SC: When the accused company is let off, complaint cannot continue against Managing Director who is only vicariously liable

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1364 OF 2014
(arising out of SLP(Crl.) No.7039 of 2007)
Anil Gupta … APPELLANT
VERSUS
Star India Pvt. Ltd. & Anr. … RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA,J.
Leave granted.
2. This appeal is directed against the judgment dated 13th
August, 2007 passed by the High Court of Delhi at New Delhi in
Criminal Miscellaneous Case No.2380 of 2004. By the impugned
judgment, the High Court held that the complaint under Section 138
read with Section 141 of the Negotiable Instruments Act, 1881
(hereinafter referred to as the, ‘Act’) was barred by limitation
and quashed the summon order against respondent no.2-Visionaries
Media Network (hereinafter referred to as the, ‘Company’). It
further held that the dispute qua the appellant (petitioner no.2
before High Court) is within limitation and affirmed the summon
order against the appellant.
3. The factual matrix of the case is as follows:
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A subscription agreement was entered into between respondent
nos.1 and 2 whereby respondent no.2-Company was appointed as
distributor of Star Channels and collecting subscription fee for
the same. On 27.12.2003, respondent no.2-Company issued three
cheques bearing nos.790913, 790912 and 790911 for Rs.6,00,000/-,
Rs.5,00,000/- and Rs.5,00,000/- respectively drawn on the Indian
Overseas Bank, Gandhi Nagar, Jammu. The aforesaid three cheques
were presented before the Indian Overseas Bank, Gandhi Nagar,
Jammu and were dishonoured on 6.01.2004. Respondent No.1 served
notice on respondent no.2-Company with a demand notice separately
for all the three cheques. Respondent no.2-Company replied to the
said notice on 20.01.2004 informed respondent no.1 that payments
were stopped because of their inability to stop the piracy due to
which the cable operators did not make payments.
Thereafter, respondent no.1 issued second notice dated
28.01.2004 on the appellant based on the same facts and based on
the same memo of dishonor in respect of the aforesaid three
cheques. Respondent no.1 also issued a corrigendum of the same
date to the said notice. The appellant submitted reply to the said
notice on 3.02.2004.
4. Respondent no.1 filed a Criminal Complaint under Sections 138
and 141 of the Act on 17.03.2004. According to appellant,
respondent no,1 concealed the material fact of having earlier
issued notice dated 14.1.2004 with regard to the aforesaid three
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cheques and by misleading the Court got summons issued by
Metropolitan Magistrate in Complaint No.698 of 2001 to the
appellant and respondent no.2-Company.
5. Thereafter, respondent no.2-Company and appellant jointly
filed Criminal Miscellaneous Petition No.2380 of 2004 under
Section 482 of the Criminal Procedure Code, 1973 before the High
Court of Delhi at New Delhi for quashing the aforesaid criminal
complaint filed by respondent no.1. In its reply, respondent no.1
taken the plea that first notice dated 14.01.2004 was not a notice
under Section 138 of the Act. It was contended on behalf of the
appellant that he was only vicariously liable on behalf of
respondent no.2-Company. Learned counsel for the appellant placed
reliance on decisions of this Court in support of his claim.
6. The High Court by impugned judgment while recording the stand
taken by respondent no.1 that letter dated 14.01.2004 constituted
a valid notice under Section 138 of the Act and hence the
complaint based on second notice against respondent no.2-Company
was not maintainable and quashed the summon issued by the Trial
Court against respondent no.2-Company. However, so far as
appellant is concerned, the High Court relying on decision of this
Court in Anil Hada v. Indian Acrylic Ltd., (2000) 1 SCC 1, held
that the proceeding against the Director can be issued even in
absence of the Company being impleaded, The High Court further
held that the summoning order was valid since the first notice was
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not addressed to the appellant and the second notice which was
also addressed to the appellant was issued within time and.
therefore, criminal complaint filed by respondent no.1 against the
appellant on the basis of the said notice is maintainable.
7. Learned counsel appearing on behalf of the appellant
contended that the order of the High Court is contrary to the law
in as much as this is not a case where proceedings were initiated
against the Managing Director alone. On the contrary, the
proceedings are instituted against the company/accused and its
Managing Director. In the event of the company/accused being let
off, the same cannot continue against the Managing Director who
admittedly is only vicariously liable.
8. It is further submitted that even as per law laid down in
Anil Handa’s case, the Director of a company/accused is only
liable vicariously and upon his showing that the principal accused
is not liable he cannot be held guilty.
9. On the other hand, according to counsel for the respondents,
the issue is no longer res integra as held by the High Court.
10. Section 138 of the Act deals with dishonor of cheque for
insufficiency etc. as follows:
“138. Dishonour of cheque for insufficiency, etc.,
of funds in the account.—Where any cheque drawn by
a person on an account maintained by him with a
banker for payment of any amount of money to
another person from out of that account for the
discharge, in whole or in part, of any debt or
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other liability, is returned by the bank unpaid,
either because of the amount of money standing to
the credit of that account is insufficient to
honour the cheque or that it exceeds the amount
arranged to be paid from that account by an
arrangement made with that bank, such person shall
be deemed to have committed an offence and shall,
without prejudice to any other provisions of this
Act, be punished with imprisonment for a term which
may extend to two years, or with fine which may
extend to twice the amount of the cheque, or with
both:
Provided that nothing contained in this section
shall apply unless—
(a) the cheque has been presented to the bank
within a period of six months from the date on
which it is drawn or within the period of its
validity, whichever is earlier;
(b) the payee or the holder in due course of the
cheque, as the case may be, makes a demand for the
payment of the said amount of money by giving a
notice in writing, to the drawer of the cheque,
within thirty days of the receipt of information by
him from the bank regarding the return of the
cheque as unpaid; and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee
or, as the case may be, to the holder in due course
of the cheque within fifteen days of the receipt of
the said notice.”
From the aforesaid provision, it is clear that only the
drawer of the cheque falls within the ambit of Section 138 of the
Act whether human being or a body corporate or even a firm.
11. The guilt for offence under Section 138 will be deemed to be
upon other persons connected with the Company in view of Section
141 of the Act, which reads as follows:
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“141. Offences by companies.—(1) If the person
committing an offence under Section 138 is a
company, every person who, at the time the offence
was committed, was in charge of, and was
responsible to the company for the conduct of the
business of the company, as well as the company,
shall be deemed to be guilty of the offence and
shall be liable to be proceeded against and
punished accordingly:
Provided that nothing contained in this subsection
shall render any person liable to
punishment if he proves that the offence was
committed without his knowledge, or that he had
exercised all due diligence to prevent the
commission of such offence.
(2) Notwithstanding anything contained in subsection
(1), where any offence under this Act has
been committed by a company and it is proved that
the offence has been committed with the consent or
connivance of, or is attributable to, any neglect
on the part of, any director, manager, secretary or
other officer of the company, such director,
manager, secretary or other officer shall also be
deemed to be guilty of that offence and shall be
liable to be proceeded against and punished
accordingly.”
12. Similar question was raised and considered by two Judge Bench
of this Court in Anil Hada v. India Acrylic Ltd. (2000) 1 SCC 1.
This Court held:
“12. Thus when the drawer of the cheque who falls
within the ambit of Section 138 of the Act is a
human being or a body corporate or even firm,
prosecution proceedings can be initiated against
such drawer. In this context the phrase “as well
as” used in sub-section (1) of Section 141 of the
Act has some importance. The said phrase would
embroil the persons mentioned in the first category
within the tentacles of the offence on a par with
the offending company. Similarly the words “shall
also” in sub-section (2) are capable of bringing
the third category persons additionally within the
dragnet of the offence on an equal par. The effect
of reading Section 141 is that when the company is
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the drawer of the cheque such company is the
principal offender under Section 138 of the Act and
the remaining persons are made offenders by virtue
of the legal fiction created by the legislature as
per the section. Hence the actual offence should
have been committed by the company, and then alone
the other two categories of persons can also become
liable for the offence.
13. If the offence was committed by a company it
can be punished only if the company is prosecuted.
But instead of prosecuting the company if a payee
opts to prosecute only the persons falling within
the second or third category the payee can succeed
in the case only if he succeeds in showing that the
offence was actually committed by the company. In
such a prosecution the accused can show that the
company has not committed the offence, though such
company is not made an accused, and hence the
prosecuted accused is not liable to be punished.
The provisions do not contain a condition that
prosecution of the company is sine qua non for
prosecution of the other persons who fall within
the second and the third categories mentioned
above. No doubt a finding that the offence was
committed by the company is sine qua non for
convicting those other persons. But if a company is
not prosecuted due to any legal snag or otherwise,
the other prosecuted persons cannot, on that score
alone, escape from the penal liability created
through the legal fiction envisaged in Section 141
of the Act.”
“21. We, therefore, hold that even if the
prosecution proceedings against the Company were
not taken or could not be continued, it is no bar
for proceeding against the other persons falling
within the purview of sub-sections (1) and (2) of
Section 141 of the Act. In the light of the
aforesaid view we do not consider it necessary to
deal with the remaining question whether winding-up
order of a company would render the company nonexistent.”
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13. In Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd.,
(2008) 13 SCC 703, taking note of the maxim lex non cogit ad
impossibilia, two Judge Bench of this Court observed:
“54. True interpretation, in my opinion, of the
said provision would be that a company has to be
made an accused but applying the principle of lex
non cogit ad impossibilia i.e. if for some legal
snag, the company cannot be proceeded against
without obtaining sanction of a court of law or
other authority, the trial as against the other
accused may be proceeded against if the ingredients
of Section 138 as also Section 141 are otherwise
fulfilled. In such an event, it would not be a case
where the company had not been made an accused but
would be one where the company cannot be proceeded
against due to existence of a legal bar. A
distinction must be borne in mind between cases
where a company had not been made an accused and
the one where despite making it an accused, it
cannot be proceeded against because of a legal
bar.”
14. Again the same question was considered by three Judge Bench
of this Court in Aneeta Hada v. Godfather Travels and Tours Pvt.
Ltd. (2012) 5 SCC 661. The Court noticed the decisions in Anil
Hada (supra) case and Aneeta Hada (supra) case. The three Judge
Bench while partly overruled the finding of Anil Hada (supra)
affirmed the decision of Aneeta Hada (supra). This Court held
“51. We have already opined that the decision in
Sheoratan Agarwal runs counter to the ratio laid
down in C.V. Parekh which is by a larger Bench and
hence, is a binding precedent. On the aforesaid
ratiocination, the decision in Anil Hada has to be
treated as not laying down the correct law as far
as it states that the Director or any other officer
can be prosecuted without impleadment of the
company. Needless to emphasise, the matter would
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stand on a different footing where there is some
legal impediment and the doctrine of lex non cogit
ad impossibilia gets attracted.”
“53. It is to be borne in mind that Section 141 of
the Act is concerned with the offences by the
company. It makes the other persons vicariously
liable for commission of an offence on the part of
the company. As has been stated by us earlier, the
vicarious liability gets attracted when the
condition precedent laid down in Section 141 of the
Act stands satisfied. There can be no dispute that
as the liability is penal in nature, a strict
construction of the provision would be necessitous
and, in a way, the warrant.”
“58. Applying the doctrine of strict construction,
we are of the considered opinion that commission of
offence by the company is an express condition
precedent to attract the vicarious liability of
others. Thus, the words “as well as the company”
appearing in the section make it absolutely
unmistakably clear that when the company can be
prosecuted, then only the persons mentioned in the
other categories could be vicariously liable for
the offence subject to the averments in the
petition and proof thereof. One cannot be oblivious
of the fact that the company is a juristic person
and it has its own respectability. If a finding is
recorded against it, it would create a concavity in
its reputation. There can be situations when the
corporate reputation is affected when a Director is
indicted.
59. In view of our aforesaid analysis, we arrive at
the irresistible conclusion that for maintaining
the prosecution under Section 141 of the Act,
arraigning of a company as an accused is
imperative. The other categories of offenders can
only be brought in the drag-net on the touchstone
of vicarious liability as the same has been
stipulated in the provision itself. We say so on
the basis of the ratio laid down in C.V. Parekh17
which is a three-Judge Bench decision. Thus, the
view expressed in Sheoratan Agarwal does not
correctly lay down the law and, accordingly, is
hereby overruled. The decision in Anil Hada is
overruled with the qualifier as stated in para 51.
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The decision in Modi Distillery has to be treated
to be restricted to its own facts as has been
explained by us hereinabove.”
15. In the present case, the High Court by impugned judgment
dated 13th August, 2007 held that the complaint against respondent
no.2-Company was not maintainable and quashed the summon issued by
the Trial Court against respondent no.2-Company. Thereby, the
Company being not a party to the proceedings under Section 138
read with Section 141 of the Act and in view of the fact that part
of the judgment referred to by the High Court in Anil Hada (supra)
has been overruled by three Judge Bench of this Court in Aneeta
Hada (supra), we have no other option but to set aside the rest
part of the impugned judgment whereby the High Court held that the
proceedings against the appellant can be continued even in absence
of the Company. We, accordingly, set aside that part of the
impugned judgment dated 13th August, 2007 passed by the High Court
so far it relates to appellant and quash the summon and proceeding
pursuant to complaint case No.698 of 2001 qua the appellant.
16. The appeal is allowed with aforesaid observation.
…………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
…………………………………………J.
(V. GOPALA GOWDA)
NEW DELHI,
JULY 07, 2014.

SC: A person, not a relative of the husband, may not be prosecuted under Section 304B IPC

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1278 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.1696 of 2006)
STATE OF PUNJAB ..... APPELLANT
VERSUS
GURMIT SINGH .... RESPONDENT
J U D G M E N T
Chandramauli Kr. Prasad
State of Punjab aggrieved by the order
dated 7th of September, 2005, passed by the
Punjab and Haryana High Court in Criminal
Revision No. 320 of 2000 whereby it has set
aside the order of the trial court dated 24th
of January, 2000 summoning the respondent
Gurmit Singh to face trial under Section 319
Page 2
of the Code of Criminal Procedure, has
preferred this special leave petition.
Leave granted.
Facts lie in a very short compass. On the
basis of a report a case under Section 304B of
the Indian Penal Code (for short ‘IPC’) was
registered at Police Station, Kharar. In the
first information report, the names of various
accused persons figured including Gurmit
Singh, the respondent herein. Police after
usual investigation, submitted the chargesheet
in which the respondent did not figure
as an accused. However, the respondent along
with some other accused persons who were not
charge-sheeted were summoned to face the
trial. They challenged the said order before
the High Court in Criminal Misc. No. 1584-M of
1999 and the High Court by its order dated 25th
of February, 1999 set aside the order
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summoning those accused persons including the
respondent but while doing so gave liberty to
take recourse to the provisions of Section 319
of the Code of Criminal Procedure, hereinafter
referred to as the ‘Code’, at an appropriate
stage of the trial. During the course of
trial, evidence of one Shakuntla Rani, PW-1
was recorded, who averred that the respondent
herein was also responsible for the death of
Gurjit Kaur, the wife of Paramjit Singh.
Thereafter, an application was filed by the
prosecution for summoning aforesaid Gurmit
Singh and other accused persons before the
trial court in exercise of the power under
Section 319 of the Code. The trial court by
its order dated 24th of January, 2000, summoned
the respondent besides other accused persons
to face trial, for commission of offence under
Section 304B IPC, inter alia, observing that
the names of those persons figured in the FIR,
statement of the witnesses recorded under
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Page 4
Section 161 of the Code and the evidence of
Shakuntla Rani, PW-1.
Respondent challenged the aforesaid order
in a revision application filed before the
High Court inter alia on the ground that he
cannot be tried for offence under Section 304B
of the Code because he is not a relative of
the husband of the deceased. It was pointed
out that Paramjit Singh happened to be the
husband of the deceased whereas the respondent
is the brother of his aunt (chachi) and,
therefore, cannot be said to be a relative of
the deceased’s husband. Aforesaid submission
found favour with the High Court and,
accordingly, it quashed the order summoning
the respondent to face the trial. While
doing so, the High Court observed as follows:
“Even the dictionary meaning of a
relative is one who is related by
blood or marriage. Gurmit Singh
is certainly not related to
Paramjit Singh either by blood or
by marriage. Gurmit Singh would
not fall in the category of
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relative of the husband.
Therefore, Gurmit Singh must be
excluded from the array of the
accused. It is not necessary to
try him under Section 304B I.P.C.
for the dowry death of Paramjit
Singh’s wife.
Mr. V. Madhukar, learned Additional
Advocate General appearing on behalf of the
State submits that the High Court erred in
holding that the respondent is not a relative
of the husband of the deceased. He points out
that Balbir Kaur is the wife of Paramjit
Singh’s father’s brother and Gurmit Singh
respondent herein happens to be Balbir Kaur’s
brother, hence, a relative of Paramjit Singh.
According to him, the High Court erred in
holding that he is not a relative of the
husband of the deceased. Mr. C.D. Singh,
learned counsel appearing on behalf of the
respondent, however, submits that the
respondent cannot be said to be related to the
husband of the deceased in any manner and,
therefore, cannot be prosecuted for offence
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under Section 304B of the IPC. The rival
submission necessitates the examination of
Section 304B of the IPC, same reads as
follows:
”304B. Dowry death.—(1) Where the
death of a woman is caused by any
burns or bodily injury or occurs
otherwise than under normal
circumstances within seven years
of her marriage and it is shown
that soon before her death she was
subjected to cruelty or harassment
by her husband or any relative of
her husband for, or in connection
with, any demand for dowry, such
death shall be called “dowry
death”, and such husband or
relative shall be deemed to have
caused her death.
Explanation.—For the purpose of
this sub-section, “dowry” shall
have the same meaning as in
section 2 of the Dowry Prohibition
Act, 1961 (28 of 1961).
(2) Whoever commits dowry death
shall be punished with imprisonment
for a term which shall not be
less than seven years but which
may extend to imprisonment for
life.”
(underlining ours)
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From a plain reading of the aforesaid
provision it is evident that when a woman dies
by any burns or bodily injury or otherwise
than under normal circumstances within seven
years of the marriage, her husband or any
relative of her husband shall be deemed to
have committed the offence of dowry death if
it is shown that soon before the death the
woman was subjected to cruelty or harassment
by her husband, or by any relative of her
husband. This section therefore, exposes the
husband of the woman or any relative of her
husband for the commission of offence of the
dowry death. Admittedly, the respondent is
not the husband of the woman who died and,
therefore, the question which falls for
determination is as to whether he comes within
the ambit of “any relative of her husband”.
The expression “relative” has not been defined
in the IPC. The provision with which we are
concerned is a penal provision which deserves
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strict construction. It is well settled that
when the words of a statute are not defined,
it has to be understood in their natural,
ordinary or popular sense. For this purpose,
it shall be permissible to refer to
dictionaries to find out the general sense in
which the word is understood in common
parlance. In Ramanatha Aiyar’s, Advance Law
Lexicon (Vol.4, 3rd Edn.), the word relative
means any person related by blood, marriage or
adoption. A large number of dictionaries give
this word relative, in context, same meaning.
It is relevant here to state that the
expression “relative of the husband” has been
used in Section 498-A of the I.P.C. While
interpreting the said expression, this Court
in the case of U. Suvetha vs. State by
Inspector of Police and Anr.(2009) 6 SCC 787
held it to mean a person related by blood,
marriage or adoption. Relevant portion of the
judgment reads as follows:
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“10. In the absence of any
statutory definition, the term
“relative” must be assigned a
meaning as is commonly understood.
Ordinarily it would include
father, mother, husband or wife,
son, daughter, brother, sister,
nephew or niece, grandson or
granddaughter of an individual or
the spouse of any person. The
meaning of the word “relative”
would depend upon the nature of
the statute. It principally
includes a person related by
blood, marriage or adoption.”
The expression relative of the husband
further came up for consideration in the case of
Vijeta Gajra vs. State of NCT of Delhi (2010)11
SCC 618 and while approving the decision of this
Court in U. Suvetha (Supra), it was held that
the word relative would be limited only to the
blood relations or the relations by marriage.
It is appropriate to reproduce the following
passage from the said judgment:
“12. Relying on the dictionary
meaning of the word “relative” and
further relying on Ramanatha
Aiyar’s, Advance Law Lexicon
(Vol.4, 3rd Edn.), the Court went
on to hold that Section 498-A IPC
being a penal provision would
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Page 10
deserve strict construction and
unless a contextual meaning is
required to be given to the
statute, the said statute has to
be construed strictly. On that
behalf the Court relied on the
judgment in T. Ashok Pai vs. CIT
(2007) 7 SCC 162. A reference was
made to the decision in Shivcharan
Lal Verma vs. State of M.P. (2007)
15 SCC 369. After quoting from
various decisions of this Court,
it was held that reference to the
word “relative” in Section 498-A
IPC would be limited only to the
blood relations or the relations
by marriage.”
It is well known rule of construction
that when the Legislature uses same words in
different part of the statute, the presumption
is that those words have been used in the same
sense, unless displaced by the context. We do
not find anything in context to deviate from
the general rule of interpretation. Hence, we
have no manner of doubt that the word
“relative of the husband” in Section 304 B of
the IPC would mean such persons, who are
related by blood, marriage or adoption. When
we apply this principle the respondent herein
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is not related to the husband of the deceased
either by blood or marriage or adoption.
Hence, in our opinion, the High Court did not
err in passing the impugned order. We hasten
to add that a person, not a relative of the
husband, may not be prosecuted for offence
under Section 304B IPC but this does not mean
that such a person cannot be prosecuted for
any other offence viz. Section 306 IPC, in
case the allegations constitute offence other
than Section 304B IPC.
In the result, we do not find any merit in
the appeal and it is dismissed accordingly.
………………………………………………………………J
(CHANDRAMAULI KR. PRASAD)
………………………………………………………………J
(PINAKI CHANDRA GHOSE)
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Page 12
NEW DELHI,
July 2, 2014.
12

Court can recall any witness even if once that power under S.311 CrPC, has been exercised:Supreme Court

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1307 OF 2014
[Arising out of Special Leave Petition (Crl.) No.8395 of 2012]
Mannan Sk & Ors. ... Appellants
Vs.
State of West Bengal & Anr. … Respondents
J U D G M E N T
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. In this appeal order dated 11/5/2012 passed by the
High Court of Calcutta is under challenge.  By the impugned
order the High Court reversed the trial court’s order which
had rejected the application filed by the prosecution under
Section 311 of the Code of Criminal Procedure, 1973  (for
short, ‘the code’) to recall the Investigating Officer.

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3 A petty altercation over a tape recorder resulted in a
major incident in which bombs were hurled at Rupchand Sk –
the   father   of   PW8-Nurul   Islam.     Incident   occurred   on
13/12/1992.   Rupchand Sk suffered grievous injuries.   He
was taken to a local hospital. From there he was shifted to
Berhampore   hospital   where   he   breathed   his   last.   On
14/12/1992 a complaint was lodged by the son of deceased
Rupchand Sk - PW8-Nurul Islam with Raghunathpur Police
Station on the basis of which FIR was registered. In the FIR
PW8-Nurul Islam named nine persons.  Initially the case was
registered under Sections 447, 326 read with Section 34 of
the Penal Code and Sections 3 and 4 of the Explosives
Substances Act.   After the death of Rupchand Sk, Section
304 of the Penal Code was added.
4. After the charges were framed the trial began.   PW15-SI Dayal Mukherjee, the Investigating Officer, was examined
on 18/2/2011.  He was re-examined on 17/5/2011. He stated
in his evidence that he had recorded deceased Rupchand
Sk’s   statement   at   the   scene   of   offence.   In   the   cross-2
Page 3
examination   he   stated   that   he   had   recorded   one   page
statement of deceased Rupchand Sk.   This statement was
not brought on record.   
5. One month thereafter on 16/6/2011 the prosecution
moved an application for recalling PW15-SI Dayal Mukherjee
because   the   prosecution   wanted   to   bring   on   record
statement   of   deceased   Rupchand   Sk   which   it   had
inadvertently omitted to do.   Needless to say that it is the
prosecution case that after death of Rupchand Sk the said
statement became his dying declaration.
6. The trial court vide order dated 22/6/2011 rejected the
said application.  The trial court observed that the case was
at the stage of argument and no explanation was given by
the   prosecution   as   to   why   the   statement   of   deceased
Rupchand Sk was not brought on record by the Investigating
Officer.  The trial court noted that PW15-SI Dayal Mukherjee
was examined on 18/2/2011 and re-examined on 17/5/2011.
According to the trial court if the prosecution is allowed to
recall   PW15-SI   Dayal   Mukherjee   that   would   enable   the
3
Page 4
prosecution to fill-up the lacuna.   The trial court relied on
State of Rajasthan v. Doulat Ram   1    and  Mohan Lal
Shamji Soni v. Union of India   2  .  The trial court observed
that re-examination of PW15- SI Dayal Mukherjee is not
essential for the just decision of the case. 
7. Being aggrieved by this order the complainant filed an
application under Section 401 read with Section 482 of the
Code in the High Court.  The High Court reversed the trial
court’s order.  The High Court observed that non-exhibiting
of the statement of deceased Rupchand Sk was mistake of
the prosecution and no advantage can flow from the said
mistake to the accused.   The High Court further observed
that existence of the statement was known to the accused
and, hence, no prejudice would be caused to them.  The said
order is challenged in this appeal by the appellants-accused.
8. We have heard learned counsel for the parties at some
length.   We have perused their written submissions.   Mr.
Pijush K. Roy, learned counsel for the appellants submitted
1 AIR 1980 SC 1314
2 AIR 1991 SC 1346
4
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that the incident took place 22 years back.  The statements
of witnesses were recorded under Section 161 of the Code
within a week from the date of incident.  The Investigating
Officer was examined and cross-examined.  The case is set
for final arguments and, therefore, it would be unjust and
unfair to recall the Investigating Officer.   His recall would
cause serious prejudice to the appellants.  This is clearly an
attempt to fill-up the lacuna which should not be allowed.
Counsel further submitted that PW15-SI Dayal Mukherjee has
retired from the service in the year 2010 and he is presently
about 68 years of age.  He might have forgotten the entire
episode.   It will be easy for the complainant to tutor him.
Counsel submitted that Section 311 of the Code is not meant
for putting the accused in a disadvantageous position.  This
would   lead   to   miscarriage   of   justice.   In   support   of   his
submissions   counsel   relied   on  Chandran v. State of
Kerala   3  ,  State of Rajasthan v. Daulat Ram,    Mohan Lal
Shamji Soni v. Union of India & Ors,  Mishrilal and ors.
3 (1985) Cr L.J. 1288
5
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v.  State of M.P. and ors   4  ,     Mir Mohammad Omar and
ors.   v.  State of West Bengal   5  . 
9. Mr. Anip Sachthey, learned counsel appearing for the
State of West Bengal on the other hand submitted that the
application   was   made   just   one   month   after   the   re-examination of the Investigating Officer.  Therefore, there is
no delay in recalling him.  Statement of deceased Rupchand
Sk was not exhibited due to inadvertence and  hence for just
decision of the case it is essential to recall the Investigating
Officer.   Counsel submitted that this would not amount to
filling-up the lacuna.  In support of his submissions counsel
relied on P. Sanjeeva Rao  v. State of Andhra Pradesh   6  ,  
Hanuman Ram v. State of Rajasthan & Ors   7  ., Rajendra   
Prasad v. Narcotic Cell   8   and Mohanlal Shamji Soni   
10. The aim of every court is to discover truth.  Section 311
of the Code is one of many such provisions of the Code
which strengthen the arms of a court in its effort to ferret out
4 2005(10) SCC 701
5 1989 (4) SCC 436
6 2012(7) SCC 56
7 2008(15) SCC 652
8 1999(6) SCC 110
6
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the truth by procedure sanctioned by law.  It is couched in
very wide terms.  It empowers the court at any stage of any
inquiry,   trial   or   other   proceedings   under   the   Code   to
summon any person as a witness or examine any person in
attendance, though not summoned as witness or recall and
re-examine already examined witness.  The second part of
the Section uses the word ‘shall’.  It says that the court shall
summon and examine or recall or re-examine any such
person if his evidence appears to it to be essential to the just
decision  of  the  case.    The  words  ‘essential   to   the   just
decision of the case’  are the key words.   The court must
form an opinion that for the just decision of the case recall or
re-examination of the witness is necessary. Since the power
is wide it’s exercise has to be done with circumspection.  It is
trite that wider the power greater is the responsibility on the
courts which exercise it.  The exercise of this power cannot
be untrammeled and arbitrary but must be only guided by
the object of arriving at a just decision of the case.  It should
not cause prejudice to the accused.  It should not permit the
prosecution to fill-up the lacuna.  Whether recall of a witness
7
Page 8
is for filling-up of a lacuna or it is for just decision of a case
depends on facts and circumstances of each case.   In all
cases it is likely to be argued that the prosecution is trying to
fill-up a lacuna because the line of demarcation is thin.  It is
for the court to consider all the circumstances and decide
whether the prayer for recall is genuine.
11. Rather than referring to all the judgments which are
cited before us, we would concentrate on  Mohanlal Soni
which takes into consideration relevant judgments on the
scope   of   Section   311   and   lays   down   the   principles.
Mohanlal Soni is followed in all subsequent judgments.  In
Mohanlal Soni  this Court was considered the scope of
Section 540 of the  Code of Criminal Procedure, 1898 ( the
old code) which is similar to Section 311 of the Code.  This
Court   observed   that   it   is   a   cardinal   rule   in   the   law   of
evidence that the best available evidence should be brought
before the court to prove a fact or the points in issue.  The
relevant observations of this Court are as under:
8
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“… … …In order to enable the court to find out the 
truth   and   render   a   just   decision,   the   salutary
provisions of Section 540 of the Code (Section 311 
of   the   new   Code)   are   enacted   whereunder   any 
court by exercising its discretionary authority at 
any stage of enquiry, trial or other proceeding can 
summon any person as a witness or examine any 
person in attendance though not summoned as a 
witness   or   recall   or   re-examine   any   person   in 
attendance though not summoned as a witness or 
recall   and   re-examine   any   person   already 
examined who are expected to be able to throw 
light   upon   the   matter   in   dispute;   because   if
judgments   happen   to   be   rendered   on   inchoate,
inconclusive and speculative presentation of facts, 
the ends of justice would be defeated.”
This Court further observed as under:
“… … …  Though Section 540 (Section 311 of the
new   Code)   is,   in   the   widest   possible   terms   and 
calls  for   no   limitation,   either   with   regard  to   the 
stage at which the powers of the court should be 
exercised, or with regard to the manner in which 
they   should   be   exercised,   that   power   is 
circumscribed   by   the   principle   that   underlines 
Section   540,   namely,   evidence   to   be   obtained 
should   appear   to   the   court   essential   to   a  just
decision of the case by getting at the truth by all 
lawful   means.   Therefore,   it   should   be   borne   in 
mind that the aid of the section should be invoked 
only with the object of discovering relevant facts 
or obtaining proper proof of such facts for a just 
decision of the case and it must be used judicially 
and   not   capriciously   or   arbitrarily   because   any 
improper or capricious exercise of the power may 
lead to undesirable results. Further it is incumbent
that due care should be taken by the court while 
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exercising   the   power   under   this   section   and   it 
should not be used for filling up the lacuna left by 
the   prosecution   or   by   the   defence   or   to   the 
disadvantage of the accused or to cause serious 
prejudice to the defence of the accused or to give 
an unfair advantage to the rival side and further 
the additional evidence should not be received as 
a disguise for a retrial or to change the nature of 
the case against either of the parties.”
12. While   dealing   with   Section   311   of   the   Code   in
Rajendra Prasad this Court explained what is lacuna in the
prosecution as under:
“Lacuna in the prosecution must be understood as 
the inherent weakness or a latent wedge in the 
matrix of the prosecution case. The advantage of
it should normally go to the accused in the trial of 
the case, but an oversight in the management of
the prosecution cannot be treated as irreparable 
lacuna. No party in a trial can be foreclosed from 
correcting   errors.   If   proper   evidence   was   not 
adduced or a relevant material was not brought on 
record due to any inadvertence, the court should
be magnanimous in permitting such mistakes to 
be rectified. After all, function of the criminal court 
is   administration   of   criminal   justice   and   not   to 
count errors committed by the parties or to find 
out and declare who among the parties performed 
better.”
10
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13. Reference must also be made to the observations of
this Court in Zahira Habibulla H. Sheikh  and anr.   v.
State of Gujarat and ors   9   where this Court described the
scope of Section 311 of the Code as under:
“Object of the Section is to enable the court to 
arrive at the truth irrespective of the fact that 
the   prosecution   or   the   defence   has   failed   to 
produce some evidence which is necessary for a 
just and proper disposal of the case.  The power 
is   exercised   and   the   evidence   is   examined 
neither to help the prosecution nor the defence, 
if the court feels that there is necessity to act in 
terms of Section 311 but only to subserve the 
cause of justice and public interest.   It is done 
with an object of getting the evidence in aid of a 
just decision and  to uphold the truth.”
14.   If we view the present case in light of the above
judgments, we will have to sustain the High Court’s order.
PW15-SI Dayal Mukherjee stated in the court that he had
recorded the statement of deceased Rupchand Sk.   Thus,
this fact was known to the defence.  He was cross-examined
by the defence. Inadvertently, the said statement was not
brought   on   record   through   PW15-SI   Dayal   Mukherjee.
Rupchand Sk died after the said statement was recorded.
9 (2004) 4 SCC 158
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The said statement, therefore, became very vital to the
prosecution. It is obvious that the prosecution wants to treat
it as a dying declaration.   Undoubtedly, therefore, it is an
essential material to the just decision of the case.  Though,
the fact of the recording of this statement is deposed to by
PW15-SI Dayal Mukherjee, since due to oversight it was not
brought on record,  application was made under Section 311
of the Code praying for recall of PW15-SI Dayal Mukherjee.
This cannot be termed as an inherent weakness or a latent
wedge in the matrix of the prosecution case.  No material is
tried to  be brought on record surreptitiously to fill-up the
lacuna.   Since the accused knew that such a statement was
recorded by PW15-SI Dayal Mukherjee, no prejudice can be
said   to   have   been   caused   to   the   accused,   who   will
undoubtedly get a chance to cross-examine PW15-SI Dayal
Mukherjee.
15. It   is   true   that   PW15-SI   Dayal   Mukherjee   was   once
recalled but that does not matter.  It does not prevent his
further recall.   Section 311 of the Code does not put any
12
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such limitation on the court.   He can still be recalled if his
evidence appears to the court to be essential to the just
decision of the case.   In this connection we must revisit
Rajendra Prasad   where this Court has clarified that the
court can exercise   power of re-summoning any witness
even if it has exercised the said power earlier.   Relevant
observations of this Court run as under:
“We cannot therefore accept the contention of the 
appellant   as   a   legal   proposition   that   the   court 
cannot   exercise   power   of   resummoning   any 
witness if once that power was exercised, nor can 
the power be whittled down merely on the ground 
that the prosecution discovered laches only when 
the   defence   highlighted   them   during   final 
arguments. The power of the court is plenary to 
summon or even recall any witness at any stage 
of the case if the court considers it necessary for a 
just   decision.   The   steps   which   the   trial   court 
permitted   in   this   case   for   resummoning   certain 
witnesses   cannot   therefore   be   spurned   down   or 
frowned at.”
16.   It was strenuously contended that the incident had
taken place on 13/12/1992 and, therefore, the application
made  after a gap of 22 years must be rejected.   This
submission   must   be   rejected   because  PW15-SI   Dayal
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Mukherjee was re-examined on 17/5/2011 and application
for his recall was made just one month thereafter.  It is true
that   the   incident   is   dated   13/12/1992   and   the   trial
commenced in 2001.  These are systemic delays which are
indeed   distressing.     But   once   the   trial   began   and   the
Investigating  Officer  was  re-examined  on  17/5/2011,   the
prosecution made an application for recall just one month
thereafter.     There   was   no   delay   at   that   stage.   The
submissions that PW15-SI Dayal Mukherjee has grown old;
that his memory must not be serving him right; that he can
be tutored are conjectural in nature.   In any case, the
accused   have   a   right   to   cross-examine   PW15-SI   Dayal
Mukherjee.   The accused are, therefore, not placed in a
disadvantageous position.
17.   We must now turn to the judgments cited by the
appellants.  In  State of Rajasthan v. Daulat Ram  this
Court was dealing with an appeal from an order of acquittal.
The prosecution had not proved beyond reasonable doubt
that the opium seized was the opium which was sent to the
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public analyst.   At the trial the prosecution had made an
application under Section 540 of the old Code (Section 311
of the Code) for summoning three persons under whose
custody the seized samples were kept.  It was rejected by
the trial court.   An application was made before the High
Court for additional evidence which was later withdrawn.
This Court commented on the vacillating approach of the
State   and   observed   that   the   prosecution   should   not   be
allowed to fill-up the lacunae left at the trial, at the appellate
or revisional stage. This case turns on its own facts and has
no application to the present case.
18.   Mishrilal,  on   which   reliance   is   placed   by   the
appellants, has also no application to this case.  In Mishrilal
a witness was examined and cross-examined in a murder
trial on the same day.  In Juvenile Court where some of the
juveniles were tried, he gave evidence subsequently.   He
stated that he was not aware as to who attacked him.  He
was recalled by the Sessions Court and confronted with the
statement given by him before the Juvenile Court on the
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basis of which the accused were acquitted.  This Court did
not approve of the procedure adopted by the Sessions Court.
This Court observed that a witness could be confronted only
with a previous statement made by him.  The day on which
he was first examined in the Sessions Court, there was no
such previous statement.   This Court observed that the
witness must have given some other version before Juvenile
Court for some extraneous reasons.   He should not have
been given an opportunity at a later stage to completely
efface the evidence already given by him under oath.  It is
the wrong procedure and attempt to efface evidence which
persuaded this Court to observe that once the witness was
examined in-chief and cross-examined   fully such witness
should not have been recalled and re-examined to deny the
evidence which he had already given in the court even
though he had given an inconsistent statement before any
other court subsequently.   It is pertinent to note that this
Court did not discuss Section 311 of the Code.
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19. Mir Mohd. Omar has no application to this case as it
deals with a totally different fact situation.  In that case this
Court has not considered Section 311 at all.
20.   In   the   ultimate   analysis   we   must   record   that   the
impugned order merits no interference.  We must, however,
clarify that oversight of the prosecution is not appreciated by
us.   But cause of justice must not be allowed to suffer
because of the oversight of the prosecution.  We also make
it clear that whether deceased Rupchand Sk’s statement
recorded by PW15-SI Dayal Mukherjee is a dying declaration
or not, what is its evidentiary value are questions on which
we have not expressed any opinion.  If any observation of
ours directly or indirectly touches upon this aspect,   we
make it clear that it is not our final opinion. The trial court
seized of the case shall deal with it independently.
21. In the result the appeal is dismissed. Needless to say
that the interim orders passed by this Court on 15/10/2012,
03/05/2013   and   27/01/2014   staying   the   impugned   order
dated 11/05/2012 passed by the Calcutta High Court in CRR
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No. 2385 of 2011 are vacated.  The trial court shall proceed
with the case and ensure that it is concluded at the earliest.
………………………….J.
[Ranjana Prakash Desai]
………………………….J.
[N.V. Ramana]
New Delhi
July 3, 2014
18

No automatic arrest when a case under Section 498-A of the IPC is registered

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1277  OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013)

ARNESH KUMAR ..... APPELLANT
VERSUS
STATE OF BIHAR & ANR.         .... RESPONDENTS
J U D G M E N T
Chandramauli Kr. Prasad:

The petitioner apprehends his arrest in a case
under Section 498-A of the Indian Penal Code, 1860
(hereinafter called as IPC) and Section 4 of the
Dowry Prohibition Act, 1961.  The maximum sentence
provided under Section 498-A IPC is imprisonment
for a term which may extend to three years and
fine whereas the maximum sentence provided under
Page 2
Section 4 of the Dowry Prohibition Act is two
years and with fine.
Petitioner   happens   to   be   the   husband   of
respondent no.2 Sweta Kiran.  The marriage between
them was solemnized on 1st  July, 2007. His attempt
to secure anticipatory bail has failed and hence
he has knocked the door of this Court by way of
this Special Leave Petition.
Leave granted.
In sum and substance, allegation levelled by
the wife against the appellant is that demand of
Rupees eight lacs, a maruti car, an          air-conditioner, television set etc. was made by her
mother-in-law and father-in-law and when this fact
was   brought   to   the   appellant’s   notice,   he
supported   his   mother   and   threatened   to   marry
another woman.  It has been alleged that she was
2
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driven out of the matrimonial home due to non-fulfilment of the demand of dowry.
Denying   these   allegations,   the   appellant
preferred   an   application   for   anticipatory   bail
which was earlier rejected by the learned Sessions
Judge and thereafter by the High Court.
There is phenomenal increase in matrimonial
disputes   in   recent   years.     The   institution   of
marriage   is   greatly   revered   in   this   country.
Section   498-A   of   the   IPC   was   introduced   with
avowed object to combat the menace of harassment
to a woman at the hands of her husband and his
relatives.     The   fact   that   Section   498-A   is   a
cognizable and non-bailable offence has lent it a
dubious place of pride amongst the provisions that
are   used   as   weapons   rather   than   shield   by
disgruntled wives.  The simplest way to harass is
to   get   the   husband   and   his   relatives   arrested
under this provision.  In a quite number of cases,
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bed-ridden grand-fathers and grand-mothers of the
husbands, their sisters living abroad for decades
are arrested.  “Crime in India 2012  Statistics”
published   by   National   Crime   Records   Bureau,
Ministry of Home Affairs shows arrest of 1,97,762
persons all over India during the year 2012 for
offence under Section 498-A of the IPC, 9.4% more
than the year 2011.   Nearly a quarter of those
arrested under this provision in 2012 were women
i.e. 47,951 which depicts that mothers and sisters
of the husbands were liberally included in their
arrest net.   Its share is 6% out of the total
persons arrested under the crimes committed under
Indian Penal Code.  It accounts for 4.5% of total
crimes committed under different sections of penal
code, more than any other crimes excepting theft
and hurt.   The rate of charge-sheeting in cases
under Section 498A, IPC is as high as 93.6%, while
the conviction rate is only 15%, which is lowest
across all heads.  As many as 3,72,706 cases are
4
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pending trial of which on current estimate, nearly
3,17,000 are likely to result in acquittal.  
Arrest   brings   humiliation,   curtails   freedom
and cast scars forever.   Law makers know it so
also the police.   There is a battle between the
law makers and the police and it seems that police
has not learnt its lesson; the lesson implicit and
embodied in the Cr.PC.  It has not come out of its
colonial   image   despite   six   decades   of
independence, it is largely considered as a tool
of   harassment,   oppression   and   surely   not
considered   a   friend   of   public.     The   need   for
caution in exercising the drastic power of arrest
has been emphasized time and again by Courts but
has not yielded desired result. Power to arrest
greatly contributes to its arrogance so also the
failure of the Magistracy to check it.  Not only
this, the power of arrest is one of the lucrative
sources of police corruption.   The attitude to
arrest first and then proceed with the rest is
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despicable.   It has become a handy tool to the
police officers who lack sensitivity or act with
oblique motive.
Law Commissions, Police Commissions and this
Court in a large number of judgments emphasized
the need to maintain a balance between individual
liberty and societal order while exercising the
power of arrest.   Police officers make arrest as
they believe that they possess the power to do so.
As the arrest curtails freedom, brings humiliation
and casts scars forever, we feel differently.  We
believe   that   no   arrest   should   be   made   only
because the offence is non-bailable and cognizable
and therefore,  lawful for the police officers to
do so.  The existence of the power to arrest is
one thing, the justification for the exercise of
it is quite another. Apart from power to arrest,
the police officers must be able to justify the
reasons   thereof.     No   arrest   can   be   made   in   a
routine manner on a mere allegation of commission
of an offence made against a person.  It would be
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prudent and wise for a police officer that no
arrest is made without a reasonable satisfaction
reached   after   some   investigation   as   to   the
genuineness of the allegation. Despite this legal
position,   the   Legislature   did   not   find   any
improvement.     Numbers   of   arrest   have   not
decreased.     Ultimately,   the   Parliament   had   to
intervene and on the recommendation of the 177th
Report of the Law Commission submitted in the year
2001, Section 41 of the Code of Criminal Procedure
(for short ‘Cr.PC), in the present form came to be
enacted.   It is interesting to note that such a
recommendation was made by the Law Commission in
its 152nd and 154th Report submitted as back in the
year   1994.     The   value   of   the   proportionality
permeates the amendment relating to arrest.   As
the offence with which we are concerned in the
present appeal, provides for a maximum punishment
of imprisonment which may extend to seven years
and   fine,   Section   41(1)(b),   Cr.PC   which   is
relevant for the purpose reads as follows:
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“41.   When   police   may   arrest   without
warrant.-(1) Any police officer may without
an   order   from   a   Magistrate   and   without   a
warrant, arrest any person –
(a)x  x  x   x  x  x
(b)against   whom   a   reasonable   complaint
has   been   made,   or   credible   information
has   been   received,   or   a   reasonable
suspicion exists that he has committed a
cognizable   offence   punishable   with
imprisonment for a term which may be less
than seven years or which may extend to
seven years whether with or without fine,
if   the   following   conditions   are
satisfied, namely :-(i) x x x x x
(ii)   the   police   officer   is   satisfied
that such arrest is necessary –
(a) to   prevent   such   person   from
committing any further offence; or
(b) for   proper   investigation   of   the
offence; or
(c) to prevent such person from causing
the   evidence   of   the   offence   to
disappear   or   tampering   with   such
evidence in any manner; or
(d) to prevent such person from making
any inducement, threat or promise
to any person acquainted with the
facts of the case so as to dissuade
him from disclosing such facts to
the Court or to the police officer;
or
(e) as unless such person is arrested,
his presence in the Court whenever
required cannot be ensured,
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Page 9

and the police officer shall record while
making such arrest, his reasons in writing:
Provided that a police officer shall, in
all cases where the arrest of a person is
not required under the provisions of this
sub-section, record the reasons in writing
for not making the arrest.
X  x  x  x  x  x
From a plain reading of the aforesaid provision,
it is evident that a person accused of offence
punishable with imprisonment for a term which
may be less than seven years or which may extend
to seven years with or without fine, cannot be
arrested   by   the   police   officer   only   on   its
satisfaction that such person had committed the
offence punishable as aforesaid.  Police officer
before arrest, in such cases has to be further
satisfied   that   such   arrest   is   necessary   to
prevent such person from committing any further
offence;   or   for   proper   investigation   of   the
case; or to prevent the accused from causing the
9
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evidence   of   the   offence   to   disappear;   or
tampering with such evidence in any manner; or
to   prevent   such   person   from   making   any
inducement, threat or promise to a witness so as
to dissuade him from disclosing such facts to
the Court or the police officer; or unless such
accused person is arrested, his presence in the
court   whenever   required   cannot   be   ensured.
These are the conclusions, which one may reach
based on facts.  Law mandates the police officer
to state the facts and record the reasons in
writing which led him to come to a conclusion
covered   by   any   of   the   provisions   aforesaid,
while making such arrest.  Law further requires
the police officers to record the reasons in
writing for not making the arrest.  In pith and
core, the police office before arrest must put a
question to himself, why arrest?  Is it really
required?   What purpose it will serve?   What
object it will achieve?  It is only after these
questions are addressed and one or the other
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conditions as enumerated above is satisfied, the
power of arrest needs to be exercised.  In fine,
before arrest first the police officers should
have   reason   to   believe   on   the   basis   of
information and material that the accused has
committed the offence.   Apart from this, the
police officer has to be satisfied further that
the arrest is necessary for one or the more
purposes envisaged by sub-clauses (a) to (e) of
clause (1) of Section 41 of Cr.PC.
An   accused   arrested   without   warrant   by
the police has the constitutional right under
Article 22(2) of the Constitution of India and
Section   57,   Cr.PC   to   be   produced   before   the
Magistrate without unnecessary delay and in no
circumstances beyond 24 hours excluding the time
necessary for the journey.  During the course of
investigation of a case, an accused can be kept
in detention beyond a period of 24 hours only
when   it   is   authorised   by   the   Magistrate   in
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Page 12
exercise of power under Section 167 Cr.PC.  The
power to authorise detention is a very solemn
function.  It affects the liberty and freedom of
citizens and needs to be exercised with great
care and caution. Our experience tells us that
it   is   not   exercised   with   the   seriousness   it
deserves. In many of the cases, detention is
authorised   in   a   routine,   casual   and   cavalier
manner.     Before   a   Magistrate   authorises
detention under Section 167, Cr.PC, he has to be
first satisfied that the arrest made is legal
and   in   accordance   with   law   and   all   the
constitutional rights of the person arrested is
satisfied.  If the arrest effected by the police
officer   does   not   satisfy   the   requirements   of
Section 41 of the Code, Magistrate is duty bound
not   to   authorise   his   further   detention   and
release the accused.   In other words, when an
accused is produced before the Magistrate,  the
police officer effecting the arrest is required
to furnish to the Magistrate, the facts, reasons
12
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and   its   conclusions   for   arrest   and   the
Magistrate   in   turn   is   to   be   satisfied   that
condition precedent for arrest under Section 41
Cr.PC   has   been   satisfied   and   it   is   only
thereafter that he will authorise the detention
of   an   accused.     The   Magistrate   before
authorising   detention   will   record   its   own
satisfaction, may be in brief but   the said
satisfaction must reflect from its order.   It
shall never be based upon the ipse dixit of the
police officer, for example, in case the police
officer   considers   the   arrest   necessary   to
prevent such person from committing any further
offence or for proper investigation of the case
or for preventing an accused from tampering with
evidence or making inducement etc., the police
officer   shall   furnish   to   the   Magistrate   the
facts, the reasons and materials on the basis of
which   the   police   officer   had   reached   its
conclusion.     Those   shall   be   perused   by   the
Magistrate while authorising the detention and
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only after recording its satisfaction in writing
that the Magistrate will authorise the detention
of the accused.   In fine, when a suspect is
arrested and produced before a Magistrate for
authorising   detention,   the   Magistrate   has   to
address the question whether specific reasons
have been recorded for arrest and if so, prima
facie those reasons are relevant and secondly a
reasonable conclusion could at all be reached by
the   police   officer   that   one   or   the   other
conditions stated above are attracted.  To this
limited extent the Magistrate will make judicial
scrutiny.
Another provision i.e. Section 41A Cr.PC
aimed to avoid unnecessary arrest or threat of
arrest looming large on accused requires to be
vitalised.   Section 41A as inserted by Section
6 of the Code of Criminal Procedure (Amendment)
Act, 2008(Act 5 of 2009), which is relevant in
the context reads as follows:
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Page 15
“41A.   Notice   of   appearance   before
police   officer.-(1)   The   police
officer  shall,  in  all  cases  where
the   arrest   of   a   person   is   not
required   under   the   provisions   of
sub-section (1) of Section 41, issue
a   notice   directing   the   person
against whom a reasonable complaint
has   been   made,   or   credible
information has been received, or a
reasonable suspicion exists that he
has committed a cognizable offence,
to   appear   before   him   or   at   such
other place as may be specified in
the notice.
(2) Where such a notice is issued to
any person, it shall be the duty of
that person to comply with the terms
of the notice.
(3) Where such person complies and
continues to comply with the notice,
he shall not be arrested in respect
of the offence referred to in the
notice   unless,   for   reasons   to   be
recorded, the police officer is of
the   opinion   that   he   ought   to   be
arrested.
(4) Where such person, at any time,
fails to comply with the terms of
the   notice   or   is   unwilling   to
identify himself, the police officer
may, subject to such orders as may
have   been   passed   by   a   competent
Court in this behalf, arrest him for
the   offence   mentioned   in   the
notice.”
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Page 16
Aforesaid provision makes it clear that
in all cases where the arrest of a person is not
required under Section 41(1), Cr.PC, the police
officer is required to issue notice directing
the accused to appear before him at a specified
place and time.  Law obliges such an accused to
appear before the police officer and it further
mandates that if such an accused complies with
the terms of notice he shall not be arrested,
unless for reasons to be recorded, the police
office is of the opinion that the arrest is
necessary.   At this stage also, the condition
precedent for arrest as envisaged under Section
41 Cr.PC has to be complied and shall be subject
to   the   same   scrutiny   by   the   Magistrate   as
aforesaid. 
We   are   of   the   opinion   that   if   the
provisions of Section 41, Cr.PC which authorises
the police officer to arrest an accused without
an order from a Magistrate and without a warrant
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Page 17
are scrupulously enforced, the wrong committed
by   the   police   officers   intentionally   or
unwittingly would be reversed and the number of
cases   which   come   to   the   Court   for   grant   of
anticipatory bail will substantially reduce.  We
would like to emphasise that the practice of
mechanically reproducing in the case diary all
or most of the reasons contained in Section 41
Cr.PC for effecting arrest be discouraged and
discontinued.
Our endeavour in this judgment is to ensure
that   police   officers   do   not   arrest   accused
unnecessarily and Magistrate do not authorise
detention casually and mechanically.   In order
to ensure what we have observed above, we give
the following direction:
(1) All the State Governments to instruct its
police officers not to automatically arrest
when a case under Section 498-A of the IPC
is   registered   but   to   satisfy   themselves
about the necessity for arrest under the
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parameters   laid   down   above   flowing   from
Section 41, Cr.PC;
(2) All   police   officers   be   provided   with   a
check list containing specified sub-clauses
under Section 41(1)(b)(ii);
(3) The police officer shall forward the check
list duly filed and furnish the reasons and
materials   which   necessitated   the   arrest,
while   forwarding/producing   the   accused
before   the   Magistrate   for   further
detention;
(4) The Magistrate while authorising detention
of   the   accused   shall   peruse   the   report
furnished by the police officer in terms
aforesaid   and   only   after   recording   its
satisfaction, the Magistrate will authorise
detention;
(5) The decision not to arrest an accused, be
forwarded   to   the   Magistrate   within   two
weeks from the date of the institution of
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Page 19
the   case   with   a   copy   to   the   Magistrate
which may be extended by the Superintendent
of police of the district for the reasons
to be recorded in writing;
(6) Notice of appearance in terms of Section
41A   of   Cr.PC   be   served   on   the   accused
within   two   weeks   from   the   date   of
institution   of   the   case,   which   may   be
extended by the Superintendent of Police of
the District for the reasons to be recorded
in writing;
(7) Failure   to   comply   with   the   directions
aforesaid   shall   apart   from   rendering   the
police   officers   concerned   liable   for
departmental   action,   they   shall   also   be
liable to be punished for contempt of court
to be instituted before High Court having
territorial jurisdiction. 
(8) Authorising   detention   without   recording
reasons   as   aforesaid   by   the   judicial
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Magistrate   concerned   shall   be   liable   for
departmental action by the appropriate High
Court.
We   hasten   to   add   that   the   directions
aforesaid shall not only apply to the cases
under Section 498-A of the I.P.C. or Section 4
of   the   Dowry   Prohibition   Act,   the   case   in
hand, but also such cases where offence is
punishable with imprisonment for a term which
may be less than seven years or which may
extend to seven years; whether with or without
fine.
We direct that a copy of this judgment be
forwarded to the Chief Secretaries as also the
Director Generals of Police of all the State
Governments and the Union Territories and the
Registrar General of all the High Courts for
onward   transmission   and   ensuring   its
compliance.
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By order dated 31st of October, 2013, this
Court   had   granted   provisional   bail   to   the
appellant on certain conditions. We make this
order absolute.
In   the   result,   we   allow   this   appeal,
making our aforesaid order dated 31st October,
2013 absolute; with the directions aforesaid.
   ………………………………………………………………J
   (CHANDRAMAULI KR. PRASAD)
   ………………………………………………………………J
                 (PINAKI CHANDRA GHOSE)
NEW DELHI,
July 2, 2014.
21

Mining matter of state of Odisha

Common Cause vs. Union of India & Ors.)

(Mining matter of state of Odisha)

Writ Petition (Civil) No. 114 of 2014, decided on May 16, 2014

(A.K. Patnaik, Surinder Singh Nijjar and Fakkir Mohamed Ibrahim Kalifulla, JJ.)

The Judgment of the Court was delivered by

A. K. Patnaik, j.

1. This writ petition relates to mining in the State of Odisha. When the writ petition was heard on the preliminary point on 21.04.2014, we found from the averments in paragraph 14 of the writ petition that several lessees were operating without clearances under the Environment (Protection) Act, 1986 and the Forest (Conservation) Act, 1980, and without renewal by the Government and we were of the opinion that an interim order needs to be passed in respect of the lessees who are operating the leases in violation of the law. On 21.04.2014, therefore, while issuing notice in the writ petition, we directed that the matter be listed on 28.04.2014 for consideration of the interim order that should be passed in the writ petition. On 21.04.2014, we also directed that the CEC, in the meanwhile, will make out a list of such lessees who are operating the leases in violation of the law and granted liberty to the parties to produce their papers before the CEC and directed that the State of Odisha and the Union of India will cooperate with the CEC to prepare the list.

2. Pursuant to the order passed on 21.04.2014, the CEC examined the matter during a meeting held on 24.04.2014 with the Chief Secretary, the Commissioner-cum-Secretary (Mines), the Principal Secretary (Forest), the Principal Chief Conservator of Forests and other senior officers of the Government of Odisha as well as Dr. V.P. Upadhyay, Director IA (Non-Coal Mining) and Mrs. Bharati, Director (AOHQ), of the Ministry of Environment and Forests and the Secretary General, Federation of Indian Mining Industries (FIMI) and also examined the representations received by the CEC on behalf of the lease holders, and has submitted a report dated 25.4.2014.

3. We have considered the report dated 25.4.2014 of the CEC, and the submissions made by learned counsel appearing for different parties, and we find that 102 mining leases do not have requisite environmental clearances, approvals under the Forest (Conservation) Act, 1980, approved Mining Plan and/or Consent to Operate. A list of these 102 mining leases is annexed to the report of the CEC as Annexure R-2. The CEC has, however, stated in the report that mining operations in these 102 mining leases have been suspended and these 102 mining leases have been classified as non-working leases. We direct that mining operations in these 102 mining leases listed in Annexure R-2 of the report of the CEC shall remain suspended, but it will be open to such lessees to move the concerned authorities for environmental clearances, approval under the Forest (Conservation) Act, 1980, approval of Mining Plan or Consent to Operate and as and when the mining lessees are able to obtain all the clearances/approval/consent, they may move this Court for modification of this interim order in relation to their cases.

4. We further find that 29 mining leases listed in Annexure R-3 to the report of the CEC have been determined or have been rejected or have lapsed. We direct that mining operations in these 29 mining leases will also remain suspended, but it will be open for the lessees of these 29 mining leases to move the concerned authorities or the Court or the Tribunal for necessary relief and as and when they get appropriate relief from the concerned authorities or the Court or the Tribunal, they may move this Court for modification of this interim order in relation to their cases.

5. We also find that 53 iron ore/manganese mining leases listed in Annexure R-4 to the report of the CEC are operating and all of them are having approvals under the Forest (Conservation) Act, 1980, Consent to Operate granted by the Odisha State Pollution Control Board and approved Mining Plans and 3 more mining leases listed in Annexure R-5 are located in forest as well as in non-forest land and those located in non-forest area do not have approval under the Forest (Conservation) Act, 1980. Hence, a total of 56 iron ore/manganese mining leases are presently operating in the State of Odisha, but out of these 56 operating mining leases, lease deeds in respect of 16 mining leases listed in Annexure R-6 to the report of the CEC have been executed and the balance 40 mining leases are operating under the deemed renewal provision in Rule 24A(6) of the Mineral Concession Rules, 1960. Out of these 40 mining leases, 14 leases are operating as first renewal and 26 leases are operating as second and subsequent renewals and the renewal applications are at various stages of examination and in some cases ‘in principle’ decision to grant the renewals have been taken and the follow up actions are under process.

6. The 16 mining leases listed in Annexure R-6 to the report of the CEC in respect of which the lease deeds for grant or the renewal of mining leases have been executed may be allowed to be operated for the time being as they have valid lease deeds in their favour. Out of the remaining 40 mining leases, 14 leases are under the first renewal. As the lessees have a right of first renewal for a period not exceeding 20 years under Section 8(2) of the Mines and Minerals (Development and Regulation) Act, 1957 and as under Rule 24A(6) of the Mineral Concession Rules, 1960, the leases are deemed to have been extended by a further period till the State Government passes orders thereon, these 14 leases under the first renewal may be allowed to be operated. The remaining 26 leases are being operated as second and subsequent deemed renewals under Rule 24A(6) of the Mineral Concession Rules, 1960 without any express orders of renewal passed by the State Government. We have already taken a view in our judgment dated 21.4.2014 in Writ Petition (C) No. 435 of 2012 (Goa Foundation v. Union of India) that the provision of deemed renewal in Rule 24A(6) of the Mineral Concession Rule, 1960 is not available for the second and subsequent renewals of a mining lease considering the language of Section 8(3) of the Mining and Minerals (Development and Regulation) Act, 1957. Hence, these 26 leases cannot be allowed to be operated until the State Government passes express orders in terms of Section 8(3) of the Mines and Minerals (Development and Regulation) Act, 1957 after it forms an opinion that in the interests of mineral development it is necessary to renew the leases and after it records reasons for renewal of the leases in respect of the minerals.

7. Learned counsel for the lessees, however, submitted that the lessees are not at fault inasmuch as they have submitted their applications for renewal in time and it was for the State Government to consider their applications and pass orders in terms of Section 8(3) of the Mines and Minerals (Development and Regulation) Act, 1957 and, therefore, the lessees should not be allowed to suffer closure of their mines for the fault of the State Government. We cannot accept this submission of learned counsel for the lessees because under Section 8(2) of the Mines and Minerals (Development and Regulation) Act, 1957 the lessees have a statutory right of a first renewal for a maximum period of 20 years, but after the expiry of the first renewal they have right only to apply for further renewal of the leases under Section 8(3) of the Mines and Minerals (Development and Regulation) Act, 1957 and the State Government has the power to renew for a further period only if it is of the opinion that in the interest of mineral development it is necessary so to do and only if reasons are recorded by the State Government for such renewal of the leases and in the case of the 26 lessees who are operating under the second and subsequent renewals, this opinion has not been formed and the reasons have not been recorded by the State Government in terms of Section 8(3) of the Mines and Minerals (Development and Regulation) Act, 1957.

8. Mr. K.V. Viswanathan, learned Additional Solicitor General, referred to the application for intervention filed on behalf of Ministry of Steel, Government of India, supported by the affidavit of Shri K.B. Nair, Under Secretary, Ministry of Steel, Government of India, and submitted that more than 50% of the requirement of iron ore of the country is met from the State of Odisha and a large number of iron ore leases in the State are granted for captive mining and the ore from the mines is being utilized for the manufacturing of the steel in the plants of the lessees. He further submitted that commercial miners are also providing raw material to iron and steel industries not only in the State but also in the whole country. He submitted that while there is a need to impose time limits by various authorities, closure of mining operations due to delay in decisions by the State Government on mining lease renewal applications, may adversely affect the availability of critical raw materials like iron ore for domestic value addition industry, including the steel sector and, therefore, where the application for renewals have been made within the time prescribed under the statute, the State Government which has to take the decision should be directed to decide the applications in a time bound manner so that the industry is not penalized.

9. We find from the report of the CEC that the Chief Secretary, Odisha, has stated before the CEC that a special drive has been undertaken to complete the process of renewal of the mining leases and for this purpose a High Level Committee under the Chairmanship of the Additional Chief Secretary has been constituted and this Committee has met five times and in a number of cases ‘in principle’ decisions have been taken and efforts are on to ensure that the process of renewal of leases is completed within the next six months.

10. After considering the report of the CEC as well as the submissions on behalf of the parties, we direct as an interim measure that these 26 leases operating as second and subsequent renewals without any express orders of renewal passed by the State Government will not be allowed to operate by the State Government until express orders are passed in terms of Section 8(3) of the Mines and Minerals (Development and Regulation) Act, 1957 and we also direct that all renewal applications under Section 8(3) of the Mines and Minerals (Development and Regulation) Act, 1957 will be considered and disposed of by the State Government within six months from today. We further direct that the State Government will consider first the renewal applications in respect of leases which were granted for captive mining for providing iron or manganese ore as raw material for industries and only thereafter consider the renewal applications in respect of the other leases. In any case, the State Government will ensure that the entire process of consideration and disposal of renewal applications under Section 8(3) of the Act is completed within six months from today. With the aforesaid interim directions, the interim matter stand disposed of.