June News letter - Kar · of the Probation of Offenders Act, 1958 (20 of 1958), or any other law for the time being in force are attracted in the case of the accused, it may release

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CONTENTS

• From the President’s

Desk

• Important Amendments

by Parliament

• Important amendments

by the Karnataka State

Legislature

• Important judgments of

Supreme Court of India

• Important judgments of

High Court of Karnataka

• Articles

• Programmes of Karna-

taka Judicial Academy

• Other News

June

2013

From the President’s Desk

June 2013 PAGE 2

From the President’s Desk

June 2013 PAGE 3

CHAPTER XXIA

(Containing sections 265A to 265L inserted by Act 2 of 2006, Section 4.)

PLEA BARGAINING

265A. Application of the Chapter.-

(1) This Chapter shall apply in respect of

an accused against whom-

(a) the report has been forwarded by the

officer in charge of the police station

under section 173 alleging therein

that an offence appears to have been

committed by him other than an

offence for which the punishment of

death or of imprisonment for life or of

imprisonment for a term exceeding

seven years has been provided under

the law for the time being in force; or

(b) a Magistrate has taken cognizance of

an offence on complaint, other than

an offence for which the punishment

of death or of imprisonment for life or

of imprisonment for a term exceeding

seven years, has been provided under

the law for the time being in force,

and after examining complainant and

witnesses under section 200, issued

the process under section 204,

but does not apply where such offence

affects the socio-economic condition of the

country or has been committed against a

woman, or a child below the age of

fourteen years.

Important amendments by the Parliament

June 2013 Karnataka Judicial Academy PAGE 4

(2) For the purposes of sub-section (1), the

Central Government shall, by notification,

determine the offences under the law for the

time being in force which shall be the

offences affecting the socio-economic

condition of the country.

265 B. Application for plea bargaining.

(1) A person accused of an offence may file

application for plea bargaining in the

Court in which such offence is pending

for trial.

(2) The application under sub-section (1)

shall contain a brief description of the

case relating to which the application is

filed including the offence to which the

case relates and shall be accompanied

by an affidavit sworn by the accused

stating therein that he has voluntarily

preferred, after understanding the

nature and extent of punishment

provided under the law for the offence,

the plea bargaining in his case and that

he has not previously been convicted by

a Court in a case in which he had been

charged with the same offence.

(3) After receiving the application under

sub-section (1), the Court shall issue

notice to the Public Prosecutor or the

complainant of the case, as the case

may be, and to the accused to appear

on the date fixed for the case.

(4) When the Public Prosecutor or the

complainant of the case, as the case may

be, and the accused appear on the date

fixed under sub-section (3), the Court

shall examine the accused in camera,

where the other party in the case shall not

be present, to satisfy itself that the

accused has filed the application

voluntarily and where-

(a) the Court is satisfied that the

application has been filed by the accused

voluntarily, it shall provide time to the

Public Prosecutor or the complainant of

the case, as the case may be, and the

accused to work out a mutually

satisfactory disposition of the case which

may include giving to the victim by the

accused the compensation and other

expenses during the case and thereafter

fix the date for further hearing of the case;

(b) the Court finds that the application has

been filed involuntarily by the accused or

he has previously been convicted by a

Court in a case in which he had been

charged with the same offence, it shall

proceed further in accordance with the

provisions of this Code from the stage

such application has been filed under sub-

section (1).

265 C. Guidelines for mutually satisfactory disposition.

In working out a mutually satisfactory

disposition under clause (a) of sub-section



(4) of section 265B, the Court shall follow the

following procedure, namely:-

(a) in a case instituted on a police report, the

Court shall issue notice to the Public

Prosecutor, the police officer who has

investigated the case, the accused and the

victim of the case to participate in the

meeting to work out a satisfactory disposition

of the case: Provided that throughout such

process of working out a satisfactory

disposition of the case, it shall be the duty of

the Court to ensure that the entire process is

completed voluntarily by the parties

participating in the meeting: Provided further

that the accused, if he so desires, may

participate in such meeting with his pleader,

if any, engaged in the case.

(b) in a case instituted otherwise than on

police report, the Court shall issue notice to

the accused and the victim of the case to

participate in a meeting to work out a

satisfactory disposition of the case:

Provided that it shall be the duty of the Court

to ensure, throughout such process of

working out a satisfactory disposition of the

case, that it is completed voluntarily by the

parties participating in the meeting: Provided

further that if the victim of the case or the

accused, as the case may be, so desires, he

may participate in such meeting with his

pleader engage in the case.

265 D. Report of the mutually satisfactory disposition to be submitted before the Court. Where in a meeting under section 265C, a

satisfactory disposition of the case has

been worked out, the Court shall prepare

a report of such disposition which shall be

signed by the presiding officer of the Court

and all other persons who participated in

the meeting and if no such disposition has

been worked out, the Court shall record

such observation and proceed further in

accordance with the provisions of this

Code from the stage the application under

sub-section (1) of section 265B has been

filed in such case.

265 E. Disposal of the case.

Where a satisfactory disposition of the

case has been worked out under section

265D, the Court shall dispose of the case

in the following manner, namely:-

(a) the Court shall award the

compensation to the victim in

accordance with the disposition

under section 265D and hear the

parties on the quantum of the

punishment, releasing of the accused

on probation of good conduct or after

admonition under section 360 or for

dealing with the accused under the

provisions of the Probation of

Offenders Act, 1958 (20 of 1958), or

any other law for the time being in

force and follow the procedure

specified in the succeeding clauses

for imposing the punishment on the

accused; (b) after hearing the parties

under clause (a), if the Court is of the



view that section 360 or the provisions

of the Probation of Offenders Act, 1958

(20 of 1958), or any other law for the

time being in force are attracted in the

case of the accused, it may release the

accused on probation or provide the

benefit of any such law, as the case

may be; (c) after hearing the parties

under clause (b), if the Court finds that

the offence committed by the accused

is not covered under clause (b) or

clause (c), then, it may sentence the

accused to one-fourth of the

punishment provided or extendable, as

the case may be, for such offence.

265 F. Judgment of the Court.

The Court shall deliver its judgment in

terms of section 265E in the open Court and

the same shall be signed by the presiding

officer of the Court.

265 G. Finality of the judgment.

The judgment delivered by the Court under

section 265G shall be final and no appeal

(except the special leave petition under

Article 136 and writ petition under articles

226 and 227 of the Constitution) shall lie in

any Court against such judgment.

265 H. Power of the Court in plea bargaining.

A Court shall have, for the purposes of

discharging its functions under this

Chapter, all the powers vested in respect of

bail, trial of offences and other matters

relating to the disposal of a case in such

Court under this Code.

265 I. Period of detention undergone by the accused to be set off against the sentence of imprisonment.

The provisions of section 428 shall

apply, for setting off the period of

detention undergone by the accused

against the sentence of imprisonment

imposed under this Chapter, in the same

manner as they apply in respect of the

imprisonment under other provisions of

this Code.

265 J. Savings.

The provisions of this Chapter shall

have effect notwithstanding anything

inconsistent therewith contained in any

other provisions of this Code and

nothing in such other provisions shall be

constructed to constrain the meaning of

any provision of this Chapter.

Explanation. – For the purposes of this

Chapter, the expression “Public

Prosecutor” has the meaning assigned to it

under clause (u) of section 2 and includes

an Assistant Public Prosecutor appointed

under section 25.



265 K. Statements of accused not to be used.

Notwithstanding anything contained in

any law for the time being in force, the

statements or facts stated by an accused in

an application for plea bargaining file under

section 265B shall not be used for any other

purpose except for the purpose of this

Chapter.

265 L. Non-application of the Chapter.

Nothing in this Chapter shall apply to any

Juvenile or Child as defined in sub-clause (k)

of section 2 of the Juvenile Justice (Care and

Protection of Children) Act, 2000 (56 of

2000).]

The Code of Criminal Procedure

Section 167(2) :- Procedure when investigation cannot be completed in

twenty-four hours……………………………

*[ No magistrate shall authorize detention

of the accused in custody of the police

under this section unless the accused is

produced before him in person for the first

time and subsequently every time till the

accused remains in the custody of the

police, but the Magistrate may extend

further detention in judicial custody on

production of the accused either in person

or through the medium of electronic video

linkage;]

* Substituted by Act 5 of 2009, Section 14

(a)(i), for clause (b) (with effect from

31.12.2009). Clause (b), before

substitution, stood as under:

“(b) no magistrate shall authorize

detention in any custody under this

section unless the accused is produced

before him;”

**( Provided further that in case of a

woman under eighteen years of age, the

detention shall be authorized to be in the

custody of a remand home or recognized

social institution.)

** Inserted by Act 5 of 2009, Section 14(b)



(with effect from 31.12.2009).

***[Section 195A: Procedure for

witnesses in case of threatening,

etc.– A witness or any other person may file

a complaint in relation to an offence under

section 195A of the Indian Penal Code (45 of

1860).]

*** (Inserted by Act 5 of 2009, Section 17

(with effect from 31.12.2009).

****(Section 437A: Bail to require accused

to appear before next appellate Court.-

(1) Before conclusion of the trial and

before disposal of the appeal, the Court

trying the offence or the Appellate Court, as

the case may be, shall require the accused to

execute bail bonds with sureties, to appear

before the higher Court as and when such

Court issues notice in respect of any appeal

or petition filed against the judgment of the

respective Court and such bail bonds shall

be in force for six months.

(2) If such accused fails to appear, the

bond forfeited and the procedure under

section 446 shall apply.]

****(Inserted by Act 5 of 2009, Section 31

(with effect from 31.12.2009.)


Important amendments by the Karnataka State Legislature

Karnataka Victim Compensation Scheme, 2011 under Section 357(1) of Criminal

Procedure Code

Whereas sub-section (1) of section 357 of Code of Criminal Procedure, 1973 man-dates for the State Government to prepare a scheme in co-ordination with the Central Government for providing funds for the pur-pose of compensation to the victims or his dependents who have suffered loss or injury as a result of the crime and who require re-habilitation.

Now, therefore, in exercise of the pow-ers conferred by section 357-A of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974). The Government of Karnataka hereby frames the following scheme for providing funds for the purpose of compensation to the victims or their dependents who have suf-fered loss or injury as a result of the crime and who require rehabilitation, namely:-

1. Title and Commencement.- (1) This scheme may be called the Karnataka Victim Compensation Scheme, 2011.

(2) It shall come into force on the date of its publication in the Official Gazette.

2. Definitions.- In this scheme, un-less the context otherwise requires:-

“ Act’’ means the Code of Criminal Proce-dure, 1973 (Central Act 2 of 1974);

“District Authority’’ and “State Authori-ty’’ means the District Legal Service Author-ity and State Legal Service Authority as de-fined under the Legal Services Authorities Act, 1987 (Central Act 39 of 1987);

“Schedule’’ means schedule appended to this scheme;

“State’’ means the State of Karnataka.

“Victim ‘’ means a person who himself has suffered loss or injury as a result of crime and require rehabilitation and in-cludes his dependents who had suffered loss or injury as a result of the crime and who require rehabilitation.

3. Victims Compensation Fund.- (1) There shall be a Fund called the Victims Compen-sation Fund.

(2) There shall be credited to the said fund, -

all grants, subventions, donations and gifts made by the Central Government, State Government, any local authority or anybody, whether incorporated or not or any person;

all other sums received by or on behalf of the victims compensation from any source whatsoever.

(3) Except as otherwise directed by the State Government all moneys credited to the Fund shall be invested in any Scheduled Bank or in the State Government Treasury.

4. Application of the Victims Compensa-tion Fund.- The fund shall be applied for carrying out the purposes of this Scheme.

5. Grant by the State Government.- The State Government may every year make a grant to the fund of a sum equivalent to the expenses of the previous year or the proba-ble expenditure requested by the State Legal Service Authority.



6. Eligibility for Compensation.- A victim shall be eligible for the grant of compensation if, -

(1) the offender is not traced or identified, but the victim is identified, and where no tri-al takes place, such victim may also apply for grant of compensation under sub-section (4) of section 357-A of the Act.

(2) the victim/claimant report the crime to the officer-in-charge of the police station within 48 hours of the occurrence or any senior police officer or Executive Magistrate or Judicial Magistrate of the area; Provided that the District Legal Service Authority, if satisfied, for reasons to be recorded in writ-ing , may condone the delay in reporting.

(3) the victim/claimant shall co-operate with the police and prosecution during the investi-gation and trail of the case.

7. Procedure for grant of compensation.- (1) Whenever a recommendation is made by the Court or an application is made by any victim or his dependent under sub section (2) of section 357-A of the Act to the District Le-gal Service Authority, the District Legal Ser-vice Authority shall examine the case and verify the contents of the claim with regard to the loss or injury caused to the victim and arising out of the reported criminal activity and the District Legal Service Authority may call for any other relevant information neces-sary in order to determine genuineness of the claims. After verifying the claim, the District Legal Service Authority shall after due en-quiry award compensation within two months, in accordance with the provisions of this scheme.

(2) Compensation under this Scheme shall be paid subject to the condition that if the trial court while passing judgments at a later date, orders the accused persons to pay any amount by way of compensation under sub-section (3) of section 357 of the Act , is paid or recovered and paid to the victim/claimant shall remit an amount ordered equal to the amount of compensation, or the amount or-

dered to be paid under the said sub section (3) of section 357 of the Act, whichever is less. An undertaking to this effect shall be given by the victim/claimant before the dis-bursal of the compensation amount.

(3) The District Legal Service Authority shall decide the quantum of compensation to be awarded to the victim or his dependents on the basis of loss caused to the victim, medi-cal expenses to be incurred on treatment, minimum sustenance amount required for rehabilitation including such incidental charges as funeral expenses etc. The com-pensation may vary from case to case de-pending on fact of each case.

(4) The quantum compensation to be award-ed to the victim or his dependents shall not exceed the maximum limit specified in Schedule 1.

(5) The amount of compensation decided under the Scheme shall be disbursed to the victim or his dependents as the case may, be from the Fund through cheque.

(6) Compensation received by the victim from the State in relation to the crime in question, namely insurance, exgratia and /or payment received under any other Act or State run scheme that includes compensa-tion awarded by State/National Human Rights Commissions or any Court/Commission shall be considered as part of the compensation amount under this scheme and if the eligible compensation amount exceeds the payments received by the victim from collateral sources mentioned above, the balance amount only shall be paid out of Fund.

(7) The Cases covered under Motor Vehicle Act, 1988, (59 of 1988) wherein compensa-tion is to be awarded by the Motor Accident Claims Tribunal, shall not be covered under the Scheme.



(8) The District Legal Services Authority, to alleviate the suffering of the victims, may order for immediate first aid facility or medical benefits to be made available free of cost on the Certificate of the Po-lice Officer not below the rank of the Of-ficer-in-charge of the police station or Magistrate of the area concerned or any other interim relief as it may deems fit.

(9) The District Legal Service Authority shall not allow any participation or representation by a legal practitioner or any other person or institution or Non-Governmental Organisa-tion on behalf of the victim/claimant.

(10) If a victim or his dependents have ob-tained an order sanctioning compensation under this scheme based on false/vexatious/fabricated complaint which is so held by the trial Court, the compensa-tion awarded shall be recovered with 15% in-terest per annum.

8. Order to be placed on record.- Copy of the order of compensation passed under this Scheme shall be mandatorily placed on record of the trail Court to pass order of compensation under sub-section (3) of sec-tion 357 of the Act.

9. Limitation.- No claim made by the victim or his dependents under sub-section (4) of section 357-A of the Act shall be entertained after a period of twelve months from the date of the crime. Provided that the District Legal Authority, if satisfied for the reasons to be recorded in writing, may condone the delay in filing the claim.

10. Appeal.- Any victim aggrieved of the de-

nial of compensation by the District Legal

Service Authority may file an appeal before

the State Legal Service Authority within a

period of ninety days: Provided that the

State Legal Services Authority, if satisfied,

for the reasons to be recorded in writing,

may condone the delay in filing the appeal.

SL.

No.

Particulars of Loss or Injury Due to Crime Maximum Limit of quantum of Com-pensation

01. Loss of Life Rs. 2.00 Lakhs

02. Loss of any limb or part of body resulting 80% or above handi-cap

Rs. 1.00 Lakhs

03. Loss of any limb or part of body resulting 40% % below 80% handicap

Rs. 50,000/-

04. Rape of Minor Rs. 50,000/-

05. Rape Rs. 40,000/-

06. Rehabilitation necessitated due to damage to house, vehicle etc. Rs. 20,000/-

07. Loss of any limb or part of body resulting below 40% handicap Rs. 20,000/-

08. Grievous injuries other than the injuries mentioned above Rs. 10,000/-

09. Women and Child victims in cases like human trafficking, who themselves or their dependents have suffered separation, dislo-cation and disturbance

Rs. 10,000/-

Important judgments of the Supreme Court of India


27. The amount of compensation, observed

this Court, was to be determined by the

Courts depending upon the facts and cir-

cumstances of each case, the nature of the

crime, the justness of the claim and the ca-

pacity of the accused to pay.

31. England was perhaps the first to adopt

a separate statutory scheme for victim com-

pensation by the State under the Criminal

Injuries Compensation Scheme, 1964. Un-

der the Criminal Justice Act, 1972 the idea

of payment of compensation by the offender

was introduced. The following extract from

the Oxford Handbook of Criminology (1994

Edn., p.1237-1238), which has been quoted

with approval in Delhi Domestic Working

Women's Forum v. Union of India and Ors.

(1995) 1 SCC 14 is apposite:

“Compensation payable by the offender was

introduced in the Criminal Justice Act 1972

which gave the Courts powers to make an

ancillary order for compensation in addition

to the main penalty in cases where 'injury',

loss, or damage' had resulted. The Criminal

Justice Act 1982 made it possible for the

first time to make a compensation order as

the sole penalty. It also required that in cas-

es where fines and compensation orders

were given together, the payment of com-

pensation should take priority over the fine.

These developments signified a major shift

in penology thinking, reflecting the growing

importance attached to restitution and rep-

Ankush Shivaji Gaikwad Vs. State of Ma-harashtra

T.S.Thakur & Mrs. Gyan Sudha Misra JJ

2013 AIR SCW 3153

Hon’ble Supreme Court While dealing

with interpretation of the word ‘May’

occurring in Section 357 crpc has held

as below:

26…………………..“…. Sub-section (1) of Sec-

tion 357 provides power to award compensa-

tion to victims of the offence out of the sen-

tence of fine imposed on accused… It is an

important provision but Courts have seldom

invoked it. Perhaps due to ignorance of the

object of it. It empowers the Court to award

compensation to victims while passing judg-

ment of conviction. In addition to conviction,

the Court may order the accused to pay

some amount by way of compensation to vic-

tim who has suffered by the action of ac-

cused. It may be noted that this power of

Courts to award compensation is not ancil-

lary to other sentences but it is in addition

thereto. This power was intended to do

something to reassure the victim that he or

she is not forgotten in the criminal justice

system. It is a measure of responding appro-

priately to crime as well of reconciling the

victim with the offender. It is, to some ex-

tent, a constructive approach to crimes. It is

indeed a step forward in our criminal justice

system. We, therefore, recommend to all

Courts to exercise this power liberally so as

to meet the ends of justice in a better way.



aration over the more narrowly retributive

aims of conventional punishment. The Crimi-

nal Justice Act 1982 furthered this shift. It

required courts to consider the making of a

compensation order in every case of death,

injury, loss or damage and, where such an

order was not given, imposed a duty on the

court to give reasons for not doing so. It also

extended the range of injuries eligible for

compensation. These new requirements

mean that if the court fails to make a com-

pensation order it must furnish reasons.

Where reasons are given, the victim may ap-

ply for these to be subject to judicial review.

The 1991 Criminal Justice Act contains a

number of provisions which directly or indi-

rectly encourage an even greater role for

compensation...”

34…………..“Restitution

8. Offenders or third parties responsible for

their behaviour should, where appropriate,

make fair restitution to victims, their families

or dependants. Such restitution should in-

clude the return of property or payment for

the harm or loss suffered, reimbursement of

expenses incurred as a result of the victimi-

zation, the provision of services and the res-

toration of rights.

9. Governments should review their practic-

es, regulations and laws to consider restitu-

tion as an available sentencing option in

criminal cases, in addition to other criminal

sanctions.

10. In cases of substantial harm to the envi-

ronment, restitution, if ordered, should in-

clude, as far as possible, restoration of the

environment, reconstruction of the infra-

structure, replacement of community facili-

ties and reimbursement of the expenses of

relocation, whenever such harm results in

the dislocation of a community.

11. Where public officials or other agents

acting in an official or quasi-official capacity

have violated national criminal laws, the vic-

tims should receive restitution from the

State whose officials or agents were respon-

sible for the harm inflicted. In cases where

the Government under whose authority the

victimizing act or omission occurred is no

longer in existence, the State or Government

successor in title should provide restitution

to the victims.

Compensation

12. When compensation is not fully availa-

ble from the offender or other sources,

States should endeavour to provide financial

compensation to:

(a) Victims who have sustained significant

bodily injury or impairment of physical or

mental health as a result of serious crimes;

(b) The family, in particular dependants of

persons who have died or become physically

or mentally incapacitated as a result of such

victimization.



13. The establishment, strengthening and

expansion of national funds for compensa-

tion to victims should be encouraged. Where

appropriate, other funds may also be estab-

lished for this purpose, including in those

cases where the State of which the victim is a

national is not in a position to compensate

the victim for the harm.”

36. Amongst others the following provisions

on restitution and compensation have been

made:

“12. Restitution shall be provided to reestab-

lish the situation that existed prior to the vio-

lations of human rights or international hu-

manitarian law. Restitution requires inter

alia, restoration of liberty, family life citizen-

ship, return to one's place of residence, and

restoration of employment or property.

13. Compensation shall be provided for any

economically assessable damage resulting

from violations of human rights or interna-

tional humanitarian law, such as :

(a) Physical or mental harm, including pain,

suffering and emotional distress;

(b) Lost opportunities including education;

(c) Material damages and loss of earnings,

including loss of earning potential;

(d) Harm to reputation or dignity;

(e) Costs required for legal or expert assis-

tance, medicines and medical services.”

37. Back home the Criminal Procedure Code

of 1898 contained a provision for restitution

in the form of Section 545, which stated in

sub-clause 1(b) that the Court may direct

“payment to any person of compensation for

any loss or injury caused by the offence

when substantial compensation is, in the

opinion of the Court, recoverable by such

person in a Civil Court”.

38. The Law Commission of India in its 41st

Report submitted in 1969 discussed Section

545 of the Cr.P.C. of 1898 extensively and

stated as follows:

“46.12. Under clause (b) of sub-sec. (1) of

Section 545, the Court may direct “payment

to any person of compensation for any loss

or injury caused by the offence when sub-

stantial compensation is, in the opinion of

the Court, recoverable by such person in a

Civil Court.” The significance of the require-

ment that compensation should be recover-

able in a Civil Court is that the act which

constitutes the offence in question should

also be a tort. The word “substantial” ap-

pears to have been used to exclude cases

where only nominal damages would be re-

coverable. We think it is hardly necessary to

emphasise this aspect, since in any event it

is purely within the discretion of the Crimi-

nal Courts to order or not to order payment

of compensation, and in practice, they are

not particularly liberal in utilizing this provi-



sion . We propose to omit the word

“substantial” from the clause.”

48. In Smt. Bachahan Devi and Anr. v. Na-

gar Nigam, Gorakhpur and Anr. AIR 2008

SC 1282, this Court while dealing with the

use of the word “may” summoned up the le-

gal position thus:

“...It is well-settled that the use of word `may'

in a statutory provision would not by itself

show that the provision is directory in na-

ture. In some cases, the legislature may use

the word `may' as a matter of pure conven-

tional courtesy and yet intend a mandatory

force. In order, therefore, to interpret the le-

gal import of the word `may', the court has to

consider various factors, namely, the object

and the scheme of the Act, the context and

the background against which the words

have been used, the purpose and the ad-

vantages sought to be achieved by the use of

this word, and the like. It is equally well-

settled that where the word `may' involves a

discretion coupled with an obligation or

where it confers a positive benefit to a gen-

eral class of subjects in a utility Act, or where

the court advances a remedy and suppresses

the mischief, or where giving the words direc-

tory significance would defeat the very object

of the Act, the word `may' should be inter-

preted to convey a mandatory force...”

57. Section 357 Cr.P.C. confers a duty on

the Court to apply its mind to the question

of compensation in every criminal case. It

necessarily follows that the Court must dis-

close that it has applied its mind to this

question in every criminal case. In Maya

Devi (Dead) through LRs and Ors. v. Raj

Kumari Batra (Dead) through LRs and

Ors. (2010) 9 SCC 486, this Court held

that disclosure of application of mind is best

demonstrated by recording reasons in sup-

port of the order or conclusion. The Court

observed:

“28. ...There is nothing like a power without

any limits or constraints. That is so even

when a court or other authority may be

vested with wide discretionary power, for

even discretion has to be exercised only

along well-recognised and sound juristic

principles with a view to promoting fairness,

inducing transparency and aiding equity.

29. What then are the safeguards against an

arbitrary exercise of power? The first and

the most effective check against any such

exercise is the well-recognized legal principle

that orders can be made only after due ap-

plication of mind. Application of mind

bringsreasonableness not only to the exer-

cise of power but to the ultimate conclusion

also. Application of mind in turn is best

demonstrated by disclosure of mind. And

disclosure is best demonstrated by record-

ing reasons in support of the order or con-

clusion.



30. Recording of reasons in cases where the

order is subject to further appeal is very im-

portant from yet another angle. An appellate

court or the authority ought to have the ad-

vantage of examining the reasons that pre-

vailed with the court or the authority making

the order. Conversely, absence of reasons in

an appealable order deprives the appellate

court or the authority of that advantage and

casts an onerous responsibility upon it to ex-

amine and determine the question on its

own...”

62. To sum up: While the award or refusal of

compensation in a particular case may be

within the Court's discretion, there exists a

mandatory duty on the Court to apply its

mind to the question in every criminal case.

Application of mind to the question is best

disclosed by recording reasons for award-

ing/refusing compensation. It is axiomatic

that for any exercise involving application of

mind, the Court ought to have the necessary

material which it would evaluate to arrive at

a fair and reasonable conclusion. It is also

beyond dispute that the occasion to consid-

er the question of award of compensation

would logically arise only after the court rec-

ords a conviction of the accused. Capacity of

the accused to pay which constitutes an im-

portant aspect of any order under Section

357 Cr.P.C. would involve a certain enquiry

albeit summary unless of course the facts as

emerging in the course of the trial are so

clear that the court considers it unneces-

sary to do so. Such an enquiry can precede

an order on sentence to enable the court to

take a view, both on the question of sen-

tence and compensation that it may in its

wisdom decide to award to the victim or

his/her family.

June 2013 Karnataka Judicial Academy PAGE 17 Karnataka Judicial Academy PAGE 17

Important judgments of the High Court of Karnataka

ment is of a larger Bench and the lat-

ter judgment is of a smaller Bench,

then the decision of the larger Bench

will be binding. In The State of U.P.

Vs. Ram Chandra Trivedi, AIR 1976

SC 2547 , the Supreme Court held

that where the High Court finds a con-

flict between the views expressed by a

larger Bench and a smaller Bench, the

proper course for the High Court is to

find out the ratio decidendi of the de-

cision of the larger Bench and follow

the same in preference to the opinion

expressed by the smaller Bench.

Hence I am bound to follow the deci-

sions in Satendra Prasad Jain's case,

supra and Pratap's case, supra, which

are of larger Benches, instead of fol-

lowing the decision in Mariyappa's

case, supra, which is of a smaller

Bench.

IN THE HIGH COURT OF KARNATAKA,

AT BANGALORE,

(2001) 4 KarLJ 185 = (2001) 1 KCCR

325 = ILR 2001 KAR 2689

Judge: R.V.Raveendran

Petitioner: D.V.Lakshmana Rao

Respondent: State of Karnataka and

Others

While dealing with the principles of law

of precedents the Hon’ble High Court

of Karnataka has observed as follows:

14. It is now well-settled that if there are

two conflicting judgments of the Supreme

Court, of Benches with equal number of

Judges, then the latter will prevail over

the earlier. But where the earlier judg-


Quotation (f) refers to “factual conclusions”.

There is an accepted way for a judge to pro-

ceed to arrive at a final conclusion regarding

the charge or the guilt of the accused. Pros-

ecution may rely on direct testimony (of eye

witnesses) or indirect testimony (i.e. relating

to circumstances) spoken to by witnesses,

such as motive, previous quarrel, previous

threat or behaviour, acts of preparation

such as procuring a weapon or poison, op-

portunity, subsequent conduct of accused

such as hiding his own blood-stained

clothes or knife, absconding, judicial confes-

sion, extra-judicial confession not hit by

sections 24 to 26 of the Act and other cir-

cumstances. These are the obviously the

facts or circumstances referred to as “basic

or primary facts” by the Constitution Bench

in M.G.Agarwal’s case. There can be no

doubt that the observations in Inrewinship

are to the effect that proof beyond reasona-

ble doubt is required in respect “of every

fact necessary to constitute the crime”.

What are the facts necessary to constitute

the crime? There may several basic or pri-

mary facts whose cumulative effect leads to

an inference of guilt beyond reasonable

doubt. These facts which enable such an

inference are not “facts which constitute

crime” which are really “facts in issue” as

defined in section 3 of the Act in the light of

the illustrations. In other words, those facts

DEFINITION OF “PROVED” IN SECTION 3 OF INDIAN EVIDENCE ACT, 1872 (FOR SHORT THE ACT)

32. Inrewinship (Majority and concurring

judgments) does not contain any other ob-

servations relating to degree of proof of “fact

in issue” or “relevant fact” or “basic or pri-

mary facts” except those quoted in para-

graph 30 and 31 supra and serialized as (a)

to (g). Do they support any proposition that

proof of all “facts” in a criminal case must be

proved beyond reasonable doubt? In the

said judgments, it is repeatedly stated that

burden which lies on the prosecution is to

prove the charge or guilt of the accused or

the “essential elements of guilt” beyond rea-

sonable doubt. See quotations in clauses

(a), (b), (d) and (g). This, of course, with

great respect, is unexceptionable. By

“essential elements of the crime” is meant

‘Actus reus’ and ‘Mens rea’

Quotations (c) and (e) refer to need to prove

beyond reasonable doubt, “the existence of

every fact necessary to constitute the crime

charged”. This does not comprehend every

“relevant fact” as defined in Indian Evidence

Act, but only the facts necessary to consti-

tute the crime, that is, “fact in issue” which

means ‘actus reus’ and ‘mens rea’. “Every

fact necessary to constitute the crime”

means the facts in issue and not relevant or

circumstantial facts.

Article

(Continued from last News letter)


(Emphasis supplied)

Page 412 to 414: “It is generally and

properly said that this measure of

reasonable doubt need not be ap-

plied to the specific detailed facts,

but only to the whole of the issue

and herein is given an opportunity

for much vain argument whether the

strands of a cable or the links of a

chain furnish the better similar for

listing the measure of persuasion.”

The truth is that no one has yet in-

vented or discovered a mode of

measurement for the intensity of hu-

man belief.

(Emphasis supplied)

Page 416: (Footnote 2 bottom). “A

later case, Jackson Vs. Virgenia, 443

U.S. 307 (1979) expounds the doc-

trine; “WINSHIP presupposes as an

essential of the due process guaran-

teed by the Fourteenth Amendment

that no person shall be made to suf-

fer the onus of a criminal conviction

except upon sufficient proof - defined

as evidence necessary to convince a

trier of fact beyond reasonable

doubt, of the existence of every ele-

ment of the offence.”

(Emphasis supplied)

Page 416 and 417: “In Inrewinship,

which constitute the crime are the factual

ingredients found in the definition of the of-

fence in the penal law (actus reus, mens rea,

common intention, common object, conspir-

acy, constructive liability, etc.) and statutory

defences, if any, raised by the accused (such

as right of private defence, insanity, etc.).

These facts constitute, “facts in issue” and

these are “facts necessary to constitute the

crime”. These facts in issue or facts neces-

sary to “constitute” the crime are, according

to Inrewinship, required to be proved beyond

reasonable doubt. Other facts, which may

be just introductory facts (in the general

sense) and relevant facts (under the Act) are

not facts in issue and fall within the descrip-

tion of “basic or primary facts” mentioned in

M.G.Agarwal’s case and such facts are re-

quired to be proved in the ordinary way, that

is, as prescribed in the definition of “proved”

in section 3 of the Act which means belief,

that is to say, preponderance of probability.

33. In this connection, I may refer to cer-

tain passages in WIGMORE “on evidence in

trials at common law” (Tillers edition) Vol.-

IX.

Page 405. “The tribunal must be per-

suaded to believe the affirmation of

the burden bearer before it can be

asked to act as desired, but that per-

suasion or conviction in the mind of

the tribunal may have more than one

degree of quality or persuasion.”

Article


the defendant.””

“The strict standard is not applica-

ble to evidence of criminal acts of-

fered evidentially to show motive,

intent etc. Cases cited in para 216

note 4 supra.”

(Emphasis supplied)

34. The following statements in CRIMI-

NAL EVIDENCE (4TH ED.) by Richard May

are also significant: -

Page 65 – Para 4-37: “Proof of guilt

beyond a reasonable doubt ---------

many attempts have been made to

define a reasonable doubt -------- the

standard of proof is a high one, but

it is important that it should not be

confused with absolute certainty

(Bracewell (1979) 68 Cr. Appeal R.

44 C.A.). Thus in R. H. (minors)

(1996) 2 W.L.R. 8, 24 Lord Nicholls

said “The law looks for probability,

not certainty, certainty is seldom at-

tainable. But probability is an un-

satisfactorily vague criterion because

there are degrees of probability.

(Emphasis supplied)

In Miller –Vs- Minister of pensions

1947(2) All ER 372, 373, Lord Den-

ning said “That degree is well-settled.

It need not reach certainty, but it

must carry a high degree of probabil-

the supreme court held, for reasons

set forth below that the due process

clause protects the accused against

conviction, except upon proof beyond

a reasonable doubt of every fact nec-

essary to constitute the crime with

he is charged.”

(Emphasis supplied)

Page 418: “In Patterson Vs. New

York, 432 U.S. 197 (1977) under the

New York Law, White J. reasoned for

the majority as follows: -

“……..we therefore will not disturb

the balance struck in previous cases

holding that the due process clause

requires the prosecution to prove be-

yond a reasonable doubt all of the

elements included in the definition of

the offence of which the defendant is

charged.”

(Emphasis supplied)

Page 413: (Footnote 2) “California

People Vs. Kelinbinberg, 90 Cal.

App.2d. 608, 632, 634 P2d 47, 62

(1949) – “It is not the law -----------

that each fact in a chain of circum-

stances that will establish a defend-

ants guilt must be proved beyond

reasonable doubt ---------- Doctrine

of reasonable doubt applies to proof

of guilt and not to establishment of

each incident or event inculpating

Article


satisfied on a balance of probabilities

(Miller –Vs- Minister of pensions

1947(2) All ER 372-374) the more

serious the allegation, for example,

fraud, crime or professional miscon-

duct, the higher will be the required

degree of proof, although it will not

reach the criminal law stand-

ard………….

In Criminal case, the standard re-

quired of the prosecution is proof

beyond reasonable doubt.

Page 23 – Para 29 – Proper evalua-

tion of the weight of evidence given

by different witnesses is a matter

for the common sense and impres-

sion of the judge or jury

Page 74:- “Sure” does not mean cer-

tainty. To require certainty of legal

proof would produce absurdity.”

(Emphasis supplied)

36. Following are of the statements found in

CRIMINAL PLEADINGS, EVIDENCE AND

PRACTICE BY Archibald:-

Page 447 – Para 4-384:- “while the

prosecution do not have to make the

jury feel certain of the accused’s guilt

(miller, 1947(2) All ER 372) per Den-

ning at Pages 373, 374, R -Vs0 Brace-

well 68 Cr.Appeal R44(A) they must

satisfy the jury, upon the whole evi-

ity. Proof beyond doubt does not

mean proof beyond a shadow of rea-

sonable doubt ------.

(Emphasis supplied)

Page 67 – Para 4-39: In Miller Vs.

Minister of pensions supra, Lord

Denning observed, dealing with the

burden resting on the defence, that if

the evidence is such that the Tribu-

nal says “we think it more probable

than not, the burden is discharged,

but if the probabilities are equal, it is

not”. That, according to Miles.J. in

Cooper Vs. Slade (1857-58) 6 HL

case 746, is exactly the burden in a

civil case, that is, preponderance of

probability.”

(Emphasis supplied)

35. Here are some of the observations in

Halsburys’ Laws of England, Vol.17, 4th Edi-

tion: -

“To succeed on any issue the legal

burden of proof must (1) satisfy a

judge or jury of the likelihood of

truth of his case by adducing a great-

er weight of evidence than his oppo-

nents and (2) adduce evidence suffi-

cient to satisfy them to the required

standard of proof. The standard dif-

fers in criminal and civil cases --------

In civil cases, the standard of proof is

Article


38. In C.H.Razik Ram Vs. C.H.Jaswant

Singh Chowhan and others, (1975) 4 SCC

769, the supreme court considered if an al-

leged corrupt practice had been proved, in-

dicating also that the standard of proof in

the case of a charge of corrupt practice is

substantially akin to a criminal charge and

hence each and every ingredient of the

charge must be proved by clear, unequivo-

cal and unimpeachable evidence beyond

reasonable doubt. The court further ob-

served as follows (para 15) :-

“It is true that there is no difference

between the general rules of evidence

in civil and criminal cases and the

definition of “proved” in section 3 of

the Evidence Act doesnot draw a dis-

tinction between civil and criminal

case. Nor does this definition insist

on perfect proof because absolute

certainty amounting to demonstra-

tion is rarely to be had in the affairs

of life. Nevertheless, the standard of

measuring proof prescribed by the

definition, is that of a person of pru-

dence and practical good sense.

“Proof” means the effect of evidence

adduced in the case. Judged by the

standard of a prudent man, in the

light of the nature of the onus cast

by law, the probative effect of evi-

dence in civil and criminal proceed-

ings is markedly different. The same

dence called by all the parties, of the

accused’s guilt beyond all reasonable

doubt……… it is well established that

the standard of proof is less than cer-

tainty. Expressions (in instructions to

juries) such as “pretty certain, reasona-

bly sure and pretty sure” were disap-

proved by the court of criminal appeal.

R -Vs- Law (1961) Crl.R 52, R -Vs-

Head and warren, 45 Cr.Appeal. R.225

and R -Vs- woods (1961) Crl.R.324). It

is therefore better to give “reasonable

doubt” direction. In R Vs. Bentley

(1999) Crim.L.R. 330, the court of ap-

peal said, as to standard of proof, that a

jury should be instructed that if on re-

viewing all evidence, they are unsure or

left in any reasonable doubt as to the

accused’s guilt, that doubt must be re-

solved in accused’s favour.

(Emphasis supplied)

37. Here are some of the statements in

Jeremy Bentham’s Rationale of Judicial Evi-

dence, Prevention of Deception: -

Page 60: - “Quantity of probative

force incident to the body of evidence,

is manifestly, as above explained,

susceptible of degrees and conforma-

ble to the tendency of the evidence. It

is not necessary that the probative

force of it should in every instance be

at the highest degree.

(Emphasis supplied)

Article


“preponderance of probability”.

The two parts do not indicate two differ-

ent alternative standards.

The first part “believes” is not self-

explanatory and has no guidelines; the

guidelines are actually provided in the

second part, which is explanatory or

expository or interpretative. A judge

believes the existence of a fact when

there is a preponderance of probability

in favour of it.

The element of “proof beyond reasonable

doubt” is not comprised in the defini-

tion. This element regarding proof of

“facts in issue” in criminal cases, that

is to say, guilt of accused of the crime

or offence charged was introduced by

judges in England and India.

The requirement of “proof beyond rea-

sonable doubt” does not apply to proof

in civil cases or proof of “basic or pri-

mary facts” (that is, facts which are

merely relevant facts) in criminal cases.

Proof of any fact under section 3 of the-

Act depends on preponderance of prob-

ability in civil and criminal cases

(except that, in criminal cases, the facts

in issue, that is, the offence or the in-

gredients of the offence charged must

be proved beyond reasonable doubt).

The words “belief” and “believes”, by

themselves donot point to any particu-

evidence which may be sufficient to

regard a fact as proved in a civil suit,

may be considered insufficient for

conviction in a criminal action.

While in the former, a mere prepon-

derance of probability may constitute

an adequate basis of decision, in the

latter a far higher degree of assur-

ance and judicial certitude is requi-

site for a conviction. The same is

true about proof charge of a corrupt

practice, which cannot be estab-

lished by a mere preponderance of

probabilities, and if, after giving due

consideration and effect to the totali-

ty of the evidence and circumstances

of the case, the mind of the court is

left rocking with reasonable doubt –

not being the doubt of a timid, fickle

or vacillating mind – as to the veraci-

ty of the charge, it must hold the

same as not proved.”

(Emphasis supplied)

39. The following principles emerge from

the above discussion: -

Definition of “proved” in section 3 of the

Act applies equally in civil and criminal

cases.

“Fact” referred to in the definition em

braces “fact in issue” and “relevant fact”.

The definition apparently has two parts.

The first part refers to “believes” and the

second part uses language which means

Article


Relative certainty and not absolute cer-

tainty in conclusions is the guiding

factor. Relative certainty is to be test-

ed on the basis of appreciation of prob-

abilities. Every judge (court) has to ar-

rive at conclusions based on estab-

lished principles of law, rules of pre-

sumption, his own judicial experience,

common sense and trained intuition.

His approach is as objective as possi-

ble though an element of subjectively

will necessarily enter the picture. The

standard prescribed in the definition is

not what a prudent may adopt, but

which such a person “ought” to adopt.

lar degree or standard of proof. These

words, by their natural meaning inhere

different degrees of intensity. These

words donot give rise to the idea of

“absolute certainty” for such certainty

can be achieved only by “perfect evi-

dence”, both of which are unattainable

or unavailable through the medium of

human witness. See Inder singh AIR

1990 SC 1459. The expression

“relatively certain” would be a more ap-

propriate one.

The decision of the Constitution Bench of

the supreme court in M.G.Agarwal (AIR

1963 SC 200 – Para 18) has stood the

test of time. It has not been

“explained” or “read down” in any later

decision. On the other hand, it has

been followed in later decisions, as

seen in para 13 above.

Article

Programmes of Karnataka Judicial Academy

SouthZoneRegionalJudicialConferenceon“AdministrationofCriminalJustice:Issuesand

Challenges”wasconductedbyHon’bleHighCourtofKarnataka,NationalJudicialAcademy&

KarnatakaJudicialAcademyfrom14.06.13to16.06.13


Hon’bleMr.JusticeH.L.Dattu,Judge,SupremeCourtofIndia,Hon’bleMr.JusticeV.GopalaGowda,

Judge,SupremeCourtofIndia,Hon’bleMr.JusticeD.H.Waghela,ChiefJustice,HighCourtofKarna-

taka&Patron-in-Chief,KarnatakaJudicialAcademy&Hon’bleMr.JusticeN.Kumar,Judge,High

CourtofKarnataka&President,KarnatakaJudicialAcademyandHon’bleMr.JusticeS.B.Sinha,

FormerJudge,SupremeCourtofIndia,attheinauguralfunction.

Hon’bleMr.JusticeS.B.Sinha,FormerJudge,SupremeCourtofIndia&Hon’bleMr.Justice

D.H.Waghela,ChiefJustice,HighCourtofKarnataka&Patron-in-Chief,KarnatakaJudicial

Academyaddressingtheinauguralsession.



TheJudicialof�icersofKarnataka,Tamilnadu,AndhraPradeshand

KeraladuringGroupDiscussions.

Hon’ble Justice Smt.Manjula Chellur, Chief Justice, High Court of Kerala & Other digni-

taries graced the South Zone Regional Judicial Conference 2013 held at KJA.



Hon’bleChiefJusticeD.H.Waghela,HighCourtofKarnataka&Patron-in-Chief,KarnatakaJudicial

Academy&Hon’bleMr.JusticeN.Kumar,Judge,HighCourtofKarnataka&President,Karnataka

JudicialAcademyinauguratedthe4thFloorHostelBuildingofKarnatakaJudicialAcademyon

13.06.13atKJA,Bangalore.

Hon’bleChiefJusticeD.H.Waghela,HighCourtofKarnataka&Patron-in-Chief,Karnataka

JudicialAcademyinauguratedthePowerGymon13.06.13atKJA,Bangalore.

ThePresident&BoardofGovernorsofKJA&Hon’bleJudgesofHighCourtofKarnataka

werepresentontheOccasion.

Other News

OnedayDissemination/Review&PlanningMeetforJudicialOf2icersonPerspec-

tiveofMarginalizedWoman&LawwasConductedinassociationwithKHPTand

NLSIUon23rdJune2013atKJA.


Hon’bleMr.JusticeN.Kumar,Judge,HighCourtofKarnatakaandPresident,Karna-

takaJudicialAcademyinauguratedtheprogrammeandaddressedtheJudicial

Of/icers

StateBarCouncilhadorganizedtrainingforenrollingadvocateson28.06.2013&

05.07.2013atKarnatakaJudicialAcademy,Bangalore.

Other News


GOVERNANCE

Board of Governors

Hon’ble Mr.Justice Ashok B.Hinchigeri

Judge, High Court of Karnataka

Hon’ble Mr.Justice A.S.Bopanna


Hon’ble Mrs. Justice B.V.Nagarathna


Hon’ble Mr.Justice B.V.Pinto


Patron-in-Chief

Hon’ble Chief Justice D.H.Waghela

High Court of Karnataka

President

Hon’ble Mr.Justice N.Kumar


KARNATAKA JUDICIAL ACADEMY

Documents

June News letter - Kar · of the Probation of Offenders Act, 1958 (20 of 1958), or any other law for the time being in force are attracted in the case of the accused, it may release