List of Current Affairs

Source: Supreme Court

Why in News?

Recently, a bench comprising of Justices Hrishikesh Roy and Satish Chandra Sharma held that in the event of alteration of charges, opportunity must be given under Section 217 of the Criminal Procedure Code, 1973 (CrPC), both to the prosecution and the defence, to recall or re-examine witnesses in reference to such altered charges.

• The aforesaid observation was made in the matter of Madhusudan & Ors. v. The State of Madhya Pradesh.

What was the Background of Madhusudan & Ors. v. The State of Madhya Pradesh Case?

• In this case, the charges were framed against the five accused of commission of offence under Sections 148, 302/149, 307/149 and 323/149 of the Indian Penal Code, 1860 (IPC).
• The trial was conducted against four accused i.e., Sanjay, Madhusudan, Ram Kripal and Ramprakash. The fifth accused Babbu @ Omprakash was not part of this trial process since he was absconding.
• The learned trial court ordered for acquittal of the accused Sanjay of all the charges. The acquittal was also ordered for the remaining three accused for the offence under Section 148 of IPC.
• However, drawing support from the provisions of Section 34 of the IPC, all three were convicted for the offences under Sections 302, 307 and 323 respectively.
• The above judgment of the First Additional Sessions Judge, Indore rendered on 23^rd November 2000 came to be affirmed on appeal by the Indore Bench of the High Court of Madhya Pradesh who found the appeals to be devoid of merit.
• Thereafter, the appellants filed an appeal before the Supreme Court.
• The learned counsel for the appellants would point out that the judgment of conviction cannot be sustained on account of discrepancies in the evidence of the eyewitnesses and also on account of the omission of the prosecution to connect the accused with acceptable material evidence with the crime
• According to the learned counsel for the appellants, the trial Court framed the question relating to only common object and the issue of common intention never cropped up during the trial.
• The appeal is accordingly allowed ordering acquittal of the appellants.

What were the Court’s Observations?

• A bench comprising of Justices Hrishikesh Roy and Satish Chandra Sharma observed that a Court may alter or add to any charge before judgment is pronounced but when charges are altered, opportunity must be given under Section 217 of the CrPC, both to the prosecution and the defence, to recall or re-examine witnesses in reference to such altered charges. More importantly, in case charges are altered by the Court, reasons for the same must be recorded in the judgment.
• It was further held that the Court, while altering the charge from Section 149 to Section 34 IPC omitted to furnish any reasons. Importantly no charge under Section 34 of the IPC was laid against the accused by the Prosecution. But when the charge under Section 149 IPC was dropped, the trial Court decided to conveniently alter the charge and with the aid of Section 34 IPC, ordered for conviction of the accused under Sections 302, 307 and 323 IPC respectively.
• The Court made a reference to the recent three judge Bench decision in Rohtas v. State of Haryana (2021), wherein it was observed that when a charge is altered from 'common object' to 'common intention' then the existence of common intention in a given case must necessarily be established by the Prosecution with relevant evidence as the 'common object' and 'common intention' cannot be equated with each other.

What is a Charge?

About:

• Charge in simple words means ‘accusation’.
• It is a formal recognition of a concrete accusation by the magistrate or court based upon a complaint or information against the accused.

Legal Provision:

• Section 2(b) of CrPC defines ‘charge’ which states that, the charge includes any head of charge when the charge contains more than one head.

Purpose:

• The Supreme Court in the case of V. C. Shukla v. State (1979) held that the purpose behind framing charge is to give clear, unambiguous, or precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial.

Contents of Charge:

• Section 211 of CrPC constitutes essential elements of charge:
  • It must state the offence with which the accused is charged.
  • The charge framed shall specify the exact offence name for which the accused is charged.
  • In case there is no specific name given under any law for the offence with which the accused is charged off, then the definition of the offence must be clearly stated so as to bring to the knowledge of the accused the exact matter with which he has been charged.
  • The law and the section of the law against which the offence is said to be committed shall be mentioned in the charge.
  • The mere fact that a charge has been filed equates to a declaration that every legal condition necessary by law to create the alleged offence has been met in this case.
  • The charge must be written in the language of the court.
  • If the accused has been previously convicted of any offence, then the fact, date and place of previous conviction should be stated in the charge for enhanced punishment which the court might pass if it finds the accused guilty of the offense charged.

Particulars as to Time, Place and Person:

• The charge framed shall contain the particulars as to the time and place of the alleged offence and the person against whom the offence is committed in order to give the accused precise information and clear notice of the matter for which he is charged.
• The exact time need not be mentioned in the charge form when the accused is charged with criminal breach of trust or dishonest misappropriation of money or any other movable property, the gross sum specified and the dates on which such alleged offence has been committed will be sufficient.
  • For example, in case of murder the date and time of murder and the details of the accused and the deceased will be sufficient.

When the Manner of Committing Offence Must be Stated:

• As per Section 213 of CrPC, when the nature of the case is such that the particulars indicated in Section 211 and Section 212 do not provide the accused with adequate notice of the allegation with which he is charged, the charge shall contain such particulars of how the alleged offence is committed as would provide for that purpose.
  • For example - A is accused of cheating B at a given time and place. The charge must set out the manner in which A cheated B.

Power of the Court to Alter Charge:

• Section 216 of CrPC explains that the court shall have the power to alter or add to a charge at any time before the pronouncement of judgement.
• After such alteration or any addition made to the charge, the charge shall be explained to the accused.
• If an alteration or addition to a charge is such that proceeding of the trial immediately would not prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may, in its discretion, proceed with the trial as if the altered or added charge was the original charge after the alteration or addition has been added.
• If an addition or alteration to a charge is such that proceeding of the trial immediately would prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may either order a new trial or adjourn it as it deems fit.
• If the offence stated in the altered or added charge is one for the prosecution, the case shall not move forward unless sanction has been obtained for prosecution in respect of facts constituting the offence on which the altered or added charge is founded.
• The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accordance with the material produced before him or if subsequent evidence comes on record.
• Unless the evidence has been let in, charges already framed cannot be altered, as that is not the intent of Section 216 CrPC.
• It is obligatory on the part of the court to see that no prejudice is caused to the accused, and he is allowed to have a fair trial.
• The trial court or the appellate court may either alter or add to the charge provided the only condition is:
  • The accused has not faced charges for a new offence.
  • The accused must have been given the opportunity of defending the charge against him.

Recall of Witness When Charge is Altered:

• Section 217 of the CrPC deals with recalling of witnesses when the charge is altered or added by the court after commencement of the trial, altered or added, it may do so on its own and no order needs to be passed for that purpose.

Case Laws

• Court in its Motion v. Shankroo (1982):
  • The Himachal Pradesh High Court held that mere mentioning of the section under which the accused is charged, without mentioning the substance of the charge amounts to a serious breach of procedure.
• Bhagabat Das v. The State of Orissa (1989):
  • The Orissa High Court held that the insignificant irregularities in stating the particulars of the offence in the charge will not affect the trial or its outcome.

Source: Supreme Court

Why in News?

Recently the Supreme Court in the matter of Ankur Chaudhary v. State Of Madhya Pradesh granted bail under the Narcotic Drugs and Psychotropic Substances Act (NDPS) 1985 despite not meeting the stringent criteria of Section 37 has garnered attention.

• It emphasizes that prolonged incarceration due to undue trial delays contradicts the fundamental right under Article 21 of the Constitution, thus allowing conditional liberty to supersede statutory restrictions in such cases.

What was the Background of Rajiv Bansal & Ors v. State of Maharashtra and Ors?

• The Rajiv Bansal (accused) has been in custody for over two years due to charges under Section 8 read with Sections 22 and 29 of NDPS Act, 1985.
• The accused argued that the Panch witnesses presented by the prosecution didn't support their case.
  • The prosecution, however, argued that bail couldn't be granted because the Investigation Officer hadn't been examined as a witness.
• The court reviewed the evidence and found that the witnesses didn't support the prosecution's case.
  • They also rejected the idea of considering the Investigation Officer as a witness.

What were the Court’s Observations?

• The Court granted bail, recognizing that the prolonged incarceration due to undue trial delays contradicts the essence of Article 21 of the Constitution, which guarantees the right to life and personal liberty.
• The Court stated that Section 37 of the NDPS Act, 1985, doesn't prevent bail from being granted when there's an unjustified trial delay.
  • If the trial takes too long without a reasonable cause, it violates the fundamental right to liberty.
  • Bail allowed under specific conditions, like regularly attending the trial. Failure to comply with these conditions could lead to consequences decided by the trial court.

What is the NDPS Act?

• The Narcotic Drugs and Psychotropic Substances, 1985 Act (NDPS) is an Indian law enacted in 1985.
• It aims of consolidating and amending the laws relating to narcotic drugs and psychotropic substances, and to make stringent provisions for the control and regulation of operations relating to them.
• The act purpose is to combat the illicit trafficking and abuse of narcotic drugs and psychotropic substances.
• It outlines various offenses, penalties, and procedures for investigation and trial related to the possession, sale, manufacture, cultivation, and transportation of such substances.
• The NDPS Act also provides for the establishment of authorities responsible for implementing its provisions and for the rehabilitation of addicts.

What is Section 37 of the NDPS Act?

Section 37 deals with offences to be cognizable and non-bailable.

• Cognizability of Offences:
  • Every offense punishable under the NDPS Act is cognizable, meaning the police can make an arrest without a warrant and start an investigation.
• Non-Bailable Offences:
  • Offenses under specific sections (such as sections 19, 24, and 27A) or offenses involving commercial quantity are considered non-bailable.
  • No person accused of such offenses shall be released on bail or their own bond unless certain conditions are met.
• Conditions for Granting Bail:
  • The Public Prosecutor must be given an opportunity to oppose the bail application.
  • If the Public Prosecutor opposes the bail application, the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offense and that they are not likely to commit any offense while on bail.
• Additional Limitations on Bail:
  • The limitations specified in clause (b) of subsection (1) are additional to any limitations under the Code of Criminal Procedure, 1973, or any other law regarding granting of bail.

Is Prolonged Incarceration Due to Trial Delays a Violation of Fundamental Right under the Indian Constitution?

• The prolonged incarceration due to delays in the completion of trials can indeed violation of Article 21 of the Constitution of India,1950.
• Article 21 guarantees the right to life and personal liberty, stating that no person shall be deprived of their life or personal liberty except according to the procedure established by law.
• Prolonged incarceration without a speedy trial can result in undue hardship, loss of personal liberty, and even psychological trauma for the accused.
• The Supreme Court has consistently held that delays in trials that lead to prolonged incarceration can infringe upon the fundamental rights guaranteed under Article 21.

What were the Landmark Judgments Involved in the Case?

• Mohd. Muslim v. State (NCT of Delhi), (2023) and Rabi Prakash v. The State of Odisha (2023)
  • The Supreme Court addressed bail applications involving offenses under the NDPS Act.
  • The Court established that when an accused faces prolonged incarceration, conditional liberty can supersede the statutory restrictions outlined in Section 37 of the Act.
  • This implies that if a trial experiences undue delay, it can serve as a valid ground for granting bail to the accused, despite the stringent provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act 1985.