criminal cases in court- how to handle criminal case in court of law

1.

How to handle criminal cases in the court of Law

Sharing of experience

99% of Railway employee have no criminal cases against them.

99% of Railway employee also not have any vigilance case.

This indicate that , Railway employee & officers are generally straight forward irrespective of perception of public

But even most straight forward person can land in problem if his star are bad

During course of duty , an officer is exposed to situation where several vested intrests are involved & his decision affect adversally some body or other .

Such disgrunteled element try to level score with such officer by reporting various action either to vigillence or to CBI

This results in many false complaints against officers

In enquiry of any decision ,always two views can be taken asonly thin line exist between Railway intrest & self interest

As such officer is subjected to harrasment

Nation-wide Raids against corruption inJune 2009 ,

XEN & Dy CE con convicted by CBI court Madurai on9 thjunein Southern Railway

An Executive Engineer of Northern Railways arrested by CBI15 thjuly 2009

The divisional engineer arrested by CBI in Tinsukia division of NF Railway10 thjuly 2009

CBI arrests a Senior Inspector of Railway Protection Force22 ndjuly 2009

CBI probing supply of escalators, elevators for MRTS stations25 thjuly Hindu

Nation wise raids by CBI on central govt officerincluding one RRB Chairman.

CBI Registered case againt 2 oficer in SR

CBI register case against a officer in RCF

CBI register fraud case in Danapur divn

CBI registered a case against Rly officer inBMRCL , NWR ,SWR,ECR ,WR ,CR & NER

All this result in harrassment

New Delhi: In a drive to check corruption and bring in transparency in its administration, Vigilance Directorate of the Railway Board stated that, 8,638 officers including117 gazetted ones , were booked for various charges

Of the staff booked for fraudulent practices,a maximum number of them -- 1,403 -- including 1,395 non-gazetted and eight gazetted officers were from South Western Railway, f ollowed by 1,334 in Northern Railway, 760 in Southern Railway and 728 in North Eastern Railway zone .

Railways, in line with the instructions of Ministry of Home Affairs, every year prepare two lists -- Agreed and Secret list --

The Agreed List, prepared in consultation with CBI, includes names of officers whose integrity are doubtful.While, the Secret List are of those officers of doubtful integrity on the basis of accepted inquiry reports or proved charges of corruption.

"Persons in Agreed and Secret List are not assigned any sensitive posts and their working is kept under constant surveillance,

Fraud cases - complainant is department

DisproportionateAsset case source observation eitherfrom vigillence or from way of living.General survey for Nationby Raids No arrest in such cases

Trap cases complainant is a person who has a grudge with you

All these case comes under PC act 1988

Fraud - In our zeal ,sometime we takeout of waydecision to expedite some work without recording proper reason in detail on file

Fraud- Very innocent actionlike depositing license fee by railway staff instead of by licensee resulted in a CBI caseonWR

Fraud- Slackness in ensuring quality in Level xing work resulted in CBI case

Asset - We do not keep proper record of our financial assets resulting difficulties in case of problem.

We conviniently forget to keep proper record of

i) Marriage gifts

ii) Maturity value of NSC or other financial instruments

iii) Sale proceeds of any assets like flats etc

iv) Gains from share Market

v) Any awards ,honrarium etc

vi) Gift received by children or spouse on birthday ,marriage anniversary & their investments

vii) We habitually preserve all cash memo of our expenditure & feel elite in using credit cards on entertainment expenditures

All above aspects results unknowingly inconverting white money in black money

Therefore

Always keep record of your income & pay your tax so that hard earned money does not get converted in black moneyfor petty saving in tax

Alwayspreparea balance sheet along with tax returneven if it is not mandatory

Declare your assets (with balance sheet as now tax authority do not accept balance sheet)in annual property return

Case closed after investigation against CR officer

Case won in trial by NWR Officer

Case is won by WR& CRofic ialafter trial

Case is won by DOT official after trial in mumbai

Case won by 2 income tax officer in mumbai after trial

Case lost by C rly official inM umbai & punished for 5 yr imprisonment

Case lost by 2 SR officer in trial & 2 yr RI is imposed.appeal is being heard on 7 thAug 2009

It is true that No case may be initiated against any ofRailway officeras99% of themare straight forward officer

But even straight officers suffers a lot becausesome timetheir decision go against vested interest of few persons & some of thesedisgruntled element put a complaint against them .

So why not be ready for defense

Unfortunatelyin CBI cases , investigation starts after Raids & registration of case causing harrasements

Many time ,a man is not able to defend as he is ignorant about provisions of LAW & had not kept proper records ( of assets , reasons of decisions etc )

Better hi r e professional like CA or Income tax consultant for keeping up proper financial records . This investment will pay rich dividends

Every govt person should know salient provisions ofPrevention of corruption act 1988

Prevention is better than cure

Do not indulge in any such activitywillfullywhich can create problem for you in life

Do not be there where you should not normally be like contractor residence , contractor car etc

Do not talk on phone about money

Always record full reason of taking particular decision in file

Fraud follow rules so that you can defend your action on later date . If rule is bypassed ,record reasons

Dissproportinate Assets keep your account clear .Maintain cash book.it is must . Keep record of marriage gifts & gifts received on various occassions by you ,your spouse & childrens Need not keep record of expenditure avoid using credit card

Do not think that you are smartest person in the world & other are fools .

Always Be prepare for visit of investigation agency next morning(they may not come but what is harm in self defense )

All the case are fought onfact & legality .

Factsare provided by you &

legal aspectis taken care of by your Advocate.

Therefore both have to work hard for defending a case

Section 7 Public servant taking gratification accepts or obtains or agrees to accept or attempts to obtainfrom any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act(No demand but agreed to accept is sufficient to convict ) .

Section - 8.Taking gratification, in order, by corrupt or illegal means,to influence public servant - Whoever accepts or obtains, or agrees to accept, or attempts to obtain , from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means,any public servant , whether named or otherwise, to do or to forbear to do any official act,

Section - 9. Taking gratification, for exercise of personal influence with public servant -

shall be punishable with imprisonmentwhich shall be not less than six months but which may extend to five years and shall also be liable to fine

Section 10. Punishment for abetment by public servant of offences defined in section 8 or 9

Whoever,being a public servant , in respect of whom either of the offences defined in section8 or section 9 is committed, abets the offence,whether or not that offence is committed in consequence of that abetment , shall be punishable with imprisonment for a term which shall

be not less than six months but which may extend to five years and shall also be liable to fine .

Section 14. Habitual committing of offence under sections 8, 9 and 12- shall be punishable with imprisonment for a term which shall be not less than two years but which may extend to seven years and shall also be liable to fine.

13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct,- (a)if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration

Section 13(1)d ii -by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

13 (1) (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession property disproportionate to his known sources of income.

Section 13 (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term whichshall be not less than one year but which may extend to seven years and shall also be liable to fine.

Section15. Punishment for attempt

Whoever attempts to commit an offence referred to in clause (c) or clause (d) of sub-section(1) of section 13 shall be punishable withimprisonment for a term which may extend to three years and with fine

19.Previous sanction necessary for prosecution

(1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant,except with the previous sanction

S uch sanction shall be given by that Government or authority which would have beencompetent to remove the public servantfrom his office at the time when the offence was alleged to have been committed

No finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

Section 20 presumption if recovery is with accused

Section20. Presumption where public servant accepts gratification other than legal remuneration

(1) Where, in any trial it is proved that an accused person hasaccepted or obtained or has agreed to accept or attempted to obtainfor himself, or for any other person, any gratification or any valuable thing from any person, it shall be presumed,unless the contrary is proved , that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be

( 2) Where in any trial of an offence punishable under section 12 or under clause(b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person,it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratificationor that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-section (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion,so trivial that no inference of corruption may fairly be drawn.

Registration of FIR

Investigation- to be ordered by SP

Report to SP through legal deptt

Sanction for prosecution

Registration of case & submission of Charge sheet

Recording of evidence

Argument

Judgement

After registration of case for investigation ,a thorough investigation is done

Witness statement are takenby I.O.

At last , accused is asked to give his defense

These fact are examined by legal deptt of CBI & based on evidence on record ,it is decided whether it is fit case for trial

If not , case is closed .if Yes ,regular case is registered

In case CBI decide to prosecute the charged official , sanction for prosecution is asked from the appointing authority

If appointing authority ,on the basis of facts on record ,accord his approvalfor prosecution ,then charge-sheet is filed in the court . If he does not ,closure report is filed in court

Stage 1 Receipt of charge sheet

Stage 2- framing of charge & examining of documents

Stage 3 Recording of evidence

Stage 4 Statement oft he Accused under section 313 of Cr P C of 1973

Stage 5 Argument under section 314 of Cr P C of 1973

Judgment&

appeals if necessary

All the Panchnama ,FIR & statement of witness are to be studied word by word & various point in favor & against are to be analyzed by the accused.

Based on Analysis , a broad strategy for defense is to be prepared by Lawyer

Lotof time ( 2-3 years)is available between filing of charge sheet & framing of Charge.This time should be utilized in reading the case , consulting lawyers , reading various high court ,supreme court judgments & extracting judgments similar to ones case

Framingof charge is first stage of start of trial.If one feel that his case is strong & credible evidence are not against him , a discharge application can be filedbefore framing of charge

The copies of the documents are available alongwith charge sheet also but here original document are shown.

Only those documents should be accepted which are either harmless or in favor of case .Even Panchnama can be denied .

All the documents can be denied if purpose is to prolong the case .

Based on the statement givenby witness to police ,a questionnaire is to be prepared for cross examinationof witness. It should be further supplemented during deposition by witness in the court .

All important points of deposition need to be noted .

Purpose of cross examination isnot to prove the witness liar but to extract an answer which are favorable to you .

These answers finally becomes basis for argument as court recognizes only deposition of witness given in court(Not the statement given to police during investigation)

After Recording of evidence (prosecution as well as defense) is over ,the accused is given a chance to explain his point of view .

This is the only time when accused is permitted to speak in court .A written statement can also be given

Althoughthere is not much evidence value of this statement,Howeverfacts, if any, not yet come in notice of court, are brought in notice of Judge , he may considerthemwhile making his final judgment.

Accused can also act as own witness under oath .here he will be cross examined also. This has the evidential value.Howeve the accused can not be forced to answer such question which goes against him.

After recording statement of the accused, Argument are held between prosecution & defense advocate orally in court . Here various decision ( with citation) of high court/supreme court are quoted by both the party to support their arguments

The Judge notes down salient pointsof arguments .

To avoid the omission or over looking of any crucial point during oral arguments , In addition to Oral argument ,a written argument under section 314 of CR PC (optional) should also be submitted before conclusion of oral argumentsasthis is the only defense paper which remain on record which may help you in appeal in case judgement is gone against you.

Based on the evidence on record , argument ,counter argument& laid down legal principles , Hon Judge Finally announce his final judgement

Ifacquital- then happy ending

Ifconviction quantum of sentence & fineis also announce either on same day or next day

In case due to any reason, judgment is against you &then appeal is filed in high court ,

Written argument submitted in session courtwill be helpful as appeal inhigh court isdecided on the bases of documents on record . No new documents or witness is permitted in high court.

Only oral arguments are again done in high court where youradvocate has to explain where Judge in session court had gone against the evidence on record & sprit of settled law while convicting you.

The complainant & Investigation officer areinterested witness. Their evidence value is low .Independent witness are necessary to establish the case

Panch witness is independent witness & his evidence value is very high . Cases are lost if independence ofP anch is questionable like known to police or complainant or habitual panch or submissive

Case will continue even if the complainant become hostile witness

Many case are lost due to defective sanction order for prosecutionlike non application of mind

Tap recorded evidence are not acceptable as primary evidence .These are used as corroborative evidenceonly

No document can be introduced later on if not cited initially in charge sheet . There aremany laid down procedure for collecting evidence like telephone recording ,recording of conversation ,voice sample ,writing Panchnamas etc .if they are not followed , evidence is not acceptable

1988 act is spl act & over ride general provisions of law ,Cr PC etc unless silent

In DA case ,it is accused who has to prove his innocense wheras in all other case prosecution has to prove charge

Suspension of sentence is different from suspension of conviction

Every acceptance of illegal gratification whether preceded by demand or not, would be covered by Section 7 of the Prevention of Corruption Act, 1988

You are placed under suspension ,so your pass ,salary becomes half ,your DOT phone get disconnected

No money is available for defense asall bank accounts are seized & salary is half due to suspension-No money when you need it most

Advocates tries to take advantage of your ignorancedemanding huge money at every stage

Your colleague starts maintaining distance from you

A depression is set in you & your family due to uncertain future

Be patient as after every night ,day comes

Krishna RamvsState of Rajasthan [SUPREME COURT OF INDIA, 17 Mar 2009]

Criminal Prevention of Corruption Act, 1988, s. 13(1)(D) r/w 13(2) Appeal against conviction and sentence Held,once it is proved that the money was recovered from the possession of the appellant, the burden of presumption as contemplated under s. 20 of the P.C. Act, 1988 shifts upon the appellant ,

which he could not rebut through cross-examination of the prosecution witnesses or by adducing reliable and convincing evidence to prove that DW-1 advanced Rs.500/- as loan to the appellant through the complainant High Court has rightly concluded that the explanation given by the appellant was not probable and reasonable Appeal dismissed

State of Madhya Pradeshvs VirendraKumarTripathi [SUPREME COURT OF INDIA, 27 Apr 2009] Criminal Prevention of Corruption Act, 1988, ss. 13(1)(e) r/w 13(2), 19(3)(1) and 17 proviso II Circular D/- 09-02-1988 Acquisition of assets disproportionate to the known sources of income Framing of charge Discharge claimed Ground,investigation not conducted by the uthorized police officer, and sanction was not accorded in accordance with law Accused submitted that sanction was to be accorded by the law Department after consulting the parent department of the applicant/accused i.e. Forest Department which was not done Trial Court rejected the submissions Appeal there against, allowed by High Court

Order of High Court, whether proper? Circular, provisions of Act esp. 19(3)(1), perused Finding, advice of concerned Department was necessary Whether absence of advice renders the sanction inoperative? No Undisputed fact, sanction was given by Department of Law and Legislative; State Govt. had granted approval of prosecution;grant of sanction was in the name of Governor of State

Advice at the most is an inter-departmental matter Court further observed that HC has failed to consider the effect of s. 19(3) wherein inter alia it is provided that finding etc. of Special Judge shall not be interfered with on ground of irregularity in sanction unless there is failure of justice Prejudice or failure of justice not pleaded FurtherCourt noted that question of failure of justice cannot be entered into at the stage of framing of charge Whether investigating officer was Authorized to conduct the investigation? Yes Deputy Superintendent of Police who conducted investigation in instant case, is duly uthorized officer u/s. 17 of Act Appeal allowed.

A. Subair vsState ofKerala [SUPREME COURT OF INDIA, 26 May 2009] Criminal - Prevention of Corruption Act, 1988, ss. 7, 13(1)(d) r/w 13(2) and 20 - Conviction and sentence by Trial Court - Confirmation by High Court - Whether conviction proper or whether there is sufficient legal evidence on record to bring home the guilt of the appellant for the offence u/ss. 7 and 13(1)(d) r/w 13(2)?

Held, No - Provisions perused, evidence of PWs examined - Best evidence that ofcomplainant not tendered in evidenceby the prosecution; no explanation by investigating officer as to why complainant was not tendered in evidence; in absence of examination of the complainant, there is no substantive evidence to prove the factum of demand; best evidence was thus unavailable

Factum of demand thus remained unproved; thus offence u/ss. 13(1)(d) r/w 13(2) not made out

(i)HC raised presumption available u/s. 20 of Act for offence u/s. 7 - Whether justified? - Held, No- S. 20 perused - When alleged gratification is too trivial, Court is not bound to draw presumption;in instant case amount involved was Rs. 25 only, which Court observed was trivial - Conviction and sentence set aside- Appeal allowed.

This presentation is prepared justto make you conversantvarious provisions of LAWa ndaboutCare required to be takeninoffice work &management of your Money So that No problem is faced justbecause of careless ness

Do not walk knowingly in problem.

butif you landed in problem & needany help or have anyquarry ,you are most well come( [email_address] )

Every acceptance of illegal gratification whether preceded by demand or not, would be covered bythe Prevention of Corruption Act, 1988 & punishment is 6 monthto 7 year and fine

To start a case,

A Complaint is required

Complaint is to be verifiedin trap cases in presence of independant witness

Then actual incidence ie acceptance of money is to take place in presence of independant witness

Trap do notaccept money from any one.

Never meet suspected persons at his place or in his car or any other place where you have no reasonsfor being there.

Never talk about money either on phone or in person with suspected persons

If money is recoverd from your possession ,you have to explain how it reached there otherwise under section 20 ,it is presumed that you have accepted the money. Explanation should be credible becausemere acceptance of money even if there is no demand is sufficient to convict you

CBI has to prove case beyond reasonable doubt . Socreate doubt in their story

The complainant & Investigation officer areinterested witness. Their evidence value is low .Independent witness are necessary to establish the case .

Panch witness is independent witness & his evidence value is very high . Cases are lost if independence ofP anch is questionable like known to police or complainant or habitual panch or submissive

Many case are lost due to defective sanction order for prosecutionlike non application of mind,so find fault in sanction

Tap recorded evidence are not acceptable as primary evidence.These are used as corroborative evidenceonly

There aremany laid down procedure for collecting evidence like telephone recording ,recording of conversation ,voice sample ,writing Panchnamas etc .if they are not followed , evidence is not acceptable. Learn about them & co- relate in your case

Read judgements of supreme courts & extractsfavorable to your case may be shown to your lawyer

MotaRamvsState ofHaryana [SUPREME COURT OF INDIA, 28 May 2009] Criminal - Prevention of Corruption Act, 1947, s. 5(2) - Indian Penal Code, 1860, s. 165 - Conviction by Trial Court - Upheld by High Court - Whether proper? - Held, Yes - Appellant employed as Ward Servant in Primary Health Center; misrepresented to complainant as to that he would help him get selected for such post if he pay him Rs. 2000/-; amount was paid, further demand was raised for Rs. 4000/- which was also paid; complainant was not selected, he demanded back the money which was repaid sporadically - Findings of facts by Courts below upheld

Contention was raised that the amounts given were repayment for the loan taken from the complainant - No suggestion had been given and made to the complainant that he was in a position to lend money to the appellant ; moreover in cross examination the complainant stated that he had borrowed the amount from his brother in law - Conviction and sentence upheld - Appeal dismissed.

M. Radha Krishna Murthy vs AP -6 thmarch 2009Thetrial Court found the evidence to be acceptable and directed the conviction. In appeal the High Court held that since part of the prosecution version about demand and acceptance has not been proved, the remaining part of the case cannot be accepted. It was pointed out that according to the prosecution an amount of Rs.4,000/- was demanded and accepted and the first vital part of the prosecution version was that payment of Rs.2,000/- said to have been accepted by the respondent is not proved, therefore, when the part of the same is not accepted the remaining part of the case shall also not be accepted.

Placing reliance on a decision of this Court in Hari Dev Sharma v. State (Delhi Admn.) (1977 (3) SCC 352) the conviction as recorded was set aside. The High Court found that the prosecution case was that there was demand and an amount of Rs.2,000/- was paid on 13.6.1989 which has not been proved and with regard to the trap conducted by the prosecution while the accused was receiving Rs.2,000/- from P.W.1 on 19.6.1989.Even if the trap is proved beyond all reasonable doubt, the prosecution version cannot be upheld in view of the aforesaid decision of this court .

SC observation- "Precedent should be followed only so faras it marks the path of justice

In that view of the matter the judgment of the High Court is clearly unsustainable and is set aside and that of the trial Court is restored

Be happy

Do not get worried unnecessarily. You are not that unlucky 1%.

But be prepared with defense in case of eventuality

Enjoylife & have a Bright Future

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