Such evidence can be relied upon only if the same was exhibited by any other witness and not otherwise.

The issue place before the bench was that the accused was alleged for having fired bullets upon police officers during an encounter punishable under Section 186, 353, and 307 of the Indian Penal Code and Section 25 and 27 of the Arms Act, 1959.

The Petitioner was accused of conducting an illegal business operation of dealing with arms and ammunition and opened fire upon being raided by the Police.

Though the encounter had taken place in a public area, no independent witnesses were recorded and the examination-in-chief of all the police officers appears identical and rehearsed.

The court observed that the bullets allegedly recovered as stated in the CSFL reports were not exhibited during the proceedings.

The report indicated that the bullets were recovered from the bulletproof jackets and that the said bullets were shot of the weapon recovered from the possession of the accused.

Section 293 of the Criminal Procedure Code states provides for using any report or analysis provided by a Governmental scientific expert as evidence during the course of the trial.

Even if the evidence given by the Police Officers is admissible, it is not substantive enough to adjudge the matter in that favor and following the principle of ‘innocent until proven guilty’, the court set aside the Petitioners conviction.

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Mst. SHABNAM v. Mohd. SHAF AIR 2004 Raj. 303

FACTS OF THE CASE:

The appellant/plaintiff Mst. Shabnam was married to Mohd. Shafiq on 02-11-1991. She was married by her father because she was a minor at the time of Nikah aged 14 years. She filed a suit for dissolution of marriage under Section 2(vii) of Dissolution of Muslim Marriages Act, 1939 on the ground that she was being married by her father before she attained the age of 15 years which was repudiated by her before attaining the age of eighteen years. She disclosed her date of birth as 15-3-1978. It was further averred that the marriage of the plaintiff was never consummated with the defendant.
The defendants denied that at the time of Nikah she (Shabnam) was 14 years i.e., on 2-11-1991. It was said that she was the age of 16 years (dated 15-3-1975) according to pro forma filled by Shahar Qazi Shri Abid Ali. But, thereafter the father of the plaintiff managed to change the date of birth by producing false affidavits before the District Education Officer. It was also contended that the marriage was consummated between them after Nikah and the defendants have filed for the restoration of conjugal rights before Bikaner Family Court.
This is the plaintiff’s appeal under Section 19 of the Family Courts Act against the judgment dated 27- 7-1996 whereby the Judge, Family Court, Jodhpur dismissed the appellant’s petition for dissolution of marriage.

ISSUES FRAMED:

1. Whether the marriage of the petitioner was solemnized before she attained 15 years of age and she repudiated the same before attaining her 18 years of age?
2. Whether the petitioner ever discharged her conjugal duties after her marriage?

RULE OF LAW:

• Section 2 of Dissolution of Muslim Marriage Act, 1939
• The Evidence Act, 1872

OBSERVATION:

Section 2 of the Dissolution of Muslim Marriage Act, 1939 provides the grounds of divorce of Muslim Marriages. Sub-section (vii) reads as follows:
“(vii) that she, having been given in marriage by her father or another guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years: Provided that the marriage has not been consummated;”

In Muslim law, Marriage is considered as in the nature of the Contract. In the case of a minor, in Muslim law, married before attaining the age of puberty i.e., 15 years can always repudiate or ratify the contract made by her father during the minority after the attainment of puberty. The minor on attaining puberty may apply to the Court for dissolution of marriage on the ground as mentioned under Section 2 of the Act of 1939 but she has to establish that the marriage is not consummated. The Kerala High Court has held that even after there was any cohabitation before she had attained puberty, it would not affect her right to repudiate the marriage which right she gets only after attaining puberty. The cohabitation by a minor girl would not be sufficient to put an end to her right to repudiate the marriage after attaining puberty.
Further, the plaintiff produced many certificates regarding her date of birth (15-3-1978) i.e., secondary school certificate, date of the birth certificate issued by Municipal Council, marriage certificate, etc.
Defendant has produced as many as 50 documents. All the documents are nothing but certificates obtained from different schools to show the date of birth of the plaintiff.
The court observed that there is also no reason to disbelieve the birth certificate issued by the Municipal Council. The certificate issued by the Municipal Council with respect to the date of birth of a person is a public document under the provisions of Sections 35 and 77 of the Evidence Act. “A certificate of birth of a person is evidence and conclusive evidence of his age unless disproved by the evidence of the witness of the party denying the correctness of it.”
The opinion of the court was that Birth and Death certificate are statutory certificates and birth certificate issued by Municipal Council is presumed to be correct unless any contravention arises. As regards the issue of the consummation of the marriage, the court observed that the best witness available is the plaintiff herself. She has stated in terms that marriage was never consummated. Even if the version of the defendant that after the marriage on 2-11-1991, the plaintiff stayed with him and the marriage was consummated, is accepted the plaintiff’s date of birth being held to be 15-3- 1978, on that date she was a minor. She attained the age of puberty on 15-3-1993. There is no evidence worth the name to show that marriage was consummated after she attained the age of puberty. The court has the opinion that the consent to intercourse by a girl who had not attained puberty is not of any consequence.

JUDGEMENT:

The High Court confirms that the evidence produced on the record fully satisfies the essential ingredient of sub-section (vii) of Section 2 of Dissolution of Muslim Marriage Act, 1939. The Order of Family Court, Jodhpur set aside and marriage between plaintiff and defendant is dissolved.

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ASGARALI PRADHANIA V. EMPEROR AIR 1933 CAL 893, 21st JULY 1933

MATERIAL FACTS

The complainant was divorced by mutual consent and then lived in the house of her father. The appellant was the complainant’s neighbor and had good terms with the father of the complainant. The appellant, who was a married man with a family, used to give the complainant gifts and indulged in sexual intercourse with a promise to marry the complainant. The complainant became pregnant and begged him to fulfill the vow, but he relented and said she should take medication to make a miscarriage happen.
One night, to trigger miscarriage, the appellant gave her a paper packet containing copper-sulphate powder and a half-full bottle of red-colored liquid. The complainant spat it out by finding the powder salty and powerful and did not even try the liquid. The next night the accused came back and found that she hadn’t either taken the powder or the liquid, he pressured her to take them, but she declined. The Appellant then forced the complainant to consume the same thing. However, the complainant began to scream and so the appellant fled.

ISSUE

Whether the appellant was liable for the ‘attempt’ to cause a miscarriage to the complainant?

ARGUMENTS ON BEHALF OF THE APPELLANT

The appellant contended that the complainant, was an accomplice herself and that her evidence was not substantiated, that she wanted to get the uterus empty in order to destroy the fetus but she was afraid of the ramifications of the process to herself.
Referring to medical evidence, copper sulphate has no direct effect on the uterus and is not detrimental unless ingested in extremely large amounts, and thus, neither the liquid nor the powder is capable of inducing a miscarriage, the appellant cannot be accused of any attempt to do so. The appellant administered a harmless drug to induce miscarriage as the evidence stands. Thus, it would not be an act of inducing a miscarriage in the execution of the offense.

Moreover, in R v. McPherson (1857) the accused was vindicated from the attempt because of the uncertainty of an incident due to external interference. It was merely a preparation-case and should not be considered as an ‘attempt.’ In R. V. Cheeseman (1862) it was held that preparation and attempt were two distinct stages and external interruption doesn’t absolve. In addition, in Empress v. Mt. Rupsir Panku (1895), it was held that Act to the commission of offense should be an act that is strong enough to engender the intended outcome. Unless the act isn’t having the required potent, then it’s not enough to be an attempt.

ARGUMENTS ON BEHALF OF THE COMPLAINANT

The complainant argued that the appellant attempted to cause miscarriage with an intent to destroy the fetus by advertently bringing to her abortion-inducing substances, the copper- sulphate powder, and the red-colored liquid to the complainant and forcing her to consume them to commit the crime of miscarriage, which forms a part of series of acts which would have constituted its actual commission if he were not interrupted by the complainant. Had the appellant not been prevented, it would have resulted in the full consummation of the act attempted. Consequently, the intention followed by the preparation, followed by any act toward the commission of the offense “is sufficient” to constitute an attempt of the offense.
The conclusion in the cases of McPherson (1857) and Collins (1864) 33 LJM C 177 is completely incompatible with the examples in Section 511. One who assumes that a certain state of fact exists commits or omits an act in which, if that state in fact existed, it would be an effort to commit an offense, tries to commit that crime, even if its execution in the manner suggested was unlikely at the time of the act or omission because of the non-existence of that state of fact would be enough to constitute as an attempt of the offense.

ANALYSIS

This case is an eye-opener because in common parlance the word ‘attempt’ is being used to describe an act of trying to do something. If we go with this definition, then this case would be an open and shut case. However, in legal terms, under section 511 of the Indian Penal Code, the word attempt is not merely trying to do something but it shall be preceded by intention and preparation without any interruption. Here not only the commission of the offense is important, but that commission should be without any interruption or intervention.
Moreover, Intention alone or Mens Rea alone, or intention followed by preparation, is not sufficient to constitute an attempt. Yet, intention followed by preparation followed by any “act done towards the execution of the offense” is sufficient. Readers should also throw light upon the word “sufficient” which played a very important role in this case. Had the quantity of the powder or liquid not been insufficient, the appellant would not have been acquitted. As the quantities of the liquid or powder were inadequate and harmless, unless ingested in extremely large amounts, they were incapable of rendering a miscarriage which discharged the accused from conviction.
Any act is indictable as an attempt to commit an offense when it is a move towards the implementation of the criminal intent and is an act that is actively linked to, or closely related to, the commission of the crime that the person doing so is contemplating. There must be an intentional act knowingly committed against the execution of some offense, one or more of a series of acts that would establish the crime if the perpetrator were not stopped by interference or physical failure, or unable to accomplish his criminal intent for any other reason.
In this case, the focal point was whether the actions depended upon constituting the attempt, were carried out with the intention of committing the complete offense and as one or more of a series of acts or omissions constituting some of the essential steps to complete the offense, although falling short of completion by the intercession of causes outside the accused’s volition, or because the accused of his own free will for some reason other than mere dubiousness has refrained from completing his criminal purpose.

CONCLUSION

On the facts mentioned in this case, the appellant cannot be charged with an attempt to cause a miscarriage for the reasons already given, in law.
What the appellant did was not an “act to commit the offense” of inducing a miscarriage. Without being harmful, either the liquid or the powder, they could not have induced a miscarriage. The failure of the appellant was not due to a cause which was independent of itself. The conviction and sentence were therefore set aside, and the appellant was acquitted.

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INTRODUCTION

Evidence in law can be described as a material fact presented before the court in order to support all the contentions and submissions made during a proceeding. Thus, the evidence is something that helps to prove the parties their alleged fact. In a court of law, a judge’s decision in a certain matter will always depend on the legitimate evidence presented in order to ascertain the truth.
Under the Indian Evidence Act, 1872, Sections 61 to 65 deals with the procedure to prove the contents of the documents. These contents of a document can be proved through primary evidence or by secondary evidence. Section 62 of the Act explains when the original document itself is presented in court it is called the primary evidence and section 63 explains if the original document in itself is not presented in the Court the party can provide secondary evidence by fulfilling the conditions under section 65 of the Act.

ELECTRONIC EVIDENCE UNDER INDIAN EVIDENCE ACT

With the increasing contribution of electronic devices in our lives, digital evidence can prove to be an essential part of verifying the truth in the given fact. After the formation of the Information Technology Act, 2000, Section 65A and 65B has been added in the Indian Evidence Act which laid down special provisions as to evidence relating to an electronic record. According to IT Act 2000, ‘electronic record’ means data, record, image, or sound stored, received, or sent in an electronic form. Section 65B of the Indian Evidence Act talks about the procedure regarding the admissibility of electronic records and sub-section 4 of Section 65B talks about the condition of obtaining a certificate before presenting such electronic records. These conditions had led to conflicting opinions among the judgments of the Apex Court.
Section 65B says- “Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.” But further, sub-section (4) of the same demands for a certificate if it is desired to give a statement of evidence by virtue of this section. Thus, the requirement of a certificate under section 65B arose a legal conundrum which was finally resolved by the Honorable Supreme Court in a landmark judgment of 3 Judge Bench comprising Justice R.F. Nariman, S. Ravindra Bhat and V. Ramasubramanian in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal, 2020 SCC Online SC 571.

CERTIFICATE UNDER SECTION 65B IS A PRE-REQUISITE CONDITION

In the above-given case, the appellant filed an appeal, against the judgment of the High Court before the Apex Court. The High Court accepted an important piece of evidence depend upon the petitioners in challenging the election, which was a video recording on a CD (Compact Disc). However, this electronic evidence was produced without the submission of a certificate under Section 65B (4) of the Evidence Act. The Officers who produced the CD were unable to get the certificate even after their persistent efforts. Further, the High Court held that the testimonial evidence during the cross-examination of the Officer satisfies the requirement of Section65B (4) of the Act as the oral evidence. Thus, the appellant in a Special Leave Petition before the Supreme Court challenged the decision of the High Court on the grounds that the electronic record (CD) which was presented as important evidence was admitted without the certificate under Section 65B (4) of the Evidence Act and the oral evidence admitted in place of written certificate is in contravention with the Evidence Act. The Appellant cited the Supreme Court case of Anvar P.V. v. P.K. Basheer & Ors, 2014 10 SCC 473 which contradicts the judgment of the present case.
The respondent in its contention in the above case presented that the Officials who produced the CDs were unable to submit the certificate despite their appropriate efforts. The oral evidence of the witness which was reduced to writing and later signed by the witness suffices the need of Section 65B (4) of the Evidence Act. The Respondent cited the case of Shafhi Mohammad vs. State of Himachal Pradesh, 2018 2 SCC 801 which held that the impossibility or difficulty to produce a certificate shall not hinder the interest of justice. It also contended that the case of Anvar P.V v. P.K. Basheer is only applicable in the case where the party is in a position to procure the certificate.
The intervenors in the appeal also contended that Section65B of the Evidence Act does not specify the stage at which the certificate under Section 65B (4) of the Act must be produced, hence the same may be produced at any stage of the proceedings.

The main issues raised here were

1. Whether the requirement of a certificate as per Section 65B (4) is a pre-requisite before producing secondary evidence as a document/primary evidence?
2. At what stage of the proceedings the certificate can be produced before the court?

The Supreme Court observed the conflicting views of the judgments delivered in Anvar’s case and Shafti Mohammad’s case and finally cleared the air in the present case. The Court answered the issues raised and held that it is mandatory to produce a certificate as per Section 65B (4) before producing secondary evidence as upheld in Anvar’s case. In absence of a certificate, the electronic evidence is inadmissible in Court. The Apex Court whilst reconsidering the Shafti Mohammad’s case overruled its judgment and referred to the following Latin maxim Generalia specialibus non derogant meaning, a special law will always prevail over the general law.
The Supreme Court also held that the certificate should be produced at the time of filing the document. However, if it could not be produced at that stage, it may be permitted to be produced later provided that such late production of the certificate should not prejudice the rights of the accused.

IMPORTANCE OF THE CERTIFICATE UNDER SECTION 65B OF EVIDENCE ACT

As per the judgment in the case of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal, The Apex Court clarified certain points –
• The Court quietus the legal conundrum related to the requirement of a certificate to admit electronic evidence under the Indian Evidence Act, 1872 and held that it is condition precedent before admitting any electronic evidence.
• The Court overruled the judgment of the Shafti Mohammad case which said that production of a certificate can be set aside if there is impossibility or difficulty to produce the same and upheld the judgment given in the case of Anvar case.
• Electronic records may be called original or primary evidence if they are stored in the device itself and the copies made therefrom, of the said evidence will be called secondary evidence. Thus, the production of the certificate under Section 65B (4) is not necessary in the former case as the original record is itself produced. This can be done if the party by producing a laptop, tablet, or mobile phone can prove that the concerned device on which, the information is stored, is owned and operated by the party himself. However, the same cannot be done if the concerned device cannot be physically brought in the court for instance a computer, and therefore, to prove the contents of this device a certificate to prove its authenticity is necessary, under section 65B (1) read with Section 65B (4). The same is clarified in the judgment of the Anvar case which reads as- “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” may more appropriately be read without the words “under Section 62 of the Evidence Act”.
• In the case where it is difficult to obtain a document, the Court can, by various statutory provisions such as- Section 165 of the Act which empowers a judge to order the production of any document or records, in order to obtain proof of relevant facts or under Order XVI of the Civil Procedure Code, 1908 which deals with ‘Summoning and Attendance of witnesses’ or under sections 91 and 349 of the Code of Criminal Procedure,1973.
• Further, when the application of the certificate is already requested, to the concerned authority, but the authority does not comply with the request, the party may ask the Court to direct the said authority to produce the certificate. However, if the party has explored all the ways in the law of producing the evidence, but still unable to procure the certificate, the court may excuse the requirement.
• The Court also cleared out that section65B (1) clarifies that admissibility of electronic records must be proved by following the conditions mentioned under section 65B as it is a special provision and section 62 to 65 which deals with non-electronic records are irrelevant as a special law will always prevail over the general law.

CONCLUSION

Electronic records, in this digital time, is a reliable source of evidence, but at the same time, it is more prone to tampering, alteration, substitution, or elimination. Therefore, the Courts are adamant about the submission of a certificate under Section 65B in order to avoid failure of justice and to maintain legitimacy. Thus, the certificate submitted must accompany the electronic record when presented as evidence as upheld in the Arjun Panditrao Khotkar case and if these guidelines are implemented efficiently, they will improve the investigation and evidence proceedings.

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HISTORY OF BAIL  

Bail is an instrument to guarantee the appearance of the accused person at trial or to make sure the reliability of the procedure by preventing from manipulation of the evidence or with the witness.  Bail can be referred to as discharge from the custody.

In the case of Moti Ram v. State of Madhya Pradesh[1] the SC elucidated the expression bail it comprises of both personal bond and it also includes with sureties, even after the broadened ambit of the term it refers to the release of the person on the basis of monetary terms either by the promise of a person or a promise made by the third party. 

In the 399 BC, were existed, Socrates and Plato. Plato was the person who tried to make a certain bond with the church, as Socrates was held accused, he tried to release him. As during the British time, it was the circuit court structural system in which the accused had to wait for their trial for months in the unhygienic and awful conditions. Different kinds of disease were spreading in the custody because of the unhygienic area which resulted in compelling the government to release the accused in return of some surety[2] which would be renounced in case of non-availability.       

During the thirteenth century, the sheriff had sovereign authority to release or suspect. The sheriff had the authority to apply any standard or any aspect while deciding to grant a believer of bail. This unguided power was not always wisely used which would often result in abuse of the bail agenda. The essential required for a bail to be qualified would be adjudged from the statute of Westminster. In any case, the statue could be considered as a general idea to bail.

The report of a network of civil society organization and another report by the law minister, 2010 states that approximately three lakhs prisoners are under trial prisoners who are left in the jail as a sack of vegetable left there to be decomposed.  And even the prisoners are in the jail after completion of the arranged minimum sentence in the statute for which they were punished. The main intention behind the detention of the person is to ensure the appearance of the person at the time of the proceedings of the trial and in the case where he is found guilty should be held liable for the consequences.

CONCEPT OF BAIL

The code specifies for all the offences as “bailable” and “non-bailable offences”. “Bailable offence” has been defined in section 2(a) of the code which signifies the offences which have been listed in the First Schedule or for the time being it is made bailable in any other law.

“Non-Bailable offence” the offences for which the code has not mentioned whether to be considered bailable or non-bailable from the offences provided in First Schedule. The offences for which the punishment is for imprisonment with 3 years or more can be defined as non-bailable offences as the gravity of the offence id more as compared to the offences provided under the First schedule.

In the case of Kamalapati Trivedi v. State of West Bengal[3], the Supreme Court it is derived as the process of amalgamation of two main concepts of human sentiment as the right of the person in enjoying his freedom and without underlying the public interest. The condition for the same is that the accused would be present at the trial of the suit.

GENERAL PRINCIPLE REGARDING BAIL LAW

1. Grant of bail in the cases of bailable offences is a right which should be guaranteed to the accused by the magistrate or police.
2. Grant of bail in non-bailable offences is a judicial discretion given to the magistrate and no power is given to the police in these kinds of cases. 
3. The accused who has committed the offence which is punishable by death or imprisonment for life the magistrate has no right to grant bail in those circumstances, but women, a person sick or infirm and children below the age of 16 are excused from the rule.
4. The judicial discretion in the cases of bail the appellant court has the massive authority.

The section which provides for grant of bail is under Chapter XXXIII in the section 436-450 of the code, these can also further be classified as “cognizable” and “non-cognizable” offences.

The word cognizable offence can be referred as the offences which can be investigated by the police with the prior permission of the magistrate and under non-cognizable offences the police has no authority to investigate upon the same without the prior permission of the court.

BAILABLE OFFENCES

The 78^th report of the law commissioner[4] has provided that the law of bail has been established on the provided standard

• The bail can be considered as the right of the person in the cases of bailable offences,
• In the cases of non-bailable cases, the right is on the discretion of the Magistrate,
• In the cases of the offence committed is punished with death or life imprisonment the bail cannot be granted, and
• The appellant court is vested with an enormous power to grant bail even on the cases in which the offence committed is punished for death or life imprisonment.

The section 50, 56 and 57 of CrPC should be read cordially for the bailable offences. When read tighter there raises a question of constitutional validity of Article 22 of the constitution, where it is assured that the accused person would be informed of the grounds and the nature for the arrest so made.[5]

A moderately time is reasonable for the conducting of interrogation and for the other procedure as the recording of the statement, and also the recording of the statements and the fingerprint[6].  To obtain the remand of the arrest of the person is not available to the bailable offences as given under section 167 of the code.[7]

Any person who has arrested the offence constituted as a bailable offence the accused is providing for bail should be released as it is mandatory in nature, and anything cannot restrict the Section 436 of CrPC[8].  The only authority which is vested to the police is to release the accused from the custody either on the personal bonds or under securities.

Whereas in the cases where the accused fails to provide for the bail has the right to be produced before the magistrate in 24 hours of the person taken in custody and it has been well depicted under the Section 57 of the Code. After producing the accused person in front of the magistrate and if the accused in front of the magistrate wants to bail the magistrate must freely the accused the only authority provided is that the magistrate can release the accused person either on the personal bonds or in the surety of the person.

In the case of Rasiklal v. Kishore s/o Khanchand Wadhwani[9], the SC opined that the language of section 436 clearly provides that bail to the accused in the cases of bailable offences is an unconditional right and secured right and the magistrate cannot apply any discretion on the same the person should be immediately released after the bail has been granted.

Section 436 of the code can be applied to every individual other than the cases of non-bailable offences.

Under section 436 of the code, it provides for bailable offences and states that every person who is not accused of a non-bailable offence has the right to be granted a bail once provided for the same, but in the cases where the security proceedings of the bail have been started the person cannot claim the same.

SCOPE OF THE SECTION

The magistrate when granting bail in the cases of bailable offences should discharge his duties judicially, keeping away all the extra-judicial favours as the person accused of the offence of bailable offences has the right to profess bail.

The contention of the seriousness of the offence committed cannot be a valid ground for refusal of the bail application. The choices which is provided to the court in the cases of the bail is identifying the accused person or to release the person on some kind of security of surety.  

The magistrate while granting the bail as provided under section 436 of the code cannot lay a condition stating that the person should be present before the officers of police such a conditions placed by the magistrate cannot be said to be proper conditions. 

Grant of bail is a right which is provided to every accused of bailable offence and cannot be constituted as a favour given to the accused.  While fixing the amount for granting of bail should be made on the social value of the person. The option of refusing of granting a bail to a person as long as provided for surety and security doesn’t lie in hands of the police officer[10] 

The section 436 is not only restricted to the person accused for the bailable offence but it is also applicable in the Chapter of VII except in those cases where the provisions which have been expressly excluded by the statute.    

CONDITION FOR GRANTING BAIL

Three conditions for the granting of bail have been laid down in the case of State v. Baswanath Rao.[11]–

1. The person seeking for bail is charged for the offence of bailable offence and granting of bail can be considered as a right of the person seeking for bail.
2. The accused person appeared or has been presented before the court or the accused person was arrested without the warrant by the police officer-in-charge and;
3. The accused has arranged to be granted a bail at any time during his presence in the custody, or the court can grant the same at any stage of the suit. 

THE PROVISION OF THE SECTION IS OBLIGATORY IN NATURE

It is clear from the language of the section it can be constituted as the accused person appeared or has been presented before the court or the accused person was arrested without the warrant by the police officer-in-charge can be granted bail at stage in the time of the suit. The section is compulsory and the discretionary power is not granted to the police officer or the court.

If the accused person is arrested for an offence of bailable offence he should be produced before the within 24 hours magistrate[12] who has the jurisdiction to hear the matter and if in the case where the person before being produced in front of magistrate produced for the bail has been granted and should be released from the custody.

An arrest made without the warrant of the accused cannot be held in the police custody for more than 24 hours, if the police think fit that the person should be detained in the custody he can do the same but with the prior special order by the magistrate which is provided under section 167 of the Code.

THE ESSENTIAL REQUIREMENTS FOR SECTION 167 ARE

As per section 167(2), it provides for the time period of the detention of the accused person in the custody of the police shouldn’t surpass the time which the magistrate can authorize:

1. Where the offence is punishable with death or imprisonment not less than 10 years or imprisonment for life, the detention cannot exceed 90 days.
2. When the enquiry relates to some other subject matter it shouldn’t exceed the period of 60 days.

The accused can be released on bail if he is ready to furnish the bail after the period of ninety or sixty days.  If the accused is kept beyond the time period the detention of the person would not be considered as an illegal, the magistrate has the authority to authorize the detention of the person beyond the mentioned time and if the person produces bail during the expiry of the period has the right to be released.

In section 436 it provides that the accused has the right to go for bail and under the section 50(2) it is the obligation on the police officer to make the accused aware that he has the right to avail the right of bail and once the accused can produce the bail bond has he freed from the custody.   

NON – BAILABLE OFFENSES  

The offence of non-bailable offence is provided and id dealt by section 437 of the code, the cases of where the offence is a non-bailable offence is a matter of prudence. When the discretions are made it is applied by the court of justice and is provided and channelled by the supervised by the law.

It should not be indistinguishable and absurdity but instead should be made with great caution and should be a rule and the decision so made should be arbitrarily made and should always be lawful and regular. Certain rules and regulation are been formed for by the court and the judicial bench and these are to be considered while granting of the same bail:

1. The vastness of allegation;
2. The description of the indictment;
3. The type of evidence to support the same allegation;
4. The social status of the victim as compared to the accused;
5. The kind and severity of the situation in with the alleged crime is committed;
6. The fear that the witness would be tamper;
7. The person who is already facing guilt, the likelihood of committing the offence more crimes;
8. The chance of the person to arrange his defence and to approach counsel of his own;
9. The age the sex of the person and the health of the same[13].

WHEN BAIL CAN BE GRANTED IN CASES OF NON-BAILABLE OFFENCES

The accused person appeared or has been presented before the court other then the High Court and session court or the accused person was arrested without the warrant by the police officer-in-charge he may be released in bail, nut the condition for the same are-

1. If the grounds are there which tend to suspect that the person has committed a offence which is punishable with the death sentence or of life imprisonment;
2. A person of a bad character who has earlier convicted of a offence punishable of death sentence or of imprisonment for 7 years and a life imprisonment and if the offence is a cognizable offence punishable with custody of the person for more than three years and more but cannot be less than seven years, the person shall be granted bail

The person may be unconfined if the person same as the above can be free on bail if the person who has committed the same is a child under the age of sixteen years and the same applies for a person sick and would be suffering infirmity.

If after the investigation it is believed that the accused has committed the non-bailable offences and there is a scope for investigation on the same to determine his guilt the accused can be subjected to section 446 A of the code and during the pendency of the inquiry he can also be released on bail and the court can also have discretions for the granting bail to the accused after providing for the surety and the security for him to appear in the court later.

UNDER THE AGE OF SIXTEEN

A juvenile can be defined as the child who has not yet crossed the age of 16years and it has been provided in the JJ ACT, 2000.

The children below the age of 16years are presented before the JC and their bail is regulated under the provision of section 12 of the act.

BAIL OF A CHILD BELOW THE AGE OF 16 YEARS : SECTION 12

When a juvenile commits an offence which is a bailable or non-bailable offence, if arrested and is presented in the board such a person would not endure anything which has been provided under the code or any law which provides for the same, the accused would be released except in the case where there is a suspicion that the release would likely to involve the minor in criminal association or would affect and make him prone to the physical and psychological arms and the release of the accused would defeat the purpose of justice in the society.

The child who cannot get a bail should be kept in the observation home or may be sent to a safe place during the period of the investigation which would be specified in an order by the officials of the police station till the period the person is not presented before the board. 

For the determination of the age of the accused, it would be considered on the date on which the accused is presented in front of the JC.[14]

The SC held in the case of Sheela Barse v. Union of India,[15] held

‘For developing the personality of the child the child should not be kept in the jail it could adversely affect the life of the child by making him an enemy to the society as the children are considered as a national asset and it becomes obligatory to the state to look after the child and take proper actions which would serve public welfare’

WOMAN

The language of 437 of the code implies that the word ‘may’ should be read as ‘must’ and ‘shall’  which implies that the court is under pressure to release the accused person which can include the women on bail[16].

Looking at the disgraceful position of the women in the Indian society the provision was added in section 437 of the code to take avoiding action to keep the women away from the custody, it is obligatory to release the women who are in the custody even if it is believed that the women is guilty of the offence which is punishable with death or life imprisonment[17]. There is congenial understanding in section 437 in releasing the women in bail which is an obligatory[18].

The purdanashin women[19] are allowed to the personal attendance[20], section 205 and 273 of the code provide for the exemption of a person from personally attending the court. The women should not be asked to attend the court unless the reason to attend is of grave importance and should be taken discretionally taking in view the present social status[21]. If a woman is sentenced for death and later found to be pregnant the court shall delay the punishment and even if thinks that it would be okay to decrees the sentence to life imprisonment[22]. 

SICKNESS AND INFIRM

Sickness can be defined as the harm which would result in risk in life with danger to the life of the accused person.[23] Sickness can be a ground for the release of the person under bail as provided under section 437(1) of the provision,[24] the nature of the sickness should be such that if not released the person from the custody the person cannot be properly treated and the consequence of the same would affect the life of the accused.

Infirmity can be defined as physically weak and which happens mostly due to age.[25]

JJ ACT – juvenile justice act

JC- Juvenile court

[1] AIR 1978 SC 1594. 

[2] Sunil Fulchand Shah v. Union of India, AIR 2000 SC 1023 

[3] Kamalapati Trivedi v. State of West Bengal, AIR 1979 SC 777

[4] 78th Report by Eighth of Law Commission of India, Congestion of Under Trial Persons in Jail, 1979. 

[5] Pravin Kumar Chandrakant Vyas v. State, 2001 (3) GLR 2755. 

[6] ibid

[7] State through C.B.I v. Dawood Ibrahim Kaskar (2000) 10 SCC 438. 

[8] Santh Prakash v. Bhagwandas Sahni, 1969 MLW (Cri) 88. 

[9] AIR 2009 SC 1341 

[10] Dharma V. Rabindranath, 1978 Cr. LJ 864 (Ori).

[11] AIR 1966 Mys 71; 1966 Cr. LJ 267.

[12] Section 57, Criminal Procedure Code 1973

[13] Gurucharan Singh vs State of Delhi (Administration), AIR 1978 SC 179.

[14] Armit Das v. State of Bihar, 1975 Cri. LJ 1348.

[16] State of U.P. vs Joginder Singh, AIR 1963 SC 1618.

[17] State vs Harbansal, 1975 Cri. LJ 1705 (JK).

[18] Smt. Sundar vs State of Rajasthan, 1990 Cri. LJ (Rajasthan) 92.

[19] Rajyalakshmi vs State (1951) 46 C.W.N. 221 Ref. in SC Sarkar, or “Criminal

Procedure” Edi 8th, 2004, Indian Law House, Delhi, p.735.

[20] Sushila Devi vs Sharada Devi, 1961, Cri. LJ 819.

[21] M.J. Marjina Begum and others v. Matakhal Ali, 1978 Cri.LJ No. C 292 (Gan).

[22] Section 416 of Cr.PC, 1973.

[23] State vs Sardool Singh, 1975 Cri.LJ 1348.

[24] State vs Gadadhar Baral, 1989 Cri.LJ.627 (Ori).

[25] K.N. Bayan vs State of Gujarat, 1982 Cri.LJ 2109

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Kuldip Singh and Anr vs the State of Punjab

Facts:

Paramjit Kaur, wife of the appellant was found hanging at her in-law’s place. Kuldip Singh, who is the husband of the deceased along with his parents, was charged for the offense of dowry death and put under rigorous imprisonment for 10 years. The medical reports revealed that the death of the deceased was caused by the intake of aluminum phosphide. The complainant, Naranjan Das, father of the deceased, had filed an appeal for a criminal revision, aggrieved by the decision of which the respondents’ moved to the High Court seeking relief.

Issues:

Whether the accused are guilty of dowry death and if the criminal revision appeal of the respondent should be considered?

Legal provisions:

● Section 304B, IPC – Dowry Death
● Section 498A, IPC -Husband or relative of husband of a woman subjecting her to cruelty
● Section 313, CrPc -Causing miscarriage without woman’s consent
● Section 113B, The Indian Evidence Act,1872 -Presumption as to dowry death

Appellant’s Contention:

It was contented by the appellant that his wife was going through depression and submitted that he had earlier demanded Rs.1,000/- and Rs.5,000/- when he was leaving for abroad, but he had returned all at once. After returning from abroad he never approached his father-in-law for money. The deceased was never subjected to any cruelty or maltreatment by him or his parents; he claimed to have cordial relations with the family of the deceased. The Trial court had overlooked the circumstances and provisions arising in dowry death.

Respondent’s Contention:

The complainant stated that his daughter had complained of the mistreatment by her in-laws on account of getting an insufficient dowry, which is enough to prove that her in-laws and her husband are responsible for the incident.

Observations of the court:

It was observed by the court that a case that had been filed around 2 years before the marriage seems to be coinciding with the present case and therefore, this case is being treated under dowry death. However, there was no harassment or cruelty soon before the passing of the deceased. It is the duty of the investigator to draw observations impartially; he should have carefully examined the statement proposed by Naranjan Das. There is also no evidence to prove that the accused had instigated her to take such steps. All the ingredients do not lie in this case.

Judgment:

The court was of the view that a suicide case was simply illustrated as dowry death. It is important to know that the death of a wife within 7 years of marriage doesn’t always amount to dowry death, it can occur due to other reasons as well. Hence, the accused are acquitted.

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SANJAY RAJAK V. THE STATE OF BIHAR

INTRODUCTION:

The instant case is an appeal made by the appellant Sanjay Rajak in the Hon’ble Supreme Court against the decision of the High Court. The appellant questions his conviction under Section 364 A of the Indian Penal Code (IPC), 1860 i.e. the offense of kidnapping for the purpose of obtaining a ransom having punishment of either death punishment or life imprisonment and fine as well. A child of about 5 or 6 years was kidnapped after school by the appellant and his co-accused, Balram. Balram had been acquitted by the High Court and thereby acquitting the appellant of the charges of criminal conspiracy under Section 120-B of IPC. But as the appellant had not been acquitted of any other charges and has been convicted for the punishment of rigorous imprisonment for life, he has moved this appeal to the Supreme Court.

FACTS:

The victim in the following case is a child of about 5-6 years old. He is a school-going boy and was kidnapped from the school by the co-accused Balram who also made the ransom calls to his parents. There have been various witnesses in the case that have given statements against the accused and the co-accused. The only bone of contention was that no body of the child had been recovered and the case of the appellant is based on this sole fact, stating that since there has been a failure to recover the dead body it leaves open space for doubt regarding that whether any incident of kidnapping had even occurred or not.

ISSUES:

The issue in the above case is that can the case be dismissed on the basis of a missing ‘corpus delecti’ i.e. the body of the crime?

JUDGEMENT:

After analyzing all the facts, issues, and circumstances of the case the Court dismissed the appeal. The Hon’ble Supreme Court took the help of various precedents such as Rama Nand and Others vs. State of Himachal Pradesh, Sevaka Perumal and another vs. State of Tamil Nadu, Iqbal and another vs. State of Uttar Pradesh and Lohit Kaushal vs. the State of Haryana and reinstated the already decided principles in these previous cases that the ‘corpus delecti’ or the body of the crime is not the absolute necessity to prove the crime. If all the other facts and circumstances are proved in the court of law against the accused and the only thing missing is the body of the victim, the case cannot be closed altogether neither the accused can be set free. Hence, keeping in mind these precedents, the witnesses, and all the facts and circumstances of the case, the Court upheld the conviction of the appellant under Section 364 A of the IPC.

CONCLUSION:

The following case of Sanjay Rajak v. The State of Bihar reinstated the fact that the adherence to the doctrine of the old ‘body’ doctrine i.e. it is essential to have the body of the victim to establish crime should be done away with. This doctrine gives rise to a wide loophole through which the people who can destroy the body will roam free even after attempting heinous crimes. Hence, the body of the victim should not be treated as the sole and primary evidence and even if the body is not available or recoverable, if the other facts are sufficient to prove the crime, the accused should be convicted despite the missing corpus.

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Introduction

General Exceptions are the defenses provided to the accused which exculpates criminal liability. An accused can be prevented from criminal liability of any illegal act or omission (offense) done by him, which means there are some exceptions that can make an act or an omission non-criminal/non-offense.
Chapter IV section 76-106 contains such exceptions which are also known as general defenses. There was a need for altogether a different chapter as the limitations need not be given after every penal provision and to avoid repetition.
Section-6 of IPC states that definitions in the code to be understood subject to general exceptions, which means that every definition of an offense, every penal provision, and every illustration of those, shall be understood subject to the exceptions contained in the chapter “General Exceptions”.
The burden of proof to prove any of the exceptions is on the accused. If the accused is able to prove an exception then he/she will be exempted from the charges against him and criminal liability followed by it.
Also, according to Section 105 of the Indian Evidence Act, when a person is accused of any offense then the burden of proving the exception is on him.
Illustration- A kills B when he commits such offense A was involuntarily intoxicated, here the burden to prove intoxication as an exception is on A.
The general exception during police investigation sometimes is on police.

General Exceptions under IPC

This chapter consists of 31 sections which can be classified under following heads-

1. Mistake of fact(Section- 76,79)
2. Judicial Acts(Section-77,78)
3. Accident(Section-80)
4. Absence of criminal intent(81-86)
5. Acts done with consent(87-90)or without consent(92)
6. Trifling acts(95)
7. Private Defence(96-106)
   These exceptions are discussed in detail below-

Mistake of Fact

It is based on the maxim – IGNORANTIA FACTI DOTH EXCUSAT AND IGNORANTIA JURIS NON EXCUSAT, which means that ignorance of facts can be excused but ignorance of the law cannot be.
In Queen v Tolson (1889), A woman married another man as she believed that her first husband died, she was accused of Bigamy but it was held that she did believe that her husband was dead and she did not hide this from the other man. She was exempted from the charges of bigamy.
This exception is majorly based on two principles-
(i)a person is bound by law or (ii)he has a belief that he is bound by law.
An officer is bound by law to follow the orders of superior – police, military, etc.
In Chirangi vs state – A father killed his son, he did not intend to do so. He believed there was an animal. This was a mistake of fact.
When any act that is justified by law or the person doing so beliefs that it is justified by law will not amount to an offense.
Illustration- A, a policeman sees B has killed Z, he confines B but later it comes to his knowledge that B killed Z in self-defense. A will be exempted under section 79.
Section 76 talks about legal compulsion and section 79 is with regards to legal justification, the acts which are justified by law meaning a person is either bound by law or he is justified by law to do so.

Judicial Acts-

Nothing is an offense which is done by a judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. (Sec 77 IPC)
This section gives power to the judges acting in judicial capacity and protection as immunity to them from criminal proceedings under this exception. This is provided to widen the independence of the judiciary.
The act must have been done in discharge of his duty and within the jurisdiction, even if the judge beliefs in good faith that the act is in his jurisdiction he will be protected.
Section 78- Any act that is done in pursuance of a court order or which is warranted by a judgment or an order will not be an offense. Even if the court passed an order which does not fall under its jurisdiction but if believed in good faith that it does then the act so done in its pursuance will be exempted from criminal liability.

Accident

Nothing is an offense which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
This means that an act by a person is done without intention and he is doing it lawfully without intention to harm anybody.
Illustration- A while demolishing a building gives proper warning to the neighborhood and puts a proper sign but B gets hurt from the stone. Here, A was acting in a lawful manner and with caution. If A had not put up a sign then that would have been a case of negligence.
In Jageshwar v Emperor, the accused was beating a person, and to save the man his wife came with her child in hand, the child got hurt and died. This was not considered to be an accident because the accused was doing the unlawful act.

Absence of criminal intent

1. Necessity
2. Acts of a child(Incapability)
3. Insanity
4. Intoxication

Necessity

If an act is done with the knowledge that it can cause harm but without criminal intent and in good faith for preventing or avoiding harm to a person or property.
It is a question of fact as to gauge the nature of harm prevented.
Illustration: When there are two choices to save the life of one person and to save the lives of ten people, a person decides to save the lives of more people, this caused the death of that 1 person. (Knowledge was there but there was no criminal intention)
Case- In R v Dudley and Stephen, accused people in a ship killed a boy and ate him to save their own lives as no food was available to them. Court held that there is no right to kill someone, homicide cannot be justified. Self-defense and self-preservation, not absolute necessity

Acts of child

Section 82 clearly says that an act done by a child up to 7 years of age is not an offense – “Doli incapax”
Section 83 states qualified immunity (7-12yrs)
According to this section, a child between the age of 7 to 12 years, has not attained sufficient maturity to judge the nature and consequences of the act then he is immune from liability. His subsequent conduct and intention are noticed.

Insanity

This exception is for the person who at the time of doing an act is of unsound mind and is incapable of knowing the nature and consequences of the act, he is unaware that his act is unlawful.
In Madhukar G. Nigade v State of Maharashtra, the unsoundness of mind must be at the time of committing the offense.

Intoxication

A person at the time of committing the offense by reason of intoxication is incapable of knowing the nature of the act
Or that his act is wrong or illegal, contrary to the law can avail this exception PROVIDED that the toxic is administrated to him without his knowledge or against his will or forcefully.
Section 86 – This section states that Voluntary intoxication will only be exempted if he had the same knowledge as he would have if not intoxicated. This means that a person having criminal intentions will not get the benefit of this section unless intoxication is involuntary.

Consent

Volenti fit non-injuria, which means one who consents and had knowledge that something can happen cannot complain.
It is an exception under IPC. Section 87 gives exemption where consent is given in general but Section 88, 89, and 92 are the exceptions for the cases where the act is done in good faith for the benefit of the person who has given the consent, in doing such act if any harm is caused when there is no criminal liability intended.
Illustration: A and B decide to go to an amusement park as consenting adults, A got hurt but as he agreed to go there knowing that if something wrong happens he might get hurt. B is safe by virtue of section 87.
A is a doctor who performs surgery on his patient with his consent with having the knowledge that it may cause harm to the patient but for the benefit of his patient in good faith he performs surgery.
If a person is incapable of giving consent, then in good faith to save his life or for his benefit, an act can be done.

Communication

Any person who communicates information that causes harm to another but this act done by him is in good faith and for the benefit of the individual, then such an act is not an offense.
If a doctor tells his patient, he is going to die due to a particular disease, hearing this the patient dies out of a heart attack. It was the duty of the doctor to communicate such information and he did it in good faith.

Duress

Duress means any illegal act or omission done in compulsion, due to the threat of instant death. Reasonable apprehension must be caused and also the offense of murder and offense punishable by death is excluded.
Example: At gunpoint, a bank manager is compelled to open the locker of the bank and give away the public money.

Trifles

This is explained by “De minimis non-curat lex” which means that the law is not concerned about trifles. The harm is slight and no person of ordinary sense and temper would complain of such harm will not be an offense.

Private Defense

The constitution of India provides us with various rights and the Indian Penal code also has given a Right to private defense.
An act done in private defense is not an offense when it is done in order to protect a person or one’s property. It can also be used conditioned to unsound mind or intoxicated or infancy of the accused.
This right is to be exercised subject to certain restrictions such as against a public servant performing his duty, any person working under his direction, and when there is no danger of grievous harm and one can call for help from a public authority.
Illustration: A is attempting to enter your house, you have time to call the police then you cannot use this right but if you believe that it is too late and A has trespassed your property and your life is in grave danger then you can exercise this right.
Section 100 provides us with circumstances under which while exercising the right to private defense death of accused can be caused, they are as follows
(i) When there is a fear of death
(ii) When there is a fear of Grievous hurt
(iii) When there is a fear of rape
(iv) When there is a fear of assault
(v) When there is a fear of kidnapping or abducting
(vi) When there is a fear of wrongful confinement
(vi) When there is a fear of acid attack.
When there are other threats than this other harm then death can be caused. The right to private defense arises with the rise of sudden danger to a person or property, it is continued and can only be commenced till the time when sudden danger or threat is present as soon as threat ends right cannot be exercised.
Example: A is standing, B is coming at him to stab him with a knife. His right to defense is started and is continued till his life is in danger. Suddenly, C arrives and convinces B not to cause harm to A. Now, the right to private defense of A ends here as soon as B backs down.

Self-defense for protecting property:

In the following circumstances, one can cause death-
Robbery- with a sudden fear of death or grievous hurt or wrongful confinement, criminal trespass with same danger, mischief (mischief by fire), theft with imminent danger.
Any harm other than death can be caused when there is no imminent danger is present.
While exercising the right to private defense, if there is a chance of harming an innocent person, still the right can be exercised.
State of Orissa v Nirupama Panda- A man enters the house of a woman to rape her, that woman kills him. Under section 100 she is safe as she used her right to private defense.
Jaydev Singh v State of Punjab: Every person has this right and also it is the duty of the state to protect its citizen but in special circumstances, one can defend himself exercising this right.
State of Madhya Pradesh v Ramesh: Right to private defense is a defensive right and not a retributive right, it is not to be exercised by sudden provoking.

Conclusion

An accused if proved guilty must be liable for his offense and convicted with prescribed punishment. To prove the happening of an offense does not only mean actus rea but other factors are also involved to constitute a crime. Mens rea is an essential element of an offense. Certain acts are prevented to form a crime, certain persons are found incapable of performing a crime. Crime is not just an illegal act or omission, it includes a guilty mind, guilty intention, and guilty act. An act that does not fulfill these qualifications to constitute a crime then is exempted to become an offense and these exceptions are fairly given in the IPC itself as General Exceptions.

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JAGMAIL SINGH V. KARAMJIT SINGH

INTRODUCTION:

The above case is an appeal made to the Hon’ble Supreme Court against the judgment of the High Court of Punjab and Haryana. The case revolves around a Will dated 24/01/1989. The appellants preferred a suit for declaration that they were the real owners of a piece of land which has been transferred in favor of one Baldev Singh and Shamsher Singh on the basis of a forged Will made by them dated 20/03/1988. During the pendency of the aforesaid suit, an application under Section 65/66 of the Evidence Act was moved by the appellants seeking permission to prove a copy of Will dated 24/01/1989 by way of secondary evidence. The aforesaid application was allowed by the Trial Court, the respondents thus made an appeal in the High Court, and the High Court after due proceedings dismissed the application. Not satisfied with the judgment of the High Court, the appellants filed a revision petition in the High Court under the ambit of Article 227 of the Indian Constitution but finding no merit in the same, the High Court again upheld the decision that the pre-requisite condition for admission of secondary evidence, i.e. the existence of Will remained unestablished and hence they gave the judgment in favor of the respondents.

ISSUE:

Should the appellants be allowed to admit secondary evidence for proving their case in the absence of the primary evidence i.e. the original will?

JUDGEMENT:

The appellants contended that there is a provision under Section 65 of the Indian Evidence Act, 1872 which provides the grounds on the basis of which the secondary evidence can be produced before the Court of Law and by further serving a notice to the concerned party under Section 66 of the Indian Evidence Act, 1872 the party still not produces the primary evidence the party concerned is entitled to prove their case using the secondary evidence. Since in the present case both the conditions of Section 65 and 66 of the Indian Evidence Act are met, the High Court is at fault in giving a particular judgment, and hence the appeal is finally made to the Hon’ble Supreme Court.
The Supreme Court while deciding the matter took into consideration the witnesses through which it can be established that there existed the necessary foundations on the basis of which the appellants have a right to give secondary evidence and not giving them this opportunity is a fault on the part of the High Court. The Supreme Court was of the opinion that the High Court committed a grave error of law without properly evaluating the evidence and holding that the pre-requisite condition i.e., the existence of Will remained unestablished on record and thereby denied an opportunity to the appellants to produce secondary evidence.
Thus, the Court came to the final conclusion that the appellants would be entitled to lead secondary evidence in respect of the Will in question. But, at the same time, the mere admission of secondary evidence doesn’t attest to its authenticity, truthfulness, or genuineness and hence it will have to be established during the course of the trial in accordance with the law.

CONCLUSION:

This case pertains to the grounds on which the secondary evidence can be permitted in the Court of Law in the absence of the primary evidence. The provisions for which are provided under Section 65 of the Indian Evidence Act, 1872. Section 65 of the Act establishes the fact that secondary evidence may be given with regard to existence, condition, or the contents of a document when the original evidence is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished. If a particular party is able to prove the reason for non-presenting of primary evidence on any of the grounds under Section 65 and fulfills the procedural requirements under Section 66 of the Indian Evidence Act, the party can submit the secondary evidence in the Court of Law, the same is the situation in the present case and hence the appellants were permitted to produce secondary evidence.

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Introduction

“Confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”

– Justice Stephen (Digest of the Law of Evidence)

The most satisfactory evidence in a case is the confession made by the accused. The basic application of it rests on the truth and accuracy of the said confession. It comes out from a great sense of guilt. Confession can be the decision-makers in a trial. In the Indian Evidence Act, 1872 the confessions are not explicitly defined but it comes under the category of admission, the accused admits to his guilt. The confession of an accused cannot be taken as the sole reason for conviction, it should be corroborated with other evidence. However, in a few instances, a confession made by the accused may result in mistreatment of the subject, due to its high probative value. Under the Indian evidence act, Section 24 to Section 30 deals with “confession”. Under the Criminal Procedure Code, Section 164, 281, and 463 deals with confessions.

Types of confession

Judicial confession:

Confessions made before the court or a magistrate during the proceedings of the case. Section 164 of the Criminal Procedure Code empowers any metropolitan or judicial magistrate to record confessions even without considering the jurisdiction of the case. These are known as judicial confessions under Section 164 of the Criminal Procedure Code. This type of confession is defined as a plea of guilty on arrangement. The judicial confession empowers only the judiciary to record statements and the executive has no authority to record confessions. Section 80 of the Indian Evidence Act governs the evidentiary value of confessions. The confession should be voluntary and the accused has to be protected under Article 20(3) of the Indian Constitution which talks about “self-incrimination”.

Extra-judicial confession:

The confession which is not made before a court or magistrate comes under the category of extra-judicial confessions. These confessions are usually considered an informal confession. Confessions made should be voluntary and it should not be made because of fear or any inducement, threat, or promise. This confession can be made during a conversation to oneself and it can be proved as evidence against himself when it is overheard by another person. In Sahoo v. State of Uttar Pradesh, the accused after killing his daughter in law, on his way out from the house, he said that he finished her and her daily quarrels. This statement was held to be a confession that can be proved against him. It was held that the confession doesn’t need to be communicated to any definite individual.
Confessions can be made through letters also. This type of extra-judicial confession has credibility in the court to prove one’s guilt. The Supreme Court has given guidelines to check the credibility of extra-judicial confession. Extra-judicial confession is a weaker kind of evidence compare to judicial confession. High-level scrutiny is needed to examine such confession. The value of extra-judicial confession increases only if the statement is consistent and convincing that the accused can be proved against his confession. Independent corroborating evidence is needed to support the extra-judicial confession.

Retracted confession:

Any confession which is made voluntarily is taken back or revoked, then it is known as a retracted confession. The court has the power to decide the credibility of such a confession. It differs from each case because of the facts and circumstances. If the confession is proved, then it can be considered as a base for conviction. The retracted confession can be used as legal grounds for conviction only if the court satisfies that the confession is true and it is made voluntarily. But the retracted confession should be supported by corroborative evidence.

Section 24 of the Indian Evidence Act

The word confession first occurs in section 24 of the evidence act. Section 24 specifies that confession by an accused is induced by threat or promise will become irrelevant to criminal proceedings. If it appears to the court that the confession will result in the gain of some person who is in authority or it would avoid any evil of temporal nature, such confession is discarded from the case. The main elements of this section are
• The confession should be a result of inducement, threat, or promise.
• Such threat or inducement should flow from a person in authority.
• The confession should be related to the charge imposed on the accused.
• The confession made should either benefit a person or detriment to a person.
This section does not need proof of a threat to exclude a confession, it only needs a reasonable ground to believe that there was inducement or threat or fear interfering with the confession. If there is a reasonable doubt that threat or promise has been involved in the confession, then the burden of proof lies on the prosecution to prove that there was no such threat or promise. It is the right of the accused to be protected from such threat or inducement. Section 316 of the Criminal Procedure Code prohibits such threat or inducement towards the accused.

Section 25 of the Indian Evidence Act

Confession made before police cannot be used as evidence to prove against the accused of any offense. The confession before the police is usually considered an involuntary confession. If it is regarded as admissible, then the police would torture the accused to confess to the crime. Even if the accused has not committed the crime, he would be pressurized to confess due to the conduct of the police. So the court is restricted from using a confession before the police as grounds for conviction. The mere presence of police during the confession will not affect the voluntary nature. If confession is recorded before the magistrate and if police are present at the place will not be regarded as inadmissible.
Confession overheard by police is also admissible. But a secret agent of the police is appointed to receive the confession will destroy the validity of it. The only confession before the police is not taken as evidence but the mere saying of facts before the policy is taken into consideration. If an accusation is done after a person’s statement, then such confession also cannot be used against him. Only the non-confessional part of FIR can be used against the accused. If a confession is written by a person in a letter to the police, then it is admissible because the police were not present when he wrote the letter.

Section 26 of the Indian Evidence Act

Section 26 is an extension of section 25. Section 26 prohibits the confession made by the accused in police custody. But if there is a magistrate present during the confession, then it is admissible. The magistrate under section 26 should be exercising his powers mentioned under the Code of Criminal Procedure, 1882. The freedom of the accused and voluntary nature of confession is assured when the magistrate is present. A confession made before the village head (Pradhan) in police custody is also inadmissible. The Head of the village cannot be considered as a magistrate.

Section 27 of the Indian Evidence Act

Section 27 acts as a proviso to section 25 and 26. This section says that if a confession is supported with the discovery of any fact then it is considered as true, and such confession is admissible. If a fact is discovered as a result of the statements of the accused then the confession made by the accused can be taken to prove against him. Section 25 and 26 imposes a complete ban on confession before police, but section 27 acts as a proviso to these sections and it permits confessions that allow discovering facts in support of it. If an accused confesses due to the torture of police but facts are discovered after the statements, then it is admissible under section 27. A confession becomes admissible if it satisfies the provisions of section 27 even though it is prohibited under section 24 of the act.

Section 28 of the Indian Evidence Act

If the inducement, threat, or promise mentioned under section 24 is fully removed then such confession is admissible. It can be removed by intervention by a person in authority or by lapse of time. The burden of proving that the threat has been removed is on the prosecution.

Section 29 of the Indian Evidence Act

Section 29 of the act tells that confession cannot be held irrelevant in a few cases:
• By giving a confession statement in the promise of secrecy.
• By giving confession when the accused was drunk.
• By answering questions to which he is not bound to.
• No warning was given to the accused.
Confessions are admissible as per section 29, even though the accused was not warned before making it or was not bound to make it.

Section 30 of the Indian Evidence Act

When more than one person is jointly tried for the same offense, then the confession statement of one person bounds the other persons also. Such confession affects himself and other people who have jointly committed the offense. The word offense in this section includes abetment or attempt of an offense also. If A, B, C are jointly tried for the murder of D. Then if B gives a confessional statement that A, B, and C have done the offense jointly, then the confession affects all three persons. But confession of a co-accused cannot be taken as the “sole ground” for conviction of all the accused.

Conclusion

The confession has played a vital role in criminal law. It is a part of admission provisions in the evidence act. If confession is true and admissible in court, then it is considered satisfactory evidence to prove the guilt of the accused. Section 24 to 30 of the Evidence Act as elaborated in this paper covers most of the aspects of the confession. The legal provisions regarding confession protect the accused from mistreatment and the constitutional right under Article 20(3) is also upheld. If threat or inducement is completely removed, then such confession becomes admissible. If a confession is made in police custody then it is not taken into consideration, therefore this prevents the accused from police torture. Many provisions in both the evidence act and criminal procedure code uphold the rights of the accused.

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