Indirect Tax Practitioners Association Vs R K Jain

The right of a member of the public to criticize the functioning of a judicial institution has been beautifully described by the Privy Council in Andre Paul Terence Ambard v. Attorney General of Trinidad and Tobago AIR 1936 PC 141
Only when the criticism of judicial institutions transgresses all limits of decency and fairness or there is total lack of objectivity or there is deliberate attempt to denigrate the institution then the Court would use this power.
In the free market place of ideas criticisms about the judicial system or judges should be welcomed, so long as such criticisms do not impair or hamper the administration of justice. This is how courts should approach the powers vested in them as judges to punish a person for an alleged contempt, be it by taking notice of the matter suo motu or at the behest of the litigant or a lawyer.
Although, the petitioner has tried to project the editorial as a piece of writing intended to demean CESTAT as an institution and scandalize its functioning but we do not find anything in it which can be described as an attempt to lower the authority of CESTAT or ridicule it in the eyes of the public. Rather the object of the editorial was to highlight the irregularities."

State of Haryana & Others Vs Bhajan Lal & Others 1992 Supp (1) SCC 335

Hon'ble Supreme Court of India observed, “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

Preeti Gupta & Another Vs State of Jharkhand & Another, Decided by Delhi High Court on 13.08.10

In Connelly v. Director of Public Prosecutions [1964] AC 1254, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial.
The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but court’s failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.
Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints.

R P Kapur Vs State of Punjab AIR 1960 SC 866

Hon'ble Supreme Court of India observed about use of inherent power to quash the proceedings "(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."

Madhu Limaye Vs The State of Maharashtra (1977) 4 SCC 551

Hon'ble Supreme Court of India observed, “In case the impugned order clearly brings out a situation which is an abuse of the process of the court, or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. Such cases would necessarily be few and far between. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. The present case would undoubtedly fall for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, that the invoking of the revisional power of the High Court is impermissible.”

Madhavrao Jiwajirao Scindia & Others Vs Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692

Hon'ble Supreme Court of India observed, “The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”

Virender Prasad Singh Vs Rajesh Bhardwaj & Ors Deccided by Supreme Court of India on 16.08.10

Hon'ble Supreme Court of India observed, "On its own, the High Court did not go into that exercise to decide as to whether the investigation was required to be done by any other agency. It required help of DGP level officer and his opinion to decide whether the earlier investigation was done properly or not. We are afraid that was not the task. To decide so was the task of the Court alone and no opinion could have been sought for, particularly, in the circumstances of this case. Nothing seems to have been established which would justify calling for such opinion."

Zandu Pharmaceutical Works Ltd & Others Vs Mohd Sharaful Haque & Another (2005) 1 SCC 122

Hon'ble Supreme Court of India observed, “It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.”

Ramesh Kumar Vs State of Chhattisgarh (2001) 9 SCC 618

Hon’ble Supreme Court observed, “Instigation is to goad, urge forward, provoke, incite or encourage to do ‘an act’. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence.... A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”

S S Chheena Vs Vijay Kumar Mahajan & Another

One person died after leaving behind a suicide note as---“SUICIDE NOTE I am Saurav Mahajan a final year student of Department of Law of GNDU. Montu had leveled a false allegation upon me. I am very annoyed because a false allegation has been leveled upon me. I have a faith that this allegation is false, accused Montu and his accomplices will be arrested and I will be declared as innocent. The reason of my annoyance is that I am falsely involved as I did not commit any theft. A dying person will not speak falsely. I have not committed this theft. According to me, the theft has been committed by Harminder Singh in connivance with his accomplices. Harminder Singh says that on the day when the Mobile was stolen, he was taking the test. I made request to Mr. Chhina to see as to whether he was engaged in the test or not? Or he had not completed the whole test, came out a little before the fixed time, and committed theft. Examination sheet of the said day of Harminder Singh be seen. Harminder Singh had admitted two things in the presence of M.D. Singh, HOD of the Law Department, i.e. (1) he had played a joke with me (2) Harminder Singh admitted that he had demanded money from me. Chhina Sahib, M.D. Singh, while dying, I will not speak untrue. I have not committed any theft. Real thief is Montu. He has falsely involved my name. Harminder Singh cannot prove this at any cost because he is totally wrong. On the other hand, he has admitted that he had sold this Reliance set to his friends and has falsely leveled this allegation against me. I request my uncle/aunt, mother/father to forgive me that I tried my best to fulfill their expected wishes but could not do the same because Harminder Singh has leveled false allegation against me. I want to say this thing again that I am innocent and request my mother/father that they may not make any complaint regarding my suicide. I will also say to Chhina Sahib even if they give justice and leave me but the people will have a suspicion about me. I am taking this step on account of my insult. Harminder Singh and his accomplices are responsible for my suicide or MD Singh who did not take into account my faith and without consulting me, has forwarded this case. Dated: 16.10.2003 Sd/Saurav Mahajan.” Question is whether Chhina is liable for u/s 306 IPC.
Hon’ble High Court observed that the material against the appellant was not just the suicide note but also includes threats, humiliating phrases etc. addressed to the deceased and his father over a period of few days.
Hon’ble Supreme Court observed on 12.08.10 “The word “suicide” in itself is nowhere defined in the Penal Code; however its meaning and import is well known and requires no explanation. “Sui” means “self” and “cide” means “killing”, thus implying an act of self-killing. In short, a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself.
Suicide by itself is not an offence under either English or Indian criminal law, though at one time it was a felony in England. In England, the former law was of the nature of being a deterrent to people as it provided penalties of two types: • Degradation of corpse of the deceased by burying it on the highway with a stake through its chest. • Forfeiture of property.
Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. In order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act.
The order of framing charge under section 306 IPC against the appellant is quashed.”

Jitender kumar Sharma Vs State decided on 11.08.10

Hon'ble Delhi High Court observed that, "It is true that one of the conditions of a Hindu marriage is that the bride should have completed 18 years age and the bridegroom, 21 years. But, does this mean that a marriage where this twin condition as to ages is not satisfied is, ipso facto, invalid or void? The fact that punishment has been provided for contravention of the condition specified in section 5(iii) of the HMA does not mean that the marriage itself is void or invalid. If the legislature had intended that such a marriage would be void or invalid, it could have easily included clause (iii) of section 5 in Section 11 itself.
Section 3 of the Prohibition of Child marriage Act, 2006 reads as under: 3. Child marriages to be voidable at the option of contracting party being a child. (1) Every child marriage, whether solemnized before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage: Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage. (2) If at the time of filing a petition, the petitioner is a minor, the petition may be filed through his or her guardian or next friend along with the Child Marriage Prohibition Officer. (3) The petition under this section may be filed at any time but before the child filing the petition completes two years of attaining majority. (4) While granting a decree of nullity under this section, the district court shall make an order directing both the parties to the marriage and their parents or their guardians to return to the other party, his or her parents or guardian, as the case may be, the money, valuables, ornaments and other gifts received on the occasion of the marriage by them from the other side, or an amount equal to the value of such valuables, ornaments, other gifts and money: Provided that no order under this section shall be passed unless the concerned parties have been given notices to appear before the district court and show cause why such order should This provision, irrespective of whether a child marriage is or is not voidable.
This takes us to the next, but equally vexed issue of custody. Poonam is a minor. She is also married and that, too, to a minor. Sec 21 of the Guardians and Wards Act, 1890, 'Capacity of minors to act as guardians. A minor is incompetent to act as guardian of any minor except his own wife or child or, where he is the managing member of an undivided Hindu family, the wife or child of another minor'"

Bipin Kumar Mondal Vs State of West Bengal

Hon'ble Supreme Cort of India held in the year 2010 that, "No reason could be given as to why such (son and father) close relations of the appellant (father as accused) would depose against him. Undoubtedly, there is nothing on record to show as what could be the motive behind the murder of his wife and son by the appellant (accused). However, it can be difficult to understand the motive behind the offence. The issue of motive becomes totally irrelevant when there is direct evidence of a trustworthy witness regarding the commission of the crime. In such a case, particularly when a son and other closely related persons depose against the appellant, the proof of motive by direct evidence loses its relevance.
In a case relating to circumstantial evidence, motive does assume great importance, but to say that the absence of motive would dislodge the entire prosecution story is giving this one factor an importance which is not due. Motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy.
Mere absconding by the appellant (accused) after commission of the crime...by itself is not conclusive either of guilt or of guilty conscience.
Contention made by Shri Bagga (defence councel) that no conviction can be recorded in case of a solitary eye-witness has no force and is negatived accordingly."

Sunil Kumar Vs State Govt of NCT of Delhi (2003) 11 SCC 367

Hon'ble Supreme Cort of India held that, "as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable."

State of UP Vs Kishanpal & Ors (2008) 16 SCC 73

Hon'ble Supreme Cort of India held that, "The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to crime, they cannot evidence of eyewitnesses is not convincing."

Matru @ Girish Chandra Vs The State of UP AIR 1971 SC 1050

Hon'ble Supreme Cort of India held that, "Mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation."

Jamshed vs State of Uttar Pradesh, 1976 Cri L J 1680 (All)

on the point of taking blood sample of accused Hon’ble Court observed, “We are therefore of the view that there is nothing repulsive or shocking to the conscience in taking the blood of the appellant in the instant case in order to establish his guilt. So far as the question of causing hurt is concerned, even causing of some pain may technically amount to hurt as defined by Section 319 of the Indian Penal Code. But pain might be caused even if the accused is subjected to a forcible medical examination.”

Nandini Satpathy vs P.L. Dani, (1978) 2 SCC 424

Hon’ble Supreme Court of India observed, “Any giving of evidence, any furnishing of information, if likely to have an incriminating impact, answers the description of being a witness against oneself. Not being limited to the forensic stage by express words in Article 20(3), we have to construe the expression to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the police level is embraced by Article 20(3).This is precisely what Section 161(2) means.”

M. Vijaya vs Chairman and Managing Director, Singareni Collieries Co. Ltd., AIR 2001 AP 502

Hon’ble Court observed, “There is an apparent conflict between the right to privacy of a person suspected of HIV not to submit himself forcibly for medical examination and the power and duty of the State to identify HIV-infected persons for the purpose of stopping further transmission of the virus. In the interests of the general public, it is necessary for the State to identify HIV-positive cases and any action taken in that regard cannot be termed as unconstitutional”

X vs Hospital Z, (1998) 8 SCC 296

Hon’ble Supreme Court of India observed, “When a patient was found to be HIV (+), its disclosure by the Doctor could not be violative of either the rule of confidentiality or the patient's right of privacy as the lady with whom the patient was likely to be married was saved in time by such disclosure, or else, she too would have been infected with a dreadful disease if marriage had taken place and been consummated."

Woolmington vs DPP, (1935) AC 462

Hon’ble Court observed, “The `right to silence' is a principle of common law and it means that normally courts or tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court."

Smt. Selvi & Ors. vs State of Karnataka Decided by Supreme Court on 05.05.2010

Hon’ble Supreme Court of India observed, “In an academic commentary, Leonard Levy (1969) had pointed out that the doctrinal origins of the right against self- incrimination could be traced back to the Latin maxim `Nemo tenetur seipsum prodere' (i.e. no one is bound to accuse himself) and the evolution of the concept of `due process of law' enumerated in the Magna Carta…..
`The right against self-incrimination' is now viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily….
Even though Section 161(2) of the CrPC casts a wide protective net to protect the formally accused persons as well as suspects and witnesses during the investigative stage, Section 132 of the Evidence Act limits the applicability of this protection to witnesses during the trial stage….
The language of Section 161, CrPC which protects the accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case….
Section 27 of the Evidence Act incorporates the `theory of confirmation by subsequent facts'….
If we were to permit the admission of involuntary statement on the ground that at the time of asking a question it is not known whether the answer will be inculpatory or exculpatory, the `right against self-incrimination' will be rendered meaningless. The law confers on `any person' who is examined during an investigation, an effective choice between speaking and remaining silent. This implies that it is for the person being examined to decide whether the answer to a particular question will eventually prove to be inculpatory or exculpatory….
Since the majority decision in Kathi Kalu Oghad (supra.) is the controlling precedent, it will be useful to re- state the two main premises for understanding the scope of `testimonial compulsion'. The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to `personal testimony' thereby coming within the prohibition contemplated by Article 20(3). In most cases, such `personal testimony' can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators. The bar of Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or `furnish a link in the chain of evidence' needed to do so….
In Sharda v. Dharampal, (2003) 4 SCC 493 case, the contention related to the validity of a civil court's direction for conducting a medical examination to ascertain the mental state of a party in a divorce proceeding. Needless to say, the mental state of a party was a relevant issue before the trial court, since insanity is a statutory ground for obtaining divorce under the Hindu Marriage Act, 1955….
We are inclined towards the view that the results of the impugned tests should be treated as testimonial acts for the purpose of invoking the right against self-incrimination. Therefore, it would be prudent to state that the phrase `and such other tests' [which appears in the Explanation to Sections 53, 53-A and 54 of the CrPC] should be read so as to confine its meaning to include only those tests which involve the examination of physical evidence. In pursuance of this line of reasoning, we agree with the appellant's contention about the applicability of the rule of `ejusdem generis'….
However, it must be borne in mind that even though the impugned techniques have not been expressly enumerated in the CrPC, there is no statutory prohibition against them either. It is a clear case of silence in the law….
In People's Union for Civil Liberties v. Union of India, AIR 1997 SC 568, it was held that the unauthorised tapping of telephones by police personnel violated the `right to privacy' as contemplated under Article 21. However, it was not stated that telephone-tapping by the police was absolutely prohibited….
The respondents' position is that the compulsory administration of the impugned techniques should be permitted at least for investigative purposes, and if the test results lead to the discovery of fresh evidence, then these fruits should be admissible. We have already explained in light of the conjunctive reading of Article 20(3) of the Constitution and Section 27 of the Evidence Act, that if the fact of compulsion is proved, the test results will not be admissible as evidence….
We hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872….
The National Human Rights Commission had published `Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused' in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the `Narcoanalysis technique' and the `Brain Electrical Activation Profile' test. The text of these guidelines has been reproduced below:
(i) No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
(ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a `confessional' statement to the Magistrate but will have the status of a statement made to the police.
(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
(vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer. (viii) A full medical and factual narration of the manner of the information received must be taken on record.”

M.P. Sharma vs Satish Chandra, [1954] SCR 1077

Hon’ble Supreme Court of India observed, “Broadly stated, the guarantee in Article 20(3) is against `testimonial compulsion'. It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand…..
Indeed, every positive volitional act which furnished evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part….
The phrase used in Article 20(3) is `to be a witness' and not to `appear as a witness'. It follows that the protection afforded to an accused in so far as it is related to the phrase `to be a witness' is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him.”

Zahiruddin v.Emperor.

Hon’ble Privy Council observed about section 162 CrPC as, “... the effect of a contravention of the section depends on the prohibition which has been contravened. If the contravention consists in the signing of a statement made to the police and reduced into writing, the evidence of the witness who signed it does not become inadmissible. There are no words either in the section or elsewhere in the statute which express or imply such a consequence. Still less can it be said that the statute has the effect of vitiating the whole proceedings when evidence is given by a witness who has signed such a statement. But the value of his evidence may be seriously impaired as a consequence of the contravention of this statutory safeguard against improper practices.”

Munshi Singh Gautam vs. State of M.P. (2005) 9 SCC 631

Hon'ble court observed,“ As was observed by this Court in Matru vs. State of U.P. 1971 2 SCC 75 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in Court. (See Santokh Singh vs. Izhar Hussain 1973 2 SCC 406.) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses…
..It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.”

Sidhartha Vashisht @ Manu Sharma Vs State of Delhi, Decided by Supreme court on 19.04.10

Hon’ble Supreme Court of India observed, “The following principles have to be kept in mind by the Appellate Court while dealing with appeals, particularly, against the order of acquittal: (i) There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found.
(ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions.
(iii) The Appellate Court can also review the Trial Court’s conclusion with respect to both facts and law.
(iv) While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.
(v) An order of acquittal is to be interfered only when there are “compelling and substantial reasons” for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference.
(vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.
(vii) When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., the Appellate Court is competent to reverse the decision of the Trial Court depending on the materials placed……….
Cryptic telephonic messages could not be treated as FIR as their object only is to get the police to the scene of offence and not to register the FIR... In the case on hand, the object of persons sending the telephonic messages including PW-70 Rohit Bal was only to bring the police to the scene of offence and not to register the FIR….
.investigation starts on information relating to commission of an offence given to an officer in charge of a police station and recorded under Section 154 of the Code. By applying the ratio of the said judgment to the case on hand, it can be clearly said that the investigation started after the recording of the statement of PW 2 as FIR around 3.40 a.m. on 30.04.1999…
..Learned senior counsel for the appellant also relied on judgment of the Gujarat High Court in Mehr Vajsi Deva vs. State of Gujarat, AIR 1965 Guj 143. A perusal of the said judgment shows that the details of the offence given by the telephonic message in the said judgment clearly described that‘one man was assaulted by means of an axe at Sudama Chowk’, on the other hand, in the case on hand the telephonic message did not give any details of the offence or accused and the same was a vague information……The judgment in Maruti Rama Naik vs. State of Mahrashtra, (2003) 10 SCC 670, relied on is also distinguishable. The delay in recording the statement in that case was coupled with the unnatural conduct of the witness and that was what made the evidence of the said witness unreliable, which is not so in the present case. In Prithvi vs. Mam Raj , (2004) 13 SCC 279, it was held that delay in recording the statement of the witness can occur due to various reasons and can have several explanations and that it is for the Court to assess the explanation and, if satisfied, accept the statement of the witness…
……The law is very clear that where a witness for the prosecution turns hostile, the Court may rely upon so much of the testimony, which supports the case of the prosecution and is corroborated by other evidence…
…..The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Courts to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution…
…..even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused…
….A criminal trial is not an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty…
…..Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending……Every effort should be made by the print and electronic media to ensure that the distinction between trial by media and informative media should always be maintained. Trial by media should be avoided particularly, at a stage when the suspect is entitled to the constitutional protections.”