I keep mum even when charges are framed against me
“It’s good to see an experienced lawyer take over. The previous lawyers representing the accused were young blood, they kept filing one application after the other.” — the Judge remarked after the new lawyer engaged by the accused stated that he didn’t want to argue beyond the contours of the charge-sheet at the stage of framing charges. By “young blood” the Judge probably meant that the previous lawyers were over enthusiastic and consequently were unknowingly disclosing their defense at the initial stage.
This may seem paradoxical and even unfair to the client (accused) of the defense counsel but it is in his interest to not agitate the judge beyond the contents of the final report under section 173 CrPC, also known as the chargesheet, at the initial stage of framing of charge. Why? You would naturally ask. The answer rests in multiple decisions of the Hon’ble Supreme Court of India – which state that at the stage of framing of charges, a court cannot look beyond the material the prosecution chooses to rely on. The police report, under S.173(5) of CrPC, contains only the material that the prosecution chooses to rely on.
In practice, the prosecution, at the stage of framing of charges, only relies on the material that point towards the culpability of the accused. The prosecution chooses to ignore exculpatory material. In a contrast to the stage of final arguments/judgment in criminal law, where even the slightest doubt in the mind of the judge may lead to acquittal of the accused, at the stage of framing of charge, even a small possibility indicating culpability of the accused may lead to framing of charges. Another reason to not agitate the judge at this initial stage is to avoid disclosing your defense before the trial has even begun. Disclosing your defense at this initial stage gives the prosecution an opportunity to file additional charge-sheet under S.173(8) of CrPC and correct the lacunas and gaps in their case.
The accused, at this stage, is also denied his right to use S.91 CrPC. to summon materials and witnesses that may favor his case. You may think that this goes against the due-process & right to a fair trial. Recently in the case of Nitya Dharmananda v. Gopal Sheelum Reddy 2018-2-SCC 93, the Supreme Court of India has partially come to the rescue of the accused by holding that “….if the court is satisfied that there is material of sterling quality which has been withheld by the investigator/prosecutor, the court is not debarred from summoning or relying upon the same even if such a document is not a part of the charge-sheet.”. However, you must note that in Nitya, the Supreme Court of India has left it up to the court’s satisfaction and discretion to ascertain the quality of the material withheld by the prosecution and decide whether it would have any bearing at the stage of charge – upon which it can summon such material. The accused has yet not been given the right to summon material at this stage.
Though the decision in Nitya does promote a fair-er trail, the accused is still handicapped at the stage of framing of charge. But the flip side of the above said position is that if at the stage of framing of charge evidence is allowed and duly considered, it would turn this stage itself into a mini-trail. The stage of charge is not a mini-trial – why make it one?
*The author is a practicing lawyer at the High Court of Delhi and can be contacted at firstname.lastname@example.org