modules11-15 Flashcards by ALISHA RAHMAN

Article 72 of the Indian Constitution,

the President has the power to pardon, remit, suspend or commute any sentence. the President has the power to pardons, reprieves, respites or remission of punishment or to suspend remit or commute the sentence of any person convicted of any offence

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Article 161 of the Constitution of India

, these powers are conferred on the Governor of the States. The Governor can pardon, reprieve, respite a punishment or suspend, remit or commute the sentence, which is given on the basis of the laws prevalent in the State, to which the executive power of the State extends. The difference between the pardoning power of the President and that of the Governor is that the Governor does not enjoy the power to grant pardon to a death sentence.

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Epuru Sudhakar vs the State of Andhra Pradesh

a small leeway is provided for judicial review of the mercy granting power of the President and the Governor to rule out any sort of arbitrariness.

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Section 433A of the CrPC

puts a restriction on the power of the President and the Governor that they can’t commutate the death sentence to less than 14 years of life imprisonment

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joinder of charges

s218 onwards
offences should have seperate charge and tried seperately but accused may apply for joinder of charges.

Charges may be joined if: s220the acts are committed within the same transaction or
2. s 219 if the same offence is commited 3 or less times within past 12 months the trial may be clubbed together

if it is doubtful what offences have been commited- all charges may be mentioned in charge sheet

if charged of an offence and later turns out they did not commit that offence instead a minor offence- that offence he may be convicted of even though he was not charged w it. (like if A was accused of grevious hurt with a weapon but he actually just did grevious hurt)

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sham sahab multani v karnataka

if accused is charged with one offece and acquitted of the same he cannot be convicted of another charge. accused must be informed of all the charges.

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wat persons may be charged jointly - s223

same offence- same transaction,
accused of abetment or atempt to commit
different offences during same transaction
offences that include theft, criminal misappropriation, extortion, property possession concealment may be charged 2gether
abetment, attempting and counterfeigting currency may be charged 2gether

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withdrawal of remaining charges s224

if multiple charges made against person and they are convicted of one/ few of them, the prosecuter may withdraw the remaining charges w consent of the court

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what is the flow of sessions trial

trial
opening case prosecution
discharge after consideration or hearing accused
BUT if court thinks trial is necessary
framing of charge and if required transfer to CJM
plea of guilt. if pleaded guilty= conviction
date for prosecution evidence if not guilty
evidence is examined and cross examined
if no evidence = aquit
entering upon defence- statements/ records etc
Arguments
Judgement

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trial for warrant cases

can either be thru police report or private complaint
238-249

absence of the complainant in a non cognizable case= acquittal
if false accusation - notice of compensation will b given to complainant

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trial of summons

framing of charges is not necessary - and only the substances of accusation to be made known to accused.
summon cases may be converted to warrant cases if punishment more than 6month s

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SUMMARY TRIALS

summary trials may be conducted:
cjm, mm, M1st- punishment below 2 yrs like theft, housebreaking, concealing recieveing stolen property below value of 200 rs

summary trials may be conducted w confirmation of HC.

The punishment given cannot be more than 3 month s

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record of summary trial

Record in Summary Trials:
1. Serial Number
2. Date of commission of offence
3. Date of report of complaint
4. Name of the complaint if any Name,
5. parentage and residence of the accused
6. The value of property in case of 379,380,381 =<200 (Theft) / 411,414 =>200 (receiving / concealment / stolen property)
7. Plea of accused and his examination
8. Findings
9. The sentence or the final order / date of termination of proceedings

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plea bargaining

sec265a-l
applicable only for punishment less than 7 yrs
any offences against children below 14, women or effecting the socioeconomic condition of nation = NO plea bargaining

voluntary plea to reduce punishment- the accused should not have any previous conviction of the same.

if plea bargaining is successful- court has to dispose case w punishment= wether imprisonment or compensation victim. minimum= HALF of th punishment , if offender isnt under Probation of offendors act 1/4th of offence punishment may be served
This judgement will be FINAL= NO APPEAL

265 I= period of detention to be minused (set off) from the sentance of imprisonment

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plea bargaining

sec265a-l
applicable only for punishment less than 7 yrs
any offences against children below 14, women or effecting the socioeconomic condition of nation = NO plea bargaining

voluntary plea to reduce punishment- the accused should not have any previous conviction of the same.

265 I= period of detention to be minused (set off) from the sentance of imprisonment

NOT applicable for juveniles justice care act

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what is judgement

decision of court regarding rights and liabilities of parties in legal action or proceeding
discussed in chapter 27 of crpc

Damu Senapati v Sridhar Rajwar

Judgement means the expression of the opinion of the judge or magistrate arrived at due consideration of the evidence and arguments

judgement will always be pronounced in the open court - judgement must be written in shorthand and must be signed by the presiding officers and if it is not written by his own hnd then every page of judgement must be signed by him - th ewhole judgemtn or a copy must be given to the parties free of cost

accused present at judgement

personal attendance is mandatory - if he is in custody then he is brought out to court
accused may not attend judgement IF:
1. sentance is fine only
1. accused is acquitted
  if multiple accused and some are missing court may go ahead w judgemtn to avoid delay

NAgewshwar shri Krishna Ghobe v maharashtra

language used in judgement should not be too difficult

requirements for judgement s354

should be writtin in language of the court
should mention points of determination
should reference th ecrime secton in IPC wether acquitted or convicted
when conviction is for an offence that is punishable with death or an alternative= judgement shall state the reason for which awarded and if death is awarded then special reasons must be mentioned
if the crime is punishable for term of one year or more, but awarded less than 3 months by judge- MUST record reasons for the judgemnt
6

mohammed chaman v delhi

when death sentance awarded= it MUST mention= He be hanged by the neck till he is dead
it isa standard and norm for death sentance

notifyng address of previously convicted

if person oreviously convicted of s215, s498, s506 PIC or offences relating to coin and govt stamps and property - then mag2ndclass may order that the court be informed of his whereabouts, residence after release for 5 years.

order of compensation

s357
1. if a judgement includes fine then he judge may rule that the fine may wholly or partly be applied to-
* cover expenses incurred in prosecution
* pay victim comepensation for loss/injury
* pay to person impacted by death of person killed
* if oofence related to property= compensate bonafide purchaser

if appeal opportunity available then the fine will be collected only after
- appeal judgement
- or till time for appeal is lapsed
if fine is not part of sentence the court can asked accused to pay the victim
if civil suit raised regarding same issue - civil court shall take into account any sum aid as fine in criminal court

victim compensation scheme

state govts must prepare in coord w central govt

compensation goes to victim or his dependents and the compensation amt may be decided by either the district legal service authority or the state legal service authority. the judge may reccoment if at the end of trial they beleive compensation awarded under section 357 crpc is nout adequate for rehabilitation

if there is victim but no offender is traced/ identified the victim may appeal to the legal service authority who will conduct inquiry= within 2 months- and may order immediate first aid facility or medical benefits free of cost
additional compensaton for:
s326A- voluntary gh
s376A- acid attack
376D- gang rape- for under 16, u12,
376AB- rape of under12

treatment of victims

**s357C** treatment in all public or private hospitals or ANY helath facility , and provide IMMEDIATE medical treatment **free of cost** abd police must be informed 326A- acid Attack s326A- voluntary gh s376A- acid attack 376D- gang rape- for under 16, u12, 376AB- rape of under12 sexual intercourse by person in authority, by husband during seperation and by repeat offenders

s360- 361

order to release on probabtion of good conduct or admonition eligibilty: 1. over 21 yrs old but less than 7 yrs of prison 2. below 21 yrs or woman - convicted for **less **than life imprisonment or death and it is their first conviction - then court will see their age, character, circumstances of crimefor mitigating factors then apply this section convict may be released on entering into a bond (with or w/o surities) to recieve wtv sentance not exceeding 3 yrs= must maintain good behaiviour. if it is petty crime where conviction is less than 2 yrs and its their first conviction= may be released after admonition/warning IF the court **does not** avail the opportunity to award rehabilitation probation under crpc 360 or a youthful offender under children act the court must record reasons for doing so

Karnataka v MM Manikandan Nair

no criminal court can review/ alter its own judgment //can alter any clerical or arithmetical issue | s362

RIGHTS OF ACCUSED

Right to know of the accusation. (S. 228, S. 240, S.246) Right of accused to be tried in his presence (s. 205, s.293, s. 299, s. 317) Evidence to be taken in presence of accused (s. 205, s. 273, s.317) Right to cross-examine prosecution witness. Right to produce evidence in defence. Right to have reasoned decision. Doctrine of double jeopardy (s. 300 Crpc)

Features of fair trial

Adversary system. Presumption of innocence- the burden of proof is on the one who declares, not on the one who denies. Right to be heard by a competent, independent and impartial judges. Parties to be represented by competent lawyers.(s 303-304) Venue of the trial. (S. 177- 189) Expeditious trial: S. 309 says every inquiry or trial shall be held as expediously as possible Constitution A 20(3)- No person accused of any offence shall be compelled to be a witness against himself A 22- Protection against arrest and detention in certain cases A 39A- legal aid

Features of fair trial

Rights of victims

Compensation of victim= s357 crpc payment of compensation, treatment and costs in non-cozniable cases -s372- right to appeal right to public prosecutor or lawyer of choice

witness protection scheme 2018

Class a:- when the witness and his/her family members get threats to their lives during the proceedings. Class b:- when the safety, reputation, and property of the witness and his/her family members during the investigation. Class c:- when the threat only extends to harassment of the witness and his/her family members during the proceedings.

Epuru Sudhakar vs the State of Andhra Pradesh

a small leeway is provided for judicial review of the mercy granting power of the President and the Governor to rule out any sort of arbitrariness. | article 161, art 72 of constitution that confers powers to grant pardon

Section 433

power to commutate the sentence in an appropriate case. Various sentences are eligible for commutation, one of them is death sentence i.e.mercy plea. Death sentence to any other punishment provided in the IPC. Imprisonment for life to any other imprisonment not exceeding fourteen years or fine. Sentence of rigorous imprisonment for simpler imprisonment which the person has been sentenced or a fine. Sentence for a simple sentence to a fine.

Restriction on powers of remission or commutation in certain cases

Section 433A of the CrPC puts a restriction on the power of the President and the Governor that they can’t commutate the death sentence to less than 14 years of life imprisonment.