ROLE OF ACCUSED IN CRIMINAL JUSTICE SYSTEM

By
Name of the Student: KVijay Srinivas
Roll No.:2018095
Semester: IV
Name of the Program: 5 year (B.A., LL.B)

Name of the Faculty Member

MS. SOMA BATTACHARJYA

Date of Submission: 12 December 2020

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM–531035, ANDHRA PRADESH
 ACKNOWLEDGEMENT

I wish to express our sincere gratitude to our Ms. Soma Battacharjya ma’am for not only
providing me with an opportunity to do this project but also for providing her indispensable
guidance and support in conducting a detailed study on this topic.

I am also grateful towards everyone who has helped, in one way or the other, to complete the
project. A lot of effort has been put into this study to make it as factually error free as
possible and we thank everyone for ensuring the same.

I also thank my parents for their kind cooperation and encouragement without which this
project would not have been possible.
TABLE OF CONTENTS

1. Synopsis…………………………………………………………………………4
2. Introduction……………………………………………………………………..6
3. Fair Trial Two Sided…………………………………………………………...7
4. Rights of the Accused…………………………………………………………..9
5. Presence of the Accused………………………………………………………11
6. Fair Trial Duty to Disclose Prosecution Evidence to Accused…………….14
7. Historic Supreme Court Guidelines For Recording of Evidence………….16
8. Accused’s Right to Seek Review of Conviction/Sentence…………………..17
9. “Conclusion……………………………………………………………………25
SYNOPSIS

Title: ROLE OF ACCUSED IN CRIMINAL JUSTICE SYSTEM

Introduction:-

The researcher would like pursue the project topic “role of accused in criminal justice
system” wherein it is essential for an individual to clearly understand the concept as to “how
the Indian judiciary sees the accused in criminal justice system?” to subsequently understand
the reliability of it performed in various investigative and judicial proceedings.

To briefly understand the concept the of principal objective of criminal procedure, like that
of procedure generally, is to assure a just disposition of the dispute before the court. But
because time, resources and the ability to determine what is just are limited, a procedural
system inevitably represents a series of compromises. Justice to society is sometimes taken to
require that a given case be used not only to deal with the situation immediately before the
court but also to serve a larger public interest. In criminal cases, the accused may get relief,
not so much out of concern for him or for the "truth," but because he is strategically located,
and motivated, to call the attention of the courts to excesses in the administration of criminal
justice

Objectives of the Study:-

The main objectives of the study is to understand the concept “role of accused in criminal
justice system” in order to understand its reliability, advantages and disadvantages over its
usage on the subjects concerned.

Scope of the Study:-

The scope of the study is limited to understanding the advantages, disadvantages and the
reliability of “role of accused in criminal justice system” including the analysis of various
Legal Provisions and Case Laws from India.

Research Methodology:-

The researcher would like to adopt the doctrinal method of research by following various
Indian Articles, Journals and Case Laws.

Research Questions:-

1. Whether the interpretation of the concept by the courts is efficient in securing justice?
Literature Review:-

The following sources have been used for pursuing the present project effectively which have
been mentioned below as follows:-

1. Primary Sources:- The primary sources which have been used for the project are:-
1. The Code of Criminal Procedure, 1973.
2. Indian Evidence Act, 1872 (Bare Act).
3. Heinonline (Online Source).
4. Westlaw (Online Source).
5. Lexis Nexis (Online Source).
6. Cambridge University, E-books (Online Source).
7. JSTOR (Online Source).
8. Oxford Legal Research Library (Online Source).
2. Secondary Sources:- The following articles have been used by the researcher as the
secondary sources in pursuance of the project. The executive summary of these articles
shall be mentioned by the researcher which is mentioned below as follows:-

Kenny, Outlines of Criminal Law, The Macmillan Company, (New York, 1907)

The present article has been introduced in a very unique manner wherein we can observe the
concept of accused and faster developing society every day. The article enlightens the role of
accused and the various rights of acuused and their effect the on the contemporary law.
However, the present article also discusses about the other problems which arise with this
concept as escape the proceedings of law which shall be dealt with in the contexts of the
project.

“
INTRODUCTION

“It is an elementary principle of criminal jurisprudence that a trial will be unfair if the very
investigation of the case by the State is unfair and loaded against the accused. In a long chain
of decisions, the courts have highlighted the importance of an upright and impartial IO in the
maintenance of the fairness of the trial. In RP Kapur v State of Punjab, AIR 1960 SC 866, it
was said:

“It is of utmost importance that investigation into criminal offences must always be free from
any objectionable features or infirmities which may legitimately lead to the grievance of the
accused that the work of investigation is carried on unfairly or with any ulterior motive.”1

In Jamuna Chaudhary v State of Bihar,2 the Court held: “The Duty of the investigating
officer is not merely to bolster up a prosecution case with such evidence as may enable the
court to record a conviction, but to bring out the real unvarnished truth”.

In Babubhai v Gujarat,3 the Supreme Court observed:

The investigation into a criminal offence must be free from objectionable features or
infirmities which may legitimately lead to a grievance on the part of the accused that
investigation was unfair and carried out with an ulterior motive. It is also the duty of the
investigating officer to conduct the investigation avoiding any kind of mischief and
harassment to any of the accused. The investigating officer should be fair and conscious so as
to rule out any possibility of fabrication of evidence and his impartial conduct must dispel
any suspicion as to its genuineness. The investigating officer “is not merely to bolster up a
prosecution case with such evidence as may enable the court to record a conviction but to
bring out the real unvarnished truth.

It is noteworthy that in a number of cases the question has arisen whether the principle of fair
investigation is vitiated where the first informant was also the investigating officer in the
same case. While in some cases it was held by the Supreme Court that there was nothing
wrong if the IO was also the informant,in another line of decisions the Court held that if the
IO was also the person who filed the FIR, the trial may be vitiated as he may have a vested
interest to get the accused convicted.

1
Mahmood v State of UP, AIR 1976 SC 69
2
(1974) 3 SCC 774
3
(2010) 12 SCC 254
In the case of Mohan Lal v State of Punjab 4, the Supreme Court resolved the conflict two
strands of opinion of the benches of the Court and held:

a fair investigation, which is but the very foundation of fair trial, necessarily postulates that
the informant and the investigator must not be the same person. Justice must not only be
done, but must appear to be done also. Any possibility of bias or a predetermined conclusion
has to be excluded. This requirement is all the more imperative in laws carrying a reverse
burden of proof.”

The Court held further:

In the nature of the reverse burden of proof, the onus will lie on the prosecution to
demonstrate on the face of it that the investigation was fair, judicious with no circumstances
that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will
take within its ambit a fair investigation, in absence of which there can be no fair trial. If the
investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught
with danger vesting arbitrary powers in the police which may well lead to false implication
also. Investigation in such a case would then become an empty formality and a farce.

After a thorough review of the conflicting opinions expressed by different High Courts and
even by Supreme Court itself, the Supreme Court finally held:

“It is therefore held that a fair investigation, which is but the very foundation of fair trial,
necessarily postulates that the informant and the investigator must not be the same person.
Justice must not only be done, but must appear to be done also. Any possibility of bias or a
predetermined conclusion has to be excluded. This requirement is all the more imperative in
laws carrying a reverse burden of proof.””

“FAIR TRIAL TWO SIDED

It is said that while the defense counsel has the accused as a client, the prosecutor may be
seen as a lawyer with no client. Alternatively, the prosecutor may be viewed as having a
single client, the state. However, even on this view there is, in theory, an absence of conflict
between the prosecutor’s duty to the Court and the duty to the client because the proper
administration of justice serves the interests of both the State and the Court. The great legacy
of our criminal justice system is that while pursuit of truth is the primary goal of a
prosecution, it is not an absolute goal in the sense of “truth at any cost” but it is subject to the
4
(1985) 1 Chand LR (Cri) 147.
countervailing values of fairness of trial and the rights of the accused like the right against
testimonial compulsion. As has been held, “the fairness principle operates both ways” to
protect the rights of the accused and also of the prosecution and its witnesses, because, in the
final analysis, “a Judge presides over the trial not only to ensure that no innocent is punished
but also to see that guilty does not escape”.

In Asha Ranjan v Bihar5, the Supreme Court held that

where there is an “intra-conflict” between the Constitutional rights of the accused under
Article 21 and the rights of “the victims who are directly affected and also form a part of the
constituent of the collective”, the test that is required to be applied would be “paramount
collective interest” or “sustenance of public confidence in the justice dispensation system”.

In Snyder v Massachusetts6, in an often quoted statement, Benjamin Cardozo, J, of United

States Supreme Court observed that:

 But justice, though due to the accused, is due to the accuser also” and proceeded to
point out: “Due process of law requires that the proceedings shall be fair, but
fairness is a relative, not an absolute, concept. It is fairness with reference to
particular conditions or particular results What is fair in one set of circumstances
may be an act of tyranny in others.

In R v Karakaya7, the Court of Appeal has said,

 “It is easy, but superficial, to dismiss these rules as purely technical or procedural. In
truth, they reflect something much more fundamental”.

In R v Howse8, it was said that

“observance of the rules therefore serves the wider public interests as well as the interests of
the accused”.

It has been held by the Apex Court consistently that the accused has the “inalienable right” to
speedy trial and the right comprehends not only the trial but also the pre-trial police
investigations. As a criminal trial has a direct impact on the Constitutional and legal rights of
the accused as to his personal liberty, the Criminal Procedure Code imposes time-bound

5
AIR 2017 SC 1079
6
291 US 97 (1934)
7
[2005] EWCA Crim 346
8
[2005] UKPC 30
limitations on the process of investigation by the police so as to ensure freedom to the
accused at the earliest by recognizing the “‘indefeasible right’ of the accused to be released
on bail”. The Court has held that while “‘Speedy trial’ and ‘fair trial’ to a person accused of a
crime are integral part of Article 21” of the Indian Constitution, there is, however, a
“qualitative difference” between the two, as “unlike the accused’s right of fair trial,
deprivation of the right to speedy trial does not per se prejudice the accused in defending
himself”9.”

“RIGHTS OF THE ACCUSED “LEX GRAVIOR” AND “LEX MITIOR”

PRINCIPLES

The most hallowed of the procedural and substantive rights of the accused are:

1. Nullum crimen sine lege—no act can be treated as a crime without a law declaring it to be
so;

2. No ex post facto criminalization: Law cannot be made to make an act a crime

retrospectively;

3. Blackstone said: “A man cannot suffer more punishment than the law assigns, but he may
suffer less”

4. Nulla poena sine lege—no punishment can be inflicted without law; In other words, the
law that makes an act a crime must also prescribe punishment for it;

5. Lex Gravitor principle: This is a corollary to the above principle and provides that
punishment for an offence cannot be made severer than it was when the crime was
committed;

6. Lex Mitior principle: If the punishment for an offence is reduced from a date after the
commission of a crime but before the accused is sentenced, he is entitled to the benefit of
lesser punishment so prescribed; and

7. The principles of autrefois acquit and autrefois convict (Double Jeopardy) and the rule
against Testimonial Compulsion has been discussed under section 40 in Chapter IX and
Chapter VI respectively.

9
Mohd Hussain at Julfikar Ali v State (Govt of NCT of Delhi), (2012) 9 SCC 408,
The first four principles above are contained in Article 20 (1) of the Constitution of India
which provides:

No person shall be convicted of any offence except for violation of a law in force at the time
of the commission of the Act charged as an offence, nor be subjected to a penalty greater than
that which might have been inflicted under the law in force at the time of the commission of
the offence.

Article 7 (1) European Convention on Human Rights, 1950, provides:

No punishment without law

(1) No one shall be held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be imposed than the one that
was applicable at the time the criminal offence was committed.

The second sentence in the above provision incorporates the lex gravitor principle.10

Article 15 of the UN International Covenant on Civil and Political Rights, 1966, contained
the principle of Lex Mitior and provided: If, subsequent to the commission of the offence,
provision is made by law for the imposition of a lighter penalty, the offender shall benefit
thereby.

In the case of R v Docherty11,

the accused sought to claim the benefit of lex mitior principle. Docherty was convicted for
various grave offences and at the time when he was sentenced, the statutory scheme for the
sentencing of offenders who represent a future public danger was in the course of change.
The scheme provided for by the Criminal Justice Act, 2003 (CJA), as amended, was being
replaced by a different one under the Legal Aid, Sentencing and Punishment of Offenders
Act, 2012 (LASPO). The latter Act provided for a staggered application of a “menu” of
punishments and their terms and conditions which were less severe than CJA but from a
prescribed date. Docherty claimed that it was unfair and discriminatory to punish him under
the old scheme when the legislature has decided to reduce the punishment for convicts who
were similarly situated. Distinguishing lex gravitor and lex mitior principles, the House of
Lords said:

10
R v Docherty, [2016] UKSC 62
11
[2016] UKSC 62
  The difference between the two principles is underlined by the fact that whereas lex
gravior prohibits applying to a case a rule which was not the law when the acts under
judgment were committed, lex mitior, when it operates, actually requires such a rule
to be applied.

Upholding the validity of the new Act and its scheme, the House of Lords held that Docherty
could not claim the benefit of a scheme, which would come into force from a future date and
that there was nothing illegal for the legislature in first announcing the change in penal policy
and fixing the date for the commencement of the new scheme. Stating the English practice,
the House of Lords held:

(a) if the maximum sentence has been increased by statute since the offence was committed,
the English court cannot sentence beyond the maximum which applied at the time of the
offence, because that is the sentence to which the defendant was at that time exposed (lex
gravior);

(b) if the maximum sentence has been reduced by statute since the offence was committed,
the English court will sentence within the now current maximum.12”

“PRESENCE OF THE ACCUSED”

INDIA

What is the import of the words “the presence of the accused” in section 273 Cr PC 1973? Is
mere physical presence of the accused sufficient in a country like India where the accused
could be illiterate or unfamiliar with English or other Court language?

Section 279, Cr PC deals with “Interpretation of evidence to accused or his pleader” and
provides:

(1) Whenever any evidence is given in a language not understood by the accused, and he is
present in Court in person, it shall be interpreted to him in open Court in a language
understood by him.

(2) If he appears by pleader and the evidence is given in a language other than the language
of the Court and not understood by the pleader, it shall be interpreted to such pleader in that
language.

12
R v Docherty, [2016] UKSC 62
(3) When documents are put for the purpose of formal proof, it shall be in the discretion of
the Court to interpret as much thereof as appears necessary.

Clause 1 above is mandatory and provides that the Court “shall” get the evidence interpreted
to the accused when he is present if the evidence is in a language not understood by him.
Obviously, this clause will apply even if the evidence is in the Court language if the accused
is unfamiliar with that. It is immaterial that his pleader understands that language and the
interpretation is to be done in the open Court so that everybody hears and any error in
translation would be detected.

Clause 2 also is mandatory and requires that if evidence is in a language other than the Court
language, it “shall” be interpreted to the pleader.

Clause 3 deals not with all documents but only with documents which are put for “formal
proof” and provides that it shall be in the “discretion” of the Court to decide how much of it
should be interpreted. Clause 3 is not mandatory and is not explicit as to whom it shall be
interpreted and why. It is significant that section 279 employs the term “interpreted” and not
“translated”. On the other hand, section 277 which deals with “Language of Record of
Evidence” provides that evidence in warrant and Sessions cases “is taken down in a language
other than the language of the Court, a true translation thereof in the language of the Court
shall be prepared as soon as practicable”.

Thus, “interpretation” is done in the Court whereas “translation” could be “prepared as soon
as possible”. Section 282 provides: When the services of an interpreter are required by any
Criminal Court for the interpretation of any evidence or statement, he shall be bound to state
the true interpretation of such evidence or statement.

There can be situations where an accused is not able to understand the Court proceedings for
any reason like illiteracy or being a foreigner and unfamiliar and section 318, Cr PC 1973
provides for such cases and states:

 If the accused, though not of unsound mind, cannot be made to understand the
proceedings, the Court may proceed with the inquiry or trial; and in the case of a
Court other than a High Court if such proceedings result in a conviction, the
proceedings shall be forwarded to the High Court with a report of the circumstances
of the case, and the High Court shall pass thereon such order as it thinks fit.
Thus, depending on the nature and extent of lack of understanding of the proceedings by the
accused, and whether the accused has been prejudiced by that in his defence, the High Court
will have to pass the appropriate orders including remanding the case with necessary
directions.

“COMMON LAW JURISDICTIONS

In the leading English case of R v Lee Kun13, the accused was charged with murder. He
neither spoke nor understood English. Although the evidence was interpreted to him at his
appearance before a magistrate, a proceeding akin to preliminary inquiry, the evidence at his
trial was not so interpreted. Lord Reading CJ held:

The reason why the accused should be present at the trial is that he may hear the case made
against him and have the opportunity, having heard it, of answering it. The presence of the
accused means not merely that he must be physically in attendance, but also that he must be
capable of understanding the nature of the proceedings”.

Lord Reading’s dictum in Lee Kun was expressly approved and applied in the Privy Council
decision, Kunnath v The State14.

The accused in Kunnath was from India, but was arrested in Mauritius and tried for drug
trafficking there. The trial was conducted entirely in English. The accused, who was
represented by counsel, spoke Malayalam. When the accused made a statement to the Court
from the dock, the interpreter translated his words, including the accused’s assertion that he
had not understood what the witnesses had said. The accused was convicted and sentenced to
death. The Privy Council reiterated:

“The basis of this principle is not simply that there should be corporeal presence but that the
accused, by reason of his presence, should be able to understand the proceedings and decide.”

In the result, the Privy Council held that the appeal should be allowed and the conviction
quashed on the ground that the accused had been deprived of the opportunity for a fair trial
and that a substantial miscarriage of justice had occurred.

Faced with the above issue, the Canadian Supreme Court in R v Tran 15, stressed the need for
the appointment of an interpreter as a basic right of the accused not only as a legal right under

13
[1916] 1 KB 337
14
[1993] 4 All ER 30
15
[1994] 2 SCR 951
the Criminal Code, 1985, but also as a right “elevated” to Constitutional status under the
Charter of Rights and Freedoms, 1982.

The Court held:

it is simply beyond the bounds of a civilized society such as ours to permit a person charged
with a criminal offence and facing deprivation of liberty who genuinely cannot speak and/or
understand the language of the proceedings to dispense either wittingly or unwittingly with
the services of an interpreter.

However, the Court hastened to add that the matter “relates specifically to the right of an
accused in criminal proceedings, and must not be taken as necessarily having any broader
application”16.The Court also pointed out that in this case the violation of the right of the
accused “occurred in the trial proper, and not in some discrete and severable part of the
proceeding”, and found the “the appropriate and just remedy” to be “quashing the conviction
and directing that a new trial be held”.

FAIR TRIAL DUTY TO DISCLOSE PROSECUTION EVIDENCE TO ACCUSED

In what has become well known as Jessica Lal Murder Case, in Sidhartha Vashisht Manu
Sharma v State (NCT of Delhi) 17,the Supreme Court of India had an occasion to make a
thorough analysis of the duty of disclosure of the prosecution vis-à-vis the Constitutional and
legal rights of the accused in his own defence.

It was contended by Ram Jethmalani, counsel for the appellant that the prosecution tried
their level best to suppress the report of the Ballistic expert which was not favourable to them
and that the same was exhibited at the instance of the defence. It has been argued that since
the report did not favour the prosecution, the same was withheld. On the other hand the
defence said that failure on the part of the prosecution to bring on record material which is in
favour of the accused is a breach of Article 21 of the Constitution and that the prosecution
had suppressed vital evidence relating to the laboratory reports which were useful for the
defence in order to establish the innocence of the accused. The defence counsel further
argued that the prosecutor had not complied with his duty thus violating fair trial and vitiating
the trial itself.

16
R v Kwok Leung (1909), 4 HKLR 161
17
AIR 2010 SC 2352
 Sathasivam, J, speaking for the Supreme Court elaborated on the role of a prosecutor,
disclosure requirements of the prosecutor and the role of a judge in a criminal trial.

He observed that “A public prosecutor is appointed under section 24 of the Code of Criminal
Procedure. Thus, Public Prosecutor is a statutory office of high regard”, and quoted the
observations of the Court in Shiv Kumar v Hukam Chand18, as follows:

From the scheme of the Code [CrPC] the legislative intention is manifestly clear that
prosecution in a sessions court cannot be conducted by anyone other than the Public
Prosecutor. The legislature reminds the State that the policy must strictly conform to fairness
in the trial of an accused in a sessions court. A Public Prosecutor is not expected to show a
thirst to reach the case in the conviction of the accused somehow or the other irrespective of
the true facts involved in the case

. The expected attitude of the Public Prosecutor while conducting prosecution must be
couched in fairness not only to the court and to the investigating agencies but to the accused
as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor
should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch
it to the fore and make it available to the accused. Even if the defence counsel overlooked it,
Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes
to his knowledge.

In Hitendra Vishnu Thakur v State of Maharashtra 19, the Court held that “a public prosecutor
is an important officer of the State Govt. and is appointed by the State under the CrPC. He is
not a part of the investigating agency. He is an independent statutory authority”. However,
Sathasivam, J, while stating that “therefore, a public prosecutor has wider set of duties than to
merely ensure that the accused is punished, the duties of ensuring fair play in the
proceedings, all relevant facts are brought before the court in order for the determination of
truth and justice for all the parties including the victims”, he also emphasized that “it must be
noted that these duties do not allow the prosecutor to be lax in any of his duties as against the
accused”. Referring to the role of the trial Court, 20 His Lordship pointed out: “It is also
important to note the active role which is to be played by a court in a criminal trial. The court
must ensure that the prosecutor is doing his duties to the utmost level of efficiency and fair
play”.”
18
(1999) 7 SCC 467
19
(1994) 4 SCC 602
20
Zahira Habibulla H Sheikh v State of Gujarat, (2004) 4 SCC 158
HISTORIC SUPREME COURT GUIDELINES FOR RECORDING OF EVIDENCE

“In a path-breaking step, The Supreme Court bench appointed senior counsels Sidharth
Luthra and R. Basant, as amicus curiae in the Suo Moto Writ Petition (Criminal) No.1 of
2017, Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal
Trials v the State of Andhra Pradesh.21

During the course of hearing, Mr. R. Basant, learned Senior Counsel appearing for the
appellants-complainant, pointed out certain common inadequacies and deficiencies in the
course of trial adopted by the trial court while disposing of criminal cases. The Court pointed
out:

The pernicious practice of the Trial Judge leaves the recording of deposition to the clerk
concerned and recording of evidence going on in more than one case in the same Court room,
at the same time, under the presence and general supervision of the presiding officer has to be
disapproved strongly and discontinued forthwith.

The Court particularly deprecated:

The practice of whole sale marking of confession statement of accused persons for
introduction of the relevant statement admissible under S. 27 of Evidence Act deserves to be
deprecated. Ideally the admissible portion and that portion alone, must be extracted in the
recovery memos.22

The Court taking note of the existing High Court rules of practice and procedure of Andhra
Pradesh and Kerala High Court, identified, inter alia, the following aspects that required
attention and reports by way of response from different States:

• Discouragement of the practice of the Trial Judge leaving the recording of deposition to the
clerk concerned and recording of evidence going on in more than one case in the same Court
room, at the same time.

• Recording the depositions of witnesses in typed format, using computers, in Court, to the
dictation of the presiding officers, in English wherever possible, so that readable true copies
are available straightaway and can be issued to both sides on the date of examination itself.
Also, the deposition of each witness must be recorded dividing it into separate paragraphs
assigning para numbers to facilitate easy reference to specific portions.

21
2017 ALLMR (CRI) 1747 SC.
22
Zahira Habibulla H Sheikh v State of Gujarat, (2004) 4 SCC 158,
• Witnesses/documents/material objects be assigned specific nomenclature and numbers.

• Every judgment must mandatorily have a preface showing the name of the parties and an
appendix showing the list of Prosecutions Witnesses, Prosecution Exhibits, Defence
Witnesses, Defence Exhibits, Court witnesses, Court Exhibits and Material Objects.

• Repetition of pleadings, evidence, and arguments in the judgments and orders of the Trial
Court, Appellate and Revisional Courts must be avoided.

• In order to help the judges to have a clearer and surer understanding of the situs of the
injuries, the Investigating Officer should obtain or procure the wound certificate/post mortem
certificate showing the front and rear sketch of the human torso showing the injuries listed in
the medical documents specifically.”

“ACCUSED’S RIGHT TO SEEK REVIEW OF CONVICTION/SENTENCE

A petition for review of a judgment can be made under Indian law in civil as well as criminal
cases. The concept of appeal and review is based on the principle that human justice is not
infallible and judges, even with all good intentions, might commit errors that result in grave
injustice. Section 114, CPC 1908, states that “(1) Any person considering himself aggrieved”
may petition for review” and O XLVII (1) provides that he may apply “for a review of
judgment to the Court which passed the decree or made the order”.

The right to review exists in addition to the right of appeal to the higher Court (Part VII),
reference (Section 113), revision (Section 115), and the inherent power of the high Court
under section 151, CPC 1908 “to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the Court”. The above provisions of the CPC
confer the right to seek review on both the parties. The Cr PC confers the right of appeal on
the prosecution against inadequate sentence (Section 377) and against acquittal (Section 378),
and on the accused against conviction (Section 374) which includes the right to seek reduced
punishment under section 386. It is noteworthy that Cr PC 1973 does not confer any right to
seek review of a judgment either on the accused or on the prosecution. It is Article 137 of the
Constitution that confers the power of review on the Supreme Court and provides:

Subject to the provisions of any law made by Parliament or any rules made under article 145,
the Supreme Court shall have power to review any judgment pronounced or order made by it.
Accordingly, the Supreme Court made the rules under Article 145. 139 Under Order XLVII,
clause (1) of the rules “no application for review will be entertained ... in a criminal
proceeding except on the ground of an error apparent on the face of the record” and zunder
clause 2 the petition for review “shall be filed within thirty days from the date of the
judgment or order sought to be reviewed. It shall set out clearly the grounds for review”.
Under clause (3) “An application for review shall as far as practicable be circulated to the
same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed”
and the party may submit additional written arguments and not oral arguments. Clause 5
mandates that “Where an application for review of any judgment and order has been made
and disposed of, no further application for review shall be entertained in the same matter”. 23
In a landmark decision, a Constitution Bench of the Supreme Court has held that

(1) Review Petitions in death sentence cases, shall be heard by at least three judges,

(2) they shall be disposed of in open Court and not by circulation among judges,

(3) an oral hearing and not mere written arguments, shall be granted, and

(4) review petition can be filed, as of right, only in capital sentence cases.24

While discouraging the practice of filing a second review petition in the guise of a writ
petition under Article 32 after the first review petition has been dismissed, the apex Court
(per SM Quadri, J) in a landmark judgment in Rupa Ashok Hurra v Ashok Hurra 25, decided
to entertain a “curative” petition by a person ex debito justitiae:

if he establishes

(1) violation of principles of natural justice in that he was not a party to the lis but the
judgement adversely affected his interests or, if he was a party to the lis, he was not served
with notice of the proceedings and the matter proceeded as if he had notice and

(2) where in the proceedings a learned Judge failed to disclose his connection with the
subject-matter or the parties giving scope for an apprehension of bias and the judgment
adversely affects the petitioner.

23
Sooraj Devi v Pyare Lal, (1981) 1 SCC 500
24
Md Arif alias Ashfaq v Registrar, Supreme Court of India, (2014) 9 SCC 737
25
AIR 2002 SC 1771
The following are the other basic principles of criminal jurisprudence, which have been
evolved by the judges for the fair and just conduct of trial where the life and liberty of the
accused are at stake:

1. The accused is presumed to be innocent till his guilt is proved.

2. The burden of proof is on the prosecution to prove that the accused is guilty and the
accused need not prove his innocence.

3. In fact, the accused has a right to silence and no negative inference can be drawn against
him for his silence or failure to lead evidence.

4. The prosecution should prove its case beyond all reasonable doubt. The facts should be
consistent only with the hypothesis of the guilt of the accused.26

5. If there is an element of doubt in the prosecution case, the benefit of doubt will go to the
accused and he shall be acquitted. This is sometimes referred to as “Pro Reo Doctrine”. The
Latin phrase in dubio pro reo means ‘when in doubt, favour the accused’. The doubt could be
whether the story of the prosecution that the accused is guilty is correct or whether the story
of the accused that he is innocent is correct.27

6. The Court must adopt an interpretation of evidence or a statute which is favourable to the
accused This is sometimes referred to as “Lenity Doctrine”.

7. Let 10 criminals go unpunished, but let not one innocent person suffer for an offence
which he or she has not committed.

It is significant that none of the above principles, which are sanctified by generations of
judicial pronouncements in England and India, are expressly stated either in the ordinary law
or the Constitution of India. It is noteworthy that Sir James Fitzjames Stephen included in his
Digest on Law of Evidence Article 94 which dealt with “Presumption of Innocence” and
stated:

 If the commission of a crime is directly in issue in any action, criminal or civil, it must
be proved beyond reasonable doubt.
 The burden of proving that any person has been guilty of a crime or wrongful act is
on the person who asserts it, whether the commission of such act is or is not directly
in issue in the action.
26
Sharad Birdhichand Sarda v State of Maharashtra, AIR 1984 SC 1622.
27
R v W (D), [1991] 1 SCR 742
It is evident from the above article that Sir Stephen mentions the presumption in the heading
but not in the substantive part and treats the presumption with three components viz.,

(1) standard of proof beyond reasonable doubt applies if the commission of crime is directly
in issue;

(2) the commission of crime can be in issue in civil as well as criminal actions; and

(3) burden of proof lies on the person who asserts the commission of a crime or any
wrongful act (a tort, for instance) irrespective of whether the commission of the crime or act
is directly in issue or not.

On similar lines the Nigeria Evidence Act, 2011, provides in section 135 (1): “If the
commission of a crime by a party to any proceeding is directly in issue in any proceeding
civil or criminal, it must be proved beyond reasonable doubt”. Kenny also opines that the
presumption of innocence “holds good, not merely in criminal trials, but equally in every
civil case where any allegation is made that a criminal act has been committed”.28

If this rule is applied to Indian situation, in a divorce suit for adultery filed by husband, he
will be required to prove adultery “beyond all reasonable doubt” as adultery is also a criminal
act committed by the paramour. The presumption of innocence and the standard of proof
beyond all reasonable doubt are the twin doctrines, which are fundamental to Anglo-
American criminal jurisprudence.”

“Critical Issues

(a) “All Convictions are Convictions”

Article 311 (2)(a) provides that “where a person is dismissed or removed or reduced in rank
on the ground of conduct which has led to his conviction on a criminal charge” the
requirement of clause (2) as to holding of an enquiry, notice as to charges and opportunity to
be heard “shall not apply”. Thus, conviction of the incumbent enables the employing
authority to dispense with departmental enquiry because the Criminal Court applying the
higher standard of proof beyond reasonable doubt has arrived at the verdict that he is guilty.
Even non-state entities to whom Article 311 would not apply would conveniently dispense
with any administrative enquiries and act upon the conviction by the criminal courts of their
employees and take punitive action.

28
Kenny, Outlines of Criminal Law, The Macmillan Company, (New York, 1907), pp 317–318
 (b) “All Acquittals are not Acquittals”

Section 3 of the Evidence Act, 1872 defines the word “proved” and states:

A fact is said to be proved when, after considering the matters before it, the Court either
believes it to exist, or considers its existence so probable that a prudent man ought under the
circumstances of the particular case, to act upon the supposition that it exists”.

As pointed this definition does not make any distinction between civil and criminal
proceedings. In the context of provisions of the Evidence Ordinance of Ceylon which are in
pari materia with section 3 of the Indian Act, Lord Devlin of the Privy Council observed in
Jayasena v Reginam29,

Their Lordships do not think that proof means anything different in English law. But at any
rate in the law of Ceylon, where the mode of proof is clearly spelt out, it is impossible to
suppose that there can be more than one kind of burden of proof or that the burden imposed
by s 105 can be anything less than proof in accordance with s 3. Further, it is misleading to
call it a burden of proof, whether described as legal or evidential or by any other adjective,
when it can be discharged by the production of evidence that falls short of proof.

With respect, it is submitted that proof of a “fact” is very different from proof of the “case” or
what is called discharging “burden of proof” in a civil or criminal proceeding. Proof of fact
deals with proof outcome whereas burden of proof is concerned with adjudication outcome.

Section 3 deals with the former and not the latter. For instance, the prosecution might succeed
in proving the fact that A killed B, but A might prove that he acted in selfdefense. In this
case, proof outcome is that A killed B but the adjudication outcome is that A is not guilty. It
is pertinent to recall the memorable exposition of the doctrine by Lord Sankey in
Woolmington v Director of Public Prosecutions30,

“If, at the end of and on the whole of the case, there 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”.

Again, as pointed out above, the Evidence Act, 1872 does not make any distinction in the
matters of evidence and proof between civil and criminal proceedings but, for decades, the

29
(1970) 1 All ER 219
30
, [1935] AC 462
Indian Courts have been following the English Common Law tradition of applying different
standards of proof in civil and criminal proceedings—of “preponderance of probabilities” and
“proof beyond reasonable doubt” respectively. This distinction is founded on firm grounds of
policy and of law garnered from centuries of experience of law’s concern for protecting the
accused from oppression and building brick by brick the beneficent principles of criminal
jurisprudence. In a classic exposition of law the Supreme Court stated in Haryana v
Bhagirath31,

The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt
regarding the guilt of the accused. It is the Reasonable doubt which a conscientious judicial
mind entertains on a conspectus of the entire evidence that the accused might not have
committed the offence, which affords the benefit to the accused at the end of the criminal
trial. Benefit of doubt is not a legal dosage to be administered at every segment of the
evidence, but an advantage to be afforded to the accused at the final end after consideration
of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding
the guilt of the accused....Of course, the expression “reasonable doubt” is incapable of
definition. Modern thinking is in favour of the view that proof beyond a reasonable doubt is
the same as proof which affords moral certainty to the Judge.

Characterization of outcome in criminal trials as “honourably acquitted”, “fully exonerated”

and “acquitted with benefit of doubt” is avoidable surplusage fraught with confusion as to the
nature of verdict.

In fact, in Management of Reserve Bank of India, New Delhi v Bhopal Singh Panchal 32, the
Supreme Court held that “when the High Court acquitted the respondent-employee giving
benefit of doubt, the bank rightly refused to reinstate him in service on the ground that it was
not an honourable acquittal as required by Regulation 46 (4)”. “Proof beyond reasonable
doubt” and “Benefit of doubt” are much more than mere “tools” that judges might choose to
use in making up the judicial mind; They are the components of the fundamental “doctrine”
of criminal jurisprudence sanctified by the wisdom of generations of justices too sacred to be
trifled with. As the Madras High Court has rightly held, “an acquittal is an acquittal and there
are not different forms nor different degrees of acquittal in so far as criminal jurisprudence is
concerned” and “the law does not provide a relief within the system of administration of

31
(1999) (5) SCC 96
32
(1994) 1 SCC 541,
criminal justice, to an acquitted person to seek before any forum, an enhancement of the
quality of the order of acquittal passed by a criminal Court”.

Though in theory “all acquittals are acquittals”, in practice there came to be acquittals and
acquittals. While “acquittal is acquittal” without any penal fall-out in criminal cases, when it
comes to service matters, the Supreme Court and the High Courts did make a distinction
between different shades of gray in acquittals and held that all acquittals by a Criminal Court
did not per se limit the discretion of the administrative authorities to initiate or continue with
departmental proceedings and take appropriate punitive action as per the rules. Consequently,
the Apex Court the Madras High Court in Krishnan’s case and other High Courts have held
that various State authorities could take departmental action in the interests of employee
discipline in spite of acquittal by the Criminal Court.33

(c) “Lowered Proof Beyond Doubt” Standard

Another dimension of the above debate is Malimath, J, Committee’s recommendation in 2003

that “the standard of proof in criminal cases should be higher than the ‘preponderance of
probabilities’ and lower than ‘proof beyond reasonable doubt’”. The main reason for the
recommendation was that the standard of “proof beyond all reasonable doubt” has proved to
be too high and rigid resulting in high percentage of unjustified acquittals. This hybrid
standard would have created a “lowered proof beyond doubt” standard that would have
eroded the sanctity of presumption of innocence. However, this recommendation has not been
acted upon by the Parliament.

(d) “Enhanced Balance of Probabilities”

When Lord Denning said in Bater v Bater34, that “Many great judges have said that, in
proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases”,
the great judge was obviously referring to the fact that all proof of facts is case-specific and
rigours of standard might fluctuate within “preponderance” and “beyond doubt” parameters.
In cases where the subject matter is basically civil but with overtones of penal consequences
of crime or what are called “quasi-criminal” cases like electoral offences2or allegations of
fraud by the defendant in a contractual situation, Courts have been cautious about the spill-
over penal effects of finding the defendant civilly liable and have applied a standard of proof
which is akin to criminal cases. In Addington v Texas 35,Chief Justice Burger of the Supreme
33
Commissioner of Police v Mehar Singh, 2013 7 SCC 685
34
[1950] 2 All ER 458
35
, 441 US 418
Court of the United States referring to civil fraud cases, said that “adopting a standard of
proof is more than an empty semantic exercise” and: The intermediate standard, which
usually employs some combination of the words ‘clear’, ‘cogent’, ‘unequivocal’ and
‘convincing’, is less commonly used but nonetheless is no stranger to the civil law....The
interests at stake in those cases are deemed to be more substantial than mere loss of money
and some jurisdictions accordingly reduce the risk to the defendant of having his reputation
tarnished erroneously by increasing the plaintiff’s burden of proof.”

THREE IMPORTANT ASPECTS

There are three important aspects of presumption of innocence that are noteworthy:

Firstly, as presumption of innocence does not mean “proven innocence” and the person who
is only an accused and not yet a convict can still be legally deprived, pending trial, of his
personal liberty by arrest and by refusal of even bail. He might also suffer adverse civil
consequences like suspension from employment pending trial.

Secondly, when the Court decides to frame the charges against the accused or commit him for
trial under the provisions of Cr PC 1973, by exercising its “undoubted power to sift and
weigh the evidence for the limited purpose of finding out whether or not a prima facie case
against the accused has been made out” there is an initial prima facie presumption of guilt
and as held in Central Bureau of Investigation, Hyderabad v K Narayana Rao 36, “but it is only
for the purpose of deciding prima facie whether the Court should proceed with the trial or
not”. This prima facie presumption need not be based on the rigorous “proof beyond
reasonable doubt” but “where the materials placed before the court disclose grave suspicion
against the accused which has not been properly explained the court will be fully justified in
framing a charge and proceeding with the trial”. “At that stage the Court is not to see whether
there is sufficient ground for conviction of the accused or whether the trial is sure to end in
his conviction”. Hence, it is sufficient “at the initial stage, if there is a strong suspicion, which
leads the court to think that there is ground for presuming that the accused has committed an
offence”. This interim presumption of guilt will be replaced by presumption of innocence
once the trial is commenced against the accused.

Thirdly, though the standard of burden of proof on the prosecution applies at all stages of
trial, the onus of proof of proving the General or Special Exceptions is placed on the accused
under section 105. Once the prosecution proves beyond all reasonable doubt that the accused
36
(2012) 9 SCC 512,
has committed the charged offence, the onus shifts to the accused to prove the General or
Special Exceptions. Section 105 states that the law presumes the absence of circumstances
that prove the Exceptions. While in the case of presumption of innocence, the law presumes
the absence of circumstances that prove the guilt, in the case of section 105 the law presumes
the absence of circumstances that prove the innocence. Thus, the presumption of innocence is
temporarily withdrawn and the presumption of guilt replaces it where the accused pleads any
of the exceptions under section 105.

“CONCLUSION

The "procedural revolution" of the 20th century was inevitably the result of the legal realists'
attack on the procedural formalism of the previous century. The uncritical reverence for the
forms of another day has been replaced by a more insightful and powerful view of the system
as an integral part of objective law. It has become apparent that the effectiveness of the
court's statement about "the law" is a function of many variables, including the way the
relevant institutions direct decision materials to them, the word forms in which legal
standards are variable and the vitality with which these standards are set at each stage by
everyone involved in the process.

“In the field of civil procedures, the legacy left by the legal realists was a happy flexibility,
concern for objective objectives that should be served by a procedural system, discriminatory
competition and a maximum opportunity for everyone to benefit from the legal process to
obtain the information necessary to resolve the conflict between the parties.

But when those who did so much to shape the procedural revolution on the civil side turned
their attention to criminal procedure, albeit a book of jurisprudence rather than law, the
results were deplorable. And the modifications they made based on the alleged rigorous
analysis and in favor of flexibility and efficiency served to seriously harm the accused.

This did not happen because the amendments were inherently undesirable, but because they
were fragmentary in nature and were introduced without a real appreciation of the
requirements of the general procedural system. Whether the flexibility of pleadings and
evidence offered by repeaters at the trial stage is accompanied by a compensatory eagerness
to improve pre-trial screening devices, or whether pre-trial screens are expected to leave the
culprits alone , it will be difficult to avoid joining the "modernists", although there is still a
question that the state cannot bear to prosecute the manifest culprit with the strictest standards
of proof; Or if it is as important that the process is "fair" as prosecuting the offender.
Unfortunately, the relationships between segments go unnoticed in much of the
jurisprudence.

Judicial oversight of the amount of proof required for a conviction is reduced at the same
time that pre-trial evidentiary standards are removed from significant applicable judicial
standards. The case is mitigated as judicial attitudes toward pretrial discovery and details
remain difficult. Regardless of his benefit from widely announced decisions in certain areas
of constitutional law, the alleged "defendant" does not find much to satisfy him in the current
evolution of the criminal process.

These developments reflect very little concern about the inequality inherent in the litigation
posture between the expanding state and even the most intelligent individuals, much less the
vast majority of people without the resources. More importantly, it reflects an underlying
erosion of the prosecution system, which in many cases relieves the police and prosecutors of
the pressure necessary to keep their actions at the optimal level of accountability.”