Framing of Charge

It is settled position of law that at the time of framing a charge the accused has no right to produce any material because the expression “record of the cases” in Section 227 CrPC refers to the material produced by the prosecution and not by the accused.

The Sessions Judge has the power to discharge the accused in the following circumstances:

  • Where the evidence produced is not sufficient,
  • Where there is no legal ground for proceeding against the accused,
  • Where the prosecution is clearly barred by limitation, or
  • Where he is precluded from proceeding because of a prior judgment of High Court.

In Kanti Bhadra Shah v. State of Bengal, 2000 (40) ACC 441, the Hon’ble Supreme Court has held that the discharge order must contain reasons but an order of framing charge cannot be quashed merely because it does not contain reasons.

In State of J&K v. Sudarshan Khakkar, 1997 (35) ACC 414 and in Rukmani Narvekar v. Vijaya Satardekar, 2009 (66) ACC 480, it has been held that no weight is to be attached to the probable defence of the accused and at the time of framing of the charge, the Court has to confine its attention to documents referred to under Section 173 CrPC only. Aaram Singh v. State of U.P., 2016 (96) ACC 738.

Advertisements

Distinction Between Section 245(1) and 245(2) of CrPC

The scope and ambit of sub-clause (1) and (2) of Section 245 CrPC is distinct and different, which can be summed up as follows:

  • The Magistrate exercises power under Section 245 (1) on the accuse being produced before him under Section 244;
  • The evidence is led in the presence of the accused who has a right to cross examine the witnesses led at the stage of Section 244;
  • There being no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245 (1) CrPC.
  • Section 245(2) CrPC is a stage before the evidence of the prosecution under Section 244(1) is completed or any stage prior to that; such stages would be under Section 200 CrPC to Section 204 CrPC, because the next stage is only the appearance of the accused before the Magistrate in a warrant case under Section 244 CrPC;
  • The Magistrate can take decision under Section 245(2) CrPC before the accused is brought before the Court or before the evidence is led under Section 244 CrPC. There is no question of consideration of evidence at the stage as there is none. Mahesh Kumar State of U.P., 2016 (96) ACC 636.

Creditor – Can maintain civil and criminal proceeding

There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceeding at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case vis-à-vis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt; in a civil suit ‘preponderance of probability’ would serve the purpose of obtaining a decree. Any finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding. Jamil v. State of U.P., 2016 (96) ACC 623.

The Last Seen Theory

The “Last Seen Theory” is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The “Last Seen Theory” holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well settled that it is not prudent to base the conviction solely on “last seen theory”. “Last Seen Theory” should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.

In State of Rajasthan v. Kashi Ram, (2006)12 SCC 254, it was held as under:

“It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so, he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. Nizam and Another v. State of Rajasthan, (2016) 1 SCC 550.

 

Investigation – Powers of a Magistrate

In Vinay Tyagi v.Irshad Ali, (2013) 5 SCC 762, it was held as under:

“(1) The Magistrate has no power to direct ‘reinvestigation’ or ‘fresh investigation’ (de novo) in the case initiated on the basis of a police report.

(2) A Magistrate has the power to direct ‘further investigation’ after filing of a police report in terms of Section 173 (6) of the Code.

(3) Neither the scheme of the Code nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173(2) of Criminal Procedure Code cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156(3) and the language of Section 173(8) itself. In fact, such power would have to be read into the language of Section 173(8).

(4) The Criminal Procedure Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own.

(6) Whether the Magistrate should direct ‘further investigation’ or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct ‘further investigation’ or ‘reinvestigation’ as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, reinvestigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation. Chandra Babu v. State, (2015) 8 SCC 774.

 

Delay in Examination of Witness

It cannot be held as a rule of universal application that the testimony of a witness becomes unreliable merely because there is delay in examination of a particular witness. In Sunil Kumar v. State of Rajasthan, (2005) 9 SCC 283, it was held that the delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigation agency for the purpose of introducing a core of witness to falsely support the prosecution case. V.K. Mishra v. State of Uttarakhand, 2015 (90) ACC 997.

Every Breach of Contract – Does Not Amount to Cheating

The settled proposition of law is that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In other words for the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code, 1860 can be said to have been made out. Vesa Holdings Pvt. Ltd. v. State of Kerala, (2015) 8 SCC 293.