Important services in the field of Indian Criminal laws:
* In house arrangements for Indian criminal lawyers who are well versed with all kinds of criminal trial procedure, bail matters including anticipatory bails.
* Services related to filing of Bail applications, bail, anticipatory bail, bail under matrimonial disputes, anticipatory bails under 498 A.
* We also provide highly trained and specialized Indian Attorneys for criminal trials, criminal appeal, criminal revision, 482 Crpc petition, quashing of charges petition, quashing of FIR petition, compounding of offence petitions, compromise petitions.
* Defending and launching of 138 negotiable Instruments Act cases, recovery of money, criminal complaints related to cheating, forgery, extortion, misappropriation of money, fabrication of documents, tampering of documents, criminal breach of trust, passport act cases, NDPS cases etc.
* We arrange for online criminal lawyer to advice on all aspects of Indian criminal laws including advice on bail matters.
* Indian legal advisors for criminal law
* Indian lawyers for criminal complaints
* Indian solicitors for criminal process cases
* Indian Attorneys for criminal law documentation
* Law firm in Delhi providing all services in the fields of criminal laws
* Legal advice forum for all matters related to criminal law in India
* Legal advice hotline for all contingent criminal law matters to provide online legal advice and online legal services
* Online lawyer for online lawyer chat to provide online legal forms, online legal documentation related to Indian criminal laws
Important fields of criminal law in India:
i) Criminal trail
A criminal trial commences with the filing of charge sheet by the police against the accused person. The court frames charges on the basis of the charges and the evidences contained in the said charge sheet. The criminal trial commences after framing of the charges by the court. he role of defense lawyer is very important during the criminal trial as he defends the accused before the court and demolishes the case filed by the prosecuting agency. The cross examination during the criminal trial is very important which becomes the basis for the decision of the criminal trial under Criminal Procedure Code.
We handle all kinds of criminal trails before the courts and depute highly trained and skilled defense lawyer who are amongst the best Indian criminal lawyers and criminal attorneys. The criminal trials are mainly conducted before the district courts in the Indian legal system. We retain the best Indian attorneys to deal with criminal trials to provide the best possible legal services in the Indian legal services and defend the accused persons most effectively.
ii) Bails
Bail is the most important legal service in the criminal legal system of India. The provisions related to bail are contained in Section 437 and 438 of the Criminal Procedure Code. The nature of offence determines whether the accused is entitled to bail or not. This has been exhaustively listed in the Criminal Procedure Code. In some of the cases the accused is entitled to bail by the police and are called bailable offences in common parlance. The accused is given bail by the police in such cases after completing the formalities of bail bond and proper surety. In some cases the offence is categorized as Non Bailable in which the accused can get bail from the designated court itself. In some cases the accused approaches the court for grant of Anticipatory bail apprehending his arrest by the police. The court after hearing the pleas of the accused through his counsel determines whether the accused is entitled to be granted anticipatory bail or not. In some cases the court fixes conditions before granting bail to the accused persons. Anticipatory bail is filed in the Court of Session and then in High Court and Supreme Court. Bail attorney has to take up the matter very cautiously and conduct the proceedings in most efficient manner as the grant of bail and rejection of bail by the courts has wide ranging effects on the accused.
We provide highly trained Indian bail attorneys and bail lawyers who are highly trained in the field of bail practice. The proactive strategy adopted by our Indian bail attorneys provides full proof legal services for bail applications.
iii) Criminal complaints
Filing and defending of criminal complaints is important legal service provided by the Indian criminal lawyers at our Indian law firm. A criminal complaint is lodged against a person against his criminal act giving the detailed description of the criminal acts committed by him and the criminal court considers the entire material on record and issues summons to the accused persons. The criminal complaint thus leads to the criminal prosecution of the person who is made to face the criminal trial.
The most common criminal complaint in the Indian legal system is the complaint case filed under the Negotiable Instruments Act against the bouncing of cheque. The criminal complaints as filed under the Negotiable Instruments Act are treated as the complaint under the Indian legal system and the person who has issued the cheque and the persons responsible for the bouncing of the cheques are summoned by the criminal court.
We provide best Indian Attorneys to handle all kinds of complaint cases in the criminal law who provide the best criminal law services to the clients.
iv) Cheque bouncing matters:
Defending and launching of cases under Section 138 of Negotiable Instruments Act with accuracy to provide the best results in most effective manner. The criminal procedure code process is followed in such cases which make the entire trial of such cases as criminal trial. We provide Indian attorneys to deal such cases in most effective manner. This field of criminal jurisprudence in India is growing very fast. In most of the cases pertaining to bouncing of cheques or dishonor of cheques the process starts with the issuance of notice under Section 138 of the Negotiable Instruments Act and the entire process becomes time bound. The filing and launching of criminal complaint is the most important legal service provided by our Indian attorneys at our Indian law firm.
v) Economic offences:
Criminal breach of trust, criminal misappropriation of money , cheating, forgery etc are the main types of economic offences for which special wings have been created by the police, CBI and other law and order enforcing agencies. We provide all the services related to launching and defending of economic offences through our highly specialized Indian criminal lawyers at our law firm.
v) Anti dowry cases:
All services relating to anti dowry laws which lead to criminal prosecution of the husband, in-laws etc. is provided by us through highly trained criminal lawyers in India. The filing and defending of all such criminal complaints requires highly qualified Indian attorneys who provide the best legal services in Indian legal system. Such cases mainly include the cases pertaining to offences under Section 498A of the IPC.
vi) Cheating cases:
We undertake filing and defending of all matters pertaining to cheating, criminal misappropriation of money, forgery, inducement etc. Cheating cases require the services of highly specialized criminal attorneys.
A BRIEF OUTLINE OF THE INDIAN CRIMINAL LAWS
Criminal law in Indian system is mainly contained in the Criminal Procedure Code of 1973, Indian Penal Code 1860 which has mainly remained unchanged since long. Most of the offences as described in the IPC are comprehensive enough to cover the various kinds of the criminal acts. There are several more specialized acts both central as well as state acts which deal with various other kinds of offences which are either not dealt in the IPC or are region specific. Main fields of practice in the criminal law are defending the accused from the criminal proceedings, criminal trials, bail, anticipatory bails, detention, judicial custody matter, police remand, quashing of criminal charges, criminal appeals, criminal revisions, criminal complaints, complaint cases, police cases etc. We at Legalhelplineindia.com provide all kinds of criminal law services for criminal trials from the criminal lawyers association. We have in house criminal trial lawyers, bail lawyer who are well versed with the criminal trial procedure, criminal trial process and criminal trial proceedings to handle all kinds of cases under the criminal code which is the Criminal Procedure Code 1973 which govern criminal procedure code of India. The criminal procedure outline of India lays down the criminal procedure law, criminal procedure rules and criminal procedure law and procedure to deal with criminal cases.
Another important area of criminal legal services at legalhelplineindia is in the fields of economic offences and white collar crimes. Several acts cover the various kinds of economic offences which include cases pertaining to cheating, forgery, and non fulfillment of the promises, misrepresentations, impersonations, extortion, and criminal defamation. Forgery laws govern the forgery cases which includes the forging of financial instruments, documents, deeds etc. The economic offences are generally dealt by the economic offence wing which is authorized to handle all kinds of economic offences in India. The economic offence wing in Delhi is manly handling the economic offences which are committed in Delhi.
Criminal cases involving the violation of the Customs Act, Passport Act, Foreign Exchange Management Act (FEMA), FOREX, DRI cases, income tax act, excise act, sales tax act and other Economic Offences basically covered under the economic offences categories are converted into criminal cases and often are decided through criminal trials. Only highly expert criminal lawyers having in-depth knowledge of the Indian criminal law system with good exposure to the criminal trials can handle such cases effectively and defend the persons involved.
The latest field of criminal jurisprudence is handling of Criminal cases pertaining to violation of Copyright Act, Intellectual Property Rights (IPR), Trade Mark, Patent Act, Companies Act, Information Technology Act, Cinematography Act etc. In such matters often the complaint by the parties is converted into criminal cases and the violators, offenders have to face the criminal trial. This field of criminal law system in India needs very expert and specialized criminal trial lawyer who is well versed with the provisions of the Indian Evidence Act and can handle the police diaries and criminal trials effectively.
The cases related to Negotiable Instruments Act i.e. the cases related to recovery of money through bounced cheques is an important area of criminal practice. The most important cases in such field are cases related to Negotiable Instrument Act cases- Bouncing of Cheques, Dishonor of cheques, non refund of money etc. The process in Negotiable Instruments Act cases start with the issuance of the notice under Section 138 of the Negotiable Instruments Act after the dishonor and bouncing of cheques which is the basis of the complaint to be filed before the criminal court. The provisions of law in this regard are very strict and the person issuing the negotiable instrument is made to face the criminal trial and may be convicted for his offence of issuing negotiable instrument without honoring the same. Most of the civil recoveries, corporate recoveries are through the negotiable instruments act.
The criminal cases related to service jurisprudence are very specialized and important cases pertaining to Vigilance cases, Anti Corruption cases, Disproportionate Asset cases, Prevention of Corruption Cases against government servants, civil servants. Another area of criminal law which has now made deep inroads into the criminal field is the cases related to Sexual Harassment and crime at the workplace cases.
The violation of various kinds of labour, service laws also attract criminal prosecutions related to violation of the ESIC Act, EPF Act, Factories Act, Minimum Wages Act, Contract Labour Act etc are launches. We have a specialized team of expert labour law experts who collaborate with the criminal lawyers to defend such cases.
All matrimonial disputes of criminal nature involving criminal trial, bails, custody, and police remand, criminal cases, Anti Dowry Act cases, Crime against Women Cases, bigamy cases are various kinds of criminal cases requiring the services of expert criminal lawyers in India. Such cases also include cases pertaining cheating spouse, cheating husband etc. Such criminal cases are basically matrimonial dispute which are offshoot of the matrimonial cruelty and matrimonial disputes, matrimonial dispensation falling under the matrimonial disputes in India. The provisions related to the criminal offences in the matrimonial dispute are very stringent and most of the cases are initiated before the crime against the women cell of the police. Once the proceedings before the crime against the women cell fails, the matter is converted into a FIR with the concerned police station and the accused persons are made to seek anticipatory bail under Section 498 A of the IPC. We provide the services related to anticipatory bail in Indian law which also includes the anticipatory bail in 498A, IPC. Our services related to the anticipatory bail in India include the filing of anticipatory bail, execution and furnishing of bail bonds. The provisions related to bail in the Criminal Procedure Code are described in Section 437, 438, 439 Crpc.
Cases under the Passport Act, repatriation proceedings, NDPS cases which related to the drug abuse etc are all covered under the criminal cases.
We at legalhelplineindia provide highly expert and specialized services related to the defending and launching of criminal cases of all types. We also arrange for the legal opinion of experts from the various fields who handle such kinds of sensitive cases. We also provide criminal complaint forms for all kinds of criminal complaints relating to cheating, forgery, forging of negotiable instruments, threatening phone calls, threatening e mails, threatening text messages, criminal threatening, criminal threats.
BRIEF INTRODUCTION OF THE CRIMINAL TRIAL SYSTEM IN INDIA:
The criminal jurisprudence system in India is mainly guided by the Criminal Procedure Code of 1973 and Indian Penal Code,1860 and the Indian Evidence Act of 1872. There are several subsequent enactments of law to deal with specific offences however the procedure for a criminal trial in India is through the Code of Criminal Procedure, 1973 itself. Various kinds of offences have been described in the Indian Penal Code which deal with almost all kinds of offences.
The offences are dealt mainly through the police machinery which lodged a FIR or First Information Report when a cognizable offence is reported to a police officer. He is then entrusted the duty to investigate the said offence and submit a charge sheet if any offence is made out as per his investigation or to submit a closure report if no offence is made out on the said allegation. The charge sheet is then dealt by the concerned courts and the criminal trial commences thereafter.
The provisions of bail during the trial of the offence are also made which stipulate the following situations:
In Indian criminal laws the bails have been categorized in two broad categories which are bailable offence and non bailable offence. As the name suggests these categories are exclusive and not inclusive. The word bailable and non bailable basically determine the powers of the police in granting the bail. The courts have the power to grant bail in non bailable sections of the IPC. We can discuss both the sections in details hereunder.
BAILABLE OFFENCE: Bailable offences are such offences wherein the accused person can be granted bail by the police officer conducting the investigation in the case. The police officer may impose certain conditions for granting bail in such cases and ask the accused to fill some bonds which are called sureties. There is no need for the accused to the approach the courts for the grant of the bail as the same is granted by the police itself.
NON BAILABLE OFFENCES: In such offences the police officer has no powers to grant bail and he can only arrest the person and produce before the court concerned. The courts have the power to grant bail in such cases which is further categorized as various types of courts viz the court of Magistrate, court of Sessions judge etc. The courts dealing with such cases generally impose conditions on the bail and order for the release of the accused either by the police or from the jail. The time spent by the accused in the police custody during this period is called judicial custody.
The following sections of Code of Criminal Procedure, 1973 deal with the various types of bails as contemplated under the Indian criminal laws.
SECTION 436. IN WHAT CASES BAIL TO BE TAKEN:
(1) When any person other than person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail.
Provided that such officer or Court, if he or it thinks fit, [may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail] from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided.
[Explanation: Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso.]
(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.
Cr PC (Amendment) Act, 2005 has further amended the said provisions to the following effects:
In respect of bailable offences, a person has to remain in jail for his inability to furnish bail till the case is disposed of, Sub-section (1) has been amended to make a mandatory provision that if the arrested person is account of a bailable offence and he is an indigent and cannot furnish surety, the Court shall release him on his execution of a bond without sureties.
436A. Maximum period for which an under-trial prisoner can be detained:- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishment under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties.
Provided further that no such person shall I any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
Explanation:- In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.
There had been instances, where under-trial prisoners were detained in jail for periods beyond the maximum period of imprisonment provided for the alleged offence. As remedial measure section 436A has been inserted to provide that where an under-trial prisoner other than the one accused of an offence for which death has been prescribed as one of the punishment, has been under detention for a period extending to one-half of the maximum period of imprisonment provided for the alleged offence, he should be released on his personal bond, with or without sureties. It has also been provided that in no case will an under-trial prisoner be detained beyond the maximum period of imprisonment for which he can be convicted for the alleged offence.
437. WHEN BAIL MAY BE TAKEN IN CASE OF NON-BAILABLE OFFENCE: (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but—
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years of more, or he had been previously convicted on two or more occasions of [a cognizable offence punishable with imprisonment for three years or more but not less than seven years].
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years of is a woman or is sick or infirm.
Provided further that the Court may also direct that person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason.
Provided also that the mere fact than an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.]
[Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven yea4s or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.]
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, [the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail,] or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of or attempt to commit, any such offence, is released on bail under sub-section (1) [the Court shall impose the conditions,--
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is suspected, and
(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence,
and may also impose, in the interests of justice, such other conditions as it considers necessary.]
(4) An officer or a Court releasing any person on bail under sub-section (1), or sub-section (2), shall record in writing his or its [reasons or special reasons] for so doing.
(5) Any Court which has released a person on bail under sub-section (1),
or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trail of person accused of a non-bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
Cr PC (Amendment) Act, 2005 further amends the said section to following effect:
Section 437 has been amended to provide that if a person commits a cognizable and non-bailable offence and he has previously been convicted on two or more occasions of a cognizable offence punishable with imprisonment for 3 years or more but not less than 7 years, he shall not be released except in the circumstances specified in the provision.
If has fu4rther been provided that if an accused appears before the Court while in judicial custody and prays for bail, or prayer for bail is made on his behalf, the Court shall grant bail only after giving an opportunity of hearing to the prosecution, if the offence alleged to have been committed by the accused is punishable with death, imprisonment for life or imprisonment for life or imprisonment for not less than 7 years.
Under sub-section (3) the Court has got the discretion to impose certain conditions for the grant of bail. Under section 441(2), where any condition is imposed for the release of a person on bail, the bond shall contain that condition also. In order to make the provision stringent and to see that the person on bail does not interfere or intimidate witness, sub-section (3) has been amended to specify certain conditions, which are mandatory.
438. DIRECTION FOR GRANT OF BAIL TO PERSON APPREHENDING ARREST:
(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail, and that Court may, after taking into consideration, inter alia, the following factors, namely:-
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,
Either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity or being heard when the application shall be finally heard by the Court.
(1B) The presence of the applicant seeming anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.]
(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such direction in the light of the facts of the particular case, as it may thinks fit, including:—
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant in conformity with the direction of the Court under sub-section (1).
Cr PC (Amendment) Act, 2005 has further amended the said section to the following effect:
Section 438 has been amended to the effect that (i) the power to grant anticipatory bail should be exercised by the Court of Session or High Court after taking into consideration certain circumstances; (ii) if the Court does not reject the application for the grant of anticipatory bail, and makes a interim order of bail, it should, forthwith give notice to the Public Prosecutor and Superintendent of Police and the question of bail would be re-examined in the light of the respective contentions of the parties; and (iii) the presence of the person seeking anticipatory bail in the Court should be made mandatory at the time of hearing of the application for the grant of anticipatory bail subject to certain exceptions.
439. SPECIAL POWERS OF HIGH COURT OR COURT OF SESSION REGARDING BAIL:
(1) A High Court or Court of Session may direct:
(a) That any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) That any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court Session may direct that any person who has been released on bail under this Chapter be arrested and commit him custody.
The criminal trials are often based on the concepts which have evolved during the time and have acquired recognition during the criminal trial.
RIGHT TO SELF DEFENCE:
The right of self-defense does not extend to an aggressor who retaliates to the act of self-defense of the victim and inflicts severe blows causing his death. The question as to who was the aggressor depends upon the facts of the case. The number of injuries inflicted is not always a sole criterion for determining the question of aggression. The necessity of self-defense should not have been created by the accused because in that case he would really be the aggressor.
The right of private defense is not available when there is a ‘free fight’ between two parties. A ‘free fight’ between the parties is one in which neither party is acting in self-defense. In free fight the parties vindicate their rights by the use of unlawful force. In Gajanand v. State of U.P., the Supreme Court observed : “A ‘free fight’ is one where both sides mean to fight from the start, go out to fight and there is a pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends upon the tactics adopted by the rival commanders.”
Burden of Proof.– The burden of proving that the accused acted in exercise of the right of private defense lies upon him. Section 105 of the Indian Evidence act, 1872 specifically provides that when a person is accused of any offence and he seeks to defend himself by resorting to any of the general defenses, (of which private defense is one) recognized by the Penal Code, the burden lies on him to show the circumstances entitling him to the defense and that the court will presume the absence of such circumstances.
The burden of proof on the accused is, however, not so stringent as it is upon the prosecution. Whereas the prosecution has to prove the case beyond reasonable double, the accused has only to create a reasonable doubt in the mind of the Court as to whether the accused acted in exercise of the right of private defense. In Mohan Singh v. State of Punjab, the Supreme Court observed : “An accused pleading the right of self-defense need not prove it beyond reasonable doubt. It is enough if he establishes facts which on the test of preponderance of probabilities make his defense acceptable.” In Daya Bhai Chhaggan Bhai v. State of Gujarat, the Supreme Court observed :
It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent, and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt….. This general burden never shifts and it always rests on the prosecution. But under section 105 of the Indian Evidence Act the burden of proving the existence of circumstances bringing the case within the exception lies on the accused and the Court shall presume the absence of such circumstances…….Under section 105 of the Evidence Act.. the Court shall regard the absence of such circumstances as proved, unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist……If the material placed before the Court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of reasonableness, the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a Judge as regards one or other of the necessary ingredients of the offence itself…..If the Judge has such reasonable doubt, he has to acquit the accused, for in that even the prosecution will have failed to prove conclusively the guilt of the accused.
Thus the quantum of proof under Section 105, Indian Evidence Act, is not proof beyond reasonable doubt. It is sufficient if the accused makes out a prima facie case. When he fails to make out even a prima facie case, the prosecution version would prevail. A person remained missing for one and a half months. When apprehended he was medically examined. The report showed that he had certain injuries on his person which must be about one and a half months old. He tried to build his theory of self-defense on the basis of these injuries as showing the reason why he caused the death in question. The Supreme Court held that the evidence in question was not sufficient even to establish a prima facie case of the need of self-defense. Where the facts showed that shooting took place while the alleged assailant was outside the premises and the accused fired at him from inside, the theory of self-defense could not be sustained. The basic factors which have to be kept in mind have been restarted by the Supreme Court in Yogendra Morarji v. State of Gujarat :
A businessman purchased some land. He engaged labour for digging a well on the land. A dispute arose about wages. When he visited the site the workers collectively approached him. The dispute could not be resolved. He unceremoniously turned away the workers. They collectively moved towards road and kept walking. They saw their employer coming by his vehicle and signaled him to stop. Perhaps they wanted to propose a compromise. But he, thinking that they might attack him, opened indiscriminate fire. The last of the three bullets hit a worker killing him.
The Supreme Court conceded the right of private defense but held him liable for exceeding it. Six months’ rigorous imprisonment and fine of Rs.10, 000 was considered as sufficient to meet the ends of justice.
It is not necessary that the accused should have specifically pleaded that he acted in exercise of the right of private defense. If the Court finds on the basis of the prosecution evidence that the accused acted in the exercise of the right of private defense he has to be given the benefit of it.
The fact that the accused also received some injuries in the same fight in which he caused the death of his opponent is not in itself a proof of the fact that he was acting in self-defense. The preliminary points would have to be proved by the accused by showing that he was the victim of an aggression of such magnitude that he was entitled to defend himself to the extent of causing the death of the other.
The accused though denying the act charge may, however, take the plea of private defense in the alternate. Thus an accused can plead that he was not present at the scene of the offence and did not commit the murder, but that if he did commit murder, he acted in his right of private defense.
According to Section 97, “Every person has a right, subject to the restrictions contained in Section 99, to defend -
(i) his own body and the body of any other person against any offence affecting the human body;
(ii) The property, whether movable or immovable, of himself or of any other person, against any act which is an offence failing under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.”
Thus a person has the right of private defense against any offence affecting the human body and against certain specified offences against property, i.e., theft, robbery, mischief or criminal trespass or an attempt to commit such offences. The act against which right of private defense is to be exercised must be an offence and not merely an unlawful or wrongful act. This right extends to defending one’s own body and property as well as the body and property of any other person. This right can be exercised even against those persons who due to an inability to have the mental element will not be criminally liable (see Section 98) e.g. person of unsound mind, children below 7 years of age etc., for example, A under the influence of insanity attempts to kill B. B has the same right of private defense which he would have had if A were sane. Similarly, where A enters by night a house which he is legally entitled to enter and B, in good faith, taking A for a house breaker, attacks A. Here B, by attacking A under this misconception commits no offence, but A has the same right of private defense against B, which he would have had if B were not acting under that misconception.
Restriction on the Right of Private Defense- Section 99 lays down certain restrictions on the right of private defense of person and property. It provides that:
(i) There is no right of private defense against an act done or attempted to be done by a public servant in good faith under the color of his office although it may not be strictly justifiable by law unless that act reasonably causes the apprehension of death or grievous hurt
(ii) There is no right of private defense against an act done or attempted to be done under the direction of a public servant acting in good faith under the color of his office although the direction may not be strictly justifiable by law, provided that such an act does not reasonably cause the apprehension of death or grievous hurt.
(iii) There is no right of private defense in cases in which there is time to have recourse to the protection of the public authorities.
(iv) The right of private defense does not extend to the infliction of more harm than is necessary for the purpose of the defense.
A person is not deprived of the right of private defense against an act done, or attempted to be done, by public servant, as such, unless he knows, or has reason to believe, that the person doing the act is such public servant. Similarly he is not deprived of that right against an act done, or attempted to be done, by the direction of a public servant, unless he knows, on has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if he demanded.
It has been pointed out by the Supreme Court that is it a necessary corollary to the doctrine of private defense that the violence that the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. For the essential basis of this right is preventive and not retributive. The exercise of the right of private defense must never be vindictive or malicious. However, one cannot weigh in golden scales what maximum amount of force would be necessary to keep within the limits of the right of private defense.
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