IMPORATNCE OF PLEADINGS IN CRIMINAL LAW
M. KARUNANITHI BSc., M.L., SENION PANEL COUNSEL, UNION OF INDIA
FORMER SPECIAL PUBLIC PROSECUTOR, Q BRANCH CID
HIGHCOURT – MADURAI BENCH
Email:- kanlaw1971@gmail.com
INTRODUCTION:-
Pleadings is very much-essential in civil law, unless specific pleadings are taken we cannot lead evidence to prove a fact. So, even big volume of evidence without pleadings is of no use. Hence, pleadings have got its own importance in Civil Law. Like the same pleadings are important in criminal law. Hence, this article speaks about importance of pleadings in criminal law.
DISCUSSIONS:-
Order VI, VII, VIII of CPC speaks about pleadings. In the plaint, written statement and in all Interlocutory applications we have to specifically plead, but though there is no law that mandates pleadings in criminal law. But it is equally important to plead in criminal law also. For example possession of plaintiff as on the date of plant, readiness and willingness of plaintiff, balance of convenience and irreparable loss are important pleadings to be pleaded in suit for bare injunction and suit for specific performance.
There are two types of cases and procedures enshrined in the code of criminal procedure, 1973
i) Cases instituted upon a police report
ii) Cases instituted otherwise than on police report i.e. complaint case.
We can remember doctor (Dr.) easily. When we put 2 before d and another 2 before r, this is 2d and 2r. It is to be remembered that section 2(d) Cr. P. C defines what is complaint and section 2(r) defines what is police report. It is true that separate procedures for filing, furnishing copies to accused and procedures for trial are different. But in both cases both the prosecution and accused has to plead specifically. For easy reference section 2(d) & 2(r) is extracted hereunder,
2. (d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.—A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;
2. (r) “police report” means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173;
We can easily understand the difference between 2(d) and 2(r) on reading of the following judgment of Madras High Court.
2018 LW Crl. Vol II 606 - Jeevanadam & Others Vs State
COMPLAINT CASE :-
In a complaint under section 200 Cr.P.C, it is to be specifically pleaded about date of occurrence, time of occurrence, place of occurrence and how the accused is responsible and how he is liable for conviction for particular offence. Because in order to frame charges these are essential. Before drafting complaint we have to keep in mind about section 211 of Cr.P.C which defines the contents of charge, further we have to keep in mind that the charge must be specific and dates and events must contain in charge, in any event the accused should not be misled by charge. Since, charge framing is the date on which criminal trial said to have commenced. It is to be noted that in a criminal case accused has been summoned only to answer the charges. So, the averment in a complaint has to be drafted specifically and cautiously.
If notice for dishonor of cheque is issued without particulars, the same will be challenged as the same cannot be termed as legal notice for want of particulars. Hence, notice must be properly pleaded. Equally the complaint under section 200 Cr.P.C read with section 138 of N.I Act has to be pleaded particularly when company is added as party responsible for the day-to-day affair of the company is added, the complaint must be a properly pleaded otherwise the same will be quashed, because only on the materials placed before the court, the learned Judicial magistrate has to take cognizance. Taking cognizance of offence is not an empty formality, the learned Judicial Magistrate, has to apply judicial Mind in to the facts and circumstances of the case, then only cognizance can be validly taken, so necessarily we have to plead properly.
In application for bail, anticipatory bail and more particularly in application under section 167(2) Cr.P.C we have to mention how 60/90 days elapsed and how the application is maintainable, in anticipatory bail reasonable apprehension of arrest and harassment has to be mentioned. In an application under section 167 (2) Cr.P.C, we have to draft that,
i) 60/90 days has elapsed and further custody will be illegal.
ii) No notice to public prosecutor is necessary, the court has to verify with their own record to satisfy whether final report has been filed or not.
iii) We have to specifically plead that the accused is intend to furnish security for his release.
In an application under section 125 Cr.P.C and domestic violence Act also we have to take specific stand in support of prayer, whether the petitioner has means to maintain herself or not has to be pleaded as well the capacity of respondent husband has also to be pleaded.
In an appeal against conviction and sentence as well in appeal against acquittal we have to take proper grounds, in special leave to appeal against acquittal we must state grounds on which acquittal is perverse and liable for intervention by appellate court.
In application for suspension of sentence and conviction we have to mention how the application is maintainable and how prayer can be granted, in Ramarang case the Honorable Supreme Court has observed as follows.,
Rama – Narang Vs Ramesh Ramang – 1995 2 SCC 513 – Para 16
In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code could be invoked. In such situations the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order 'for reasons to be recorded by it in writing'. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto? No one can be allowed to play hide and seek with the Court; he cannot suppress the precise purpose for which he seeks suspension of the conviction and obtain a general order of stay and then con- tend that the disqualification has ceased to operate.
Hence, there must be a specific pleading enabling the appellate court to grant the order of suspension of conviction.
The prosecution has to come with definite Case by way of final. Report, statement of witnesses unlike civil cases accused is not expected to file any statement counter to the final report, the defence can be raised and understood only from cross examination of witnesses. Hence, the defence has to take more care in cross examining the witnesses.
It is to be pointed out that in most of the criminal case, defence will challenge the FIR on many grounds and mainly on delay in forwarding FIR to jurisdictional Judicial. Magistrate Court, in order to get the benefit of Doubt arising out of delay in Forwarding FIR, there must be cross examination both to person who gave complaint, who had registered fir as well investigation officer otherwise the benefit cannot be extended to defence because delay by itself is not fatal only when delay has not been explained then it is fatal... Explanation will come. Only an specific question. It is the truth to be noted here that only disputed facts to be proved.
No cross-examination on the point of delay – can delay be a point in favour of accused?
We must put relevant questions to the defacto-complainant and officer who had registered the FIR as well as Investigation Officer regarding the travel of FIR unless there is a definite case by defence that the delay is wanton and by that FIR was fabricated delay will not be fatal to prosecution. There must be definite evidence regarding the travel of FIR to concerned officer, concerned Head Constable has to be examined to explain the delay if any or to show that there is no delay. In order to get the delay as point in favour of delay there must be a question challenging the genuineness of FIR.
State of Punjab Vs. Mohindar Singh - AIR 2008 SC 92
State preferred appeal against acquittal under Section 154 Cr.P.C., - Delay in giving FIR – explanation – No cross-examination on this point – can delay be a point in favour of accused – No held, the High Court has wrongly recorded that there was no explanation for the delay in lodging FIR. In FIR it has been categorically stated that nobody came forward to accompany the complainant to police station in the dark night. Therefore, she had to wait till the morning to come to the police station. No cross-examination regarding the reason for delay. There was not even a suggestion that she had wrongly stated about the reasons for delay. Therefore, conclusion of High Court is unsustainable – appeal allowed – Conviction restored.
AIR 1988 SC 1998 : 1989 Crl.L.J. 88 – State of Utter Pradesh Vs. Anil Singh.
Detailed report lodged soon after the occurrence – no cross-examination on the point – no fatal to the prosecution.
OMISSION OF MATERIAL FACT IN FIR:-
It is to be remembered that in the cases instituted by the police report, FIR will be the foundation so all the probable defence to challenge the FIR has to be taken while cross examination person who lodged the complaint, registered FIR and who has filed the final report. The FIR can be challenged as an afterthought, original FIR suppressed, omission of material fact in the FIR, names of witnesses and accused not stated in the FIR and genuineness of FIR can also be challenged.
It has be noted that though all minute details of occurrence need not be mentioned in FIR, material fact such as name of accused, name of witnesses, type of weapon, whether dying declaration recorded and events affecting the very nature of the case is to be given in FIR itself.
All omission in FIR is not fatal but if it is material to unfold the prosecution case it’s omission will be viewed seriously. Omission affecting the probability of the case becomes relevant u/s.1 of Evidence Act in judging the prosecution case.
DISPOSAL OF PROPERTY:-
In case of petition for return of property we have to specifically mention that how the petition is maintainable and how we are entitled for the custody of the same.
In case of dying declaration we have to deny the state of mind of Declarant and questions regarding tutoring also.
It is pertinent to be pointed out that we have to specifically plead and more particularly there should not be any misleading and suppression of fact in the pleadings.
Some Judgments regarding pleadings are given below,
R.P. Balakrishna vs Muthoot Leasing And Finance Ltd. - 2002 112 CompCas 191 Kar, 2002 CriLJ 4444
2. The issuance of the dishonoured of cheques is not in dispute in this proceedings. However it is contended by the petitioner that he is not the director of the second respondent-company and he was only an employee of the company. Further it is contended that the complaint does not contain necessary averments to show that the petitioner was responsible for the conduct of the business of the company. In the absence of such averments, it was strenuously contended by counsel for the petitioner that the proceedings against the petitioner has to be quashed.
5. Counsel for the petitioner relied on the ruling of the Allahabad High Court reported in Smt. Sharda Agarwal v. Additional Chief Metropolitan Magistrate II, Kanpur [1993] 78 Comp Cas 123. In the said case, reference is made to the provisions of Section 141 of the Act. It was found that there was no allegation in the complaint that the petitioner/director was in charge of and responsible to the company for the conduct of the business and made the following observations in paras. 7 and 8 as follows (page 126) :
"There is no allegation in the complaint that the directors, i.e., the applicants were in charge of and responsible to the company for the conduct of the business of the company. Therefore, as it is, the complaint cannot proceed against the directors only.
8. The contention that the petitioner had no role in the decision making process of the company affairs is not a tenable argument. The requirement of Section 141 of the Act only suggests that a person whether he is an employee or a director if he is in charge of the business and responsible for the conduct of the business of the company, he becomes accountable for an action. In the present case, the necessary requisites of Section 141 are fulfilled although the averments in the complaint may not set out in detail the material basis on which the petitioner incurs liability. The concept of the strict rules of pleadings in a civil law cannot be important in criminal proceedings. The complaint has to contain basic necessary material ingredients of the offence and its commission by the accused. The mention of the other details of the evidentiary material is not necessary, nor such absence is fatal for maintainability of the complaint.
Smt. Kamla Devi And Ors. vs Mehma Singh - 1989 Crl LJ 1866
Thus, the provisions of Order VI, VII and VIII of the C.P.C. relating to pleadings in civil suits did not apply to a petition under Section 488 of the old Cr. P.C. The matter was considered by the Karnataka High Court in Smt. Malan v. Baburao Yashwant Jadhav 1981 Cri LJ 184, wherein it was observed that the strict rules of pleadings applicable to the pleadings in a civil suit cannot be applied to a petition under Section 125 of the new Cr. P.C. The Allahabad High Court in Bishambar Dass v. Smt. Anguri 1978 Cri LJ 385, did not allow amendment of application filed under Section 125 of the Cr. P.C. to include the plea that the petitioner (wife) was unable to maintain herself on the ground that there was no provision in the Cr. P.C. to do so. However, the case was remanded to the trial Court to lead evidence on the said point.
10. In Babu Ram's case (1964 (2) Cri LJ 456) (supra), this Court was considering the scope of proceedings under Section 145 of the Cr. P.C. which relates to apprehension of breach of peace in connection with the possession of land or property and as such are basically different from proceedings under Section 125 of the Cr. P.C. The view expressed in Bhagwan Singh Dutt's case (1975 Cri LJ 40) (SC) (supra) is overruled. Technical rules of procedure, as laid down in the C.P.C. cannot be applied to the proceedings under Section 125 of the Cr. P.C. To that extent, the view expressed in Chanan Singh's case (1983 Cri LJ 1570) (Punj & Hry) (supra) and other cases referred to above is correct. However, the view expressed in Chanan Singh's case (supra) by Division Bench of this Court that proceedings under Section 125 of the Cr. P.C, are criminal cannot be accepted in view of the decision of the Supreme Court in Nand Lal Misra's case( 1960 Cri LJ 1246) referred to above.
11. We respectfully agree with the view expressed by the Delhi High Court in Suhird Kamra's case (1988 Marriage LJ 193) (supra) and Smt. Prema Jain's case (1980 Cri LJ 80) (supra). The question referred is, therefore, answered in the affirmative.
Thus, to avoid multiplicity of proceedings we can take care in pleadings even in criminal cases also.
CONCLUSION :-
Thus, as discussed above the pleadings are important in criminal cases also, so both the prosecution and defence has to take care in framing their case.