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Old 10th October 2008, 13:00   #1
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Default Facing the Court - a Guide

Lord Alfred Thompson Denning, the English Judge, would never drive his own car. For him, there was no way one could drive without breaking law, and it is embarrassing for a judge to end up as an accused in a court. What is valid for the English Lordship, who was chary of, what we in India believe is "disciplined" London traffic will hold good for the extremely in-disciplined traffic in this country. Even if we do not break the law, we, have the infamous and unwritten "bigger vehicle is at fault" rule, under which drivers of bigger vehicle will be penalised for an accident irrespective of who is at fault.

So, getting p[er|ro]secuted is a hazard we would invariably face in our driving lives like the pothole or unmarked speed breaker or rumble strip.

Here is some info to help you through the trauma.

Please remember this writeup is heavily geared to trial of offences related to driving and accidents and may not fully apply to trial of other offences.

The criminal proceedings can be broadly segregated into the following stages:-

1. Investigation (Begins with filing of a complaint and ends with filing of the charge sheet).

2. Framing of charges (Begins with filing of the charge sheet; and ends with reading of charges).

3. Trial (Begins with a plea of "Not guilty"; and ends with finding of guilt/not guilty).

4. Sentencing. This is where punishment, if any, is imposed after the accused is found guilty.

The above classification is in the legal sense, and has nothing to do with actual time taken. For example, investigation can take several years; so can trial, but the judge can pronounce the sentence (complete stage 4) along with stage 3.

....cont'd.
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Old 10th October 2008, 13:07   #2
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Default Investigation - filing a complaint

Investigation begins, either suo motu, with filing of a complaint, or receipt of information of an offence.

Read the above sentence again. I did not say "receipt of information by the police". That is right.

Investigation can be started by filing a complaint with the court. Or, the police can commence investigation on their own. Or the court can, on its own, direct the police to investigate any offence.

The courts can direct commencement of investigation if a complaint is made direct to the court.You can resort to this option if the police has ignored your side of the story, and you feel that it is somebody else is guilty.

The first place to go if a traffic offence takes place is the nearest Police Station. Remember that even if you are guilty, you have an obligation to inform the police under Section 134 of the Motor Vehicles Act that an accident has taken place. In most major cities, we will have specialised "Traffic police stations"; but still, there is no harm in making a report to the ordinary police station, they are obliged to record the report, and forward the report to the traffic police. Of you course in case there is a "traffic police", and you know where they are stationed, you can eliminate one thorn err. a point of contact with the men in uniform if you go to the traffic police direct.

There is no requirement that the information / complaint has to be in writing. But if you make it in writing, you can always claim that you made the report. This is important, because as the complainant, when a FIR is lodged, you become automatically entitled to a copy of it.

An "FIR" is the "F"irst "I"nformation "R"eport. Technically, the police has the discretion to find that the report / complaint you made does not make out an offence, and hence refuse to lodge an FIR.

When the police feels that an offence is made out from the information they receive, they have record the FIR and (1) send a copy of it to the court and (2) give a copy of the FIR to the person who gave the information.

But even if an FIR is not lodged by the police, they are obliged to record all "information" they receive. (This is the provision they resort to when, for example, you make a report for sake of claiming insurance, and no person is injured and both parties do not wan to in for litigation). When the "information" does not convince the police that an offence is made out, they are to make entries in the "general diary" - the "GD".

If you have a compliant, and the police refuses to register it, you can (1) send a registered letter to the commissioner of police (2) approach the Magistrate in the area where the offence took place (that is not the same thing as the Magistrate where you live / work) and file a complaint. Technically, magistrates too are bound to accept oral complaints too, but I am yet to come across any case where this has happened.

...cont'd.
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Old 10th October 2008, 13:17   #3
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Default Investigation - what happens.

Where the traffic conditions permit, do not move the vehicle from the spot till a "scene mahzar" aka whatever they call it in your place is recorded. This document is a description of the scene of the occurrence.

Here are some things which will be recorded here.

- Dimensions and description of the vehicle(s) - they usually take it from the registration certificate, rather than bother to make the measurements themselves. (IF the car has "pappu, buntu aur babli" on the rear wind shield, that too may be recorded).

- distances of the vehicle(s) from the various parts of the road (eg. front right tyre was M meters from the center line of the road, and the rear right tyre was N meters from the outer edge of the road <<-- actual excerpt from one mahzar I have come across.

- The road itself (width of the road, if the road has a median, location of telephone / electricity poles, prominent buildings if any), distances in either direction to which direct vision is possible, etc.

If it is necessary to move the vehicle before the scene mahzar is prepared, try to mark the position on road using a chalk / soft rock / brick piece. At least, take photographs.

Next important document gathered during investigation is the report of the Motor Vehicles department - usually the "Motor Vehicles inspector). In Kerala, it is euphemistically called the "brake test"; because they would not know to test anything else. This would contain more details of the vehicles and its condition post-accident. The motor vehicles inspector will start the vehicle, gingerly move it for a feet or two to see that the brakes are working, and if this stage is "passed", they will move the vehicle till 2nd gear and slam the brakes; that is it.

More complicated accidents would mean the vehicle is inspected by experts from the forensics lab. This would happen in case of hit-and run and in case of disputed accidents, or probably, fire. (less than 00.05% of cases).

Of course, the police will record "statements" from eye witnesses, and persons injured too.

If there is personal injury, inspecting hospital records too will form part of the case investigation.

The police arrives at a "conclusion" on basis of all the above records, and copies of the above records (FIR, oral statements of injured and eye witnesses, scene mahzars, hospital records, report of the motor vehicles inspector, etc, along with the police's conclusion is the "charge sheet".

This stage can consume a couple of weeks to 6 months. The police may verify the registration license, insurance etc. and also may wait for the injured, if any, to be discharged from hospital.

The report will be usually handwritten (our police does not have even typewriters), and will be 20 to 25 pages long. It will also contain a sheet called the "draft charge".

...cont'd.
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Old 10th October 2008, 13:28   #4
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Good & Informative. Thanks for writing. Keep it comming
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Old 10th October 2008, 13:30   #5
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Default The case reaches a court.

The "charge sheet" is actually a report, containing the summary of the police's investigation. The police have found (a) a crime has taken place (b) identified the accused (c) and is filing the report to the court. If they could not solve the case like in (a) the complaint does not make out an offence (b) accused could not be identified, the final report is "referred" to a higher police officer, who then sends the report to the court - hence called a "refer report".

And findings of the police, whatever they be, are irrelevant, in theory.

BEFORE sending you a summons, the magistrate is supposed to read all that handwritten material and "think" as in:-

Quote:
"hmmm.. vehicle travelling at the extremely high speed of 80 km per hour on a 15 meter wide road with median and a view of 200 meters on either side has run over a pedestrian. So, who is guilty??"
In the real word, this what the Magistrate thinks:-

Quote:
Ah... what date do I ask the accused to appear?
(I have not come across a single case where the courts have rejected a charge sheet).

In the real world, a single Magistrate will have to deal with up to 2000 CONTESTED cases in a year. I know for a fact that in certain courts in Ernakulam, upto 3500 prosecutions are filed per year. Just for sake of simplicity, make that a mere 900.

So, in a year of 300 working days (Only Sundays and normal holidays are off for them) the Magistrate will have to take a final decision on at least 3 cases per day. Assuming a working day of 10 hours, which gives him a little more than 3 hours to deal with a single case. Given the fact that the Magistrate still has to deal with matters like managing around 30 of his staff, deal with "interim" proceedings like bails, and like custody of accused, which will take up at least 2 hours of his sitting, listening to arguments, and recording evidence
of witness (one witness will take up at least 15 minutes; average time taken per witness is half an hour), make that 5 witnesses a day, etc., the actual time a court gets to spend on YOUR case is a mere few minutes. I have serious doubts that the Magistrate will spend enough time to do the following
analysis:-

Quote:
80 km per hour = 80 x 1000 / 60 / 60 = 22 meter per second. Since there is 200 m visibility on both directions, victim would see the car when it is 100 M away; and the car would take four and half seconds to reach the accident spot. Since a normal man walks at 4 km per hour, he travels around 1.1 meter per second. Also, he will have to spend at least 2 seconds, to follow "look left, look right and left again" forumla, ...
Note that the above kind of analysis is absolutely required to pinpoint any kind of fault in an accident case. And absolute lack of time for the court makes it absolutely impossible to do any kind of sane adjudication.

And the tragedy of our judiciary is that it does not have the time to do any kind of analysis at all ("apply the mind" in legal jargon), let alone before issuing the summons.

So, when the police files the charge sheet, it is a matter time before you get summons from the court.

And here is where the police may do some hanky panky. They will turn up around between 10 and 1 noon at you hours, and you will be away at work. If you and spouse and working, the house may be even closed. The police will return the summons, saying "accused left". And the court will issue a warrant against you. And now, they will turn up at 4AM, when you are sleeping.

So, make sure that you follow up with the police, whenever there is a possibiiity of a prosecution against you. And never, ever deliberately return a summons or any communication from a court. You are losing a chance to defend yourselves.

...cont'd..
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Old 10th October 2008, 14:04   #6
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Very interesting thread. I am sure many will be thankful to you for charting out all this in a very easy to understand fashion.

Whenever you're done with the whole thing, could you please enlighten why most of this doesn't happen in a DUI case?

The process looked thus to me:

1. You are subjected to a breath analyzer test, to which there is no technique. It is just a "blow your lungs out into this contraption" type of exercise. I am not sure how the machine works, but I am sure it would detect alcohol content based on absolute amount of alcohol encountering the meter's sensor (proportionate to how much you just blew in, and not how much you consumed). And not, the more reliable, alcohol content per unit of breath. In any case, this is no measure of sobriety or lack thereof. Just a Y/N kind of a test.
2. You are handed out a print-out of the reading, and asked to pay Rs. 2000/-
3. License is confiscated
4. You are given a date and time to attend court.
5. There is supposedly no point in contesting the charges, unless you would like to compound your sentence.
6. One has to quietly accept the court's judgement in this regard.
7. Upon not attending court, either you are issued a summons with a fresh date OR some judgement is passed, of which you can learn from contacting the RTO headquarters.

I hope I am not wrong in my understanding anywhere.
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Old 10th October 2008, 14:33   #7
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Wow. Informative thread.
I wish there was a way to put a note in to the Judge, with the required calculations, proving that one is guilty or not (in simple cases). They could save so much time.
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Old 10th October 2008, 15:26   #8
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Default A note about arrest and appearance in court

First, thanks to all of you for your interest. Some of these queries have thrown up some aspects I did not even think about. Will explain them later on. Now, we will continue with my line of narration for the time being.

Arrest is a means of ensuring the accused's presence in court. Period.

If the court or police is convinced that you will appear before the court at time of trial and (of course, later), you will be let off on your own bond, a written undertaking given by you alone. When another persons' assurance to produce the accused is taken, the process is called "bail".

Bail is always conditional, and the conditions are at discretion of the court. Impounding passports, imposing conditions on not leaving the city / district / state, asking the accused to appear before a particular police station at given intervals, etc, are routine conditions.

If the court is convinced that you deserve to be free pending trial, but you own bond is not sufficient, and you are not able to furnish other persons to stand surety for you (ie. bail), you can file an application in the court seeking permission to deposit cash, which will be forfeited if you fail to turn up.

When the accused appears before the court, he will be given a copy of the charge sheet, and all supporting documents and a list of witnessess whom the prosecution (ie., the police) wishes to call upon.

Charges will not be framed in absence of the accused. Evidence will not be recorded in absence of accused, except in very execptional cases. In normal flow of things, there is a loooong gap between framing / reading over the charges and commencement of recording of evidence. Case will be posted frequently in this period, and during these postings, accused's absence can be dispensed with.

Make a point to liase with you lawyer well in advance whenever the accused will not appear, and an application to "condone absence" needs to be filed. If the lawyer does not appear and file an application, bail will be cancelled. If sureties are produced, notice will be issued to sureties; a reversible damage. But if you furnished cash, and the courts orders forefieture of that cash, you lose it for ever - damage is irreversible.

As a normal course, courts permit applications for condonation of absence. But do not drag on the matters unless absolutely necessary.

Remember that if you tendered cash in lieu of sureties, you are entitled for refund of that. Refund is a very tedious process however, but is still faster than getting back money from other government agencies.
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Old 10th October 2008, 15:37   #9
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Default Framing the Charges

On the basis of the "charge sheet", the court is supposed to arrive at an independent conclusion regarding whether the police has, at the conclusion of the investigation, made out an offence against the accused.

Technically, even if the police says that no offence is made out, the court can still go on to say that the police is wrong and proceed to "frame charges" against accused. And the opposite too is true - even if the police says a person is guilty, the court can say no without sending notice / summons to accused. Neither actually happens in reality. The court, due to lack of time, simply accepts the police verdict. Unless something or somebody interested (like you) intervenes.

If you have not noticed, please note that there is a difference between a "charge sheet" and the "charges".

The "charge sheet" is the report of conclusion of the investigation, where the police finds somebody guilty (ugh -- police is raising an accusation against somebody who is named in the charge as accused).

"Charges" are framed by the court, on basis of material in the "charge sheet".

The court will simply read over the "draft charges" filed before it by the police. (or if it is a complaint filed by the lawyer ought to be smart enough to frame the last paragraph as a 'draft charge'). Depending on the individual presiding officer's inclination, the charge will be read over by the judge himself, or the "bench clerk" - the guy standing below the judge, reading out the case numbers and handing over the files to judge as the cases (250 or so of them a day) are called out. Do not expect anything other than the big question "are you guilty" to be audible to the accused.


The accused's lawyer would have advised him to plead "not guilty" when the question is popped.

Remember that practically speaking, judges permit the accused to withdraw the plea of "not guilty" and plead guilty at any stage fo the case. Strictly speaking, this not possible, but what the heck, it saves every body's time.

Once the plea is recorded, if you pleaded guilty, the court will decide the punishment, or the case will be adjourned for
trial. If you pleaded not guilty, you may have to execute fresh bail bonds and / or furnish fresh surety.

The court is supposed to give the accused an opportunity of being heard before the charge is framed. You may avail this opportunity, if so advised.

But remember that traffic offences are most mundane in legal fraternity, and courts do not want to waste their time on "pre framing charge" hearing when more important cases like bouncing cheques and thefts and robberies are waiting; and accused there would not bother with such niceties.
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Old 10th October 2008, 15:57   #10
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Great effort, as a lawyer I can say this demystifies the whole dreaded legal thing.
Mods, suggest this thread should be parked.
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Old 10th October 2008, 16:13   #11
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Quote:
Originally Posted by Bass&Trouble View Post
Whenever you're done with the whole thing, could you please enlighten why most of this doesn't happen in a DUI case?
There was an acquittal last month on this basis. This procedure is supposed to be followed:

1. Breath analyzer
2. Blood test for those found over limit
3. Rest of things

Police failed to use findings on blood test report and they lost the case. Details can be found by googling in Mid Day.
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Old 10th October 2008, 16:13   #12
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Default The adjournments

Now, you have patiently endured the investigation, the tedium / odium of a policeman in uniform serving summons at your home (it is rare to find a court directing sending of summons by registered post - it is possible), bail at the police station, appearing to hear the framing of the charge and you pleaded not guilty.

Welcome to the 0.02% club. My personal experience is that this is the proportion of accused in traffic offence cases who will plead not guilty.

The cases go for trial in the same order as they are filed. Means first filed case goes for trial first.

And I explained earlier that assuming that 900 cases need to be tried per year, the judge gets hardly a few minutes to deal with the case. Any more than 900 cases per year, and the court gets a backlog of cases.

And the average court needs to try at least two thousand cases per year. Means more than half cases filed in a year get carried over to the next year for trial. And this "carry over" has been happening for several years.

So "several years" is what it is going to take if you decide to contest a case.

And you know that trial is going to start when the court finally says "issue summons to PW 1 to N" or something similar. PW means Prosecution Witness.
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Old 10th October 2008, 16:24   #13
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Default The trial

So, several adjournments later, you find yourselves alive, and still have not decided to reverse the plea of guilt. Your case is going for trial.

First, the witnesses will be examined.

Here are the persons who will be examined as witness.

1. The eyewitness to the incident.
2. Injured.
3. Doctors who treated the injured.
4. Inspectors who examined the vehicle (the guy who conducted "brake test".
5. The guys who witnessed the preparation of the "scene mahzar" - the mahzar has to be prepared in presence of two witness.
6. If another vehicle was involved, its driver and passengers, if any.
7. Investigating officer.

Their "statements" would have been already recorded, and a "transcript" available as a part of the "charge sheet".

And examination of the witnesses is a two part process - first, they are examined by the prosecutor (the examination in chief); and then by the accused's lawyer (the cross examination).

And then, the court will decide if a case is made out. Means, if the court wants, it can throw out the case now. Actually, it can decide at at point of time that it wants to throw out the case.

If the court decides to continue with the case, it means the accused finally has an opportunity to adduce evidence.

It is a tragedy (a "feature" turned "bug" - in the geek speak) of the Indian legal system that the accused need not disclose his evidence earlier. In the present set up, where the people involved are busy proving the guilt of the accused, rather than intelligently identifying the guilty, a disclosure of your evidence may result in the prosecution gathering / fabricating more evidence to rebut yours.

The accused cannot be compelled to give evidence. But the court will examine the accused (called the "313 statement", to which perfect silence is justifiable, but not always advisable).
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Old 10th October 2008, 16:25   #14
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Amazing bit of information. Unfortunately we mere bhpians cannot give any star ratings to the thread. But this is worth 5 stars and can be made a sticky.

Thanks Backseatdriver.
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Old 10th October 2008, 16:38   #15
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Default The trial part 2 - the oral arguments

Once recording the oral evidence is concluded, the case goes for arguments.

Fortunately, this is a stage where the courts will give their undivided attention. And it is unfortunate that a prosecution has to reach this stage to garner serious attention from the court. Those of you have been prosecuted for no fault of yours will know the pain.

As I said earlier, traffic offences are most routine of all prosecutions ((in the legal fraternity), and oral arguments barely last 10 minutes, if ever they happen.

If the lawyer suspects that the judge is going to convict the accused, he should raise a plea for benefiit of the Probation of Offenders Act now, for reasons to be elaborated in the next post.

At the end of the oral arguments, the case is - are you still surprised - adjourned.
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