RIGHT OF ACCUSED TO GET CERTIFIED COPY OF STATEMENT OF VICTIM OF SEXUAL ASSAULT RECORDED UNDER SECTION 164 Cr.P.C.

Relying upon the decision given in the case of State of Karnataka vs Shivanna @ Tarkari Shivanna 2014 (8) SCC 913 Supreme Court observed that copy of statement of 164 Cr.P.C. in cases of sexual assault cannot be given to the accused till the submission of charge sheet  ( Miss A vs State of U.P. SLP 40475 SC .

. Anticipatory bail is not to be granted as a matter of rule

Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. 

The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. 

Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. 

( P Chidambaram vs DOE, Criminal Appeal No. 1940/2019 decided on 05/09/2019)

IMPACT OF SUPREME COURT JUDGEMENT ON POWER OF MAGISTRATE TO ORDER FURTHER INVESTIGATION AT POST COGNIZANCE STAGE

unsettling the settled position of Law that the Magistrate has no power to order further investigation after taking cognizance on police report, a three Judges bench of Supreme Court in case of Vinubhai Haribhai Malviya and others vs State of Gujarat and Another, Crl. Appeal 478-479 of 2017 decided on 16-10-2019 observed that "

that under section 156 (3) Cr.P.C. the magistrate empowered under section 190 Cr.P.C. may order an investigation if facts discloses commission of cognizable offence . The word investigation used in section 156 (3)Cr.P.C. and as defined in section 2 (h) also include the investigation mentioned in section 173(8) Cr.P.C.”

The Court concluded that Magistrate can use the power of section 156(3) read with 173(8) for ordering further investigation at post cognizance stage and  the settled position in case of DL Readdy & Ors vs Narayana Reddy and Others is overruled.

Now  the above decision will affect the criminal justice system in variety of ways.

(1) the informant as well as the accused can file an application for further investigation after submission of charge sheet which will cause delay in the trial and it will also increase the work pressure on the police.

( 2) In case of Final report, informant will pray to the court for further investigation and if ordered and same resulted in the charge sheet,the accused will file an application for further investigation after cognizance is taken by the magistrate.

And the investigation has become an unending process. 

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.