FRAMING OF CHARGE & DISCHARGE OF THE ACCUSED

Framing of Charge & Discharge of the Accused:

In Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , the Supreme Court on consideration of the various decisions about the scope of Sections 227 and 228 of the Code, laid down the following principles: 

"(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.

(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.

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EVIDENCE OF AN INJURED WITNESS

EVIDENCE OF AN INJURED WITNESS:

The evidence of the injured eyewitnesses regarding the scene of offence remained unshaken. The injured witnesses are also termed as stamped witnesses.

In criminal jurisprudence, the testimony of an injured witness has high evidentiary value, for, ordinarily a person who suffered injuries at the hands of another would not shield the real offender and falsely implicate an innocent. 

This view is supported by a catena of judgments (Vide Ramlagan Singh v. State of Bihar; Malkan Singh v. State of U.P; Machhi Singh v. State of Punjab; Appabhai v. State of Gujarat; Bonkya v. State of Maharashtra; Bhag Singh v. State of Punjab; Mohar v. State of U.P.; Dinesh Kumar v. State of Rajasthan; Vishnu v. State of Rajasthan; Annareddy Sambasiva Reddy v. State of A.P.; and Balraje v. State of Maharashtra).

In State of Madhya Pradesh v. Mansingh and others, the Supreme Court held that the evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.

In B.K. Channappa v. State of Karnataka, though the Supreme Court found certain contradictions in the evidence of the material witnesses, it has placed heavy reliance on the testimony of injured witnesses despite some improvements, contradictions and omissions therein. After referring to relevant case law on this aspect, the Supreme Court in Abdul Sayeed v. State of M.P., succinctly summarized the law as under:

"The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is as a sequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

MOTIVE FOR A CRIME

MOTIVE FOR A CRIME:

In Shivaji Genu Mohite v. State of Maharashtra , the Supreme Court held that evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence, that such evidence would form one of the links in the chain of circumstantial evidence in such a case, but, that would not be so in cases where there are eye-witnesses of credibility, though even in such case if motive is properly proved such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion, but that does not mean that if motive is not established the evidence of an eye- witness is rendered untrustworthy.

In a catena of decisions, the Supreme Court held that even if the absence of motive as alleged is accepted, that is of no consequence and it pales into insignificance when direct evidence establishes the crime. Therefore, in case there is direct trustworthy evidence of witnesses as to the commission of an offence, the motive part loses its significance and if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance (Hari Shanker v. State of U.P.; Bikau Pandey and others v. State of Bihar; and Abu Thakir and others v. State of Tamil Nadu).

In Suresh Chandra Bahri v. State of Bihar the Supreme Court held that motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention, that in a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, but it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless becomes untrustworthy and unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to adopt a certain course of action leading to the commission of the crime. 

In Ujagar Singh v. State of Punjab the Supreme Court reiterated its view that motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy.

In Subedar Tewari v. State of Uttar Pradesh the Supreme Court observed that the evidence regarding existence of motive which operates in the mind of an assassin is more often than not within the reach of others and that the motive may not even be known to the victim of the crime.

In the light of the settled legal position as above, if the prosecution has let in the evidence of eyewitnesses which is found trustworthy, the accused is liable to be convicted even if motive is not fully established.

DELAY IN FILING FIR - EFFECT

DELAY IN FILING F.I.R. - EFFECT:

The law is well settled that mere delay in lodging the F.I.R. is not by itself fatal to the case of the prosecution. (See: Ashok Kumar Chaudhary v. State of Bihar). 

In State of Himachal Pradesh v. Gian Chand a three-Judge Bench of the Supreme Court had observed thus:

"12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

Whatever might be the reason for the delay in registration of F.I.R., such delay may often leads to false implications; for the delay gives time for the defence to implicate even innocent, especially, when rivalry exists between the two parties. In this scenario, the delay in registration of F.I.R. leading to the possibility of false implications of some of the accused cannot be ruled out.

CORPORATION

Halsbury's Law of England:

"A corporation may be created by the authority of Parliament, expressed either in a special statute creating a particular corporation of Corporations, or in a general statute.

Under which any number of corporations may be created on complying with its terms. To constitute creation, however, it is not necessary that any particular form of words should be used in the statute; it Is sufficient if the intent to incorporate be evident. Where by an ancient statute a body of persons is empowered to sue and be sued by a special name, it is strong evidence that they constitute a corporation. Where a number of persons are so constituted by Act of Parliament that they have perpetual succession, are to continue for all time, take land, make contracts which shall be binding, not upon themselves, but upon the persons filling office, and are authorised to sue or be sued in the name of their treasurer, they are in the nature of a corporation aggregate at least for the purposes of the Act."

CORPORATION AGGREGATE -- DEFINITION:

CORPORATION AGGREGATE -- DEFINITION:

In Halsbury's Laws of England (3rd Edn. Vol 9 P 4) "corporation aggregate7' has been defined as follows:

"A corporation aggregate has been defined as a collection of individuals united into one body under a special denomination, having perpetual succession under an artifical form, and vested by the policy of law with the capacity of acting in several respects as an individual particularly of taking and granting property, of contracting obligations and of suing and being sued, of enjoying privileges and immunities- in common, and of exercising a variety of political rights, more or less extensive according to the design of its institution or the powers conferred upon it, either at the time of its creation or at any subsequent period has only one capacity, namely its corporate capacity, so that a conveyance to a corporation aggregate can only be to it in its corporate capacity".

Religious Denomination

Religious Denomination

“Religious denomination means a religious sect or body having common faith and organisation and designated by a distinctive name.”

A well-known case relates to the Swaminarayan Sect where the court rejected the claim of the sect of “Sathsangis” to be considered as a separate religion merely on the ground of differences observed in Hindu temples.

A religious entity cannot claim to have a ‘denomination’ simply on account of differences from the mainstream practice.

In SP Mittal v. Union of India and others, (SCR (1) 729) the Constitution Bench of SC refused to accept Sri Aurobindo as a ‘religious denomination’.

Swami Dayananda Saraswati created a new religious denomination, known as the Arya Samaj.

What is the characteristic of a “religious denomination”? One of the key factors is a sense of ‘exclusive belongingness’.

The test for determination of denominational status is three fold –

1)   Common faith;

2)   Common organisation;

3)   Designation by distinctive name;

All the three have to be established for confirming a denominational status.

In the case of Sabarimala Temple, the religious ceremonies are not distinct from any other Hindu temples. No separate administration. There is no particular follower of this temple except general Hindu followers. Therefore Sabarimala Temple is a public temple. For this reason, the Hon’ble SC allowed the claim of the women’s entry, though the universal right of entry is not a permissive right that is dependent on temple authorities.

Sec.3 of the Kerala Hindu Places Entry Act, 1965 makes it clear that all places of public worship are to be open to all sections and classes of Hindus of whatever section or class to worship, pray or perform. Rule 3 (B) adds that women are not allowed to enter a place of worship at ‘such time’ during which they were not by custom or usage allowed to enter the temple.

The Tamil Nadu Govt passed a G.O.Ms.No.1998 dated 12.8.1974 wherein all the buildings owned by Hindu, Christian and Muslim religious trust and charitable institution were exempted from all the provisions of the Rent Act.

Another notification was issued by the TN Govt under G.O.Ms.No.2000 dated 16.8.1976 exempting all the buildings owned by the Hindu, Christian and Muslim public religious and public charitable institutions.

The first G.O. relates to all the religious trust and charitable institutions. The Second G.O. relates to all the public religious and public charitable trusts.

If a temple is a denominational temple, then it is a private temple.

In the text book of B.K.Mukherjea on the Hindu Law of Religious and Charitable Trusts (4^th Edition) at page 474 where it was observed:

“As Mitter, J. observed in Nabi Shirazi v. Province of Bengal, ILR (1942) 1 Cal 211 at page 288 (AIR 1942 Cal 343 at p.349) the essential distinction between a public and a private trust is that in the former the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained, but in the latter the beneficial interest must be vested in an uncertain and fluctuating body of persons – either the public at large or some considerable portion of it answering a particular description. The fact that the uncertain and fluctuating body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a private trust. “

In Hindu Religious Endowments Board v. Veeraraghavacharlu, AIR 1937 Madaras 750, Varadachariar, J, referring to the decision in Bhupathi Nath Shrititirtha v. Ramlal Makrain (1910) ILR 37 Cal 128, observed:

“When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or specified individuals, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.”

In V.K.Varadachari’s Law of Hindu Religious and Charitable Endowments (2^nd Edition) at page 17, while dealing with the distinction between a public and a private trust, it was observed:

“The essential distinction between a public and a private endowment is that in the former, the beneficial interest is vested in an uncertain and fluctuating body of persons either the public at large, or some considerable portion of it answering a particular description; in a private endowment, the beneficiaries are definite and ascertained individuals or who within a definite time can be ascertained definitely. The essence of a public endowment consists in its being dedicated to the public.”

“A public trust is of a permanent character and when once the trust is established it will not be open to the founders or trustees to put an end to it or divert the income of the trust properties either to their own use or to any purpose other than that for which the endowment was created.”

It was further observed that in the case of a private trust, the beneficiaries may condone mal-administration by trustees. But it cannot be done in the case of a public trust.

Lastly, it was observed that charitable trusts in India are public trusts only. But a religious trust may be public or private.

In Deoki Nandan v. Muralidhar, their Lordships have observed the distinction between private and public trust as follows:

“The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. A religious endowment must, therefore, be held to be private or public according as the beneficiaries thereunder are specific persons or the general public or sections thereof.”

The Division Bench of the Madras High Court in Sri C.S.Ambigai Temple v. Commissioner, H.R.&C.E. held:

“The Arya Vysya community people of Ammapet in the instant case do form a part of the Hindu community at large. They constitute a considerable section of the Hindu public. Merely because the place set apart for worship is being used by a particular section of the public it will not cease to be a place set apart for public worship.”

It has recognised the proposition that even a temple dedicated for the purpose of a particular section of the Hindu community could also be a public temple if the community constitutes a considerable section of the Hindu Public and the members of which worship in the temples as of a right.

Sec.6(20) of the Tamil Nadu Hindu Religious and Charitable Endowments Act defines “temple” as follows:

“Temple means a place by whatever designation known used as a place of public religious worship, and dedicated to, or for the benefit of, or used, as of right by, the Hindu community or any section thereof, as a place of public religious worship.”

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