Class 3 – CRIMINAL PROCEEDINGS – GENERAL PROVISIONS – CRIMINAL COURT POWERS.

CRIMINAL PROCEEDINGS – GENERAL PROVISIONS

INQUIRY & TRIAL:

The definition of the word ‘inquiry’ u/s – 2(g) puts it beyond doubt that an ‘inquiry’ is something different from a ‘trial’ and that ‘inquiry’ stops when ‘trial’ begins[1]. The word ‘inquiry’ refers to proceedings up to the charge and the word ‘trial’ to those after the charge. The ‘trial’ of an accused person is said to begin when he is called up on to plead to a charge and a Magistrate’s proceeding before this stage is reached are in the nature of an ‘inquiry’[2]. It was held that in Criminal Jurisprudence as also in legal circles a distinction is generally recognised between ‘inquiry’ & ‘trial’. The word ‘trial’ has not been defined in the Cr.P.C 1973. But the very definition of ‘inquiry’ in S – 2(g) as ‘every enquiry other than a trial conducted under this code by a Magistrate or court’ goes to show that ‘trial’ is also recognised in Chap – XIX in complaint cases. The time spent in recording the pre – charge evidence which is usually recorded in complaint cases before the charge is framed will be not counted in ‘trial’ for purpose of S – 437 (6) Cr.P.C[3]. Even clear though the word ‘trial’ is not defined either in the code or in the Act (SC/ST (33of 1989)), it is clearly distinguishable from ‘inquiry’ is defined u/s. 2(g) of Cr.P.C as ‘every inquiry, other than trial, conducted under this code by a Magistrate or court’. So the trial is distinct from inquiry and inquiry must always be a forerunner to the trial[4].

The word ‘inquiry’ is not defined under the Code of Criminal Procedure which is an act of asking information and also consideration of some evidence, may be documentary. The expression ‘trial’ has not been defined in the Code of Criminal Procedure but must be understood as the examination by court of issues of fact and law in a case for the purpose of rendering the judgment relating to some offences committed[5].

GENERAL DIARY – TRIAL:

As the concept of maintaining General Diary has its origin under the section 44 of Police Act of 1861 as applicable to States, which makes it an obligation for the concerned Police Officer to maintain a General Diary, but such non-maintenance per se may not be rendering the whole prosecution illegal. However, on the other hand, we are aware of the fact that such non-maintenance of General Diary may have consequences on the merits of the case, which is a matter of trial. Moreover, we are also aware of the fact that the explanation of the genesis of a criminal case, in some cases, plays an important role in establishing the prosecution’s case[6].

SPECIAL DIARY – GENERAL DIARY:

The expression ‘diary’ referred to in Section 167(1) of the Code is the special diary mentioned in Section 167(2) which should contain full and unabridged statements of persons examined by the police so as to give the Magistrates on a perusal of the said diary, a satisfactory and complete source of information which would enable him to decide whether or not the accused person should be detained in custody but it is different from the general diary maintained u/s 44 of the Police Act[7].

GENERAL DIARY – DEFENCE CAN SUMMON:

No doubt daily diary is a document which is in constant use in police station. But no prosecution is expected to produce such diaries as a matter of course in every prosecution case for supporting the police version. If such diaries are to be produced by prosecution as a matter of course in every case the function of the police station would be greatly imposed. It is neither desirable nor feasible for the prosecution to produce such diaries in all cases. Of course it is open to the defence to move the court for getting down such diaries if the defence wants to make use of it[8]. As is well known entries are made in the General diary about all the events that take place in the police station in chronological order and it is ordinarily difficult to fabricate false entries in the General diary[9].

SECTION 172 – CASE DIARY – OBJECT:

Lastly, we may point out that in the present case, we have noticed that the entire case diary maintained by the police was made available to the accused. u/s 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. It is specifically provided in Sub-clause (3) of Section 172 that neither the accused nor his agents shall be entitled to call for such diaries nor shall he or they be entitled to see them merely because they are referred to by the Court, but if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 of the Cr.P.C. or the provisions of Section 145 of the Evidence Act shall be compiled with. The Court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary. But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the investigating officer was extensively cross-examined on many facts which were not very much relevant for the purpose of the case. The learned Sessions Judge should have been careful in seeing that the trial of the case was conducted in accordance with the provisions of the Cr. P.C[10].

SECTION 172 CR.P.C – JUDGE HOW TO USE CASE DIARY?

A reading of the said sub-section makes the position clear that the discretion given to the court to use such diaries is only for aiding the court to decide on a point. It is made abundantly clear in sub-section (2) itself that the court is forbidden from using the entries of such diaries as evidence. What cannot be used as evidence against the accused cannot be used in any other manner against him. If the court uses the entries in a case diary for contradicting a police officer it should be done only in the manner provided in section 145 of the Evidence Act i.e, by giving the author of the statement an opportunity to explain the contradiction, after his attention is called to that part of the statement which is intended to be so used for contradiction. In other words, the power conferred on the court for perusal for the diary under section 172 of the Code is not intended for explaining a contradiction which the defence has winched to the fore through the channel permitted by law. The interdict contained in section 162 of the code, debars the court from using the power u/s 172 of the Code for the purpose of explaining the contradiction[11].

A criminal court can use the case diary in the aid of any inquiry or trial but not as an evidence. This position is made clear by Section 172(2) of the Code. Section 172(3) places restrictions upon the use of case diary by providing that accused has no right to call for the case diary but if it is used by the police officer who made the entries for refreshing his memory or if the Court uses it for the purpose of contradicting such police officer, it will be so done in the manner provided in Section 161 of the Code and Section 145 of the Evidence Act. Court’s power to consider the case diary is not unfettered. In light of the inhibitions contained in Section 172(2), it is not open to the Court to place reliance on the case diary as a piece of evidence directly or indirectly[12].

DUTY OF JUDGE – TOWARDS ACCUSED:

A judge must be of sterner staff. His mental equipoise must always remain firm and undefeated. It is essential that a judge should not allow his personal. It prejudice to go into the decision making as was remarked by Scrulton.L.J in R. vs. Bath Compensation Authority[13]. Further Supreme Court has held that a closed mind is antithetical to fair hearing. Prejudice tends to corrupt the ability to exercise independent judgment. It has a tendency to intend upon a free mind and may influence the outcome[14].

DUTY OF JUDGE – JUDGE CANNOT QUESTION THE ACCUSED:

But the question for consideration is that when the power is sought be invoked where the Magistrate by virtue of the specific provisions of the statute is enabled to find a prima facie case by reference to unprovable, untested and possibly inadmissible documents on which the prosecution proposes to rely, whether to such a case those considerations necessarily apply. If without evidence, properly so called, a Magistrate examines an accused he would be converting him into an Investigation Agency and there is therefore every possibility of the accused being prejudiced and that might be the very reason why the sub-section has been framed, in a manner to avoid this result[15].

DUTY OF JUDGE – DURING TRIAL:

Ø A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform[16]. Acquittal of an accused who has committed the crime causes grave injustice in the same manner as that of conviction of an accused[17]. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better[18].

DUTY OF JUDGE – ACCUSED MAY SIT: It is not right or proper that the accused were not provided with a sitting place during the trial, which has gone on for the past seven months. We direct that the learned Sessions Judge will permit the accused to sit down during the trial. In fact, we are unable to understand how any Court in our country can at all insist that the accused shall keep on standing during the trial, particularly. When the trial is long and arduous this case. We hope that all the High Courts in India will, take appropriate steps, if they have not already done so, to provide in their respective Criminal Manuals prepared under S. 477 (1) of the Criminal P. C. that the accused shall be permitted to sit down during the trial unless it becomes necessary for the accused to stand up for any specific purpose, as for example, for the purpose of identification. We need not add that the facility to be accorded to the accused for sitting down during the trial should not be construed as in derogation of the established convention of our Court that everyone concerned should stand when the Presiding. Officer enters the Court[19].

SECURE THE PRESENCE OF INVESTIGATION OFFICER: It was the duty of the Sessions Judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on part of any witness to remain present, it is the duty of the Court to take appropriate action including issuance of bailable/non-bailable warrants as the case may be. It should be well understood that prosecution cannot be frustrated by such methods and victims of the crime cannot be left in lurch[20].

ENSURE THE PRESENCE OF WITNESS – WITNESS WARRANT: The Full Bench of this court[21] has specifically held in the said decision that the Judicial Magistrate should take coercive steps for ensuring the production of the important witnesses. The learned Judicial Magistrate, in the present case, would simply say that several reminders have been sent for service of summons, but the police were not diligent. There is nothing on record to show that coercive steps such as issuing of warrants were taken by the trial court. As such, the Judicial Magistrate has committed a serious illegality. Under those circumstances, it would be appropriate to set aside the order of acquittal and remand it for a fresh de novo trial to the trial court. Accordingly, the matter is remitted back to the trial court[22].

1.  In view of the dictum laid by one Madras High Court the learned Magistrate in this case ought to have taken coercive steps, and he did not do so, and in those circumstances I am of the view that the order of acquittal passed by the learned trial Magistrate cannot be sustained, and it has to be set aside[23].
2.  Prosecution delaying the trial by adjournments and not taking steps to examine the witnesses. Negligence of prosecution. In that circumstances denial of adjournment affirmed[24].
3.  The language in the summons makes it abundantly clear that the witness has to necessarily obey the summons. Even thereafter in spite of the same, if the witness does not turn up, or conceals himself to avoid the service of the said warrant, proclamation requiring the attendance of the witnesses by way of Form-5 can be issued by the Magistrate. The Magistrate shall also in addition to the above, issue order of attachment, to compel the attendance of the witness under Form No. 6[25].
4.  On a scrutiny of the orders passed by the learned trial Judge from time to time, we find that the learned trial Judge has really not taken pains to verify whether the summons had really been served on the witnesses or not. The High Court has rightly observed that the trial court has also not tried to verify from the record whether the warrants had been executed or not. As is manifest, he had directed the prosecution to produce the witnesses and mechanically recorded that the witnesses were not present and proceeded to direct the prosecution to keep them present[26].
5.  The presence of investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on part of any witness to remain present, it is the duty of the Court to take appropriate action including issuance of bailable/non-bailable warrants as the case may be. It should be well understood that prosecution cannot be frustrated by such methods and victims of the crime cannot be left in lurch[27].

WITNESS HAS NO RIGHT TO DISPENSE: A conspectus of the relevant provisions of The Criminal Procedure code, The Evidence Act and The Criminal Rules of Practice, would only go to show that the witnesses have no right to abstain themselves from appearing in Court and giving evidence. However, they are at liberty to depose or give evidence on their conscience and oath. Further, Madras High Court has held that the language in the summons makes it abundantly clear that the witness has to necessarily obey the summons. Even thereafter in spite of the same, if the witness does not turn up, or conceals himself to avoid the service of the said warrant, proclamation requiring the attendance of the witnesses by way of Form-5 can be issued by the Magistrate. The Magistrate shall also in addition to the above, issue order of attachment, to compel the attendance of the witness under Form No. 6[28].

WITNESS TURNED HOSTILE: When a witness whose statement u/ss 161 or 164 Cr.P.C was recorded was not sticking to his statement so recorded, the Court should not rebuke him nor threaten him that he shall be prosecuted of perjury[29].

If the contention of the petitioner is accepted, then there is likelihood of Sessions case getting prolonged indefinitely. Moreover, the commission of offence for perjury to misguide the Court will be unearthed only at the end of the trial. It is not the real spirit of the legislature that each and every witness, who turns hostile or gives different versions, has to be punished under the penal provisions of law. In case the submission of the petitioner is accepted, there is every possibility of the accused coming forward with the similar petition and in that event, there could be no finality attained in the real issue and there will certainly be a total chaos and confusion in the administration of the justice. As held by the Hon’ble Supreme Court, only after the final verdict, action could be initiated against the witnesses, who give false statements during Trial and therefore, I find that there is no substance in the contention raised by the petitioner[30].

DUTY OF JUDGE – EXAMINATION OF WITNESSES – ABSENCE OF ACCUSED – BOYCOTT:

In the result, we hold that the learned single Judge’s order in S.Yuvaraj vs. State [2013 (4) MLJ (Crl.) 314] cannot be misconstrued as laying down the law that, trial Courts cannot record the examination-in-chief of witnesses who are in attendance, in the absence of defence counsel, even when there is boycott of Courts. We leave these aspects to the best discretion of the trial Court Judges, who, we are confident, will bear in mind the rights of the accused and the victim and would use their discretion judiciously. We also cannot lose sight of the fact that Advocates of both sexes, become victims of crime and when they come to the Court for giving evidence for the prosecution, can the Judge send them away on the score that the defence counsel is not present? The answer is an emphatic ‘No’. What applies to lawyers should apply to others too. If a Judge records evidence in chief even without ascertaining whether the accused had engaged a counsel or not, then the issue takes a different form and the trial Court can be faulted if it is found that the accused had not even engaged a counsel[31].

SPECIAL JUDGE:

Section 14 of the S.C & S.T (Prevention of Atrocities) Act, 1989

Section 36 – c of the N.D & P.S Act 1985,

Section 5 of the P.C. Act 1988

Section 9 of the Trial of Offences relating to the Transaction in Securities Act, 1992

A careful reading of the provisions of the various enactments extracted above would make it explicit that in the enactments, a Sessions Court in existence is specified by means of a notification as a Special Court. Because such a Sessions Court is specified as a special court, yet the said special court shall not lose its character as Sessions Court. Undoubtedly it sill continues to be a Court of Sessions. As we have noticed in the provisions of various enactments referred to above, the Special Courts constituted under the said enactments shall be deemed to be Sessions Courts. Therefore, they exercise the powers of the Court of Session. In addition to that by means a specific provisions in the respective enactments certain powers exercisable by Magistrates have also been conferred upon the special courts. Thus, they enjoy the powers of a Court of Sessions as well as certain powers of Magistrates[32].

POCSO – CONSTITUTION OF SPECIAL COURTS ALL OVER TAMIL NADU:

The Government of Tamil Nadu, under G.O.Ms.No.217 dated 02.04.2013, sanctioned the constitution of 22 Fast Track Mahila Courts in 22 different districts in the cadre of Additional Sessions Judges to try the cases of offences against women. Subsequently, under G.O.Ms.No.514 dated 16.07.2013, 22 posts of Additional Sessions Judges were sanctioned, known as the Judges of the Fast Track Mahila Courts to preside over these 22 Courts. Thus, by constitution, these Fast Track Mahila Courts are presided over by Additional Sessions Judges. They exercise all the powers conferred upon them under the Code of Criminal Procedure as Additional Sessions Judges. These Fast Track Mahila Courts were later on specified to be the Special Courts under the Protection of Children from Sexual Offences, Act (for short the POCSO Act) under G.O.Ms.No.1087 dated 04.12.2013. Thus, these Additional Sessions Judges (Fast Track Mahila Courts) have been functioning as Special Courts under the POCSO Act[33].

SPECIAL LAW PROCEDURE OR CODE OF CRIMINAL PROCEDURE WHICH WILL PREVAIL:

It is well settled that the special law overrides the general law[34]. It is settled law that a special provision should be given effect to the extent of its scope, leaving the general provision to control cases where the special provision does not apply[35].

S.4(1) governs that every offence (only) under the India Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the Cr.P.C., The total Cr.P.C governing the investigation, inquiry and trial. The three stages in Cr.P.C are Investigation, Inquiry and Trial, here trial means and includes ‘appeal’. So in that context if any new additional stage is found or created by interpretation or otherwise, then it will comes under ‘otherwise dealt with’ and that new creature will also in the line of the stages of Cr.P.C and it will not be treated as new code. S.4 (2) Cr.P.C is engrafted and the intention of the legislation is that, in the absence of any special procedural enactment for other law (other than I.P.C) for the time being in force regulating the manner or place of investigating, inquiry into, trying or otherwise dealt with such offences then the other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provision of the Cr.P.C.

The difference is as follows:

1. In s.4 (1) it is mandatory to deal I.P.C offences in accordance with the Cr.P.C and no choice is given.

2. S.4(2) gives choice, which means, if, a special procedure is prescribed under any special enactment, it is that procedure has to be followed and not the one prescribed under the code[36] for investigation, inquiry, trial and otherwise dealt with and not with other procedure.

3. To understand the scope of the said legal trammel it is advantageous to refer to Section 4 of the Code[37]. It is also to be understood that so far as the offences under Indian Penal Code are concerned sub-section (i) mandates that they can be investigated into and tried according to the provisions of the Code. When we go to sub-section (ii) which concerns the offences “under any other law” it is again the rule that such offences shall also be investigated and tried according to the provisions of the Code itself, but with a rider that such investigation or trial shall be subject to the regulation regarding “the manner or place of” such investigation or trial prescribed in any enactment for the time being in force[38]. In other words to be clear Supreme Court[39] interpret the above said context by a two Judges bench considered the contention that in a trial of offences under Prevention of Corruption Act the special Court has no power to confiscate any property in view of Section 4(2) of the Code which excludes powers under the Code while dealing with offences under laws other than Indian Penal Code. After extracting Section 4(2) of the Code learned Judges observed as follows

“It is clear from this provision that in so far as the offences under laws other than the Indian Penal Code are concerned, the provisions of the Code of Criminal Procedure apply in their full force subject to any specific or contrary provision made by the law under which the offence is investigated or tried.”

So it is to be understood that the Code is the parent statute which provides for investigations, inquiry into, and trial of cases and unless there is specific provision in other statute to indicate a different procedure to be followed, the provisions of the Code cannot be displaced[40]. A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code. This means that if other enactment contains any provision which is contrary to the provisions of the Code, such other functions would apply in place of the particular provision of the Code. If there is no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby[41].

From the perusal of section 4 Cr.P.C that inquiry and trial of offences contemplated under the IPC, are to be conducted in the manner stipulated under the Cr.P.C. Now, the place where the agreement was executed, as well as, the places where different constituents of the agreement were carried out, are material for loss to determine the relevant courts which would/could have jurisdiction in the matter. The places where the consequence of the criminal action (alleged in the complaint) ensues, may also be relevant for the said purpose. And finally, place(s) of receipt and dispatch of communications exchanged by the rival parties, revealing deception as an ingredient of cheating alleged by the complainant, can also be relevant to identify the court(s) having jurisdiction in the matter. The aforesaid relevance becomes apparent from Ss 179, 181 & 182 Cr.P.C[42].

S.5 of the Cr.P.C governed by the principle ‘Generalia Specialibus Non-Derogant’ (Special provision must prevail over general law)[43]. S.5 lay down that nothing contained in the Cr.P.C will affect the following:

1. Any Special law,

2. Any Local law,

3. Any Special Jurisdiction,

4. Any Power Conferred,

5. Any Special form of Procedure prescribed by any other law for the time being in force.

In the absence of any Specific Provision in the above laws says about following such special procedures, then Cr.P.C would prevail.

The difference between S.4 & 5 Cr.P.C is, in the first the Code speaks about only investigation, inquiry and trial of offences under I.P.C and any other law, but the power of the court or jurisdiction remains same as per Cr.P.C. But in the latter, every possibility including powers and jurisdiction also shall be specified.

CRIMINAL COURTS AND THEIR POWERS

COURT CAN PERMIT ANY PERSON TO SPEAK IN THE COURT – It is clear from the above Judgment that with the prior permission of the Court, the Court can permit any person to speak in the Court. In this case, the Court was dealing with a very peculiar case where a publication has been made a subject matter of an offence under Section 124 of IPC, which is unprecedented and which has come up for the first time before a Court. Therefore, the learned Magistrate wanted to get the views of a reputed and Senior Journalist as to whether there are any such instances in the past. This query was answered by Mr. N. Ram by touching upon the Freedom of Press. This Court does not find anything wrong with the procedure adopted by the learned Magistrate and the submissions made by Mr. N. Ram in this case, has not in any way affected the decision taken by the learned magistrate since Mr. N. Ram has not made any submissions on the merits of the case. The Respondent was effectively represented before the Court below by his Counsel Mr. P.T. Perumal on the merits of the case[44].

IMPLEADING ACCUSED:

The impleading of parties is known in Civil Law. The impleading of accused is unknown in Criminal Law. Taking cognizance as against an accused is known in Criminal Law. If evidence has been presented before the Court and if there are materials from such evidence that some other persons are also involved in the commission of crime, the Court can take cognizance as against them under Section 319 Cr.P.C and issue them summons under Section 204 Cr.P.C[45].

COURT CANNOT MONITOR TRIAL:

After analysing all these decisions, it appears to us that this court has already in a catena of decisions held and pointed out that the monitoring of a case is continued till the investigation continues, but when the investigating agency, which is appointed by the court completes the investigation files a charge-sheet and takes steps in the matter in accordance with the provisions of law before a competent court of law, it would not be proper for this court to keep on monitoring the trial which is continuing before a competent court. Accordingly, we are of the opinion that since the investigation has already been completed, charge-sheet has been filed, trial has already commenced it is not necessary for this court to continue with the monitoring of the case in question[46].

This court dealing with the proposition that once a charge-sheet is filed, it would then be exclusively in the domain of the competent court to deal with the case on merits in accordance with law and that the monitoring of the investigation would cease in all respects[47].

EXECUTIVE MAGISTRATE:

Under section 26 of the I.E. Act, if the confession has been recorded by a J.M, certainly, the same would be admissible. But, the same was recorded by an Executive Magistrate. Here, the term ‘Magistrate’, referred to in section 26 of I.E. Act.

REMANDING BACK TO TRIAL:

Any order passed by Special case due to total lack of jurisdiction shall also be treated as an irregularity which vitiates the entire proceedings as provided u/s. 461 Cr.P.C. The relevant provision u/s. 460 Cr.P.C enumerates 9 instances of irregularities, which do not vitiate the proceedings. Whereas, S 461 Cr.P.C enumerates 17 kinds of irregularities covered u/s 461 (a) to (q) and the proceedings of any Magistrate who does any of the acts covered under clauses (a) to (q) shall be but void and clause (l) deals with the proceedings of the Magistrate in trying an offender, which the Magistrate is not being empowered to do in law and such proceedings shall be u/s 461 Cr.P.C void and vitiated, and liable to be set aside[48].

When the entire proceeding is held to be null and void, the entire case is to be sent to the concerned area Magistrate within whose jurisdiction the offence is alleged to have been committed, for fresh trial of the accused for the offence[49].

HANDCUFF PROCEDURE:

Supreme Court in its landmark decision[50] held that the Supreme Court declares, directs and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoner – convicted or under trial – while lodged in a jail anywhere in the country or while transporting or in transit from one jail to another or from jail to Court and back. The police and the jail authorities, on their own, shall have no authority to direct the handcuffing of any inmate of a jail in the country or during transport from one jail to another or from jail to court and back. If the police or the jail authorities have well grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate. Save in rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner. Supreme Court now directed to the Magistrate that in all the cases where a person arrested by police, is produced before the Magistrate and remand – judicial or non-judicial – is given by the Magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the Magistrate at the time of the grant of the remand. When the police arrest a person in execution of a warrant of arrest obtained from a Magistrate, the person arrested shall not be handcuffed unless the police have also obtained orders from the Magistrate for the handcuffing of the person to be so arrested. Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied, on the basis of the guidelines given by us in para above, that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the Magistrate. Further use of fetters thereafter can only be under the orders of the Magistrate as already indicated by us. Then further directs that all ranks of police and the prison authorities to meticulously obey the above mentioned directions. Any violation of any of the directions issued by us by rank of police in the country or members of the jail establishment shall be summarily punishable under the Contempt of Courts Act apart from other penal consequences under law.

In the view of the Supreme Court decisions, it transpires that unless the specific order from the court or the Superintendent of prison, the prisoners shall not be hand cuffed. There is no order produced by the prosecution for hand cuffing the prisoners[51].

HANDCUFF PROCEDURE DURING TRANSIT:

In absence of any violence by the under trial prisoner Madras High Court has held that, I could see that no necessity on the part of the police to handcuff the petitioner while he was in transit between jail and the court. Even though, no malafide intention on the part of the police could be seen, it appears the police in order to play safe, has chosen to handcuff him, which they are not expected to continue it infuture. Also, Madras High court ruled with further specific condition that simply based on his previous convictions relating theft case or on more number of cases pending, he shall not be handcuffed[52].

PROSECUTION WITNESS:

It is settled that every witness that the prosecution may have listed in the charge-sheet need not be examined. It is entirely in the discretion of the Public Prosecutor to decide as to how he proposes to establish his case and which of the listed witnesses are essential for unfolding the prosecution story. Simply because more than one witness have been cited to establish the very same fact is no reason why the prosecution must examine all of them[53]. There is no requirement in the law of evidence that any particular number of witnesses is to be examined to prove something. The evidence has to be weighed and not to be counted[54]. Supreme Court made it clear once again that all the witnesses of the prosecution need not be called and it is sufficient if witnesses who were essential to the unfolding of the narrative are examined[55].

WITNESS EXAMINATION:

Once the witness was examined -in –chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him[56].

NAME OF THE VICTIM – NOT TO BE DISCLOSED IN JUDGMENT:

We, however, notice from the judgments of both, the trial court and the high court that the victim in the present case who was examined as PW.2 has been named all through. Such a course is not consistent with section 228-A of IPC through the explanation makes an exception in favour of the judgments of the superior court. Nonetheless, every attempt should be made by all the courts not to disclose the identity of the victim in terms of said section 228-A, IPC. It has been so laid down by this court in State of Punjab vs. Ramdev Singh[57].

NOTE FILE OF COURT:

A noting recorded in the ‘note file’ is merely a noting simplicitor and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the court. Unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government[58].

RECONSTRUCTION OF RECORDS:

As pointed by the full bench ruling of this court supra every court has got inherent power to reconstruct its own records and in case of appeal, the appellate court or the trial court can reconstruct the records and on the basis of the records, the appeal can be disposed of. In case, it is not possible to reconstruct the records in such cases the full bench has given two alternatives namely (1). To direct the lower appellate court to receive such secondary evidence of the contents of original records as may be forth worming, or (2). To order an entirely new trial[59].

The powers of the Appellate Court when dealing with an appeal from a conviction are delineated in sub-clauses (i), (ii) and (iii) of clause (b) of Section 386 of the Code. The Appellate Court is empowered by Section 386 to reverse the finding and sentence and acquit. Therefore, the acquittal is possible when there is reversal of the finding and sentence. The Appellate Court is also empowered to discharge the accused. The third category which seems to be applicable to the present case is a direction for re-trial by a court of competent jurisdiction subordinate to the Appellate Court or committed for trial. For exercise of the powers in cases of first two categories, obviously a finding on merits after consideration of the materials on record is imperative. Where that is not possible because of circumstances like the case at hand i.e. destruction of the records, the proper course for the Appellate Court would be toe direct re-trial after reconstruction of the records if in spite of positive and constructive efforts to reconstruct the records the same was impossible. If on the other hand, from the copies available with the prosecuting agency or the defence and/or their respective counsel, reconstruction is possible to be made, said course should be adopted and the appeal can be disposed of as it deserved under course indicated in clauses (i) and (ii). After perusal of the records and hearing appellant’s pleader and public prosecutor under Section 377 or 378, the exercise of power as indicated above can be resorted to. As was observed in Bani Singh and Ors. v. State of U.P. (1996 (4) SCC 720) the plain language of Section 385 makes it clear that if the Appellate Court does not consider the appeal fit for summary dismissal, it must call for the records and Section 386 mandates that after record is received, the Appellate Court may dispose of the appeal after hearing as indicated. A question would further arise as to what happens when the reconstruction is not possible. Section 386 empowers the Appellate Court to order that the case be committed for trial and this power is not circumscribed to cases exclusively triable by the Court of Sessions. (See State of U.P. v. Shankar and Anr. AIR 1962 SC 1154). It was been the consistent view taken by several High Courts that when records are destroyed by fire or on account of natural or unnatural calamities, reconstruction should be ordered. In Queen Empress v. Khimat Singh (1889 A.W.N. 55) the view taken was that the provisions of Section 423(1) of the Criminal Procedure Code, 1898 (in short “the Old Code”) made it obligatory for the Court to obtain and examine the record at the time of hearing. When it was not possible to do so, the only available course was a direction for reconstruction[60].

COURT CANNOT OBTAIN SIGNATURE FROM ACCUSED IN BLANK PAPERS:

The Magistrate was not expected to obtain signatures of the accused in blank papers and formats and that such illegal practice lends support to the submissions made by the learned counsel for the revision petitioner[61].

COURT – HOW MANY ORDERS CAN PASS?

There are three categories of orders that a court can pass – final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction – that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order. Further Apex Court has held that we may note that in different cases, different expressions are used for the same category of orders – sometimes it is called an intermediate order, sometimes a quasi-final order and sometimes it is called an order that is a matter of moment. Our preference is for the expression `intermediate order’ since that brings out the nature of the order more explicitly.[62].

REASONING:

Be that as it may, the Trial Court has not assigned any reason for dismissing the Petition. The course adopted by the Trial Court is totally against law and is in violation of Principles of Natural Justice and the well settled legal principles. Any order not supported by reasoning cannot be regarded as valid order in the eye of law. The Courts are required to give reasons only to test the correctness of the same and the failure on the part of the Trial Court to give reasons deprive the Accused of his opportunity to test the same on merits and the Accused is, thus, deprived of valuable right available to him in this regard[63].

LOCUS STANDI:

However, criminal trial is conducted largely by following the procedure laid down in Cr.P.C. Locus Standi of the complaint is a concept foreign to criminal jurisprudence. Anyone can set the criminal law in motion except where the statute enacting or creating an offence indicates to the contrary. This general principle is founded on a policy that an offence, that is an act or omission made punishable by any law for the time being in force, is not merely an offence committed in relation to the person who suffers harm but is also an offence against the society. Therefore, in respect of such offences which are treated against the society, it becomes the duty of the State to punish the offender[64].

STAY:

Wherever stay is granted, a speaking order must be passed showing that the case was of exceptional nature and delay on account of stay will not prejudice the interest of speedy trial in a corruption case. Once stay is granted, proceedings should not be adjourned and concluded within two-three months. Further Supreme Court has held that In view of above, situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received and proceedings are not taken up. In an attempt to remedy this, situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced[65].

SUPERINTENDENCE POWERS:

It is true that this Court has no power of superintendence over the High Court as the High Court has over District Courts under Article 227 of the Constitution. Like this Court, the High Court is equally a superior court of record with plenary jurisdiction. Under our Constitution the High Court is not a court subordinate to this Court. This Court, however, enjoys appellate powers over the High Court as also some other incidental powers. But as the last court and in exercise of this Court’s power to do complete justice which includes within it the power to improve the administration of justice in public interest, this Court gives the aforesaid guidelines for sustaining common man’s faith in the rule of law and the justice delivery system, both being inextricably linked[66].

[1] Nageshwar Singh Vs. State of Assam – 1974 Cr.L.J 193

[2] Sriramulu V.K Narayana Swami Naiki Vs. Emperor 32 M 220 (234)

[3] Robert Lendi Vs. Collector of Customs 1987 Cr.L.J 55; 1986 (3) Crimes 54

[4] Gangula Ashok & another vs. State of A.P 2000 Cr.L.J 819 (SC)

[5] Ashwani Kumar Saxena vs. State of M.P – (2013)1 SCC (Cri) 594=(2012)9 SCC 750

[6] STATE BY LOKAYUKTHA POLICE vs H. SRINIVAS – (2018) 7 SCALE 649=(2018) 7 SCC 572=(2018) 3 SCC(Cri) 267.

[7] DIRECTORATE OF ENFORCEMENT — vs DEEPAK MAHAJAN AND ANOTHER – (1994) 1 SCALE 294=(1994) 3 SCC 440 : (1994) SCC(Cri) 785.

[8] Kalpnath Rai v. State – AIR 1998 SC 201=1997 AIR SCW 4166 going against this Hon’ble Apex Court and without even citing the same Hon’ble Madras High Court single judge in Haji Mohammed and Others v. the State rep. By the Inspector of Police, Koradacheri P.S., Thiruvarur District reported in 2018 (2) LW Criminal 853, in which Madras High Court has held that the General Diary also falls within the scope of Section 172 of Cr.P.C. and the same cannot be called for in evidence but the same got overruled in P.Kalaiselvam VS State rep.by Inspector of Police, Melapalayam Police Station, Tirunelveli District – Crl Apl. (Md)Nos. 262 of 2013 – dt: 07-03-2019 – 2019 2 LW (Cri) 161=2019 0 Supreme(Mad) 2132.

[9] AIR 1978 SC 1506 – Sadher Singh v. State of U.P [Bench of 3 Judges]

[10] SIDHARTH vs STATE OF BIHAR – (2005) Cri.L.J 4499 (SC)=(2005) 7 SCALE 700=(2005) 12 SCC 545=(2006) 1 SCC(Cri) 175.

[11] Mahabir Singh e.t.c vs. State of Haryana – 2001(3) CTC 504 (SC)

[12] Md. Ankoos and Others Vs The Public Prosecutor, High Court Of A.P – (2009) 13 SCALE 584 : (2010) 1 SCC 94 : (2010) 1 SCC(Cri) 460 : (2009) 15 SCR 616 : (2009) 7 Supreme 231.

[13] (1925)1K.B, 635, 719(C.A)

[14] Mangilal and Ors vs. State of M.P – 1995(1) MWN (Crl) 137 (SC)

[15] Ramnarayan mor and another vs. The State of Maharashtra – AIR 1964 SC 949=(1964)5 SCR 1064=(1964)2 Cr.L.J 44(SC) (5 Judge Bench)

[16]State of U.P. v. Anil Singh, AIR 1988 SC 1998 : (1989 Cri LJ 88)

[17] State of Maharashtra vs. Lahu @ LahuKumar – (2013)10 SCC 292=(2014)1 SCC (Cri) 395

[18]AIR 1999 SC 2292 : 1999 AIR SCW 2356 : 1999 Cr.L.J 3529 (SC) – Rajendra Prasad v. Narcotic Cell

[19]AIR 1982 SUPREME COURT 1260 “Avtar Singh v. State of M.P.”

[20]AIR 2002 SUPREME COURT 270 “Shailendra Kumar v. State of Bihar”= 2001 AIR SCW 4984 [3 judges].

[21] State vs. Veerappan – 1980 L.W (Cri) 187 (FB)

[22] Navasakthi vs. State – (2002)1 MLJ (Cri) 291

[23] P.Vincent vs. Balupillai and 2 Others – 1998-2-LW (Crl) 480

[24]State of Vishwanath Lughani – 1981 Cr.L.J 745 (SC)=AIR 1981 SC 1239=1982 SCC (Cri) 139

[25] Tmt. Vijayalakshmi Viswanathan … vs S. Soundara Pandian – 2003 (3) CTC 33=2003 (1) MLJ(Crl) 840

[26] BABLU KUMAR AND OTHERS vs STATE OF BIHAR AND OTHERS – (2015) 8 SCALE 53 : (2015) 8 SCC 787 : (2015) 3 SCC(Cri) 862.

[27] Shailendra Kumar VS State Of Bihar – 2001 8 Scale 320; 2002 1 SCC 655; 2002 0 SCC(Cri) 230.

[28] SMT. VIJAYALAKSHMI VISWANATHAN vs. S. SOUNDARA PANDIAN AND M. PERIYASAMY – (2003) 4 Crimes 131=(2003) 3 CTC 33.

[29] Ramchander & Ors vs. State of Haryana – AIR 1981 SC 1036.

[30] Sundari Annadurai vs The Principal Secretary, Home Department (Courts) And Others – Criminal O.P.(MD) No. 7331 of 2015 Decided on : 10-12-2015.

[31] S. Yuvaraj Versus State through Inspector of Police, Gopichettipalayam PS., Erode District – 2014 (6) CTC 653=2014 (3) MWN(Cr) 398=2015 (1) LW(Crl) 55 (Mad-DB)

[32]Antony & Others v. State – (2012) 1 MLJ (Cri) 464.

[33] The Registrar (Judicial) vs Krishnnaswami Naidu & Anr. on 17 March, 2017 – Reference Case No.1 of 2017.
[34] Gujarat Urja Vikash Nigam Ltd v. Essar Paver Ltd – AIR 2008 SC 1921=2008 AIR SCW 2169=2008(4) SCC 755

[35] South India Corporation (P) Ltd v. Secretary, Board of Revenue – AIR 1964 SC 207=(1964)2 SCJ 415

[36] AIR 2004 SC 481; 1986 Mad.L.W (Crl) 65/

[37] S.4. Trial of offences under the Indian Penal Code and other laws.

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into tried, and otherwise dealt with according to the provision hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

[38] AIR 2000 SUPREME COURT 1405 “State of W. B. V. Narayan K. Patodia”= 2000 AIR SCW 1136

[39] Mirza Iqbal Hussain v. State of Uttar Pradesh, (1982) 3 SCC 516 : (AIR 1983 SC 60 : 1983 Cri LJ 154)

[40] A. R. Antulay v. R. S. Nayak, (1984) 2 SCC 500 : (AIR 1984 SC 718 : 1984 Cri LJ 647);

[41] Gangula Ashok v. State of Andhra Pradesh, (2000) 1 JT (SC) 379 : (2000 AIR SCW 279 : AIR 2000 SC 740 : 2000 Cri LJ 81.

[42] Lee Kan Hee & Ors Vs. State of U.P – (2012) 2 SCALE 152

[43] AIR 1985 SC 709

[44] State vs.Tr. Nakkeeran Gopal – 2019 (1) CTC 497.

[45] Angamuthu vs. Inspector of Police – (2016)2 MLJ (Crl) 493

[46] Sushila Devi vs. State of Rajasthan and others – AIR 2014 SC (Cri) 158

[47] Pooja Pal vs. Union of India and others – (2016)1 SCC (Cri) 743=(2016)3 SCC 135

[48] (2012) 1 MLJ (Cri) 433 – A.Govindaraj vs. State

[49] Yusofali Mulla Noorbhoy v. The King – AIR (36) 1949 P.C 264 and Sudhakar Dube v. The State of Bhopal and another AIR 1957 SC 494 relied on A.Govindaraj vs. State – (2012) 1 MLJ (Cri) 433

[50] AIR 1996 SC 2193 – Citizen for Democracy vs. State of Assam

[51] State v. Gopal – (2012) 3 MLJ (Cri) 145 (Mad)

[52] S.Sugumar @ Workshop Kumar vs. Judicial Magistrate – 2007 (2) MWN (Cri)20 (Mad)

[53] 2011 (8) SCALE (SC) 58 – GOSU JAIRAMI REDDY VS. STATE OF A.P

[54] Mahesh & Anr v. State of M.P – 2011 (4) Crimes 200 (SC)

[55] Tejprakash v. The State of Haryana – (1995)7 JT 561 followed in Sandeep v. State of U.P – 2012 (3) Supreme 497 (part 67-68)

[56] Sudevanand v. State by CBI – I (2012) CCR 215 (SC)

[57] 2004(1) SCC 421 followed in Lalit Yadav vs. State of Chhattisgarh – 2018(2) MWN (Crl) 339 (SC).

[58] State of Uttaranchal v. Sunil Kumar – 2011 (8) Supreme 56 – Issue 177

[59] Chandrasekar and another vs. The Inspector of Police – 1995-1-L.W (Cri) 114 (Mad)

[60] State of U.P. Versus Abhai Raj Singh and Another – 2004 (4) SCC 06=AIR 2004 SC 3235

[61] David Joseph and M.Viswanathan vs. The Fod Inspectors – 2010(1) Crimes 426 (Mad)

[62] GIRISH KUMAR SUNEJA vs C.B.I – (2017) 7 SCALE 661= 2017 (3) MLJ (Cri) 616 (SC).

[63] Ilayaraja vs. State – 2013 (2) MWN (Cr.) 132

[64] Ratanlal vs. Prahlad Jat & Ors – Crl. Apl. No: 499 of 2014.

[65] ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. Vs CENTRAL BUREAU OF INVESTIGATION – (2018) 2 RCR(Criminal) 415.

[66] Imtiaz Ahmad v. State of U.P – (2012) 2 SCC 688.

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