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Question: Discuss about the Criminal Procedure.    Answer: Introduction: It is the cardinal principle of criminal law that a person cannot be convicted unless his guilt is proved beyond reasonable doubt.[1] In the instant case, Sutton (the accused) has not committed a murder. He was indulged in a fight with the Nguyen (the deceased) but never used a knife to kill him. Therefore he is surely not the murderer. The fact he that he fought with the deceased has also been witnessed by two persons, Stretch and Jacko. The three left the place leaving Nguyen alive. After a month, Sutton was questioned by police officers regarding the murder of Nguyen. Sutton initially did not initially want to give the interview as he was drunk and tired. But the police officials threatened to issue a search warrant by virtue of which they would search Sutton’s mother’s home. Sutton was concerned about his mother’s health. His mother had suffered from severe heart attacks in the previous years. Her mother was very much scared of cops and could probably suffer from another heart attack if she sees the cops in her place. Considering all these consequences, Sutton made an admission that he had stabbed the deceased. The admission was admitted in the criminal proceeding held by the Trial Court and the accused has been convicted of murder of the deceased. The conviction of the accused based on a coerced admission is surely an instance of miscarriage of justice. Sutton has the right to appeal against his conviction and he surely will get justice because he not the real murderer. It is another cardinal principle of criminal law that ten guilty persons be set free than one innocent person be held guilty. [2] Statutory Right to Appeal Section 18 of the Crimes (Appeal & Review) Act, 2001 gives the right to a person to appeal against his conviction. The Section lays down that in an appellate proceeding the evidences which were given in the original local court proceeding would be reheard and an appeal would be decided on the basis of such evidences. If the District court is of the opinion that fresh evidence be given in the interest of justice, then fresh evidence can be given by the permission of the District Court.[3] Legal Issues Involved in the Case Whether the questioning that was done by the police officers in Hyde park against the suspect was in compliance with the provisions under Section 281 of the CRIMINAL PROCEDURE ACT 1986 or not? Whether the admissions made by the accused in the interview at the police station were coerced or not? Whether evidence of Stretch, being a fresh evidence, can be adduced in the appellate proceeding or not?    Issue 1 Section 281 of the Criminal Procedure Act 1986 deals with ‘admissions by suspects’. Clause (1) of the Section is applicable to an admission which was made by an accused person who, at the time of making the confession, was suspected for commission of an offence or could reasonable have been suspected of having committed an offence by an investigating official. The admission referred to in this section must have been made in the course of official questioning and the offence referred to in this section is related to an indictable offence excluding those indictable offences which could be summarily dealt without the accused person’s consent. Clause (2) lays down that the admission to which this section applies is admissible only if the admission is made available to the court and the interview taken by the investing official has been tape recorded.[4] In case, if the tape recording has not been made by the investing official, then, a tape recording of an interview with the person, who made the admission, is to be made containing a statement that such person accepts the terms of the admission or a reasonable excuse has to be given by the prosecution as to why such tape recording could not be made. An “investigating official’ would include a police officer who does an investigation under an order given by his superior. Thus, the tape recording of admissions is essential for using them as evidence in a Court of law as per the provisions under Section 281 of the Criminal Procedure Act, 1986. If the tape recording could not be made by the police officers at the time of questioning the suspect, then a reasonable excuse has to be given by the police officers as to why the tape recording of the questioning could not be made. Case: Foster vs The Queen (Common law) (1993)[5] In this case, a charge was inflicted on the accused for setting fire to a large public school. The accused was convicted as he signed a confession while being in the custody of police. In the original court proceedings the accused said that he made the confession under threats given by the police officers. But the Court decided the case against the accused and convicted the accused for maliciously setting fire to the public school. On appeal the High Court made the common law position clear and held that if a confession is procured through a police conduct, which is unlawful, then the judge may use his discretionary power and exclude the evidence on the following grounds: That it would be unfair to the accused That it would be contrary to the public policy In this case, family of the accused was threatened, there was no recording of the interviews and the accused was not allowed to contact a lawyer which clearly indicated that unfairness was being done to the accused. Under these circumstances, the High Court felt it appropriate to quash the conviction. Thus, tape recording of evidence is an essential factor to determine the reliability of a confession. In the instant case, the questioning which the police officers did to the suspect was not electronically recorded. Thus, it has been unfair to the accused that the informal conversation between him and the police officers in the Hyde Park has been used as evidence against the accused.  It was just an informal conversation and no caution has been given to the accused that the conversation was likely to be adduced as evidence in the Court of law.    Issue 2 Section 85 of the Evidence Act 1995 lays down provisions as to reliability of admissions by defendants in criminal proceedings. [6]Clause (2) of Section 85 clearly lays down that only reliable admissions are allowed to be adduced as evidence in a criminal proceeding. The prosecution needs to establish that the particular admission was made in such circumstances as are unlikely to make any adverse effect on the truth.  Section 85(3) lays down certain factors to be considered to determine whether such circumstances existed or not. The factors as laid down under Clause (3) of Section 85 are as follows: The relevant characteristic or condition of the person who made such confession including his health, age, education, personality and any intellectual, physical or mental disability which the person is suffering from or which the person may suffer from. If the admission was made in course of questioning then: The nature of the questions The manner in which the questions were put The nature of any inducement, thereat or promise which was made to the person. In the instant case, the accused was not ready to be interviewed by the police officers. The police officers then threatened the accused that if he did not face the interview, then the police would issue a search warrant and proceed to search the home of accused’ mother. The accused got tensed to hear this as his mother was not in the best of her health and she had already suffered from two heart attacks in the previous year. Moreover, his mother was scared of cops and she could pos
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