsang Nathaji did not take note of the contrary observations made in Sharad Pawar (supra).

. In any event, given that the decision of the three- Judge Bench in Sharad Pawar (supra) did not assign any reason as to why it was departing from the opinion expressed by a Coordinate Bench in Pritish (supra) regarding the necessity of a preliminary inquiry under Section 340 of the CrPC, as also the observations made by a Constitution Bench of this Court in Iqbal Singh Marwah (supra), we find it necessary that the present matter be placed before a larger Bench for its consideration, particularly to answer the following questions:

(i) Whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a Court?

(ii) What is the scope and ambit of such preliminary inquiry?

  1. Accordingly, we direct the Registry to place the papers before the Hon’ble Chief Justice for appropriate orders.

State of Punjab vs Jasbir Singh

CRIMINAL APPEAL NO.335 OF 2020

(Supreme Court of India )

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Criminal Misc. No.M-43750 of 2019 Date of Decision: 14.02.2020

Karan Chawla …Petitioner (s)

Versus

State of Punjab …Respondent(s)

CORAM:- HON’BLE MR. JUSTICE HARI PAL VERMA

Present:- Mr. S.P.S. Khaira, Advocate for the petitioner.

Ms. Ruchika Sabharwal, AAG, Punjab. ****

* HARI PAL VERMA, J. (Oral) Prayer in the present petition filed under Section 438 of the Code of Criminal Procedure, 1973 is for grant of anticipatory bail to the petitioner in case FIR No.0133 dated 18.08.2019 under Sections 376, 354, 511 IPC registered at Police Station Fatehgarh Sahib, District Fatehgarh Sahib.

The aforesaid FIR was registered on the statement of the prosecutrix with the allegations that on 17.08.2019, the prosecutrix suffered an accident and therefore, she was brought to Civil Hospital, Fatehgarh Sahib for treatment. In the Operation Room, when the doctor went away after treating her, a fat boy (the petitioner) Karan Chawla came inside  room, who firstly removed her sister-in-law from the Operation Room and then started molesting the prosecutrix. He bit her lips and removed her legging and started to touch her with finger.The prosecutrix started screaming and told the accused that she will tell her husband. The petitioner threatened her that in case she will tell this incident to anybody, he will kill her. At the same time, her husband and sister-in-law came and the accused suddenly disappeared. Later on, the prosecutrix came to know the name of the accused Karan Chawla, who was doing job in Civil Hospital.

On 16.10.2019, when this case was listed before this Court, following order was passed:-

 “Learned counsel for the petitioner refers to the statement of the attending doctor who has commented upon the behaviour of the complainant and her husband, who was allegedly under the influence of liquor, have misbehaved with the para-medical staff.

Dr. Jiwanjot Kaur was the Medical Officer and was performing emergency duty on 17.08.2019 has made a statement that the petitioner who was a Ward Attendant was present in the hospital and was helping her. She further states that husband of the complainant has assaulted the Staff Nurse and the Ward Attendant with the active sport of his relatives.

Notice of motion for 14.02.2020.

Till the next date of hearing, arrest of the petitioner shall remain stayed.”

Learned State counsel, on instructions from SI Amanpreet Kaur Brar, submits that the matter has been looked into by the police and a Special Investigation Team was constituted and on the basis of evidence so  adduced, including recording of the statements of attending doctor, lady attendant, staff nurse, police officials on duty and the security guard, the SIT has come to a conclusion that no such incident of alleged molestation has taken place and accordingly, the police has prepared cancellation report in the matter.

In view of the fact that SIT constituted in the case has not found anything in the case and thereby, cancellation report has also been prepared, the present petition is rendered infructuous

. Accordingly, the present petition is dismissed as infructuous.

However, this Court cannot ignore the fact that number of times, such like false cases are registered. Had there been no fair investigation, the petitioner would have to face trial. The police authorities are at liberty to proceed against the prosecutrix for lodging a false case, in accordance with law.

( HARI PAL VERMA )  JUDGE

Whether speaking / reasoned? Yes / No

Whether reportable? Yes / No

“The High Court ought to have kept in view that `Bail is rule and jail is exception’. There is no gainsaying that bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. In peculiar circumstances of this case where closure report was filed twice, the High Court ought not to have declined bail only because the trial court was yet to accept the said report. Further, the examination of witnesses would depend upon the fate of 2nd closure report. Considering the nature of allegations attributed to the appellant and the period he has already spent in custody, we are satisfied that he deserves to be released on bail forthwith.”


Jeetendra Vs. State of Madhya Pradesh & Anr.

[Criminal Appeal No.408 of 2020

arising out of Special Leave Petition (Crl.)No. 10145 of 2019]

  1. Leave granted.
  2. Rejection of third bail application by the High Court of Madhya Pradesh, Indore Bench has prompted the appellant to approach this Court. He has been in custody since 5th January, 2019 in connection with Crime No. 210/2012 registered at Police Station Chhatripura, Indore for offences punishable under Sections 420, 177, 181, 193, 200 and 120B of Indian Penal Code (for short, ‘IPC’).
  3. Briefly stated, the facts are as follows:
  4. Wife of the appellant lodged a case under Sections 498A, 323 and 506 of IPC against him, registered as Crime No. 96/2008, wherein the appellant was arrested. Later, he was released on bail upon furnishing bail bonds of Rs.7,000/along with documents of their residential property as a personal bond by his mother. Subsequently, the matrimonial dispute was amicably settled and as a result, the appellant was acquitted on 23rd April, 2010.
  5. On 20th May, 2012 , Dileep Borade (appellant’s cousin) and his son Vishal Borade lodged a complaint with Police alleging that documents of the residential property furnished as personal bond for appellant’s release on bail in the matrimonial case were forged. This led to registration of Crime No. 210/2012 for which the appellant is incarcerated for more than a year.
  6. From perusal of the record, we note that a closure report was filed by the Police on 24th May, 2013 in Crime No. 210/2012 but the learned Judicial Magistrate after five years ordered further investigation on 20th June, 2018. Consequently, appellant was arrested on 5th January, 2019 and denied bail by the Additional Sessions Judge. The High Court also vide order dated 22nd January, 2019 declined to release him on bail. Appellant filed a second bail application before the High Court, which was dismissed as withdrawn on 10th April, 2019 with liberty to apply again after examination of certain material witnesses. Meanwhile, the police reinvestigated the case and submitted a second report on 2nd September, 2019 stating that no offence has been committed by the appellant and he deserves to be discharged.

After filing of this closure report, appellant approached the High Court for a third time. But he was denied bail yet again vide the impugned order on grounds that the second closure report has not been accepted by the Trial Court and that appellant has failed to point out whether material witnesses have been examined or not. The appellant has thus been left with no other option but to approach this Court. While issuing notice, this Court on 14th November, 2019 directed that the appellant be released on interim bail.

  1. Having heard learned counsel for the parties as well as the counsel representing the complainant, we are satisfied that the appellant deserves to be enlarged on bail. The High Court ought to have kept in view that `Bail is rule and jail is exception’. There is no gainsaying that bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. In peculiar circumstances of this case where closure report was filed twice, the High Court ought not to have declined bail only because the trial court was yet to accept the said report. Further, the examination of witnesses would depend upon the fate of 2nd closure report. Considering the nature of allegations attributed to the appellant and the period he has already spent in custody, we are satisfied that he deserves to be released on bail forthwith.
  2. The appeal is thus allowed and the impugned order of the High Court dated 16th September, 2019 is set aside. The interim bail order dated 14th November, 2019 is made absolute. The appellant shall stand released on regular bail subject to the bail bonds already furnished by him to the satisfaction of the trial court.

……………………….CJI (S.A. BOBDE)

………………………..J. (B.R. GAVAI)

………………………..J. (SURYA KANT)