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Nithari Case Analysis

The Nithari case involved the disappearance of 14 children and the subsequent acquittal of the accused due to procedural lapses in the High Court's judgment, particularly regarding confession recording and arrest procedures. Key issues included failure to follow legal requirements for confessions and delays in presenting the accused before a magistrate. The analysis highlights the importance of adhering to procedural norms in criminal law to ensure justice.

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45 views5 pages

Nithari Case Analysis

The Nithari case involved the disappearance of 14 children and the subsequent acquittal of the accused due to procedural lapses in the High Court's judgment, particularly regarding confession recording and arrest procedures. Key issues included failure to follow legal requirements for confessions and delays in presenting the accused before a magistrate. The analysis highlights the importance of adhering to procedural norms in criminal law to ensure justice.

Uploaded by

aditya prasad
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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UNIVERSITY SCHOOL OF LAW AND LEGAL STUDIES

NAME: ADITYA PRASAD


ROLL NO.: 00316503522
SUBJECT: BHARTIYA NAGRIK SURAKSHA SANHITA II
SUBMITTED TO: MS. UPMA GAUTAM
NITHARI CASE ANALYSIS

Introduction
The Nithari case is a case which holds a controversial
significance in the legal fraternity. After 14 young children
went missing, this case unfolded India’s one of the most
gruesome and disturbing cases that have happened in India.
The accused Surendra Koli and Moninder Pandher were given
death sentences by the trial court, and in the confirmation
proceedings done in the Allahabad High Court, the court
disposed off the sentence given by the trial court in this case.
Here, we are going to analyse the procedural lapses in the
judgement given by the High court due to which the accused
were acquitted and see some case laws where the same lapses
were conducted but the accused were convicted.

Procedural lapses in the Nithari judgement

After carefully analysing the judgement, there are 2


procedural lapses that have been found in the high court’s
judgement:

1) Lapses in the confession: It is pertinent to mention


that the court held, that there was a failure to comply
with the requirements of recording a confession to be
shocking.
The court raised questions about the custody which
was 60 days long, and the argument where the CBI
explained that there were different investigating
officers in the 16 FIRs lodged against the accused was
not at all satisfactory.
The court also laid emphasis on producing the accused
infront of the magistrate as soon as possible, but that
was not at all followed,
The accused in turn retracted from the confession itself
claiming that he was tortured by the police.
According to section 164 (2) of the Code of Criminal
Procedure, 1973, it is pertinent to mention that the
magistrate, before recording the confession, expressly
inform the person whose confession is to be recorded
that this confession can be used against that person.
In the Nithari case however, this was not followed,
and without any strong evidence, the confession meant
nothing.
Moreover, there was a clear lack of voluntariness on
part of Surendra Koli. Even if there was, there was no
way to prove it,

CASES WHERE THIS PARTICULAR LAPSE OF


JUDGEMENT WAS OVERRULED

According to Rabindra Kr. Pal @ Dara Singh vs.


Republic of India (2011), However, the role was
limited in this case as there was a procedural lapse in
this judgement, it was still allowed by the court. This
was a murder cause of an Australian resident and his
two sons. There was failure to record confession and
other important aspects which were needed to be taken
care of while recording a confession, but it was still
overlooked by the court in this case particularly.

In Ganesh Namdeo Varad vs. State of Maharashtra,


conviction was still upheld in this case despite it being
a retracted confession.

2) Lapses in arrest procedures: It is pertinent to


mention that another procedural lapse was found by
the court, which are the lapses in the arrest procedures.

 No arrest memo was prepared: No arrest memo was


prepared in this case, which is a priority for the
police to be done when someone is arrested.
 Failure to produce in front of the magistrate: The
defence argued that the accused was arrested on
December 27, 2006. He was produced in front of
the magistrate after 2 days. According to the Code
of Criminal Procedure, an arrested person must be
produced in front of the magistrate within 24 hours
of his arrest. Here, it was done after 24 hours.

CASES WHERE THE PROCEDURAL LAPSE WAS


IGNORED:
In State of Maharashtra vs, Damu Nath Shinde, the high
court identified this procedural aspect and rejected the
confession on the grounds that there was a delayed arrest.

However, the Supreme Court set aside this judgement of


the high court in the interest of justice. The court’s
reasoning in this case was that there was no proof of
coercion or involuntariness on the part of the person
whose statement was recorded, just on the basis of a
delayed arrest.

CONCLUSION

The Nithari case is a classic example of how impeccable


the procedural aspect of the criminal law is. It is
pertinent to mention that these technicalities are needed
to be met with when dealing in a criminal case.
In conclusion, this critical analysis of the Nithari Case
comes to an end with the understanding of the procedural
loopholes in our criminal justice system.

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