Madras High Court
K.Arulanantham vs State on 2 July, 2021
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CRL. O.P. No.12934/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
02.08.2021 11.08.2021
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
CRL. O.P. NO.12934 OF 2021
K.Arulanantham .. Petitioner
- Vs -
State, by
Central Bureau of Investigation
State Crime Branch
Chennai. .. Respondent
Criminal Original Petition filed u/s 439 Cr.P.C. praying this Court to enlarge
the petitioner on bail in Crime No.02 of 2019 on the file of the respondent
Central Bureau of Investigation, State Crime Branch, Chennai.
For Petitioner : Mr. R.Karthik
For Respondent : Mr. K.Srinivasan, Spl. PP (CBI Cases)
Mr. Mohammed Jinnah, PP, assisted by
Mr. A.Gopinath, GA (Crl. Side)
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CRL. O.P. No.12934/2021
ORDER
The petitioner, who is arrayed as A-8 in an offence which had created an
errie atmosphere in the society, and attracted very many sections of the Indian
Penal Code and also Prohibition of Harassment of Women Act and Information
Technology Act, has filed the present petition for enlargement on default bail, in
view of the dismissal of his petition for default bail in Crl. M.P. No.94/2021 by the
learned Sessions Judge, Magalir Neethimandram (Mahila Court), Coimbatore,
vide order dated 2.7.2021.
2. Initially the case was registered on 24.2.19 in Crime No.59/2019 by
Pollachi Town Police Station, leading to the arrest of A-1 to A-4 and, thereafter,
on 5.4.19 A-5 was arrested and the accused were remanded to judicial custody.
Subsequent to the issuance of the notification by the Government of Tamil Nadu
transferring the investigation to the respondent herein, the respondent herein
took up the case on 16.4.19 and, thereafter, after initial investigation, fresh
charge sheet was filed by the respondent herein on 24.5.19. Subsequent to the
same, further investigation by the respondent resulted in the arrest of A-6 to A-8.
In the present case, this Court is concerned about A-8, who, according to the
prosecution was arrested on 5.1.2021. It is the further case of the prosecution
that though initial charge sheet relating to A-1 to A-5 was filed on 24.5.19,
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however, subsequent to the arrest of A-6 to A-8, supplementary charge sheet
was filed on 22.2.2021.
3. The offence in which the petitioner has been implicated pertains to the
act of various accused, including the petitioner, in sexually assaulting and abusing
the victims, many in number, which has resulted in the registration of the crime
by the Pollachi Town Police, which was, thereafter, transferred to the respondent
herein vide notification issued by the Government of Tamil Nadu. For the
present, it is not necessary to go into the intricate details about the commission
of the offence, but suffice to deal with the issue relating to bail, as sought for by
the petitioner. However, when the matter was heard, learned Special Public
Prosecutor appearing for the respondent, drew the attention of this Court to one
very important aspect in the matter, which requires a deeper consideration,
which this Court will advert to after discussing the issue relating to grant of bail.
4. The present bail petition has been moved by the petitioner on the
ground that the charge sheet has been filed well beyond the period of 90 days as
mandated u/s 167 (2) (a) (i) Cr.P.C. and, therefore, the petitioner is entitled to
default bail, as provided under the said Section.
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5. When the matter was taken up for hearing on 27.07.2021, in view of the
gravity of the offence and the allegations raised against the accused, this Court
had directed the respondent to file a report on certain aspects and pursuant to
the said direction, a report has been filed by the respondent.
6. The respondents, vide their report dated 02.08.2021 has given
particulars on the aspects on which this Court had asked for clarification and this
Court is satisfied with the details furnished by the respondents. On three of the
issues, in which this Court had sought for clarification relates to the time required
for receipt of reports from the forensic lab, when the trial would commence and
the assistance needed by the respondent from the State police in the matter of
investigation.
7. Insofar as the time required for the reports to be received from the
forensic lab, the respondent has submitted that this Court may give direction to
the forensic lab to make the reports ready within a period of two weeks from the
date of receipt of a copy of this order, preferably on or before 17.08.2021.
8. Insofar as commencement of the trial is concerned, it is the stand of the
respondent that the respondent would be ready to go ahead with the trial during
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the 1st week of September, 2021 and, accordingly, direction may be issued to the
trial court for commencement of trial and also this Court may fix an outer limit for
conclusion of the trial by the trial court.
9. Insofar as the assistance, if any, which the respondent may require from
the State Police with regard to the investigation is concerned, certain details have
been tabled by the respondent, which requires an in-depth analysis by this Court
and, therefore, after deciding on the prayer of the petitioner for bail, this Court
would further dwell on the said issue in the later portion of this order.
10. Coming to the prayer of the petitioner for bail, learned counsel
appearing for the petitioner submitted that though it is the claim of the
respondent that supplementary charge sheet was filed on 22.2.2021 pursuant to
the arrest of the petitioner/A-8 on 5.1.21, however, the said charge sheet has not
been taken cognizance of by the trial court and the same was returned as
defective for rectification and, therefore, there was no valid charge sheet in the
eye of law and, therefore, the petitioner is entitled to default bail u/s 167 (2)
Cr.P.C. It is the further submission of the learned counsel for the petitioner that
the forensic reports, which are the basis for the petitioner to be implicated in the
case, having not been received till date, the supplementary charge sheet,
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allegedly filed by the respondent cannot be said to be a charge sheet fulfilling the
requisites as provided for u/s 173 Cr.P.C. and, therefore, the said charge sheet
cannot be the basis for keeping the petitioner under continued incarceration and,
therefore, the petitioner is entitled for default bail provided u/s 167 (2) Cr.P.C.
11. To buttress his submissions, learned counsel appearing for the
petitioner placed reliance on the following decisions :-
“T.V.Sarma – Vs – Turgakamala Devi & Ors. (1976 Crl. LJ
1247)
P.V.Vijayaraghavan & Ors. - Vs – CBI & Ors. (1984 Crl. LJ 1277)
Matchumari China Venkatareddy & Ors. - Vs – State of A.P.
(1994 Crl. LJ 257)
Nagarajan – Vs – State of T.N. (2004 (20 LW (Crl.) 545
Achpal @ Ramswaroop & Anr. - Vs – State of Rajasthan (AIR
2018 SC 4547)
Paras Ram – Vs – State of Rajasthan (S.B. Criminal Misc. Bail
No.9538/2018 – Dated 14.01.2019)
Mohammed Ali – Vs – State of Kerala (Bail Appl.
No.2856/2020 – Dated 20.05.2020)
S.Kasi – Vs – State of Tamil Nadu (C.A. No.452/2020 – Dated
19.06.2020)
Vinesh – Vs – State of Kerala (Bail Appl. No.4876/2020 –
Dated 18.08.2020)
M.Ravindran – Vs – The Intelligence Officer, Directorate of
Revenue Intelligence (C.A. No.699/2020 – Dated 26.10.2020
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Fakhrey Alam – Vs – State of Uttar Pradesh (C.A. No.319/2021
– Dated 15.03.2021)
12. Per contra, learned Special Public Prosecutor appearing for the
respondent submitted that initial charge sheet implicating A-1 to A-4 was filed on
24.5.19 and after further investigation by the respondent, on being entrusted
with the investigation vide the Government Notification, supplementary charge
sheet was filed on 22.2.2021 relating to the arrest of the petitioner/A-8 and other
accused, viz., A-6 and A-7 on 5.1.2021. It is the submission of the learned Special
Public Prosecutor that the said supplementary charge sheet filed on 22.2.2021 is
well within the mandatory period of 90 days prescribed u/s 167 (2) Cr.P.C. It is
the further submission of the learned Special Public Prosecutor that the
contention of the petitioner that the said supplementary charge sheet has been
returned as defective and it is yet to be represented is wholly a figment of
imagination on the part of the petitioner, as the order of the trial court clearly
show that the supplementary charge sheet has not been returned as defective,
but only certain rectifications were directed to be made, which has been duly
complied with by the respondent and, therefore, the supplementary charge sheet
filed on 22.2.2021 by the respondent is a valid piece of document, as mandated
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u/s 167 (2) Cr.P.C. and, therefore, the contention of the petitioner deserves
rejection.
13. In the context of the fact that the whole case revolves around the
fulfilling of the mandate u/s 167 (2) and 173 Cr.P.C., for better appreciation, the
relevant provisions of law are extracted hereunder :-
“167.Procedure when investigation cannot be completed in
twenty four hours.
(1)Whenever any person is arrested and detained in custody
and it appears that the investigation cannot be completed within
the period of twenty-four hours fixed by section 57, and there
are grounds for believing that the accusation or information is
well-founded, the officer in charge of the police station or the
police officer making the investigation, if he is not below the
rank of sub-inspector, shall forthwith transmit to the nearest
Judicial Magistrate a copy of the entries in the diary hereinafter
prescribed relating to the case, and shall at the same time
forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has not jurisdiction to
try the case, from time to time, authorise the detention of the
accused in such custody as such Magistrate thinks fit, for a term
not exceeding fifteen days in the whole ; and if he has no
jurisdiction to try the case or commit it for trial, and considers
further detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction:
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Provided that-
1*[(a) the Magistrate may authorise the detention of the
accused person, otherwise than in the custody of the police,
beyond the period of fifteen days ; if he is satisfied that
adequate grounds exist for doing so, but no Magistrate shall
authorise the detention of the accused person in custody under
this paragraph for a total period exceeding,-
(i) ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or imprisonment for
a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other
offence, and, on the expiry of the said period of ninety days, or
sixty days, as the case may be, the accused person shall be
released on bail if he is prepared to and does furnish bail, and
every person released on bail under this sub-section shall be
deemed to be so released under the provisions of Chapter XXXIII
for the purposes of that Chapter ;]
(b) no Magistrate shall authorise detention in any custody
under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially
empowered in this behalf by the High Court, shall authorise
detention in the custody of the police.
173. Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed
without unnecessary delay.
(2)(i) As soon as it is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to take
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cognizance of the offence on a police report, a report in the form
prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c)the names of the persons who appear to be acquainted
with the circumstances of the case;
(d)whether any offence appears to have been committed and,
if so,by whom ;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so,
weather with or without sureties;
(g) whether he has been forwarded in custody under section
(ii) The officer shall also communicate, In such manner as
may be prescribed by the State Government, the action taken by
him, to the person, if any, by whom the information relating to
the commission of the offence was first given.
(3) Where a superior officer of police has been appointed
under section 158, the report shall, in any case in which the
State Government by general or special order so directs, be
submitted through that officer, and he may, pending the orders
of the Magistrate, direct the officer in charge of the police
station to make further investigation,
(4) Whenever it appears from a report forwarded under this
section that the accused has been released on his bond, the
Magistrate shall make such order- for the discharge of such
bond or otherwise as he thinks fit.
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(5) When such report is in respect of a case to which section
170 applies, the police officer shall forward to the Magistrate
alongwith the report-
(a) all documents or relevant extracts thereof on which the
prosecution proposes to rely other than those already sent to the
Magistrate during investigation;
(b) the statements-recorded under section 161 of all the
persons whom the prosecution proposes to examine as its
witnesses.
(6) If the police officer is of opinion that any part of any such
statement is not relevant to the subject-matter of the
proceedings or that its disclosure to the accused is not essential
in the interests of justice and is inexpedient in the public interest,
he shall indicate that part of the statement and append a note
requesting the Magistrate to exclude that part from the copies
to be granted to the accused and stating his reasons for making
such request.
(7) Where the police officer investigating the case finds it
convenient so to do, he may furnish to the accused copies of all
or any of the documents referred to in sub-section (5).
(8) Nothing in this section shall be deemed to preclude further
investigation in respect of an offence after a report under
subsection (2) has been forwarded to the Magistrate and, where
upon such investigation, the officer in charge of the police
station obtains further evidence, oral or documentary, he shall
forward to the Magistrate a further report or reports regarding
such evidence in the form prescribed ; and the provisions of sub-
sections (2) to (6) shall, as far as may be, apply in relation to
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such report or reports as they apply in relation to a report
forwarded under sub-section (2).”
14. It is not in dispute that the case was initially registered by the Pollachi
Town Police in Crime No.59/2019 and, thereafter, due to certain acts of the
police, not conducive to investigation and also the safety and security of the
victims and the witnesses, the State, invoking Section 6 of the Delhi Special Police
Establishments Act, had transferred the investigation to the respondent by
issuing requisite notification and based on the said notification, the respondent
took charge of the case and Crime No.59/2019, registered on the file of the
Pollachi Town Police Station was re-registered as Crime
No.RC.2/(S)/2019/CBI/SCB/Chennai u/s 354(A), 354 (B) and 392 IPC and Section
66 (E) of Information Technology Act, 2002, and Section 4 of Tamil Nadu
Prohibition of Women Harassment Act, 2002. Initially the case was registered as
against A-1 to A-4 and initially charge sheet was laid against A-1 to A-4 on
24.5.19. However, further investigation was conducted u/s 173 (8) Cr.P.C. which
revealed the nexus of A-5 to A-8 in the offence, which led to the arrest of A-5 to
A-8. In the case of the petitioner, it is admitted that the petitioner was arrested
on 5.1.21 and remanded to custody on 6.1.21 and, thereafter, supplementary
charge sheet was laid before the trial court as against A-5 to A-8 on 22.2.21,
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which according to the respondent is well within the mandatory period of 90 days
provided u/s 167 (2) Cr.P.C.
15. It is not in dispute that the the alleged supplementary charge sheet
has been laid before the trial court on 22.2.21 and the trial court has pointed out
certain errors in the charge sheet, twice the respondent was directed to carry out
certain rectification. The said fact is revealed through the order passed by the
trial court. Further, after necessary correction, rectification memo has also been
filed, however, the charge sheet has not been taken cognizance of by the trial
court. The above factual aspects are transpired in the order passed by the trial
court rejecting bail to the petitioner.
16. Learned counsel for the petitioner pressed into service the decision of
a single Judge of the Andhra Pradesh High Court in T.V.Sarma – Vs –
Turgakamala Devi & Ors. (MANU/AP/0214/1975), wherein the Andhra Pradesh
High Court held as under :-
“16. The learned Public Prosecutor has argued that in this
case there is a charge-sheet though styled preliminary and so the
proviso to Section 167 Sub-section (2) does not apply. I do not
agree with him. The Code of Criminal Procedure does not
contemplate a preliminary charge-sheet and a final charge-
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sheet. What is contemplated is only a police report within the
meaning of Sub-section (2) of Section 173, Cri. P. C. Admittedly in
this case, there is no such report. The so-called preliminary
charge-sheet filed in this case is not a police report because the
investigation is not yet completed, and so the proviso to Section
167 Sub-section (2) is attracted. In this connection the learned
Public Prosecutor has relied upon Sub-section (8) of Section 173,
Cr. P.C. in order to contend that even a preliminary charge-sheet
is a police report within the meaning of Sub-section (2) of that
section. But a reading of Sub-section (8) of Section 173, Cr. P.C.
shows that after a police report under Sub-section (2) is sent to
the Magistrate, further investigation is not precluded and if upon
such investigation further evidence is obtained a further report
should be sent to a Magistrate. Therefore, Sub-section (8) of
Section 173, Cr. P.C. comes into play only after a report under
Sub-section (2) is sent but not before. In this case since no report
under Sub-section (2) is sent, Sub-section (8) does not come into
operation at all. Since the preliminary report is not the one sent
to the court after a report under Sub-section (2) was sent, the
learned Public Prosecutor cannot invoke the provisions of Sub-
section (8) of Section 173, Criminal Procedure Code.”
17. To emphasis further, learned counsel for the petitioner placed reliance
on the decision of a single Judge of the Kerala High Court in P.V.Vijayyaraghavan
& Ors. - Vs – CBI & Ors. (MANU/KE/0178/1984), wherein it has been held as
under:-
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“17. On the date of filing the first charge-sheet the
investigator was awaiting expert legal opinion on the question
whether a charge would lie under Section 201 I.P.C. In other
words, he had not formed any definite opinion as to whether on
the evidence collected there was a case to place the accused
before a Magistrate for trial of the particular offence. In this
view of the matter, it must follow that "investigation", as
understood in law, was not complete on the date of filing of the
first charge-sheet. The investigator had not formed any opinion
in regard to Section 201 I.P.C. and consequently, the
"investigation" in the case was not complete when the first
charge-sheet was filed. The investigator has no case that the
formation of opinion was made in this regard on any particular
day after 7.2.1984. It must be taken that "investigation" was
complete only with the second charge-sheet. In this view, the
original charge-sheet was not a charge-sheet laid after
completing of investigation. It is a defective charge-sheet.”
18. The decision of the Andhra Pradesh High Court in Matchumari China
Venkatareddy & Ors. - Vs – State of A.P. (MADU/AP/0102/1993) is also taken in
aid by the petitioner with regard to a defective charge sheet and the relevant
portion of the same is quoted hereunder :-
“9. Fairness and reasonable procedure is what is
contemplated by the expression "procedure established by law"
in Art. 21 of the Constitution. S. 167(2), Cr.P.C. was not there in
the old Code. It was introduced in 1973 amendment. The effect
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of the new proviso is to entitle an accused person to be released
on bail if the investigating agency fails to complete the
investigation within 60 days or 90 days as the case may be. An
order for release of bail made under proviso to S. 167(2) is not
defeated by lapse of time, the filing of the charge sheet or by
remand to custody under S. 309(2). The order of bail can only be
cancelled under S. 437(5) or 439(2). The duty of the police is to
forward the police report after completion of investigation under
section 173(5) Cr.P.C. The forwarding is done for the purpose of
taking the same on record and file of the court and then only,
the same is perused by the court to take cognizance of the
offence. Mere forwarding without meaning it to be taken on file
is not contemplated under law. If the police report is forwarded
to the Magistrate for taking it on file, but if the Magistrate finds
that the said report is not in consonance with S. 173(5) read with
S. 173(5) Cr.P.C., he declines to take it on record and that act is
only administrative and not judicial. The judicial act commences
only when the charge-sheet is in order and the Magistrate
proceeds further under Chapter XVI. Unless the charge-sheet is in
the official custody of the court together with its
accompaniments to be furnished to the accused, it cannot be
construed that there is a filing of charge-sheet. Chapter XVI
relates to commencement of proceedings before Magistrates,
process to be issued when Magistrate takes cognizance of the
offence. The next stage is framing of charges under Chapter XVII.
Next stage is trial and the eventual being the judgment.”
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19. Very many decisions on similar lines, as noted above, have been cited
by the learned counsel for the petitioner to drive home the point that once the
supplementary charge sheet has been returned back to the respondent for
certain defects and the same is yet to be represented and taken cognizance of,
there is no charge sheet subsisting as on the completion of the mandatory period
of 90 days and, therefore, the petitioner is entitled for default bail u/s 167 (2)
Cr.P.C.
20. However, it is to be pointed out that in all the cases, which have been
relied on by the petitioner, the accused therein have been arrested and
remanded and police report has not been filed within the time prescribed u/s 173
(2) Cr.P.C. But the case on hand stands on a slightly different footing. In the
present case, initially certain accused have been arrested and police report was
filed against them within the time prescribed and cognizance has also been taken
and, thereafter, invoking Section 173 (8) Cr.P.C., further investigation was taken
up leading to the arrest of the petitioner and certain other accused and,
thereafter, further report was filed with regard to the same offences, which is yet
to be taken cognizance of by the trial court and, therefore, it is contended that
the accused, who have been arrested based on further investigation are also
entitled to default bail inspite of the charge sheet filed earlier as the said
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supplementary charge sheet cannot be said to have been filed within the
prescribed period as the same is yet to be taken cognizance of.
21. This Court has no quarrel with regard to the proposition of law laid
down with regard to the interpretation to be attached to Section 167 (2) and 173
(8) Cr.P.C. The law is very well settled on this aspect. Once an accused is
arrested, the accused is entitled to default bail on completion of a period of 90
days, if police report is not filed as is provided for u/s 173 Cr.P.C. As already
extracted above, sub-section (2) to Section 173 Cr.P.C. provides the details that
should form part of the police report. However, in cases where the police report
has been filed and has been taken cognizance of by the trial court, further
investigation is made permissible u/s 173 (8) Cr.P.C.
22. From a careful perusal of Section 173 (8) Cr.P.C., it is manifestly clear
that there is no embargo for further investigation of the case after filing of a
report under sub-section (2), and on such further investigation, if further
evidence, oral or documentary is obtained, the same shall be placed before the
concerned Magistrate by way of further report as prescribed. It is to be pointed
out that further investigation contemplated u/s 173 (8) Cr.P.C. does not contain
any prescription of a period within which the investigation is to be concluded.
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Though Section 173 (8) is stand-alone but it cannot be said to be without any
adjutant as remand/detention of any accused on the basis of further
investigation is once again relatable to Section 167 (2) Cr.P.C.
23. It is to be pointed out that the procedure for taking cognizance of an
offence by the Magistrate starts from invocation of powers u/s 167 upon non-
completion of investigation within the period of 24 hours prescribed u/s 57
Cr.P.C. The mandate u/s 167 (2) for extending the period of investigation to 90
days in cases of offences which is punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years is vested in the Magistrate,
who may authorise the detention of the accused beyond the period of 15 days if
he is satisfied that adequate grounds exist for so doing. Once the invocation of
power u/s 167 (2) is exercised by the Magistrate, within a period of 90 days, the
investigating agency is to file the report before the Magistrate, as mandated u/s
173 Cr.P.C.
24. Section 173 (2) Cr.P.C. prescribes the details that should form part of
the report filed by the police upon completion of investigation. The ingredients,
which had been prescribed in Section 173 (2) Cr.P.C. relating to the details to be
produced in the report by the police are as under :-
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“(2)(i) As soon as it is completed, the officer in charge of the
police station shall forward to a Magistrate empowered to take
cognizance of the offence on a police report, a report in the form
prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c)the names of the persons who appear to be acquainted
with the circumstances of the case;
(d)whether any offence appears to have been committed and,
if so,by whom ;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so,
weather with or without sureties;
(g) whether he has been forwarded in custody under section
170.”
25. From the above, it is implicitly clear that for the purpose of filing the
report within the mandatory period, the report should contain the above
particulars. In the present case, it is not disputed that the police report, showing
the names of A-1 to A-4 as accused for offences, shown in the said police report,
was filed way back on 24.5.19. Subsequent to the filing of the report, in view of
the nature and gravity of the offence and with a view to expand the scope of the
investigation to find out whether there are other persons, who have been
victimised in a similar fashion, the respondent had thrown their net wide open by
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invoking sub-section (8) to Section 173 Cr.P.C., whereby, further investigation
was taken up, resulting in the arrest of A-6 to A-8 on 5.1.21 and their remand on
6.1.21.
26. It is the case of the respondent that pursuant to the arrest of A-6 to A-
8 and confiscation of oral and documentary evidence, which have been sent for
forensic analysis, supplementary report with regard to A-6 to A-8 for offences,
committed by them in association with A-1 to A-5, was filed on 22.2.21.
27. However, as stated above, the petitioner contends that the said report
was not taken cognizance of by the trial court as it was found to be defective and,
therefore, the said report cannot be taken in aid of to fulfill the condition
prescribed u/s 167 (2) Cr.P.C. and the petitioner is therefore entitled to default
bail.
28. Though such a stand is taken by the petitioner, however, a careful
perusal of Section 167 Cr.P.C. reveals that it pertains only to the custody of the
accused in relation to a crime under investigation and the further acts that are to
be performed by the investigating agency and the Magistrate on the filing of the
report. Section 167 Cr.P.C. does not speak of taking cognizance of the report filed
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and only Section 173 (2) Cr.P.C. speaks of the report to be filed by the police
which should contain the details, as mandated u/s 173 (2) Cr.P.C. In the above
backdrop, once the report is filed by the investigating agency before the
Magistrate as provided u/s 173 (2), the accused cannot fall back on Section 167
(2) Cr.P.C. for the purpose of default bail. Nowhere in any of the above two
provisions of law it is mandated that cognizance by the Magistrate is sine qua non
for Section 167 (2) Cr.P.C. to not come into play. What is mandated u/s 173 (2)
and (8) Cr.P.C. is only for the investigating agency to file a report as mandated u/s
173 (2) within a prescribed time and the cognizance by the court has no relevancy
insofar as consideration for default bail is concerned.
29. In this regard, useful reference can be had to the decision of this Court
in K.Gopinath & Ors. - Vs – The State (Crl. 7816/20, etc. - Dated 11.09.20), where
the learned single Judge, after discussing decisions of the Hon'ble Supreme Court,
held as under :-
“29. From the cursory reading of the above provisions it is
clear that the statutory requirements of a final report
contemplated under Section 173(2)Cr.P.C. will be satisfied if the
materials prescribed therein are included in the final report,
apart from the documents and statements of the witnesses as
contemplated under Section 173 (5) of the Cr.P.C.
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30. The Honourable Supreme Court in the case of Satya
Narain Musadi -vs- State of Bihar reported in 1980 (3) SCC 152
has held as follows:
“Section 173(2) thus provides what the report in the
prescribed form should contain. In this case the report did
contain the name of the accused and the nature of the
offence. In fact Section 170 provides that if upon an
investigation under Chapter XII it appears to the officer in
charge of the police station that there is sufficient
evidence or reasonable ground to proceed against the
accused such officer shall forward the accused under
custody to a Magistrate empowered to take cognizance of
the offence upon a police report, etc. If the accused is on
bail that fact will be notified in the final report submitted
under Section 173(2) would be complied with if the various
details therein prescribed are included in the report. This
report is an intimation to the Magistrate that upon
investigation into a cognizable offence the investigating
officer has been able to procure sufficient evidence for the
Court to inquire into the offence and the necessary
information is being sent to the Court. In fact, the report
under Section 173(2) purports to be an opinion of the
investigating officer that as far as he is concerned he has
been able to procure sufficient evidence for the trial of the
accused by the Court and when he states in the report not
only the names of the accused, but names of the
witnesses, the nature of the offence and a request that the
case be tried, there is compliance with Section 173(2). The
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report as envisaged by Section 173(2) has to be
accompanied as required by sub-Section (5) by all the
documents and statements of the witnesses therein
mentioned. One cannot divorce the details which the
report must contain as required by sub-Section (2) from its
accompaniments which are required to be submitted
under sub-section 5. The whole of it is submitted as a
report to the Court. But even if a narrow construction is
adopted that the police report can only be what is
prescribed in Section 173(2) there would be sufficient
compliance if what is required to be mentioned by the
statute has been set down in the report. To say that all the
details of the offence must be set out in the report under
Section 173(2) submitted by the police officer would be
expecting him to do something more than what the
Parliament has expected him to set out therein. If the
report with sufficient particularity and clarity specifies the
contravention of the law which is the alleged offence, it
would be sufficient compliance with Section 11. The details
which would be necessary to be proved to bring home the
guilt to the accused would emerged at a later stage, when
after notice to the accused a charge is framed against him
and further in the course of the trial. They would all be
matters of evidence and Section 11 does not require the
report to be or to contain the evidence in support of the
charge, its function being merely to afford a basis for
enabling the Magistrate to take cognizance of the case
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(see Bhagwati Saran v. State of Uttar Pradesh, 1961 (3)
SCR 563).
31. The above judgment followed by the Honourable Supreme
Court of India, in the case of Tara Singh Vs- State of in 1951 SCR
729, wherein it is held as follows:
“19. Stand of the learned counsel for the appellants was
that the mere filing of the defective challan was really on
no consequence. This aspect has been dealt with in Tara
Singh and Satya Narain cases in detail. Since all the
relevant documents were before the Court before the
expiry of 90 days period, grievance of the appellant is sans
merit”.
32. That apart, even assuming the police has not complied
with the requirement under Section 173 (5) of the Cr.P.C and
that only some of the documents and statements have been
filed along with the final report, it will not preclude the
investigating agency from filing the remaining documents
subsequently. It is open to the investigating agency to produce
the additional documents which were collected prior to or
subsequent to the investigation with the permission of the
Court. The word should used in sub section (5) of Section 178 of
Cr.P.C is not mandatory but only directory as held by the Hon'ble
Supreme Court. In the case of Central Bureau of Investigation
-vs- R.S. Pai and another reported in 2002 (5) SCC, 82 which
reads as follows:
“7. From the aforesaid sub-sections, it is apparent that
normally, the Investigating Officer is required to produce
all the relevant documents at the time of submitting the
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charge-sheet. At the same time, as there is no specific
prohibition, it cannot be held that the additional
documents cannot be produced subsequently. If some
mistake is committed in not producing the relevant
documents at the time of submitting the report or charge-
sheet, it is always open to the Investigating Officer to
produce the same with the permission of the Court. In our
view, considering the preliminary stage of prosecution and
the context in which Police Officer is required to forward to
the Magistrate all the documents or the relevant extracts
thereof on which prosecution proposes to rely, the word
'shall' used in sub-section (5) cannot be interpreted as
mandatory, but as directory. Normally, the documents
gathered during the investigation upon which the
prosecution wants to rely are required to be forwarded to
the Magistrate, but if there is some omission, it would not
mean that the remaining documents cannot be produced
subsequently. Analogous provision under Section 173(4) of
the Code of Criminal Procedure, 1898 was considered by
this Court in Narayan Rao v. The State of Andhra Pradesh
[ (1958) SCR 283 at 293] and it was held that the word
'shall' occurring in sub-section 4 of Section 173 and sub-
section 3 of Section 207A is not mandatory but only
directory. Further, the scheme of sub-section (8) of Section
173 also makes it abundantly clear that even after the
charge-sheet is submitted, further investigation, if called
for, is not precluded. If further investigation is not
precluded then there is no question of not permitting the
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prosecution to produce additional documents which were
gathered prior to or subsequent to investigation. In such
cases, there can not be any prejudice to the accused.
Hence, the impugned order passed by the Special Court
cannot be sustained. In the said decision it is held that if
some mistake is committed in not producing the relevant
documents at the time of submitting the report, it is
always open to the investigating officer to produce the
same with the permission of the Court. The Bench
proceeded further to observe that if the further
investigation is not precluded, then there is no question of
not permitting the prosecution to produce the additional
document which were gathered prior to or subsequent to
the investigation and the word 'shall' used in sub- section 5
cannot be interpreted as mandatory, but as directory.
Therefore it is contended that the High Court is justified in
refusing to grant default bail in favour of the appellant”.
The above judgments has been followed in Narendra Kumar
Amin -vs- Central Bureau of Investigation and others reported
in 2015 (3) Supreme Court Cases 417.”
30. From the above decision, it is amply evident that within the period
prescribed u/s 167 (2) Cr.P.C., the police report needs to be filed as provided u/s
173 (2) Cr.P.C. It is to be pointed out that the investigating agency, if intends to
further investigate the matter after filing the report, it can do so by following the
prescription u/s 173 (8) Cr.P.C. and proceed with further investigation and
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collects materials, oral and documentary, which have a bearing on the case,
including arrest of any other person presumably connected with the offence, and
consequent upon such arrest, remand/detention of the accused as envisaged u/s
167 (2) Cr.P.C. needs to be made. Once supplementary report as envisaged u/s
173 (8) Cr.P.C. is filed within the prescribed period mandated u/s 167 (2), the
default bail, provided in the event of the investigating agency not completing the
investigation within the prescribed period, stands excluded. Section 167 (2)
Cr.P.C. does not in any manner speak about the cognizance to be taken by the
Magistrate within the period of 90 days and it speaks only about the part to be
played by the investigating agency in submitting its report to the Magistrate for
the continued detention of the accused. By the above provision of law,
Parliament has put shackles on the investigating agency to complete the
investigation expeditiously and the investigating agency, cannot, at its whims and
fancies, prolong the investigation. Failure of the investigating agency to act
diligently will give an indefeasible right to the accused to default bail.
31. Once a supplementary report is filed within the prescribed period of
90 days, there is no necessity to fall back on Section 167 (2) Cr.P.C., as the initial
report has already been taken cognizance of by the Magistrate and the
supplementary report is only an addition to the said report on which cognizance
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has already been taken. The accused, who has been arrested in connection with
the matter in which further investigation has been taken up, the continued
custody of the accused alone is a matter of consideration u/s 167 (2) Cr.P.C. so
long as the supplementary report, if filed within the mandated period, the same
merges with the initial report on which cognizance has already been taken by the
Magistrate and, therefore, the plea of default bail for the said accused would
stand extinguished. Therefore, the contention of the petitioner that on the arrest
of the petitioner, the supplementary report ought to have been filed and
cognizance should also be taken by the Magistrate within the period of 90 days
prescribed u/s 167 (2) Cr.P.C., is nothing but a misreading of the provision of law.
32. An act, viz., filing of final report, which has already been performed
and fulfilled, leading to cognizance being taken by the court on the basis of the
report submitted by the investigating agency, it would not be right on the part of
the court to relegate the investigating agency back to square one by making them
to go through the rigours of Section 167 (2) Cr.P.C., for the purpose of cognizance
as well, since the investigating agency would not be bound by acts, which is
within the domain of the judicial forum, for which the investigating agency
cannot be made answerable. The operation of Section 167 (2) Cr.P.C. would only
be to the limited extent of custody of the accused so long as the report is filed by
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the investigating agency within the prescribed period and cognizance is not a
matter of concern, as is evident from the above provision of law. Taking
cognizance on the report of the investigating agency is within the realm of the
court for which the investigating agency cannot be put to accountability.
33. Further, it should not be lost sight of that investigation is to be
completed u/s 57 Cr.P.C., within the first twenty-four hours and if the
investigating agency is unable to complete the investigation, the provision u/s
167 (2) Cr.P.C. gets attracted. It is to be borne in mind at this juncture that the
outer limit of 90 days is given for filing of police report, failing which an
indefeasible right accrues to the accused for bail. Sub-section (2) to Section 167
Cr.P.C. has been inserted only after detailed deliberation by the Law Commission
and the law makers, so that the rights and liberty of the accused are not curtailed
for no fault of his or for the lethargic investigation done by the investigating
agency. The period mandated u/s 167 (2) Cr.P.C. is not only for the purpose of
conferring the right and liberty on the accused to be entitled for default bail, but
equally on the investigating agency to assert its right for the continued detention
of the accused in custody, by filing the requisite report within time, which would
show the diligence of the investigating agency in conducting the investigation.
Therefore, embargo is created on the investigating agency to file the final report
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so that the investigation agency will act diligently and file the report. There Code
is silent on the aspect of taking congnizance by the Magistrate within the period
mandated u/s 167 Cr.P.C.
34. It is to be borne in mind that not in all cases, further investigation
contemplated u/s 173 (8) Cr.P.C. would be invoked by the investigating agency. It
is in cases, which have far reaching ramifications and the culpability of many
persons come to light, which requires deeper investigation, the investigation
agency resorts to further investigation contemplated u/s 173 (8) Cr.P.C.
Therefore, once the period of 90 days from the date of remand of an accused
pursuant to an FIR is completed, in the absence of filing of police report, the said
accused would be entitled to default bail, but the same yardstick can be adopted
to an accused, arrested on the basis of further investigation, only to the limited
extent of custody and filing of further report as mandated u/s 167 and 173 Cr.P.C.
and the delayed taking of cognizance by the Magistrate would in no way defeat
the report or the right of the investigating agency to have the accused under
continued detention. Therefore, the arrest of the petitioner in this case pursuant
to further investigation should not be seen in isolation, but should be seen in
conjunction with the police report already filed and also the supplementary
report filed within the mandatory period prescribed u/s 167 (2) Cr.P.C. And the
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prescription of the period having been complied with, the accused cannot be said
to have accrued an indefeasible right to default bail.
35. Further the view of this Court that the supplementary report cannot
be said to be considered in isolation, but should be considered in conjunction
with the initial report filed by the investigating agency is is further strengthened
by the fact that the word used in Section 173 (8) is “supplementary report” and
not merely “report” as is used in Section 173 (2). The factum of usage of the
words “report” and “supplementary report” in sub-sections (2) and (8) of Section
173 makes it clear that the Parliament had indeed distinguished between the two
reports filed u/s (2) and (8) of Section 173 Cr.P.C. The usage of the words in sub-
sections (2) and (8) of Section 173 Cr.P.C. clearly portrays that the supplementary
report is not a stand alone report, but it is a report, which merges with the main
report, which has already been filed by the investigating agency u/s 173 (2)
Cr.P.C. on which cognizance has been taken by the court. Once the
supplementary report, on filing, merges with the original report, mere not taking
cognizance of the supplementary report by the Court cannot be the basis for the
accused to claim default bail u/s 167 (2) Cr.P.C., as not taking cognizance of the
report by the Court would not negate the rights of the investigating agency to
have the accused under continued detention.
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36. In the case on hand, it is evident from the order passed by which bail
has been rejected to the petitioner by the trial court, the supplementary report
has been filed on 22.2.21, and for certain mistakes the investigating agency was
directed to rectify the same. It is further evident from the said order that
rectification has been carried out by the respondent and the report is before the
Court. There is a lot of difference between a defective report and a report which
was directed to be rectified. A report, which is defective is an imperfect report,
while a report, which requires rectification could only mean that there are certain
mistakes, which needs to be corrected. Even the rejection order of the court
below shows that the respondent has been asked to rectify certain mistakes in
the report and the same stood rectified by filing the necessary memo. That being
the case, the report alleged to be a defective report by the petitioner, could in no
way be said to be a defective report.
37. Further, as already stated above, the mistakes having been rectified,
there is a report before the Court, which is the prescription under sub-sections
(2) and (8) to Section 173 Cr.P.C. and cognizance of the Court of the report is not
one of the prescription in the said provision and, therefore, the claim of the
petitioner that cognizance having not been taken within the time prescribed u/s
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167 (2), he would be entitled for default bail is an argument, which is not only too
far fetched, but also devoid of merits and acceptance. Therefore, the contention
of the petitioner that the report filed pursuant to further investigation is a
defective report, which has been returned to the investigating agency and,
therefore, there is no report in the eye of law in and by which the accused could
be fastened with the crime and, therefore, in the absence of cognizance being
taken, the accused is entitled to default bail, is too preposterous an argument to
be accepted.
38. In the case on hand, the initial report having been filed on 24.5.19,
which has been taken cognizance of leading to further investigation u/s 173 (8)
Cr.P.C. and filing of supplementary report, which merges with the initial report,
once the mistakes stood rectified, would not grant any benefit to the petitioner,
who has been arrested pursuant to the filing of the final report by the police on
24.5.19 and the supplementary report filed on 22.2.21 subsequent to collection
of further oral and documentary evidence leading to the arrest of the petitioner
on 5.1.21 and, therefore, the petitioner could in no way derive any benefit by
taking recourse to Section 167 (2) Cr.P.C., as the report has been filed by the
investigating agency well within the time prescribed. Therefore, the contention
of the petitioner that the supplementary report having not been taken on file by
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the Magistrate would bring into play the period of prescription in Section 167 (2)
Cr.P.C. does not merit acceptance.
39. Insofar as the contention of the petitioner that forensic reports, which
is the basis for implicating the petitioner, having not been filed along with the
supplementary report, the prescription u/s 173 (2) Cr.P.C. is not fulfilled and,
therefore, the said supplementary report cannot be said to be a comprehensive
report to implicate the petitioner also merits negation.
40. In this regard, reference has already been made by this Court to the
decision in Gopinath's case (supra), where it has been categorically held that
there is no embargo on the investigating agency from producing the documents
in addition to the documents already filed before the Court. Reference was
drawn to Section 173 (2) Cr.P.C. which mandates that the names of the parties,
the nature of information, the names of the persons, who appear to be
acquainted with the circumstances of the case, the arrest of the accused and
other ancillary details alone are to be prescribed in the police report and not all
the documents, which are to be relied on by the investigating agency. Further
the articles, which are necessary for the purpose of enabling the Magistrate to
pass an order of remand of the accused are relevant and are to be placed at the
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time of filing of the police report and not all the report, which are relied on by the
prosecution. In the case on hand, the main documentary evidence has been
produced before the court in the final report, which was prior to the arrest of the
petitioner and the supplementary report of the investigating agency is only an
addition to the said final report, already tabled before the Court and, therefore,
the non-filing of the forensic analysis report along with the supplementary report
cannot be held in detriment against the investigating agency. Therefore, the
contention of the petitioner that the non-filing of the forensic analysis report
along with the supplementary report would render the supplementary report
defective is too far fetched an argument to accept, as accepting the same would
defeat the very purpose of selective inclusion of clauses (a) to (h) u/s 173 (2)
Cr.P.C. In the above backdrop of the discussion, this Court is of the considered
view that the non-filing of the forensic analysis report along with the
supplementary report does not vitiate the supplementary report and the
supplementary report cannot be said to be defective.
41. Now, this Court turns its attention back to the report of the
respondent based on which submissions were placed by the learned Special
Public Prosecutor. The sum and substance of the argument advanced by the
learned Special Public Prosecutor is for the assistance, if any, to be rendered by
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the State police in the matter of investigation and trial and also with regard to the
protection that is necessary to be given to the witnesses and the victims in the
present case, as the influence of the accused in the present case would have a
detrimental impact on the victims and the witnesses, if their identities are made
known to the public. In this background, learned Special Public Prosecutor laid
much stress on the decision of the Hon'ble Supreme Court in Mahender Chawla
& Ors. – Vs – Union of India & Ors. (MANU/SC/1421/2018), wherein the
Supreme Court had discussed the provisions of the Witness Protection Scheme,
2018 and the necessity for its effective implementation and directions were given
to the States for adhering to the various provisions of the said Scheme. In view of
the nature and gravity of the offence involved in the present case and also the
status and influence of the accused vis-a-vis the victims and the other witnesses
in this case, it is submitted that necessarily the provisions of the said scheme has
to be strictly adhered to, for which a direction may be given by this Court, lest the
chances of the victims and the witnesses being manipulated and terrorised to
retract their statements cannot be ruled out.
42. The Hon'ble Suprme Court in Mahender Chawla's case (supra) had
occasion to deal with the role of the witnesses in the criminal justice delivery
system and the trauma the witnesses face during the pre and post trial stage due
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to their being witnesses in a case and in the said scenario, directions were issued
for formulating a scheme for Witness Protection, as is being done in the other
countries. In the aftermath of the said directions, the Government had
formulated the Witness Protection Scheme, 2018, which has been extracted and
dealt with in-depth in the aforesaid order and for better clarity, the relevant
portions of the order, which would be just and necessary for passing orders in
this case, are quoted hereunder :-
“2. Thus, witnesses are important players in the judicial
system, who help the judges in arriving at correct factual
findings. The instrument of evidence is the medium through
which facts, either disputed or required to be proved, are
effectively conveyed to the courts. This evidence in the form of
documentary and oral is given by the witnesses. A witness may
be a partisan or interested witness, i.e., a witness who is in a
near relation with the victim of crime or is concerned with
conviction of the accused person. Even his testimony is relevant,
though, stricter scrutiny is required while adjudging the credence
of such a victim. However, apart from these witnesses or the
witnesses who may themselves be the victims, other witnesses
may not have any personal interest in the outcome of a case.
They still help the judicial system. In the words of Whittaker
Chambers, a witness is "a man whose life and faith are so
completely one that when the challenge comes to step out and
testify for his faith, he does so, disregarding all risks, accepting
all consequences."
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3. The importance of the witness, particularly in a criminal
trial is highlighted in a book in the following manner:
In search of truth, he plays that sacred role of the sun, which
eliminates the darkness of ignorance and illuminates the face of
justice, encircled by devils of humanity and compassion.
xxx xxx xxx
The value of witnesses can't be denied, keeping in view the
dependency of the criminal proceedings on the testimonies and
cooperation of witnesses in all the stages of the proceedings,
especially in those cases where the prosecution has to establish
the guilt with absolute certainty via oral cross-examination of
witnesses in hearings open to the world at large. In such cases,
the testimony of a witness, even if not as an eye witness, may
prove to be crucial in determining the circumstances in which the
crime might have been committed....
Notwithstanding the same, the conditions of witnesses in
Indian Legal System can be termed as 'pathetic'. There are many
threats faced by the witnesses at various stages of an
investigation and then during the trial of a case. Apart from
facing life threatening intimidation to himself and to his
relatives, he may have to face the trauma of attending the court
regularly. Because of the lack of Witness Protection Programme
in India and the treatment that is meted out to them, there is a
tendency of reluctance in coming forward and making statement
during the investigation and/or testify in courts. These witnesses
neither have any legal remedy nor do they get suitably treated.
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The present legal system takes witnesses completely for granted.
They are summoned to court regardless of their financial and
personal conditions. Many times they are made to appear long
after the incident of the alleged crime, which significantly
hampers their ability to recall necessary details at the time of
actual crime. They are not even suitably remunerated for the loss
of time and the expenditure towards conveyance etc.
5. It hardly needs to be emphasised that one of the main
reasons for witnesses to turn hostile is that they are not
accorded appropriate protection by the State. It is a harsh
reality, particularly, in those cases where the Accused
persons/criminals are tried for heinous offences, or where the
Accused persons are influential persons or in a dominating
position that they make attempts to terrorize or intimidate the
witnesses because of which these witnesses either avoid coming
to courts or refrain from deposing truthfully. This unfortunate
situation prevails because of the reason that the State has not
undertaken any protective measure to ensure the safety of these
witnesses, commonly known as 'witness protection'.
44. On the analysis of various cases, the following reasons can
be discerned which make witnesses retracting their statements
before the court and turning hostile:
(i) Threat/Intimidation.
(ii) Inducement by various means.
(iii) Use of muscle and money power by the Accused.
(iv) Use of stock witnesses.
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(v) Protracted trials.
(vi) Hassles faced by the witnesses during investigation and
trial.
(vii) Non-existence of any clear-cut legislation to check
hostility of witness.
45. Threat and intimidation has been one of the major causes
for the hostility of witnesses. Bentham said: "witnesses are the
eyes and ears of justice". When the witnesses are not able to
depose correctly in the court of law, it results in low rate of
conviction and many times even hardened criminals escape the
conviction. It shakes public confidence in the criminal justice
delivery system. It is for this reason there has been a lot of
discussion on witness protection and from various quarters
demand is made for the State to play a definite role in coming
out with witness protection programme, at least in sensitive
cases involving those in power, who have political patronage and
could wield muscle and money power, to avert trial getting
tainted and derailed and truth becoming a casualty. A stern and
emphatic message to this effect was given in Zahira Habibullah
case [Zahira Habibullah Sheikh (5) v. State of Gujarat,
MANU/SC/1344/2006 : (2006) 3 SCC 374: (2006) 2 SCC (Cri.) 8]
as well.
46. Justifying the measures to be taken for witness protection
to enable the witnesses to depose truthfully and without fear,
Justice Malimath Committee Report on Reforms of Criminal
Justice System, 2003 has remarked as under:
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11.3. Another major problem is about safety of witnesses and
their family members who face danger at different stages. They
are often threatened and the seriousness of the threat depends
upon the type of the case and the background of the Accused
and his family. Many times crucial witnesses are threatened or
injured prior to their testifying in the court. If the witness is still
not amenable he may even be murdered. In such situations the
witness will not come forward to give evidence unless he is
assured of protection or is guaranteed anonymity of some form
of physical disguise. ... Time has come for a comprehensive law
being enacted for protection of the witness and members of his
family.
9. Since this case relates to the issue of protection of
witnesses, we are eschewing any further discussion on other
miseries faced by the witnesses, though we emphasise the need
for addressing other problems as well, at appropriate level, if the
criminal justice system in this country is to succeed. Adverting to
the importance of witness protection, we may mention that it
has been highlighted and emphasised by the courts in India,
including this Court, time and again. Issues of protection of
identity of witnesses and witness protection programme have
been raised in number of judgments like NHRC v. State of
Gujarat 2003 (9) SCALE 329, People's Union for Civil Liberties
(PUCL) v. Union of India MANU/SC/1036/2003 : 2003 (10) SCALE
967, Zahira v. State of Gujarat MANU/SC/0322/2004 : (2004) 4
SCC 158, Sakshi v. Union of India MANU/SC/0523/2004 : (2004)
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5 SCC 518 and Zahira Habibulla Sheikh v. Gujarat
MANU/SC/0322/2004 : 2006 (3) SCALE 967.
10. In People's Union for Civil Liberties, wherein
constitutionality some of the provisions of the Prevention of
Terrorism Act (POTA), 2002, were challenged, the Court carefully
analyzed Section 30 of the Act, which had mentioned about the
protection of witnesses. This provision provides for the
proceedings to be held in camera in order to keep the identity of
witness confidential. The Court felt the reality that very often
witnesses do not come forward to testify before court in serious
crimes. Witnesses are not ready to give evidence mainly because
their lives might be in danger. In the court's view, Section 30 of
the Act maintains a balance between the rights of a witness, the
rights of an Accused and the interest of the public. However,
secrecy of the witness is an exception and not a Rule under this
section.
12. In some other judgments, this Court gave some more
guidelines, in the following manner:
a) Sections 354 and 377 of the Indian Penal Code should be
tried and inquired on the same principles mentioned Under Sub-
section (2) of Section 327 Code of Criminal Procedure.
b) While holding the trial of rape or child sex abuse, some sort
of arrangements like a screen or something like it may be used
so as to make sure that victim or witnesses (who are equally
vulnerable and need protection like the victim) do not confront
the Accused;
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c) Questions raised during the cross-examination by the
counsel of the Accused that are directly related to and be
reminiscent to the victim or the witnesses of the incident should
be written down and given to the presiding officer of the court in
advance. The presiding officer must put forth those questions to
the victim or witness in simple and clear language and as far as
possible without making her uncomfortable;
13. It hardly needs to be emphasised that failure to hear
material witness is denial of fair trial. The practice, however, to
give protection to the witnesses is based on ad hocism, i.e., on
case to case basis. The Courts have also, in the process, adopted
different means to ensure witness protection, which can be
stated in brief detail:
(a) Publication of evidence of the witness only during the
course of trial and not after [Naresh Shridhar Mirajkar and Ors.
v. State of Maharashtra and Anr.; [MANU/SC/0044/1966 : 1966
(3) SCR 744].
(b) Re-trial allowed due to apprehension and threat to the life
of witness [Sunil Kumar Pal v. Phota Sheikh and Ors.;
MANU/SC/0129/1984 : AIR 1984 SC 1591]
(c) Necessity of anonymity for victims in cases of rape [Delhi
Domestic Working Women's Forum v. Union of India;
MANU/SC/0519/1995 : (1995) 1 SCC 14)]
(d) Discouraging the practice of obtaining adjournments in
cases when witness is present and Accused is absent. [State of
U.P. v. Shambhu Nath Singh; MANU/SC/0221/2001 : (2001) 4
SCC 667]
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(e) Making threatening of witnesses as a ground for
cancellation of bail [Ram Govind Upadhyay v. Sudarshan Singh;
MANU/SC/0203/2002 : II (2002) SLT 587]
(f) Cross-examination by video conferencing -- This is one of
the innovative methods devised, which is specifically helpful to
the victims of sexual crimes, particularly, child witnesses who are
victims of crime as well.
19. When the matter was again listed on August 28, 2017,
Mr. K.K. Venugopal, learned Attorney General appeared on
behalf of the Union of India, along with Ms. Pinky Anand,
Additional Solicitor General. It was pointed out that since this
Court was primarily dealing with the issue pertaining to witness
protection programme, it would be appropriate that other States
are also impleaded inasmuch as the issue had PAN India
significant and witness protection programme should be
available in all the States. The Petitioners were, accordingly,
directed to implead other States as well and they be served with
the notice of this petition. This is how the coverage of the
petition has been extended to the entire country, encompassing
all the States and Union Territories.
21. Mr. Venugopal, learned Attorney General for India was
also requested to give suggestions in the form of a draft scheme.
It is heartening to note that Union of India did not take this
petition as adversarial and understood the necessity of having
such a scheme in the larger public interest. With this sensitivity
in mind, Ministry of Home Affairs have prepared a draft witness
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protection scheme, 2018 and placed the same on record of this
case. This was noted in the orders dated April 13, 2018 and the
State Governments as well as Union Territories, who had already
been supplied with the copy of the draft scheme by the Ministry
itself, were asked to furnish their comments by May 31, 2018 to
the Ministry of Home Affairs.
25. At this stage, we reproduce Witness Protection Scheme,
2018 as filed, in its entirety:
Witness Protection Scheme, 2018
PREFACE
Aims & Objective:
The ability of a witness to give testimony in a judicial setting
or to cooperate with law enforcement and investigations without
fear of intimidation or reprisal is essential in maintaining the
Rule of law. The objective of this Scheme is to ensure that the
investigation, prosecution and trial of criminal offences is not
prejudiced because witnesses are intimidated or frightened to
give evidence without protection from violent or other criminal
recrimination. It aims to promote law enforcement by facilitating
the protection of persons who are involved directly or indirectly
in providing assistance to criminal law enforcement agencies and
overall administration of Justice. Witnesses need to be given the
confidence to come forward to assist law enforcement and
Judicial Authorities with full assurance of safety. It is aimed to
identify series of measures that may be adopted to safeguard
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witnesses and their family members from intimidation and
threats against their lives, reputation and property.
29. As pointed out above, in Sakshi's case, the Court had
insisted about the need to come up with a legislation for the
protection of witnesses. It had even requested the Law
Commission to examine certain aspects, which resulted to 172nd
review of rape laws by the Law Commission. However, the Court
specifically rejected the suggestion of the Law Commission
regarding examination of vulnerable witnesses in the absence of
Accused. Having regard to the provisions of Section 273 of the
Code of Criminal Procedure, which is based on the tenets of
principle of natural justice, that the witness must be examined in
the presence of the Accused, such a principle cannot be
sacrificed in trials and in inquiries regarding sexual offences. In
such a scenario examination of these witnesses through video
conferencing provides the solution which balances the interest of
the Accused as well as vulnerable witnesses.
30. Part II(7)(L) of the Witness Protection Scheme, 2018
provides for usage of specially designed court room having
special arrangements like live links, one way mirrors, and screens
apart from separate passages for witnesses and Accused with
the option to modify the image of the face of the witness and to
modify the audio feed of the witness's voice, so that he/she is
not identified.
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33. In fact, the Supreme Court too, in The State of
Maharashtra v. Bandu @ Daulat (Order dt. 24.20.2017 in Crl.
Appeal No. 1820/2017) has directed as follows:
10. ... there should be special centres for examination of
vulnerable witnesses in criminal cases in the interest of
conducive environment in Court so as to encourage a vulnerable
victim to make a statement. Such centres ought to be set up with
all necessary safeguards. Our attention has been drawn to
guidelines issued by the Delhi High Court for recording evidence
of vulnerable witnesses in criminal matters and also the fact that
four special centres have been set up at Delhi for the purpose.
* * * * * * *
12. The directions of Delhi High Court and setting up of special
centres for vulnerable witnesses as noted above are consistent
with the decision of this Court and supplement the same. We are
of the view that all High Courts can adopt such guidelines if the
same have not yet been adopted with such modifications as may
be deemed necessary. Setting up of one center for vulnerable
witnesses may be perhaps required almost in every district in the
country. All the High Courts may take appropriate steps in this
direction in due course in phases. At least two such centres in the
jurisdiction of each High Court may be set up within three
months from today. Thereafter, more such centres may be set up
as per decision of the High Courts.
34. One thing which emerges from the aforesaid discussion is
that there is a paramount need to have witness protection
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regime, in a statutory form, which all the stakeholders and all
the players in the criminal justice system concede. At the same
time no such legislation has been brought about. These are the
considerations which had influenced this Court to have a holistic
regime of witness protection which should be considered as law
Under Article 141 of the Constitution till a suitable law is framed.
35. We, accordingly, direct that:
(i) This Court has given its imprimatur to the Scheme prepared
by Respondent No. 1 which is approved hereby. It comes into
effect forthwith.
(ii) The Union of India as well as States and Union Territories
shall enforce the Witness Protection Scheme, 2018 in letter and
spirit.
(iii) It shall be the 'law' Under Article 141/142 of the
Constitution, till the enactment of suitable Parliamentary and/or
State Legislations on the subject.
(iv) In line with the aforesaid provisions contained in the
Scheme, in all the district courts in India, vulnerable witness
deposition complexes shall be set up by the States and Union
Territories. This should be achieved within a period of one year,
i.e., by the end of the year 2019. The Central Government should
also support this endeavour of the States/Union Territories by
helping them financially and otherwise.”
43. The above decision of the Hon'ble Supreme Court has threadbare
dissected the various difficulties faced by the witnesses in deposing before a
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court of law and the challenges they face not only prior to deposition, but also
post deposition, where even their life is put at stake at the hands of unscrupulous
persons.
44. Learned Special Public Prosecutor, highlighting the above aspects,
which had weighed with the Hon'ble Supreme Court in issuing series of directions
to the Governments, both at the Centre and in the States, the need to provide
adequate safeguards not only for the witnesses, but also for the victims, who are
also witnesses in their case from being threatened and intimidated from giving
evidence against the accused, submitted that the case on hand, being one of such
a nature and the gravity of the offence committed, also being of monstrous
proportion, by persons, who had terrorised the victims by their acts in
committing such indecent and inhuman acts, this Court, not only to uphold
justice, but equally with a view to safeguarding the interest of the victims and the
witnesses, who would be deposing in the trial, may issue directions to the State in
consonance with the directions issued by the Hon'ble Supreme Court pertaining
to the Witness Protection Scheme, 2018, formulated for this purpose, so that the
safety and security of the victims and the witnesses are not jeopardized and that
they could give evidence without fear or favour against the accused persons.
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45. It is also further submitted by the learned Special Public Prosecutor
that this Court may issue necessary direction to the State to provide necessary
assistance to the respondent, if required and sought for, for effectively
prosecuting the case and also protecting the witnesses and the victims.
46. This Court has taken into consideration the submissions advanced by
the learned Special Public Prosecutor on the need for safeguarding the security
and safety of the victims and the witnesses and on the above submission, sought
for necessary details from the learned Public Prosecutor appearing for the State
as to the assistance that the State is ready and willing to provide in the matter of
providing security to the witnesses and the victims and also the conduct of trial
and prosecution of the accused, if sought for by the respondent, to which the
learned Public Prosecutor, appearing for the State submitted that if any
assistance is required at any stage of investigation and also at any stage during
the trial, the Government would provide all the necessary assistance sought for.
The learned Public Prosecutor for the State also submitted that for the purpose of
assisting the respondent in the conduct of investigation, the Government, on its
own volition, has decided to assign a Special Officer in the cadre of
Superintendent of Police, who is well versed in the specific type of case, to assist
the respondent CBI in conducting the trial and also for any other matter
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connected with the trial. It is further submitted by the learned Public Prosecutor
for the State that all the infrastructure that are necessary would be provided by
the State for implementing the Witness Protection Scheme, 2018.
47. Learned Public Prosecutor for the State after getting further
instructions also informed the Court that Ms.J.Mutharasi, Superintendent of
Police, CBCID – Unit-2, would be deputed by the Government for the purpose of
assisting the respondent CBI in prosecuting the trial against the accused. The
statement of the Public Prosecutor appearing for the State is recorded.
48. It was also brought to the notice of this Court by the learned Special
Public Prosecutor for the respondent that initially the then investigating officer
had divulged the identity of the victims over the media, which resulted in the
imposition of a cost of Rs.25,00,000/- (Rupees Twenty Five Lakhs only) by this
Court, vide order dated 15.03.2019 made in W.P. (MD) No.6238/2019, payable to
the victim by the State. It is submitted by the learned Public Prosecutor for the
State that the cost imposed has been paid to the victim. Though the victim
stands compensated, however, this Court is of the view that the said cost
imposed on the said persons is not commensurate with the gravity of the offence
committed by the concerned persons. The disclosure of the names of the victims
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by the investigating team over the media, has put the fate of the said victims in
jeopardy and the violation is of such a magnitude that imposition of cost alone
would not be sufficient. Even in the order passed by this Court in W.P. (MD)
No.6238/19, this Court had directed the State to initiate disciplinary action
against the erring persons. This Court had, even at the earlier instance,
highlighted the necessity for action to be taken against such of those officials,
who spell out the names of the victim over the media, in utter disregard to the
directions of this Court and also the Witness Protection Scheme, and the need for
dealing with such of those persons with iron hands so that recurrence of such
incidents do not take place. In such a backdrop, this Court is of the considered
opinion that the persons, who were investigating the case then and who had
committed such a lapse of divulging the names of the victims to the media should
be dealt with departmentally by initiating proceedings against them. To the said
view of the Court, learned Public Prosecutor appearing for the State, on
instructions, fairly conceded that the Government will take suitable departmental
action against the persons, who were part of the investigating team, who were
responsible for the said lapse. Accordingly, while recording the stand of the
Government, as aforesaid, this Court, as undertaken by the State, directs
initiation of appropriate departmental action agains the said officials who were
involved in divulging the names of the victim to the media.
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49. In view of the foregoing discussions, this criminal original petition is
dismissed.
50. Further, on the basis of the directions issued by the Hon'ble Supreme
Court in Mahender Chawla's case (supra) and also with a view to ensure that the
safety and security of the victims, who would be witnesses in the trial as also the
other witnesses, who would be deposing during the trial, this Court, in the
interest of justice, issues the following directions :-
i) As undertaken by the respondent/CBI, all earnest
efforts be made to commence the trial by the 1st week of
September, 2021 and to that extent the respondent/CBI
shall take all earnest efforts to apprehend all the persons, if
not already apprehended and file necessary report before
the commencement of the trial.
ii) It is open to the respondents to file necessary
application seeking identity protection of the witnesses
before the Competent Authority, who, on receipt of the
same, shall pass appropriate order in terms with Para-III of
the Scheme.
iii) The trial court shall, during the course of hearing of
such application, shall ensure that the name of the witness
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is not revealed to any other person, which is likely to lead to
the identification of the witness.
iv) The Witness Protection Measures as spelt out in in
Part-II, Part-III, Part-IV and Part-V of the Witness Protection
Scheme, 2018, shall be strictly adhered to once the
competent authority has passed an order protecting the
identity of the witness.
v) The State Government also shall ensure that the types
of protection measures, as envisaged under Clause-7 of the
Witness Protection Scheme, is strictly adhered to, so that
the identity of the witness would be closely guarded pre-
trial and post-trial so that the safety and security of the
victims and witnesses would stand protected.
vi) The State Government shall provide the necessary
funds for implementing the witness protection programme
pursuant to the Witness Protection Order passed by the
competent authority.
vii) The State shall also take all necessary steps for
providing Live Link for taking deposition of the victims and
the witnesses for the purposes of interacting with the
competent authority as also for the purpose of deposing
before the Court.
viii) The Forensic Lab, which comes under the control of
the State Government, shall submit the necessary reports
relating to the items, which have been sent by the
respondent for analysis, to the respondent/CBI within a
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period of two weeks from the date of receipt of a copy of
this order. The learned Public Prosecutor appearing for the
State shall ensure that the reports are dispatched by the
Forensic Lab, within the time frame as given above.
ix) In view of the sensitivity of the case, the trial court
shall take all necessary steps to conduct “In Camera
Proceedings”, wherever necessary as provided under Clause
2 (f) of the Witness Protection Scheme.
x) As informed by the learned Public Prosecutor for the
State, the State shall issue necessary notification
nominating Ms.J.Mutharasi, Superintendent of Police,
CBCID – Unit-2, for the purpose of assisting the respondent
CBI in prosecuting the case before the trial court.
xi) The Government shall initiate appropriate
departmental action forthwith against the then
Superintendent of Police and also the other police
personnel, who were involved in divulging the names of the
victims and the accused to the media.
xii) The learned Sessions Judge, Mahalir Neethi
Mandram, Coimbatore, is directed to conduct the trial on
day-to-day basis and complete the trial within a period of
six months from the date of commencement of the trial, as
undertaken by the respondent/CBI.
xiii) The Public Prosecutor appointed by the CBI before
the trial court for the purpose of conducting the trial before
the Sessions Judge, Mahalir Neethimandram, Coimbatore,
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shall take the assistance of Mr.K.Srinivasan, Special Public
Prosecutor for CBI Cases, High Court, Madras, for effective
conduct of the trial in accordance with. The Public
Prosecutor appointed for conducting the trial shall also keep
the Special Public Prosecutor for CBI Cases, High Court,
Madras, informed of the day-to-day affairs in the conduct of
the trial so that the Special Public Prosecutor for CBI Cases,
High Court, Madras, can give his rich experience in the
proper conduct of the case for ensuring fair delivery of
justice to all the parties concerned.
51. Before parting with this case, this Court would like to recapitulate the
words and thoughts of the Father of our Nation, Mahatma Gandhiji, who had
lamented that independence of our country would stand fully achieved only
when a day comes when the women folk are able to go outside without any fear
during the night. However, the pathetic situation that has unfolded since
independence is that the women folk are not able to move out without fear even
during the day time as their security and safety are at peril at the hands of anti-
social elements, who prey on the women folk to satisfy their lust as is reflected in
this case, thereby rendering the independence attained through blood sweating
of our freedom fighters an effort in vain. The expeditious and judicious disposal
of cases of this nature by the courts alone could infuse a semblance of safety in
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the minds of the common man that the justice delivery system will step in to fill
up the lacunae to not only render speedy justice but also see to it that the
persons, who perpetrate heinous crimes are dealt with iron hands.
11.08.2021
Index : Yes / No
Internet : Yes / No
GLN
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To
1. Central Bureau of Investigation
SPI Crime Branch, Beasant Nagar
Chennai.
2. The Spl. Public Prosecutor for CBI Cases
High Court, Madras.
3. The Public Prosecutor
High Court
Madras.
4. The Chief Secretary to Government
Government of Tamil Nadu
Secretariat, Fort St. George
Chennai.
5. The Home Secretary
Government of Tamil Nadu
Secretariat, Fort St. George
Chennai.
6. The Director General of Police
Chennai.
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M.DHANDAPANI, J.
GLN
PRE-DELIVERY ORDER IN
CRL. O.P. NO. 12934 OF 2021
Pronounced on
11.08.2021
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