PUBLIC PROSECUTOR SECTION 24

1. LAXMANBHAI RUPCHAND MEGHWANI V. STATE OF GUJARAT

section24 (3) of the criminal procedure code read with rule 4(5).
Mandatory procedure under section 24 has to be followed.
The challenge was to the appointment of one Shri Raghuvir Pandya as the District Government
Pleader and Public Prosecutor at Vadodara. This Court quashed the appointment for the various
reasons assigned in the judgment. This Court also issued certain directions as to how a Public
Prosecutor in the District should be appointed.
The communication is clearly provides that as per section24(3) of the criminal procedure
code read with rule 4(5) of the Law Officers Rules2009 the panel is to be prepared in
consultation with the Principal District Judge. This communication dated 16.11.2017 is
forwarded to the District Magistrate and the necessary action would be taken after the panel is
received from District Magistrates.

2. Sunil Kumar Pal vs Phota Sheikh and Ors. on 13 August, 1984

Nothing related to section 24

3. Jayesh Pratap Doshi vs State Of Maharashtra on 25 November, 2010

These are group of writ petitions and the intervention applications therein moved to question
the legality and propriety of the decisions taken by the State of Maharashtra in the matters of
appointment of special Public Prosecutors under Section 24(8) of the Code of
Criminal Procedure, 1973.
The objections to the appointment of respondent Nos.4 & 5 as Special Prosecutors are:-
a. Nothing has been shown to say that the public prosecutors in-charge of the case is
incompetent to conduct the trial or suffers from such disqualification material to the
duty casts on him.
b. No circumstances are evident so as to make out a case that the appointment of Special
Prosecutor is warranted out of public interest.
c. There is no circumstances to show that the case would not be properly or competently
conducted by the Public Prosecutor and the nature of the offence is such that it is
required to be tried by a Special Prosecutor.
d. The Special Prosecutors appointed have been remaining absent during the course of
cross examination of the complainant.
e. No irregularity has been committed by the Prosecutor in conduct of the case.
f. The appointment of the Special Prosecutors is contrary to the Rules and Regulations as
well as to the judicial pronouncements made by the Hon'ble Supreme Court.
"The duties of the Prosecutor and the requirements of a fair trial do not vary from case to case.
Besides, there is always the Court to safeguard the interests of the accused and the complainant,
to control the proceedings and to check omissions and commissions of the Prosecutor. The
Court is not a silent spectator to the proceedings, but an active participant in it. .......... This role
of the Court does not vary from prosecution to prosecution. To accept the argument advanced
on behalf of the petitioners therefore is to hold that the trials in private prosecutions and those
in State prosecutions vary in character and while the latter are fair, just and impartial, the former
are not. Such a proposition is not only inequitable but also perilous. For it must logically lead
to banning of all private prosecutions. It is for these reasons that we are unable to accept the
theory that where Special Public Prosecutors are appointed whether paid by the State or the
private party, the prosecution and the trial must be presumed to be biased, partial or unfair."1
In Abdul Kahader Musliar's case (supra) as well as in Rajendra Nigam's case (supra), the Courts
have observed that a Special Public Prosecutor is not to be appointed in ordinary circumstances
and the authorities concerned should properly examine the request for appointment of Special
Public Prosecutor. Shiv Kumar's case (supra) emphasizes primacy of the Public Prosecutor in
relation to a private counsel instructed by a complainant in conduct of a criminal case. In
Poonamchand Jain's case (supra), absence of material showing incompetence of a Public
Prosecutor to conduct trial as well as the absence of special circumstances warranting
appointment of Special Public Prosecutor led to quashing of the order of appointment of
Special Public Prosecutor. Lack of objectivity in assessing the facts and circumstances on the
part of the concerned authorities in making the appointment of Special Public Prosecutor also
propelled quashing of such appointment. In Madho Singh's case (supra) need to act fairly and
without undue haste in the matter of appointment of Special Public Prosecutor was given a due
weightage. In K.V. Shiva Reddy's case (supra) the need for manifestation of the objective
satisfaction of the concerned authorities in the matter of appointment of Special Public
Prosecutor was highlighted.
Guidelines for the appointment of special public prosecutor are as follow:
A Division Bench of this Court in Prakash Prahlad Patil's case; 2008 All MR (Cri) 2051 -
Prakash Prahlad Patil V/s. State of Maharashtra upon considering the provisions of Section
24(8) of the Code of Criminal Procedure read with Rule 22 of the Conduct Rules and the law
on the subject formulated guidelines for the appointment of Special Public Prosecutor as
follows :

"(a) The appointment of a Special Public Prosecutor is not to be made merely for the sake of
asking and it is not that whenever an application is made, it should be allowed and a Special
Public Prosecutor is appointed.

(b) Without scrutinizing, on the basis of the guidelines prescribed, the services of a Special
Public Prosecutor should not be made available to a private complainant.

(c) The request for appointment of a Special Public Prosecutor should be properly examined
by the RLA and only when he is satisfied, having regards to the nature of the case, gravity of
the matter and public interest involved in the matter, that such appointment is necessary.
(d) An Advocate being appointed as a Special Public Prosecutor has to be in practice for not
less than ten years and regard must be had to his general repute, legal acumen and suitability.
(e) Before acceding to the request by any private party for appointment of a Special Public
Prosecutor, it is necessary for the Remembrancer of Legal Affairs RLA to get himself satisfied
about the necessity of such appointment having regard to the nature of the case, gravity of the

1
Vijay Valia & Others V/s. The State of Maharashtra & Others, 1986 Cri.L.J. 2093
matter and public interest involved therein. Such satisfaction should be reflected from the order
recorded in writing by the RLA while approving the appointment.
(f) The RLA must be satisfied that the case wherein such appointment is requested for deserves
and the prevailing circumstances need the appointment of a Special Public Prosecutor.
(g) The points relating to the person's reputation and experience at Bar should find place in the
consideration by the RLA and it should not be a mechanical exercise on his part.
(h) Such appointment shall be, on consideration of all the relevant factors in relation to a
particular case or class of cases and the consideration thereof should be apparent from the order
of appointment issued by such authority and it is not necessary that the notification for such
appointment need reflect the entire order itself.
(i) The payment of fees of the Special Public Prosecutor, the quantum as well as source of
payment should not only be specified but should also be reasonable and justified."
4. Radhakrishnan and Ors v Anil Kumar and Ors, 2015
Can the prosecution in a case before the Court of a Magistrate be conducted by a Special
Public Prosecutor appointed by the Government for the said case?
Section 24(3) CrPC says: "For every District, the State Government shall appoint a Public
Prosecutor and may also appoint one or more Additional Public Prosecutors for the District:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one District
may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case
may be, for another District." 4. When such an appointment of a Public Prosecutor is for a
District, it cannot be said that such a Prosecutor cannot conduct a prosecution in a case before
a Court of a Magistrate. At the same time, going by the scheme of the Code, it can be said that
an Assistant Public Prosecutor cannot conduct a prosecution in a Sessions case before the
Sessions Court.
As per Section 25(1) CrPC the State Government shall appoint in every District one or more
Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates. It does
not mean that a Public Prosecutor, who is appointed by the Government, cannot conduct a
prosecution in a case before a Court of a Magistrate. There cannot be an appointment of a
Special Assistant Public Prosecutor as per the Code. What is permitted as per Section 24(8) of
CrPC is the appointment of a Special Public Prosecutor. As per Section 302(1) CrPC any
Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any
person other than Police Officer below the rank of Inspector; but no person, other than the
Advocate General or Government Advocate or a Public Prosecutor or Assistant Public
Prosecutor, shall be entitled to do so without such permission. Therefore, it is evident that when
the Advocate General or Government Advocate or Public Prosecutor or Assistant Public
Prosecutor, is appearing before a Court of a Magistrate for conducting a prosecution, any
permission from the Court of a Magistrate is not required. Only in cases wherein persons other
than the aforesaid persons are appearing before a Court of a Magistrate for conducting a
prosecution, such permission is required. That provision clearly shows that a Public Prosecutor
also can conduct a prosecution before a Court of a Magistrate and in such case, even the
permission of the Court of a Magistrate is not required. Matters being so, there is no merit in
the present arguments resorted to by the learned counsel for the petitioners. Therefore, this Writ
Petition is devoid of merits and it is only to be dismissed, and I do so.
5. State of UP vs Johri Mal, 2004.
Question as regard interpretation of Section 24.
"In the present case the District Judge has recommended in favour of the petitioner and no good
or cogent reason has been assigned for rejecting the recommendation of the District Judge.
Hence we direct the petitioner's term as DGC (Criminal) to be renewed forthwith by the State
Government." The learned Judges further opined: "The Supreme Court has observed in Special
Reference No. 1 of 1998 that the Chief Justice of India means not the Chief Justice of India
alone but in consultation with his four senior most colleagues. No doubt this judgment was
given in the context of appointments of Judges in the Supreme Court and High Courts, but in
our opinion the spirit of the judgment is applicable to the present case also since the intention
was to keep the administration of justice away from political considerations. Hence in our
opinion the District Judge should not make the recommendation alone but in consultation with
the two senior most Judicial Officers in the District Court and also the CJM in the case of
recommendations for appointments in the Criminal side, and the senior most Civil Judge for
appointments on the civil side, and also the District Magistrate. In other words the
recommendation shall be by a collegium headed by the District Judge and consisting of the
above mentioned five members (consisting of four judicial officers and the District Magistrate).
If two members disapprove the name no recommendation will be made. No name will be
recommended if the District Judge disapproves. This, in our opinion, will be in accordance
with the norms laid down in the L.R. Manual. Such a recommendation will ordinarily be treated
as binding on the Government unless for some strong, cogent reasons to be recorded in writing
if the Government disagrees. We again make it clear that the recommendation must be made
purely on merit and competence ignoring caste, creed, religion or political affiliation."

6. Youth Bar Association Of India ... vs Union Of India And Others on 18 December,
2017

Facts of the case: A Writ of Mandamus was filed by the petitioner before the Supreme Court
of India, to direct the Union of India and the States to upload each and every FIR registered in
all the police stations within the territory of India in the official website of the police of all
States, as early as possible, preferably within 24 hours from the time of registration.

“Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives
and personal liberties except according to the procedure established by law. The said Article in
its broad application not only takes within its fold enforcement of the rights of an accused but
also the rights of the victim. The State has a duty to enforce the human rights of a citizen
providing for fair and impartial investigation against any person accused of commission of a
cognizable offence, which may include its own officers. In certain situations even a witness to
the crime may seek for and shall be granted protection by the State.”

The Court entertained the Writ and issued the following directions:

i. An accused is entitled to get a copy of the FIR at an earlier stage than as prescribed
under Section 207 of the CrPC.
ii. An accused who has reasons to suspect that he has been roped in a criminal case and
his name may be finding place in a FIR can submit an application through his
representative/agent/parokar for grant of a certified copy before the concerned police
officer or to the Superintendent of Police on payment of such fee which is payable for
obtaining such a copy from the Court. On such application being made, the copy shall
be supplied within twenty-four hours.
 iii. Once the FIR is forwarded by the police station to the concerned Magistrate or any
Special Judge, on an application being filed for certified copy on behalf of the accused,
the same shall be given by the Court concerned within two working days. The aforesaid
direction has nothing to do with the statutory mandate inhered under Section 207 of the
Cr.P.C.
iv. The copies of the FIRs, unless the offence is sensitive in nature, like sexual offences,
offences pertaining to insurgency, terrorism and of that category, offences under
POCSO Act and such other offences, should be uploaded on the police website, and if
there is no such website, on the official website of the State Government, within twenty-
four hours of the registration of the First Information Report so that the accused or any
person connected with the same can download the FIR and file appropriate application
before the Court as per law for redressal of his grievances. It may be clarified here that
in case there is connectivity problems due to geographical location or there is some
other unavoidable difficulty, the time can be extended up to forty-eight hours. The said
48 hours can be extended maximum up to 72 hours and it is only relatable to
connectivity problems due to geographical location.
v. The decision not to upload the copy of the FIR on the website shall not be taken by an
officer below the rank of Deputy Superintendent of Police or any person holding
equivalent post. In case, the States where District Magistrate has a role, he may also
assume the said authority. A decision taken by the concerned police officer or the
District Magistrate shall be duly communicated to the concerned jurisdictional
Magistrate.
vi. The word 'sensitive' apart from the other aspects which may be thought of being
sensitive by the competent authority as stated hereinbefore would also include concept
of privacy regard being had to the nature of the FIR. The examples given with regard
to the sensitive cases are absolutely illustrative and are not exhaustive.
vii. If an FIR is not uploaded, needless to say, it shall not ensure per se a ground to obtain
the benefit under Section 438 of the CrPC.
viii. In case a copy of the FIR is not provided on the ground of sensitive nature of the case,
a person grieved by the said action, after disclosing his identity, can submit a
representation to the Superintendent of Police or any person holding the equivalent post
in the State. The Superintendent of Police shall constitute a committee of three officers
which shall deal with the said grievance. As far as the Metropolitan cities are concerned,
where Commissioner is there, if a representation is submitted to the Commissioner of
Police who shall constitute a committee of three officers. The committee so constituted
shall deal with the grievance within three days from the date of receipt of the
representation and communicate it to the grieved person.
ix. The competent authority referred to hereinabove shall constitute the committee, as
directed herein-above, within eight weeks from today.
x. In cases wherein decisions have been taken not to give copies of the FIR regard being
had to the sensitive nature of the case, it will be open to the accused/his authorized
representative/parokar to file an application for grant of certified copy before the Court
to which the FIR has been sent and the same shall be provided in quite promptitude by
the concerned Court not beyond three days of the submission of the application.

7. Bandlamuddi Atchuta Ramaiah & ... vs State Of Andhra Pradesh on 26

September, 1996
A statement contained in the FIR furnished by one of the accused in the case cannot, in any
manner, be used against another accused. Even as against the accused who made it, the
statement cannot be used if it is inculpatory in nature nor can it be used for the purpose of
corroboration or contradiction unless its maker offers himself as a witness in the trial. The very
limited use of it is as an admission under section 21 of the Evidence Act against its maker alone
unless the admission does not amount to confession.

8. Faddi vs. The State of Madhya Pradesh: 1964

If the FIR given by the accused contains any admission as defined in Section 17 of the Evidence
Act there is no bar in using such an admission against the maker thereof as permitted under
Section 21 of the Act, provided such admission is not inculpatory in character. In the Judgment
their Lordships distinguished Nisar Ali's case (supra) in the following lines:

"But it appears to us that in the context in which the observation is made an in the
circumstances, which we have verified from the record of that case, that the Sessions Judge
had definitely held the first information report lodged by the co-accused who was acquitted, to
be inadmissible against Nisar Ali and that the High Court did not refer to it at all in its judgment,
this observation really refers to a first information report which is in the nature of a confession
by the maker thereof. Of course, a confessional first information report cannot be used against
the maker when he be an accused and necessarily cannot be used against a co-accused."

9. Aghnoo Nagesia vs State of Bihar: 1966

When the statement in the FIR given by an accused contains incriminating materials and it is
difficult to sift the exculpatory portion therefrom the whole of it must be excluded from
evidence.

10. State Of A.P vs V.V. Panduranga Rao on 4 May, 2009

Where the information is only one which required the police to move to the place of occurrence
and as a matter of fact the detailed statement was recorded after going to the place of
occurrence, the said statement is to be treated as FIR. But where some cryptic or anonymous
oral message which did not in terms clearly specify a cognizable offence cannot be treated as
FIR. The mere fact that the information was the first in point of time does not by itself clothe
it with the character of FIR. The matter has to be considered in the background of Sections
154 and 162 of the Code of Criminal Procedure, 1973 (in short the `Code'). A cryptic
telephonic message of a cognizable offence received by the police agency would not constitute
a FIR.

The object and purpose of giving a telephonic message is not to lodge the FIR but to request
the officer incharge of the police station to reach the place of occurrence. On the other hand if
the information given on telephone is not cryptic and on the basis of that information the officer
in charge is prima facie satisfied about the commission of a cognizable offence and proceeds
from the police station after recording such information to investigate such offence then any
statement made by any person in respect of the said offence including details about the
participants shall be deemed to be a statement made by a person to the police officer in the
course of investigation covered by Section 162of Code. That statement cannot be treated as
FIR. To put it differently any telephonic information about the commission of cognizable
offence irrespective of the nature of details of such information cannot be treated as FIR.
 11. Bable @ Gurdeep Singh vs State Of Chattisgarh ... on 10 July, 2012
Reverting to the submissions made on behalf of the appellant, we may refer to the fact that the
FIR had been lodged upon the statement of PW1. PW1 did not completely support the case of
the prosecution and with the permission of the Court he was declared hostile. The contention
is that the case of the present appellant would also stand equated to the case of the two acquitted
accused persons and the High Court has fallen in error of law in not acquitting the accused-
appellant as well. It cannot be denied that the FIR Ext.P-1 was registered upon the statement
of PW1 and he himself has not supported the case of the prosecution, which creates a doubt in
the case of the prosecution.
Once registration of the FIR is proved by the Police and the same is accepted on record by the
Court and the prosecution establishes its case beyond reasonable doubt by other admissible,
cogent and relevant evidence, it will be impermissible for the Court to ignore the evidentiary
value of the FIR. The FIR, Ext. P1, has duly been proved by the statement of PW10, Sub-
Inspector Suresh Bhagat. According to him, he had registered the FIR upon the statement of
PW1 and it was duly signed by him. The FIR was registered and duly formed part of the records
of the police station which were maintained in normal course of its business and investigation.
Thus, in any case, it is a settled proposition of law that the FIR by itself is not a substantive
piece of evidence but it certainly is a relevant circumstance of the evidence produced by the
Investigating Agency. Merely because PW1 had turned hostile, it cannot be said that the FIR
would lose all its relevancy and cannot be looked into for any purpose. In the present case,
PW11 and PW14 are the two persons who had reached the place of incident immediately after
the occurrence. They were instantaneously told by the deceased as to who the assailants were.
They have substantially supported what had been recorded in the FIR which further stands
corroborated by the medical evidence and the statements of other witnesses. In these
circumstances, we cannot discredit the statements of PW11 and PW14 merely because PW1
has turned hostile. Besides this, in furtherance to the statements of the accused persons,
recovery of the weapons used in the crime was effected.
The legislative scheme contained under the provisions of Section 313 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) is to put to the accused all the incriminating material against him
and it is equally important to provide an opportunity to the accused to state his case. It is the
option of the accused whether to remain silent or to provide answer to the questions asked by
the Court. Once the accused opts to give answers and, in fact, puts forward his own defence or
the events as they occurred, then the accused is bound by such statement and the Court is at
liberty to examine it in light of the evidence produced on record.
Delay in filing FIR and sending it to magistrate
12. Ravi Kumar vs State Of Punjab on 4 March, 2005
Sending the copy of the special report to the Magistrate as required under Section 157 of the
Cr.P.C. is the only external check on the working of the police agency, imposed by law which
is required to be strictly followed. The delay in sending the copy of the FIR may by itself not
render the whole of the case of the prosecution as doubtful but shall put the court on guard to
find out as to whether the version as stated in the Court was the same version as earlier reported
in the FIR or was the result of deliberations involving some other persons who were actually
not involved in the commission of the crime. Immediate sending of the report mentioned
in Section 157 CrPC. is the mandate of law. Delay wherever found is required to be explained
by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but
failure to explain the delay would require the court to minutely examine the prosecution version
for ensuring itself as to whether any innocent person has been implicated in the crime or not.
Obtaining signature of witnesses
13. State Of Rajasthan vs Teja Ram And Others on 1 February, 2000
Learned counsel, in this context invited our attention to one step which PW21 (Investigating
Officer) had adopted while preparing the seizure memos Ex.P3 and Ex.P.4. He obtained the
signature of the accused concerned in both the seizure memos. According to the learned counsel
the aforesaid action of the Investigating Officer was illegal and it has vitiated the seizure. He
invited our attention to section 162(1) of the Code which prohibits collecting of signature of
the person whose statement was reduced to writing during interrogation. The material words
in the sub-section are these: No statement made by any person to a police officer in the cause
of investigation under the chapter, shall, if reduced to writing, be signed by the person making
it;
No doubt the aforesaid prohibition is in peremptory terms. It is more a direction to the
investigating officer than to the court because the policy underlying the rule is to keep witnesses
free to testify in court unhampered by anything which the police claim to have elicited from
them. (Tahsildar Singh vs. State of UP AIR 1959 SC 1012 and Razik Ram vs. JS Chouhan AIR
1975 SC 667). But if any Investigating Officer, ignorant of the said provision, secures the
signature of the person concerned in the statement, it does not mean that the witnesses
testimony in the court would thereby become contaminated or vitiated. The Court will only
reassure the witness that he not bound by such statement albeit his signature finding a place
thereon.
Sting Operation
14. Rajat Prasad vs C.B.I on 24 April, 2014
The expression ‘sting operation’ seems to have emerged from the title of a popular movie called
“The Sting” which was screened sometime in the year 1973. The movie was based on a
somewhat complicated plot hatched by two persons to trick a third person into committing a
crime. Being essentially a deceptive operation, though designed to nab a criminal, a sting
operation raises certain moral and ethical questions. The victim, who is otherwise innocent, is
lured into committing a crime on the assurance of absolute secrecy and confidentiality of the
circumstances raising the potential question as to how such a victim can be held responsible
for the crime which he would not have committed but for the enticement. Another issue that
arises from such an operation is the fact that the means deployed to establish the commission
of the crime itself involves a culpable act.
Unlike the U.S. and certain other countries where a sting operation is recognized as a legal
method of law enforcement, though in a limited manner as will be noticed hereinafter, the same
is not the position in India which makes the issues arising in the present case somewhat unique.
In R vs. Mack[5], it has been explained by the Canadian Supreme Court that entrapment occurs
when (a) the authorities provide a person with an opportunity to commit an offence without
acting on a reasonable suspicion that this person is already engaged in criminal activity or
pursuant to a bona fide inquiry, and, (b) although having such a reasonable suspicion or acting
in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the
commission of an offence. The following factors determine whether the police have done more
than provide an opportunity to commit a crime.
(1) The type of crime being investigated and the availability of other techniques for the police
detection of its commission.
(2) whether an average person, with both strengths and weaknesses, in the position of the
accused would be induced into the commission of a crime;
(3) the persistence and number of attempts made by the police before the accused agreed to
committing the offence;
(4) the type of inducement used by the police including: deceit, fraud, trickery or reward;
(5) the timing of the police conduct, in particular whether the police have instigated the offence
or became involved in ongoing criminal activity;
(6) whether the police conduct involves an exploitation of human characteristics such as the
emotions of compassion, sympathy and friendship;
(7) whether the police appear to have exploited a particular vulnerability of a person such as a
mental handicap or a substance addiction;
(8) the proportionality between the police involvement, as compared to the accused, including
an assessment of the degree of harm caused or risked by the police, as compared to the accused,
and the commission of any illegal acts by the police themselves;
(9) the existence of any threats, implied or express, made to the accused by the police or their
agents;
(10) whether the police conduct is directed at undermining other constitutional values.
Nonetheless, the question that arises in the present case is what would be the position of such
operations if conducted not by a State agency but by a private individual and the liability, not
of the principal offender honey trapped into committing the crime, but that of the sting operator
who had stained his own hands while entrapping what he considers to be the main crime and
the main offender. Should such an individual i.e. the sting operator be held to be criminally
liable for commission of the offence that is inherent and inseparable from the process by which
commission of another offence is sought to be established? Should the commission of the first
offence be understood to be obliterated and extinguished in the face of claims of larger public
interest that the sting operator seeks to make, namely, to expose the main offender of a serious
crime injurious to public interest? Can the commission of the initial offence by the sting
operator be understood to be without any criminal intent and only to facilitate the commission
of the other offence by the “main culprit” and its exposure before the public? These are some
of the ancillary questions that arise for our answer in the present appeals and that too at the
threshold of the prosecution i.e. before the commencement of the trial
15. The answer to the above, in our considered view would depend, as in any criminal case, on
the facts and circumstances thereof. A crime does not stand obliterated or extinguished merely
because its commission is claimed to be in public interest. Any such principle would be
abhorrent to our criminal jurisprudence. At the same time the criminal intent behind the
commission of the act which is alleged to have occasioned the crime will have to be established
before the liability of the person charged with the commission of crime can be adjudged. The
doctrine of mens rea, though a salient feature of the Indian criminal justice system, finds
expression in different statutory provisions requiring proof of either intention or knowledge on
the part of the accused. Such proof is to be gathered from the surrounding facts established by
the evidence and materials before the Court and not by a process of probe of the mental state
of the accused which the law does not contemplate. The offence of abetment defined by Section
107 of the IPC or the offence of criminal conspiracy under Section 120A of IPC would, thus,
require criminal intent on the part of the offender like any other offence. Both the offences
would require existence of a culpable mental state which is a matter of proof from the
surrounding facts established by the materials on record. Therefore, whether the commission
of offence under Section 12 of the PC Act read with Section 120B IPC had been occasioned
by the acts attributed to the accused appellants or not, ideally, is a matter that can be determined
only after the evidence in the case is recorded. What the accused appellants assert is that in
view of the fact that the sting operation was a journalistic exercise, no criminal intent can be
imputed to the participants therein. Whether the operation was really such an exercise and the
giving of bribe to A-1 was a mere sham or pretence or whether the giving of the bribe was with
expectation of favours in connection with mining projects, are questions that can only be
answered by the evidence of the parties which is yet to come. Such facts cannot be a matter of
an assumption. Why in the present case there was a long gap (nearly 12 days) between the
operation and the circulation thereof to the public is another relevant facet of the case that
would require examination. The inherent possibilities of abuse of the operation as
videographed, namely, retention and use thereof to ensure delivery of the favours assured by
the receiver of the bribe has to be excluded before liability can be attributed or excluded. This
can happen only after the evidence of witnesses is recorded. Also, merely because in the
charge-sheet it is stated that the accused had undertaken the operation to gain political mileage
cannot undermine the importance of proof of the aforesaid facts to draw permissible
conclusions on basis thereof as regards the criminal intent of the accused in the present case.
16. An issue has been raised on behalf of the appellants that any finding with regard to the
culpability of the accused, even prima-facie, would be detrimental to the public interest
inasmuch as any such opinion of the Court would act as an inhibition for enterprising and
conscious journalists and citizens from carrying out sting operations to expose corruption and
other illegal acts in high places. The matter can be viewed differently. A journalist or any other
citizen who has no connection, even remotely, with the favour that is allegedly sought in
exchange for the bribe offered, cannot be imputed with the necessary intent to commit the
offence of abetment under Section 12 or that of conspiracy under Section 120B IPC. Non
applicability of the aforesaid provisions of law in such situations, therefore, may be ex-facie
apparent. The cause of journalism and its role and responsibility in spreading information and
awareness will stand subserved. It is only in cases where the question reasonably arises whether
the sting operator had a stake in the favours that were allegedly sought in return for the bribe
that the issue will require determination in the course of a full- fledged trial. The above is
certainly not exhaustive of the situations where such further questions may arise requiring a
deeper probe. As such situations are myriad, if not infinite, any attempt at illustration must be
avoided.
15. Aniruddha Bahal vs State on 24 September, 2010
This Court can quash an FIR only if all the facts stated in it even if considered true, do
not disclose commissioning of a cognizable offence. In the instant case, it is the
admitted case of the petitioners that there was a cognizable offence committed, although
their case is that the offence was not committed by them but it was committed by
Members of Parliament. In any event, investigation has to be there in the commission
of offence and police is bound to book all those who committed the crime. The
protection, as claimed by the petitioners under Section 24 of the Prevention of
Corruption Act and under Section 12can be claimed only during trial and not at the
stage of registration of an FIR.
9. It is obligatory on the part of police to investigate into the crime in full and not in a piecemeal
manner. The police is directed to book all those persons involved in the offence of taking bribe,
their middlemen and to get them punished according to law. The police cannot book only the
middlemen and the media persons and leave the real recipients of bribe untouched. If this is
done, this would not only violate the principle of equality before law guaranteed under the
Constitution of this Country but also would reflect subservient character of criminal justice
system. This would also give a cause to the people to behave that giving and taking of bribe is
a privilege of Members of Legislature".

This Court also passed following directions in above matter:

"(i) Police shall investigate into the entire offence involving middlemen, Members of
Parliament and others who indulged into corruption and accepted bribe for asking and tabling
questions in the Parliament. Since the entire investigation is document-based and the reports
of the Committees are already there, the investigation must be completed within a period of 60
days from today and charge sheet be filed in respect of the offenders who committed the
offences under Prevention of Corruption Act.

(ii) The petitioners, who claimed to have acted in the public interest are at liberty to seek
protection from arrest, if they so desire under appropriate provisions of law.

(iii) The investigating agency shall not single them out and leave MPs from scope of
investigation and action.

(iv) Protection and benefits under the provisions of Section 24 of Prevention of Corruption Act
and under other provisions of law shall be available to the petitioners during trial"

By way of present petitions, the petitioners have sought that no cognizance of offence should
be taken against them since they were not the offenders and the sting operation was conducted
by them to expose corruption and not to commit a crime. They rather should have been arrayed
as witnesses by the prosecution but instead of arraying them as the witnesses they were made
accused with the sole aim to kill the case itself, so that case fails without witnesses. It is
submitted by counsel for the petitioners that the petitioners cannot be placed in the category of
accomplices in the offence and the learned trial court has wrongly taken cognizance against
them. The petitioners were performing their duties as citizen of this country by exposing the
rampant corruption and Crl.MC No.2793.09& 3194.09 Page 3 Of 8 bringing the same to the
notice of authorities the offence was being committed by some of the Hon'ble Members of
Parliament and middlemen.

Whether a citizen of this country has a right to conduct such sting operation to expose
the corruption by using agent provocateurs and to bring to the knowledge of common
man, corruption at high strata of society.
The Constitution [Part-IVA] lays down certain fundamental duties for the citizens of this
country and Article 51A(b) provides that it is the duty of every citizen of India to cherish and
follow the noble ideals which inspired our national struggle for freedom. I consider that one of
the noble ideals of our national struggle for freedom was to have an independent and corruption
free India. The other duties assigned to the citizen by the Constitution is to uphold and protect
the sovereignty, unity and integrity of India and I consider that sovereignty, unity and integrity
of this country cannot be protected and safeguarded if the corruption is not removed from this
country. Another duty of every citizen is to defend the country and render national service
when called upon to do so. I consider that a country cannot be defended only by taking a gun
and going to border at the time of war. The country is to be defended day in and day out by
being vigil and alert to the needs and requirements of the country and to bring forth the
corruption at higher level. The duty under Article 51A(h) is to develop a spirit of inquiry and
reforms. The duty of a citizen under Article 51A(j) is to strive towards excellence in all spheres
so that the national constantly rises to higher level of endeavour and achievements I consider
that it is built-in duties that every citizen must strive for a corruption free society and must
expose the corruption whenever it comes to his or her knowledge and try to Crl.MC
No.2793.09& 3194.09 Page 4 Of 8 remove corruption at all levels more so at higher levels of
management of the State.
I consider that it is a fundamental right of citizens of this country to have a clean incorruptible
judiciary, legislature, executive and other organs and in order to achieve this fundamental right,
every citizen has a corresponding duty to expose corruption wherever he finds it, whenever he
finds it and to expose it if possible with proof so that even if the State machinery does not act
and does not take action against the corrupt people when time comes people are able to take
action either by rejecting them as their representatives or by compelling the State by public
awareness to take action against them.
It is argued by learned counsel for the State that the petitioners in this case in order to become
witnesses should have reported the matter to CBI rather conducting their own operation. I need
not emphasize that in cases of complaints against the persons, in powers how CBI and police
acts. The fate of whistle blowers is being seen by the people of this country. They are either
being harassed or being killed or roped in criminal cases. I have no doubt in my mind that if
the information would have been given by the petitioners to the police or CBI, the respective
MPs would have been given information by the police, before hand and would have been
cautioned about the entire operation.
Section 144
16. Mohd. Ghulam Abbas & Ors. v. Mohd. Ibrahim
The Magistrate is not concerned with individual rights in performing his duty under Section
144 but he has to determine what may be reasonably necessary or expedient in a situation of
which he is the best judge. If any community or sect is disposed to transgress the rights of
another in a particular property habitually, the remedy lies by way of a civil suit for an
injunction.
If public peace and tranquili ty or other objects mentioned there are not in danger the Magistrate
concerned cannot act under Section 144. He could only direct parties to go to the proper forum.
17. Gulam Abbas v. State of U.P.
Whether an Order made under s. 144 Criminal Procedure Code is judicial or quasi-judicial
order or whether it is passed in exercise of an executive power in performance of executive
function amenable to writ jurisdiction under Art. 32 of the Constitution?
"When a Judge deals with matters brought before him for adjudication, he first deals with
questions of facts on which the parties are at issue, and then applies the relevant law to the said
facts. Whether the findings of fact recorded by the Judge are right or wrong and whether the
conclusions of law drawn by him suffers from any infirmity, can be considered and decided if
the party aggrieved by the decision of the Judge takes the matter up before the Appellate Court.
But it is singularly inappropriate to assume that a judicial decision pronounced by a Judge of
competent jurisdiction in or in relation to a matter brought before him for adjudication can
affect the fundamental rights of the citizens under Art 19(1). What the judicial decision purports
to do is to decide the controversy between the parties brought before the court and nothing
more. If this basic and essential aspect of the judicial process is borne in mind, it would be
plain that the judicial verdict pronounced by Court in or in relation to a matter brought before
it for its decision cannot be said to affect that fundamental rights of citizens under Art. 19(1)."
The usual way of classifying the functions of Magistrates under the Code of Criminal
Procedure and various other statutes is to divide them into three broad categories, namely-
(a) Functions which are 'police' in their nature, as for instance, the handling of unlawful
assemblies;
(b) functions of an administrative character, as for instance, the issue of licences for fire-arms,
etc., etc.; and
(c) functions which are essentially judicial, as for instance, the trial of criminal cases. The
essential features of the scheme for separation (it is stated) would be, that purely judicial
functions coming under category (c) above are transferred from the Collector and Magistrates
subordinate to him, to a new set of officers who will be under the control not of the Collector
but of the High Court. Functions under (a) and (b) above will continue to be discharged by the
Collector and the Revenue Officers subordinate to him." Again in para 43 the Law Commission
observed thus:
"43. It is in this background that the concept of separation has to be understood. In its essence,
separations means separation of judicial and executive functions in such manner that the
judicial functions are exercised by the judiciary which is not controlled by the executive. This
would ensure that influence of the executive does not pollute the administration of criminal
justice."2
Turning to the 1973 Code itself the scheme of separating judicial Magistrates from executive
Magistrates with allocation of judicial functions to the former and the executive or
administrative functions to the latter, as we shall presently indicate, has been implemented
in the Code to a great extent. Section 6 provides that there shall be in every State four classes
of Criminal Courts, namely, (1) Courts of Session, (ii) Judicial Magistrates of the First Class
and, in any Metropolitan area, Metropolitan Magistrates; (iii) Judicial Magistrates of the
Second Class; and (iv) Executive Magistrates; ss. 8 to 19 provide inter alia for declaration of
metropolitan area, establishment of Courts of Session, Courts of Judicial Magistrates, Courts
of Metropolitan Magistrates and appointments of Sessions Judges, Additional Sessions Judges,
Assistant Sessions Judges, Chief Judicial Magistrates Judicial Magistrates, Chief Metropolitan
Magistrates and Metropolitan Magistrates together with inter subordination, but all
appointments being required to be made by the High Court, while ss. 20, 21, 22and 23 deal
with appointment of District Magistrates, Additional District Magistrates, Executive
Magistrates, Sub- Divisional Magistrates and Special Executive Magistrates and their
respective jurisdictions in every district and metropolitan area together with inter se
subordination, but appointments being made by the State Government, Chapter III
comprising ss. 26 to 35 clearly shows that Executive Magistrates are totally excluded from
conferment of powers to punish, which are conferred on Judicial Magistrates; this shows that
if any one were to commit a breach of any order passed by an Executive Magistrate in exercise
of his administrative or executive function he will have to be challaned or prosecuted before a
Judicial Magistrate to receive punishment on conviction.
Chapter X of the new Code deals with the topic of maintenance of public order and tranquility
and in that Chapter ss. 129 to 132 deal with unlawful assemblies and dispersal thereof, ss.

2
The Law Commission in its 37th Report on the Code of Criminal Procedure 1898
133 to 143 deal with public nuisance and abatement or removal thereof, s. 144deals with urgent
cases of nuisance and apprehended danger to public tranquility and ss. 145 to 148deal with
disputes as to immovable properties likely to cause breach of peace-all being in the nature of
executive ('police') functions, powers in that behalf have been vested exclusively in executive
Magistrate whereas under equivalent provisions under the old Code such powers were
conferred indiscriminately on any Magistrate, whether Judicial or Executive. In particular it
may be stated that whereas under the old s. 144 the power to take action in urgent cases of
nuisance or apprehended danger to public tranquility had been conferred on "a District
Magistrate, a Chief Presidency Magistrate, a sub-Divisional Magistrate or any other
Magistrate, specially empowered by the State Government", under the present s. 144 the power
has been conferred on "a District Magistrate, Sub-Divisional Magistrate or any other Executive
Magistrate specially empowered by the State Government in that behalf." Having regard to
such implementation of the concept of separation of judicial functions from executive or
administrative functions and allocation of the former to the Judicial Magistrates and the latter
to the Executive Magistrates under the Code of 1973
In our view, however these aspects cannot make the order a judicial or quasi-judicial order and
such an order issued under sec. 144 of the present code will have to be regarded as an executive
order passed in performance of an executive function where no lis as to any rights between
rival parties is adjudicated but merely an order for preserving public peace is made and as such
it will be amenable to writ jurisdiction under Art. 32 of the Constitution.
18. State Of Karnataka And Anr vs Dr. Praveen Bhai Thogadia on 31 March, 2004
Courts should not normally interfere with matters relating to law and order which is primarily
the domain of the concerned administrative authorities. They are by and large the best to assess
and to handle the situation depending upon the peculiar needs and necessities, within their
special knowledge. Their decision may involve to some extent an element of subjectivity on
the basis of materials before them. Past conduct and antecedents of a person or group or an
organisation may certainly provide sufficient material or basis for the action contemplated on
a reasonable expectation of possible turn of events, which may need to be avoided in public
interest and maintenance of law and order.
The stand of the respondent before the High Court was that the ADM who passed the order
was not covered by the categories of officials empowered to pass the order.
Section 20 of the Code deals with "Executive Magistrates". Sections 20, 21 and 144 of the
Code, altogether deal with five classes of Executive Magistrates i.e. (i) District Magistrate (ii)
Additional District Magistrate (iii) Sub- Divisional Magistrate (iv) Executive Magistrate and
(v) Special Executive Magistrate. Sub-section (1) of Section 20 provides that in every district
and in every metropolitan area, the State Government may appoint as many persons as it thinks
fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate. Sub-
section (2) of Section 20 is relevant to solve the present controversy, in this regard. It not only
enables the State Government to appoint any Executive Magistrate to be an Additional District
Magistrate but also provides that such Magistrate shall have such of the powers of a District
Magistrate under the Code or under any other law for the time being in force, as may be
directed by the State Government.
As observed by this Court in Hari Chand Aggarwal v. The Batala Engineering Co. Ltd. and
Ors. (AIR 1969 SC 483), unless a person has been appointed under Section 20(1) of the Code
he cannot be called a District Magistrate, and Additional District Magistrate is below the rank
of District Magistrate. The scheme of Section 20 leaves no manner of doubt that the District
Magistrate and the ADM are two different and distinct authorities.
under Section 20(2) of the Code the latter may exercise all or any of the powers of a District
Magistrate though the two authorities cannot be equated and the Additional District Magistrate
cannot be called the District Magistrate. The distinction is also clear from the fact that the
object of appointing ADM is to relieve the District Magistrate of some of his duties. The crucial
question therefore is whether the ADM was an Executive Magistrate in terms of Section 20.
Under sub-section (1) of Section 20 the State Government has the power to appoint as many
persons as it thinks fit to be the Executive Magistrates. Under sub- section (2) any Executive
Magistrate can be appointed as an Additional District Magistrate. Therefore, first thing to be
seen is whether there was any appointment of an Executive Magistrate as Additional District
Magistrate.

19. Madu Limaye v. Sub Divisional Magistrate, Monghyr and others (1970 (3) SCC
746):

"The gist of action under Section 144 is the urgency of the situation, its efficacy in the
likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely
and even ex parte it is obvious that the emergency must be sudden and the consequences
sufficiently grave. Without it the exercise of power would have no justification. It is not an
ordinary power flowing from administration but a power used in a judicial manner and which
can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and
in the extent of its application. There is no general proposition that an order under Section
144, Criminal Procedure Code cannot be passed without taking evidence: see Mst Jagrupa
Kumari v. Chobey Narain Singh (37 Cl.L.J.95) which in our opinion is correct in laying down
this proposition. These fundamental facts emerge from the way the occasions for the exercise
of the power are mentioned. Disturbances of public tranquillity, riots and affray lead to
subversion of public order unless they are prevented in time. Nuisances dangerous to human
life, health or safety have no doubt to be abated and prevented. We are, however, not concerned
with this part of the section and the validity of this part need not be decided here. In so far as
the other parts of the section are concerned the key-note of the power is to free society from
menace of serious disturbances of a grave character. The section is directed against those who
attempt to prevent the exercise of legal rights by others or imperil the public safety and health.
If that be so the matter must fall within the restriction which the Constitution itself visualizes
as permissible in the interest of public order, or in the interest of the general public. We may
say, however, that annoyance must assume sufficiently grave proportions to bring the matter
within interests of public order."

20. Babulal Parate vs State Of Maharashtra And Others on 12 January, 1961

That the attack on the constitutional validity of s. 144 of the Code of Criminal Procedure must
fail. Read as a whole, the section clearly showed that it was intended to secure the public weal
by preventing disorders, obstructions and annoyances. The powers conferred by it were
exercisable by responsible Magistrates who were to act judicially and the restraints permitted
by it were of a temporary nature and could be imposed only in an emergency.

The restrictions which the section authorises are not beyond the limits prescribed by cls. (2)
and (3) of Art. 19 of the Constitution. The prevention of such activities as are contemplated
by the section is undoubtedly in public interest and therefore no less in the interest of
public order.
Clauses (2) to (6) of Art. 19 of the Constitution do not require a special enactment for the
enforcement of the restrictions mentioned in them.

The impugned section must be construed as a whole and although the first part of cl. (1) Does
not expressly mention that the order of the Magistrate must be preceded by an enquiry, the
second part clearly indicates that the Magistrate has to satisfy himself either by his own enquiry
or from a report made to him as to what the facts are. The section does not, therefore, confer
an arbitrary power on the Magistrate in the matter of making the order. The wide power under
the section can be exercised only in an emergency and for the purpose of preventing
obstruction, annoyance or injury etc. as specified therein and those are the factors that must
necessarily condition the exercise of the power and, therefore, it was not correct to say that the
power is unlimited or untrammelled. Since the judgment has to be of a Magistrate, it can be
assumed that the power will be exercised legitimately and honestly. The section
cannot be struck down simply on the ground that the Magistrate might possibly abuse his
power.

Although the section makes the Magistrate the initial Judge of an emergency that cannot make
the restrictions placed by it unreasonable. Since maintenance of law and order rests with the
Executive, it is only appropriate that the initial decision must be with the Magistrate. But such
decision is not entirely based on his subjective satisfaction. Sub-sections (2), (4) and
(5) clearly indicate that the Magistrate must act judicially. Moreover, the propriety
of his order can be challenged in revision. It was not, therefore, correct to say that
the remedy of a person aggrieved by an order under the section was illusory. P. T. Chandra,
Editor, Tribune v. Emperor, A.I.R. 1942 Lah. 17r, referred to. The American doctrine that
previous restraints on the exercise of fundamental rights are permissible only if there is a clear
and present danger, can have no application in India, since the rights guaranteed by Art. 19(1)
of the Constitution are not absolute but subject to restrictions under cls. (2) to (6) of that
Article. Anticipatory action permitted by s. 144 is not, therefore, hit by cls. (2) And (3) of
Art. 19.

21. Prabhas Kumar Roy vs The Officer In-Charge Of ... on 18 December, 1984

It was an Erroneous judgment

The preservation of public peace and tranquillity is the primary function of the Government
and the aforesaid power under Section 144 is conferred on the executive magistracy enabling
it to perform that function effectively during emergent situations and as such it may become
necessary for the executive magistrate to override temporarily private rights and in a given
situation the power must extend to restraining individuals from doing acts perfectly, lawful in
themselves, for, it is obvious that when there is a conflict between public interest and private
rights, the former must prevail. The exercise of such power must be in aid of legal rights and
against those who interfere with the lawful exercise thereof and even in cases where there were
declared or established rights, thepower should not be exercised in a manner that would give
material advantage to one arty to the dispute over the other but in a fair anner ordinarily in
defence of legal rights if there be such and the lawful exercise thereof ther than in suppressing
them. In other vords, the magistrate's action should be directed against the wrong-doers rather
than pronged.

The right of the citizens to take out i processions flows from the right in Article 19(1)(b) to
assemble peacefully and without arms and the right to move anywhere in the territory of India.
A restraint on the right to take out procession under the circulars is a restriction. The
reasonableness of the restriction is the guiding factor.

The Magistrate had no right and/or jurisdiction and/or authority under Section 144 of the
Criminal P.C. to interfere with such rights guaranteed under Article 25 of the Constitution and
that in the facts and circumstances of the case, it appears that the said prohibitory order passed
by the learned Magistrate had the direct effect of encouraging and supporting of the wrong-
doers against the persons wronged and creating dissatisfaction amongst one section of the
community against the other. If the mosques are situated by the side of public roads, such
procession with such ceremonial and/or traditional playing of drums and musical instruments
can pass as a matter of night and the people of the other religion and/or section thereof cannot
have any objection and/or lawful excuse. It is well established that playing of musical
instruments near mosques are not at all contrary to any of the religious rights of the people of
that community and if any person belonging to any other religion or community intends to
obstruct such lawful procession with the image of Goddess Durga with playing drums and
musical instruments, it was the duty of the Police to apprehend those persons and to proceed
against them-for creating breach of peace and communal harmony. It would be contrary to the
concept of secularism if the fundamental right to freely profess, practice and propagate religion
guaranteed under Articles 25 and 26 of the Constitution are allowed to be interfered with by an
order under Section 144 of the Criminal Procedure Code in the facts and circumstances of the
case. Secularism does not and cannot mean that the law enforcing, authority should try to
abridge or take away such fundamental rights guaranteed under Constitution of India in such a
cavalier fashion. The police authorities who are there to maintain law and order, instead of
ensuring law and order, approached the learned Magistrate for an order under Section 144 of
the Criminal P. C, for encroaching upon, the right" of the petitioner guaranteed under Articles
25 and 26 of the Constitution. If the Police authorities had a feeling that there may be an
apprehension of breach of peace, the Police Authorities should have taken steps in accordance
with law by obtaining a prohibitory order against the persons concerned who intended to create
such obstruction and disturbance in the matter of practice of such religious rights. In the instant
case, the action of the Police Magistrate and police authorities had forced the petitioner to keep
the image of the Goddess Durga in the village pandal till today which is likely to create ill-
feeling and great dissatisfaction amongst a section of the Hindu people in the locality against a
section of the people of the other community. What the police authorities did in the name of
maintaining peace and communal harmony and for maintaining law and order is something
which had become a constant source of creating a highly prejudicial atmosphere in the locality
which is bound to disrupt the communal peace and harmony.

22. S.A. Dange vs State Of U.P. And Others on 28 October, 1970

The petitioner also challenges the constitutionality of the provisions of Sections

144, 107, 114 and 117 of the Code.

TEST IDENTIFICATION PARADE

Meaning : The term “Identification” means proving that a person, subject or article before the
Court is the very same that he or it is alleged, charged or reported to be. Identification is almost
always a matter of opinion or belief.

Object : With regard to a criminal offence, identification has a two-fold object –

firstly to satisfy the investigating authorities before sending a case for trial to Court, that the
person arrested was not previously known to the witness is the one of those who committed the
crime;

Secondly to satisfy the Court that the accused was the real offender

Provisions : Section 9 of Indian Evidence Act; Sec.54-A Cr.P.C., Rules 34 and 35 of Criminal
Rules of Practice are the relevant provisions that deal with the subject.

Principle: The main principle and object is to find out whether the suspect is the real offender
or not. The idea of conducting test identification proceedings is that the witnesses who claim
to have seen the culprits at the time of occurrence need to identify them from the midst of other
persons without any aid from any other source.

Purpose to conduct TIP : In Ramkishan Vs. Bombay State {AIR 1955 SC 104} it was held
that during the investigation of a crime the police has to hold identification parades for the
purpose of enabling witnesses to identify the properties which are the subject-matter of the
offence or to identify the persons who are concerned therein.

Thus a test identification has the following dimensions:

1. To satisfy the investigating authorities that a certain person not previously known to
the witnesses was involved in the commission of the crime or a particular property was
the subject of the crime.
2. It is also designed to furnish evidence to corroborate the testimony which the witness
concerned tenders before the Court.
3. it is also for the benefit of accused to rule out the possibility of false implication.

Amendment to CrPC. After amendment of Cr.P.C, Sec.291-A added. Magistrate need not
be examined.

When Test Identification is necessary? Only when the victim/witness did not know the
accused before the occurrence

When Test Identification is not necessary? If the accused is well known to the witnesses
then it is not necessary. –

TIP is not always essential. See 2004 (1) ALD (Crl.) 70 - See also 2003 (2) ALD (Crl.) 191
{Malkhansingh & others Vs.State of M.P}

Evidentiary value of TIP: Often it is said that Test Identification is not a substantive piece
of evidence. (a) Witness must again identify accused in Court. (b) The evidence of TIP is
admissible u/Sec.9. It can be used only to corroborate the substantive evidence given by
the witnesses in Court regarding identification of the accused. The earlier identification
made by the witnesses at the test identification parade, by it

self has no independent value. AIR 1974 SC 791 {Sampat Tatyada Shinde Vs.State of
Maharastra} Certain guidelines were issued by Hon’ble Calcutta High Court in Harbal
Sheikh Vs. State {1991 Cr.L.J. 1258(1263)} It is not a substantive piece of evidence. It is
only what the witness says in the Court that becomes substantive piece of evidence.
Sanctity u/Sec.80 Evidence Act : If test identification is conducted by police they are hit
by Sec.161, 162 Cr.P.C since the act of identifying by bodily gestures tantamount to making
statements to police (Held in Ramkishan case AIR 1955 SC 104). This does not apply to
a Magistrate conducting test identification proceedings.

Value of identification proceedings: Identifying the accused for the first time in the Court
is not of much use. Evidence of a witness against an accused is the direct statement made
in Court that he was the offender or one of the offenders. His earlier identification is simply
corroboration of the evidence given by him in Court. The identification has by itself no
independent value. The witness should have no opportunity to see the accused after the
occurrence and before TIP. If a witness fails to identify the accused in the Court, his
identification at the proceedings cannot be of any value.

Precautions to be taken while conducting Test Identification: Test identification can

have no value where the person identified has got some special peculiarities about him and
the persons with whom he is mixed up 3 do not have those peculiarities. Therefore it is the
duty of every Magistrate conducting TIP to see for himself whether the accused person has
such visible marks on him which are likely to facilitate his identification and then to cover
up such marks and mix that accused with several other persons having similar marks.
Failure to observe this precaution is sufficient to discredit the identification evidence.
[Dana Yadav Vs. State of Bihar - 2002 (2) ALD (Crl.) 729 SC; 2004 (2) ALD (Crl.) 83]
1. TIP for properties : The Hon’ble High Court gave certain guidelines for conducting
test identification for properties in the case of Thamalapakula Sudhakar Reddy Vs. State
of A.P [2004 (2) ALD (Crl.) 83 = (1) ALT (Crl.) 16]. As per Rule 35 of A.P. Criminal
Rules of Practice, test identification for the properties shall be held in the Court of the
Magistrate where the properties are lodged.

Use of statements of witnesses made during TIP: Those statements are mere statements
made u/Sec.164 Cr.P.C. They have no substantive value. They can be used only for the
purpose of corroborating u/Sec.157 or contradicting u/Sec.145 & 155 Evidence Act.

Ommission to state description of culprits in FIR – Effect: In such a case test

identification is not of much use. [Manepalli Anjaneyulu Vs. State1999 Cr.L.J.4375
(D.B)] 4. Delay: Early opportunity to identify tends to minimise the chances of the memory
of the identifying witness fading away by reason of long lapse of time.

Practical steps for conducting Test Identification Parades  First verify the reciprocal
arrangements circular issued by Hon'ble District Court to know whether there is jurisdiction
to conduct TIP for that particular P.S.  Issue summons to the witnesses.  Address a letter
to the Jail authorities for making arrangements for TIP.  Address a letter to Hon'ble I ADJ
seeking permission to conduct TIP and leave headquarters.  Insist for filing of Sec.161
Cr.P.C statements with requisition.  Take the Steno if possible with a type-writer and an
attender.  At the jail record the statements of the witnesses separately.  Also record the
statements of the suspects  Select non-suspects  Select a good location such that there
is enough place to keep away the witness who identified from other witnesses.  Send away
the jail personnel or police. 4  If there are distinguishing features to the suspects, then
select non-suspects also having near similar features.  Ask the suspects to choose their
own place.  State the suspects that they can change their positions and also dress if they
wish.  Make a note of change in their position or dress immediately in the proceedings.
  Get typed the proceedings in the jail itself.  After reaching Court – Transmit the records
to the concerned Court.  If the Magistrate is to give evidence on TIP post the case to
Friday.

BAIL

23. Sandeep Kumar Bafna v State of Maharasthra

Held: A Magistrate may grant bail to a person accused of a non-bailable offence
punishable with death or imprisonment for life only when it is incredible or beyond the
realm of reasonable doubt that the accused is guilty under Section 437. On the other
hand, under Section 439, the High Court or a Court of Sessions can grant bail only to
an accused in the custody of the court. The provisio however holds that the PP must be
given notice.
Read Custody under Para 9.

24. Hussain and Anr. v Union of India

Held: Section 436A provides that a person who has undergone detention for more than
half the prescribed imprisonment may be granted bail at the stage of trial. Sympathy
for under-trials and the impact of their crimes on society must be weighed prior to the
same. In most cases where the delay has exceeded five years, bail must be given and
such pending cases must be immediately disposed of. Bail applications should be
decided by subordinate courts within a week and no more than two or three weeks
should be required for a High Court to make such a decision. This order has been
circulated amongst all the High Courts for effective implementation.

25. Sanjay Chandra v. CBI

Held: Discussing the grounds to grant and reject bail, the Supreme Court in the ‘2-G
Scam case’ opined that bail is not preventive nor punitive but merely aimed at securing
his presence for trial while not obstructing his liberty under Article 21. Necessity is the
operative test for refusing bail and an un-convicted person cannot be put under custody
merely for him to get a taste of imprisonment. Bail is usually the rule and refusal to
grant bail, the exception. Courts must consider the following while granting bail or
refusing to do so:3
1. Seriousness of the Charge, where there is a police report;
2. Nature of the Evidence, rather than its appreciation;
3. Prior History;
4. Nature of the Accusation;
5. Age, sex and health of the accused;
6. Circumstances under which the offence was committed ie whether there is any
prima facie or reasonable ground to believe that the accused had committed the
offence;
7. Reasonable Apprehension of Witness Tampering;
8. Chances of witness/evidence tampering;
9. Punishment upon Conviction;

3
Not mentioned in this case actually but in discussion by Renjith relating to the case of Amar Mani Tripathi. It
is a pretty neat list.
 10. Possibility of Absconding;
11. Time needed to prepare criminal defense;
12. Whether bail would thwart the ends of justice ie likelihood of the bailed person
to commit an offence when free from custody.

26. State through CBI v. Amar Mani Tripathi

Facts: The affair of a Minister in the UP Government with a poet led to three
pregnancies, two of which were terminated. When the third foetus, found by DNA
testing to bear the genes of the accused Minister was refused from being aborted six
months into the pregnancy, the poet was murdered by the accused and his wife in a
conspiracy involving two shooters.
Held: Bail had been granted as the prosecution relied on a co-accused who retracted his
confession after already having been made an approver, the accused had been in
custody and also since, previous criminal record was not grounds to refuse bail.
Moreover, the wife of the accused, a co-accused in the present case was also granted
bail for her action as only a co-conspirator/abettor, lack of previous criminal record and
reliance on media reports to initially refuse bail. A detailed appreciation of evidence is
not required however prima facie should be taken of such evidence, needless of other
aspects, for example when a statement under Section 164 is retracted, only prima facie
ie the evidence needs to be examined and not the grounds and circumstances of the
retraction.

27. Gurubaksh Singh Sibbia v. State of Punjab

Held: Section 438 allows a person anticipating arrest to seek bail from the High Court
or a Court of Session on the grounds that he observe certain requirements within that
section to secure his presence in trial, as recommended by the Law Commission. Any
order of bail can, of course, be effective only from the time of arrest because, to grant
bail and thus anticipatory bail resembles an insurance policy against police custody. A
blanket order of anticipatory bail ought not be passed but the following were noted:

1. Such a reason to believe that he may be arrested must be found on

reasonable grounds;
2. The High Court or Court of Sessions must apply its mind to the question
of bail;
3. Filing of FIR is not required for anticipatory bail to be sought but may
be granted even there-after;
4. Anticipatory bail may be invoked after arrest too.

The problem with judicial discretion is that every judge would bring his own baggage
while deciding whether to grant bail.

Arrest

1. Rabindranath v. State of Orissa

o Held: The Orissa High Court reminded that the CrPC nowhere mentions of an
instance where one being searched is first claiming to search the searching party,
an attribute upon which the success of such a search under law depends.
2. D.K Basu v. State of West Bengal
o Held: While making an arrest, the guidelines laid in this case must be followed by
the police. These guidelines in addition to the statutory and constitutional
requirements were added to bring in transparency and accountability.
1. The police personnel carrying out the arrest must bear adequate
identification and records of duties must be maintained.
2. A memo attested by one witness must be prepared by the arresting
officer, countersigned by the arrestee.
3. One held in lock-up or custody shall be entitled to inform another of his
detention as far as practicable.
4. The time and place of arrest must be notified to relatives, where they
live outside through legal aid agencies. The arrestee must be informed
of this right too.
5. The name of the next friend of the arrestee and the names of the police
officer responsible for arrest must be recorded in the inspection memo
and the condition of the former be provided in the same.
6. The arrestee must undergo medical testing every 48 hours during his
detention in custody.
7. Copies of all relevant documents must be sent to the Magistrate.
8. The lawyer of the arrestee must be allowed access during at least some
time of the interrogation

3. Arnesh Kumar v. State of Bihar

o The Supreme Court has mandatorily directed strict compliance with the eight
directions prescribed for arrest, rather than invoking mere guidelines.

4. Jugal Kishore Samrah v. Senior Intelligence Officer

o Held by the Andhra Pradesh High Court: The purpose of interrogation to elicit
certain information regarding the commission of the crime and obtaining the
presence of the Advocate for the accused protected by Articles 20(3) and 22(1) of
the Constitution, while preventing his interference, no problem can be found.
o Held by the Supreme Court: When the decision of the HC was appealed against as
being impractical , a two judge bench of the Supreme Court set aside the decision
of the High Court. The advocate or other duly authorised person by the respondent
may watch the proceedings from a distance, or from behind a glass partition
preventing him from hearing and not allowing the respondent to consult him during
interrogation.

5. Christian Community Welfare Association v. State of Maharashtra

o Held by the Bombay High Court: It is imperative for the state government to issue
directions to all police stations regarding the arrest of female persons. The same
must only be done in the presence of a lady constable and only prior to sunset.
Guidelines to this end must be complied with. Detention should be separate from
that for men. The state government was directed to create a committee to review
the same and mandatorily implement such an opinion.
o Held by the Supreme Court: Against this obligation imposed upon the State of
Maharashtra, the state appealed before the Supreme Court. The apex court ruled
that it may not always be practicable to ensure the presence of a woman constable
 while arresting a female person. Where the arresting officer is convinced that the
same is not possible or would impede/delay the course of investigation, he must
record such reasons, and allow for non-compliance of these directions relating to
securing the presence of a woman constable, regarding timing may not be observed.
4
A report containing such reasons must then be submitted to the Magistrate.

6. Bharati v. Marawi Yadav, 2013

o It is fairly clear that under provisions, only exceptional circumstances, that too with
the prior permission of the Judicial Magistrate (I Class), only can a woman be
arrested either after sun-set or without the presence of a woman constable.

7. Prema Shah v. State of Uttarakhand, 2014

o Whether every time there is a failure to comply with the requirements for arresting
a woman, there are even circumstances of bypassing the requisite of permission of
the Magistrate.

8. Thogo Rani v. State of Orissa, 2003

o Whether an adverse opinion be deduced by refusal to take DNA testing was
answered in the present case in the affirmative. Under Section 53, a police officer
of a rank above that of a Sub-Inspector may request a registered medical officer to
carry out the same during the course of investigation and later report the same under
Section 173 to the officer. If, despite the order of a Court, the accused after arrest
still refuses DNA testing, such a view may be found under Section 114 of the
Evidence Act. Such would not violate the right of privacy culled out of Article 21
of the Constitution as reasonable restrictions apply against the same nor even the
right against self-incrimination under Article 20(3) whereby a “testimonial
compulsion” must be present.

9. Directorate of Enforcement v. Deepak Mahajan

o All arrest requires custody but not vice versa and holding these two words to be
synonymous is an ultra-legal interpretation that would lead to a startling conclusion.

10. Delhi Judicial Service Association (Tis Hazari Court) v. State of Gujarat
o Facts: A Chief Judicial Magistrate, having made serious observations against police
officers was arrested for the view of the inspector involved to humiliate the CJM.
HR Sharma, the inspector arrested, handcuffed and publicly exhibited the
Magistrate for having breached prohibition law.
o Held: While arresting judicial officers, the police must follow this procedure of a
‘technical arrest’ on a bailable warrant. These guidelines continue to be applied with
the Judicial Offences Prevention Act in the domain of arrest of Judicial Officers.5
The guidelines are:
I. Such arrest must be carried out by an order of court;
II. Technical arrest must be preferred;

4
This may seem really silly but we must note that under the power of arrest given to the police, no power of
resisting arrest for failure to comply with procedure has been given to the arrestee.
5
Context of Justice Karnan referred to in class.
 III. The judicial officer so arrested must not be taken to police custody
without judicial directions;
IV. The officer shall be free to communicate with family, counsel and
judges.
V. No testing and recording of statements can be made without securing
the presence of another officer of the same or higher rank.
VI. The person may be overpowered and handcuffed only in extreme
situations and the District Judge as well as High Court Chief Justice
must be notified lest the police officer be liable for suspension and
even personal compensation.

11. MC Abraham v. The State, 2003

o The Supreme Court admitted that arrest is a power of the police while also casting
a duty to not apply it in a mechanical manner. This case is later reflected in the
amendments. Any person concerned with a cognizable offence, some reasonable
suspicion arises or after investigation may be arrested by a police officer but the
personal liberties of the arrestee must not be affected.

12. Mohammed Zubair Fauzal Awam v. State of Tamil Nadu, 2011

o Reiterating Bhavesh Lakshmi v. State of Maharashtra: The Central Government
may arrest a fugitive criminal only when requested by a foreign country in
compliance with the terms of some existing Extradition Treaty, also provided that
the offence is also an offence in India and also liable for arrest in India. Provisions
of the code such as Section 41(g) gives the police the power to arrest under “any
law relating to extradition” without a warrant or order from a Magistrate, hence
subjecting the code to such enactments. Without a formal request from the
Embassy, the extradition process and registration of an FIR would be pending.
A red collar notice is issued to Border Authorities whereby the issuing country
enables them to make an arrest as also:
i. The foreign country may make a request for deportation;
ii. Action of law agencies in India to take action against a fugitive criminal;
iii. Distribute information from the red collar notice on the Interpol web site
iv. Extradition proceedings would follow after the embassy requests the CBI or
police to carry out the arrest.

13. Jitendra Singh v. State of UP, 2013

o While making an arrest, the arresting officer must make a memorandum under the
presence of a known witnesses, inform each of the rights, offences and course of
action while also ensuring a medical test of the arrestee is taken. The Court is merely
re-iterating procedural norms. Juvenility, along-with poor education and poverty
renders it difficult for one to be aware of their rights and a duty is imposed upon the
police to carry out this task of informing the same.