TEAM CODE - 007

THE FIRST NATIONAL MOOT COURT COMPETITION- 2014

FACULTY OF LAW, JAMIA MILLIA ISLAMIA, NEW DELHI

BEFORE THE HONOURABLE SUPREME COURT OF INDIA

Under Article 136 of the Constitution of India

Criminal Appeal No _____ / 2013

(Arising out of SLP No _____ / 2013)

IN THE MATTER OF

Ajitha……………………………..……………………………………….Appellant

Versus

State of Delhi NCT…………………….……………………………….Respondent

MEMORANDUM ON BEHALF OF THE RESPONDENT

DRAWN AND FILED BY THE COUNSEL FOR THE RESPONDENT

 TABLE OF CONTENTS

List of Abbreviations………………………………………………………………………......….4

Index of Authorities……………………….……......................................................................….5

 List of Statutes
 List of Cases
 Reference Books
 Websites

Statement of Jurisdiction………………………………………………………………………....8

Questions Presented………………………………………………………………………….
…...9

Statement of Facts ………………………………………………………………………….

…...10

Summary of Pleadings ..........................................................................................................…...12

Arguments
advanced ....................................................................................................................14

THE HIGH COURT WAS JUSTIFIED IN REFUSING TO EXERCISE ITS POWER

UNDER SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE……………..…14

High Court has limited jurisdiction to interfere in order for framing of Charge…………...
……………………………………….………………………………………14There was no
illegality, irregularity or impropierity in the trial court’s
proceedings……………………………………………………………..………………………..15

Trial Court can frame charges on strong suspicion against an

accused……………………………………………………………………………….…………..17

Trial Court not to consider defence evidence while framing of

charges……………………………………………….…………………………….…………….19

A NON-SPEAKING ORDER CAN BE SUSTAINED IN LAW…………………………….22

RETRACTED CONFESSION SHOULD NOT BE DISCARDED AS IT REVEALS

ULTERIOR MOTIVE …………………………………………………………………….…..23

-Memorandum on Behalf of the Respondent- Page 2

RETRACTED CONFESSION BY AN APPROVER MAY BE USED AS AGAINST THE
OTHER ACCUSED ……………………………………………………………………………26

The confessional statement of co-accused was voluntary without any threat or

inducement……………………………………………………………………………………….26
There was material corroboration of the confessional statement of co-
accused………………………………………………………………………..………………….28

Prayer…………………………………………...………………………………………….……30

-Memorandum on Behalf of the Respondent- Page 3

 LIST OF ABBREVIATIONS

AIR : All India Reporter

Anr : Another

Bom : Bombay

CBI : Central Bureau of Investigation

Cri L.J. : Criminal Law Journal

DE : Delhi

HC : High Court

Mad. : Madras

Ors : Others

Para : paragraph

SC : Supreme Court

SCALE : Supreme Court Almanac

SCC : Supreme Court Cases

SD/- : Signed

Supp : Supplementary

W.L.N : Weekly Law Notes

Vs. : Versus

I.L.R : Indian Law Reports

M.L.J : Madras Law Journal
D.R.J : Delhi Reporter Journal
S.C.R : Supreme Court Reporter

INDEX OF AUTHORITIES

 LIST OF STATUTES

-Memorandum on Behalf of the Respondent- Page 4

 1. The Indian Evidence Act, 1872
2. Code of Criminal Procedure, 1973
3. The Constitution of India, 1950

 LIST OF CASES
1. Abdul Vahab Abdulmajid Shaikh & Ors vs. State of Gujarat, ……….…(2007) 4 SCC 257
2. Ajay Kumar Parmar vs. State of Rajasthan, …………………..…….2012 (9) SCALE 542
3. Amit Kumar vs. Ramesh Chander, ……………………………...………(2012) 9 SCC 460
4. Bharat vs State of Uttar Pradesh, ………………………...…………….(1971) 3 SCC 950
5. Bindeshwari Prasad Singh & Ors vs. State of Bihar (now Jharkhand) & Anr,
……………………………………………………………...…...………(2002) 6 SCC 650
6. CBI, Hyderabad vs. K Narayan Rao, …………………………………….2012 CriLJ 4610
7. Chiman Jagwani and Ors vs. Union of India & Ors, …………..……...(2002) 2 WLN 435
8. Dainik Deshdoot & Ors. Vs. The Employees' State Insurance..…....(1995) 97 Bom LR 84
9. Devku Bhikha vs. State of Gujarat, ………………………….…..…….1995 AIR SC 2171
10. Gurdas Singh Badal vs. The Election Commission of India & Ors,
……………………………………………………...….(1972) ILR 1Punjab and Haryana1
11. Hem Chand Vs. State of Jharkhand, ……………………………….….AIR 2008 SC 1903
12. Jagannath Chaudhary v. Ramayan Singh, ………………………….….(2002) 5 SCC 659
13. Johar & Ors vs. Mangal Prasad and Anr….. ……………………..……(2008)CriLJ 1627
14. Madhya Pradesh Industries Ltd. vs. Union of India. ……………..…….AIR 2000 SC 522
15. Manjit Singh vs. CBI...……...…………...…………….………….……(2011) 11 SCC 578
16. Munna Devi vs. State of Rajasthan & Anr...…………………………….AIR 2002 SC 107
17. Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra.…..AIR 2000 SC 3352
18. Nathu vs. State of Uttar Pradesh. ………………………….…….………AIR 1956 SC 56
19. Nazir Khan vs. State of Delhi.……………………………….……….…(2003) 8 SCC 461
20. Nika Ram vs State of Himachal Pradesh, ……………...……………….....1972 CriLJ 204
21. Niranjan Singh Karam Singh Punjabi & Ors vs. Jitendra Bhimraj Bijjayya & Ors,
……………………………………………………………………...….…(1990) 4 SCC 76
22. Noor Aga vs. State of Punjab. …………………………………………(2006) 12 SCC 417
23. Om Wati & Anr vs. State, through Delhi Admn & Ors. ……..……......AIR 2001 SC 1507
24. P. Vijayan vs. State of Kerala & Anr. …………………….…....…...…..AIR 2010 SC 663
25. Rajanikanta Meheta vs State of Orissa. ……………………...……...1976CriLJ1674 (Ori)
26. Rajesh Mehta vs. State. ……..……………………………........………(2001) 60 DRJ 678

-Memorandum on Behalf of the Respondent- Page 5

 27. Ram Narain vs. State of Rajasthan..……………….…………….….…AIR 1973 SC 1188
28. Rameshwar & Ors ……………………………………..……………….(2009) 6 SCR 510
29. S. N. Mukherjee vs. Union of India …………………………………… AIR 1990 SC 1984
30. Sanghi Brothers (Indore) Pvt. Ltd vs. Sanjay Choudhary and Ors,
………………………………………………………….……….……..(2008) 10 SCC 681
31. Shankaria v. State of Rajasthan, …………………………….…………(1978) 3 SCC 435
32. Sheetala Prasad & others Vs. Sri Kant and Anr... ……...…….……….AIR 2010 SC 1140
33. Soma Chakravarty vs. State through CBI, ………………..….…...…….(2007) 5 SCC 403
34. State Anti-Corruption Bureau, Hyderabad and Anr. v. P. Suryaprakasam,
…………………………………………………………………….….1999 SCC (Crl.) 373
35. State of Bihar v. Ramesh Singh, …………………………………...……..(1977) 4 SCC 39
36. State of Delhi v. Gyan Devi and Ors, …………………………..…....2001 MLJ (Cri.) 117
37. State of Madhya Pradesh vs S. B. Johri, ………………………….…….AIR 2000 SC 665
38. State of Madhya Pradesh vs. Mohan Lal Soni,……….…………………..AIR 2000 SC 2583
39. State of Madhya Pradesh vs. Union of India Vs. Prafulla Kumar …..…AIR 1979 SC 366
40. State of Maharashtra & Ors vs. Som Nath Thapa and Ors, ……….….…1996 (4) SCC 659
41. State of Maharashtra vs. Bharat Chaganlal Raghani, …………………..…..(2001) 9 SCC 1
42. State of Orissa v. Debendra Nath Padhi, ……………………………....(2005) 1 SCC 568
43. State of Tamil Nadu vs Nalini & Ors., ……………………………….....(1999) 5 SCC 253
44. State of Tamil Nadu vs. Kutty @ Lakshmi Narasimhan …………..….AIR 2001 SC 2778
45. State through Superintendent of Police vs. Nalini and Ors...………….... (1999) 5 SCC 253
46. State vs. Arvind Kumar Sharma & Ors, ………………..............….MANU/DE/1392/2009
47. Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia & Anr
……………………………………………………………………..………….… 1989 SCR (1) 560
48. Sukhwant Singh vs. State ………………………………….…………..……….(2003) 8 SCC 90
49. Sunil Kumar alias Ganja vs. State of Delhi ………….……...ILR(2008)Supp.(13) Delhi 6
50. Supdt & Rememberancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors
……………………………………………………………….……………AIR 1980 SC 52
51. Thankappan Nadar and Ors. vs. Gopala Krishnan and Anr ….………….(2002)9SCC393
52. The King-Emperor vs Nilakanta Alias Brahmachari... …...…………….(1912) 22 MLJ 490
53. Union of India v. Prafulla Kumar Samal …………………….………………..(1979) 3 SCC 4
54. Vilayuda Pulavar vs. State, …………………………………………………(2009) 14 SCC 436
Yakub Abdul Razak Memon vs The State of Maharashtra, through CBI,
………………………………………………………………….…..MANU/SC/0268/2013

-Memorandum on Behalf of the Respondent- Page 6

  BOOKS REFERRED
1. I. P Massey, ‘Administrative Law’, 7th Edition, Eastern Law Company, Lucknow, (2008)
2. Ratanlal Dheerajlal, ‘The Law of Evidence’, 23rd Edition, Lexis Nexis Butterworths
Wadhwa, Nagpur, (2011)
3. Sarkar, ‘Code of Criminal Procedure’, Vol. I & II, 9th Edition, Lexis Nexis Butterworths
Wadhwa, Nagpur, (2010)
4. Sir Jon Woodroffe & Syed Amir Ali, ‘Law of Evidence’, Vol. I, II, III, IV, 18th Edition,
Lexis Nexis Butterworths Wadhwa, Nagpur, (2008)
5. V.P Sarathi, ‘Law of Evidence’, Wadhwa and Company Law Publishers, Nagpur, (2011)
6. Woodroffe, ‘Code of Criminal Procedure’, Vol. I & II, 3rd Edition, Law Publishers
(India) Pvt. Ltd., Allahabad, (2010)

 WEBSITES
1. www.manupatra.com
2. www.scconline.com
3. www.judis.ac.in

STATEMENT OF JURISDICTION

The Respondent humbly submits this memorandum in response to the appeal filed before this
Honorable Supreme Court invoking its jurisdiction under Article 1361 of the Constitution of
India. The counsels for the respondents most humbly and respectfully request this Hon’ble
Supreme Court to hear the present matter and adjudge accordingly.

1
Article 136- Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal
from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or
tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces.

-Memorandum on Behalf of the Respondent- Page 7

 QUESTIONS PRESENTED

ISSUE I

Whether the Hon’ble High Court was justified in refusing to exercise its powers
under Section 401 of the Code of Criminal Procedure, 1973?

ISSUE II

Whether a non-speaking order can be sustained in law?

-Memorandum on Behalf of the Respondent- Page 8

 ISSUE III

Whether confession of an approver can be retracted and in what manner at the

stage of Section 227/228 of the Code of Criminal Procedure, 1973?

ISSUE IV

Whether a retracted confession by an approver may be used as evidence against

the other accused?

STATEMENT OF FACTS

FACTS LEADING UPTO TO THE PRESENT PROCEEDINGS BEFORE THE

SUPREME COURT

1. Ajay Kumar used to work in MNC Inc. He was married to Ms. Ajitha (herein after
referred to as the appellant). After about 2 years of their marriage, there were rumours
about the appellant having an illicit affair with Mr. Guruprasad (herein after referred to as
the co-accused) who also worked in MNC Inc. This led to immense friction between the
appellant and her husband and she filed for divorce, before the Family Court, Saket Court
Complex, New Delhi.
2. During the pendency of the said divorce petition, on the morning of January 9 th, 2011
Ajay was found dead with bullet wounds on his chest. His body was dumped near
Chattarpur Farms.
3. The police recorded an FIR under Sections 302, 325, 341, 342, 352, 363, 365 of the
Indian Penal Code, 1860 against unknown persons. During investigation the I/O came to
know about the pending divorce case and also about the alleged illicit relationship
between the appellant and the co-accused. The police during investigation also recorded
the statements of 2 employees of MNC Inc. who stated that in their opinion both the
appellant and co-accused were more than good friends.
4. The Police arrested Ms. Ajitha and Mr. Guruprasad as suspects and were granted a 14
days police custody by the Court. During interrogation, Ms. Ajitha claimed that she was
visiting her parents in Rajkot from January 5 to 9, 2011, and had returned only on the

-Memorandum on Behalf of the Respondent- Page 9

 evening of January 09, 2011. She showed her flight tickets as well as the boarding pass
issued by the airline as a proof of her defence of alibi.
5. Mr. Guruprasad offered to turn approver for the prosecution and gave a statement in the
police custody to I/O in the immediate presence of the Magistrate. He stated therein that
it was he who had shot Ajay with a gun given to him by Ms. Ajitha and that she had
helped him dispose-off the body in Ajay’s car.
6. There was no recovery of the weapon that was supposedly used to kill the deceased
husband of the appellant. The table-lamp, which according to Mr. Guruprasad was
grabbed by Ajay as a weapon to assault him was not recovered. No other finger prints
were found inside Ajay’s car except his own. A single tyre mark was found from the
place where the body was found.
7. The police basing its entire case on the confessional statement of the co-accused filed
charge-sheet before the magistrate. Later upon committal and at the stage of framing of
charges against the appellant, the co-accused retracted from his statement and claimed to
be innocent of all the charges against him in the charge-sheet. He demanded that he
should be put to trial. Similarly, even the appellant denied all the charges and claimed
innocence.
8. After hearing the prosecution and the defence counsel, the Ld. Sessions Court recalled
the conditional pardon and directed the framing of the following charges against Ms.
Ajitha on the following counts:

 Abetment of murder
 Destruction of evidence
 Criminal conspiracy
9. The appellant filed a revision petition for quashing of the charges framed by the Ld.
Sessions Court before the Hon’ble High Court of Delhi under Section 401 of the Code of
Criminal Procedure, 1973. The petition was, however, dismissed.
10. The appellant then filed a Special Leave Petition, u/s 136 of The Constitution of India
before the Hon’ble Supreme Court of India challenging the order of the Hon’ble Delhi
High Court. The Hon’ble Supreme Court granted special leave to appeal and
subsequently converted it into a criminal appeal. The matter has now been posted for
final arguments.

-Memorandum on Behalf of the Respondent-Page 10

 SUMMARY OF PLEADINGS

ISSUE I

THE HIGH COURT WAS JUSTIFIED IN REFUSING TO EXERCISE ITS POWER

UNDER SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE

It is humbly submitted before this Hon’ble Supreme Court that the High Court has limited power
to interfere in order for framing of charges. The re-appreciation of evidences by the High Court
in exercise of its revisional jurisdiction is not justified. There was no illegality, irregularity or
impropierity in trial court’s proceedings as the trial court could frame charges on strong
suspicion against an accused, prosecution evidence and material on record could not to be
meticulously scrutinized, trial court cannot consider defence evidence while framing of charges.

ISSUE II
A NON-SPEAKING ORDER CAN BE SUSTAINED IN LAW
It is humbly submitted before this Hon’ble Supreme Court that the trial court is not supposed to
pass order for framing of charges with detailed reasons. This coupled with the fact that the High
Court has limited jurisdiction to interfere in order for framing of charges. Therefore, lack of
jurisdiction led to the dismissal of the revision petition seeking quashing of charges by the means
of a non- speaking order.

ISSUE III
RETRACTED CONFESSION SHOULD NOT BE DISCARDED AS IT REVEALS
ULTERIOR MOTIVE
It is humbly submitted before this Hon’ble Supreme Court that the retraction was mala fide. He
rather waited for the police to supply the copies of statements and documents to him as per the
requirement of Section 208 of the Code. Therefore, when the police despite investigation could
not find any material evidences to corroborate the confession, he retracted from his statement
and pleaded innocence. This shows his ulterior motive to escape guilt as his retraction could have
been done earlier.

-Memorandum on Behalf of the Respondent-Page 11

 ISSUE IV

RETRACTED CONFESSION BY AN APPROVER MAY BE USED AS AGAINST THE

OTHER ACCUSED

It is humbly submitted before this Hon’ble Supreme Court retracted confession by an approver
can be used as against the other accused as there was material corroboration of the confessional
statement of co-accused. Moreover, the confessional statement of co-accused was voluntary
without any threat or inducement. Also each and every piece of information mentioned need not
be corroborated by independent evidence.

ARGUMENTS ADVANCED

-Memorandum on Behalf of the Respondent-Page 12

ISSUE I: Whether the Hon’ble High Court was justified in refusing to exercise its power u/s
401 of the Code of Criminal Procedure, 1973?
It is humbly asserted before this Hon’ble Supreme Court of India that the High Court was
justified in refusing to exercise its powers u/s 401 of the Code of Criminal Procedure, 1973.
(A)
HIGH COURT HAS LIMITED JURISDICTION TO INTERFERE IN ORDER FOR
FRAMING OF CHARGES
An order framing charges is not liable to be interfered with by High Court in revision. The
revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual
manner.2 The revising powers of the High Court should not be exercised unless there exists any
manifest illegality in the order3 or there is grave miscarriage of justice 4 or there is glaring defect
in the procedure5 or there is manifest error on the point of law 6 etc. Moreover, the Revisional
Court must avoid substituting its own view at this stage, if the view taken by the trial Court is
neither perverse nor patently unwarranted.7
However, in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia & Anr 8wherein,
while considering the question relating to discharge of or framing of charges against an accused,
the Hon’ble Supreme Court held that the High Court should not ordinarily interfere with the
Trial Court's order for framing of charge unless there is glaring injustice on the face of it.
Generally, it would be appropriate for the High Court to allow the trial to proceed.
Om Wati & Anr vs. State, through Delhi Admn & Ors 9wherein also, while considering the
provisions of Sections 227, 228 and 401 of the Criminal Procedure Code, 1973, this Court, inter
alia, observed that when the Trial Court, finding a prima facie case prefers to frame charges
against the accused, the High Court should not interfere by probing into the sufficiency of
grounds for conviction of the accused and ordering his discharge.
10
Similarly in the case of State of Madhya Pradesh vs. Rameshwar & Ors too, the Hon’ble
Supreme Court has held that the High Court in its revisional jurisdiction is not justified in
interfering into Trial Court’s order for framing of charges and quashing charges against the
accused.
(B)
2
Munna Devi vs. State of Rajasthan & Anr, AIR 2002 SC 107, para 3
3
Sheetala Prasad & others vs. Sri Kant and Anr. AIR 2010 SC 1140, para 9
4
Ibid
5
Thankappan Nadar and Ors vs. Gopala Krishnan and Anr, (2002)9SCC393, para 4
6
Johar & others vs. Mangal Prasad and Anr, (2008)CriLJ 1627, para 9
7
Rajesh Mehta vs. The State, (2001) 60 DRJ 678, para 7
8
1989 SCR (1) 560, para 19
9
AIR 2001 SC 1507, para 9
10
(2009) 6 SCR 510, para 15
-Memorandum on Behalf of the Respondent-Page 13
 THERE WAS NO ILLEGALITY, IRREGULARITY OR IMPROPIERITY IN THE TRIAL
COURT’S PROCEEDINGS
(I)
TRIAL COURT CAN FRAME CHARGES ON STRONG SUSPICION AGAINST AN
ACCUSED
It is humbly submitted before the Hon’ble Supreme Court that the Trial Court has to prima facie
consider whether there is sufficient ground for proceeding against the accused at the stage of
framing charge.11 If the Trial Court is satisfied that a prima facie case is made out for proceeding
further then a charge has to be framed.12
A prima facie case can be made out on the basis of a strong suspicion. As in the case of State of
Bihar vs. Ramesh Singh13 the Hon’ble Supreme Court has held that at the initial stage of
framing of charges if there is a strong suspicion which leads the court to think that there is
ground for presuming that the accused has committed an offence then it is not open to the court
to say that there is no sufficient ground for proceeding against the accused.
Sometimes even a remote link between the activities of an accused and the facts of the case may
justify a reasonable inference warranting a judicial finding that there is ground for presuming
that an accused has committed the offence or at least to presume that the question of his being
directly or indirectly involved in the commission of such offence is not to be ruled out.14
Therefore, where the materials on record placed before the Court disclose grave suspicion
against the accused which has not been properly explained, the court will be fully justified in
framing a charge and proceeding with the trial.15
The Supreme Court in State of Orissa v. Debendra Nath Padhi16held that the meaning of the
expression the ‘record of the case’ as used in Section 227 of the Code relates to the record of the
case and the documents referred in Section 209 clause (c). The Magistrate had therefore, to
consider the question as to framing of charge on a general consideration of the materials placed
before him by the investigating Police Officer. 17Since, charges can be framed even when the
material indicates strong suspicion about complicity of accused in the alleged crime. 18 If the
court were to think that the accused might have committed the offence it can frame the charge,

11
Hem Chand Vs. State of Jharkhand, AIR 2008 SC 1903, para 13
12
State of Madhya Pradesh vs S. B. Johri, AIR 2000 SC 665, para 4
13
(1977) 4 SCC 39, para 4
14
Sunil Kumar alias Ganja vs. State of Delhi, ILR(2008)Supp.(13) Delhi 6, para 6
15
Union of India Vs. Prafulla Kumar, AIR 1979 SC 366, para 10
16
(2005) 1 SCC 568, para 8
17
Supdt & Rememberancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors, AIR 1980 SC 52,
para18
18
State of Maharashtra & Ors vs. Som Nath Thapa and Ors, 1996 (4) SCC 659, para 61
-Memorandum on Behalf of the Respondent-Page 14
though for conviction the conclusion is required to be that the accused has committed the
offence.19

In the case of Sanghi Brothers (Indore) Pvt. Ltd vs. Sanjay Choudhary and Ors 20the Hon’ble
Apex Court held that if on the basis of materials on record; the court could have come to the
conclusion that commission of the offence was a probable consequence, it could frame charges
against the accused. In view of the statement of the approver directly implicating the appellant
with the crime, it cannot be said that there existed no prima facie case for framing a charge
against the appellant.21

In the present case basing on the confessional statement of Mr. Guruprasad, the police filed a
charge-sheet against the appellant wherein he had confessed that he killed Ajay with a gun given
to him by Ms. Ajitha and that she had helped him dispose-off the body in Ajay’s car. This
confession though made in police custody was made in presence of a magistrate. (Emphasis
supplied)

Upon questioning the relatives and neighbours of Ajay the I/O came to know about the alleged
illicit relationship between the appellant and Mr. Guruprasad. Police also recorded the statements
of two employees of MNC Inc. who stated in their opinion that the appellant and Mr. Guruprasad
were more than good friends (emphasis supplied). Moreover, the police arrested the appellant
and Mr. Guruprasad as suspects and were granted a 14 days police custody by the court.

It shall be noted by the Hon’ble Court that the statement made by the co-accused Mr. Guruprasad
though made in police custody was not made under any threat or inducement. Mr. Guruprasad
himself offered to turn approver and furnished the confessional statement. Moreover, he did not
retract from his statement at the earliest possible opportunity by filing a complaint before the
magistrate, rather waited for the police to supply the copies of statements and documents to him
as per the requirement of Section 208 of the Code. Therefore, when the police despite
investigation could not find any material evidences to corroborate the confession, he retracted
from his statement and pleaded innocence (emphasis supplied).

U/s 228 of the Code of Criminal Procedure the Court of Sessions shall frame charges against the
accused if the Sessions Judge is of the opinion that there is ground for presuming that the
accused has committed an offence exclusively triable by the Sessions Court.

19
Id.
20
(2008) 10 SCC 681, para 7
21
Rajanikanta Meheta vs  State of Orissa, 1976CriLJ1674 (Ori), para 10
-Memorandum on Behalf of the Respondent-Page 15
It is humbly submitted before this Hon’ble Supreme Court that this is not a case of absolute
absence of material against the appellant. On the basis of perusal of the confessional statement of
Mr. Guruprasad coupled with the recorded statement of the two employees of MNC Inc.
Furthermore, the pending divorce proceedings between the appellant and her deceased husband,
and ulterior motive of the appellant to escape the guilt, there were grounds for presuming the
involvement of the appellant in the alleged crime. Therefore, a case for framing of charge
existed.

(II)

PROSECUTION EVIDENCE AND MATERIAL ON RECORD NEED NOT BE

METICULOUSLY SCRUTINIZED

It is humbly submitted before the Hon’ble Supreme Court that at the stage of framing of charge
the Trial Court is neither supposed to examine and assess in detail the material placed on record
by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish
the offence alleged against the accused persons.
At the time of framing of the charges, the probative value of the material on record cannot be
gone into but before framing a charge the court must apply its judicial mind on the material
placed on record and must be satisfied that the commission of offence by the accused was
possible.22
Evidence at the stage of framing of charges has to be looked into for a very limited purpose 23. At
the stage of Section 227 & 228, the Court is not to see whether there is sufficient ground for
conviction of the accused or whether the trial is sure to end in his conviction 24. The final test of
guilt is not to be applied at that stage.25 There cannot be a roving enquiry into the pros and cons
of the matter and weigh the evidence as if he was conducting a trial.26

In the case of Soma Chakravarty vs. State through CBI27 the Hon’ble Supreme Court observed
that the settled legal position is that if on the basis of material on record the Court could form an
opinion that the accused might have committed offence it can frame the charge, though for
conviction the conclusion is required to be proved beyond reasonable doubt that the accused has
committed the offence.

22
CBI, Hyderabad vs. K Narayan Rao, 2012 CriLJ 4610, para 21
23
State of Delhi v. Gyan Devi and Ors, 2001 MLJ (Cri.) 117, para 7
24
Id 21 at para 10
25
Amit Kumar vs. Ramesh Chander (2012) 9 SCC 460, para 11; Union of India v. Prafulla Kumar Samal,
para 8
26
Id 21 at para 12
27
(2007) 5 SCC 403, para 10
-Memorandum on Behalf of the Respondent-Page 16
In the case of State of Madhya Pradesh  vs. Mohan Lal Soni28the Hon’ble Supreme Court has
held that what a Court is to see is whether there is some material against the accused for
proceeding against him; but not as to whether he can be convicted on that material.

In Niranjan Singh Karam Singh Punjabi & Ors vs. Jitendra Bhimraj Bijjayya & Ors 29the
Hon’ble Apex Court held that at the stage of framing the charge inquiry must necessarily be
limited to deciding if the facts emerging from such materials constitute the offence with which
the accused could be charged. The Court may peruse the records for that limited purpose, and it
is not required to marshal with a view to decide the reliability thereof.

The Judge is not obliged at that stage of the trial, to consider in any detail and weight in a
sensitive balance whether the facts, if proved, would be incompatible with the innocence of the
accused or not.30 Furthermore, it has been held by the Hon’ble Supreme Court that whether the
materials at the hands of the prosecution are sufficient and whether the trial will end in
conviction or acquittal are not relevant considerations at the stage of framing charge. 31 Thus, the
question whether the charges will eventually stand proved or not can be determined only after
evidence is recorded in the case.32

Therefore, it is humbly submitted that any interference by the High Court at this stage would
have tantamount in substance to preventing a cause to be tried in accordance with law.

(III)

TRIAL COURT NOT TO CONSIDER DEFENCE EVIDENCE WHILE FRAMING OF

CHARGES
It is humbly submitted before this Hon’ble Supreme Court that no provision in the Code grants to
the accused any right to file any material or document at the stage of framing of charge. That
right is granted only at the stage of the trial. Permitting the accused to adduce his defence at the
stage of framing of charge and for examination thereof at that stage is against the criminal
jurisprudence.33

It shall be noted by the Hon’ble Supreme Court that any document which the accused want to
rely upon cannot be read as evidence. If such evidence is to be considered, there would be a mini
trial at the stage of framing of charge. That would defeat the object of the Code. The provision
28
AIR 2000 SC 2583, para 8, para 12
29
(1990) 4 SCC 76, para 8
30
Id 16 at para 18
31
P. Vijayan vs. State of Kerala & Anr, AIR 2010 SC 663, para 22
32
Chiman Jagwani and Ors vs. Union of India & Ors, (2002) 2 WLN 435 , para 15
33
State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, para 18
-Memorandum on Behalf of the Respondent-Page 17
about hearing the submissions of the accused as postulated by Section 227 means hearing the
submissions of the accused on the record of the case as filed by the prosecution and documents
submitted therewith and nothing more.34

No provision in the Code grants to the accused any right to file any material or document at the
stage of framing of charge. That right is granted only at the stage of the trial. 35 The only right the
accused has at that stage is of being heard and nothing beyond that. 36 The truth, veracity and
effect of the evidence which the prosecutor proposes to adduce are neither to be meticulously
judged, nor is any weight to be attached to the probable defence of the accused.37

Therefore, at the stage of framing of charge, the defence of the accused cannot be put forth and
its examination thereof at that stage is against the criminal jurisprudence and hearing the
submissions of the accused has to be confined to the material produced by the police.38
In the present case the appellant wanted to escape guilt by producing the flight tickets and
boarding pass as a proof of her defence of alibi. She claimed to be visiting her parents in Rajkot
at the time the crime was committed.
It is no doubt true that normally the revisional Court would not interfere, where the view taken
by the trial Court is one of the possible views and the revisional Court would interfere only
where the order passed by the trial Court is perverse, irrational and illegal on the very face of
it.39If the impugned order apparently is presentable, without any such infirmity which may render
it completely perverse or unacceptable and when there is no failure of justice, interference cannot
be had in exercise of revisional jurisdiction.40

Thus, if the above principles of law as laid down by the Hon'ble Supreme Court are minutely
observed and from perusal of the facts of the case along with the material available on record, it
cannot be said that at this stage, there was no evidence against the accused appellant.
The order for framing of charges against Ms. Ajitha was well founded and did not suffer from
any infirmity. Order framing charges was neither grossly erroneous, had compliance with the
provisions of law nor judicial discretion had been exercised arbitrarily or perversely. Therefore,

34
Ajay Kumar Parmar vs. State of Rajasthan, 2012 (9) SCALE 542, para 11
35
State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, para 8
36
State Anti-Corruption Bureau, Hyderabad and Anr. v. P. Suryaprakasam 1999 SCC (Crl.) 373
37
State of Bihar v. Ramesh Singh (1977) 4 SCC 39, para no .4
38
Id 32 at para 18
39
State vs. Arvind Kumar Sharma & Ors, MANU/DE/1392/2009
40
Jagannath Chaudhary v. Ramayan Singh, (2002) 5 SCC 659, para 9
-Memorandum on Behalf of the Respondent-Page 18
in the absence of any manifest illegality resulting in grave miscarriage of justice, exercise of
revisional jurisdiction in such cases was not warranted.41

ISSUE II: Whether a non-speaking order can be sustained in law?

It is humbly submitted before this Hon’ble Supreme Court that a non-speaking order can be
sustained in the eyes of law.
41
Bindeshwari Prasad Singh & Ors vs. State of Bihar (now Jharkhand) & Anr, (2002) 6 SCC 650, para 13
-Memorandum on Behalf of the Respondent-Page 19
In the case of Kanti Bhadra Shah and Anr vs. State of West Bengal 42 the Hon’ble Supreme
Court has held that if the trial Court decides to frame a charge there is no legal requirement that
he should pass an order specifying the reasons as to why he opts to do so. Framing of charge
itself is prima facie order that the trial Judge has formed the opinion, upon considering the police
report and other documents and after hearing both sides, that there is ground for presuming that
the accused has committed the offence concerned.43
In Madhya Pradesh Industries Ltd. vs. Union of India44 the Hon’ble Supreme Court held that
an order of Appellate Court dismissing a revision application often gives on reasons, but this is
not a sufficient ground for quashing it. A  non-speaking  order  may be justified because the
appeal or revisional Court in that case must be presumed to have agreed with the reasoned
judgment of the subordinate Court and to have found no legally permissible grounds to interfere
therewith.45
The Hon’ble Supreme Court in S. N. Mukherjee vs. Union of India46 held that dismissal of an
appeal or a revision in limine by a non-speaking and unreasoned order cannot be assailed on
that ground alone. A High Court is permitted by its relevant rules to summarily dismiss a writ
petition in the same manner as the High Court can dismiss a Regular Second Appeal or a petition
for revision by writing the solitary word--"dismissed" without supporting that order with any
reasons.47
It is to be noted by the Hon’ble Supreme Court that the legal position that if the trial Court
decides to frame a charge there is no legal requirement that he should pass an order specifying
the reasons as to why he opts to do so. This coupled with the legal position that a High Court in
its revisional jurisdiction is not justified in interfering into Trial Court’s order for framing of
charges and quashing charges against the accused. Therefore, the High Court was correct in
dismissing the revision petition seeking quashing of charges without passing a speaking order.

ISSUE III: Whether confession of an approver can be retracted and in what manner at the
stage of Section 227/228 of the Code of Criminal Procedure, 1973?

It is humbly submitted before this Hon’ble Supreme Court that the confession of an approver
though cab be retracted at the stage of Section 227/228 it shall judicially looked by the courts for
the reasons of retraction might be mala fide.

42
AIR 2000 SC 522, para 12
43
Ibid.
44
(1966) 1SCR 466, para 19
45
Dainik Deshdoot & Ors vs The Employees' State Insurance (1995) 97 Bom LR 84, at para 2
46
AIR 1990 SC 1984, para 24
47
Gurdas Singh Badal vs.  The Election Commission of India & Ors, (1972) ILR 1Punjab and Haryana1
-Memorandum on Behalf of the Respondent-Page 20
 (A)

RETRACTION WAS NOT DONE AT THE EARLIEST POSSIBLE OPPORTUNITY

It is humbly submitted before the Hon’ble Supreme Court that when an accomplice turns as a
witness on accepting pardon granted by the Court under Section 306 of the Code of Criminal
Procedure, 1973, to speak the facts relating to the offence, he is considered to be an approver.
However, no distinction as such is made between an accomplice who is or is not an approver, as
both have been treated alike; the rule of corroboration applies to both.48 Corroboration is
necessary. In Ram Narain vs. State of Rajasthan49 the Supreme Court held that an approver
who is admittedly guilty of the crime is an accomplice who has betrayed his associates and has
apparently sought pardon for saving his own skin. He should, therefore, presumed not to be a
man of high character or a fair witness. However, to retract from the confession is the right of
the confessor.50

It is to be noted by the Hon’ble Supreme Court that non-retracted confession is a rarity in

criminal cases51. A free and voluntary confession deserves the highest credit. It is presumed to
flow from the highest sense of guilt.52 However, if the approver retracts, the reasons for making
the confession and the retraction thereafter should be weighed.53 And if the retraction is found to
be an aftermath due to ulterior motives, the retraction should not weigh with the Court.54

It is to be noted by the Hon’ble Court that the statement made by the co-accused Mr. Guruprasad
though made in police custody was not made under any threat or inducement. Mr. Guruprasad
himself offered to turn approver and furnished the confessional statement. Moreover, he did not
retract from his statement at the earliest possible opportunity by filing a complaint before the
magistrate, rather waited for the police to supply the copies of statements and documents to him
as per the requirement of Section 208 of the Code. Therefore, when the police despite
investigation could not find any material evidences to corroborate the confession, he retracted
from his statement and pleaded innocence (emphasis supplied). This shows his ulterior motive to
escape guilt as his retraction could have been done earlier.

To strengthen the contention one must look into the procedural aspect of the present case. Upon
investigation, evidences collected and examination of the witnesses it appeared to the I/O that
48
Narayan Chetanram Chaudhary & Anr Vs. State of Maharashtra, AIR 2000 SC 3352, para 27
49
AIR 1973 SC 1188, para 8
50
State of Tamil Nadu vs. Kutty @ Lakshmi Narasimhan, AIR 2001 SC 2778, para 13
51
Ibid.
52
Yakub Abdul Razak Memon vs The State of Maharashtra, through CBI , MANU/SC//0268/2013, para 92
53
Nika Ram vs State of Himachal Pradesh, 1972 CriLJ 204
54
Bharat vs State of Uttar Pradesh, (1971) 3 SCC 950, para 7
-Memorandum on Behalf of the Respondent-Page 21
there were reasonable grounds for presuming the involvement of the appellant and the co-
accused in the alleged crime. The police submitted the police report u/s 173 (2) to the magistrate.
The police also sent a copy of the FIR, recorded statements u/s 164 of the Code, document and
relevant extract thereof forwarded to the Magistrate under Section 173(5) of the Code.

The magistrate taking cognizance of the case u/s 190 upon perusal of the documents submitted
formed the opinion that an exclusively sessions triable offence was made out. The magistrate did
not discharge the accused and committed the case to the Court of Sessions u/s 209 after
complying with the provisions of the Section 208.

Therefore, he rather waited for the police to supply the copies of statements and documents to
him as per the requirement of Section 208 of the Code. Therefore, when the police despite
investigation could not find any material evidences to corroborate the confession, he retracted
from his statement and pleaded innocence (emphasis supplied). This shows his ulterior motive to
escape guilt as his retraction could have been done earlier.

The subsequent retraction of the co-accused and his demand to be put to trial was mala fide.
Mere framing the charge does not mean that the accused is guilty of the charge leveled against
him. During the course of trial, the Court is to see whether the facts of the case are proved
against the accused. Section 3 of the Indian Evidence Act defines ‘proved’ as, when after
considering the matters before it, the Court either belies it to exist, or considers its existence so
probable that a prudent man ought, under the circumstances of a particular case, to act upon the
supposition that it exists. If the facts are not proved against the accused, he may be acquitted by
the Court during the course of trial.

In the present case, a grave offence has been committed and such an offence is against the
society. It will amount to miscarriage of justice is the approver retracts because of an ulterior
motive and subsequently because of the retraction; the co accused is discharged without
disproving the facts of the case (emphasis supplied).

-Memorandum on Behalf of the Respondent-Page 22

ISSUE IV: Whether a retracted confession by an approver may be used as evidence against
the other accused?

It is most humbly submitted before the Hon’ble Supreme Court usually most of the crimes are
committed at secluded places where there will not be any eye-witness to testify regard to these
offences, and it would not be possible for the police to get sufficient evidence to prove the guilt
of the accused. So out of multiple accomplices in the alleged crime one is taken by the police for
the purpose of giving evidence against his own colleagues, who is known as an approver.

(A)

THE CONFESSIONAL STATEMENT OF CO-ACCUSED WAS VOLUNTARY WITHOUT

ANY THREAT OR INDUCEMENT

An ‘Accomplice Witness’ is governed under the provisions of Section 133 of the Indian
Evidence Act, 1872. It states that an accomplice shall be a competent witness against an accused
person; and a conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice.55It has been observed by the Hon’ble Supreme Court in the case of
Devku Bhikha vs. State of Gujarat 56 that it is settled law that the confession of the accused has
to be taken as a whole and the exculpatory part cannot be thrown aside.

The Hon’ble Supreme Court in the case of Bharat vs. State of Uttar Pradesh57 held that
confessions can be acted upon if the court is satisfied that they are voluntary and they are true.
The voluntary nature of the confession depends upon whether there was any threat, inducement

55
See Section 133 Indian Evidence Act, 1872; The King-Emperor vs Nilakanta Alias Brahmachari , (1912) 22 MLJ
490
56
1995 AIR SC 2171, para 3
57
(1971 (3) SCC 950, para 7
-Memorandum on Behalf of the Respondent-Page 23
or promise and its truth is judged in the context of the entire prosecution case. In Abdul Vahab
Abdulmajid Shaikh & Ors vs. State of Gujarat 58 the Hon’ble Supreme Court stated that merely
because the confession was retracted later; that does not mean that the confession was not
voluntary in nature.

59
In the case of State through Superintendent of Police vs. Nalini and Ors the Hon’ble
Supreme Court held that if the confession made by an accused is voluntary and true, then it is
admissible against the co-accused as a substantive piece of evidence. In Manjit Singh vs. CBI60
the Hon’ble Supreme Court held that while considering the question whether retracted
confessions of the co-accused could be relied upon to convict the accused, held that the retracted
statements can be used against the accused as well as the co-accused provided such statements
were truthful and voluntary when made.

In Nathu vs. State of Uttar Pradesh 61the Supreme Court observed that the prolonged custody
may stamp the confessional statement so obtained as involuntary one, and the intrinsic value of
such a statement may be vitiated.

What is crucial is whether at the time when the accused was giving the statement he was
subjected to coercion, threat or any undue influence or was offered any inducement to give any
confession.62 For a retracted confession to be acted upon a general assurance that the retraction
was an after-though and that the earlier statement was true is required. 63 The onus is on the
defence to prove that the confession was completely involuntary.64Therefore, one can conclude
that if a retracted confession passes two tests, firstly, the confession was made voluntarily, and
secondly, no valid reason was given for retracting from the confession, then even a retracted
confession can be acted upon by the court.65

It is to be noted by the Hon’ble Court that the statement made by the co-accused Mr. Guruprasad
though made in police custody was not made under any threat or inducement. Mr. Guruprasad
himself voluntary offered to turn approver and furnished the confessional statement (emphasis
supplied). Further, no valid reason had been provided by Mr. Guruprasad during retraction
(emphasis supplied).

58
(2007) 4 SCC 257, para 6
59
(1999) 5 SCC 253, para 432
60
(2011) 11 SCC 578, para 73
61
AIR 1956 SC 56
62
Ibid.
63
Id 3 at para 7
64
Noor Aga vs. State of Punjab, (2006) 12 SCC 417, para 58
65
Shankaria vs State of Rajasthan, AIR 1978 SC 1248, para 2
-Memorandum on Behalf of the Respondent-Page 24
 (B)

THERE WAS MATERIAL CORROBORATION OF THE CONFESSIONAL STATEMENT

OF CO-ACCUSED

It is to be noted by the Hon’ble Supreme Court that reading Sec. 133 66 and Illus. (b) to Sec. 11467
of the Indian Evidence Act, 1872 together it is not illegal to act upon the uncorroborated
evidence of an accomplice. In Nazir Khan vs. State of Delhi,68 the Hon’ble Supreme Court held
that the confessional statements made by the co-accused can be used to convict a person, and
that it is only as a rule of prudence that the Court should look for corroboration elsewhere.

In Bharat vs. State of Uttar Pradesh69, the Hon’ble Supreme Court observed that the Courts
should not act upon a retracted confession without finding assurance from some other source as
to the guilt of the accused. Whether in a given case corroboration is sufficient would depend
upon the facts and circumstances of that case.70

In State of Maharashtra vs. Bharat Chaganlal Raghani71 the Supreme Court mainly relied on
the retracted confessional statements of the accused since there was sufficient general
corroboration of the confessional statements made by the accused.

In Sukhwant Singh vs. State72, the Hon’ble Supreme Court upheld the conviction solely on the
basis of the confession of the co-accused, without any corroboration, that too in a situation
where the accused himself had not confessed. In Vilayuda Pulavar vs. State73the Hon’ble
Supreme Court held that each and every piece of information mentioned need not be
corroborated by independent evidence.

In the present case though the police could not recover the weapon but there was sufficient
corroboration of the confessional statement given by the co-accused. The body of the deceased
husband of the appellant’s was found at the exact location as pin pointed by the co-accused. The
deceased died of bullet shots in the chest in the manner as had been narrated in the confessional
statement of the co-accused. Further, the tyre marks of the car of the appellant’s deceased

66
See Section 133, Indian Evidence Act, 1872
67
See Section 114, illustration (b), Indian Evidence Act, 1872
68
(2003) 8 SCC 461, para 26
69
Id 3 at para no 7
70
Ibid
71
(2001) 9 SCC 1, para 60
72
(2003) 8 SCC 90, para 3
73
(2009) 14 SCC 436, para 9
-Memorandum on Behalf of the Respondent-Page 25
husband were found to be present at the said location. Upon questioning the relatives and
neighbours of Ajay the I/O came to know about the alleged illicit relationship between the
appellant and Mr. Guruprasad. Police also recorded the statements of two employees of MNC
Inc. who stated in their opinion that the appellant and co-accused were more than good friends
(emphasis supplied). Therefore, the retracted confessional statement can be used as evidence
against the appellant.

PRAYER

Wherefore in the light of facts stated, questions presented, issues raised, arguments advanced

and authorities cited it is most humbly prayed before this Hon’ble Supreme Court that it may

be pleased to:
-Memorandum on Behalf of the Respondent-Page 26
  Dismiss the Criminal Appeal No ……../2013, and,

 Remit the case back to the Trial Court for continuation further proceedings.

And / Or

Pass any other order that this Hon’ble Court may deem fit in the interest of equity, justice and

good conscience.

For this the Respondent shall forever pray.

Date: __/__/2013 S/d___________________

(Counsels for the Respondent)

-Memorandum on Behalf of the Respondent-Page 27