Tuesday, 5 December 2017

Law relating to Bribe Giving & Bribe Taking

Everyone knows bribe taking by a public functionary is an offence but some people do not know bribe giving is also an equally punishable offence. There is no much clarity on how and in what manner bribe giving becomes an offence. This article explores the architecture of the offence of bribe giving but it cannot be explained without touching upon the law relating to the offence of bribe taking as well.

Bribe giving is an offence

Both bribe giving and bribe taking are offences under Indian law. They are termed offences originally by Indian Penal Code (IPC), 1860 and later by the Prevention of Corruption Act (PCA), 1988, which now deals with the offences. The law attracts bribe taking by the public functionaries and bribe paying by anyone as offences punishable in equal terms. The offences and penalties come under Chapter III of the PCA.

In practice, both the offences occur in utmost secrecy with almost no one present to witness the event. Therefore the process of investigation into both the offences and brining the culprits to book becomes an extremely difficult or a near-impossible task. In many much-publicized cases of bribery, the accused was set scot free due to lack of credible evidence during prosecution. The preventive law on corruption therefore remains as a law without sufficient teeth in punishing those involving in bribery.

Offences under the law

A public servant accepting any gratification, other than legal remuneration, as a reward for doing or not doing any official act or functions is an offence under the PCA. A public servant is a person remunerated by the government for the performance of any public duty - a duty in which the state, the public or the community has an interest.

Bribe taking need not be pecuniary in nature. It may include craving for an honorary distinction or for sexual intercourse from any person concerned in any business with the government - such as issue of a certificate or any other thing. Similarly, a public servant obtaining any valuable thing from a person concerned in business with the public servant is also an offence punishable under the law.

Any person abets (instigates to do, engages in or aids in) in any manner in the offence of bribe taking by a public servant in receiving any illegal gratification or obtaining any valuable thing comes within ambit of the offence of abetting ,as per the Section 12 of the PCA. A person who offers or provides any bribe is an abettor or accomplice in the offence.

A public servant misappropriating any official thing illegally or providing illegal advantages to anyone or possessing assets disproportionate to his known sources of income are offences under the act. If the prosecution proves that there is mismatch between the assets and the known sources of income of the public servant, then the burden of proving the innocence shifts from the prosecution to the public servant under the scanner.

Offering any bribe an offence

A mere act of offering a bribe to a public servant itself is enough for anyone to get charged with an offence of abetment under the PCA even if the concerned public servant did not accept the bribe. So an offer of bribe without acceptance itself is punishable.

There are two kinds of bribe givers - one who intends to pay bribe and subvert the priority and procedures in service delivery, and the other one who has no choice but to give bribe unwillingly to get a service legally due to him. Both do not stand in equal footing. In the former kind, the bribe giving is to get something he does not deserve. It is called collusive bribe-giving. But in the latter the bribe giver becomes the victim of an extortionist bid. The bribe giver in the latter case pays bribe to get what they are legally entitled to get. It is called coercive or harassment bribe giving.

Since bribe giving is illegal both kind of bribe givers are part of the offence as per law. The former is to be punished severely but the latter deserves due consideration. The latter has the possibility to escape from punishment if he can prove that the bribe was given unwillingly or under coercion.

Legal provisions on bribery & abetting

Bribe giving is a punishable act that comes under the ambit of Section 12 of the PCA. The bribe giver is an abettor of the crimes punishable under section 7 or 11 of the act.
The Section 109 of the Indian Penal Code (IPC) provides for the punishment of the offence of Abetment. The section 107 IPC, which defines what is “Abetment of a thing”, applies to all central acts, as per Section 3(i) and 4 (ii) of the General Clauses Act, 1897.

Therefore both bribe giver and bribe taker are liable for same punishment of imprisonment from three years to seven years and fine, as per Section 12 of the PCA.

Section 24 insulates a bribe giver

However, the section 24 of the PCA insulates a bribe giver from punishment for any statement he makes against a public servant in regard to the offence of bribery by the public servant punishable under Section 7 to 11 and 13 to 15 of the PCA.

The section 24 of the act says that a statement regarding payment of bribe cannot be a subject to prosecute the bribe giver under Section 12 of the act.

When bribe giver can be proceeded against

In case of a bribe offer, both bribe giver and bribe taker are liable to be proceeded against if the public servant accepts the bribe knowing it as an illegal gratification. If the public servant rejects the offer of bribe, the bribe giver alone can be proceeded against.

A mere offer to give bribe, which has neither been accepted nor rejected by the public servant, will not invite prosecution to a bribe giver under section 12 of the act. In such a case there is no abetment. So offering and agreeing to offer bribe becomes a crime under section 24 of PCA only when the public servant either accepts it or rejects it.

Demand for bribe needs to be proved

The Section 7 of the act provides for conviction of the bribe taker but for conviction there must be evidence to prove that illegal gratification was demanded by the public servant.

A government official cannot be convicted under corruption charges merely on the basis of recovery of bribe money and it is essential to prove that he had demanded money, the Supreme Court says ( P.Satyanarayana Murthy vs Dist.Insp.Of Police & Anr on 14 September, 2015 ). The proof of demand is an "indispensable essentiality" for establishing an offence of bribe.

Earlier in State of Kerala and another vs. C.P. Rao ( (2011) 6 SCC 450) also, the Supreme Court held that mere recovery by itself would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.   It has been held that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand is an indispensable essentiality for an offence under Sections 7 and 13 of the PCA.

Similarly in B. Jayaraj v. State of Andhra Pradesh, (2014) 13 SCC 55), the Supreme Court held that demand of illegal gratification is sine qua non to constitute the offence of bribe taking. The recovery of currency notes alone cannot constitute the offence under Section 7, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe.

A private person offering an amount to a public servant without demand of illegal gratification and the public servant cannot be prosecuted even if he accepts the bribe when there was no demand on his part. That means, to contribute an offence of taking bribe there should be a valid demand from the part of public servant and subsequent acceptance of the bribe by him. To convict him both need to be proved.

Trap Cases

The briber giver has amnesty only when he could establish that the bribe giving was unwilling or under coercion, and the payment was made to get the public servant punished (please see Bhupinder Singh Patel v CBI 2008). The provision under Section 24 of the act is thus becoming a tool for those who want to trap a public servant.

Therefore a statement made by a bribe giver in any proceedings against a bribe taker in regard to the payment of bribe or any valuable thing he offered or agreed to offer shall not be subjected to a prosecution or punishing him, as an abettor of the offence of bribery.

However the protection is available only at the stage of trial but not at the stage of registration of FIR or the initial stage of prosecution. In the pre-trial stage he should be proceeded with as if he is an abettor in the offence of corruption.

Need to make coercive bribery legal

There has been a suggestion to legalise bribe-giving by citizens who pay bribe for obtaining services that are lawfully due to them, so as to enable them to complain against bribe takers. This may help improve the chances of prosecuting corrupt officials. Those who pay bribe can keep some record of the illegal transaction including video, making it much easier for law enforcers to get crucial evidence for a trial.

Now, most corruption cases fail because investigators cannot gather valid evidence. If bribe-giving is made legal, those who pay bribes may help in prosecuting the bribe takers.

However this legalization need not be made applicable in high profile cases where government functionaries allow high-value contracts in return for bribes.

Distinction between Culpable Homicide and Murder

The heinous offence of killing of a person by another is termed as Murder, Culpable Homicide and Non-Culpable Homicide in India or in degrees such as First Degree Murder, Second Degree Murder and Third Degree Murder in the United States of America, depending on the gravity of intention behind the act and the severity of the way of committing the crime.
In India, the crime of killing of a human being by another human being is broadly categorized as Culpable Homicide and Murder under the Indian Penal Code (IPC). They are enlisted as distinct offences. But the definition and description of both Culpable Homicide under Section 299 IPC and Murder under Section 300 IPC look almost similar in terms of the terminology used. Therefore making out the distinction between them is bit difficult. The lack of distinction perplexes even the learned law professionals also.
The sections relating to Culpable Homicide and Murder are the weakest provisions in the Code in terms of clarity. The sections are obscure and may create confusion even in the minds of legal and judicial officers. Capable Homicide is defined in the code but neither Homicide nor Murder is, except by explanation.

Ingredients of the Sections 299 and 300 of IPC

The Section 299 of IPC defines Culpable Homicide as follows:-
Whoever causes death by doing an act with,
1.     Intention of causing death.
2.     Intentionally causing bodily injury which is likely to cause death.
3.     Doing act with knowledge that it is likely to cause death.

The Section 300 of IPC describes Murder as follows:-
Whoever causes death by doing an act with,
1.     Intention of causing death.
2.     Causing such bodily injury as the offender knows it is likely to cause death of person.
3.     Intentionally causing bodily injury which is sufficient to cause death.
4.     Doing act with knowledge that it is so imminently dangerous and in all probability causes death.

Culpable Homicide is a genus

Culpable Homicide is a genus whereas the Murder is its species. Therefore all Culpable Homicides are not Murders but all Murders are Culpable Homicides.
Culpable Homicide refers to doing a criminal act with the intention of causing death, or with the intention of causing bodily injury which may eventually cause death, or doing an act with the knowledge that the act will result in death of the other.  In Culpable Homicide there must be intention or knowledge on the part of the accused that his act will cause death or at least injury which would be sufficient to cause death as a result of the injury.  

If a person is causing some injury to another one who is already suffering from some disease or some bodily infirmity and that injury accelerates the death of that person the person responsible for causing injury is liable for punishment for causing Culpable Homicide.  If the person doing the act has no intention to kill the other or has no knowledge that his act will kill the other person, the person doing the act is guilty of only a lesser crime than Culpable Homicide, but not Murder. A killing done without premeditation or on a passion or a sudden plight in the spur of a moment will not amount to Culpable Homicide coming under Section 299 of IPC.

In regard to Section 299 the Supreme Court in Jagriti Devi vs State Of H.P says, “The bare reading of the section makes it crystal clear that the first and the second clause of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not intention. Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in Culpable Homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of Culpable Homicide is said to have been committed”.

A husband struck a violent blow on his wife and the wife falls unconscious. Thinking that the wife is dead, he hung her body soon so as to create false evidence in regard to the incident. The court said that the husband had no intention to kill his wife and hence not punishable for Culpable Homicide as he has no intention to cause her death. He is punished for his original assault and for creating false evidence only.

Murder under IPC

A Culpable Homicide will turn into a Murder if the criminal act by which the death is caused, is done squarely with the purpose of causing death. Similarly, if the offender is causing bodily injury on victim with due intention or knowledge that it is likely or sufficient to cause death it will be treated as a case of Murder. An act so imminently dangerous enough to cause death or bodily injury that may likely to result in death will also be considered a Murder. Murder is the most heinous crimes in the criminal calendar.

In Murder, both the intention and knowledge of the offender about the dire consequences are important. If an act done by a person on the other is done with the chrystal clear intention or knowledge that the act will be likely or sufficient to kill a person, it is Murder. The essential ingredient of Murder is an unlawful act of causing death of a person through a criminal act or commission by another person with prior intent, malice or premeditation.

Though the words used in both the Sections of IPC look similar there is a subtle difference between both terms, in terms of their import. But the differentiation of both crimes retained in the Code is necessary so as to separate the most heinous killing from those which are less serious in nature.  The distinction between the imports of the sections can be made out only by analyzing the differences in illustration provided and in punishment given for the crime under each Section.

In regard to Section 300 the Supreme Court in Jagriti Devi vs State Of H.P says, “Section 300 IPC, however, deals with Murder although there is no clear definition of Murder provided in Section 300 IPC.“ and “Section 300 IPC further provides for the exceptions which will constitute Culpable Homicide not amounting to Murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause Murder and bodily injury, then the same would be a case of Section 304 Part II. The aforesaid distinction between an act amounting to Murder and an act not amounting to Murder has been brought out in the numerous decisions of this Court”.

The term intention means the state of mind to bring about a desired result whereas knowledge refers to the state of conscious awareness of the facts. Intention is different from motive which is hidden or cannot be unearthed easily. Intention and knowledge have to be unearthed from the circumstances as both are a state of mind invisible and subjective.

Inflicting an injury on the vital part of the body, use of sharp edged weapons, hitting with high force to impair body organs, through searching for the victim everywhere for acting upon him, uttering dreadful words in regard to killing immediately after killing, etc are being treated as circumstances that bring forth the dire intention of the accused in cases of Murder.

When Culpable Homicide is not Murder

However, some sorts of exceptional homicides do not come within the ambit of Murder. There are five exceptional circumstances in which a Culpable Homicide is not Murder, but just manslaughter - a term in English law.

Manslaughter is the unlawful killing of a person without malice - either express or implied - as provided under exceptions in Section 300 IPC.  The exceptional circumstances are as follows:-

Provocation: If the offender is deprived of the power of self control by grave or sudden provocation and he causes death of the provocateur or any other person, the offender is not punished for Murder.

Private defence: If the offender is exercising his act in good faith, without premeditation or intention to do no harm, the right to private defence will come into play. Then that is not Murder.

Exercise of legal powers: If the offender is a public servant and doing any act believing to be within his purview and caused death, it does not amount to Murder.

Absence of premeditation: If a person in a sudden heat of passion of a quarrel commits a killing without premeditation, it is not Murder.

Consent: When a person who is above 18 years of age and his death was caused with his voluntary consent, it is a case of Culpable Homicide but not Murder.

Distinction in probability of death in both crimes

Murder is an aggravated form of Culpable Homicide. The existence of any of the four clauses in the section 300 turns a killing into a Murder, while the exception to the section reduces even a heinous killing in the nature of Murder into one of Culpable Homicide not amounting to Murder.

In both Culpable Homicide and Murder, there is mens rea - an intention to kill the victim. But in Culpable Homicide the accused is not certain of death of the victim but hopes for it. In Murder there is definite intention to kill and the offender is certain that the victim will die. The probability of death is certain in Murder whereas it is quite uncertain in Culpable Homicide.  Murder involves more premeditated actions than Culpable Homicide.

And in Murder the degree of probability of death is definite in comparison to Culpable Homicide. To constitute Murder there must be intention or knowledge that death must be the most probable result of the criminal act by the accused.  To constitute Murder the accused must have clear knowledge that his act must in all probability cause death rather than the bare knowledge that his act is likely to cause death.

Even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the rule laid down in the Virsa Singh case (1958 AIR 465) indicates that the offence would be Murder. The judgment says, “No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that        they are not guilty of Murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional”.

Mechanism to differentiate Culpable Homicide and Murder

It is quite difficult to differentiate a Culpable Homicide from Murder if the facts of the case fall on the borderline between the two in terms of gravity of intention or seriousness of the action. But the apex court says as follows:-

First, establish that the accused has done an act of causing death of another. Then, consider whether the act of the accused amounts to Culpable Homicide.  Then, consider whether the ingredients of section 300 have been satisfied. Lastly, consider whether the killing can be brought down to the lower place of Culpable Homicide not amounting to Murder by going through the exceptions under Section 300 IPC.  If the killing does not attract the ingredients of the section 300 explicitly or if it attracts the exceptions under the section, it will be a case of Culpable Homicide punishable under section 304 and not Murder. The matter to be considered at this point is whether the facts of the case fit well with the sections under section 300 - firstly to fourthly – to sustain the charge of Murder.

The offence would fall under Culpable Homicide if the bodily injury intended to be inflicted on the victim is likely to cause death; it would fall under Murder if such injury is sufficient in the ordinary course of nature to cause death. The distinction is a question of degree of probability.  When the accused inflicts several injuries on the person having knowledge of causing death the accused deserves conviction for Murder.
Stabbing in chest or abdomen with sufficient force to penetrate such structures prima facie will amount to the offence of Murder.  When injuries are inflicted by a number of persons with the intention of killing and death ensures as a result of the injuries it is a case of Murder under the first clause of section 300 IPC. Similarly, giving a terrific blow on the head with a heavy hammer and thereby smashing the head bones he intends to cause death under section 300 (2) and (3) of IPC.

An act done with the knowledge of its consequence of merely causing death is not prima facie Murder, if it can be affirmed that there was no definite excuse allowable in the action it is a clear case of Murder. Only extremely reckless and wholly inexcusable act of homicide will constitute Murder.  

It is the degree of probability of death which determines whether a Culpable Homicide is of the gravest, medium or lowest degree. The section 299(2) conveys the sense of probability as distinguished from a mere possibility. The thirdly of section 300 mean that death will be the most probable result of the injury in the ordinary course of nature.

Kinds of Culpable Homicides

Culpable Homicides are of three kinds in terms of punishment: -
  1. ·       Culpable Homicide of the first degree - Murder. This is the gravest form of killing with malice aforethought and punishable under Section 302 IPC
  2. ·       Culpable Homicide of the second degree - ordinary killing or manslaughter without malice. This is an act of Culpable Homicide not amounting to Murder and punishable under IPC 304 Para I
  3. ·       Culpable Homicide of the third degree. This is the lowest kind of killing (voluntary manslaughter) and punishable under  IPC 304 Para II

The fourth degree Murder is involuntary manslaughter, which is done without any sort of criminal intention, such as death caused by negligent driving or such other criminal negligence - for which the punishment is much lesser, not exceeding two years imprisonment, or fine, or with both.

If an offence is done with intention and knowledge in regard to causing death it will be a case for second degree Culpable Homicide but there is only knowledge alone in regard to causing death, it is a case for third degree Culpable Homicide.

Punishment for Murder and Culpable Homicide

The punishment IPC prescribes for Murder under section 302 is death or imprisonment for life and fine, if any. Murder case is tried by the Court of Session.

There are two sets of punishments for Culpable Homicide not amounting to Murder under Section 304.  One is punishment is imprisonment for life or for ten years and fine, and the other is imprisonment for 10 years or fine, or both.

The Supreme Court State of A.P. v. Rayavarapu Punnayya ( (1976) 4 SCC 38) says, “For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of Culpable Homicide.

The first is, what may be called, "Culpable Homicide of the first degree". This is the greatest form of Culpable Homicide, which is defined in Section 300 as "Murder". The second may be termed as "Culpable Homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "Culpable Homicide of the third degree". This is the lowest type of Culpable Homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable Homicide of this degree is punishable under the second part of Section 304."


Even though both provisions relating to Culpable Homicide and Murder correspond with each other, the difference in both the offences – Culpable Murder and Murder - lies in the certainty of death in the latter.  In fact the difference is in regard to gravity - the seriousness of the act of crime.

If the act is so dangerous with no possibility of survival for the victim, it is an apt case of Murder. If a person dies out of an intentional act of cutting someone’s head, then there is no chance for his survival. Then that is nothing but Murder. If an act of crime leaves the victim with some chance for escaping death it is a case of Culpable Homicide.  

It would have been nice if the IPC had shown the difference between both crimes in clear terms using distinct set of words.

Cancellation of Bail and Its Legalities


The term bail refers to the judicial release of a person from custody. The grant, refusal or cancellation of bail is a judicial act. It has to be performed with utmost care by applying the mind or discretion of the court.

Indian judiciary through many of its judgments unequivocally upholds that grant of bail is the rule and refusal of it is an exception. Every person is presumed to be innocent until the criminal charge against him is proved in a process of trial. Bail is a substantive right rather than a procedural one in tune with the citizen’s fundamental right to liberty.

The cancellation of bail means putting the presumably innocent but accused person again in detention in violation of his fundamental right to liberty, ensured under Article 21 of the Constitution.

Cancellation of bail is possible

Bail is not a guarantee of complete freedom but it is a matter of conditional freedom. In the event of its violation, the court is quite competent to cancel it. Therefore the court, which has released a person on bail, has the authority to cancel the bail and direct the person to be arrested so as to put him into custody, if the court considers it is necessary. Such cancellation is done when the accused enlarged on bail engages in any activity in violation of the conditions stipulated in the order of bail.

Cancellation of bail is a very delicate legal issue. The legal grounds for cancellation of bail are intimidating the witnesses, tampering with the evidence and interfering with the course of justice.

The power to cancel the bail rests with the court and not with the Police. The court which granted the bail alone can cancel it. However the Court of a Magistrate has no power to cancel the bail granted by the Police. The High Court (HC) or the Court of Session has power to cancel such a bail.

Cancellation of already granted bail is a more difficult task when compared to rejection of bail at the stage of application. The former is more complex a decision for a court to take than the latter. In cancellation of bail, the court has to review the decision already taken at the time of granting bail. The cancellation is permissible only when the freedom made available to the accused on bail is not conducive for fair trial proceedings. However, a bail granted arbitrarily, illegally or improperly can be cancelled with ease. In such a case, the cancellation is not the right choice; rather invoking the process of appeal is the most appropriate course. Unless there is no valid evidence to prove that the accused had abused the bail, it is not proper for the court to cancel it.

If a person enlarged on bail is abusing the liberty granted to him by violating any of the conditions imposed on him it becomes a fit case for cancellation. Cancellation of bail can be granted only on reasons known to law. It involves a review of the decision already made and therefore it is permissible primarily on the ground of supervening circumstances.

Revision petition on granting bail

It is possible to challenge granting of a bail by a Magistrate in a revision petition in the High Court. In the application for cancellation of bail, the logical reasoning that prevails is that the granting of bail at the stage of its granting was quite proper but the supervening circumstances made the continuation of bail legally untenable. Whereas in revision petition what the applicant grieves about is that the granting of bail itself was not legally tenable.

In the matter of exercise of revision on a bail order, the Supreme Court and High Court have issued contravening orders. The Supreme Court, in cases like Amar Nath & Others v State of Haryana (1977 AIR 2185), Madhulimaye v State of Maharashtra (1978 AIR 47), deals with the issue of bail. Relying on the apex court orders the Allhabad High Court in State of UP v Karam Singh  (1988 CriLJ 1434) held that an order granting bail is an interlocutory order and hence it cannot be challenged under exercise of revision in a Sessions or High Court. But the Bombay High Court, relying on them, decided the contrary in R Shakuntala v Roshan Lal (1985 CriLJ 68 (Bom)).  Some commentators consider the Bombay High Court order is more appropriate.

The issue of cancellation of bail is only an incidental matter in a criminal case. Therefore the standard required to prove a case relating to bail is ‘preponderance of probabilities’ and not ‘beyond reasonable doubt’ unlike as in other criminal matters.

Cancellation: An exercise of discretion

In cancellation of bail, the court has ample power to exercise enough discretion. But no guidance is given by the statutes as to when and how it is to be exercised. However an order of the Madras High Court in Public Prosecutor v George Williams (AIR 1951 Mad 1042) elaborates that the bail granted to an accused can be cancelled when the person on bail commits the very same offence, hampers the investigation, tampers with the evidence, runs away to a foreign country, goes underground/ beyond the control of his sureties or commits any act of violence against the police/witnesses. In such cases the High Court/Court of Session can direct any person released on bail be arrested. Nevertheless the power is to be cautiously used in due consideration of the facts and circumstances of the case. The power in this regard under section 439(2) of the CrPC is quite wide.

If the bail is granted by the HC, the Sessions Court cannot cancel it, unless new circumstances not known earlier crop up during the trial. If the Court of Session has granted bail to a person, the State can approach the HC. Even an informant, when there is real threat or risk to him or his party, has power to move the court for cancellation of bail under section 439(2) CrPC and the court must take decision considering whether there is any abuse of the process of the court or gross miscarriage of justice.

The "discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular" and it “must be exercised, not in opposition to, but in accordance with, established principles of law."

Bail cancellation needs cogent reasons

Bail granted once should not be cancelled in a routine or mechanical manner. Very cogent reasons are necessary for cancelling the bail already granted. Absence of any post-release misconduct is a compelling reason to reject an application for cancellation of bail. Even a third party can apply for cancellation of bail. The HC has ample jurisdiction to exercise the power suo moto. However mere allegation of threat to witness should not be utilized as a ground for cancellation of bail. The court should carefully weigh the acceptability of the allegations and pass orders as circumstances demand and law warrants. The court cannot cancel bail on any alien ground not mentioned in the law.

The basic grounds for cancellation are interference with the course of justice, evasion of due process of justice or abuse of the conditions granted to accused in any manner. While considering the cancellation application the question of individual liberty of the accused is to be put in juxtaposition with the societal concern in the crime at hand. The latter deserves priority over the former. The law provides great discretion to the judge considering the bail application. Merits or demerits of the case should not be highlighted by the court while granting or refusing bail.

Undue publicity to be avoided

The press must not engage in undue publicity when the application of bail of a person, howsoever high or low, is in consideration by the court. It should act with restraint as what are at stake in a bail application are dignity, reputation and liberty of an individual. Similarly the court should not make unwarranted comments so as play to the needs of the gallery.


The object of pre-trial detention of the accused is not to impose punishment but to subject him to the penal procedures of law. The “bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial".

Therefore granting of bail should be the rule and cancellation of bail should be resorted to only in rarest of the rare cases where the accused on bail has done something wholly against the sanctity of legal provisions of bail. 

NB: The article originally appeared at http://www.lawyersclubindia.com/articles/Cancellation-of-Bail-and-Its-Legalities-8551.asp

Examination of the Accused under Section 313 of the Cr P C

The examination of the accused under Section 313 of the Criminal Procedure Code (Cr P C) by the trial court is popularly known as “313 examination” and the statement deriving out of it is called “313 Statement”.

Purpose of 313 Examination

The purpose of 313 examination is primarily to provide the accused an opportunity to explain the actual facts about the incriminating circumstances against him on one hand, and the court a chance to examine the accused in an environment free from fear of the accused being unnecessarily trapped into embarrassing admission on the other.

The Section 313 has another limb also. The court can ask the accused any question as the court considers necessary at any stage of the trial without even warning him.  It is a great procedural power granted to the court to know what really the circumstances of the crime were. That part is not the point of discussion here.

A Golden Chance for the Accused

The examination is a golden chance for the accused to state before the court what the truth is, in regard to the offence charged against him. It provides him an easy option for acquittal if he is definitely innocent - despite that the evidence creates a tough smokescreen due to unreasonable interconnection of events that the prosecution brings forth.  It works well for the benefit of both the accused and the court when the defence witnesses are weak and the circumstances are not quite in favour of the accused. The examination cannot be used for nailing the accused.  To nail the accused the prosecution story should stand on its own legs.

The examination is done after the witnesses for the prosecution have been examined and before the accused is called upon to enter into his defence. It is in fact a supernumerary examination, in addition to the examination of witnesses of the prosecution, defence and court, in order to fortifying the disparate events into a whole story of facts and truth. The examination is really a procedural safeguard for the accused to directly tell the court what actually had happened. It provides a proper and adequate opportunity for the accused to explain his innocence if he is really innocent and he has been unnecessarily brought to book due to some deceptive circumstances. The explanation of the accused will be weighed by the court against the prosecution story to see whether the investigation is fair or a fabricated one.

Questions must be Comprehensible

The question to be asked under this examination should be couched in a form which is understandable to even an illiterate person. A complex question involving a number of facets of the issue in one string should be avoided.

The questions put to the accused must be comprehensible to him. The question should not contain more than one circumstance or a combination of several instances. The question must be fair. The court cannot ask any question on a matter when there is absolutely no evidence about it. Inquisitorial questions cannot be asked to trap the accused or compel him to make incriminating admissions. In this examination, it is improper for the court to read out a long string of question and ask the accused whether the statement is correct or not. The accused must be questioned about each material circumstance separately so as to provide the accused an opportunity for fair explanation. If the trial court does not give the accused an opportunity for explaining the facts as he prefers, the appellate court can do so. 

The court cannot opt for pick and choose selection procedure in putting questions. Each and every circumstance emerging from the record against the accused is to be put to him. If the accused keep silence or fail to give an explanation, it can be treated as a circumstance standing against him even though he has the right to keep silence as per law. It is the duty of the court to bring the attention of the accused to every incriminating material but the court cannot accept the incriminating part of the answer and reject the exculpatory part.

The personal examination under the Section 313 cannot be substituted by the examination of the Counsel of the accused.  That the court asking the accused what he has to say about the prosecution evidence in general, is not good enough for the court under Section 313, but he must be asked about each material circumstance against him. Under this examination, the court cannot split a statement of the accused into two and take one part and reject the other. The statement should be taken as a whole and in its right spirit in which the accused intends it to be. 

Not Substantive Evidence

The 313 statement is not substantive evidence and conviction cannot be made on its basis alone. But it can be considered for believing the prosecution story if it is a supportive one.  The statement cannot be used in punishing the accused in the case, as per law. On the other hand, if the statement he makes in the court is convincing enough to setup his innocence, the court can acquit him. The object of questioning under Section 313 is not to build the case against the accused or to fill up the lacunae in the prosecution evidence but to enable the accused to tell the truth of the prosecution story and to acquit him if he is really innocent.

Questioning “generally on the case”, as the provision states, does not mean asking the accused general questions regarding the offence. It means nothing but the questions must relate to the whole case and not limited to some of the aspects. Circumstances not included in the evidence cannot be put to the accused. The court cannot use any document from outside the evidence when the accused is examined under this section. When more than one accused is tried each one should separately be questioned under this section. Non-examination of the accused under this section will also be prejudicial and result in injustice to the accused. 

The mode of recording the statement should be as provided for in Section 281 of the Code. The whole of such examination including every question put to him and every answer given by him shall be recorded in full by the judge himself. The record shall be shown and read to the accused before getting his signature. In this examination, it is not essential for the court to consult the defence council in regard to the nature, circumstances and type of questions to be put to the accused.

Questioning must be Fair

It must be remembered that the 313 statement is for the benefit of the accused. Mixing up distinct matters will not give the accused a fair opportunity to explain the circumstances that appear against him. The questions as in the nature of cross examination cannot be put to the accused as the examination is for the accused to explain the incriminating circumstances.  The accused, under the Section 313, is to be questioned not to get the inference that flows from the circumstances against the accused but to rule out even the remote possibility of any trace of innocence of the accused. However the prosecution must stand on its own legs. If the evidence that the prosecution provides does not inspire confidence in sustaining the conviction of the accused, the court should not take the incriminating part of his statement alone, as the sole basis of his conviction. Before questioning the accused under the section, the court must be quite clear in its mind in regard to the issues of the case to be proved by the prosecution and the circumstances upon which the prosecution wishes to rely.
In fact, the examination of the accused under this section establishes a direct dialogue between the accused and the court. It is being done in accordance with the principles of natural justice and it enables the accused to justify his innocence, if he is in truth innocent. The failure of the accused to mention some facts in his 313 statement may weaken his defence. Both non-compliance of mandatory provisions of 313 and non-questioning by the prosecution on certain matters, are not sound reasons to acquit the accused.

No Conviction solely on the Statement

Conviction of the accused cannot be based merely on the statement made under section 313 Cr PC.  The statement cannot be used against the accused in the case but can be used in any other case but it can be a germane consideration for the court if the prosecution has established the chain of evidence reasonably well.

Above all we must not forget that in a criminal case, the accused is not required to prove his innocence but if he can he will get an easy and early acquittal. This examination is an extraordinary option for the accused to prove his innocence if he is really innocent.

Additional Reading: Case Laws

NB: The write-up originally appeared at http://www.lawyersclubindia.com/articles/Examination-of-the-Accused-u-s-313-of-CRPC-8440.asp