The Secret Files: How a Supreme Court Ruling in the case of P. Ponnusamy Vs. The State of Tamil Nadu is Changing the "Fair Trial" Game in India?

What if the evidence that could prove your innocence is sitting in a police locker, but the prosecutor isn't required to show it to you? In the high-stakes arena of criminal justice, the "might of the state’s police machinery" often holds a decisive advantage, possessing a mountain of data, witness statements, and physical objects collected during an investigation. Traditionally, the prosecution has been the gatekeeper, sharing only the specific evidence it intends to use to prove guilt. This leaves the accused in a perilous shadow, unaware of materials that might point toward their innocence.

The Supreme Court of India recently confronted this imbalance in P. Ponnusamy v. State of Tamil Nadu. Decided On: 07.11.2022,MANU/SC/1451/2022. This wasn't just a routine appeal; it was a "Death Reference" (RT No. 2/2021) involving several individuals facing the ultimate penalty. The case forced the Court to navigate a treacherous path between the need for efficient, timely trials and the constitutional mandate for a fair defense. This article reveals how the ruling—and its clarification of the "Draft Rules of Criminal Practice"—is fundamentally shifting the landscape of undisclosed materials in Indian courts.

1. The Right to Know What Isn't Being Used

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Delhi HC: Court Can Seek Mobile Location of Spouse to Ascertain Adultery in Matrimonial Disputes: A Detailed Analysis

 

 Introduction

The intersection of digital privacy rights and matrimonial law has become a critical area of jurisprudence in contemporary India. The recent Delhi High Court judgment in Ms. Tanvi Chaturvedi v. Ms. Smita Shrivastava & Anr.Citation: 2025 DHC 7474 DB.  marks a significant milestone in establishing the legal framework for courts to seek mobile location data and Call Detail Records (CDRs) to ascertain adultery in matrimonial disputes. This comprehensive analysis examines the evolving legal position on courts' authority to collect digital evidence in matrimonial proceedings while balancing fundamental privacy rights with the imperative of fair trial.

Legal Framework for Mobile Location Data Collection

Constitutional Foundation

Read full judgment here: Click here.

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Bombay HC: Non-Examination Of Sexual Assault Victim Or Officer Who Recorded Her Statement Amounts To Denial Of Fair Trial To Accused

In the above context, it would be pertinent to note herein that the prosecution has placed heavy reliance on the version of the victim as brought on record through her mother (PW 1) so as to bring home the charge brought against the Accused/Appellant under Sections 376(2)(f) and 377 of the IPC. Notwithstanding the same, as has been noted above, the victim/prosecutrix has not been examined as a witness. Sections 25 and 26 of the POCSO Act, 2012 lays down specific provisions for recording the statement of a child. As per Section 26(2) the Magistrate/police can even take the assistance of a Translator or an Interpreter while recording the statement of the child. Notwithstanding the same, neither the child has been examined as a witness nor has the PSI Ghodke, who had recorded the victim's statement called as a witness by the prosecution. The failure on the part of the prosecution to examine the victim or the PSI, without any just explanation, in our considered opinion would amount to denial of an opportunity to the accused to prove his innocence and therefore, in the facts of the case, would constitute denial of fair trial to the accused. {Para 41}

 IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 188 of 2023

Decided On: 14.08.2025

Deepak Babasaheb Gaikwad Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Suman Shyam and Shyam C. Chandak, JJ.

Author: Suman Shyam, J.

Citation: 2025:BHC-AS:35291-DB,MANU/MH/5049/2025

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Supreme Court: Under which circumstances the court should not accept Closure of evidence by public prosecutor

 Keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the Court, it can irrefragably be stated that the Court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court, to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. Law does not countenance a 'mock trial'. It is a serious concern of the society. Every member of the collective has an inherent interest in such a trial. No one can be allowed to create a dent in the same. The court is duty bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. The court is under the legal obligation to see that the witnesses who have been cited by the prosecution are produced by it or if summons are issued, they are actually served on the witnesses. If the court is of the opinion that the material witnesses have not been examined, it should not allow the prosecution to close the evidence. There can be no doubt that the prosecution may not examine all the material witnesses but that does not necessarily mean that the prosecution can choose not to examine any witness and convey to the court that it does not intend to cite the witnesses. The Public Prosecutor who conducts the trial, has a statutory duty to perform. He cannot afford to take things in a light manner. The Court also is not expected to accept the version of the prosecution as if it is sacred. It has to apply its mind on every occasion. Non-application of mind by the trial court has the potentiality to lead to the paralysis of the conception of fair trial.

{Para 18}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 914 of 2015 

Decided On: 20.07.2015

Bablu Kumar and Ors. Vs. State of Bihar and Ors.

Hon'ble Judges/Coram:

Dipak Misra and Prafulla C. Pant, JJ.

Author: Dipak Misra, J.

Citation: (2015) 8 SCC 787,MANU/SC/0780/2015.

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Whether the court should stay bail granted to accused to ensure fair trial to victim of an offence Under the Pocso Act?

Having considered the submissions and perused the

material on record, we are prima facie of the view

that in order to ensure a fair trial not only to the

accused but also to the victims, it would be in the

interest of justice that the respondent no. 3 may

remain in custody during the time the witnesses of

fact are examined.

In view of the above facts and circumstances as

recorded and considering the submissions advanced by

the parties the petition is disposed of with the

following directions :-

1. The impugned order granting bail to the

respondent no. 3 shall remain in

abeyance or, in other words, the effect

and operation of the impugned order

shall remain stayed. The period of stay

will be initially for a period of four

months from today, which may be

extended for a further period of two

months if required.

2. Respondent no. 3 will surrender within

a week from today before the Trial

Court.

3. The Trial Court forthwith will frame

the charges afresh in the light of the

order dated 11th March, 2024 passed by

the High Court referred to above within

a week from the date the Regular

Officer joins the Special Court at

Chitradurga.

4. Prosecution will submit the list of 12-

13 witnesses of fact forthwith before

the Trial Court, in any case, at the

time of framing of charges.

5. The Trial Court, after framing the

charges, will proceed to conduct the

trial as expeditiously as possible and

if necessary, on day to day basis and

ensure that the witnesses of fact which

the prosecution wishes to produce are

examined within four months.

6. Prosecution will make sure that it will

not seek any adjournments and will

produce its witnesses on the dates

given by the Trial Court.

7. Respondent no. 3 and other accused will

extend all cooperation in the trial and

not seek any adjournments except for

very exceptional reasons.

8. Trial Court will observe the conduct of

the parties and if it finds that if any

of the parties are unnecessarily trying

to delay the trial, it shall make a

note of the same and forward it to this

Court.

9. If for no reason attributable to the

accused or to the prosecution, the

examination of the aforesaid 12 to 13

witnesses of fact is not completed

within a period of four months, the

Trial Court will send a report to this

Court seeking extension of time for two

months and the Registry will list the

matter accordingly.

10. If the 12-13 witnesses, list of which

is provided by the Public Prosecutor

are examined within four months, the

respondent no. 3 would be released on

the completion of four months. However,

if the time is extended for two months

further then respondent no. 3 would be

released on completion of period of six

months.

11.Further, the general direction is

issued to Trial Court to conclude the

trial at the earliest within the

aforesaid period or within a period of

one year.

With the aforesaid directions, the Special Leave

Petition is disposed of.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 13943/2023

H. EKANTHAIAH Vs THE STATE OF KARNATAKA & ANR. 

CORAM :

HON'BLE MR. JUSTICE VIKRAM NATH

HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA

Date : 23-04-2024.

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Whether the court can reject the application for summoning of witnesses U/S 311 of CRPC on the ground that the High court makes the case time-bound?

 An FIR came to be lodged against the petitioner and her father for an incident that took place on 1.1.2008 wherein it was alleged that the petitioner herein had administered poison/chemical to the complainant (husband in the present proceedings). On the basis of the FIR that was lodged a divorce decree was granted to the husband on the ground of cruelty which order has been affirmed upto the Hon'ble Supreme Court. The petitioner herein has been able to lay hands on the opinion of the Medical Board as to the nature of the poison that was allegedly administered and the opinion of the Board has become relevant to establish the fact whether a false complaint was registered against the petitioner and her father and whether lodging of such false complaint would or would not tantamount to cruelty. Therefore, rejecting the application under Section 311 Cr.P.C. without going into the crux of the matter , rejecting the said application solely on the ground that trial has to be completed within a period of two months is not a ground that is sustainable in the eye of law . The concept of fair trial as has been held in various judgments particularly in Ram 12 of 13 Mehar and others's case (supra) would necessitate that adequate opportunity is given to the parties in order to enable the court to arrive at a just and fair final decision.

For the reasons afore-stated, the present petition is allowed, impugned order is set aside and the application filed by the petitioner under Section 311 Cr.PC. for leading additional evidence is allowed and the petitioner is hereby given two effective opportunity to lead additional evidence on the date to be fixed by the trial court to be concluded within a week.

Punjab-Haryana High Court

Sonia vs State Of Haryana And Others on 9 January, 2017

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Leading Supreme Court Judgment on the basic concept of failure of justice

 Having dealt with regard to the concept of 'fair trial' and its significant facets, it is apt to state that once prejudice is caused to the accused during trial, it occasions in 'failure of justice'. 'Failure of justice' has its own connotation in various jurisprudences. As far as criminal jurisprudence is concerned, we may refer with profit to certain authorities. Be it noted that in Bhooraji (supra), the Court has referred to Shamnsaheb M. Multtani v. State of Karnataka : (2001) 2 SCC 577 : 2001 SCC (Cri) 358 wherein it has been observed as follows:

23. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression 'failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Department of the Environment (1977) 1 All ER 813). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.

(Emphasis supplied)

39. In Central Bureau of Investigation v. V. K. Sehgal MANU/SC/0650/1999 : (1999) 8 SCC 501, it was observed: -

10. A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error of irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid Sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court.

The concept of failure of justice was further elaborated as follows:

11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous of mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplus age. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.

The concept of fair trial and the conception of miscarriage of justice are not in the realm of abstraction. They do not operate in a vacuum. They are to be concretely established on the bedrock of facts and not to be deduced from procedural lapse or an interdict like commitment as enshrined under Section 193 of the Code for taking cognizance under the Act. It should be a manifestation of reflectible and visible reality but not a routine matter which has roots in appearance sans any reality. Tested on the aforesaid premised reasons, it is well nigh impossible to conceive of any failure of justice or causation of prejudice or miscarriage of justice on such non-compliance. It would be totally inapposite and inappropriate to hold that such non-compliance vitiates the trial. {Para 45}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 223 and 458 of 2008

Decided On: 17.02.2012

 Rattiram  Vs. State of M.P. through Inspector of Police

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Whether accused can seek setting aside the conviction if Session Judge has taken cognizance of the offence directly even though the case was not committed to it?

In State of M.P. v. Bhooraji and Ors. MANU/SC/0481/2001 : AIR 2001 SC 3372 wherein, taking aid of Section 465(1) of the Code, it has been opined that when a trial has been conducted by the court of competent jurisdiction and a conviction has been recorded on proper appreciation of evidence, the same cannot be erased or effaced merely on the ground that there had been no committal proceeding and cognizance was taken by the Special Court inasmuch as the same does not give rise to failure of justice.

45. In our considered opinion, because of the restricted role assigned to the Magistrate at the stage of commitment under the new Code, the non-compliance of the same and raising of any objection in that regard after conviction attracts the applicability of the principle of 'failure of justice' and the convict-Appellant becomes obliged in law to satisfy the appellate court that he has been prejudiced and deprived of a fair trial or there has been miscarriage of justice. The concept of fair trial and the conception of miscarriage of justice are not in the realm of abstraction. They do not operate in a vacuum. They are to be concretely established on the bedrock of facts and not to be deduced from procedural lapse or an interdict like commitment as enshrined under Section 193 of the Code for taking cognizance under the Act. It should be a manifestation of reflectible and visible reality but not a routine matter which has roots in appearance sans any reality. Tested on the aforesaid premised reasons, it is well nigh impossible to conceive of any failure of justice or causation of prejudice or miscarriage of justice on such non-compliance. It would be totally inapposite and inappropriate to hold that such non-compliance vitiates the trial.

50. In the case at hand, as is perceivable, no objection was raised at the time of framing of charge or any other relevant time but only propounded after conviction. Under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been failure of justice or prejudice has been caused to him. Unless the same is established, setting aside of conviction as a natural corollary or direction for retrial as the third step of the syllogism solely on the said foundation would be an anathema to justice.  A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice.

51. We may state without any fear of contradiction that if the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the Legislature deliberately obliterated certain rights conferred on the accused at the committal stage under the new Code. The intendment of the Legislature in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial.

52. Judged from these spectrums and analyzed on the aforesaid premises, we come to the irresistible conclusion that the objection relating to non-compliance of Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the decision rendered in Bhooraji (supra) lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 223 and 458 of 2008

Decided On: 17.02.2012

 Rattiram  Vs. State of M.P. through Inspector of Police

Hon'ble Judges/Coram:

Dalveer Bhandari, T.S. Thakur and Dipak Misra, JJ.

Dipak Misra, J.

Citation:(2012) 4 SCC 516,MANU/SC/0125/2012

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Supreme Court: Basic principles for conduct of disciplinary enquiry

In State Bank of Patiala & Ors. vs. S.K. Sharma, MANU/SC/0438/1996 : (1996) 3 SCC 364, the Supreme Court summarized the principles applicable to a domestic inquiry as under:-

"33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):

(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.

(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under -- "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar [MANU/SC/0237/1994 : (1993) 4 SCC 727: 1993 SCC (L&S) 1184: (1993) 25 ATC 704]. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.

(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice -- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action -- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.]

(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."

IN THE HIGH COURT OF DELHI

W.P. (C) 3215/2018, CM Nos. 11594 and 11595/2019

Decided On: 18.05.2020

 Rajesh Singh Sehgal  Vs. Ministry of Civil Aviation and Ors.

Hon'ble Judges/Coram:

Navin Chawla, J.

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Supreme Court: Precaution to be taken by court while trying cases Expeditiously( Speedy trial Vs fair trial)

While the anxiety to bring the trial to its earliest conclusion has to be shared it is fundamental that in the process none of the well-entrenched principles of law that have been laboriously built by illuminating judicial precedents are sacrificed or compromised. In no circumstance, can the cause of justice be made to suffer, though, undoubtedly, it is highly desirable that the finality of any trial is achieved in the quickest possible time.

18. Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the Accused, on which postulates, the entire criminal administration of justice is founded. In the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed. What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process may be expedited, but fast tracking of process must never ever result in burying the cause of justice.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 62-63 of 2014

Decided On: 18.12.2019

 Anokhilal  Vs.  State of Madhya Pradesh

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Supreme Court: Court should not deny bail to accused considering documents produced by prosecution in sealed cover

The question as to whether the Court could look

into the documents while considering an application for

bail had arisen for consideration in the very case between

the parties herein in Criminal Appeal No.130/2019

wherein through the judgment dated 05.09.2019 while

considering the matter relating to the order dated

20.08.2019 whereby the High Court had rejected the bail,

this Court had held that it would be open for the Court to

receive the materials/documents collected during the

investigation and peruse the same to satisfy its conscience

that the investigation is proceeding in the right lines and

for the purpose of consideration of grant of

bail/anticipatory bail etc. At the same time, this Court,

had disapproved the manner in which the learned Judge

of the High Court in the said case had verbatim quoted a

note produced by the respondent. If that be the position,

in the instant case, the learned Judge while adverting to

the materials, ought not have recorded a finding based on

the materials produced before him. While the learned

Judge was empowered to look at the materials produced in

a sealed cover to satisfy his judicial conscience, the

learned Judge ought not to have recorded finding based on

the materials produced in a sealed cover. Further while

deciding the same case of the appellant in Crl. Appeal

No.1340 of 2019, after holding so, this Court had

consciously refrained from opening the sealed cover and

perusing the documents lest some observations are made

thereon after perusal of the same, which would prejudice

the accused pre-trial. In that circumstance though it is

held that it would be open for the Court to peruse the

documents, it would be against the concept of fair trial if

in every case the prosecution presents documents in

sealed cover and the findings on the same are recorded as

if the offence is committed and the same is treated as

having a bearing for denial or grant of bail.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(CRIMINAL APPEAL NO.1831/2019)

P. Chidambaram Vs  Directorate of Enforcement 

A.S. Bopanna,J.

Dated:December 04, 2019

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Whether court can direct accused to submit questionnaire in POCSO case in advance?

 It is clear that the purport of the Act is to insulate the child against an offensive or aggressive cross examination. Evidently, the court has also a duty to ensure that the accused is entitled for a fair trial by putting all relevant questions to the witnesses. Though the limited scope of section 33(2) is to insulate the victim against aggressive and offence cross examination, the court has to ensure that the relevant questions which may be embarrassing to the witness are properly and decently conveyed to the witness. In case of such questioning, the court has a solemn duty to ensure that, the question is appropriately moulded, without leaving out the spirit and soul of the question suggested.

8. Essentially, cross examination is considered to be the most difficult branch of multifarious duties of an advocate. It is a skill that requires greatest ingenuity, a habit of logical thought, clearness of perception, infinite patience and self control, power to read men's minds intuitively, to judge the witnesses by their face and the ability to cross examine with force and precision. A Lawyer has to deal with a prodigious variety of witnesses testifying under different circumstances. A skilled lawyer should know the precise moment at which a particular question is to be put and the questions which are not to be put. In a regular cross examination, questions are often to be moulded and asked on the spur of moment, depending on the answers given by the witness. Considering it, submitting the questionnaire in advance to the court, that too, with copy to the prosecutor will defeat the very purpose of cross examination and cross examination tends to become an empty formality. If the questions proposed to be put to the witness are supplied in advance, there is no purpose in conducting cross examination.

9. A perusal of the statutory provision also clearly shows that, it does not, either explicitly or by necessary implication, empower the court to demand a questionnaire from either side in advance before the examination of the witness. Section provides that "while recording" the examination-in-chief, cross examination or re-examination, the questions shall be communicated to the court, which in turn, shall be put to the child. It clearly shows that, statute does not authorise the court to require any party to supply questionnaire in advance. It negates the right of the accused for a fair trial.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl. M.C. No. 6092 of 2018

Decided On: 31.10.2018

 Unnikrishnan R. Vs. Sub Inspector of Police, Kurathikadu Police Station 

Hon'ble Judges/Coram:

Sunil Thomas, J.

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How to balance right of accused to have fair trial with right of victim while deciding application for recall of witness?

Neither the
accused nor the prosecution nor the victim which is a part of
the society can claim absolute predominance over the other.
Once absolute predominance is recognized, it will have the
effect potentiality to bring in an anarchical disorder in the
conducting of trial defying established legal norm. There
should be passion for doing justice but it must be commanded
by reasons and not propelled by any kind of vague instigation.
It would be dependent on the fact situation; established norms
and recognized principles and eventual appreciation of thefactual scenario in entirety. 
Simultaneously the concept of fair trial
cannot be allowed to such an extent so that the systemic order
of conducting a trial in accordance with CrPC or other
enactments get mortgaged to the whims and fancies of the
defence or the prosecution. The command of the Code cannot be thrown to winds. In such situation, as has been laid down
in many an authority, the courts have significantly an eminent
role. A plea of fairness cannot be utilized to build Castles in
Spain or permitted to perceive a bright moon in a sunny
afternoon. It cannot be acquiesced to create an organic
disorder in the system. It cannot be acceded to manure a fertile
mind to usher in the nemesis of the concept of trial as such.
 The power under Section 311 CrPC must
therefore, be invoked by the court only in order to
meet the ends of justice for strong and valid
reasons and the same must be exercised with
care, caution and circumspection. The court
should bear in mind that fair trial entails the
interest of the accused, the victim and the society
and, therefore, the grant of fair and proper
opportunities to the persons concerned, must be
ensured being a constitutional goal, as well as a
human right.”
[Emphasis supplied]
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 805-806 OF 2016
(@ S.L.P. (Crl.) Nos. 3278-79 of 2016)
State of Haryana 
 V
Ram Mehar & Others Etc.
Citation:AIR 2016 SC 3942,(2016) 8 SCC762

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Supreme Court: Distinction between speedy trial and fair trial

 A “speedy trial”, albeit the essence of the fundamental
right to life entrenched in the Article 21 of the Constitution of
India has a companion in concept in “fair trial”, both being in
alienable constituents of an adjudicative process, to culminate
in a judicial decision by a court of law as the final arbiter.
There is indeed a qualitative difference between right to speedy
trial and fair trial so much so that denial of the former by
itself would not be prejudicial to the accused, when pitted
against the imperative of fair trial. As fundamentally, justice
not only has to be done but also must appear to have been
done, the residuary jurisdiction of a court to direct further
investigation or reinvestigation by any impartial agency, probe
by the state police notwithstanding, has to be essentially
invoked if the statutory agency already in-charge of the
investigation appears to have been ineffective or is presumed
or inferred to be not being able to discharge its functions
fairly, meaningfully and fructuously. 
REPORTABLE
 IN THE SUPREME COURT OF INDIA
 CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NO. 77 OF 2016

POOJA PAL V UNION OF INDIA AND ORS. 

Dated:JANUARY 22, 2016.

AMITAVA ROY,J.

Citation:2016 CRLJ 2038

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Supreme court : Trial court should not acquit accused as witnesses are not present

Calling a trial that resulted in a judgment of acquittal under Section 232 Cr.P.C. after closing evidence pursuant to examination of one formal prosecution witness, as a ‘farce’, a ‘mock trial’ and comparable to an experimentation conducted by a child in a laboratory, the Supreme Court has come down heavily on the conduct of the trial judge, calling the course of conduct adopted in the trial in question as neither permissible nor allowable.

The Supreme Court emphasized the principle that “non-application of mind by the trial court has the potentiality to lead to the paralysis of the conception of fair trial”.

The facts which compelled the Supreme Court to make the above observations are as follows: The informant lodged an FIR on 29.11.2004 at Tikari Police Station about 8.00 p.m. that the accused persons came armed with various weapons, took away her husband Brahamdeo Yadav, the deceased, and threatened the family members not to come out from their house. The deceased was taken towards the house of Krishna Yadav and next morning he was found dead having several wounds. On the basis of the FIR, criminal law was set in motion and eventually, the investigating agency submitted the charge-sheet for offences punishable under Sections 147, 148, 149, 341, 342 and 302 of the Indian Penal Code (IPC). After the accused persons were sent up for trial, charges were framed on 10.8.2007.

After the charges were framed, the trial Judge, that is, Additional Session Judge, FTC-II Gaya, passed orders to issue summons to the witnesses and they were issued on 17.8.2007. Thereafter the trial Judge issued bailable as well as non-bailable warrants against the informant on 5.12.2007. The trial Judge on various occasions recorded that witnesses were not present and ultimately vide order dated 17.5.2008 directed the matter to be posted on 23.5.2008 for orders under Section 232 CrPC and on the dated fixed recorded the judgment of acquittal.

The informant aggrieved by the judgment of acquittal carried the matter in revision to the High Court which opined there had been no fair trial and accordingly remanded the matter for retrial by the trial court.

Challenging the remand order, the accused went up in appeal to the Supreme Court.

The Apex Court said that the attitude of callousness and nonchalance portrayed by the prosecution and the total indifferent disposition exhibited by the learned trial Judge in shutting out the evidence and closing the trial after examining a singular formal witness, PW 1, in a trial where the accused persons were facing accusations for the offences punishable under Sections 147, 148, 149, 341, 342 and 302 of the Indian Penal Code (IPC), which entailed an acquittal under Section 232 of the Criminal Procedure Code, 1973 (CrPC), are really disconcerting; and indubitably cause discomfort to the judicial conscience.

The Apex Court reminded the lower judiciary that the Court cannot be a silent spectator or a mute observer when it presides over a trial. The Supreme Court also said that it is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding.  “Keeping in view the concept of fair trial, the obligation of the prosecution, the interest of the community and the duty of the Court, it can irrefragably be stated that the Court cannot be a silent spectator or a mute observer when it presides over a trial. It is the duty of the court to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding. They cannot expropriate or highjack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one. Law does not countenance a ‘mock trial’.”

The Apex Court also held that the court is duty bound to see that neither the prosecution nor the defence takes unnecessary adjournments and take the trial under their control. “The court is under the legal obligation to see that the witnesses who have been cited by the prosecution are produced by it or if summons are issued, they are actually served on the witnesses. If the court is of the opinion that the material witnesses have not been examined, it should not allow the prosecution to close the evidence. There can be no doubt that the prosecution may not examine all the material witnesses but that does not necessarily mean that the prosecution can choose not to examine any witness and convey to the court that it does not intend to cite the witnesses,” said the Supreme Court.

The SC also had a word of advice for public prosecutors. It said : “The Public Prosecutor who conducts the trial, has a statutory duty to perform. He cannot afford to take things in a light manner.”

The Apex Court relying on its decision in K.Chinnaswamy Reddy v. State of Andhra Pradesh and Anr( AIR 1962 SC 1788) categorically held that the High Court would be justified to interfere with an order of acquittal if the trial court has wrongly shut out the evidence which the prosecution wishes to produce.

Accordingly, the SC dismissed the appeal as without merit. The SC dismissing the appeal said :“we unhesitatingly affirm the order passed by the High Court as we treat the view expressed by it as unexceptionable, for by its order it has annulled an order which was replete with glaring defects that had led to miscarriage of justice.”
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 914 OF 2015

Bablu Kumar Vs   State of Bihar and Anr. 

Dated;July 20, 2015
Dipak Misra, J.
Citation;(2015) 8 SCC787

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Duty of court when fair trial to accused is denied due to incompetency of his counsel

During the course of hearing of the appeal, this court was
shocked to note that none of the prosecution witnesses were cross
examined by the learned counsel for the appellant. It will be apt to
reproduce the cross-examination of the victim who was the star
witness. The said cross examination runs as under;
“It is not correct to suggest that, the accused did not
commit sexual intercourse with me. It is not correct to
suggest that, whatever statement, I have given today
is entirely false.
It is noted that almost all witnesses are cross examined in
the similar fashion and there is no cross examination of any witness
on the vital issues of the case. It is thus abundantly clear that the
appellant did not get the fair trial. Though it was the mistake on the
part of the learned counsel for the appellant to cross examine the
witnesses in such a superficial manner, without going into the merits
of the evidence of the witnesses, the learned trial Court was also
under obligation to see that the appellant gets fair trial. In the instant
case, it was necessary for the learned trial Court to intervene and to
find out from the lawyer if he was competent to appear for and on
behalf of the appellant. The learned trial Court was not prevented
from appointing a lawyer from the panel maintained under the Free
Legal Aid. In brief, it can be stated that the appellant is entitled for
fair opportunity to defend himself.
If the appellant did not
understand the carelessness and negligence shown by his counsel,
the learned trial Court should have immediately taken necessary
steps to see that the appellant gets a fair trial.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.398 OF 1998
Anantram @ Moru s/o. Babulal Bawankar,
V
The State of Maharashtra,

CORAM : M.L. TAHALIYANI, J.
DATED : 17th JULY , 2014.
Citation;2015 ALLMR(CRI)975

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Guidelines of Supreme court for grant of adjournment in criminal case

A Supreme Court Bench comprising of Justice Dipak Misra and Justice R.F. Nariman, while dismissing an Appeal and confirming the conviction of the appellant under Prevention of Corruption Act expressed their anguish over the manner in which trials in respect of serious offences relating to corruption are being conducted by the trial courts.

“It is imperative if the examination-in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial,” the Bench added.

It hence directed that the copies of the judgment should be sent to the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner, observing, “Let it be remembered that law cannot allowed to be lonely; a destitute.”

Highlighting the unacceptable practices, the Court noted that adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the Trial Courts grant time.

The law requires special reasons to be recorded for grant of time but the same is not taken note of. “If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The Court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-acceptable reasons,” the Bench observed.

During the trial, one of the witnesses had turned hostile after he was cross-examined after 1 year and 8 months. The delay, according to the Court, had given enough time for prevarication due to many a reason.

This laxity was chided by the Supreme Court, observing that, “A fair trial is to be fair both to the defence and the prosecution as well as to the victim. An offence registered under the Prevention of Corruption Act is to be tried with all seriousness. We fail to appreciate how the learned trial Judge could exhibit such laxity in granting so much time for cross-examination in a case of this nature.”

The Bench said that the cross-examination was deferred for no reason and took place after 20 months, when the witness had all the time in the world to be gained over.

The Court was hearing an Appeal against a judgment of Punjab and Haryana High Court at Chandigarh which had affirmed the judgment of a Special Judge, convicting the appellant, Vinod Kumar under the Prevention of Corruption Act. The appellant had allegedly demanded a bribe for allowing passage of tractor trolley within the municipal area of Rajpura.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 554 OF 2012

Vinod Kumar Vs State of Punjab

Dated;JANUARY 21, 2015.

Dipak Misra, J.

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Whether accused can raise plea that trial is vitiated as they were not provided proper legal assistance?

Arts. 21, 22(1) and 14 - Fair trial - Right to proper legal assistance - Challenge to death sentence on ground of prejudice
resulting from errors by defence counsel - Tenability and manner of appreciation of effect of said prejudice - Held, the
totality of circumstances should be considered to find out if there is a reasonable probability that in the absence of
alleged errors by defence counsel causing prejudice, the court independently reweighing evidence, aggravating and
mitigating circumstances would not have awarded death sentence - In that case death sentence should be commuted -
The present case is not one such case, though death sentence has been commuted on other considerations mentioned
in Shortnote A - Taking the totality of circumstances into consideration, it cannot be said that the accused was not given
proper legal assistance in the trial court and High Court - No doubt PW 17 should not have been subjected to cross-
examination without being put to chief-examination - There is no scope under S. 138, Evidence Act to start with cross-
examination without examination-in-chief - But the participation of appellant in the crime was otherwise proved beyond
reasonable doubt, 

SUPREME COURT OF INDIA
Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747

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