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Right to fair trial

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RIGHT TO FAIR TRIAL
R. Muralidharan,
Advocate, Law Lecturer, Mediator,
Patents and Trademarks Attorney,
Mail to : muralimanu@gmail.com
Mobile : 9448247549.
Note : For instructional use only.
2
Due Process
 The Due Process of law contemplates two types
of due processes:
a) Substantive Due Process namely the law that
makes the act penal or as an offence that must
be a fair law.
b) Procedural Due Process :
If a person is prosecuted for violation of fair
laws, the prosecution will be in accordance
with certain procedures that makes the system
fair.
3
Origins of the right
 The right to fair trial is a constitutional right
enshrined in Articles 14 and 21 of the
Constitution of India.
 Fair trial is a very broad concept but yet it is a
very specific process.
 2 aspects of fair trial:
a) The punishment is after a fair trial having just
procedure.
b) Establishment of guilt beyond reasonable
doubt.
4
5
Basic attributes of fair trial
 The basic attributes of the fair trial can be traced from
the Universal Declaration of Human Rights, 1948.
 They are enshrined in Articles 10 and 11 of the
Declaration.
 Art. 10: Every one is entitled in full equality, to fair and
public hearing by an independent and Impartial tribunal
in the determination of his rights and obligations of any
criminal charge against him.
 Art 11: Every one charged with a penal offence has the
right to be presumed innocent until proved guilty. The
trial must be public in which the accused has had all
the guarantees necessary for his defense.
6

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Right to fair trial

  • 1. 1 RIGHT TO FAIR TRIAL R. Muralidharan, Advocate, Law Lecturer, Mediator, Patents and Trademarks Attorney, Mail to : muralimanu@gmail.com Mobile : 9448247549. Note : For instructional use only.
  • 2. 2
  • 3. Due Process  The Due Process of law contemplates two types of due processes: a) Substantive Due Process namely the law that makes the act penal or as an offence that must be a fair law. b) Procedural Due Process : If a person is prosecuted for violation of fair laws, the prosecution will be in accordance with certain procedures that makes the system fair. 3
  • 4. Origins of the right  The right to fair trial is a constitutional right enshrined in Articles 14 and 21 of the Constitution of India.  Fair trial is a very broad concept but yet it is a very specific process.  2 aspects of fair trial: a) The punishment is after a fair trial having just procedure. b) Establishment of guilt beyond reasonable doubt. 4
  • 5. 5
  • 6. Basic attributes of fair trial  The basic attributes of the fair trial can be traced from the Universal Declaration of Human Rights, 1948.  They are enshrined in Articles 10 and 11 of the Declaration.  Art. 10: Every one is entitled in full equality, to fair and public hearing by an independent and Impartial tribunal in the determination of his rights and obligations of any criminal charge against him.  Art 11: Every one charged with a penal offence has the right to be presumed innocent until proved guilty. The trial must be public in which the accused has had all the guarantees necessary for his defense. 6
  • 7. 7
  • 8. The Trial  The purpose of the trial is to conclusively determine the innocence or the guilt of a party.  There are different forms of a trial. These are dealt with in the Criminal Procedure Code in Chapters XVIII, XIX and XX.  The concept of fair trial means that the entire process viz., pre-trial and the trial itself must be fair. 8
  • 9. 9
  • 10. Pre-trial processes  Before the commencement of the trial, the investigation is done by the police. This is dealt with in chapter XII of the Cr. P. C.  Section 154 deals with the lodging of first information. Although, the term “first information” is not used, the information as described under this section is treated as first information.  The lodging of information/complaint under this section is vital and marks the beginning of the investigation process. 10
  • 11. What is FIR?  First Information Report (FIR) is a written document prepared by the police when they receive information about the commission of a cognizable offence.  It is a report of information that reaches the police first in point of time and that is why it is called the First Information Report.  It is generally a complaint lodged with the police by the victim of a cognizable offence or by someone on his/her behalf.  Anyone can report the commission of a cognizable offence either orally or in writing to the police. Even a telephonic message can be treated as an FIR. 11
  • 12. FIR  Generally a Complaint/FIR will be registered on the statement of victims. A copy of FIR will also be given to the complainant free of cost.  The first information is then recorded by the police, and under Section 157 the information is to be forwarded to a magistrate.  Sections 160 and 161: powers of the police to interrogate witnesses. They are empowered to make written statements of the information thus obtained. This should not contain witness signature. It can be video graphed.  The power of the police to call witnesses is laid down in Section 160 of the code.  The process to compel the appearance of witnesses is prescribed in Chapter VI of the code. 12
  • 13. Section 162 13  No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it.  Nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or any record thereof, be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.
  • 14. Section 173  This section compels that as soon as the police complete the investigation of the crime, they must forward the police report to a magistrate empowered to take cognizance of the offence. 14
  • 15. 15
  • 16. Essentials of the Police Report The following must be included in the police report: 1. Names of the parties. 2. Nature of the information. 3. Names of the persons who appear to be acquainted with the circumstances of the case. 4. Whether any offence appears to have been committed, and if so by whom. 5. Whether the person has been arrested. 6. Whether he has been released on bond and if so, with or without sureties. 7. Whether his conviction has been forwarded under Section 170 of the code. 16
  • 17. Public Prosecutor  The term “public prosecutor” has been defined in Section 24 of the act.  It is the duty of the State to appoint public prosecutors, for High Courts and every district of the state.  The state may appoint one or more additional prosecutors for every district. 17
  • 18. 18
  • 19. Importance of Public prosecutor  Section 225 states that in every trial before a Court of Sessions, the trial must be conducted by a Public Prosecutor.  It is possible that the state prosecutor can conduct any prosecution in the entire state.  Conduct of trial by the public prosecutor is mandatory and a police officer conducting the trial is highly objectionable.  Even victim’s lawyer cannot conduct the trial unless he is appointed as Special Prosecutor. 19
  • 20. Functions of the public prosecutor  The principle behind the need for a public prosecutor is the necessity of a fair trial.  The public prosecutor may(What about the victim’s right?) always take the assistance of a counsel retained by a private individual.  The law gives the public prosecutor a real discretion in the duties that he is to carry out.  With the permission of the court, he is entitled to with draw from the prosecution at any time thus putting an end to the prosecution. 20
  • 21. Special prosecutor  A special prosecutor generally is a lawyer from outside the government appointed by an attorney General to investigate a government official for misconduct while in office.  A reasoning for such an appointment is that the governmental branch or agency may have political connections to those it might be asked to investigate.  Inherently, this creates a conflict of interest and a solution is to have someone from outside the department lead the investigation.  The term "special prosecutor" may have a variety of meanings from one country to the next, from one government branch to the next within the same country, and within different agencies within each government branch.  Critics of the use of special prosecutors argue that these investigators act as a "4th branch" to the government because they are not subject to limitations in spending or have deadlines to meet. 21
  • 22. 22
  • 23. The ban against Pvt prosecutor!!  To allow the prosecution to be conducted by a counsel engaged and briefed by the complainant is against the mandatory nature of this section. 23
  • 24. Opening case of the prosecution  Section 226 of the Cr. P. C., states that :  The accused appears or is brought before the Court in pursuance of a commitment of the case under Section 209.  the prosecutor shall open his case by describing the charge brought against accused and stating by what evidence he proposes to prove the guilt of the accused. 24
  • 25. Conduct of Prosecution  However, it is not necessary for the public prosecutor to give full details regarding the evidence.  However, in order that the trial be conducted fairly, the public prosecutor is not allowed to withhold any evidence.  At this stage of the trial, the main function is to bring forth the evidence. No doubtful questions on the admissibility of evidence should be raised at this point in the proceedings. 25
  • 26. Discharge  According to S.227 if the judge feels that there is not enough evidence against the accused, and that it is not worth taking up the trial, then the Judge can discharge the accused, if there is no prima facie case .  A discharge, though good, will not entitle the accused the benefit of Double Jeopardy. There can be fresh trial if there is new or additional evidence. 26
  • 27. Framing of charge  After the hearing, if the judge is not convinced of the innocence of the accused, and does not wish to discharge him, then there are two courses of action that may be taken.  If the case is exclusively triable by that court, then the judge may go ahead and frame the charges in writing.  If not, then the judge may send a report to the Chief Judicial Magistrate, who shall try the case in accordance with the procedure for trial on warrant cases. 27
  • 28. 28
  • 29. Framing of charge  It is to be noted that the forwarding of the case to the CJM without the court framing the charge is not illegal.  The provision “may frame a charge” against the accused, is directory and not mandatory on the judge. 29
  • 30. Accused should be told about the charges  At the stage of framing the charges, it is not the duty of the court to minutely go into the details of the merits of the evidence. That happens during the actual conduct of the Trial.  Once the charge has been framed, it must be read and explained to the accused and the accused shall be asked whether he pleads guilty or desires to be tried.  This pleading of “guilty” or “not guilty” must be done by the accused himself and not by the counsel for the accused, except when the offence is punishable only with fine. 30
  • 31. 31
  • 32. Who frames the charges?  It is highly desirable, although not expressly mandatory, that the charge must be framed by the Sessions Judge himself.  If the accused pleads guilty, the under section 229 of the code, the judge shall record the plea.  In the discretion of the judge, he may convict him thereon.  However, incase of doubtful plea, it should be deemed as not guilty plea. 32
  • 33. Language used  The charges are usually framed in the vernacular language of that place, but may be framed in any other language as well.  Framing of charge must be done with care and caution, and there must be a separate count of charge for each penal section. 33
  • 34. Presumption of innocence  The presumption of innocence is one of the cardinal principles which should always be kept in mind during the administration of justice.  In the case of S.A.A. Biyabani v State of Madras, (AIR 1954 SC 645) it was conclusively held that even in an appeal case, the presumption of innocence on the part of the accused is not weakened. 34
  • 35. Role of the judge  The presumption of innocence only ends when the lower court, convicts the accused.  This was held in B.R. Kapur v State of TN- (2001 (7) SCC 231)  It is the duty of the judge while adjudicating a case, to ensure that not only is an innocent man not punished, but a guilty person be given his punishment.  Both aspects are equally important and a trial cannot be a fair trial if a guilty person is allowed to go free. 35
  • 36. Accused when benefited?  The court however requires a high standard of evidence to impose punishment on a person.  The law, unless specified otherwise by the relevant penal statute gives the benefit of the doubt to the accused.  The law should however not stretch to include every small hunch, and hesitancy.  The need to maintain a pragmatic, real and efficient system that should be tough on offenders should be achieved by striking a balance between the judicial enthusiasm for presumed innocence and the punishment of the guilty. 36
  • 37. Relevant concepts on conviction  In order for the trial to be fair, the fairness must continue in the post trial stage as well.  These rules are generally followed during the process of conviction:- a) The conviction must be on plea recorded by the sessions judge (for sessions trial) and not that of the committing magistrate. b) The conviction is for the offence to which the accused pleaded guilty. 37
  • 38. Joint Trial  When in a joint trial of more than one person, if one of the accused pleads guilty, his statements affect only him and the other accused must be independently proved.  Then again one must also bear in mind that the trial of an accused person need not necessarily end if he pleads guilty, because the judge may or may not choose to act upon this plea. 38
  • 39. Evidence of Co-Accused  The practice in India often is that in a joint trial, the accused are tried in order so that the confession of one is used as evidence against the others under S.30 of the Evidence Act.  However, if one of the co-accused is convicted, then he is free to appear as a competent witness for the side of the prosecution. 39
  • 40. Problems in ensuring fair trial  While, the framers of law can prepare legislation that ensures maximum fairness, the execution of the procedure is equally important in maintaining fairness.  Some of the problems caused by the police are :-  Delay in recording the first information.  Interpolation and alteration in the first information and other documents.  Avoiding registration of cognizable offences.  Conversion of cognizable offences into non- cognizable offences.  Preparation of search and seizure lists.  Illegal detentions and improper arrests.  Fabrication of evidences.  Use of third degree method for obtaining confession. 40
  • 41. More problems..  Harassment of witnesses.  Accepting bribes and institution of false cases. We will now look at some of the individual problem caused by the police, during the course of conducting the trial. 41
  • 42. Third degree methods (or torture)  Under Conventions on international law, the term torture or third degree methods refer to: • The intentional infliction of severe physical or • Mental pain or • Suffering,  in order to intimidate, coerce, obtain information or a confession, with a view to secure punishment.  However, the term is restricted to actions committed by persons acting in an official capacity. 42
  • 43. 43
  • 44. Conventions against torture  The UN convention against torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment which came into force in 1987 and to which more than two- thirds of the world’s nations are parties, bans torture and other abusive treatment of any person.  That tortured individuals divulge false information is known to be true, and an instance of this was reported to have contributed to the Bush administration's belief that Iraq had helped train militant Islamic terrorists. 44
  • 45. Third Degree methods..  The psychological modes of investigation are mere substitutes for the physical third degree method of investigation.  Therefore, although it does not come under the classification of torture, it cannot be used for basis of confirmation of offences.  The tests only show the body’s reaction to questions and does not meet the “falsifiability criterion”  Meeting of this criterion is necessary for admissibility. 45
  • 46. NHRC report on custodial deaths 46
  • 47. Deaths in police custody 47
  • 48. State wise deaths in prison custody 48
  • 49. State wise deaths in prison custody 49
  • 50. State wise deaths in prison custody 50
  • 51. NHRC report  The data of the NHRC does not reflect the actual extent of custodial death in India.  These deaths reflect only a fraction of total deaths because not all custodial deaths are reported to the NHRC.  As this report indicates, more than four persons have been killed each day in the last decade from 2001 to 2010.  It shows that there has been no reduction of incidents of torture in India.  A large majority of these deaths are a direct consequence of torture in custody. 51
  • 52. Protection from 3rd degree methods  The precious right given by Article 21 cannot be denied to prisoners and convicts.  Section 7 of the Police Act, 1861 empowers the higher officers to “dismiss, suspend or reduce any officer to the sub-ordinate ranks whom they shall think is negligent in discharge of his duties or unfit for the same.”  Section 29 of the Act provides that any police officer violating the rules and regulations including any police officer who shall offer any unwarrantable personal violence to any person in his custody shall be punished with three months’ rigorous imprisonment. 52
  • 53. NARCO-ANALYSIS ( an invasive method)  Narco analysis, is a test used.  In this test, Sodium Pentothal is the drug that is used.  However, this drug merely helps reveal information concealed by a person, these could be fantasies, or simply mixed feelings  There is no scientific basis for determining truth in these cases.  This only reveal “psychological truths and not “probative truths.” (the police look for probative truth) 53
  • 54. 54
  • 55. Smt. Selvi v. State of Karnataka (2004 (7) KarLJ 501) Facts:  The complainant namely, Kavita, is the daughter of accused 1 and 2. She and deceased Shivakumar (who belonged to different caste from that of Kavita) fell in love and married against the wishes of accused 1 and 2.  According to the complainant, on 10-4-2004, at about 8.00 p.m., when she and her deceased husband were returning to home, a maruthi van bearing No. KA-04-MA3167 came and four persons kidnapped her husband in that van.  So, she lodged a complaint, for the offence under Section 365 of the Indian Penal Code at Police Station.  Thereafter, a dead body was found by one Nagendra Kumar on 11- 4-2004 by the side of Hindustan Granite Factory compound at Attibele. So, he filed a complaint at Attibele Police Station. 55
  • 56. Facts continuation  That was registered for the offence under Section 302 of the Indian Penal Code against unknown persons on 11-4- 2004.  During investigation, said dead body was found to be the dead body of deceased Shivakumar.  During investigation, witnesses examined including the parents of deceased besides the complainant Kavita, wife of deceased Shivakumar, suspected the hands of accused 1 and 2 (who are parents of Kavita) along with others in the murder of Shivakumar.  Since the entire case of prosecution (regarding murder of deceased Shivakumar) depends only on circumstantial evidence, the prosecution sought permission from the Court to conduct Polygraph and Brain Mapping Tests on accused. 56
  • 57. Order of the court  Involuntary subjection of a person to narco-analysis violates Article 20(3) of the Constitution, which provides that 'No person accused of any offence shall be compelled to be a witness against himself.' (the 'right to silence').  The Court has, apparently, also held that even when a person volunteers to be subject to these tests, their result cannot be admitted as evidence in a court of law.  Such procedures “are illegal and a violation of personal liberty”, ruled a three-judge bench headed by Chief Justice K.G. Balakrishnan.  The order came in response to petitions questioning the validity of such tests that were filed by persons accused in various criminal cases. 57
  • 58. Evidence for prosecution at the Sessions Trial  Section 231 of the Cr.P.C. says that on the date so fixed, the judge shall proceed to take all such evidence as may be produced in support of the prosecution.  This Section enjoins that all evidence is to be taken and that the accused cannot be acquitted merely if the prosecution is not present.  The words “all such evidence” in the sub-section cannot be read as meaning only such evidence as relates to those persons who have been examined the police.  It is always open to the prosecution to examine them at a later stage provided adequate notice is given to the accused, copies of statements made by those witnesses before the police during investigation are supplied to the accused. 58
  • 59. Act of prosecution  It is not the duty of the prosecution to call witnesses who are not in a position to give material information in connection with the offence which has given rise to the prosecution or to tender such witness for cross examination by the defense.  However, the public prosecutor should not refuse to call, or put into the witness box for cross examination, a truthful witness merely because his evidence may be in some respect be favorable to the defense.  The prosecution is thus required to act fairly and honestly, and must never adopt the device of keeping back from the court eye-witnesses only because their evidence is likely to go against the prosecution case. 59
  • 60. 60
  • 61. DOG TRACKING EVIDENCE  There are basically three kinds of police dogs –  the tracker dogs, the patrol dogs and the sniffer dogs.  Recent trends show that hounds belonging to certain special breeds sheltered in specialized kennels and imparted with special training are capable of leading investigating agency to very useful clue in crime detection and thereby help detectives to make a breakthrough in investigation.  English courts have already started treating such evidence as admissible. In Canada and in Scotland such evidence has become, of late, admissible though in United States the position is not uniform in different States. 61
  • 62. 62
  • 63. SC on canine evidence 63  Gade Lakshmi Mangraju vs. State Of Andhra Pradesh, (2001 AIR 2677), 2001( 6 )SCC 205. The facts of the case are:  The witness is the police constable who deployed the police dog "Raja" for the purpose of tracking down the culprits of this murder.  He said that the police dog was brought to the place of occurrence and that dog after smelling the place, led to the recovery of  blood,  bloodstained handkerchief,  a knife and  a belt which were strewn on the floor near the dead body,  began its pursuit in search of the hideout of the culprits or where the body was stashed away.
  • 64. Advantages 64  Here, The track which the terrier followed thereafter has been narrated by the witness in his evidence. The termini of the track was the house of the appellant.  The uncanny smelling power of canine species has been profitably tapped by investigating agencies to track the culprits.  Trained dogs can pick up scent from the scene of any object and trace out the routes through which the culprits would have gone to reach their hideouts.
  • 65. Application in criminal cases?  Developing countries have utilized such sniffer dogs in a large measure.  In India also the utilization of such tracker dogs is on the increase.  Though such dogs may be useful to the investigating officers, can their movements be of any help to the court in evaluating the evidence in criminal cases? 65
  • 66. 66
  • 67. Criticism 67  A four-fold criticism is advanced against the reception of such evidence:  First is, it is not possible to test the correctness of the canine movements through the normal method available in criminal cases, i.e. in cross- examination.  Second is that the life and liberty of human beings should not be made to depend on animal sensibilities.  Third is that the possibility of a dog misjudging the smell or mistaking the track cannot be ruled out, or many a times such mistakes have happened.  Fourth is that even today the science has not finally pronounced about the accuracy of canine tracking.
  • 68. Are dogs reliable? 68  The weakness of the evidence based on tracker dogs has been dealt with in an article "Police and Security Dogs".  The possibility of error on the part of the dog or its master is the first among them.  The possibility of misunderstanding between the dog and its master is close to its heels.  The possibility of a misrepresentation or a wrong inference from the behavior of the dog could not be ruled out.  The last, but not the least, is the fact that from a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals.  Police dogs engage in these actions by virtue of instincts and also by the training imparted to them.
  • 69. No obligation to examine all witnesses  However, there is no obligation on the part of the public prosecutor to cite and examine all the witnesses.  Where there are many eye-witnesses to an occurrence and the prosecutor does not call some of them, the court is obliged to disbelieve the prosecution simply on the ground that others have not been called.  It is not necessary to cite and examine all the witnesses of an occurrence and thereby multiplying the evidence. The Investigating Officer should make sure that the omission to cite an Eye witness is justifiable.  However, when there are differences in the opinions and perspectives of the eye-witnesses, then the court has to listen to all the different opinions and attempt to reconstruct what really happened on its own. 69
  • 70. Impact of omission  Omission in producing any witness by the prosecution does not necessarily lead to rejection of other evidence or adverse influence.  However, if at the trial, it is shown that persons who had witnessed the incident have been deliberately kept back, the court may draw an inference against the prosecution and may, in a proper case consider this as a serious infirmity in the proof of the prosecution case. 70
  • 71. 71
  • 72. Duty of prosecution  The prosecution cannot be permitted to lead evidence relating to inconsistent cases.  In cases where death is alleged to have been committed by a weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have at least been caused, with the weapon with which they are alleged to have been caused. 72
  • 73. Direct evidence  It is not necessary, nor possible for the prosecution to prove motive in every case. In a case where the evidence connecting the accused with the crime is clear and convincing, the absence of proof on motive is not of much consequence.  Similarly, when direct evidence has been produced, it is not compulsory for the prosecution to produce documentary evidence. 73
  • 74. 74
  • 75. Examination of witnesses  The public prosecutors should be careful in examining medical witnesses, especially during murder trials.  For further ensuring the fairness of the trial, the judges should also bring take proper care in recording the statements given by the doctors, as to whether the injuries would have been sufficient to cause death in the normal course of things. 75
  • 76. 76
  • 77. Absent witness  It is the duty of the sessions judge, to see that all material witnesses summoned to give evidence are examined and if any such witnesses are absent, to adjourn the case and take coercive steps, if necessary for their attendance. 77
  • 78. Acquittal  Section 232 of the Cr.P.C. deals with the process of acquittal.  After taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defense on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal. 78
  • 79. No evidence 79  This section applies to the case of “no evidence” and would not cover a case where the court considers that the charge is in itself improper.  The words ‘there is no evidence’ does not mean that there is no proper evidence; it means that even if there is evidence which is perfectly true, which would not amount as legal proof of the charge against the accused, it will be construed as there being no evidence.
  • 80. 80
  • 81. 81
  • 82. Trial of warrant-cases by Magistrates  Chapter XIX of the Code deals with the trial of warrant cases.  It extends from Section 238 up till Section 250 of the code.  There are certain analogies between the sessions court trial and the trials covered under this chapter of the code. 82
  • 83. 83
  • 84. Discharge in warrant cases  Section 227 of the code, deals with the discharge of the accused in the sessions trial. Analogous to that section is Section 239, which deals with when the accused shall be discharged under warrant cases.  The provisions in this section are similar to the provisions of Section 227, with the difference that under this section there is provision for the examination of the accused also.  At this stage, it is not possible to dispute the veracity of facts.  This section gives the magistrate power to go beyond the documents that have been filed under s. 173 of the act.  If the prosecution files any document after filing the report under s.173 and before the charge, that document can be taken into consideration for purposes of framing the charge. 84
  • 85. More on Section 239  The section provides an opportunity of being heard. The term hearing in this section does not merely mean an oral hearing, but also includes the production of documents.  In the circumstance that the court finds the charge against the accused to be “groundless”, the accused will automatically be discharged under this section. 85
  • 86. Warrant cases  Section 240, similar to section 228, but this deals with the same process for a warrant trial.  The prime consideration while framing a charge under this section is that one has to look at a case prima facie and decide whether or not there is a case against the accused. 86
  • 87. Conviction under Section 241  Section 241 of the code allows a conviction when the accused pleads guilty. The magistrate shall record the plea and then convict him as guilty, although this shall be done in his discretion.  The reason that the plea is to be recorded, is because the magistrate has to ultimately justify the conviction of the accused.  However, just like the provision under s. 229, the accused is not bound by the conviction of the co- accused. 87
  • 88. Evidence in warrant cases  Sections 242 and 243 are the sections that deal with evidence in the warrant cases.  Section 242 states that it is the duty of the magistrate to take all such evidence as may be produced and also to compel the appearance of witnesses.  Furthermore, a witness not cited in the charge sheet may be examined, even at a later stage of the trial though there may be circumstances when it may cause prejudice to an accused.  On the flipside, it is not necessary for the prosecution to produced all the witnesses before the court. 88
  • 89. 89
  • 90. Evidence in warrant cases (cont..)  When the accused makes an application for the summoning of witnesses to the court, the Magistrate is under a duty to deal with the application and pass an order either granting the prayer or refusing it.  He does not have the power to order that the application be returned.  However, the accused has no absolute right to have them summoned as the magistrate can have them rejected on various grounds.  This effectively means that such witnesses cannot be compelled to appear ordinarily, but there is no restriction on their examination. 90
  • 91. Evidence in warrant cases (contd..)  However, in relation to documents, the accused has no right to call for the production of documents in possession of the accused, until a charge has been framed against him and read out to him. 91
  • 92. Section 244  When cases are brought before the magistrate without the filing of a police report, then the power of the magistrate to try the offence is governed by s.244.  Under S.244 the magistrate is bound to examine witnesses produced. A magistrate is bound to examine every one of the witnesses called by the complainant.  If a witness has turned hostile, it does not mean that the witness has to be thrown overboard. It just means that the only part of the evidence that can be relied upon is the part that is in conformity with other evidence. 92
  • 93. 93
  • 94. Evidence in warrant cases (contd..)  There is no obligation to examine all witnesses, but the non examination of a witness may lead to adverse inference.  When a witness who is named in the petition of a complaint is not examined in the case, the question whether an inference can be drawn will depend on the nature of the evidence. 94
  • 95. Identification Parade  A group of persons including one suspected of having committed a crime assembled for the purpose of discovering whether a witness can identify the suspect.  The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses.  The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. 95
  • 96. 96
  • 97. Objective of test 97 a) Use the memory of the witness based on the first impression. b) To check whether person’s Identifying or others can be eye witnesses to the crime. c) Neither Cr.P.C nor Evidence act have any provisions on Identification Parade.
  • 98. The test 98  It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused.  This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade.  This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation.
  • 99. Also admitted as facts  If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.  They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code.  Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. 99
  • 100. Case laws 100  Case law: Amitsingh Bhikamsing Thakur v. State of Maharashtra (AIR 2007 SC 676).  Identification of the accused through a test identification parade has no legal value.  As was observed by the Court in:  Matru v. State of U.P. (1971 (2) SCC 75) identification tests do not constitute substantive evidence.  They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines.  The identification can only be used as corroborative of the statement in court. Santokh Singh v. Izhar Hussain (1973 (2) SCC 406).
  • 101. 101
  • 102. Unfair Trials  Ibrahim Anwar’s Trial in Malaysia.  Ken Saro-Wiwa’s trial. 102
  • 103. Anwar Ibrahim’s Trial  In 1998, Anwar Ibrahim was charged with corruption and sodomy.  In 2000, he was sentenced to nine years for engaging in sodomy with his 19-year-old male chauffeur and his former male speech writer.  Despite national and international protests, he was not released until he had served out four years of his sentence, in 2004, when the Federal Court of Malaysia acquitted him of all charges.  After his release, Anwar stated that he was innocent and the allegations were part of a government conspiracy to end his political career.  He also felt that the national criminal laws against homosexuality ought to be reformed to protect consenting adult's right to have a private life, although he also stated that gay marriage, "is going a bit too far". 103
  • 104. Further proceedings..  In 2007, former Prime Minister Mahathir Mohammad responded to a civil lawsuit filed by Anwar by stating that a homosexual should not hold public office in Malaysia and that he knew Anwar was a homosexual because Anwar's male chauffeur and a male speech writer both stated in court that they had had sexual relations with Anwar.  In July 2008, Anwar was arrested again, accused of sodomy with a male former aide. The arrest came shortly after Anwar claimed to be in a position to challenge the governing coalition after the opposition's successes in the march elections.  However, he was released on bail and won the campaign for his former seat in Parliament, and currently leads the opposition in Parliament. 104
  • 105. Putting Homo-sexuality in the right perspective 105  There is a need for laws that recognize sexuality as a positive aspect of human life.  Some of the most emotional and divisive issues in our society, specifically issues concerning gay rights, revolve around two central and critical questions: should homosexual activity be legalized or branded immoral and illegal?  In an effort to bring clarity to these issues, an intellectual forum titled “Homosexuality: Crime or Right” was held at the International Islamic University Malaysia (IIUM).  The speakers were Dr Shamrayahu Abdul Aziz, constitutional expert (IIUM); Lim Chee Wee, Malaysian Bar president; and Dr Farouk Musa, chairman of Islamic Renaissance Front.
  • 106. Questioning state intervention  In matters of personal morality, asking: does the state have a right to do this?  Anwar called for a review of the Penal Code after he was acquitted of all charges.  The Penal Code has some semblance to Islamic law. Since 1938, there were seven cases tried under 377; out of the seven, four were related to Anwar. It implies, as lay person, that 377 has been used as a tool to persecute a state opponent. 106
  • 107. Thinking around the world  Drafted by Lord Macaulay in 1860, Section 377 is a sodomy law which criminalizes “carnal intercourse against the order of nature”.  The UN General Assembly declaration, which is not legally binding, condemns rights abuses against gays and urges states to pass laws to ensure that “sexual orientation or gender identity” cannot “be the basis for criminal penalties, in particular executions, arrests or detention”.  Human rights groups report that homosexuality is still outlawed by more than 85 countries and that it is punishable by death in several Islamic states, including Afghanistan, Iran, Saudi Arabia, Sudan and Yemen.  The UN declaration on gender and sexual orientation discrimination was sharply criticized by Islamic countries, which assert that it would promote sexual behavior that is considered socially unacceptable. The Vatican also denounced the declaration. 107
  • 108. Do homosexual deserve death?  At the turn of the 21st century, criminal penalties for homosexual acts remained part of legal codes primarily in three countries.  Executions of homosexual men were reported in the 1990s in the radical, theocratic states of Iran and Afghanistan, as well as in Saudi Arabia.  With the fall of the Soviet Union, most of the newly independent states, including Russia, moved rapidly to decriminalize homosexuality, but some Islamic republics still retain the Stalinist legal code.  Criminal law is, of course, not a reliable guide to actual practice. Applied to consenting, sexual behavior, it is necessarily arbitrary and uneven. Enforcement typically relies on vindictive neighbors, police intrusion, or periodic campaigns of prosecution which depend on the motivations of political elites and moral entrepreneurs.  Because it is a charge that is virtually impossible to disprove, sodomy law has long proven to be a convenient political weapon in the absence of legitimate wrongdoing. 108
  • 109. Other questions  2 questions: a) if we know anyone who belongs to LGBT( Lesbian, Gay, Bisexual and Transgender) community or we suspect that he/she might be, do we think these people deserved to be prosecuted, condemned and imprisoned? b) Are alternate penetrations against the carnal law?  If you look at the French law, Napoleon decriminalized homosexuality in 1810. There is the issue of privacy to think about and consider,”. 109
  • 110. Ken saro-wiwa’s trial  Kenule "Ken" Beeson Saro Wiwa (10 October 1941 – 10 November 1995) was a Nigerian author, television producer, environmental activist, and winner of the Right Livelihood Award and the Goldman Environmental Prize.  Saro-Wiwa was a member of the Ogoni people.  Ogoni is the name of a region in the Niger Delta of southern Nigeria as well as the name of the ethnic group that lives in that region.  Which has been targeted for crude oil extraction by Shell since the 1950s and which has suffered extreme and unremediated environmental damage from decades of indiscriminate petroleum waste dumping. 110
  • 111. Impact of oil extraction by Shell  For the Ogoni and the people of Nigeria, oil and oil companies have brought poverty, environmental devastation and widespread, severe human rights abuses.  Ogoni is home to several environmental treasures, including the third-largest mangrove forest in the world and one of the largest surviving rainforests in Nigeria.  Oil drilling by Shell and other oil companies has had a devastating impact on the region’s environment.  Oil spills, gas flaring and deforestation have stripped the land of its environmental resources, destroying the subsistence farming- and fishing-based economy of the Ogoni. 111
  • 112. Background  The Movement for the Survival of the Ogoni People (MOSOP) is a human rights group founded in 1990 that is committed to using nonviolence to stop the repression and exploitation of the Ogoni and their resources by Shell and the Nigerian government.  Ken Saro-Wiwa, founding member and president of MOSOP brought worldwide attention to the human rights violations committed against the Ogoni through international campaigning and his poignant writing.  He was nominated for a Nobel Prize and awarded the Right Livelihood Award and the Goldman Prize for his environmental and human rights activism. 112
  • 113. Unfair trial  The tribunal denied the Ogoni Nine access to counsel, a fair trial, and the opportunity to appeal the decision.  During the course of the trial they were tortured and mistreated, as were their relatives.  The Ogoni Nine were convicted and were executed by hanging on November 10, 1995.  Plaintiffs in this case include family members of Ken Saro- Wiwa, John Kpuinen, Dr. Barinem Kiobel, Saturday Doobee, Daniel Gbokoo and Felix Nuate. 113
  • 114. How is Shell involved?  Shell was involved in the development of the strategy that resulted in the unlawful execution of the Ogoni Nine.  Shell told the Nigerian regime they needed to deal with Ken Saro-Wiwa and MOSOP.  Shell monitored Ken Saro-Wiwa, and closely followed the tribunal and his detention.  Prior to the trial, Shell Nigeria told its parent companies that Saro-Wiwa would be convicted and told witnesses that Saro- Wiwa was never going free.  Shell held meetings with the Nigerian regime to discuss the tribunal, including with the military president Sani Abacha himself. 114
  • 115. False Witnesses  Shell’s lawyer attended the trial, which, in Nigeria, is a privilege afforded only to interested parties.  Brian Anderson, the Managing Director of Shell’s Nigerian subsidiary, met with Owens Wiwa, Saro- Wiwa’s brother and offered to trade Saro-Wiwa’s freedom for an end to the protests against the company.  At least two witnesses who testified that Saro-Wiwa was involved in the murders of the Ogoni elders later recanted, stating that they had been bribed with money and offers of jobs with Shell to give false testimony – in the presence of Shell’s lawyer. 115
  • 116. Execution of ken  In 1994, Ken Saro-Wiwa and other Ogoni leaders were prevented by the military from attending a gathering; at that very gathering, four Ogoni chiefs were killed.  The military governor promptly announced that Ken Saro-Wiwa caused the deaths, and he and other leaders were taken into custody.  Despite the lack of any connection between MOSOP and the deaths, the military used the deaths as a pretext to conduct raids on 60 towns in Ogoni and to detain and beat several hundred men suspected of involvement with MOSOP.  They were executed after being convicted by a military tribunal over the 1994 murder of four local leaders. The activists' deaths sparked a storm of international protest. 116
  • 117. Compensation for death?!  On 10 November 1995, Saro-Wiwa and eight other leaders of the Ogoni nine were killed by hanging at the hands of military personnel. According to most accounts, Saro-Wiwa was the last to be hanged.  Family members, along with other residents of the Ogoni region involved in the protests, sued Royal Dutch Petroleum Company, Shell Transport and Trading, and a company official and Nigerian affiliate.  Alleging that they acted in concert with the Nigerian government’s conduct, including torture, cruel inhuman and degrading treatment, summary execution, arbitrary arrest and detention, and crimes against humanity.  The case, brought thirteen years ago in federal district court in New York, settled for $15.5 million on June 8, 2009. 117
  • 118. THANK YOU FOR PATIENT HEARING ACKNOWLEDGMENT: Ms. MANASA . A 2011-2014 Batch, Rajiv Gandhi School Of Intellectual Property Law, IIT Kharagpur. 118