Special Powers of Court : Section 165, Indian Evidence Act

Section 165 of the Evidence Act permits the Judge to ask any question as he pleases in any form,
at any time, of any witness, or of the parties about any fact relevant or irrelevant or may order
production of any document or thing. A conjoint reading of Section 311 CrPC and Section 165
of the Evidence Act makes it clear that the trial Court is under an obligation not to act as a mere
spectator and should proactively participate in the trial proceedings, so as to ensure that neither
any extraneous material is permitted to be brought on record nor any relevant fact is left out. It is
the duty of the trial Court to ensure that all such evidence which is essential for the just decision
of the case is brought on record irrespective of the fact that the party concerned omits to do so.

It was propounded in Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 that in a
criminal case, the fate of the proceedings cannot always be left entirely in the hands of the
parties, crimes being public wrongs in breach and violation of public rights and duties, which
affect the whole community and are harmful to the society in general. That the concept of fair
trial entails the triangulation of the interest of the accused, the victim, society and that the
community acts through the State and the prosecuting agency was authoritatively stated. The
Supreme Court observed that the interests of the society are not to be treated completely with
disdain and as persona non grata. It was remarked as well that due administration of justice is
always viewed as a continuous process, not confined to the determination of a particular case so
much so that a court must cease to be a mute spectator and a mere recording machine but become
a participant in the trial evincing intelligence and active interest and elicit all relevant materials
necessary for reaching the correct conclusion, to find out the truth and administer justice with
fairness and impartiality both to the parties and to the community. If ultimately the truth is to be
arrived at, the eyes and ears of justice have to be protected so that the interest of justice do not
get incapacitated in the sense of making the proceedings before the courts, mere mock trials.
While elucidating that a court ought to exercise its powers under Section 311 of the Code and
Section 165 of the Evidence Act judicially and with circumspection, it was held that such
invocation ought to be only to sub-serve the cause of justice and the public interest by eliciting
evidence in aid of a just decision and to uphold the truth. It was proclaimed that though justice is
depicted to be blindfolded, it is only a veil not to see who the party before it is, while
 pronouncing judgment on the cause brought before it by enforcing the law and administer justice
and not to ignore or turn the attention away from the truth of the cause or the lis before it, in
disregard of its duty to prevent miscarriage of justice. That any indifference, inaction or lethargy
displayed in protecting the right of an ordinary citizen, more particularly when a grievance is
expressed against the mighty administration, would erode the public faith in the judicial system
was underlined. It was highlighted that the courts exist to do justice to the persons who are
affected and therefore they cannot afford to get swayed by the abstract technicalities and close
their eyes to the factors which need to be positively probed and noticed. The law should not be
seen to sit by limply, while those who defy it go free, and those who seek its protection lose
hope.

Section 482, Code of Criminal Procedure: Inherent Powers of Court

Introduction

The term inherent means existing and inseparable from something, a permanent attribute or
quality. Inherent powers are the powers which are inalienable from Courts and may be exercised
by a Court to do full and complete justice between the disputed parties before it. The Court has
inherent power to mould the procedure to enable it to pass such orders as the ends of justice may
require.

Section 482 of CrPC

 This Section deals with the saving of inherent powers of the High Court.
 It states that nothing in this Code shall be deemed to limit or affect the inherent powers of the
High Court to make such orders as may be necessary to give effect to any order under this Code,
or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
 This section does not confer any inherent power on the High Courts, and it only recognizes the
fact that High Courts have inherent powers
 This Section is silent as regards inherent powers of subordinate courts.
 The use of the word "otherwise" in this Section has the avowed effect of boundlessly
broadening the boundaries of inherent powers of the High Court in exercise of its criminal
jurisdiction.
 No limitation period has been prescribed for making an application under this Section.
However, the application is to be filed within a reasonable period.
Purpose of Section 482 of CrPC
 It enumerates three purposes for which the inherent power may be exercised.
o The first purpose is that the inherent power may be exercised to make orders necessary to give
effect to any order under the Code.
o The second purpose is that the inherent power may be exercised to prevent abuse of the
process of any court.
o The third purpose is that the inherent power may be exercised otherwise to secure the ends of
justice.
Principles for the Application of Section 482 of CrPC
 In the case of Madhu Limaye v. Maharashtra (1977), the Supreme Court enumerated the
following principles that would govern the High Court’s inherent jurisdiction:
o That inherent power must not be resorted to, if specific provision for redressal of grievances
has been given.
o That it should be carefully used to prevent abuse of process of any Court or otherwise to secure
ends of justice.
o That it should not be exercised against the express provision given in any other statute.

Exercise of Inherent Powers of High Court

 As stated by the Supreme Court in State of Haryana v. Bhajan Lal (1992), the inherent powers
under Section 482 can be exercised in the following cases: -
o Where the allegations in the FIR/complaint, even if they are taken at their face value, do not
prima facie constitute any offence against the accused.
o Where the allegations in the FIR or other materials do not constitute a cognizable
offence justifying an investigation by the police under Section 156(1) of the CrPC. except under
an order of a Magistrate within the purview of Section 155(2) of the CrPC.
o Where the unconverted allegations in the FIR/complaint and the evidence collected thereon do
not disclose the commission of any offence.
o Where the allegations in the FIR/complaint do not constitute any cognizable offence but
constitute only non-cognizable offence to which no investigation is permitted by the police
without the order of Magistrate under Section 155(2) of the CrPC.
o Where the allegations are so absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is sufficient ground for proceeding
against the accused.
o Where there is an express legal bar engrafted in any of the provisions of the Code or the Statute
concerned (under which the proceeding is instituted) to the institution and continuance of the
proceedings and/or where there is a specific provision in the code or in the statute concerned,
providing efficacious redress for the grievance of the aggrieved party.
o Where a criminal proceeding is manifestly attended with mala fide intentions and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the
accused with a view to spite him due to private and personal vengeance.
o The list is not exhaustive but only illustrative in nature.
 In the following cases, the inherent powers of the High Court cannot be invoked:
o To quash the proceedings in police investigation consequent upon a FIR made to the police in
a cognizable case; to interfere with the statutory rights of the police to investigate a cognizable
case.
o To quash an investigation just because the FIR does not disclose any offence when
investigation could be carried out on the basis of other materials.
o To embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations
made in the FIR/complaint.
o Inherent jurisdiction can be invoked only against final orders and not against interlocutory
orders.
o To order stay of arrest of accused during investigation.

Plea Bargaining: A Non-Starter In India

The Indian Parliament on Plea Bargaining

Plea Bargaining was included in the Code of Criminal Procedure (Cr.P.C) under chapter 21A from
Section 265A to Section 265L through the Criminal Law (Amendment) Act, 2005 (2 of 2006) on with
effect from 5th July, 2006[1] as a prescription to the problem of overcrowded jails, overburdened courts
and abnormal delays. The amendment inserting the chapter on plea bargaining in the CrPC was first
introduced though the Criminal Law Amendment Bill, 2003 in the Rajya Sabha on 12 th December, 2005.
The Bill was moved by the Minister of Home Affairs, Shivraj V. Patil. The Minister introduced Plea
bargaining to the house by saying that when the accused brought before the Court makes a petition to the
judge saying he is willing to admit his guilt, the court shall give notice and forward this application to the
prosecutor and the defence lawyer and the accused, victim, prosecutor and defence lawyer can meet and
discuss as to what should be done in that matter and how that case should be disposed of. Further the
Court can go through the records and if the court finds that what has been agreed to between the two
parties is quite acceptable, then the court can pass an order on that kind of agreement. However in cases
where the punishment that could be awarded is imprisonment of more than seven years, life
imprisonment, death sentence or cases in which women and children are involved, or, socio-economic

conditions are involved, or, juvenile is involved, plea bargaining in such cases shall not be allowed .

The Supreme Court of India on Plea Bargaining

The Hon'ble Supreme Court of India has time and again criticised the scheme of plea bargaining as
Justice V.R. Krishna Iyer in the case of Murlidhar Meghraj Loya vs. State of Maharastra, said that:

"Many economic offender’s resort to practices the American call 'plea bargaining', 'plea negotiation',
'trading out' and 'compromise in criminal cases' and the trial magistrate drowned by a docket burden
nods assent to the sub rosa anteroom settlement. The businessman culprit, confronted by a sure prospect
of the agony and ignominy of tenancy of a prison cell, 'trades out' of the situation, the bargain being a
plea of guilt, coupled with a promise of 'no jail'. These advance arrangements please everyone except the
distant victim, the silent society. The prosecutor is relieved of the long process of proof, legal
technicalities and long arguments, punctuated by revisional excursions to higher courts, the court sighs
relief that its ordeal, surrounded by a crowd of papers and persons, is avoided by one case less and the
accused is happy that even if legalistic battles might have held out some astrological hope of abstract
acquittal in the expensive hierarchy of the justice-system he is free early in the day to pursue his old
professions. It is idle to speculate on the virtue of negotiated settlements of criminal cases, as obtains in
the United States but in our jurisdiction, especially in the area of dangerous economic crimes and food
offences, this practice intrudes on society's interests by opposing society's decision expressed through
predetermined legislative fixation of minimum sentences and by subtly subverting the mandate of the law.
The jurists across the Atlantic partly condemn the bad odour of purchased pleas of guilt and partly"
justify it philosophically as a sentence concession to a defendant who has, by his plea 'aided in ensuring
the prompt and certain application of correctional measures to him."
Even Justice P.N. Bhagwati in the case of Kasambhai Abdulrehmanbhai Sheikh vs. State of Gujarat
had voiced a strong opinion against plea bargaining in his judgement. He said:

"To allow a conviction to be recorded against an accused by inducing him to confess to a plea of guilty
on an allurement being held out to him that if he enters a plea of guilty, he will be let off very lightly.
Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of the new
activist dimension of Article 21 of the Constitution unfolded in Maneka Gandhi vs. Union of India case. It
would have the effect of polluting the pure fount of justice, because it might induce an innocent accused
to plead guilty to suffer a light and inconsequential punishment rather than go through a long and
arduous criminal trial which, having regard to our combers and unsatisfactory system of administration
of justice, is not only long drawn out and ruinous in terms of time and money, but also uncertain and
unpredictable in its result and the judge also might be likely to be defected from the path of duty to do
justice and he might either convict an innocent accused by accepting the plea of guilty or let off a guilty
accused with a light sentence, thus, subverting the process of law and frustrating the social objective and
purpose of the anti-adulteration statute. This practice would also tend to encourage corruption and
collusion and as a direct consequence, contribute to the lowering of the standard of justice. There is no
doubt in our mind that the conviction of an accused based on a plea of guilty entered by him as a result of
plea-bargaining with the prosecution and the Magistrate must be held to be unconstitutional and illegal."

Commission Reports on Plea Bargaining

The 142nd Report of the Law Commission of India, 1991, which discussed plea bargaining at
length.
Objections
 Objections include the country's social condition not justifying the introduction of the concept as
India as illiteracy being high in India, people here will not be able to realize the consequences of
invoking the scheme involving a confession to a commission of a crime .

 there being a likelihood of pressure being exercised by the prosecuting agencies on innocent
persons to yield confession, the poor will be the ultimate victim of this concept .

 the counsel representing the accused would be unwilling to advise confession invoking the
scheme as the same would lead to the defendant losing faith in the counsel and engaging another
one.
  plea bargaining may increase the incidence of crime as it was pointed out by some that the
adoption of this scheme may increaser the incidence of crime because of the
expectation/impression that a person may be let off lightly by reason of pleading guilty.

Justifications
 The major justification that the law commission gave for incorporation Plea-bargaining was that
the same would be just and fair on the part of accused who feels contrite and wants to make
amends or an accused who is honest and candid enough to plead guilty in the hope that the
community will enable him to pay the penalty for the crime with a degree of compassion.
 Further Plea-bargaining would infuse some life in the reformative process embodied in the Code
of Criminal Procedure which remains practically unutilized for a long time.
 It will also help the accused whose trial remains hanging for years to obtain speedy trial with
additional benefits like end of uncertainty, saving in litigation cost, saving in anxiety cost and
being able to know his/her faith and start a fresh life without the fear of having to undergo a
possible prison sentence at a future date disrupting his/her life or career.
 Plea-bargaining, as per the report, was also in public interest as it would decrease the back-
breaking burden of the courts and reduce congestion in the jails. The Committee also noted that
about 75% of the total convictions are the result of plea-bargaining in the USA and contrasted it
with the 75% - 90% criminal cases resulting in acquittals in India. [34]
 The 154th Report of the Law Commission of India, 1996, relying on the 142 nd law commission
report also recommended the introduction of the scheme of plea bargaining in the Indian criminal
jurisprudence.
 However this report also recommended that plea bargaining should not be available to habitual
offenders, those who are accused of socio-economic offences of a grave nature and those who are
accused of offences against women and children.
 The Law Commission in its 177 th report, published in 2001, also recommended the incorporation
of plea bargaining in the Code of Criminal Procedure based on the reasoning provided in the
previous reports.[38]
 Even the Committee on Reforms of Criminal Justice System, popularly referred to as the
Malimath Committee, in its report strongly recommended the incorporation of plea bargaining in
the Code of Criminal Procedure and stated that offences, which are not of serious nature and
impacts mainly the victim and not the values of the society, should be settled without a trial and
these classes of offences should be made compoundable so that the victim, in the negotiation, can
lead the settlement of criminal cases through courts or Plea-bargaining.
 Section 319, Code of Criminal Procedure, 1973

Power Under Section 319 Code of Criminal Procedure is a discretionary and an extraordinary power. It is
to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not
to be exercised because the magistrate or the sessions judge is of the opinion that some other person
may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a
person from the evidence laid before the court that such power should be exercised and not in a casual
and cavalier manner. Thus we hold that though only a prima facie case is to be established from the
evidence laid before the court, not necessarily tested on the anvil of cross-examination, it requires much
strong evidence that near probability of his complicity. The test that has to be applied is one which is
more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an
extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such
satisfaction, the court should refrain from exercising power Under Section 319 Code of Criminal
Procedure.”

If the competent court finds evidence or if application under Section 319 of code of criminal procedure is
filed regarding involvement of any other person in committing the offence based on evidence recorded at
any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that
stage. (ii) (iii) (iv) The Court shall thereupon first decide the need or otherwise to summon the additional
accused and pass orders thereon. If the decision of the court is to exercise the power under Section 319
of CrPC and summon the accused, such summoning order shall be passed before proceeding further with
the trial in the main case. If the summoning order of additional accused is passed, depending on the stage
at which it is passed, the 5 fact Court shall also apply its mind to the as to whether such summoned
accused is to be tried along with the other accused or separately. (v) (vi) (vii) (viii) (ix) If the decision is for
joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused.
If the decision is that the summoned accused can be tried separately, on such order being made, there
will be no impediment for the Court to continue and conclude the trial against the accused who were
being proceeded with. If the proceeding paused as in (i) above is in a case where the accused who were
tried are to be acquitted and the decision is that the summoned accused can be tried afresh separately,
there will be no impediment to pass the judgment of acquittal in the main case. If the power is not
invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the
power under Section 319 of CrPC can be invoked or exercised only if there is evidence to that effect,
pointing to the involvement of the additional accused to be summoned in the split up (bifurcated) trial. If,
after arguments are heard and the case is reserved for judgment the occasion arises for the Court to
invoke and exercise the power under Section 319 of CrPC, the appropriate course for the court is 6 to set
it down for re-hearing. (x) (xi) On setting it down for re-hearing, the above laid down procedure to decide
about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly.
Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial
the trial shall be conducted afresh and de novo proceedings be held. (xii) If, in that circumstance, the
decision is to hold a separate trial in case of the summoned accused as indicated earlier; (a) The main
case may be decided by pronouncing the conviction and sentence and then proceed afresh against
accused. summoned (b) In the case of acquittal the order shall be passed to that effect in the main case
and then proceed afresh against accused.”