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WHAT MATERIALS CAN BE RELIED AT THE TIME OF CHARGE

Hem Chand Vs. State of Jharkhand (2008) 5 SCC 113 on the basis of admitted documents i.e. the documents admitted by the prosecution, the accused has a right to show that no case is made out against him.

Court in State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568. The documents, which were in the possession of the CBI, were required to be looked into at the stage of charge.

In view of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others (1990) 4 SCC 76 it is contended that even at the stage of charge, the Court has to sift the evidence to see whether any charge is made out against the accused or not. Further the Court is duty bound to look at the material placed on record.

Relying upon State of Madhya Pradesh Vs. Sheetla Sahay and Ors. (2009) 3 SCC Crl. 901 the Court cannot ignore the material, which is in favour of the accused, at the stage of charge.

Hon‟ble Supreme Court in State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568. At the stage of charge Court cannot hold a mini trial. As held in N.Ramakrishna Ayyar through legal heirs Vs. State of Andhra Pradesh (2008) 17 SCC 83 and Hem

Chand v. State of Jharkhand (2008) 5 SCC 113 the Court will not delve deep into the matter for the purpose of appreciating the evidence and the stage to weigh the evidence would be when the entire evidence is brought on record.

The scope and jurisdiction of a trial Judge while framing a charge and while considering the application for discharge are now well-settled through a catena of the decisions of the Honourable Apex Court. In State of Maharashtra v. Priya Sharan Maharaj and others [(1997) 4 SCC 393], the Apex Court has held that while framing charge, the purpose is limited to find out whether a prima facie case is made out or not and at that stage, the court is not required to undertake an elaborate enquiry in sifting and weighing the material to arrive at the conclusion that it will not lead to conviction.

In Palwinder Singh v. Balwinder Singh and Others [(2008) 14 SCC 504], the Apex Court has held that marshalling or appreciation of evidence is not permissible at the stage of framing of charge. It is also relevant to note that in the decision reported in P.Vijayan v. State of Kerala and another [(2010) 2 SCC 398], it was held that the court is not a mere post office and also held that the court has no jurisdiction to see on the basis of the materials that whether the trial will end in conviction or acquittal.

IN CORRUPTION CASES KNOWN SOURCES OF INCOME MEANS KNOWN SOURCES TO PROSECUTION

In State of Maharashtra v. Wasudeo Ramchandra Kaidalwar (1981) 3 SCC 199 the Hon‟ble Supreme Court observed that the expression "known sources of income" occurring in Section 5(1)(e) has a definite and legal connotation which in the context must be the sources known to the prosecution and not sources relied upon and known to the accused. Their Lordships observed: "23. Even after Section 5(3) was deleted and Section 5(1)(e) was enacted, the Supreme Court in the case of State of Maharashtra v. Wasudeo Ram Chandra Kaidalwar : (1981) 3 SCC 199 has observed that the expression "known sources of income" occurring in Section 5(1)(e) has a definite legal connotation which in the context must mean the sources known to the prosecution and not sources relied upon and known to the accused. Section 5(1)(e) , it was observed by the Supreme Court, casts a burden on the accused for it uses the words "for which the public servant cannot satisfactorily account". The onus is on the accused to account for and satisfactorily explain the assets.

MALAFIDES AGAINST THE INFORMANT ARE OF NO CONSEQUENCE

In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decide the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar, 1990 Supp SCC 686, State of Bihar v. P.P. Sharma,1992 Supp (1) SCC 222, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194, State of Kerala v. O.C. Kuttan, (1999) 2 SCC 651, State of U.P. v. O.P. Sharma, (1996) 7 SCC 705, Rashmi Kumar v. Mahesh Kumar Bhada, (1997) 2 SCC 397, Satvinder Kaur v. State (Govt. of NCT of Delhi), (1999) 8 SCC 728 and Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259.]"

RIGHT TO A SPEEDY TRIAL

RIGHT TO A SPEEDY TRIAL
The Hon'ble Supreme Court Constitution Bench in a case of Abdul Rehman Antulay v. R.S. Nayak, (1992)1 SCC 225. By giving anxious consideration on the right to a speedy trial, a constitutional guarantee formulated as many as 11 propositions to serve as guidelines to ensure speedy trial.
1. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
2. Right to Speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. That is how, this Court has understood this right and there is no reason to take a restricted view.
3. The concerns underlying the Right to speedy trial from the point of view of the accused are :
(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.
4. At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the Right to speedy trial is alleged to have been infringed, the first question to be put and answered is-who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not a frivolous. Very often these stays obtained on ex-parte representation.
5. While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on-what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
6. Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker "it cannot be said how long a delay is loo long in a system where justice is supposed to be swift but deliberate". The same ideal has been stated by White, J. in U.S. v. Ewell, 15 Lawyers Edn. 2nd 627, in the following words : the sixth amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than more speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an un-constitutional deprivation of rights depends upon all the circumstances. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become prosecution, again depends upon the facts of a given case.
7. We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an accussed's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in U.S.A., the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.
8. Ultimately, the court has to balance and weigh the several relevant factors-'balancing test' or 'balancing process'-and determine in each case whether the right to speedy trial has been denied in a given case.
9. Ordinarily speaking, where the court comes to the conclusion that Right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order-including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded-as may be deemed just and equitable in the circumstances of the case.
10. It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of Right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of U.S.A. too as repeatedly refused to fix any such outer time limit inspite of the Sixth Amendment. Nor do we think that not fixing any such outer limit in effectuates the guarantee of Right to speedy trial.
11. An objection based on denial of Right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.

P. Ramachandra Rao v. State of Karnataka, (2002) 2 SCC 578, the Hon'ble Supreme Court while holding that the guidelines laid down in Abdul Rehman Antulay case adequately take care of the right to speedy trial, observed as follows:- "guidelines laid down in A.R. Antulay case are not exhaustive but only illustrative. They are not intended to operate as hard-and-fast rules or to be applied as a straitjacket formula. Their applicability would depend on the fact situation of each case as it is difficult to foresee all the situations and no generalization can be made."

IT IS MANDATORY DUTY OF POLICE TO REGISTER FIR WHEN THERE IS COMPLAINT FROM SC/ST REGARDING THEIR LAND DEPRIVATIONS



PLAUSIBLE EXPLANATION ON THE SIDE OF THE PROSECUTION WITH REFERENCE TO THE INJURIES IS ENOUGH

Apex Court inKASHIRAM v. STATE OF M.P. (2002 S.C.C.(Cri)68) and RAM AVTAR v. STATE OF U.P. (2003 S.C.C.(Cri) 1404):
(I) Merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the evidence of prosecution witnesses ought not to be rejected outrightly.
(II) The court ought to make an effort at searching out the truth on the material available on record with a view to find out how much of the prosecution case was proved beyond reasonable doubt and the approach of rejecting the prosecution case in its entirety for nonexplanation of the injuries sustained by the accused persons is erroneous.
(III) It cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved.
(IV) When the prosecution evidence is clear, cogent and creditworthy, the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently the whole case.

PRINCIPLES SURROUNDING RIGHT OF PRIVATE DEFENCE

While dealing with Sections 96 and 96 of I.P.C. and Section 105 of the Evidence Act, some principles have been given for appreciation of the said question by the Supreme Court. These principles have been laid down in JAMES MARTIN v. STATE OF KERALA (2004 S.C.C.(Cri) 437) and KASHIRAM v. STATE OF M.P. (200 2 S.C.C.(Cri) 68)The following are the principles to be borne in mind:
(1) Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. In determining this question of fact, the court must consider all the surrounding circumstances.
(2) It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, then it is open to the court to consider such a plea.
(3) Under Section 105 of the Evidence Act, the burden of proof is on the accused, who sets up the plea of self-defence. In the absence of the said proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution.
(4) Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of selfdefence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
(5) The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence.
(6) A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed on its proper setting.
(7) To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to rerasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death.
(8) The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. I.P.C., available only when the circumstances clearly justify it. It should not be allowed to be pleaded or avail as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence expected to repel unlawful aggression and not as a retaliatory measure. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.

KARNATAKA LAND LAWS

CASE LAW ON LAND LAWS