Monday, 16 November, 2009

Let's have some lee-way in Criminal cases

Procedure is well known to be the hand-maiden of justice, and therefore, must be treated as flexible and subservient to the cause. But the little contradictions in innocuous legal procedure often pinch you and splash reality in your face.

Take Criminal and Civil litigation as an example. If I want to file a Civil Suit, I go before a Civil Judge (Junior or Senior Division). I carry the first appeal to a District Judge, and a Second Appeal to the High Court. After losing in 3 courts, I still have the option of coming to the Supreme Court by way of an SLP.

On the other hand, if I am accused of a serious crime like murder, I am tried by a Sessions Judge, Appeal before the High Court, and last chance of SLP before the Supreme Court. And the Supreme Court will mostly say - We are not supposed to go into these questions of fact. Hell, losing a criminal case which takes away my liberty grants me only 2 opportunities to present my case on facts, while in a civil case for claiming Rs. 50,000/- damages, I get three chances before being sent packing summarily by the Supreme Court.

Yes, I know that even in a Regular Second Appeal (RSA), the High Court is only supposed to entertain substantial questions of law. However, in practice we are all aware that non-appreciation of any material fact is a substantial question of law, and High Courts are more liberal in these matters than the Supreme Court. Besides, criminal cases are a lot more dependent upon factual interpretation than Civil ones.

It is literally heart-breaking for the family of a murder accused to come to the Supreme Court and watch his advocate get shunned with a plain "We are not here to appreciate evidence", knowing that their relation is now going to spend his entire life in Jail because the Judge did not even look at the evidence based on some Rule whose logic they cannot understand.

In Gajula Surya Prakasarao v. State of Andhra Pradesh, 2009 (13) SCALE 656, Justice Sudershan Reddy has opened a slight window for the doomed. In a murder case, Justice Reddy analysed the evidence on record and the judgments of the Trial Court and the High Court, and concluded that the lower courts had missed crucial contradictions in the evidence. He justified this in law by stating:

"We are conscious that normally this Court would not substitute its opinion by re-appreciating the evidence with that of concurrent findings of the two courts below. But in the present case, having considered the findings of the courts below, we hold that the courts below found the appellant guilty on the basis of evidence of PWs 3 and 4 upon which no reliance could be placed for the reasons stated herein above. The facts, based on which we have arrived at the conclusion not to rely upon the evidence of PWs 3 and 4, are very much available on record which were altogether ignored by the Courts below. The same has resulted in miscarriage of justice."

The ratio of this case is that even though the Supreme Court would not normally substitute its own opinion on concurrent findings of fact, it will nevertheless interfere when findings of fact result in miscarriage of justice due to the Courts having missed vital facts.

The value of this case is not in this statement of law. This has in fact been the law since long, and the Judge also relied upon an earlier Judgment of the Supreme Court (Zafar v. State of UP). The value of this case is in the fact that to arrive at a conclusion whether the lower courts had missed a vital fact, the Court had to itself critically evaluate the evidence on record and compare it with the judgments of the lower courts. This analysis is crucial, because only if a Judge is willing to read the evidence and see if it has not been properly appreciated, can he justly rule whether the case is one of plain re-appreciation of evidence, or one of miscarriage of Justice.

The difficulty litigants practically face is that a lot of judges even refuse to look at the evidence on the pretext that they are not supposed to re-appreciate evidence. So, let us hope that this judgment can be cited to indicate the ideal approach that should be adopted. After all, the person will spend the rest of his life in Jail (the part that matters, at least) after the order.

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