Sunday, November 23, 2014

Reversing Burdens - Unconsidered Issues

In the previous post, I discussed the position of law regarding reverse-onus clauses in India. The judiciary has restricted the use of these egregious innovations and also took away a great part of their bite. The use of reverse-onus clauses, however, does raise other associated issues of procedure. General criminal procedure is designed upon the assumption that the burden to prove rests with the prosecution. Statutes reversing burdens therefore do provide a supporting special procedure, but there are always some questions left unanswered. 

Arguments on Charge and Reverse-Onus Clauses
I raise one such issue here to make the point. The 1973 Criminal Procedure Code [Cr.P.C.] provided for arguments to be heard at the stage of charge, allowing a Court to discharge the accused person if it appears that there is no case made out on a prima facie evaluation. For instance, Section 227, Cr.P.C. states:

"If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

"Documents submitted herewith" refers to documents submitted by the Prosecution. Section 207, Cr.P.C. tells us what these documents are: (i) the Final Report [colloquially called the charge-sheet] (ii) the First Information Report recorded under Section 154, Cr.P.C., (iii) statements of witnesses recorded under Section 161(3), Cr.P.C., (iv) confessions recorded under Section 164, Cr.P.C, and (v) any other relevant document in the eyes of the Prosecution. 

Can the accused be allowed to produce material during arguments on charge to further his case? A three judge bench of the Supreme Court held that an accused person cannot present material during arguments on charge [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568], unless there are exceptional circumstances that necessitate that such material be considered [see, Rukmini Narvekar v. Vijaya Satardekar & Others, (2008) 14 SCC 1]. The threshold for something to become an "exceptional circumstance" of this nature is quite high; mistaken identities and the like.

The norm for criminal trial and investigation is that the prosecution must prove its case beyond reasonable doubt. The Police are thus tasked with conducting a meticulous investigation of the kinds elucidated under the Cr.P.C. from sections 154 to 173 to collect evidence sufficient to bring home the charges against an accused. So it seems entirely appropriate that the question of charge must be decided on the strength of this material. But here lies the catch. What about cases where the prosecution only has a limited burden, and the accused has to prove his innocence? 

At trial the accused would be required to lead evidence to prove his case, that there was no mens rea accompanying the acts/omissions that the prosecution established had occurred. If in ordinary cases, the Court considers prosecution material to determine the existence of mens rea, there is every reason to accept defence material at the stage of charge in such cases to determine the same question. However, neither do the special statutes provide any legislative support to the argument, nor has it been judicially considered as of yet. To my mind though, there is no reason to reject the claim.


  1. This is a very interesting post.

    However, I have one point. I would imagine that the entire question of burden, whether evidentiary or substantive, would arise only at the stage of actually presenting arguments. At the stage of framing of charge, the question really is whether there is evidence to conduct a prosecution at all to begin with and that is still the job of the prosecution, irrespective of who bears of burden of proof finally.

    Nevertheless, I think the strongest support for your point would be the language of Section 226 which says 'and stating by what evidence he proposes to prove the guilt of the accused'. Therefore, like you said, the purpose of allowing the prosecution to present evidence on charge appears to be because the prosecution has to prove the same eventually.

    Also, don't you think that something like a reverse onus clause could potentially qualify as an exceptional circumstance?

    1. Thanks for your comment.
      You answer your own criticism by mentioning Section 226, which does indicate a correlation between the burden of proof and arguments at this stage. I should have added that in the post itself, but given that there is no concomitant provision in context of other discharge sections (239, 245 CrPC), I avoided it.

      Well, given the frequency with which these clauses are employed, it would be incorrect to call them "exceptional". But, that is certainly one way in which you can integrate my point into the current position of law.