# Section1

The Criminal Law School

- Site: https://section1.in/

## Absence of production of Original forged document not fatal to prosecution and prosecution has right to prove forgery through circumstantial evidence

- Link: https://section1.in/absence-of-production-of-original-forged-document-not-fatal-to-prosecution-and-prosecution-has-right-to-prove-forgery-through-circumstantial-evidence/
- Published: 2026-10-17T11:41:32+00:00
- Author: lawsection

**Antonetto J D’Souza – Aldila Braganza and Others – Criminal Appeal No. 4092 of
2026 – 2026 INSC 1032 – September 22, 2026 – Ujjal Bhuyan and Atul S. Chandurkar,
JJ.**

[https://main.sci.gov.in/supremecourt/2024/54804/54804_2024_10_1501_54587_Judgement_22-Sep-2026.pdf](https://www.google.com/search?q=https://main.sci.gov.in/supremecourt/2024/54804/54804_2024_10_1501_54587_Judgement_22-Sep-2026.pdf)

**Appellant and impugned order challenged**

The appellant-informant brought this criminal appeal challenging the final judgment
and order dated 28.08.2024 passed by the learned Single Judge of the High Court 
of Bombay at Goa in Criminal Writ Petition No. 346 of 2024. By the said impugned
order, the High Court set aside the concurrent orders passed by the Magistrate framing
charges and the Sessions Court dismissing [revision](https://section1.in/recall-702-crpc-only-revision-lies-against-order-issuing-against-nbw-and-not-crl-o-p-jurisdiction-editors-note-inside/),
thereby discharging the first respondent-accused for offences punishable under Sections
468, 471, and 420 read with Section 34 of the Indian Penal Code. (paras 1, 6, 13)

**Factual matrix**

The appellant and the respondent are neighbours between whom disputes arose over
the construction of a structure pursuant to a 1971 municipal licence. The appellant
alleged that the structure was completely illegal and built [relying upon](https://section1.in/cheque-conviction-the-accused-has-only-relied-upon-plausible-theories-with-conjectures-and-surmises/)
an interpolated, forged copy of an approved plan drawn by an engineer. A complaint
was initially made before the Goa Coastal Zone Management Authority, followed by
a formal [police report](https://section1.in/understanding-the-police-report-investigation-and-magistrates-duties-in-criminal-cases/)
on 05.07.2012 at Calangute Police Station leading to the registration of FIR No.
152/2012 under Sections 468, 471, and 420 read with Section 34 of the IPC. Upon 
completion of the [investigation](https://section1.in/despite-investigation-records-being-untraceable-and-yet-the-investigation-kept-pending-for-two-decades-is-nothing-but-delayed-and-denied-justice/),
a final report was submitted on 02.04.2016 alleging that the accused along with 
her late father-in-law had forged the plan and produced it as genuine. The [accused sought discharge on the ground](https://section1.in/ratio-decidendi-failing-to-inform-the-accused-of-the-grounds-of-arrest-denying-the-opportunity-to-defend-through-counsel-and-failing-to-provide-information-about-the-proposed-remand-is-unconstituti/)
that the investigating agency failed to seize and recover the original plan, rendering
the chargesheet non-maintainable. (paras 2, 3, 4)

**Other courts verdicts**

The Judicial Magistrate First Class dismissed the plea of the accused on 21.12.2017
finding sufficient prima facie material to frame charges, and the Additional Sessions
Judge subsequently affirmed this view by dismissing Criminal Revision Application
No. 11 of 2018 on 28.12.2021. The High [Court earlier declined to quash the proceedings in Criminal](https://section1.in/court-cannot-return-final-report/)
Writ Petition No. 80 of 2023 on 31.10.2023, but in a subsequent [writ petition](https://section1.in/writ-miscellaneous-applications-not-entertained-after-disposal-of-a-main-writ-petition/)(
Criminal Writ Petition No. 346 of 2024), a Single Judge [set aside](https://section1.in/habeas-corpus-unexplained-delay-in-disposing-the-representation-made-by-the-detenu-is-sufficient-to-set-aside-the-order-of-detention/)
the charges on 28.08.2024 and discharged the accused solely because the original
plan was not annexed to the chargesheet. (paras 4, 5, 6, 11)

**Core legal [arguments](https://section1.in/oral-hearing-is-non-negotiable-non-cooperation-by-defence-counsel-requires-amicus-appointment-not-ex-parte-verdict/)
of appellant vs respondent**

Counsel for the appellant argued that the High [Court exceeded its jurisdiction](https://section1.in/in-cross-case-or-case-in-counter-the-i-o-has-to-file-both-the-final-reports-before-the-jurisdictional-magistrate/)
under Section 482 of the CrPC by conducting a mini-trial and sifting through evidence
at the stage of framing charge, especially when a Division Bench of the same High
Court had previously dismissed an identical challenge which had attained finality.
In response, the accused appearing in-person contended that without recovering and
producing the original plan alleged to have been forged, the basic ingredients of
forgery could never be sustained, making the prolonged fourteen-year prosecution
a sheer abuse of process of law that fully justified the exercise of inherent powers
for discharge. (paras 7, 8)

**Ratio Decidendi**

Absence of the [original document](https://section1.in/no-original-documents-no-registration-of-deed/)
alleged to have been forged does not, by itself, sound the death knell of the prosecution
at the threshold stage of framing of charge, as the investigating agency is neither
precluded from proving forgery through circumstantial evidence nor barred from placing
additional documents during trial under Section 173(8) CrPC. Furthermore, where 
a competent [court has already considered and rejected](https://section1.in/abu-salem-case-supreme-court-rejects-premature-release-plea-2026-insc-982/)
a specific ground of challenge against the framing of charge in an earlier writ 
proceeding between the same parties, the doctrine of issue estoppel precludes the
accused from reagitating the self-same ground through successive writ petitions 
before the same High Court. At the stage of Section 227 and 228 CrPC, the court 
cannot conduct a roving [inquiry or separate](https://section1.in/if-the-accused-resides-outside-the-jurisdiction-there-need-not-be-a-separate-inquiry-or-investigation-under-section-202-crpc-for-complaints-filed-by-public-servants/)
grain from the chaff; grave suspicion founded on the chargesheet materials is sufficient
to proceed with trial. (paras 14, 15, 17, 18, 19, 20)

**[Directions issued](https://section1.in/reason-is-necessary-while-recording-direction-to-pay-the-interim-compensation-u-s143a1-n-i-act/)**

The [Supreme Court](https://section1.in/supreme-court-on-corporate-criminal-liability-the-new-three-stage-test-for-attributing-mens-rea-to-a-company/)
set aside the impugned discharge judgment of the High Court and restored Criminal
Case No. 90/S/2016/F before the Judicial Magistrate First Class with a [direction to proceed with the trial](https://section1.in/denovo-trial-unusual-recording-of-confession-statements-based-on-judicial-directions-and-the-doubt-of-subsequent-insertion-of-statutory-warning-in-the-confession-creates-serious-doubts/)
in accordance with law. Clarifying that all contentions on merits remain open without
being prejudiced by any prima facie observations, the [Court directed](https://section1.in/suo-moto-guidelines-common-practice-and-procedure-in-criminal-trials-all-over-india/)
the trial proceedings to be expedited since the complaint originated in the year
2012. (para 21)

**Important Paragraphs**

9. We have heard the learned counsel for the appellant, the first respondent in-
person as well as the learned counsel appearing for the second respondent. We have
also perused the material on [record that was placed before the trial](https://section1.in/reversal-of-acquittal-appellate-court-cannot-reverse-the-acquittal-on-fresh-appreciation-of-evidence-and-without-recording-any-illegality-error-of-law-or-of-fact-in-the-trial-court-judgment/)
Court as well as before the High Court. Having given thoughtful consideration to
the entire matter, we are of the opinion that the High Court was not justified in
quashing the order passed by the learned Magistrate framing charge and the order
passed by the Sessions Court upholding that order.

##### **Doctrine of issue estoppel barring subsequent writ petition on the same contention that had been canvassed in earlier writ petition**

15. Yet another reason for this Court to interfere is on account of the bar to re-
consider an [issue](https://section1.in/closure-report-pmla-closure-report-filed-in-predicate-offence-deserves-to-be-challenged-to-continue-proceedings-under-pmla-hence-though-the-ed-is-neither-aggrieved-person-nor-victim-it-may-appr/)
that was decided earlier in the same proceedings on the principle of ‘issue estoppel.
The Division Bench in the earlier round having considered the ground of absence 
of the original plan being submitted along with the chargesheet and thereafter having
declined to set aside the [order framing charge](https://section1.in/section-216-crpc-does-not-give-any-right-to-the-accused-to-file-a-fresh-application-seeking-his-discharge-after-the-charge-is-framed-and-also-no-revision-lie-inasmuch-as-it-is-an-interlocutory-order/),
it was not open for the accused in a subsequent writ petition to again canvass the
very same contention that had been canvassed in the earlier writ petition. The principle
of ‘issue estoppel’ would apply as a ground of challenge raised earlier but was 
unsuccessful was sought to be re-agitated before the same [Court](https://section1.in/honble-madras-high-court-issued-guidelines-to-family-courts-to-cirumvent-the-procedural-wrangles-that-are-being-faced-by-the-parties-before-the-family-court/)
by the same party.

16. Notwithstanding this position, even on merits of the challenge, we find that
the entire premise on which the accused seeks discharge, namely absence of the original
plan on the basis of which the charge of forgery was framed does not stand on firm
ground. In this context, it would be apposite to refer to the decision in _Rama 
Shanker Lal and others Vs. The State of U.P._ The appellants were prosecuted for
the offence under Sections 120-B, 468 and 471 of the Penal Code. It was alleged 
that some insertions/changes were made in a sale deed that was presented for registration.
The learned Assistant Sessions Judge acquitted the appellants after holding that
there was no proof of forgery of the original sale deed, which was not produced 
before the Court. The High Court, however, held that the contents of the certified
copy of the sale deed were different from what was decided to be sold and what was
actually incorporated in the sale deed. The appellants were, thus, convicted for
the offences under Sections 468, 471 and 120-B of the Penal Code. Before this Court,
it was urged that there was no evidence of forgery of the original sale deed as 
it was not available on record. In that context, it was observed as under:

> “7. The document said to have been forged as already pointed out has not been 
> produced in the case. According to the prosecution that document was taken back
> by Rama Shankar Lal; whereas according to the accused it was Vishnu Pad Mathur(
> P.^()W.1) who had received back the original document from the office of the Sub-
> Registrar. Both sides desired this Court to draw an adverse inference against 
> the opposite party for the non-production of the original sale deed. On the state
> of evidence o^()n this point we are disinclined to express any definite opinion
> on the question as to who had received back the sale deed ^()from the office of
> the Sub-Registrar though it seems likely that Rama Shankar Lal had taken back 
> the sale deed because t^()he sale deed constituted proof of the title of the vendee.
> In the circumstances we refrain from raising any presumption from the ^()non-production
> of the sale deed. However, the fact remains that we have not had the benefit of
> looking at the document^() alleged to have been forged, a circumstance which is
> material and which must to a large extent go against the prosecution^(). We do
> not mean to say that in the absence of the document alleged to be forged the Court
> can in no case hold^() the offence of forgery to be established, but to claim 
> such a finding in the absence of the document said to be forg^()ed, the evidence
> must in our view exclude all possibility of a reasonable doubt. This is in accord
> with the general principle of ^()our jurisprudence.”^()

It was, thus, held that the appellants were aware that the documents they used did
not represent the original sale deed. Their conviction under Section 471 of the 
Penal Code was upheld.

**Absence of Original Forged Document before the court not fatal to Prosecution 
case**

17. From the aforesaid decision of the three Judge Bench, **it can be seen that 
the original sale deed alleged to have been forged was not produced before the Court.
Despite such position, this [Court held that absence](https://section1.in/return-of-property-in-ndps-act-honble-supreme-court-after-explain-four-scenarios-held-that-in-the-absence-of-specific-bar-under-the-ndps-court-can-invoke-general-power-under-sections-451-and/)
of the original sale deed, by itself, could not be the basis to record a finding
that in no case, the offence of forgery could not be established. It observed “We
do not mean to say that in the absence of the document alleged to be forged the 
Court can in no case hold the offence of forgery to be established, but to claim
such a finding in the absence of the document said to be forged, the evidence must
in our view exclude all possibility of a reasonable doubt. This is in accord with
the general principle of our jurisprudence.” Thus, absence of production of the 
original document by itself was not found [fatal for the prosecution case](https://section1.in/murder-case-acquittal-the-witnesses-are-totally-unbelievable-as-such-they-informed-as-if-accused-have-climbed-into-the-chaubara-which-has-no-gate-through-a-ladder-and-caused-fatal-injuries-to-the-de/).
In other words, on the basis of other evidence on record, the prosecution could 
attempt to prove the offence of forgery, albeit [beyond reasonable doubt](https://section1.in/murder-case-acquittal-prosecution-failed-to-establish-beyond-reasonable-doubt-that-the-recovery-of-dead-body-and-failure-to-do-test-identification-parade-of-articles/).
This would naturally depend on the facts of each case**.

**Thus, in view of the decision in Rama Shanker Lal (supra), absence of the original
document that is alleged to be forged, by itself, cannot sound the death knell of
the prosecution case. It is only after evaluating the entire prosecution material
that a finding would be required to be recorded as to whether the charge of forgery
has been proved beyond reasonable doubt. That the prosecution could result in [acquittal](https://section1.in/acquittal-gunshot-witnesses-might-have-already-planned-to-frame-the-accused-since-they-know-the-accused-owned-licensed-weapon/)
at the conclusion of the trial is a different matter altogether**.

**Right of Prosecution to Prove Forgery via [Circumstantial Evidence](https://section1.in/rape-case-santosh-gurung-vs-state-of-sikkim-s-c-quashes-life-sentence-based-on-broken-circumstantial-evidence/)
at Trial**

19. It is, thus, clear that absence of the original [document relied upon by the prosecution](https://section1.in/defence-can-rely-on-the-unmarked-document-filed-by-the-prosecution/)
to bring home the charge of forgery would be a matter to be considered at the trial
and its absence by itself cannot be made the basis for quashing the entire prosecution.**
In other words, the prosecution can attempt to bring home the charge on the basis
of [circumstantial evidence](https://section1.in/appreciation-of-evidence-circumstantial-evidence-recovery-u-s-27-iea/).**
However, the entire proceedings would not be liable to be quashed without affording
an opportunity to the prosecution to attempt to prove the charge at the trial as
seen in the facts of the [present case](https://section1.in/how-sanctioning-authority-shall-examine-the-case-presented/).

**Threshold and Scope of Judicial Scrutiny at the [Stage of Framing Charges](https://section1.in/section-91-cr-p-c-accused-has-no-right-to-summon-call-at-the-stage-of-charge-framing/)**

20. Yet another reason that is apparent from the record is the detailed analysis
undertaken by the learned Single Judge while exercising jurisdiction in a challenge
to an [order passed under Section 227 of the Code](https://section1.in/accused-were-permitted-to-leave-the-court-without-any-formal-order-of-release-or-even-without-taking-a-bond-under-section-88-of-the-code/).
At that stage, it would not be permissible to sift through the entire evidence forming
part of the chargesheet with a view to find whether such evidence could result in
conviction of the accused. It would be sufficient if a grave suspicion is raised
against the accused on the basis of such material so as to sustain a trial. In this
regard, we may refer to the broad parameters to be borne in mind while exercising
such jurisdiction. In **K.H. Kamaladini vs. State**, this Court observed as under:

> ‘As far as the scope of hearing at the time of framing of the charge is concerned,
> the law is well settled. Firstly, at this stage, the Court can examine only the
> documents forming part of the [charge sheet](https://section1.in/section-420-ipc-the-contention-that-since-charge-sheet-has-been-filed-the-present-appeal-is-to-be-dismissed-was-rejected/),
> and no other material can be considered. Secondly, after considering the material
> on record, the Court has to [decide whether](https://section1.in/section-319-cr-p-c-trial-court-can-decide-whether-an-application-under-section-319-cr-p-c-should-be-decided-with-or-without-waiting-for-cross-examination/)
> or not there exists a sufficient ground for proceeding with the trial against 
> the appellant. Thirdly, at this stage, the Court cannot sift the evidence forming
> a part of the chargesheet with a view to separating the grain from the chaff. 
> Fourthly, if the Court is of the view that the [evidence without cross-examination or rebuttal shows that the accused](https://section1.in/case-diary-section-1723-cr-p-c-the-accused-has-a-right-to-cross-examine-police-officer-as-per-section-145-evidence-act-whenever-the-police-officer-uses-it-to-refresh-his-memory/)
> has not committed any offence, then an order of discharge must be passed. Lastly,
> if the evidence adduced before the Court creates a grave suspicion against the
> accused, the Court will not discharge the accused.’

##### **Conclusion**

21. Thus, taking an overall view of the matter, we are satisfied that the learned
Single Judge was not justified in exercising jurisdiction and re-appreciating the
entire material on record despite the fact that in the earlier round of the same
litigation at the behest of the accused, the Division Bench on consideration of 
the very same submissions had declined to interfere with the order passed by the
learned Magistrate framing charge. The accused has again sought to raise a challenge
to the order framing charge despite being unsuccessful earlier. For the aforesaid
reasons, the judgment dated 28.08.2024 passed by the learned Single Judge of the
High Court in Criminal Writ Petition No.346 of 2024 is set aside. The proceedings
in Criminal Case No.90/S/2016/F before the learned Magistrate are restored. The 
learned Magistrate shall now proceed with the trial in accordance with law. It is
clarified that all contentions of the parties including the accused are kept open
for being raised at the trial. Any observations made herein shall not cause prejudice
to either of the parties. Since the complaint is of the year 2012, the proceedings
before the learned Magistrate are expedited. The Criminal Appeal is allowed in aforesaid
terms. The pending Interlocutory Applications are disposed of.

**Resource**

**Judgments Cited and Used in the Decision**

 * _Piara Singh v. State of Punjab_, 1969 INSC 3: Settled that issue estoppel precludes
   the reception of evidence to disturb a finding of fact directly decided between
   the same parties in prior proceedings.
 * _King v. Wilkes_, (1948) 77 C.L.R. 511: Established that ordinary rules of issue
   estoppel prevent relitigation of an issue determined in favor of an accused in
   prior proceedings.
 * _Marz v. The Queen_, [1956] 96 C.L.R. 62: Reaffirmed that once an issue has been
   directly raised and found between the parties, subsequent legally inconsistent
   allegations cannot be entertained.
 * _Brown v. Robinson_, [1960] S.R. (N.S.W.) 297: Ruled that issue estoppel requires
   an identical issue to have been distinctly raised and determined in former proceedings.
 * _Pritam Singh v. State of Punjab_, AIR 1956 SC 415: Endorsed the binding principle
   of issue estoppel in [criminal jurisprudence](https://section1.in/suicide-no-dowry-demand-a-moral-conviction-regarding-the-guilt-of-an-individual-has-no-place-in-criminal-jurisprudence/)
   in India.
 * _Manipur Administration v. Thokchom Bira Singh_, 1964 INSC 67: Affirmed the application
   and limitations of the doctrine of issue estoppel in criminal trials.
 * _Rama Shanker Lal and others v. The State of U.P._, (1971) 3 SCC 905: Held that
   non-production of the original forged document is not necessarily fatal to [proving the charge of forgery beyond reasonable doubt](https://section1.in/prosecution-not-proved-the-murder-case-beyond-reasonable-doubt/).
 * _Central Bureau of Investigation v. R.S. Pai and Another_, 2002 INSC 178: Held
   that Section 173(5) is directory and does not preclude the prosecution from submitting
   additional documents post-chargesheet.
 * _Narayan Rao v. The State of Andhra Pradesh_, [1958] SCR 283: Interpreted the
   word ‘shall’ in statutory provisions for forwarding [police investigation](https://section1.in/no-private-funding-in-police-investigation/)
   papers as directory rather than mandatory.
 * _K.H. Kamaladini v. State_, 2025 INSC 745: Summarized the five core [principles governing](https://section1.in/principles-governing-for-granting-bail/)
   the discharge stage and held that a grave suspicion against the accused warrants
   framing of charge.
 * _Ram Prakash Chadha v. The State of Uttar Pradesh_, 2024 INSC 522: Held that 
   charge framing requires a prima facie ground emerging from records, not mere 
   suppositions or conjectures.

**Acts and Sections Involved**

 * **Indian Penal Code, 1860:**
    - Section 34: Acts done by several persons in furtherance of common intention
 *  - Section 120-B: Punishment of criminal conspiracy
 *  - Section 420: [Cheating and dishonestly inducing delivery of property](https://section1.in/supreme-court-quashes-fir-in-property-dispute-emphasizes-civil-in-nature-and-held-it-is-impossible-to-appreciate-how-appellant-deceived-the-respondent/)
 *  - Section 468: Forgery for purpose of cheating
 *  - Section 471: Using as genuine a forged document or [electronic record](https://section1.in/electronic-records-objection-though-objection-regarding-absence-of-certificate-under-section-65b-iea-not-raised-while-marking-but-question-put-to-the-witness-is-treated-as-objection/)
 * **[Code of Criminal Procedure](https://section1.in/bail-ability-of-section-3513-of-the-bharatiya-nyaya-sanhita-2023-do-colonial-era-notifications-survive-the-new-criminal-procedure-code/),
   1973:**
    - Section 173: [Report of police officer on completion of investigation](https://section1.in/understanding-the-police-report-investigation-and-magistrates-duties-in-criminal-cases/)
      Section 207A: (Pre-1973 procedure referenced via precedent)Section 227: DischargeSection
      228: Framing of chargeSection 397: Calling for records to exercise powers 
      of revisionSection 403: (Pre-1973 CrPC / [double jeopardy](https://section1.in/pmla-pc-act-prosecuting-the-person-accused-of-an-offence-under-section-131e-of-the-pc-act-as-well-as-for-an-offence-under-section-3-of-pmla-would-not-amount-to-double-jeopardy/)
      reference in citations)Section 482: Saving of inherent [powers of High Court](https://section1.in/cr-p-c-1973-notes-no-6-general-introduction-to-inquiries-and-trials-part-4-criminal-courts-powers-administration/)

### Further Study

 No Related Posts Found.

## Magistrate has no power to take Pre-Charge evidence in cases exclusively tried by Sessions Court

- Link: https://section1.in/magistrate-has-no-power-to-take-pre-charge-evidence-in-cases-exclusively-tried-by-sessions-court/
- Published: 2026-10-16T13:41:36+00:00
- Author: Sathiyajyothi Sabapathi

**Neeraj Gupta v. Pardeep Kumar Bansal and Others – Criminal [Appeal](https://section1.in/whether-complainant-should-obtain-special-leave-in-the-case-of-appeal-against-acquittal-referred-to-larger-bench/)
No. ___ of 2026 @ SLP(Crl.) No. 776 of 2020 – 2026 INSC 660 – 01 July 2026 – Sanjay
Karol and N. Kotiswar Singh, JJ.**

**Appellant and impugned order challenged**

Appellant Neeraj Gupta, complainant, challenged common judgment and [order dated 2nd September 2019 passed](https://section1.in/sec-214-nia-act-order-passed-relying-on-wikipedia-by-trial-court-unsustainable/)
in CRR-993-2011 (O&M) by High Court of Punjab & Haryana at Chandigarh, whereby learned
Single Judge remanded matter to Judicial Magistrate First Class, Chandigarh to comply
with provisions of Section 244 CrPC.

**Factual matrix**

Case arose after altercation between [complainant’s](https://section1.in/complainant-in-cheque-case-is-a-victim-the-supreme-courts-path-breaking-judgment-on-8th-april-2025-how-it-changed-the-way-i-see-justice/)
family and respondents on 12 April 2007 following which complainant’s father died.
As [police did not register FIR](https://section1.in/police-has-no-other-option-except-to-register-fir-if-cognizable-offences-found-magistrate-must-direct-investigation-if-cognizable-offence-found-in-the-complaint/),
complainant approached Judicial Magistrate under Section 156(3) CrPC resulting in
proceedings under Section 200 CrPC. After recording pre-summoning evidence, Magistrate
[summoned accused and committed matter involving offence under Section](https://section1.in/pmla-section-88-cr-p-c-an-order-accepting-bonds-under-section-88-cr-p-c-from-the-accused-does-not-amount-to-a-grant-of-bail-a-detailed-discussion-on-arrest-summons-warrant-bail-and-bond-under/)
302 IPC to Court of Session.

**Lower courts verdicts**

[Trial Court](https://section1.in/reversal-of-acquittal-appellate-court-cannot-reverse-the-acquittal-on-fresh-appreciation-of-evidence-and-without-recording-any-illegality-error-of-law-or-of-fact-in-the-trial-court-judgment/)/
Magistrate: Recorded pre-summoning evidence under Section 200 CrPC, summoned accused
and committed case to Court of Session under Section 209 CrPC for offence under 
Section 302 IPC. High Court: In revision, held pre-charge evidence under [Section 244 CrPC](https://section1.in/section-1563-cr-p-c-magistrates-can-direct-preliminary-inquiry-under-section-156-3-and-ask-for-action-taken-report-from-the-station-house-officer-sho/)
mandatory before committal and remanded matter to Magistrate for compliance.

**Core legal arguments of appellant vs respondent**

Appellant: Requirement of Section 244 CrPC before committal under Section 209 CrPC
is contrary to scheme of CrPC, Section 244 applies only to warrant cases triable
by Magistrates, Magistrate’s role at committal is narrow, compelling double deposition
is impermissible. Respondent / High Court view: Pre-charge evidence under [Section 244 CrPC is mandatory safeguard before committing Sessions-triable case](https://section1.in/section-482-crpc-only-high-court-has-the-power-to-direct-to-run-sentences-in-two-different-cases-concurrently/)
arising from complaint.

**Ratio Decidendi**

[Supreme Court rejected](https://section1.in/abu-salem-case-supreme-court-rejects-premature-release-plea-2026-insc-982/)
High Court approach as inconsistent with statutory design. Held Section 244 applies
only to warrant [cases triable by Magistrates and instituted otherwise than on police](https://section1.in/even-in-a-case-where-the-final-report-of-the-police-under-section-173-is-accepted-and-the-accused-persons-are-discharged-the-magistrate-has-the-power-to-take-cognizance-of-the-offence-on-a-complaint/)
report, has no application where offence exclusively triable by Court of Session.
In such cases Section 209 alone governs committal after basic statutory formalities.
Magistrate cannot test evidence, evaluate [prosecution case or conduct](https://section1.in/acquittal-pocso-not-conducting-a-potency-test-on-the-accused-along-with-the-negative-dna-report-and-lack-of-eyewitness-to-the-incident-creates-suspicion-about-the-prosecutions-case/)
pre-charge inquiry. 1973 Code deliberately abolished elaborate committal inquiry
under 1898 Code to prevent delay and duplication, requiring witnesses to depose 
before both Magistrate and Sessions Court would revive very mischief legislature
intended to remove.

**Directions issued**

High Court’s remand [order dated 2 September 2019 set aside](https://section1.in/habeas-corpus-unexplained-delay-in-disposing-the-representation-made-by-the-detenu-is-sufficient-to-set-aside-the-order-of-detention/)
as legally untenable. Matter restored for fresh decision by High [Court in accordance with law](https://section1.in/30-landmark-supreme-court-of-india-criminal-law-judgments-explained/)
as clarified. No direction to police as FIR stage already over.

**Who is affected and what changes**

Impacts complainants, accused and Magistrates in [complaint cases](https://section1.in/pmla-section-88-cr-p-c-an-order-accepting-bonds-under-section-88-cr-p-c-from-the-accused-does-not-amount-to-a-grant-of-bail-a-detailed-discussion-on-arrest-summons-warrant-bail-and-bond-under/)
where offence exclusively triable by Sessions Court under Section 209 CrPC. Practically,
Magistrates [must not record Section 244 evidence](https://section1.in/section-27-iea-mere-exhibiting-the-disclosure-statement-to-the-io-is-not-sufficient-but-the-io-must-give-description-about-the-conversation-while-recording-disclosure-statements-in-evidence/)
before committal, must only ensure statutory compliance. Prevents duplication of
testimony, accelerates Sessions trials and restores narrow inspection role of Magistrate
at committal stage.

**Judgments cited/quoted/used inside the document**

As per the limited head note / brief facts / ratio you provided, no other [Supreme Court judgments](https://section1.in/30-landmark-supreme-court-of-india-criminal-law-judgments-explained/)
are expressly cited by name with citation. The [document itself is the source of law](https://section1.in/section-1951bii-would-be-attracted-only-when-the-document-was-in-the-custodia-legis-custody-of-the-law-and-not-otherwise/)
on Section 209 vs Section 244 dichotomy.

##### **Important paragraphs**

##### **Hon’ble High Court’s order was that there is a mandatory recording of pre-charge evidence under section 244 CrPC before committing the case to the Sessions Court**

4. The reasoning adopted by the High Court is that Section 244 CrPC requires that
a Magistrate hear all prosecution evidence irrespective of **whether or not the 
offence with which the evidence is concerned is triable by the Magistrate or not**.
We may reproduce the part thereof:

‘Once the Legislature has provided a specific procedure for recording the pre-charge
evidence before framing of charges in a Magisterial trial, it does not appear to
prudence that the said requirement was not essential for an offence triable by the
Sessions Court, if the case is based upon the complaint. It may be again added here
that if the offence is serious, there has to be sufficient material in the shape
of some evidence which is to be examined by the Magistrate before passing the Committal
Order, the same has to be other than the pre-summoning evidence. Time and again,
this Court as well as the Hon’ble Supreme Court have held that the Magistrate while
passing the Committal Order is not to act as a mouthpiece of the prosecution, but
is supposed to examine the material carefully to arrive at such a conclusion. In
cases based upon the police report, the entire evidence collected by the police 
after investigation is contained in Final report under Section 173(2) Cr.P.C. whereupon
an opinion is formed by the Magistrate for Commitment and likewise in the other 
cases, the Court has to examine pre-charge evidence before passing the Committal
Order.’

##### **Question of law**

6. The issue, simply put is whether a Magistrate must record evidence when the offence
is strictly triable by the Court of Sessions as in this case, where the allegations
were inter alia under section 302 Indian Penal Code, 1860.

“Hon’ble Supreme Court after quoting provision from Cr.P.C (Section 200 CrPC, Section
209 CrPC, Chapter XIX CrPC) and explaining the principles from its previous judgments
Ajoy Kumar Ghose (supra), Harinarayan G. Bajaj supra and Sunil Mehta supra” has 
held:

9. If the reasoning of the High Court is accepted, a number of witnesses would be
required to depose about the same set of facts and circumstances, at least twice.
This may not be of any particular use, nor mandate of law.

##### **Constitution Bench ruled that the duty of the Magistrate at the pre-trial stage in cases exclusively tried by the Sessions Court is to perform administrative work rather than judicial and to commit the case**

10. The Constitution Bench in _Hardeep Singh v. State of Punjab_ while dealing with
section 319 made following observations which are relevant for our discussion:

’47. .. At this pre-trial stage, the Magistrate is required to perform acts in the
nature of administrative work rather than judicial such as ensuring compliance with
Sections 207 and 208 CrPC and committing the matter if it is exclusively triable
by the Sessions Court. Therefore, it would be legitimate for us to conclude that
the Magistrate at the stage of Sections 207 to 209 CrPC is forbidden, by express
provision of Section 319 CrPC, to apply his mind to the merits of the case and determine
as to whether any accused needs to be added or subtracted to face trial before the
Court of Session.’

11. In Supdt. and Remembrancer of Legal Affairs v. Ashutosh Ghosh it was held that
under CrPC, the only requirement from the Magistrate is to see whether the offence
is exclusively triable by the Court of Sessions and in doing so, no evidence need
be taken.

##### **Conclusion**

##### **Set aside the order of the High court**

13. Consequent upon the above discussion, we have no hesitation in holding that 
the High Court proceeded with an erroneous reading of the law and the impugned judgment
cannot be sustained. It is required to be set aside. Ordered accordingly.

14. The main prayer of the appellant before the High Court was that the Court of
Sessions that seized the matter had erred in not framing charges against the other
two accused persons. In our view, holding that the remand to the Magistrate was 
incorrect in law, we now ask the High Court to hear the petition of the appellant
as well as the one filed by respondent no.2, afresh and decide the same independently.
Since the charges against one of the respondents were far framed back in 2011, we
request that both the petitions be decided as expeditiously as possible, and not
later than nine months. Parties to appear before the High Court on 16th July 2026.”

**State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568 – **to trace legislative
history of abolition of committal inquiry.

**Rattiram v. State of M.P. (2012) 4 SCC 516 **– to describe Magistrate’s power 
as narrow inspection hole.

**Acts and Sections involved**

[Code of Criminal Procedure](https://section1.in/bail-ability-of-section-3513-of-the-bharatiya-nyaya-sanhita-2023-do-colonial-era-notifications-survive-the-new-criminal-procedure-code/),
1973 – Section 156(3), Section 200, Section 202, Section 209, Section 244

Code of Criminal Procedure, 1898 – Committal inquiry provisions [referred for historical
contrast]

[Indian Penal Code](https://section1.in/title-understanding-section-120b-of-the-indian-penal-code-ipc-criminal-conspiracy-and-its-implications/),
1860 – Section 302

### Further Study

 No Related Posts Found.

## NI Act: Section 319 Cr.P.C cannot be invoked to implead company in cheque cases to avoid fatal defect

- Link: https://section1.in/ni-act-section-319-cr-p-c-cannot-be-invoked-to-implead-company-in-cheque-cases-to-avoid-fatal-defect/
- Published: 2026-10-15T13:19:57+00:00
- Author: Ramprakash Rajagopal

**Manjula Kapoor v. State of Himachal Pradesh & Another – Criminal Appeal No. __
of 2026 [Arising out of SLP (Crl.) No. 8240 of 2016] – 2026 INSC 789 – 29 July 2026–
Hon’ble Manoj Misra and Vijay Bishnoi, JJ.**

[https://api.sci.gov.in/supremecourt/2016/34306/34306_2016_11_12_72755_Judgement_29-Jul-2026.pdf](https://api.sci.gov.in/supremecourt/2016/34306/34306_2016_11_12_72755_Judgement_29-Jul-2026.pdf)

**Appellant and impugned order challenged**

Appellant Manjula Kapoor, director and authorised signatory of M/s Cine Prime Entertainment,
filed a petition under Section 482 CrPC read with Article 227 before Himachal Pradesh
High Court at Shimla for quashing Complaint Case No.25/1 of 2009 under Section 138
NI Act, titled Pankaj Sharma v. Manjula Kapoor, pending before JMFC, Barsar. The
impugned order dated 19.09.2016 declined to quash but directed [Trial Court](https://section1.in/22786-2/)
to suo motu issue notice to company under Section 319 CrPC and implead it as accused
No.2 and commence trial de novo.

**Factual matrix**

As per complaint, company owed Rs.5,00,000 to complainant Pankaj Sharma for services
rendered and [issued a cheque](https://section1.in/s-138-n-i-act-would-not-attract-if-the-part-payment-made-before-encashment-of-the-cheque-issued-for-the-original-amount/)
signed by appellant as authorised signatory, which was dishonoured. [Complaint was filed](https://section1.in/pmla-cognizance-under-pmla-special-court-can-take-cognizance-only-by-way-of-complaint-filed-by-the-authority-authorized-on-this-behalf/)
only against appellant without making company an accused or issuing statutory demand
notice under Section 138 to company.

**Lower courts verdicts**

The Judicial Magistrate 1st Class, Barsar, took cognizance of complaint under [Section 138 NI Act against the director alone and proceeded](https://section1.in/initiation-of-criminal-proceeding-under-sections-138-141-n-i-act-is-covered-under-moratorium-provision-u-s-14-ibc/)
with trial. The High Court of Himachal Pradesh, vide order dated 19.09.2016 in Section
482 petition, refused quashing and instead [directed the Trial Court to invoke Section](https://section1.in/section-451-cr-p-c-petition-for-disposal-return-of-property-cannot-be-filed-directly-by-invoking-article-226-without-invoking-section-451-cr-p-c-before-the-concerned-court/)
319 CrPC to summon the company as additional accused.

**Core legal arguments of appellant vs respondent**

Appellant contended that when cheque is drawn on company account, company must be
arraigned as principal [accused under Section 141 NI Act](https://section1.in/case-diary-section-1723-cr-p-c-the-accused-has-a-right-to-cross-examine-police-officer-as-per-section-145-evidence-act-whenever-the-police-officer-uses-it-to-refresh-his-memory/),
and prosecution of director alone without company is not maintainable, and such 
fundamental defect cannot be cured under Section 319 CrPC after limitation under
Section 142 has expired. Respondent/complainant contended that defect was curable,
and High Court rightly invoked Section 319 CrPC to prevent failure of justice by
summoning company during trial.

**Ratio Decidendi**

Under Sections 138 and 141 NI Act, commission of offence by company is condition
precedent to attract vicarious liability of directors; [company being drawer is principal offender, directors](https://section1.in/section-141-n-i-act-unless-assertions-are-made-vicarious-liability-of-the-directors-of-the-first-accused-company-is-not-attracted/)
are vicariously liable. Arraignment of company as accused at filing is mandatory;
non-impleadment is fatal defect affecting cognizance itself. Proviso to Section 
142(1) NI Act permitting [condonation of delay](https://section1.in/proviso-to-order-21-rule-1053-of-madras-amendment-repealed-by-central-amendment-madras-high-court-declares-delay-condonation-in-execution-proceedings-impermissible/)
cannot be used to circumvent substantive requirement and allow removal of fatal 
defect after threshold stage. [Section 319 CrPC power to summon additional accused](https://section1.in/even-in-a-case-where-the-final-report-of-the-police-under-section-173-is-accepted-and-the-accused-persons-are-discharged-the-magistrate-has-the-power-to-take-cognizance-of-the-offence-on-a-complaint/)
cannot be invoked to cure initial non-arraignment of company, particularly after
expiry of limitation prescribed under Section 142. High [Court exceeded jurisdiction in directing](https://section1.in/suo-moto-guidelines-common-practice-and-procedure-in-criminal-trials-all-over-india/)
suo motu impleadment [Paras 10-16, 19-23 of 2026 INSC 789].

**Directions issued**

None. Appeal allowed, High Court [order dated 19.09.2016 set aside](https://section1.in/habeas-corpus-unexplained-delay-in-disposing-the-representation-made-by-the-detenu-is-sufficient-to-set-aside-the-order-of-detention/),
complaint and all consequential proceedings under Section 138 NI Act quashed. No
directions to State/police/authorities.

**Who is affected and what changes**

Affects complainants, companies, directors and authorised signatories in [cheque dishonour](https://section1.in/cheque-dishonour-cases-digest-2023-2025/)
prosecutions. Practically mandates that [complaint must](https://section1.in/complaint-must-contain-allegations-on-cheating/)
implead company where cheque is drawn on its account, issue demand notice to company,
and file within limitation under Section 142. [Trial Courts](https://section1.in/reversal-of-acquittal-appellate-court-cannot-reverse-the-acquittal-on-fresh-appreciation-of-evidence-and-without-recording-any-illegality-error-of-law-or-of-fact-in-the-trial-court-judgment/)
cannot salvage defective complaints by resorting to Section 319 CrPC; such complaints
are liable to be quashed at threshold.

##### **Important Paragraphs**

##### **Section 138 NI Act: Burden on complainant to prove**

9. A plain reading of Section 138 of NI Act would make it clear that to successfully
prosecute a person for an offence punishable under Section 138, the complainant 
must prove:

> (i) that the person drew a cheque on an account maintained by him with the banker;
> (ii) that such cheque was drawn for payment of any amount of money to another 
> person out of that account for the discharge, in whole or in part, of any debt
> or other liability;
> (iii) that such cheque was presented to the bank within a period of six months
> from the date it was drawn or within the period of its validity, whichever is 
> earlier;
> (iv) that such cheque was returned by the bank unpaid, either because of the amount
> of money standing to the credit of that account is insufficient to honour the 
> cheque or that it exceeds the amount arranged to be paid from that account by 
> an agreement made with that bank;
> (v) that the payee or the holder in due course of the cheque, as the case may 
> be, demanded in writing from the drawer of the cheque, the payment of the amount
> of the money due under the cheque to the payee;
> (vi) that such a notice for payment is made within a period of thirty days from
> the date of the receipt of the information by the payee from the bank regarding
> the return of the cheque as unpaid;
> (vii) that the drawer of such cheque has failed to make the payment of the said
> amount of money to the payee or, as the case may be, to the holder in due course
> of the cheque, within 15 days of the receipt of the said notice.

##### **‘Such person’: Company is a juristic person and can maintain an account with the bank**

11. What is clear from above is that the liability for the offence falls on “such
person” who has drawn the cheque on an account maintained by him with a banker. 
Company is a juristic person and can maintain an account with the bank. Thus, if
the cheque concerned is drawn on the account maintained by the Company, subject 
to fulfilment of other ingredients of Section 138 of NI Act, it would be the Company
which would commit the offence. Section 141 of NI Act creates vicarious liability
of certain other persons when the offence is committed by the company. Section 141
provides that if the person committing an offence under Section 138 is a company,
every person who, at the time the offence was committed, was in charge of, and was
responsible to the company for the conduct of the business of the company, as well
as the company, shall be deemed to be guilty of the offence and shall be liable 
to be proceeded against and punished accordingly. Interpreting the provisions of
Sections 138 and 141 of NI Act, in Aneeta Hada (supra), it was held that **for maintaining
prosecution of any director of the company arraigning a company as an accused is
mandatory**. **It was further held that commission of offence by the company is 
a condition precedent to attract the vicarious liability of others**. This Court
went on to observe that the words “as well as the company” appearing in Section 
141 make it absolutely clear that when the company can be prosecuted, then only 
the persons mentioned in other categories could be held vicariously liable for the
offence subject to the averments in the petition and proof thereof. The relevant
paragraphs of this Court’s decision in Aneeta Hada (supra) are being reproduced 
below:

> “58. Applying the doctrine of strict construction, we are of the considered opinion
> that commission of offence by the company is an express condition precedent to
> attract the vicarious liability of others. Thus, the words, “as well as the company”
> appearing in the section make it absolutely unmistakably clear that when the company
> can be prosecuted, then only the persons mentioned in the other categories could
> be vicariously liable for the offence subject to the averments in the petition
> and proof thereof. One cannot be oblivious of the fact that the company is a juristic
> person and it has its own respectability. If a finding is recorded against it,
> it would create a concavity in its reputation. There can be situations when the
> corporate reputation is affected when a Director is indicted.
>  * In view of our aforesaid analysis, we arrive at the irresistible conclusion
>    that for maintaining the prosecution under Section 141 of the Act, arraigning
>    of a company as an accused is imperative. The other categories of offenders
>    can only be brought in the drag-net on the touchstone of vicarious liability
>    as the same has been stipulated in the provision itself. We say so on the basis
>    of the ratio laid down in C.V. Parekh which is a three-Judge Bench decision.
>    Thus, the view expressed in Sheoratan Agarwal does not correctly lay down the
>    law and, accordingly, is hereby overruled. The decision in Anil Hada is overruled
>    with the qualifier as stated in para 51. The decision in Modi Distillery has
>    to be treated to be restricted to its own facts as has been explained by us
>    hereinabove.”

##### **Invoking section 319 Cr.P.C for impleading company in cheque dishonour cases**

12. Now we shall consider whether recourse can be had to the provisions of Section
319 of CrPC to arraign the company as an accused when the complaint fails to implead
the company. To appropriately answer the issue we must have a look at the provisions
of Section 142 which deals with cognizance of the offence punishable under Section
138 of NI Act. Section 142 of NI Act provides that notwithstanding anything contained
in CrPC no Court shall take cognizance of any offence punishable under Section 138
except upon a complaint in writing made by the payee or, as the case may be, the
holder in due course of the cheque; and such complaint must be made within one month
of the date on which the cause of action arises under clause (c) of the proviso 
to Section 138. Clause (c) of the proviso to Section 138 gives 15 days’ time to 
the drawer to make payment upon service of notice of demand. This would imply that
cause of action crystalises when the drawer of such cheque fails to make payment
of the amount concerned within fifteen days of the receipt of the notice contemplated
in clause (b) of the proviso to Section 138. Therefore, the statute fixes a time
period within which the complaint is to be made for an offence punishable under 
Section 138.

##### **Section 319 Cr.P.C cannot be used to circumvent fatal defect of complainant failing to implead the company at the threshold**

13. No doubt, the Court empowered to take cognizance has the power, under the proviso
to sub-section (1) of Section 142 of NI Act, to take cognizance of a complaint made
after the prescribed period upon being satisfied that the complainant had sufficient
cause for not making the complaint within such period. But this power must not be
used to circumvent the provisions of the Act and allow the complainant to remove
fatal defects in the course of the proceedings when the complaint itself deserved
dismissal at the threshold.

14. Here, the complaint suffered from a fatal defect for its failure to implead 
the Company as an accused on whose account the cheque was drawn. In such circumstances,
no cognizance on that complaint could have been taken in view of the decision in
Aneeta Hada (supra). Hence, all further proceedings on the complaint were bad in
law.

##### **N. Harihara Krishnan vs. J. Thomas case is followed on this aspect**

15. In N. Harihara Krishnan v. J. Thomas, a somewhat similar issue had arisen for
consideration before this Court. It was held that power under Section 319 of CrPC
should not be used as a device to initiate prosecution against the company beyond
the period of limitation stipulated under the Act. We respectfully agree with the
aforesaid view of this Court. Besides, in our view, where the complaint suffers 
from so fundamental a defect that no cognizance can be taken thereupon, the Court
cannot proceed and take recourse to the provisions of Section 319 to cure that defect.
The reason is simple, if the complaint suffers from a fatal defect, there is no 
valid institution of a proceeding. In such circumstances, only a fresh complaint
can be filed after removing the defect provided it is within the period of limitation
prescribed by the Act. However, if the fresh complaint is beyond the prescribed 
period of limitation, the Court concerned may take cognizance if it is satisfied
that the complainant had sufficient cause for not making the complaint within the
prescribed period.

##### **Conclusion**

##### **High Court erred in directing the Magistrate to arragn company as accused**

16. For the reasons above, we are of the view that the High Court clearly exceeded
its jurisdiction by directing the learned Magistrate/ Trial Court to suo moto arraign
company as an accused. In consequence, and having regard to the finding that the
complaint suffered from a fatal defect, we have no hesitation in holding that the
complaint and all consequential proceedings arising there from are liable to be 
quashed and are hereby quashed.

17. The appeal is allowed. The impugned order of the High Court is set aside. The
impugned Complaint and all consequential proceedings under Section 138 of NI Act
are hereby quashed.

[Manjula Kapoor vs. The State of H.P 34306_2016_11_12_72755_Judgement_29-Jul-2026](https://section1.in/wp-content/uploads/2026/10/Manjula-Kapoor-vs.-The-State-of-H.P-34306_2016_11_12_72755_Judgement_29-Jul-2026.pdf)
[Download](https://section1.in/wp-content/uploads/2026/10/Manjula-Kapoor-vs.-The-State-of-H.P-34306_2016_11_12_72755_Judgement_29-Jul-2026.pdf)

**Judgments cited**

Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 Cited for proposition
that arraigning company as accused is mandatory for maintaining [prosecution of director and that commission of offence](https://section1.in/pmla-pc-act-prosecuting-the-person-accused-of-an-offence-under-section-131e-of-the-pc-act-as-well-as-for-an-offence-under-section-3-of-pmla-would-not-amount-to-double-jeopardy/)
by company is condition precedent to attract vicarious liability under Section 141
NI Act 16c3

**Acts and Sections involved:**

– Negotiable Instruments Act, 1881 – Section 138 – Dishonour of cheque

– Negotiable Instruments Act, 1881 – Section 141 – Offences by companies, vicarious
liability of directors

– Negotiable Instruments Act, 1881 – [Section 142 – Cognizance](https://section1.in/cognizance-taken-on-the-further-investigation-petition-filed-u-s-1738-cr-p-c-as-protest-petition-is-correct/)
and limitation

– [Code of Criminal Procedure](https://section1.in/bail-ability-of-section-3513-of-the-bharatiya-nyaya-sanhita-2023-do-colonial-era-notifications-survive-the-new-criminal-procedure-code/),
1973 – Section 319 – Power to proceed against other persons appearing to be guilty

– Code of Criminal Procedure, 1973 – Section 482 – Inherent [powers of High Court](https://section1.in/cr-p-c-1973-notes-no-6-general-introduction-to-inquiries-and-trials-part-4-criminal-courts-powers-administration/)

### Further Study

 * [Complaint filed under section 138 N.I Act is maintainable even Partnership Firm is not named as accused](https://section1.in/complaint-filed-under-section-138-n-i-act-is-maintainable-even-partnership-firm-is-not-named-as-accused/)
 * [Section 138 NI Act: Unless the firm is added as primary accused the partner cannot be fasten vicarious criminal liability for firm](https://section1.in/vicarious-liability-in-s-138-n-i-cases-and-its-impact-if-firm-not-added-an-accused/)

## Section 187(2) & Section 38 BNSS: Supreme Court Clarifies period of Police Custody and Lawyer Presence & Videography Rules by giving directions

- Link: https://section1.in/section-1872-section-38-bnss-supreme-court-clarifies-period-of-police-custody-and-lawyer-presence-videography-rules-by-giving-directions/
- Published: 2026-10-15T12:24:35+00:00
- Author: Ramprakash Rajagopal

**State of Andhra Pradesh v. Suda Suresh Veera Venkata Naga Raju – Criminal [Appeal](https://section1.in/whether-complainant-should-obtain-special-leave-in-the-case-of-appeal-against-acquittal-referred-to-larger-bench/)
No.__ of 2026 @ SLP(Crl.) No. 12344 of 2026 – 2026 INSC 744 – 27 July 2026 – Vikram
Nath and Sandeep Mehta, JJ.**

[https://api.sci.gov.in/supremecourt/2026/40501/40501_2026_2_1502_72784_Judgement_27-Jul-2026.pdf](https://api.sci.gov.in/supremecourt/2026/40501/40501_2026_2_1502_72784_Judgement_27-Jul-2026.pdf)

**Summary**

The Court clarified balance between Article 21 safeguards and effective investigation
during police custody under BNSS. Section 38 BNSS gives right to meet advocate during
interrogation, not continuous presence. Interrogation cannot be confined to prison
when [recovery](https://section1.in/acquittal-since-the-limitation-for-a-suit-for-money-recovery-has-expired-a-criminal-case-cannot-be-used-for-money-recovery/)
requires visit to places. Continuous videography of transit of 160 km is impracticable,
but audio-visual recording of actual interrogation and recovery is salutary. Police
custody may be granted in parts within 40/60-day window under [Section](https://section1.in/ndps-confiscation-sections-36-c-and-51-ndps-do-not-deny-the-use-of-sections-451-s-497-bnss-and-457-503-bnss-and-section-60-does-not-deny-interim-custody-to-bona-fide-owner/)
187 BNSS.

**1) Appellant and impugned order challenged**

State of Andhra Pradesh challenged judgment and final order dated 7 July 2026 passed
by High [Court of Andhra Pradesh at Amaravati in Criminal](https://section1.in/cr-p-c-1973-notes-no-6-general-introduction-to-inquiries-and-trials-part-4-criminal-courts-powers-administration/)
Petition No. 5443 of 2026, which substantially retained stringent conditions imposed
by II Additional [Judicial Magistrate](https://section1.in/section-1754-bnss-a-guide-for-judicial-magistrates/)
of First Class, Vijayawada dated 2 July 2026 in Crl.M.P. No. 1400 of 2026 granting
8 [days police custody](https://section1.in/police-custody-does-not-mean-first-15-days-only/).

**2) Factual matrix**

Respondent, Police Inspector and SHO of Krishna Lanka [Police Station](https://section1.in/alibi-accused-must-prove-the-alibi-after-getting-answer-from-the-witness-that-the-accused-was-not-in-police-station/),
accused in custodial death matter of Gade Sai Krishna aged 25 who disappeared after
being picked up on 6 May, allegedly beaten to death and body disposed at electric
crematorium. FIR under Sections 127(4), 127(6), 103(1) and 238 BNS registered on
[complaint](https://section1.in/anticipatory-bail-is-not-needed-in-complaint-cases-only-if-apprehension-of-arrest-is-by-the-police-only/)
of mother on 19 June. SIT arrested respondent on 23 June. Magistrate granted police
custody but subject to interrogation only inside Central Prison Rajamahendravaram,
continuous videography and [presence of advocate](https://section1.in/advocate-presence-not-necessary-for-confession-u-s-164-2-cr-p-c/).

**3) [Lower courts](https://section1.in/dont-mention-as-lower-courts-acquittal-based-on-the-affidavits-filed-by-the-eyewitness-in-court/)
verdicts**

Magistrate: Granted 8 days police [custody till](https://section1.in/prosecution-must-prove-the-custody-of-sealed-article-from-the-time-of-seizure-till-they-reach-the-fsl/)
10 July but directed interrogation from 10 am to 5 pm only inside Central Prison
Rajamahendravaram, in presence of lawyer, with continuous audio-video recording 
without interruption and preservation of CCTV footage. High Court: Modified order
to allow custody from 09.07.2026 to 16.07.2026 and [permitted](https://section1.in/accused-were-permitted-to-leave-the-court-without-any-formal-order-of-release-or-even-without-taking-a-bond-under-section-88-of-the-code/)
taking accused to scene of offences for recovery and reconstruction, directed continuous
videography of every movement from Central Prison to Vijayawada and back, but retained
other restrictive conditions.

**4) Core legal [arguments](https://section1.in/oral-hearing-is-non-negotiable-non-cooperation-by-defence-counsel-requires-amicus-appointment-not-ex-parte-verdict/)
of appellant vs respondent**

State: Conditions imposed directly impinge on statutory right of investigating agency
to conduct unhindered investigation, interrogation confined to prison defeats purpose
as recovery of deceased body, CCTV hard disks requires visit to places, continuous
videography of 3 hours transit each way over 160 km unworkable, continuous presence
of advocate would obstruct interrogation. Respondent: Life at risk if interrogated
at Vijayawada facility as [persons arrested](https://section1.in/information-about-arrest-is-completely-different-from-grounds-of-arrest-rights-of-arrested-persons-guidelines-issued/)
by him lodged there, safeguards needed against coercion and custodial violence under
Article 21, right to legal assistance and videography mandatory.

**5) [Ratio Decidendi](https://section1.in/ratio-decidendi-failing-to-inform-the-accused-of-the-grounds-of-arrest-denying-the-opportunity-to-defend-through-counsel-and-failing-to-provide-information-about-the-proposed-remand-is-unconstituti/)**

Safeguards flowing from Article 21 [must protect accused](https://section1.in/section-306-ipc-there-must-be-either-an-instigation-or-an-engagement-or-intentional-aid-to-doing-of-a-thing-and-based-on-that-accused-must-have-encouraged-the-person-to-commit-suici/)
from coercion, torture and custodial violence but cannot be so restrictive as to
render police custody ineffective. Section 38 BNSS gives arrested person right to
meet advocate during interrogation, not right to continuous presence throughout 
interrogation. Audio-visual recording of actual interrogation and discovery/recovery
proceedings is valid and salutary safeguard, but continuous videography of transit
is impracticable. Section 187 BNSS permits police custody in parts within statutory
40/60 day window, [courts should not prematurely foreclose that power](https://section1.in/section-482-crpc-only-high-court-has-the-power-to-direct-to-run-sentences-in-two-different-cases-concurrently/)
by imposing absolute prohibition on further custody. Condition confining custodial
interrogation exclusively to Central Prison [set aside](https://section1.in/habeas-corpus-unexplained-delay-in-disposing-the-representation-made-by-the-detenu-is-sufficient-to-set-aside-the-order-of-detention/)
as unworkable [Paras 14-18 as per 2026 INSC 744].

**5. [Directions issued](https://section1.in/reason-is-necessary-while-recording-direction-to-pay-the-interim-compensation-u-s143a1-n-i-act/)**

Appeal allowed. Respondent granted further 7 days [police custody subject to overall statutory limit under Section](https://section1.in/custody-death-or-station-death-if-the-death-takes-place-inside-the-police-station-the-accused-persons-should-be-punished-for-the-offence-under-section-302-ipc/)
187 BNSS. Investigating agency permitted to interrogate at SIT’s designated interrogation
centre or equivalent secure facility, not confined to Central Prison Rajamahendravaram.
Audio-visual recording of interrogation and recovery proceedings retained. Advocate
allowed to remain within sight of interrogation where he can see accused but not
permitted to intervene. Accused’s safety and dignity made joint responsibility of
concerned officers including Jail Superintendent and SIT. SIT directed to conduct
impartial, fair and scientific investigation strictly in accordance with law and
submit videographic recordings in original form before jurisdictional Magistrate.

**6. Who is affected and what changes**

Affects investigating agencies, [Magistrates and accused persons](https://section1.in/even-in-a-case-where-the-final-report-of-the-police-under-section-173-is-accepted-and-the-accused-persons-are-discharged-the-magistrate-has-the-power-to-take-cognizance-of-the-offence-on-a-complaint/)
under new criminal laws BNSS/BNS. Clarifies new [law allows police custody](https://section1.in/custody-of-child-in-mohammaden-law-no-system-of-adoption-of-child-in-mohammaden-law-custody-of-children-is-the-welfare-of-children-and-not-the-right-of-their-parents/)
beyond first 15 days and in parts within 60/90 day window, unlike old CrPC 167. 
Balances Article 21 protection with legitimate investigation needs. For police, 
restores ability to interrogate outside prison for recovery; for accused, retains
video safeguard of interrogation and limited lawyer access; for Magistrates, guidance
not to impose absolute non-extendable outer limit on police custody prematurely.

**7. Judgments cited / Acts and Sections**

No [Supreme Court judgments](https://section1.in/abu-salem-case-supreme-court-rejects-premature-release-plea-2026-insc-982/)
cited by name in the brief headnote you provided. As per full judgment 2026 INSC
744, Court discusses legislative change from [CrPC Section 167 to BNSS](https://section1.in/section-1753-bnss-formerly-section-1563-crpc-filing-procedure/)
Section 187.

##### **Important paragraphs**

##### **Explaining who are all responsible for the ensuring safety and physical well-being of the accused throughout the period of police custody**

20. At the outset, we are concerned solely with the narrow question of the legality
and workability of the conditions imposed during police custody period as allowed
by the learned Magistrate and modified by the High Court. We feel that the apprehension
expressed by the investigating agency regarding the hurdles created in effective
custodial investigation thereby frustrating the entire process is realistic and 
justified. Moreover, the apprehension expressed by the respondent-accused regarding
the threat to his life, limb and personal dignity has been taken care of by the 
High Court by commanding that the respondent-accused shall not be subjected to any
threat, inducement, coercion, physical assault and third-degree methods during the
course of custodial investigation. Needless to say, that the burden would be on 
the SIT to ensure all these safeguards irrespective of the impugned orders as these
conditions are inherently provided in Article 21 of the Constitution of India. The
concerned authorities including the investigating officer, the Additional Superintendent
of Police, the members of the SIT and the jail superintendent have been held jointly
and severally responsible for ensuring safety and physical well-being of the accused
throughout the period of police custody.

##### **Police custody of 15 days may be utilised by the IO during the overall period of 60 or 90 days**

22. The statutory scheme under the BNSS must also be borne in mind. Section 187(
2) and (3) BNSS, unlike the erstwhile Section 167 under the Code of Criminal Procedure,
1973 enlarges the window during which police custody, in the aggregate not exceeding
fifteen days, may be sought by the investigating agency, such custody being available
in parts, during the first forty or sixty days of the total permissible period of
detention, rather than being confined to the first fifteen days of remand alone.
This legislative change was intended precisely to meet situations, such as the present,
where fresh facts, discoveries or leads may emerge during the course of investigation
warranting further custodial interrogation, and an unduly rigid or premature foreclosure
of that statutory window, whether by a Magistrate or by a court in the exercise 
of its supervisory jurisdiction, would run counter to the object of the provision.
We are, therefore, unable to sustain Condition 28.15, which places an absolute and
non-extendable outer limit on custody, since such a limit forecloses recourse to
Section 187(2) BNSS regardless of what the investigation may yet reveal.

24. A plain reading of the provision makes it clear that the right guaranteed thereunder
is the right to meet an advocate of choice during interrogation. It does not, by
any means, contemplate the continuous, ongoing physical presence of an advocate 
for the entirety of each interrogation session, whatever be the visual or audible
distance maintained. Therefore, we are of the view that Conditions 28.1 to 28.3,
28.8 and 28.10, insofar as they permit the nomination of two advocates and regulate
the manner and distance of the advocate’s presence so as to preclude interference
with, or communication during, interrogation, are unobjectionable and, indeed, salutary.
However, the direction that such presence should be available “at any given point
of time during the interrogation”, if construed as conferring an unqualified entitlement
to continuous presence, would travel beyond what Section 38 BNSS itself contemplates,
and we clarify the position accordingly in the operative directions that follow.

##### **Directions**

27. Having regard to the foregoing, the terms and conditions imposed in the order
of the learned Magistrate and the High Court are modified in the following terms:–

> (i) The period of police custody shall commence from the date of production of
> the respondent-accused before the learned Magistrate pursuant to this judgment
> and shall remain in force for a period of seven (7) days therefrom. Thus, the 
> total period of police remand including that granted by the Courts below would
> not exceed fifteen (15) days.
> (ii) The Investigating Officer shall have unrestricted access to the respondent-
> accused during the period of police custody for the purposes of interrogation.
> (iii) The condition confining custodial interrogation exclusively to the Central
> Prison, Rajamahendravaram is set aside as unworkable and unjustified. The Investigating
> Officer shall be at liberty to interrogate the respondent-accused at the designated
> interrogation centre of the SIT, or any other equivalent facility available with
> the police authorities at Vijayawada.
> (iv) The requirement that the process of custodial interrogation, wherever conducted,
> shall be conducted under CCTV coverage and/or videographic supervision is retained.
> It is, however, clarified that this requirement stands satisfied by audio-visual
> recording of the actual sessions of interrogation and of any proceedings of discovery
> or recovery undertaken with the accused; it shall not be read as mandating uninterrupted
> videography of the transit of the accused between locations.
> (v) The Investigating Agency shall not subject the respondent-accused to any threat,
> inducement, coercion, physical assault, mental harassment or third-degree methods
> during the course of custodial interrogation, whether at the Central Prison or
> elsewhere.
> (vi) The direction given by the learned Magistrate permitting presence of the 
> lawyer is retained with the modification that such lawyer shall only be allowed
> to remain present within the site of interrogation where he can see the respondent-
> accused. However, the lawyer shall not be permitted to intervene in the process
> of investigation at any cost.
> (vii) A copy of the CCTV footage and of the videographic recording in its original
> form without deletion, overwriting, editing or tampering shall be produced, together
> with a certificate under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (
> corresponding to Section 65B of the Indian Evidence Act, 1872), before the learned
> Magistrate at Vijayawada upon the completion of the period of police custody.
> (viii) The Investigating Officer, the Additional Superintendent of Police, the
> members of the SIT, and the Jail Superintendent/officer-in-charge of the facility
> where the accused is lodged during custody, shall be jointly and severally responsible
> for ensuring the safety, life and physical well-being of the respondent-accused
> throughout the period of police custody.
> (ix) The SIT shall conduct an impartial, fair and scientific investigation strictly
> in accordance with law, uninfluenced by any observation made in this judgment 
> or in the judgment of the High Court, such observations having been made solely
> for the disposal of the respective proceedings.

**Acts and Sections involved:**

– Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 38 – Right to meet advocate
during interrogation, Section 187 – Police custody and detention, [Section 528 – Inherent powers of High Court](https://section1.in/section-482-crpc-only-high-court-has-the-power-to-direct-to-run-sentences-in-two-different-cases-concurrently/)

– Bharatiya Nyaya Sanhita, 2023 – Section 103(1) – [Murder](https://section1.in/acquittal-who-pulled-the-trigger-prosecution-version-remains-acceptable-till-the-point-of-bullet-entering-the-skull-but-suspicious-when-it-travels-upward-while-exiting-the-skull/),
Section 127(4)(6) – Wrongful confinement, Section 238 – Causing disappearance of
evidence

– Constitution of India – Article 21 – Protection of life and personal liberty

[The State of A.P vs. Suda Suresh Veera Venkata Naa Raju 40501_2026_2_1502_72784_Judgement_27-Jul-2026](https://section1.in/wp-content/uploads/2026/10/The-State-of-A.P-vs.-Suda-Suresh-Veera-Venkata-Naa-Raju-40501_2026_2_1502_72784_Judgement_27-Jul-2026.pdf)
[Download](https://section1.in/wp-content/uploads/2026/10/The-State-of-A.P-vs.-Suda-Suresh-Veera-Venkata-Naa-Raju-40501_2026_2_1502_72784_Judgement_27-Jul-2026.pdf)

### Further Study

 No Related Posts Found.

## Oraon Customary Law: Uncle-in-Law Cannot Induct Niece’s Husband as Ghardamad to Defeat Male Agnate Succession:SC

- Link: https://section1.in/oraon-customary-law-uncle-in-law-cannot-induct-nieces-husband-as-ghardamad-to-defeat-male-agnate-successionsc/
- Published: 2026-10-15T11:35:19+00:00
- Author: Sathiyajyothi Sabapathi

**Bejla Oraon v. Kali Das Oraon & Ors. – Civil Appeal No. ___ of 2026 @ SLP(C) 
No. 23458 of 2024 – 2026 INSC 672 : 2026 SCC OnLine SC 1302 – 9 July 2026 – Sanjay
Karol, N. Kotiswar Singh, JJ.**

**PDF Link: **[sci.gov.in ](https://section1.in/oraon-customary-law-uncle-in-law-cannot-induct-nieces-husband-as-ghardamad-to-defeat-male-agnate-successionsc/sci.gov.in )

### **1. Parties & Impugned Order**

 * **Appellant:** Legal heir of original plaintiff Sukhu Oraon, claiming title as
   the nearest surviving male agnate.
 * **Impugned Order:** Judgment dated 10 June 2024 by the High Court of Jharkhand
   at Ranchi in Second Appeal No. 35 of 1995 (which had affirmed the concurrent 
   dismissals by the 1st Additional District Judge, Gumla in TA No. 42 of 1990 and
   Munsif, Gumla in TS No. 22 of 1975).

### **2. Factual Matrix**

 * Common ancestor **Sukhu Oraon** had three sons: **Dhungru**, **Ledura**, and **
   Bhoula**.
 * The plaintiff (Bejla/Sukhu) is the second son of Dhungru.
 * Bhoula’s daughter **Budhain** and her husband **Punai** claimed inheritance over
   Ledura’s property on the assertion that Ledura (who was issueless) took Punai
   as a _ghardamad_ (resident son-in-law).
 * It was undisputed that under Oraon custom, daughters do not inherit ancestral
   property.
 * The defence set up a deed dated 27 February 1975 allegedly partitioning properties
   to confer title onto Punai.
 * The plaintiff argued that no partition occurred and that no customary law allows
   an uncle-in-law to induct his niece’s husband as a _ghardamad_.

### **3. Findings of the Lower Courts**

 * **Trial Court:** Relied on Sarat Chandra Roy’s treatise (_The Oraons of Chota
   Nagpur_, pp. 375–376), held that Punai’s status as _ghardamad_ was proved, and
   dismissed the suit.
 * **First Appellate Court:** Affirmed, holding Punai was adopted as _ghardamad_
   by either Ledura or the widow of Bhoula.
 * **High Court:** Framed a substantial question of law regarding an uncle-in-law’s
   legal ability to adopt/induct a _ghardamad_, but dismissed the appeal citing 
   concurrent findings of fact.

### **4. Arguments Before the Supreme Court**

 * **Appellant:** Customary law requires strict proof of antiquity, certainty, reasonableness,
   and continuous observance. The oral evidence was contradictory, daughters hold
   no inheritance rights, a lease/partition deed cannot confer title without pre-
   existing right, and concurrent findings based on unproven custom warrant interference
   under Article 136.
 * **Respondent:**_Ghardamad_ custom is well-established and supported by villager
   testimony; Punai continuously resided as _ghardamad_; the lease/partition was
   executed with due permission; and three courts below concurrently accepted the
   custom.

### **5. Ratio Decidendi**

 1. **Burden & Standard of Proving Custom:**
 2.  * He who alleges a custom must prove it, establishing antiquity, continuous usage,
       certainty, and reasonableness (citing _Halsbury’s Laws_, 4th Edn., Vol. 12(1),
       paras 606, 626–627, and Section 48 of the Indian Evidence Act, 1872).
     * A custom cannot simply be assumed or extended by analogy.
 3. **Scope of the _Ghardamad_ Custom:**
 4.  * Oraon custom recognizes a _ghardamad_ inducted by a **father-in-law** (the last
       male owner or his widow) to inherit, but there is no recognized custom permitting
       an **uncle-in-law** to induct his niece’s husband as a _ghardamad_ to inherit
       ancestral property.
     * S.C. Roy’s text requires adoption by the last male holder or his widow, not 
       an agnatic uncle.
 5. **Validity of Partition / Lease:**
 6.  * Partition can only occur among co-sharers with pre-existing title. Absent customary
       inheritance rights, neither a lease nor an alleged partition deed could create
       or confer title onto Punai.
     * The High Court erred in presuming the existence of a custom merely from the “
       absence of an express bar.”

### **6. Supreme Court’s Decision**

 * **Appeal allowed.**
 * The judgments and decrees of the High Court, First Appellate Court, and Trial
   Court are set aside.
 * The plaintiff’s suit is decreed. Parties left to bear their own costs.

### **7. Precedents Quoted in the Ruling**

 * **Proof of Custom:**
    - _Abdul Hussein Khan v. Bibi Sona Dero_ (1917)
    - _Gokal Chand v. Parvin Kumari_ (1952)
    - _Ujagar Singh v. Jeo_ (1959)
    - _Salekh Chand v. Satya Gupta_ (2008)
    - _Aliyathammuda Beethathebiyyappura Pookoya v. Pattakal Cheriyakoya_ (2019)
 * **Scope of Article 136 Interference:**
    - _Srinivas Ram Kumar v. Mahabir Prasad_ (1951)
    - _Bharwada Bhoginbhai Hirjibhai v. State of Gujarat_ (1983)
    - _Mithilesh Kumari v. Prem Behari Khare_ (1989)
    - _Sushma v. Nitin Ganapati Rangole_ (2024)
    - _Ramachandran v. Vijayan_ (2024)

### Further Study

 No Related Posts Found.

## UAPA: IO making statement that there is enough evidence to file a charge sheet doesn’t mean the investigation is completed

- Link: https://section1.in/uapa-io-making-statement-that-there-is-enough-evidence-to-file-a-charge-sheet-doesnt-mean-the-investigation-is-completed/
- Published: 2026-10-15T08:47:43+00:00
- Author: Ramprakash Rajagopal

**The State of Maharashtra & Anr. v. Momin Moiuddin Gulam Hasan @ Moin Mistri & 
Anr. – Criminal Appeal arising out of Special Leave Petition (Criminal) No. 12932
of 2024 – 2026 INSC 1021 – September 21, 2026 – Justice Prashant Kumar Mishra and
Justice Shree Chandrashekhar**

[https://www.sci.gov.in/view-pdf/?diary_no=372462024&type=j&order_date=2026-09-21&from=latest_judgements_order](https://www.sci.gov.in/view-pdf/?diary_no=372462024&type=j&order_date=2026-09-21&from=latest_judgements_order)

##### **Appellant and impugned order challenged**

The State of Maharashtra through its Home Department and the Anti-Terrorism Squad
challenged the judgment and order passed by the High Court of Judicature at Bombay
in Criminal Appeal No. 214 of 2023. The High Court had allowed the appeal preferred
by the [accused persons](https://section1.in/custody-death-or-station-death-if-the-death-takes-place-inside-the-police-station-the-accused-persons-should-be-punished-for-the-offence-under-section-302-ipc/),
set aside the orders passed by the Special Judge granting a second extension of 
time and rejecting default bail, and consequently granted statutory default bail
to the respondents. The appellant contended that the High Court committed a grave
error of law by treating the investigation as complete merely because a preliminary
report mentioned sufficient material, ignoring the fact that comprehensive forensic
extraction and analysis of electronic devices were still actively underway. [2]

##### **Factual matrix**

An FIR bearing C.R. No. 19 of 2022 was registered by the Anti-Terrorism Squad, Mumbai,
alleging serious offences under the Indian Penal Code and the [Unlawful Activities](https://section1.in/terrorist-act-bail-is-a-fundamental-right-under-article-21-of-the-constitution-even-for-unlawful-activities-prevention-act-1967-shoma-kanti-sen/)(
Prevention) Act, 1967, relating to anti-national conspiracy activities. Following
the arrest of the accused persons, the maximum initial statutory period for completing
the investigation and filing a charge-sheet under Section 43D of the Unlawful Activities(
Prevention) Act was extended once up to ninety days upon the application of the 
[Public Prosecutor](https://section1.in/burden-of-proof-public-prosecutor-while-explaining-the-principles-of-106-iea-in-criminal-cases-honble-supreme-court-has-addressed-the-government-to-appoint-skilled-lawyers-as-public-prosec/).
As the investigation involving decryption and forensic analysis of seized digital
equipment, financial trails, and overseas communications remained inconclusive, 
a second application seeking a further fifteen-day extension was moved by the prosecution
before the expiry of the extended period. The Special [Judge considered the report](https://section1.in/guidelines-if-surrender-of-proof-not-provided-then-the-registry-may-call-for-report-from-the-trial-judge/)
of the Public Prosecutor detailing the pending forensic analysis and granted the
second extension, subsequent to which the charge-sheet was filed within the extended
timeframe. [3, 4, 15]

##### **Lower courts verdicts**

The Special Judge under the Maharashtra Control of Organised Crime Act and related
special statutes at Greater Mumbai entertained the [second extension application](https://section1.in/second-or-successive-bail-application-mentioning-the-details-of-previous-bail-application-is-compulsory-to-avoid-contempt/)
filed by the Public Prosecutor and granted a further fifteen days for completing
the investigation, while concurrently dismissing the subsequent default bail application
filed by the accused. In contrast, the High [Court of Judicature at Bombay allowed the appeal filed](https://section1.in/appeal-section-3784-cr-p-c-the-dismissal-of-complaint-shall-file-before-district-court-and-not-before-high-court/)
by the accused, holding that the second extension order was legally unsustainable
because the primary investigation was already complete and awaiting only administrative
sanction, thereby making the accused immediately entitled to statutory default bail.[
5, 6]

##### **Core legal arguments of appellant vs respondent**

The appellant argued that the investigation of a complex conspiracy involving electronic
gadgets and international financial transactions is the exclusive prerogative of
the police, and a stray reference in an extension application regarding sufficient
material cannot be construed as a termination of the ongoing probe. It was contended
that analyzing seized digital devices and tracing financial trails constitutes an
integral component of the investigation itself, which justified the extension sought
by the Public Prosecutor under statutory provisions. Conversely, the respondent 
urged that once the prosecution explicitly records that sufficient material is available
to submit a charge-sheet, any further extension solely to secure administrative 
sanction or wrap up procedural formalities is impermissible under law. The respondents
maintained that extending time beyond that threshold infringes upon personal liberty
and automatically triggers an indefeasible right to [statutory default bail](https://section1.in/only-revision-lies-against-the-order-dismissal-of-statutory-bail-u-s-1672-cr-p-c/).[
22, 25]

##### **Ratio Decidendi**

The [investigation of a cognizable crime](https://section1.in/a-forensic-guide-for-crime-investigators-standard-operating-procedures/)
falls entirely within the domain of the police, and courts possess no jurisdiction
to dictate when an investigation should conclude or to prematurely brand it complete
based on isolated observations in extension requests. A statement in a prosecutorial
application noting the presence of sufficient material to file a charge-sheet does
not signify that the overall investigation has terminated, especially when specialized
analysis of electronic records, forensic data, and financial trails remains genuinely
pending. Statutory extensions sought under Section 43D of the Unlawful Activities(
Prevention) Act, 1967, upon satisfying the report [requirements of the Public Prosecutor](https://section1.in/hostile-witness-contradiction-public-prosecutor-has-to-confront-relevant-portions-to-the-witness-and-contradict-as-required-by-section-145-iea/),
are validly granted to enable thorough probes. Consequently, where an extension 
of time is lawfully granted and the charge-sheet is submitted within such extended
period, no right to statutory default bail can ever accrue to the accused. [30, 
33]

##### **Important** **paragraphs**

##### **History: Default bail is a special and novel idea of lawmakers in India**

9. The concept of default bail is a novel idea of the lawmakers in India. There 
is no provision for default bail in the Common law countries or any other country
like the one envisaged under first proviso to [sub-section (2) of section 167 of the Code of Criminal Procedure](https://section1.in/section-1753-bnss-formerly-section-1563-crpc-filing-procedure/),
1973. In the United Kingdom, the Prosecution of Offences (Custody Time Limits) Regulations,
1987 regulate the time limits for custody and trial in England and Wales. These 
regulations made provisions with effect from 1st April 1987 as to the maximum period
during which a person accused of any indictable offence except treason in the Counties
of Avon, Kent, Somerset and West Midlands may be kept in custody while awaiting 
trial or committal for trial. The regulations provide time limits in the Magistrates’
Courts and limit the maximum period between ninety eight days in the County of West
Midlands and seventy days in [case of proceedings instituted elsewhere during which a person accused](https://section1.in/even-in-a-case-where-the-final-report-of-the-police-under-section-173-is-accepted-and-the-accused-persons-are-discharged-the-magistrate-has-the-power-to-take-cognizance-of-the-offence-on-a-complaint/)
of an indictable offence other than treason may be kept in the custody of a Magistrate’s
Court. The maximum period of custody in the Crown Court has been provided to be 
one hundred and twelve days. An application for extension or further extension of
a custody time limit may be moved under section 22(3) of the Prosecution of Offences
Act, 1985 upon a notice in writing to the accused person or his representative and
to the appropriate Officer of the Crown Court of such intention. On expiry of the
custody time limit in the Crown Court, the prosecution may give a notice in writing
not less than 5 days before the expiry of the time limit whether or not it intends
to ask the Crown [Court to impose conditions on the grant of bail](https://section1.in/in-exceptional-circumstances-the-court-may-grant-anticipatory-bail-to-an-absconder-but-a-co-accuseds-acquittal-does-not-ipso-facto-entitle-him-to-a-b-relief/).
On the expiry of the custody time limit, the Crown Court shall [grant bail to an accused](https://section1.in/pmla-section-88-cr-p-c-an-order-accepting-bonds-under-section-88-cr-p-c-from-the-accused-does-not-amount-to-a-grant-of-bail-a-detailed-discussion-on-arrest-summons-warrant-bail-and-bond-under/)
who is in custody pending trial in accordance with the Bail Act, 1975. In the United
States, the prisoner has a right to speedy trial under the speedy trial clause of
Sixth Amendment to the Constitution of United States. The Speedy Trial Act, 1974
provides time limits, exclusions, sanctions, effective dates, etc. under “Chapter
208-Speedy Trial”. Under section 3161, it is [provided that the trial of a defendant](https://section1.in/ratio-decidendi-failing-to-inform-the-accused-of-the-grounds-of-arrest-denying-the-opportunity-to-defend-through-counsel-and-failing-to-provide-information-about-the-proposed-remand-is-unconstituti/)
charged in an information or indictment with the commission of an offence shall 
commence within seventy days from the filing date (and making public) of an information
or indictment where a plea of not guilty is entered by the defendant. Section 3162
puts an embargo on the continuance of a trial beyond the time limit and provides
that if a defendant is not brought to trial within the time limit required by section
3161(c) or extended by section 3161(h), the information or indictment shall be dismissed
on a motion of the defendant.

10. The General Code of Criminal Procedure which was enacted in Germany in 1877 
provides under section 121, in its present form, that any remand detention exceeding
six months shall be executed only upon showing of a particular difficulty or unusual
extent of the investigation or some other important reason or if the case [file is submitted to the Higher Regional Court](https://section1.in/duty-of-the-court-to-give-a-reasonble-time-to-the-advocate-appointed-to-go-through-the-file-and-get-ready-to-assist-the-court/)
prior to the expiry of time limit, pending that Court’s decision. In Canada, the
Criminal Code [R.S.C. (Revised Statutes of Canada), 1985, c. C-46] contains a provision
under section 525 for making of an application by the [person](https://section1.in/pmla-pc-act-prosecuting-the-person-accused-of-an-offence-under-section-131e-of-the-pc-act-as-well-as-for-an-offence-under-section-3-of-pmla-would-not-amount-to-double-jeopardy/)
having the custody of an accused person to apply to a judge to fix a date for a 
hearing to determine whether or not the accused person should be released from custody,
if the trial has not commenced within ninety days. However, if the judge is not 
satisfied that the continued detention of the accused person in custody is justified,
he shall make an order for release of the accused person. The Bail Act, 2000 governs
the rules as to granting bail in New Zealand. Under section 7, a defendant charged
with an offence not bailable as of right is required to be released by a Court on
reasonable terms and conditions subject to exceptions contained thereunder, unless
the Court is satisfied that there is just cause for continued detention of the accused
person. Just to indicate, the provisions for bail and speedy trial in other countries
are also conceptually different from the bail jurisprudence in India.

11. The concept of default bail gained legislative approval in India in the second
half of 20th Century. The provisions under section 167 of the Code of Criminal Procedure,
1898 were different in their scope, ambit and content, and did not deal with the
malady of protracted [investigation in a criminal case](https://section1.in/understanding-the-police-report-investigation-and-magistrates-duties-in-criminal-cases/).
Section 167 which was spread over four sub-sections in the old Code gave rise to
certain dubious practices of [filing a preliminary or incomplete police report in the Court](https://section1.in/in-cross-case-or-case-in-counter-the-i-o-has-to-file-both-the-final-reports-before-the-jurisdictional-magistrate/).
With the passage of time, the provisions under the old Code were found inadequate
to deal with the emerging problems in the criminal justice system and large-scale
changes were suggested in the old Code. The Law Commission of India in its Fourteenth
19 and Forty-first20 Reports suggested that it is desirable that some limit is placed
on the power of police to obtain remand of the [accused person](https://section1.in/pmla-pc-act-prosecuting-the-person-accused-of-an-offence-under-section-131e-of-the-pc-act-as-well-as-for-an-offence-under-section-3-of-pmla-would-not-amount-to-double-jeopardy/)
while the investigation is still going on. It was recommended that the maximum period
under section 167 to complete the investigation should be sixty days in whole and
the accused should not be remanded for a term exceeding fifteen days at a time. 
Eventually, the Code of Criminal Procedure Bill, 1970 was introduced in the Rajya
Sabha which referred the Bill to the Joint Committee of the Houses. The Report submitted
by the Joint Committee took note of the hardship and misery of the under-trial prisoners
and their families when the investigation is not completed quickly by the [police](https://section1.in/in-the-light-of-investigation-order-freezing-the-account-without-quantifying-the-amount-and-period-cannot-be-passed-by-the-police/)
and the under-trials are kept in detention on remand for very long periods. It [suggested that when an accused](https://section1.in/murder-case-acquittal-no-witness-suggests-the-presence-of-accused-in-the-soc-on-the-fateful-day/)
remains in custody for ninety days during the investigation he shall be entitled
to be released on bail, whether the offence is bailable or not, if the investigation
is not complete by the ninetieth day of custody.

##### **Enactment of default bail under section 167 Cr.P.C**

12. When the Code of Criminal Procedure, 1973 was enacted, it retained the major
portions of section 167 of the old Code with certain changes. The new Code initially
provided that the Magistrate can authorise detention of the accused person beyond
the period of fifteen days but not for a period exceeding sixty days, provided he
is satisfied that adequate grounds exist for doing so. Since then, a few changes
are made to section 167 and one of the amendments made therein is that the period
of sixty days has been extended to ninety days in respect of an offence punishable
with death, [imprisonment for life](https://section1.in/releasing-of-accused-after-20-years-confirming-her-life-imprisonment/),
or imprisonment for a term of not less than ten years, and sixty days in relation
to any other offence. The relevant portions of section 167 as it stands today are
reproduced hereinbelow:

“section 167 crpc”

13. In the subsequent years, the provision for default bail produced some undesired
results for the investigating agencies which were probing serious crimes relating
to [national security](https://section1.in/aadhaar-act-furnishing-of-details-to-ascertain-whether-aadhaar-is-genuine-or-not-does-in-the-interest-of-national-security-is-permitted/),
terrorist activities, economic stability of the country etc. and a need was felt
to provide more time for completing the investigation in specified cases where the
offence is punishable with death or imprisonment for life or imprisonment for a 
term of not less than 10 years. A series of amendments were, therefore, carried 
out in special Statutes especially those relating to national interest and security
of the country. The special Statutes such as MCOCA, TADA, POTA, GUJCTOC, and NDPS
provide an extended period of time for [filing the charge sheet](https://section1.in/section-420-ipc-the-contention-that-since-charge-sheet-has-been-filed-the-present-appeal-is-to-be-dismissed-was-rejected/).
These Statutes make provisions for extension of time beyond the period of ninety
days and up to one hundred and eighty days or one year in [NDPS](https://section1.in/even-if-the-independent-witnesses-to-the-seizure-memo-turned-hostile-conviction-can-be-based-on-official-witnesses-if-it-inspires-confidence/)
and TADA cases for filing the charge sheet. By the Act No. 35 of 2008, the provisions
of the Code of Criminal Procedure, 1973 under section 167 are made applicable in
its modified form to the UAPA [cases to the effect](https://section1.in/directions-issued-to-manage-s-138-ni-act-cases-effectively/)
that the period of ninety days for completion of the investigation has been extended
up to one hundred and eighty days. Section 43D of the UAPA incorporates the provisions
of section 167 of the Code of Criminal Procedure, 1973 in its modified form in the
following manner:

“ ……………”

##### **Right to default bail explained and this right cannot be denied under UAPA in a mechanical manner**

14. First proviso to section 167(2) of the Code of Criminal Procedure, 1973 read
with section 43D of the UAPA create an indefeasible right in an [accused person to seek an order](https://section1.in/pmla-section-88-cr-p-c-an-order-accepting-bonds-under-section-88-cr-p-c-from-the-accused-does-not-amount-to-a-grant-of-bail-a-detailed-discussion-on-arrest-summons-warrant-bail-and-bond-under/)
for his release on bail and the Court is obliged under law to enlarge him on bail,
if the investigating agency fails to complete the investigation within the maximum
period prescribed or the extended period and the accused person moves an application
for his release and is ready to furnish bail. **The right to default bail, as the
expression conveys a meaning, accrues to the [accused person](https://section1.in/even-in-a-case-where-the-final-report-of-the-police-under-section-173-is-accepted-and-the-accused-persons-are-discharged-the-magistrate-has-the-power-to-take-cognizance-of-the-offence-on-a-complaint/)
as a result of a default on the part of the investigating agency to file the charge
sheet within the statutory time limit**. The legislature has provided an extended
period of further ninety days to the [investigating agency to file the charge](https://section1.in/investigating-agency-has-no-obligation-to-file-the-charge-sheet-reports-in-the-language-of-the-court/)
sheet in the UAPA cases. Besides the complex nature of investigation involved in
the UAPA cases, the idea behind providing the extended period for filing the charge
sheet seems to be influenced by grave consequences of [unlawful activities](https://section1.in/terrorist-act-bail-is-a-fundamental-right-under-article-21-of-the-constitution-even-for-unlawful-activities-prevention-act-1967-shoma-kanti-sen/)
on national interest. Naturally a statutory provision for extension of time under
section 43D of the UAPA cannot be denied in a mechanical manner. It is necessary
that the Court keeps in mind the very purpose behind a statutory provision and balances
the individual’s freedom with the right of investigating agency to carry on investigation.

##### **Evidence collected through the interception of wire from electronic or oral communication is admissible in the trial against the accused person notwithstanding anything contained in the Indian Evidence Act**

16. The UAPA has certain special features which are also necessary to keep in mind,
while dealing with any matter arising thereunder. It provides under section 47 that
any proceeding taken under this Act by the Central Government or the District Magistrate
or any officer authorised in this behalf by the Central Government or the District
Magistrate shall not be called in question in any civil Court in any suit or application
or by way of appeal or [revision](https://section1.in/recall-702-crpc-only-revision-lies-against-order-issuing-against-nbw-and-not-crl-o-p-jurisdiction-editors-note-inside/).
It is further provided that any civil Court or other Authority shall not grant injunction
in respect of any [action taken](https://section1.in/section-1563-cr-p-c-magistrates-can-direct-preliminary-inquiry-under-section-156-3-and-ask-for-action-taken-report-from-the-station-house-officer-sho/)
or to be taken in pursuance of any power conferred by or under this Act. The provisions
of the UAPA are given overriding effect under [section](https://section1.in/section-142-n-i-act-does-not-override-section-406-cr-p-c-s-c-has-powers-to-transfer-section-138-cases/)
48 in respect of any provision inconsistent with any enactment other than this Act
or any instrument having the effect by virtue of any enactment other than this Act.
In the trial under the UAPA, the rights of a prisoner which are otherwise available
to him under the general laws are restricted to a certain extent. Section 46 makes
the [evidence](https://section1.in/in-npds-cases-confession-is-hit-under-section-25-indian-evidence-act/)
collected through the interception of wire from electronic or oral communication
admissible in the trial against the accused person notwithstanding anything contained
in the Indian Evidence Act, 1872 or any other law for the time being in force subject
to furnishing of an order of the competent Authority for interception at least 10
days before the trial, hearing or proceeding.

##### **Prosecution story**

18. The prosecution story is that the members of the Popular Front of India, including
the respondents, were planning to carry out anti-national activities, spreading 
propaganda in the Muslim community, and creating hatred against the Hindu populace
among the youth of the Muslim community. It is alleged that a group of people intend
to overthrow the Government of India and disrupt Indian sovereignty by taking foreign
aid for establishing an Islamic State in India. During the investigation, 15 mobile
handsets, 8 laptops, 2 pen drives, 2 tablets, 2 hard disks etc. were seized and 
sent for forensic examination and a report thereof was awaited, when an application
for first extension of time was moved. It is stated that PDF data was found in the
mobile phone of Mazhar Mansoor Khan alias Majhar Aleem Mansoor Ahmad Khan captioned
as “India-2047-Towards Rule of Islam in India”. There were provocative photographs
and other materials detected on the Facebook account of the respondent No. 2. The
investigating agency recovered a compact disk which contained six audio clips of
mobile conversations, details of which were also given in the first application 
seeking extension of time.

##### **Extension of time to file the charge sheet on the ground of obtaining the sanction order is impermissible in law**

24. Taking a leaf from a statement made by the prosecution in the second extension
application that “there is enough evidence to file a charge sheet against the accused”,
the High Court concluded in paragraph No. 23 of the impugned judgment that the investigation
in the case was complete. It further held that an extension of time to file the 
charge sheet on the ground of obtaining the sanction order is impermissible in law.

##### **IO making statement that there is enough evidence to file a charge sheet doesn’t mean the investigation is completed**

25. The Courts have a duty to interpret the language used in the document to assign
a true meaning of the expression used thereunder, if the plain literal meaning of
the expression does not depict the correct position. A [sentence](https://section1.in/sentencing-though-the-furnishing-of-a-forged-revenue-document-for-surety-in-judicial-proceedings-is-serious-in-nature-but-is-not-organised-crime-and-has-not-caused-any-widespread-financial-loss/)
in an order or a judgment cannot be lifted out of its context and interpreted in
a manner that defeats the logic behind the decision by the Court. A document has
to be read as a whole and not in piecemeal. Some stray statement made in the application
seeking extension of [time to file](https://section1.in/duty-of-the-court-to-give-a-reasonble-time-to-the-advocate-appointed-to-go-through-the-file-and-get-ready-to-assist-the-court/)
the charge sheet cannot be stretched too far. We note that this is not a statement
made by the prosecution that the investigation is complete and filing of the charge
sheet is withheld awaiting sanction for prosecution by the appropriate Government.
A statement made by the prosecution that there is sufficient material for filing
the charge sheet cannot be interpreted by the Court as if the investigation in the
case was complete. Such a statement made on behalf of the prosecution cannot be 
used against it to curtail the power of the ATS to complete the investigation or
carry out further investigation. The High Court committed a serious error in construing
a solitary statement made in the second extension application to hold that the investigation
was complete.

##### **Charge sheet can be forwarded to the court without a sanction order till taking cognizance**

27. There is no doubt and the legal position is very clear that the [requirement of producing sanction for prosecution](https://section1.in/when-chief-examination-of-prosecution-witness-is-being-recorded-presence-of-accused-advocate-is-required-to-object-to-a-leading-or-irrelevant-question-being-asked-to-the-witness/)
comes at the stage of cognizance and a charge sheet can be forwarded to the Court
without a sanction order from the appropriate Government. “Judgebir Singh @ Jasbir
Singh Samra @ Jasbir”7 and “Suresh Kumar Bhikamchand Jain v. State of Maharashtra
and Anr.” 29 re-affirmed this legal position.

##### **Police Investigation comes to an end with filing of final/police report**

31. The investigation of a crime is the exclusive domain of the police. It is not
the jurisdiction of the Court to decide when the investigation in a case should 
stop. It must be left to the discretion of the investigating agency to decide the
course of investigation and to proceed in its own manner. The Court cannot curtail
the statutory powers vested in the police except in an exceptional case on facts
or where there is a statutory bar to carry investigation by the police. In “The 
King Emperor v. Khawaja Nazir Ahmad”³⁰ the Privy Council held that the Court cannot
interfere with the statutory right of the police to investigate the circumstances
of a cognizable crime. In “State of Bihar & Anr. v. J.A.C. Saldanha & Ors.”³¹ this
Court held that it is the [bounden duty of the Executive through the police](https://section1.in/police-has-the-bounden-duty-to-register-fir-once-direction-received-u-s-1563-cr-p-c/)
department to investigate the offence and bring the offender to book. “J.A.C. Saldanha”
³¹ declared in no uncertain terms that there is a clear-cut and demarcated sphere
of activity in the field of crime detection and crime punishment. The duty of the
police to investigate the crime comes to an end when a [report is submitted to the Court](https://section1.in/court-cannot-return-final-report/)
requesting the Court to take cognizance of the offence under section 190 of the 
Code of Criminal Procedure, 1973, subject to further investigation to be carried
out under section 173(8).

##### **What is meant by charge sheet? Explained**

32. A charge sheet is the [final report of investigation](https://section1.in/closure-report-and-further-investigation-entire-settled-propositions-explained/)
by the investigating officer under section 173(2) of the Code of Criminal Procedure,
1973, which requires the investigating officer to submit a report in the prescribed
form on completion of the investigation into a cognizable offence. A charge sheet
is the gist of the [prosecution’s case](https://section1.in/acquittal-by-using-entire-procedures-available-to-disprove-the-prosecution-case/).
It gives a summary of the materials collected during the investigation by the investigating
agency. It gives a brief narration of the allegations against the accused person
and the manner in which the accused person is sought to be roped in based on the
materials collected during the investigation. It is, therefore, necessary that the
investigating agency submits a report to the Court after full and complete investigation.
This is the case set up by the investigating agency that it needed further time 
for analysing the data retrieved through the Forensic Laboratory. The investigating
agency sought time to analyse how the data retrieved from the mobile phones, computers
and other electronic gadgets seized from the accused persons connect them with the
terrorist activities intended to undermine the sovereignty and integrity of India.
The investigating agency is also required to indicate in the charge sheet how the
flow of money in the bank accounts of the accused persons connects them with the
[terrorist activities](https://section1.in/terrorist-act-bail-is-a-fundamental-right-under-article-21-of-the-constitution-even-for-unlawful-activities-prevention-act-1967-shoma-kanti-sen/).
The analysis of data retrieved from the Forensic Laboratory is a part of the investigation
and cannot be done after filing of the charge sheet.

##### **How to obtain sanction? Explained**

33. The requirement of filing a complete charge sheet is not a mere formality. An
order granting sanction for prosecution entirely depends on the materials collected
in course of the investigation. This needs no reiteration that the sanctioning Authority
may refuse sanction for prosecution if it thinks that the materials on record are
not sufficient to forward the person accused of committing a crime to face trial.
The prosecution has to establish and satisfy the [sanctioning Authority](https://section1.in/how-sanctioning-authority-shall-examine-the-case-presented/)
by leading evidence and producing the entire relevant facts that this is a fit case
for grant of sanction for prosecution. Anyways, the grant of sanction by the appropriate
Government is not a mechanical exercise and the sanctioning Authority is required
to apply his mind to the materials produced by the prosecution. Sub-section (2) 
to section 45 of the UAPA specifically requires that the sanction for prosecution
shall be given only after considering the report of the Authority appointed by the
Central Government/ State Government. It is, therefore, [necessary that the prosecution must](https://section1.in/to-prosecute-the-medical-practitioner-complainant-must-show-the-doctor-lack-the-necessary-skill-for-performing-the-operation/)
produce necessary and sufficient documents to persuade the sanctioning Authority
to grant sanction for prosecution. At the cost of repetition, we may indicate that
the prosecution specifically pleaded that it required some time to analyse the scientific
data collected during investigation and for furnishing a complete report to the 
Government. While such facts were pleaded in the second application for extension
of time, it is not possible, rather imaginary, to think that the investigation in
the case by the ATS was complete in all respects.

##### **Conclusion**

34. However, the High Court bestowed its consideration to an aspect which was not
germane to deciding the legality of second extension of time granted to the prosecution
for filing the charge sheet. The entire discussion on sanction for prosecution was
off-route. The High Court took a detour bypassing the gist of the [prosecution’s case](https://section1.in/acquittal-if-there-are-convincing-eyewitnesses-then-non-examination-of-expert-does-not-affect-the-prosecution-case/)
for extension of time to file the charge sheet. Unnecessary as indeed it was, the
discussion whether extension of time can be granted to the prosecution for filing
the charge sheet on the ground of obtaining sanction for prosecution from the appropriate
Government, as if the investigation was complete and a charge sheet was ready to
be filed in the Court. The decision of the High Court to interfere with the order
dated 18th January 2023 granting second extension of time to the prosecution for
filing the charge sheet is palpably wrong and liable to be set aside.

35. In the result, the impugned judgment dated 15th July 2024 passed in Criminal
Appeal No. 214 of 2023 is [set aside and the order](https://section1.in/habeas-corpus-unexplained-delay-in-disposing-the-representation-made-by-the-detenu-is-sufficient-to-set-aside-the-order-of-detention/)
dated 18th January 2023 passed by the Special Judge in R.A. No. 946 of 2022 is held
legal and valid. Consequently, the application dated 20th January 2023 filed by 
the respondents vide Exhibit 44 stands dismissed. The respondent No. 1 shall surrender
within 30 days and may pray for [regular bail](https://section1.in/approver-can-be-released-by-inherent-powers-u-s-482-cr-p-c-only-and-not-on-regular-bail-while-trial-is-pending/),
if so advised.

**Resource**

**Judgments**

Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 – A case holding
that any extension of time for filing a charge-sheet under [special](https://section1.in/s-c-quashed-g-o-of-tamilnadu-for-anti-land-grabbing-cell-and-adviced-to-enact-appropriate-legislation-for-land-grabbing-cases/)
enactments must be sought on a report of the public prosecutor indicating specific
reasons and satisfying the statutory parameters.

Sanjay Dutt v. State through C.B.I., (1994) 5 SCC 410 – A [Constitution Bench](https://section1.in/constitution-bench-on-p-c-act-question-of-law-on-absence-of-evidence-of-complainant-direct-or-primary-evidence/)
judgment establishing that the right to default bail is an indefeasible right that
accrues to an accused upon the expiry of the statutory investigation period without
a chargesheet or valid extension, which must be claimed before the filing of the
chargesheet.

Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453 – A landmark authority
clarifying the exact stage at which an indefeasible right to default bail accrues
and crystallizes upon the expiry of the time limit.

Bikramjit Singh v. State of Punjab, (2020) 10 SCC 616 – A judgment reiterating that
the right to statutory default bail under Section 167(2) of the Code of Criminal
Procedure is a fundamental component of personal liberty.

**Acts and Sections**

The Code of Criminal Procedure, 1973 (Sections 167, 167(2)), the Unlawful Activities(
Prevention) Act, 1967 (Sections 43D, 43D(2)(b), 45), and the Indian Penal Code, 
1860 ([Sections 120B](https://section1.in/there-cannot-be-a-conspiracy-by-only-one-accused/),
121A, 153A).

[The State vs. Momin Moiuddin Gulam Hasan372462024_2026-09-21](https://section1.in/wp-content/uploads/2026/10/The-State-vs.-Momin-Moiuddin-Gulam-Hasan372462024_2026-09-21.pdf)
[Download](https://section1.in/wp-content/uploads/2026/10/The-State-vs.-Momin-Moiuddin-Gulam-Hasan372462024_2026-09-21.pdf)

### Further Study

 No Related Posts Found.

## Civil case

- Link: https://section1.in/civil-case/
- Published: 2026-10-10T07:56:01+00:00
- Author: Ashefa Parwin

Basamma & Anr. v. Goparappa & Ors – Citation: 2026 SCC OnLine SC 1342: Court: Supreme
Court of India; Coram: Sanjay Karol & Vipul M. Pancholi, JJ; Date: 16 July 2026

Brief Facts: The dispute arose from a partition suit concerning agricultural properties.
The Trial Court dismissed the suit, and the First Appellate Court also dismissed
the appeal but made certain findings regarding ownership and validity of sale deeds
in paragraph 24. A purchaser challenged those findings before the High Court under
Articles 226/227. The High Court set aside paragraph 24 without hearing Basamma 
and another appellant whose property rights were directly affected.

Main Issues: Whether the High Court could, in certiorari jurisdiction under Article
226, interfere with factual findings of the First Appellate Court without hearing
parties whose rights were directly affected.

Ratio Decidendi: Certiorari is supervisory, not appellate, and cannot be used to
re-appreciate evidence or substitute findings of fact merely because another view
is possible. Interference is permissible only for jurisdictional error, patent illegality,
or findings based on no evidence/perversity. Further, the audi alteram partem rule
requires that persons whose rights may be adversely affected must be heard.

Order: The Hon’ble Supreme Court set aside the High Court judgment dated 22.02.2023
and restored the First Appellate Court’s judgment dated 02.08.2021 in its entirety.
The parties were left free to pursue other remedies available in law.

Key Points or Understanding: Article 226 certiorari jurisdiction cannot be converted
into an appellate jurisdiction over factual findings, and no adverse finding affecting
a party’s property rights should be made without giving that party a fair opportunity
of hearing.

**Courtesy:BJA**

### Further Study

 No Related Posts Found.

## Rape case: Santosh Gurung vs State of Sikkim: S.C Quashes Life Sentence Based on Broken Circumstantial Evidence

- Link: https://section1.in/rape-case-santosh-gurung-vs-state-of-sikkim-s-c-quashes-life-sentence-based-on-broken-circumstantial-evidence/
- Published: 2026-10-03T05:24:05+00:00
- Author: Ramprakash Rajagopal

**Santosh Gurung vs. State of Sikkim – Criminal Appeal No. 107 of 2018 – 2026 INSC
1073 – October 1, 2026 – Hon’ble Mr. Justice Ujjal Bhuyan, J. and Hon’ble Mr. Justice
Atul S. Chandurkar, J.**

[https://www.sci.gov.in/view-pdf/?diary_no=416472017&type=j&order_date=2026-10-01&from=latest_judgements_order](https://www.sci.gov.in/view-pdf/?diary_no=416472017&type=j&order_date=2026-10-01&from=latest_judgements_order)

##### **Appellant and impugned order challenged**

The appellant, Santosh Gurung, assailed his conviction under Sections 376(2)(i),
302, and 201 of the Indian Penal Code, 1860, alongside Sections 4 and 6 of the Protection
of Children from Sexual Offences Act, 2012, challenging the judgment of the High
Court of Sikkim in Criminal Appeal No. 19 of 2016 which upheld the Sessions Court’s
judgment in S.T. (POCSO) Case No. 20 of 2014 sentencing him to undergo life imprisonment.[
Paragraphs 1, 3, 11]

**Factual matrix**

On 06.11.2013, the appellant allegedly departed to purchase vegetables and took 
his minor niece despite objections from the complainant, following which both went
missing, prompting a missing report at Rongli Police Station on 12.11.2013. The 
appellant was apprehended at Siliguri on 12.05.2014, leading to the registration
of an FIR on 13.05.2014 alleging an extra-judicial confession of rape and throttling,
whereafter the prosecution effected discoveries on 15.05.2014 under Section 27 of
the Indian Evidence Act comprising skeletal remains, clothing, and a shawl from 
an open area frequented by villagers. [Paragraphs 2, 8, 9(a)(i)-(v), 9(b)(i)]

##### **Lower courts verdicts**

The learned Sessions Court, by judgment dated 20.04.2016 in S.T. (POCSO) Case No.
20 of 2014, convicted the appellant under Sections 376(2)(i), 302, and 201 of the
Indian Penal Code, 1860, and Sections 4 and 6 of the Protection of Children from
Sexual Offences Act, 2012, sentencing him to life imprisonment on circumstantial
evidence. The High Court of Sikkim, in appeal under Section 374 of the Code of Criminal
Procedure, 1973, re-appreciated the evidentiary record and affirmed the appellant’s
conviction and sentence via the impugned judgment in Criminal Appeal No. 19 of 2016.[
Paragraphs 1, 2, 3, 11]

##### **Core legal arguments of appellant vs respondent**

Counsel for the appellant argued that the conviction rested on an incomplete chain
of circumstantial evidence, given that the last seen circumstance was unsupported
by prosecution witnesses, the FIR suffered an unexplained six-month delay, the Section
27 recovery was invalid as it was executed from an open and frequented locus, and
the DNA report decisively proved that the recovered bones were of human male origin
rather than the female victim. In response, counsel for the respondent State contended
that the circumstantial links unerringly demonstrated the guilt of the appellant
alone, and that the appellant’s failure to furnish an explanation or account for
incriminating circumstances during his examination under Section 313 of the Code
of Criminal Procedure reinforced the chain of guilt, warranting dismissal of the
appeal. [Paragraphs 4, 5]

##### **Ratio Decidendi**

To sustain a conviction founded entirely on circumstantial evidence, the proved 
circumstances must be conclusive, must exclude every hypothesis consistent with 
innocence, and must establish within all human probability that the act was committed
by the accused alone, without conjecture or suspicion substituting for legal proof.
The last seen doctrine is inapplicable where the temporal hiatus between the alleged
sighting and discovery is substantial enough to admit the intervention of third 
parties, while discovery under Section 27 of the Evidence Act lacks probative weight
when items are recovered from places ordinarily visible to and frequented by the
public. Furthermore, where forensic DNA reports contradict the prosecution by establishing
that recovered skeletal remains belong to a male, corpus delicti and identity fail,
and an accused’s statement or silence under Section 313 of the Code of Criminal 
Procedure cannot be treated as substantive evidence to supply deficiencies in the
prosecution’s case or shift the burden of proof. [Paragraphs 6, 7, 9(a)(v), 9(b)(
v), 9(c)(iii), 9(f)(i)-(ii), 10, 11]

##### **Important Paragraphs**

We have heard the learned counsel for the parties at length. With their assistance,
we have also gone through the records of the case including the deposition of all
witnesses. We have, thereafter, given due consideration to the entire material on
record. In our view, the conviction of the appellant solely on the basis of circumstantial
evidence deserves to be interfered with since the chain of circumstances does not
appear to be complete. Rather, the said chain of circumstances appears broken at
various places.

Before proceeding to assess the entire material on record brought by the prosecution
to establish the guilt of the appellant, it would be fruitful to bear in mind the
following extract from the decision of this Court in Hanumant vs. The State of Madhya
Pradesh rendered by Bench of three learned Judges:

“In dealing with circumstantial evidence the rules specially applicable to such 
evidence must be borne in mind. In such cases there is always the danger that conjecture
or suspicion may take the place of legal proof and therefore it is right to recall
the warning addressed by Baron Alderson, to the jury in Reg v. Hodge, where he said:-

“The mind was apt to take a pleasure in adapting circumstances to one another, and
even in straining them a little, if need be, to force them to from parts of one 
connected whole; and the more ingenious the mind of the individual, the more likely
was it, considering such matters to overreach and mislead itself, to supply some
little link that is wanting, to take for granted some fact consistent with its previous
theories and necessary to render them complete.”

It is well to remember that in cases where the evidence in of a circumstantial nature,
the circumstances from which the conclusion of guilt is to be drawn should in the
first instance be fully established, and all the facts so established should be 
consistent only with the hypothesis of the guilt of the accused. Again, the circumstances
should be of a conclusive nature and pendency and they should be such as to exclude
every hypothesis but the one proposed to be proved. In other words, there must be
a chain of evidence so far complete as not to leave any reasonable ground for a 
conclusion consistent with the innocence of the accused and it must be such as to
show that within all human probability the act must have been done by the accused.”

**Chain of links according to the prosecution**

According to the prosecution, the following circumstances form a chain that links
the appellant with the offence with which he is charged:

> a) The appellant was last seen with the victim.
> b) The recovery of various articles on discovery under Section 27 of the Act of
> 1872.
> c) The DNA report conducted on the bones and teeth recovered at the instance of
> the appellant.
> d) The report of the FSL conducted on various articles recovered from the place
> of occurrence.
> e) The brown shawl recovered at the instance of the appellant which was used by
> him after killing the victim.
> f) Silence of the appellant while recording his statement under Section 313 of
> the Code.

It would, therefore, be necessary to consider each circumstance independently to
determine whether all such circumstances when taken together form a complete chain
so as to point out only to one hypothesis, namely the guilt of the appellant and
no one else.

Considering the aforesaid material on record relied upon by the prosecution, a grave
doubt is created as to whether the appellant was, in fact, ‘last seen’ with the 
victim. There is no specific evidence on record on the basis of which it could be
asserted that it was indeed the appellant who had taken the victim from the house
or that he was last seen with the victim after which she was found missing.

(v) Another relevant factor to be borne in mind is that the FIR is dated 13.05.2014.
It states that besides the victim who was missing, the appellant, her maternal uncle,
had also been missing. The appellant was traced on 12.05.2014 and on investigation,
it was revealed that he had raped the victim and had thereafter killed her. The 
appellant was, thus, charged with causing her death on 06.11.2013. Admittedly, the
corpus of the victim could not be traced. According to the prosecution, the appellant
was last seen with the victim on 06.11.2013 and the victim was not discovered to
be dead at least till 15.05.2014 when certain bones and teeth were discovered on
memorandum under Section 27 of the Act of 1872. In the context of the period when
it was claimed that the appellant was last seen with the victim and discovery of
the bones and teeth by the prosecution six months thereafter, reference can be made
to the decision in State of U.P. vs. Satish, wherein it was held as under:

“The last seen theory comes into play where the time-gap between the point of time
when the accused and the deceased were seen last alive and when the deceased is 
found dead is so small that possibility of any person other than the accused being
the author of the crime becomes impossible. It would be difficult in some cases 
to positively establish that the deceased was last seen with the accused when there
is a long gap and possibility of other persons coming in between exists. In the 
absence of any other positive evidence to conclude that the accused and the deceased
were last seen together, it would be hazardous to come to a conclusion of guilt 
in those cases.”

This circumstance, thus, is doubtful and it would be unsafe to conclude that the
appellant alone was the person who was ‘last seen’ with the victim on the basis 
of the aforesaid material.

The deposition of this witness indicates that the place from where the recovery 
was effected was frequently visited by people for collecting fodder.

(iii) PW8-Surjay Rai was another witness when the recovery was effected. In his 
cross-examination, he too reiterated that the spot from where the recovery was effected
was not covered with thick forest growth and cow herders used to visit the said 
place for collecting fodder.

(iv) PW2-Kunti Maya Gurung in her cross-examination admitted that the place from
where the said articles were recovered had a water channel nearby. She admitted 
that people used to visit the said spot to collect fodder and to graze their cattle.
Whenever the water channel was blocked, people used to come there to repair the 
same.

(v) The aforesaid evidence indicates that recovery of the aforesaid articles made
under Section 27 of the Act of 1872 was from a place that was frequented by people
and the said spot could be easily seen by any person visiting the same. The reliability
of a recovery effected under Section 27 of the Act of 1872 from a place ordinarily
visible to others should be examined with care. A note of caution in this regard
has been sounded in State of Himachal Pradesh vs. Jeet Singh. It was observed as
under:

“There is nothing in Section 27 of the Evidence Act which renders the statement 
of the accused inadmissible if recovery of the articles was made from any place 
which is “open or accessible to others”. It is a fallacious notion that when recovery
of any incriminating article was made from a place which is open or accessible to
others, it would vitiate the evidence under Section 27 of the Evidence Act. Any 
object can be concealed in places which are open or accessible to others. For example,
if the article is buried on the main roadside or if it is concealed beneath dry 
leaves lying on public places or kept hidden in a public office, the article would
remain out of the visibility of the others in normal circumstances. Until such article
is disinterred its hidden state would remain unhampered. The person who hid it alone
knows where it is until he discloses that fact to any other person. Hence the crucial
question is not whether the place was accessible to others or not but whether it
was ordinarily visible to others. If it is not, then it is immaterial that the concealed
place is accessible to others.”

This factor will have to be borne in mind while assessing all the circumstances 
together.

(ii) PW13-Dr. O.T. Lepcha was working as Medico-legal Specialist, STNM Hospital,
Gangtok, who stated that various specimens forwarded by Rongli Police Station were
examined by him and he had prepared his medical opinion report at Exhibit23. He 
admitted in his cross-examination that in his report, he did not mention as to whether
the three suspected flat bones were human bones or animal bones. He further admitted
that he could not say as to whether the tooth mentioned in Exhibit-23 was that of
a human. Similarly, he stated that he was not sure as to whether the piece of nail
was, in fact, a nail or a piece of wood. (iii) PW16, the Investigating Officer admitted
that he could not state as to whether the bones and the teeth found at the place
of occurrence belonged to the victim.

From the aforesaid material on record, it is clear that the two pieces of bones 
marked as A2 were stated to be of human male origin. They were not biologically 
related with Exhibit-A6 which was a blood stain filter paper having the blood sample
of the victim’s mother and Exhibit- A7 which was a blood stain filter paper with
the blood sample of the victim’s sister. The prosecution, therefore, has not been
able to bring on record the fact that the bones and teeth recovered at the instance
of the appellant, in fact, were of the victim. The DNA report at Exhibit37, on the
contrary, indicates that the pieces of bone were of male origin while the victim
was a female. They naturally did not match the blood samples of the victim’s mother
and sister. The DNA report at Exhibit-37, therefore, cannot be relied upon as a 
circumstance against the appellant.

##### **e) Brown shawl: the origin and blood group found on the said shawl could not be detected**

(i) According to the prosecution, the appellant had taken a brown shawl from the
house of his sister and had laid down the victim on the said shawl. He had, thereafter,
covered the victim with his black jacket. This according to the prosecution was 
stated by the appellant while discovering various items on memorandum under Section
27 of the Act of 1872. PW2, the mother of the victim, however, could not identify
the said brown shawl shown to her when she was examined in the Court. She stated
that she did not know to whom the said shawl belonged to. PW16, the Investigating
Officer also admitted in his cross-examination that the said shawl did not belong
to the mother of the appellant though the appellant had stated it belonged to his
mother. He also admitted that he did not find any witness who had seen the accused
going to the victim’s house to get the shawl. As noted above, as per the report 
of Regional FSL dated 19.06.2014 at Exhibit-16, the origin and blood group found
on the said shawl could not be detected. This circumstance again creates a doubt
on the stand taken by the prosecution regarding the appellant taking away a brown
shawl from the house and laying the victim on it.

##### **f) Statement of appellant under Section 313 of the Code**

(i) The statement of appellant was recorded under Section 313 of the Code and various
circumstances against him were put to him. At Question 11, the appellant was referred
to the deposition of PW2 that while going for making some purchases, he wanted to
take the victim along with him. However, PW2 did not permit him to do so. The appellant
admitted this to be true. At Question 12, it was put to the appellant that as per
the evidence of PW2, when she went inside the house after telling the appellant 
not to take the victim with him, he was standing near the house while the victim
was standing near the door of the house. The appellant stated that this was true
but further stated that he had gone to the shop alone. The appellant admitted while
answering Question Nos.24 and 25 that he had gone to the residence of PW4 at about
01.00 p.m. on the relevant day and that he was heavily drunk. The appellant ultimately
stated that he was falsely implicated at the behest of PW4 and that he was innocent.
He had been arrested on suspicion.

On a reading of the entire statement of appellant under Section 313 of the Code,
we do not find that there has been any failure on his part to explain any incriminating
circumstance against him. It has to be borne in mind that only if an accused fails
to offer reasonable explanation in discharge of burden placed on him in a case resting
on circumstantial evidence, the same would provide an additional link in the chain
of circumstances proved against him. Thus, the appellant’s silence or failure to
provide any reasonable explanation can merely act as an additional link that would
complete the chain. This, however, would not shift the burden of proof on an accused
in a criminal trial. This position has been explained in Kashi Ram (supra) that 
was relied upon by the learned counsel for the respondent.

(ii) We may in this connection refer to the decision in Raj Kumar Singh @ Raju @
Batya Vs. State of Rajasthan17. While explaining the relevance of statements made
by the accused under Section 313 of the Code, it was held as under:

“36. In view of the above, the law on the issue can be summarised to the effect 
that statement under Section 313 Cr.P.C. is recorded to meet the requirement of 
the principles of natural justice as it requires that an accused may be given an
opportunity to furnish explanation of the incriminating material which had come 
against him in the trial. However, his statement cannot be made a basis for his 
conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot
be used to fill up the gaps left by the prosecution witnesses in their depositions.
Thus, the statement of the accused is not a substantive piece of evidence and therefore,
it can be used only for appreciating the evidence led by the prosecution, though
it cannot be a substitute for the evidence of the prosecution. In case the prosecution’s
evidence is not found sufficient to sustain conviction of the accused, the inculpatory
part of his statement cannot be made the sole basis of his conviction. The statement
under Section 313 Cr.P.C. is not recorded after administering oath to the accused.
Therefore, it cannot be treated as an evidence within the meaning of Section 3 of
the Evidence Act, though the accused has a right if he chooses to be a witness, 
and once he makes that option, he can be administered oath and examined as a witness
in defence as required under Section 315 Cr.P.C.

##### **When section 313 CrPC can be take against the accused? Explained**

> An adverse inference can be taken against the accused only and only if the incriminating
> material stood fully established and the accused is not able to furnish any explanation
> for the same. However, the accused has a right to remain silent as he cannot be
> forced to become witness against himself.”
> Thus, when it is found that the chain of circumstances relied upon by the prosecution
> is not complete and that the same does not inspire confidence for its acceptance,
> the response of the appellant recorded in his statement under Section 313 of the
> Code cannot be a circumstance against him, especially when other circumstantial
> evidence is not found to be satisfactory pointing out to the guilt of the appellant
> alone and none other.

##### **Witnesses were not sure as to whether the appellant was last seen with the victim and they had own doubts**

10. On an overall consideration of all the circumstances relied upon by the prosecution,
we find that the evidence led by the prosecution is woefully short of pointing to
the guilt of the appellant. The witnesses examined were not sure as to whether the
appellant was last seen with the victim as they had their own doubts in that regard.
The discovery effected under Section 27 of the Act of 1872 was from a place that
was ordinarily visible to others, thus, requiring such discovery to be considered
with caution. The DNA report in clear terms refers to the bone extracts being of
male origin while the victim was a female. The said bones naturally did not match
with the blood samples of the victim’s mother and sister. The report from the FSL
also does not take the case of the prosecution any further. There is a doubt created
as to whether the brown shawl claimed by the prosecution to be brought by the appellant
from his mother was the same as the appellant’s mother had denied that it belonged
to her. Therefore, the appellant’s statement under Section 313 of the Code cannot
be taken as an additional link in the chain of circumstances. In other words, the
chain of circumstances has not been formed on the basis of the prosecution evidence.
The Sessions Court, in our view, failed to notice these material factors that were
very much available on record. It, therefore, erred in convicting the appellant 
on the basis of circumstantial evidence. The High Court too failed to notice all
these infirmities in the case of the prosecution. The guilt of the appellant has
not been established beyond reasonable doubt. A strong doubt about his involvement
in the offence is created in view of the prosecution evidence. It is also true that
the victim met an unfortunate end. However, on the basis of such material on record,
it would hardly be justifiable to convict the appellant for the same when none of
the circumstances point towards his involvement. In the circumstances, he has to
be given the benefit of doubt.

##### **Conclusion: Acquitted**

11. Resultantly, the judgment of the Sessions Court in S.T. (POCSO) Case No.20 of
2014 as affirmed by the High Court in Criminal Appeal No.19 of 2016 is quashed and
set aside. The appellant is acquitted of the offence for which he was tried and 
convicted. He shall be set free forthwith, if not required in any other case. The
Criminal Appeal is, accordingly, allowed in the aforesaid terms.

**Resource**

**Judgments cited or quoted**

 1.  Kattavellai @ Devakar vs. State of Tamil Nadu, 2025 INSC 845 – Relied upon by 
     the appellant to contend that recoveries under Section 27 are unreliable when 
     made from spots frequented by members of the public.
 2.  Naib Singh vs. State of Punjab and Ors., 1983 INSC 41 – Relied upon by the respondent
     State to support the concurrent conviction of the appellant.
 3.  State of Rajasthan vs. Kashi Ram, 2006 INSC 794 – Relied upon by the State and
     referenced by the Court regarding the principle that an accused’s failure to furnish
     an explanation under Section 313 Cr.P.C. acts merely as an additional link without
     shifting the burden of proof.
 4.  Manik & Ors. vs. The State of Maharashtra, 2024 INSC 734 – Cited by the respondent
     State in support of non-interference with concurrent convictions.
 5.  Hanumant vs. The State of Madhya Pradesh, 1952 INSC 41 – Cited for the foundational
     principle that circumstantial evidence must fully establish an unbroken chain 
     of guilt excluding all reasonable hypothesis of innocence.
 6.  Reg v. Hodge, (1838) 2 Lew. 227 – Quoted warning against the mind’s tendency to
     strain circumstances and supply missing links to force them into a connected whole.
 7.  State of U.P. vs. Satish, 2005 INSC 68 – Cited on the principle that the ‘last
     seen’ theory applies only where the time-gap between the sighting and discovery
     of death is too small to admit any other perpetrator.
 8.  State of Himachal Pradesh vs. Jeet Singh, 1999 INSC 104 – Cited regarding Section
     27 recoveries from accessible places, holding that concealment remains valid unless
     the object was ordinarily visible to others.
 9.  Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan, 2013 INSC 313 – Cited holding
     that an accused’s statement under Section 313 Cr.P.C. is not substantive evidence
     and cannot be used to bridge prosecution gaps or serve as the sole basis for conviction.

**Acts and Sections involved**

 1. Indian Penal Code, 1860: Sections 201, 302, 376(2)(i)
 2. Protection of Children from Sexual Offences Act, 2012: Sections 4, 6
 3. Code of Criminal Procedure, 1973: Sections 313, 315, 374
 4. Indian Evidence Act, 1872: Sections 3, 27

[Santosh Gurung vs. State of Sikkim – 416472017_2026-10-01](https://section1.in/wp-content/uploads/2026/10/Santosh-Gurung-vs.-State-of-Sikkim-416472017_2026-10-01.pdf)
[Download](https://section1.in/wp-content/uploads/2026/10/Santosh-Gurung-vs.-State-of-Sikkim-416472017_2026-10-01.pdf)

### Further Study

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## Practice & Procedures: Section 138 NI Act Trial Court Procedures

- Link: https://section1.in/22786-2/
- Published: 2026-10-01T14:14:45+00:00
- Author: section1

 

 

**Practice Guide · Criminal Law**

# Trial Court Procedures in Cheque Dishonour Cases

A stage-by-stage walk through Section 138 of the Negotiable Instruments Act, 1881—
from presentation of the cheque to interim compensation — mapped to the Supreme 
Court and High Court authorities that govern each step.

Section 138, NI Act 1881 · Updated with the 2018 Amendment (Ss. 143A & 148) · 24
procedural stages

Contents

 1.  [Who Can Be Prosecuted](https://section1.in/22786-2/#s1)
 2.  [Presenting the Cheque & Dishonour](https://section1.in/22786-2/#s2)
 3.  [Receiving Information from the Bank](https://section1.in/22786-2/#s3)
 4.  [Sending the Demand Notice](https://section1.in/22786-2/#s4)
 5.  [The 15-Day Waiting Period](https://section1.in/22786-2/#s5)
 6.  [Where to File & Premature Complaints](https://section1.in/22786-2/#s6)
 7.  [Filing the Complaint](https://section1.in/22786-2/#s7)
 8.  [Taking Cognizance](https://section1.in/22786-2/#s8)
 9.  [Sworn Statements](https://section1.in/22786-2/#s9)
 10. [Summoning the Accused](https://section1.in/22786-2/#s10)
 11. [Discharge](https://section1.in/22786-2/#s11)
 12. [Reading the Substance of the Accusation](https://section1.in/22786-2/#s12)
 13. [Type of Trial](https://section1.in/22786-2/#s13)
 14. [Chief-Examination by Proof Affidavit](https://section1.in/22786-2/#s14)
 15. [Marking Documents](https://section1.in/22786-2/#s15)
 16. [Cross-Examination & Rebutting the Presumption](https://section1.in/22786-2/#s16)
 17. [Section 313 Questioning](https://section1.in/22786-2/#s17)
 18. [The Written Statement of Defence](https://section1.in/22786-2/#s18)
 19. [Defence Witnesses](https://section1.in/22786-2/#s19)
 20. [Defence Documents](https://section1.in/22786-2/#s20)
 21. [Arguments](https://section1.in/22786-2/#s21)
 22. [Judgment, Sentence & Compensation](https://section1.in/22786-2/#s22)
 23. [Bail & Compounding](https://section1.in/22786-2/#s23)
 24. [Interim Compensation](https://section1.in/22786-2/#s24)
 25. [Landmark Reversals](https://section1.in/22786-2/#reversals)
 26. [Takeaways for the Trial Court](https://section1.in/22786-2/#takeaways)

---

**Part One · Before the Court**

## 1. Who Can Be Prosecuted

Ss. 138 & 141, NI Act

The drawer of the cheque is primarily liable, but liability extends further in defined
scenarios.

 * **Companies/Corporations:** the company must be arrayed as an accused before 
   its directors or signatories can be prosecuted; a director cannot be prosecuted
   independently.
 * **Directors:** the complaint must specifically aver that the director was in 
   charge of and responsible for day-to-day business at the time of the offence;
   resignation before the transaction absolves.
 * **Firms:** a partnership is treated as a ‘company’ under S. 141; firm and partners
   are jointly and severally liable, and notice to a partner is notice to the firm.
 * **Joint accounts:** a joint holder is liable only if they signed the dishonoured
   cheque.
 * **Security cheques:** cheques issued as security that mature for presentation
   on default still attract S. 138.

**Key authorities:**
Aneeta Hada v. Godfather Travels, AIR 2012 SC 2795 (SC) · S.
M.S. Pharmaceuticals v. Neeta Bhalla, (2005) 8 SCC 89 (SC) · Aparna A. Shah v. Sheth
Developers, AIR 2013 SC 3210 (SC) · Dhanasingh Prabhu v. Chandrasekar, 2025 INSC
831 (SC)

## 2. Presenting the Cheque & Dishonour

S. 138, NI Act

How and when the cheque is presented shapes limitation and the cause of action.

 * **Post-dated cheques:** a bill of exchange until the date on its face; limitation
   runs from that date, not the date of signing.
 * **Second presentation:** the payee may present the cheque repeatedly within its
   validity, each dishonour giving a fresh cause of action.
 * **Stop payment:** dishonour on ‘stop payment’ instructions still attracts S. 
   138 unless the stoppage was bona fide.
 * **Advance payments:** a cheque toward advance payment on a breached contract 
   creates civil, not criminal, liability.
 * **Part payment:** after part payment the payee may demand only the balance; prosecuting
   for the original sum is unsustainable.

**Key authorities**
Anil Kumar Sawhney v. Gulshan Rai, (1993) 4 SCALE (SC) · MSR
Leathers v. S. Palaniappan, (2013) 1 SCC 177 (SC) · Goa Plast v. Chico Ursula D’Souza,(
2003) 3 SCC 232 (SC) · Indus Airways v. Magnum Aviation, (2014) 2 SCC 539 (SC) ·
Moser Baer v. Photon Energy Systems, Crl. A. 235/2016 (SC)

## 3. Receiving Information from the Bank

S. 138, NI Act

The offence is triggered when the bank returns the cheque unpaid for insufficiency
of funds or because it exceeds arrangements.

 * A return marked **‘Account Closed’** is legally equivalent to ‘insufficiency 
   of funds’.
 * Merely closing the account does not, by itself, amount to cheating under S. 417
   IPC.

**Key authorities**
Kusum Ingots & Alloys v. Pennar Peterson, AIR 2000 SC 954 (SC)·
NEPC Micon v. Magma Leasing, AIR 1999 SC 1952 (SC) · K. Chandran v. Ponnappa Moothan,
2013(1) Acq. 423 (Ker. HC)

## 4. Sending the Demand Notice

S. 138(b), NI Act

A demand notice must issue within **30 days** of receiving the bank’s return memo.

 * **Form:** no prescribed format, but it must demand the exact cheque amount; interest
   or costs are severable and do not invalidate it.
 * **Addressee:** serve the principal offender — notice to a director without serving
   the company is invalid (**but a latest development is that the non-mentioning
   of firm’s name is not fatal to the case: S.C see section1.in for more**); individual
   notices to every director are not mandatory once the company is served.
 * **Presumed service:** notice to the correct address is presumed served even if
   returned ‘refused’ or ‘house locked’; an incorrect address destroys the presumption.
 * **Unclaimed:** if returned ‘unclaimed’, the 15-day period begins when the post
   office returns it after the 7-day retention period.
 * **Successive notices:** valid only when supported by a fresh presentation; a 
   mere ‘reminder’ does not reset limitation.

**Key authorities**
Kamlesh Kumar v. State of Bihar, (2014) 2 SCC 424 (SC) · Suman
Sethi v. Ajay K. Churiwal, (2000) 2 SCC 380 (SC) · N. Parameswaran Unni v. G. Kannan,(
2017) 5 SCC 737 (SC) · Himanshu v. B. Shivamurthy, Crl. A. 1465/2009 (SC) · Sicagen
India v. Mahindra Vadineni, Crl. A. 26-27/2019 (SC)

## 5. The 15-Day Waiting Period

S. 138(c), NI Act

The statute gives the accused **15 days from receipt** of the notice to pay. The
complainant can neither abridge nor enlarge this window. The cause of action arises**
only on failure to pay** within those 15 days — everything filed earlier is premature.

**Key authorities**
Rahul Builders v. Arihant Fertilizers, (2008) 2 SCC 321 (SC)·
Paul Rabinson Kennedy v. Thamilarasan, Crl. O.P. 16400/2016 (Mad. HC)

## 6. Where to File & Premature Complaints

Ss. 142, 142A, NI Act

**Jurisdiction:** S. 142A gives the NI Act overriding effect over the CrPC — the
complaint lies where the **payee’s bank branch** is located.

**Premature complaints:** a complaint filed before the 15-day window closes is legally
invalid, even if the accused repudiated the debt by reply notice. The remedy is 
a fresh complaint with a condone-delay application.

**Key authorities**
Bridgestone India v. Inderpal Singh, (2016) 2 SCC 75 (SC) · 
Yogendra Pratap Singh v. Savitri Pandey, 2014 AIR SCW 5751 (SC) · B. Vijayalakshmi
v. R. Amaravathi, (2020) 3 RCR(Cri) 775 (Mad. HC DB) · Gajanand Burange v. Laxmi
Chand Goyal, Crl. A. 1229/2022 (SC)

## 7. Filing the Complaint

S. 142, NI Act

 * **Complainant identity:** a juristic entity acts through a de facto human complainant;
   a power-of-attorney holder may file, but a third party cannot step in without
   authorisation.
 * **Procedural cures:** failure to produce a board resolution at filing is a curable
   defect.
 * **Amendment:** defects in the cause title can be amended if the complaint’s core
   structure is unchanged.

**Key authorities**
Associated Cement Co. v. Keshvanand, (1998) 1 SCC 687 (SC) ·
A.C. Narayanan v. State of Maharashtra, (2004) 12 SCC 509 (SC) · Samrat Shipping
v. Dolly George, 2003 SCC (Cri) 1224 (SC) · S.R. Sukumar v. S. Sunaad Raghuram, 
2015 AIAR (Crl) 757 (SC)

## 8. Taking Cognizance

Ss. 142, 190 CrPC / BNSS

 * **Limitation:** the complaint must be filed within one month of the cause of 
   action; the day the cause arises is excluded from the count.
 * **Condonation:** delay can be condoned for sufficient cause — the Magistrate 
   must hear the plea before cognisance, without assessing merits; a separate petition
   is not strictly needed if reasons are pleaded; the accused must be heard on the
   application.
 * **Offence over offender:** cognisance is taken of the offence, not the offender.
   This is definitely the position as far as reading Section 142 N.I Act but Hon’ble
   Supreme Court in a case liberal view that taking cognizance offence against the
   offender is not bad since the offender is already known. 

**Key authorities**
Econ Antri v. Rom Industries, (2014) 11 SCC 769 (SC) · Saketh
India v. India Securities, (1999) 3 SCC 1 (SC) · Pawan Kumar Ralli v. Maninder Singh
Narula, (2014) 15 SCC 245 (SC) · Sarah Mathew v. Institute of Cardio Vascular Diseases,(
2014) 2 SCC 62 (SC) · N. Harihara Krishnan v. J. Thomas, 2017 (2) SCC (Crl) 1460(
SC)

## 9. Sworn Statements

S. 145, NI Act

Under S. 145 the complainant’s evidence may be given **on affidavit**. The Magistrate
can rely on that affidavit to issue process without mandatorily examining the complainant
on oath.

**Key authorities**
A.C. Narayanan v. State of Maharashtra, (2004) 12 SCC 509 (SC)·
Janki Vashdeo Bhojwani (SC)

## 10. Summoning the Accused

S. 202 CrPC / S. 223 BNSS

Where the accused resides outside the court’s territorial jurisdiction, the mandatory
S. 202 inquiry is satisfied by the complainant’s S. 145 affidavit — examining witnesses
on oath is not compulsory.

**Concurrent IPC prosecution:** the accused may simultaneously be summoned under
S. 420 IPC if fraudulent intent existed at the inception; mere dishonour, however,
is not cheating.

**Key authorities**
Sunil Todi v. State of Gujarat, AIR 2022 SC 147 (SC) · K.S. 
Joseph v. Philips Carbon Black, (2016) 11 SCC 105 (SC) · Dalip Kumar v. Jagnar Singh,(
2009) 14 SCC 696 (SC) · V.Y. Jose v. State of Gujarat, (2009) 3 SCC 78 (SC)

---

# Part Two · At Trial

## 11. Discharge

S. 143 NI Act / BNSS / CrPC

There is generally **no provision to discharge** an accused in a summons case. Post-
2002 amendments, however, confer an implied power under S. 143 to close proceedings
and discharge the accused if the complainant is duly compensated — even without 
the complainant’s consent.

**Key authorities**
G. Chandrasekaran v. C.R. Umapathy, 2004 (5) CTC 50 (Mad. HC)·
Meters and Instruments v. Kanchan Mehta, (2018) 1 SCC 560 (SC) · Subramanium Sethuraman
v. State of Maharashtra, (2004) 13 SCC 324 (SC)

## 12. Reading the Substance of the Accusation

Summons-trial procedure, but actually in many places the NI Act is being conducted
as an STC trial, i.e., Summary Trials.

The particulars of the offence are stated to the accused, who is asked whether they
plead guilty or wish to defend. No formal charge is framed in a summons trial.

## 13. Type of Trial

S. 143, NI Act

 * **Summary trial** is the default. If the Magistrate considers a sentence beyond
   one year necessary, a reasoned order converts it into a summons trial.
 * **Consolidation:** where multiple cheques bounce within a year, more than three
   cases cannot technically be consolidated under joint-trial rules, but connected
   cases can be fixed on the same date for convenience.

**Key authorities**
G. Chandrasekaran v. C.R. Umapathy, 2004 (5) CTC 50 (Mad. HC)·
M. Abbas Haji v. T.N. Channakeshava, 2019 (3) MWN (Crl) DCC 49 (SC)

## 14. Chief-Examination by Proof Affidavit

S. 145, NI Act

The complainant files a proof affidavit instead of a formal, detailed, spoken chief
examination. A power-of-attorney holder may depose if they witnessed the entire 
transaction and have personal knowledge of the transaction.

**Key authorities**
Indian Bank Association v. Union of India, (2014) 5 SCC 590 (
SC) · Meters and Instruments v. Kanchan Mehta, 2017 (6) CTC 66 (SC) · Adalat Prasad
v. Rooplal Jindal, (2004) 7 SCC 338 (SC) · A.C. Narayanan v. State of Maharashtra,(
2004) 12 SCC 509 (SC)

## 15. Marking Documents & Initial Burden

Evidence stage: Since all the original documents were already compared by the court
with their copies, the copies become original though they are secondary in nature(
since complied with the Evidence Act provisions).  

 * **Income-tax returns:** the complainant need not initially produce ITRs to prove
   financial capacity; the burden shifts only if the accused first raises a probable
   defence.
 * **Overwriting:** a scored-out date replaced with a fresh signed date is valid;
   unauthorised material alterations invalidate the cheque.

**Key authorities**
Tedhi Singh v. Narayan Dass Mahant, Crl. A. 362/2022 (SC) · 
Basalingappa v. Mudibasappa, (2019) 5 SCC 418 (SC) · K. Subramani v. K. Damodara
Naidu, (2015) 1 SCC 90 (SC) · Dinesh Harakchand Sankla v. Kvelon Ltd, 2005(2) MWN(
Cri) DCC 57 (Mad. HC)

## 16. Cross-Examination & Rebutting the Presumption

Ss. 118 & 139, NI Act

Sections 118 and 139 raise **rebuttable presumptions** that the cheque was issued
for consideration and in discharge of a legally enforceable debt.

 * **Standard:** the accused needs a ‘probable defence’ on a preponderance of probabilities—
   achievable through cross-examination alone, without entering the witness box.
 * **Mere denial fails:** a formal denial in a reply notice, or doubt without cogent
   evidence, does not rebut the presumption.
 * **Blank / lost cheques:** voluntarily signing a blank cheque attracts S. 139;
   a lost-cheque defence must explain the absence of a police complaint and how 
   the signed cheque reached the complainant.
 * **Security Cheques**: Unless it is a valid security cheque issued.

**Key authorities**
Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 (SC)·
Rangappa v. Sri Mohan, (2010) 5 SCALE 340 (SC) · Kumar Exports v. Sharma Carpets,(
2009) 2 SCC 513 (SC) · Bir Singh v. Mukesh Kumar, 2019(1) MWN (Crl) 164 (SC) · Kishan
Rao v. Shankargouda, (2018) 8 SCC 165 (SC)

## 17. Section 313 Questioning

S. 313 CrPC / S. 351 BNSS

The accused is examined to explain every incriminating circumstance appearing in
the evidence against them.

## 18. The Written Statement of Defence

Defence stage: section 313(5) Cr.P.C 

An accused who never replied to the statutory notice but produces a complex defence
at trial is viewed with suspicion, though there is no provision to send a reply 
notice and there is no bar to keeping the defence secret till the stage of defence.
Rather, a reply notice would inform the court and lays the foundation of the defence(
at the threshold of the case itself).

**Key authorities**
S.P. Mani and Mohan Dairy v. Snehalatha Elangovan, Crl. A. 1586/
2022 (SC)

## 19. Defence Witnesses

Evidence stage

 * The accused **cannot** use a proof affidavit for defence chief-examination — 
   that shortcut belongs to the complainant alone.
 * Successive applications to send the cheque to an expert are barred, but the accused
   may examine their own handwriting expert.
 * A minor may depose if the trial judge finds them mentally capable.

**Key authorities**
Mandvi Co-op Bank v. Nimesh S. Thakore, 2010(1) CTC 693 (SC)·
G. Someshwar Rao v. Samineni Nageshwar Rao, 2009 (10) SCALE 268 (SC) · Anbarasu 
v. M. Gagan Bothra, 17.06.2019 (Mad. HC)

## 20. Defence Documents

Evidence stage

The accused may mark documents to probabilize the defence that no legally enforceable
debt existed.

**Key authorities**
MMTC Ltd. v. Medchl Chemicals & Pharma, (2002) 1 SCC 234 (SC)

## 21. Arguments

Final hearing

Parties present oral arguments and may file a memorandum of written arguments.

---

# Part Three · After the Verdict

## 22. Judgment, Sentence & Compensation

S. 138 NI Act / Ss. 357, 421 CrPC

 * **Sentence:** imprisonment and a fine up to **twice the cheque amount**.
 * **Probation:** the Probation of Offenders Act can be applied to admonish the 
   accused, subject to S. 361 CrPC.
 * **Concurrent sentences:** convictions on multiple cheques from one transaction
   within a year may carry concurrent sentences (users are advised to research this
   aspect deeply).
 * **Recovery:** compensation can be recovered under S. 421 CrPC as arrears of land
   revenue even after the accused underwent the default sentence.
 * **Companies:** a company cannot be imprisoned; on conviction, it is sentenced
   only to a fine.

**Key authorities**
R. Vijyan v. Baby, (2012) 1 LW (Cri) 359 (SC) · Kumaran v. State
of Kerala, (2017) 7 SCC 471 (SC) · Prakash H. Jain v. Marie Fernandes, (2003) 8 
SCC 431 (SC) · Asst. Commissioner v. Velliappa Textiles, Crl. A. 142/1994 (SC) ·
K. Sundararaj v. K.M. Tex, 2018(1) MWN (Crl) DCC 111 (Mad. HC)

## 23. Bail & Compounding

Bail: There is no provision under the NI Act that denies the court’s power to release
the accused on bail. Obtaining only the bond under Section 88 CrPC with sureties
or without sureties cannot be equated to bail.

S. 147, NI Act

The offence is compoundable — even after conviction or custody. Compounding costs
scale with the forum: **10%** before the Magistrate, **15%** in the Sessions or 
High Court, **20%** in the Supreme Court — applied flexibly in practice.

**Key authorities**
Damodar S. Prabhu v. Sayed Babalal, AIR 2010 SC 1907 (SC) · 
Meters and Instruments v. Kanchan Mehta, (2017) 12 SCALE 303 (SC) · Ganga Bhavani
Constructions v. State of A.P., 2019 (3) MWN (Crl) DCC 53 (SC)

## 24. Interim Compensation

Ss. 143A & 148, NI Act

 * **S. 143A (trial court):** the court may direct interim compensation up to **
   20% of the cheque amount**; the provision operates prospectively.
 * **S. 148 (appellate court):** the appellate court may order deposit pending appeal;
   this applies **retrospectively**, including to complaints filed before the 2018
   amendment. Release or withdrawal of this compensation would be only during the
   pendency of appeal as per section 148(3) Cr.P.C and not later. 

**Key authorities**
G.J. Raja v. Tejraj Surana, 2019 AIAR (Cri) 833 (SC) · Surinder
Singh Deswal v. Virender Gandhi, (2020) 2 SCC 514 (SC) · Abdul Rahim v. Shahul Hameed,
Crl. O.P. 1428/2021 (Mad. HC)

---

# **Shifting Ground**

## Landmark Reversals Every Practitioner Should Know

Several propositions lawyers still quote were overruled years ago. Citing the superseded
case to an informed bench can sink an argument — here is what replaced each one.

**Stop-payment defence.** Electronics Trade & Technology Dev. Corp., 1996 (1) CTC
193 (SC) → Modi Cements v. Kuchil Kumar Nandi, 1998 (1) CTC 402 (SC). Stopping payment
after notice once averted S. 138; now stop-payment instructions still attract it.

**Presumption of debt.** Krishna Janardhan Bhat, AIR 2008 SC 1325 → Rangappa v. 
Sri Mohan, (2010) 5 SCALE 340. Partially overruled: the S. 139 presumption includes
the presumption of a legally enforceable debt.

**Jurisdiction.** K. Bhaskaran, AIR 1999 SC 3762 → Dashrath Rupsingh Rathod, then
S. 142A as confirmed in Bridgestone, (2016) 2 SCC 75. Whittled down, then statutorily
overridden — payee-centric territorial jurisdiction restored.

**Service of notice.** Shakti Travel & Tours, 2006 (3) CTC 591 → C.C. Alavi Haji,(
2007) 6 SCC 555. Notice sent to the correct address is presumed served under the
General Clauses Act.

**Successive presentations.** Sadanandan Bhadran, AIR 1998 SC 3043 → MSR Leathers
v. S. Palaniappan, (2012) 9 SCALE 455. Each presentation within validity creates
a fresh cause of action; Sil Import, Dalmia Cement, Tameeshwar Vaishnav and Uniplas
India fell with it.

**Directors without the company.** Sheoratan Agarwal, (1984) 4 SCC 352 & Anil Hada,(
2000) 1 SCC 1 → Aneeta Hada v. Godfather Travels, AIR 2012 SC 2795. Prosecuting 
a director without impleading the company is impermissible.

**Premature complaints.** Narsingh Das Tapadia, (2000) 7 SCC 183 → Yogendra Pratap
Singh v. Savitri Pandey, 2014 AIR SCW 5751. Cognizance on a complaint filed before
the 15-day period expires is entirely void — courts cannot simply wait.

**Limitation calculation.** Sil Import, USA, (1999) 4 SCC 567 → Econ Antri v. Rom
Industries, (2014) 11 SCC 769. The day the cause of action arises is excluded from
the one-month limitation, confirming Saketh India.

---

# **In Practice**

## Six Takeaways for the Trial Court

The procedural habits that most often decide Section 138 cases before the evidence
is even heard.

**1. Never skip the company.** To prosecute a director or signatory, the company
itself must be arrayed as an accused. A complaint against the director alone is 
not maintainable (Aneeta Hada, SC).

**2. File at the payee’s bank branch.** Section 142A overrides the CrPC: jurisdiction
lies where the payee’s branch is located, not where the cheque was issued or dishonoured(
Bridgestone, SC).

**3. A premature complaint is void.** Filing before the 15-day notice window closes
cannot be cured by waiting — the remedy is a fresh complaint with a condone-delay
application (Yogendra Pratap Singh, SC).

**4. Use the proof affidavit.** Under S. 145 the complainant’s chief-examination
goes in on affidavit; the accused has no equivalent shortcut for defence witnesses(
Mandvi Co-op Bank, SC).

**5. Reply to the notice, always.** A defence raised for the first time in a S. 
313 statement without a reply to the statutory notice is viewed with suspicion (
S.P. Mani and Mohan Dairy, SC).

**6. Compounding is cheapest early.** Costs scale with the forum — roughly 10% before
the Magistrate, 15% in Sessions or High Court, 20% in the Supreme Court — though
applied flexibly (Damodar S. Prabhu, SC).

## Part VI: Complete Section1.in Jurisprudence Digest on NI Act

**1. Section 138 NI Act: Cheque itself is a promise to pay even if the debt is barred
by time**

 * **Citation:** _K. Hymavathi v. The State of Andhra Pradesh & Anr_ (Supreme Court,
   Criminal Appeal of 2023).
 * **Summary:** Under Article 34 of the Limitation Act, 1963, a time-barred debt
   can be revived. The issuance of a cheque acts as a fresh written promise to pay
   under the Indian Contract Act. This makes the debt legally recoverable, and its
   dishonour attracts Section 138.
 * **Link:** [https://section1.in/4479-2/](https://section1.in/4479-2/)

**2. Part Payment: Understanding Cheque Dishonour Cases**

 * **Citation:** _Dashrathbhai Trikambhai Patel v. Hitesh Mahendrabhai Patel & Anr._(
   Supreme Court).
 * **Summary:** If part-payment is made after the issuance of a cheque but before
   its encashment, the cheque no longer represents a ‘legally enforceable debt’ 
   for the full face value at maturity. Consequently, Section 138 of the NI Act 
   cannot be attracted for the dishonour of an unendorsed cheque representing the
   original full sum.
 * **Link:** [https://section1.in/s-138-n-i-act-would-not-attract-if-the-part-payment-made-before-encashment-of-the-cheque-issued-for-the-original-amount/](https://section1.in/s-138-n-i-act-would-not-attract-if-the-part-payment-made-before-encashment-of-the-cheque-issued-for-the-original-amount/)

**3. Section 138 NI Act: Accused completely rebutted in the cheque case**

 * **Citation:** _Rangappa v. Sri Mohan_ (Supreme Court) & _P. Gnanambigai v. S.
   Krishnasamy_ (Madras High Court).
 * **Summary:** The presumption under Section 139 is rebuttable by a standard of
   preponderance of probabilities. The accused can successfully rebut this purely
   through the cross-examination of the complainant (e.g., by demonstrating independent
   transactions or cheque misuse) without needing to step into the witness box. 
   Furthermore, the non-issuance of a reply notice to the statutory demand is not
   inherently fatal to the accused’s defence.
 * **Link:** [https://section1.in/accused-completely-rebutted-in-the-cheque-case/](https://section1.in/accused-completely-rebutted-in-the-cheque-case/)

**4. Security Cheque: If the signature is not in dispute then the court cannot set
aside the summoning order**

 * **Citation:** _Sunil Todi & Ors v. State of Gujarat & Anr_ (Supreme Court, Criminal
   Appeal No. 1446 of 2021).
 * **Summary:** If the accused’s signature is admitted on a security cheque, the
   statutory presumption under Section 139 is immediately triggered. Courts cannot
   dismiss the complaint or set aside summoning orders at a pretrial stage under
   Section 482 CrPC simply because the cheque was labeled a “security cheque”; rebuttal
   is strictly a matter for trial.
 * **Link:** [https://section1.in/138-cases-security-cheque-cases-are-admissible/](https://section1.in/138-cases-security-cheque-cases-are-admissible/)

**5. S.138 N.I Act – MOU – Court has to follow the MOU**

 * **Citation:** _B.V. Seshaiah v. The State of Telangana & Anr_ (Supreme Court,
   Criminal Appeal of 2023).
 * **Summary:** If the litigating parties enter into a Memorandum of Understanding(
   MOU) containing an arbitration or compromise clause during the proceedings, the
   courts must honor the settlement terms. Failing to file the agreed compromise
   petition in court warrants setting aside the conviction, as the dispute is effectively
   compounded.
 * **Link:** [https://section1.in/s-138-n-i-act-mou-court-has-to-follow-the-mou/](https://section1.in/s-138-n-i-act-mou-court-has-to-follow-the-mou/)

**6. Directions issued to manage S. 138 NI Act cases effectively**

 * **Citation:** _Indian Bank Assn. v. Union of India_ (Supreme Court).
 * **Summary:** Consolidates the Supreme Court’s mandatory guidelines for trial 
   courts handling cheque cases. It includes directives to avoid “check and call”
   adjournment delays, mandates accepting the complainant’s evidence by affidavit,
   outlines strict timelines for appearance summons, and encourages settlement and
   compounding to conclude summary trials efficiently.
 * **Link:** [https://section1.in/directions-issued-to-manage-s-138-ni-act-cases-effectively/](https://section1.in/directions-issued-to-manage-s-138-ni-act-cases-effectively/)

**7. Quash: NI Act: If the notice amount is different from the cheque amount then
cheque proceedings are bad in law**

 * **Citation:** Statutory interpretation of Proviso (b) to Section 138 (relying
   on principles from _Central Bank of India v. Saxons Farms_).
 * **Summary:** To form a valid statutory notice under Proviso (b) to Section 138,
   the demand must be for the exact cheque amount. If a legal notice demands an 
   amount different from the dishonoured cheque amount, it creates fatal ambiguity.
   The defence of a “typographical error” is irrelevant, rendering the proceedings
   bad in law.
 * **Link:** [https://section1.in/quash-ni-act-if-the-notice-amount-is-different-from-the-cheque-amount-then-cheque-proceedings-are-bad-in-law-and-the-defence-of-typographical-error-is-irrelevant/](https://section1.in/quash-ni-act-if-the-notice-amount-is-different-from-the-cheque-amount-then-cheque-proceedings-are-bad-in-law-and-the-defence-of-typographical-error-is-irrelevant/)

**8. Company is the drawer of the cheque and the authorised signatory is merely 
a limb that signs the cheque**

 * **Citation:** _Aneeta Hada v. Godfather Travels & Tours Pvt. Ltd._ (Supreme Court).
 * **Summary:** Emphasizes the mandatory rule that the company is the primary offender
   under Section 141 of the NI Act. The authorized signatory acts merely as an agent
   or limb of the company. Fastening vicarious liability on the signatory requires
   impleading the company as a principal accused first.
 * **Link:** [https://section1.in/company-is-the-drawer-of-the-cheque-and-the-authorised-signatory-is-merely-a-limb-that-signs-the-cheque/](https://section1.in/company-is-the-drawer-of-the-cheque-and-the-authorised-signatory-is-merely-a-limb-that-signs-the-cheque/)

**9. Payment to secure a government job is considered a bribe and falls outside 
the scope of section 138 NI act**

 * **Citation:** Based on the Indian Contract Act, 1872 intersecting with Section
   138 NI Act.
 * **Summary:** Payment made to secure a government job constitutes illegal gratification(
   a bribe). Because it is an unlawful contract void ab initio under the Contract
   Act, it does not constitute a “legally enforceable debt.” Therefore, a cheque
   issued to repay such an amount cannot attract an offence under Section 138.
 * **Link:** [https://section1.in/payment-to-secure-a-government-job-is-considered-a-bribe-and-falls-outside-the-scope-of-section-138-ni-act/](https://section1.in/payment-to-secure-a-government-job-is-considered-a-bribe-and-falls-outside-the-scope-of-section-138-ni-act/)

section1.in© 2026 · Trial Court Procedures in Cheque Cases

### Further Study

 No Related Posts Found.

## 30 Landmark Supreme Court of India Criminal Law Judgments Explained

- Link: https://section1.in/30-landmark-supreme-court-of-india-criminal-law-judgments-explained/
- Published: 2026-09-29T15:04:11+00:00
- Author: section1

**1. Lalita Kumari v. Government of Uttar Pradesh: Citation: (2014) 2 SCC 1  Subject:
Registration of FIRs Provision considered: Section 154, CrPC**

**Case background**

The proceedings arose from a complaint concerning the alleged kidnapping of a minor
girl and police inaction. A Constitution Bench considered whether police must register
an FIR immediately when information discloses a cognizable offence.

**What the Supreme Court held**

Registration of an FIR is mandatory where the information discloses a cognizable
offence. In that situation, police cannot first conduct an inquiry to decide whether
the accusation is true. Where the information does not itself disclose a cognizable
offence but indicates that an inquiry is necessary, a limited preliminary inquiry
may determine whether such an offence is disclosed. The Court identified illustrative
situations where a preliminary inquiry might be appropriate, including matrimonial
disputes, commercial offences, medical negligence and corruption complaints. These
categories do not create a blanket exception to mandatory registration.

**Practical**

Police cannot refuse registration merely because they doubt a complaint that discloses
a cognizable offence.

BNSS relevance: Section 173(3), BNSS expressly addresses preliminary inquiry for
a specified category of offences, subject to conditions. Current advice must account
for that statutory framework.

**2. Arnesh Kumar v. State of Bihar: Citation: (2014) 8 SCC 273 Subject: Safeguards
against unnecessary arrest Provisions considered: Sections 41 and 41A, CrPC**

**Case background**

The case arose from allegations of cruelty and dowry demands against a husband. 
It led the Court to examine routine arrests and the failure to assess whether custody
was actually necessary.

**What the Supreme Court held**

An arrest must not follow automatically merely because an offence is cognizable 
and non-bailable. For offences within Section 41(1)(b), police must assess the statutory
conditions for arrest, including whether it is necessary to prevent further offending,
facilitate proper investigation, prevent interference with evidence or witnesses,
or secure the accused’s presence. Police must record reasons, and magistrates must
scrutinise the justification for detention rather than mechanically authorise it.
The Court also emphasised compliance with the notice-of-appearance procedure.

**Practical**

The power to arrest does not dispense with the duty to justify arrest. The directions
extend beyond matrimonial cases to the relevant category of offences punishable 
with imprisonment up to seven years.

**3. D.K. Basu v. State of West Bengal: Citation: (1997) 1 SCC 416 Subject: Custodial
violence and arrest safeguards Constitutional provisions: Articles 21 and 22**

**Case background**

A letter drawing attention to custodial deaths was treated as a public interest 
proceeding. The Court examined safeguards needed to protect people during arrest
and detention.

**What the Supreme Court held**

The Court prescribed safeguards including identification of arresting officers, 
preparation of an arrest memo, notification of a friend or relative, maintenance
of custody records and medical examination. It also recognised that compensation
in public law may be an appropriate remedy for an established violation of fundamental
rights arising from custodial abuse.

**Practical**

An arrested person retains constitutional protection. Documentation, access to information
and accountability in custody are essential safeguards against abuse.

**4. Satender Kumar Antil v. Central Bureau of Investigation: Citation: (2022) 10
SCC 51 Subject: Bail and unnecessary incarceration Provisions considered: CrPC provisions
governing arrest, summons and bail**

**Case background**

The proceedings addressed recurring difficulties faced by accused persons who had
not been arrested during investigation but encountered demands to surrender and 
seek bail after the charge sheet was filed.

**What the Supreme Court held**

The Court emphasised personal liberty, compliance with arrest safeguards and timely
consideration of bail applications. It organised guidance by categories of offences
and circumstances.

It criticised unnecessary custody and stressed that investigation, appearance before
court and consideration of bail should not operate on an assumption that every accused
must first be jailed.

**Practical**

Filing a charge sheet does not by itself make custody necessary. The applicable 
offence category, conduct of the accused and statutory restrictions remain relevant;
the judgment does not confer automatic bail in every case.

**5. Sharad Birdhichand Sarda v. State of Maharashtra**: **Citation: (1984) 4 SCC
116 Subject: Conviction based on circumstantial evidence**

**Case background**

The prosecution alleged that the accused had murdered his wife by poisoning her.
The case depended on circumstantial evidence. The Supreme Court found the chain 
insufficient and acquitted him.

**What the Supreme Court held**

The Court set out five principles for cases resting on circumstantial evidence:

 1. The circumstances relied upon must be fully established.
 2. The established facts must be consistent only with the accused’s guilt.
 3. The circumstances must be conclusive in nature and tendency.
 4. They must exclude every hypothesis except guilt.
 5. The chain must be complete enough to leave no reasonable ground for a conclusion
    consistent with innocence.

**Practical**

Strong suspicion cannot replace proof. A conviction based solely on circumstances
requires a complete chain establishing guilt beyond reasonable doubt.

**6. Kali Ram v. State of Himachal Pradesh: Citation: (1973) 2 SCC 808 Subject: 
Presumption of innocence and reasonable doubt**

**Case background**

The Court examined a murder conviction involving serious weaknesses in the prosecution
evidence. It gave the accused the benefit of doubt and acquitted him.

**What the Supreme Court held**

The prosecution ordinarily bears the burden of proving guilt beyond reasonable doubt.
If the evidence reasonably supports two views—one pointing to guilt and the other
to innocence—the view favourable to the accused should be adopted. The doubt must
be reasonable and grounded in the evidence; imaginary or speculative doubts do not
require acquittal.

**Practical**

Courts must decide whether guilt has been proved, rather than whether the accused
appears suspicious. Statutory presumptions and reverse-burden provisions require
separate consideration where applicable.

**7. State of Haryana v. Bhajan Lal: Citation: 1992 Supp (1) SCC 335 Subject: Quashing
criminal proceedings Provisions considered: Article 226 of the Constitution and 
Section 482, CrPC**

**Case background**

The litigation concerned a corruption-related FIR against Bhajan Lal and the High
Court’s interference with the investigation. The Supreme Court examined when criminal
proceedings may be quashed at an early stage.

**What the Supreme Court held**

The Court identified illustrative categories in which intervention may be justified.
These include cases where:

 * The allegations, accepted at face value, do not constitute an offence.
 * The allegations are inherently absurd or improbable.
 * An express legal bar prevents the proceedings.
 * The proceedings are manifestly malicious and instituted for an ulterior purpose.

The categories are illustrative, not exhaustive. The power must be exercised sparingly
and with caution.

**Practical**

Quashing can prevent abuse of the criminal process, but it is not ordinarily an 
occasion for the High Court to conduct a trial or resolve contested evidence.

**8. Selvi v. State of Karnataka: Citation: (2010) 7 SCC 263 Subject: Involuntary
scientific interrogation Constitutional provisions: Articles 20(3) and 21**

**Case background**

The Court considered challenges to the involuntary administration of narcoanalysis,
polygraph examinations and Brain Electrical Activation Profile tests during criminal
investigations.

**What the Supreme Court held**

Compulsory administration of these techniques violates constitutional protections
against compelled self-incrimination and unjustified interference with personal 
liberty. Voluntary administration requires safeguards. The test responses themselves
do not become admissible merely because consent was given. The Court distinguished
them from information or material subsequently discovered through voluntarily administered
tests, whose admissibility must satisfy the governing law.

**Practical**

Investigative convenience does not override constitutional rights. Scientific interrogation
techniques cannot be treated as a shortcut to legally admissible proof.

**9. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal: Citation: (2020) 7 
SCC 1 Subject: Admissibility of electronic evidence Provision considered: Section
65B, Indian Evidence Act, 1872**

**Case background**

Although the dispute arose from election proceedings, the Court’s ruling on electronic
evidence has major relevance to criminal trials involving recordings, messages, 
CCTV footage and other digital material.

**What the Supreme Court held**

For computer outputs governed by Section 65B, the prescribed certificate is ordinarily
a condition of admissibility. The Court distinguished such outputs from an original
electronic record properly produced and proved through the original device. It also
explained that courts can assist in obtaining a certificate where it is held by 
a third party; timing and procedural fairness remain important.

**Practical**

Preserve the source device, identify how the record was produced and address certification
early. Admissibility does not, by itself, establish authenticity or prove the allegation.

BSA relevance: Section 63, BSA now governs the corresponding certification framework
for electronic records. Its text and prescribed certificate requirements must be
consulted.

**10. Bachan Singh v. State of Punjab: Citation: (1980) 2 SCC 684 Subject: Death
penalty and individualised sentencing Provisions considered: Section 302, IPC and
Section 354(3), CrPC**

**Case background**

A Constitution Bench considered the constitutional validity of the death penalty
for murder and the framework for choosing between death and life imprisonment.

**What the Supreme Court held**

The Court upheld the constitutional validity of capital punishment while severely
restricting its use. Life imprisonment is the rule and death is the exception. The
death penalty is reserved for the “rarest of rare” cases where the alternative option
is unquestionably foreclosed. Sentencing requires consideration of the circumstances
of both the offence and the offender, including mitigating factors.

**Practical**

The seriousness of a crime alone does not complete the sentencing exercise. A death
sentence requires an individualised assessment and legally sufficient special reasons.

**11. Gurbaksh Singh Sibbia v. State of Punjab: Citation: (1980) 2 SCC 565 Subject:
Anticipatory bail Provision considered: Section 438, CrPC**

**Case background**

The case arose from anticipatory bail applications connected with allegations of
corruption against a former minister and others. A Constitution Bench considered
the scope of the power to grant protection against arrest.

**What the Supreme Court held**

Anticipatory bail is a discretionary remedy that protects personal liberty. Courts
should exercise that discretion according to the facts rather than impose rigid 
restrictions absent from the statute. Relevant considerations include the nature
of the accusation, the applicant’s circumstances, the possibility of fleeing justice
and whether the accusation appears intended to humiliate or injure the applicant
through arrest.

**Practical**

An anticipatory bail application requires an individual assessment. Neither the 
seriousness of an allegation nor an assertion of false implication automatically
determines the result.

**12. Sushila Aggarwal v. State (NCT of Delhi): Citation: (2020) 5 SCC 1 Subject:
Duration of anticipatory bail Provision considered: Section 438, CrPC**

**Case background**

Conflicting decisions had created uncertainty about whether anticipatory bail must
expire after a fixed period or when the accused appears before the trial court.

**What the Supreme Court held**

A Constitution Bench held that anticipatory bail need not ordinarily be limited 
to a fixed period. Depending on the circumstances, its protection can continue until
the conclusion of trial. Courts may impose appropriate conditions or restrict protection
where specific facts justify doing so. Protection can also be cancelled or modified
on legally recognised grounds.

**Practical**

An accused does not automatically lose anticipatory bail merely because a charge
sheet has been filed or trial has begun. The wording of the order and subsequent
conduct remain important.

**13. Sanjay Chandra v. Central Bureau of Investigation: Citation: (2012) 1 SCC 
40 Subject: Bail in economic offences Provision considered: Section 439, CrPC**

**Case background**

The accused sought bail in the prosecution arising from the allocation of 2G spectrum
licences. The Court considered the seriousness of the allegations alongside the 
purpose of pretrial detention and the likely length of proceedings.

**What the Supreme Court held**

The primary object of bail is to secure the accused’s presence at trial. Detention
before conviction should not be used as punishment. The seriousness of an economic
offence is relevant, but courts must also consider the likely sentence, the period
already spent in custody, the prospect of a lengthy trial and risks such as interference
with evidence.

**Practical**

Economic offences require careful scrutiny, but the label “economic offence” does
not by itself justify indefinite pretrial imprisonment.

**14. State of Rajasthan v. Balchand: Citation: (1977) 4 SCC 308 Subject: Bail and
personal liberty**

**Case background**

The Court considered whether the accused should remain at liberty while proceedings
continued following the State’s challenge to an acquittal.

**What the Supreme Court held**

The decision is associated with the principle “bail, not jail.” The Court recognised
that release is ordinarily appropriate unless circumstances indicate risks such 
as absconding, obstructing justice, repeating offences or intimidating witnesses.

**Practical**

Bail decisions should focus on legally relevant risks. This general principle operates
subject to the applicable statute, including special laws containing stricter bail
conditions.

**15. Moti Ram v. State of Madhya Pradesh: Citation: (1978) 4 SCC 47 Subject: Excessive
bail conditions and access to justice**

**Case background**

A poor accused person could not obtain release because of onerous financial and 
surety requirements. The case raised questions about whether bail conditions could
effectively exclude those without money or local connections.

**What the Supreme Court held**

Courts must consider the accused’s financial circumstances when fixing bail conditions.
Unreasonable bond amounts and unjustified insistence on local sureties can frustrate
an order granting release. The judgment recognised the importance of release on 
personal bonds in appropriate cases.

**Practical**

A bail order should make release realistically possible. Financial conditions must
not turn poverty into a reason for continued detention.

**16. M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence:
Citation: (2021) 2 SCC 485 Subject: Default bail Provision considered: Section 167(
2), CrPC**

**Case background**

The accused applied for default bail after the applicable investigation period had
expired. The prosecution filed its complaint later, creating a dispute about whether
that filing defeated the application.

**What the Supreme Court held**

Where an accused properly invokes the right to default bail after the statutory 
period expires and is prepared to furnish bail, a later charge sheet or complaint
does not extinguish that right. If the prosecution files its report before the accused
invokes the right, the position differs.

**Practical**

Timing is critical. Lawyers should calculate the applicable deadline, check whether
any extension was lawfully granted and record when the default bail application 
was filed.BNSS relevance: The corresponding remand and default bail framework appears
in Section 187, BNSS and must be read with any applicable special law.

**17. Union of India v. K.A. Najeeb: Citation: (2021) 3 SCC 713 Subject: Prolonged
incarceration and bail under the UAPA Provisions considered: Section 43D(5), UAPA
and Article 21**

**Case background**

The accused had spent several years in custody in a prosecution under the Unlawful
Activities (Prevention) Act, with little prospect of the trial concluding soon.

**What the Supreme Court held**

Statutory restrictions on bail do not eliminate the power of constitutional courts
to grant relief where prolonged incarceration and delay in trial violate fundamental
rights. The Court considered the length of detention, the likely duration of trial
and the circumstances of the prosecution.

**Practical**

Even under stringent special legislation, substantial trial delay can justify constitutional
intervention. The judgment does not dispense with statutory bail restrictions in
ordinary cases.

**18. Hussainara Khatoon (I) v. Home Secretary, State of Bihar: Citation: (1980)
1 SCC 81 Subject: Speedy trial and undertrial detention Constitutional provision:
Article 21**

**Case background**

Public interest proceedings exposed the plight of undertrial prisoners in Bihar,
including people detained for periods exceeding the punishment they could have received
on conviction.

**What the Supreme Court held**

A reasonably speedy trial is an essential part of the right to life and personal
liberty under Article 21. The proceedings highlighted the injustice caused by prolonged
detention, poverty and inability to secure legal assistance.

**Practical**

Pretrial detention cannot continue without meaningful attention to the progress 
of the case. Courts must examine delay and the circumstances of prisoners who remain
in custody because they lack resources.

**19. P. Ramachandra Rao v. State of Karnataka: Citation: (2002) 4 SCC 578 Subject:
Speedy trial and judicial time limits Constitutional provision: Article 21**

**Case background**

A seven-judge Bench examined earlier decisions prescribing fixed periods after which
certain criminal proceedings would have to end.

**What the Supreme Court held**

The right to a speedy trial does not translate into a single, universally applicable
deadline for all criminal cases. Courts must consider factors such as the length
and reasons for delay, the nature of the prosecution, the accused’s conduct and 
the prejudice caused. The Court rejected rigid judicially created cut-offs requiring
automatic termination of proceedings.

**Practical**

Delay can support bail, directions to expedite trial or other appropriate relief.
It does not automatically produce an acquittal once a fixed number of years has 
passed.

**20. Nandini Satpathy v. P.L. Dani: Citation: (1978) 2 SCC 424 Subject: Right against
self-incrimination during questioning Provisions considered: Article 20(3) and Section
161(2), CrPC**

**Case background**

A former Chief Minister challenged proceedings arising from her refusal to answer
questions during a police investigation.

**What the Supreme Court held**

Protection against compelled self-incrimination extends to the investigative stage.
A person cannot be compelled to answer questions whose answers would tend to expose
them to a criminal charge. The judgment also addressed coercive interrogation and
the importance of access to legal assistance.

**Practical**

Police questioning must respect the privilege against self-incrimination. The privilege
does not amount to an unrestricted right to refuse every question irrespective of
its nature.

**21. Tofan Singh v. State of Tamil Nadu: Citation: (2021) 4 SCC 1 Subject: Confessions
in NDPS prosecutions Provisions considered: Sections 53 and 67, NDPS Act; Section
25, Indian Evidence Act**

**Case background**

The Court considered whether officers exercising investigative powers under the 
NDPS Act were police officers for the purpose of the statutory prohibition on police
confessions.

**What the Supreme Court held**

By a majority, the Court held that officers invested with powers under Section 53
of the NDPS Act are police officers within the meaning of Section 25 of the Evidence
Act. It also held that a statement recorded under Section 67 of the NDPS Act cannot
be used as a confessional statement in the trial of an offence under that Act.

**Practical**

An NDPS prosecution cannot treat a Section 67 confession as admissible proof of 
guilt. Recovery evidence, forensic material and other independently admissible evidence
must be assessed on their own merits.

**22. State of Punjab v. Baldev Singh: Citation: (1999) 6 SCC 172 Subject: Safeguards
during personal searches under the NDPS Act Provision considered: Section 50, NDPS
Act**

**Case background**

A Constitution Bench considered the consequences of searching a person for contraband
without informing them of the statutory safeguard concerning the presence of a gazetted
officer or magistrate.

**What the Supreme Court held**

When Section 50 applies, the person must be informed of the right to be searched
before a gazetted officer or magistrate. Failure to comply can render the recovery
from the personal search suspect and undermine a conviction resting on that recovery.
The Court did not hold that every procedural defect automatically nullifies the 
entire trial.

**Practical**

First identify whether the search was a personal search attracting Section 50. Searches
of premises, vehicles or bags raise distinct questions; the safeguard should not
be mechanically applied to every seizure.

**23. Vadivelu Thevar v. State of Madras: Citation: AIR 1957 SC 614 Subject: Conviction
on the testimony of a single witness Provision considered: Section 134, Indian Evidence
Act**

**Case background**

The Court examined whether a conviction could be sustained on the evidence of a 
single witness without additional eyewitness corroboration.

**What the Supreme Court held**

Evidence is assessed by its quality rather than the number of witnesses. A conviction
may rest on the testimony of one wholly reliable witness. Where a witness is neither
wholly reliable nor wholly unreliable, the court ordinarily looks for corroboration
in material particulars.

**Practical**

There is no general requirement to produce multiple eyewitnesses. A single credible
witness may suffice, while several unreliable witnesses may fail to establish guilt.

**24. Khushal Rao v. State of Bombay: Citation: AIR 1958 SC 22 Subject: Dying declarations
Provision considered: Section 32(1), Indian Evidence Act**

**Case background**

The Court considered the evidentiary value of statements made by a deceased person
concerning the circumstances of the fatal attack.

**What the Supreme Court held**

There is no absolute rule that a dying declaration requires corroboration before
it can support a conviction. A truthful and voluntary dying declaration can be sufficient
by itself. Courts must examine the circumstances in which it was made, the declarant’s
opportunity to observe and identify the assailant, and the reliability of the recording.

**Practical**

A dying declaration is neither automatically conclusive nor inherently weak. Its
reliability must be established through careful scrutiny.

**25. Laxman v. State of Maharashtra: Citation: (2002) 6 SCC 710 Subject: Medical
certification of dying declarations**

**Case background**

A Constitution Bench addressed whether a dying declaration becomes unacceptable 
merely because a doctor did not formally certify the declarant’s fitness to make
the statement.

**What the Supreme Court held**

A medical certificate is a rule of caution, rather than an indispensable legal requirement
in every case. The decisive issue is whether the declarant was mentally fit to make
a voluntary and truthful statement. The person recording it must be satisfied about
that fitness, and the court must evaluate the supporting evidence.

**Practical**

The absence of a medical endorsement does not automatically exclude a dying declaration.
It makes careful examination of the declarant’s condition and the recording process
especially important.

**26. State of U.P. v. Krishna Gopal: Citation: (1988) 4 SCC 302 Subject: Medical
evidence, eyewitness testimony and reasonable doubt**

**Case background**

The Court examined a murder prosecution involving arguments about discrepancies 
between eyewitness accounts and medical evidence.

**What the Supreme Court held**

Credible eyewitness testimony is not necessarily displaced by medical opinion suggesting
another possibility. However, a fundamental medical contradiction that makes the
eyewitness account impossible can materially undermine the prosecution. The Court
also explained that reasonable doubt must arise from reason and evidence, rather
than speculation.

**Practical**

Courts distinguish minor inconsistencies from contradictions affecting the core 
prosecution account. Medical evidence and eyewitness testimony must be evaluated
together.

**27. State of Punjab v. Gurmit Singh: Citation: (1996) 2 SCC 384 Subject: Evaluation
of evidence in rape prosecutions**

**Case background**

The Supreme Court considered an acquittal in a rape prosecution and the approach
taken to the complainant’s testimony, the delay in reporting and the absence of 
corroboration.

**What the Supreme Court held**

The testimony of a complainant in a sexual offence case does not require corroboration
as an inflexible rule of law. Courts must assess the evidence sensitively and avoid
assumptions about how a victim should behave. Delay in reporting must be considered
in its social and factual context.

**Practical**

A conviction may rest on credible testimony without independent corroboration. The
prosecution must still establish guilt beyond reasonable doubt through a fair evaluation
of the evidence.

**28. Chandrappa v. State of Karnataka: Citation: (2007) 4 SCC 415 Subject: Appeals
against acquittal**

**Case background**

The Court examined the principles governing an appellate court’s power to reverse
an acquittal.

**What the Supreme Court held**

An appellate court has full power to review and reassess the evidence in an appeal
against acquittal. However, an acquittal reinforces the presumption of innocence.
Where two reasonable conclusions are possible on the evidence, the appellate court
should not disturb the trial court’s finding merely because it prefers the other
view.

**Practical**

An acquittal can be reversed where legally justified, including where the trial 
court’s reasoning is perverse or materially erroneous. Mere disagreement with a 
reasonably available view is insufficient.

**29. Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra: Citation: (2021)
19 SCC 401 Subject: Interference with investigation and interim protection Provisions
considered: Section 482, CrPC and Article 226**

**Case background**

The Supreme Court examined a High Court order directing that no coercive measures
be taken against the accused while a petition seeking to quash an FIR remained pending.

**What the Supreme Court held**

Courts should ordinarily allow police to investigate cognizable offences. At the
quashing stage, they should not routinely evaluate the reliability of disputed allegations
or conduct a premature assessment of evidence. Orders staying investigation or directing“
no coercive steps” require exceptional justification and appropriate reasons. Such
protection should not be granted mechanically.

**Practical**

Filing a quashing petition does not automatically entitle an accused to protection
from arrest or investigation. Quashing relief and bail relief involve distinct legal
considerations.

**30. Jacob Mathew v. State of Punjab: Citation: (2005) 6 SCC 1 Subject: Criminal
liability for medical negligence Provision considered: Section 304A, IPC**

**Case background**

A doctor faced criminal proceedings following a patient’s death allegedly linked
to failures in medical treatment and oxygen support.

**What the Supreme Court held**

Criminal negligence requires a substantially higher degree of negligence than that
sufficient for civil liability. In the medical context, the negligence must be gross
or of a very high degree. An unsuccessful treatment, an accident or a mere error
of judgment does not automatically establish criminal liability. The Court also 
prescribed safeguards concerning competent medical opinion and cautioned against
routine arrest of doctors.

**Practical**

A poor medical outcome alone is insufficient to establish a criminal offence. The
prosecution must demonstrate the required degree of negligence through appropriate
evidence.BNS relevance: Section 106, BNS contains the provision on causing death
by negligence, including specific treatment of a registered medical practitioner
performing a medical procedure. Its wording must be considered separately from the
earlier IPC provision.

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