The principle in criminal jurisprudence requires a fair and truthful investigation. If an investigating agency which has been conferred the power to investigate on the basis of an FIR, if a second FIR as regards the same transaction is introduced, it is likely to be abused i.e. keeping in mind the interest of the accused. From the point of view of the victim when such information comes within the knowledge of the investigating officer, he can treat it as a part of continuing investigation under the Code and eventually file the charge-sheet or an additional charge-sheet as contemplated under Section 173 of the Code. The interests of both are involved. A fair investigation, conceptually speaking, is an acceptable facet of criminal jurisprudence, similarly it is also the duty of the courts to see whether the investigation carried out really causes prejudice to the accused requiring the court to exercise the power under Section 482 or Article 226 of the Constitution to quash the same, or it has looked into the interest of both the accused and the victim and, therefore, it should be left for the trial court to see the veracity of the truth of allegations that has come out in investigation. Manoj Kumar v. State of Uttarakhand, (2019) 5 SCC 667
Tag Archives: criminal prosecution
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.
Though the contract is of a civil nature, if there is an element of cheating and fraud, it is always open for a party in a contract, to prosecute the other side for the offences alleged. In S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 it was held that every breach of contract may not result in a penal offence, but in the very same judgments, it was further held that breach of trust with mens rea gives rise to a criminal prosecution as well. In a given case, whether there is any mens rea on the part of the accused or not is a matter which is required to be considered having regard to the facts and circumstances of the case and contents of the complaint etc. In Anil Mahajan v. Bhor Industries Ltd., (2005) 10 SCC 228, it has been held that where there exists a fraudulent and dishonest intention at the time of the commission of the offence, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. D R Lakshman v. State of Karnataka, (2019) 9 SCC 677.
Sentencing for crimes has to be analysed on the touchstone of three tests, viz., crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list). Under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach. State of Madhya Pradesh v. Udham, (2019) 10 SCC 300.
In State of Maharashtra v. Sayyed Hassan, the accused was prosecuted under Sections 26 and 30 of the Food Safety and Standards Act, 2006 as well as Sections 188,272,273 and 328 IPC for transportation and sale of prohibited gutka/pan masala. The Hon’ble Bombay High Court in Ganesh Pandurang Jadho v. State of Maharashtra, 2016 CrLJ 2401 held that Section 55 of the Food Safety and Standards Act, 2006 being a specific provision made in a special enactment, Section 188 IPC was inapplicable. The Hon’ble Supreme Court remanded the matter to the High Court and held as under:
“There is no bar to a trial or conviction of an offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence. The same set of facts, in conceivable cases, can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under Indian Penal Code and at the same time, an offence under any other law.” In State of Rajasthan v. Hat Singh, (2003) 2 SCC 152, the Hon’ble Supreme Court discussed the doctrine of double jeopardy and Section 26 of the General Clauses Act to observe that prosecution under two different Acts is permissible if the ingredients of the provisions are satisfied on the same facts. State of Arunachal Pradesh v. Ramchandra Rabidas, (2019) 10 SCC 75.
In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion. Mohan Lal v. State of Punjab, (2018) 17 SCC 627.
In a recent Judgement of the Hon’ble Supreme Court it was held as under:
“(1) The registration of FIR is mandatory under Section 154 of the CrPC, if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation.
(2) If the Information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
(3) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
(4) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
(5) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
(6) As to what type and in which cases preliminary inquiry is to be conducted will depend upon the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial Offences
(c) Medical Negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over three months’ delay in reporting the matter without satisfactorily explaining the reasons for delay.
(7) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
(8) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, it was held that all information relating to cognizable offences, whether resulting in registering of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected. Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1.