What are Pre-trial Stages of a Criminal Case?

A criminal case consists of a number of phases, from the initial arrest to sentencing and possible appeal. The following is an overview of what to expect during the pre-trial phase of a criminal case. Arrest

A person is taken into police custody and is no longer free to leave or move about. Physical restraint such as handcuffs is not necessary - all that is required is exercise of police authority over a person. An arrest can occur either when a police officer has seen a person commit a crime, or hasprobable cause to believe that a person has committed or is about to commit a crime. Booking

After being arrested, a person is usually brought to the police station and "booked", or entered into the police system. This process can include gathering personal information, taking fingerprints, and confiscating personal property. After booking, the person is typically placed into a holding cell of some sort. Bail

Bail is the term used for money paid by an arrested individual in exchange for their release from custody. The individual agrees to appear in court for all scheduled proceedings as a condition of this release. In some cases, the individual is not allowed to post bail right after booking, and needs to wait either until a bail hearing is held, or for the arraignment. If this is the case, a judge will decide whether to release the individual on bail, and can set the bail amount. Arraignment

The arraignment is the first court proceeding in a criminal case. The judge reads the criminal charges against the person, asks them if they have an attorney, and asks them to enter their plea (usually guilty, not guilty, or no contest). Future proceedings, such as the preliminary hearing and the trial, may be scheduled The prosecution gives the defendant and his or her attorney any documents related to the case, such as the police report. If the crime the person is charged with may result in a jail sentence, the defendant has a right to an attorney, even if they cannot afford one. If they cannot afford a lawyer, but wish to have one, the judge will appoint a lawyer to represent the defendant at this point. Plea Bargain

Many criminal cases end at this stage. The defendant agrees to plea guilty, sometimes to a lesser charge than the one they were originally arrested for, or sometimes for a lesser punishment than they might receive if found guilty in a trial. If a defendant is charged with multiple offenses, he or she can sometimes plead guilty to one of the offenses, and the prosecution will agree to drop the other charges. Plea bargains can either be agreed, where the prosecution and defense both agree on the punishment, or unagreed, where each side suggests a punishment to the judge, and the judge chooses whichever he or she feels is appropriate. In some states, an unagreed plea is said to be "defense capped", meaning that if the judge chooses any level of punishment that is more severe than that suggested by the defendant, the defendant can withdraw their plea of guilty, and go to trial. Preliminary Hearing

After arraignment, if there is no plea bargain, a preliminary hearing is held

At this point, the judge listens to the prosecution's evidence, and decides whether there is sufficient evidence to charge the defendant with the crime. The role of the preliminary hearing differs from state to state. PRE-TRIAL PROCEDURES Release Procedures Once a person has been arrested and charged, it is common for the person to be released before trial if the offence committed is minor in nature. There are two ways in which an individual can be released once charged, one method is by the police themselves and the second is by the court system. If every single person charged were placed in jail, then there would not be enough jails to house everybody. In addition, a general rule of incarceration before trial without any regard to the offence or public danger posed by the individual may be unreasonable particularly under the presumption of innocence principle. This potential for unfairness is one reason that reasonable access to bail is a feature of the Canadian Charter of Rights -11(e)- and a long practice within the criminal justice system. Since the Bail Reform Act (1972), the court has taken the approach that accused individuals should be released pending trials, except under certain scenarios. Bail by Police If an individual commits a summary or hybrid offence, there is discretion with the arresting officer to release the person. The officer may serve the accused with anappearance notice which simply informs the accused of the charge and tells them when and where they are to appear in court, and/or appear at a police station for fingerprinting. A summons serves the same purpose as an appearance notice but is issued by a judge and delivered to the accused. If the officer takes the accused back to the police station, the supervising officer in charge of the station may also release the accused. The supervising officer may only release those charged with summary, hybrid, or less serious indictable offences with fines of $5000 or less. This is done by issuing an appearance notice, having the accused sign a promise to appear, release him or her under recognizance, or release with surety. A promise to appear is a document that the accused signs promising to appear in court at a specified time and place. A recognizance is a signed promise that the accused will pay a certain value of money if they fail to appear at a scheduled court date. Asurety is a promise by someone other than the accused to pay an amount of money if the accused fails to appear at a scheduled court date. Sureties and recognizances tend to be used in more serious offences or where the accused is a repeat offender. Failure to appear at court can result in the issuance of a bench warrant by the judge for the accused to be taken into custody. If the arresting officer or the supervising officer believes regardless of the nature of the charge that the individual is unlikely to appear in court, flee the country, continue to pose public danger, or cannot positively identify the individual, then police bail can be denied. Judicial Release (Bail by Judge) Once an individual is arrested and not released under police bail, then the accused has a right to appear for a bail hearing before a Justice of the Peace within a reasonable amount of time. This usually occurs within 24 hours but can deviate slightly based on jurisdiction. The accused appears in bail or remand court to be considered for release before trial. A remand court or bail court is a specialized court presided over by a Justice of the Peace to determine whether or not the accused should spend time in pretrial custody. The onus is on the crown to prove or show cause why the individual should not be released. If the crown cannot convince the court of reasons to continue detention, then the assumption is that the individual should be released. Another term for a bail hearing is the show-cause hearing. Factors that will favour the crown to continue detention include

concern that the accused may flee the country the individual may reoffend the individual may not appear at future court dates

This onus on the crown however is reversed, or in other words, the accused must prove why they should not remain in custody if the accused falls under one of the following scenarios: 1. 2. 3. the person committed an indictable offence and is not a Canadian resident the individual is in contravention of a previous order of the court the charge involves failure to appear in court or a breach of bail conditions

4.

the individual is charged with importing, exporting or trafficking in narcotics

There are a small number of serious indictable offences in which the onus is also on the accused to prove why they should not remain in custody such as in the case of murder. If the court agrees to release the individual, then there a number of options and conditions that the court may or may not impose upon the released individual. The terms of release are usually tailored in order to ensure the accused stays out of trouble or ensure appearance at future trial dates. Terms may or may not include supervision, reporting to a police station at certain intervals, not to associate with certain individuals or be in possession of certain items such as alcohol or firearms. The least restrictive judicial release is called an undertaking. It is a signed promise to appear at the next trial date and adhere to any conditions imposed. The next level of release with conditions are recognizances with or without sureties. As described earlier, a surety is someone other than the accused who will be responsible for payment if the accused fails to appear in court. If the courts set bail without regard to ability to pay, then they would essentially ensure detention for certain individuals because of inability to pay. This would be considered an infringement of the Charter Right to reasonable bail. Generally, courts to not emphasize money as the key component in releasing an individual. The individual is released or not released based on the factors raised in a show-cause hearing. An important and interesting case relating to bail is the R. v. Hall (2000) case. In that case the accused was charged with the first degree murder and sought to be released from custody pending his trial. His application for bail was heard and the judge was satisfied based on the large amount of evidence that the detention of the accused was not necessary to ensure his attendance in court or for the protection or safety of the public. However, because of the sensational nature of the crime in the particular community it was committed in, the judge denied bail "in order to maintain confidence in the administration of justice". What this judge meant is that the judge can take into account the reputation of the justice system if a certain course of action is taken. If the reputation of the justice system is negatively affected, then it should be a consideration in denying bail even if there are no other reasons to deny it. This is an important ruling because it does not tie the court down into strict consideration of whether or not the accused will appear or is dangerous. The court can look into broader impacts that the release of an individual may have on the perception of the bail and justice system by Canadians. Habeas Corpus The right to habeas corpus is rooted deep in English common law and can be traced even into the time before Magna Carta. The right of habeas corpus is intended to prevent imprisonment without charges. Anyone who believes that their detention is unlawful or unreasonable can demand to be brought before a judge to be considered for release under the right of habeas corpus. This right is not exercised often because the legal system has set up a system of bail courts to address the issue of pre-trial release which essentially performs the role that habeas corpus once filled. If however, an individual is not brought within 24 hours to a bail court, then an individual could invoke their right to habeas corpus to be brought before a judge to determine the legality of their detention.

Election of Trial Method When the person is arraigned, or the charges are read to them just before the beginning of a trial, the accused has an option as to what method or court they wish to be tried. This is the case in most indictable offence trials. The options before the accused are to have the trial heard by a judge alone in a provincial court, by a judge in a superior court or by a judge and jury in a superior court. For certain crimes, the options are altered, for example, summary offence charges will be heard by a judge alone in a provincial court. Very serious crimes such as murder or treason, a judge a jury in a superior court must hear the case. The charter grants the right for an accused to elect trial by jury where the possible penalty of five years or greater.

The Preliminary Inquiry Before a trial occurs, a preliminary hearing or pre-trial hearing is conducted. The purpose of the preliminary hearing to determine whether or not there is enough evidence to warrant a full trial on the charges before the court. The preliminary hearing is less formal than a full trial and takes less time. This helps determine whether or not a case warrants the time and resources of a

full trial. If the evidence is weak or non- existent, then the judge can dismiss the case and discharge the accused. This step ensures that the time of the court is not wasted on frivolous or weak cases. The defence may waive the preliminary hearing step and go directly to trial if he or she wishes. All preliminary hearings are by judge alone and are conducted by the provincial court, in Ontario, that being the Ontario Court of Justice. The preliminary hearing does not determine innocence or guilt or even whether or not the accused is probably guilty. The court must only determine whether or not a reasonable jury or judge might convict based upon the evidence presented.

Pre-Trial Conferences Before the beginning of a trial, there is usually a pre-trial conference between the defence, crown and judge to go over the elements of the case. At this conference, the crown may go over the witnesses and evidence it wishes to call before the judge or jury. The defence can indicate whether or not the evidence and key elements of the case have been disclosed by the crown in a sufficient manner and if not, the judge may order the crown to turn over information or delay proceedings to give more time to the defence to prepare its case. The conference will also go over the elements of facts that are not in dispute by either side. If certain facts about the case are agreed upon, then there will be no need to call witnesses or evidence to prove those elements. A simple reading of a "statement of facts" is read into the record to register the information in the court record. This step can save a great deal of time in a trial since calling witnesses for examination and cross examination can take some time and is ultimately unnecessary if the facts are already agreed upon by the defence and crown.

Plea Bargaining The crown is interested in proceeding against an accused on a set of charges based on alleged offences committed or wrongdoing. The accused will plead either guilty or not guilty. If the accused pleads not guilty, then a trial must occur. A plea bargain is when the defence and crown agree that the accused plead guilty, usually for a lesser charge or the withdrawal of other charges against the individual. Sometimes, a plea bargain will consist of a guilty plea with the understanding that the crown ask for a specific sentence duration or type of release, such as probation over jail. This step helps to keep the justice system moving and is generally not a serious issue, especially where more minor offences have taken place. A plea bargain can occur at any time during the trial before a verdict is given. There are many criticisms of the plea bargaining process. In R. v. Homolka (1993), a plea bargain was struck with the defendant, Karla Homolka, that a charge of manslaughter would be entered instead of first degree murder if she participated and gave evidence against Paul Bernardo, the other accomplice in the murder of two Ontario teenage girls. The crown in this case was interested in securing firmer evidence to convict, what in the crown's mind, was the main culprit Paul Bernardo. Without the direct testimony of Karla, the crown was worried that the evidence might not be strong enough to secure a first degree murder conviction for Paul Bernardo. The ensuing plea bargain outraged many people in the community especially since the subsequent discovery of evidence firmly implicated both Paul and Karla in the abduction and deaths of the two girls. Despite some criticisms, the plea bargain does play a role in moving the trial process along and securing convictions where perhaps the crown case may not be substantially strong.

What is the Criminal Process?

The various steps in the Criminal Process are as follows: 1. The Arrest: The police arrest someone based on probable cause that they have committed a criminal offense. However, the police do not file the charges. They simply provide reports and evidence to the prosecuting attorney, who then decides whether or not charges should be filed, and if so, what charges. 2. Filing of the Complaint: The police arrest someone based on probable cause that they have committed a criminal offense. However, the police do not file the charges. They simply provide reports and evidence to the prosecuting attorney, who then decides whether or not charges should be filed, and if

so, what charges. The prosecuting attorney files the document with the court, which alleges the charges against you. 3. Arraignment/First Appearance: At the arraignment, you are formally advised of the charges and your constitutional rights. Bail is often set during the arraignment. Bail is used by the court almost like an "insurance policy" that you will appear on future court dates. The amount of bail is determined by the judge. The judge will look to two factors in deciding bail: your risk of flight and whether you pose a danger to the community. Bail amounts can range from being released on your own recognizance, all the way up to millions of dollars. In some cases no bail is allowed. 4. Preliminary Hearing: Preliminary Hearings are held in all felony offenses to review probable cause. This is necessary for the judge to determine whether there is sufficient evidence to support the charges against you. Once a Judge determines that there is probable cause, he sends the case to the Superior Court for trial. During the Preliminary Hearing, the district attorney or the judge can add additional charges and/or readjust the bail. 5. Arraignment in the Superior Court: If the judge has determined that there is probable cause to support the charges, the prosecutor will file a charging document called an Information in the Superior Court. The Information alleges the charges which you are facing at trial. At this time, you are formally advised of the charges and your constitutional rights. Again, you enter a plea of not guilty. 6. Pre-trial Conference: At the pre-trial conference, the defense attorney discusses the case with the prosecuting attorney and often may include the judge in this process. This is a good opportunity to speak with the prosecution in order to obtain the best possible deal, or plea-bargain. It also allows the defense attorney to provide information which may prove your innocence. 7. Trial: During the jury trial you are entitled to have a jury of twelve impartial jurors. Both the defense attorney and the prosecuting attorney have an opportunity to make opening statements, introduce witnesses and evidence in favor of their case, cross-examine witnesses and offer closing arguments. During the deliberation phase of the case, the jury decides whether the prosecution has met the burden of proving guilt beyond a reasonable doubt. If the jury finds you not guilty, you are free to go and not subject to further prosecution based on the same offenses. 8. Sentencing: If you are found guilty, the sentencing hearing is where the judge determines and imposes the appropriate punishment. You may be sentenced to probation instead of a term in state prison. Different crimes carry different possible penalties. You are entitled to a sentencing hearing to propose why you believe the judge should give you the lowest possible penalty. 9. Collateral Consequences: In addition to any sentence imposed by the court, conviction can have a number of additional consequences. In felony cases, these consequences can include, but are not limited to: loss of the right to vote, loss of the right to possess a firearm, loss of the right to associate with other known criminals, registration as a sexual offender, registration as a narcotics offender, or increased penalties for future convictions. 10. Appeals & Writs: If convicted, you may file an appeal to an appellate level court with the argument that the trial court made legal errors. If the defense can prove that the trial court made legal errors, or you were denied due process of law or a fair trial, it may result in the reversal of your conviction. 11. Parole: Parole is a conditional release from prison which entitles you to serve the remainder of your term outside of prison. However, you are still under the supervision of the department of corrections.

12. Expungement: Expungement is a process where, in some cases, your conviction may be removed from your record.
A First Information Report (FIR) is a written document prepared by police organizations in Bangladesh, India, Pakistan and Japan when they receive information about the commission of a cognizable offence. It is generally a complaint lodged with the police by the victim of a cognizable offense or by someone on his on her behalf, but anyone can make such a report either orally or in writing to the police. An FIR is an important document because it sets the process of criminal justice in motion. It is only after the FIR is registered in the police station that the police take up investigation of the case. Anyone who knows about the commission of a cognizable offence, including police officers, can file an FIR. As described in law,

When information about the commission of a cognizable offence is given orally, the police must write it down. The person giving information or making a complaint has a right to demand that the information recorded by the police be read to him or her. Once the information has been recorded by the police, it must be signed by the person giving the information.

Section 91(1) CrPc: An analysis of Constitutional validity The entire procedure specified in the Code of criminal procedure, 1973 is based on principle of justice and fairness. One of the fundamental principles of legal jurisprudence is that a person accused of any offence should be given equal chance to be heard and to defend himself. It is in consonance with this theory only that there are provisions in Code of Criminal Procedure, 1973 (CrPC) related to issue of process, provisions in section 161 (3), provision in section 162 of the code that any statement recorded during the course of investigation, shall not be signed by the person making the statement, has been specified. Similarly upholding the similar proposition, the protection against self incrimination has been provided as a special fundamental right, under Part III of the Constitution of India. Article 20(3) states that: No person accused of any offence shall be compelled to be a witness against himself. This paper deals with the power of search and seizure of the court and police authorities particularly the power to issue summons or notice by the court or officer in charge of the police station under section 91(1) of CrPc. The issue has been dealt in detail by the apex court of this country in case of M.P Sharma and others vs Satish Chandra, State of Bombay vs Kathi Kalu Oghad and State of Gujrat v Shyamlal Mohanlal Choksi. After going through all the three case laws it is felt that the matter has been wrongly taken up by the court. The Supreme Court in Kalu Oghads case has narrowly interpreted the expression to be a witness which has created situation where a very narrow space is available for the actual protection of this right in respect of production of documents. This has been done by dealing with the general provisions of search and seizure and than analysing the Shyamlal Choksi as well as Kalu Oghads case.

General Provision regarding search and seizure Section 91 with the head note Process to Compel Production of Things of the Code of Criminal Procedure, 1973 states that: (1) Whenever any Court or any officer in charge of a police station consider that the production of any document or other thing is necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under this code by or before such court or officer, such court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring hm to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. Whereas section 93 When search warrant may be issued; in sub section (1) provides that: (1)(a) Where any court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or (b) where such thing or document is not known to the court to be in the possession of any person, or (c) where the Court consider that the purpose of any inquiry, trial or other proceeding under this code will be served by a general search or inspection, it may issue a search- warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and provisions hereinafter contained. This means that an officer in charge of a police station can send a notice or a court can issue a summon under section 91(1) to any person within whose possession the officer or court thinks is the document or a thing necessary for the purpose of investigation. But if the court or officer feels that the person to whom the summons or notice is issued, will not produce the document or thing, the court can issue a warrant of search to the officer, under section 93(1) (a). From time to time the constitutional validity of the warrant issued under Section 93(1) (a), in context of Article 20(3) has been raised. The contentions were raised that the term any person in section 91(1) not only includes witnesses and other persons, but also includes the accused. Therefore if the accused person do not obeys the summons, he will have to face a compelled search in his house, and this itself shows the compulsion put on the accused. Further, the compelled search made will be an intrusion into the privacy. Also there will be a prosecution for the offence committed under section 174 of the Indian Penal Code, 1860. Therefore in light of all this the summons issued is a compulsion on the accused person to produce self incriminating evidences, thereby completely violating his fundamental right guaranteed under Article 20(3).

With regard to the first proposition about the process of issue of search warrant under section 93(1) (a), the Honourable Supreme Court in the leading case of M.P Sharma and Others v Satish Chandra, District Megistrate, Delhi and Others, through Jaghandadas J. stated that: It may be mentioned in passing that the provision for the issue of general search warrants appears for the first time in procedure Code of 1882 and even there the issue of general warrants is not based on non compliance with a previous summons for production. It is, therefore, clear that there is no basis in the Indian law for the assumption that a search or seizure of a thing or document is in itself to be treated as compelled production of the same. Indeed a little consideration will show that the two are essentially different matters for the purpose relevant to the present discussion. A notice to produce is addressed to the party concerned and his productions in compliance therewith constitute a testimonial act by him within the meaning as explained above. But search warrant is addressed to an officer of the government, generally a police officer. Neither the search nor the seizures are acts of the occupier of the searched premises. They are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any sense. Which in whole means that the search conducted by the police officer or any investigating officer will be valid only if it has been conducted without any help (involuntary help) from the person, only if any formal accusation has been levelled against the person. However with regard to intrusion into the privacy, it has been settled that the right to privacy is not an absolute right and is subject to reasonable restriction whenever there are contravelling interest, which requires much weight age than the right to privacy of the person, for the sake of justice. Now the only question which is left, is: whether the accused will be penalized under section 174 of the IPC, 1860 if he does not comply with the notice or summons is issued to him? Section 174 with head note Non- attendance in obedience to an order from public servant, states that: Whoever, being legally bound to attend in person or by agent at a certain place and time in obedience to a summon, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, Intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, Shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both, Or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with a simple imprisonment for a term which may extend to six months, or with fine which may extend

to one thousand rupees, or with both. With regard to the above proposition, the apex court in case of State of Gujrat v Shyamlal Mohanlal Choksi has held that the term any person in section 91 of CrPC does not include the person accused of any offence and therefore no notice can be issued to the accused. However the judgment of the court in the above case does not absolutely restrict the accused person. The ratio decidendi of the judgment has kept open the doors for the some amount of flexibility (which will be dealt in detail), which is strictly within the boundaries constructed by the same Supreme Court in case of State of Bombay v Kathi Kalu Oghad. In the above case one of the absurd decision was made by the Supreme Court (majority bench) where a narrow interpretation of the phrase to be a witness specified in Article 20(3) was made. Therefore this interpretation along with the decision in Shyamalals case raises two issues: (1) Whether the proposition stated by the majority bench in the Kathi Kalu Oghad case is practically applicable, in light of the protection against self incrimination? (2) Whether still there is a scope that the person accused of any offence can be summoned to produce any document or other thing for the purpose of investigation? To be a witness real meaning The protection against self incrimination as has been provided in Article 20(3) is based on the following principle: nemo tenetur prodere or nemo tenetur scripsum accusare which means that an accused should not be compelled to furnish any evidence against him. It is the duty of the State/ prosecution to prove him guilty, beyond reasonable doubt. This is just to give proper equal opportunity to accused to know what charges has been levelled against him, what case the prosecution has prepared and then on the basis of which he will prepare a proper defence for himself. Historical Background This principle has been embodied in the statutes first in the fifth amendment of the American Constitution which states that: No person shall be compelled in any criminal case to be a witness against himself The same principle has been embodied in the Indian Constitution, but with some different words: Article 20(3): No person accused of any offence shall be compelled to be a witness against himself. The difference between the two provisions has been dealt in detail in the previous chapter. The expression to be a witness here needs some special consideration as the soul of the entire provision lie in this expression. The interpretation of this expression will determine the extent up to which

whether there is a complete umbrella against self incrimination or not. The Supreme Court in case of Sharma v Satish stated that to be a witness means to become a witness and not to appear as a witness and thus the protection not only extends to compelled testimony in court but extend even to pre trial investigation and interrogation. This interpretation of the phrase has been even followed by the same court in State of Bombay v Kathi Kalu Oghad and State of Gujrat v Shyallal Mohanlal Choksi. However apart from this interpretation, one another interpretation made by the apex court in Kalu Oghads case where the majority through Sinha, Bhuvneshwar P.(CJ) stated that: to be a witness means imparting knowledge in respect of relevant facts, by means of oral statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding enquiry or investigation. A person is said to be a witness, to a certain state of facts which has to be determined by a court or authority to come to a decision, by testifying to what he has seen, or something which he has heard which is capable of being heard and is not hit by rule excluding hearsay or giving his opinion, as an expert, in respect of matters in controversy. Therefore even if an accused has any document which has the tendency to expose the guilt of the accused, or by which he will himself confirm the criminal charges against him, he can be summoned to produce the document and that the summoned issued will not be considered to be against self incrimination. The only requirement is that the content of the document should not disclose any information based on the personnel knowledge of the accused. With regard to this Das Gupta J: speaking for the minority in the same case, criticized the above proposition in following words: We have to remind ourselves that while on the one hand that Constitution- makers could not have intended to stifle legitimate modes of investigation we have to remember further that quite clearly they thought that certain things should not be allowed to be done, during the investigation or trial, however helpful they might seem to be the unfolding of truth and an unnecessary apprehension of disaster to, the police system and the administration of justice, should not deter us from giving words their proper meaning. With regard to the practical application of the same proposition he further cited an example that if an accused person has in his possession, a letter written to him by an alleged co conspirator in reference to their common intention in connection with the conspiracy for committing particular offence. Under section 10 of the Evidence Act, 1872 the document is the relevant fact as against the accused himself for the purpose of proving the conspiracy and also for the purpose of showing that any such person was party to it. By producing this accused will not be imparting, any personnel knowledge of facts; yet it would be certainly be giving evidence of a relevant facts.

Though not on the basis of the personnel knowledge, but certainly the submission of document will be self incriminatory. But as per the ratio decidendi of the majority in this case, this will be the practical application. Therefore this it self is evident as to what is scope of the applicability of the protection guaranteed by Article 20(3). However in a later decision in the case of State of Gujrat v Shyamlal Mohanlal Choksi. Supreme Court held that the term person under section 91(1) does not include the accused person. However going again by the ratio decidendi of the judgment the court has stated that it is implicit in the section 91(1) that an accused will not be called for any document which will be self incriminating. The Sikri J. speaking for the majority stated that: If after a thing or document is produced, its admissibility is going to be examined and the document or thing in question is not going to be admitted in evidence if it incriminates the accused person, the order to produce the thing or document would seem to serve no purpose; it cannot be overlooked that it is because the document or thing is likely to be relevant and material in supporting the prosecution case that on most occasion the power under section 94(1) would be resorted to, so that on the alternative view which seeks to exclude incriminating document or things, the working of section 94(1) would yield no result. So could it now be said that the person accused of any offence has been completely excluded from the application of power under section 91(1)? The decision of the apex court has to be looked in light of the judgment of the court in Kalu Oghads case. Therefore summing up both these judgments together it could be very well established that the accused, with due respect to his right against self incrimination, is definitely exempted from being summoned to produce incriminating documents but only if it does not contain any material on the basis of his personal knowledge. This will definitely raise a question in the mind that how the authority will come to know that whether any document is based on the personal knowledge of the accused? The answer to this typical question is very simple. First the authorities will call the accused person with the documents, after which they will come to know whether the document is incriminating or not (strictly according to the majority ruling in Kalu Oghads case). This has created a situation where both the heads and the tales are in the hand of authorities. Correcting the flaw The entire discussion made above raise only one question in mind. Is this was the legislative intention behind this protection afforded to the accused? Is this is what really should be? This fact is clearly established that the right against self incrimination is not an absolute privilege

provided to the accusedbut still the interpretation of phrase procedure established by law as has been done by the Court in Menka Gandhi case is to be a just fair and reasonable procedure. Any procedure will ensure justness and fairness only when it respects the right of victim and accused equally. On the contrary the present law developed is violating the right to equal protection of law under Article 14 of the accused or suspect. So how is the justness and fairness ensured to the accused? It will definitely, finally lead him to the accusation. Therefore how much substantive the document is, how much relevant it could be for proving the fact in issue beyond reasonable doubt, if it is incriminating it should not be called by the accused by issuing any notice or summons. If called than it should be considered as an inadmissible document. Repeating the Sikri J. in Shyamlals case the term any person in section 91 should exclude the accused person. Only than the real objective with which the right against self incrimination was included as a fundamental right, will be achieved. Conclusion Since time it has been stated that the right against self incrimination is actually a privilege provided to an accused and is the major factor in defeating the justice. This is not the first time when such an attempt has been made to change the nature of what has actually been stated in Article 20(3). Malimath Committee Report titled Reforms in Criminal Justice system has even held that though the accused has right to remain silent an inference could be well drawn from the silence of the accused, which is also contrary to the principle of the right to remain silent of the accused. After the enactment of the constitution of India in 1950 the India became a sovereign socialist secular democratic republic. It is now well competent to decide its political and economic future. At the time of the enactment of the Constitution this humane right of the accused that is right against self incrimination was included in article 20 of the Constitution of India, not to insult the right of the accused in this very manner as has been made by narrowly interpreting it. Therefore it is urged to the lawmakers of the country that there should be equal respect of this very right in the manner as the other fundamental rights are respected. Bibliography Statutes referred (1) Code of Criminal Procedure, 1973 (2) Indian Penal Code, 1860 (3) Indian Evidence Act, 1872 Books referred (1) Basu D.D. Introduction to the Constitution Of India, Lexis Nexis Butter Worth Wadhwa, Nagpur (2) Basu D.D, Commentary on the Constitution Of India, 8th Edition 2008, Vol 3, Lexis Nexis Butterworth Wadhwa, Nagpur (3) Datar Arvind P; Commentary on the Constitution Of India, Vol 1, Wadhwa Nagpur (4) Ratanlal Dheerajlal; Code of Criminal Procedure, 17th Edition reprint 2009, Lexis Nexis Butterworth Wadhwa, Nagpur

(5) Ratanlal Dheerajlal; Indian Penal Code, 1860, 30th Edition reprint 2009, Lexis Nexis Butterworth Wadhwa, Nagpur Dictionaries referred (1) Aiyar P. Ramanath; Concise Law Dictionary; 3rd Edition reprint, 2009, Lexis Nexis Butterworth Wadhwa, Nagpur The author is a IIIrd year student of law @MATS LAW SCHOOL, MATS University and can be reached at shishir@legalserviceindia.com It is completely based on principle of natural justice that the parties in dispute should be given equal chance to be heard and the final decision must be completely based on the merits of the arguments presented by both the parties. [3] Provided in Chapter XVI: Commencement of Proceeding Before Magistrate, of which section 207 provides that before any proceeding be instituted the accused shall be provided with the police report filed by police after completion of investigation under section 170, First Information Report lodged by the complainant under section 154, all the statements of witnesses and accused recorded during course of investigation under section 162 (which also includes statements under course of examination under section 161), any confessional or non confessional statement recorded under section 164, all the documents and material forwarded to magistrate under sub section (5) of section 173. Also this section provides that if magistrate deems fit that he can also order the investigating officer to forward all those excerpts as well, which in the opinion of investigating officer, under sub section (6) of section 173, should not be disclosed to the accused ex delito justice. This states that any person called for the purpose of examination under section 161 shall answer all questions truly except the answer to which would have tendency to expose the person to criminal charges. This provision is completely in consonance with the fifth amendment of the American constitution which states that:No person. shall be compelled in any criminal case to be a witness against himself. It is the principle only which has been derived in Article 20 (3) specified in Part III of the Constitution Of India, but there is a wide difference between this very provision of the code and article 20 (3) is that while the protection against the later can be claimed only when a formal accusation has been leveled against the person as for e.g. lodging of FIR, and thus the protection cannot be afforded to any person who is a witness in that very case. But as per the provision of section 161 (3) as well as fifth amendment of the American Constitution, the protection even extend to the witness. [5] The legislative intention of this provision has been rightly observed by the apex court of this country, is to protect the accused from overzealous police officer or untruthful witnesses; Tehsildar Singh v State of U.P; [6] AIR 1954 SC 300 [7] AIR 1961 SC 1808

[8] AIR 1965 SC 1251 [9] AIR 1954 SC 300 Govind v State of M.P; (1975) 2 SCC 148. It has also been held by the learned author Dr. D.D Basu that: Intrusion into the privacy may be by, (1) legislative provision, (2) administrative or executive orders, and (3) judicial orders. The legislative intrusion must be tested on the touchstone of the reasonableness as guaranteed by the Constitution and for that purpose the court can go into the proportionality of the intrusion vis--vis the purpose sought to be achieved. So far as executive or administrative action is concerned, it is again to be reasonable having regard to the fact and circumstances of the case. As to judicial warrants, the court must have sufficient reason to believe that the search or seizure is warranted while keeping in mind the extent of search or seizure necessary for the protection of particular State interest .Warrantless searches, whenever permitted, must be in good faith intended to preserve evidence or intended to prevent sudden danger to person or property; D.D Basu; Commentary on the Constitution of India, 8th Edition 2008, Vol 3, Lexis Nexis Butterworth Wadhwa, Nagpur. [11] AIR 1965 SC 1251 [12] Infra note no; 19 [13] Infra note no; 20 [14] AIR 1961 SC 1808 [15] Infra note no; 18 [16] Supra not no; 2 [17] Supra note no;4 [18] The main issue raised in the case was whether thumb impression, palm impression, specimen signatures etc given during the course of investigation is a compelling any person to be a witness against himself, if the person refuse to give the same. It was in this context the interpretation was made by the majority bench regarding what the phrase to be a witness should mean. However the practical application of the same interpretation will be completely violating the right of the accused. Though speaking for the minority Das Gupta J. also arrived at the same conclusion (with regard to the giving of thumb impression, signatures etc, which was the main question in issue in this case) but with some different logic than those of the majority. However still the opinion and views expressed by the judge needs special attention as it has completely and clearly shown what could be the disastrous consequences of the majority decision. In this case the constitutional validity of Section 91(1) of the code of Criminal Procedure was challenged. It was contended that if the any officer or any court issue any notice or summon to any person accused of any offence, to produce any document which would have tendency to expose the person to criminal charges, the summon or order issued will be against the fundamental right of self incrimination. Therefore the term any person in section 91(1) does not include the accused person as if he will not obey the summon or order still he can be prosecuted under section 174 of the IPC, 1860, which is nothing but a compulsion being put upon the accused to incriminate himself.

[21] This could be attributed from the judgment made in the same case by Shah J. stating that: If by summoning a person who is accused before the court to produce document or things, he is compelled to be a witness against himself, the summons and all proceedings taken thereon by the court will be void. This protection must undoubtly be made effective, but within the sphere delimited by the judgment of this court in Kalu Oghads case. [22] It is in light of theory of interrelationship of fundamental right developed by the Honorable Supreme Court in Menka Gandhi v Union Of India, AIR 1978 SC 597, that all other fundamental rights are now subject to the procedure established by law under Article21 of the Constitution Of India. Article 21 states that: No person shall be deprived of his life or personal liberty except according to procedure established by law.
he Supreme Court in Bhushan Kumar Vs. State (NCT of Delhi) has discussed the relevant provisions of the Code of Criminal Procedure, 1973 to answer the questions posed before it; (a) Whether taking cognizance of an offence by the Magistrate is same as summoning an accused to appear? (b) Whether the Magistrate, while considering the question of summoning an accused, is required to assign reasons for the same? While asnwering the aforesaid questions, the Supreme Court held as under; 5. The questions which arise for consideration in these appeals are: (a) Whether taking cognizance of an offence by the Magistrate is same as summoning an accused to appear? (b) Whether the Magistrate, while considering the question of summoning an accused, is required to assign reasons for the same? 6. In this context, it is relevant to extract Sections 190 and 204 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) which read as under: 190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence(a) upon receiving a complaint of facts which constitute such offence ; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try. 204. Issue of process. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be(a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87. 7. In S.K. Sinha, Chief Enforcement Officer vs. Videocon International Ltd. & Ors., (2008) 2 SCC 492, the expression cognizance was explained by this Court as it merely means become aware of and when used with reference to a court or a Judge, it connotes to take notice of judicially. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. 8. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code. 9. A summon is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court. 10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued. 11. Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith. 12. In Kanti Bhadra Shah & Anr. vs. State of West Bengal (2000) 1 SCC 722, the following passage will be apposite in this context: 12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial (emphasis supplied) 13. In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & Ors. (1976) 3 SCC 736, this Court held that it is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that in deciding whether a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by

him. It was further held that once the Magistrate has exercised his discretion, it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. 14. In Dy. Chief Controller of Imports & Exports vs. Roshanlal Agarwal & Ors. (2003) 4 SCC 139, this Court, in para 9, held as under: 9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd.(2000) 3 SCC 745 and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722, it was held as follows: (SCC p. 749, para 6) The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. 15. In U.P. Pollution Control Board vs. Dr. Bhupendra Kumar Modi & Anr., (2009) 2 SCC 147, this Court, in paragraph 23, held as under: 23. It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. 16. This being the settled legal position, the order passed by the Magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order. 17. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code. 18. The conclusion of the High Court that the petition filed under Section 482 of the Code is not maintainable cannot be accepted in view of various decisions of this Court. (vide Pepsi Foods Ltd. & Anr. vs. Special Judicial Magistrate & Ors. (1998) 5 SCC 749, Dhariwal Tobacco Products Ltd. & Ors. vs. State of Maharashtra & Anr. (2009) 2 SCC 370 and M.A.A. Annamalai vs. State of Karnataka & Anr. (2010) 8 SCC 524). 19. In the light of the above discussion, we conclude that the petition filed before the High Court under Section 482 of the Code was maintainable. However, on merits, the impugned order dated 30.07.2010 passed by the High Court of Delhi is confirmed, consequently, the appeals fail and the same are dismissed. In view of the dismissal of the appeals, MM/South East 02, Patiala House, New Delhi is free to proceed further in accordance with law, uninfluenced by any observation made in these appeals.