ISSUE I

 Hitendra Vishnu Thakur v.State of Mahrastra, AIR 1994 SC 2623

the Legislature expects that the investigation must be completed with utmost promptitude but
where it becomes necessary to seek some more time for completion of the investigation, the
investigating agency must submit itself to the scrutiny of the public prosecutor in the first instance
and satisfy him about the progress of the investigation and furnish reasons for seeking further
custody of an accused. A public prosecutor is an important officer of the State Government and is
appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating
agency. He is an independent statutory authority.A public prosecutor is an important officer of the
State Government and is appointed by the State under the Code of Criminal Procedure. He is not a
part of the investigating agency. He is an independent statutory authority. The public prosecutor is
expected to independently apply his mind to the request of the investigating agency before
Submitting a report to the court for extension of time with a view to enable the investigating agency
to complete the investigation.

 M.C Mehta v.Union of India, (2007) 1 SCC 110

Facts: A project known as Taj Heritage Corridor Project was initiated by the Government of Uttar
Pradesh. One of the main purpose for which the same was undertaken was to divert the River
Yamuna and to reclaim 75 acres of land between Agra Fort and the Taj Mahal and use the reclaimed
land for constructing food plazas, shops and amusement activities. The said activities on the part of
the Government of Uttar Pradesh was brought to the notice of this Court. An exception thereto was
taken. A detailed inquiry was directed to be made by the Central Bureau of Investigation (CBI). Upon
consideration of the report submitted before it by CBI, this Court in its order dated 18.09.2003
directed it to register a First Information Report and make further investigation in accordance with
law. CBI investigated into the matter, including the roles played by Ms. Mayawati, the then Chief
Minister, and Mr. Naseemuddin Siddiqui, the then Minister for Environment, Government of Uttar
Pradesh. Investigations were also carried out against some officers.

CBI was later on asked to furnish a self-contained note as regards its findings against the erring
officers and holders of public posts. A detailed report was submitted by it. A question arose as to
what directions, if any, should be issued by this Court having regard to the conflict in opinions
expressed by different authorities of CBI in regard to Ms. Mayawati and Mr. Naseemuddin Siddiqui.

Judgement:

 Ram Ranjan Ray,(1914)42 Cal 422, 428.

Facts: Ram Ranjan Roy a zemindar in the Bankura district, Umesh Chandra Mookerjee, one of his
gomastas, and Madhab Mistri, his up-country peon, have been charged with offences which resulted
in the death of Dhan Kristo Laik and his nephew Banwari Laik, tenants of Ram Ranjan.  Ram Ranjan
was having Banwari assaulted by the aforesaid Nagdi for his not agreeing to pay rent at an enhanced
rate, Dhan Kristo Laik went to Ram Ranjan Baboo. Ram Ranjan Baboo and Umesh Mookerjee gave
orders to the up-country Nagdi saying mar salako, whereupon the Nagdi wounded Banwari Naik by
kicking him first and then striking him with a lathi on the head. Ram Ranjan Baboo has caused
grievous hurt to my uncle Dhan Kristo Naik by striking him on the head with the lathi which was in
his hand. The wounds on Banwari Naik and Dhan Kristo Naik are serious, There is no hope of their
lives.
Judgement: Sir Arthur Wilson's authority cannot be invoked in favour of the prosecution's
contention, and if, as we have been told, the conduct of the Public Prosecutor is in accordance with
the general mufassal practice, the sooner the practice is stopped the better. The practice, if it exists,
rests on a fundamental misconception of the purpose of a criminal trial and the duty of a Public
Prosecutor.

That purpose is not to support tit all costs a theory, but to investigate the offence and to determine
the guilt or innocence of the accused, and the duty of a Public Prosecutor is to represent not the
police, but the Crown, and his duty should be discharged by him fairly and fearlessly, and with a full
sense of the responsibility that attaches to his position. The guilt of innocence of the accused is to be
determined by the tribunals appointed by law and not according to the tastes of any one else.

 Reg.Kashinath Dinakar, (1871)8 BHC(Cr C)126, 153

 Mohambaram v. M.A. Jayavelu, AIR 1970 Mad 63

Facts:  in making the appointment of the first respondent to the office of the Public Prosecutor,
North Arcot Sessions Division, the State was not appointing a person who had been nominated bv
the Collector, or was any nominee of the Collector, under Rule 45 of the Criminal Rules of Practice.
The view to the contrary, taken by the learned Judge (Kailasam, J.) is clearly based on a
misconception of the actual facts of the record, as my learned brother has so plainly shown.

Judgement: Not merely is the office of Public Prosecutor a public office, but, in my view, it is a public
office of considerable significance, for the integrity and efficiency of the administration of criminal
justice. Any one appointed to this office must, in the interests of the public, have a high degree of
efficiency, and knowledge of the law of Crimes and the Criminal Procedure: he must have character
and integrity, that are irrepro-chable and above suspicion; he must have a sense of his duty to the
public and to the Court, as overriding considerations. As can be immediately realised, if these
requisites are lacking, the incumbent to such an office can gravely injure the administration of
criminal justice.

The ideal Public Prosecutor is not surely concerned with securing convictions, or with satisfying the
departments of the State Government, with which he has to be in contact. He must consider himself
as an agent of Justice, and, as my learned brother has pointed out, his discretion to apply to the
Court for its consent to withdraw from any prosecution, is a vital one. It is in the interests of the
State and the Public, that any selection to such an office must be based on the most pertinent
considerations, without prejudice or favour, and that only the best person or persons should be
appointed.

 Shrilekha Vidyarthi v. State of U.P., AIR 1991 SC537 (547)

Facts: The writ petitioners/appellants had been appointed as Government Counsel (Civil, Criminal,
Revenue) by the State of U.P. By its circular dated 6.2.1990 the State terminated the appointment of
all Government Counsel with effect from 28.2. 1990 irrespective of the fact whether the term of the
incumbent had expired or was subsisting. At the same time the Government directed preparation of
fresh panels to make appointments in place of existing incumbents. The appellants challenged the
validity of this State action, which was rejected by the High Court.

Judgement: Section 321 permits withdrawal from prosecution by the Public Prosecutor or Assistant
Public Prosecutor in charge of a case, with the consent of the Court, at any time before the judgment
is pronounced. This power of the Public Prose- cutor in charge of the case is derived from statute
and the guiding consideration for it, must be the interest of admin- istration of justice. There can be
no doubt that this func- tion of the Public Prosecutor relates to a public purpose entrusting him with
the responsibility of so acting only in the interest of administration of justice. In the case of Public
Prosecutors, this additional public element flowing from statutory provisions in the Code of Criminal
Procedure, undoubtedly. invest the Public Prosecutors with the at- tribute of holder of a public office
which cannot be whit- tled down by the assertion that their engagement is purely professional
between a client and his lawyer with no public element attaching to it.

 Vijay Shankar Mishra v. State of U.P. 1999 CrLJ 512 (ALL-DB)

Facts: On 6-8-1993 the petitioner was appointed as an Additional Public. Prosecutor, after
consultation with the High Court for a term up to 31-8-1994. On completion of that period, the term
of the petitioner was extended for further three years. At the relevant time one Mr. Ravindra Singh,
Advocate, was holding the office of the public prosecutor Mr. Ravindra Singh resigned somewhere in
the month of June 1995. In consequence thereof the petitioner was entrusted with the duties of the
Public Prosecutor and continued to discharge the same till his regular appointment. The State
Government recommended the name of the petitioner to the High Court for prior consultation
under Section 24 of the Code of Criminal Procedure, as existed prior to the deletion of the words
"after consultation with the High Court" by Act No. XVIII of 1991. The High Court accorded its
approval and thereafter on 1 -1-1996 the State Government appointed the petitioner as a Public
Prosecutor at Allahabad for a fixed term of three years. On 6-11-1997 the State Government
removed eight Law Officers including the petitioner by means of an order simpliciter. On the same
date respondent. No. 3 was appointed by the State Government as a Public Prosecutor in place of
the petitioner both the orders have been assailed in this writ petition.

Judgement: See shrilekha case

 V.K. Ghodwani v. State, AIR 1965 Cal 79

Facts: This Rule was issued by my learned brother Niyogi, J. on November 5, 1962, upon an
application for revision made in this Court on behalf of two accused persons V.K. Godhwani and
Bahadur Singh who along with another person named Sankdhari have been complained against by
Shri S.N. Banerjee, Assistant Collector of Customs and Superintendent, Preventive Service as having
committed alleged offences under Section 167(81) of the Sea Customs Act, 1878, and Section 5 of
the Imports and Exports (Control) Act, 1947. On July 12, 1962, an application was filed before the
learned Presidency Magistrate by a learned Advocate Mr. S.C. Roy Choudhury describing himself as
"Public Prosecutor" stating that he had been engaged by the State as the Public Prosecutor to
conduct the prosecution of that case and he wanted to withdraw from the prosecution 'through'
Sankdhari in that case in order that he may be examined as a prosecution witness in the case. This
petition was made under Section 494 of the Code of Criminal Procedure praying for consent of the
Court for such withdrawal necessary under that section of the Code of Criminal Procedure. That was
opposed on behalf of the other two accused persons and prayer was made on their behalf for an
adjournment to address the Court on the prayer made on behalf of the prosecution. The learned
Magistrate did not grant the adjournment.

Judgement :

 Pukh Raj v. State AIR 1965 Raj 196

Facts: On 2nd May, 1982 at about 8 in the morning accused Pukhraj, respondent before me, is said
to have been driving his car bearing No. MSW 105 which collided with a truck bearing No. RJZ 209
and thereby caused hurt to the occupants of his own car, namely, his wife, his son and his daughter.
For that reason a report was presented against the respondent in the Court of the Munsiff
Magistrate First Class, Nasirabad, who framed a charge on 2-1-1963 against the respondent under
Section 338, Penal Code (causing grievous hurt by an act endangering life or personal safety of
others) read with Section 279, Penal Code (rash driving on a public way). The case was then
adjourned to 12th March, 1983, but no prosecution witness was present. The Prosecuting Sub-
Inspector sought time and he was allowed an opportunity to produce the prosecution witnesses on
24th April, 1963 and on that date as well no prosecution witness was present. Accordingly the
learned Magistrate issued bailable warrants in the sum of Rs. 101/-each against the prosecution
witnesses Niranjansingh and Bachan Singh. Dr. Sharma, the medical witness was also summoned. On
the next date of hearing, namely, the 18th June, 1963 none of the prosecution witnesses was
present. The learned Magistrate by his order of the same date held that Section 251A of the Criminal
P.C. does not require a Magistrate to issue process for the prosecution witnesses or to grant time for
their production. It is the duty of the prosecution to produce its evidence and since ample
opportunity had already been given the prosecution was not entitled to any further indulgence and
as there was no evidence against the accused he acquitted him. It is against this judgment and order
of acquittal that the State has come up in appeal.

Judgement:

 Queen-Empress v. Murarji Gokuldas, (1889) 13 Bom 389, 390-91

Facts: In this case the offence charged was that of assault with a wooden shoe. The pleaders for the
prosecution and defence respectively agreed that if the principal witness would give his evidence on
an oath specially binding on him--to wit, on the gita--they would, under Sections 8 to 11 of the Oaths
Act, accept the evidence as conclusive proof of the matter stated. The witness took the agreed oath,
and then in substance stated there was not only no assault with a wooden shoe, but no assault at
all--only a taking hold by the hand. The Magistrate, without discussing the point of law now raised,
refused to consider this evidence as conclusive in fact, and found the accused guilty and fined him
Rs. 25.

Judgement: The term "party" in it technical sense finds no place in the Criminal Procedure Code.
Every ease is conducted by the Public Prosecutor, and if any private person instructs a pleader to
prosecute, that pleader acts under the direction of the Public Prosecutor (Section 493, Act X of
1882). The proceeding is always treated as a proceeding G between the Crown and the accused. The
Crown either proceeds itself, or lends the sanction of its name. The offence is dealt with as an
invasion of the public peace, and not a mere contention between the complainant and the accused.

ISSUE II
 Sarbananda Sonowal vs Union of India, (2005) 5 SCC 665, 709

Facts: This writ petition under Article 32 of the Constitution of India has been filed by way of public
interest litigation for declaring certain provisions of the Illegal Migrants (Determination by Tribunals)
Act, (Act No.39 of 1983) 1983 as ultra vires the Constitution of India, null and void and consequent
declaration that the Foreigners Act, 1946 and the Rules made thereunder shall apply to the State of
Assam. The second prayer made is to declare the Illegal Migrants (Determination by Tribunals) Rules,
1984 as ultra vires the Constitution of India and also under Section 28 of the aforesaid Act and,
therefore, null and void. Some more reliefs have been claimed which will be referred to at the
appropriate stage. The respondents to the writ petition are the Union of India and the State of
Assam.
Judgement: The word "aggression" is not to be confused only with "war". Though war would be
included within the ambit and scope of the word "aggression" but it comprises many other acts
which cannot be termed as war. In Kawasaki v. Bantahm S.S. Company 1938 (3) All ER 80, the
following definition of "war" as given in Hall on International Law has been quoted with approval :
"When differences between States reach a point at which both parties resort to force, or one of
them does acts of violence, which the other chooses to look upon as a breach of the peace, the
relation of war is set up, in which the combatants may use regulated violence against each other,
until one of the two has been brought to accept such terms as his enemy is willing to grant."

In Introduction to International Law by J.G. Starke (Chapter 18) it is said that the war in its
mostgenerally understood sense is a contest between two or more states primarily through their
armed forces, the ultimate purpose of each contestant or each contestant group being to vanquish
the other or others and impose its own conditions of peace. With the passage of time, the nature of
war itself has become more distinctly clarified as a formal status of armed hostility, in which the
intention of the parties, the so-called animus belligerendi may be a decisive factor. The modern war
may involve not merely the armed forces of belligerent states but their entire population. In Essays
on Modern Law of War by L.C. Green the author has said that in accordance with traditional
international law, "war is a contention between two or more States through their armed forces, for
the purpose of overpowering each other and imposing such conditions of peace as the victor
pleases.". The framers of the Constitution have consciously used the word "aggression" and not
"war" in Article 355.

 State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600

Facts: The genesis of this case lies in a macabre incident that took place close to the noon time on
13th December, 2001 in which five heavily armed persons practically stormed the Parliament House
complex and inflicted heavy casualties on the security men on duty. In the gun battle that lasted for
30 minutes or so, these five terrorists who tried to gain entry into the Parliament when it was in
session, were killed. Nine persons including eight security personnel and one gardener succumbed to
the bullets of the terrorists and 16 persons including 13 security men received injuries. revealed the
possible involvement of the four accused persons who are either appellants or respondents herein
and some other proclaimed offenders said to be the leaders of the banned militant organization
known as "Jaish-E-Mohammed".

Judgement: It needs to be noticed that even in international law sphere, there is no standard
definition of war. Prof. L.Oppenheim in his well-known treatise on International Law has given a
definition marked by brevity and choice of words. The learned author said: "war is a contention
between two or more States through their armed forces, for the purpose of overpowering each
other and imposing such conditions of peace as the victor pleases". Yoram Dinsteinan expert in
international law field analyzed the said definition in the following words:

"There are four major constituent elements in Oppenheim's view of War: (i) there has to be a
contention between at least two States (ii) the use of the armed forces of those States is required,
(iii) the purpose must be overpowering the enemy ( as well as the imposition of peace on the victor's
terms); and it may be implied, particularly from the words 'each other' and (iv) both parties are
expected to have symmetrical, although diametrically opposed, goals."

The learned author commented that Oppenheim was entirely right in excluding civil wars from his
definition. Mr. Dinstein attempted the definition of 'war' in the following terms: "War is a hostile
interaction between two or more States, either in a technical or in a material sense. War in the
technical sense is a formal status produced by a declaration of war. War in the material sense is
generated by actual use of armed force, which must be comprehensive on the part of at least one
party to the conflict."

On the analysis of the various passages found in the cases and commentaries referred to above,
what are the high-lights we come across? The most important is the intention or purpose behind the
defiance or rising against the Government. As said by Foster, "The true criterion is quo animo did the
parties assemble"? In other words the intention and purpose of the war-like operations directed
against the Governmental machinery is an important criterion. If the object and purpose is to strike
at the sovereign authority of the Ruler or the Government to achieve a public and general purpose in
contra-distinction to a private and a particular purpose, that is an important indicia of waging war.
Of course, the purpose must be intended to be achieved by use of force and arms and by defiance of
Government troops or armed personnel deployed to maintain public tranquility. Though the modus
operandi of preparing for the offensive against the Government may be quite akin to the
preparation in a regular war, it is often said that the number of force, the manner in which they are
arrayed, armed or equipped is immaterial. Even a limited number of persons who carry powerful
explosives and missiles without regard to their own safety can cause more devastating damage than
a large group of persons armed with ordinary weapons or fire arms. Then, the other settled
proposition is that there need not be the pomp and pageantry usually associated with war such as
the offenders forming themselves in battle-line and arraying in a war like manner. Even a stealthy
operation to overwhelm the armed or other personnel deployed by the Government and to attain a
commanding position by which terms could be dictated to the Government might very well be an act
of waging war.

 Rex vs. Andrew Hardie, 1820, 1 State Trials N.S., 610

 In 1820 LORD PRESIDENT HOPE in his summing up speech to the  jury   in  REX   VS.   ANDREW 

HARDIE,1820  1   STNS  610  explained   the 
distinction between levying a war and committing a riot in the following  words: 

"Gentlemen, it may be useful to say a few words on the distinction between  
levying war against the King and committing a riot. The distinction seems
to consist in this, although they may often run very nearly into each other.
Where the rising or tumult is merely to accomplish some private  purpose,  interesting  only   to
those   engaged   in   it,   and   not   resisting   or   calling   in question   the   King's   authority   or  
prerogative   then   the   tumult,   however   numerous or outrageous the mob
may be, is held only to be a riot. For  
example, suppose a mob to rise, and even by force of arms to break into a  
particular prison and rescue certain persons therein confined, or to oblige  
the Magistrates to set them at liberty or to lower the price of provisions in  
a certain market, or to tear down certain enclosures, which they conceive   to   encroach   on   the  
town's   commons.   All   such   acts,   though   severely  
punishable, and though they may be resisted by force, do not amount to  
treason. Nothing is pointed against either the person or authority of the   King".

"But,  gentlemen,  wherever  the rising  or insurrection  has for its object a  general purpose,  not

confined  to the peculiar  views  and  interests  of the  
persons concerned in it, but common to the whole community, and striking   directly  the  King's
authority  or  that of Parliament,  then  it assumes  the  
character of treason. For example, if mobs were to rise in different parts of  
the country to throw open all enclosures and to resist the execution of the  
law regarding enclosures wheresoever attempted, to pull down all prisons
or Courts of justice, to resist all revenue officers in the collecting of all or  
any of the taxes; in short, all risings to accomplish a general purpose, or to   hinder   a   general  
measure,   which   by   law   can   only   be   authorized   or  
prohibited by authority of the King or Parliament, amount to levying of  
war against the King and have always been tried and punished as treason.  
It is, therefore, not the numbers concerned, nor the force employed by the   people   rising   in  
arms,   but   the   object   which   they   have   in   view   that   determines   the   character   of   the  
crime,   and   will   make   it   either   riot   or  
treason, according as that object is of a public and general, or private and   local nature".

ISSUE 3

 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte, 3 W.L.R .1456
(H.L .1998)

Facts: Pinochet came to power in a violent 11 September 1973 coup which

deposed Socialist President Salvador Allende. His 17-year regime was responsible for
numerous human rights violations, a number of which committed as part of Operation Condor, an
illegal effort to suppress political opponents in Chile and abroad in coordination with foreign
intelligence agencies. Pinochet was also accused of using his position to pursue personal enrichment
through embezzlement of government funds, the illegal drug trade and illegal arms trade. The Rettig
Report found that at least 2,279 persons were conclusively murdered by the Chilean government for
political reasons during Pinochet's regime, and the Valech Report found that at least 30,000 persons
were tortured by the government for political reasons.

Pinochet was accused by a Spanish judge of torture, a crime under international law which can be
prosecuted in any country under the doctrine of universal jurisdiction. The Spanish judge faxed an
INTERPOL arrest warrant to London and Pinochet was arrested later that evening. Pinochet's lawyers
argued that as Pinochet was head of state at the time of the alleged crimes he was immune from the
jurisdiction of British courts. The Divisional Court ruled Pinochet had state immunity.

Judgement:It is a basic principle of international law that one sovereign state (the forum state) does
not adjudicate on the conduct of a foreign state. The foreign state is entitled to procedural immunity
from the processes of the forum state. This immunity extends to both criminal and civil liability.
State immunity probably grew from the historical immunity of the person of the monarch. In any
event, such personal immunity of the head of state persists to the present day: the head of state is
entitled to the same immunity as the state itself. The diplomatic representative of the foreign state
in the forum state is also afforded the same immunity in recognition of the dignity of the state which
he represents. This immunity enjoyed by a head of state in power and an ambassador in post is a
complete immunity [*202] attaching to the person of the head of state or ambassador and rendering
him immune from all actions or prosecutions whether or not they relate to matters done for the
benefit of the state. Such immunity is said to be granted ratione personae.

 Democratic Republic of the Congo v Belgium, [2000] ICJ Rep 182

Facts: In 1993, the Belgian Parliament voted a "law of universal jurisdiction" to allow it to judge

people accused of war crimes, crimes against humanity or genocide. In 2001, four people
from Rwanda were convicted and given sentences from 12 to 20 years' imprisonment for their
involvement in 1994 Rwandan genocide. There was quickly an explosion of suits deposed.

An arrest warrant issued in 2000 under this law against Abdoulaye Yerodia Ndombasi, Minister of

Foreign Affairs of the Democratic Republic of the Congo, was challenged before the International
Court of Justice in the case entitled Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo v. Belgium).

Judgement: The Court states that, in customary international law, the immunities accorded to
Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effective
performance of their functions on behalf of their respective States. In order to determine the extent
of these immunities, the Court must, therefore, first consider the nature of the functions exercised
by a Minister for Foreign Affairs. After an examination of the nature of those functions the Court
concludes that they are such that, throughout the duration of his or her office, a Minister for Foreign
Affairs when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity
and inviolability protect the individual concerned against any act of authority of another State which
would hinder him or her in the performance of his or her duties. In this respect, no distinction can be
drawn between acts performed by a Minister for Foreign Affairs in an "official" capacity and those
claimed to have been performed in a "private capacity", or, for that matter, between acts performed
before the person concerned assumed office as Minister for Foreign Affairs and acts committed
during the period of office. Thus, if a Minister for Foreign Affairs is arrested in another State on a
criminal charge, he or she is clearly thereby prevented from exercising the functions of his or her
office.

The Court further observes that the rules governing the jurisdiction of national courts must be
carefully distinguished from those governing jurisdictional immunities. The immunities under
customary international law, including those of Ministers for Foreign Affairs, remain opposable
before the courts of a foreign State, even where those courts exercise an extended criminal
jurisdiction on the basis of various international conventions on the prevention and punishment of
certain serious crimes.

 Regina v. Horseferry Road Magistrates’ Court ex P. Bennett,[1993] 3 All England Report

(House of Lords)

The High Court may look at how an accused person was brought within the jurisdiction when
examining a question about that person’s detention. It is axiomatic ‘that a person charged with
having committed a criminal offence should receive a fair trial and that, if he cannot be tried fairly
for that offence, he should not be tried for it at all.’ Proceedings may be stayed in the exercise of the
judge’s discretion not only where a fair trial is impossible but also where it would be contrary to the
public interest in the integrity of the criminal justice system that a trial should take place. It was
proper to order a stay of a prosecution (Lord Oliver of Aylmerton dissenting).
Lord Lowry: ‘the court, in order to protect its own process from being degraded and misused, must
have the power to stay proceedings which have come before it and have only been made possible by
acts which offend the court’s conscience as being contrary to the rule of law. Those acts by providing
a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the
proposed trial and, if tolerated, will mean that the court’s process has been abused.’

and ‘It would, I submit, be generally conceded that for the Crown to go back on a promise of
immunity given to an accomplice who is willing to give evidence against his confederates would be
unacceptable to the proposed court of trial, although the trial itself could be fairly conducted.’
Lord Griffiths said: ‘Your Lordships are now invited to extend the concept of abuse of process a stage
further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor
could it be suggested that it would have been unfair to try him if he had been returned to this
country through extradition proceedings. If the court is to have the power to interfere with the
prosecution in the present circumstances it must be because the judiciary accept a responsibility for
the maintenance of the rule of law which embraces a willingness to oversee executive action and to
refuse to countenance behaviour that threatens either basic human rights or the rule of law.

My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal
law. The great growth of administrative law during the latter half of this century has occurred
because of the recognition by the judiciary and Parliament alike that it is the function of the High
Court to ensure that executive action is exercised responsibly and as Parliament intended. So also
should it be in the field of criminal law and if it comes to the attention of the court that there has
been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon
it. . .

The courts, of course, have no power to apply direct discipline to the police or the prosecuting
authorities, but they can refuse to allow them to take advantage of abuse of power by regarding
their behaviour as an abuse of process and thus preventing a prosecution.’ 

 R v. Hartley [1978] 2 NZLR 199, (New Zealand Court of Appeal) 216

In this case New Zealand Police had not applied to extradite one of the defendents, Bennett, from
Australia. They had simply asked Melbourne Police to put him on the plane back to New Zealand, a
request with which the police had complied. In asking what effect this might have on Bennett,s
subsequent prosecution and conviction in NewZealand, the Court held that this was not a question
that went to a jurisdiction of the court. Rather, it was a question of the court’s discretion.
Distinguishing Sinclair, the court said that although the conduct of the foreign state would not
impugn its trial process, the position was different ‘if the courts faced, as in this case, by a deliberate
decesion of one of the executive arms of the govt. In a direct way the very illegality that has had a
person returned to this country. It held that the means by which Bennett had been brought back to
trail was ‘so much in conflict with one of the most imp. Principles of rule of law that his conviction
would have to be set aside. WoodHouse P subsequently emphasised that ‘It is the function and
purpose of the courts as a seperate part of the constitutional machinery that must be protected
from abuse rather than the particural process that are used that are used within the machine.

 State v Ebrahim, [1991] 2 SA 533 (App Div)

Facts: In Ebrahim, two men identifying themselves as South African police officers seized a South
African member of the military wing of the anti-apartheid African National Congress in Swaziland in
December 1986. Ebrahim was bound, gagged, blindfolded, and brought to Pretoria and charged with
treason. Swaziland did not protest this abduction. Ebrahim argued that his abduction and rendition
violated international law, and that the trial court was thus incompetent to try him because
international law was a part of South African law.

Judgement: Invoking Roman-Dutch common law, the Court concluded that it lacked jurisdiction to
try a person brought before it from another state by means of state-sponsored abduction. These
common law rules embodies fundamental legal principles, including "the preservation and
promotion of human rights, friendly international relations, and the sound administration of justice."
The Court continued:

The individual must be protected from unlawful arrest and abduction, jurisdictional boundaries must
not be exceeded, international legal sovereignty must be respected, the legal process must be fair
towards those affected by it, and the misuse thereof must be avoided in order to protect and
promote the dignity and integrity of the judicial system. This applies equally to the State. When the
State is itself party to a dispute, as for example in criminal cases, it must come to court "with clean
hands" as it were. When the State is itself involved in an abduction across international borders as in
the instant case, its hands cannot be said to be clean.

The Court also noted that "the abduction was a violation of the applicable rules of international law,
that these rules are part of [South African] law, and that this violation of these rules deprived the
trial court competence to hear the matter." In a subsequent civil proceeding, Ebrahim was awarded
compensation for the kidnapping.

 Levinge v. Director of Custodial, 9 NSWLR (Court of Appeal 1987) 546

Facts:

Judgement: In this case the New South Wales court of appeals considered the Eichmann case and
relevant Anglo-American precedents and stated "[w]here a person, however unlawfully, is brought
into the jurisdiction and is before a court in this State, that court has undoubted jurisdiction to deal
with him or her. But it also has discretion not to do so, where to exercise its discretion would involve
an abuse of the court's process. [ S]uch conduct may exist, including wrongful and even unlawful
involvement in bypassing the regular machinery for extradition and participation in unauthorized
and unlawful removal of criminal suspects from one jurisdiction to another."

 Behanan v. State (Zimbabwe Supreme Court)

Facts: The appellant had planned with others to assist convicted prisoners serving sentences in
Zimbabwe to escape. The appellant and an accomplice tried to enter Zimbabwe on 27 June 1988 in
order to carry out the plot. However, at the border post, when it became clear that customs officials
were intending to search their vehicle, they absconded and crossed the Zambezi River into
Botswana, although other conspirators attempted to carry out the plot in Zimbabwe. The appellant
was arrested by the Botswana Police on 28 June. During his detention by the Botswana Police, he
was not taken before a court or given access to legal representation. On 2 July, the Botswana Police
handed the appellant over to the Zimbabwe Police at the border. There was no extradition treaty
between Botswana and Zimbabwe. The appellant was charged with having attempted to commit an
act of terrorism or sabotage by conspiring with others to release convicted prisoners from
Zimbabwean prisons.

Judgement: Adter a full review of the authorities Mtambanengwe J epressed what he considered to
be the principle derivable therefrom in these words: ‘while the court has jurisdiction to try a person
properly brought before it regardless of the means used to secure his presence before the court
nevertheless the Court can decline to exercise that jurisdiction in respect of a person irregularly or
illegally brought before it and can decline to exercise jurisdiction as a mark of disapproval of the
abuse of process.’

It is apparent that the learned judge trod a somewhat middle path. He adopted the conservative
approach that no matter the circumstances under which a fugitive, accused ofthe commission ofa
crime, is brought within the jurisdiction, even if his removal from the state of refuge amounted to a
breach of sovereignty, it is the duty of the court to ensure that he is amenable to justice. But he
considered that by virtue ofits inherent power the court has a discretion to refuse the exercise
ofjurisdiction, or to refuse to allow the accused person to stand trial, on the ground that grave
impropriety attached to the manner in which he was brought within the territorial boundaries.
Although on the particular facts of this case, as I shall endeavour to show, it is strictly unnecessary to
decide whether the first proposition enunciated by the learned judge is correct, namely that courts
in Zimbabwe are enjoined to try anyone found within the jurisdiction and lawfully arrested, no
matter how ihis iie Wind prcscncc was secured, I deem it desirable to do so.

 United States v. Toscanino, 500 F.2d 267 (1974)

Facts: Francisco Toscanino appeals from a narcotics conviction entered against him in the Eastern
District of New York by Chief Judge Jacob Mishler after a jury trial. Toscanino was sentenced to 20
years in prison and fined $20,000. He contends that the court acquired jurisdiction over him
unlawfully through the conduct of American agents who kidnapped him in Uruguay, used illegal
electronic surveillance, tortured him and abducted him to the United States for the purpose of
prosecuting him here. We remand the case to the district court for further proceedings in which the
government will be required to respond to his allegations concerning the methods by which he was
brought into the Eastern District and the use of electronic surveillance to gather evidence against
him.

Judgement: 'Regard for the requirements of the Due Process Clause 'inescapably imposes upon this
Court an exercise of judgment upon the whole course of the proceedings (resulting in a conviction)
in order to ascertain whether they offend those canons of decency and fairness which express the
notions of justice of English-speaking peoples even toward those charged with the most heinous
offenses.'

'Applying these general considerations to the circumstances of the present case, we are compelled
to conclude that the proceedings by which this conviction was obtained do more than offend some
fastidious squeamishness or private sentimentalism about combatting crime too categorically. This is
conduct that shocks the conscience . . ..

'It has long since ceased to be true that due process of law is heedless of the means by which
otherwise relevant and credible evidence is obtained. This was not true even before the series of
recent cases enforcing the constitutional principle that the States may not base convictions upon
confessions, however much verified, obtained by coercion. These decisions are not arbitrary
exceptions to the comprehensive right of States ot fashion their own rules of evidence for criminal
trials. They are not sports in our constitutional law but applications of a general principle. They are
only instances of the general requirement that States in their prosecutions respect certain decencies
of civilized conduct. Due process of law, as a historic and generative principle, precludes defining,
and thereby confining, these standards of conduct more precisely than to say that convictions
cannot be brought about by methods that offend a 'sense of justice." 342 U.S. 169, 172-173.

Decency, security and liberty alike demand that government officials shall be subjected to the same
rules of conduct that are commands to the citizen. In a government of laws, existence of the
government will be imperilled if it fails to observe the law scrupulously. Our Government is the
potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.
Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites
every man to become a law unto himself; it invites anarchy. To declare that in the administration of
the criminal law the end justifies the means-- to declare that the government may commit crimes in
order to secure the conviction of a private criminal-- would bring terrible retribution. Against that
pernicious doctrine this court should resolutely set its face.' 277 U.S. at 484-485.

Society is the ultimate loser when, in order to convict the guilty, it uses methods that lead to
decreased respect for the law. See United States v. Archer, supra at 677.

 Connelly v DPP [1964] AC 1254

It was a landmark trial in the United Kingdom where the House of Lords ruled regarding double

jeopardy in British law. It was ruled that criminal proceedings could be stayed if an "abuse of
process" violated the "standards of fairness" and hampered the rights of the defendant. Connelly
had been tried for murder, while in the commission of a robbery, and was found guilty despite a
defence revolving around a lack of intent for murder. Connelly's case was then heard at the Court of
Appeal, where his conviction was overturned and Connelly was acquitted of murder and instead
indicted for robbery. Connelly pleaded autrefois acquit, or double jeopardy, however argument was
rejected and he was convicted. It was ruled that the offences of murder while committing robbery,
and robbery, differed enough "in fact and in law" for double jeopardy to not apply. The Court
possesses an inherent jurisdiction at common law to control its own proceedings: ‘There can be no
doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to
enable it to act effectively within such jurisdiction. I would regard them as powers which are
inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice
and to suppress any abuses of its process and to defeat any attempted thwarting of its process.’

ISSUE 4
 Chaman Lal v.State of Punjab, (2009) 11 SCC 721

Facts: Contention was based on a General Power of Attorney in which only one clause was made
that person holding it can do anything lawful. He contracted to sell the property and sale deed was
executed and possession was given. But the original party said that person holding the GPA was not
entitled to sell the property and they initiated a suit and passed an order for dispossessing
complainants. Complanants after pendency of this original suits for 6 years filed an FIR under section
420, 468 and 120B.

Judgement: The essence of a criminal conspiracy is the unlawful combination and ordinarily the
offence is complete when the combination is framed. From this, it necessarily follows that unless the
statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object
of the combination need not be accomplished, in order to constitute an indictable offence. Law
making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by
a combination of the means. The encouragement and support which co-conspirators give to one
another rendering enterprises possible which, if left to individual effort, would have been
impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The
conspiracy is held to be continued and renewed as to all its members wherever and whenever any
member of the conspiracy acts in furtherance of the common design. (See American Jurisprudence,
Vol. II, Sec. 23, p. 559.) For an offence punishable under Section 120-B, the prosecution need not
necessarily prove that the perpetrators expressly agreed to do or caused to be done an illegal act;
the agreement may be proved by necessary implication. The offence of criminal conspiracy has its
foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention
of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So
long as such a design rests in intention only, it is not indictable. When two agree to carry it into
effect, the very plot is an act in itself, and an act of each of the parties, promise against promise,
actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use
of criminal means.

 Bimbadhar Pradhan (1956) Cut 409 SC

 Facts: The prosecution case is that in furtherance of the Grow More Food Scheme initiated by
Government it was decided to subsidize the supply of oil cake to agriculturists with a view to
augmenting the production of food crops. Cultivators were to be supplied this variety of manure at
Rs. 4-4-0 per maund, though the Government had to spend Rs. 7-12-0 per maund. The appellant
entered into a conspiracy with his subordinate staff including the agricultural sub- overseers
aforesaid to misappropriate the funds thus placed at their disposal for the procurement and supply
of oil cake to cultivators. To bolster up the quantity of oil cakes to be procured, they showed false
transactions of purchase and distribution thereof and falsified accounts, vouchers, etc. Thus they
were alleged to have misappropriated the sum of Rs. 4,943-4-0 of Government money. The
appellant and four others were placed on their trial before the Assistant Sessions Judge of
Sambalpur for offences under sections 120-B, 409,477-A and 109, Indian Penal Code with having
committed the offences of criminal conspiracy, criminal breach of trust in respect of Government
property, and falsification of accounts with a view to defraud the Government. 

Judgement: See Chaman lal

 E.G. Barsay, AIR 1961 SC 1762

Facts: The appellant and five other persons, three of Them not being public servants, were charged
with criminal conspiracy to dishonestly or fraudulently misappropriate or convert to their own use
military stores and with dishonestly and fraudulently misappropriating the same. The accused
entered into a conspiracy to smuggle out some of the said stores(There was a depot called the Dehu
Vehicle Depot in which military stores were kept.) and to make an illegal gain by selling them at
Bombay through accused No. 4.

Judgement: The gist of the offence is an agreement to break the law. The parties to such an
agreement will be guilty of criminal con- spiracy, though the illegal act agreed to be done has not
been done. So too, it is not an ingredient of the offence that all the parties should agree to do a
single illegal act. It may comprise the commission of a number of acts.

 Yogesh v. State of Maharashtra, AIR 2008 SC 2991

Facts: Hema and Kunal(deceased) fell in love. They feared that their families would oppose there
relationship so they eloped. After some time they came back and thee marraige was annulled. Kunal
fixed his marraige with another girl. One day he was found dead on mahabaleshwar road.

Judgement: Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal
act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to
prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and
its objective can be inferred from the surrounding circumstances and the conduct of the accused.
But the incriminating circumstances must form a chain of events from which a conclusion about the
guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive
offence and renders the mere agreement to commit an offence punishable even if an offence does
not take place pursuant to the illegal agreement.

 Param Hans Yadav v. State of Bihar, (1987) 2 SCC 197

Facts: Mahesh Narain Prasad Sharma, the victim, was a Member of the Indian Administrative Service
and was posted as Collec- tor and District Magistrate of Gopalganj District in the State of Bihar on
the 11th of April, 1983 Mahesh Narain went to his court to work in the morning and after he finished
his work, both he and his brother, P.W.62, who was waiting in the chamber of the victim started
going down from the first floor of the Collectorate to reach the portico where the Collector's car was
parked. Mahesh Prasad was followed by his Orderly-Peon, P.W. 19, and his brother one after the
other. When the deceased came on the landing, Yadav who was following them suddenly took out a
bomb from the bag which he held and threw it at the Collector. The bomb exploded with a loud
noise and as a result of the burst Mahesh Prasad fell rolling on the ground and part of his body was
blown off. Yadav jumped off from the stairs through the side railing but was chased by P.W.62 and
others and was appre- hended near a fruit stall. He readily confessed to his guilt but gave out that he
had committed the ghastly murder at the behest of appellant Tripathi. According to Yadav, Tripathi
had prevailed upon him to kill the Collector by way of retaliation for demolishing the Ashram after
getting Tripa- thi detained in jail. Yadav further maintained that Sadiq, one of the accused persons,
had supplied the bomb to him. P.W.14, the Inspector of Police, who was attracted to the scene by
the sound of the bomb burst recorded the first information given by P.W.62, arrested Yadav and
sent him to Gopalganj Police Station.

Judgement:  It is true as argued by Mr. Jai Narain for the State that it is difficult to support the
charge of conspiracy with direct evidence in every case but if the prosecution relies upon
circumstantial evidence, a clear link has to be established and the chain has to be completed,
otherwise it would indeed be hazardous to accept a part of the link as a complete one and on the
basis of such incomplete evidence, the allegation of conspiracy cannot be accepted. 

 State (NCT of Delhi) v. Navjot Sandhu

Judgement: Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is
seldom an open affair. Usually both the existence of the conspiracy and its objects have to be
inferred from the circumstances and the conduct of the accused. (Per Wadhwa, J. in Nalini's case
(supra) at page

516). The well known rule governing circumstantial evidence is that each and every incriminating
circumstance must be clearly established by reliable evidence and "the circumstances proved must
form a chain of events from which the only irresistible conclusion about the guilt of the accused can
be safely drawn and no other hypothesis against the guilt is possible." G.N. Ray, J. in Tanibeert
Pankaj Kumar [1997 (7) SCC 156], observed that this Court should not allow the suspicion to take the
place of legal proof. As pointed out by Fazal Ali, J, in V.C. Shukla vs. State [1980 (2) SCC 665], " in
most cases it will be difficult to get direct evidence of the agreement, but a conspiracy can be
inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement
between two or more persons to commit an offence." In this context, the observations in the
case Noor Mohammad Yusuf Momin vs. State of Maharashtra (AIR 1971 SC 885) are worth nothing:

"in most cases proof of conspiracy is largely inferential though the inference must be founded on
solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other
factors, constitute relevant material."

A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate
for connecting the accused in the offence of criminal conspiracy. The circumstances before, during
and after the occurrence can be proved to decide about the complicity of the accused. [vide  Esher
Singh vs. State of A.P., 2004 (11) SCC 585].
Lord Bridge in R. vs. Anderson [1985 (2) All E.R. 961] aptly said that the evidence from which a jury
may infer a criminal conspiracy is almost invariably to be found in the conduct of the parties. In (AIR
1945 PC 140), the Privy Council warned that in a joint trial care must be taken to separate the
admissible evidence against each accused and the judicial mind should not be allowed to be
influenced by evidence admissible only against others. "A co- defendant in a conspiracy trial",
observed Jackson, J, "occupies an uneasy seat" and "it is difficult for the individual to make his own
case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather
are flocked together." [vide Alvin Krumlewitch vs. United States of America, (93 L.Ed. 790). In Nalini's
case, Wadhwa, J pointed out, at page 517 of the SCC, the need to guard against prejudice being
caused to the accused on account of the joint trial with other conspirators. The learned Judge
observed that "there is always difficulty in tracing the precise contribution of each member of the
conspiracy but then there has to be cogent and convincing evidence against each one of the accused
charged with the offence of conspiracy". The pertinent observation of Judge Hand in U.S. vs. Falcone
(109 F. 2d,579) was referred to: "This distinction is important today when many prosecutors seek to
sweep within the dragnet of conspiracy all those who have been associated in any degree whatever
with the main offenders." At paragraph 518, Wadhwa, J, pointed out that the criminal responsibility
for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. The
learned Judge then set out the legal position regarding the criminal liability of the persons accused
of the conspiracy as follows: "One who commits an overt act with knowledge of the conspiracy is
guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other
conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he
intends to take no active part in the crime."

 KodurthimaReddi, In Re, AIR 1957 AP 758

 Kehar singh v.State (Delhi administration), AIR 1988 SC 1883

Facts: The facts brought out during investigation are that Smt. Indira Gandhi had her residence in
New Delhi at No. 1, Safdarjung Road. Her office was at No. 1, Akbar Road which was a bungalow
adjoining her residence. In fact the two bungalows had been rolled into one by a campus with a
cemented pathway about 8 ft. wide leading from the residence to the office and separated by a
Sentry gate which has been referred to as the TMC Gate and a sentry booth nearby. Smt. Indira
Gandhi had gone on a tour to Orissa and returned to New Delhi on the night of 30th October, 1984.
At about 9 A.M. On the fateful day i.e. 3Ist October, 1984 Smt. Gandhi left her residence and
proceeded towards the office along the cemented path. When she approached the TMC Gate and
was about 10 or 11 ft. away therefrom she was riddled with a spray of bullets and she fell
immediately. She was removed to All India Institute of Medical Sciences ('AllMS' for short) but to no
avail.

Judgement: But the Court must enquire whether the two persons are independently pursuing the
same end or they have come together to the pursuit of the unlawful object. The former does not
render them conspirators, but the latter is. It is however, essential that the offence of conspiracy
requires some kind of physical manifestation of agreement. The express agreement, however, need
not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to Prove the
actual words of communication. The evidence as to transmission of thoughts sharing the unlawful
design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand (Criminal Law
Review I974, 297 at 299 explains the limited nature of this proposition:

"Although it is not in doubt that the offence requires some physical manifestation of agreement, it is
important to note the limited nature of this proposition. The law does not require that the act of
agreement take any particular form and the fact of agreement may be communicated by words or
conduct. Thus, it has been said that it is unnecessary to PG NO 185 prove that the parties "actually
came together and agreed in terms" to pursue the unlawful object; there need never have been in
express verbal agreement, it being sufficient that there was "a tacit understanding between
conspirators as to what should be done."

I share this opinion, but hasten to add that the relative acts of conduct of the parties must be
conscientious and clear to mark their concurrence as to what should be done. The concurrence
cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of
coherence. The innocuous, innocent or inadvertent events and incidents should not enter the
judicial verdict. We must thus be strictly on our guard.

BURDEN OF PROOF
 Woolmington v. DPP, [1935] AC 462

Facts: The appellant had been convicted of the murder of his wife. She had left him and returned
to live with her mother. He went to the house. He said he intended to frighten her that he would
kill himself if she did not return. He wired a shotgun to allow this, and wrote a suicide note, but
when attempting to show what he intended, the gun went off killing her. He denied intending to
harm her. The judge directed the jury ‘The killing of a human being is homicide, however he may
be killed, and all homicide is presumed to be malicious and murder, unless the contrary appears
from circumstances of alleviation, excuse, or justification. ‘In every charge of murder, the fact of
killing being first proved, all the circumstances of accident, necessity, or infirmity are to be
satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him;
for the law presumeth the fact to have been founded in malice, unless the contrary appeareth.” 

Held: The ‘golden thread’ of British justice is that it is for the prosecution to prove an offence
against the defendant. ‘Juries are always told that, if conviction there is to be, the prosecution
must prove the case beyond reasonable doubt.’ and ‘Throughout the web of the English Criminal
Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the
prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also
to any statutory exception. If at the end of and on the whole of the case, there is a reasonable
doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the
prisoner killed the deceased with a malicious intention, the prosecution has not made out the
case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the
principle that the prosecution must prove the guilt of the prisoner is part of the common law of
England and no attempt to whittle it down can be entertained.’ However the rule is subject to
exceptions created by statute.
Viscount Sankey LC: ‘If at any period of a trial it was permissible for the judge to rule that the
prosecution had established its case and that the onus was shifted on the prisoner to prove that
he was not guilty and that unless he discharged that onus the prosecution was entitled to
succeed, it would be enabling the judge in such a case to say that the jury must in law find the
prisoner guilty and so make the judge decide the case and not the jury, which is not the common
law.’

On appeal to the Court of Criminal Appeal, Woolmington argued that the trial judge misdirected
the jury. Lord Justice Avory refused leave to appeal, relying on a passage of Foster's Crown
Law (1762):
"In every charge of murder, the fact of killing being first proved, all the circumstances of accident,
necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the
evidence produced against him; for the law presumeth the fact to have been founded in malice,
until the contrary appeareth. And very right it is, that the law should so presume. The defendant
in this instance standeth upon just the same foot that every other defendant doth: the matters
tending to justify, excuse, or alleviate, must appear in evidence before he can avail himself of
them."
The Attorney-General (Sir Thomas Inskip) then gave his fiat allowing the case to be appealed to
the House of Lords.
The issue brought to the House of Lords was whether the statement of law in Foster's Crown
Law was correct when it said that if a death occurred, it is presumed to be murder unless proved
otherwise.
Delivering the judgment for a unanimous Court, Viscount Sankey made his famous "Golden
thread" speech:
"Throughout the web of the English Criminal Law one golden thread is always to be seen
that it is the duty of the prosecution to prove the prisoner's guilt subject to... the defence
of insanity and subject also to any statutory exception. If, at the end of and on the whole
of the case, there is a reasonable doubt, created by the evidence given by either the
prosecution or the prisoner... the prosecution has not made out the case and the prisoner
is entitled to an acquittal. No matter what the charge or where the trial, the principle that
the prosecution must prove the guilt of the prisoner is part of the common law of England
and no attempt to whittle it down can be entertained."
Sankey spent much time contrasting the position under the criminal law at the time when the
decisions relied upon in Foster's Crown Law were handed down, and the present period in
time. Previously a person accused of a crime was not even entitled to be represented in
court unless they were charged with a felony. Moreover it was not until 1898 that the
accused was even permitted to give evidence on their own behalf in a criminal trial.
 R v. Lobell, [1957] 1 QB 547
The court considered the different standards of proof required for civil and criminal accusations of
assault. 
Held: The onus of proving self-defence as a defence to murder, or a defence of ‘killing se
defendendo’, was on the accused. 
Lord Goddard CJ added: ‘It is a defence of justification, or, to put it in terms of pleading, a
confession and avoidance. In civil cases this plea is always to be proved by the party setting it
up; and it is perhaps not altogether easy to see why it should not be so in a criminal case, more
especially as when self-defence is set up the facts must often be known only to the defendant
who relies upon it.’ 
 Chan Kau v. R, [1955] AC 206
References: [1955] AC 206, [1955] 1 All ER 266, [1955] 2 WLR 192 
Coram: Lord Tucker 
In a criminal trial for assault, once the evidence is shown to have raised a possible defense of
self-defense, the burden is on the prosecution to prove that the defendant intended to apply
unlawful force to the victim: ‘Even under the common law if, but only if, the evidence supports the
possible existence of one of the ‘excusatory defences then the Crown must negative such
defence’ 
 Palmer v. R, [1971] AC 814
Facts: The appellant and two others were chased by three men after they stole some ganja. The
three men had sticks and stones. During the chase the appellant fired shots. One of the men chasing
them died of as a result of gun shot. The appellant's case was that he had not fired the shot which
killed the man although the trial judge directed the jury on self-defence. The jury convicted him of
murder. He appealed contending that the judge in directing the jury on self-defence should have put
an alternative verdict of manslaughter to the jury.
Held: It is a defence in criminal law to a charge of assault if the defendant had an honest
belief that he was going to be attacked and reacted with proportionate force: ‘If there has
been an attack so that defence is reasonably necessary, it should be recognised that a person
defending himself cannot weigh to a nicety the exact measure of necessary defensive action.
If a jury is of the opinion that in a moment of unexpected anguish the person attacked did
only what he honestly and reasonably thought was necessary, that should be regarded as most
potent evidence that only reasonably defensive action was taken.’
Jamaica – The defendant appealed against his conviction for murder, arguing self defenec. 
Held: After setting out the elements of the defence of self-defence, Lord Morris of Borth-y-
Gest said: ‘if the prosecution have shown that what was done was not done in self-defence
then that issue is eliminated from the case. If the jury consider that the accused acted in self-
defence or if the jury are in doubt as to this then they will acquit. The defence of self-defence
either succeeds so as to result in an acquittal or it is disproved in which case as a defence it is
rejected.’ 
 R v. Sims, [1946] KB 531
The case arose out of an appeal against the order denying the plea of the accused to hold separate
trials for each of the four indictments of sodomy alleged against him. This request was made on the
grounds that joinder will lead to prejudice against the defendant by indicating bad character. The
facts indicated that several men had alleged commission of sodomy by the accused on them, when
at each occasion the accused had invited these men to his house. The Court held that, owing to the
remarkable similarity on facts of each instance, it was not prejudicial to join the indictments in one
common trial. Bad character evidence is to be excluded only if it shows bad character and nothing
more.

Mr Adams also relied heavily on R v Sims [1946] 1 KB 531, in which the principles applicable when
determining whether separate trials should be ordered, were discussed; the relevant provisions are
identical with Code s309(1). Mr Adams submitted that the power under Code s341(1) to order
separate trials of multiple offences turned on the forming of an opinion that the accused would
otherwise "be prejudiced or embarrassed in his defence"; I note that the power in s341(1) seems
wider than that, extending to "any other reason". The principles set out in R v Sims (supra) have,
however, been overtaken by some recent authorities in the High Court.

". . . an accused's plea of an exception may reach one of three not sharply
demarcated stages, one succeeding the other, depending upon the effect of the
whole evidence in the case judged by the standard of a prudent man weighing or
balancing probabilities carefully. These stages are: firstly, a lifting of the initial
obligatory presumption given at the end of section 105 of the Act; secondly, the
creation of a reasonable doubt about the existence of an ingredient of the offence;
and, thirdly, a complete proof of the exception by 'a preponderance of
probability', which covers even a slight tilt of the balance of probability in favour
of the accused's plea. The accused is not entitled to an acquittal if his plea does
not get beyond the first stage. At the second stage, he becomes entitled to
acquittal by obtaining a bare benefit of doubt. At the third stage, he is
undoubtedly entitled to an acquittal. This, in my opinion, is the effect of the
majority view in Parbhoo'. case which directly relates to first two stages only. The
Supreme Court decisions have considered the last two stages so far, but the first
stage has not yet been dealt with directly or separately there in any case brought
to our notice."
It is well- settled that the burden on the accused is not as onerous as that which
lies on the prosecution. While the prosecution is required to prove its case beyond
a reasonable doubt, the accused can discharge his onus by establishing a mere
preponderance of probability.
The legal position of a state of reasonable doubt may Be viewed and stated from
two opposite angles. One may recognise, in a realistic fashion, that, although the
law prescribes only the higher burden of the prosecution to prove its case beyond
reasonable doubt and the accused's lower burden of proving his plea by a
preponderance of probability only, yet, there is, in practice, a still lower burden of
creating reason able doubt about the accused's guilt, and that an accused's can
obtain an acquittal by satisfying this lower burden too in practice. The objection
to stating the law in this fashion is that it looks like introducing a new type of
burden of proof, although, it may be said, in defence of such a statement of the
law, that it only recognises what is true. Alternatively, one may say that the right
of the accused to obtain the benefit of a reasonable doubt is the necessary
outcome and counterpart of the prosecution's undeniable duty to establish its
case beyond reasonable doubt and that this right is available to the accused even
if he fails to discharge his own duty to prove fully the exception pleaded. This
technically more correct way of stating the law was indicated by Woolmington's
case and adopted by the majority in Parbhoo's case, and, after that, by the
Supreme Court. It seems to me that so long as the accused's legal duty to prove
his plea fully as well as his equally clear legal right to obtain the benefit of
reasonable doubt, upon a consideration of the whole evidence, on an ingredient of
an offence, are recognised, a mere difference of mode in describing the position,
from two different angles, is an immaterial matter of form only. Even if the latter
form appears somewhat artificial, it must be preferred after its adoption by the
Supreme Court". (See: K. M. Nanavati v. State of Maharashtra-AIR 1962 SC 605).