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The Hon’ble Court held that:-

For the time being, we are concerned with four categories of witnesses – a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorization of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.

In the present case, PW-5 Srinivasan is not only a related and interested witness, but also someone who has an enmity with the appellants. His evidence, therefore, needs to be scrutinized with great care and caution.

In Dalip Singh v. State of Punjab, 1954 SCR 145 this Court observed, without any generalization, that a related witness would ordinarily speak the truth, but in the case of an enmity there may be a tendency to drag in an innocent person as an accused – each case has to be considered on its own facts. This is what this Court had to say:

“A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”

  1. How the evidence of such a witness should be looked at was again considered in Darya Singh v. State of Punjab, (1964) 3 SCR 397. This Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities taken into account. It was observed that where the witness shares the hostility of the victim against the assailant, it would be unlikely that he would not name the real assailant but would substitute the real assailant with the “enemy” of the victim. This is what this Court said:

“There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim’s hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it…….. [I]t may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars.”

More recently, in Waman v. State of Maharashtra, (2011) 7 SCC 295 this Court dealt with the case of a related witness (though not a witness inimical to the assailant) and while referring to and relying upon Sarwan Singh v. State of Punjab, (1976) 4 SCC 369, Balraje v. State of Maharashtra, (2010) 6 SCC 673, Prahlad Patel v. State of Madhya Pradesh, (2011) 4 SCC 262, Israr v. State of Uttar Pradesh, (2005) 9 SCC 616, S. Sudershan Reddy v. State of Andhra Pradesh, (2006) 10 SCC 163, State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324, Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 and Vishnu v. State of Rajasthan, (2009) 10 SCC 477 it was held:

“It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinise their evidence meticulously with a little care.”

The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh and pithily reiterated in Sarwan Singh in the following words:

 

“The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration.”


 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1614 OF 2009

Raju @ Balachandran & Ors.              …..Appellant (s)

Versus

State of Tamil Nadu                           …..Respondent (s)

J U D G M E N T

Madan B. Lokur, J.

  1. The issue before us is whether the Trial Court and the High Court were both right in believing the testimony of PW-5 Srinivasan, a related and interested witness, that his brother Veerappan and his mother Marudayi were murdered by the appellants. Whether such an issue is of such public importance that it requires a decision from this Court is moot. But, be that as it may, we find no reason to disbelieve the witness and agree with both the Courts that his evidence should be accepted.
  1. Accordingly, we uphold the conviction and sentence of the appellants for having committed the murder of Veerappan and Marudayi. The facts:
  1. Appellant No. 1 (Raju @ Balachandran) is the father of appellant No. 2 (Rajkumar) and of appellant No. 3 (Sekar).
  1. The case of the prosecution was that there was some enmity between the appellants and Veerappan relating to a ritual called “Mandu Vettal” performed before worshipping God in their village. The enmity dated back to about 4 or 5 years prior to the incident that we are concerned with.

 

  1. On 4th May 2003 at about 5.30 a.m. Veerappan had gone to the tea shop of PW-7 Kamaraj and was returning along with PW-1 Thangavel and PW-5 Srinivasan (brother of Veerappan) who were following him. As Veerappan approached his house, the appellants stopped him in the middle of the road and attacked him. Raju dealt a sickle blow on his right leg below the knee. This was followed by sickle blows inflicted on his shoulder, neck and head by Raj Kumar and Sekar. Veerappan died instantaneously, his head having almost been severed from the body.
  1. On hearing some shouting, Veerappan’s mother Marudayi came out of her house. When she saw what was happening, she came to rescue Veerappan and confront the appellants. At that time, Raju dealt her blows with his sickle on her neck, shoulder and head. Marudayi succumbed to her injuries a short while later en route to the hospital, where she was being taken by PW- 5 Srinivasan.
  1. A First Information Report (FIR) of the incident was lodged by PW-1 Thangavel and thereafter investigations were started by the police.
  1. According to the prosecution PW-1 Thangavel and PW-5 Srinivasan were eye witnesses to the incident. Also, when the attack on Veerappan and Marudayi took place, PW-2 Smt. Thangammal (wife of Srinivasan), PW-3 Rajagopal and PW-4 Smt. T. Vasugi came out of their house and witnessed the incident.
  1. The appellants fled away after attacking Veerappan and Marudayi. Later on they surrendered in the local Court. When the investigating officer came to know of this, he sought their custody by moving an application in the Court. He was granted custody of the appellants on 14th May 2003. According to the prosecution, their confessional statement led to the recovery of the sickles used in the attack on the deceased. The clothes worn by the appellants were also recovered.
  1. On the conclusion of investigations, a challan was filed alleging that the appellants had murdered Veerappan and Marudayi. In Sessions Case No.76/2004 before the Additional District & Sessions Judge (Fast Track Court), Tiruchirapally, the appellants pleaded not guilty and claimed trial. The prosecution examined seventeen witnesses while the defence examined two witnesses.

Decision of the Trial Court:

 

  1. During the trial, PW-1 Thangavel, the author of the FIR, PW-3 Rajagopal and PW-4 Smt. Vasugi turned hostile. The Trial Judge was of the view that PW-2 Smt. Thangammal and PW-5 Srinivasan were eye witnesses and believed the testimony of PW-2 Smt. Thangammal (in part) and that of PW-5 Srinivasan (in full).
  1. The Trial Judge held that PW-2 Smt. Thangammal generally stated that all the appellants caused injuries to the deceased without being specific. Consequently, her testimony relating to the sickle blows was not accepted.
  1. As regards PW-5 Srinivasan, it was held that he was specific in saying that Raju injured Veerappan with a sickle on the right leg below the knee, while the other two appellants injured him on his shoulder and neck. The nature of injuries was confirmed by the doctor PW-8 Dr. Sumathi Paul Raj. The evidence on record showed that Veerappan’s head was almost severed from his body and his death was instantaneous. The Trial Judge also accepted the evidence of PW-5 Srinivasan that Marudayi was grievously injured by Raju on the head, neck and shoulder. Again, the nature of injuries was confirmed by the doctor PW-8 Dr. Sumathi Paul Raj who stated that Marudayi died as a result of the injuries.
  1. The Trial Judge rejected the contention that since PW-5 Srinivasan was the elder brother of Veerappan and son of Marudayi, his evidence was that of an interested witness and therefore should not be accepted. He also rejected the contention that since the evidence of PW-5 Srinivasan was not corroborated, his evidence should not be accepted.

 

  1. PW-6 Marudai, father of Veerappan and husband of Marudayi testified to the enmity between the parties as a result of the ritual “Mandu Vettal”.

 

  1. PW-7 Kamaraj the owner of the tea shop visited by Veerappan also turned hostile. He denied that Veerappan was followed by PW-1 Thangavel and PW-5 Srinivasan, but he did not deny that Veerappan had visited his tea shop on the fateful morning.
  1. The other witnesses examined by the prosecution were the doctors who conducted the post mortem, the officers who investigated the occurrence and some others whose testimony is not of much significance.
  1. The Trial Judge rejected the testimony of the two defence witnesses as not credible. DW-1 Murugesan stated that the appellants had come to his house on 3rd May 2003 and had stayed with DW-2 Smt. S. Vasantha. However, this witness was not aware about when the appellants had come to his house and after they left for the house of DW-2 Smt. S. Vasantha when did they return.
  1. DW-2 Smt. S. Vasantha was not believed since she stated that the appellants had gone to a temple festival in her village but there was nothing to support this statement.
  1. Based principally on the evidence of PW-5 Srinivasan and the recoveries made, the Trial Court, by its judgment and order dated 26th November 2004 convicted Raju for offences punishable under Section 341 of the Indian Penal Code (for short ‘IPC’) and Section 326 of the IPC in respect of Veerappan and Section 302 of the IPC for the murder of Marudayi. Rajkumar and Sekar were convicted of offences punishable under Section 302 of the IPC read with Section 34 thereof for the murder of Veerappan. Decision of the High Court:
  1. In Criminal Appeal No.4/2005 filed by the appellants before the Madras High Court it was contended that since PW-1 Thangavel, PW-3 Rajagopal and PW-4 Smt. Vasugi had turned hostile, there was no credible evidence against the appellants, more so, because the author of the FIR PW- 1 Thangavel had turned hostile. As such, the very basis of the case could not be relied upon.
  1. It was further submitted that the Trial Court had not fully believed PW-2 Smt. Thangammal and the only witness who came out in support of the case of the prosecution was PW-5 Srinivasan. It was submitted that there were some discrepancies in his evidence and as per the FIR he was not present at the place of occurrence. Therefore, it was submitted, the evidence of PW-5 Srinivasan could not be relied upon.
  1. On the credibility of PW-5 Srinivasan, it was contended that the medical evidence did not match with his oral evidence and it would be unsafe to rely on his oral description of the events. In addition, it was submitted that since PW-5 Srinivasan was a related and interested witness, his testimony should be closely scrutinized and on such close scrutiny it would turn out that he was not a reliable witness.
  1. The High Court rejected all the contentions urged on behalf of the appellants. It was held that there was no doubt that Veerappan and Marudayi died as a result of homicidal violence. It was further held that on an examination of the evidence of PW-5 Srinivasan it could not be said that he was an unreliable witness. While there may have been some minor discrepancies in his description of the events, he was believed by the Trial Judge and there was no reason for the High Court to disbelieve him.
  1. The High Court noted that on a reading of the FIR it was clear that PW-5 Srinivasan was present at the place of occurrence. In addition thereto, the FIR also mentioned that PW-1 Thangavel had asked PW-5 Srinivasan to take Marudayi to the hospital for treatment. Consequently, the presence of PW-5 Srinivasan at the place of occurrence could not be doubted.
  1. The High Court also held that there was some enmity between the appellants and Veerappan and on an overview of the entire case, the conviction handed down by the Trial Court must be accepted.
  1. Accordingly, the High Court, by its judgment and order dated 2nd August 2006 dismissed the appeal filed by the appellants. Discussion:
  1. Before us, only two contentions were advanced by learned counsel for the appellants. Firstly, it was contended that since PW-5 Srinivasan was a related and interested witness, his evidence must be closely scrutinized, and if his testimony is put to close scrutiny, it will be quite clear that he ought not to be believed. Secondly, it was contended that the prosecution case was doubtful since there was no evidence except the unreliable testimony of PW-5 Srinivasan.
  1. The first contention relates to the credibility of PW-5 Srinivasan. It was said in this regard that he was a related witness being the elder brother of Veerappan and the son of Marudayi both of whom were victims of the homicidal attack. It was also said that he was an interested witness since Veerappan (and therefore PW-5 Srinivasan) had some enmity with the appellants. It was said that for both reasons, his testimony lacks credibility.
  1. What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki, (1981) 2 SCC 752. It was held that:

“True, it is, she is the wife of the deceased; but she cannot be called an “interested” witness. She is related to the deceased. “Related” is not equivalent to “interested”. A witness may be called “interested” only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be “interested”.”

  1. In light of the Constitution Bench decision in State of Bihar v. Basawan Singh, AIR 1958 SC 500 the view that a “natural witness” or “the only possible eyewitness” cannot be an interested witness may not be, with respect, correct. In Basawan Singh, a trap witness (who would be a natural eyewitness) was considered an interested witness since he was “concerned in the success of the trap”. The Constitution Bench held:

“The correct Rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person.”

  1. The wife of a deceased (as in Kalki), undoubtedly related to the victim, would be interested in seeing the accused person punished – in fact, she would be the most interested in seeing the accused person punished. It can hardly be said that she is not an interested witness. The view expressed in Kalki is too narrow and generalized and needs a rethink.
  1. For the time being, we are concerned with four categories of witnesses – a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorization of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.
  1. In the present case, PW-5 Srinivasan is not only a related and interested witness, but also someone who has an enmity with the appellants. His evidence, therefore, needs to be scrutinized with great care and caution.
  1. In Dalip Singh v. State of Punjab, 1954 SCR 145 this Court observed, without any generalization, that a related witness would ordinarily speak the truth, but in the case of an enmity there may be a tendency to drag in an innocent person as an accused – each case has to be considered on its own facts. This is what this Court had to say:

“A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”

  1. How the evidence of such a witness should be looked at was again considered in Darya Singh v. State of Punjab, (1964) 3 SCR 397. This Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities taken into account. It was observed that where the witness shares the hostility of the victim against the assailant, it would be unlikely that he would not name the real assailant but would substitute the real assailant with the “enemy” of the victim. This is what this Court said:

“There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim’s hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it…….. [I]t may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars.”

  1. More recently, in Waman v. State of Maharashtra, (2011) 7 SCC 295 this Court dealt with the case of a related witness (though not a witness inimical to the assailant) and while referring to and relying upon Sarwan Singh v. State of Punjab, (1976) 4 SCC 369, Balraje v. State of Maharashtra, (2010) 6 SCC 673, Prahlad Patel v. State of Madhya Pradesh, (2011) 4 SCC 262, Israr v. State of Uttar Pradesh, (2005) 9 SCC 616, S. Sudershan Reddy v. State of Andhra Pradesh, (2006) 10 SCC 163, State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324, Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 and Vishnu v. State of Rajasthan, (2009) 10 SCC 477 it was held:

“It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinise their evidence meticulously with a little care.”

  1. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh and pithily reiterated in Sarwan Singh in the following words:

“The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration.”

  1. We have gone through the evidence of PW-5 Srinivasan by applying the discerning scrutiny standard and find it difficult to overturn the view expressed by both the Courts in their acceptance of his evidence. His description of the events is simple and straightforward and the cross- examination does not demolish his version of the events. In fact, the cross- examination is directed more at proving that one Subramaniam may have been the assailant since Veerappan had an illicit relationship with Subramaniam’s first wife Periammal. This was ruled out by PW-5 Srinivasan who did not want to shield the real assailant and put the blame for the occurrence on someone else.
  1. As far as the second contention is concerned, it overlaps with the first. Both the Trial Court and the High Court have concurrently held that PW-5 Srinivasan was an eye witness to the murder of Veerappan and Marudayi. The conclusion arrived at by both the Courts has not been shown to be perverse in any manner whatsoever nor has it been shown deserving of reversal.
  1. The presence of PW-5 Srinivasan at the place of occurrence cannot be doubted in view of the FIR lodged by PW-1 Thangavel and his testimony. Even though PW-1 Thangavel may have turned hostile, the fact remains that a report was made to the police about the homicidal attack on Veerappan and Marudayi. That there was a homicidal attack on them is not in dispute. This is confirmed even by the witnesses who turned hostile. It is also not in dispute that Veerappan died on the spot and that Marudayi was grievously injured. This too is confirmed by the witnesses who turned hostile. That PW- 5 Srinivasan took Marudayi to the hospital immediately after she was attacked is confirmed by PW-1 Thangavel. On the basis of these facts, which are evident from the record, there is no option but to accept the conclusion of both the Courts that PW-5 Srinivasan was present at the place of occurrence and was an eye witness to the incident. His testimony is not unreliable but is supported in its essential details by the testimony of the other witnesses.

Conclusion:

  1. We find the evidence of PW-5 Srinivasan credible notwithstanding that he was a related and interested witness. Accordingly, we uphold the conviction and sentence awarded to the appellants by the Trial Court and confirmed by the High Court.
  1. The appeal is dismissed.

.…….……………………..J.

(Swatanter Kumar) ….…….……………………..J.

(Madan B. Lokur)

What is Inquest Report ?

An inquest is a judicial inquiry in common law jurisdictions, particularly one held to determine the cause of a person’s death. Conducted by a judge, jury, or government official, an inquest may or may not require an autopsy carried out by a coroner or medical examiner.

Police to enquire and report on suicide, etc. As per Sec. 174 of Cr.P.C.

(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub- divisional Magistrate, shall proceed to the place where the body

of such deceased person is, and there, in the presence of two’ or more respectable inhabitants of the neighbourhood, shall make an investiga- tion, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any); such marks appear to have been inflicted.

(2) The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the District Magistrate or the Sub- divisional Magistrate.

(3) 1 When-

(i) the case involves suicide by a woman within seven years of her marriage; or

(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman; or

(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf; or

(iv) there is any doubt regarding the cause of death; or

(v) the police officer for any other reason considers it expedient so to do, he shall. subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination useless.

(4) The following Magistrates are empowered to hold inquests, namely, any District Magistrate or Sub- divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State Government or the District Magistrate.

In Podda Narayana v. State of A.P. AIR 1975 SC 1252 it was held that the proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under S. 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court. In Shakila Khader v. Nausher Gama AIR 1975 SC 1324 the contention raised that non-mention of a person’s name in the inquest report would show that he was not a eye- witness of the incident was repelled on the ground that an inquest under Section 174 Cr.P.C. is concerned with establishing the cause of death and only evidence necessary to establish it need be brought out. The same view was taken in Eqbal Baig v. State of Andhra Pradesh AIR 1987 SC 923 that the non-mention of name of an eye-witness in the inquest report could not be a ground to reject his testimony. Similarly, the absence of the name of the accused in the inquest report cannot lead to an inference that he was not present at the time of commission of the offence as the inquest report is not the statement of a person wherein all the names (accused and also the eye-witnesses) ought to have been mentioned. The view taken in Podda Narayana v. State of A.P. (supra) was approved by a three-Judge Bench in Khujji @ Surendra Tiwari v. State of Madhya Pradesh AIR 1991 SC 1853 and it was held that the testimony of an eye-witness could not be discarded on the ground that their names did not figure in the inquest report prepared at the earliest point of time. The nature and purpose of inquest held under Section 174 Cr.P.C. was also explained in Amar Singh v. Balwinder Singh 2003 (2) SCC 518. In the said case the High Court had observed that the fact that the details about the occurrence were not mentioned in the inquest report showed that the investigating officer was not sure of the facts when the inquest report was prepared and the said feature of the case carried weight in favour of the accused. After noticing the language used in Section 174 Cr.P.C. and earlier decisions of this Court it was ruled that the High Court was clearly in error in observing as aforesaid or drawing any inference against the prosecution. Thus, it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited, viz., to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eye-witnesses or the gist of their statement nor it is required to be signed by any eye-witness. In Meharaj Singh v. State of U.P. (supra) the language used by the legislature in Section 174 Cr.P.C. was not taken note of nor the earlier decisions of this Court were referred to and some sweeping observations have been made which are not supported by the statutory provision. We are, therefore, of the opinion that the observations made in paras 11 and 12 of the reports do not represent the correct statement of law and they are hereby over-ruled. The challenge laid to the prosecution case by Shri Jain on the basis of the alleged infirmity or omission in the inquest report has, therefore, no substance and cannot be accepted.

                                         Citation

Supreme Court of India

Radha Mohan Singh @ Lal Saheb & … vs State Of U.P on 20 January, 2006

CASE NO.:Appeal (crl.)  1183-1185 of 2004

PETITIONER:        Radha Mohan Singh @ Lal Saheb & others

Versus

RESPONDENT                         ……State of U.P.

DATE OF JUDGMENT: 20/01/2006

BENCH : Shri K.G. BALAKRISHNAN, ARUN KUMAR & G.P. MATHUR

Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has “reason to believe” that he may be arrested in a non-bailable offence. Use of the expression “reason to believe” shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere “fear” is not “belief” for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought.

The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail “whenever arrested for whichever offence whatsoever”. Such “blanket order” should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual’s liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed.”


REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

1 CRIMINAL APPEAL NO.   2049        OF 2013

(Arising out of S.L.P. (Crl.) No. 4102 of 2013)

State of Madhya Pradesh                               …. Appellant(s)

Versus

Pradeep Sharma                                             ….

Respondent(s)

WITH

2 CRIMINAL APPEAL No.   2050         OF 2013

(Arising out of S.L.P. (Crl.) No. 4406 of 2013)

J U D G M E N T

P.Sathasivam, CJI.

1)    Leave granted.

2)    These appeals are  filed  against  the  orders  dated  10.01.2013  and

17.01.2013 passed by the High Court of Madhya Pradesh Principal Seat at Jabalpur in Misc. Criminal Case Nos. 9996 of 2012 and 15283 of 2012 respectively whereby the High Court granted anticipatory bail to the respondents herein.

3)    Brief facts:

  1. a) The case  of  the  prosecution  is  that  Rajesh  Singh  Thakur  (the

deceased), resident of village Gopalpur, Tehsil Chaurai, District Chhindwara, Madhya Pradesh and Pradeep Sharma (respondent herein), resident of the same village, were having enmity with each other on account of election to the post of Sarpanch.

  1. b) On 10.09.2011, Pradeep Sharma (respondent herein), in order to get rid of Rajesh Singh Thakur (the deceased), conspired along with other accused persons and managed to call him to the Pawar Tea House, Chhindwara on the pretext of setting up of a tower in a field where they offered him poisoned milk rabri (sweet dish).
  2. c) After consuming the same, when he left the place to meet his sister, his condition started getting deteriorated because of vomiting and diarrhea. Immediately, the father of the deceased took him to the District Hospital, Chhindwara wherefrom he was referred to the Government Hospital, Chhindwara.
  3. d) Since there was no improvement in his condition, on 11.09.2011, he was shifted to the Care Hospital, Nagpur where he took his last breath. The hospital certified the cause of death to be poisoning. On the very same day, after sending the information to the Police Station, Sitabardi, Nagpur, the body was sent for the post mortem.
  4. e) Inder Singh Thakur-father of the deceased submitted a written complaint to the Police Station Kotwali, Chhindwara on 13.09.2011 suspecting the role of the respondents herein. After investigation, a First Information Report (in short ‘the FIR’) being No. 1034/2011 dated 18.10.2011 was registered under Sections 302 read with 34 of the Indian Penal Code, 1860 (in short ‘the IPC’).
  5. f) On 01.08.2012, Pradeep Sharma (respondent herein) moved an application for anticipatory bail by filing Misc. Criminal Case No. 7093 of 2012 before the High Court which got rejected vide order dated 01.08.2012 on the ground that custodial interrogation is necessary in the case.
  6. g) On 26.08.2012, a charge sheet was filed in the court of Chief Judicial Magistrate, Chhindwara against Sanjay Namdev, Rahul Borkar, Ravi Paradkar and Vijay @ Monu Brahambhatt whereas the investigation in respect of Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh Raghuvanshi (respondents herein), absconding accused, continued since the very date of the incident.
  7. h) On 21.11.2012, arrest warrants were issued against Pradeep Sharma, Sudhir Sharma and Gudda @ Naresh Raghuvanshi but the same were returned to the Court without service. Since the accused persons were not traceable, on 29.11.2012, a proclamation under Section 82 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) was issued against them for their appearance to answer the complaint.
  8. i) Instead of appealing the order dated 01.08.2012, Pradeep Sharma (respondent herein) filed another application for anticipatory bail being Misc. Criminal Case No. 9996 of 2012 before the High Court. Vide order dated 10.01.2013, the High Court granted anticipatory bail to Pradeep Sharma (respondent herein). Similarly, another accused-Gudda @ Naresh Raghuvanshi was granted anticipatory bail by the High Court vide order dated 17.01.2013 in Misc. Criminal Case No. 15283 of 2012.
  9. j) Being aggrieved by the orders dated 10.01.2013 and 17.01.2013, State of Madhya Pradesh has filed the above appeals before this Court.
  10. k) In the meantime, the respondents herein approached the Court of Chief Judicial Magistrate, Chhindwara for the grant of regular bail. Vide order dated 20.02.2013, the accused persons were enlarged on bail.

4) Heard Ms. Vibha Datta Makhija, learned senior counsel for the appellant-State and Mr. Niraj Sharma, learned counsel for the respondents.

5) The only question for consideration in these appeals is whether the High Court is justified in granting anticipatory bail under Section 438 of the Code to the respondents/accused when the investigation is pending, particularly, when both the accused had been absconding all along and not cooperating with the investigation.

6) Ms. Vibha Datta Makhija, learned senior counsel for the appellant- State, by drawing our attention to the charge sheet, submitted that the charges filed against the respondents/accused relate to Sections 302, 120B and 34 of the IPC which are all serious offences and also of the fact that both of them being absconders from the very date of the incident, the High Court is not justified in granting anticipatory bail that too without proper analysis and discussion.

7) On the other hand, Mr. Niraj Sharma, learned counsel for the respondents in both the appeals supported the order passed by the High Court and prayed for dismissal of the appeals filed by the State.

8) We have carefully perused the relevant materials and considered the rival contentions.

9) In order to answer the above question, it is desirable to refer Section 438 of the Code which reads as under:-

“438. Direction for grant of bail to person apprehending arrest.—(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely—

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

Xxx xxx xxx”

10) The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.

11) In Adri Dharan Das vs. State of W.B., (2005) 4 SCC 303, this Court considered the scope of Section 438 of the Code as under:-

“16. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has “reason to believe” that he may be arrested in a non-bailable offence. Use of the expression “reason to believe” shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere “fear” is not “belief” for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought.

The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail “whenever arrested for whichever offence whatsoever”. Such “blanket order” should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual’s liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed.”

12) Recently, in Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730, this Court, (of which both of us were parties) considered the scope of granting relief under Section 438 vis-à-vis to a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under:

“12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as “absconder”. Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.” It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail. In the case on hand, a perusal of the materials i.e., confessional statements of Sanjay Namdev, Pawan Kumar @ Ravi and Vijay @ Monu Brahambhatt reveals that the respondents administered poisonous substance to the deceased. Further, the statements of witnesses that were recorded and the report of the Department of Forensic Medicine & Toxicology Government Medical College & Hospital, Nagpur dated 21.03.2012 have confirmed the existence of poison in milk rabri. Further, it is brought to our notice that warrants were issued on 21.11.2012 for the arrest of the respondents herein. Since they were not available/traceable, a proclamation under Section 82 of the Code was issued on 29.11.2012. The documents (Annexure-P13) produced by the State clearly show that the CJM, Chhindwara, M.P. issued a proclamation requiring the appearance of both the respondents/accused under Section 82 of the Code to answer the complaint on 29.12.2012. All these materials were neither adverted to nor considered by the High Court while granting anticipatory bail and the High Court, without indicating any reason except stating “facts and circumstances of the case”, granted an order of anticipatory bail to both the accused. It is relevant to point out that both the accused are facing prosecution for offences punishable under Sections 302 and 120B read with Section 34 of IPC. In such serious offences, particularly, the respondents/accused being proclaimed offenders, we are unable to sustain the impugned orders of granting anticipatory bail. The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail.

13) In the light of what is stated above, the impugned orders of the High Court dated 10.01.2013 and 17.01.2013 in Misc. Criminal Case Nos. 9996 of 2012 and 15283 of 2012 respectively are set aside. Consequently, the subsequent order of the CJM dated 20.02.2013 in Crime No. 1034 of 2011 releasing the accused on bail after taking them into custody in compliance with the impugned order of the High Court is also set aside.

14) In view of the same, both the respondents/accused are directed to surrender before the court concerned within a period of two weeks failing which the trial Court is directed to take them into custody and send them to jail.

15) Both the appeals are allowed on the above terms.

………….…………………………CJI.

(P. SATHASIVAM) .………….……………………………J.

(RANJAN GOGOI) NEW DELHI;

The procedure laid down under Section 83 has to be followed strictly. Jurisdiction to pass attachment order cannot be assumed unless a proclamation under Section 82 Cr.P.C. has been issued. The normal rule is that the Court has to wait until the expiry of 30 days, to enable the accused to appear in terms of the proclamation. The words ‘at any time after the issue of proclamation’ are not to be interpreted in isolation. The key for gathering the intention of the law makers is to be found in Section 82 Cr.P.C. Sections 82 and 83 Cr.P.C. are to be read in harmony. Thus except in cases covered by the proviso to Section 82(1) the attachment order has to maintain a distance of not less than 30 days from the date of the publication under Section 82. The words ‘at any time’ in Section 83(1) only mean that if after the issue of proclamation either of the two conditions mentioned in Clauses (a) and (b) of the proviso to Section 83(1) come into existence, an order of attachment may be made without waiting for 30 days to expire. Even in such a case the Court has to record its reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence.

So, proclamation issued under Section 82 Cr.P.C. by the trial court is against the mandatory provisions of law and the same was invalid, consequently, proclamation issued under Section 83 Cr.P.C. also become void.


Delhi High Court

Rohit Kumar @ Raju S/O Late Sh. Om … vs State Of Nct Delhi

Author: V Gupta

Bench: V Gupta

JUDGMENT V.B. Gupta, J.

  1. Petitioner herein had earlier filed Crl.M.C.No.2952/2007 under Section 482 Cr.P.C. seeking quashing of order dated 31st May, 2007 and 25th July, 2007 passed by Sh. Rakesh Tewari, Addl.Sessions Judge in Criminal Complaint case, whereby he had issued non-bailable warrants and process under Section 82 and 83 Cr.P.C. against the petitioner.
  1. In that petition, it was also prayed that Addl.Sessions Judge be directed to bail out the petitioner in accordance with law and petitioner undertook that he will appear before the court of Addl.Sessions Judge, if directed and co-operate with the prosecution of the case on the next date of hearing, that is, 19th September, 2007.
  1. On that petition, this Court on 17th September, 2007passed the following order:

Keeping in view the facts and circumstances of the case, the execution of process under Section 82/83 Cr.P.C. issued against the petitioner is stayed till 19th September, 2007 provided the petitioner deposit a sum of Rs. 2,500/- as adjournment costs with the trial court by that date and appear before the trial court on that day.

  1. On 19th September, 2007 as directed by this Court, the petitioner appeared before the trial court who passed the following order, relevant portion of which reads as under:

Accused has appeared along with the counsel and has moved the bail application and annexed the copy of the order of the Hon’ble High Court of Delhi dated 17.09.07 in which he sought the stay of the order dated 31.05.07 and 25.07.07 whereby the process under Section. 82/83 Cr.P.C. was issued against the accused. The time requisite for process under Section. 82 Cr.P.C. had already expired on 29.08.07 when the process server returned the execution reports of the said process. Today the case was fixed for recording of the statement of the process server so that the accused could have been declared as a Proclaimed Offender and the case should have been fixed for recording the evidence under Section. 299 Cr.P.C. Although on 17.09.07 there was no cause of action in favor of the accused before the Hon’ble High Court of Delhi for stay of the said proceedings which were already executed but I take the spirit of the order and directed the accused to deposit the amount as cost as mentioned in the order which he has deposited with this Court.

  1. Thereafter, trial court heard arguments on bail application and rejected the bail application of the petitioner and took him into custody.
  1. Now, the present bail application has been filed on behalf of the petitioner and notice of the same was issued to State, as well as to respondent No. 2 and the trial court record was also summoned.
  2. It has been contended by learned Counsel for the petitioner that, in terms of the order dated 17th September, 2007, petitioner appeared before the trial court and deposited the costs of Rs. 2,500/-, but the trial court rejected the bail application, making certain observations as mentioned above. The trial court had no business to make such comments and it deliberately disregarded the order, dated 17th September, 2007 and rejected the bail application of the petitioner.
  3. With regard to the above observation made by the trial court, prima facie, it appears that the trial court was not at ease with the order dated 17th September, 2007 passed by this Court and the observation made by the trial court are uncalled for, as it cast aspertions on the functioning of this Court and the same have also been deprecated by the learned Counsel for the respondents.
  4. Brief facts of the case are that respondent No. 2, BSES Rajdhani Power Ltd. had filed a complaint under Section 151 read with Section 154 of the Electricity Act, 2003 against one Raju (user), the present petitioner on 13th April, 2007. After registration of the case, the Addl.Sessions Judge listed the matter on 7th May, 2007 for pre-summoning evidence. On that date, pre-summoning evidence was filed by way of affidavits and the same was closed and the trial court passed the following order:

From the perusal of the record and the statements of the said witnesses, I am satisfied that a prima facie case is made out against the accused under Section 135 of the Electricity Act, 2003. Let the accused be summoned for the said offence on filing of PF and RC and process be given dusty and accused be served through prescribed courier service also for 31.5.07.

Sd/-

Rakesh Tewari ASJ, Delhi/07.05.2007

  1. On 31st May, 2007, the trial court passed the following order:

Present: Deemed APP for the complainant The tenant at the premises in question informed that accused is residing at Daryaganj, Delhi.

Issue NBW against the accused through SHO, P.S. Sangam Vihar, New Delhi for 25.07.07.

Sd/-

Rakesh Tewari ASJ, Delhi/31.05.2007

  1. According to these proceedings, prima facie, it is apparent that the petitioner was never served with any summon nor he was avoiding to receive the summon. Be that as it may, on 25th July, 2007, the trial court passed the following order:

Present:- Deemed APP for the complainant company The accused being the landlord of the premises in question seldom visits the premises as per report on NBW.

Issue process under Section 82/83 Cr.P.C. against the accused through SHO, PS. Sangam Vihar, New Delhi on the last known address for 29.08.07.

Sd/-

Rakesh Tewari ASJ, Delhi/25.07.2007

  1. On 29th August, 2007, the following order was passed:

Present: Deemed APP for the complainant company Process under Section 82/83 Cr.P.C. received back against the accused. Let the Process Server be summoned for recording of his statement on 19.09.07.

Sd/-

Rakesh Tewari ASJ, Delhi/29.08.2007

  1. In the meanwhile, on 17th September, 2007, this Court has passed the order in Crl.M.C.No.2952/2007 as mentioned above.
  2. This observation made by the trial court that:- ‘Although, on 17th September, 2007, there was no cause of action in favor of the accused before the Hon’ble High Court of Delhi for stay of the said proceedings which were already executed but I take the spirit of the order…’ goes on to show that process under Section 82/83 Cr.P.C. was duly executed, but that was not the case in reality.
  3. It appears that the learned Addl.Sessions Judge is not aware with the basics of Code of Criminal Procedure, as it is apparent from record that process under Sections 82/83 Cr.P.C. was never executed in accordance with law. For his knowledge and reference, Sections 82 and 83 of Cr.P.C are reproduced as under:

Section 82. Proclamation for person absconding.-(1) Any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation.

(2) The proclamation shall be published as follows:

(i)(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

(c) a copy thereof shall be affixed to some conspicuous part of the Court- house;

(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in Clause (i) of Sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

(4) Where a proclamation published under Sub-section (1) is in respect of a person accused of an offence punishable under Section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code, and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

(5) The provisions of Sub-sections (2) and (3) shall apply to a declaration made by the Court under Sub-section (4) as they apply to the proclamation published under Sub-section (1).

Section 83. Attachment of property of person absconding.-(1) The Court issuing a proclamation under Section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment or any property, movable or immovable, or both, belonging to the proclaimed person:

Provided that where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued,-

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation.

(2) Such order shall authorise the attachment of any property belonging to such person within the district in which it is made; and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.

(3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-

(a) by seizure; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit.

(4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases-

(a) by taking possession; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit.

(5) If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court.

(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).

  1. The Code of Criminal Procedure has provided ample powers to execute a warrant. But if it remains unexecuted, there are two more remedies:

(i) issuing of a proclamation (Section 82)

(ii) attachment or sale of property (Section 83)

  1. The sine qua non for an action under Section 82 is the prior issuance of warrant of arrest by the Court. There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself so that such warrant can be issued. An attachment warrant can be issued only after the issuance of proclamation.
  2. The expression ‘reason to believe’ occurring in Section 82 Cr.P.C. suggests that the Court must be subjectively satisfied that the person has absconded or has concealed himself on the materials before him. The term ‘absconded’ is not to be understood as implying necessarily that a person leaves the place in which he is. Its etymological and its ordinary sense is to hide oneself. Further, under Section 82 Cr.P.C. the Court issuing proclamation must record its satisfaction that accused had ‘absconded’ or ‘concealed himself.’
  3. The three Clauses (a), (b), and (c) of Sub-section (2) (i) of Section 82 Cr.P.C. are conjuctive and not disjunctive. The factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of Sub-section (2) is optional; it is not an alternative to Clause (1). The latter clause is mandatory.
  4. Here the question to be seen is as to whether proclamation under Section 82 Cr.P.C. has been effected in accordance with law or not.
  5. As per proclamation under Section 82 Cr.P.C. placed on record, the same was issued on 27th July, 2007 directing the petitioner to appear before the court on 29th August, 2007. As per service report on the back of this proclamation, a copy of this proclamation was pasted on the house and another was pasted on the main door of the court, on 6th August, 2007.
  6. So, admittedly, as the proclamation has been effected on 6th August, 2007 and petitioner was given time to appear in the court on 29th August, 2007, the petitioner was granted less than thirty days from the date of publishing of the proclamation, to appear in the court. As per Section 82(1) Cr.P.C. the court was required to give time ‘not less than thirty days from the date of publishing such proclamation’.
  7. The proclamation issued under Section 82 Cr.P.C. requires appearance of the person, against whom warrant has been issued, at a specified time, at a specified place. The date fixed should be not less than thirty days from the date of publication of the proclamation. If that be so, simultaneous attachment of property cannot be effected.
  8. Since the proclamation under Section 82 Cr.P.C. had been effected only on 6th August, 2007, so the petitioner, could not be asked to appear before the court on 29th August, 2007, as specified time of not less than thirty days was not given to him.
  9. Now, coming to proclamation issued under Section 83 Cr.P.C, it was issued on 27th July, 2007 directing the petitioner to appear in the court on 29th August, 2007. As per service report on the back of this proclamation interestingly, it was effected only on 29th August, 2007, that is, the day on which the petitioner was supposed to appear in the court.
  1. The procedure laid down under Section 83 has to be followed strictly. Jurisdiction to pass attachment order cannot be assumed unless a proclamation under Section 82 Cr.P.C. has been issued. The normal rule is that the Court has to wait until the expiry of 30 days, to enable the accused to appear in terms of the proclamation. The words ‘at any time after the issue of proclamation’ are not to be interpreted in isolation. The key for gathering the intention of the law makers is to be found in Section 82 Cr.P.C. Sections 82 and 83 Cr.P.C. are to be read in harmony. Thus except in cases covered by the proviso to Section 82(1) the attachment order has to maintain a distance of not less than 30 days from the date of the publication under Section 82. The words ‘at any time’ in Section 83(1) only mean that if after the issue of proclamation either of the two conditions mentioned in Clauses (a) and (b) of the proviso to Section 83(1) come into existence, an order of attachment may be made without waiting for 30 days to expire. Even in such a case the Court has to record its reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence.
  2. So, proclamation issued under Section 82 Cr.P.C. by the trial court is against the mandatory provisions of law and the same was invalid, consequently, proclamation issued under Section 83 Cr.P.C. also become void.
  3. When on 29th August, 2007, no valid proclamation under Section 82 and 83 Cr.P.C. has been effected, then where was the question for the trial court for recording the statement of the process server so, that the petitioner could have been declared as a proclaimed offender and case should have been fixed for recording the evidence under Section 299 Cr.P.C. It appears that the trial court was in undue haste and was bent upon to declare the petitioner as proclaimed offender, without following the due process of law.
  4. So, the above mentioned orders passed by Sh. R.K.Tewari, Additional Session Judge goes on to show that he lacks even elementary knowledge about the Code of Criminal Procedure and also does not know as to in which cases and in what manner, proclamation under Section 82/83 Cr.P.C. are to be issued. In spite of the fact that Sh. R.K.Tewari has no basic knowledge of the criminal law, he has chosen to comment on the order passed by this Court, which amounts to judicial indiscipline.
  5. It also appears that, this judicial officer is not aware of the fact or does not have even that knowledge, that the sub-ordinate courts are, by way of constitutional provisions, bound by the decision of local High Courts as is every court in the country including the High Courts, are bound by the decision of the Supreme Court by virtue of provisions of Article 141 of the Constitution of India and on this point, judgment of this Court on its own motion v. Central Bureau of Investigation 2004 (72) DRJ 629 may be relevant and para 28 of it is reproduced as under:
  1. There is no gain saying the fact that the disobedience or disregard of the law laid down by the High Court by the subordinate courts is not only against the very concept of rule of law but also verges on the contempt of court as subordinate courts are, by way of constitutional provision, bound by the decision of the local High Court as is every court of the country including the High Courts, bound by the decisions of the Supreme Court by virtue of provisions of Article 141 of the Constitution. If the subordinate courts start ignoring the law laid down by their High Courts and start acting contrary thereto, then not only the legal anarchy will set in but the democratic structure of the country, rule of law and concept of liberty of citizens will be the first casualty.
  2. The observations made by the trial court in its order dated 19th September, 2007 are per se disobedience of the order passed by this Court and verges on the contempt of court. Since Sh. R.K. Tewari, Additional Session Judge does not have even elementary knowledge of the Code of Criminal Procedure, under these circumstances, it would be appropriate, if Sh.Rakesh Tewari, Addl.Sessions Judge, undergoes refresher course at Delhi Judicial Academy in criminal law and procedure, at the earliest and the District and Sessions Judge would see to it that name of this officer is recommended in the first available such course and this officer should undergo training in Dehli Judicial Academy, under the supervision of the Director, Delhi Judicial Academy at least for a period of three months and, Director, Delhi Judicial Academy, should submit to this Court, performance report, with regard to this judicial officer.
  3. Registrar General of this Court is directed to send the copy of this Judgment to all the Judicial Officers of Delhi for guidance and one copy be sent to the Inspecting Judge as well as one copy of Judgment be placed in the personal file of this Judicial Officer.
  4. Trial Court record be sent back forthwith. Ordered accordingly.