It is undoubtedly trues that before a Magistrate proceeds to accept a final report under Section 173 CrPC and exonerates the accused, it is incumbent upon the Magistrate to apply his mind to the contents of the protest petition and arrive at a conclusion thereafter. While the investigating officer may rest content by producing the final report, which, according to him, is the culmination of his efforts, the duty of the Magistrate is not one limited to readily accepting the final report. It is incumbent upon him to go through the materials, and after hearing the complainant and considering the contents of the protest petition, final decide the future course of action to be, whether to continue with the matter or to bring the curtains down.
If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Criminal Procedure Code. Vishnu Kumar Tiwari v. State of U.P., (2019) 8 SCC 27.
scheme of the prosecution in punishing under Section 138 of the Negotiable
Instruments Act is different from the scheme
of Cr.P.C. Section 138 creates an offence and prescribes punishment. No
procedure for the investigation of the offence is contemplated. The prosecution
is initiated on the basis of a written complaint made by the payee of a cheque.
Obviously such complaints must contain the factual allegations constituting
each of the ingredients of the offence under Section 138. Those ingredients are
(1) that a person drew a cheque on an account maintained by him with the banker;
(2) that such a cheque when presented to the bank is returned by the bank
unpaid; (3) that such a cheque was presented to the bank within a period of six
months from the date it was drawn or within the period of it validity whichever
is earlier; (4) that the payee demanded in writing from the drawer of the cheque,
the payment of the amount of money due under the cheque to payee; and (5) such
a notice of payment is made within a period of 30 days from the date of receipt
of the information by the payee from the bank regarding the return of the cheque
as unpaid. It is obvious from the scheme of Section 138 of the Act, that each
one of the ingredients flows from a document which evidences the existence of
such an ingredient. The only other ingredient which is required to be proved to
establish the commission of an offence under section 138 is that inspite of the
demand notice referred to above, the drawer of the cheque failed to make the
payment within a period of 15 days from the date of the receipt of the demand.
A fact which the complainant can only assert but not prove, the burden would
essentially be on the drawer of the cheque to prove that he had in fact made
the payment pursuant to the demand. N.
Harihara Krishnan v. J. Thomas,
2017 (101) ACC 690.
In the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633, it was observed by the Hon’ble Apex Court that in a matter where paternity of a child is in issue before the Court, the use of DNA Test is an extremely delicate and sensitive aspect. It should not be directed by the court as a matter of course, or in a routine manner. Whenever such a request is made, the court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need”. Whether it is not possible for the Court to reach the truth without use of such test. Any order for DNA test can be given by the Court only if a strong prima facie case is made out for such a course. Satya Pal Yadav v. Smt. Sandhya Yadav, 2017 (123) ALR 860.
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 the 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 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.
A person accused of an 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 his satisfaction that such person had committed the offence punishable as aforesaid. A police office 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 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. The 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. The law further requires the police officers to record the reasons in writing for not making the arrest.
In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose will it serve? What object will it achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. Arnesh Kumar v. State of Bihar and another, (2014) 8 SCC 273.