ABSENCE OF RECOVERY OF WEAPON OF ASSAULT NOT ALWAYS FATAL FOR PROSECUTION CASE

Supreme Court in case of  Prabhas Kumar vs State of Bihar, Crl Appeal No.935/2011 decided on 12-09-2019 observed that non recovery of weapon of assault or bullet fired is not fatal for the prosecution case if eye witness account is found trustworthy.

When investigation can be monitored by the Court?

As held by the Supreme Court in a catena of judgments that there is a well-defined and demarcated function in the field of investigation and its subsequent adjudication. It is not the function of the court to monitor the investigation process so long as the investigation does not violate any provision of law. It must be left to the discretion of the investigating agency to decide the course of investigation. If the court is to interfere in each and every stage of the investigation and the interrogation of the accused, it would affect the normal course of investigation. It must be left to the investigating agency to proceed in its own manner in interrogation of the accused, nature of questions put to him and the manner of interrogation of the accused.

 It is one thing to say that if the power of investigation has been exercised by an investigating officer mala fide or non-compliance of the provisions of the Criminal Procedure Code in the conduct of the investigation, it is open to the court to quash the proceedings where there is a clear case of abuse of power. ( P Chidambaram vs DOE, Criminal Appeal No. 1940/2019 decided on 05/09/2019, SC)

PRE ARREST TRANSIT BAIL

Transit Bail is a bail granted to a person who is arrested at a place which is outside the jurisdiction of Court where offence is committed and granted by the Court where the arrested person is produced or applied for bail though the offence is not committed within the jurisdiction of that Court. Section 79, 80 and section 81of Cr.P.C. provide protection in case of arrest of the accused on execution of warrant outside local jurisdiction of the Court which issued it. Section 80 provides that when a person is arrested outside the jurisdiction on execution of warrant, he has to be produced before the nearest Magistrate or District Superintendent of Police or Commissioner of Police. Then Section 81 provides as to how the person so arrested has to be sent in custody and also provides that in case offence is bailable and accused is ready to furnish surety, he can be released, irrespective of jurisdiction.

In view of Sections 79 to 81 and Section 167(2) Cr.P.C, transit bail can be granted even by the Court not having jurisdiction i.e. within whose jurisdiction occurrence has not taken place.

In view of Sections 167, 79, 80 and 81 Cr.P.C now the question as to whether transit bail in anticipation of arrest is permissible irrespective of jurisdiction linked with place of occurrence.

High Court after discussing the various case laws on the subject held that power to be exercised under Sections 438 and 482 Cr.P.C rest with the High Court or Court of Sessions within whose jurisdiction occurrence or part of occurrence has taken place. However, for grant of transitory pre-arrest bail regarding non-bailable offences in the deserving cases, power of the High Court or Court of Sessions within whose jurisdiction, person resides or place where he apprehends arrest, is permissible as such not barred. Therefore, accused can invoke jurisdiction of the High Court or Court of Sessions within whose jurisdiction he resides or place where he apprehends arrest however, grant of pre-arrest transit bail can't be a matter of routine. Host of circumstance, including heinousness of the crime have to be taken care of.

The court granted pre-arrest transitory bail to the accused to enable the accused to file bail application before jurisdictional court. (M B Marak vs State of Meghalaya, A.B No 22/2018 decided on 31-10-2018)

NO DEEMED CONFIRMATION IN THE SERVICES IN ABSENCE OF SPECIFIC RULES

Unless and until there are specific provision in the respective rules  there will not be any deemed confirmation in the services  after probation period is over. An employee is confirmed in the services only after receiving the confirmation order. ( D D  Memorial Secondary school vs  J A J Vasu Sena , Supreme Court on 21-8-19 )

Power of Magistrate to order the accused to give voice sample

 The Honourable Supreme  Court in case of Ritesh Sinha vs State of U.P. Criminal Appeal No..2003/ 2012 decided on 02/08/19 held that  “until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India” S.C. while upholding the constitution bench decision in case  of Kathi Kalu Aughar held that ordering the accused to give his voice sample is not voilative of article 20(3) of the Indian Constitution. Now the legal position is settled that till the law is made by the parliament Judicial Magistrate has power to order accused to give his voice sample.

procedure of filling Anticipatory Bail Application in U.P.

Recently the U P Government has revived the provision for anticipatory bail in the  State . The Allahabad High Court has issued notice containing the procedure for filling anticipatory bail application.

NOTICE

Learned Counsels are requested to refer the Code of Criminal Procedure (Uttar Pradesh Amendment) Act 2018 (UP Act 04/2019) UP Government Notification no. 1058(2)/LXIX-V-1-19-1(KA)-20-2018 dated 06-06-2019 for grant of Anticipatory Bail under section 438 of Cr.P.C. to person apprehending arrest. In the above matter, I have been directed to notify following direction of the Hon'ble Court for :

(1) The application must bear Court fee of Rs.5/- as prescribed for application.

(2) The application must be supported by an affidavit of the person apprehending arrest.

(3) The Second paragraph of the affidavit filed in support of the application must contain the reason to believe that deponent apprehending arrest on accusation of a non bailable offence with particulars i.e. Case Crime Number, Police Station, and Section(s) under which arrest is apprehended, if the same is known to the deponent.

(4) The third paragraph of the affidavit filed in support of the application must contain that apprehended accusation does not fall under the offences provided under sub section (6) of the section 438 CrPC.

(5) The fourth paragraph of the affidavit filed in support of the application must contain that the deponent has not filed any previous application under section 438 CrPC before this Hon'ble Court either at Allahabad or Lucknow or before any other High Court in India, pertaining to the same subject matter.

(6) The fifth paragraph of the affidavit filed in support of the application must contain information as to whether any application under section 438 CrPC has been moved before the Court of Sessions having Jurisdiction and the status/result of that application and must be substantiated with relevant documents.

Sd/- O.S.D. (J) (Criminal)

01.07.2019

Registration of FIR under section 482 Cr.P.C. on the orders of High Court.

The Madras High Court  in case of Sugesan Transport Pvt Limited vs  Assistant Commissioner of Police, Crl O.P. 19197/2016 dated 27/9/2016 have issued following guidelines to be observed by the Magistrate and Police in case of disposing or dealing with the applications filed under section 156(3) Cr.P.C.

i A petition under Section 482, Cr.P.C. for a direction to register an FIR on the complaint of the petitioner circumventing the time table prescribed by the Supreme Court in Lalita Kumari-IV and V is not maintainable.

ii This Court directs all the Station House Officers in the State of Tamil Nadu and Union Territory of Puducherry to receive any complaint relating to the commission of cognizable offence by a common man and if the Station House Officer wants to conduct a preliminary enquiry, he shall immediately issue a CSR receipt (in case of Tamil Nadu) or issue a separate receipt (in case of Union Territory of Puducherry) to the complainant and after making the necessary entries in the Station General Diary, as directed by the Supreme Court in Lalita Kumari-IV and V, conduct preliminary enquiry.

In Lalita Kumari-IV, the Supreme Court has directed that after conducting preliminary enquiry, if the police come to the conclusion that no FIR need be registered, a duty is cast upon the police to furnish a copy of the closure report to the complainant. After getting the closure report, it is open to the complainant to file a petition under Section 156(3) Cr.P.C. or private complaint under Section 190 read with Section 200 Cr.P.C. disclosing the facts and persuading the Magistrate to take cognizance of the offence. Such a petition/private complaint should disclose the closure report of the police. After taking cognizance of the offence, the Magistrate can also order police investigation under Section 202, Cr.P.C. to a limited extent. The closure report cannot be subject to judicial review under Section 482, Cr.P.C.

iii If the Station House Officer refuses to receive the complaint, the complainant shall send the complaint together with a covering letter to the Superintendent of Police/Deputy Commissioner of Police by Registered Post with Acknowledgment Due under Section 154(3), Cr.P.C.

iv If there is inaction on the part of the Station House Officer and the Superintendent of Police, the complainant is at liberty to move the jurisdictional Magistrate under Section 156(3) Cr.P.C.

v The complaint shall be given to the Magistrate either in Tamil or in English in the form of a representation in first person addressed directly to the Magistrate. vi The complaint shall be accompanied by an affidavit as mandated by the Supreme Court in Priyanka Srivastava Case.

vii On receipt of the complaint, the Magistrate shall pass orders thereon within 15 days, either issuing directions or dismissing the petition.

viii If the Magistrate decides to order police investigation, he should pass a judicial order to that effect in the record sheet.

ix A copy of the order, together with original complaint and copy of the affidavit, shall be forwarded by the Magistrate to the jurisdictional police officer for investigation.

x If the police officer does not register FIR within a period of one week from the date of receipt of the Magistrate's order, the Magistrate shall initiate prosecution against him under Section 21 read with Section 44 of the District Police Act before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, as the case may be.

xi If no FIR is registered by the police within one week from the date of receipt of a copy of the order of the Magistrate under Section 156(3), Cr.P.C., the complainant can approach this Court under Section 482, Cr.P.C.

xii If the police fail to complete the preliminary enquiry within six weeks as mandated by the Supreme Court in Lalita Kumari-V, the complainant can approach this Court under Article 144 read with Section 482, Cr.P.C.

xiii The aforesaid petition under Article 144 read with Section 482, Cr.P.C. must be accompanied by an affidavit sworn to by the complainant with satisfactory materials to show that the police have not completed the preliminary enquiry within six weeks, as mandated by the Supreme Court in Lalita Kumari-V. In such a petition, this Court will not read the complaint, but, issue directions to the police to register an FIR on the complaint for the very failure of the police to follow the mandates of Lalita Kumari-IV and V. The Registry of this Court shall not number the petition filed under Section 482, Cr.P.C. seeking a direction to register an FIR unless it is accompanied by an affidavit containing the above details.

xiv In suitable cases, this Court shall also direct disciplinary action to be taken against the police officer for the violation of the mandates of Lalita Kumari - IV and V.

xv If the police officer fails to register the FIR pursuant to the directions of this Court, he will be liable for contempt of Court, besides facing disciplinary action.

xvi The aggrieved party can also approach the local Legal Services Authority and the Authority shall take immediate steps to ensure that an FIR is registered or CSR receipt issued to the complainant.

xvii Every police station shall have a board giving the name and telephone number of the local Legal Services Authority