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Evidentiary value of a confession – Indian Evidence Law

State of U.P. v. Deoman Upadhyaya

Deoman was tried for the murder of Sukhdei. Analysis of s.24 to s.27, a person in custody, a confession made by him to a police officer or the making of which is procured by inducement or threat is not provable against him in any proceeding in which he is charged. Confession made by a person in the custody of a police officer is not provable unless it is made in the immediate presence of a Magistrate. Deoman absconded in the presence of a witnesses and that he had thrown the Gandasa in the village tank which established a strong chain of circumstances leading to the irresistible inference that Deoman killed Sukhdei. The High Court was of the view that mere fetching of the gandasa from its hiding place does not establish Deoman had put it in the tank. But the discovery from its place of hiding, the gandasa stained with human blood in the light of the admission by him that he had thrown it in the tank in which it was found therefore acquired significance. The offence appears to have been brutal, conceived and executed with deliberation and not in a moment of passion, the Supreme Court confirms the sentence of death.

Haricharan Kurmi v. State of Bihar

The two appellants Haricharan Kurmi and Jogia Hajam were charged for having committed an offence    punishable under s.396 of IPC. The High Court came to the conclusion that the blood stains on the clothes found with both the appellants and blood stains found in the house of the appellant Haricharan afforded sufficient corroborations to the confession of Ram Surat, and so it has confirmed the conviction of the appellant. The question about the part which a confession made by a co-accused person can play in a criminal trial, has to be determined in the light of the provisions of s.30 of the Act. In criminal trial as a matter of prudence criminal courts generally require some corroboration to the said confession particularly if it has been retracted. Reading the two provisions i.e. s.113 and s.114 Illustration (b), it allows that though an accomplice is a competent witness, prudence requires that his evidence should not be acted upon unless it is materially corroborated, and that is the effect of judicial decisions. The Supreme Court stated there can be no doubt that the evidence about the discovery of blood stains on which the prosecution relies is entirely sufficient to justify the prosecution charge against both the appellants. Therefore, satisfied that the High Court was not right in confirming the conviction of the two appellants under s. 396 of IPC. The order of conviction are set aside and the accused are ordered to be acquitted.

Aghnoo Nagesia v. State of Bihar

The appellant was charged under s.302 of IPC for murdering his aunt, aunt’s daughter, her son-in-law, Somra and Dilu, and son of Somra. The first information of the offences was lodged by the appellant himself at police station. There were no-eyewitness to the murders. The information report, which contains a full confession of guilt by the appellant. The other evidence on record is insufficient to convict the appellant. Question in appeal is whether the statement or any portion of it is admissible in evidence. For the purpose of this case, appellant was constructively in police custody and therefore the information contained in the FIR lead to the discovery of the dead bodies is admissible in evidence. This evidence in totality not sufficient to convict the appellants of the offences under s.302 of the IPC. The conviction is set aside.

Bheru Singh v. State of Rajasthan

The appellant has been convicted for an offence under s.302 IPC.  The appellant himself  was seized. The motive in the case appears to be the suspicion by the appellant of infidelity of his wife. The FIR discloses the motive for the murder and the manner in which the appellant committed the six murders. The High Court relied upon the confessional statement recorded under s.164 CrPC and found that the same was voluntary and had been made by the appellant without any threat or fear and that it contained a full confession of the crime and also disclosed the manner in which the crime had been committed. The evidence on record, the conclusion is irresistible that the prosecution has established beyond a reasonable doubt that the appellant had committed the murder of his wife and their five children.

State of Punjab v. Barkat Ram

The mere fact that similar powers in regard to detection of infractions of Customs laws have been conferred on Officers of the Customs Department as are conferred on Officers of the Police is not sufficient for holding them to be police officers within the meaning of Section 25 of the Evidence Act because the powers of search etc., conferred on the former are  of a limited character and have a limited object of safeguarding the revenues of the State.  It is also to be noticed that Sea Customs Act itself refers to Police Officers in contradistinction to the Customs Officer. S.180 empowers a police officer to seize articles liable to confiscation under the act, in suspicion that they had been stolen. S.184 provides that the officer adjudging such confiscation shall take and hold possession of the thing confiscated by requesting an officer of police to assist him in taking such possession. This leaves no room for doubt that a Customs Officer is not an officer of the Police.

Raja Ram Jaiswal v. State of Bihar

For the purpose of determining as to who can be regarded as a “police officer” for the purpose of Section 25 is not the totality of the powers which an officer enjoys but the kind of powers which the law enables him to exercise. The powers of investigation into offences which a police officer enjoy are not conferred upon a Customs Officer. It is the power of investigation, which establishes a direct relationship with the prohibition enacted in s.25. An excise officer acting under s.78 (3) would be in the same position as Officer in charge of a police station making an investigation; he would have the same opportunity of extorting a confession from a suspect. There is a reason why the confession made to an Excise Sub- Inspector must be excluded, that is, it is a statement made during the course of investigation to a person who exercises the powers of an officer in charge of a police station. Such statement is excluded from evidence by s.162 of the CrPC except for the purpose of contradiction. Therefore, both by s.25 of Evidence Act and s.162 CrPC the confession of the appellant is inadmissible in evidence. The conviction is set aside.

State of Bombay v. Kathi Kalu Oghad

The facts call in aid of the provisions of clause (3) of article 20 of Constitution. The respondent was charged along with another person, under s.302 read with s. 34 of IPC also under s.19 (e) of Indian Arms Act. At the trial the identification of the respondent, as one of the two alleged culprits, was the most important question to be decided by the Court. The prosecution adduced in evidence a chit alleged to be in the handwriting of the respondent, the police had obtained from him, during the investigation, three specimen handwritings of his on three separate sheets of paper. These documents were inspected by the Handwriting expert whose evidence was to the effect that they are all writing by the same person. But it is disputed whether the accused had been compelled to give those writings within the meaning of clause (3) of article 20. The Court on weighing the facts and circumstances disclosed in the evidence that an accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more.

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Dying Declarations – Indian Evidence Law

Kushal Rao v. State of Bombay

The appellant had caused Baboolal’s death intentionally and there were no extenuating circumstances. The court upheld the conviction and sentence of the appellant on the ground that the dying declarations were corroborated by the fact that the appellant had been absconding and keeping out of the way of the police, and had been arrested under very suspicious circumstances. The Court relied upon three dying declarations recorded at the hospital first by the attending doctor, second by the Sub-Inspector of police and the third by the magistrate first class between 9:25 and 11:35pm. If on examination, the Court is satisfied that the dying declaration was the true version of the occurrence, conviction can be based solely upon it. In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. The only other question that remains to be considered is whether there are any extenuating circumstances in favor of the accused justifying the lesser of the two sentences prescribed by law. In the Court’s opinion, there are none.

           

 

Harbans Singh v. State of Punjab

The dying declaration alleged to have been made by the deceased Hazura Singh. The Court is satisfied from the evidence of the witnesses that there was sufficient light to enable Hazura Singh to recognize clearly the assailant who struck the blow which caused this injury. On the consideration of evidence the court was of the view that Harbans Singh committed murder by causing the death of Hazura Singh and also committed murder by causing the death of Munshi Singh. But the evidence leaves scope for thinking that Hazura Singh has made a mistake about Major Singh or has wrongly implicated him, therefore set aside the conviction of Major Singh.

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Admission – Indian Evidence Law

Sahoo v. State of U.P

The probative value of an admission or a confession does not depend upon it’s communication to another, though just like any other piece of evidence, it can be admitted in evidence only on proof.  Statement, whether communicated or not, admitting guilt is a confession of guilt. In this case, as we have noticed, P.W 11, 13 and 15 deposed that they clearly heard the accused say when he opened the door of the house that he had finished Sunderpatti, his daughter-in-law and thereby finished the daily quarrels. The Court held that the extra-judicial confession is relevant evidence it certainly corroborates the circumstantial evidence adduced in the case.

Sita Ram Bhau Patil v. Ramchandra Patil

Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of section 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. Therefore, mere proof of admission, after the person whose admission it is alleged to be had concluded his evidence, will be of no avail and cannot be utilized against him. The Court was right in rejecting the contentions advanced by the appellants that there was any admission and in setting aside the decision of Revenue Tribunal.

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Doctrine of Res Gestae – Indian Evidence Law

Y.E. Nagree v. State of Maharashtra

A contemporaneous tape recording of a relevant conversation formed part of the res gestae and is relevant and admissible under Section 6 of the Indian Evidence Act. The court must be satisfied beyond reasonable doubt that the record has not been tampered with, the evidence must be received with caution.

G.V. Rao v. State of Andhra Pradesh

The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue, but in this case there was appreciable interval between the acts of the miscreants and the recording of the statements by judicial magistrate of the victims. The interval, therefore, blocks the statement from acquiring legitimacy under section 6 of the Act.

R.M. Sharma v. State of Bombay

The physical fact of identification has no separate existence apart from the statement involved in the very process of identification and in so far as a police officer seeks to prove the fact of such identification such evidence of his would be inadmissible in evidence. The only exception being the evidence sought to be given by the identifier himself in regard to his mental act of identification which he would be entitled to give by way of corroboration of his identification of the accused at the trial. The Court is satisfied that even excluding the evidence of the test identification parade in regard to him the balance of evidence remaining on record is enough to maintain his conviction

Daya Singh vs. State of Haryana

In the present case, there is no lapse on the part of the Investigation Officer holding the test identification parade. Where evidence is cogent, consistent and without any motive, it is no use to imagine and magnify theoretical possibilities with regard to the state of mind of the witnesses. The identification by the witnesses effected in the result that the physical features of accused must have been embedded in the memory of the witness and the evidence and the cross-examination of the witnesses, it is apparent that they gained enduring impression of the identity of the accused during the incident. Power of perception and memorizing differs from man to man and also depends upon the situation. It also depends upon the capacity to recapitulate what has been seen earlier.

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Theory of Relevancy – Indian Evidence Law

Pooran Mal v. Director of Inspection:

Evidence obtained by illegal search inadmissible, in the case the search and seizure were in contravention of the provisions of Section 132 of the Income Tax Act, still the material seized was liable to be used subject to law before the Income Tax authorities. Evidence obtained as a result of illegal search or seizure is not liable to be shut out.

R.M. Malkani v. State of Maharshtra:

Telephonic conversation being recorded by the police is admissible provided first, the conversation is relevant to the matters in issue, secondly, there is identification of the voice, and thirdly the accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the recording. Contemporaneous tape record of a relevant conversation is a relevant fact and is admissible.

State of Punjab v. Baldev:

Evidence collected in a search conducted in violation of the safeguards provided in s.50 of the N.D.P.S Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution of any other proceedings.

As long as it is not tainted by an inadmissible confession of guilt, evidence even if it is illegally obtained is admissible.

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Introduction to Evidence Law

Union of India v. T.R. Verma

The evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act. The respondent did not cross-examine the witnesses because there was nothing left for him to cross-examine. Thus, there was no cross-examination, which is a fact, not that the request of the respondent to cross-examine was disallowed. The record in the light, find that there has been no violation of the principles of natural justice. The witnesses have been examined, and have spoken to all relevant facts bearing on the question.

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Law of Evidence Notes (Case Briefs)

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BAILABLE AND NON-BAILABLE OFFFENCE

Bailable– The person has a right to bail. The main reason is that there is no place in jail for the parties.

Non-bailable– The bail is at the discretion of the court.

Section 436- In what case bail to be taken: Here the person has to be in custody, and then the question of bail comes in if the offence is bailable. There have to be two sureties for the bail, or if the officer considers the person to be an indigent person the accused may be released on a personal guaranty.

Indigent person- is a person who cannot furnish the amount within a week. Explanation of Section 436

Section 446A- Cancellation of bond and bailbond: Bond is a matter of good faith and trust. Thus, if it is violated, then the privilege will not be extended again. The court may refuse bail. However, the terms which are put bail should not be unreasonable and the amount of bail should not be excessive in nature.

Section 436A-Maximum period for which an under trial prisoner can be detained: The person can be kept only for half the punishment time during the investigation. Moreover, the person can be detained for more than the maximum time period of the offence. However, the delay shall not be by the accused.

Bail:  This necessarily involves

Bond: Bond is when there are two people who assure that that you will appear in court. There may or may not be money involved.

Section 437 – When bail may be taken in case of non-bailable offence

  • This is in reference to an accused or a suspect
  • This is when a police makes an arrest without a warrant under Section 41. If the arrest is made with a warrant by the Magistrate, Court of Session, and High Court then the conditions of the warrant will be there in the warrant itself.
  • Bail cannot be granted without the consultation of the Public Prosecutor and/or the Counsel for the Complainant
  • Just and proper would refer to things like medical grounds (this is not very easy though). There may also be who you are? grounds for this. There would also be the bail status of the co-accused, i.e. if there are 3 other co-accused and they have been set free, the court will consider as to why you should or shouldn’t be set free in comparison to them.
  • Bail can’t be refused on the mere fact that you may be required as a witness.
  • Breach of the policies would lead to cancellation of the bail.

Public Prosecutor v. George Williams A.I.R. 1951 Mad. 1042

  • Cancellation of bail
  • Acts of violence
  • Tampering evidence
  • Not cooperating with the evidence
  • Breaches terms of bail

Section 167- Procedure when investigation cannot be completed in twenty-four hours

The difference between Section 167 and Section 437 –

Section 437A – Bail to require accused to appear before next appellate Court : This is applicable either to the appellate court or to the trial court. The accused has be given in a bond that he will appear before the appellate court.

Bail applications cannot be filed continuously, unless there is a MATERIAL CHANGE IN CIRCUMSTANCES

Section 438- Direction for grant of bail to person apprehending arrest– This is anticipatory bail. Anticipatory bail exhausts itself after arrest, i.e. when you are arrested when you are waiting for the decision on Anticipatory Bail.

Section 439- Special powers of High Court or Court of Session regarding bail

Section 389- Suspension of sentence pending the appeal; release of appellant on bail

Kalyan Chandra Sarkar v. Rajesh Ranjan

The respondent has been denied bail 9 times before this application. The present court in the two appeals has set aside the order by the HC of granting bail to the respondent. When the earlier appeals were filed, they were all demised on refusal to grant bail.

After the rejection of four bail applications earlier, the respondent filed a 5th application Crl. Miscellaneous 24068 of 2002 which came to be allowed by the High Court on the sole ground that since the respondent accused was under detention for more than one year, he should be released on bail without going into any other aspect of the case.

Later, an application was filed against the grant of bail on the ground that High Court while granting the bail did not keep in mind the requirement of Section 437(1) (i) of Cr. P.C.

The 6th and 7th application were also rejected.

8th Application was allowed. The ground for this was – that the accused-respondent had undergone incarceration for a period of 3 years and that there was no likelihood of the trial being concluded in the near future.

An application against this bail was allowed. On the ground that the court could not have allowed the bail application on the sole ground of delay in the conclusion of the trial without taking into consideration the allegation made by the prosecution in regard to the existence of the prima facie case, gravity of offence, and the allegation of tampering with the witness by threat and inducement when on bail.

The court recognised that an accused had a right to make successive applications for grant of bail the court entertaining such subsequent bail applications has duty to consider the reasons and grounds on which the earlier bail applications were rejected and in such cases the court also has a duty to record what are the fresh grounds which persuaded it to take a view different from the one taken in the earlier applications.

The 9th bail application was filed and then allowed.

The present appeal, the appellant contends that entertainment of the 9th bail application by the High Court on the very same grounds as those urged in the earlier petitions without there being any new facts or grounds amounts to an abuse of the process of the court and is in derogation of the earlier orders passed by this Court.

He also contends that the points raised by the accused in the 9th bail application has already been negatived by the HC and to allow this appeal now is to interferes with the previous order. Secondly,the existence of a prima facie case has already been established and that couldn’t have been overlooked.

Also, accused during his incarceration as well as during the short periods when he was out on bail which showed that he was interfering with the course of investigation and was threatening witnesses and that this accused had no respect for law.

The court accepted the contentions made by the Petitioner’s.

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Plea bargaining – CrPC Notes

Circumstances under which there will be no full criminal trial are:

  1. Accused Plea Bargains – Plea bargaining is under Section 265A – Application of the (Plea Bargaining) Chapter is not available for an offence whose punishment is above 7years and if the offence affects the socio-economic condition of the country. This has to come from the accused. The Magistrate has to satisfy himself that the plea bargaining is doing it on his own accord. If the person is convicted of the same offence before, then the trial must go forward.

A victim as defined under Section 2wa.

Section 265G – Finality of the Judgement. The Judgment given by the Court is final and cannot be appealed except as an SLP under Article 136 or writ petition under Article 226 or 32. As per Section 265L plea bargaining under the Juvenile Justice Act is not available.

  1. Compounded –

Section 320- Compounding of offences

Compounding is allowed only under this offence.

Under subsection 1 the person aggrieved may compound without permission of the court. Under subsection 2 the person aggrieved may compound with permission of the court, the reason is the seriousness of the offence. Subsection 3 treats abetment to an offence in the same way that the original offence is treated (either under subsection 1 or 2). Subsection 4 says who can compound an offence. A person who does not have the capacity to compound himself shall be represented by a person called ‘next friend’.

If the person is under trial, the permission of the court needs to be taken to compound the offences. If the trial is in the appellate stage, they might not allow.

However, if the parties’ say that we have reached an out of court settlement, and then the court will let the person go under the sentence that it is the time which is already spent in jail. This is not compounding.

Withdrawn from Prosecution

Section 321- Withdrawal from Prosecution: The Public Prosecutor or Asst. Public Prosecutor can withdraw at any stage before the pronouncement of the judgement. The prosecutor can do it only with the permission of the Court. The Court has to satisfy itself that there is no ulterior motive involved AND that the conditions under Section 321(a) or 321(b).

This withdrawal has the effect of acquittal and is not like discharge or quashing therefore, as per Section 300 (double jeopardy), if a charge is withdrawn it cannot be tried for again.

During the proceedings:

Section 301- Appearance by Public Prosecutors

Section 304- Legal aid to accused at State expense in certain cases

Section 305 – Procedure when corporation or registered society is an accused

Section 306 and Section 307 – A pardon is being given in return for information or evidence.

Section 308- Trial of person not complying with conditions of pardon: If the person does not comply then the person may be prosecuted. However, if the person needs to be prosecuted again for false evidence, then the sanction of the court is needed. This person can now not be tried with the co-accused, it has to be separately.

Section 310- Local inspection

Section 311- Power to summon material witness, or examine person present: The court will not recalling a witness is done only in essential circumstances or when there is alteration of court or other specific circumstances. A witness can also be called in by the court. The importance of this witness

A court witness cannot be a hostile witness. Because if a witness is called as a hostile witness, then the person who introduced the witness themselves may cross- examine the witness.  This does not happen under normal circumstances.

Section 311A- Power of Magistrate to order person to give specimen signatures or handwriting: This shall be asked only of a person who is arrested.

Section 312 – Expenses of complainants and witnesses: The expenses have to be covered however this does not happen and thus it is a deterrent.

Section 313- Power to examine the accused: The purpose is not to prejudice the accused. This is to allow the accused to explain any circumstances against him. This can be answerable to the court’s proceeding. This is not for an inquisitorial proceeding. This is at the discretion of the Magistrate. This shall not be under oath, and he can give false answers. This however can be used in favour of or against him. The Court may take help of the Prosecutor and Defence Counsel to frame questions, this is at the discretion of the court. The statements in Section 313 can be used in parts and not wholly. However, a decision cannot be on the sole basis of the section.

Rautu Bodra v. State of Bihar (1999 SCC Cri. 1319)

Held: Inadequate examination may vitiate the proceedings.

Section 315- Accuse person to be competent witness: If the accused is a witness the person shall be treated as a normal witness. However, the accused has the right to refuse to be witness and this cannot be used against. The accused however, has to request to be witness in writing.

Section 316- No influence to be used to induce disclosure: Except for pardon, under 306 and 307, a person cannot be induced in any other manner to disclose any matter. For example for money etc

The term approver is applied to a person, supposed to be directly or indirectly concerned in or privy to an offence to whom a pardon is granted under Section 337 of the Code [Section 306 of new Code] with a view to securing his testimony against other persons guilty of the offence.

Section 319- Power to proceed against other persons appearing to be guilty of offence: If a person against who a new charge has been levied is brought into a case, then the court shall join the person as a co-accused. This would give rise to charges to be raised against him and the case to be started all over again.

Section 326- Conviction or commitment on evidence partly recorded by one Magistrate and partly by another: Usually the idea is that the same judge should be hearing throughout. However the problem is that the criminal cases go on for really long time. Therefore, the CrPC allows the successor may rely upon the evidence by the predecessor. However, the successor Magistrate may take the evidence again if he feels necessary. The successor might want to do this because the judges may also look into nature of the evidence and what transpired during the statements etc. This has to be done keeping in mind the time and resources available. The magistrate however has to be of the same designation. It can’t be that somebody has been promoted and the person can carry away the case with him.

There are two parts after this:

1)      Judgment – only after the certified copies come in do we apply for appeal. Additionally, the taken to apply for the certified copies is counted as part of the limitation period.

2)      Sentencing

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CHARGE – CrPC Notes

(Sections 211-224 of CrPC):

  • One of the basic requirements of a fair trial is to give precise information to the accused as to the accusation ­­against him. This is vitally important to the accused, to be informed at the beginning itself, so as to prepare a defence. In case of serious offences, the Code requires that the accusation are to be formulated and reduced to writing with great precision and clarity, after which it is read out and explained to the accused person – this is the procedure to be followed in trials of warrant cases and trials before the Court of Session {please see S. 240(2), 246(2) and 228(2)}.
  • There is no particular definition of charge in terms of what it is supposed to constitute. Section 2(b) includes any head of charge, when the charge contains more than one head.
  • The judge only needs to be convinced of a prima facie case, where there is no reason to adduce reasons for framing a charge. If he however dismisses the charge, then he needs to provide reasons in writing to do so.

Sections 211-214 deal with what the charge should contain, in terms of it’s content.

Sections 216 and 217 mention the power of the Court to alter the charge and what the procedure post the alteration is.

Section 218 provides the basic rule that for every distinct offence, there needs to be a separate charge and every such charge needs to be tried separately.

Flowing from the above, Sections 219, 220, 221, 223 give exceptions to the above.

Section 222 gives the circumstances in which a person can be convicted of an offence he was not charged with, to begin with.

Section 224 mentions the effect of withdrawal of remaining charges, when one of the charges has received a conviction.

Section 215 and 464 provide the effects of an error in stating the offence or other details in a charge.

NOTE: The above framework is necessary for contextualization and location of different sections and their purpose, under the overall umbrella of having to frame a charge.

The Trial must begin with a charge.

Section 211 – Contents of charge. A charge cannot be made under Common law, it must be coming out of a specific statute and this must be reflected in the charge. If you commit the same offence more than once then there can be an enhanced punishment. The fact that you have already served punishment period for an offence will not ensure that your punishment is not enhanced. If multiplicity of the offence is discovered during the course of trial, then the court is well within its powers to alter the charges. This is given under

212: specifies that the charge must contain particulars of time, place and person/thing related to alleged offence – the standard to be applied is anything that is reasonably sufficient to give the accused notice of the matter.

For example, if the above are not stated in case of housebreaking or theft, that would be a vague charge. However, in the case of adultery, it may be impossible to specify the particulars of when and where the sexual intercourse took place. In such cases, a broader period of start time and end time of the adultery may be specified.

Section 212(2) is drafted to meet certain contingencies and allows for the mention of the aggregate details and an overall accusation (instead of a precise one) involved in cases of criminal breach of trust OR dishonest misappropriation. The charge so framed shall be only of one offence.

213 and 214 – self explanatory.

215 – Basically stipulates that even if an error does occur in framing of the charge, it can only be regarded as material if it is shown that the accused was in fact misled by such an error or omission and has resulted in a failure of justice.

In this relation, S. 464 provides for a re-trial in cases where a material error has resulted in a failure of justice. In determining this, the courts must adopt a broad vision and look at substance, not at technicalities. The parameters for judging the aforementioned should be the manner in which the accused conducted his defence and the nature of the objection. If there happens to be a mismatch to the prejudice of the accused, then this is material. If it is clear from the answers of the accused and the nature of his case that it did not prejudice him, then not material.

Section 216- Court may alter charge. This can be done anytime before the judgement is given. The trial will then take place from the altered charge.

Alteration, addition or amendment of this charge is allowed. However, the importance of this section lies in prescribing the limitations imposed on this discretionary power of the Courts to ensure that the accused is not prejudiced as a result. For example, sub-sections (2) and (3) envisage scenarios where such changes do not particularly affect the defence/preparation of the accused, then the Court in it’s discretion can proceed with the immediately with the trial as though the amendment had been part of the original charge. Conversely, if it does cause such an adverse impact on the accused, then Court can order a new trial/adjournment.

The Court can make a change upon it’s own motion or by the prosecution, and the new charge needs to be explained to the accused. It is important to remember that a court cannot ignore the basic requisites of a charge when engaging in these changes. For example, rape cannot be substituted by adultery, as adultery requires only the husband to file this complaint.

Section 217 – Recall of witness when charge altered.

Section 218 – Separate charges for distinct offences

  • Every distinct offence must have a separate charge and every separate charge must be tried separately.
  • An accused has a right under this section to make an application for joinder of charges and the Magistrate can grant it if he thinks that shall not prejudicially affect the accused.
  • The object of S. 218 is to ensure that an accused is not at a disadvantage because he has to meet several charges that are in no way connected to one another. It is also to avoid prejudice from entering the mind of a court when it sees that in a different trial the person has been convicted on a different charge with different pieces of evidence on the same facts.
  • Distinct offence: The offences should not have a connection between them and should not be inter-related in any way. NOTE: A separate charge is required for every DISTINCT OFFENCE, not for every SEPARATE OFFENCE.

 Exception to Section 218 is

  1. Section 219 – Same offence

the rule is self-explanatory. Attempt to commit an offence , the offence itself come under the ambit of ‘same kind’ of offence to be tried within the twelve month time period. What the section laid down is that trial must be limited to is three offences, but any number of charges can be pressed. He can also be tried separately on a different trial for other charges.

 Section 220 – Same transaction

ONE TRIAL FOR SEVERAL OFFENCES – if in one series of acts which are so connected together so as to constitute the same transaction, more than one offence is committed, then he can be charged with and tried for every such offence at one trial itself. The real test to determine whether several offences are so connected as to form the ‘same’ transaction depends on whether they are so related to one another in the point of purpose, cause and effect, as principal and subsidiary acts so as to constitute one continuous action.

Section 221-

CASES WHERE IT IS DOUBTFUL WHICH OFFENCE HAS BEEN COMMITTED:

  • If there is a single act, or a series of acts, which is of such nature that it is doubtful which of the several offences such facts will constitute, the accused may be charged with all or any of the offences.
  • Even if he has been charged with a number of offences, but the one made out during the course of the trial is a different one, he may be convicted of the latter.
  • This section contemplates a set of facts that all amount to a single offence, but where it is doubtful as to which one it actually is. It applies to those rare cases where the prosecution is unable to establish exclusively any one offence.

 Section 223 – What persons may be charged jointly.

Section 224- Withdrawal of remaining charges on conviction on none of several charges

Section 228 – Framing of Charges

Section 227- Discharge (by Judge)

Section 239 – When accused shall be discharged (by Magistrate) – the magistrate can discharge on the basis of the police report under Section 173.

Quashing – is that it never existed, and can be done by the High Court and Supreme Court. This is the more popular remedy.

Sufficiency of grounds means that there must be a prima facie case of not, and this can be grounds for discharge.

Prima facie case if there is a document purport the possibility of existence of evidence.

P. Vijayan v. State of Kerala

Facts: The appellant in this case is a former police officer who was allegedly present when a fake encounter was taking place of Naxalite in Kerala.

Issue: Whether there are sufficient grounds for discharge of the appellant?

Decision: The court held that there are no sufficient grounds for discharge. The court can discharge the case if they feel that no sufficient case has been made out by the prosecution. However, if the court feels that there is a strong suspicion then the case should go on to the trial stage. The court has the discretionary authority to decide what is sufficient and what is not. The judge should apply his ‘judicial mind’.

Sampat Singh v. State of Haryana

An FIR was lodged against Dharampal; alleging misuse of authority and corruption.

The police submitted a report u/s 173 of the Cr. PC to the Magistrate calling for cancellation of the allegations against the accused. The Magistrate accepted the report and discharged the accused.

A petition was filed in the HC u/s 226 of the Constitution; for transferring the case of Dharmpal to the CBI. It was prayed that the accused, holds a position of power in the government; was in a position to influence the investigation of the police. Therefore, the investigation in order to be fair and impartial should be conducted by an independent agency i.e.  CBI.

The HC found no merit in the case, dismissed the petition.

It is against this that present SLP has been preferred.

So, a SLP was filed was filed u/s 136, which is basically a special leave to appeal against any order, judgment and decree of the SC, from any court or tribunal; praying for the investigation to be transferred to the CBI.

The SC examined the legality of the order, and said that u/s 173 of the Cr. PC, when an investigation culminates into a final report without delay; it is the duty of the competent court within its authority under sanction of the law, to scrupulously scrutinize the final report and apply its judicial mind and take a decision whether to accept or reject the final report.

The Magistrate had passed an unreasoned order and without application of his judicial mind accepted the report of the police.

In the instant case, it was also noted by the SC, that the case against the accused was registered under provisions of the Prevention of Corruption Act. Under this act, the provisions explicitly say that the offence under this act is triable by a Special Judge only.

So, the Magistrate before whom the cancellation report has been placed, instead of acting on it by him, should have forwarded the same to the Special Judge who was competent to try the case.

Held-: The order of the Magistrate was set aside and he was directed to transmit all the papers along with the cancellation report to the Special judge having jurisdiction.

You can find notes on other topics on CrPC here.  You can grab notes for other law subjects from here.