Is it mandatory for police to register FIR when they receive order of Magistrate under section 156 (3) Cr.P.C or can go for Preliminary Enquiry

Answering the above question the Calcutta High Court observed “ that in those cases where order for registration of FIR is given by the court the police officer has no any option other than to register the FIR and preliminary enquiry as mentioned in case of Lalita Kumari cannot be done and not registering FIR in cases of sexual offences as mentioned in section 154  Cr.P.C. involves penal action too”  This is the statutory duty of police under section 23 of the Police Act to follow the orders of  the Court.

The Court observed:- In order to ensure that such breaches of statutory duty do not occur in future and the constitutional obligation to ‘uphold rule of law’ by promptly registering FIRs pursuant to directions given by learned Magistrates under Section 156(3) of the Code of Criminal Procedure are effectively enforced, we direct as follows:-

1) order under Section 156(3) of the Code of Criminal Procedure passed by the learned Magistrate directing registration of FIR shall be positively dispatched from the court concerned to the appropriate police station on the day on which such order is passed and FIR shall be drawn up at the police station and not later than 24 hours from the date of receipt of such order;

2) Failure to do so shall attract disciplinary proceedings and also penal consequences under Section 166B of the Indian Penal Code particularly in sex offences;

3) Principal Secretary (Home), Government of West Bengal and Director General of Police, West Bengal shall take immediate steps to incorporate the aforesaid directions in the police regulations so that the discharge of official duties of police officers in the State of West Bengal are accordingly, regulated and the fundamental right to access to justice of victims of crime is not rendered illusory by gross dereliction of official duty by law enforcement agencies as in the present case.

Report with regard to compliance of the aforesaid directions shall be filed by the Principal Secretary (Home), Government of West Bengal and Director General of Police, West Bengal on the next date of hearing. Department is directed to communicate a copy of this order to the Principal Secretary (Home), Government of West Bengal and Director General of Police, West Bengal for necessary compliance. ( Abdul Khalik vs State of W.B., Cri Mis 4792/2019 decided on 17/07/2019)

Whether a witness who turned out to be an accused after evidence during trial can be summoned under section 319 Cr.P.C. to face the trial?

Answer is no, by virtue of proviso to section 132 Cr.P.C. such a person is protected from any kind of prosecution on his giving answers which incriminate him.  Supreme Court while deciding the appeal also observed that in the present case the person is examined without granting of pardon, the end of  justice would be met by granting the witness pardon by the session court under section 307 Cr.P.C.(R. Dineshkumar @ Deena versus State Rep. by Inspector of Police & Others Cri. Appeal. 454 OF 2015 decided on 16-03-2015)

POWER OF POLICE OFFICER TO ATTACH IMMOVABLE PROPERTY UNDER SECTION 102 Cr.P.C.

 Supreme Court in case of  Nevada Properties Private Limited Through Its Directors vs. State of Maharashtra,  Cri Appeal Number 1122/2011 decided on 25/09/2019  held that  the word “Any property” used in section 102 Cr.P.C. does not include immovable property hence police has no power to attach the immovable property under section 102 Cr.P.C. However Supreme Court said that the document of properties can be seized under section 102 Cr.P.C. as it is distinct and different from seizure of immovable property.

procedure of arrest in cases where cognizable and non bailable offence is added in the investigation while accused is on bail in same case

Supreme Court in case of Pradeep Ram vs State of Jharkhand ,Criminal Appeal No. 816-817 of 2019 decided on 01-07-2019 while discussing the above issue observed that “in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:-

(i) The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested.

(ii) The investigating agency can seek order from the court under Section 437(5) or 439(2) of Cr.P.C. for arrest of the accused and his custody.

(iii) The Court, in exercise of power under Section 437(5) or 439(2) of Cr.P.C., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail.

(iv) In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail.

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)