Judgement Subject Index/Important Decision/Topic ILC-2012-SC-CRL-Aug-10 Mohammed Ajmal Mohammad Amir Kasab Vs. State of Maharashtra Constitution of India, 1950 - Article 20 , Article 21 Criminal Trial - Right to be Represented by lawyer - Only 8 days of time give to lawyer for preparation of case - Trial lawyer himself never complained about insufficient time - Held that, the argument that the defence was not allowed sufficient time for preparation of the case and that denial of sufficient time vitiated the trial cannot be accepted. Constitution of India, 1950 - Article 20 , Article 21 Request to Consult and be defended by a legal practitioner - Right is not to be construed as sanctioning or permitting the presence of a lawyer during police interrogation - Role of a lawyer is mainly focused on Court proceedings - Accused would need a lawyer to resist remand to police or judicial custody and for granting of bail; to clearly explain to him the legal consequences of a confessional statement in terms of Section 164 Cr.P.C.; to represent him when the court examines the charge-sheet submitted by the police and decides upon the future course of proceedings and at the stage of the framing of charges; and beyond that, of course, for the trial - Right to access to a lawyer is not based on the Miranda principles, as protection against self-incrimination, for which there are more than adequate safeguards in Indian laws. Constitution of India, 1950 - Article 20 , Article 21 Right to be Represented by lawyer - Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, for entire course of the trial - Even if the accused does not ask for a lawyer or he remains silent, it is the Constitutional duty of the court to provide him with a lawyer before commencing the trial - But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial - Unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted in some material prejudice to the accused in the course of the trial. Constitution of India, 1950 - Article 20 , The Code of Criminal Procedure, 1973 - Section 161 , Section 162 , Section 163 , Section 164 Right against self incrimination - Legal Aid - Right to presence of attorney of accused as a measure of protection against self incrimination have no application in Indian system of law - Held that, it cannot be said that Article 22(1) merely allows an arrested person to consult a legal practitioner of his choice and the right to be defended by a legal practitioner crystalizes only at the stage of commencement of the trial in terms of Section 304 of the Cr.P.C. Miranda v. Arizona has no application to Indian Legal System. Indian Penal Code,1860 - Section 121 , Section 121-A , Section 122 "Waging War" against "Government of India" - The conspiracy, in furtherance of which the attack was made, was, inter alia, to hit at India; to hit at its financial centre; to try to give rise to communal tensions and create internal strife and insurgency; to demand that India should withdraw from Kashmir; and to dictate its relations with other countries - It was in furtherance of those objectives that the attack was made, causing the loss of a large number of people and injury to an even greater number of people - Nothing could have been more "in like manner and by like means as a foreign enemy would do". The Indian Evidence Act, 1872 - Section 10 Transcripts of intercepted calls - Admissible in Evidence - Transcripts began allegedly after the appellant was in police custody - Contention that conversation between the alleged co- conspirators can not be used against the appellant - Held that, transcripts are by no means any confessional statements made under arrest and they are fully covered by the provisions of Section 10 of Evidence Act - No reason not to take them into consideration in support of the charge of conspiracy against the appellant. The Indian Evidence Act, 1872 - Section 25 , Section 26 Confessional Statement - Whether voluntarily made - Well structured statement and use of words that accused is not expected to know - Discrepancies pointed out explained by prosecution - Confessional statement held to be voluntarily made. indianlawcases/ILC-2012-SC-CRL-Aug-10.aspx
Posted on: Sun, 07 Jul 2013 03:05:31 +0000
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