Accused – Entitled to Get Copy of FIR

An accused is entitled to get a copy of the first information report at an earlier stage than as prescribed under Section 207 CrPC.

An accused who has reasons to suspect that he has been roped in a criminal case and his name may be finding place in a first information report can submit an application though his representative/agent/pairokar for grant of a certified copy before the police officer concerned or to the Superintendent of Police on payment of such fee which is payable for obtaining such a copy from the court. On such application being made, the copy shall be supplied within twenty four hours.

Once the first information report is forwarded by the police station to the Magistrate concerned or any Special Judge, on an application being filed for certified copy on behalf of the accused, the same shall be given by the court concerned within two working days. The aforesaid direction has nothing to do with the statutory mandate inhered under Section 207 CrPC.

The copies of FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under the POSCO Act and such other offences, should be uploaded on the police website, and if there is no such website, on the official website of the State Government, within twenty four hours of the registration of the first information report so that the accused or any person connected with the same can download the FIR and file appropriate application before the court as per law for redressal of his grievances.  Youth Bar Association of India v. Union of India, (2016) 9 SCC 473.

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Concept of – Fair Trial

The concept of fair trial is not a vagur idea.  It is a concrete phenomenon. It is not rigid and there cannot be any straitjacket formula for applying the same. On occasions it has the necessary flexibility. Therefore, it cannot be attributed or clothed with any kind of rigidity or flexibility in its application. It is because fair trial in its ambit requires fairness to the accused, the victim and the collective at large. Neither the accused nor the prosecution nor the victim which is a part of the society can claim absolute predominance over the other. Once absolute predominance is recognized, it will have the effect potentiality to bring in an anarchical disorder in the conducting of trial defying established legal norm. There should be passion for doing justice but it must be commanded by reasons and not propelled by any kind of vague instigation. It would be dependent on the fact situation; established norms and recognized principles and eventual appreciation of the factual scenario in entirety. There may be cases which may command compartmentalization but it cannot be stated to be an inflexible rule. Each and every irregularity cannot be imported to the arena of fair trial. There may be situations where injustice to the victim may play a vitol role. The centripodal purpose is to see that the injustice is avoided when the trial is conducted. Simultaneously the concept of fair trial cannot be allowed to such an extent so that the systemic order of conducting a trial in accordance with CrPC or other enactments get mortgaged to the whims and fancies of the defence or prosecution. The command of the Code cannot be thrown to winds. In such situation, as has been laid down in many an authority, the Courts have played a significant role. A pleas of fairness cannot be utilized to build castles in Spain or permitted to perceive a bright moon in a sunny afternoon. It cannot be acquiesced to create an organic disorder in the system. It cannot be acceded to manure a fertile mind to usher in the nemesis of the concept of trial as such.

It has been impliedly stated that fair trial should not be kept on its own pedestal. It ought to remain in its desired height but as far as its applicability is concerned, the party invoking it has to establish with the support of established principles. State of Haryana v. Ram Mehar and Others, (2016) 8 SCC 762.

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.

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.

 

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.