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Review: SC issues guidelines for Courts and Investigating Agencies with respect to granting bail

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In this week’s review of Court Judgments, we look at the Supreme Court’s observation that prayer for CBI investigation should be allowed ‘sparingly, cautiously and in exceptional situations only, that false charge as per Section 211 of IPC refers to initial accusation and not giving false evidence, and the guidelines issued by SC for Courts and Investigating Agency with respect to granting bail. 

SC: Prayer for CBI investigation should be allowed ‘sparingly, cautiously and in exceptional situations only

In Himanshu Kumar and Ors. vs. State of Chhattisgarh and Ors., a CBI probe was sought into the alleged massacre of Adivasis in Chhattisgarh by the Chhattisgarh Police, Special Police Officers (SPOs) appointed by the Chhattisgarh Government in collusion with the activists of the Salwa Judum, the Central Paramilitary Forces, CRPF and the CoBRA Battalion, in two separate attacks in 2009. The plea was filed by a member of an NGO along with the kith and kin of the victims of the alleged massacre.

A bench of Justices A.M. Khanwilkar and J.B. Pardiwala, in their 94 page long verdict, stated that the prayer seeking direction for the probe of an alleged offence by the Central Bureau of Investigation (CBI) should not be granted on “mere asking”. According to past judgements, the prayer for CBI investigation should be allowed ‘sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights.’ CBI may be handed over cases in certain circumstances like if the court feels that the investigation by the police authorities is not in a proper direction, or to do complete justice in the case and if high-level police officials are involved in the alleged crime. It was also stated that an aggrieved person can only claim that the offence he alleges be investigated properly, but he has no right to claim that it be investigated by any agency of his choice. 

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False Charge as per Section 211 of IPC refers to an initial accusation and not giving false evidence

In the same plea seeking proceedings for perjury against the petitioners (2009), one of the alternatives put forth was appropriate action to be taken by the state government or CBI under Section 211 of IPC. 

Section 211 of IPC is as follows:

According to the Bench, ‘falsely charges’ referred to the original or initial accusation putting or seeking to put in motion the machinery of criminal investigation and not false depositions or false evidence adduced during the course of a criminal trial. ‘Falsely charges’ must be, read along with the expression “institution of criminal proceeding”. The Court identified the conditions that must be satisfied to invoke Section 211 of IPC:

  • The complaint must have falsely charged a person with having committed an offence
  • The complainant at the time of lodging the complaint must have known that there is no just or lawful ground for making such a charge
  • A complaint must have been filed with the intention to cause inquiry to a person

SC: Mere discovery of a weapon at the instance of the accused need not imply that they had used it or concealed it

In Shahaja @ Shahajan Ismail Mohd. Shaikh vs. State of Maharashtra,  the appellant and deceased Mahankal Jaiswal worked as laborers in Mumbai. One night in 2006, the two were involved in a quarrel on account of money. According to witnesses, the appellant had assaulted the deceased with a hammer. After the assault, the appellant had walked away from the place of the incident holding the hammer in his hand. In the morning, the police arrived and noticed that Mahanklal had deceased and sent the body for post-mortem. The discovery panchnama of the weapon of the offence, the hammer was also drawn under the provisions of Section 27 of the Evidence Act, 1872. 

The trial court framed charges against the appellant for murder under Section 302 of the IPC based on the oral testimony of two witnesses and the discovery of the hammer at the instance of the appellant. The appellant approached the Bombay High Court challenging the trial court’s order. The High Court dismissed the appeal upholding the trial court’s charge. The appellant then appealed to the Supreme Court stating that the eyewitnesses were unreliable. According to the Supreme Court Bench of Justices Surya Kant and JB Pardiwala, both the courts had done the right thing- believing the eyewitnesses. The Bench also reiterated conditions for applicability of Section 27. 

Referring to past judgements, the Bench noted that the mere discovery of a weapon is not enough to establish the role of the person who discovered the weapon. There is the possibility that they would have learned the existence of the weapon at the place through another source or may have witnessed another person do so. Just because a person discovered the weapon, it need not be that they had concealed it or used it. Even though the conduct of an accused is a relevant fact under Section 8 of the Act, it alone is not sufficient to convict the person or hold them guilty for a serious offence like murder.

SC:  Asks High Court to deliver the judgment at the earliest after the arguments are concluded

State of UP & Anr vs. Akhil Sharda is a criminal appeal relating to the missing consignment of beer bottles. Both the transporter and informants had filed FIRs. The officials of M/S United Breweries Limited were arrayed as accused in the FIR filed by the informant following which they approached Allahabad High Court seeking to set aside the charge sheet filed against them. The High Court quashed the entire criminal proceedings against the company because of which informant and the State appealed to the Supreme Court.

The Supreme Court bench of Justices MR Shah and BV Nagarathna accepted the appeal and rejected the High Court’s order of quashing the entire criminal proceedings in the cheating case stating that the High Court had virtually conducted a mini-trial, which was not permissible and while deciding the application under Section 482 Cr.P.C. at this stage. Moreover, the FIRs filed by the two were interconnected. With respect to delivery of judgement, the Bench advised the High Court to deliver the judgment at the earliest after the arguments are concluded. The Bench emphasized on the need to pronounce the reserved judgment at the earliest and within a reasonable time. The High Court, in this case, delivered the judgment and order after a period of six months after the matter was reserved for judgment. The Bench also stated that a long delay in delivery of the judgment would give rise to unnecessary speculations in the minds of the parties in a case.

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SC: Guidelines for Courts and Investigating Agency with respect to granting bail

In Satender Kumar Antil vs. Central Bureau of Investigation, the Court categorized the type of offences to be used as guidelines with respect to the bail system in the country. A slew of directions was issued to Courts as well as investigating agencies noting that arrest is a draconian measure that curtails liberty. A Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh came up with the guidelines referring to Supreme Court judgements such as judgments Hussainara Khatoon and Ors. vs. Home Secretary, State of Bihar, Hussain and Anr. vs. Union of India and Ors., Surinder Singh @ Shingara Singh vs. State of Punjab, etc.

Some of the key measures listed include:

  • Introduction of legislation like the Bail Act being implemented in the UK and US
  • Persons accused of the same offense shall never be treated differently either by the same or different courts
  • Mandates of Section 41 and 41A of the Cr.P.C and the directions issued by the SC in Arnesh Kumar should be strictly adhered to, by investigating agencies and their officers and Courts
  • There need not be any insistence on a bail application while considering the application under Sections 88, 170, 204 and 209 of the Code.
  • There needs to be strict compliance with the mandate laid down in the judgment of the SC in Siddharth
  • The State and Central Governments should comply with the directions issued by this Court from time to time with respect to the constitution of special courts. The High Courts will have to cooperate on this.
  • After identifying undertrials eligible for bail, High Courts should take appropriate action considering Section 440 of the Code, facilitating the release.
  • Bail applications should be disposed of within two weeks except if the provisions mandate otherwise, except for any intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks except for any intervening application.
  • All State Governments, Union Territories and High Courts should file affidavits/ status reports within a period of four months.
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