Judges irked at procedural holes in prosecution

Their acquittal is not owing to their counsel putting up a strong defence, but instead the credit goes to the prosecutor and trial judge who caused their freedom by their shoddy handling of the case. 

Trial court rulings are usually drawn for criticism by the High Court for ignoring vital facts of law. In this case, the division bench comprising Justice S Nagamuthu and Justice J Authinathan on setting aside the conviction and sentences imposed on the accused said “The trial judge, the public prosecutor, who conducted the trial and the counsel, which defended the accused, did not bestow their attention to ensure that justice is done to parties. Because of the contribution made by all the three, now, we are unable to even separate the grain from the chaff.” 

The first and foremost in a trial is the framing of charges. The moment it appears to the magistrate or the trial judge that the case is triable, the case is committed and all records sought for. Thereafter, in the presence of the accused, the public prosecutor will open the case, by explaining the charge or charges brought against the accused and the evidence he is going to produce to prove the guilt of the accused. This is done to enable the Court follow the evidence. The court may see if there is any discrepancy between the opening statement of the prosecutor and the evidence and direct the prosecutor to adduce evidence in support thereof. 

In this case, even this basic requirement has not been adhered to. The trial court had framed as many as nine charges. Among them, charge No 1 is against all the 50 accused under Section 147 and Section 148 read with Section 149 IPC. While section 147 confines to punishment for rioting, Section 148 is about rioting, armed with deadly weapons and Section 149 deals with the aspect that every member of unlawful assembly, who, at the time of committing the offence, is a member of the same assembly, is guilty of the offence.

But the second charge of murder (302 IPC) was slapped only on 16 people. Despite the trial court framing charges against all the accused under sections 147 and 148 IPC it failed to frame charge against the rest of the accused by invoking Section 149 IPC. 

The division bench taking strong exception to the trial judge not even being aware of the basic concept of constructive lability as dealt with section 149 IPC, said “It is unfortunate that there was no charge framed against the rest of the accused by invoking Section 149 IPC. It is not as though it were the prosecution’s case that there was no unlawful assembly. Charge No 

1 reflects that the trial court was convinced that there was unlawful assembly. When that be so, though it may be true that the 16 accused were responsible for causing death of the deceased, the others would also be equally liable to be punished under section 302 read with Section 149 IPC, but unfortunately there was no charge.” 

Listing out many such glaring anomalies in the framing of charges, recording of evidences and imposing penalty, the bench said “The charges framed would go to show that the trial judge had not bestowed his attention in the manner of framing charges. It is needless to say that the accused are liable to answer the charges and they should be convicted for the charges framed against 

them. It is all the more, therefore, necessary for the court to bestow its attention to frame charges, going by the records. In our considered view the failure of the trial judge, in the instant case, to frame appropriate charges, amounts to a gross dereliction of judicial function.” 

Incidentally, based on a direction by the bench, the trial judge Bharanidharan, who dealt with the case, was sent for judicial training at the judicial academy to enable him relearn his judicial responsibilities. 

The prosecutor’s role in the case has also been drawn for severe criticism in the order. The bench points out that for each accused, numbering 50, one overt-act is attributed. As per the charges laid, each accused caused one single blow on a victim. 

The bench observed “It is as though the accused came upon the stage one after the other and attacked the assailants also in order, by causing one injury each. This narration of events by the eyewitnesses is highly dramatic and artificial.” 

Further, the bench on holding that it would not be safe to convict any of the accused since the prosecution has not come forward with the true version of the occurrences but has also suppressed a part of the occurrence, said “In a case of this nature, where the village is factious, the witnesses are partisan and there are too many number of accused such as 50; when there is every likelihood of false implication of some other people due to animosity and when the FIR itself is doubtful, in our considered view, it would not be safe to sustain the conviction of the accused.” 

However, the bench also had a word for the public prosecutor saying “In the instant case, it is highly shocking that the public prosecutor, who conducted the case, was so ignorant of the provisions, which is reflected from the fact that he did not raise any objection regarding the correctness of the charges framed, Had the Public Prosecutor bestowed his attention before the commencement of the examination of witnesses, the charges would have been appropriately altered.” 

At a time when political loyalties remain the crux in the appointment of public prosecutors and other law officers, legal fraternity hopes that the government, which is in the process of framing rules for such appointments, completes it in earnest and ensures that the guilty are not allowed to go scot free merely on procedural lapses.