Team Code-A

IN THE HO NBLE SUPREME COURT OF INDIA AT NEW DELHI,

SLP NO. NO. ****/ ****/2013 2013 Ms. Ajitha........ .Appellant Vs. State of Delhi NCT... .Respondent

MEMORIAL ON BEHALF OF THE APPELLANT WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT

MEMORIAL ON BEHALF OF THE APPELLANT

ii TAB TABLE OF CONTENT ONTENT

INDEX

OF

AUTHORITIES........................................................................................... iii STATEMENT JURISDICTION.................................................................................. STATEMENT FACTS............................................................................................... STATEMENT OF OF v OF vi ISSUES

............................................................................................ ix SUMMARY OF ARGUMENTS...................................................................................... DETAILED ................................................................................................ 1 I. The Honble High Court was not justified in refusing to exercise its power under section 401 of The Code of Criminal Procedure, 1973..1 II. A non-speaking order cannot be sustained in x

PLEADINGS

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law..4 III. Confession of an approver can be retracted at stage of section 228 of Code of Criminal Procedure,

1983...6 IV. A retracted confession by an approver cannot be used as evidence against the other

accused ...7

PRAYER

.10

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iii INDEX OF AUTHOR AUTHORITY Cases

Amar Chand v. Shati Bose, A. 1973 S.C. 799 (804) Akalu v. Ramdeo, 1973 S.c. 2145 (para. 7) Delhi Municipality v. Girdharlal, A. 1981 S.C. 1169 (paras. 2, 4). Dhani Ram v State, 1976, J & K H.C. Janata Dal v. H.S. Chowdhury, AIR 1993 SC 892 1992 Narbahadur v. The State, AIR 1965 Assam 89 Mathu Swami v. State of Madras, AIR 1954 SC 4 Mohanlal v. State of Gujrat, 1968 2 S.C.W.R. 751 Kuldip v. Surinder, A. 1989 S.C. 232 (para. 4) Yasin v. R, 28 C 689. Nazim v. R 5 CWN 670 Nurul v. R, A 1949 Dacca Pala v. R, A 1928 Jainand v. R, A 1949 Hayat v. R, 68 IC 401: A 1922 L 119 Arjuna Lal Mishra v. State, AIR 1953 SC 411

BOOKS AND DIGESTS Sudipto Sarkar & V.R. Manohar, Sarkar On Evidence, Vol. I-II, 14th edition, Wadhwa, Nagpur, 1996. Ratanlal Ranchhoddas & Dhiralal Keshavlal Thakore, The Law Of Evidence, 20th edition, Wadhwa, Nagpur, 2002.
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 Batuk Lal & Satya Prakash Srivastava, Law of Evidence, 3rd edition, Oriental Law House, New Delhi, 1994. iv C.D. Field, Law of Evidence, 12th edition, Delhi Law House, New Delhi, 2008. Chief Justice M. Monir, Law of Evidence, Vol. I-II, 14th edition, Universal Law Publishing Company Private Limited, New Delhi, 2006. Hodge M. Malek, Phipson on Evidence, 16th edition, Sweet & Maxwell, London, 2005. Acharya Dr. Durga Das Basu, Criminal Procedure Code, 1973, Vol. I-II, 3rd edition, Prentice -Hall of IndiaPrivate Limited, New Delhi, 1997. S.R. Roy, B.B. Mitra on The Code of Criminal Procedure, Vol. I-II, 18th edition, Kamal Law House, Calcutta, 1995. R.V. Kelkar, Criminal Procedure, 3rd edition, Eastern Book Company, Lucknow, 1993. Ratanlal Ranchhoddas & Dhiralal Keshavlal Thakore, The Code of Criminal Procedure, 16th edition, Wadhwa, Nagpur, 2002. D.N. Sen, The Code of Criminal Procedure, 1973, Vol. I-II, 2nd edition, Premier Publishing Company, Allahabad, 2006.

STATUTE TATUTES AND LEGISLATI ATIONS Code of Criminal Procedure, 1973. The Indian Evidence Act, 1872.

MISCELLANEOUS P. Ramanatha Aiyars Advanced Law Lexicon, 3rd Edn. 2005, Vol. 1.

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v STATEM TATEMENT OF JUR JURISDICTION

The Appellants have the honour to submit before the Honourable Supreme Court of India the memorandum for the appellants in the Special Leave Petition no..../2013 under Article 136 of The Constitution of India, 1950. The present memorandum sets forth the facts, contentions present case. and arguments in the

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STATEMENT OF FACTS

vi

1. Ms. Ajitha was married to Ajay Kumar, who was an Investment Banker at the New Delhi office of MNC Inc., for about two years; before which she used to work as his secretary at the MNC Inc. 2. Ms. Ajitha was rumored to be having illicit affair with one Mr. Guruprasad, who also worked at MNC Inc., and in fact was supervising her husbands work at the firm. 3. Consequently Ms. Ajitha moved out of the matrimonial house and started living separately in a rented house at Jor Bagh, New Delhi. Thereafter she filed for divorce, before the Family Court, Saket Court Complex, New Delhi, alleging therein that she was subjected to incessant physical and mental torture at the hands of Mr. Ajay and that she had reasons to believe that he was having an illicit relationship with other women. 4. On the morning of January 09, 2011, during the pendency of the said divorce petition, Mr. Ajay was found dead with bullet wounds on his chest and his body was dumped near Chattarpur Farms. The police subsequently recorded an FIR under Sections 302, 325, 341, 342, 352, 363, 365 of the Indian Penal Code, 1860 against unknown persons and began investigation, during whose course the Investigating Officer came to know about the pending divorce case and also about the alleged illicit relationship between Ms. Ajitha and Mr. Guruprasad. The Police arrested Ms. Ajitha and Mr. Guruprasad as suspects and were granted a 14 days police custody by the Court. 5. Ms. Ajitha, during interrogation claimed that she had been visiting her parents in Rajkot from January 5 to 9, 2011, and had returned only on the evening of January 09, 2011. She presented her flight tickets as well as the boarding pass issued by the airline as a proof of her defence of alibi.

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6. Mr. Guruprasad, on the other hand, offered to turn approver for the prosecution and gave a statement before the Investigating Officer, which to the extent relevant is given below vii I was visiting Ajithas residence at Jor Bagh on the night of January 08, 2011. Unfortunately Ajay also came over to Ajithas place on that particular night unannounced and saw us (Ajitha and me) in a compromising position after which a heated argument ensued between Ajay and Ajitha. Ajitha, apprehending to save herself pulled out a revolver from her drawer, and gave it to me and told me to shoot Ajay. Seeing this, Ajay grabbed a table lamp that was near his right hand and headed towards me in an intimidating manner. I, fearing the safety of my own and Ajithas life, shot 3(three) bullets at Ajay, immediately after which he collapsed on the ground. After assuring ourselves that Ajay was dead, we dragged his body into his own car, which I drove to Chhatarpur Farms, followed by Ajitha who drove my car. We dumped the dead body of Ajay along with the weapon and the car at a secluded location at Chattarpur Farms, and returned to Ajithas house in my car. 7. The above statement though made in police custody, had been made in the presence of a Magistrate. The Police during investigation had also recorded statements of 2 employees of MNC Inc. who had stated that in their opinion that Mr. Guruprasad & Ms. Ajitha were more than friends. 8. On searching the area where the body of Ajay had been found, the police could not recover any weapon from there or from the residence of Mr. Guruprasad & Ms. Ajitha. Further, only a single tyre mark was found at the place where Ajays body was found. The Police also could not recover the table-lamp, which according to Mr. Guruprasad was grabbed
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by Ajay as a weapon to assault him. Also no other finger prints were found inside Ajays car except his own. 9. The Police filed a charge-sheet against Ms. Ajitha before the Magistrate, basing its case on the confessional statement made by Mr. Guruprasad,. Upon committal and placing the case for framing of charges against Ms. Ajitha, Mr. Guruprasad retracted from his statement and claimed to be innocent of all the charges levelled against him in the charge-sheet, and demanded that he be put to trial. Similarly, even Ms. Ajitha denied all the charges and claimed innocence. viii 10. After hearing the prosecution and the defence counsel, the Ld. Sessions Court recalled the conditional pardon and charges were ordered to be framed against Mr. Guruprasad and Ms Ajitha. Mr. Guruprasad had been charged for Murder, Culpable homicide, destruction of evidence, criminal conspiracy and giving false information about an offence committed. Ms. Ajitha was charged for abetment of murder, destruction of evidence, and criminal conspiracy. 11. Ms. Ajitha filed a revision petition before the Honble High Court of Delhi, for quashing of the charges framed by the Ld. Sessions Court, under Section 401 of the Code of Criminal Procedure, 1973. The Honble High Court dismissed the same after hearing arguments submitted by both, the petitioner Ms. Ajitha as well as the Government Counsel representing the respondent, State of Delhi NCT, by a nonspeaking order and no reasons had been given for the dismissal of the same. 12. Ms. Ajitha has now filed a special leave petition before the Honble Supreme Court of India challenging the order of the Honble Delhi High Court, whereby the petition of Ms. Ajitha came to be dismissed.
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MEMORIAL ON BEHALF OF THE APPELLANT

ix STATEM TATEMENT OF ISSUES

I. II. III.

Whether the Honble High Court was justified in refusing to exercise its powers under section 401 of the Code if Criminal Procedure, 1973? Whether a non-speaking order can be sustained in law? Whether confession of an approver can be retracted and in what manner at the stage of S 227/228 of Cr.P.C.?

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Whether a retracted confession by an approver may be used against the other accusex SUMMARY OF ARGUMENTS I. The Honble High Court of New Delhi was not justified in refusing to exercise its revisional power in the present case. The Ld. Sessions Courts decision of framing of charges against Ms. Ajitha was not according to the provisions established by the law. The Honble High Court of Delhi should have interfered in the present case. The sole purpose of section 401 of Code of Criminal Procedure is to empower High Court to supervise its subordinate courts. The objective behind bestowing such power on High Court was to look into the decisions of subordinate courts and revise them if there has been miscarriage of justice owing to a defect in procedure established by law; or manifest error on point of law; or excess of jurisdiction; or there has been abuse of power. In the present case it is clear that the decision of Ld. Sessions Court was not according to the established laws. Hence, though discretionary, The Honble High Court of New Delhi should have exercised its revisional power in this case. II. After a rule has been issued on a petition for revision, and the matter is placed for hearing, the Court must give some reasons for the nonexercise of its power, even though it is discretionary. The rule has been firmly been established that even though the High Court has discretion to reject the revision petition through section 401 of Code of Criminal Procedure, 1973, the Honble court must provide some reasoning regarding rejection. It is humbly submitted before the Honble Court that in the present case the High Court has rejected the revision petition through a non-speaking order which is in clear violation to the established law. Hence there was a defect in the procedure of law, i.e. rejection of revision petition without giving any reason. A non-speaking order cannot be sustained in law and the Court must provide a speaking
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order. III. It is evident from the sub-section (2) of section 228 of Code of Criminal Procedure, 1983 that the accused has discretion to whether he admits his guilt or get tried. In the present case Mr. Guruprasad the approver or the accused has discretion to retract from his confession and claim to be tried. The Court shall read and explain the xi charges framed on the accused and ask whether admits the charges or claim to be tried. Hence at the stage of section 228 i.e. the framing of charges the accused can retract his confession and claim to be innocent. IV. It is humbly submitted to the Honble Court, that with regard to the retracted confession the rule that appears to have obtained judicial recognition and are spread over a large number of cases, as against the maker, a retracted confession may form the basis of conviction, if believed to be true and voluntarily made, but the better point of view is that a retracted confession must be regarded with suspicion and as the rule of practice and prudence it is unsafe to base a conviction on retracted confession alone without independent corroboration. As against a coaccused, although a retracted confession may be taken into consideration,
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the rule is now firmly established that its value against a co-accused is practically nil and that it cannot form the basis of a conviction without substantial and independent corroboration both as to the crime and the criminal. Far more corroboration would be demanded than the testimony of an accomplice on oath. It is submitted before the Honble Court that in the present case the approver had retracted his confession. The Ld Sessions Court had ordered the framing of the charges against the accused Ms. Ajitha solely on the retracted confession of Mr. Guruprasad. Further no material particular was corroborated to the retracted confession. It has been clearly stated and ruled in many cases that a retracted confession of a co-accused cannot be the sole basis of conviction of a co-accused as such retracted confession carries nil value in law without independent corroboration to some material particular. Hence the order of framing of charges against Ms. Ajitha merely on the retracted confession of Mr. Guruprasad was clear violation of the established law.

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1 DETAI DETAILED PLEAD EADINGS

I. The Honble High Court was not justified in refusing to exercise its power under section 401 of The Code of Criminal Procedure, 1973

It is humbly submitted that the objective of Section 401 of The Code of Criminal Procedure is to empower the High Court to exercise the powers of revisional court to prevent failure of justice in cases where the Code does not provide for appeal. 1- 2

The power is to be exercised where there has been a miscarriage of justice owing to:- (i) a defect in the procedure; or (ii) a manifest error on a point of law; or (iii) excess of jurisdiction;12 (iv) abuse of power ;2 (v) where the decision upon which the trial court relied has since been reversed or overruled when the Revision Petition was being heard. 3 The exercise of the jurisdiction under s. 401 is discretionary and the powers under s 401 are to be used in cases where there is a glaring defect in the procedure or there is manifest error on point of law and consequently there has been flagrant miscarriage of justice. The exercise of revisional power is justified only to set right grave injustice and not merely to rectify every error however inconsequential. Ordinarily the High Court, while exercising revisional jurisdiction, would not and does not interfere with the concurrent findings of the courts below on a question of facts but where the findings is vitiated so as to cause miscarriage of justice as, for instance, when it is based on no evidence,
1 Amar Chand v. Shati Bose, A. 1973 S.C. 799 (804) 2 Akalu v. Ramdeo, 1973 S.c. 2145 (para. 7) 3 Delhi Municipality v. Girdharlal, A. 1981 S.C. 1169 (paras. 2, 4).

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or where vital evidence has been overlooked or evidence has not been considered in its true perspective the court will and must interfere.1 The object of the revisional jurisdiction under S. 401 is to confer power upon superior courts, a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularities of 2 procedure, neglect of proper precaution or apparent harshness of treatment which has resulted, on the one hand, or on the other hand some undeserved hardship to individuals. The controlling power of the High Court though is discretionary but it must be exercised in the interest of justice with regards to all facts and circumstances of each particular case, anxious attention must be given to the said facts and circumstances which vary greatly from case to case.4 The The Honble High Court of New Delhi was not justified in refusing to exercise the powers conferred upon the Honble Court by Section 401 of Code of Criminal Procedure. The sole object of the section is to give supervisory power to the High Court so that it could control the decisions of its sub-ordinate courts where there has been miscarriage of justice owing to a defect in procedure; or manifest error on point of law; or excess of jurisdiction; or abuse of power. The Honble High Court by refusing to exercise its power under Section 401 of Code of Criminal Procedure, 1973 has failed the very purpose of this section. The framing of charges by the Ld. Sessions court was clearly a defect in procedure of law. The framing of the charges on the accused Ms. Ajitha was solely based on the confession of Mr. Guruprasad, which was later retracted and no material particulars were found to support the confession. Apart from general rule of prudence where the circumstances of a case cast a suspicion on the

1 Dhani Ram v State, 1976, J & K H.C. 4 Janata Dal v. H.S. Chowdhury, AIR 1993 SC 892 1992

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genuineness of confession, corroboration is needed.5-6 It is evident from the facts that the Ld. Sessions court had ordered the framing of charges against Ms Ajitha merely on the retracted confession without corroboration with any material particular. When an order is passed by the trial court by considering irrelevant judgement, the high court should exercise its revisionary power 7, which is very apparent in this case. 3 The order has been passed against the appellant by taking irrelevant materials in to the consideration. The retracted confession is very weak type of evidence 8 and cant become the sole basis for the framing of charges. There was no corroboration of statement in the present case, as nothing was discovered by the police on the basis of confessional statement of Mr. Guruprasad. His confessional statement was even contradicted by the facts, as nothing was there to suggest presence of appellant on the crime scene. It is also submitted that the as ppellant was not present in delhi, when the crime was convicted, there is no case against her. the appellant has produced the boarding pass which is given by airport authorities only when a person is physically present at the airport premises. In this case the appellant was in Rajkot as she return to Delhi in the evening of January 09, 2011 and she produced the reliable boarding pass court should take boarding pass into consideration and should declare that the charges frame against the appellant are false and not worth taking into consideration . Hence there was an error of judgment on the part of the Ld. Sessions Court. The Honble High Court should have interfered into the proceedings of the Ld. Sessions Court through the powers conferred upon the Honble High Court.
5 Narbahadur v. The State, AIR 1965 Assam 89 6 Mathu Swami v. State of Madras, AIR 1954 SC 4 7 Sheetla Prasad v. Shree Kant (2010) 2 SCC 190 8 Dara Singh v. Republic of India (2011) 2 SCC 490

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However, by refusing to do so the Honble court has abused the powers conferred under Section 401 of the Code of Criminal Procedure, 1973.

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4 II. A non-speaking order cannot be sustained in law.

Obligation to give reason. After a rule has been issued on a petition for revision, and the matter is placed for hearing, the Court must give some reasons for the non-exercise of its power, even though it is discretionary.9 The revision petition may be rejected summarily. But even then, the High Court should give some its reason, where important questions are involved. 10 . Providing the reason behind the order given indicates the application of judicial mind and it serves the cause of natural justice11. Furthermore, it insures the accountability and transparency on part of judicial system and helps sustaining the litigants faith in justice delivery system12. Furthermore, a substantial question of law is involved into this case as the Supreme Court granted the Special leave to the appellant, but this aspect was neglected by honourable High court, it dismissed the petition by a non speaking order which is not good in law. It is well established that the court should record reasons, if the appeal raises a substantive and arguable point.13 The rule has been firmly been established that even though the High Court has discretion to reject the revision petition through section 401 of Code of Criminal Procedure, 1973, the Honble court must provide some reasoning regarding rejection. It is humbly submitted before the Honble Court that in the present case the High Court has rejected the revision petition through a non-speaking order
9 Mohanlal v. State of Gujrat, 1968 2 S.C.W.R. 751 10 Kuldip v. Surinder, A. 1989 S.C. 232 (para. 4) 11 Jagtimba Devi v. Hem Ram (2008) 3 SCC 509 12 Kranti Associates (P) Ltd. v. Masood Ahmed Khan (2010) 9 SCC 496 13 Rajpal Bhiraram v. State of Maharashtra (1974) 3 SCC 633

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which is in clear violation to the established law. It has been observed in

Mohanlal v. State of Gujrat, 1968 2 S.C.W.R. 751, that the High Court must provide a speaking order.

5 Hence there was a defect in the procedure of law, i.e. rejection of revision petition without giving any reason. A non-speaking order cannot be sustained in law and the Court must provide a speaking order.

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III. Confession of an approver can be retracted at stage of section 228 of

Code of Criminal Procedure, 1983. Section 228. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence whicha. Is not triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; b. Is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under Clause (b) of sub-section (1), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

It is evident from the sub-section (2) of section 228 of Code of Criminal Procedure, 1983 that the accused has discretion to whether he admits his guilt or get tried.
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In the present case Mr. Guruprasad the approver or the accused has discretion to retract from his confession and claim to be tried. The Court shall read and explain the charges framed on the accused and ask whether admits the charges or claim to be tried. Hence at the stage of section 228 i.e. the framing of charges the accused can retract his confession and claim to be innocent.

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7 IV. A retracted confession by an approver cannot be used as evidence against the other accused.

It is humbly submitted to the Honble Court, that with regard to the retracted confession the rule that appears to have obtained judicial recognition and are spread over a large number of cases, as against the maker, a retracted confession may form the basis conviction, if believed to be true and voluntarily made, but the better point of view is that a retracted confession must be regarded with suspicion and as the rule of practice and prudence it is unsafe to base a conviction on retracted confession alone without independent corroboration. As against a coaccused, although a retracted confession may be taken into consideration, the rule is now firmly established that its value against a co-accused is practically nil and that it cannot form the basis of a conviction without substantial and independent corroboration both as to the crime and the criminal. Far more corroboration would be demanded than the testimony of an accomplice on oath. Although a retracted confession may be taken into consideration against a coaccused, its value is exceedingly weak and there can be no conviction without the fullest and strongest corroboration on material particulars.
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A retracted confession should carry practically no weight as against the person other than the maker; and the very fullest corroboration would be necessary in such a case-far more than would be demanded for the sworn testimony of an accomplice on oath. A conviction on an uncorroborated and retracted confession
14 15

of an accomplice is improper and bad. - Unless the other evidence against the co-accused will stand on its own legs, his conviction on the retracted confession
16

cannot stand. As a matter of prudence and caution which has sanctified itself into a rule of law a retracted confession cannot be made solely the basis of conviction unless it is corroborated with some 8 material particular. A retracted confession should practically carry no weight as against a person
17

other than its maker.

Its value against a co-accused is exceedingly weak and

18

unless it is materially corroborated, no conviction should be based.

14 Yasin v. R, 28 C 689. 15 Nazim v. R 5 CWN 670 16 Nurul v. R, A 1949 Dacca 17 Pala v. R, A 1928 18 Jainand v. R, A 1949

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When an accused retracts a confession and does not implicate himself in any crime though he stated he was one of the conspirators, held it could not be taken into account against co-accused. As against the person making it, it is certainly
19

admissible. A retracted confession provides a weak link against its maker and
20

more so against a co-accused. When the retracted confession is found to be untrue in many parts and
21

uncorroborated in material particulars, it is not sufficient for a conviction.

In

case of an approver, on his own showing, he is a depraved and debased individual who after having taken part in the crime wants to exculpate himself and tries to fasten the liability on another. In such circumstances it is absolutely necessary that what he has deposed must be corroborated in material particulars. In the case of the person confessing who has retracted from his statement general corroboration is sufficient, while an accomplices evidence should be corroborated in material particulars. It is submitted before the Honble Court that in the present case the approver had retracted his confession. The Ld Sessions Court had ordered the framing of the charges against the accused Ms. Ajitha solely on the retracted confession of Mr.
19 Hayat v. R, 68 IC 401: A 1922 L 119 20 AIR 1968 SC 832 21 Arjuna Lal Mishra v. State, AIR 1953 SC 411

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Guruprasad. Further no material particular was corroborated to the retracted confession. It has been clearly stated and ruled in many cases that a retracted confession of a co-accused cannot be the sole basis of conviction of a co-accused as such retracted confession carries nil value in law without independent corroboration to some material particular. 9 Hence the order of framing of charges against Ms. Ajitha merely on the retracted confession of Mr. Guruprasad was clear violation of the established law.

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10 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that this Honourable Court may be pleased to adjudge and declare that: The order of the high court should be rendered ineffective. The high court was not justified in refusing to exercise its powers under section 401 of Cr.P.C. A non speaking order cannot be sustained in law in any case. A retracted confession by an approver cannot be used as evidence against the other accused.

And any other order that the court may deem fit in the interest of justice and equity.
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For this act of kindness the appellant shall be duty bound forever.

ALL OF WHICH IS HUMBLY PRAYED, COUNSEL FOR THE APPELLANT.

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