Criminal law governs crimes, including felonies and misdemeanors. Crimes are generally referred to as offenses against the state. The standard of proof for crimes is “beyond a reasonable doubt.” For information on particular crimes or issues surrounding the criminal law, please select from one of the topics below.Criminal law in India means offenses against the state, it includes felonies and misdemeanors. Criminal law is governed by Indian penal Code, CrP.C., Evidence Act etc.

BAIL

Bail is money or some form of property that is deposited or pledged to a court, in order to secure the release from custody or jail of a suspect who has been arrested, with the understanding that the suspect will return for their trial and required court appearances. Bail is a mechanism to release suspects from imprisonment pre-trial, while ensuring their return for trial. If the suspect does not return to court, the bail is forfeited, and the suspect may possibly be brought up on charges of the crime of failure to appear. If the suspect returns to make all their required appearances, bail is returned after the trial is concluded.

While considering bail applications of the accused, courts are required to balance considerations of personal liberty with public interest. The Supreme Court has laid down that foreign nationals cannot be deprived of the right to seek bail. The Delhi High Court observed, “Law does not permit any differentiation between Indian Nationals and Foreign citizens in the matter of granting bail. What is permissible is that, considering the facts and circumstances of each case, the court can impose different conditions which are necessary to ensure that the accused will be available for facing the trial. It cannot be said that an accused will not be granted bail because he is a foreign national.

The Code of Criminal Procedure, 1973 does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2(a) of the Code. A Bailable offence is defined as an offence which is shown as bailable in the First Schedule of the Code or which is made bailable by any other law, and non-bailable offence means any other offence. Further, Sections 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Code. Thus, it is left to the discretion of the court to put a monetary cap on the bond. In State Of Rajasthan, Jaipur v. Balchand @ Baliay [1977 AIR 2447] the Hon’ble Court held that the basic rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court.

Under the Code of Criminal Procedure 1973 (First Schedule), offences have been classified as “bailable” and “non-bailable” offences. In the case of bailable offences, if the accused produces proper surety, and fulfills other conditions, it is binding upon the investigating officer to grant bail. However, in case of a non-bailable offence, the police cannot grant bail; it can only be granted by a Judicial Magistrate/Judge. The Investigating Officer must produce the accused before the Judicial Magistrate / Judge concerned within 24 hours of his arrest. At that time, the accused has a right to apply for bail. Depending upon the facts of the case, the judge decides whether bail should be granted. If bail is granted the accused must deposit money with the court. Generally, for lesser crimes, a standard amount is asked to be deposited for awarding the bail.

In non-bailable cases, bail is not the right of the accused, but the discretion of the judge if regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. Section 437(3) elaborates the conditions set by the law to get bail in non-bailable offenses. The sub-section says that when a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-section (1). However, for that the Court has power to impose any condition which it considers necessary. Some conditions that the court may place while granting bail are to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or otherwise in the interests of justice.

Kinds of Bail

1. Anticipatory Bail: It is a form of bail granted to a person apprehending arrest. It is an order of the court to the investigation agency to release the man on bail in the event of his arrest. Anticipatory Bail is granted after the registration of FIR but BEFORE a person is arrested by police. If a person apprehends that he might be arrested, he may apply for an Anticipatory Bail.

Procedure to apply for it: A person should apply for bail under the relevant provisions of the Code of Criminal Procedure, 1973 (CrPC) depending on the kind of offence that the police has registered. Section 436 provides that when any person other than a person accused of a non-bailable offences is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such a person shall be released on bail.

2. Regular Bail: This form of bail is granted to a person who is already under custody. Regular Bail is applied for by a person AFTER his arrest. Since he has already been arrested and in the custody of police, he has to apply for Bail.

Procedure to apply for it: An application can be filed for regular bail before local magistrate under Section 437 of CrPC which provides that when bail may be taken in case of non-bailable offence.

3. Interim Bail: An order of bail granted as an interim measure before the regular bail is considered by the court. Interim Bail is like a temporary bail which may be granted till the time your application for Anticipatory Bail or Regular Bail is pending before a Court.

Kinds of Offences

1. Bailable Offence, means an offence, which has been categorized as bailable, and in case of such offence, bail can be claimed, subject to fulfillment of certain conditions, as a matter of right under Section 436 of the Cr.P.C. In case of bailable offences, the Police is authorised to give bail to the accused at the time of arrest or detention.

2. Non-bailable Offence, means an offence in which the bail cannot be granted as a matter of right, except on the orders of a competent court. In such cases, the accused can apply for grant of bail under Section 437 and 439 of the Cr.P.C. It is important to note that the grant of bail in a non-bailable offence is subject to judicial discretion of the Court, and it has been mandated by the Supreme Court of India that “Bail, not Jail” should be the governing and guiding principle.

3. Cognizable Offence has been defined under Section 2 (c) of Cr.P.C., as an offence in which a Police Office can arrest without a warrant.

4. Non-cognizable Offence/case, has been defined under Section 2 (l) of Cr.P.C., as an offence in which a Police Officer has no authority to arrest without a warrant.

Whether an offence/case is bailable or not bailable, and cognizable or non-cognizable, has been qualified under the 1st Table of the 1st Schedule of Cr.P.C., which relate to the offences under IPC.

FIR

In other words, FIR is a complaint regarding any cognizable offence occurred. FIR triggers the police investigation. Once FIR is registered, police get all powers of investigation u/s 156 of Cr.P.C. the powers include detention of suspects, arrest of the accused, search for evidence and if required seizure of evidence. Once investigation is completed, a charge sheet is submitted against the person provided there is sufficient evidence to prosecute.
As soon as the FIR, within 24 hrs, its copy is sent to the court having jurisdiction so courts are aware of every FIR registered and the police are expected to submit final report of the investigation.

Once an FIR has been filed the police are legally bound to start investigating the case. The process of investigation includes, but is not limited to, collecting evidence, questioning witnesses, inspecting the crime scene, forensic testing, recording statements and so on. If the criminals are found, the police will make arrests.
Once the investigation has been concluded the police will record all their findings in a ‘Challan’ or charge sheet. If it is deemed that there is enough proof on the charge sheet the case goes to court.
On the flipside, after their investigations if the police conclude that there is not enough evidence or proof that a crime has been committed they can close the case after justifying their reasons in court. If the police decide to close the case, they are bound to inform the person who filed the FIR of their decision.

The criminal investigation process and prosecution mechanism in India, can be started in any of the following manner:
a. On complaint /reporting /knowledge of the commission of a cognizable offence, any police officer, even without the orders of a Magistrate, can investigate the cognizable case. [Section 156 (1) of the Cr.P.C.]
b. In case of failure or inaction of a police officer to investigate a cognizable offence, a criminal complaint can be filed before a Magistrate under Section 190 of Cr.P.C., for taking cognizance of such offence, and on such complaint, the Magistrate himself can take cognizance of the case and do the enquiry, or in the alternative under Section 156 (3) of the Cr.P.C., order Police to register an F.I.R and investigate the offence.
c. In case of non-cognizable offence, Police is not obliged to investigate, and the judicial process can be started by filing a criminal complaint before the competent court, under Section 190 of the Cr.P.C.
What can you do if your FIR is not registered?
It is illegal to not register an FIR. The remedies available are:
1. You can meet the Superintendent of Police or other higher officers like Deputy Inspector General of Police & Inspector General of Police and bring your complaint to their notice.

2. You can send your complaint in writing and by post to the Superintendent of Police concerned. If the Superintendent of Police is satisfied with your complaint, he shall either investigate the case himself or order an investigation to be made.

3. You can file a private complaint before the court having jurisdiction.

4. You can also make a complaint to the State Human Rights Commission or the National Human Rights Commission if the police does nothing to enforce the law or does it in a biased and corrupt manner.

What is a zero FIR and when should it be used?
A zero FIR is used for crimes such as murder, rape etc. where immediate investigation is required and time cannot be wasted in reaching the police station under whose jurisdiction the crime falls. The main idea of a Zero FIR is to initiate the investigation or urge the police to take their initial action. Once you have lodged a Zero FIR, make sure that your complaint is not transferred to the appropriate police station in your jurisdiction without any initial action or investigation. A zero FIR is necessary for crimes where immediate action is required, eg in case of murder, rape etc, or when the police station under whose jurisdiction the crime was committed is not easily accessible, eg in case of crimes while travelling.

Quashing of FIR

Section 482 of CrP.C. lays down the law for quashing of FIR. It provides:

Saving of inherent powers of High Court; Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

The inherent powers of the High Court under Section 482 of CrPC can be exercised to quash proceedings, in appropriate cases either to prevent the abuse of the process of any courts or otherwise to secure the ends of justice.
Though the jurisdiction exists and is wide in its scope it is a rule of practice that it will only be exercised in exceptional cases., The section is a sort of reminder to the high courts that they are not merely courts in law, but also courts of justice and possess inherent powers to remove injustice. The jurisdiction under section 482 is discretionary, therefore the high court may refuse to exercise the discretion if a party has not approached it with clean hands
.
Under CrPC , inherent powers are vested only in the high courts and the courts subordinate to the high courts have no inherent powers. In Bindeshwari Prasad Singh v Kali Singh, the Supreme Court held that a magistrate has no inherent power to restore a complaint dismissed in default.

It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provision provided under the Code.- Kavita v. State (2000 Cr LJ 315) and B.S. Joshi v. State of Haryana (AIR 2003 SC 1386). If an effective alternative remedy is available, the high court will not exercise its powers under this section, especially when the applicant may not have availed of that remedy.

In the landmark case of State of Maharashtra v. Arun Gulab Gawali , the Court has held that quashing of an FIR is a step which permitted in extremely rare cases and to do the same the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence.

In the case of State of Haryana v. Bhajan Lal , the Hon’ble Court pointed out the categories of cases by way of illustration wherein power of Court be exercised either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. The grounds mentioned in the case of Sundar Babu v State of Tamil Nadu are :

1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Sec.156(1) of the Code except under an order of a Magistrate within the purview of Sec.155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Sec. 155 (2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

Kinds of Offences

I. Offences Related to Property

1. THEFT

Theft has been defined in Chapter XVII of the Indian Penal Code which deals with offences against property.
Section 378 defines theft as: Whoever, intending to take dishonestly any moveable property out of the possession of any person without that per¬son’s consent, moves that property in order to such taking, is said to commit theft.

Explanation 1.—A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.

Explanation 2.—A moving affected by the same act which affects the severance may be a theft.

Explanation 3.—A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by sepa¬rating it from any other thing, as well as by actually moving it.
Explanation 4.—A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.—The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied.

The key elements required for constituting the offence under Section 378 IPC are:
 Intention to take dishonestly a movable property.
 Taking of such movable property out of someone’s possession.
 Moving such property after the dishonest taking.

The key elements required to constitute the offence of theft were explained in great detail in the leading Supreme Court case of K.N Mehra v. State of Rajasthan:

1. Theft can only take place of a movable property.

 What is a movable property?

Section 22 of IPC defined the term movable property. It reads as: “The words “movable property” are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.”
So movable property would include any property which can be moved and would not include those properties which cannot be severed from the earth. For a better understanding, one can refer to Explanation 1 of Section 378 as given above.

 What all constitutes as movable property for the purpose of Section 378 IPC?

All properties which are not permanently attached to the Earth can be considered as movable property for the purpose of Section 378.

Important points to remember here:
• Animals can be treated as movable properties only when they were in possession of someone. If they are abandoned or stray animals, then moving and taking them away wont account for an offence under Section 378. For eg. If A catches fishes from a natural stream and take them with him, it won’t be theft. However if A takes away fishes from a pond situated on B’s land, he will be committing the offence of theft, as the pond comes within the area owned by B. (Also held under Chandi Kumar Das v. Abanidhar Roy: AIR 1965 SC 585)
• There are cases of theft of electricity. Per se for the purpose of Section 378 IPC electricity cannot be considered as a movable property but nevertheless it is considered as an offence of Section 39 of the Electricity Act, 2013 and subsequently punishable under Section 379 IPC.
• In cases of theft of water, when it is taken from pipelines owned by a person or from the field of some farmer, etc. it becomes an offence under Section 378. Collecting water from a public owned water body is not theft under Section 378.

2. The movable property should have been taken outside the possession of some person.

Section 378, 379 IPC protects the right of possession of the person holding the property when the offence of theft takes place. It is not necessary that the person possessing the property be the owner of the property.
Eg.1: A owns a car. He parked his car in front of a shop and went out to buy the groceries, leaving his key in the ignition and telling his friend B to take care of his car till the time he comes back. Here for the time being, B is in possession of the car, although the owner of the car is A.

The term “possession” has nowhere been defined in IPC. However, it can be understood briefly as having some control and some authority over the care of the property.

What are the different types of Possessions?

I. Actual Possession

It is also known as de facto possession which can be plainly inferred from the facts of a situation. It is indicated by actual physical possession over the property.
R v. Swinson case facts reflect on the meaning and scope of actual possession. In the above stated case, the complainant had found a lost purse and decided to keep it till the declaration of award money. As he did not having any intention of stealing the purse, he reported his finding to the accused, a police officer, but rather than recording the same he retained the purse, Here the accused too the purse out of the possession of the complainant, who was not its owner but the finder. Also the complainant was in actual possession of the purse as he was in physical possession of the same and had certain but not absolute control over the item.

II. Constructive Possession

It is also known as de jure possession or possession in law. A person is said to be in constructive possession if he is entrusted with the care of an item by a person who is the owner of that property. So the person entrusted with such care has no actual control over the property so entrusted in his possession.
Eg.: If A has a bike and he has to send the bike to some other location, he entrusts the railway authority with the care of his bike during the transportation. So here the concerned railway authority is in constructive possession of A’s bike as they do not have any actual control over his bike apart from what is directed by A, i.e. its transportation to the said destination.

In the case of R v. Thompson, an old lady gave Rs. 100 to a man to buy her a train ticket. The man ran off with her money. The court held that he was in constructive possession of the money and held him liable under Section 378 for theft as he did not follow the instructions for which the money was given by the old lady, the owner.

III. Joint Possession

It is the possession held jointly by several owners over the same property. So if a co-owner dishonestly takes the entire property or even one share of some other co-owner, without the consent of the latter, he will said to have committed theft.

Eg. If A and B are co-owners of a mill and A without the consent of B sells the entire mill to a third party. So here A sold B’s share in the mill without his consent, so he will be liable for theft.

Important points to remember here:

• Custody and possession cannot be used interchangeably in legal usage as they are two different terms in legal context. Mere custody over the property does not amount to possession of the property.

• As held by the Supreme Court in Pyare Lal Bhargawa v. State of Rajasthan, temporary deprivation of a person’s rightful possession over the property also amounts to theft as it is not necessary that such deprivation or moving out of the property from his possession should be permanent or for a long period of time.

3. There must have been a dishonest intention on part of the offender to take out that property from the possession of the person.

As required for most offences under IPC, presence of both actus reus and men area is necessary to constitute that offence. Actus reus constitutes the physical element, i.e. performing the unlawful act whereas mens rea constitutes the mental element, i.e. the guilty mind to commit that offence. So for the purpose of Section 378, the act of moving out the property from the possession of a person is actus reus and the presence of dishonest intention with the offender to carry such moving constitutes the mens rea.

The term “intention” has nowhere been defined in the IPC. Intention can be roughly defined as the purpose, the ultimate aim for whose achievement the act is committed. Intention denotes the consequence or the end result expected by the offender through the commission of the act. So in this manner, intention is the gist of the offence.

Dishonesty has been defined under Section 24 of IPC, under the term “dishonestly”.
A person is said to do a thing dishonestly if he does it with the intention to cause wrongful gain or wrongful loss to another person.

So a person is said to have a dishonest possession if by his act he intends to cause a ‘wrongful gain’ or ‘wrongful loss’ to another person. It is mandatory that there must be wrongful loss or wrongful gain to constitute dishonest intention.

Eg. 1 If A takes away B’s laptop which has some important information saved in it with the knowledge that it might cause wrongful loss to B and because of non-access to this information, B incurs a huge monetary loss. Then here A will be liable for theft as he possessed the dishonest intention towards removal of B’s laptop.

Eg. 2: If A had taken out B’s laptop to have fun with him or to teach him a lesson as to make him more careful about his things and had no intention to cause him any wrongful gain. Then in such case although A took the laptop out of B’s possession but he did not have any dishonest intention to cause him any wrongful loss. So A’s act will not constitute the offence of theft.

This can be well supported by the dictum given Supreme Court in Mohar Singh v. State of Rajasthan. In this case the accused had snatched the revolver from a person to prevent bloodshed and immediately surrendered the gun to the police. It was held by the court that the accused had not committed the offence of theft by snatching the gun as he in good faith had done so to stop the fight which might have had led to grave injury or murder.

4. Such taking out of the property should have been without the consent of the person possessing such property.

Such taking of the property should be without the consent of the person in possession of that property. There cannot be any offence of theft made out if such taking of the property is with the consent of the person possessing the property.

Consent given can be both express and implied, as given in Explanation 5 of Section 378.

Eg. 1: If A takes a book from the personal library of his very good friend B, who has repeatedly told A that the doors of his house are always open for A. So if A took the book under the assumption that B through this statement had impliedly given consent to him to take his things without asking, then A would not be said to have committed theft as he thought he has B’s implied consent.

Eg. 2: However as in the above situation, if B had himself told A to take his book, then it would have been expressed consent given by B to A as to authorize such taking.
In Musamat Piari Oulaiya , it was held that where a debtor gives up the property to his creditor and subsequently accuses his of theft as the debt turns out to be time- barred , then the creditor would not be liable for theft in such cases.

5. The property has to be moved in order of such taking.

There must be some moving of the property taken out along with the intention to take such property. If the offender is apprehended before he gets a chance to move out the property taken out, then he would not be liable for the offence of theft as all the ingredients for the said offence will not be present. Also it is necessary that whilst such moving the person facilitating such moving possesses a dishonest intention to cause wrongful gain to the other person from whose possession such property is being moved. If he moves this property unknowingly or in some bona fide belief as to save the property from harm, then he would not said to have committed the offence of theft.

Eg.1: A takes away B’s car keys and moves them with the dishonest intention as to devoid B from driving his car. Here A has committed the offence of theft.

Eg. 2: A takes away B’s car keys as to move his car from a flooded lane as to save his car from getting damaged. Here A moved the keys in good faith and did not have any dishonest intention to cause B any wrongful loss. So he would not be liable for the offence of theft.

Some Important Points to remember

• A bona fide claim over a disputed property is a complete defence for the charge of theft. However such claim should be actually made in good faith and should not be a result of pretence.
Eg: So if A removes crops from a patch of land in dispute believing in good faith that he has right over those crops so removed, he can use this as a defence against the charges of theft against him.

• Theft by owner of his own property is very much a possibility and in such cases the owner of the property himself will be charged for the offence of theft.
Eg: If A, an owner of goods, delivers them to B, to keep those goods in his safekeeping, and without informing B, steals them with intent to charge B, then A will be charged with the offence of theft.

• If a wife removes her husband’s property without his consent and with the dishonest intention to cause wrongful loss to her husband, she will be guilty of theft.
It is important to note here that if a Hindu wife removes stridhan without the consent of her husband, she would not be guilty of theft as it exclusively is her property even if it was in the possession of her husband.

 Punishment for Theft

Section 379 IPC provides for the punishment for the offence of theft. It provides that however commits theft shall be punished with imprisonment of either Simple Imprisonment or Rigorous Imprisonment for a term which may extend to three years or with fine, or both fine and imprisonment as provided.

Section 311 of Cr.P.C.

Section 311 in The Code of Criminal Procedure, 1973 reads as:-

Power to summon material witness, or examine person present:

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.

In Mohan Lal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as “any court”, “at any stage”, or “any enquiry or trial or other proceedings”, “any person” and “any such person” clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, “essential” to an active and alert mind and not to one which is bent to abandon or abdicate.”

Thus Section 311 of Crpc is divisible in two parts. In the first part, discretion is given to the Court and enables it at any stage of an inquiry, trial or other proceedings under the code, (a) to summon anyone as a witness, or (b) to examine any person in the court , or (c) to recall and re-examine any person whose evidence has already been recorded; on the other hand, the second part appears to be mandatory and requires the court to take any of the steps mentioned above if the new evidence appears to it essential to the just decision of the case. Kewal Gupta v State of H.P., 1991 CrLJ 400: 1989 (2) Crimes 635 (HP)

This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. [Zahira Habibullah Sheikh & Anr v State of Gujarat & Ors, (Crl. Apl No. 446-449 of 2004]

In Iddar & Ors. v Aabida & Anr. – AIR 2007 SC 3029, the object underlying under Section 311 Cr. P.C. has been stated as under in paragraph 11:

“The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is ‘at any stage of inquiry or trial or other proceedings under this Code’. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind”

The logic placed before the Court by the Court that the grievance can be made before the appellate Court after final conclusion of the trial by the aggrieved party and if the appellate Court finds that during the process the trial Court has committed a grave error and the same has resulted in the case of VC Shukla (Supra) should be read in correct perspective and till date, the Apex Court has not categorically propounded that each interim order passed after initiation of the criminal proceedings and between the institution of prosecution and its final conclusion, should be termed as an interlocutory order.

In Rajaram Prasad Yadav vs State of Bihar & Anr on 4 July, 2013 the court held that:

“A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained.

In Natasha Singh vs. CBI (State) – Criminal Appeal No.709 of 2013, the Court stated the position under paragraph 14:

“An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal, however, must be given to the other party.

Few Case Laws which established the position on Section 311:

Biswanath Ghosh v. State of W.B., 1987

It has been held that where the High Court acquitted the accused in appeal against conviction without waiting for arrival of records from the Sessions Court and without perusing evidence adduced by the prosecution, there was a flagrant miscarriage of justice and the order of acquittal was liable to be set aside. [Biswanath Ghosh v. State of W.B., (1987) 2 SCC 55]

Bhikari Charan Bhoi v State of Orissa, 1992

The Court has a duty to see that the witnesses are examined for just decision of the case and the court has to call and examine a witness as Court witness even if prosecution does not produce him when it finds that the evidence of the witness had an important bearing on the case. [Bhikari Charan Bhoi v State of Orissa, 1992 CrLJ 2592]

State of U.P. V. Shambu Nath Singh, 2001

It is the duty of the court to examine all material witnesses for the just decision of the case. [State of Gujarat v Senma Savabhai Bhikabhai, 1995 CrLJ 3061] If a witness is present in court he must be examined on that day. [State of U.P. V. Shambu Nath Singh, (2001) 5 SCC 667]

State of A.P. v. Gian Chand, 2001

Non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for being examined in the court. [State of A.P. v. Gian Chand, (2001) 6 SCC 71]

Amar Singh v. Balwinder Singh and Ors, 2003

In a case based upon direct eyewitness account, the testimony of the eyewitnesses is of paramount importance and if the appellate court reverses the finding recorded by the trial court and acquits the accused without considering or examining the testimony of the eyewitnesses, it will be a clear infraction of Section 386 CrPC. [Amar Singh v. Balwinder Singh and Ors., (2003) 2 SCC 518]

State of Harayana v Ram Parshad, 2006

Where the examination and re-examination of the witnesses is essential for the just decision of the case, it is obligatory for the Court to summon such a witness. [State of Harayana v Ram Parshad, 2006 CrLJ 1001 (1003)]

State of Madhya Pradesh v. Bhura Kunjda, 2009

It was observed that where the High Court has not cared to examine the details of the intrinsic merits of the evidence of the eyewitnesses and has rejected their evidence on general grounds, the order of acquittal passed by the High Court resulted in a gross and substantial miscarriage of justice so as to invoke extraordinary jurisdiction of the Supreme Court under Article 136 of the Constitution. [State of U.P. v. Sahai, (1982) 1 SCC 352] The said view was reiterated by a three-Judge Bench in the case of State of Madhya Pradesh v. Bhura Kunjda. [(2009) 17 SCC 34]

CONCLUSION

From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:

a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.

 

 

EXTORTION

Extortion has been defined in Chapter XVII of the Indian Penal Code which deals with offences against property.

Section 383 IPC defines Extortion as: “Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishon­estly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits extor­tion.”

The essential ingredients required to constitute the offence of Extortion are:

• Putting intentionally any person in fear of any injury to him or to some other person.
• The purpose of causing such fear should be to dishonestly induce the person so put in such fear.
• Such dishonest inducement should be for the purpose of making that person deliver a property or a valuable security.

• KEY ELEMENTS FOR OFFENCE OF EXTORTION

1. 1.      Intentionally putting a person in fear of injury.

• What is Intention?

The term “intention” has nowhere been defined in the IPC. Intention can be roughly defined as the purpose, the ultimate aim for whose achievement the act is committed. Intention denotes the consequence or the end result expected by the offender through the commission of the act. So in this manner, intention is the gist of the offence.

• What all injuries can be contemplated under Section 383 IPC?

The fear of injury as required under Section 383 IPC need not be only of bodily harm or hurt. It will also include injuries to mind, reputation or property of the person. (Abdulvahab Abdulmajid Shaikh v. State of Gujarat (2007) 4 SCC 257, 2007 Cri LJ 3529.)

Eg: If A threatens B that if he does not give him Rs. 1 lakh, he will publish defamatory comments about B, ruining his reputation and respect in the society. Here if B gives A the money under the fear of injury to his reputation then A would have said to committed the offence of Extortion.

In the case of Purshottam Jethanand v. State of Kutch (AIR 1954 SC 700), the accused was a police jamadar working in the local in the local investigation branch of the State of Kutch. He had visited a particular taluk  and checked passports of a number of persons who had returned from Africa. In the course of the check he collected the passport of one Ananda Ratna in a village and demanded a sum of Rs. 800 for its return. Accordingly the said amount was paid and the passport returned. The accused was convicted under s.384 IPC and it was contented before the Supreme Court that no fear of injury was held out by the accused necessary to support the conviction under S.384 of IPC.

The Hon’ble Supreme Court, however held that from the evidence it was found that the accused in the course of his check of the passports had suspicion that some of the passports were not genuine. There was an implied threat of prosecution in respect of the same and withholding of the passport on that threat. Even assuming that the passports were genuine, wrongfully withholding the same was equally a fear of injury. Also in the mentioned case, it is eminent that there was a fear of injury in the form of threat of criminal accusation. Hence the offence was covered under s.384 of IPC.

1. 2.              Purpose of such instillation of fear is to dishonestly induce the person so put in such fear

The term “dishonesty” has been defined under Section 24 of IPC. It reads as: Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing “dishonestly”.

So a person is said to do a thing dishonestly if he does it with the intention to cause wrongful gain or wrongful loss to another person.

The terms ‘wrongful gain’ and ‘wrongful loss’ have been defined under Section 23 of IPC.

“Wrongful gain” is the gain by unlawful means of property to which the person gaining is not legally entitled.  

‘Wrongful loss’ is the loss by unlawful means of property which the person losing it is legally entitled.

A person is said to gain wrongfully when such person retains wrongfully, as well as when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of a property .

• What is the meaning of dishonest inducement with reference to Section 383 IPC?

So for the purposes of Section 383 IPC ‘dishonest inducement’ means that the accused person/(s) instil fear in a person of causing injury to him or somebody else in order to wrongfully gain something and cause wrongful loss to that person who has been so put in such fear. It is for the court to decide as to what is the degree of fear which would justify a person of ordinary strength of mind in giving up his property, in order to escape from the injury which he is threatened with.

In Ramesh Chandra v. State of Uttar Pradesh (AIR 1957 SC 381), the accused had kidnapped a boy and wrote letters to the father of the boy stating that unless the ransom money was paid, the boy would be killed. The accused person was charged with the offence u/s 383 IPC because all the letters disclosed that the father of the boy was constantly under the fear that his son would be murdered.

1. Dishonest inducement should be for the purpose of making that person deliver a property or a valuable security

• The element of “delivery” is essential to constitute an offence under Section 383 IPC.

The element of delivery is essential to the offences of extortion and has been well reflected in the case of Jadunandan Singh V Emperor (AIR 1941 Pat. 129). In the instant case two persons were caught by the accused and severely beaten up and their thumb impressions were taken forcibly on pieces of paper. The High Court said that the accused could not be convicted under section 384 IPC because extortion involves necessarily the person put in fear of injury to rather thumb impressions were forcibly taken. It is also not a case of theft because papers were not taken from the victim’s possession.

The offence of extortion covers within its ambit the delivery of movable property as well as valuable security in effect to the dishonest inducement by the accused to inflict injury to the person so induced or to any other person.

The term ‘Valuable Security’ has been defined under Section 30 IPC which reads as:

“The words “Valuable Security” denote a document which is, or purports to be a document whereby any legal right is created, extended, transferred, restricted, extinguished or released or whereby any person acknowledges that he lies under legal liability or has not a certain legal right.”

The offence of extortion is carried out by overpowering the will of the owner and thereby inducing him to give up his own property.

The case of RS Nayak v. AR Antulay (AIR 1986 SC 2045) is noteworthy in this respect. In the instant case the respondent was the Chief Minister of Maharashtra at the relevant time. During this period, he formed seven trusts, one of which was Indira Gandhi Pratibha Prathis than (IGPP). The chief minister demanded that unless the sugar do-operatives who had placed a charter of demands before the Government of Maharashtra, made contributions to the IGPP, their demands pending before the government would not be acceded to. The entire official machinery, particularly of the Sugar Directorate, was utilised to pressurise the sugar federation for extracting the contributions. As a result of such extortion, several sugar factories had to yield and pay up.

It was contented by the respondent that in order that Section 383 IPC should apply, the respondent should threat to do or to omit to what he is legally bound to do in future. If all that a man does is to promise to do a thing which he is not legally bound to do, then such act would not amount to extortion.

The Supreme Court accepted the contention and merely held that merely because the respondent was the chief minister at that time and pressure was brought on sugar co-operatives to pay up donations as a measure of reciprocating for consideration of their demands pending before the government, it cannot be said that the ingredients of extortion was made out. Since the element of consent in voluntary act is necessary, it should be an act which the victim is legally bound to do in the future or an illegal omission.

• Punishment for Extortion

Section 384 IPC provides for punishment for extortion. It provides that whoever commits extortion shall be punished with simple or rigorous imprisonment for a term which may extend to three years, or with fine, or with both.

• Difference between theft and extortion

(1)   In extortion the consent of the person is wrongfully obtained by putting him in fear of injury to him or to some other person whereas in theft the element of consent does not arise only.

(2)   Theft can only be of movable property whereas extortion covers even immovable property including valuable securities.

(3)   In theft there is no element of force whereas in extortion putting a person in fear of some injury is an essential ingredient.

(4)   In theft of offender ‘takes’ property, whereas in extortion the victim ‘delivers’ property.

 

 

CHEATING

Cheating has been defined in Chapter XVII of the Indian Penal Code which deals with offences against property.

Section 415 IPC defines the offence of Cheating as: “Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat.”

Illustrations:

(a)  A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.

(b)  A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.

(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believing that the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the article. A cheats.

(d)  A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonoured, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.

(e)  A, by pledging as diamonds article which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.

(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.

(g)  A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.

(h)  A intentionally deceives Z into a belief that A has performed A’s part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.

(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats.

Section 415 IPC divides the definition of cheating in 2 parts:

Whoever by deceiving any person:

(1)   Fraudulently and dishonestly induces the person so deceived

(a)    To deliver any property, or

(b)   To consent that any person shall retain any property.

(2)   (a) Intentionally induces the person so deceived to do or omit to do anything which he would not to do or omit if he were not so deceived, and

(b)Which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to ‘cheat’.

INGREDIENTS TO CONSTITUTE AN OFFENCE UNDER SECTION 415 IPC

The main ingredients of Section 415 which have to be proved to obtain conviction for cheating are:

(1)   For the first part

(a)    The accused deceived some person,

(b)   By deceiving he induced that person,

(c)    The above inducement was fraudulent and dishonest, and

(d)   The person so induced delivered some property to or consented to the retention of some property by any person.

(2)   For the second part

(a)    The accused deceived some person,

(b)   The accused thereby induced him,

(c)    Such inducement was intentional,

(d)   The person so induced did or omitted to do something,

(e)    Such act or omission caused or was likely to cause damage or harm to the person so induced in body, mind, reputation or property.

IMPORTANT POINTS TO REMEMBER:

• In the first part of section 415 the victim is induced to deliver some property and such delivery is brought about by fraudulent and dishonest means used by the accused whereas in the second part there is no delivery of property but the victim is intentionally induced to do or omit to do anything which he would not do or omit had he not been induced. So in the second part, the inducement should not necessarily be dishonest or fraudulent but should be intentional.
• Distinction between mere ’breach of contract’ and the ‘offence of cheating’

Distinction depends upon the intention of the accused at the time of inducement which must be judged by his subsequent act but of which the subsequent act is not the sole standard. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent is dishonest intention is shown right at the beginning of the transaction that is the time when the offence is said to have that is the time when the offence is said to have been committed. Therefore, it is the intention which is the substance of the offence. It is necessary to show that he had fraudulent or dishonest intention at the time of making the promise to hold a person guilty for the offence of cheating. From his mere failure to keep up promise consequently such a culpable intention cannot be presume right at the beginning, that is when he made the promise.

INGREDIENT OF DECEPTION- A NECESSITY TO CONSTITUTE THE OFFENCE OF CHEATING

• The term ‘Deception’ in general sense means to lead into error by causing a person to believe what is false or to disbelieve what is true and this can be done so by spoken words or through the accused person’s conduct.

Since deception is the first stage to constitute the offence of cheating, if such deception is not present at the initial stages of committing the offence, the offence of cheating cannot be made out. So the deceit must be practiced before the property is delivered and the fraudulent and dishonest intention must be there at the time of making promise or representation.

• As provided under the Explanation of Section 415 IPC, a dishonest concealment of facts is tantamount to deception. Concealment can also be dishonest even in the legal obligation or duty to speak.

For eg: A, a distributor of batteries knew a certain batch of batteries to be faulty and was present when several batches including the faulty batch was being bought by a customer of B, the supplier to whom A has sold the batteries. Due to urgent dispatch of a pending order to the concerned customer, B ignored the fact that a certain set of batteries delivered by A were faulty and sold the same to his customer.

Here if the customer inquires about the quality of the dispatch, A has a legal obligation to inform him about the same and supposing if A is also present when such inquiry is being made by the customer, although he does not have a legal obligation to inform him about the faulty batch yet if he does not inform him about the same he would have said to have dishonestly concealed the fact.

• In Swami  Dhirendra Brahmachari v. Shailender Bhushan [(1995) Cr LJ 1810 (Del)], the accused was held to have knowingly made false assertions to the effect that the yoga course run by him was recognized by the Government of India thereby inducing unwary students to obtain admissions by paying Rs. 1,000 by way of caution deposit, thus cheating the students. The Delhi High Court refused to quash the criminal complaint of cheating pending against him since prima facie the material collected through investigation indicated deception on part of the accused.
• Deception and Cheating in connection with false promise of marriage.

For such cases to fall within the ambit of Section 415 IPC it is necessary to prove that the promise to marry by the accused for inducing the complainant to have sexual connection with him was false when he made it. In Mailsami v. State of Tamil Nadu [(1994) Cr LJ 2238 (Mad.)], the Madras High Court had to consider the case of an accused person who had made promises to marry a woman and thereby got close to her and made her pregnant and subsequently put a condition for marriage, that she had to get her six month’s pregnancy terminated. She did not consent to it and thus the accused refused to marry her.

The Madras High Court held that all the ingredients of Section 417 IPC were established including inducements which made the victim do something which she would not otherwise have done.

INDUCEMENT AS AN ELEMENT OF THE OFFENCE OF CHEATING

• Section 415 clearly shows that mere deceit is not sufficient to prove the offence. Also committing something fraudulently or dishonestly is also not sufficient. The effect of fraudulent or dishonest act must be such that induces the person deceived to deliver property or do something. It must however be proved that the accused had dishonest intention from the very beginning. If this is not proved then the dispute is only civil in nature. It is important to note that mere failure to keep one’s promise by itself does not amount to cheating.

• Mens Rea is one of the essential ingredients of the offence of cheating under Section 420 IPC and where it is not established, no offence of cheating can be made out. Mens rea is denoted through one’s intention or knowledge.

• Part 1 of the definition of cheating under Section 415 talks about dishonest or fraudulent inducement on part of the accused.

v  DISHONESTLY

• The term “dishonesty” has been defined under Section 24 of IPC. A person is said to do a thing dishonestly if he does it with the intention to cause wrongful gain or wrongful loss to another person.

The terms ‘wrongful gain’ and ‘wrongful loss’ have been defined under Section 23 of IPC.  A person is said to have gain wrongfully if he retains wrongfully or acquires wrongfully any propertyand a person is said to lose wrongfully when he is wrongfully kept out of any property or is wrongfully deprived of a property .

v  FRAUDALENTLY

The word ‘fraudulently’ is defined in section 25 of the Indian Penal Code, in the following terms:-

“A person is said to do a thing fraudulently if he does that thing with intent to defraud, but not otherwise.”

• Part 2 of the definition of cheating under Section 415 talks about intentionally inducing a person to do or omit to do something which he would not have done had it not be under such inducement.

v  INTENTION

The term “intention” has nowhere been defined in the IPC. Intention can be roughly defined as the purpose, the ultimate aim for whose achievement the act is committed. Intention denotes the consequence or the end result expected by the offender through the commission of the act. So in this manner, intention is the gist of the offence.

DAMAGE TO BODY, MIND, REPUTATION OR PROPERTY CAUSED OR LIKELY TO BE CAUSED.

• The use of the term ‘cause’ in Section 415 postulates a direct and proximate connection between the act or omission and the harm and damage to the victim. It excludes damage occurring as a mere fortuitous sequence, unconnected with the act induced by deceit.
• The definition of cheating includes all damages resulting or likely to result as a direct natural or probable consequence of the induced act. The loss or damage to the victim arising from the act of cheating must be proximate and not vague or remote. It must be a natural consequence of the act or omission in question and not a contingent one.
• When no damage is caused to Complainant: Hari Sao v. State of Bihar (AIR 1970 SC 843)

The appellants were alleged to have dishonestly induced the station master of a railway station to make an endorsement in the railway receipt of false particulars. The accused had obtained had obtained allotment of an entire rail wagon for the proposed consignment of 251 bags of chillies to Calcutta. The accused themselves had loaded the wagon. A day after the wagon had been sealed and made ready for dispatch, some seals were fund to be broken. The railway authorities checked the wagon and found only 197 bags filled with chaff and not chillies, as mentioned in the railway receipt.

The prosecution’s case was that this was a part of a conspiracy to later on convert the rail receipt to a valuable security, thereby committing the offence punishable u/s 420.

The Supreme Court held that a false representation made by the accuse to the station master leading to his making endorsement on the receipt, could not, even if established as a dishonest or fraudulent act, cause any damage or harm to the railway. Thus no question of cheating the railway or the station master arose and on that basis the court acquitted the accused persons.

PUNSIHMENT FOR CHEATING

• Section 417 IPC provides for punishment for simple case of Cheating. It reads as:

“Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”

• Section 420 IPC provides for punishment of aggravated forms or specified classes of cheating which is ‘Cheating and dishonestly inducing delivery of property’

Section 420 reads as: “Whoever cheats and thereby dishonestly induces the person deceived, to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

• The word property may simply be defined as all things which can be measured in value in money terms, including the money itself, and the said thing capable of being possessed by a person, to the exclusive use / enjoyment as owner of that thing from rest of the world.

• The offence of Cheating is Non cognizable and Bailable, and triable by any Magistrate.

 

 

Witness Protection

INTRODUCTION

A witness plays one of the key roles in determination and ascertaining of the final course of the trial and the basis of the decision of the court as to the conviction or acquittal of the accused person/(s). Due to the pivotal role of the witness in a trial, he is often subjected to threats by the parties and due to the fear so inflicted upon the mind of the witness, he turns hostile and refuses to testify or does not give the testimony as he earlier intended to give.

Owing to these reasons it becomes necessary to protect these witnesses so as to prevent them from turning hostile and make swift way for justice to prevail. There are witness protection programmes in a large number of countries all over the world. Sadly, India still lacks a well-functioning witness protection programme despite various attempts to improve it. Infrastructure and implementation continue to be poor and there are still a vast number of cases where the witnesses turn hostile. This paper discusses the concept of witness protection, and talks about programmes in a few countries. Further it analyses witness protection in India, the reasons for failure and finally suggestions to improve it.”

WHO IS A WITNESS? : DEFINITION

Generally the term “witness” means a person present at some event and able to give information about it. The word has its origin in old English word ‘witness’ which means ‘attestation of fact, event, and so on, from personal knowledge,’ also ‘one who so testifies,’ originally “knowledge, wit,” formed from wit (n.) + –ness.

Black’s Law Dictionary defines the term “witness” as follows: “In the primary sense of the word, a witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, “witness” has acquired the sense of a person who is present at and observes a transaction.”

A witness is an indispensable asset for any criminal justice system, since his testimony very much directs the judgement of the court determines in any case and it is the cornerstone on which the judge or jury places great reliance to render fairness and justice. For a fair trial a witness must depose without any force, fear and pressure subjected to him and his deposition should be out of his or her own free will and consent.

IMPORTANCE OF WITNESS PROTECTION AND THE NEED FOR AN EFFECTIVE WITNESS PROTECTION PROGRAM

Importance of a witness in a criminal proceeding

As concurred from the preceding section of the paper, a witness’s testimony plays a major role in deciding upon the guilt or innocence of the accused person/(s) by the court. Thus it becomes eminent to protect the interests of the witness as for the courts to effectively dispense justice in each case. The Hon’ble Supreme Court held in State of Gujarat v. Anirudh Singh(1997) 6 SCC 514) that: “It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence.”

In Zahira Habibulla H. Shiekh and Anr v. State of Gujarat and Ors (AIR 2000 SC 2017), the Court defined what a fair trial constituted- “in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.”

The great irony which lies  is that the offenders have a range of rights, ranging from both Constitutional as well as legal rights, the victims and the witnesses on the other hand, have a very limited range of rights. It becomes important for this reason that the importance of Witness Protection is to be studied, keeping in mind the fact that conviction rate is low in and acquittal rate is high in India.

The Supreme Court too observed in Swaran Singh v State of Punjab (AIR 2000 SC 2017), that the procedure being followed is one of reasons for a person to abhor becoming a witness.

The disturbing fact is that India, being one of the world’s biggest democracies does not have a Witness Protection law. In the event of the creation of such a law, the focus should be the protection of witnesses, not only before, but also during and after the trial.

Urgent need for enactment of witness protection laws in India

The threats given by either of the parties to the witnesses is one of the primary reasons for him/her to retract their earlier statements which they gave during the trial, and become a hostile witness, and falls back from further testifying.

In most cases involving influential people, it has been a general practice for the witnesses to retract from their original statements or to go into hiding due to the intimidation and threats given to them by either parties towards their life and destruction of property. The situation gets further aggravated as presently in India there is no legal obligation by the state for extending any security to the witness, if ever the need arises.

Political pressure, self-generated fear of police and the legal system, absence of fear of the law of perjury, an unsympathetic law enforcement machinery and corruption are some of the other reasons for witnesses turning hostile in the course of trial.

The Supreme Court in the case of Krishna Mochi v. State of Bihar (AIR 2003 SC 886) observed that society suffers by wrong convictions and it equally suffers by wrong acquittals. In this case the Supreme Court pointed out that one of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high ups in the Government or close to power which may be political, economical or other powers including muscle power.

WITNESS PROTECTION LAWS AND PROGRAMMES IN OTHER PARTS OF THE WORLD

International Law

Even in International Law, there is no hard and fast definition as to who constitutes a witness. Although the need for setting up separate witness protection units in the trial of mass crimes has been duly recognised by many international tribunals.

The International Criminal Tribunal for Rwanda has formulated a set of rules for protection of victims and witnesses and similar provisions exist in the abovementioned Statute for the creation of an International Criminal Court. It has identified that protection of witnesses is much necessary for proper carriage of justice and for restoration of a sense of human dignity in the witnesses. The list of duties for providing protective measures under the Statutes for the Yugoslav and Rwandan Tribunals includes:

• Delaying the disclosure of witness details to the defense
• Allowing testimony to be given by one way closed circuit television
• Closed session hearings
• The use of voice and image altering devices
• Total non-disclosure of information relating to the identity of the witness

The International Criminal Court has established a separate unit that provides support to the witnesses and responds immediately if the witnesses under the program receive any threats or intimidation. Moreover, the protection and support services are provided not only during the trial stage, but at all stages of the criminal proceedings, from investigation to post-trial, if required.

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power was adopted by the United Nations General Assembly in November 1985. According to this declaration, victims of crime have been defined as “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights.”

Article 14 of the International Covenant on Civil and Political Rights has recognized the right to fair trial as a basic human right. In the landmark case of Doorson v. Netherlands [(1996) 22 EHRR 330], the European Court had recognized that the witnesses should be accorded with much needed rights.

United States of America

The United States Federal Witness Security Program, commonly known as the Witness Security (WITSEC) Program is one of the most developed of all existing Witness Protection programs in the world. In the USA, agencies such as The United States Marshals Service, the Office of Enforcement Operations (OEO) and the Federal Bureau of Prisons (BOP) and The U.S. Attorney General’s office, are associated with the programme. The main purpose is to keep the witnesses safe so that they can testify at trials that could convict members of organized crime, dangerous criminals, gangs or terrorist networks. The Program assists in providing housing, medical care, job training and assistance in obtaining employment and subsistence funding until the witness becomes self-sufficient. The program is carried out in a specified procedure concerning the following steps:

(i)                 Before providing the witness protection funds, the concerned law enforcement agency must make an assessment, including an analysis of the extent the person or persons making the threats, whether they have the resources, intent, and motivation to carry out the threats which are so being made and how credible and serious these threats appear to be.

(ii)               The witness and his/her family members are then asked to sign a Memorandum of Understanding which is coordinated by multiple government agencies in total secrecy.

(iii)             The witness then receives a pre-admittance briefing by Marshals Service personnel and if he/she agrees to enter the program, he/she and his/her family are immediately removed from their current location and taken to a temporary, secure holding area.

(iv)             Further assistance in the form of finding a house, temporary employment and payment of a subsistence payment on average of $60,000 per year is provided to them as a part of the program. Further the witness is provided with new identity documents for him/her and family.

(v)               Once in the program, the Marshals Service provides 24-hour protection while they are in a high-threat area, including pre-trial proceedings and court appearances. Once assimilated into new environments, contact with the government is only required once per year or on case of emergencies.

The witness and his/her family presume new identities on the conclusion of the trial. Furthermore, protected witnesses are expected to become self-sufficient as soon as possible with the assistance from the Marshals Service.

Australia

The witness protection program constituted under the Witness Protection Act 1991 is an extremely comprehensive system. The definition of witness as given under Section 4 (2) (d) (of the Amending Act of 1996) in itself is very wide and includes in the term “witness” phrase “a person who, for any other reason, may require protection or other assistance under this Act.”

The Act expressly includes provisions of changed identities and the specific guidelines for changing identities with regard to the Register of births, deaths and marriages (under the Registration of Births Deaths and Marriages Act, 1959) etc, which are some exceptionally excellent provisions under the said Act.

United Kingdom

The U.K. Government enacted the Criminal Justice and Public Order Act, 1994 which provides for punishment for intimidation of witnesses. Section 51 of the said Act protects a person who is actually going to give evidence at a trial as well as a person who is helping with or could help with the investigation of a crime. Also it is noteworthy to observe that Sections 16 to 33 of the Youth Justice and Criminal Evidence Act, 1999 requires the court to consider special measures of various kinds for the protection of vulnerable and intimidated witnesses.

The Coroners and Justice Act, 2009 provides the procedure for application of Witness anonymity orders to be given. Witness anonymity order ensures that specified measures are taken in relation to a witness in criminal proceedings as the court considers appropriate to ensure that the identity of the witnesses are not revealed to ensure their safety. “Witness”, in relation to any criminal proceedings, means any person called, or proposed to be called, to give evidence at the trial or hearing in question. The personal details of witnesses may be withheld or removed from the documents disclosed to the parties or he may use a pseudonym, and it will also be ensured that he will not be asked any leading questions that will disclose his identity. Under section 17 (1) of the said Act, witnesses are eligible for assistance on grounds of fear or distress about testifying. A child witness (who is below the age of 17 at the time of hearing) may be accompanied by a witness supporter.

EXTENT OF DEVELOPMENT OF WITNESS PROTECTION PROGRAM IN INDIA

Witness Protection as embodied under Indian Statutes

(i)                 Code Of Civil Procedure

The word witness has nowhere been defined under the Code of Criminal Procedure.

Section 311 of Cr.P.C reflects upon the summoning of a witness or any person in attendance of the proceedings by the Court. It reads as: “Any Court may, at any stage of any inquiry, trial or other proceeding under the Criminal Procedure Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.”

Section 312 of Cr.P.C reads as: “Subject to any rules made by the State Government, any Criminal Court may, if it thinks fit, order payment, on the part of Government, of the reasonable expenses of any complainant or witness attending for the purposes of any inquiry, trial or other proceeding before such Court under this Code.”

(ii)               Indian Evidence Act, 1872

Evidence has been defined under Section 3 of the Indian Evidence Act, 1872 which also covers evidence of witnesses and documentary evidences. Chapter IX titled “OF WITNESSES” of the Indian Evidence Act, 1872 consists of seventeen Sections spreading from Sections 118 to 134. The main aspects are dealt with here are:

1. Competency [Sections 118 – 121, 133] – A witness is said to be competent when there is nothing in law to prevent him from being sworn and examined if he wishes to give evidence.

1. Compellability [Sections 122,123,124,125,126,127,129] – Further a witness though compellable to give evidence may be privileged or protected from answering certain questions. Even if witness be willing to depose about certain things, the court will not allow disclosure in some cases.

3. Quantity of Witnesses required for judicial decisions [Section 134] – There is no particular number of witnesses required for proof of any fact and this section enshrines the maxim that “Evidence has to be weighed and not counted”.

Then there is Section 151 and 152 of the Evidence Act which protects the witnesses from being asked indecent, scandalous, offensive questions, and questions which intend to annoy or insult them.

Other statutes also provide for some of the protection to witnesses. Section 17 of the National Investigation Agency Act, 2008 says that on an application made by a witness in any proceeding before it or by the Public Prosecutor in relation to such witness, if the Special Court is satisfied that the life of such a witness is in danger, it may take measures it deems fit for keeping the identity of such witnesses secret. Any person who contravenes any decision or direction with regard to this will be punished with imprisonment for a term which may extend to three tears and with fine up to one thousand rupees.

Decisions of the Indian Courts reflecting upon the pivotal role of the Witness and upon the importance of is/her protection

The earliest judgment which reflected upon the importance of a witness’s testimony and his protection was in Naresh Shridhar Mirajkar v. State of Maharashtra (1966 SCR (3) 744), wherein protection of publication of evidence of the witness was allowed by the High Court and later re-affirmed by the Supreme Court as otherwise the business interests of the witness would have been hampered.

The landmark case that brought witness protection into the light of judicial focus was the Zahira Habibulla Sheikh v. State of Gujarat (supra).  In the instant case, the Supreme Court decided to shift the venue of the case from Gujarat to Maharashtra since the Court felt that the witnesses would not be able to depose their statements freely in the said state. The Supreme Court reiterated “legislative measures to emphasise prohibition against tampering with witness, victim or informant, have become the imminent and inevitable need of the day.”

Again in Delhi Domestic Working Women’s Forum v. Union of India [(1995) 1SCC 14], the Supreme Court emphasised on the importance of maintaining the anonymity of the victims of rape who would be the key witnesses in trials involving the offence of rape.

The guidelines for witness protection laid down by the Delhi High Court in Neelam Katara v. Union of India (supra) but they did not deal with the manner in which the identity of the witness can be kept confidential either before or during the trial. The judgment of the Full Bench of the Punjab and Haryana High Court in Bimal Kaur Khalsa case (AIR 1988 P&H 95) which provides for protection of the witness from the media, also does not deal with all the aspects of the problem.

FAILURE TO IMPLEMENT AN EFFECTIVE WITNESS PROTECTION PROGRAM IN INDIA – CHALLENGES FACED TOWARDS WITNESS PROTECTION

There are many problems faced for formulation and effective implementation of witness protection programs like costs of its implementation and infrastructure. However the graver and pertinent problem is that of corruption in the Indian administration and judiciary. On these lines, the first and foremost step in developing an effective witness protection law is to acknowledge that witness protection is a duty of the State. Another problem is whether the statements of the witnesses should be recorded by a Judicial Magistrate or some other authority. It is observed that it is not viable in the present set-up with the low number of Courts and staff deficient Judiciary.

At present, in India, even the expert witnesses of the various forensic disciplines do not have any protection. One of the major reasons for witnesses not coming to testify against influential and notorious accused person/(s) is that there are so many social obligations on such witness and they are unwilling to uproot their comfortable lives to be in witness protection and starting off with new identities after the conclusion of the trial.

SUGGESTIONS FOR IMPROVED FORMULATION AND IMPLEMENTATION OF WITNESS PROTECTION PROFRMS IN INDIA

Protection may be given before, during and/ or after the judicial proceeding depending on the type of the witness, influential power of the accused, the connection he may have, the severity of the crime he is charged with or the degree of co-operation. Effective witness protection legislation should involve all these following three agencies –

(i)                 The Police,

(ii)               The Government, and

(iii)             The Judiciary

The government should display a political will to implement necessary Acts, the judiciary can look into the legal aspects and the execution may be entrusted to the police.

An independent witness protection cell should be constituted and it must arrange for the provisions of false identities, relocation and follow up. The witnesses should be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process. They should have access to information of the status of the investigation and prosecution of crime. Medical facilities, social services, state compensation, counselling, treatment and other support may be provided. Right to a speedy trial and prompt and final conclusion of the case after the conviction and sentence must also be ensured.

The police force should be given the freedom, subjected to reasonable restrictions, as to take basic measures to protect witnesses like surveillance, escorting the witness to work and court, assisting with emergency relocation etc. Measures should be taken by the courts to restrict public access to the witness’s identity including having a witness testify under a pseudonym. The use of practices such as videoconferencing, teleconferencing, voice and face distortion, and other similar techniques must be encouraged as well as allowing witnesses to conceal their address or occupation. The witnesses should be assured that those who want to testify have, on their side, the police and an impartial system.

CONCLUSION

Law is a means to achieve an end, and that end is justice. If this end is to be achieved, it is necessary for law to evolve with the needs of the changing society. On that note, it is crucial that Indian Legislature understands and acts upon drafting and implementing a common statute as to codify the much needed witness protection programs and prescribe appropriate penalties for non compliance with the provisions of the said statute. No nation can afford to expose its righteous and morally elated citizens to the peril of being haunted or harassed by anti social elements, for the simple reason that they testified the truth in a court of law.

 

 

 

Dying Declaration

Introduction

Dying declaration is based on the maxim “Nemo moriturus proesumitur mentiri”. It means a man will not meet his maker with a lie in his mouth. The statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death is called a dying declaration. Indian law recognizes the fact that ‘a dying man seldom lies, or truth sits upon the lips of a dying man.’ Section 32(1) of the Indian Evidence Act, 1872 explores the concept of dying declaration. Section 32 deals with the cases related to that person who is dead or who cannot be found. A dying declaration is called as ” Leterm Mortem”. The word Leterm Mortem means ”Words said before death”. A dying declaration is admissible in evidence even though it has not been made on oath and the person making it cannot be cross-examined. It is an exception to the rule of hearsay evidence. Admissibility of a dying declaration as a relevant piece of evidence is guided by the principle of necessity and religious belief of the olden days. The necessity being, that in cases, where victim is the only eyewitness to crime, the exclusion of his statement might defeat the ends of justice. The religious sanction behind admissibility comes from the belief that, a sense of impending death produces in a man’s mind the same feeling as that of a conscientious and virtuous man under oath. A person who makes a dying declaration must, however, be competent to make the statement at the time he or she makes it, otherwise, it is inadmissible. A dying declaration is usually introduced by the prosecution, but can be used on behalf of accused as well. Recording of dying declaration is very important task. Utmost care is required to take while recording a dying declaration. If a dying declaration is recorded carefully by the proper person, keeping in mind its essential ingredients, such declaration retains its full value.

Hearsay evidences are not given any weightage in the courts because the person who is giving this evidence is not telling his experiences but that of another person and who cannot be cross examined to verify the facts. Dying declaration is an exception to this rule because if this evidence is not considered very purpose of the justice will be forfeited in certain situations when there may not be any other witness to the crime except the person who has since died. Sometimes it the best evidence in such situations. Its admissibility is explained in the Section 32 (1) of Indian Evidence Act. According to this Section when the statement is made by a person as to the cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made this was expecting death or not. In English law he must be under expectation of death only then this declaration is valid. This declaration is valid both in civil and criminal cases whenever the cause of death comes into question. If we read the various judgments on the admissibility of dying declaration at times various judges have taken diagonally opposite views and different explanations have been offered though the motive in all have been to provide justice to the people. Main thing is that if these declarations seem trustworthy to courts these retain their full values. Most important point of consideration is that victim was in a fit condition of mind to give the statement when recording was started and remained in fit condition of mind till the recording of the statement finished. Merely stating that patient was fit will not serve the purpose. This can be best certified by the doctor who knows best about the condition of the patient. But even in conditions where it was not possible to take fitness from the doctor, dying declarations have retained their full sanctity if there are other witnesses to testify that victim was in such a condition of the mind which did not prevent him from making statement. Medical opinion cannot wipe out the direct testimony of the eyewitness stating that the deceased was in fit and in conscious state to make the dying declaration (Ram v. State, AIR 1988 SC 912). Second most important point to be considered is that it should not be under the influence of any body or prepared by prompting, tutoring or imagination. Even if any one of these points is proved then dying declaration is not considered valid. If it becomes suspicious then it will need corroboration. If a person has made more than one dying declarations and if these are not at variance with each other in essence they retain their full value. If these declarations are contradictory than these lose value.

Relevant Provisions

The Section 32(1) of the Indian Evidence Act is an exception to the principle that excludes the hearsay rule. Principle behind the concept of dying declaration is that the person having the first hand information about a particular matter, however due to death or any kind of disability is unable to appear before the court, then his/ her knowledge/ information should be transmitted to the court through some other person . This Section plays a significant role when the person having a particular knowledge is sought to be proved died or cannot be found or due to any reason his attendance cannot be procured in the Court. However, proof must be produced before the Court that why person could not be present to give evidence. Further Supreme Court of India has held that a dying declaration made by a victim, accusing a person of having been responsible for his/her death cannot form the basis of conviction if it suffers from infirmity. The statement made can be verbal/oral connected to the circumstances of transaction resulting in the death caused to that person; such statement must be made before dying known as “dying declaration”. Such statement plays relevancy when the person who is making the statement, is under expectation of death, irrespective of the nature of proceedings in which the cause of death comes into question. If the declarant survives after making the statement then it is inadmissible as dying declaration but the statement can be used under Section 157 of the Indian evidence Act, in order to contradict, corroborate, impeach or confirm the credit of the person by whom it was made.

A close scrutiny of Section 32 (1) of Indian Evidence Act, it is vividly known when the statement is made by a person with regard to the cause of his death, or any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant irrespective of the person who made such declaration was expecting death or not. Thus, it is apt to say that admissibility of Dying declaration is explained in the Section 32 (1) of Indian Evidence Act.

Precedents 

In Uka Ram v. State of Rajasthan Apex Court held that, “when a statement is made by a person as to cause of his death or as to any circumstances of transaction which resulted into his death, in case in which cause of his death comes in question is admissible in evidence, such statement in law are compendiously called dying declaration”.

The law does not make any distinction between a dying declaration in which one person is named and a dying declaration in which several persons are named as culprits. A dying declaration implicating one person may well be false while a dying declaration implicating several persons may be true. Just as when a number of persons are mentioned as culprits by a person claiming to be an eye-witness in his evidence in Court, the Court has to take care in deciding whether he has lied or made a mistake about any of them, so also when a number of persons appear to have been mentioned as culprits in a dying declaration the Court has to scrutinize the evidence in respect of each of the accused. But it is wrong to think that a dying declaration becomes less credible if a number of persons are named as culprits (Harbans Singh and Anr v. State of Punjab, AIR 1962 SC 439).

Also, Medical opinion cannot wipe out the direct testimony of the eyewitness stating that the deceased was in fit and conscious state to make the dying declaration (Ram v. State).  If a person making it is imbecile or is of tender age and was incompetent to testify due to this reason, then that dying declaration will not be regarded as a valid one (R. v. Pike). As a measure of safety original dying declaration should be sent to the court like FIR and its Photostat should be kept in the case file (State of Karnataka v. Shivalingappa). Even the “history” given by injured, recorded by doctor in the case file has been considered as dying declaration by the honorable Court if it is mentioned that the patient told in the history that incident occurred in such manner which was responsible for the death of the victim (State of Karnataka v. Shariff).

In Ram Nath v. State of Madhya Pradesh (AIR 1953 SC 420), Hon’ble Supreme Court held that: It is settled law that it is not safe to convict an accused person merely on the evidence of a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally or physically in a state of compassion and might be drawing upon his imagination while he was making the declaration. Thus, the Supreme Court has laid stress, as a safeguard, on corroboration of the dying declaration before it is acted upon.

But Later In Khushal Rao v. State of Bombay (1958 SCR 552), Hon’ble Apex Court held this observation to be in the nature of obiter dicta and observed that, “It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of the conviction unless it is corroborated.”

Thereafter, In Harbans Singh v. State of Punjab (1962 7 AIR 439), Hon’ble Supreme Court held that, “It is neither a rule of law nor of prudence that a dying declaration requires corroboration by other evidence before a conviction can be based thereon.

Further, In State of U. P. v. Ram Sagar Yadav (1985 AIR 416), Hon’ble Supreme Court observed that, “The primary effort of the court is to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing then the court may, for its assurance, look for corroboration to the dying declaration.

Where the deceased made the statement in Kannada and Urdu languages, it was held that the statement could not be discarded on that ground alone, or on the ground that it was recorded only in Kannada. Where the statement was in Telugu and the doctor recorded it in English but the precaution of explaining the statement to the injured person by another doctor was taken, the statement was held to be a valid dying declaration (Ramesh Gyanoba Kamble v. State of Maharashtra).

In Biju Joseph v. State of Kerala, it was held by the court that merely on the ground that the statement of the deceased was in her own language cannot vitiate the dying declaration. It was stated by the High Court of Kerala:

“Assuming that the deceased gave her statement in her own language, the dying declaration would not vitiate merely because it was recorded in a different language. We bear in mind that it is not unusual that courts record evidence in the language of the court even when witnesses depose in their own language. Judicial officers are used to the practice of translating the statements from the language of the parties to the language of the court. Such translation process would not upset either the admissibility of the statement or its reliability”.

The case of Kushal Rao v. State of Bombay set the importance of dying declaration and what is the right process to record it. In this case, if the dying declaration is recorded in question-answer form, if the medical certificate is given by the doctor, if it is recorded by the authorized person, then it is admissible and reliable. If there are multiple dying declarations, then court looks into all these points to see which dying declaration holds more evidentiary value (Multiple Dying Declaration). The Supreme Court has held that multiple dying declarations can be relied upon without corroboration if consistency is maintained throughout. Otherwise, the courts would have to examine the statement of other witnesses to ascertain the truth in a criminal trial.

In Pakala Narayan Swami v. Emperor, it was held that the letter given by the deceased to his wife before going to the place where he was killed was relevant. The court said that the statement made must be at any rate near death or the circumstances of the transaction explaining his death is relevant under Section 32 of Evidence Act. In this case, the court stated that dying declaration can be any statement that explains the cause of death or the circumstances of the transaction explaining his death. Hence, statements as to any of the circumstances of the transaction which resulted in the death would be included.

In Munnu Raja and Anr v. State of M.P., the Supreme Court of India held that statement by injured person recorded as FIR can be treated as dying declaration and such statement is admissible under Section 32 of Indian Evidence Act. It was also held that dying declaration must not cover the whole incident or narrate the case history. Corroboration is not necessary in this situation; dying declaration can be the sole purpose for conviction.

In Amar Singh v. State of Madhya Pradesh, it has been held by M.P. High Court that without proof of mental or physical fitness, the dying declaration is not reliable.

Conclusion

Dying declaration should be recorded very carefully keeping in mind the sanctity which the courts attach to this piece of evidence. It retains its full value if it can justify that victim could identify the assailant, version narrated by victim is intrinsically sound and accords with probabilities and any material evidence is not proved wrong by any other reliable evidence. It is perfectly permissible to reject a part of dying declaration if it is found to be untrue and if it can be separated. Conviction can be based on it without corroboration if it is true and voluntary. Dying declaration becomes unreliable if it is not as per prosecution version.

It is for the court to see that dying declaration inspires full confidence as the maker of the dying declaration is not available for cross examination. Court should satisfy that there was no possibility of tutoring or prompting. Certificate of the doctor should mention that victim was in a fit state of mind. Magistrate recording his own satisfaction about the fitness/mental condition of the declarant is not acceptable especially if the doctor was not available. Dying declaration should be recorded by the executive magistrate and police officer to record the dying declaration only if condition of the deceased was so precarious that no other alternative was left. Dying declaration may be in the form of questions and answers and answers being written in the words of the person making the declaration.

 

SCOPE OF SECTION 156(3) OF THE CODE OF CRIMINAL PROCEDURE

Introduction

In India, the administration of criminal justice system is controlled under the provisions of the Criminal Procedure Code, 1973 (hereinafter referred as the “Code”). Under the Indian criminal jurisprudence, the system accepts two procedures for redressing the grievance of a victim against the offender, which also includes  the one enforced by the State itself, due to the very reason that an offence is not only an offending act against the victim but also the State, as it holds the interest of public at large. It is to be noted that there is a distinction between the Criminal Procedure Code and the Criminal Law. The former is concerned with “how the law is enforced” and the latter with “what law is enforced”.

The two accepted methods for enforcing administration of the criminal justice system are:

(i)                 A direct access and invocation of the Courts system, OR

(ii)               Adopting the channel through the State agency, i.e. the Police/Investigating agency.

The option is available to a complainant or a victim or anybody for that matter, and it is at the discretion of any such complainant or an aggrieved person to opt either of the methods. The provisions of the Code provide a detailed statutory scheme for invocation, implementation, trial and punishment of a guilty person under these different methodologies.

Relevant Sections of Cr.P.C as referred to in the article

(i)                 Section 154

(ii)               Section 156

(iii)             Section 173

(iv)             Section 202

Methods for enforcing administration of criminal justice system

(A)             Adoption of channel through the State Agency

Wherein a person chooses to approach a police station to report a cognizable offence, the police is under an obligation to register First Information Report (FIR). [Exception to this rule is that the police may not register an FIR in certain exceptional cases which require some kind of preliminary inquiry, which may be necessary due to the facts and circumstances of that case].

However, in the abovementioned exception, the officer in charge of a police station is under the obligation to make an entry in the daily dairy register as per the Police rules and thereafter within the shortest possible time must register and FIR in accordance with law.

The information under Section 154 of the Code is generally known as first information report. It is important to note that the word “first” is not used in section 154 of the Code.

The Hon’ble Supreme Court in T.T.Antony v. State of Kerala & Ors [Criminal Appeal 689 of 2001], laid down certain important points regarding Sec. 154 of the Cr.P.C

“Information given under sub-section (1) of Section 154 of Cr.P.C., is commonly known as the First Information Report (FIR), though this term is not used in the Code….And as its nick name suggests, it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station”. 

(B)   Approaching the Courts

Where a person has approached the police station under Section 154 of the Code, but the police officer does not register FIR as contemplated under law, he has a right to make a complaint to the higher authorities under Section 154(3) of the Code. Such higher authority exercising the powers of an officer in charge of a police station would investigate the matter himself or direct the investigation to be conducted by another police officer subordinate to him. In the event as stipulated u/s 154(3), the information of any kind received by the officer in charge of the police station relates to commission of a non-cognizable offence, he is obliged to proceed in accordance with the provisions of Section 155 of the Code.

The legislature has provided a specific protection under Section 156(3) of the Code. Section 156(3) provides that:

“Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.”

It instills the right to a person (complainant or victim) to approach the court of competent jurisdiction for issuance of direction to the police officer to investigate the matter in accordance with law. Once the investigation is completed by the investigating agency, the said agency is required to file appropriate report in terms of Section 173 of the Code, whereupon the Court competent, to try such an offence would take cognizance and conduct the trial against the offender in accordance with law.

So if action is not taken by the officer in charge of the police station, as under section 154(3) of the Code, then any person has a right to invoke the power of the court under section 156(3) of the Code.

Section 154 of the Code basically relates to providing of information to a police officer in charge of the police station, who then in case of a cognizable offence has the power to start investigation forthwith in terms of Section 156(1) of the Code, where he does not need an order of a Magistrate directing investigation. In the case of Lalita Kumari v. State of U.P. & Ors. [2014 (2) SCC 1], the Hon’ble Supreme Court of India held that the registration of First Information Report is mandatory in Cognizable offences and action will be taken against the police officer for his failure to register a First Information Report on the complaint of a cognizable offence.

The Hon’ble Bombay High Court in State of Maharashtra v. Shashikant Shinde [All MR (Cri) 3060], held that when a petition or complaint is presented before the Magistrate, in which a request is made for taking action as mentioned in section 2(d) of the Code, the Magistrate is expected to apply his mind. The Magistrate has to ascertain as to whether the contentions made in the petition/complaint constitute any offence. If an offence is made out from such contentions in the complaint/petition then the Magistrate is expected to take decision as to whether the matter needs to be referred to police for investigation as provided under section 156 (3) of the Code or he needs to proceed further as provided in section 200 and subsequent sections of Chapter XV of the code. There is discretion with the Magistrate in this regard.

Under Section 156 of the Code, the police have statutory rights to investigate the circumstances of an alleged cognizable offence without any authority from the Judicial Officers. Neither the magistrate nor even the High Court can interfere with those statutory rights by exercising the inherent jurisdiction of the Court. The powers of the police officers under section 156 (1) of the Code are independent. In State v. Bhajan Lal [AIR 1992 SC 604], it has been observed by the Apex Court that “The field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the Courts cannot have control so long as the investigation proceeds in compliance with the provisions relating to investigation.”

The Apex Court in CBI & Another v. Rajesh Gandhi and Another [1997 Cr.L.J.63], held that no one can insist that an offence be investigated by a particularly agency. This view was upheld in Sakiri Vasu v. State of U.P. & Another [2008 (2) SCC 409]. Furthermore in this case it was held that if a person has a grievance regarding the non-registration of the FIR by the police under Section 154 of the Code, then he can approach the Superintendent of Police under Section 154(3) of the Code by an application in writing. Even then if there are no satisfactory results in terms of either registration of an FIR or even after registration of the FIR, lack of proper investigation, it is open to the aggrieved person to file an application under Section 156(3) of the Code of before the Magistrate with virtue of which the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made.

The Magistrate can also, under section 156(3), monitor the investigation to ensure a proper investigation. The Hon’ble Supreme Court in Mohd. Yousuf vs. Smt. Afaq Jahan & Another, [AIR 2006 SC 705], it is observed that, any Judicial Magistrate, before taking cognizance of the offence, can order investigation under section 156(3) of the Code of Criminal Procedure. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register the FIR and it will be within the powers of the Magistrate to do so. Even if a Magistrate does not expressly state in his words for the registration of the FIR while directing investigating under section 156 (3) of the Code, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint. The same view was taken by the apex court in Dilawar Singh v. State of Delhi [Appeal (Crl.) 491 of 2002].

It is only in case of deciding whether the material is sufficient or not to take cognizance of the offence, the magistrate may refer the matter to the police under section 156 (3) of the Code for the purpose of investigation. So once the Magistrate after scrutinizing the complaint, the sworn statements and other material comes to the conclusion that he can take cognizance of the offence, there is no need to have a resort to section 156(3) of the code of Criminal Procedure.

There can be the following possibilities after the examination of the complainant and the witnesses, if any, on oath, as contemplated under section 200 of the Code.

(i)                 The Magistrate may come to the conclusion about sufficient grounds for proceeding and dismiss the complaint.

(ii)               The Magistrate would neither be able to form an opinion about sufficiency of the grounds for proceeding further, nor would he be able to come to the conclusion that the complaint deserves to be dismissed. It is only in such cases that he would take recourse to the provisions under section 202 of the Code and direct investigation and / or inquiry into the matter (as reflected in Subhash Kanade vs. State of Maharashtra [Writ Petition no. 4300/201] – Bombay High Court Judgment.

Difference between power to order police investigation and power to direct investigation

The power to order police investigation under section 156(3) of the Code is different from the power to direct investigation conferred by section 202(1) of the code. The two sections operate in distinct spheres and at different stages.

• Power u/s 156(3) is exercisable at the pre-cognizance stage and the power u/s 202 is exercised at the post-cognizance stage when the Magistrate is in charge of the case.

So in case of a complaint regarding the commission of a cognizable offence, the power under section 156(3) of the Code can be invoked by the Magistrate before he takes cognizance of the offence under section 190(1) (a) of the Code. But once he takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail section 156(3) of the Code.

The expression ‘taking cognizance’ has not been defined in the Code. However, the Calcutta High Court in Legal Affairs v. Abani Kumar Banerjee [AIR 1950 Calcutta 437], held that when the Magistrate applies his mind not for the purpose of proceedings under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. ordering investigation under section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.

In S.K. Sinha Chief Enforcement Officer v. Videocon International Ltd. And Ors [(2008) 2 SCC 492], the apex court explained that the expression “cognizance” has not been defined in the Code but the word is not found of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means “become aware of” and when used with reference to a Court or a Judge, it connotes “to take notice of judicially”. Taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. “Taking of cognizance is thus a sine quo or condition precedent for holding a valid trial. It is also settled that cognizance is taken of an offence and not of an offender.

Therefore, it is clear that, directing investigation under section 156(3) of the Code is at a pre-cognizance stage. The Magistrate exercising his power under section 156(3) of the Code, can direct registration of an FIR and his jurisdiction is not only limited to directing investigation of the offence. We would hasten to add here that this dictum of law is not free from exception. There can be cases where noncompliance to the provisions of section 154(3) of the Code, would not divest the Magistrate of his jurisdiction in terms of Section 156(3) of the Code. There could be cases where the police fail to act instantly and the facts of the cases where the police fail to act instantly and /or tampered with or an applicant could approach the Magistrate under section 156(3) of the code directly by way of an exception as the Legislature has vested wide discretion in the Magistrate.”

It is important to note that no particular format is provided for the making of complaint under section 156 (3) of the Code of Criminal Procedure. However the Hon’ble Bombay High Court in Mr. Panchabhai v. State of Maharashtra [All M.R. (Cri) 244] held that “A petition under section 156 (3) cannot be strictly construed as a complaint in terms of Section 2 (d) of the Code and absence of a specific or improperly worded prayer or lack of complete and definite details would not prove fatal to a petition under section 156 (3) of the Code. He may direct the investigation under section 156 (3) of the Code or take the cognizance of the complaint. But it is not open to the Magistrate to take cognizance of the complaint as well as direct the investigation under section 156(3) of the Code of Criminal Procedure Code.”

In Devarapalli Laxminarayana Reddy and Ors. v. Narayana Reddy and Ors.[1976 AIR 1672] the apex court explained the powers of the Magistrate under sections 156(3), 200 and 2002 of the Code, wherein it was held that, it is well settled that when a Magistrate receives a complaint, it may disclose the commission of an offence. This is clear from the use of the words “may take cognizance” which in the context in which they occur cannot be equated with ‘must take cognizance”. The word “may” gives discretion to the Magistrate in such matter. If on a reading of the forwarding of the complaint to the police for investigation under section 156(3) of the Code, will be conducive to justice and save the valuable time of the Magistrate from investigation, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.

After passing of order of investigation under section 156(3) of the Code, it is necessary for the Magistrate to forward a true copy or certified copy of the complaint along with the communication of the order passed by the Magistrate under section 156(3) to the concerned police station and shall keep original record with the court which could be used for various purposes in future. Certain guidelines were also issued by the Bombay High Court in this regard in Ajit S/o Ramrao Thete and Ors v. State of Maharashtra and Ors. [Criminal Application No. 1091/2013].

Guidelines: (a) The Magistrate can direct the investigation under section 156(3) of the Code and can direct the police to register FIR and to file charge sheet or final report.

(b) After completion of investigation the police may file charge sheet under section 173 of the Code or file final report. But the final report is not binding on the Magistrate.

(c) Where a Magistrate orders investigation by the police before taking cognizance under section of 156(3) of the Code and receives the report thereupon, he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before and take action under section 190 of the Code of Criminal Procedure as described above.

• Nature of order u/s 156(3) and u/s 202

An order made under section 156(3) of the Code is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under section 156 of the Code and ends with a report or charge sheet under section 173 of the code.

Whereas section 202 of the Code comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under section 202 of the Code to direct, within the limits circumscribed by that section, and investigation for the purpose of deciding whether or not there is sufficient ground for proceeding. Thus, the object of an investigation under section 202 of the is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.