Monthly Archives: September 2012

Scope of Discharge under CrPC 227; Supreme Court Landmark Judgement 2010

Landmark Judgement SC: Scope of Discharge under CrPC 227

Bench: P Sathasivam, A R Dave

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2010 (Arising out of S.L.P. (Crl.) No. 6374 of 2010) Sajjan Kumar …. Appellant (s) Versus

Central Bureau of Investigation …. Respondent(s) JUDGMENT

P. Sathasivam, J.

1) Application for intervention is allowed. 2) Leave granted.

3) This appeal is directed against the order of the High Court of Delhi at New Delhi dated 19.07.2010 whereby the learned single Judge confirmed the order dated 15.05.2010 passed by the District Judge-VII/NE-cum- Additional Sessions Judge, Karkardooma Courts, Delhi in S.C. No. 26/10, RC SII 2005 S0024. By the said order, 1

the Additional Sessions Judge has ordered the framing of charges against the appellant for offences punishable under Section 120B read with Sections 153A, 295, 302, 395, 427, 436, 339 and 505 of the Indian Penal Code (hereinafter referred to as “IPC”) and for the offence under Section 109 read with Sections 147, 148, 149, 153A, 295, 302, 395, 427, 435, 339 and 505 IPC, besides framing of a separate charge for offence punishable under Section 153A IPC and rejected the application for discharge filed by the appellant.

4) Brief Facts:-

(a) The present case arises out of 1984 anti-Sikh Riot cases in which thousands of Sikhs were killed. Delhi Police has made this case a part of FIR No. 416 of 1984 registered at Police Station Delhi Cantt. In this FIR, 24 complaints were investigated pertaining to more than 60 deaths in the area. As many as 5 charge-sheets were filed by Delhi Police relating to 5 deaths which resulted in acquittals. One supplementary charge-sheet about 2

robbery, rioting etc. was also filed which also ended in acquittal. The investigation pertaining to the death of family members of Smt. Jagdish Kaur PW-1, was reopened by the anti-Riot Cell of Delhi Police in the year 2002 and after investigation, a Closure Report was filed in the Court on 15/22.12.2005.

(b) After filing of the Closure Report in the present case, on 31.07.2008, a Status Report was filed by the Delhi Police before the Metropolitan Magistrate, Patiala House Court, New Delhi. Pursuant to the recommendation of Justice Nanavati Commission, the Government of India entrusted the investigation to the Central Bureau of Investigation (hereinafter referred to as “CBI”) on 24.10.2005. On receipt of the said communication, the respondent-CBI registered a formal FIR on 22.11.2005. The Closure Report was filed by Delhi Police on 15.12.2005/22.12.2005, when a case had already been registered by the CBI on 22.11.2005 and the documents had already been transferred to the respondent-CBI. 3

(c) After fresh investigation, CBI filed charge-sheet bearing No. 1/2010 in the present case on 13.01.2010. After committal, charges were framed on 15.05.2010. At the same time, the appellant has also filed a petition for discharge raising various grounds in support of his claim. Since he was not successful before the Special Court, he filed a revision before the High Court and by the impugned order dated 19.07.2010, after finding no merit in the case of the appellant, the High Court dismissed his criminal revision and directed the Trial Court for early completion of the trial since the same is pending from 1984. 5) Heard Mr. U.U. Lalit, learned senior counsel for the appellant, Mr. H.P. Rawal, learned Additional Solicitor General for the respondent-CBI and Mr. Dushyant Dave, learned senior counsel for the intervenor. 6) Submissions:

(a) After taking us through the charge-sheet dated 13.01.2010, statements of PW-1, PW-2 and PW-10, order dated 15.05.2010 framing charges by the District Judge, 4

Karkardooma Courts, Delhi and the impugned order of the High Court dated 19.07.2010, Mr. Lalit, learned senior counsel for the appellant submitted that i) the statement of Jagdish Kaur is highly doubtful and later she made an improvement, hence the same cannot be relied upon to frame charge against the appellant; ii) reliance on the evidence of Jagsher Singh PW-2, who gave a statement after a gap of 25 years cannot be accepted; iii) the statement of Nirprit Kaur PW-10 is also not acceptable since the same was also made after a gap of 25 years of the occurrence; iv) other witnesses who were examined in support of the prosecution specifically admitted that they did not see the appellant at the time of alleged commission of offence; v) inasmuch as the charge has been framed after 25 years of occurrence, proceeding against the appellant, at this juncture, is violative of his constitutional right under Article 21; vi) after filing of the closure report by the Delhi Police, by following the procedure, the present action of the CBI conducting further re- 5

investigation and filing charge-sheet based on fresh and improved materials is impermissible in law; vii) follow-up action based on the recommendation of Justice Nanavati Commission is also impermissible at this juncture; viii) many remarks/observations made by the High Court are uncalled for and based on conjectures and surmises and also without there being any material on record. If those observations are not deleted from the order of the High Court, it would amount to directing the trial Judge to convict the appellant without proper proof and evidence. (b) On the other hand, Mr. H.P. Rawal, learned Additional Solicitor General appearing for the CBI submitted that in view of categorical statement by the victims before Justice Nanavati Commission and its recommendation which was deliberated in the Parliament, the Government of India took a decision to entrust further/re-investigation in respect of 1984 anti-Sikh riots through CBI. According to him, the present action by the CBI and framing of charges against the appellant and 6

others is in consonance with Sections 227 and 228 of the Code of Criminal Procedure (hereinafter referred to as “Cr.P.C.”). He also submitted that at the stage of framing of the charges, the material on record has not to be examined meticulously; a prima facie finding of sufficient material showing grave suspicion is enough to frame a charge. He pointed out that there is nothing illegal with the order framing charge which was rightly affirmed by the High Court. He further submitted that the High Court has not exceeded in making observations and, in any event, it would not affect the merits of the case. (c) Mr. Dushyant Dave, learned senior counsel for the intervenor, while reiterating the stand taken by the learned Additional Solicitor General supported the order of the District Judge framing charges as well as the order of the High Court dismissing the criminal revision filed by the appellant. He pointed out that it is not a case for interference under Article 136 of the Constitution of India. No prejudice would be caused to the appellant and he has 7

to face the trial. He further contended that the delay cannot be a ground for interference.

Relevant Provisions:

7) Before considering the claim of the parties, it is useful to refer Sections 227 and 228 of the Cr.P.C. which are reproduced below:

“227. Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

228. Framing of charge- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and 8

explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”

It is clear that the Judge concerned has to consider all the records of the case, the documents placed, hear the submission of the accused and the prosecution and if there is “not sufficient ground” (Emphasis supplied) for proceeding against the accused, he shall discharge the accused by recording reasons. If after such consideration and hearing, as mentioned in Section 227, if the Judge is of the opinion that “there is ground for presuming” (Emphasis supplied) that the accused has committed an offence, he is free to direct the accused to appear and try the offence in accordance with the procedure after framing charge in writing against the accused.

Statements of PW-1, PW-2, PW-8 and PW-10 8) Mr. Lalit, learned senior counsel for the appellant pointed out that the prosecution, for framing the impugned charges, heavily relied on the statements of 9

Jagdish Kaur, Jagsher Singh and Nirprit Kaur. He also took us through their statements made at various stages which are available in the paper-book. It is true that Jagdish Kaur PW-1, in her statement under Section 161 Cr.P.C. dated 20.01.1985, did not mention the name of the appellant. Even in the affidavit dated 07.09.1985, filed before Justice Ranganath Misra Commission she has not whispered a word about the role of the appellant. According to him, for the first time i.e. in the year 2000, after a gap of 15 years an affidavit was filed before Justice Nanavati Commission, wherein she referred the name of the appellant and his role along with certain local Congress workers. According to Mr. Lalit, except the above statement in the form of an affidavit before Justice Nanavati Commission, she had not attributed anything against the appellant in the categorical statements made on 20.01.1985 as well as on 07.09.1985 before Justice Ranganath Misra Commission.

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9) He also pointed out that even after submission of Justice Nanavati Commission’s report and entrusting the investigation to CBI, she made a statement before the CBI officers at the initial stage by mentioning “that the mob was being led by Congress leaders”. Only in later part of her statement, she mentioned that “she learnt that Sajjan Kumar, the Member of Parliament was conducting meeting in the area”. She confirmed the statement in the form of an affidavit dated 07.09.1985 filed before Justice Ranganath Misra Commission as well as her deposition with regard to the appellant before Justice Nanavati Commission on 08.01.2002. No doubt, in the last part of her statement, it was stated that in the year 1984-85, the atmosphere was totally against the Sikh community and under pressure she did not mention the name of Sajjan Kumar. She also informed that she could not mention his name for the safety of her children.

10) The other witness Jagsher Singh, first cousin of Jagdish Kaur, in his statement recorded by the CBI on 11

07.11.2007 i.e. after a gap of 23 years, mentioned the name of the appellant and his threat to Sikhs as well as to Hindus who had given shelter to Sikhs. According to Mr. Lalit, this witness mentioned the name of the appellant for the first time before the CBI nearly after 23 years of the incident which, according to him, cannot be relied upon. 11) The other witness relied on by the prosecution in support of framing of charges is Nirprit Kaur PW-10. It is pointed out that she also made certain statements to the CBI after a gap of 23 years and she did not mention the name of the appellant except stating that one Balwan Khokhar who is alleged to be a nephew of Sajjan Kumar, came to her house for discussing employment for her nephew as driver.

12) The other statement relied on by the prosecution in support of framing of charges against the appellant is that of Om Prakash PW-8. He narrated that during the relevant time he had given shelter to a number of women and children of Sikh community including Jagdish Kaur 12

PW-1. Mr. Lalit pointed out that in his statement, he did not even utter a word about the appellant but at the end of his statement on being asked, stated that he knew Shri Sajjan Kumar, Member of Parliament. However, he further stated that he did not see him in that mob or even in their area during the said period. In the last sentence, he expressed that he had heard from the people in general that Sajjan Kumar was also involved in the 1984 riots. 13) By pointing out the earlier statement of Jagdish Kaur PW-1, recorded by the CBI, her affidavit before Justice Nanavati Commission and the statement of Jagsher Singh PW-2, Nirpreet Kaur PW-10 and Om Prakash PW-8 before the CBI, Mr. Lalit submitted that there was no assertion by anyone about the specific role of the appellant except the bald statement and that too after 23 years. In such circumstances, according to him, the materials relied on by the prosecution are not sufficient to frame charges. According to him, mere suspicion is not sufficient for which he relied on the judgments of this Court in Union 13

of India vs. Prafulla Kumar Samal and Another, (1979) 3 SCC 4 and Dilawar Balu Kurane vs. State of Maharashtra, (2002) 2 SCC 135.

14) In Prafulla Kumar Samal (supra), the scope of Section 227 of the Cr.P.C. was considered. After adverting to various decisions, this Court has enumerated the following principles:

“(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and 14

cons of the matter and weigh the evidence as if he was conducting a trial.”

15) In Dilawar Balu Kurane (supra), the principles enunciated in Prafulla Kumar Samal (supra) have been reiterated and it was held:

“12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India v. Prafulla Kumar Samal).

14. We have perused the records and we agree with the above views expressed by the High Court. We find that in the alleged trap no police agency was involved; the FIR was lodged after seven days; no incriminating articles were found in the possession of the accused and statements of witnesses were recorded by the police after ten months of the occurrence. We are, therefore, of the opinion that not to speak of grave suspicion against 15

the accused, in fact the prosecution has not been able to throw any suspicion. We, therefore, hold that no prima facie case was made against the appellant.” 16) It is clear that at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. A Magistrate enquiring into a case under Section 209 of the Cr.P.C. is not to act as a mere Post Office and has to come to a conclusion whether the case before him is fit for 16

commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case. It is also clear that in exercising jurisdiction under Section 227 of Cr.P.C., the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. 17) Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C.

On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:- (i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted 17

power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.

iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. 18

v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.

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18) With the above principles, if we discuss the statements of PW-1, PW-2, PW-10 as well as of PW-8, it cannot be presumed that there is no case at all to proceed. However, we are conscious of the fact that the very same witnesses did not whisper a word about the involvement of the appellant at the earliest point of time. It is the grievance of the appellant that the High Court did not take into account that the complainant Jagdish Kaur PW-1 had not named him in her first statement filed by way of an affidavit dated 07.09.1985 before Justice Ranganath Misra Commission nor did she named him in her subsequent statements made before the Delhi Police (Riots Cell) and in her deposition dated 08.01.2002 before Justice Nanavati Commission except certain hearsay statement. It is the stand of Jagdish Kaur PW-1, the prime prosecution witness, that apart from her statement dated 03.11.1984, she has not made any statement to Delhi Police at any stage. However, it is also the claim of the C.B.I. that the alleged statements of Jagdish Kaur PW-1, dated 20

20.01.1985 and 31.12.1992 are doubtful. Likewise, Nirprit Kaur PW-10, in her statement under Section 161 Cr.P.C., has denied having made any statement before the Delhi Police. At the stage of framing of charge under Section 228 of the Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or a Judge concerned to analyse all the materials including pros and cons, reliability or acceptability etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and free to take a decision one way or the other. Investigation by the C.B.I.

19) Learned Additional Solicitor General has brought to our notice the letter dated 24.10.2005 from Mr. K.P. Singh, Special Secretary (H) to Mr. U.S. Mishra, Director, Central Bureau of Investigation, North Block, New Delhi. A perusal of the said letter shows that in reply to the discussion held in the Lok Sabha on 10.08.2005 and the 21

Rajya Sabha on 11.08.2005 on the report of Justice Nanavati Commission of Inquiry into 1984 anti-Sikh riots, the Prime Minister and the Home Minister had given an assurance that wherever the Commission has named any specific individuals as needing further examination or re- opening of case the Government will take all possible steps to do so within the ambit of law. The letter further shows that based on the assurance on the floor of the Parliament, the Government examined the report of Justice Nanavati Commission, its recommendations regarding investigation/re-investigation of the cases against (a) Shri Dharam Das Shastri, (b) Shri Jagdish Tytler, and (c) Shri Sajjan Kumar. The letter further shows that the Government had decided that the work of conducting further investigation/re-investigation against the abovementioned persons as per the recommendations of Justice Nanavati Commission should be entrusted to the CBI. Pursuant to the said decision, Home Department forwarded the relevant records connected with the cases 22

against the abovementioned persons. It also shows those additional records/information required in connection with investigation are to be obtained from the Delhi Police. The materials placed by the CBI show that Justice Nanavati Commission submitted its report on 09.02.2005, its recommendations were discussed by the Lok Sabha on 10.08.2005 and the Rajya Sabha on 11.08.2005, Government of India asked CBI to inquire those recommendations on 24.10.2005 and the F.I.R. No. 416 of 1984 dated 04.11.1984 of Police Station, Delhi Cantt was re-registered by the CBI as case RC-24(S)/2005- SCU.I/CBI/SCR.I/New Delhi. Pursuant to the same, on 22.11.2005, investigation was taken up and it revealed that the accused persons committed offences punishable under Section 109 read with Sections 147, 148, 149, 153A, 295, 302, 396, 427, 436, 449, 505 and 201 IPC and accordingly filed the charge-sheet. It is relevant to note that no one including the appellant has not challenged appointment of CBI to inquire into the recommendations 23

made by Justice Nanavati Commission.

Status Report by Delhi Police

20) Mr. Lalit heavily relied on the status report of the Delhi Police and consequential order of the Magistrate. By pointing out the same, he contended that the CBI is not justified in re-opening the case merely on the basis of observations made by Justice Nanavati Commission. The following conclusion in the status report dated 31.07.2008 filed by the Delhi Police was pressed into service. “From the investigation and verification made so far it was revealed that:-

(a) There is no eye-witness to support the version of the complaint of Smt. Jagdish Kaur. (b) The complaints and affidavits made by Smt. Jagdish Kaur are having huge contradictions. (i) In her first statement recorded by local police during the investigation, she did not name any person specifically and also

stated that she could not identify any one among the mob.

(ii) She even did not name Shri Sajjan Kumar in her statement recorded by the I.O. of the Spl. Riot Cell after a gap of seven years. 24

(iii) She suspected the involvement of one Congress Leader Balwan Khokhar in these

riots but she had not seen him personally. She was told by one Om Prakash who was

colleague of her husband, about the killing of her husband and son.

(iv) In the statement recorded on 22.01.1993 under Section 161 Cr.P.C. during the

course of further investigation, the witness Om Prakash stated that he had seen

nothing about the riots. Jagdish Kaur stayed at his house from 01.11.1984 to

03.11.1984 but she did not mention the

name of any person who was indulged in

the killing of her husband and son.” It is seen from the report that taking note of lot of contradictions in the statement of Jagdish Kaur PW-1 before the Commissions and before different investigating officers and after getting legal opinion from the Public Prosecutor, closure report was prepared and filed before the Metropolitan Magistrate, Patiala House Courts, New Delhi on 31.07.2008. It is further seen that before 25

accepting the closure report, the Magistrate issued summons to the complainant i.e, Smt. Jagdish Kaur number of times and the same were duly served upon her by the officers of the Special Riot Cell but she did not appear before the Court. In view of the same, the Magistrate, on going through the report and after hearing the submissions and after noting that the matter under consideration is being further investigated by the CBI and the investigation is still pending and after finding that no definite opinion can be given in respect of the closure report, without passing any order closed the matter giving liberty to the prosecution to move appropriate motion as and when required.

21) Mr. Lalit, learned senior counsel, by placing copy of the final report under Section 173 Cr.P.C. by Delhi Police as well as endorsement therein including the date on which the said report was filed before the Court, submitted that the action taken by Delhi Police cannot be faulted with. In other words, according to him, till the 26

entrustment of further investigation by the CBI, Delhi Police was free to proceed further and there is no error in the action taken by the Delhi Police. In view of the order dated 31.07.2008 of the Magistrate, declining to give definite opinion on the closure report since the same was under further investigation by CBI, we are of the view that no further probe/enquiry on this aspect is required. Delay

22) Learned senior counsel appearing for the appellant further submitted that because of the long delay, the continuation of the prosecution and framing of charges merely on the basis of certain statements made after a gap of 23 years cannot be accepted and according to him, it would go against the protection provided under Article 21 of the Constitution. Mr. Lalit heavily relied on para 20 of the decision of this Court in Vakil Prasad Singh vs. State of Bihar, (2009) 3 SCC 355 which reads as under: “20. For the sake of brevity, we do not propose to reproduce all the said propositions and it would suffice 27

to note the gist thereof. These are: (A.R. Antulay case, SCC pp. 270-73, para 86)

(i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily;

(ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and retrial; (iii) in every case, where the speedy trial is alleged to have been infringed, the first question to be put and answered is — who is responsible for the delay?; (iv) while determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on–what is called, the systemic delays;

(v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of the accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case;

(vi) ultimately, the court has to balance and weigh several relevant factors–`balancing test’ or `balancing process’–and determine in each case whether the right to speedy trial has been denied;

(vii) ordinarily speaking, where the court comes to a conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial;

(viii) it is neither advisable nor feasible to prescribe any outer time-limit for conclusion of all criminal proceedings. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to 28

justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint; (ix) an objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in the High Court must, however, be disposed of on a priority basis.” After adverting to various decisions including Abdul Rehman Antulay and Ors. vs. R.S. Nayak & Anr., this Court further held:

“24. It is, therefore, well settled that the right to speedy trial in all criminal persecutions (sic prosecutions) is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case.

25. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time-frame for conclusion of trial.”

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Considering the factual position therein, namely, alleged demand of a sum of Rs.1,000/- as illegal gratification for release of payment for the civil work executed by a contractor, a charge was laid against Assistant Engineer in the Bihar State Electricity Board and taking note of considerable length of delay and insufficient materials, based on the above principles, ultimately the Court after finding that further continuance of criminal proceedings pending against the appellant therein is unwarranted and quashed the same. Though the principles enunciated in the said decision have to be adhered to, considering the factual position being an extraordinary one, the ultimate decision quashing the criminal proceedings cannot be applied straightaway.

23) In P. Vijayan vs. State of Kerala and Another, (2010) 2 SCC 398, this Court while considering scope of Section 227 of Crl.P.C. upheld the order dismissing the petition filed for discharge and permitted the prosecution to proceed further even after 28 years. In that case, from 30

1970 till 1998, there was no allegation that the encounter was a fake and only in the year 1998 reports appeared in various newspapers in Kerala that the killing of Varghese in the year 1970 was in a fake encounter and that senior police officers were involved in the said fake encounter. Pursuant to the said news reports, several writ petitions were filed by various individuals and organisations before the High Court of Kerala with a prayer that the investigation may be transferred to the Central Bureau of Investigation (CBI). In the said writ petition, Constable Ramachandran Nair filed a counter affidavit dated 11.01.1999 in which he made a confession that he had shot Naxalite Varghese on the instruction of the then Deputy Superintendent of Police (DSP), Lakshmana. He also stated that the appellant was present when the incident occurred. By order dated 27.01.1999, learned Single Judge of the High Court of Kerala passed an order directing CBI to register an FIR on the facts disclosed in the counter affidavit filed by Constable Ramachandran 31

Nair. Accordingly, CBI registered an FIR on 3-3-1999 in which Constable Ramachandran Nair was named as Accused 1, Mr Lakshmana was named as Accused 2 and Mr. P. Vijayan, the appellant, was named as Accused 3 for an offence under Section 302 IPC read with Section 34 IPC. After investigation, CBI filed a charge-sheet before the Special Judge (CBI), Ernakulam on 11.12.2002 wherein all the abovementioned persons were named as A-1 to A-3 respectively for an offence under Sections 302 and 34 IPC. The appellant – P. Vijayan filed a petition under Section 227 of the Code on 17.05.2007 for discharge on various grounds including on the ground of delay. The trial Judge, by order dated 08.06.2007, dismissed the said petition and passed an order for framing charge for offences under Sections 302 and 34 IPC. Aggrieved by the aforesaid order, the appellant – Vijayan filed Criminal Revision Petition No. 2455 of 2007 before the High Court of Kerala. By an order dated 04.07.2007, learned Single Judge of the High Court dismissed his criminal revision petition. The 32

said order was challenged by Mr. P. Vijayan before this Court. Taking note of all the ingredients in Section 227 of the Criminal Procedure Code and the materials placed by the prosecution and the reasons assigned by the trial Judge for dismissing the discharge petition filed under Section 227, this Court confirmed the order of the trial Judge as well as the order of the High Court. Though, there was a considerable lapse of time from the alleged occurrence and the further investigation by CBI inasmuch as adequate material was shown, the Court permitted the prosecution to proceed further.

24) Though delay is also a relevant factor and every accused is entitled to speedy justice in view of Article 21 of the Constitution, ultimately it depends upon various factors/reasons and materials placed by the prosecution. Though Mr. Lalit heavily relied on paragraph 20 of the decision of this Court in Vakil Prasad Singh’s case (supra), the learned Additional Solicitor General, by drawing our attention to the subsequent paragraphs i.e., 33

21, 23, 24, 27 and 29 pointed out that the principles enunciated in A.R.Antulay’s case (supra) are only illustrative and merely because of long delay the case of the prosecution cannot be closed.

25) Mr. Dave, learned senior counsel appearing for the intervenor has pointed out that in criminal justice “a crime never dies” for which he relied on the decision of this Court in Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394. In para-14, C.K. Thakker, J. speaking for the Bench has observed:

“It is settled law that a criminal offence is considered as a wrong against the State and the society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a court of law has no power to throw away prosecution solely on the ground of delay.” In the case on hand, though delay may be a relevant ground, in the light of the materials which are available before the Court through CBI, without testing the same at the trial, the proceedings cannot be quashed merely on the ground of delay. As stated earlier, those materials 34

have to be tested in the context of prejudice to the accused only at the trial.

Observations by the High Court

26) Coming to the last submission about the various observations made by the High Court, Mr. Lalit pointed out that the observations/reference/conclusion in paragraphs 64, 65, 69, 70, 72, 73 and 50 are not warranted. According to him, to arrive such conclusion the prosecution has not placed relevant material. Even otherwise, according to him, if the same are allowed to stand, the trial Judge has no other option but to convict the appellant which would be against all canons of justice. He further submitted that even if it is clarified that those observations are to be confined for the disposal of the appeal filed against framing of charges and dismissal of discharge petition and need not be relied on at the time of the trial, undoubtedly, it would affect the mind of the trial Judge to take independent conclusion for which he relied on a judgment of this Court in Common Cause, A 35

Registered Society vs. Union of India & Ors. (1999) 6 SCC 667. He pressed into service paragraph 177 which reads as under:

“177. Mr Gopal Subramaniam contended that the Court has itself taken care to say that CBI in the matter of investigation, would not be influenced by any observation made in the judgment and that it would independently hold the investigation into the offence of criminal breach of trust or any other offence. To this, there is a vehement reply from Mr Parasaran and we think he is right. It is contended by him that this Court having recorded a finding that the petitioner on being appointed as a Minister in the Central Cabinet, held a trust on behalf of the people and further that he cannot be permitted to commit breach of the trust reposed in him by the people and still further that the petitioner had deliberately acted in a wholly arbitrary and unjust manner and that the allotments made by him were wholly mala fide and for extraneous consideration, the direction to CBI not to be influenced by any observations made by this Court in the judgment, is in the nature of palliative. CBI has been directed to register a case against the petitioner in respect of the allegations dealt with and findings reached by this Court in the judgment under review. Once the findings are directed to be treated as part of the first information report, the further direction that CBI shall not be influenced by any observations made by this Court or the findings recorded by it, is a mere lullaby.”

On the other hand, learned Additional Solicitor General highlighted that these observations by the High Court are based on the materials placed and, in any event, it would not affect the interest of the appellant in the ultimate trial. In view of the apprehension raised by the learned senior counsel for the appellant, we also verified the relevant 36

paragraphs. In the light of the fact that it is for the trial Judge to evaluate all the materials including the evidentiary value of the witnesses of the prosecution such as Jagdish Kaur PW-1, Jagsher Singh PW-2, Nirpit Kaur PW-10 and Om Prakash PW-8, alleged contradictory statements, delay and the conduct of the Delhi Police in filing Status Report and on the basis of further investigation by the CBI, we clarify that all those observations of the High Court would not affect the ultimate analysis and final verdict of the trial Judge. Conclusion:

27) In the light of the above discussion, we are of the view that it cannot be concluded that framing of charges against the appellant by the trial Judge is either bad in law or abuse of process of law or without any material. However, we clarify that de hors to those comments, observations and explanations emanating from the judgment of the learned single Judge, which we referred in para 26, the trial Judge is free to analyse, appreciate, 37

evaluate and arrive at a proper conclusion based on the materials being placed by prosecution as well as the defence. Inasmuch as the trial relates to the incident of the year 1984, we direct the trial Judge to take sincere efforts for completion of the case as early as possible for which the prosecution and accused must render all assistance. Interim order granted on 13.08.2010 is vacated. With the above observation and direction, the appeal is disposed of.

……………………………………J. (P. SATHASIVAM)

……………………………………J. (ANIL R. DAVE)

NEW DELHI;

SEPTEMBER 20, 2010.

38

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Karnataka Prosecution Department: DUTIES & FUNCTIONS OF PUBLIC PROSECUTOR’S

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Duties & Functions of the Director of Prosecutions
The Director shall be the Head of the Department and controller entire Prosecutying Machinery except High Court.

He shall, subject to general or special orders of Government exercise powers of supervision and control over the work of the Joint  Director’s, Deputy Directors, Public Prosecutors , Senior Asst. Public  Prosecutors, Asst. Director of Prosecutions and the Assistant Public Prosecutors.

Give advice and instructions to the Joint Director’s, Public Prosecutors,

Senior Assistant Public Prosecutors and Assistant Public Prosecutors in the conduct of Prosecutions, who shall abide by his advice and instructions.

Review the work of the Joint Director’s, Deputy Directors, Public Prosecutors, Senior Assistant Public Prosecutors and Assistant Public Prosecutors and send reports thereon to the Home Department.

Exercise disciplinary control over the Senior Assistant Public Prosecutors and the Asst. Public Prosecutors as Head of the Department.

The Director of Prosecutions may send proposals to the State Government for withdrawal of cases.

Tender opinion and advice to the Inspector General of Police on any matter connected with the conduct of prosecution or investigations;

Send periodical reports and returns to Home Department, Government of Karnataka.
Generally act in close co-operation and co-ordination with the Inspector General of Police in all matters connected with the conduct of prosecutions in Sessions Courts and Magistrate Courts and also with the work connected with the working of the Director of Prosecutions.
Exercise administrative control including the power of making recommendation for transfer of Public Prosecutor,Asst. Director of Prosecutions, Senior Assistant Public Prosecutors and the Assistant Public Prosecutors, and power of making transfer of subordinate staff of the state.
As per recent Government Order, Director of Prosecutions empowered to take a decision in IPC cases which are punishable with imprisonment more than 7 years and below 10 years is a fit case or not to prefer an appeal / revision and also empowered ti prefer an appeal / revision sentence awarded is inadequate in IPC cases punishable with imprisonment more than 7 years and below 10 years. And further if the offences are punishable more than 10 years, Director is an authority to recommend to the Government for preferring an appeal or furnish opinion if the case is not fit to prefer appeal. If the offences are punishable under special enactment the Director of Prosecutions has to recommend the cases for further necessary action to the Government.
After obtaining the Order of the Government for filing an appeal, the Director shall communicate the Order to the State Public Prosecutor with the copies to the concerned, the necessary papers and other information to facilitate the filing of an appeal.
The procedure prescribed above for filing of appeal shall also apply to a proposal for filing any revision petition subject to the modification .
The Director of Prosecution may recommend to the State Government the appointment of Special Public Prosecutor in important and difficult cases in the Sessions or Magistrate’s Courts.
The Public Prosecutors, the Senior Asst. Public Prosecutors and Asst. Public Prosecutors shall send such periodical returns to the Director concerned and abide by such instructions and directions as may be issued by him from time to time regarding the conduct etc., of the Sessions and other cases attended to by them.
The Director of Prosecutions shall submit such periodical returns as may be required and attend to such other work as may be entrusted to by the State Government in the Department of Law and Parliamentary Affairs.

DUTIES & FUNCTIONS OF JOINT DIRECTORS OF PROSECUTIONS:
All the Joint Directors are under the administrative control of Director of Prosecutions. Director of Prosecutions will exercise powers of supervision, control and review the work of the Joint Director of Prosecutions.
Three Joint Directors of Prosecutions attached to the office of the of Prosecutions with the office located 6th Floor, Cauvery Bhavan, KHB Complex, Bangalore.
Among the three Joint Directors, one is placed exclusively in charge of Administration to assist Director along with review of judgements and furnishing opinion of city division, Bangalore.
4. The other two Joint Directors have been entrusted with the review of judgements and furnishing opinions and all other allied matters thereto.
5. The three Joint Directors in addition to the review of judgements,also has give general opinion requested by the Police or required by Deputy Director of Prosecutions.
Out of 4 Joint Director’s, one Officer attached to the Office of the DG & IG, Karnataka. The Joint director attached to DG & IG will work under the control of DG & IG and to discharge functions as entrusted by DG & IG with regard to legal matters and furnishing of general opinion pertaining to legal matters.

DUTIES & FUNCTIONS OF DEPUTY DIRECTOR OF PROSECUTIONS:
The offices of the Deputy Director of Prosecutions normally situated in the premises of IGP of the Range concerned.
All the Deputy Directors of Prosecutions subject to general and special orders of Government are the Director of Prosecutions.
Exercise powers of supervision and control over the work of the Senior Assistant Public Prosecutors and the Assistant Public Prosecutors.
Give advice and instructions to the Senior Assistant Public Prosecutors and the Assistant Public Prosecutors in the conduct of Prosecutions, who shall abide by such advice and instructions.
Review the work of the Senior Assistant Public Prosecutors and the Assistant Public Prosecutors and send reports to the Director of Prosecutions.

4. Tender opinion and advice to the Inspector General of Police of the Rangeconcerned with the conduct of prosecutions or investigations.
5. Send periodical reports and returns to the IGP of the Range concerned;
Generally act in close co-operation and co-ordination with the Police
Department in all matters connected with the conduct of prosecution and investigation.
Exercise administrative and disciplinary control over the Senior Assistant Public Prosecutors, Assistant Public Prosecutors and subordinate staff of the Division.
As per the recent Government Order, Deputy Director of Prosecutions empowered to take a decision in IPC cases which are punishable with imprisonment of 7 years and below is a fit case or not to prefer an appeal /revision and also empowered to prefer an appeal / revision sentence awarded in inadequate in IPC cases which are punishable with imprisonment below 7 years.
The Deputy Director of Prosecutions shall submit such periodical returns as may be required and attend to such other work as may be entrusted by the Director of Prosecutions.
DUTIES & FUNCTIONS OF PUBLIC PROSECUTOR’S: SENIOR ASST. PUBLIC PROSECUTORS AND ASST. PUBLIC PROSECUTORS:
Offices of the Public Prosecutors, Senior Assistant Public Prosecutors and Assistant Public Prosecutors normally situated within the respective Court premises.
Public Prosecutor’s are appointed to conduct Criminal Cases before Sessions Courts, Senior Asst. Public Prosecutors are appointed to conduct Criminal Cases before C.J.M / Metropolitan Magistrate. Asst. Public Prosecutors are appointed to conduct criminal cases before Magistrate Courts.
The investigating officers of all the Government Departments concerned may seek advice or opinion of the Prosecutors at all stages including stage of investigation or filing the charge sheets or complaint with regard to legal matters.
Public Prosecutors, Senior Asst. Public Prosecutors, Asst. Public
Prosecutors are also entrusted with the work of furnishing opinion for preferring revisions – appeals , and also for withdrawal of cases from prosecution whenever and wherever necessary after approval from the Government.
Asst. Public Prosecutors – cum – Asst. Government Pleaders are entrusted with the work of conducting Civil cases with regard to the Government Department before Civil Judges (Jr.Dvn) and also entrusted with the work of furnishing opinions in Civil matters to the concerned Government Departments. Also entrusted with the work of furnishing opinion for preferring revision and appeals in Government civil matters.

6. Public Prosecutors, Senior Asst. Public Prosecutors, Asst. Public Prosecutors are also exercise powers of supervision and control over the work of the subordinate staff attached to their respective offices.
7. In cases ending in acquittal or where there is a conviction only for a minor offence, the accused having been acquitted or more serious offence, in the Court of any Magistrate the Senior Asst. Public Prosecutor or the Asst. Public Prosecutor in charge of the said case should within 15 days from the date of judgement obtain and submit a certified copy of the judgement along with his report indicating the reasons for filing or not filing an appeal to the Deputy Director of Prosecutions.
DUTIES & FUNCTIONS OF THE ASSISTANT DIRECTOR OF PROSECUTIONS:
Assistant Director of Prosecutions normally attached to the Office of theDeputy Director of Prosecutions, each post with the Superintendent of Police and Police Commissioner office respectively.
Asst. Director of Prosecutions attached to Director & Deputy Director of Prosecutions scrutinize the judgements and orders in conviction, acquittal and discharged the cases respectively redendered by the Magistrate’s Courts.
To advice and guide the Investigating Officers in the Police Department and Officers of the other Departments of Government of Karnataka, in the investigation and the Prosecution of Criminal Cases.
Asst. Director of Prosecutions attached to Superintendent of Police have to conduct cases regarding the seizure of vehicles pertaining to Excise and Forest Department before the Authorised Officers.

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Prosecution on Grounless Charges; Bad in Law

Karnataka High Court
Equivalent citations: ILR 1982 KAR 1288
Bench: M Nagappa

ORDER

1. This petition by the accused is directed against the order dated 26-5-1981, passed by the Judicial Magistrate First Class (II Court), Hubli in C.C. No. 869 of 1981, directing to frame a charge against him for an offence punishable under section 379 of the I.P.C.

2. On the basis of a complaint, a charge-sheet was placed by the Sub-Inspector of Police (Crime) Sub-Urban police station, Hubli, against the accused for offences under sections 379 and 411 of the I.P.C. The accused was furnished with copies of the documents of prosecution as required under law. The prosecution also the learned counsel for the accused were heard before framing of the charge. Thereafter the learned Magistrate passed the impugned order, rejecting the prayer of the accused that he may be discharged as the matter involved in the case is one of civil nature, and directed a charge to be framed against the accused for an offence punishable under S. 379, I.P.C. It is legality and correctness of the said order that is being assailed in this petition.

3. Sri. G. S. Bhat, learned counsel appearing for the petitioner-accused, contended that the impugned order cannot be sustained in law inasmuch as the Magistrate has not considered all the materials that were placed before him as required under section 239, Cr.P.C. He also submitted that the accused is no other than the partner of the firm M/S. Sudha Agencies and that he being a partner of the aforesaid firm the question of his committing theft of the Luna Moped in question did not arise at all and therefore the prosecution has not made out any offence against him and the proper order that should have been passed by the Magistrate was that the charge was groundless and hence he should have discharged the accused of the aforesaid offence. In support of his above contention he relied upon a decision in Century Spinning & Manufacturing Co. Ltd. v. State of Maharashtra, , wherein the Supreme Court while considering the

provisions of S. 241A Cr.P.C. (old) which corresponds to S. 329, Cr.P.C. (new Code) has observed thus :

“It cannot be said that the court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person’s liberty and it cannot be said that the court must automatically framed the charge merely because the prosecuting authorities by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.

Held that the trial court rightly came to the conclusion that the prosecution for the offence charged was groundless. Order of discharge made by him was eminently just and fair order. The High Court therefore was in error in reversing that order”.

He also relied upon a decision of this Court in State of Karnataka v. Munivenkatappa (1978 (1) Kant LJ 41) wherein it is held in para-5 of the judgment thus :

“……….. Therefore, it cannot be said that the Magistrate, at the stage of framing the charge, has not to apply his judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The responsibility of framing a charge of otherwise is of the Magistrate and he has to judicially consider the question of doing so. At the stage of framing the charge, the court has to apply its mind to find out whether there is a ground for presuming the commission of an offence by the accused. The plain language of the section itself authorises the Magistrate to examine the material placed before him.”

4. There is substance in the contention of Sri Bhat. The words appearing in Section 239 Cr.P.C. ‘opportunity of being heard’ do not mean examination of any witness. It merely gives a right of audience which means that the prosecution and the accused are entitled to argue their case in favour of framing charge or a discharge. The word ‘hearing’ is also used in Sections 145(4), 244(1) and 254(1), Cr.P.C. Examination of the accused is not imperative. If upon consideration of all the document and other circumstances the Magistrate comes to the conclusion that the accusation is without any substance, then he may discharge the accused even without examining him. Examination becomes necessary when there are facts or circumstances in the documents etc., which go against the accused and which need explanation before framing charge. It is better to examine the accused when it is intended to frame a charge. Section 240, Cr.P.C. Reading two sections together it clearly means that if there is no ground for presuming that the accused has committed an offence, the charge must be considered to be groundless. The Magistrate has a duty to consider the entire material referred to in S. 239. Reading of the aforesaid principles and also the dicta laid down by the Supreme Court and this court referred to above, it is abundantly clear that the Magistrate was to apply his judicial mind to the fact of the case and after hearing both the parties come to the conclusion whether the charge levelled against the accused is groundless or whether there are grounds to frame a charge against him. In the case on hand, the accused while addressing arguments before the Magistrate appears to have brought to his notice that he is the partner of the firm in question, and he has also filed a list of documents in support of that argument, for which the complainant is also one of the partners. The learned Magistrate has not even referred to these documents before passing the impugned order. It was incumbent upon him to have adverted to those documents as he was expected to hear both the parties in respect of the framing of the charge. The fact that he has not adverted to the documents filed by the accused clearly indicated that the accused was not given sufficient opportunity that he is entitled to under section 239, Cr.P.C. Without expressing any opinion with regard to the document produced by the accused, I am of opinion that this is a fit case wherein this court should interfere with the impugned order. Therefore, the impugned order is liable to be set aside.

5. In the result, for the reasons stated above, this petition is allowed, the impugned order is set aside and the matter is remanded to the trial court with a direction to follow the procedure in accordance with law in the light of the observations made above.

6. Petition allowed.

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List of Supreme Court Judges ; as on 23 Sept,2012

Supreme Court of India .Sanctioned Judge Strength: 31

(List of Judges arranged according to date of appointment)

Sl. No. Name of the Judge S/Shri Justice Date of appointment Date of Retirement Remarks [Parent High Court]
1 S. H. Kapadia 18/12/2003 29/09/2012 CJI w.e.f. 12.5.2010 [BOMBAY]
2 ALTAMAS KABIR 09/09/2005 19/07/2013 CALCUTTA
3 DEVINDER KUMAR JAIN 10/04/2006 25/01/2013 DELHI
4 P.SATHASIVAM 21/08/2007 27/04/2014 MADRAS
5 GANPAT SINGH SINGHVI 12/11/2007 12/12/2013 RAJASTHAN
6 AFTAB ALAM 12/11/2007 19/04/2013 PATNA
7 R.M. LODHA 17/12/2008 28/09/2014 RAJASTHAN
8 H.L. DATTU 17/12/2008 03/12/2015 KARNATAKA
9 DEEPAK VERMA 11/05/2009 28/08/2012 MADHYA PRADESH
10 DR. BALBIR SINGH CHAUHAN 11/05/2009 02/07/2014 ALLAHABAD
11 ANANGA KUMAR PATNAIK 17/11/2009 03/06/2014 ORISSA
12 TIRATH SINGH THAKUR 17/11/2009 04/01/2017 JAMMU & KASHMIR
13 K.S.P. RADHAKRISHNAN 17/11/2009 15/05/2014 KERALA
14 SURINDER SINGH NIJJAR 17/11/2009 07/06/2014 Haryana PUNJAB & HARYANA
15 SWATANTER KUMAR 18/12/2009 31/12/2012 DELHI
16 CHANDRAMAULI KUMAR PRASAD 08/02/2010 15/07/2014 PATNA
17 HEMANT LAXMAN GOKHALE 30/04/2010 10/03/2014 BOMBAY
18 SMT. GYAN SUDHA MISRA 30/04/2010 28/04/2014 PATNA
19 ANIL RAMESH DAVE 30/04/2010 19/11/2016 GUJARAT
20 S. J. MUKHOPADHAYA 13/09/2011 15/03/2015 JHARKHAND
21 SMT. R. P. DESAI 13/09/2011 30/10/2014 BOMBAY
22 JAGDISH SINGH KHEHAR 13/09/2011 28/08/2017 PUNJAB & HARYANA
23 DIPAK MISRA 10/10/2011 03/10/2018 ORISSA
24 JASTI CHELAMESWAR 10/10/2011 23/06/2018 ANDHRA PRADESH
25 F. M. I. KALIFULLA 02/04/2012 23/07/2016 MADRAS
26 RANJAN GOGOI 23/04/2012 18/11/2019 GAUHATI
27 MADAN BHIMARAO LOKUR 00/06/2012 31/12/2018 DELHI

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LIST OF CHIEF JUSTICES OF THE HIGH COURTS AS ON 01.09.2012

LIST OF CHIEF JUSTICES OF THE HIGH COURTS AS ON 01.09.2012

Sl. No. Name of the High Court Name of the chief justices/shri justice Date of initial appointment Date of appoint- ment as Chief Justice Date of Retirement Parent High Court Remarks/ Date of Joining in the present High Court
1 Allahabad* Amitava Lala 12/05/1997 20/11/2012 ACJ 08/08/2012
2 Andhra Pradesh* Pinaki Chandra Ghose 17/05/1999 28/05/2014 ACJ -25/06/2012
3 Bombay Mohit Shantilal Shah 18/09/1995 24/12/2009 09/09/2015 Gujarat 26/06/2010
4 Calcutta Jainarayan Patel 11/03/1996 26/06/2010 05/10/2012 Bombay 26/06/2010
5 Chhattisgarh Rajeev Gupta 27/09/1994 27/04/2005 10/10/2012 M.P. 02/02/2008
6 Delhi * A.K. Sikri 07/07/1999 07/03/2016 ACJ-10/10/2011
7 Gauhati Adarsh Kumar Goel [H] 02/07/2001 00/12/2011 07/07/2015 P & H 20/12/2011
8 Gujarat Bhaskar Bhattacharya 17/07/1997 21/07/2012 29/09/2014 Calcutta 21/17/2012
9 Himachal Pradesh Kurian Joseph 12/07/2000 08/02/2010 30/11/2015 Kerala 08/02/2010
10 Jammu & Kashmir Mahesh Mittal Kumar [P] 02/07/2001 08/06/2012 05/01/2015 P & H  08/06/2012
11 Jharkhand Prakash Chandra Tatla 11/01/2001 11/09/2011 04/08/2013 Rajasthan 11/09/2011
12 Karnataka Vikramajit Sen 07/07/1999 24/12/2011 31/12/2012 Delhi 24/12/2011
13 Kerala * Smt. Manjula Chellur 21/02/2000 05/12/2017 ACJ 09/11/2011
14 Madhya Pradesh* Sushil Harkauli 05/02/1999 02/08/2013 ACJ 05/08/2011
15 Madras M. Yusuf Eqbal 09/05/1996 11/06/2010 13/02/2013 Jharkhand 11/06/2010
16 Orissa V.Gopalagowda 11/06/1997 25/03/2010 06/10/2013 Karnataka 25/03/2010
17 Patna MS. Rekha M. Doshit 18/09/1995 21/06/2010 13/12/2014 Gujarat 21/06/2010
18 Punjab & Haryana * Jasvir Singh 02/07/2001 01/08/2014  ACJ-08/06/2012
19 Rajasthan Arun kumar mishra 25/10/1999 26/11/2010 03/09/2017 M. P. 26/11/2010
20 Sikkim Permod Kohli 07/01/2003 12/12/2011 01/03/2013 J & K 12/12/2011
21 Uttarakhand Barin Ghosh 14/07/1995 03/01/2009 05/06/2014 Calcutta 12/08/2010

* Acting Chief Justice

 

Updated Since: 01/07/2011

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PRINCIPLES AND CODE OF CONDUCT OF THE KARNATAKA STATE POLICE FORCE. [ http://www.ksp.gov.in ]

PRINCIPLES AND CODE OF CONDUCT OF THE KARNATAKA STATE POLICE FORCE. [ http://www.ksp.gov.in ]

1.   (a) The duties and responsibilities of the Police are to:

  1. promote and preserve public order;
  2. investigate crimes and  apprehend the offenders and participate in  subsequent legal proceedings connected therewith;
  3. identify problems and situations  that are likely to result in the commission of crime;
  4. reduce the opportunities for the commission of crimes through preventive patrol and other appropriate police measures;
  5. aid and co-operate with other concerned agencies in implementing  other  appropriate measures for prevention of crimes;
  6. aid individuals who are in danger of physical harm;
  7. create and maintain a feeling of security in the community;
  8. facilitate orderly movement of people and vehicles;
  9. counsel and resolve conflicts and promote amity;
  10. provide other appropriate services and afford  relief  to people  in distress  situations;
  11. collect intelligence relating to matters affecting public peace and crimes in general including social and economic offences, national integration and  security; and
  12. perform such other duties as may be enjoined on them by law.

(b)  The Police Officers have been given powers under the Code of Criminal Procedure, 1973 (Act No.II of 1974), the Karnataka Police Act, 1963 (Karnataka Act No.4 of 1964), and several special acts notified by the Government of India and the Government of Karnataka in regard to these duties.

  1. The Police must bear faithful allegiance to the Constitution of India and respect  and uphold the rights of the citizens as guaranteed by it.
  2. The Police are essentially a law  enforcing agency.  They should not question the propriety or necessity of any duly enacted law.  They should enforce the law firmly and impartially, without fear or favour, malice or vindictiveness.
  3. The police should recognise and respect the limitations of their powers and functions.  They should not usurp or even seem to usurp the functions of the judiciary and sit in judgement on cases, nor should they avenge individuals and punish the guilty.
  4. In securing the observance of law or in maintaining order, the police should use the methods of persuasion, advice and warning. Should these fail, and the application of force becomes inevitable, only the absolute minimum required in the circumstances should be used.
  5. The primary duty of the police is to prevent crime and disorder and the police must recognise that the test of their efficiency is the absence of both and not the visible evidence of police action in dealing with them.
  6. The police must recognise that they are members of the public, with the only difference that in the interest of the community and on its behalf they are employed to give full-time attention to duties which are normally incumbent on every citizen to perform.
  7. The police should realise that the efficient performance of their duties will be dependent on the extent of ready co-operation they receive from the public.  This, in turn, will depend on their ability to secure public approval of their conduct and actions and to earn and retain public respect and confidence.  The extent to which they succeed in obtaining public co-operation will diminish proportionately the necessity of the use of physical force or compulsion in the discharge of their functions.
  8. The police should be sympathetic and considerate to all people and should be constantly mindful of their welfare.  They should always be ready to offer individual service and friendship and render necessary assistance to all without regard to their wealth or social standing.
  9. The police shall always place duty before self, should remain calm and good humoured whatever be the danger or provocation and should be ready to sacrifice their lives in protecting those of others.
  10. The police should always be courteous and well-mannered.  They should be dependable and unattached; they should possess dignity and courage; and should cultivate character and the trust of the people.
  11. Integrity of the highest order is the fundamental basis of the prestige of the police.  Recognising this, the police must keep their private lives scrupulously clean, develop self-restraint and be truthful and honest in thought and deed, in both personal and official life, so that the public may regard them as exemplary citizens.
  12. The police should recognise that they can enhance their utility to the administration and the country only by maintaining a high standard of discipline, unstilted obedience to the superiors and loyalty to the Force and by keeping themselves in a state of constant training and preparedness.
  13. Every Police Officer shall be considered to be always on duty and shall be liable for service anywhere in India and shall have the powers, duties, privileges and liabilities of a Police Officer wherever employed as such.
  14. Observance of human rights is of paramount importance for the Police.  The Police as an Institution are accountable to the people and the Police role and functions are comprehensive of not only law enforcement but also several other functions  which include social services and emergency services.  The Police should see that they do not violate the human right norms and they should respect human dignity in all its dimensions.   It should be remembered that the observance of human rights can best be sustained by following the principles of rule of law.

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Police Reforms in India: Crucial for ‘HUMAN RIGHTS’

Police Reforms in India: Crucial for ‘HUMAN RIGHTS’ Print E-mail

 

Written by Shantanu
altPeople cannot take the law into their own hands. The rationale behind this reasoning is that the state is present to protect its citizens and to create an environment for realization of human rights. Citizens only have a limited right vested in themselves to protect their or anyone else’s person or property which is guaranteed by the right of private defence. There is no right of private defence in cases where there is adequate time to have recourse to public protection [2]. Anyone employing his right of private defence must justify that there was no reasonable time to approach the state institutions for help. Thus, citizens claim protection from the state for their welfare and it is the reciprocal obligation of the state to ensure the ‘rule of law’ through its institutions.
The primary institution on which the state relies for the maintenance of law and order is the police. In order to achieve this objective, the police are empowered to use limited coercive power thereby creating conditions for realization of human rights [3]. The constitution itself and the international treaties and covenants ratified by India [4] cast a duty on the state to protect and promote human rights. Article 2(3)(a) of the International Covenant on Civil and Political Rights mandates every state party to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity. By virtue of being born a human, everybody has human rights which are inalienable and indivisible.

Human rights are core values which the police have a moral as well as a legal duty to uphold. This is the essential difference that distinguishes good policing from bad. While discharging their duty, police have to confront human rights. In order to ensure the security and safety of the common mass, police cannot belittle the rights of an individual or a marginalized community. They have to maintain the delicate balance between protecting human rights and preserving the security of the people, which though difficult, is not impossible to achieve. Unfortunately, Indian police choose the easy way out.

THE NEED FOR REFORM
Police in India, until recently, was governed by the colonial Police Act of 1861 enacted by the British. This statute did not meet the tripartite standards of accountability, transparency and equity. It was meant for subjects not for the free citizens of a democracy. A global survey showed that at best, the Police are inactive; at worst they “actively harass, oppress and brutalise” [5]. As for example on the morning of 10th June 2008, the media reported that a 25-year-old woman who was allegedly raped by two policemen at the station house committed ‘suicide’ at the Haryana police headquarters in panchkula after two months of struggle for justice. Police would not register her complaint, and instead intimidated her to keep quiet. Unfortunately, the redressal machinery swung to action only when she paid for it with her life [6]. This is merely a glimpse of the grim picture that pervades the country.

The reports of the National Human Rights Commission provides a clear picture of the situation pervailing in the country. A total of 85,661 cases disposed of in 2004-2005; 38,448 were dismissed ‘in limini’, while 21,465 were disposed of with directions to the appropriate authorities for remedial measures. 766 complaints related to custodial deaths, 46 cases pertained to encounter deaths and 24,936 other cases were also disposed of after calling for reports from the concerned authorities. In the latter group, 24 cases pertained to alleged disappearances, 1086 cases related to illegal detention/ illegal arrest, and 1213 cases were of alleged false implication. There were, in addition, 16 cases of alleged custodial violence, 84 cases of alleged ‘fake encounters’, 6833 instances of failure to take appropriate action and 6488 complaints related to other alleged police excesses [7].

In a study on the “Image of Police in India”, over 50% of the respondents mentioned ‘non registration of complaint’ as a pervasive malpractice in police stations [8]. The Law Commission of India examined the subject and recommended the insertion of a specific provision in the Indian Penal Code. The commission recommended that any officer who refused or without reasonable cause failed to record an FIR [9] be subject to imprisonment for a term of one year or fine or both [10]. However the government blatantly refused to accept this recommendation which could have been a potent armour in the hands of citizens against police harassment.

The National Police Commission (hereinafter referred to as “NPC”) correctly observed that the nexus between financially powerful groups and political power existing in India has a direct link to inequitable policing practices. Malafide exercise of power at different levels in the police is induced by such links. The problem of police corruption cannot, therefore, be satisfactorily tackled unless these links are broken [11]. The fundamental problem regarding the police today is how to make them function efficiently and impartially motivated and guided only by the objectives of the service to public at large, upholding the constitutional rights and liberty of the people [12].

Another aspect adding to the unfortunate plight of Indian citizens are the impunity provisions of the Code of Criminal Procedure (“CrPC”). Section 197 and 132 of the CrPC require the prior sanction of the government before prosecuting public servants for any offence alleged to have been done in discharge of their official duty. The object of the section is to guard public servants against vexatious proceedings and to secure the well-considered opinion of a superior authority before their prosecution [13]. However the blatant misuse of this provision concretizes itself in the form of police excesses which go unchecked.

Moreover the internal departmental enquiry mechanism whereby a superior official adjudges a complaint about his subordinates is an impediment to proper accountability due to the inevitable solidarity and fellowship among officers which impedes objectivity. Departmental enquiries do not always bring out the truth and are mostly biased in the favour of the policemen [14]. The inquiry officer is obsessed by a feeling that the exposure of the misconduct of any of his subordinates will be deemed as a stigma on his own administration and is, therefore, inclined to suppress a full exposure of the alleged misconduct [15].

THE ROAD AHEAD
Reforms in policing began with formation of the NPC on 15th November 1977. One among the many terms of reference of the Commission required it to recommend measures and institutional arrangements to ‘prevent misuse of powers by the police and misuse of police by administrative or executive instructions, political or other pressure, or oral orders of any type, which are contrary to law [16]. The NPC tabled eight reports before the government between of 1979-1981. However its recommendations were not implemented by the government of India.

In 1996, the two former Director Generals of Police filed Public Interest Litigation (PIL) in the Supreme Court of India to direct the centre and the state governments to take measures for improving the quality of policing in India and to make the police more accountable. The decision of the court in 2006 noted that having regard to the ‘gravity of the problem’ and ‘total uncertainty as to when police reforms would be introduced’, further waiting was not be possible and the stage had come for issuing appropriate directions for immediate compliance to be operative until such time a new legislation is enacted [17].

Article 141 declares that directions issued by the Supreme Court are binding on all courts in India and Article 144 of the Constitution of India mandates that all authorities civil or judicial shall act in the aid of the Supreme Court. This entails that judgments and interpretations of the Supreme Court have the force of law and failure to comply with court guidelines amounts to Contempt. Policing being a state subject in India, the Supreme Court gave a deadline of March, 2007 to all states for compliance with its directives and a monitoring committee has been set up to review its implementation.

The Supreme Court in this case gave directives which were to be followed till the states come up with their police acts.

First was to set up a State Security Commission which would insulate the police form unwarranted political interference. Political control is necessary but it needs to be conditioned in such a manner that political masters cannot take undue advantage. The primary responsibility of this commission is to lay down policy guidelines for service oriented policing, evaluate the functioning of the police and making binding recommendations to the government to that effect.

Second, the directives provide for a minimum fixed tenure of two years for the Chief of Police and four other police officers [18] on operational duties in the field. The court expressed its shock over the frequent transfer of Superintendents of Police for whimsical reasons and observed that this trend leads to demoralization of the police force.

Third, the directives call for the separation of investigation from law and order which was also recommended by the Law Commission of India in its 154th report. This would ensure faster, accurate and fairer processes so that rule of law is maintained. Presently, law and order is prioritized over investigation work which leads to loss of material evidence crucial for the case under consideration.
Fourth, the Court’s directive mandate the creation of a Police Establishment Board which would be a departmental body to oversee the transfer and posting of the officials above the rank of Deputy Superintendent of Police.

Fifth and the most important, the judgment directs to set up Police Complaints Authority in states to inquire into allegations of complaint of public against the men in uniform. This is supposed to be an independent body comprised of civil society members to ensure that justice is done without prejudice to any party. However states are trying to dilute the neutrality of the complaint authority by increasing the number of policemen on the Complaint Authority in the guise of independent members [19]. This would annul the efficacy of having a complaint authority.

CONCLUSION
The Supreme Court’s directives are a welcome step however some of the areas are still open to misuse. They do not in any way effect the impunity provisions in the CrPC, the misuse of which is a major cause of harassment to the citizens. The institution of police must function according to the rule of law and not according to the rule of politics. Policing must not be partisan in anyway towards people with clout ignoring the voice of the marginalized. Police is to be a service oriented institution composed of professionally trained officers where there is no dilution in command and responsibility. Only then can we imagine a democracy with equity pervading throughout.

However, the states have been reluctant to implement the directives of the Supreme Court. Most of the states have or are trying to pass the new Police Acts but have diluted the directives leaving lacunae in place for police to act discretionarily and facilitating entrenchment by the political executive. This is a significant blow to all civil society members who turn to state and the police to protect their human rights. The entire campaign towards reform has been compromised by those who want to protect their narrow and partisan interests.

The Supreme Court has set up a monitoring committee to review the implementation of its directives. As members of civil society, we can only hope that Supreme Court will take cognizance of the situation and address the urgent need to protect human rights by ensuring the proper implementation of its directives.

SUGGESTIONS

  1. The eighth report of the NPC recommended that protection available to the police officers from prosecution under section 132 and 197 of the Code of Criminal Procedure which mandate prior sanction of the government in order to prosecute any public servant including police official for any act done in discharge of his official duty be withdrawn or that a proviso be added to the section to initiate automatic judicial enquiry in every refusal to prosecute. This recommendation must be implemented. Making the police more accountable would deter police officials from harassing citizens.
  2. There should be an independent board composed of civil society members with no police officials on-board which should enquire into any allegations of complaints against police officials. This would ensure that every victim of human rights violation has a platform for redressal, making the police accountable.
  3. The law in books must be put to practice and this can only be ensured by imparting human rights education. Principle and practice should not differ and therefore training in human rights laws should be made compulsory for all police officials. This will sensitize and inculcate respect for human rights in them and also improve police-public relations.
  4. If any violation of human rights has been committed by a subordinate officer and subsequently the superior officer, even after the incident came to his knowledge, does not institute disciplinary action against him then there should be a presumption about his complicity in executing the incident.
    REFERENCE

    1. The author is a second year law student at Chanakya National Law University, Patna.
    2. Section 99 of the Indian Penal Code, 1860
    3. Section 2(1) (d) of the Protection of Human Rights Act, 1993 defines human rights as, “rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the international covenants and enforceable by the court in India.
    4. On 10th July 1979, India ratified the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, the two primary international covenants on Human Rights.
    5. “The World Bank: Can anyone hear us? Voices from 47 countries, December, 1999” cited in “Police Practices: Obstruction to Poor People’s Access to Justice”, G. P. Joshi, (Commonwealth  Human Rights Initiative Publication, 2003) , p. 7 para 1
    6. “Alleging rape by cops who held husband for theft, woman ends life at police head quarters” found on http://www.indianexpress.com/story/320887.html visited on 10th June 2008
    7. Annual Report of the National Human Rights Commission for the year 2004-2005, at para 4.5
    8. The National Police Commission, Government of India, Fourth Report, June 1980, p. 1
    9. First Information Report is the earliest information received by the police about the commission of a cognizable offence. This sets the Criminal Justice system in motion.
    10. Law Commission of India, Eighty Fourth Report, April 1980, p. 20
    11. The National Police Commission, Government of India: Third Report, January 1980, p. 27
    12. As noted in the Preamble to the First Report of the National Police Commission, (Feb, 1979)
    13. R.R.Chari v. State of U.P AIR 1962 SC 1573.
    14. The National Police Commission, Government of India: First Report, February 1979, p.58 para 10.7
    15. The National Police Commission, Government of India: First Report, February 1979,p. 59 para 10.11
    16. Government of India’s resolution no. VI-24021/36/77-GPA.I, 15 November 1997, Term of Reference No. 10 (i) and (ii).
    17. See Prakash Singh and others v. Union of India (2006) 8 SCC 1 at para10
    18. These include the Inspector General of Police in-charge zone, the Deputy Inspector General in-charge of a range, the Superintendent of Police in-charge of a district and the Station House Office in-charge of a Police Station.
    19. As for example The Chhattisgarh Police (Amendment) Act, 2008 deleted Section 40(c) of the Chhattisgarh Police act which prevented serving and recently retired police official to members of the Police Complaint Authority.


    Information about the author

    Shantanu is presently a third year student pursuing B.A.LL.B (Hons.) at Chanakya National Law University, Patna. His area of interests includes writing articles thereby contributing to the present legal discourse.

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