Monday, August 29, 2016

Balveer Singh vs. Rajasthan and Ad-Hoc Criminal Procedure

The Supreme Court has a problematic legacy of providing ad-hoc criminal procedure, divorced from the text of the rather meticulous Criminal Procedure Code 1973 [Cr.P.C.]. A new chapter in this legacy is the decision by a Division Bench in Balveer Singh & Anr. v. State of Rajasthan & Anr. [Crl. Appeal No. 253 of 2016, decided on 10.05.2016]. 

The facts are not exactly straightforward. The police investigated a woman's death and filed a charge-sheet alleging offences under Section 306 IPC [abetment of suicide] against her husband. The father of the deceased filed an application before the Magistrate seeking that cognizance of offences under Section 304-B [dowry death] and 498-A IPC [cruelty to wife] be taken against the deceased woman's husband and her in-laws. The Magistrate heard the complainant and proposed accused, and dismissed the application. The case was committed to the Sessions Court [Section 306 is only triable by a Court of Session]. The same application was filed before the Sessions Court, which allowed it and took cognizance of the additional offences. The aggrieved parties went to the High Court which directed the Sessions Court to decide the application afresh by hearing both sides. This led to the same conclusion, and the matter finally went to the Supreme Court which dismissed the appeal.

What is special about this decision? Three aspects are highlighted: 

1. The Interplay between Sections 190 and 193 Cr.P.C. 
The Supreme Court discussed the law on cognizance in respect of committal proceedings, i.e. the interplay between Sections 190 and 193 Cr.P.C. This meant engaging with a controversial recent Constitution Bench decision in Dharam Pal v. State of Haryana [(2014) 3 SCC 306]. The Court in Balveer Singh reiterated the basic truths such as cognizance is taken of offences and not offenders, is only taken once, and a Magistrate can take cognizance of offences exclusively triable by a Sessions Court. So, logically, if a Magistrate takes cognizance in these cases, then a Sessions Court will not be taking cognizance again. But how to decide whether or not the Magistrate took cognizance? This required an analysis of the process of committal.

2. 'Active' vs. 'Passive' Roles of the Magistrate at Committal
Sessions Courts cannot take cognizance of offences as courts of original jurisdiction under Section 193 Cr.P.C. Cases must be 'committed' to these courts, and this process is called Committal. It involves a completion of various formalities - securing presence of the accused, providing copies of documents etc. - before the case is sent to the Sessions Court for trial. Committal was very elaborate in the old Cr.P.C. of 1898 with evidence and arguments before the Magistrate. But the process was drastically streamlined in the 1973 Code to reduce delays. One would think that this points to a clear legislative intent of reducing the role of a Magistrate. However, over time, there naturally emerged some confusion as to how reduced the role was to be. 

Today, with Balveer Singh, we see a revision of that role with the Supreme Court discussing whether the Magistrate plays an 'Active' or 'Passive' role during Committal. I say revision, because the Constitution Bench in Dharam Pal seemed to suggest that the Magistrate could only be playing a passive role. The significance of this debate will be interesting to see. In Balveer Singh the Court held the Magistrate played an 'Active' role and took cognizance before committing the case. So could answering whether cognizance is taken by the Magistrate depend upon the 'Active' or 'Passive' role during Committal? This is critical, especially since the Supreme Court last year created a concept of 'real' cognizance in S.R. Sukumar [commented upon earlier in a longer post on cognizance].

3. Implied Approval of Ad-Hoc Criminal Procedure
One of the reasons why the Supreme Court concluded the Magistrate played an 'Active' role was because both sides were heard on the application filed by the father of the deceased. While there may be some basis in law to support the application [the judicially created concept of 'Protest Petitions'], to my mind there is nothing in law supporting the Magistrate giving the proposed accused a right to be heard. Yet, we find the Supreme Court gives a clear stamp of approval to this illegality and allow various potentially interested persons a right of hearing at the preliminary stage of cognizance thus further delaying proceedings. All this when cognizance was probably never meant to be a stage for any great discussion or argument!

What's more, the Court further supports such ad-hoc procedural innovation by way of its conclusion. One would think that since the Court concludes that cognizance can only be taken once, and it held here that the Magistrate took cognizance, then the entire process before the Sessions Court would be held illegal. In a not-so-brilliant sleight of hand, the Court upholds the process before the Sessions Court by holding it to have been an exercise of revisional jurisdiction under Section 397 Cr.P.C. as orders refusing cognizance are revisable. The small problem of there being no revision petition is taken care of by reminding us that these powers under Section 397 Cr.P.C. can be exercised suo motu But surely this still needs the Sessions Court to state that it was exercising this jurisdiction. Or, perhaps, Articles 141 and 142 can now be read as empowering the Supreme Court with the power to impregnate lower court orders with any logic necessary to protect them from legal challenge.

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