1- NON COMPLIANCE OF SECTION 41 AND 41 A CR.P.C - SUPREME COURT JUDGMENT

 NON COMPLIANCE OF SECTION 41 AND 41 A CR.P.C - Courts should come heavily on police officer making arrest in contravention of the provisions of section 41 and 41 Cr.P.C.

Code of Criminal Procedure, 1973; Section 41 - Scope - Even for a cognizable offense, an arrest is not mandatory as can be seen from the mandate of this provision

Code of Criminal Procedure, 1973; Sections 41, 41A - The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail - The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 - Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action - State Governments and the Union Territories to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code.

We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (Supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code.

Arrested person is entitled for bail ff the provisions of 41 and 41 A Cr.P.C. is not followed.

No need of forwarding the accused in custody u/s 170 . police report can be submitted to the court without forwarding the accused.

SATENDER KUMAR ANTIL versus CENTRAL BUREAU OF INVESTIGATION & ANR.

MISCELLANEOUS APPLICATION NO.1849 OF 2021 IN SPECIAL LEAVE PETITION (CRL.) NO.5191 OF 2021 decided on 11/7/22 Supreme Court

Requirement of certificate under section 65 B of the Indian Evidence Act 1872.

 

Referring to the decision of Supreme Court in case of Arjun Panditrao khotkar  vs Kailash Kushanrao Gorantyal( 2020) 7 SCC 1 court further reiterated that “ certificate under section 65B is a condition precedent to the admissibility of electronic evidence as correctly held in Anvar P V vs P K Basher & ors ( 2014) 10 SCC 473and overruled the law laid down in case of  Shafi Mohammad vs  State of Himachal Pradesh (2018) 2SCC 801. ( Ravinder Singh vs State of Punjab 2022 (2)( Crimes) 2 43 SC)

FIRs not to be registered under section 124 A IPC till the time Law is being re-examined:- Supreme Court

 

While examining section 124 A of the IPC a three Judges Bench of Hon’ble Supreme Court stayed the operation of section 124 A IPC and issued following directions: -

Therefore, we expect that, till the re-examination of the provision is complete, it will be appropriate not to continue the usage of the aforesaid provision of law by the Governments.

 In view of the clear stand taken by the Union of India, we deem it appropriate to pass the following order in the interest of justice:

 a. The interim stay granted in W.P.(Crl.)No.217/2021 along with W.P.(Crl.)No.216/2021 vide order dated 31.05.2021 shall continue to operate till further orders.

 b. We hope and expect that the State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration.

c. If any fresh case is registered under Section 124A of IPC, the affected parties are at liberty to approach the concerned Courts for appropriate relief. The Courts are requested to examine the reliefs sought, taking into account the present order passed as well as the clear stand taken by the Union of India.

 d. All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of IPC be kept in abeyance. Adjudication with respect to other Sections, if any, could proceed if the Courts are of the opinion that 5 no prejudice would be caused to the accused.

e. In addition to the above, the Union of India shall be at liberty to issue the Directive as proposed and placed before us, to the State Governments/Union Territories to prevent any misuse of Section 124A of IPC.

f. The above directions may continue till further orders are passed.

Reference: - WRIT PETITION(C) No.682 OF 2021 S.G. VOMBATKERE … PETITIONER Versus UNION OF INDIA … RESPONDENT order dated 11/05/22 Supreme Court

Standard Operating Procedure (SOP) on Collection & Processing of Scientific/Forensic Evidences in Case of Sexual Assault on Women

 The National Human Right Commission has laid down following Standard Operating Procedure to be observed in collection and processing of forensic evidence in cases of sexual assault on women.

A. Victim Care

 1. Identity of the SAS must be kept confidential at every step. (Sec 228A IPG; Sec 23, 24(5), 33(7) POCSO Act; SC Judgement Nipun Saxena Vs Union of India 2018)

2. The priority should be on treating life-threatening injuries of the SAS & then collecting the forensic evidences.

 3. The examination of SAS should be done in complete privacy and security. Consent (informed, verbal and written consent) from the SAS is must to start the forensic examination. In case of minors, elderly persons, mentally ill and intoxicated persons, consent of a person competent to give such consent on behalf of the SAS should be taken. (Sec 164A CrPC; Sec 27 POCSO Act; Guidelines & Protocols by M o Health & Family Welfare on Medico-legal care for survivors/victims of sexual violence).

B. Promptness in Examination

1. The SAS should be examined promptly/at the earliest possible. The collection of forensic evidence can take upto few hours even by a trained professional, depending upon the case as every case requires requisite 'due diligence' and 'humane approach'. As the time passes between time of assault and examination of SAS, the quality of forensic evidences will deteriorate. The optimal time for 'forensic DNA evidence' collection, is upto 72 hours (in no case beyond 96 hours) of the assault. However, 'forensic DNA evidence' can still be collected upto 7 days due to advancements in DNA technology.

2. The efficacy of sample collection depends on history of nature of assault, time elapsed between the assault and the examination, and also on post-assault activities. Therefore, date and time of examination and collection of all the samples must be clearly mentioned In the report.

C. Collection of Samples

1. Sexual Assault Evidence Collection (SAEC) Kit, apart from the forensic labs, must also be made available at all hospitals (both Private and Government) and police stations where the SAS approaches first. (Provision for SAEC kits &necessary directions are given to all States vide MHA's letter dated 17/1/2019 &5/10/2020).

2. A thorough, detailed and proper history involving symptoms since the assault, details of the assault, number of assailants, specific threats, type of penetration, non-genital acts, recent genital procedures, loss of consciousness, amnesia and all activities (like taking bath, changing clothes and douching) after the assault should be mentioned in the report. Detailed history about change of clothing/bathing/washing private parts is essential to be documented.

3.Clothes of the survivor worn at the time of assault should be enquired into. If the SAS is wearing the same clothes, these must be collected, preserved and sealed. If the clothes have been changed, the lO should ensure to collect the clothes which SAS was wearing at the time of assault and preserve SAS should be asked to stand on a large sheet of white paper and then 'undress'. This will aid in collection of any foreign material which might have been left from the site of assault or from the accused. This sheet of paper should be folded very carefully and preserved in a bag to be sent to the FSL. Describe each piece of clothing separately and label each of them properly.

4.Presence of stains or tears should be noted. Each piece of clothing should be packed in a separate bag, sealed and labelled. It should also be ensured that the clothes are air-dried before storing them in bags. The clothes need to be collected in paper bags and not in polythene bags etc.

5. Examine the full body for injuries, lesions, secretions etc. and document them with photos if possible (confidentiality of SAS must be maintained).

6.If bite marks are present on SAS, then swab the area twice and preserve them. While describing the stains on the body, mention the type of stains, site, size, colour, number of swabs collected from each site.

7. Collect loose scalp and pubic hair by combing the SAS. Intact scalp and pubic hair should also be collected from the SAS so that it can be compared with the hair of either SAS or the perpetrator. Hair samples should be preserved in the catchment paper to be folded and sealed.

 8. Nail clippings and scrapings must be taken from both the hands of SAS and packed separately.

9. Oral swabs should be taken from the posterior parts of the buccal cavity, behind the last molars of SAS for detection of semen /spermatozoa. The same should be air dried and separately packed.

 D. Collection of Blood and Urine samples

1. Collect the blood sample of SAS for testing of HIV, VDRL, HBsAg status and also to compare it with any other blood stains collected during the proceedings.

2. Collect the blood and urine samples for detection of drugs and alcohol to determine what drugs the SAS used or consumed or alleged to have been forced to consume. 'Collect venous blood' with a sterile syringe and needle and transfer to 3 sterile vials/vacutainers. Itshould be distributed in 1®' plain vial for blood grouping and drug estimation, 2"*^ vial for alcohol estimation in Sodium fluoride vial and 3"^ EDTA vial for DNA analysis. These samples must be refrigerated until handed over to next in chain of custody. Use a 'sterile container' to collect minimum 100 ml of urine or as maximum as possible. Urine pregnancy test should be done and the result should be incorporated in the report.

E. Genital and Anal evidence

1. Collect matted portion of the pubic hair of SAS by cutting from the base, air-dry and seal it in an envelope.

2. Two swabs each should be taken from the vulva, vagina and anal opening. Two slides for each swab should be made, air dried and packed.

3. Two vaginal smears should be prepared on the glass slides, air-dried and sent for seminal fluid/ spermatozoa examination.

4. Vaginal washing should be collected using a sterilised syringe and a small sterilised rubber catheter. 2-3 ml of saline should be instilled in the vagina and fluid should be aspirated. Fluid filled syringe should be sent to the FSL after putting a knot over the rubber catheter.

F. Handing over samples to FSL

1. For handing over the samples, a requisition letter should be addressed to the concerned FSL stating what all samples are being sent and what each sample needs to be tested for.

2. This requisition letter must be signed by the examining doctor and the police personnel to whom the sample has been handed over shall also sign the letter.

3. Requisition letter should be duly-checked to ensure that the numbering of individual packets is in accordance with the numbering on the requisition form.

 G. General

1.It is very important to air dry all the samples before sealing them as this is the only way to prevent its degradation.

2. The samples should also be labelled properly.

3. The swab sticks used for collection of samples should be moistened with distilled water.

4. Ensure a chain of custody of various specimens.

5. Keep a record of all specimens in a register.

6. Pack all specimens in a dry paper bag, seal it and keep them in a refrigerator until handed over to IO.

It is envisaged that this Standard Operating Procedure wtien implemented in letter & spirit, will surely help to improve oursystem ofmedicolegal investigation by way of better collection and preservation of various evidences in cases of sexual assault on women.

NDPS:- TRIAL WILL NOT BE VITIATED ON THE GROUND THAT COMPLAINANT AND INVESTIGATING OFFICER IS SAME- CONSTITUTIONAL BENCH JUDGMENT OF SUPREME COURT

The five judges  constitutional bench of Supreme Court  in case of Mukesh Singh vs State ( NCB Delhi) decided on 31/8/2020 settled the issue by overruling the judgment of court in case of Mohan Lal vs State of Punjab in 2018 where it said that trial of NDPS case stand vitiated if complainant and Investigating officer is the same person.

Supreme court observed:-

—I. THAT THE OBSERVATIONS OF THIS COURT IN THE CASES OF BHAGWAN SINGH V. STATE OF RAJASTHAN (1976) 1 SCC 15; MEGHA SINGH V. STATE OF HARYANA (1996) 11 SCC 709; AND STATE BY INSPECTOR OF POLICE, NIB, TAMIL NADU V. RAJANGAM (2010) 15 SCC 369

—    AND THE ACQUITTAL OF THE ACCUSED BY THIS COURT ON THE GROUND THAT AS THE INFORMANT AND THE INVESTIGATOR WAS THE SAME, IT HAS VITIATED THE TRIAL AND THE ACCUSED IS ENTITLED TO ACQUITTAL ARE TO BE TREATED TO BE CONFINED TO THEIR OWN FACTS.

—IT CANNOT BE SAID THAT IN THE AFORESAID DECISIONS, THIS COURT LAID DOWN ANY GENERAL PROPOSITION OF LAW THAT IN EACH AND EVERY CASE WHERE THE INFORMANT IS THE INVESTIGATOR THERE IS A BIAS CAUSED TO THE ACCUSED AND THE ENTIRE PROSECUTION CASE IS TO BE DISBELIEVED AND THE ACCUSED IS ENTITLED TO ACQUITTAL;

—II. IN A CASE WHERE THE INFORMANT HIMSELF IS THE INVESTIGATOR, BY THAT ITSELF CANNOT BE SAID THAT THE INVESTIGATION IS VITIATED ON THE GROUND OF BIAS OR THE LIKE FACTOR. THE QUESTION OF BIAS OR PREJUDICE WOULD DEPEND UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE.

—THEREFORE, MERELY BECAUSE THE INFORMANT IS THE INVESTIGATOR, BY THAT ITSELF THE INVESTIGATION WOULD NOT SUFFER THE VICE OF UNFAIRNESS OR BIAS AND THEREFORE ON THE SOLE GROUND THAT INFORMANT IS THE INVESTIGATOR, THE ACCUSED IS NOT ENTITLED TO ACQUITTAL. THE MATTER HAS TO BE DECIDED ON A CASE TO CASE BASIS.

—A CONTRARY DECISION OF THIS COURT IN THE CASE OF MOHAN LAL V. STATE OF PUNJAB (2018) 17 SCC 627 AND ANY OTHER DECISION TAKING A CONTRARY VIEW THAT THE INFORMANT CANNOT BE THE INVESTIGATOR AND IN SUCH A CASE THE ACCUSED IS ENTITLED TO ACQUITTAL ARE NOT GOOD LAW AND THEY ARE SPECIFICALLY OVERRULED

Whether accused can ask further investigation after submission of charge-sheet or final report?

In case of Vinubhai Haribhai Malviya vs State of Gujrat , Crl Appeal 478-479 of 2017 decided on 16/10/2019 a three judges bench of supreme court held that judicial magistrate has power to order further investigation even after taking cognizance of the offence  but before framing of charges.

The Supreme Court also held that even the accused has a right to file protest petition if he is not satisfied with the investigation conducted by the police.

With this Judgment Supreme Court overruled the settled position of law that post cognizance Magistrate has no power to order further investigation held in case of Devarapally Lakshminarayana Reddy vs V Narayana Reddy and others (1976) 3 SCC 252.

Whether Supreme Court order of extending the Limitation Period also extends the time limit for filling Charge -Sheet?

•  Supreme Court in its order passed suo-mot on 23-03-20 extended the time limit for filling of various applications, appeals etc in Courts due to prevailing covid-19 situation.
• The confusion arose when various High Courts starts giving contradictory orders on extension of time for filling charge-sheet as given in section 167 Cr.P.C. interpreting that the order of Supreme Court also extends the time for filling charge sheet beyond the period of 90 or 60 days as the case may be and accused has no right to be released on default bail because of the extending the period by Supreme Court.
• In case of Kasi vs State through inspector of police Madurai Crl. Appeal No. 452/2020 decided on 19 June 2020 Supreme Court clarified the position and held that 
• " neither this court in its order dated 23-03-20 can be held to have eclipsed the  time prescribed under section 167(2) Cr.P.C. nor the restriction which have been imposed during the lock down by the government shall operate as any restriction on the rights of the accused as protected by section 167(2) cr.p.c regarding his right to be released on default bail"
• So with the above clarification by the Supreme Court it become clear that there is no extension of time for filling charge-sheet it remains as it is in section 167 Cr.P.C. i.e.90/60 days as the case may be  and if not filled within the time period accused has a right to be released on default bail.