Showing posts with label responsibility of prosecution. Show all posts
Showing posts with label responsibility of prosecution. Show all posts

22 December 2020

Subordinate to the appointing authority can not grant sanction to prosecute

Additional Collector holding charge of District Collector can not give sanction to prosecute in corruption case when employee is appointed by District Collector

    The sanction for prosecution can be granted by the authority competent to remove person. The appointment authority was Collector. PW-4 was subordinate to Collector. He was working as Additional Collector. The prosecution is relying upon the order handing over the charge to PW-4. The documents were produced on re-examination of the witness. The question which arises for consideration is that assuming that the charge was handed over to PW-4, on account of leave of District Collector, whether the charge of according sanction to prosecute the accused stands transferred to him. There is no satisfactory evidence on record to substantiate this fact. The approach of PW-4 appears to be casual. Learned counsel for the appellant has drawn my attention to some provisions of Maharashtra Civil Services Rules to bring home and contended that District Collector was appointing and removing authority.[Para No.21]

    It is submitted that, disciplinary authority cannot be inferior to the appointing authority. In the present case the collector being the appointing authority of the applicant, the additional collector did not have the power to remove him from service. Article 311 (1) of the constitution of India creates a safeguard where in no person who is a member of the Civil services of the Union or the state or an All Indian Service or a civil service or who holds a civil post under the union or State shall be removed by an authority sub ordinate to him. In the present case PW-3 at the relevant time was functioning as the Additional collector of Kolhapur. PW-3 in his examination in Chief makes a positive assertion that the Collector of the District is the Appointing and the removing Authority of the Appellant/accused. The Appointment order of the Appellant was produced on record by the said witness and the same is at (Exh.119). The PW 3 admits in his cross examination that the Post of the Additional Collector and Collector are different. The onus of proving a valid sanction is on the prosecution and hence it was incumbent upon the prosecution to bring on record any documents which would demonstrate that the power of Appointment and the removal of the Appellant vested with the Additional Collector. The prosecution has not produced any documents in this regard. The aforesaid witness was re-examined by the prosecution and the documents at Exh.124 is a charge report dated 11th April, 2006. It can be seen that the Collector holding regular charge was proceedings on leave and hence the Additional Charge of the District was being handed over to the PW-3. In the aforesaid charge report it is no where mentioned that the PW-3 had the authority to remove the Appellant or persons of equivalent rank from service and hence (Exh.124) would not come to the aid and assistance of the prosecution.
Subordinate to the appointing authority can not grant sanction to prosecute
In fact Article 311 (1) does not permit such a delegation of powers and hence assuming without admitting that there was such a delegation, then the same would nonest in the eyes of law and the same would be in conflict with the constitutional safeguard created under Article 311 (1) of the Constitution of India.[Para No.22]

18 July 2020

There is no limitation period for 'victim' to file appeal against acquittal

Appeal u/s.372 by victim against acquittal - appeal by mother of deceased - definition of 'victim' - responsibility of the court recording acquittal

It is manifest that Section 372 of the Code relates to appeal from judgment or order of a Criminal Court. It gives to the victim the right to prefer an appeal against any adverse order passed by the trial Court. This amendment forms a part of the entire scheme under which the definition 'victim' was inserted by way of Section 2 (wa) of the Code, so as to allocate an active and constructive role to a victim of an offence in the judicial process arising from an offence.[Para No.8]

Section 2 (wa) of the Code defines the term 'victim' as to mean a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression 'victim' includes his or her guardian or legal heir.[Para No.9]

The applicant herein is not only informant / complainant but the mother of deceased also who was allegedly done to death by respondent No.1- husband. The victim of crime, taken in the natural and ordinary sense, was the applicant's daughter. However, now that actual crime victim is no more, the question arises as to whether the applicant being her mother can be recorded as a victim.[Para No.10]

As per proviso to Section 372, an appeal by victim shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. That is to say appeal shall lie either before the Sessions Court or before the High Court, depending upon the Court which tried the case. No such statutory right existed prior to the amendment except under Section 378 (4) of the Code. Under Section 378 (4), a private party can challenge an acquittal by way of appeal only after getting special leave to appeal under Sub-Section (5) of Section 378 within six months if the complainant is a public servant, and within 60 days in every other case.[Para No.13]

There is no limitation period for 'victim' to file appeal against acquittal
We notice, however, that no period of limitation has been prescribed for the victim to prefer appeal against the judgment of acquittal in terms of proviso to Section 372 of the Code.[Para No.14]

It is common experience that in most of the cases informants are not so well educated or come from strata of society, lacking awareness and nuances involved in the proceedings. The semblance given to him/ her is that every care is taken by state machinery. This being so, he or she may not even know the outcome of the proceedings. Is it the duty of Public Prosecutor to ensure that the informant is informed about the judgment acquitting accused against whom he/ she had instituted the case?[Para No.28]

20 May 2020

F.I.R. can not be doubted if name of accused is not mentioned in F.I.R

It is settled law that FIR is not an encyclopedia of facts and it is not expected from a victim to give details of the incident either in the FIR or in the brief history given to the doctors. FIR is not an encyclopedia which is expected to contain all the details of the prosecution case; it may be sufficient if the broad facts of the prosecution case alone appear.[Para No.15]

18 April 2020

Fair trial : What is the responsibility of prosecution?

It is settled legal position that it is for the prosecution to put forward entire evidence before the court whether the same supports the prosecution or not, so that the true position comes before the court. It is the duty of the prosecution to act fairly.[Para No.18]


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