Criminal Trial – Sentencing -There is a crying need for a clear sentencing policy, which should never be judge-centric as the society has to know the basis of a sentence- Sentencing shall not be a mere lottery. It shall also not be an outcome of a knee-jerk reaction.- The Government of India represented by the Secretary for the Ministry of Law and Justice shall file an affidavit on the feasibility of introducing a comprehensive sentencing policy and a report thereon, within a period of six months from today. (Para 32,33, 58)
Code of Criminal Procedure, 1973; Sections 207,238 – An accused shall be put to notice on the incriminating materials leading to the charges framed against him. As stated, the obligation so imposed is not only on the supply of the relevant documents, but such compliance should be at the appropriate stage so that it does not brook any delay. The idea is to enable an accused to face the trial by thoroughly understanding the case stated against him. However, a mere non-supply of a part of the documents would not lead to the trial being vitiated, unless an accused substantiates before the Court that it has caused prejudice to him. Obviously, it is ultimately for the Court to come to an appropriate conclusion by an adequate assessment of facts placed before it. (Para 16) -The right of an accused would arise, in getting the documents relied upon by the prosecution, after taking cognizance and before framing of the charges. Therefore, between taking cognizance and framing of charges, an accused should have sufficient window to go through the documents supplied to him as he is entitled to be heard at a later stage. (Para 17)
Code of Criminal Procedure, 1973; Section 227 – Before the stage of framing of charges, the Judge is expected to discharge an accused, if he is of the considered view that there is no sufficient ground to proceed against the accused. This being a judicial exercise, his discretion must be supported by adequate reasons. In discharge of his powers, he has to consider the records and documents submitted by the prosecution vis-àvis the arguments adduced by both sides. The words “after hearing the submissions of the accused” would imply an effective and meaningful hearing. It is not a mere procedural compliance. A Judge has to satisfy himself that the accused had reasonable time to ponder over and prepare his arguments before seeking a discharge. At this stage, an accused gets a substantive right as there is a window of opportunity for him to get discharged, instead of facing a prolonged trial. Such an opportunity can only be exercised by not only supplying the documents needed, but also giving adequate and sufficient time to the defence to place its case. Granting time for the aforesaid purpose is the sole discretion of the Court – The duty of the Court is to see as to whether the materials produced by the prosecution are reasonably related to the offence attributed against the accused. What is to be seen is the existence of a prima facie case. The case is at a pre-framing stage and therefore, it cannot be a full-fledged pretrial. Adequacy and sufficiency are the relevant factors to be seen. The test is one of the degree of probability. .Section 227 of the CrPC, 1973, in fact, is a provision which gives effect to Article 22 of the Constitution of India, 1950. The right of an accused to be heard is inalienable. For exercising this right, there has to be due consultation. Such a right can never be termed as a procedural one. It would be a ground to challenge the proceeding at that stage, but the same would not vitiate the trial. Suffice it is to reiterate that it is the duty of the court to ensure that the accused is given sufficient opportunities to consult his lawyer. (Para 18-20)
Code of Criminal Procedure, 1973; Section 228 -The Judge, while framing any charge, is ordained to read and explain it to the accused. Thereafter, the accused shall be asked as to whether he pleads guilty of the offence charged or claims to be tried. As a matter of routine, video conferencing must be avoided, unless there are compelling reasons to do so. This is an occasion where the Judge avoids the lawyer and keeps in touch with the accused directly. He records the response of the accused. Under those circumstances, unless a situation so warrants otherwise, the presence of the accused shall be ensured. (Para 21)
Code of Criminal Procedure, 1973; Sections 230,231 – To ensure fair play, as a normal practice, the Court has to fix a date for the examination of the witnesses. The idea is to complete the examination-inchief and cross examination, both at the same time. While fixing the date, the Court is expected to take into consideration the relative convenience of the parties, though the discretion lies with it. Sub-section (1) of Section 231 of the CrPC, 1973 fixes a responsibility on the Court, the prosecution and the defence to go ahead with the examination of witnesses on the date so fixed. Therefore, even for this reason, the Court shall ascertain and then decide a convenient date for both sides, while being conscious about any attempt to drag the trial. Completion of such examination is a matter of rule as any deferment can at best be an exception, to the discretion of the Court. Obviously, the use of such a discretion, being judicial in nature, has to be on a case-to-case basis. Suffice it is to state that a balance has to be struck between the competing interests. (Para 22)
Code of Criminal Procedure, 1973; Section 354– Section 354 of the CrPC, 1973 though merely deals with the language and contents of judgment, also sheds light on the fact that a judgment contains two distinct parts, wherein the first part deals with the conviction and the second deals with the sentence. Sub-section (1)(c) of the aforesaid provision has to be understood to mean that a Judge is expected to consider the aggravating and mitigating circumstances. In such view of the matter, sub-section (3) of the aforesaid provision is more clarificatory, keeping in mind the nature of the offence committed. As a convict is heard on sentence, it follows that any decision on sentence has to indicate the reasons for exercise of judicial discretion by the Judge. (Para 42)
Code of Criminal Procedure, 1973; Section 233– If the accused applies for the issue of process to compel the attendance of any witnesses or production of document, the Judge shall issue such process. It is only when he comes to the conclusion, that an application filed for the aforesaid purpose on behalf of the defence is vexatious or filed to delay the proceedings or for defeating the ends of justice, it has to be refused. We have no hesitation in holding that when an application is moved invoking Section 233 of the CrPC, 1973 the Judge is duty bound to issue process, unless he is satisfied on the existence of the three elements as aforesaid. Any denial would be an affront to the concept of a fair trial.
Code of Criminal Procedure, 1973; Section 309 -This section places emphasis on the continuation of the trial as any obstruction and delay would hamper the process of justice. In a criminal trial, continuity is of utmost importance, as it not only helps the court to concentrate, but ensures quality justice. However, the courts are not powerless in granting adjournments if the circumstances so warrant. Therefore, despite a bar under the second and fourth proviso to Section 309, an adjournment can be granted, provided the party who seeks so, satisfies the court. After all, a speedy trial enures to the benefit of the accused- (Para 24)
Code of Criminal Procedure, 1973; Section 465 – This provision is meant to uphold the decision of the trial court, even in a case where there is an apparent irregularity in procedure. If the evidence available has been duly taken note of by the Court, then such a decision cannot be reversed on account of a mere technical error. This is based on the principle that a procedural law is the handmaid of justice. However, the ultimate issue is as to whether such an error or omission has constituted a failure of justice, which is one of fact, to be decided on the touchstone of prejudice- If the Appellate Court is of the view that there is a continued noncompliance of the substantial provisions of the CrPC, 1973 then the rigour of Section 465 of the CrPC, 1973 would not apply and, in that case, an order of remand would be justified. (Para 25-26)
Code of Criminal Procedure, 1973; Section 386– An Appellate Court has got ample power to direct re-trial. However, such a power is to be exercised in exceptional cases. The irregularities found must be so material that a re-trial is the only option. In other words, the failure to follow the mandate of law must cause a serious prejudice vitiating the entire trial, which cannot be cured otherwise, except by way of a retrial. Once such a re-trial is ordered, the effect is that all the proceedings recorded by the court would get obliterated leading to a fresh trial, which is inclusive of the examination of witnesses. (Para 27)
Code Of Criminal Procedure, 1973; Section 360- Probation of Offenders Act, 1958; Sections 3,4,6- A trial court is duty bound to comply with the mandate of Section 360 of the CrPC, 1973 read with Sections 3, 4 and 6 of the Act, 1958 before embarking into the question of sentence. In this connection, we may note that sub-section (10) of Section 360 of the CrPC, 1973 makes a conscious effort to remind the Judge of the rigour of the beneficial provisions contained in the Act, 1958. (Para 28)
Rules for Video Conferencing for Courts, 2020 –Under Rule 11, an act of securing the presence of an accused through video conferencing at the time of judicial remand for the first time or police remand, is not a matter of course and, therefore, it is to be exercised only in exceptional circumstances for the reasons to be recorded in writing. Similar is the case qua recording of the statement of an accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “CrPC, 1973”), in which case, it is obligatory on the part of the Court to make sure that the accused is free from any form of coercion, threat or undue influence. (Para 4)
Criminal Trial – Fair Trial –The right to fair hearing is a part of Article 21 of the Constitution of India, 1950. A trial should be a real one and, therefore, not a mere pretence. There shall never be an impression over the decision of a Court that it has predetermined and pre-judged a case even before starting a trial, or else, such a trial would become an empty formality. (Para 7-10)- Speedy Trial -While a speedy trial is in the best interest of everyone, including the society, the pace can only be set through the procedural mechanism, and it cannot be done at the mere dictate of the Court in ignorance of the procedural law. At the same time, care has to be taken with the aid of the law, to prevent the miscarriage of justice, when the delay is caused on purpose. Thus, a speedy trial, being a facet of fair trial, cannot be permitted to destroy the latter by its recklessness. Any anxiety on the part of the Court, either to expedite the trial in contravention of law, or delay it unnecessarily, would seriously impede fair trial. In such a case, either the prosecution or the defence would bear the consequences.