SUMMONING OF ACCUSED BY A MAGISTRATE EVEN AFTER CLOSURE REPORT

 

SUMMONING OF ACCUSED BY A MAGISTRATE EVEN AFTER CLOSURE REPORT

 

In a F.I.R case, in case, after investigation, prima facie offence against the accused is made out, a charge sheet containing the details of allegations along with documents in support thereof is submitted before appropriate court of jurisdiction for the prosecution of the case. However, in case, the offence, according to the Investigating Officer is not made out, then, a closure report used to be filed by the Police before the Courts of appropriate jurisdiction, for seeking closure of the case. The Courts, in such cases, after notifying the complainant shall have the option to accept the closure report, or reject it. The Court shall also have the option of summoning the accused, if it in the opinion of the case, sufficient evidence is there in the charge sheet, despite contrary report from the police. The Court may in the alternative also direct police to conduct further investigation and thereafter file a report. Therefore, it is evident that there are several options before the Court, when faced with the situation as narrated above.

The aforesaid situation however is not comprehensive. Some time the Investigating Officer does not file a closure report and the proposed accused  are named in column 12 i.e the accused are , though, suspected of committing offence, but for want of sufficient evidence, the accused are not proposed to be sent for trial. Ironically, when closure report is not filed, and names of accused figured in column 12, the Court remains uncertain as to how to deal with the situation?  Whether Court shall have the option of calling upon the police for further investigation, as that option undoubtedly remains, the moot point, however is, as to whether the Court can issue summons to the accused despite they are named in column 12 of Charge Sheet? The situation is made complex further, if the Court summons the accused, despite their names in column no.12 and when no reasons are ascribed for the summoning. It is no res integra, that the Court may issue summon even to the accused whose names are there in Column 12, but, whether, the same can be done without assigning any reason shall be the essence of the present discussion.  Moreover, if the summons in the context as aforesaid is issued, without assigning any reasons, what shall have the effect of such summoning and/or remedy to the accused?

A recent judgment by Dharmveer vs State Of U.P & Another in a CRIMINAL REVISION No. - 1909 of 2023  rendered on 6 the May, 2024 is a pointer. Relying on S. Mohammed Ispahan Vs Yogendra Chandak & Ors , (2017) 16 SCC 226, In para 35 it is held as under:

“35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319of  C.rPC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused”.

It is held by Supreme Court that the fact that the fact that names of the appellants were mentioned in the FIR and even in the statement of witnesses recorded under Section 161 Cr.PC these appellants were named and such statements under Section 161 Cr.PC would constitute "documents" and thus, in this context, the High Court has observed that "evidence" within the meaning of Section 319 Cr.PC would include the aforesaid statements and, therefore, the appellants could be summoned was held to be incorrect. According to Supreme Court, the aforesaid reasons given by the High Court do not stand the judicial scrutiny. The High Court has not dealt with the subject-matter properly and even in the absence of strong and cogent evidence against the appellant, it has set aside the order of the Chief Metropolitan Magistrate and exercised its discretion in summoning the appellants as accused persons. It is held as under:

“…No doubt, at one place the Constitution Bench observed in Hardeep Singh case [Hardeep Singh v.State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] that the word "evidence" has to be understood in its wider sense, both at the stage of trial and even at the stage of inquiry. In para 105 of the judgment, however, it is observed that "only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner". This sentence gives an impression that only that evidence which has been led before the Court is to be seen and not the evidence which was collected at the stage of inquiry. However there is no contradiction between the two observations as the Court also clarified that the "evidence", on the basis of which an accused is to be summoned to face the trial in an ongoing case, has to be the material that is brought before the Court during trial. The material/evidence collected by the investigating officer at the stage of inquiry can only be utilised for corroboration and to support the evidence recorded by the Court to invoke the power under Section 319  Cr.PC”.

It is further held as under:

35. It needs to be highlighted that when a person is named in the FIR by the complainant, but police, after investigation, finds no role of that particular person and files the charge-sheet without implicating him, the Court is not powerless, and at the stage of summoning, if the trial court finds that a particular person should be summoned as accused, even though not named in the charge-sheet, it can do so. At that stage, chance is given to the complainant also to file a protest petition urging upon the trial court to summon other persons as well who were named in the FIR but not implicated in the charge-sheet. Once that stage has gone, the Court is still not powerless by virtue of Section 319 Cr.PC. However, this section gets triggered when during the trial some evidence surfaces against the proposed accused.

In Hardeep Singh (Supra) Five (5) Judge Constitution bench has held as under:

106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes un-rebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.PC."

In the light of above, Allahabad High Court in Dharamveer (Supra) has held as under:

92. In view of above, this Court finds that the law regarding summoning of a prospective accused that stands crystallized by the Five Judges Bench judgment of the Supreme Court in Hardeep Singh (Supra), Brijendra Singh & Ors  Vs State of Rajsthan  (2017) 7 SCC 706 and S. Mohammed Ispahani  (Supra), is not satisfied in the present case. As per the law laid down by  the Apex Court in the case of Brijendra Singh (Supra) and S Mohammed Ishpahani (Supra) a prospective accused can be summoned in exercise of jurisdiction under Section 319  Cr.P.C. on the following parameters:

(A)    A prospective accused can be summoned on the statement-in-chief of one prosecution witness,

(B)    Irrespective of above, the Court dealing with an application under Section 319 Cr.P.C. must consider the plethora of evidence, which has emerged during the course of investigation as it is an important material to conclude the complicity/innocence of a prospective accused,

(C)    The Court should draw a parallel in between the statement of the prosecution witness examined up to that stage as recorded under Section 161 Cr.P.C. as well as his deposition before Court below to find out whether something new has emerged in the deposition of a prosecution witness from what was stated by him in his statement under Section 161 Cr.P.C,

(D)    A prospective accused cannot be summoned merely on the basis of his complicity in the crime in question, only if an inference of guilt of the prospective accused can be inferred as per the evidence up tho this stage,

(E)    The power under Section 319 Cr.P.C. is an extra-ordinary power which must be exercised sparingly. Furthermore, Court should exercise it's jurisdiction under Section 319 diligently and not in a "casual and cavalier" fashion,

(F)     Only when some strong and cogent evidence has emerged against a prospective accused rather than his mere complicity in the crime in question can a prospective accused be summoned and

(G)    The Court can summon a prospective accused only when on the basis of material on record, it can record the same degree of satisfaction as observed in paragraph 106 of the judgment in Hardeep Singh (Supra).

That on the basis of aforesaid judicial precedents, what is crystal clear is that a Magistrate, in spite of filing of closure report shall be entitled to apply his mind on the basis of record and if it appears to the Magistrate that summons could be issued to the accused persons, on the basis of material on record, the same can be done. However, the reason has to be given for such summoning order, more so, in the backdrop of closure report and why the magistrate is not agreeable with the Police Report. This is over and above, other options that a Magistrate can avail of i.e for seeking further investigation or accepting closure report as the case may be. What is worth mentioning in the context is that statement u/s 161 of Cr.P.C will have to be tested on the basis of deposition before Court and additional facts which may not be part of record may come out in the deposition. When on the basis of deposition of witnesses during trial, if some other evidences crops up, then, new accused may have to be summoned as per the principles of section 319 of Cr.P.C. Thus, the police report needs meticulous scrutiny and application of mind shall be necessary. The constitution bench judgment of Supreme Court has settled the position to the effect that there is no embargo in summoning the accused persons, irrespective of fact that the accused persons in a final report are shown in column 12 and/or closure report is filed. It is also not ambiguous that since summoning of accused in a criminal matter has vast ramification, therefore, such order of summoning should not be issued mechanically and should reflect application of mind and on the basis of prima facie evidence only accused should be summoned.

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                          Anil K Khaware

                 Founder & Senior Associate

                 Societylawandjustice.com

                

RIGHTS OF VICTIM TO BE A PARTY OR BEING HEARD IN F.I.R CASES

 

Rights of victim TO BE A PARTY OR BEING HEARD in F.I.R cases

 

In State cases i.e F.I.R cases, the responsibility of registering complaint, carrying out investigation, recording of statement of witnesses , verifying documents and/or getting CFL test done of samples collected during investigation, filing of charge sheet are the domain of state. Even after filing of charge sheet, it is the public prosecutor on behalf of state in F.I.R cases, who seeks conviction of accused and conducts cross examination of defence witnesses and also examine the prosecution witness. In essence, the State cases is perceived as wrong committed against society and not only the maintaining law and order, but for its violation and committing offence, the state takes the matter forward. Ironically, till recently, the roles and rights of the victims/complainants hardly existed and it was not even perceptible. In such a situation, some time if the prosecution failed to be diligent, the complainant in the ultimate analysis suffered. The need was thus felt that complainant being the victim and the one who raised complaint ought to have a role in State cases and their roles should be well defined. The law is thus evolved in this regard of late. In the present write up the roles and responsibility and its extent of complainant or victim shall be analysed as regards the changes and permissibility to the complainant to pursue or participate in cases as a victim.

In this regard the Delhi High Court has recently gone into the law vis a vis factual matrix of the case or cases in a matter captioned as Saleem Vs The State of NCT of Delhi & Anr bearing no. Bail Appln No. 3635/2022.  

                          VICTIM HAS RIGHT TO FILE APPEAL

(1) The Courts have been concerned about the predicament of victim and the said concern finds mention in a judgment rendered by Supreme Court in Mallikaarjun Kodagali (Dead) represented through LRs Vs State of Karnataka & Ors (2019)2 SCC 752 wherein the Supreme Court had highlighted the hurdles faced by the victim in accessing the criminal justice system, after being the sufferer of violence and therefore the victim can no longer be sidelined. The Supreme Court has in the context also held that victim shall have the right to file an appeal against the acquittal of the accused and that too without even seeking leave from the court. This is a clear departure from convention that only state only shall have the prerogative to prosecute the offender. This was so, as the notion that the crime is against people at large and hence only state shall have the wherewithal and responsibility to prosecute the case. The Mallikaarjun Kodagali (Supra) has therefore clearly expanded the role of victim as elucidated above.

Victim has participatory rights in all stAges

(2)  In a more recent verdict the Supreme Court in a matter reported as Jagjeet Singh & Ors Vs Ashish Mishra alias Monu & Anr (2022) 9 SCC 321   the Supreme Court has gone a step further and observed:

“ The victims have “……a legally vested right to be heard at every step post the occurrence of an offence…..;(they have) unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision….and that mere presence of the State …”does not tantamount to according a hearing to a “victim” of the crime.”

WHETHER IMPLEADING OF VICTIM NECESSARY IN A CRIMINAL CASE

The right of participation and even filing of appeal by the victim is thus clearly established. Another aspect in this regard shall be worthy of discussion i.e whether the victim is required to be impleaded in all criminal cases?     

No doubt, that, though, the victim has unbridled participatory rights in each stages of the criminal case, but the victim shall not replace “State” and the right of heard shall not necessarily mean that the victim should be made a party and be answerable in all aspects. Moreover, section 439(1A) Cr.PC requires the Court to hear a victim at the stage of considering bail petitions and other similar matters, but the provision does not entail that the victim should be made a party to such proceedings.

The Delhi High Court in Saleem (Supra) has noted succinctly as under:

         29. The role of the victim, even on being afforded right to be heard, however must vary with the context and stage of criminal proceedings. In relation to bail proceedings for eg. The victim may assist the court in clarifying relevant facts, such as any threats received by the victim or other witnesses; or the possibility of evidence tampering, or even fight risk. However, the victim would have no role in determining, say, the necessity of custodial interrogation, which would be the job of investigating agency”.

“30. To reiterate, the right to be represented and be heard is distinct from the right or the obligation to be a party to a criminal proceedings”.

31. Indeed, there may be times where a victim may not seek a hearing before the Court, and making a victim a party to the proceedings, mandating them to appear and “defend”; so to speak, various proceedings that the State or the accused may initiate, may cause additional hardship and agony to the victim”.

The hon’ble Delhi High Court in Saleem (Supra) in the context, as narrated above, has recorded the following conclusion in para 33 of the said judgment:

33.1 There is no requirement in law to implead the victim, that is to say, to make the victim a party, to any criminal proceedings, whether instituted by the State or by the accused;

33.2 In accordance with the mandate of the Supreme Court in Jagjeet Singh (Supra),, a victim now has unbridled participatory rights in all criminal proceedings in relation to which the person is a victim, but that in itself is no reason to implead a victim as a party to any such proceedings, unless otherwise specifically so provided in the statute; Section 439(1A) Cr.P.C mandates that a victim be heard in proceedings related to bail, without however requiring that the victim be impleaded as a party to bail petition;

33.3 In light of the decision of the Supreme Court in Jagjeet Singh (Supra), Section 439(1A) Cr.PC must now be expanded to include the victim’s right to be heard even in petitions where an accused seeks anticipatory bail; a convict seeks suspension of sentence, parole, furlough, or other such interim relief;

33.4. To obviate any ambiguity, though Section 439(1A) Cr.PC makes the “presence of informant” obligatory at the time of hearing, what is clearly mandated thereby is the right of the victim, whether through the informant or other authorized representative, to be effectively heard in the matter. If necessary, legal-aid counsel may be appointed to assist in representing the victim, and the mere ornamental presence of the victim or their representative without affording them an effective right of hearing, would not suffice.

The aforesaid discussion leads to a clear conclusion that as law evolved , the victim has unbridled right in participating in the criminal proceedings. The right of the victim is also recognized to the effect that, even a victim may file appeal against the acquittal of the accused. It is also clearly established now, that whereas the victim shall have unqualified rights in terms of above, but, still, making them a party in a criminal case, either instituted by the prosecution or the accused shall not be necessary, since, once, the victim is made a party, compulsorily, then, appearing in hearings and being answerable to the petition shall cast onerous task on the victim and the victim may not be in position to do so and may also opt not to do so in several cases. Moreover, on aspects whether custodial interrogation of accused shall be necessary, or not, only prosecution may have to place the place the facts in this regard.

The right of victim to participate in criminal proceedings and even in filing appeal against acquittal of accused is now well recognized with a view to give a fillip to criminal justice system. The interest of victim in the above concept is thus well recognized, but, at the same time making the victim a party shall not be necessary for the reasons as illustrated in a judgment rendered by hon’ble Delhi High Court Saleem (Supra).

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                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

SECTION-138 OF NI ACT-WHETHER ACCUSED CAN FILE AFFIDAVIT EVIDENCE AS A WITNESS?

 

SECTION-138 of NI Act-WHETHER accused can FILE AFFIDAVIT EVIDENCE as A witness?

 

The process of trial finds procedural regulations in Code of Criminal Procedure (Cr.P.C) and after amendment, in Bhartiya Nyay Surakasha Sanhita (BNSS). In the Negotiable Instruments Act 1881(In short “NI Act”), section 138 was made part of the Act, in 1988, as cheque bouncing instances were on rise and remedial measures to infuse faith in cheque transaction cases were imperative and hence punitive measures is also prescribed u/s 138-142 of the NI Act. The Act has periodically undergone several changes with a view to reinforce the sanity and restore the faith of common people in cheque transactions. Several sections were included thereafter i.e 143-147 are added in the Act view of exigencies. The complaints under Section 138 of the NI Act was treated as summary case, as the cross examination of complainant was not envisaged, however, subsequently, in terms of Section 145, more particularly, section 145 (2), the Magistrate is made empowered to treat the complaint under the Act as summon case, if prima facie defence is available to the accused. In that event, the summary trial is to be treated as summon trial cases. Therefore, the complaints u/s 138 of NI Act, essentially are being tried as summon cases and not as summary cases.

Let us now come to another dimension to it i.e mode and manner of leading evidence. In Cr.P.C, as per section 315, the accused cannot be compelled to stand as witness, unless, it is sought for by the accused himself. In F.I.R case, the oral examination in chief is conducted, pursuant to the statement made before Police u/s 161 of Cr.PC and under the relevant provisions of BNSS, as the case may be. The departure,  however is clear u/s 138-145 of NI Act. It is of significance to point out that the examination of chief of complainant is recorded as per affidavit filed by the complainant and even when the complaint is treated as summons case, after application filed u/s 145(2) filed by the accused for seeking cross examination of complainant witness, there is no need to file separate affidavit or examination in chief and for cross examination of complainant witness. The affidavit in evidence, filed earlier is adopted as a practice and that follows cross examination.

A situation may be pondered over, though. What, if the accused seeks to examine himself as a defence witness and also seeks to file affidavit evidence.? Whether, it is permitted u/s 138 of NI Act complaint? Whether, the accused is permitted to file affidavit evidence, in a manner the complainant does? In the present write up the endeavour shall be to advert on these issues with a view to find answer.

The following judgments in this regard may have to be perused and its tenor and finding shall have to be analysed for arriving at a conclusion:   

(1)  SBI Global Factors Limited vs The State Of Maharashtra And Ors AIRONLINE 2021 BOM 772

 

In the aforesaid judgment, reliance was placed on the Hon'ble Supreme Court in the case of Mandvi Co-op. Bank Ltd. Vs. Nimesh B. Thakore reported in Manu/SC/0016/2010 : AIR 2010 SC 1402 : (2010) 3 SCC 83, in para Nos.30, 31 and 32 has held as under :

"30. Coming now to the last question with regard to the right of the accused to give his evidence, like the complainant, on affidavit, the High Court has held that subject to the provisions of sections 315 and 316 of the Code of Criminal Procedure the accused can also give his evidence on affidavit. The High Court was fully conscious that section 145(1) does not provide for the accused to give his evidence, like the complainant, on affidavit. But the High Court argued that there was no express bar in law against the accused giving his evidence on affidavit and more importantly providing a similar right to the accused would be in furtherance of the legislative intent to make the trial process swifter. In paragraph 29 of the judgment, the High Court observed as follows:

"It is true that section 145(1) confers a right on the complainant to give evidence on affidavit. It does not speak of similar right being conferred on the accused. The Legislature in their wisdom may not have thought it proper to incorporate a word `accused' with the word `complainant' in sub-section (1) of section 145 in view of the immunity conferred on the accused from being compelled to be a witness against himself under Article 20(3) of the Constitution of India...."

 

In paragraph 31 of the judgment it observed:

 

“.... Merely because, section 145(1) does not expressly permit the accused to do so, does not mean that the Magistrate cannot allow the accused to give his evidence on affidavit by applying the same analogy unless there is just and reasonable ground to refuse such permission. There is no express bar on the accused to give evidence on affidavit either in the Act or in the Code..... I find no justified reason to refuse permission to the accused to give his evidence on affidavit subject to the provisions contained in sections 315 and 316 of the Code."

 

What therefore emerges in the above context is that even a cursory perusal of Section 143-145 of NI Act reflect, that whereas, the legislature has provided for the complainant to give his evidence on affidavit, but no corresponding provision is carved out for the accused to do so. Therefore, any inference, that non- mentioning of the accused along with the complainant in sub-section (1) of section 145 for the purpose of entitlement to file evidence affidavit could be merely an omission by the legislature shall be far -fetched. What therefore follows is that if the legislature has not deemed it proper to incorporate the word `accused' with the word `complainant' in section 145(1), the same cannot be read as if even the “accused” shall be deemed to be part of it. Thus, what is explicit can only be given effect to. The case of the complainant in a complaint under section 138 of the Act shall be based on documentary evidence. The accused, it is observed, more oftenly, does not opt even to lead any defence evidence and let the prosecution stand or fall on its own evidence. Even otherwise, in case, the accused opted to lead defence evidence, the nature of its evidence may not be necessarily documentary and it may be such other evidence with a view to rebut the presumption that the issuance of the cheque was not in the discharge of any debt or liability. Hence, the basic difference between the nature of the complainant's evidence and the evidence of the accused in a case of dishonoured cheque has to be contextually understood.

 

The Bombay High Court in SBI Global Factors Limited  (Supra)  has held in view of above settled position of law, that accused/respondent cannot be permitted to file an Affidavit-of-Evidence in-lieu of Examination-in-Chief. The evidence of accused i.e. Affidavit of Evidence in lieu of Examination-in-Chief was thus discarded from record.

2.      That the Karnataka High Court in a matter captioned as  MRS. ZAHEDA INAMDHAR  Vs DR. FATIMA HASSINA SAYEEDHA WRIT PETITION No.3519 OF 2024 (GM – RES) after taking note of Mandvi Co-op. Bank Ltd. (Supra) has held on similar line.

3.      That the Delhi High Court in a matter captioned as MAA TARINI INDUSTRIES LTD. & ANR. Versus PEC LIMITED CRL.M.C. 254/2020 after following Mandvi Co-Operative (Supra) has held as under:

 

18. The provisions of Sections 142 to 147 lay down a Special Code for the trial of offences under the Chapter XVII of the N.I. Act. While considering the scope and ambit of the amended provisions of the Act, the Supreme Court in Mandvi Co. Op. Bank Ltd. v. Nimesh B. Thakore , AIR 2010 SC 1402, has held that the provisions of Sections 143, 144, 145 and 147 expressly depart from and override the provisions of the Cr.PC, the main body of adjective law for criminal trials. The Supreme Court has further held as under:-

"17. It is not difficult to see that sections 142 to 147 lay down a kind of a special code for the trial of offences under Chapter XVII of the Negotiable Instruments Act and sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible without in any way compromising on the right of the accused for a fair trial."

 

The aforesaid discussion shall categorically and discerningly reflect that in cheque bouncing cases u/s 138 of Negotiable Instruments Act, there has been no provision even u/s 143-145 of the said Act that accused shall be entitled to file evidence affidavit, whereas the said prescription is clearly made out for the complainant and the complainant can be cross examined on the basis of their evidence affidavit and documents, in a rebuttal by the accused in order to shift the onus back on complainant and to shift the onus u/s 139 of NI Act , in case the accused succeeds in raising tangible rebuttal. However, there is no mechanism in law for the accused in the cases u/s 138 of Negotiable Instruments Act to file evidence affidavit, unlike the complainant. Moreover, even if Section 315 of Cr.PC is taken note of, the accused can lead his evidence as defence witness, if the accused opted to do so. The accused cannot be compelled to do so. In any case, after Mandvi Co-operative (Supra) judgment rendered by the hon’ble Supreme Court, the issue is well settled i.e the accused cannot file evidence affidavit by way of defence evidence in complaints u/s 138 of Negotiable Instruments Act and rebuttal option is available to the accused by way of cross examination of complainant witness and even through defence witness, other than the accused himself, unless, the accused himself also wanted to be examined. The inference therefore is that no affidavit by way of evidence can be filed by the accused in such cases, having been clearly excluded by implication in terms of Section 145 of Negotiable Instruments Act, wherein, the filing of affidavit relates to, by the complainant only.

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                          Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com