ANOUSHKA

1856
SEMESTER IV
CODE OF CRIMINAL PROCEDURE
ANSWER 1

THE IMPACT OF HUMAN RIGHTS DOCUMENTS ON THE CRIMINAL JUSTICE

SYSTEM

Human rights safeguards have improved substantially over the last century, due in part to a
growing realisation that many nations share many core legal ideals and expectations. These
precautions are crucial safeguards against abuses of authority that threaten people's lives,
liberty, and bodily integrity. However, there are no current conceptual frameworks for
developing and enforcing internationally recognized human rights.

Moreover, International treaties, conventions, and agreements, for example, do not become
part of domestic law immediately. Until Parliament specifically formulates a legislation to
affect/govern these substantive rights, obligations, and duties of people, which then
incorporates them into domestic law, signed and approved treaties and conventions do not
become part of national law.

It is then that these substantive rights against whom they are available can be enforced. This
power is given to the central executive under Articles 73 and 253 of the Constitution of
India to enter into/negotiate treaties and subsequently, the power of implementation/adoption
of portions of the treaty goes to the Union Parliament.

I. Role of Courts

a. However, even when the Parliament has not formulated an appropriate legislation to
incorporate into domestic law the principles enshrined in international treaties and
conventions, the courts have stepped in, borrowing from these documents to formulate
guidelines to that effect.

b. Criminal law is best understood as a species of constitutional reflection. The

principles enshrined in these human rights documents are already present in the

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 Constitution, for fundamental rights under the Indian Constitution and the international
humanitarian law contain similar principles and values.

c. Courts, in addition to the Constitution, refer to these human rights documents to secure to
the citizens of India their fundamental and human rights.

d. The most important and seminal case in this regard is Vishakha v. State of Rajasthan.
The case concerned a social worker Bhanwari Devi, who was gangraped for stopping a
child marriage. She was serving as an employee, and was there to ensure the child
marriage did not take place. Various women’s groups filed a PIL. The question concerned
whether there was a law/whether it was time that we had a law addressing sexual
harassment of women in the workplace. It is to be noted that there was also a parallel
criminal proceeding for the rape.

e. Pertinently, the Supreme Court said that in the absence of a particular law, they could
come up with a set of guidelines. The court set up the famous Vishakha Guidelines, that
drew from various international treaties and conventions that were ratified by India
– the Universal Declaration of Human Rights (UDHR), the International Covenant
on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW).

f. Other examples of the Supreme Court relying on these human rights documents to
enforce the remedies already provided by the Constitution and criminal law legislations
are the cases of Nilabati Behera v. State of Orissa and Chairman Railway Board v.
Chandrima Das.

g. In Nilabati Behera, the Supreme Court relied on the ICCPR to assert the individual’s
right to compensation for unlawful arrest or detention, while in Chairman Railway Board,
the court utilized the principles of the UDHR while widening the scope of Article 21 by
providing security to rape victims of foreign nationals.

II. Role of Legislature

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h. The Legislature, too, has relied on international human rights documents while enacting
criminal legislation. Take the example of CEDAW: because of CEDAW, India has come
up with legislations such as the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 and the Protection of Women from
Domestic Violence Act, 2005. The Statement of Objects of these laws clearly mention
CEDAW.

i. India has enacted several other legislations due to its international commitments. The
Rights of Persons with Disabilities Act, 2016 was enacted to comply with the United
Nations Convention on the Rights of Person with Disabilities (CRPD). 

j. Special legislations and provisions like the Child Labour (Prohibition and Regulation)
Act, 1986, the Mental Health Act 1987, the Human Rights Act, 1993, the Persons with
Disability (Equal Opportunities, Protection of Rights and Full Participation) Act,
1995 and the Right to Education Act, 2009 have also been enacted to ameliorate the
marginalised sections of the society. 

k. India’s signing of the United Nations Convention Against Torture (UNCAT) led to the
introduction of the Prevention of Torture Bill, 2010, a bill that sought punishment for
torture inflicted by public servants (pertinently, this bill has not passed the Rajya Sabha),
despite the fact that the convention has not been ratified.

CONCLUSION

As can be seen from the preceding analysis, the Indian legislature and court have broadened
the scope of basic rights in order to best advance human rights goals. They have used a
variety of international standards and principles to recognise and enforce specific rights,
thereby impacting criminal justice administration.

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ANSWER 2

INTRODUCTION: SECTION 313 OF CODE OF CRIMINAL PROCEDURE

To begin with, section 313 of the CrPC allows the court to examine the accused at any point
throughout a trial or investigation. Second, it requires the court to interview the accused about
the case after the prosecution's witnesses have been questioned and before the accused has the
opportunity to submit his defence. The clause shields the accused from prosecution if they
refuse to answer or give fraudulent replies. It is to be noted that an accused's right to remain
silent under Section 313(3) of the Code is in consonance with his right against self-
incrimination as enunciated under Article 20(3).

The answers which the accused may give in response to the question put under this section
shall be given without taking oath. This means that an accused person when answering them
is not a witness according to Section 4 of the Oaths Act, 1969 and his responses thus are not
‘evidence’ under Section 3 of the Evidence Act. Sub-section 4 merely says that the accused’s
answers may be taken into consideration in such inquiry or trial, although it can be used as
evidence for any other inquiries or trials for any other offence which the answers may show
that he has committed.  Further, the accused can also not be cross-examined. 

JUDICIAL INTERPRETATION OF SECTION 313

In Hate Singh Bhagat v State of Madhya Pradesh, the Supreme Court held that every
circumstance which the prosecution relies on should be put to the accused under his
examination under section 342 (section 313 of the new code corresponds to this) and any
circumstance with respect to which he was not examined cannot be relied on or considered at
all by the court for the purpose of conviction.

In Sharad Birdhichad v State of Maharashtra, the Supreme Court observed that since the
court had not put certain circumstances going against the accused to him under section 313,
all such circumstances cannot be used against him to convict him. The rationale here is that it
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corresponds not only to the natural justice principle of audi alteram partem but also to the
requirements of a fair trial, where the accused is not condemned unheard.

Furthermore, this is the accused's only opportunity to personally explain circumstances

tending to incriminate him without becoming a competent witness under Section 315, which
he cannot be forced to become due to the right against self-incrimination because he would
have to subject himself to cross-examination by the prosecution.

However, in Sahabrao Bobade v State of Maharashtra, this position of law underwent a

slight change. In this case, Supreme Court observed that in the case before it, although the
accused was not questioned about an incriminating circumstance in the trial but was
convicted in part by on the strength of it, such omission need not necessarily vitiate the trial
and it is upon the accused to show that miscarriage of justice or some kind of prejudice has
been caused to him consequently, especially when the appellate court puts such circumstance
to his counsel who is unable to satisfactorily answer to it.

As a result, a conviction would be acceptable even if it was based in part on a factor that was
not shown to the accused under section 313, as long as it did not create prejudice to the
accused. The accused would have to demonstrate whether or not it created discrimination.

As for effect of silence, refusal to answer, or evasive answers on the part of the accused, in
Raj Kumar Singh v State of Rajasthan, the Supreme Court held that an adverse inference
can be taken against the accused only if the other incriminating material stands fully
established and the accused is not able to give any explanation for the same. If he gives
evasive answers, or remains silent when questioned about incriminating circumstances, it is
lawful for the court to make an adverse inference. The same was followed in Prahlad v State
of Rajasthan, where the accused of a murder and rape did not answer as to when he left the
company of the victim, under section 313 examination.

PURPOSE OF THIS PROVISION

a. Audi Alteram Partem

Hon'ble Apex Court in Raj Kumar Singh v. State of Rajasthan, appraising the provisions
under Section 313 CrPC, inter alia, observed, "the purpose of examining the accused person
under Section 313 CrPC is to meet the requirement of the principles of natural justice i.e.,
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audi alteram partem. This means that the accused may be asked to furnish some explanation
as regards the incriminating circumstances associated with him, and the court must take note
of such explanation."

Clause (a) of Section 313 grants the court the authority to ask inquiries at any time, but
Clause (b) is stage-specific. Both serve the same purpose: the provision allows the accused to
explain the facts and circumstances adduced against him in evidence that are or appear to be
damning.

b. Opportunity to be heard

The section's primary goal is to provide the accused a fair opportunity to be heard.
Frequently, the accused is either illiterate or is not fully aware of his right to a fair trial. As a
result, "for the goal of enabling the accused personally to explain any circumstances
appearing in the evidence against him," as stated in the text. As a result, the primary goal of
implementing the section is to establish a contact between the accused and the court.

Further, the presence of the word ‘generally’ in Section 313(1) (b) does not narrow down the
scope of the section to a particular number of questions or to a certain nature of questions.
The questions should relate to the whole case or any specific part if required. Such questions
should also carry an explanation if needed, so as to enable the accused to understand them
better.

c. Practical Utility for criminal courts

Courts have also persistently avowed that the examination of an accused under Section 313
CrPC is not a mere formality for the, "[a]nswers given by the accused to the questions put to
him during such examination have a practical utility for criminal courts. (Rattan Singh v.
State of H.P)

Moreover, the Hon'ble Supreme Court in Janak Yadav v. State of Bihar 6, observed, "Section
313 CrPC prescribes a procedural safeguard for an accused facing the trial to be granted an

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opportunity to explain the facts and circumstances appearing against him in the
prosecution's evidence. That opportunity is a valuable one and cannot be ignored." 

CONCLUSION

In practise, this means that any answer under Section 313 will only be utilised to provide
confidence for acquitting the accused, rather than as substantial or corroborative evidence to
convict. On the other hand, if there is enough evidence to show the accused's guilt beyond a
reasonable doubt, such replies under Section 313 are unlikely to be necessary to provide new
reasons to condemn him. There are still uncertainties about the specific role of the court
under Section 313, the consequence of not presenting a circumstance to the accused, the
effect of the accused's silence or refusal, and the precedents dealing with each of these issues.

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ANSWER 3

ANKUSH SHIVAJI GAIKWAD V. STATE OF MAHARASHTRA

Before critically analysing this judgement, it is pertinent to look at the facts and the ratio of
the case along with the relevant legal provisions. The relevant legal provision of the Code of
Criminal procedure are Sections 357(3) and 357(4). Section 357(3) vests Courts with the
discretion to grant compensation to victims in cases where the punishment did not include a
fine (such as the present case). Section 357(4) additionally vests this power in Appellate
Courts, High Courts and Courts of Session. Now, let us look at the facts and the decision of
the case.

Facts: The appellant-accused along with other co-accused was tried and held guilty under
S.302/34 IPC and sentenced to imprisonment for life with fine of Rs. 2,000/- each. The
incident of sudden fight took place without any premeditation and in that incident; appellant
hit the deceased in the heat of passion without taking any unfair advantage or acting in a cruel
or unusual manner. The High Court, in appeal, confirmed the conviction and sentence of the
appellant-accused and acquitted the co-accused that gave rise to this appeal for consideration
before the Apex Court. One of the primary questions the court considered in this case was
whether the courts have a duty to consider the question of awarding compensation to the
victim and record reasons while granting or refusing compensation to them.

Held: The Apex Court allowed the appeal to the extent of convicting appellant with rigorous
imprisonment under S.304 Part II of IPC instead of S.302 IPC. Also, it was held that court in
every criminal case will consider the issue of compensation under S.357 IPC and apply its
mind with reasons to award or reject the monetary compensation to the victim.

CRITICAL ANALYSIS

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 I. Discussion on Compensation

a. Beginning at paragraph 25, the court considers the issue of compensation awarded to the
deceased's relatives and enforced against the appellant. The Supreme Court then goes into
great detail about victim compensation, including its historical context, other countries'
positions, UNGA resolutions, and Law Commission Reports to substantiate the same.

b. The Court then looks into whether the exercise of such power may be neglected – in
short, whether the use of the word “may” make it obligatory for courts to exercise such
power, concluding that there is, indeed, a such an obligation. It stated that the victim
would remain forgotten in criminal justice system if despite legislature having gone so far
as to enact specific provisions relating to victim compensation, Courts choose to ignore
the provisions altogether and did not even apply their mind to question of compensation

c. The discretion granted to courts under Section 357 brings with it the well-recognised
legal principle that orders can be made only after due application of mind. Hence,
while there may be reasons for the court to refuse the granting of compensation, such an
order must be accompanied by reasons.

II. Decision To Not Provide Compensation

d. However, the Supreme Court, after spending a significant portion of the judgment on the
importance of providing victims compensation, and going far as to call the lower courts
ignorant, does not itself provide compensation to the family of the deceased in the case,
citing “time lag”.

e. The very point of describing in such detail the importance of compensation to victims’
families, in my opinion, should have been actually giving such compensation, not only
setting an example for future cases.

III. Ignored Its own Requirements

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f. Section 357(4) vests this power in the hands of Appellate Courts – and as we know, the
Supreme Court is an Appellate Court. Therefore, the obligations to apply judicial mind
and provide well-reasoned orders extends to the Supreme Court as well. In my opinion,
the court completely ignored its own requirements under the section.

g. A one-paragraph explanation does not qualify as a “well-reasoned” order, and the

reasoning was inadequate and faulty. The time lag in question was seven years, and sad as
it is, with the state of pendency in this country, that is not a very long time. And
regardless of how much time had passed, it is in the interest of justice to provide the
family compensation.

CONCLUSION

To summarise, I feel that this judgement delved upon important questions regarding
compensation to victim and held that it is mandatory duty on the court to apply its mind to the
question of compensation to the victim and conduct a certain enquiry to know the capacity of
accused to pay and decide sentence and compensation for the welfare of victim or his/her
family. However, it itself failed to consider S.357 of the Cr.P.C in the application of the
present case and thus ended up in hypocrisy.

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ANSWER 5: PART A

CANCELLATION OF BAIL

Cancellation of bail is stated under Section 439(2) of the CrPC. The section makes it clear
that such cancellation of bail may be done by either the High Court or the Court of Session,
and the term ‘may’ implies the discretion of the court in the same.

Further, per the General Clauses Act, 1897, courts that grant bail also have the power to
cancel it. This has also been settled in Siddharam Satlingappa Mhetre v. State of
Maharashtra. Moreover, cancellation of bail may be instituted either at the instance of the
accused, the public prosecutor or the complainant on finding new material or circumstances
at any point of time. Through various cases, courts have dealt with the circumstances in
which a court should cancel bail.

OBJECT OF THE PROVISION

The goal or object of allowing bail to be cancelled is to enable a free and fair trial. In order to
avoid the clutches of the law, accused individuals may tamper with evidence or intimidate
witnesses, hence bail cancellation is necessary to safeguard society from such a person being
released. This has been held in Panchanan Mishra vs. Digambar Mishra.

IMPORTANT CONSIDERATIONS

When can bail be cancelled?

A bail is usually cancelled when there are “very cogent and overwhelming reasons” for the
same. The court also laid down some guidelines or circumstances for when a bail may be
cancelled in Dolat Ram and others vs State of Haryana. The same are;

a. interference or attempt to interfere with the due course of administration of justice;

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b. or evasion or attempt to evade the due course of justice or abuse of the concession granted
to the accused in any manner.
c. The satisfaction of the court, on the basis of material placed on the record of the
possibility of the accused absconding

What must the court keep in mind when cancelling an order granting bail?

In S.N. Bhattacharjee vs. State of West Bengal, the court held that while passing orders for
cancellation of bail, the court is to look at the conduct of the accused post grant of bail, and
supervening circumstances. Further, in Dolat Ram and others vs State of Haryana, it was
held that, such orders must not be granted in a mechanical manner, and the circumstances
must be scrutinized to check if a free trial is not possible if the accused remains at liberty.

ANSWER 5: PART B

JUDICIAL DISCRETION WITH REGARDS TO BAIL

A review of relevant case laws will help us understand judicial discretion, especially when it
comes to the grant or revocation of bail.

A. Siddharam Satlingappa Mhetre v. State of Maharashtra

a. Firstly, all kinds of judicial discretion come with the obligation to exercise due care and
caution. The judge(s) in question must be very well aware of the context of its use, as
well as the reasonably foreseeable consequences of its use. A wise use of such power
does away with the evil consequences likely to come from intemperate use.

b. Secondly, attempting to formulate rules for the exercise of this discretion will confine the
powers granted to the court. Thus, discretion must be used in a case-to-case basis, such
that the power is preserved without leaving it vulnerable to abuse. Such judicial

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 discretion must be exercised by the judge keeping in mind the entire relevant material on
record.

c. Thus, it held that no attempt should be made to provide rigid and inflexible guidelines in
that respect because all circumstances and situations of future cannot be clearly visualized
for the grant or refusal of anticipatory bail.

B. Gurbaksh Singh Sibbia and Others v. State of Punjab

a. The grant and refusal of bail is suited to the discretion of the High and Sessions Courts,
for they have the necessary training and experience for the same.

b. These courts must be trusted to exercise such discretion without having the need to lay
down inflexible rules of application, which would stultify the power granted to them by
the Legislature. Had the Legislature intended rules governing such powers, it would have
seen fit to lay down those rules itself.

c. Thus, the term judicial discretion conveys the judicious use of the power to grant or
refuse bail without abusing it.

C. Kalyan Chandra Sarkar vs. Rajesh Ranjan

In this case, it was held that judicial discretion implies exercise in a judicious manner, and not
as a matter of course. A well-reasoned explanation (application of mind) must be given for
the grant or refusal of bail.

D. Sanjay Chandra v. CBI

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Again, it was decided in this instance that discretionary authority carries with it the
responsibility to employ it with care and caution, so that a person's right to liberty is weighed
against the broader issue of society safety.

E. Gudikanti Narasimhulu v. Public Prosecutor

Finally, to elucidate the principle of judicial discretion, Justice V.R. Krishna Iyer used the
words of Benjamin Cardozo in this case. He stated "The Judge, even when he is free, is still
not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in
pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from
consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated
benevolence. He is to exercise a discretion informed by tradition, methodized by analogy,
disciplined by system, and subordinated to "the primordial necessity of order in the social
life". Wide enough in all conscience is the field of discretion that remains."

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ANSWER 6

LEGAL CONSEQUENCES OF THE NON-COMPLIANCE OF THE RULES OF

SEARCH

The provisions dealing to summons to produce documents or other objects, search-warrant

provisions, and other regulations connected to search and seizure are covered in Chapter VII,
which contains Sections 91-100 of the Code of Criminal Procedure, 1973. The provisions of
this chapter deal with summons and warrants, including their issuance, service, and
execution. Several cases have dealt with situations in which rules of search prescribed under
either the CrPC or other penal legislations have not been complied with.

RELEVANT CASES

d. Sunder Singh v. State of Uttar Pradesh:

Even though the standards of Section 103 of the CrPC were not met in this case, the court
said that the search would not be invalidated; rather, the weight of the evidence acquired from
the search would be affected. The court went on to say that the abnormalities in the search
method did not amount to a violation of the law, and so the appeal was dismissed.

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 e. State of Punjab v. Ram Parkash

This case, while citing from State v. Sadhu Singh, stated that the failure to comply with rules
of search, was not by itself sufficient to disregard the evidence obtained thereof. Such
evidence would just be subject to additional scrutiny. Thus, the court held that the failure to
have independent witnesses at the search could not render the evidence obtained suspicious
or unreliable.

f. State of Punjab v. Balbir Singh

In this instance, the court determined that non-compliance with Sections 100 and 165 of the
CrPC had an impact on evidence appreciation, and the court would investigate whether the
weight of evidence was impacted as a result of the non-compliance. The court further stated
that failure to comply with necessary legal standards would harm the prosecution's case and
invalidate the trial.

CONCLUSION BASED ON CASES

Based on my perusal of the cases above, following can be concluded:

a. Firstly, non-compliance of rules of search could affect the weight of the evidence so
obtained, and open up the evidence to additional scrutiny – but the evidence will not be
excluded, as illegally obtained evidence is admissible under the scheme of the Indian
Evidence Act.

b. Secondly, illegal searches do not exclude evidence or vitiate trials. It would be looked into
in a case-to-case basis.

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c. And thirdly, unless there has been a serious injustice done to the accused, illegal searches
would not affect the validity of trials.

THE EFFECT OF ILLEGAL SEARCHES ON THE ADMISSIBILITY OF

EVIDENCE AND THE VALIDITY OF TRIALS

I. ADMISSIBILITY OF EVIDENCE

Section 5 of the Indian Evidence Act, 1862, permits relevancy as the only test of
admissibility of evidence and, secondly, neither the Act nor any other similar law in force
excludes relevant evidence, on the ground that it was obtained under an illegal search or
seizure. Let us look at some pertinent cases to understand this more clearly.

a. Radha Krishan v. State of Uttar Pradesh

In this case, the court stated that even if a search was illegal, the seizure of the articles is not
vitiated. A person can resist the search of his premises, or the court could place additional
scrutiny on the evidence obtained – and beyond these, there are no consequences.

b. Pooran Mal v. Director of Inspection

In this case, it was held that in India where the test of admissibility of evidence lies in
relevancy, unless there is an express or necessarily implied prohibition in the Constitution or
other law, evidence obtained as a result of illegal search or seizure is not liable to be
disregarded.

c. MP Sharma v. Satish Chander

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In this case, the argument was that evidence obtained out of an illegal search would be no
better than illegally compelled evidence, and thus unconstitutional per Article 20(3).
However, the court held that a “strained construction” of the Constitution could not spell out
the exclusion of evidence obtained on an illegal search.

d. State of Punjab v. Baldev Singh

In this case as well, in agreeing with the judgment given in the case of Pooran Mal v.
Director of Inspection, the court held that evidence obtained as a result of an illegal search
will not be disregarded (this case, however, also went on to state that the evidence obtained
could not be used to show proof of possession under the NDPS Act, and therefore, there
would be an impact on the conclusion of the trial).

II. VALIDITY OF TRIALS

a. State of Punjab v. Jasbir Singh

Here, the court held that it was settled law that evidence collected during investigation in
violation of the statutory provisions does not become inadmissible and the trial on the basis
thereof does not get vitiated. Each case is to be considered on its own backdrop.

b. State of Punjab v. Balbir Singh

The court in this case held that a failure to strictly comply with the requirements of the CrPC
would not per se render such a search illegal, and would also not vitiate the trial. It would
depend upon the facts and circumstances of each case.

c. State of Punjab v. Baldev Singh

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In this seminal case, it was held that an illegal search and seizure may not vitiate the trial but
would render the recovery of the illicit article suspect. Further, the conviction and sentence of
the accused would be vitiated only where said conviction was based solely on the basis of the
article obtained via the illegal search and seizure.

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