Report No. 244

(ii) Why disqualification may not be made operative at the stage of filing of charge-sheet

Before examining the proposal to introduce disqualification at the stage of framing charges, it is worthwhile to consider other points during criminal prosecution where such a step may be introduced. It has been suggested that the stage of filing of charge-sheet by the police under Section 173 of the CrPC is one such stage which may result in disqualification of the accused. This section will evaluate this suggestion in more detail.

When filing a charge-sheet, the Police is simply forwarding the material collected during investigation to a competent Court of law for the Court to consider what provisions the accused should be charged under. At this stage, there is not even a remote or prima facie determination of guilt of the accused by a Court of law.

At the stage of filing or forwarding the charge-sheet to the Court, the material which is made a part of the charge-sheet has not even tested by a competent Court of law and the Judge has clearly not applied his mind to the said material. Courts have repeatedly held that a charge-sheet does not constitute a substantive piece of evidence as it not yet tested on the anvil of cross-examination. Rajnikanta Meheta v. State of Orissa, 1976 Cr.L.J. 1674 (Ori-DB); Jagdamba Prasad Tewari v. State of Uttar Pradesh, 1991 Cr.L.J. 1883.

No rights of hearing are granted to the accused at this stage. At the stage of filing of charge-sheet, before summons are issued, the accused does not even have a copy of the charge-sheet or any connected material. Disqualifying a person therefore, simply on the basis of something which he has had no opportunity to look into, or no knowledge of, would be against the principles of natural justice.

Disqualifying a person at this stage would mean that a person is penalized without proceedings being initiated against him. This would be tantamount to granting the judicial determination of the question of disqualification to the police, who are a prosecuting authority. At the National Consultation it was agreed by consensus that this was an inappropriate stage for disqualification of candidates for elected office.

It is also worthwhile to consider whether the stage of taking of cognizance by the Court would be an appropriate stage to introduce disqualifications. The taking of cognizance simply means taking judicial notice of an offence with a view to initiate proceedings in respect of such offence said to have been committed by someone.

It is an entirely different matter from initiation of proceedings against someone; rather, it is a precondition to the initiation of proceedings. S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd., (2008) 2 SCC 492; State of West Bengal v. Mohammed Khalid, (1995) 1 SCC 684.

While taking cognizance, the Court has to consider only the material put forward in the charge-sheet. It is not open for the Court at this stage to sift or appreciate the evidence and come to a conclusion that no prima facie case is made out for proceeding further in the matter. Rashmi Kumar v. Mahesh Kumar Bhada, (1997) 2 SCC 397.

An accused does not have the right to approach the Court till cognizance is taken and summons are issued. At the stage of taking cognizance, the accused has no right to present any evidence or make any submissions. Although the accused may provide exculpatory evidence to the Police, the latter are under no obligation to include such evidence as part of the charge-sheet.

Due to the absence of an opportunity to the accused to be heard at the stage of filing of charge-sheet or taking of cognizance, and due to the lack of application of judicial mind at this stage, it is not an appropriate stage to introduce electoral disqualifications. Further, in a case supposed to be tried by the Sessions Court, it is still the Magistrate who takes cognizance. Introduction of disqualifications at this stage would mean that a Magistrate who has been deemed not competent to try the case still determines whether a person should be disqualified due to the charges filed.

Because of these reasons, it is our view that the filing of the police report under Section 173 CrPC or taking of cognizance is not an appropriate stage to introduce electoral disqualifications. A closer look will now be taken at the stage of framing of charges.