LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


Is our judicial machinary following the law and order?

The soul of criminal justice system is Adverserial system which provides with a prospect for the parties to case, advance and present their arguments, gather and submit evidence, call and question witness and control the information presented conferring to the law and legal procedure.

“It is better that several guilty person should escape punishment than one innocent person should suffer”

Founded on this criminal policy India follows Accusatory criminal justice system which presumes “A man is to be innocent until proven guilty” for that reason it is for the prosecution to prove beyond reasonable doubt that the accused committed the offence. Sections 101-104 of the Indian Evidence Act, 1872 areestablished on Roman law maxim, “ei qui affirmat, non ei qui negat,incumbit probation,” which clearly states that the burden of proof lies upon the party who substantially asserts the affirmative of the issue.Therefore if a suit is advancedagainst a person i.e. accused than it is the prosecution who has the Onus Probandi. It was well recognized in the case of Woolmingnton v. DPP [1935] A.C. 462, that “At the end of the evidence it is not for the prisoner to establish his innocenece, but for the prosecution to establish his guilt”.In GandapBhimanna v. The State of Hyderabad, [1956] Hyd. 636, it was held that it is for the prosecution to prove beyond reasonable doubt that the accused committed the offence; it is not for the court to speculate that as to how the crime has been committed.

but what happened in rape case or divorce case or the case of mental cruelty to women? the woman don't have to prove the accused guilty but the accused has to prove his innocense. the court presumed that the woman is telling truth. is the court following law?

Another speculation of these sections is, Ifthe evidence is of such nature that conclusion cannot be arrived the benefit of doubt should be given to the accused therefore in case of Rama v. The State of Hyderabad, [1952] Hyd. 354, as the evidence was not conclusive enough to conclude who started the fight or how the quarrel began the benefit of doubt was provided to the accused.

this practice also is not followed in marriage related case or woman related case.

However there are some exceptions to this rule of Presumption of innocence. One of the important category is statutory offences requiring no mensrea for the completion as these offences mere non-compliance with the duty imposed by the statute raises presumption of guilt of the accused.  Another can be proof of previous conviction of the accused may be given as evidence against him. And lastly with regard to receiver of stolen goods, the law relating to presumption of innocence in Section 114 of the Indian Evidence Act which states that the court may presume the person in possession of the stolen goods soon after the theft is either the thief or the received the goods knowing them to be stolen.

how many public servant are presumed guilty in practice? police breaks law in broad daylight and still they can get go. nobody is presumed guilty.

Fairness to the accused further extends to Section 24, 25 and 26 of the Indian Evidence Act which talks about the confessions made by the accused.Confessions are accepted as evidence on a sole basis that a person will not make any untrue statement against his own interest.It is a well-accepted rule that the confession should be accepted as a whole or rejected as a whole.  A confession is a good piece of evidence unless it is caused by inducement, threat or promise having reference to the charge against the accused; it was held in Kuruma v. The Queen, [1955] A.C. 197 that a confession can only be admitted if it is voluntary, and one obtained by inducement, threat or promise held out by a person in authority is not admitted.Section 25 and 26 emphasises on the irrelevancy of the confession made to the police officer and in police custody respectively. The object of these two sections is to prevent the practice of torture by the police for the purpose of extracting confessions from accused persons. It was held in Imperatrix v. Pandharinath (1881) 6 Bom, 34, that any incriminating statement made by the accused to a police officer is inadmissible as evidence. The concept of fairness is not only restricted in this piece of law but also extends to The Constitution of India, The Code of criminal procedure, 1973 and the Indian Penal Code, 1860.


in most of the cases, in practice, judge relies on confession made by accused in police custody. no judge, i think would ever disbelieve the confession. are the trials then fair in india?

In accordance with Section 164(2) of CrPCthe magistrate explains the person making the statement that he is not bound to make any confession. This right is encrypted as the Right to silence guaranteed under Article 20(3) of the Constitution which says “No person accused of an offence shall be compelled to be a witness against himself” and if he does so it may be used as an evidence against him, and magistrate should not record any such statement unless he has a reason to believe that statement is being made voluntarily. Section 164(3) also lies on the parallel grounds that if the person appearing before the magistrate is not willing to give confession, the magistrate should not authorise the detention of that person in the police custody.

in how many cases a person can remain silent? police will do all sort of brutal torture to make the accused confess the crime and judge believe them. in cases of terrorist attacks or women related cases, judge often believe in confession made by accused. how many of those confessions are voluntary?

The accused has also been granted with the Right to Legal Aid which is a part of an important principle of Criminal Jurisprudence that is Right to Fair Trial. This right is being highlighted in the Constitution of the country as well as the Code of Criminal Procedure, Article 22(1) of the Constitution of India grants the right to the accused to consult and to be represented by a lawyer of his own choice similar right is being mentioned in Section 303 of CrPc but the ultimate fairness is being shadowed in Section 304(1) of the CrPc which says when the accused has not got sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the state.

when nalini, the alleged killer of rajiv gandhi, the late prime minister of india was arrested and taken to court, no lawyers are willing to represent her. how many lawyers are willing to represent ajmal aamir kasav or afjal guru? only cheap lawyers are appointed in their defence. how FAIR those trials are?

There lies a Rule of Prudence in The Indian Evidence Act, 1872 in Section 114…illustration (b) That an accomplice is unworthy of credit, unless he is corroborated with material facts. It is called a rule of prudence because it can well understood that a person who has given statements against his/her own friend in the crime in unworthy of trust so his statements cannot be considered as a good piece of evidence, which is again seems to be tilted on the side of the accused.

i don't know how many courts follow this rule?

Fairness needs to flow from every corner, this seems to be the agenda of The Indian Evidence Act, 1872 as Section 22 and 26 also talks about communication during marriage and professional communication respectively now these two sections clearly focuses on the communication done or exchange of information based on trust. Therefore in accordance with Section 22 of Indian Evidence Act, No person who is or has been married shall be permitted to disclose any such communication made to him during marriage by any person to whom he or she is or has been married unless the there is an consent from him/her or representative of the same or if the proceedings is against one married person prosecuted for the crime against other. This protects the accused from flowing of any information made by him to the married counterpart on the bond of trust.

does the police not force any person to disclose information he told to his wife or she told to her husband? i don't know if courts follow this rule of trust.

Similarly Section 26 states that no barrister, attorney or vakilshall at any time disclose any information made to him by his/her client unless there is an express consent on the side of the person. This section is based upon the principle that if communication to legal adviser were not privileged, a man would be deterred from fully disclosing his case, so as to obtain proper professional aid in a matter which he is likely to be thrown into litigation. So for instance, anaccused made any statement to his pleader that he has committed the murder now he wants the pleader to defend him so this communication will be protected from disclosure.


please offer money to a lawyer and then ask him to disclose the facts of his client. see if he disclose or not?


According to my analysis I believe Section 151 and 152 of the Indian Evidence Act are also very important when it comes to fair trial of the accused as these two sections focuses on the questions that are being asked during a case proceeding and they prohibit any indecent, scandalous or any question that is been put to annoy or insult, unless it is necessary to ask or is very related to the fact in issue because as the decision of case is unstable so any such kind of question put to the accused can be harmful the dignity of that person if the decision stand in his acquittal,so this will violate the Right to Life with human dignity of that person granted by Article 21 of the Constitution of India. Therefore these two sections are essential when it comes to the fairness of trial of the accused or the protection of the accused. So the Criminal Justice System prevailing in India is to its extent pro-accused with some restrictions limiting the concept of fairness.

is it necessary to ask indecent,scandalous question to husband in the cases of mental cruelty ? i know it is a necessity in rape case or cases of s*xual harassment.

so my dear readers do you think that trials are fair in india? courts do justice with people in india? or  do you think innocent people are behind the bar in india? please give your comment. it matters.

Article by-

Sarthak Sharma,

Student, National Law Institute University, Orissa

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

source: https://www.mightylaws.in/504/protection-alleged-indian-criminal-justice-system-2


 9 Replies


please post your comment

Democratic Indian (n/a)     11 March 2012

I will post my detailed comments are carefully going through this post. But for the time being, question that arises in my mind is, how the police is able to get custody of the accussed from courts in so many cases? Are the accused not exercising their fundamental right under Article 20(3) of the Constitution or the Article 20(3) is not respected by courts? What material relevancy the police has by taking in custody of an accused who has decided to exercise his right of silence under Article 20(3)?


it is the court that decides if the accused will be taken to custody or not.  so far as art 20(3) is concerned, either the accused does not know his fundamental right or police don't care to respect constitution.

Democratic Indian (n/a)     11 March 2012

Sir the accused has already told the court that he wants to exercise his right of silence under Article 20(3). I am trying to find logic and reason of court, instead of sending such an accused to judicial custody, for sending of such an accused to police custody,

Article 20(3) exists on the theory that person is innocent until proven guilty. If the accused decides to exercise his right under Article 20(3), while deciding between judicial custody and police custody, how can court instead of sending to judicial custody send accused to police custody? Is it not a violation of Article 20(3) by court and also very unreasonable? Because the accused is anyways going to remain silent in police custody because of his exercise of Article 20(3). What purpose is a completely silent accused going to serve the police in investigation of the accusation against the accused?


well the accused told the court that he wants to remain silent so court should send him to judicial custody.

police said that the accused know many important thing about crime and many valuable information can be obtained from him so court should send him to police custody for interrogation.

court upon hearing both sides and considering the importance of matters, will decide where to send the accused.

court has the power to send the accused to any custody based on circumstances of the case and that should not be considered as violative of art 20(3).

Democratic Indian (n/a)     12 March 2012

Sir I agree that court has power to decide whether to send the accused to judicial custody or police custody. But this power is expected to be exercised with proper reasoning in a fair and just manner.

Accused is saying to court he wants to remain silent under Article 20(3).


Police is saying to court they want to talk with a silent person when in their custody.


Question arises how can police talk with a silent person without violating Article 20(3)? Therefore the demand of police is clearly unreasonable and without basis. Going by this fact it is reasonable to apprehend that police intend to somehow compel the accused to violate his right under Article 20(3), so that they can talk with him. Hence it is fair and reasonable to expect from court that in order to defend Article 20(3) court should send the accused to judicial custody.


look the power granted by the constitution are not absolute power. they have some restriction.these rights can be violated on circumstances of case. court can give a person to police custody if  circumstances of case demands so.

the point that made a trial unfair is that court believe confession given by accused in police custody because that confession is generally a lie.

DIVYAA (STUDENT)     12 March 2012

Dear SIR,


There was a case u/s 138 NI ACT against my uncle.The young Magistrate was the friend of the Bank’s counsel ,therefore he ignored all the defence materials and convicted my uncle for the offence u/s 138 N.I.ACT. during the course of proceedings the accused (my uncle) submitted the letter received by him along with the envelope in original before the court as Defence witness u/s 315 Cr.P.C. THE LETTER which was sent by the bank’s advocate was  ‘offer letter for settlement’ instead of notice as required u/s 138.The bank’s advocate refuted the defence evidence and claimed that he had sent the notice but the accused had forged the letter to cause wrongful loss to the complainant.The bank’s advocate filed an application u/s 340 cr.pc (without any affidavit and evidence ) against the accused .The accused filed the Reply to that complaint.The banks advocate filed the rejoinder and the accused filed the “Final reply to the rejoinder” ,thereby closing the arguments.And also filed an application u/s 340 cr.pc. against the bank’s advocate and complainant’s A.R. alongwith affidavit and relevant evidence to rebut the bank’s claim.However,the Magistrate being the friend (as he knows the bank’s advocate since his days of practice in rohini court) and convicted the accused and filed an complaint u/s 195 crpc to the C.M.M. on the 340 crpc application of the bank’s advocate.And nowhere in his order and judgment mentioned the filing of the application filed by the accused u/s 340 crpc .The accused applied the certified copy of the whole record and came to know that “the application filed u/s 340 crpc by the accused was not on the court records and the same has been removed with malafide intentions by the magistrate or courts staff to benefit the complainant”.


Now the accused is filing an appeal u/s 341 crpc against the complaint made by the magistrate u/s 195 crpc to the C.M.M. on the 340 crpc application of the bank’s advocate.And an appeal u/s 374 crpc against the order and judgment challenging the conviction.


As We have to file an application u/s 340 crpc on the grounds that the same neither being rejected nor taken cognizance of the same by the magistrate despite filing the affidavit also,but the M.M. has wiped the said application u/s 340 crpc filed by the accused from the court records.


Pls. guide as how to make a complaint of the documents missing from the court records and under which  sections or provisions .The accused has only xerox copy of the said application and affidavit made on that date.

And how to convince the A.C.M.M. to consider the same and maintain it on the court records on the same date when it was filed.


And under which provisions a complaint can be filed such as 197 crpc against the erring and corrupt magistrate for his biased and flagrant attitude against the accused during the proceedings.






look divyaa

removing court record  is an offence. there is a case in delhi high court where this kind of act is held as offence.

J.L. Goel & Ors. v Rajesh Kumar Jain & Anr.. heres the link: https://498amisuse.wordpress.com/2010/08/31/must-read-judgement-about-crpc-340-court-record-forgery-justice-shiv-narain-dhingra/

so you can apply to C.M.M. about this offence  this offence is called

Omission to assist public servant when bound by law to give assistance punishable u/s 187 of IPC.

and also please consult with your lawyers.

best of luck

Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register