Thursday, 12 November 2015

When accused can seek acquittal on ground of incorrect framing of charge on the ground of prejudice?

 When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence. It is also a settled canon of criminal law that this has occasioned the accused with failure of justice. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. With the development of law, Indian courts have accepted the following protections to and rights of the accused during investigation and trial :
(a) The accused has the freedom to maintain silence during investigation as well as before the Court. The accused may choose to maintain silence or make  complete denial even when his statement under Section 313 of the Code of Criminal Procedure is being recorded, of course, the Court would be entitled to draw inference, including adverse inference, as may be permissible to it in accordance with law;
(b)     Right to fair trial

(c)     Presumption of innocence (not guilty)

(d)     Prosecution   must   prove  its   case 
  beyond   reasonable  doubt.
21. Prejudice to an accused or failure of justice, thus, has to be examined with reference to these aspects. That alone, probably, is the method to determine with some element of certainty and discernment whether there has been actual failure of justice. `Prejudice' is incapable of being interpreted in its generic sense and applied to criminal jurisprudence.
The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there is serious prejudice to either of these aspects and that the same has defeated the  rights available to him under the criminal jurisprudence, then the accused can seek benefit under the orders of the Court.

Supreme Court of India
Rafiq Ahmed @ Rafi vs State Of U.P on 4 August, 2011

Bench: B.S. Chauhan, Swatanter Kumar

Citation;(2011)8 SCC300,2011 CRLJ4399
Read full judgment here; click here
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