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Report No. 244

(iv) Justifications to enlarge scope of disqualification to include those against whom charges framed

As explained above, the Supreme Court has made it clear that the framing of charges under Section 228 of the CrPC requires an application of judicial mind to determine whether there are sufficient grounds for proceeding against the accused. K.P. Raghavan v. M.H. Abbas, AIR 1967 SC 740. Further, the burden of proof at this stage is on the prosecution who must establish a prima facie case where the evidence on record raises 'grave suspicion'. State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568. Together, these tests offer protection against false charges being imposed.

In addition to the safeguards built in at the stage of framing of charges, an additional option is available in the shape of Section 311 of the Code of Criminal Procedure. Section 311 grants power to the Court to summon or examine any person at any stage of the trial if his evidence appears essential to the just decision of the case.

Although this section is not very widely used, and the Supreme Court has cautioned against the arbitrary exercise of this power, Natasha Singh v. CBI Crl, Appeal No. 709 of 2013 Supreme Court of India, it grants wide discretion to the court which may even be exercised suo motu. This section may be used by the Court to examine additional evidence before framing charges where the consequence of such framing may disqualify the candidate.

The framing of charges is therefore not an automatic step in the trial process, but one that requires a preliminary level of judicial scrutiny. The provisions in the CrPC require adequate consideration of the merits of a criminal charge before charges are framed by the Court. The level of scrutiny required before charges are framed is sufficient to prevent misuse of any provision resulting in disqualification from contesting elections.

Moreover enlarging the scope of disqualifications to include the stage of framing of charges in certain offences does not infringe upon any Fundamental or Constitutional right of the candidate. RPA creates and regulates the right to contest and be elected as a Member of Parliament or a State Legislature.

From the early years of our democracy, it has been repeatedly stressed by the Supreme Court that the right to be elected is neither a fundamental nor a common law right. N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 : (AIR 1952 SC 64); JaganNath v. Jaswant Singh, AIR 1954 SC 210; Dr. N. B. Khare v. Election Commission of India, AIR 1958 SC 139.

It is a special right created by the statute and can only be exercised on the conditions laid down by the statute. Jumuna Prasad Mukhariya v. Lachhi Ram, AIR 1954 SC 686. Therefore, it is not subject to the Fundamental Rights chapter of the constitution. Jagdev Singh Sidhanti v. Pratap Singh Daulta, AIR 1965 SC 183; Smt. Indira Nehru Gandhi v. Shri Raj Narain, AIR 1975 SC 2299; Ebrahim Sulaiman Sait v. M.C. Muhammad, AIR 1980 SC 354, (1980) 1 SCR 1148.

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