A lawyer who refuses to defend a person on the ground that people believe him to be guilty is himself guilty of professional misconduct. The general bias in India towards the adversarial decision-making system is evident. We have a neutral judge that decides a particular case by listening and weighing the arguments presented by both sides.
On the other hand, in an inquisitorial decision-making system the judge is actively involved with the lawyers in an attempt to get justice; the judge in this system is not just a decision-maker but is also involved with the purpose of finding the truth.
One such element is seen under Section of the criminal procedure code, which deals with private complaints. Through this section whenever there is a doubt, the judge can ask the police to further investigate the matter, this is an inquisitorial initiative. Another one of such inquisitorial tools can be seen when we take a look at Section of the criminal procedure code, which allows the trial court to call independent witnesses, i.
These witnesses can be called if the judge feels that their contribution is essential in deciding the outcome of the case. This section allows the judge to take an initiative and expand his decision-making capabilities by going beyond the witness list that has been presented by the defence and the prosecution. So, in the larger adversarial system that India has there is an injection of an inquisitorial tool such as and due to this reason, this section can be regarded as one of the most integral sections in the criminal procedure code.
This section also encourages judges to take more part in the procedural part of the case by involving themselves deeper into the case. In essence this section seeks to highlight that a judge has the power to summon or examine a material witness. A Court may summon any person to be a witness or examine any person attending, who is not a witness, at any stage of the investigation, trial or other procedure under this Code.
The Supreme Court in several cases while examining Section has in essence stated that the aim of section is to discover the truth which is the predominant beauty of the criminal procedure code. The determinative factor is whether it is essential to the just decision of the case. Further the case also sheds light on the extent to which Section can be interpreted, by stating that,. In consequences, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code a to summon any one as a witness, or b to examine any person present in Court, or c to recall and re-examine any person whose evidence has already been recorded.
On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. It can clearly be seen that the Supreme Court has explained in great detail how the section is to be implemented and what meaning the section carries with it. This judgement is important as it provides a standalone elongated explanation of Section The procedure of the trial once the independent witnesses summoned is by the court is that the court examines the witness and then gives a chance to the prosecution and the defence to examine the witness too.
Technically here, the chief examination is done by the court then followed by the examinations by the prosecution and the defence. To see how section act as a double-edged sword we will have to look at an example. This re-examination of a witness is known as recalling of a witness. If there is a genuine blockage or a doubt in the chain of circumstances, then re-examination of witnesses is a genuine solution. However, this provision can be enforced using two pathways, firstly the court can do it Suo Moto and secondly the parties can also seek the permission of the court.
There is no limitation on the purposes on which recalling can be done, however this reason must be genuine in nature. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case and has to be determined by the Presiding Judge.
A witness examination can take a long period of time and requires a lot of initial procedure such as issuing of summons, a delay can be caused due to personal reasons of the witness and further unavoidable reasons. So, the defence might use section not just to recall the witness for substantive reasons of genuine doubt but to also put a hold to the trial or delay the trial to some extent.
These concerns have been clarified by the Supreme in Natasha Singh V CBI State , where the Supreme highlights that the provisions under Section must not be misused; the court stated that,.
An application under Section CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party.
Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties.
These clever tactics on part of the defence can easily be resolved if the judge identifies frivolousness of the application by the defence and decides the merit of the section application purely on genuine substantive doubts. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.
The part of section that can be misused makes it an extremely important provision and also highlights how it is at the crux of it, a double-edged sword. Section even though put as an inquisitorial initiative in our Criminal Procedure Code is regularly being misused by lawyers to delay trials, however, this problem has a very simple solution which calls for an alert and active judge.
The double-edged nature of this section can very easily be addressed if a judge can identify the intention through a witness is being re-called by the defence or the prosecution. It is essential that the through the help of the judicial system, Section gets the positive recognition that it very rightly deserves. Womanish foeticide is one of the most sensitive and burning issues not only for India but for the whole world.
This process began in the early s when ultrasound ways gained wide use in India. There was tendency for families to continuously produce children until a manly child was born. This was primarily due to the large sexist culture that exists in India against women.
This is reflected by knowledge rates among women as well as profitable participation, which are both particularly low in countries where womanish foeticide is prominent, and an unstable population rate exists alongside. The government originally supported the practice to control population growth.
It was also amended in holding medical professionals fairly responsible. Womanish foeticide is the aborting of a girl foetus in the womb before its complete growth. Womanish foeticide has come a shy and shocking verity of our nation. In India a strong fondness for sons over son. People ask lower families with comparatively lesser sons by abuse medical technologies. Womanish foeticide is the procedure of revocation to terminate womanish fetus from the womb of the mama before taking birth after the coitus recognition tests like an ultrasound check-up.
Womanish foeticide and indeed any coitus recognition test is illegal in India. Womanish foeticide has been in practice for ages especially for the families who have a preference only manly child. Several religious, social, fiscal and emotional are the reason for womanish foeticide. Thus, the time has been changed now much still, numerous reasons and beliefs are ongoing in some families. Some main reasons for womanish foeticide are. Therefore, Parents understand that son will earn plutocrat for the whole life and watch their parents still girls will get married a day and will have a separate family.
Science and Technological advancement and serviceability have made this veritably easy task for parents. Coitus rate denotes the rate of ladies to males in a specific region. Numerous practices like womanish foeticide and womanish infanticide killing a baby girl after her birth have had a contrary influence on the coitus rate.
Therefore, it rises and promotes numerous social immoralities. As per the decennial Indian tale, Coitus Rate of India is It means Thus, India has ladies per males. So, India has As we all know that womanish foeticide is a crime and social wrong for the future of women. Hence, we should notice the causes for womanish foeticide in Indian society. Womanish infanticide or womanish feticide is primarily because of coitus determination.
Some measures are. Section of the Indian Penal Code read with the Medical Termination of Gestation Act, where all the restrictions assessed therein, including the time limit of 20 weeks, other than the bones to insure good medical conditions, infringe the right to revocation and the right to health, which radiate from right to life as guaranteed under Composition 21 of the Constitution.
Right to revocation is a species of right to sequestration, which is again placarded a continuance of the right to life under Art 21 of the Constitution. Sections of the Indian Penal Code IPC deal with confinement and death of an future child and depending on the inflexibility and intention with which the crime is committed, the penalties range from seven times of imprisonment and fine to life imprisonment.
Whoever freely causes a woman with child to miscarry, shall, if similar confinement be not caused in good faith for the purpose of saving the life of the woman, be penalized with imprisonment of either description for a term which may extend to three times, or with fine, or with both, and, if the woman be quick with child, shall be penalized with imprisonment of either description for a term which may extend to seven times, and shall also be liable to fine.
Explanation-A woman who causes herself to miscarry, is within the meaning of this section. Whoever commits the offence defined in the last antedating section without the concurrence of the woman, whether the woman is quick with child or not, shall be penalized with imprisonment for life or with imprisonment of either description for a term which may extend to ten times.
Whoever, with intent to beget the confinement of woman with child, does any act which causes the death of similar woman, shall be penalized with imprisonment of either description for a term may extend to ten times, and shall also be liable to fine.
Still, shall be penalized either with imprisonment for life or with the discipline above mentioned, If the act is done without the concurrence of the woman. Section Act done with intent to help child being born alive or to beget it to die after birth. Whoever before the birth of any child does any act with the intention of thereby precluding that child from being born alive or causing it to die after its birth, and does by similar help that child from being born alive, or causes it to die after its birth, shall, if similar act be not caused in good faith for the purpose of saving the life of the mama, be penalized with imprisonment of either description for a term which may extend to ten times or with fine.
Forthcoming is the name of your girl child; history is the name of your mama. Womanish foeticide is self-murder. So, save the girl child and secure the future. There will be the dangerous results of the womanish feticide.
Demography reports advise India that in the coming twenty times there will be a failure of misters in the marriage request substantially because of the adverse coitus rate. The Court also observed that merely because some time is taken for conducting preliminary enquiry, that cannot be a ground to quash the criminal proceedings for an offence under the Prevention of Corruption Act. Very rightly so! While continuing in the same vein, the Bench then also reveals in para 4.
The High Court has also quashed the Entrustment Order dated The High Court has also declared Rule 3. Be it noted, the Bench then observes in para 8. It is required to be noted that Inspector Nisar Hussain who was authorised to investigate the FIR for the aforesaid offences was also authorised to arrest the accused persons whenever and wherever necessary.
It is also required to be noted that in the said authorisation it has been specifically mentioned that he will conduct the investigation of the case under the supervision of the Superintendent of Police BKB. Even otherwise, it is required to be noted that on a plain reading of the second proviso to Section 3, only two requirements are required to be satisfied, namely, i authorisation in writing by an officer of the Vigilance Organisation not below the rank of Assistant Superintendent of Police to an officer of not below the rank of Sub-Inspector of Police to investigate such offences; and ii such officer authorised may investigate the offences so specified in the order of authorisation.
Therefore, as such, there is no requirement of giving either special reasons or there is no requirement to mention reasons. What is required to be considered is whether there is an application of mind with respect to offences and the relevant provisions with respect to authorisation. Therefore, as such, the High Court has committed a grave error in quashing the entire criminal proceedings holding that authorisation in favour of Inspector Nisar Hussain was bad in law, relying upon the observations made by this Court in the case of Bhajan Lal supra , which has been subsequently explained by this court in the case of Ram Singh supra.
As such, the aforesaid issue is squarely covered against the respondent in view of the decision of this Court in the case of Pravin Chandra Mody supra. In paragraph 6, it is observed and held as under:. Section 2 provides that where a police officer enquires into an offence under Section 1 his action cannot be called into question on the ground that he was not empowered to investigate the offence. The enquiry was an integrated one, being based on the same set of facts.
Even if the offence under the Essential Commodities Act may not be cognizable — though it is not alleged by the appellant that it is non-cognizable — the police officer would be competent to include it in the charge-sheet under Section with respect to a cognizable offence.
In Ram Krishna Dalmia v. State [AIR Pb. Where the information discloses a cognizable as well as a non-cognizable offence the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same facts. He can include that non-cognizable offence in the charge-sheet which he presents for a cognizable offence. We entirely agree. Both the offences if cognizable could be investigated together under Chapter XIV of the Code and also if one of them was a non-cognizable offence.
Merely because the offence of the conspiracy may be involved, investigation into the substantive offence, i. Rule 3. A PE should normally be completed in a period of six months. The PE will be registered on a given proforma Annexure K. Sometimes courts also order an enquiry by the State Vigilance Organisation. Such preliminary enquiries should also be registered after approval of the Commissioner of Vigilance. A PE may be converted into FIR, with the prior concurrence of central office, as soon as sufficient material becomes available to show that, prima facie, commission of a cognizable offence under Prevention of Corruption Act is made out.
When the material available indicates ingredients of misconduct alone and not criminal misconduct, a self-contained note should be sent to the appropriate disciplinary authority for departmental action.
As per Clause 3. Considering the nature of offences, a detailed enquiry is required and therefore it is observed in Clause 3. It is the case on behalf of the respondent and even as observed and held by the High Court in the impugned judgment and order as per the law laid down by this Court in the case of Lalita Kumari supra , a detailed investigation into the allegations on merits is not required by holding Preliminary Enquiry and that such enquiry is to be completed within a period of 7 days is concerned, it is to be noted that in the case of Lalita Kumari supra , it is not held that if the Preliminary Enquiry is not completed within a period of 7 days, the entire criminal proceedings would be void and the same are to be quashed.
While holding a Preliminary Enquiry under Clause 3. Thus, there must be a chain of evidence where no reasonable ground is left for a conclusion which is relevant with the innocence of the accused and it must be such as to show that, it is within all human possibility, the act must have been done by the accused Hanumant Govind Nargundkar v State of M.
Sometimes the facts happen suddenly and do not leave behind much direct evidence. In such cases, the main event will have to be reconstructed before the court with the help of surrounding circumstances such as the cause or the effects of the event. Circumstances sometimes speak as forcefully as does direct evidence. For instance, there is a quiet little village touched by a road which ends there.
Occasionally the driver who belongs to the village comes there with his lorry for night rests. The night on which the truck came, a man from the village was found lying dead by the road-side. The position of his body and nature of his injuries creates a doubt that he was dragged by a vehicle for a little distance and then one wheel ran over him. There was no dust storm, rain or mist to obstruct visibility. From these circumstances, certain facts may reasonably be inferred and many others can be safely presumed as a matter of probability.
The facts tell a story beyond a shadow of a doubt that it is the work of the village lorry and it must have been negligently handled. Where the circumstantial evidence only showed that the accused and deceased were seen together the previous night, it was held to be not sufficient Prem Thakur v State of Punjab AIR SC The Kerala high court has observed that, in a murder case, just because the doctor conducting the autopsies not in a position to give his expert opinion related to the cause of the death of the person, the court does not become helpless in this situation.
It can still convict the accused on the basis of other circumstantial evidence they already have on the basis of the investigation. State v Mani, Cr LJ In Laxman Naik v State of Orissa AIR SC , the conviction and sentence of death supported on the basis of circumstantial evidence which presented a continuous and complete chain of events which lead to the rape and murder of a seven-year-old daughter of the brother of the accused.
The confession of an accused person is the best evidence if it is voluntary, to make this happen accused are tortured till they confess, and their confession is used as evidence of guilt against them. Today, no court would act upon a confession if there is the slightest suspicion of torture having being employed, but that does not prevent the person entrusted with investigation from resorting to such methods for gathering evidence. The remedy lies elsewhere, and not in courts.
Mechanical aids like lie detectors and truth drugs are being used, but no court would think of acting upon such mechanical aids only. A court after considering the evidence presented before it and hearing the arguments comes first to a conclusion that if the facts exist or not in reality which have been declared or denied by the parties and after finding all the facts, the court applies the rule of law.
If all the facts given in the rule of law are found to exist, the right or liability which would follow according to the rule of law is ordered by the court. When a court finds that facts provided exists, the following facts are said to have been proved, if the court finds they do not exist, they are said to be rejected by the court according to Section 3 of Indian Evidence Act. Section deals with the burden of proving a fact within the special knowledge of a particular person.
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
For example, A does an act. The circumstances are such that the reasonable inference is that he did the act with a particular intention. To throw the burden upon the prosecution would reduce the trial to an absurdity, as the prosecution will have to examine every ticket-issuing clerk of every station in the country, to show that A did not buy a ticket.
In such a situation, it is not a matter of mere inconvenience but one reducing the trial to a farce. In Shambu Nath Mehra v. The prosecution proved that no second-class tickets were issued on that day for the journey, and relied on illustration b to Section and contended that burden was on the applicant to show that he travelled or paid this fare or the difference on the train. If facts within the special knowledge of the accused are not satisfactorily explained by the accused it would be a factor against him, though by itself it would not be conclusive about his guilt.
It would be relevant while considering the totality of the circumstantial evidence. It is submitted that under the Indian law, section should be more liberally used against the accused [ State of Punjab v Karnail Singh 11 SCC ]. As you can see, circumstantial evidence can be very convincing and sometimes it can be incredibly powerful but it does mean that circumstantial evidence is different from direct evidence.
In this, one has to draw more links in his evidentiary chain of reasoning plus it is not simply a matter of belief. Evidence can be direct evidence and circumstantial evidence at the same time, it depends upon what you are trying to prove.
So guess what whether something is direct evidence or circumstantial evidence depends upon the assertion you are trying to prove. So if you need to prove in your case that it was raining yesterday, it is the direct evidence we are talking about here.
If you need to prove rather that people around where John was standing were carrying umbrellas, it is circumstantial evidence and that is essentially different. It just depends on what it is you are trying to prove. Circumstantial evidence is incredibly important in criminal cases and the reason why it is important is that in criminal cases there is a probable need to prove the Actus Reus which is an act and the Mens Rea which is the intention.
It is very important to use circumstantial evidence for a variety of propositions in a criminal case. Direct evidence turns mainly on whether you believe the witness, if you believe this witness and saw that it was raining then you have proof of the fact that you are trying to establish but circumstantial evidence requires a different form of reasoning. First of all, it has to be believed for whatever reason the underlying statement just like with direct evidence, it should be believed that this witness saw that the road was wet but then need to go through a different pattern of reasoning because now it is entirely possible that the fact the road was wet shows that it rained yesterday but it is also possible that the fact that the road was wet means street was cleaned.
Use the two-fold breeze process which makes this different from direct evidence. So the fact that the road was wet probably means that it was raining but it may mean that the street was being cleaned. So whether or not we should accept proposition A or proposition B depends upon all the other evidence in the case. What it means is if there is enough circumstantial evidence, there were clouds in the area, for example, more likely it was raining and we saw many people around with umbrellas that day, then more likely it was raining or on the contrary, you know at the same time as he saw the road was wet somebody reported seeing a street cleaner.
This gives us the idea that what is being tried to prove in circumstantial evidence requires to evaluate conclusions in light of all the evidence of a case. Circumstantial evidence requires easy use of an interim proposition sometimes, it also requires the obviousness of other pieces of evidence.
So the propositions can be strengthened by adding additional facts. If circumstantial evidence is being used to prove the following case then it should be remembered that it should be the only reasonable inference from the facts.
When providing the circumstantial evidence one should not jump too easily to the conclusion, remember that other possibilities are involved and think them through. The inference one wishes to draw probably by tendering other forms of circumstantial evidence because the truth of the matter is the more one can build various circumstantial points, the more strong propositions can be proven.
In many cases, the prosecutor must rely on circumstantial evidence in order to prove a necessary element of the crime charged. Many offenses require that the prosecutor prove intent. When a person is caught shoplifting, the prosecutor may only be able to prove petty theft , which is a misdemeanor level offense.
However, if the prosecutor can show that the defendant intended to steal when he or she entered the store, the defendant can be charged with burglary. To prove this charge, the prosecution would almost always rely on circumstantial evidence, such as the fact that the defendant did not enter the store with his wallet or any cash, which would show that the defendant intended to steal and not shop when he entered the business.
Because this type of direct evidence is rarely available, a prosecutor would therefore need to have good circumstantial evidence to show intent. There are limitations to how circumstantial evidence can be used. A prosecutor must still prove every element of the offense beyond a reasonable doubt. Before a jury can convict someone solely based on circumstantial evidence, the prosecutor must convince the jury that the only reasonable conclusion that can be drawn from the circumstantial evidence is that the defendant is guilty beyond a reasonable doubt.
This can be a difficult, especially in situations where the circumstantial evidence may point to other possibilities or reasonable explanations. Having a knowledgeable and experienced criminal defense attorney can be crucial when the prosecution is attempting to prove a case solely on circumstantial evidence. If you have been accused of a felony or misdemeanor offense or are currently under investigation, it is critical that you meet with a Los Angeles Criminal Defense Lawyer as soon as possible.
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