offences – acts and omissions – evidences – the cognizance of the offence – a close inter se relationship …
offences – acts and
omissions – evidences – the cognizance of the offence – a close inter se
relationship …
Let us broadly look at the process of Criminal trial.
1. Ordinarily, in Criminal law, there are two ways by which the machinery of
law is set into motion against any person –
(a) By registering FIR (First Information Report) before Police u/s 154 or by
making Application u/s 156(3) to the Magistrate, thereby Magistrate directing
the Police to register the FIR, investigate the offence and file Police Report
in a time bound manner;
(b) By making Complaint3 before the concerned Magistrates Court u/s 200.
2. Any inquiry into the alleged commission of any criminal offence must
begin with the contemplation in our mind, the definition of “offence” as
contained in General Clauses Act, 1897. Section 3(38) of the said Act defines
it as "offence" shall mean any
“act or omission”” made punishable by any law for the time being in force”.
3. The word “act or omission” is defined in the said Act in section 3(2) as
– "act", used with reference to
an offence or a civil wrong, shall include a series of acts, and words which refer
to acts done extend also to illegal omissions.
4. Therefore, it would be safe to say, that “specific act and / or
omissions” attributed towards the person, may make the person liable for the
commission of an offence, and mere allegation is of no use to initiate any action
in law, against any person, unless vicarious liability is imposed by express
provision of any statute, like imposed in section 141 of Negotiable Instruments
Act, 1881, and in many other statutes, containing identical provision.
5. It may further be noted that even Indian Penal Code (IPC) does not
recognizes vicarious liability; and if any person is accused of any offence
under IPC, and who appears to have no direct involvement in the offence, he may
be brought within the purview of sections 34, 107, or 120A, which imposes
criminal liability on the basis of common intention, abetment or criminal
conspiracy; provided that requisite ingredients of respective section is duly
satisfied. (2008) 5
SCC 668; 2009 CrLJ 3185; (2006) 133 CC 83 (Delhi); (2002) 108 CC 1 (Mad);
(2010) 11 SCC 469; (1986) 59 CC 670 (Mad); (1998) 94 CC 384 (Raj); (1977) 47 CC
61 (Cal); (2008) 141 CC 935 (AP); (1998) 93 CC 329 (SC); CLJ 2014 Vol.2 Article – duties of directors; corporate frauds – pg.1
6. Then we may proceed to look at the substantive definition of the offence,
which spells out, as what bundle of “acts and omissions” would constitute the
commission of an offence.
7.
Moving
little further, the alleged acts and omissions attributed towards any person,
constitute “facts in issue” of the prosecution case; and to bring home, the
guilt of the person concerned, it is suffice or to say necessary, if the
existence of such “facts in issue” are “proved” by the prosecution, while
employing the principles spelled out in the Indian Evidence Act, 1872, with the
means of procedure, prescribed under code of criminal procedure, 1973. The definition of “proved” disproved” and
“not proved” in the Evidence Act, assumes greatest significance in any trial.
8.
Therefore,
every lawful and valid criminal complaint, whether u/s 156(3) or u/s 200 of
CrPC, 1973, or FIR u/s 154, must, as far as possible, aptly spell out the
bundle of “incriminating acts and omissions” attributed towards the person
concerned, wherein the said acts and omissions would constitute a particular
offence.
9.
Thereafter,
the investigation by the Police, or the Inquiry by the Magistrate comes into
picture, into the alleged acts or omissions, so as to collect the oral and
documentary evidences against the person, who is alleged for the commission of
an offence; or there may be cases where the complainant may have sufficient
evidence in his hand to proceed with the case himself and may file private
complaint u/s 200 of CrPC, 1973.
10. Where an FIR is registered, the Police carry out the investigation and
file Police Report u/s 173 of CrPC. The Police is empowered to arrest persons
named in the FIR, without the warrant, but in strict compliance to sections 41
to 60A of CrPC, 1973, and further in strict compliance to SC guidelines in that
behalf. When any arrest is made, the Accused must be produced within 24 hours
of his arrest to the nearest Magistrates Court. In serious offences of rape and
murder, the Police records the statement of main witnesses before the
Magistrate u/s 164 of CrPC, 1973.
11. In a private complaint u/s 200 of CrPC, the Magistrate who is taking
cognizance of an offence, is obliged to examine upon oath the complainant and
the witnesses present, if any, and the substance of such examination shall be
reduced to writing.
12. The paramount object of this examination of the complainant and his
witnesses u/s 200, is to secure evidences against the persons accused of; and
to further satisfy himself that there are sufficient material or evidences
against the persons who are charged with the commission of certain offences.
13. In cases where
Police files the Charge Sheet u/s 173 or the Magistrate taking cognizance of the
offence u/s 200 of CrPC, 1973, it would invariably imply at least three things
–
(a) the
existence of allegations of bundle of incriminating “acts and omissions”
against the person concerned;
(b) such bundle
of incriminating acts and omissions must constitute the “offence”;
(c) the
existence of such material / oral and documentary evidences, which “may” prove
the existence of the aforesaid incriminating acts and omissions.
11. Every “trial”, whether civil or criminal,
presupposes the existence of materials / evidences which are to be led by the
parties to prove their case, and when the party who is obliged to prove his
case, has no material / evidence, there can be no trial.
12. What constitutes evidence in a criminal
trial? It is –
(a) All relevant and admissible oral statements
made before the court by the persons who have “witnessed the alleged
incriminating acts and omissions” (sections 59 and 60 of the Evidence Act
should be looked into);
(b) All relevant and admissible documents,
thereby
demonstrating / suggesting the existence of the bundle of alleged incriminating
acts and omissions of the person, to which he is charged with. At the stage of
taking cognizance of the Police Report u/s 173 r/w 190, the Statements made
before the Police by witnesses or information elicited by the Police from
Accused does not constitute any evidence, nor the contents of FIR, per se, has
any evidentiary value. However, in a private complaint u/s 200, the documentary
evidence led or oral statements made before the Magistrate by the Complainant
or his witnesses does constitute “evidence”.
13. Any purported “set of evidence” /
materials, which fails to demonstrate the existence of alleged bundle of
incriminating “acts and omissions”, ceases to be of any evidentiary value, and
thus should result in the cessation of the said trial by way of acquittal; or
in the said circumstances, there shall be NO “cognizance of the offence” by the
Magistrate (a) on the basis of Police Report filed u/s 173 r/w section 190 of
CrPC, 1973, or (b) on the complaint filed u/s 200 of the said Act.
14. The
question may arise as what could be the nature of averments (of facts) in the
complaint, and the nature of depositions required before the court, which would
constitute “bundle of incriminating acts and omissions”.
15. Whereas
it would depend upon the facts of each case, legally speaking, a valid complaint
u/s 200 of CrPC, must aptly spell out the “facts” and “facts in issue”/
relevant facts; wherein the “facts” constitutes the principal allegations
against the accused person, and “facts in issue / relevant facts” constitutes
the evidences / materials against the said accused person.
16. In
this respect, it is useful to look into the definition of “fact”, “facts in
issue”, “evidence” provided u/s 3 of Evidence Act; and mandate of section 5 of
Evidence Act, which states that Evidence may be given in any suit or
proceedings of every fact in issue and that of such other facts as are
hereinafter declared to be relevant, and of no others.
S.3: "Evidence""Evidence" means
and includes
(1) all statements which the Court permits
or requires to be made before it by witnesses, in relation to matters of fact
under inquiry, such statements are called oral evidence;
(2) 6 [all documents including electronic records produced for the
inspection of the Court], such documents are called documentary evidence.
S.
5: Evidence may be given of facts in issue and relevant facts: Evidence may be given in any suit or
proceedings of the existence or non-existence of every fact in issue and of
such other facts as are hereinafter declared to be relevant, and of no others.
S.3: "Fact".-"Fact" means and
includes-
(1) any thing, state of things, or relation
of things, capable of being perceived by the senses;
(2)
any
mental condition of which any person is conscious.
S.3: "Facts
in issue".-The expression "facts in issue" means and includes- any fact
from which, either by itself or in connection with other facts, the existence,
non-existence, nature, or extent of any right, liability, or disability,
asserted or denied in any suit or proceeding, necessarily follows.
17. The “Fact”
implies– something that actually exists; an aspect of reality; an actual or
alleged event or circumstance, as distinguished from its legal effect,
consequence or interpretation; an evil deed; a crime. (Source: Blacks Law
dictionary). It
is also very essential to appreciate the distinction between “Facts” and “Facts
in issue”.
18. The “facts” are principal facts, which
constitutes the ingredients of the offence; and the trial court while
appreciating the evidence adduced (“facts in issue” / “relevant facts”) would
record a finding to the existence or non existence of the alleged “fact”; and
the said process may also be termed as “finding of fact” or a fact “proved /
disproved / not proved”.
19. “Facts in issue” are those facts by which the
existence of principal facts are sought to be established; are also known as
“predicate fact”, from which presumption or inference arises, also termed as
fundamental fact or evidentiary fact. Facts in issue may also be referred to as
Physical fact: a fact having a physical existence, such as finger print left at
a crime scene. Also known as Primary facts: a fact, which can be established by
direct testimony and from which inferences are made, leading to ultimate facts.
(Source: Blacks Law Dictionary)
20. Facts in issue are
those facts which are so closely and intimately attached to the “Issue”; and by
the natural inference from which the existence / non-existence of said “issue”
may be determined.
21. In criminal law, the
ingredients of the offence are the “issues” before the court, which the
prosecution must “prove”, with the aid of “facts in issue” and “relevant
facts”; and the ingredients of the offence are to be proved by adducing
evidence (oral and documentary) of “facts in issue” and of “relevant facts”.
22. Two kind of evidences may
be given – oral and documentary. Therefore,
it is necessary to appreciate the meaning and attribute of Oral evidence, as
set out in sections 59 and 60 of Evidence Act, 1872; and of documentary
evidence as set out in sections 3, 61, 62.
ORAL EVIDENCE
Section 59: Proof of facts by oral evidence
All facts,
except the contents
of documents or electronic records, may be proved by oral evidence.
Section 60: Oral evidence must be direct
Oral evidence
must, in all cases whatever, be direct; that is to say
If it refers to
a fact which could be seen, it must be the evidence of a witness who says he
saw it;
If it refers to
a fact which could be heard, it must be the evidence of a witness who says he
heard it;
If it refers to
a fact which could be perceived by any other sense or in any other manner, it
must be the evidence of a witness who says he perceived it by that sense or in
that manner;
If it refers to
an opinion or to the grounds on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds:
Provided that
the opinions of experts expressed in any treatise commonly offered for sale,
and the grounds on which such opinions are held, may be proved by the production
of such treatises if the author is dead or cannot be round, or has become
incapable of giving evidence, or cannot be called as a witness without an
amount of delay or expense which the Court regards as unreasonable:
Provided also
that, if oral evidence refers to the existence or condition of any material
thing other than a document, the Court may, if it thinks fit, require the
production of such material thing for its inspection.
Testimony
of a person which does not satisfy the above parameters may be labelled as
“Hearsay” evidence.
And,
according to principle of “Best Evidence” recognized u/ss 91 and 92 of Evidence
Act, oral evidence is not permitted in certain circumstances. Please refer link
below.
In this backdrop, the great utility of Section
297(2) of CrPC may be appreciated. The said section expressly mandates
that Affidavits shall state separately, such facts as the deponent is able to
prove from his own knowledge and such facts as he has reasonable ground to
believe to be true; and in the latter case, the deponent shall clearly state
the grounds of such belief. The profound object of Section 297(2) is to flush
out Complaints making frivolous allegations against a person.
DOCUMENTARY EVIDENCE
Section
3 of Evidence Act: Document means any matter expressed or
described upon any substance by means of letters, figures or marks, or by more
than one of those means, intended to be used, or which may be used, for the
purpose of recording that matter.
Documentary evidence may be given of the original
“document” or of the secondary evidence of the document. Therefore, let us
briefly look at relevant sections of Evidence Act.
Section 61: Proof of
contents of documents
The contents of
documents may be proved either by primary or by secondary evidence.
Section 62: Primary
evidence
Primary evidence
means the document itself produced for the inspection of the Court.
Explanation 1. Where a document
is executed in several parts, each part is primary evidence of the document;
Where a document
is executed in counterpart, each counterpart being executed by one or some of
the parties only, each counterpart is primary evidence as against the parties
executing it.
Explanation 2. Where a number
of documents are all made by one uniform process, as in the case of printing,
lithography, or photography, each is primary evidence of the contents of the
rest; but, where they are all copies of a common original, they are not primary
evidence of the contents of the original.
Illustration
A person is
shown to have been in possession of a number of placards, all printed at one
time from one original. Any one of the placards is primary evidence of the
contents of any other, but no one of them is primary evidence of the contents
of the original.
Secondary evidence (S.63, 65)
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Proof of Electronic evidence
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Proof of Hand writing / Signature
(S.47, 67, 73; S.311A CrPC)
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Proof of document 30 years old (S.90)
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Proof of meaning of ambiguous
documents (S.93 to 100)
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Proof of document which is attested
(S.68 to 71)
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Best evidence Rule. (S.91, 92)
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Judges power to compel the production
of any document (S.165)
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Public documents (S.74, 76, 77, 78,
79)
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How a Power of Attorney is said to be
duly proved. (S.85)
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Foreign Judicial Records (S.86)
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Exhibiting of documents
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23. Therefore, it can safely be argued that it is
incumbent upon the Complainant to set out in the Complaint, or to produce such
witnesses, having sufficient material and evidences in support of the
allegations made in the Complaint; and similarly, equally it is incumbent upon
the Magistrates to secure that there are sufficient material / evidence on
record against a person before he ventured to issue Summons against him.
24. Take for example, where a complainant alleges
cruelty against a husband and his relatives and the said complainant merely
reproduces the words of the section, without stating or adducing anything
further, in support of the allegation of cruelty; Can such complaint survive
the test of law, more particularly the mandate of section 204 of CrPC. The
answer is no, and the Complaint is liable to be dismissed u/s 203 of CrPC,
1973.
25. And when
there are sufficient evidence or material on record, to proceed against the
person charged with, the Magistrate takes the cognizance of the “offence” u/s
200 r/w 190 of CrPC, 1973, and may issue summons or warrant u/s 204, and set
the criminal machinery of law into motion. The mandate of section 204,
employing the expression “sufficient grounds to proceed” is salutary wherein it
sought to check frivolous and meritless cases to be nipped in the bud.
26. Sections 207 and 208 mandates that alongwith
the Summons, the copy of Chargesheet / Complaint must
be furnished to the accused.
27. On the returnable date of Summons, the Accused
must remain present, either in person or through Advocate. If he is appearing
through an Advocate, the Advocate must tender Exemption Application u/s 205 of
CrPC, 1973, before the Court, setting out the reasons for which the Accused
could not remain present on this day. In offences involving mere fines, the
Accused u/s 206 of CrPC, 1973, may plead guilty through his Advocate, and pay
the fine as directed by the Magistrate. If the Accused is present on this day,
the Magistrate will explain him the charges against him, and will ask him, if
he pleads guilty or not. If he pleads guilty, then he convicts him; and if he
pleads Not guilty, then he calls upon the prosecution to lead evidence.
28. Criminal trials may broadly be divided into 3
categories – State Prosecution or Private Complaint; Summons triable or Warrant
triable; and Magistrate triable or Sessions triable. Warrant triable are those
cases where the punishment for the offence to which a person is charged with,
is more than two years. In cases, where offences charged with, are both Summons
triable and Warrant triable, then procedure provided under Warrant triable is
followed. All offences to which the punishment prescribed is minimum 7 years ,
are exclusively Sessions triable.
Trial before Sessions Court – sections 225 to 237
Trial
before Magistrates on Police Report of Warrant cases – sections 238 to 243
Trial
before Magistrates Court on Private Complaint of Warrant cases
– sections 244 to 247
Trial
before Magistrates Courts of Summons cases – sections 251 to 259
Dismissal of Complaint for default –
section 256
Summary trials before Magistrates Courts
– sections 260 to 265
Record of Findings
Written Arguments
Other important Provisions of CrPC,
1973, which would be applicable in every Criminal trial
CRPC 274 to 281 RECORDING OF EVIDENCE
AGAINST ACCUSED
CRPC 273, 299, 317 WHEN EVIDENCE TO BE
TAKEN IN PRESENCE OR ABSENCE OF ACCUSED
CRPC 284 ISSUANCE OF COMMISSION FOR
EXAMINATIOM OF WITNESSES
CRPC 294 LEADING OF DOCUMENTARY EVIDENCE
S.310 INSPECTION OF SITE OF OFFENCE BY
JUDGES MAGISTRATES
CRPC 311 SUMMONS OR RECALL OF MATERIAL
WITNESSES
CRPC 309 ADJOURNMENTS
Section 311A: Power of Magistrate to
order person to give specimen signatures or handwriting
CRPC 313 STATEMENT OF ACCUSED AT THE
CONCLUSION OF PROSECUTION EVIDENCE
CRPC 319 ARRAYING OTHER PERSON AS
ACCUSED DURING TRIAL
CRPC 389 SUSPENSION OF SENTENCE RELEASE
ON BAIL PENDING THE APPEAL
CRIMINAL TRIAL CHIEF ATTRIBUTES
CANCELLATION OF BAIL
ACQUITTAL OF CO-ACCUSED
ACCOMPLICE S.306
ABSCONDENCE
Discharge
of accused – Sections 227, 239
COMPOUNDING OF OFFENCES S.320
ACCUSED CANNOT BE COMPELLED TO SELF
INCRIMINATE
TRANSFER OF TRIAL CASES
COMPENSATION TO VICTIM OF THE OFFENCE
S.357A
RIGHTS OF PRISONERS
CONFESSIONS
REVIEW S.362
RETRIAL ONLY IN CERTAIN CIRCUMSTANCES
S.460 TO 465
Thank you.
Sandeep Jalan
Advocate.
Legal issues !!
If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.
or
If you are looking for draft of any legal proceeding; or if you want to know the nature and attribute of any legal proceeding; or if you want to know the procedure followed in any legal proceeding; or if you want to know the grounds on which any order of the court / tribunal is challenged; or if you are facing any frivolous litigation.
Sandeep
Jalan
Advocate
Law
Referencer: https://www.litigationplatform.com/
Thank you.
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