Criminal courts: Powers and Administration
Magistrate means not ‘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.
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 [GIRISH KUMAR SUNEJA vs C.B.I – (2017) 7 SCALE 661= 2017 (3) MLJ (Cri) 616 (SC)].
Court can permit any person to speak in the court
Section 32 of the Advocates Act:
Section 32. Power of Court to permit appearances in particular cases: Notwithstanding anything contained in this Chapter, any Court, Authority, or person may permit any person, not enrolled as an Advocate under this Act, to appear before it or him in any particular case.
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 [State vs.Tr. Nakkeeran Gopal – 2019 (1) CTC 497].
Court can implead new person as 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[1].
Sessions or High Court can remand back the case 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[2].
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[3].
Note file of court is not a record
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[4].
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[5].
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[6].
Higher 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[7].
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[8].
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[9]. 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[10]. 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[11].
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[12].
Name of the rape victim not to be disclosed in the 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[13].
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
Reasoning necessary for dismissal orders
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[14].
Locus standi is a concept foreign to criminal jurisprudence
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[15].
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[16].
Asian Resurfacing of Road Agency (P) Ltd referred to larger bench
We have reservations in regard to the correctness of the broad formulations of principle in the above terms. There can be no gainsaying the fact that a stay of an indefinite nature results in prolonging civil or criminal proceedings, as the case may be, unduly. At the same time, it needs to be factored in that the delay is not always on account of conduct of the parties involved. The delay may also be occasioned by the inability of the Court to take up proceedings expeditiously. The principle which has been laid down in the above decision to the effect that the stay shall automatically stand vacated (which would mean an automatic vacation of stay without application of judicial mind to whether the stay should 5 or should not be extended further) is liable to result in a serious miscarriage of justice. Since the decision in Asian Resurfacing of Road Agency (P) Ltd (supra) is of a Bench of three Judges, we are of the considered opinion that it would be appropriate to have the matter referred to a larger Bench of five Judges [HIGH COURT BAR ASSOCIATION ALLAHABAD Appellant(s) VERSUS THE STATE OF UTTAR PRADESH & ORS. Respondent(s) – Criminal Appeal No(s).3589/2023 Date : 01-12-2023 – 3 judge bench]
Lowers courts should follow Supreme court instead of High court orders
Learned Additional Chief Judicial Magistrate, Pune, by his order dated 04.12.2019, has instead of following our judgment in letter as well as spirit, stated that the Complainant should move an application before the High Court to resume the trial. The Magistrate goes on to say: “The lower Court cannot pass any order which has been stayed by the Hon’ble High Court, Bombay with due respect of ratio of the judgment in Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. (supra).” We must remind the Magistrates all over the country that in our pyramidical structure under the Constitution of India, the Supreme Court is at the Apex, and the High Courts, though not subordinate administratively, are certainly subordinate judicially. This kind of orders fly in the face of para 35 of our judgment. We expect that the Magistrates all over the country will follow our order in letter and spirit. Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, as per our judgment, within the next six months, the trial Court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same [ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. & ANR. Appellant(s) VERSUS CENTRAL BUREAU OF INVESTIGATION Respondent(s) – MISCELLANEOUS APPLICATION NO. 1577 OF 2020 IN CRIMINAL APPEAL NOS. 1375-1376 OF 2013 – October 15, 2020 – 3 judge bench]
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[17].
Further study
Cr.P.C., 1973. Notes no.1: Understanding the Police Report, Investigation, and Court’s Duties in Criminal Cases
Cr.P.C., 1973. Notes no.2: A General Introduction (with powers of police)
Cr.P.C., 1973. Notes no.3: General Provisions as to Inquiries and Trials – Part.1
Cr.P.C., 1973. Notes no.4: General Provisions as to Inquiries and Trials – Part.2 (Duty of judge)
[1] Angamuthu vs. Inspector of Police – (2016)2 MLJ (Crl) 493
[2] (2012) 1 MLJ (Cri) 433 – A.Govindaraj vs. State
[3] 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
[4] State of Uttaranchal v. Sunil Kumar – 2011 (8) Supreme 56 – Issue 177
[5] Chandrasekar and another vs. The Inspector of Police – 1995-1-L.W (Cri) 114 (Mad)
[6] State of U.P. Versus Abhai Raj Singh and Another – 2004 (4) SCC 06=AIR 2004 SC 3235
[7] Sushila Devi vs. State of Rajasthan and others – AIR 2014 SC (Cri) 158
[8] Pooja Pal vs. Union of India and others – (2016)1 SCC (Cri) 743=(2016)3 SCC 135
[9] 2011 (8) SCALE (SC) 58 – GOSU JAIRAMI REDDY VS. STATE OF A.P
[10] Mahesh & Anr v. State of M.P – 2011 (4) Crimes 200 (SC)
[11] 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)
[12] Sudevanand v. State by CBI – I (2012) CCR 215 (SC)
[13] 2004(1) SCC 421 followed in Lalit Yadav vs. State of Chhattisgarh – 2018(2) MWN (Crl) 339 (SC).
[14] Ilayaraja vs. State – 2013 (2) MWN (Cr.) 132
[15] Ratanlal vs. Prahlad Jat & Ors – Crl. Apl. No: 499 of 2014.
[16] ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. Vs CENTRAL BUREAU OF INVESTIGATION – (2018) 2 RCR(Criminal) 415.
[17] Imtiaz Ahmad v. State of U.P – (2012) 2 SCC 688.
