From a plain reading of sub-section (2) and sub-section (8) of Section 173, it is evident that even after submission of Police Report under sub-section (2) on completion of investigation, the police has a right to “further” investigation under sub-section (8) of Section 173 but not “fresh investigation” or “re investigation”. The meaning of “further” is additional; more; or supplemental. “Further” investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. Arun Kumar v. State of U.P., 2016 (95) ACC 823.
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Cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceeding to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the CRPC very clearly indicates that once the case is committed to the court of Session by the Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section 209 of the CRPC will, therefore, have to be understood as the Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there be any question of part cognizance being taken by the Magistrate and part cognizance being taken by the Sessions Judge. Balveer Singh v. State of Rajasthan, (2016) 6 SCC 680.
The rule regarding issue estoppel relates to admissibility of evidence in subsequent proceedings which is designed to upset a finding of fact recorded on the previous occasion and mandates that the finding so rendered on earlier occasion must operate as issue estoppel in subsequent proceedings. It makes it impermissible to lead any such evidence at a subsequent stage or occasion. The law on the point was succinctly stated in Sangeetaben Mahendrabhai Patel v. State of Gujarat, (2012) 7 SCC 621:
“The court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppels or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue. Ashwani Kumar v. State of Punjab, (2015) 6 SCC 308.
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.
Nature of the injuries is to be determined taking into consideration the intense suffering to which it gives rise and the serious disability which it causes to the sufferer. However, in clause Seventhly of Section 302 Indian Penal Code, as the term “fracture”, has been referred to, it may be necessary that the bone is broken. Mere abrasion would not amount to fracture. Even a cut that does not go across the bone cannot be termed as a fracture of the bone. But if the injury is grave even a partial cut of the skull vault (root or chamber) may amount to a fracture. However, Clause Eighthly of Section 302 Indian Penal Code refers to the injuries which are not covered under any of the above clauses Firstly to Seventhly of the Section. However, it labels the injuries as grievous if it endangers life or it causes the sufferer to be during the space of 20 days in severe bodily pain or which causes the sufferer to be during the space of 20 days unable to follow his ordinary pursuits and all the three clauses have to be read independently. There is a very thin and subtle demarcation line between “hurt which endangers life” and “injury as is likely to cause death”. Sompal Singh and another v. State of Uttar Pradesh, (2014) 7 SCC 316.
In R v. Mack, (1998) 2 SCR 903 (Can SC), it has been explained by the Canadian Supreme Court that entrapment occurs when (a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry, and (b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence. The following factors determine whether the police have done more than provide an opportunity to commit a crime:
(1) The type of crime being investigated and the availability of other techniques for the police detection of its commission.
(2) Whether an average person, with both strengths and weaknesses, in the position of the accused would be induced into the commission of a crime.
(3) The persistence and number of attempts made by the police before the accused agreed to committing the offence.
(4) The type of inducement used by the police including deceit, fraud, trickery or reward.
(5) The timing of the police conduct, in particular whether the police have instigated the offence or became involved in ongoing criminal activity.
(6) Whether the police conduct involves an exploitation of human characteristics such as the emotions of compassion, sympathy and friendship.
(7) Whether the police appear to have exploited a particular vulnerability of a person such as a mental handicap or a substance addiction.
(8) The proportionality between the police involvement, as compared to the accused, including an assessment of the degree of harm caused or risked by the police, as compared to the accused, and the commission of any illegal acts by the police themselves.
(9) The existence of any threats, implied or express, made to the accused by the police or their agents.
(10) Whether the police conduct is directed at undermining other constitutional values.
In the United Kingdom, the defence of entrapment is not a substantive defence as observed in R. v. Sang, 1980 AC 402, by the House of Lords:
“The conduct of the police where it has involved the use of an agent provocateur may well be a matter to be taken into consideration in mitigation of sentence, but under the English system of criminal justice, it does not give rise to any discretion on the part of the Judge himself to acquit the accused or direct the jury to do so, notwithstanding that he is guilty of the offence.”
However, a shift in judicial reaction appears to be emerging which is clearly discernible in R v. Looseley, (2001) 1 WLR 2060, wherein the House of Lords found that:
“ A prosecution founded on entrapment would be an abuse of the court’s process. The Court will not permit the prosecutorial arm of the state to behave in this way.
Entrapment is not a matter going only to the blameworthiness or culpability of the defendant and, hence, to sentence as distinct from conviction. Entrapment goes to the propriety of there being a prosecution at all for the relevant offence, having regard to the State’s involvement in the circumstance in which it was committed.” Rajat Prasad v. Central Bureau of Investigation, (2014) 6 SCC 495.
The word “appear” means “clear to the comprehension”, or a phrase near to, if not synonymous with “proved”. It imparts a lesser degree of probability than proof. In Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094, a four Judge Bench of the Hon’ble Apex Court was concerned with the meaning of the word “appear”. The Court held that the appropriate meaning of the word “appears” is “seems”. It imports a lesser degree of probability than proof. In Ram Singh v. Ram Niwas, (2009) 14 SCC 25, a two Judge Bench of the Hon’ble Apex Court was again required to examine the importance of the word “appear” as appearing in the Section. The Court held that for the fulfillment of the condition that it appears to the Court that a person had committed an offence, the court must satisfy itself about the existence of an exceptional circumstance enabling it to exercise an extraordinary jurisdiction. What is therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the persons sought to be added as the accused in the case. Hardeep Singh v. State of Punjab, (2014) 2 SCC (Cri) 86.