Arrests, Bail, and the Criminal Procedure Code

A quick run--through basic Indian criminal procedure. The Criminal Procedure Code 1973 [Cr.P.C.] creates two parameters for understanding an offence: (i) whether it is cognizable/non-cognizable, and (ii) whether it is bailable/non-bailable. These are defined in Section 2. Bailable offences are those made bailable [Section 2(a)], cognizable offences are those where police can arrest without warrant [Section 2(c)]. Vice-versa in case of non-cognizable offences [Section 2(l)]. 

The First Schedule to the Cr.P.C. 1973 lays out whether offences are cognizable/non-cognizable and bailable/non-bailable [Found at the fag-end of the statute]. Every offence under the Indian Penal Code 1860 [IPC] is covered in Part A/Part I, whereas "Classification of Offences Against Other Laws" is the subject of Part B/Part II. The classification in Part B/II is obviously overridden where a special statute deems an offence to be either cognizable and/or non-bailable [see, Section 37(1)(a), NDPS Act 1988].

Searching for a Rationale

Now, it should be clear that this classification of offences is quite important. Powers of arrest are severely curtailed in respect of non-cognizable offences, where police require a warrant from the Magistrate. Similarly, the right of an individual to bail is severely limited in non-bailable offences, as can be seen from the stricter standard employed while deciding bail for these cases under Section 437, Cr.P.C. This prompts the question: how does the Legislature decide upon the classification? 

Look again at the Cr.P.C. with this question in mind. Those definitions will now appear particularly unhelpful. In fact,nothing in the Code provides any rationale behind how offences are classified in the manner that they are. The 41st Law Commission Report, which paved the way for the 1973 Code, again does not provide any explanation.  What about cases, you ask: little luck there as well. No Supreme Court decision has provided any logic behind the classification exercise yet. 

Everyone seems to Forget about Part B

I did come across High Court cases, and one may read Subbulakshmi v. State [(1993) 1 MWN (Cri) 268]. The Madras High Court believed the distinction between cognizable and non-cognizable offences was based on gravity of offences. Thus, serious offences like murder [Section 302 IPC] are cognizable, while others like "Making atmosphere noxious to health" [Section 278 IPC] are not. This, however, is squarely contradicted by the 177th Report on Law Relating to Arrests. The Commission spends nearly half a page (!) to give us the logic behind classifications:

• The cognizable/non-cognizable distinction is not based on gravity of the crime or quantum of punishment, but upon the need to arrest the person immediately [Page 23, last paragraph onwards]
• The bailable/non-bailable distinction is by and large based on the "gravity of the offence (which necessarily means the quantum of punishment prescribed thereof)" and the need to keep offenders in jail pending investigation [Page 24].

The Law Commission gave this explanation responding to claims that the classification is bogus [for instance, see, KG Balakrishnan, "Criminal Justice System-Growing Responsibility in Light of Contemporary Challenges" (2010) 7 SCC J-3]. I, for one, remain unconvinced. All the Law Commission achieved was explaining classification of IPC offences under Part A. The same logic cannot extend to Part B, for the very basis for classifying offences into cognizable/non-cognizable under Part B is the quantum of punishment! Have a look:

• Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years are made cognizable and non-bailable;
• Offences punishable with imprisonment for 3 years, and upwards but not more than 7 years are made cognizable and non-bailable;
• Offences punishable with imprisonment for less than 3 years or with fine only are made non-cognizable and bailable.

Does this Matter? Yes, it does

Well, not everybody has forgotten Part B. Legislatures (state and central) have certainly kept in mind that offences punishable with 3 years are cognizable and non-bailable. This has led to a host of laws carrying offences with a maximum term of 3 years imprisonment. For instance, the following are cognizable and non-bailable offences, which means you can be arrested without warrant, and denied bail:

• Making unauthorised constructions, repairs, modifications to your house. Section 43, Maharashtra Regional and Town Planning Act 1966;
• Posting, inter alia, offensive [nobody knows what it means] messages online. Section 66-A Information Technology Act 2000;
• Obstructing the doors of a closing Metro train. Section 67, Delhi Metro (Operation and Maintenance) Act 2002;
• Disturbing a gathering while they sing the national anthem. Section 3, Prevention of Insults to National Honour Act 1971;
• Failing to comply with any provisions of the Environment Protection Act, Rules or Govt. Orders [more than a 100]. Section 15, Environment Protection Act 1986;
• Offences [including unconscious possession of drugs] under the NDPS Act, 1988.

Some of these are undoubtedly cases where intuitively the need for immediate arrest is apparent: e.g. NDPS Act. But, the same cannot be said for them all. Conferring powers of easy arrest also carries the possibility of easy misuse. This was highlighted in context of Section 498-A by the Supreme Court recently in Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273]. It also indicates the token regard for individual liberty held by the Legislature.

Some courts have tried innovative approaches to exclude offences punishable with a maximum of 3 years imprisonment from being cognizable and non-bailable [see, Subhash Chaudhary v. Deepak Jyala, 2005 Cr.L.J. 1034 (Bom HC)]. But that is not the solution. There is an urgent need to either provide some over-arching basis for the classification of offences, or perhaps delete Part B of Schedule I altogether.

Reversing Burdens - Unconsidered Issues

In the previous post, I discussed the position of law regarding reverse-onus clauses in India. The judiciary has restricted the use of these egregious innovations and also took away a great part of their bite. The use of reverse-onus clauses, however, does raise other associated issues of procedure. General criminal procedure is designed upon the assumption that the burden to prove rests with the prosecution. Statutes reversing burdens therefore do provide a supporting special procedure, but there are always some questions left unanswered. 

Arguments on Charge and Reverse-Onus Clauses

I raise one such issue here to make the point. The 1973 Criminal Procedure Code [Cr.P.C.] provided for arguments to be heard at the stage of charge, allowing a Court to discharge the accused person if it appears that there is no case made out on a prima facie evaluation. For instance, Section 227, Cr.P.C. states:

"If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

"Documents submitted herewith" refers to documents submitted by the Prosecution. Section 207, Cr.P.C. tells us what these documents are: (i) the Final Report [colloquially called the charge-sheet] (ii) the First Information Report recorded under Section 154, Cr.P.C., (iii) statements of witnesses recorded under Section 161(3), Cr.P.C., (iv) confessions recorded under Section 164, Cr.P.C, and (v) any other relevant document in the eyes of the Prosecution. 

Can the accused be allowed to produce material during arguments on charge to further his case? A three judge bench of the Supreme Court held that an accused person cannot present material during arguments on charge [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568], unless there are exceptional circumstances that necessitate that such material be considered [see, Rukmini Narvekar v. Vijaya Satardekar & Others, (2008) 14 SCC 1]. The threshold for something to become an "exceptional circumstance" of this nature is quite high; mistaken identities and the like.

The norm for criminal trial and investigation is that the prosecution must prove its case beyond reasonable doubt. The Police are thus tasked with conducting a meticulous investigation of the kinds elucidated under the Cr.P.C. from sections 154 to 173 to collect evidence sufficient to bring home the charges against an accused. So it seems entirely appropriate that the question of charge must be decided on the strength of this material. But here lies the catch. What about cases where the prosecution only has a limited burden, and the accused has to prove his innocence? 

At trial the accused would be required to lead evidence to prove his case, that there was no mens rea accompanying the acts/omissions that the prosecution established had occurred. If in ordinary cases, the Court considers prosecution material to determine the existence of mens rea, there is every reason to accept defence material at the stage of charge in such cases to determine the same question. However, neither do the special statutes provide any legislative support to the argument, nor has it been judicially considered as of yet. To my mind though, there is no reason to reject the claim.

Reversing burdens - the new old thing

Innocent until proven guilty: this may well be the most popular sentence associated with criminal trial. Accordingly, the proof of guilt lies on the prosecution and not the accused. A student of criminal law will tell you that this forms the Golden Thread that runs through the criminal law [Woolmington v. DPP, (1935) UKHL 1]. Golden or not, the idea seems to have become sufficiently ingrained in criminal justice across the globe, that deviations from this principle seem odious to one and all. Deviations, however, have become rather frequent as time has passed. Today, it is a common feature to have provisions which impose the burden to prove innocence upon the accused. These onerous "reverse-onus clauses" as they are referred to, need closer attention.

Why reverse the burden?
It is rather obvious, isn't it? The State has an interest in seeking convictions, and by reducing the prosecution burden it seeks to further this interest. It is not coincidence that most serious crime today contains some element of reversing burden. Drug laws, Money Laundering, Dowry Death, Tax evasion, Environmental Pollution: all place a burden upon the accused to prove that did not commit the offence.

The Problem?

The burden to establish facts must lie somewhere. In a criminal trial the parties are the State and the individual. At some level, this trial continues to be perceived as a gladiatorial contest between the opposite parties. Having David versus Goliath does not seem fair to most, until David has a trick up his sleeve. There are no tricks here, but what the law can do is impose the burden to prove facts upon the all-mighty State. To brand an individual a criminal and deprive him of his liberty, the State must be prove, beyond reasonable doubt, that he committed the offence. 

Naturally, there are some facts only the accused individual can prove or disprove by leading his evidence. For these facts of personal knowledge, the burden rests on the Accused to show their existence or not [see Section 106, Indian Evidence Act 1872]. However, this shifting of an evidential burden of proving facts, never became shifting of the substantive burden at the trial to prove guilt or innocence. Reverse burdens, therefore, strike at the very core of proving criminal liability as we have understood it for centuries.

Constitutional?.

Are such clauses constitutional? Unsurprisingly, the Supreme Court in Noor Aga v. State of Punjab [(2008) 16 SCC 417] held they are. There, the Court was concerned with Sections 35 and 54 of the Narcotics Drugs and Psychotropic Substances Act 1988 [NDPS]. These required the prosecution to establish existence of certain facts, after which the burden shifted on the accused [there was another issue before the Court, concerning confessions to excise officers, which is not pertinent to discuss here].

The Bench, speaking through Justice Sinha, held that the presumption of innocence was undeniably curtailed by employing reverse-onus clauses. But, did that entail a denial of some fundamental rights? Article 21 was pressed forward as a candidate, but Justice Sinha disagreed. Peculiarly, he sought to distinguish the acknowledged status of the presumption of innocence as a human right from being a fundamental right under the Constitution. Following which, he sought to use the same constitutional standards to determine the matter, limiting the use of such reverse-onus clauses [For more on the constitutional argument, see, Juhi Gupta, "Interpretation of Reverse Onus Clauses" 5 NUJS Law Review 49 (2012)].

Judicial Lawmaking and the Standard of Proof 
The finding on constitutionality is in fact, mundane, compared to what follows. Under the law of evidence, colloquially it is understood that civil and criminal cases impose a different standard of proof. While facts in civil cases need to be established on the balance of probabilities, criminal law places a higher standard of beyond reasonable doubt. Section 35 of the NDPS Act remarkably required an accused to prove that a culpable state of mind (mens rea) was absent, beyond reasonable doubt. Justice Sinha read down this standard, observing that "the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is `preponderance of probability'on the accused". This observation is not restricted to Section 54, which means the Learned Justice re-wrote the text of the Statute. His views have not been criticised, or challenged by a subsequent decision.

The Supreme Court on several occasions has deprecated such judicial lawmaking [most severely in Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683]. Judges can at best show the way, which the Legislature must then decide whether or not to follow [Standard Chartered Bank & Others v. Directorate of Enforcement & Others, (2005) 4 SCC 530]. Undoubtedly, requiring the accused to establish his case beyond reasonable doubt deals a terrible blow to individual liberty and increases the possibility of wrongful convictions. However, this decision has been taken by the Legislature, and any change must also flow from there. Judges cannot usurp this function, and re-write laws because this offends their sensibilities. The subjective nature of that determination easily manifests uncertainty. So, while Justice Sinha deleted half of Section 34, Justice Singhvi decided not to leave that task to the Legislature for Section 377 IPC [Naz Foundation (India) Trust v. Suresh Kumar Koushal, (2014) 1 SCC 1].

Conclusion
The manner in which reverse-onus clauses operate in India should be clearer now. Proper or not, Justice Sinha has ensured that reverse-onus clauses, which require the accused to prove innocence as opposed to a mere fact, can only be used sparingly. It has also resulted in judges holding the prosecution to a very strict standard of proving the initial facts, only after which the burden shifts on the accused. Finally, then, the accused is not required to prove his case to a standard as high as the prosecution, even if the black letter of the law says otherwise.

In Search of Guiding Principles - Deterrence

Two months ago, there was a mini uproar following proposed increases in fines and penalties for traffic rule violations (see here, for instance). The officials stated that such an increase was necessary to curb how the laws are currently flouted, and in turn realise greater road safety for India. At the start of this year, a similar logic led to higher sentences for rape offences [vide, the Criminal Law (Amendment) Act 2013], and has informed several decisions on criminalisation in India over the past two decades.

Its a familiar claim: punishment serves as a deterrent to prevent other individuals from following the same course of proscribed actions. No one, it is believed, would rationally wish to spend time in the can, ergo they will not engage in bad behaviour. Identifying deterrence as the rationale for punishment has provoked several debates over the last century. Those interested are suggested to read a collection of lectures by Professor H.L.A. Hart, entitled Punishment and Responsibility (second edition available here), and another collection entitled Principled Sentencing (edited by Professors Ashworth, Von Hirsch and Roberts and available here). Introductions aside, lets proceed to the issue.

Does criminal law really deter? Or is it merely one factor in a combination that achieves the important deterrent effect. Professors Robinson & Darley asked this question ["Does Criminal Law Deter? A Behavioural Science Investigation" 24(2) Oxford Journal of Legal Studies 173 (2004)] and the results were very interesting, and obvious. Criminal law - the set of rules which identify liability and punishment - by itself, has little or no deterrent effect. Further, the quantum of punishment in fact does not yield the kind of deterrent or unpleasant effects which legislators wish for. Lengthening incarceration makes most convicts adapt to prison life, rather than repent their actions.What can actually help in realising deterrence is enhanced enforcement and timely disposal of cases which keep the threat of punishment immediate. On both counts, India is found sorely lacking. Potential offenders therefore have little to fear, and recent news reports show how this is revealing itself in frightening forms (two suspects were arrested for murdering a police officer in Delhi last month).

The assumption that criminal law and heavy penalties influence behaviour is horribly inaccurate. Unfortunately, this very readily available research continues to be ignored by our legislators, who persist in hiking penalties in criminalising other behaviour driven by the charm of deterrence. One hopes, that a little more thought would go into imposing jail terms for certain acts in the future.

A Lost Cause?

As a student, I became an admirer of Professor Andrew Ashworth, and his contribution to the jurisprudence of criminal law. The most recent edition of "Principles of Criminal Law" (available here) remains one of my more valuable possessions. The importance of a principled approach to studying the criminal law becomes apparent when one compares the current stock of publications on criminal law in India. The commentaries restrict themselves to providing a horde of citations without shedding any light on the principled debates that cases evoke.

But this entry is not a paean to a book, but rather considers a thought-provoking essay by Professor Ashworth titled "Is Criminal Law a Lost Cause" [(2000) 116 Law Quarterly Review 225]. The essay uses the turn of the century to consider the development of criminal law in England over the years. Cornerstones of criminal law, such as the concept of mens rea or a culpable mental state, appeared to have diluted over time. This was replaced by a regime of 'strict-liability' offences, which did not require any proof of guilt, but merely proof of certain acts/omissions having occurred in order to impose criminal liability. The vast range of situations that involved criminal liability surprised and dismayed Professor Ashworth, for this went completely against another settled view that the criminal law was always a means of last resort in society. Poignantly, he asks therefore is the criminal law a lost cause?

One of the reasons I appreciate the article is because of its relevance to what is happening in India today. The development of criminal law since independence makes one think that the article may have been written keeping India in mind! Successive government have only been too willing in employing criminal sanctions to deal with any problem. Cheque bouncing is an issue? Make it a crime [Section 138, Negotiable Instruments Act 1881]. The Internet needs regulation? Make anything we consider offensive an offence [Section 66-A, Information Technology Act 2000]. People are obstructing doors of a moving Metro Train? Threaten them with jail for upto four years [Section 67, Delhi Metro (Operation and Maintenance) Act 2002]. The last two, mind you, are non-bailable and cognizable - which basically means you can be arrested without warrant and denied bail.

Similarly, the mushrooming of strict liability has taken it far beyond the traditional realm of socio-economic offences with small punishments. There is nothing quasi-criminal about strict liability today. The State has either proceeded to eliminate requirements of mens rea altogether [e.g. Section 54, Narcotics Drugs & Psychotropic Substances Act, 1985], or proceeded to place the burden upon the Accused to show that such a culpable mental state did not exist [e.g. Section 35, NDPS Act, Section 24, Prevention of Money Laundering Act, 2002, Section 304-B, IPC].  Professor Ashworth is therefore certainly bound to agree that criminal law in India is a lost cause, or thereabout.

The other reason I appreciate the essay, is because it raises highly important questions of the fundamental values of the criminal law as we know it. Sure, mens rea and the presumption of innocence are being eroded. But are they so central to the criminal law that we must lose hope and question its purpose? These changes also raise questions regarding the place of criminal law in society. Could it be that penal sanctions are not viewed as severely as they were 30 years ago, making criminal law is viewed today as just another tool to modify behaviour. This is especially pertinent in systems like India where the judicial backlog is great thereby postponing the imposition of any punishment.

The fact that obstructing train doors is a more serious offence than Theft [punishable for a maximum of 3 years under Section 379, IPC] and can lead to arrest is nothing short of ridiculous. Maybe, this comes to the attention of the Law Commission while it finishes its task of weeding out the obsolete laws placguing India today.

Occupying Vacant Spaces

The current academic environment in India has led to the emergence of a rather gaping hole when it comes to writing about the criminal law. Law reviews in India are either concerned with publishing work by foreign authors, or providing critical comparative essays that have a foreign element. Practical legal writing seems to have become passe, and something relegated to the blogosphere.

This addition to that sphere wishes to engage more people in the criminal law of India. There are no internal limits which I am imposing for the writing in this space. Everything and anything related to the Title of the blog is important, obviously including writing on the very nature of an offence. 

This blog not only tries to serve an informative purpose, but is also a space where I can discuss arguments and ideas that I come across or develop during the course of my work as a practicing Advocate in Delhi, specialising in criminal defence work. So yes, my selfish motives nicely balance the purported acts of altruism on my part.

I do hope that this blog does not die out soon, unless taken down :)