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Police cannot call accuse to question or inquiry in Police Station

Section 160 Cr.P.C. applies to Witness and not to Accused





2004 AIR 2282, 2004(2   )Suppl.SCR71  , 2004(5   )SCC729 , 2004(5   )




Appeal (crl.)  575-576 of 2004





State Rep. by Inspector of Police & Ors.





N.M.T. Joy Immaculate



DATE OF JUDGMENT: 05/05/2004





Dr. AR. Lakshmanan.








(Arising out of S.L.P.(Crl.) Nos. 3143-3144 of  2002)



Dr. AR. Lakshmanan, J.



I have had the privilege of perusing the judgment proposed by my learned


brother Hon’ble Mr. Justice G.P. Mathur.  I respectfully agree with the opinion


expressed by him.  However, I would like to add the following few lines.



Section 160 of the Code of Criminal Procedure deals with police officer’s power


to require attendance of witnesses.  This Section aims at securing the attendance of


persons who would supply the necessary information in respect of the commission of


an offence and would be examined as witnesses in the inquiry or trial therefor.  This


Section applies only to the cases of persons who appear to be acquainted with the


circumstances of the case, i.e. the witnesses or possible witnesses only.  An order


under this Section cannot be made requiring the attendance of an accused person with


a view to his answering the charge made against him.  The intention of the legislature


seems to have been only to provide a facility for obtaining evidence and not for


procuring the attendance of the accused, who may be arrested at any time, if


necessary.  In other words, this Section has reference to the persons to be examined


as witnesses in the trial or inquiry to be held after the completion of the investigation.


As an accused cannot be examined as a witness either for or against himself, he


cannot be included in the class of persons referred to in the Section.  But the police


officers are fully authorised to require the personal attendance of the suspects during


the investigation.



In the instant case, the High Court, by an impugned order has given a direction


to the State Government to issue circulars to all the police stations instructing the police


officials that the woman accused/witness should not be summoned or required to attend


at any police station under Section 160 Cr.P.C. but they must be enquired only by


women police or in the presence of a women police, at the places where they reside.


The High Court has issued a further direction to the Government to ensure that this


instruction is strictly followed by the police in future.



In our opinion, the High Court has committed a serious error in giving such a


direction contrary to the statutory provisions under Section 160 of the Cr.P.C. which is


applicable only to the witnesses and not the accused.  The High Court has also


committed a grave error in giving a finding as to the confession and recovery of a nylon


rope alleged to have been used in the commission of murder, thereby


stifling/foreclosing the investigation into an offence of murder even before a final report


in the case as contemplated under Section 173(2) of the Cr.P.C. is filed.



The High Court, in the present case, while dealing with the revision has not only


set aside the order granting police custody, but has held that the consequent


confession and the alleged recovery have no evidentiary value in the case.  In other


words, what has got to be decided in a full-fledged trial, the High Court merely on the


pleadings of the parties has given a finding that the order granting police custody and


the consequent confession and the alleged recovery had no evidentiary value


whatsoever in the case.  The learned single Judge has also given a finding that records


were created to implicate the respondent-Joy Immaculate in the case.  Needless to


state that any further investigation in the case permitted by the learned Judge would be


an exercise in futility in the context of such finding which could be given only during the


course of a full-fledged trial.  The High Court, while disposing of the criminal revision,


has given several findings/directions in para 40 of the judgment/order.  In our opinion,


the learned Judge has miserably erred in allowing the criminal revision petition against


the order of the lower Court in criminal M.P. No. 5171/2001, as the order passed by the


lower Court was acted upon, i.e., one day police custody was granted, the accused was


taken into custody and surrendered back, and thus the petition to set aside that order


has become infructuous.  Further, the learned Judge has erred in directing the State


Government to issue a circular to all the police stations instructing the police officials


that the woman accused/witness should not be brought to the police station and that


they must be enquired only by women police or in the presence of women police at the


places where they reside.  The learned Judge has failed to note that the


aforementioned findings is contrary to the statutory provisions contained in Section 160


of the Cr.P.C.  In fact, the learned Judge has erred in expanding the scope of Section


160 Cr.P.C. to the accused as well, which might lead to hardship to an investigating


agency.  If the directions of the learned single Judge is accepted, no purposeful


investigation into any serious offence involving women accused could be conducted





Above all, the learned Judge has committed a grave error in awarding a


compensation of Rs. 1 lakh on the ground that the police personnel committed acts of


obscene violation, teasing the respondent herein.  The learned Judge has relied upon


only on the basis of the affidavit filed in the case for coming to the conclusion and also


on the basis of the assumption that the respondent was not involved in the incident


which will foreclose the further enquiry ordered by the learned Judge in the matter.


There is no justification for awarding compensation to a person who is facing


prosecution for a serious offence like murder even before the trial has started.


The learned Judge has also directed to take immediate departmental action


against P-1 Inspector of Police and P-4 Inspector of Police and other Police Personnel


who were responsible for the detention and other alleged acts committed on the


respondent at P-4 police station.  This direction, in our opinion, is not warranted in view


of the fact of our allowing the criminal appeal and setting aside the judgment of the


learned single Judge.  The said direction issued by the learned Judge is set aside.



We, therefore, set aside the order in the criminal revision to prevent abuse of


process of court or otherwise to secure the ends of justice.  It is a principle of cardinal


importance in the administration of justice that the proper freedom and independence of


Judges and Magistrates must be maintained and they must be allowed to perform their


functions freely and fearlessly and without undue interference by anybody.  At the same


time, it is equally necessary that in expressing their opinions, Judges and Magistrates


must be guided by considerations of justice fair play and restraint.  It is not infrequent


that sweeping generalization defeat the very purpose for which they are made.  It has


been recognised that judicial pronouncements must be judicial in nature, and should not


normally depart from sobriety, moderation and reserve, as observed by this Court in


The State of Uttar Pradesh vs. Mohd. Naim AIR 1964 SC 703.  It is also very apt to


quote para 13 of the judgment in A.M. Mathur vs. Pramod Kumar Gupta AIR 1990 SC


1737 which reads thus:


“Judicial restraint and discipline are as necessary to the orderly


administration of justice as they are to the effectiveness of the army.  The


duty of restraint, this humility of function should be a constant theme of our


Judges.  This quality in decision making is as much necessary for Judges to


command respect as to protect the independence of the judiciary.  Judicial


restraint in this regard might better be called judicial respect; that is, respect


by the judiciary.  Respect to those who come before the Court as well to


other coordinate branches of the State, the Executive and Legislature.


There must be mutual respect.  When these qualities fail or when litigants


and public believe that the judge has failed in these qualities, it will be


neither good for the judge nor for the judicial process.”



This Court, in a number of other decisions, has also observed that the Courts


should not make unjustifiable observations and directions beyond the scope and ambit


of the lis pending before it and that such a direction and observation issued will only


hamper the free-flow of justice and cause lot of inconvenience to the litigants who come


before the Court for redressal of their genuine grievances.



It is also apt to quote hereinbelow the observations made by this Court in Kashi


Nath Roy vs. State of Bihar [(1996) 4 SCC 539] wherein this Court held that granting


of bail on the ground of an infirmity in evidence in the criminal trial was not a glaring


mistake or impropriety so as to attract adverse remarks and suggestion for initiation of


action against the Judge-Subordinate from the High Court Judge.  While stating the


proper course to be adopted in such a case, this Court held as follows:


“The courts exercising bail jurisdiction normally do and should refrain from


indulging in elaborate reasoning in their orders in justification of grant or


non-grant of bail.  For, in that manner, the principle of “presumption of


innocence of an accused” gets jeopardized; and the structural principle of


“not guilty till proved guilty” gets destroyed, even though all sane elements


have always understood that such views are tentative and not final, so as to


affect the merit of the matter.  Here, the appellant has been caught and


exposed to a certain adverse comment and action solely because in


reasoning he had disclosed his mind while granting bail.  This may have


been avoidable on his part, but in terms not such a glaring mistake or


impropriety so as to visit the remarks that the High Court has chosen to


pass on him as well as to initiate action against him, as proposed.



Whenever any such intolerable error is detected by or pointed out to


a superior court, it is functionally required to correct that error and may, here


and there, in an appropriate case, and in a manner befitting, maintaining the


dignity of the court and independence of judiciary, convey its message in its


judgment to the officer concerned through a process of reasoning,


essentially persuasive, reasonable, mellow but clear, and result-orienting,


but rarely as a rebuke.  The premise that a Judge committed a mistake or


an error beyond the limits of tolerance, is no ground to inflict condemnation


on the Judge-Subordinate, unless there existed something else and for


exceptional grounds.”




I respectfully agree with all other directions and the observations made by


brother G.P. Mathur, J. in allowing the criminal appeal and setting aside the impugned


judgment of the High Court dated 11.04.2002.

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