General Principles of Criminal Law

INTERNATIONAL LAW

PART 3. GENERAL PRINCIPLES OF CRIMINAL LAW

Article 22

Nullum crimen sine lege

  1. A person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court.
  2. The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.
  3. This article shall not affect the characterization of any conduct as criminal under international law independently of this Statute.

Article 23

Nulla poena sine lege

A person convicted by the Court may be punished only in accordance with this Statute.

Article 24

Non-retroactivity ratione personae

1.   No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.

2.   In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.

Article 25

Individual criminal responsibility

1.  The Court shall have jurisdiction over natural persons pursuant to this Statute.

2.   A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.

3.    In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;

(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime;

(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;

(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.

4.  No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.

Article 26

Exclusion of jurisdiction over persons under eighteen

The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.

Article 27

Irrelevance of official capacity

1.  This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2.   Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Article 28

Responsibility of commanders and other superiors

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

(a)  A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and

(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Article 29

Non-applicability of statute of limitations

The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.

Article 30

Mental element

1.  Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

2.  For the purposes of this article, a person has intent where:

(a) In relation to conduct, that person means to engage in the conduct;
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

3.  For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly.

Article 31

Grounds for excluding criminal responsibility

1.   In addition to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the time of that person’s conduct:

(a) The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law;

(b) The person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court;

(c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. The fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility under this subparagraph;

(d) The conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:

(i) Made by other persons; or
(ii) Constituted by other circumstances beyond that person’s control.

2.  The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it.

3.  At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in article 21. The procedures relating to the consideration of such a ground shall be provided for in the Rules of Procedure and Evidence.

Article 32

Mistake of fact or mistake of law

1.   A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.

2.   A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33.

Article 33

Superior orders and prescription of law

1.   The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

(a) The person was under a legal obligation to obey orders of the Government or the superior in question;
(b) The person did not know that the order was unlawful; and

(c) The order was not manifestly unlawful.

2.  For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.


 Source: ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

Admissibility of a Criminal Case

Admissibility of a Criminal Case

The Court shall determine that a case is inadmissible where:

(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d) The case is not of sufficient gravity to justify further action by the Court.

In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:

(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.


 Source: ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

Santosh Kumari Vs State of Jammu and Kashmir and Others -13/09/2011

SUPREME COURT OF INDIA JUDGMENTS

The object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction. If, therefore, the necessary information is conveyed to him in other ways and there is no prejudice, the framing of the charge is not invalidated. The essential part of this part of law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for. Sections 34, 114 and 149 of the IPC provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and as explained by five Judge Constitution Bench of this Court in Willie Slavey v. The State of M.P., (1955) 2 SCR 1140 at p. 1189, the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.

JT 2011 (10) SC 271 : (2011) 10 SCALE 379


(SUPREME COURT OF INDIA)

Santosh Kumari Vs State of Jammu and Kashmir and Others 

(Before : J.M. Panchal and H.L. Gokhle, JJ.)

Criminal Appeal Nos. 1660-1662 of 2011 (Arising out of S.L.P. (Criminal) Nos. 751-753 of 2011) : Decided On: 13-09-2011

Counsel for the Parties:

Nitin Sangra and Hemantika Wahi, Advs.

R.P. Bhatt, Sr. Adv., Bimal Roy Jad, Vikram Rathore, Sunil Fernandes, Suhaas Joshi, Astha Sharma and Yawar Masoodi, Advs.

JUDGMENT

J.M. Panchal, J—The Appellant is the widow of late Mr. Surinder Singh, who was murdered at about 9:00PM on June 28, 2007. Criminal Appeal No. 1660/2011 is directed against judgment dated October 20, 2010 rendered by the learned Single Judge of High Court of Jammu and Kashmir at Jammu in Criminal Revision No. 29 of 2008 by which the order dated March 24, 2008 passed by the learned Additional Sessions Judge, Kathua framing charges under Sections 302, 109, 147, 148 read with Section 149 of Ranbir Penal Code against Respondent Nos. 3 to 7 is set aside and the matter is remanded to the learned Judge, Samba to consider the case in terms of Sections 267, 268 and 269 of the Code of Criminal Procedure, 1989 (1933 A.D.) (as applicable in the State of Jammu and Kashmir). Criminal Appeal No. 1661 of 2011 is directed against order dated October 20, 2010 passed by the learned Single Judge of High Court of Jammu and Kashmir at Jammu in 561-A Code of Criminal Procedure No. 54 of 2009 by which prayer made by the Respondent of the present appeal to quash order dated March 24, 2008 passed by the learned Additional Sessions Judge, Kathua in a Criminal Challan being File No. 33 of 2007 titled as State v. Subhash Singh and Others framing charge against him for commission of offences under Sections 302, 109, 147, 148 read with 149 of Ranbir Penal Code, is allowed. Criminal Appeal No. 1662 of 2011 is directed against judgment dated October 20, 2010 passed by the learned Single Judge of High Court of Jammu and Kashmir at Jammu in Bail Application No. 26 of 2010 by which the Respondent Nos. 3 to 7 have been released on interim bail pending trial against the Respondents for above mentioned offences. As the three appeals arise out of common judgment and order dated October 20, 2010 rendered by the learned Single Judge of High Court of Jammu and Kashmir in Criminal Revision No. 29 of 2008, petition filed under Section 561-A Code of Criminal Procedure No. 54 of 2009 and Bail Application No. 26 of 2010, this Court proposes to dispose of them by this common judgment.

2. The case of the prosecution is that Respondent Nos. 3 to 8 in criminal appeal No. 1660 of 2011 formed a lawful assembly on 29-06-2007, common object of which was to murder Surinder Singh and in prosecution of the common object of the said assembly, Respondents Nos. 3 to 8 mounted a murderous assault on Surinder Singh, husband of the Appellant, at village Sanoora, District Samba (J & K). The injured was immediately shifted to hospital for treatment. On the basis of the information given by the Appellant, FIR No. 113/2007 under Section 307 read with 109 of Ranbir Penal Code was registered at police station Hiranagar, in connection with the aforesaid incident on June 29, 2007. On July 2, 2007 injured Surinder Singh succumbed to his injuries in Military Hospital, Satwari, and Jammu and, therefore, offence punishable under Section 302 of Ranbir Penal Code was added. On the basis of FIR lodged by the Appellant, investigation was undertaken. During the course of investigation statement of the Appellant and other witnesses were recorded under Section 164 of the Code of Criminal Procedure 1989. The dead body of the deceased was sent for postmortem examination. After completion of the investigation, the investigating agency had filed charge sheet in the Court of learned Magistrate for offences punishable under Sections 302, 109, 147, 148, 149 of the Ranbir Penal Code. As the offence punishable under Section 302 is triable exclusively by a Court of Sessions, the case was committed to Sessions Court for trial. The learned Additional Sessions Judge, after hearing the prosecution and the accused on the question of framing charge, framed necessary charge on March 24, 2008 against each accused for the offences punishable under Sections 302, 109, 147, 148, 149 of Ranbir Penal Code.

3. Feeling aggrieved by the framing of above mentioned charges by the trial court on March 24, 2008, the Respondent Nos. 3 to 7 in Criminal Appeal No. 1660 of 2011 preferred Criminal Revision No. 29 of 2008 before the High Court. The High Court by order dated June 6, 2008 issued notice and summoned the record of the case from the trial court. On March 20, 2009, the Respondent No. 8, who is original accused No. 6, preferred a petition No. 54 of 2009 under Section 561-A of the Code of Criminal Procedure to quash order dated March 24, 2008 passed by the trial court framing charges against him for commission of offences punishable under Sections 302, 109, 147, 148 read with 149 of the Ranbir Penal Code. During the pendency of above numbered petitions, the High Court by order dated August 13, 2009 sent back the record to the trial court and granted liberty to the Respondent Nos. 3 to 8 to seek bail from the trial court. When the above numbered Revision and the petition filed under Section 561-A were pending disposal before the High Court, the prosecution examined three eyewitnesses to the occurrence viz. (1) Santosh Kumari, i.e., the Appellant herein, (2) Surishta Devi and (3) Shakti Devi. It may be stated that the Appellant and the Shakti Devi have fully supported the case of the prosecution.

Pursuant to the liberty granted by the High Court vide order dated August 13, 2009, the Respondent Nos. 3 to 8 applied for bail before the trial court. The trial court rejected Bail Application filed by the accused vide order dated February 19, 2010. The record of the case indicates that except accused Iqram, who is Respondent No. 8 in Criminal Appeal No. 1660 of 2011, all the other accused filed Bail Application No. 26 of 2010 before the High Court claiming bail. The High Court by order dated August 10, 2010 directed the learned Counsel for the accused to place on record the deposition of the witnesses recorded by the trial court. On August 13, 2010, Raman Singh, brother of accused Subash Singh, who is Respondent No. 3 in the main appeal, physically assaulted and threatened the son of the Appellant as well as one Kuljit Singh who is one of the witnesses in the case, allegedly in the court premises itself, to refrain them from deposing against the accused in the case. They were also warned that if they gave depositions against the accused they would be killed. Because of the assault mounted by brother of the accused, son of the Appellant has lodged FIR No. 183/2010 under Sections 341, 195-A, 504, 506 of Ranbir Penal Code at Police Station Samba. With reference to above mentioned FIR statement of the son of the Appellant was recorded under Section 164 Code of Criminal Procedure on August 20, 2010.

On September 8, 2010 and October 7, 2010 the prosecution examined two more eye witnesses, i.e., (1) Raksha Devi and (2) Kamlesh Devi who had supported the prosecution case.

4. The High Court by order dated October 20, 2010 has set aside the order dated March 24, 2008 passed by the trial court framing charge against the Respondent Nos. 3 to 8 and has remanded the case to the trial court to consider it in terms of Sections 267, 268 and 269 of the Code of Criminal Procedure 1989. By the said order the High Court has directed release of all the accused persons except accused Subhash, who is Respondent No. 3 in the main appeal, pending consideration of the prosecution case for framing charge by the trial court. The above mentioned order dated October 20, 2010 of the High Court has given rise to the three instant appeals.

5. This Court has heard the learned Counsel for the parties and have considered the documents forming part of the appeals.

6. The provisions relating to framing of charge against the accused before the trial commences, are contained in the Code of Criminal Procedure 1989 (1933 A.D.) which is applicable to the State of Jammu and Kashmir. The statute requires that every charge framed under the said code should state the offence with which the accused is charged and if the law which creates the offence gives it any specific name, the offence should also be described in the charge by that name only. The statute further requires that the law and section of the law against which the offence is said to have been committed has to be mentioned in the charge. It is a fundamental principle of criminal law that the accused should be informed with certainty and accuracy the exact nature of the charge brought against him. The object of the statement of particulars to be mentioned in the charge is to enable the accused person to know the substantive charge, he will have to meet and to be ready for it before the evidence is given. The extent of the particulars necessary to be given in the charge depends upon the facts and the circumstances of each case. It is well-settled law that in drawing up a charge, all verbiage should be avoided. However, a charge should be precise in its scope and particular in its details. The charge has to contain such particulars as to the time and place of the alleged offence and the person against whom it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. One of the requirements of law is that when the nature of the case is such that the particulars mentioned in the charge do not give the accused sufficient notice of the matter with which he is charged, the charge should contain such particulars of the manner in which alleged offence was committed as would be sufficient for that purpose. If ‘A’ is accused of the murder of ‘B’ at a given time and place, the charge need not state the manner in which ‘A’ murdered ‘B’.

7. Like all procedural laws, the Code of Criminal Procedure is devised to sub serve the ends of justice and not to frustrate them by mere technicalities. It regards some of its provisions as vital but others not, and a breach of the latter is a curable irregularity unless the accused is prejudiced thereby. It places errors in the charge, or even a total absence of a charge in the curable class. That is why we have provisions like Sections 215 and 464 in the Code of Criminal Procedure, 1973.

The object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction. If, therefore, the necessary information is conveyed to him in other ways and there is no prejudice, the framing of the charge is not invalidated. The essential part of this part of law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for. Sections 34, 114 and 149 of the IPC provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and as explained by five Judge Constitution Bench of this Court in Willie Slavey v. The State of M.P., (1955) 2 SCR 1140 at p. 1189, the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.

In the light of above principles, the question whether proper charge was framed against the Respondent Nos. 3 to 8, will have to be viewed.

8. In the present case, what was argued on behalf of the Respondent Nos. 3 to 8 before the High Court was that the charge was invalid because there was no mention in the order of the trial court indicating the specific offence found to have been prima facie committed by one or the other accused individually or jointly nor there was any indication regarding the specific names of the offences sufficient for description in the order of framing charge, but only sections of the law against which the offences were found to have been committed were mentioned.

The High Court has held that mere mention of the sections of the law in the order framing the charge would not, serve the purpose of law, as it was likely to prejudice the accused in his trial, and that, the accused would be disabled to know the exact Charge he had to face. In view of the above mentioned conclusion, the High Court has set aside the order dated March 24, 2008 framing charge against the accused and has remanded the matter to the trial court to consider the case in terms of Sections 267, 268 and 269 of the Code of Criminal Procedure 1989 which are pari materia to Sections 226, 227 and 228 of the Code of Criminal Procedure 1973.

9. In order to ascertain whether the Charge framed against Respondent was proper or not, this Court proposes to reproduce order dated March 24, 2008 framing charge against Rajesh Singh son of Jagdish Singh, resident of Sanoora, tehsil Hiranagar, which reads as under:

IN THE COURT OF ADDL. SESSIONS JUDGE

KATHUA

I, Vinod Chatterji Koul hereby charge you, Rajesh Singh S/o Jagdish Singh R/o Sanoora, tehsil Hiranagar as under:

1. That on 28.6.07 at Sanoora at about 9.30 pm with criminal intention along with other accused persons, having common criminal object armed with lathies (sticks) committed rioting and in that attacked deceased Surinder Singh with an intention to murder him attacked and injured him seriously, who thereafter on 2nd July 2007 during treatment succumbed to his injuries at Medical College Jammu, and you thereby committed offence punishable Under Section 302/109/147/148/149 of the Ranbir Penal Code and within the cognizance of this Court.

2. And I hereby direct you be tried by this Court on the said charge.

Dated 24.3.08

Sd.

Statement of accused dated 24th March 2008 Rajesh Singh S/o Jagdish Singh R/o Sanoora, tehsil Hiranagar Caste rajput, employee by profession aged?

Question: Whether you have understood the contents of the charge which has been read over and explained to you?

Answer: Yes

Question: Whether you have committed the offence?

Answer: No.

Question: Whether you want to say anything more?

Answer: I am innocent and want trial of the case.

Sd.

It may be mentioned that similar charge has been framed against each accused by order dated March 24, 2008.

A fair and reasonable reading of the above quoted order dated March 24, 2008 makes it abundantly clear that accused Rajesh Singh on June 28, 2007 at Sanoora about about 9.30 pm with criminal intention along with other accused, having common object armed with lathies (sticks) committed rioting. Thus, the charge contains particulars as to the time, place and date of the offence of rioting. The law which creates the offence gives it specific name, i.e., “rioting” and, therefore, the offence is described in the charge by that name, namely, “rioting”. The charge further proceeds to state that while committing rioting accused Rajesh Singh and other assaulted deceased Surinder Singh with an intention to murder him and injured him seriously. Thus the name of person with reference to whom common criminal object was formed by the members of the unlawful assembly was stated. It was also stated in the Charge that during the treatment injured Surinder Singh had succumbed to his injuries on July 2, 2007 at Medical College, Jammu. Thus the date on which the deceased succumbed to this injuries and the place where the deceased succumbed to his injuries were mentioned with precision. Finally in the Charge, it was mentioned that accused Rajesh Singh had committed offences punishable under Sections 302, 109, 147, 148, 149 of the Ranbir Penal code. After framing Charge immediately the plea of accused Rajesh was recorded. The first question which asked to him was whether he had understood the contents of the Charge which was read and explained to him. In answer to the said question accused Rajesh Singh had answered in affirmative. The record shows that thereafter two questions were put to accused Rajesh Singh in answer to which he had claimed that he was innocent and had wished to be tried.

10. This is not a case of mere mention of the sections of the law in the charge or the order of framing charge. Therefore, the High Court was not justified in observing that mere mention of the sections of the law in the charge was likely to prejudice the accused in his trial and that he would be disabled to know the exact charge he had to face, nor the High court was justified in observing that the trial court was not alive to the provisions of Chapter XIX of the Code of Criminal Procedure. It is necessary to reproduce part of the order passed by the trial court which is relied upon by the High Court for the purpose of coming to the conclusion that mere mention of the sections of the law in the charge or the order framing charge, would not serve the purpose of the law. The said order reads as under:

Upon consideration of the arguments of the learned Public Prosecutor, the learned Counsel for the accused and the written arguments besides the judgments cited and also the statements of the witnesses recorded by the police and other connected documents on the file, I am of the considered opinion that there are reasonable grounds to presume that accused Subash Singh S/o Krishen Singh, Rajesh Singh S/o Jagdish Singh, Vijay Singh S/o Krishen Singh, Ranjit Singh S/o Baldev Singh, Rakesh Singh S/o Jagdish Singh and Ikram Singh S/o Neter Singh caste Rajput residents of Sonoora Tehsil Hiranagar have prima facie committed offences punishable under Sections 302/109/147/148 and 149 IPC. Offence punishable under Section 302 IPC is exclusively triable by the court of sessions.

Charges under Sections 302/109/147/148 and 149 IPC is framed against accused Subash Singh, Rajesh Singh, Vijay Singh, Ranjit Singh, Rakesh Singh and Ikram Singh. The contents of the charges framed have been read over and explained to the accused persons who have pleaded not guilty to the said changes and have claimed to be tried.

11. A glance at the order quoted above would reveal that at the stage of framing charge the learned Counsel for the accused had pleaded for discharge of the accused under the relevant provisions of the Code of Criminal Procedure 1989. Not only the learned Counsel for the accused had advanced oral arguments, but he had also submitted written arguments and cited judgments as well as statements of the witnesses recorded by the police and relied upon other connected documents on the file to emphasize that the accused should be discharged. The order of the trial court which is quoted by the High Court in the impugned judgment is not the order framing charge at all. It is a short order indicating that no case was made out by the learned Counsel for the accused for discharging the accused at the stage of framing charge and that the accused should be tried for the offences which were mentioned in the order of framing charge separately against each accused.

12. On the facts and in the circumstances of the case, this Court is of the opinion that a patent error of law apparent on the fact of the record was committed by the High Court in coming to the conclusion that in the order of framing charge there was mere mention of the sections of the law which was likely to prejudice the accused in his trial, as the accused would be disabled to know the exact charge he had to face. Having noticed the charge which was separately framed against each accused, the inevitable conclusion to be reached by this Court is that the High Court erred in law in holding that it was obligatory for the trial court to have indicated in its order and the charge sheet the description of the offences for which one or the other accused had to be tried because all necessary particulars which should be stated as required by law were already stated by the learned Judge of trial court while framing charge.

Further the fact that trial against the accused has/had made considerable progress in as much as material evidence of the eye witnesses to the occurrences was recorded by the trial court could not have been ignored while deciding the question whether proper charge against each accused was framed or not. The nature of charge to be faced was clearly understood by each accused which is evident from the plea recorded by the trial court after framing necessary charge that the nature of charge was very well understood by each accused. The fact is also evident from the averments made in the Revision Petition which was filed by the accused challenging order framing charge. The fact that charge was clearly understood by each accused is also evident from the nature of cross-examination of the eye witnesses made on their behalf by their learned Counsel. In view of the fact that all the eye witnesses have been examined and cross-examined on behalf of the accused, the High Court should have resorted to the provisions of Section 225 of the Code of Criminal Procedure, 1989 as applicable to the State of Jammu and Kashmir which reads as under:

225. Effect of errors: No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned failure of justice.

The cross-examination of the eye witnesses on behalf of the accused would indicate that none of the accused was in fact misled by so-called error pointed out by the High Court nor it could be successfully pointed out by any of them that so-called error has occasioned failure of justice to him. The remand of the case to trial court for considering the case afresh on the point of charge was not warranted at all, as there is nothing to suggest or indicate even remotely that the accused had or would have been misled by any error or omission in the Charge. Therefore, the order dated October 20, 2010 rendered in Criminal Revision No. 29 of 2008 deserves to be set aside. For the similar reasons the order dated October 20, 2010 passed by the High Court in petition filed under Section 561-A Code of Criminal Procedure No. 54 of 2009 allowing the prayer made by the Respondent No. 8 to quash the order dated March 24, 2008 will have to be set aside.

13. It may be mentioned that the order admitting the accused except accused Sub hash Singh to interim bail of ` 25,000/- each to the satisfaction of the trial court pending consideration of the prosecution case afresh on question of charge, was not warranted nor justified at all. Before granting interim bail to the accused the High Court could not have afforded to ignore the testimony of eye witnesses including that of the Appellant who is wife of the deceased, merely because deceased had received only one injury nor the accused could have been accorded the benefit of temporary bail on the spacious plea that they were facing trial over a period of three years. The record of the case nowhere shows that the prosecution was responsible in any manner at all for so called delay in holding trial against the accused. The fact that accused are involved in commission of a heinous crime like murder which entails death or life imprisonment as punishment should have been taken into consideration before releasing the accused on interim bail. The trial court after having considered the gravity of the offence and the apprehension on the part of the prosecution that the accused would tamper with the evidence in the event of their release on bail had rightly refused to enlarge the accused on bail. The High Court while granting the relief of bail to the accused has completely ignored and over looked the aforementioned relevant factors which weigh heavily against the accused. Moreover, the complaint filed by Vijinder Singh that he and Kuljit singh, who is one of the witnesses in the present case, were physically assaulted and threatened in the Court premises will have to be given its due weight. The FIR registered on August 13, 2010 is pending necessary investigation wherein the statement of Vijinder Singh who is son of the Appellant was recorded on August 20, 2010 under Section 164 Criminal Procedure Code. The contents of the FIR would indicate that the accused either themselves or through their relatives would try to tamper the evidence which is going to be led by the prosecution in the case.

14. Under the Circumstances, this Court is of the opinion that release of the accused except accused Subhash Singh on interim bail deserves to be set aside. The net result of the above discussion is that all the three appeals will have to be allowed.

For the foregoing reasons the three appeals succeed. Order dated October 20, 2010 rendered by the High Court of Jammu and Kashmir at Jammu in Criminal Revision No. 29 of 2008 is hereby set aside. Similarly the order dated October 20, 2010 passed by the High Court in petition filed under Section 561-A Code of Criminal Procedure No. 54 of 2009 is also set aside. The order dated October 20, 2010 passed in Bail Application No. 26 of 2010 by which the accused except accused Subhash Singh are enlarged on interim bail is also set aside. Accused Subhash Singh is already in custody. Therefore, it is directed that the other accused shall be taken in custody immediately.

Having regard to the facts of the case and more particularly the fact that the trial has already commenced, the trial court is directed to complete the trial as early as possible and preferably within 9 months from the date of receipt of writ from this Court. Subject to above-mentioned directions, all the three appeals stand disposed of.


 

 

KAPILDEO SINGH Vs THE KING

SUPREME COURT OF INDIA JUDGMENTS

The essential question in a case under s. 147 is whether there was an unlawful assembly as defined in s. 141. I.P.C., of five or more than five persons. The identity of the persons comprising the assembly is a matter relating to the determination of the guilt of the individual accused, and, even when it is possible to convict less than five persons only s. 147 still applies if upon the evidence in the case the court is able to hold that the person or persons who have been found guilty were members of an assembly of five or more persons, known or unknown, identified or unidentified. In the present case, there is such a finding and that concludes the matter.

(1950) 63 LW 501 : (1950) Sup SCR 144

SUPREME COURT OF INDIA

FULL BENCH

( Before : S. Murtaza Fazal Ali, J; Mehr Chand Mahajan, J; M. Patanjali Sastri, J; Harilal Jekisundas Kania, J; B. K. Mukherjea, J )

KAPILDEO SINGH — Appellant

Vs.

THE KING — Respondent

Decided on : 24-01-1950

Penal Code, 1860 (IPC) – Section 141, Section 147, Section 149, Section 249, Section 302, Section 304, Section 326

JUDGMENT

Mahajan, J.—This is an appeal by special leave against an order of the High Court at Patna, affirming the conviction of the appellant by the Additional Sessions Judge, Arrah, under s. 147, of the Indian Penal Code.

2. The appellant was charged along with 13 others with having been a member of an unlawful assembly “with the common object of dispossessing one Chulhan Tewari (the complainant) and assaulting and murdering one Nasiba Ahir and others” and with having committed, in furtherance of that common object, offences under Sections 302, 326 and 147 read with s. 249 of the Indian Penal Code. The prosecution case was that the appellant led a party of 60 or 70 men armed with a gun and lathis to the scene of occurrence with a view to dispossess the complainant of the land bearing survey No. 520 appertaining to Khata No. 59 in village Sikaria, which the complainant claimed to belong to him. As the mob came upon the land to complainant remonstrated against their action, when the appellant fired three shots from the gun in his hand causing injuries to Nasiba Ahir, Bhola Ahir and Lalmohar Ahir and when they fell down the mob dispersed. The injured men were then taken to hospital where Nasiba Ahir denied soon after. The appellant and thirteen others who were identified were accordingly charged with having committed the offences mentioned above.

3. The Additional Sessions Judge of Arrah who tried the accused found that, though the apparent title to the land was in the appellant and another, its possession had long been disputed, and that it was “needless to make much of possession because neither party in my opinion can justly claim the right of private defence to property.” After discussing the evidence of the eyewitness and other materials before him he found that the gun was fired by the appellant’s party while lathis or brickbats were used by the complainant’s men, and as a result of such attack and counter-attack one man was injured on the side of the appellant while three men including the deceased Nasiba Ahir who were passers-by received gunshot injuries. The learned Judge rejected as unreliable the evidence of the prosecution witness to the effect that the appellant held the gun and fired the shots. But as the appellant’s party went upon the land armed with the gun and as the persons injured were not of the complainant’s party, the learned Judge convicted the appellant under the second part of s. 304 read with s. 149 and sentenced to rigorous imprisonment for a period of five years. Though he found the appellant also guilty of rioting under s. 147 be thought that no separate sentence was called for under that section. The thirteen others who were charged along with appellant were held not guilty in respect of any of the charges, as they were not properly identified as having taken part in the unlawful assembly, and were acquitted.

4. The appellant appealed to the High Court and Manohar Lal J., who heard the appeal agreed with the trial Judge that the question as to who was in actual possession of the plot at the time of the occurrence was immaterial. He held that the party of the appellant were members of an unlawful assembly and “could not plead any right whatsoever to come there and assert their possession by show of force”. The learned Judge agreed also with the finding of the trial Court that the appellant was not proved to have been armed with a gun or to have fried the shots, but he thought, in view of that finding, that “it is impossible to convict Kapildeo Singh for an offence under s. 304,149, I.P.C., when it is not the prosecution case that any other member of the mob led by Kapildeo Singh inflicted the gunshot injury on Nasiba Ahir”. The learned Judge, however, was satisfied that the appellant was in the mob and was consequently guilty under s. 147 I. P. C. He accordingly set aside the conviction and sentence under S. 304 read with s. 149 but maintained the conviction under s. 147 and sentenced the appellant to two years’ rigorous imprisonment, the trial court not having imposed any separate sentence under that section.

5. A petition for special leave to appeal was made to this Court, and it was admitted in view of two grounds urged by the learned counsel for the appellant : (1) that in all 14 persons having been charged with rioting and 13 of them having been acquitted it could not be held that there was any unlawful assembly of five or more than five persons whose common object was to commit an offence; (2) that no finding having been given on the question of possession of the complainant, no common subject was established and the assembly was not an unlawful one.

6. At the hearing of the appeal, the learned counsel raised a third contention that in the absence of a finding that any one of the members of the appellant’s party was armed with a gun, the charge under s. 147 could not be sustained because in this situation there was no evidence that any member of his party actually used force or violence in prosecution of the common object.

7. In our opinion, the first contention is without substance. The essential question in a case under s. 147 is whether there was an unlawful assembly as defined in s. 141. I.P.C., of five or more than five persons. The identity of the persons comprising the assembly is a matter relating to the determination of the guilt of the individual accused, and, even when it is possible to convict less than five persons only s. 147 still applies if upon the evidence in the case the court is able to hold that the person or persons who have been found guilty were members of an assembly of five or more persons, known or unknown, identified or unidentified. In the present case, there is such a finding and that concludes the matter.

8. The third contention is of no practical importance as we have come to the conclusion on the second contention that the case should be remanded to the High Court for rehearing.

9. In dealing with the second contention, it is necessary to refer to the charge under s. 147, I.P.C., of which the appellant has been found to be guilty. This charge runs as follows :-

“That you, on or about the 25th day of June, 47 at B. Sakaria P. S. Sandes were members of an unlawful assembly and in prosecution of common object of such assembly, viz., in dispossessing Chulhan Tewari and to assault and murder Nasiba Ahir and others and committed the offence of rioting and thereby committed an offence punishable under s. 147 of the Indian Penal Code………..”.

10. By having the charge framed in this manner, the prosecution clearly took upon itself the onus of proving that Chulhan Tewari was in possession of the disputed land, and there can be no doubt that of the three items set out in the charge as constituting the common object of the alleged unlawful assembly, dispossession of Chulhan Tewari, the complainant, was the most important one, the other objects stated being more or less subsidiary to the former. The most important part of the charge, therefore, would have failed if the appellant had been found to be in possession and such a finding would have also seriously affected the case of the prosecution with regard to the second common object, viz., “to assault” because it would have at once given rise to the question as to whether the accused should be held to be protected by the law of private defence. Conversely, if Chulhan Tewari had been found to be in possession, the appellant could not have escaped conviction. Unfortunately, however, the learned Judge who heard the appeal in the High Court, did not apply himself seriously to the question of possession but proceeded on the assumption that that question was immaterial because “both sides were determined to vindicate the rights by show of force or use of force. In our opinion, the matter was not capable of being disposed of so simply and so summarily, and the law on which the learned Judge bases his opinion, would appear to have been too loosely stated. If by the use of the word “vindicate” he meant to include even cases in which a party is forced to maintain or defend his rights. Also, having regard to the nature of injuries on both sides, one party complaining that three passers-by received gunshot injuries and the other complaining that one or two persons received a few simple injuries, it is difficult to regard the occurrence as being in the nature of a determined battle between two armed mobs, in which the desire to fight and attack each other becomes a more important objective of the opposing mobs that the cause or subject-matter of the fight. We are clearly of opinion that it was incumbent on the appellate court to record a clear finding as to possession, and it is equally clear to us that its failure to record such a finding on a vital issue in the case, without deciding which the question as to who was the aggressor could not properly and satisfactorily be determined, is apt to lead to injustice of such a serious and substantial character as to warrant the interference of this Court. The conviction and sentence of the appellant are therefore, set aside and the case is remanded to the High Court with the direction that the appeal be reheard and disposed of according to law after recording a definite finding on the question of possession.

11. The being the first appeal of its kind admitted by this Court in the exercise of its criminal jurisdiction, it seems necessary to state that though this Court is no longer bound by Privy Council practice and precedents if sees no reason to depart from the principles which have been laid down by it defining the limits within which interference with the course of criminal justice dispensed in the subordinate courts is warranted and to remove all misapprehension on the subject, it would be useful to refer to some of the cases in which those principles have been enunciated and explained.

12. In Riel v. The Queen, Lord Halsbury, while delivering the judgment of their Lordships of the Privy Council, pointed out that leave to appeal in criminal cases could only be given where some clear departure from the requirements of justice is alleged to have taken place.

13. In In re Abraham Mallory Dillet (2) it was observed that Her Majesty would not review criminal proceedings unless it be violation of the principles of natural justice or otherwise, substanviolation of the principles of natural justice or otherwise substantial and grave injustice has been done. In Ibrahim. The King (3), it was observed that the ground for His majesty’s interference in criminal matters is the violation of the principles of natural justice. In Dal Singh v. King Emperor (4), the following observations were made on the subject :-

“According to the practice of the Judicial Committee in dealing with an appeal in a criminal case, the general principle is established that the Sovereign in Council does not act in the exercise of the prerogative right to review the course of justice in criminal cases in the free fashion of fully constituted Court of Criminal Appeal. The exercise of the prerogative takes place only where it is shown that injustice of a serious and substantial character has occurred. A mere mistake on the part of the Courts below, as for example in the admission of improper evidence, will not suffice if it has not led to injustice of a grave character nor do the Judicial Committee advise interference merely because they themselves would have taken a different view of evidence admitted. Such questions are, as a general rule, treated as being for the final decision of the Courts below.”

14. In Ex Parte Macrea, it was held that although in very special and exceptional circumstances leave to appeal in criminal cases may be granted, misdirection by Judge, either in leaving a case to a jury where there is no evidence or founded on an incorrect construction of the Penal Code, even if established, is insufficient for that purpose, especially where no miscarriage of justice has resulted.

15. In Taba Singh v. King Emperor, Lord Buckmaster expressed regret that the pains that they have taken to make clear the rules upon which the Board will proceed in considering questions relating to criminal appeals should have been so widely misunderstood or so wholly ignored as to have permitted the presentation of the petition in that case before him and it was said that the responsibility for the administration of criminal justice in India the Board will neither accept nor share, unless there has been some violation of the principle of justice or some disregard of legal principles.

16. In Easwaramurthi v. Emperor, Lord Wright observed that in a criminal appeal brought by special leave, their Lordships are not concerned with formal rules, but only with the question whether there has been a miscarriage of justice.

17. In George G. Feller v. The King, Sir George Rankin pointed out that for them to interfere with a criminal sentence there must be something so irregular or so out rageous as to shock the very basis of justice and that misdirection as such, even irregularity as such will not suffice and that there must be something which in the particular case deprives the accused of the substance of fair trial and the protection of the law.

18. In Md. Afdal Khan v. Abdul Hahman, Viscount Dunedin made similar observations.

19. In Louis Edouard Lanier v. The King, the Privy Council held that although the proceedings taken were unobjectionable in form, justice had gravely and injuriously miscarried and the sentence pronounced against the appellant formed such an invasion of liberty and such denial of his just rights as a citizen that their Lordships felt called upon to interfere.

20. Following the principles laid down in these cases, this Court will not interfere lightly in criminal cases, and we have interfered in the present case, because in our opinion it can be brought with in the ambit of those principles.

The Criminal Justice System of United Kingdom

 Keywords:- Criminal Justice-UK-
Ireland Advocatetanmoy

The CPS works in partnership with the police, courts, the Attorney General’s Office, the Home Office, the Ministry of Justice and other agencies throughout the criminal justice system (CJS).

The police

The police forces across England and Wales responsible for the investigation of crime, collection of evidence and the arrest or detention of suspected offenders. The police  send the files to the CPS to decide whether to prosecute.

The courts (HM Courts & Tribunals Service)

HM Courts & Tribunals Service (HMCTS) is responsible for the administration of criminal, civil and family courts and tribunals in England and Wales.

Magistrates’ courts deal with the less serious criminal offences, such as most motoring offences, minor criminal damage or being drunk and disorderly. Youth courts are special magistrates’ courts which deal with all but the most serious charges against people aged between 10 (the age of criminal responsibility) and 17.

The Crown Court deals with the most serious offences, for example murder and rape, which are triable by judge and jury.

 

The Law Officers

The Attorney General fulfils the role of chief legal adviser to the government and superintends the Crown Prosecution Service and the Serious Fraud Office.

The Solicitor General supports the Attorney across the range of his responsibilities.

The Ministry of Justice

The Ministry of Justice (MOJ) has responsibility for different parts of the justice system – the courts, prisons, probation services and attendance centres.

The Home Office

The Home Office is the lead government department for immigration and passports, drugs policy, crime, fire, counter-terrorism and police.

Her Majesty’s Prison & Probation Service

Her Majesty’s Prison & Probation Service carries out sentences given by the courts, in custody and the community, and rehabilitates people in through education and employment.

Her Majesty's Crown Prosecution Service Inspectorate (HMCPSI)

Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) inspects the work carried out by the CPS and other prosecuting agencies.