Tag Archives: Supreme Court of India

Tribunals should not function as another department under the control of the executive: Supreme Court of India

Shivani Bhardwaj

These tribunals do not function in isolation, but are a part of the larger scheme of justice dispensation envisioned by the Constitution and have to function independently, and effectively, to live up to their mandate. The involvement of this Court, in the series of decisions, rendered by no less than six Constitution Benches, underscores the importance of this aspect.- Supreme Court of India

New Delhi: The Supreme Court of India on Friday 27 November gave a path breaking judgement underscoring dispensation of justice by the Tribunals can be effective only when they function independent of any executive control: this renders them credible and generates public confidence.

The Supreme Court judgement by a three-judge Bench of Justice L Nageswara Rao, Justice Hemant Gupta and Justice S. Ravindra Bhat brings on record that a disturbing trend of the Government not implementing the directions issued by this Court has been noticed. It has also been pointed out that to ensure that the Tribunals should not function as another department under the control of the executive, repeated directions have been issued that have gone unheeded forcing the Petitioner to approach th apex Court time and again.

Asserting that it is high time that the Court puts an end to this practice, the Supreme order goes on to point out that Rules are framed which are completely contrary to the directions issued by this Court. Upon the tribunals has devolved the task of marking boundaries of what is legally permissible and feasible (as opposed
to what is not lawful and is indefensible) conduct, in a normative sense guiding future behavior of those subject to the jurisdictions of such tribunals. This task is rendered even more crucial, given that appeals against their decisions lie directly to the Supreme Court and public law intervention on the merits of such decisions is all but excluded. Also, these tribunals are expected to be consistent, and therefore, adhere to their precedents, inasmuch as they oversee regulatory behavior in several key areas of the economy.

Therefore, it is crucial that these tribunals are run by a robust mix of experts, i.e. those with experience in policy in the relevant field, and those with judicial or legal experience and competence in such fields. The functioning or non-functioning of any of these tribunals due to lack of competence or understanding has a direct adverse impact on those who expect effective and swift justice from them. The resultant fallout is invariably an increased docket load, especially by recourse to Article 226 of the Constitution of India. These aspects are highlighted once again to stress that these tribunals do not function in isolation, but are a part of the larger scheme of justice dispensation envisioned by the Constitution and have to function independently, and
effectively, to live up to their mandate. The involvement of this Court, in the series of decisions, rendered by no less than six Constitution Benches, underscores the importance of this aspect.

The order goes on to emphasise that the role of the courts as upholders of judicial independence, and the executive as the policy making and implementing limb of governance, is to be concordat and collaborative. This Court expects that the present directions are adhered to and implemented, so that future litigation is avoided.

The Government has been directed by the Supreme Court to strictly adhere to the directions given above and not force the Petitioner-Madras Bar Association, which has been relentless in its efforts to ensure judicial independence of the Tribunals, to knock the doors of this Court
again.

Click to download Supreme Court order

Quota for Marathas: Present system of reservation causing reverse discrimination

Newsroom24x7 Network

Mumbai: The Maharashtra State Assembly and legislative Council have passed a Bill to grant 16 per cent reservation in jobs and admissions in academic institutions to the Marathas.

This raises the percentage of quota for SCs/STs and other backward classes (OBCs)  in Maharashtra from 52 to 68 per cent, which is against the Supreme Court ruling in the Indra Sawhney case that the total reservation for SC/ST and OBCs or special categories should not exceed 50 per cent.

Immediately after the Maharashtra Legislators unanimously passed the Bill on Thursday (29 November 2018) to grant reservation to Marathas, All India Majlis-e-Ittehadul Muslimeen (AIMIM) chief Asaduddin Owaisi raised the pitch for quota even for Muslims.

There are two fundamental issues for the consideration of the Apex Court in this matter:

1. Is it proper for States such as Tamil Nadu and now Maharashtra to exceed the 50 per cent cap on reservations and put the same in the Ninth Schedule of the Constitution¹ to avoid judicial review; and

2. When the Supreme Court has fixed a 50 per cent cap, should not the candidates availing reservation be kept within the ambit of the quota and the balance 50 per cent be kept for unreserved candidates only. The thumb rule should be straight and without ambiguity. Political parties, both ruling and in the Opposition, should ensure overall reservation does not exceed 50% as laid down by the Supreme Court of India, and anybody applying for a seat or job under the quota shall not be eligible for general merit seat. Raising the quota limit beyond 50 per cent is unfair, unjust and discriminatory against those not covered by any quota though they may be economucally diadvantaged.

The quota system in its present form is causing reverse social discrimination and it leads to more and more forward communities clamouring for Other Backward Classes (OBC) status and Governments succumbing due to electoral pressures.


¹The Ninth Schedule was added to the Constitution when it was first amended in 1951 when Jawaharlal Nehru was Prime Minister.

Since the First Amendment, the Ninth Schedule has been relied upon to amend the constitution multiple times.

In January 2007,the apex Court of India ruled that all laws (including those in the Ninth Schedule) would be open to Judicial Review if they violated the basic structure of the constitution.

Artcile 31B, was inserted by the Constitution (First Amendment) Act, 1951. It says: Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, each of the said Acts and Regulations shall,
subject to the power of any competent Legislature to repeal or amend it, continue in force.

Article 31C, Inserted by the Constitution (Twenty-fifth Amendment) Act, 1971 says: Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:
Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

Inhuman conditions in prisons: Supreme Court pulls up States and Union Territories for not bothering to prepare a Plan of Action

Newsroom24x7 Staff

There is over-crowding to the extent of 150% or more in jails in Assam, Chhattisgarh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Rajasthan, Uttar Pradesh and Delhi.

overcrowding-in-prisonsNew Delhi: Supreme Court of India, in response to a writ petition on “Inhuman Conditions in 1382 prisons” in the country, yesterday passed an order expressing distress by noting “even though this Court has held on several occasions that prisoners both under trials and convicts have certain fundamental rights and human rights, little or no attention is being paid in this regard by the States and some Union Territories including the National Capital Territory of Delhi.”

The Supreme Court order passed by a two Judge Bench comprising Justice Madan B. Lokur and Justice R.K. Agrawal categorically states: “Certainly fundamental rights and human rights of people, however they may be placed, cannot be ignored only because of their adverse circumstances.”

Further the Apex Court order points out that not a single State or Union Territory has bothered to prepare a Plan of Action and bring it to the Court’s notice or to the notice of the Amicus. Underscoring this, the Court has said that it is left with no option but to direct the States and the Inspector General of Prisons to prepare a Plan of Action, as already directed on 6 May 2016, for reducing the prison population.

On the information provided to the Court by the Amicus, on the basis of affidavits filed by some of the States, that there are proposals for constructing additional barracks or jails, the order says – these appear to be ad hoc proposals with no time limit specified for completion and in some cases it is not clear whether provision has been made for providing resources for the construction. In this regard, the Court has directed that a viable Plan of Action should be prepared within the next six months and in any event by 31 March 2017.

The Supreme Court has also pointed out that more than sufficient time has elapsed but the Manual for juveniles in custody has not yet been prepared by the Ministry of Women and Child Development of the Government of India. Hence the Court has directed the Ministry to expedite the preparation of the Manual and fixed 30 November 2016 as the deadline for this purpose.

With regard to over-crowding in jails, the Amicus has told the Court that there are several jails where over-crowding is to the extent that there are more than one and a half times the number of prisoners than the permissible limit. It was especially highlighted that an excessive prison population has its own set of problems including hygiene, sanitation, management, and discipline. In terms of suggestion, he submitted that in the first instance the States could be directed to identify jails in which over-crowding was to the extent of 150% or more so that further directions could be given. On the basis of this submission the Supreme Court had called for information. In this context the latest order says: “now find that the situation continues to be not only tragic but also pathetic.”

According to the Amicus, the Emicus drew Court’s attention in writing on 20 September 2016 regarding over-crowding to the extent of 150% or more in jails in Assam (8), Chhattisgarh (17), Jharkhand (3), Karnataka (7), Kerala (21), Madhya Pradesh (5), Maharashtra (16), Rajasthan (21), Uttar Pradesh (47) and Delhi (12). On this issue, the order says: “It is unfortunate that in spite of our directions the prison authorities have not been able to take any effective steps for reducing over-crowding in jails.”

The court has fixed October 18 as the next date of hearing in this case with the direction that the Union of India through the Ministry of Home Affairs should obtain the status of compliance of Court orders passed on 5 February 2016 and 6 May 2016 and on 30 September 2016. The Court has observed that even the rights of prisoners, whether convicts or under trials should be given due importance.

The Supreme Court has reminded the Union of India and the State Governments that as far back as in 1975 the Apex Court, in D. Bhuvan Mohan Patnaik v. State of Andhra Pradesh (referring to a decade old decision then in State of Maharashtra v. Prabhakar Pandurang Sangzgiri) had reminded that:

“Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to “practice” a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment, likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.”

The latest order also points out that a Constitution Bench of the Apex Court held in Sunil Batra v. Delhi Administration in paragraph 213 of the Report stated as follows:

“It is no more open to debate that convicts are not wholly denuded of their fundamental rights. No iron curtain can be drawn between the prisoner and the Constitution. Prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed (see Procunier v. Martinex). However, a prisoner’s liberty is in the very nature or things circumscribed by the very fact of his confinement. His interest in the limited liberty left to him is then all the more substantial. Conviction for crime does not reduce the person into a non-person whose rights are subject to the whim of the prison administration and, therefore, the imposition of any major punishment within the prison system is conditional upon the observance of procedural safeguards (see Wolff v. McDonell).”

The October 3 order goes on to say:

“Unfortunately, it seems that the views of this Court over the 50 years (since Prabhakar Pandurang Sangzgiri in 1966) have continuously fallen on deaf ears and the situation does not seem to be changing even now.

Unless due importance is given to the fundamental rights and human rights of the people, the right to life and the right to live with dignity under Article 21 of the Constitution will have no meaning.”

Supreme Court quashes conviction of a murder accused sentenced to Life Imprisonment

Newsroom224x7 Desk

judiciary

The burden is cast on the prosecution to prove its case beyond reasonable doubt. Once this burden is met, the Statements under Section 313 (CrPC) assume significance to the extent that the accused may cast some incredulity on the prosecution version. It is not the other way around; in our legal system the accused is not required to establish his innocence. We say this because we are unable to subscribe to the conclusion of the High Court (of Madras) that the substance of his (accused) examination under Section 313 was indicative of his guilt. If no explanation is forthcoming, or is unsatisfactory in quality, the effect will be that the conclusion that may reasonably be arrived at would not be dislodged, and would, therefore, subject to the quality of the defence evidence, seal his guilt. Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In the case in hand, the High Court was not correct in drawing an adverse inference against the Accused because of what he has stated or what he has failed to state in his examination under Section 313 CrPC.- Supreme Court

New Delhi: The Supreme Court of India has given a landmark judgement to set aside an order of the High Court of Madras and quash the conviction of a person convicted for murder under Section 302 IPC and affirmed by the High Court of Madras in October 2005.

The Supreme Court judgement, passed last week by a two judge bench comprising Justice Sudhansu Jyoti Mukhopadhyaya and Justice Vikramjit Sen, came in response to a petition by the accused Nagraj who was convicted under Section 302 of IPC and sentenced to Life Imprisonment and was also directed to pay a fine of Rs. 1000 and in case of default on this count was to undergo rigorous imprisonment for 3-months.

The Supreme Court order says that the investigation conducted by the police (in this case) was less than satisfactory. In fact it was non-existent, the order says and underscores the point that it is necessary to have a specialized section of the Police to investigate cases of heinous nature. Both the prosecution and the High Court took the deposition of a principal witness to be unimpeachably true, ignoring the fact that he as well as the Manager (of a hotel where the crime was committed) had access to Room No.115 for three days before the body of the deceased was found, and during that time they made decisions which cannot but raise suspicion in the minds of any reasonable person. There is as much opportunity and as much motive for them to have committed the crime as has been tenuously attributed to the Accused to have done so. To rely substantially on the statement of such witnesses is forensically unsafe, to say the least. Given the failure of the prosecution to prove the case beyond reasonable doubt, the benefit of the doubt would have to be bestowed on the Accused.

 

The conviction is predicated on circumstantial evidence alone. Fingerprints have not been lifted from the scene, the murder weapon has not been recovered, and any credible motive is absent. It cannot even be contended that the Accused was the last person to be seen with the Deceased since several persons including the Manager, PW1, and the guests in the adjoining rooms could have accessed the room where the Deceased was eventually found. While circumstantial evidence is sufficient to return a conviction, this is possible if it contains all the links that connect the Accused to the incident, and the inconsistencies are extremely trivial in character. Furthermore, motive assumes great significance where a conviction is sought to be predicated on circumstantial evidence alone, and its absence can tilt the scales in favour of the Accused where all links are not avowedly present. We think that the High Court erred in concluding that the complicity of the Accused in the murder of the Deceased had been proved beyond reasonable doubt. – Supreme Court

The sequence of events presented by the prosecution in this case as highlighted in the Supreme Court order is as follows:
According to Mari Chetty (PW3), the Accused and the Deceased came to his house in Bargur at 9.30 a.m. on July 24,2000 to borrow money from him for the purposes of their textile business. This was the first time PW3 had met the Accused; and the Deceased informed him that the Accused had joined him in business on the basis of commission. He and the Accused also informed PW3 that they were going to Bangalore and then to Salem for their business. Thereafter, according to Rajammal PW4, the mother of the Deceased, the Accused and Deceased left Srinivasapuram for Salem at 2.00 p.m.; she has corroborated that the Accused was working in the textile business with the Deceased. The details of the travel plans given by her are contradictory, as in her cross-examination she mentioned that they were going to Bangalore before visiting Salem. She also stated that the Deceased informed her at the time of leaving, not that the Accused and the Deceased visited her before their departure. On July 25, 2000, at 9.00 a.m, the Accused and the Deceased visited Veeravel’s shop in which Senthil (PW2) was employed. The Deceased was the uncle of PW2. During a conversation with Veeravel, the Deceased told him that the Accused’s name was Nagaraj, that he was from Bargur and he had joined the Accused in business on commission basis. At 9.30 a.m., the Accused and the Deceased arrived at Sampath Kumar Lodge. Kandasamy (PW1), the room boy, has stated that the Accused entered the Lodge with another person and asked for a room. PW1 initially stated that they arrived with one textile bag/bundle, but in the cross-examination has said that the Accused and the Deceased had one bag each. Upon being allotted Room No.115, the Accused signed the Hotel Register and paid Rs.100/- as advance. At 10.00 a.m, the Accused and the Deceased briefly visited Veeravel’s shop again. PW2 heard them say that they had booked Room No.115 at Sampath Kumar Lodge. According to PW1 they returned to the Hotel in about ten minutes and that at 11.00 a.m, he saw the Accused leaving the Hotel room. The Accused put two textile bags down and locked the door, and then told PW1 that he was going to sell the textile goods. He did not return the room key and he also did not return at night. On July 27, 2000, at about 1.00 p.m. PW1 noticed a bad odour coming from Room No.115. He searched for a key with which to open the door but could not find one. The Manager, when informed, said that there is nothing they could do as there was no key. On July 28, 2000 at about 10.00 a.m, PW1 noticed that the odour had become worse. He informed the Manager, who this time around, gave him the master key. He entered the room, where he found nothing but he found the body of the Deceased in the bathroom. The body was decomposing, and there were injuries on the left portion of the head. PW1 informed the Manager about this, who informed the Salem Town Police Station. An FIR was lodged by the Manager at noon. According to the FIR, on being informed of the situation by PW1, the Manager had gone to the room and had then also seen the body of the Deceased. The FIR also stated that the Accused and the Deceased arrived at the Hotel with one textile bundle, and the Accused took one bundle with him when he left. The FIR specifically stated that there was no bag/bundle in the room when the Manager went in. The FIR also stated that at the time of signing the Register, the Deceased informed the Manager that they would be staying for one day only. At 12.30 p.m, the police arrived at the Hotel and conducted a search of the room.

According to the cross-examination of PW1, a bag was found in the room and was recovered by the police, but this was not mentioned in the Observation Mahazdar or in the examination of PW10 who prepared the Observation Mahazdar. At 1.15 p.m., PW10 conducted his enquiry, during which he collected samples of blood-stained cement and cement mixture, and interrogated some witnesses. However, significantly, the Lodge Register and the Receipt Book were not taken into custody.

According to the post-mortem report of July 29, 2000, the Deceased had been dead for three to five days. PW7, who conducted the post-mortem, has deposed that the Deceased appeared to have died of head injuries. The following injuries were found:- (i) lacerated injury over left parietal region; (ii) lacerated injury over left temporal region; (iii) contusion over the occipital region;( iv) fissured fracture over left parietal bone extending on to the left temporal bone. Eighteen months later, on November 29, 2001, the Accused surrendered before the Judicial Magistrate. It is not in dispute that in this long period the police had not taken any steps for his interrogation or his arrest. The police seemed to have sprung into action only when the Accused surrendered on his own. On being permitted by the Court PW11 took the Accused into police custody on December 11, 2001 and brought him to the Police Station, where he was interrogated. According to PW11 and PW6, the Accused allegedly voluntarily confessed to killing the Deceased with an iron rod, which it is alleged, he subsequently threw into a waste-water channel. The Accused took PW11 and the witnesses to the place where he had allegedly thrown the rod, but it was not found. The Accused was then taken to Sampath Kumar Lodge and shown to PW1, who thereupon identified him. The next day the Accused was remanded to judicial custody. The Charge Sheet of November 28, 2002 charged the Accused of the commission of the murder of the Deceased under Section 302 of the Indian Penal Code. The motive attributed for the murder was his previous enmity with the Deceased because of the non-payment of pending dues but there is no evidentiary foundation for arriving at this conclusion. The Accused pleaded not guilty.

When the Accused was questioned under Section 313 CrPC, he emphatically denied his complicity in the offence, and said that he had no connection with the Deceased and had never visited Sampath Kumar Lodge. According to his Section 313 statement and his written statement, he was in his home in Bargur, and the police started visiting his home and troubling him; he engaged an advocate and surrendered before the Court; he was taken into custody by PW11, and was ‘coerced’ on December 11,.2011 and the next day, was made to sign a paper; he has denied that he voluntarily confessed to the crime or that he accompanied the police to any place.

The Supreme Court has pointed out a number of inconsistencies in the case of the prosecution. Neither the Register nor the Receipt Book was produced by the prosecution as evidence. This is a serious lapse, as these documents would have been the best evidence to indicate that the Accused and the Deceased were at Sampath Kumar Lodge together.

Further, no explanation has been given for their non-production. The High Court has held that the failure to produce these does not damage the case of the prosecution, as there is no reason to doubt the statement of PW1 according to which the Accused and the Deceased came to the Lodge and stayed in that particular room. However, the failure to produce them has resulted in the prosecution relying on circumstantial evidence instead of direct evidence, thus weakening its case, the Supreme Court order says.

The Supreme Court judgement also notes that various witnesses have given contradictory statements regarding the number of bags with the Accused and the Deceased. It is not clear whether they brought one textile bag with them to Sampath Kumar Lodge or two. While PW1, in his deposition, stated that the Accused left with two textile bags, the Manager, in the FIR has only mentioned one. Further, PW1 in his cross-examination stated that one bag was found in the room at the time the police came to investigate, but nothing further is mentioned of this. It has also been noted by the apex court that PW1 has variously stated that the Accused had one bag, then two bags, and that he had left with one bag and then with two bags. But if one bag or bundle was found in the room by the Police, then there would have been three bags/bundles. There are inconsistencies in the cross-examination of PW1 regarding his duty timings. Although he initially stated that the duty timings of the room boys changed on alternate days, he later claimed that he was only onduty in the daytime and the night duty was allotted to another room boy.

The Supreme Court has pointed out that no reason has either been given for the fact that Room No. 115 was not opened for three days, which is particularly curious given the Manager in his Complaint/FIR stated that the Deceased had said that they would be staying for one day and only a meagre deposit of Rs.100 had allegedly been received. PW1 saw the Accused and the Deceased leave and enter the Hotel multiple times on the morning of the July 25, 2000, but thought nothing of the fact that there was subsequently no movement from the room or the fact that the Accused had left with the key and had not come back. They did not ask PW1 for drinking water again. Given that they had had to ask him for this on the first day, it would be the natural assumption that they would have to ask him to replenish it. Further, at the time of checking in, they had asked PW1 for a bed sheet who had said that it was being washed and that he would provide it in the evening. PW1 should have been suspicious that there were no demands for either of these, particularly if he assumed that the Deceased was still in the room. There is also no explanation for the fact that no attempt was made to open the room for three days for the purposes of cleaning it. When PW1 first noticed the odour, the Manager informed him that there was nothing they could do about it since the key was not available. However the events of the next day reveal that the door could have been opened with a master key. The explanation of PW1 that he thought the smell was from a dead rat is not satisfactory.

The natural reaction, according to the Supreme Court, would have been to clean it, not to leave it to rot further. The Manager was not alive at the Trial and hence his Statement has not been subjected to the acid test of cross-examination and hence his Statement cannot be relied upon.

The apex court order brings on record that the room was finally opened by PW1, and was possibly investigated by the Manager, though the accounts regarding this are contradictory, before the police were finally called. It is pointed out in the order that there was, therefore, plenty of time for the crime scene to have been tampered with before the police arrived. There was also the possibility of other parties, including PW1 and/or the Manager to have perpetrated the murder. According to the cross examination of PW1, the adjacent room to Room No. 115 was also occupied, but this fact was not taken into consideration in the police investigation, and the inhabitants of the adjacent room have not been questioned, even though their evidence may have been compelling. Besides, no explanation has been given for the fact that the Accused was not arrested after the investigation commenced, despite the fact that seemingly the prosecution perceived that the finger of suspicion pointed at him and him alone. Notices requiring him to participate in the investigation are conspicuous by their absence, and that too for a long duration of eighteen months. In fact he was only taken into custody after he voluntarily surrendered. The High Court has held that he was absconding, but this is not borne out from the records as admittedly there was no warrant for his arrest on the record.

The Supreme Court order says that no suspicious or ulterior slant can be attributed to the Accused for surrendering before the Judicial Magistrate after one and a half years, particularly given that there were no outstanding warrants for his arrest or even for participating in the investigation. The statement of the Accused that he did so because he was being harassed by the police to turn himself in seems very credible to us. In that case, there is no explanation as to why the Police did not arrest him even though they were frequenting his home, and the prosecution’s version is not dependent on his interrogation, save for the alleged confession. Identification parade was also not conducted. This aspect has been discussed in the impugned judgment of the Madras High Court; but it was held that there was no suspicion as to the complicity of the Accused, who was allegedly seen by several witnesses without any suggestion to them during the course of the cross examination that the Accused was not present at all. At least in the trial of capital offences, we think that a duty is cast on the Court to ensure that the Accused has adequate legal assistance.

It has been noted by the Suprme Court that Keeping in perspective that the identification was a year and a half after the witness allegedly last saw the Accused, an identification parade should have been properly conducted. Moreover, identification by the Manager was not possible, as he had died before the Trial commenced. The identification by PW3 and PW4 took place two and a half years after the incident, again without an identification parade, and eventually in the course of Court proceedings. Further, PW3 has admitted that he only met the Accused once, which was on July 24, 2000. There is clearly a very severe lapse on the part of the prosecution with no plausible and acceptable explanation forthcoming.

The conviction is predicated on circumstantial evidence alone. Fingerprints have not been lifted from the scene, the murder weapon has not been recovered, and any credible motive is absent. It cannot even be contended that the Accused was the last person to be seen with the Deceased since several persons including the Manager, PW1, and the guests in the adjoining rooms could have accessed the room where the Deceased was eventually found. While circumstantial evidence is sufficient to return a conviction, this is possible if it contains all the links that connect the Accused to the incident, and the
inconsistencies are extremely trivial in character. Furthermore, motive assumes great significance where a conviction is sought to be predicated on
circumstantial evidence alone, and its absence can tilt the scales in favour of the Accused where all links are not avowedly present. We think that the High Court erred in concluding that the complicity of the Accused in the murder of the Deceased had been proved beyond reasonable doubt.

Section 313 and 342 of Section 342 of Criminal Procedure Code (CrPC) and Article 20(3) of the Constitution

The Apex Court order says: “The Impugned Judgment has found the answers of the Accused under Section 313 CrPC evasive and untrustworthy, and held this to be another factor indicating his guilt. Section 313 CrPC is of seminal importance in our criminal law jurisdiction and, therefore, justifies reiteration and elucidation by this Court.

To emphasise the point extracts from 41st Report of the Law Commission made in the context of Section 342 of the old Criminal Procedure Code that corresponds to this Section have also been quoted in the order. It says:

Section 342 is one of the most important sections in the Code. It requires that the Court must, at the close of prosecution evidence, examine the accused “for the purposes of enabling him to explain any circumstances appearing in the evidence against him.” The section for a moment, brushes aside all counsel, all prosecutors, all witnesses, and all third persons. It seeks to establish a direct dialogue between the Court and the accused for the purpose of
enabling the accused to give his explanation. For a while the section was misunderstood and regarded as authorizing an inquisitorial interrogation of the accused, which is not its object at all. The key to the section is contained in the first sixteen words of the section. Giving an opportunity to the accused to explain the circumstances appearing in the evidence is the only object of the examination. He may, if he chooses, keep his mouth shut or he may give a full explanation, or, he is so advised, he may explain only a part of the case against him.

After considering the various aspects of thematter, The Suprme Court of India has come to the conclusion that S.342 should not be deleted. In their opinion the Supreme Court order says, the stage has not yet come for its being removed from the statute book. With further increase in literacy and with better facilities for legal aid, it may be possible to take that step in the future.” ‘Clause 320 – The existing provision in S.342 (2) enabling a Court to draw an inference, whether adverse or not from an answer or a refusal to answer a question put to the accused during the examination, is being omitted as it may offend Art. 20(3) of the Constitution” – S.O.R.”

In the context of this aspect of the law, the order of the apex court goes on to point out that it has been held by the Supreme Court in Parsuram Pandey vs. State of Bihar (2004) 13 SCC 189 that Section 313 CrPC is imperative to enable an accused to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the accused,its corollary being to benefit the Court in reaching its final conclusion; its intention is not to nail the accused, but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem, as explained in Arsaf Ali vs. State of Assam (2008) 16 SCC 328. In Sher Singh vs. State of Haryana (2015) 1 SCR 29 this Court has recently clarified that because of the language employed in Section 304B of the IPC, which deals with dowry death, the burden of proving innocence shifts to the accused which is in stark contrast and dissonance to a person’s right not to incriminate himself. It is only in the backdrop of Section 304B that an accused must furnish credible evidence which is indicative of his innocence, either under Section 313 CrPC or by examining himself in the witness box or through defence witnesses, as he may be best advised. Having made this clarification, refusal to answer any question put to the accused by the Court in relation to any evidence that may have been presented against him by the prosecution or the accused giving an evasive or unsatisfactory answer, would not justify the Court to return a finding of guilt on this score. Even if it is assumed that his statements do not inspire acceptance, it must not be lost sight of that the burden is cast on the prosecution to prove its case beyond reasonable doubt. Once this burden is met, the Statements under Section 313 assume significance to the extent that the accused may cast some incredulity on the prosecution version. It is not the other way around; in our legal system the accused is not required to establish his innocence. We say this because we are unable to subscribe to the conclusion of the High Court that the substance of his examination under Section 313 was indicative of his guilt. If no explanation is forthcoming, or is unsatisfactory in quality, the effect will be that the conclusion that may reasonably be arrived at would not be dislodged, and would, therefore, subject to the quality of the defence evidence, seal his guilt. Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In the case in hand, the High Court was not correct in drawing an adverse inference against the Accused because of what he has stated or what he has failed to state in his examination under Section 313 CrPC.

Click here for full judgement