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Report No. 244

c. The Burden on Prosecution at the charging stage

The Supreme Court, in DebendraNathPadhi State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568., overruling Satish Mehra Satish Mehra v. Delhi Administration, (1996) 9 SCC 766. , held that the accused cannot lead any evidence at charging stage. Thus, the decision of the judge has to be based solely on the record of the case, i.e. the investigation report and documents submitted by the prosecution. Though the determination of framing of charges is based on the record of the case, the Supreme Court jurisprudence on Section 227 also imposes certain burdens to be discharged by the prosecution:

"If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence; if any, cannot show that the accused committed the offence then there will be no sufficient ground for proceeding with the trial". State of Bihar v. Ramesh Singh, (1977) 4 SCC 39, 42 para 4.

(emphasis added)

Additionally, the burden on the prosecution at charging level also involves proving a prima facie case. A prima facie case is said to be in existence "if there is ground for presuming that the accused has committed the offence." State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659. This also provides a certain degree of protection for the accused.

Finally, in order to establish a prime facie case, the evidence on record should raise not merely some suspicion with regard to the possibility of conviction, but a "grave" suspicion, Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135; Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368:

"If two views are possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused." Prafulla Kumar Samal, (n.65), 9, para 10. (emphasis added)

Since the stage of framing of charges is based on substantial level of judicial scrutiny, a totally frivolous charge will not stand this scrutiny. Therefore, given the concern of criminalisation of politics in India, disqualification at the stage of charging is justified having substantial attendant legal safeguards to prevent misuse.



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