Tuesday, May 24, 2022

Notes from History: On the Arms (Amendment) Act of 1988

Between 1985 and 1990, the deteriorating law and order situation in Punjab was an ever-present source of concern at the centre, becoming the source of various ordinances and statutes. One of these was the Arms (Amendment) Ordinance, passed on 27.05.1988, which sought to curb the use of unlicensed firearms (amongst other things) by raising the possible punishments for such activities. To have maximum deterrent effect, the Ordinance prescribed a mandatory death sentence where the use of unlicensed firearms or ammunition resulted in the death of any other person. 

There is only one catch here. In no uncertain terms, the Supreme Court had declared provisions carrying a mandatory death sentence unconstitutional five years prior to this Ordinance. This was not an unreported consent order, but by a reported decision of a Constitution Bench in a batch of petitions including Mithu v. State of Punjab [AIR 1983 SC 473 ("Mithu")]. For me, this makes the Arms (Amendment) Ordinance a unique piece of legislation, and its history worth sharing.

From Ordinance to Act

The Ordinance was promulgated on 27.05.1988, and before it could lapse the government, through the then Minister of State for Home Affairs Mr. P. Chidamabaram, moved a Bill in the Lok Sabha seeking to amend the Arms Act 1959 in line with the Ordinance. Introducing the Bill for discussion on 08.08.1988, [Page 300 onwards] he emphasised the "rising trend of violence and terrorism by extremists and anti-national elements in various parts of the country" as necessitating this Bill which also provided for capital punishment to achieve a "deterrent punishment for various offences". 

The provision which sought to introduce capital punishment, Section 27(3) of the Act, was criticised by some members on grounds of removing all elements of causation from criminal law. They argued that the offence created strict liability holding persons responsible for using illegal firearms which result in death, without there being any intention to cause death. In response, while closing the debate on 09.08.1988 [page 542 onwards], Mr. Chidambaram did not engage with this criticism, but justified the amendments as incorporated a measure of proportionality as it brought about a graded scheme where mere use of illegal arms attracted a less severe sentence than cases where such use resulted in death.  

Reading the debates, the absence of any reference to Mithu and the legality of a mandatory death sentence is galling. Remember, this was not an unreported order, but a reported judgment, which clearly indicated that Section 27(3) would be unconstitutional but which Parliament in its great wisdom merrily ignored. A reference to Mithu would have also advised Parliament about how the mystical deterrent effect it sought to achieve was a mirage and could not have guided its decision behind introducing the death sentence, let alone a mandatory death sentence. However, this was not to be. The Bill was passed by both Houses and the Arms (Amendment) Act received the President's signature on 01.09.1988 as Act No. 42 of 1988 [Page 439], with Section 27(3) carrying its mandatory death sentence. 

From Act to being Struck Down Striking

Around five years after the amendment was brought into force, on 11.04.1993 a CRPF Constable Dalbir Singh, posted at Amritsar, was brought by his Battalion Havaldar Major before the Deputy Commandant to be reprimanded. Dalbir Singh seemingly left the room after being reprimanded, but almost immediately thereafter bullets began raining down on the Deputy Commandant's room from outside. It was stated later that Dalbir Singh had been firing the rounds, and the situation was brought under control only after he was overpowered by two men. 

The Havaldar Major died from the bullet injuries he sustained, and a case under Sections 302 of the Penal Code and 27(3) of the Arms Act was lodged against Dalbir Singh. Being convicted by the Trial Court and sentenced to death in 1996, his conviction was overturned by the High Court in its order of July 2005 due to some glaring inconsistencies in the prosecution case. This order was then challenged by the State of Punjab before the Supreme Court, where special leave was granted in 2006 itself but the matter then went into cold storage for a number of years, only to suddenly come back to life in 2010. A different bench was convinced there was no reason to interfere with the acquittal, but it was taken with a submission by the accused that Section 27(3) deserved to be struck down as unconstitutional.

The matter came to be heard regularly thereafter. What exactly was argued is not recorded in the daily orders, but I wonder if counsels also raised the tale of Section 31-A of the Narcotic Drugs and Psychotropic Substances Act 1988, which came on the Statute Book a year later than Section 27(3) of the Arms Act. Section 31-A prescribed a mandatory death sentence for the repeat offenders in some cases, chasing that same mirage of deterrence and, again, clearly contrary to the holding in Mithu. Its scope was narrowed down in 2001, but nevertheless, it retained the clause with a mandatory death sentence. While Dalbir Singh's case was before the Supreme Court, petitions came to be filed before the Bombay High Court challenging Section 31-A of the NDPS Act, which were decided by the Court on 16.06.2011 in Indian Harm Reduction Network [2011 SCC OnLine Com 715]. Section 31-A was read down by the Court as not prescribing a mandatory death term (similar to how the Supreme Court had also read down another clause of the 1989 NDPS amendments, Section 32-A almost a decade prior), but it was not struck down, and in 2014 it came to be amended to statutorily remove for the mandatory nature of the death sentence.  

What is recorded, however, is that during the course of arguments the Union Government made a request for the Court to not decide the issue as it was actively reconsidering the legality of Section 27(3). It was even mentioned before the Court that the Home Minister—none other than the progenitor of the clause, Mr. P. Chidambaram—had sought to introduce the Arms (Amendment) Bill 2011, amending Section 27(3) with retrospective effect to remove the mandatory nature of the death sentence. This concession was not accepted by the Court, citing its oath to enforce the Constitution, and in State of Punjab v. Dalbir Singh [(2012) 3 SCC 346, decided on 01.02.2012] it struck down Section 27(3) of the Arms Act. 

It was not only  because of what Mithu had held four decades years ago, or that the global consensus around mandatory death sentence clauses had shifted over time, but also because of the unnervingly broad nature of the clause as well. Vindicating the stand of those who opposed the amendment, the Court held that prescribing a death sentence where 'use' of prohibited arms 'results' in death had cast the net far too broadly, and went contrary to Article 21 of the Constitution.

From Unconstitutionality to Revival

Section 27 was not removed from the Statute Book after Dalbir Singh. Despite the judgment, the Arms (Amendment) Bill continued to be considered, going first before a Standing Committee which in its report of March 2012 suggested sending the matter to the Law Commission (which did not author any report)It was only in 2019 (by a different government) that, much like Section 31-A of the NDPS Act, Section 27 of the Arms Act came to be amended to bring the provision at par with other clauses and a choice was given to courts to impose either life imprisonment or the death sentence. 

History repeated itself, though, as again Parliament proceeded with its agenda [page 204 onwards] merrily ignoring what the Court had held in Dalbir Singh, like it had done before with Mithu. Section 27(3) had not been declared unconstitutional merely because it prescribed a mandatory death sentence, but also because of the over-broad and vague language of the clause itself. Yet, no changes were made to adopt these concerns and narrowly tailor the statute. This time around, even those opposing the Bill stayed mute on this issue. 

No challenge appears to have been made to the validity of the amended clause yet. But surely, the findings of the Court in Dalbir Singh that Section 27(3) is too vague for criminalising the 'use' of firearms to 'result' in death, as this framing carries within it many scenarios where innocent persons may be wrongly prosecuted, will carry some heft before a court.

Conclusion — No Lessons Learnt?

Parliament acted with impunity in 1988 while first amending Section 27(3) of the Arms Act, which was not some anodyne issue but in respect of prescribing a mandatory death sentence. If the State of Punjab would have chosen not to challenge Dalbir Singh's acquittal in 2006, a patently unconstitutional law would have continued to prosecute who knows how many more people. Fortuity, in how the case came to be and then how a bench took interest in the plea of unconstitutionality, rather than deliberate course correction, brought down the amended Section 27(3) in 2012. Only for it to return in 2019 with cosmetic changes, once again in defiance of a judicial decision. It seems no lessons were learnt.

The story of Section 27(3) is much like that sordid tale of Section 66-A of the Information Technology Act living a glorious afterlife after being struck down by the Supreme Court in Shreya Singhal [(2015) 5 SCC 1]. But in some respects it is even worse. Section 66-A continues to be used despite being struck down, while the amended Section 27(3) was unconstitutional since its very inception. The issue of securing compliance is not only a fight between the different branches of government, but one which occurs intra branch as well. No clearer example can be found than the continuing saga of courts not complying with the guidelines set out by a Constitution Bench in Bachan Singh [AIR 1980 SC 898] and Machhi Singh [AIR 1983 SC 957] to consider mitigating circumstances while imposing a death sentence. As recently as on 20.05.2022, a Three Justices' Bench of the Supreme Court expressed its anguish at this state of affairs, passing fresh guidelines to ensure compliance with its own decisions.

To think of the numerous persons who spent time on death row due to a charge under Section 27(3) or due to improper compliance with Bachan Singh is a grim prospect, but it is necessary, and must bring us to have important conversations regarding accountability for such grave errors by the state. Sure, we should work towards removing opportunities for such lapses, but such instances of wilful blindness (or deliberate malice) cannot be excused with a shrug of the shoulders. After all, can there be a graver insult to the right to life than being prosecuted and punished by an avowedly unconstitutional process?

Wednesday, April 27, 2022

Guest Post — Conspiracy in times of the Raj (Part III)

(This is a guest post by Madhav Aggarwal, and the third in a series of posts on conspiracy)

The previous post on this blog covered the birth of the substantive offence of Conspiracy in the aftermath of the Delhi Conspiracy Case. This post will focus on the life of the substantive offence of conspiracy in Pre-Independent India. 

The insertion of Section 120B in the Indian Penal Code 1860 through Criminal Law (Amendment) Act 1913 marked the second departure from Macaulay’s stance on criminalising conspiracies only as a form of abetment. The singing reason for the insertion of Conspiracy as a substantive offence was to ensure that “dangerous conspiracies” like the assassination attempt on the Viceroy are nipped in the bud much before they are executed. Purportedly, it was the inadequacy of Indian law and not the failure of the police to detect these crimes that interventions before the execution of the conspiracies could not be made.

Though, a look at the actual operation of the law would debunk this reasoning. I was able to review most of the reported judgments from High Courts and Chief Commissioners Courts for this period and it appears that the insertion of the clause was not working to forestall serious conspiracies from occurring. Perhaps the only big conspiracy case before commission of the dacoity or bomb-throwing was the Meerut Conspiracy Case [S.H. Jhabwala v. Emperor (1933)], where an array of accused persons were charged as having conspired to overthrow the British Government solely due to their involvement (formal as well as informal) with Communist parties of India or Great Britain. But it may be argued that even the Meerut Conspiracy Case cannot be seen as an example of Section 120-B working as intended, because firstly the accused persons had given various inflammatory speeches, and secondly the accused were not charged with S. 120-B at all but with the offence under Section 121-A of the Penal Code, that initial departure from Macaulay’s scheme. 

Submerging Section 107 within Section 120-A?
While we are aware of the stated reasons for the introduction of Section 120A and Section 120B, it remains unexplained why the legislature chose to retain Section 107. Even a plain reading of the bare act is sufficient to grasp how Conspiracy under Sections 120A 120B is unduly wide and completely engulfs abetment by conspiracy under Section 107 in its scope. 

Firstly, Section 120A provides an extended definition of criminal conspiracy covering acts which do not amount to abetment by conspiracy within the meaning of Section 107. It does away with the need for any overt act as long as the conspiracy involves an agreement to commit an offence as is required by Section 107. Then, Section 120B makes them punishable in the same manner as if they had been abetted (albeit only if the offence conspired to be committed was punishable with at least 2 years of imprisonment). Secondly, Section 120A also brings within its scope criminal conspiracies other than criminal conspiracies to commit offences, which would not have amounted to abetment. 

Conspiracy OR Abetment by Conspiracy?
So if a conspiracy under Section 120B is sought to be proved through overt acts besides the agreement, would it not mean that it amounted to conspiracy by abetment also because an overt act did follow? What decides whether a charge under Section 120B should be framed or Section 109

In the initial period, there were attempts to curtail the application of Section 120B by contending that use of the words “where no express provision is made in this Code for the punishment of such a conspiracy” in that clause imply that abetment by conspiracy should be resorted to when applicable. The Courts rejected this interpretation on the basis that the words used in Section 120B refer to Section 121A instead of abetment by conspiracy and concluded that it was optional for the prosecution to proceed under either. [Udhasing Tahilsing v. Emperor, 1916 SCC OnLine Sind JC 11; Kishanchand v. Emperor, 1925 SCC OnLine Sind JC 49].

Soon however, the position of law seemed to drift against this understanding. Courts started considering it appropriate to utilize conspiracy by abetment instead of Section 120B when some offence in pursuance of the conspiracy had taken place. [Jugeshwar Singh v. King Emperior (1935), Mallimoggala Venkataramiah (1937), Satyanarayana v. King-Emperor, (1943)]. 

Conspiracy to commit AND the offence committed?
Let’s now address the foundational question of the appropriateness of charge under Section 120B together with the charge of the offence conspired to be committed. The legal position in this respect remained in turmoil just as the political position of the country. 

As discussed before, one line of authorities endorsed the view that if the commission of some offence has taken place, the proper charge would be abetment by conspiracy and the offence committed instead of Section 120B. [Jugeshwar Singh (1935), Mallimoggala Venkataramiah (1937)]

The other line of authorities laid down that the accused can be separately punished for the offence under Section 120B because of it being a substantive offence. [Bala Huddar v. Emperor, 1931 SCC OnLine MP 3Hazari Beria v. Emperor, 1928 SCC OnLine Oudh CC 172; Emperor v. Karamalli Gulamalli (1938)]

A separate, and might I add legally untenable, view was adopted by the Lahore High Court. It endorsed charging with only the commission of the offence on the basis of “shortness of time” between the hatching of a conspiracy and commission of the crime. [Punjab Singh v. Crown, 1933 SCC OnLine Lah 436Ismail v. Emperor, 1946 SCC OnLine Lah 52]

S. 196-A: A buckler?
A definitive distinction between abetment by conspiracy and Section 120B was that the rigour of Section 196-A in the Criminal Procedure Code 1898 (CrPC) didn’t apply to abetment by conspiracy. The Criminal (Amendment) Ordinance, 1913 had also introduced Section 196-A in CrPC apart from the changes introduced in the Penal Code. The stated purpose was to “provide a safeguard against the vexatious prosecution for criminal conspiracy” with its application expressly limited to Section 120B. It provided for two classes of cases. First, where the object of the conspiracy is to commit an illegal act other than a statutory offence or a legal act by illegal means, the complaint must be made under the authority of the state. Second, where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishable with death, transportation or rigorous imprisonment for a term of two years or upwards, a sanction was required. This meant that it couldn’t ensnare anything more than petty conspiracies. 

As can be evinced, the requirement of sanction under Section 196-A in CrPC depended on the object of the conspiracy and not on the offences that may have been committed in pursuance of it. This made it quite simple to sidestep the requirement. Consider this — Even if forgery (non-cognizable offence requiring sanction) was committed in pursuance of a conspiracy, it could be alleged that the object of the conspiracy was to commit criminal breach of trust (cognizable offence not requiring sanction).

The position of law with respect to validity of a trial initiated without a sanction under Section 196-A in CrPC also remained unsettled. There was a line of cases that regarded it merely as a ‘technical defect’ and endorsed that a trial initiated without sanction that ends in conviction should be upheld. [Abdul Rahman v. Emperor (1935)] And that if no objection was taken at the stage of inquiry or trial, a trial cannot be held to be illegal for want of sanction. [Hanif v. Emperor (1932)]. 

On the other hand, there was another line of cases which held that a sanction to prosecute for criminal conspiracy, given after the filing of the complaint, does not fulfil the requirements of Section 196-A in CrPC and that a conviction for criminal conspiracy should be set aside in the absence of proof that prior sanction to initiate the proceedings had been obtained [P. Varadarajulu Naidu v. Public Prosecutor (1918) following Barindra Kumar Ghose (1909)].

“Prosecutor’s Darling” for a reason
Dire warnings of some like Mr. Vijayraghavachariar soon came true and Section 120B acquired a bad reputation. The Calcutta High Court would use the epithet “much misused provision” for it. [Ram Gobinda Ghose v. Emperor (1938)]. It wasn’t just the wide definition clause that made Section 120B prone to misuse but also the procedural advantages that it allowed the prosecution. Firstly, it eased requirements of the preciseness of charges. Secondly, it allowed numerous accused to be tried on a multiplicity of charges. Thirdly, it provided a relaxation in the rules governing evidence. 

The Precision of the charge
The purpose of framing charges is to inform the accused what the prosecution intends to prove against her. From early on, these requirements for the sufficiency of charge for conspiracy were watered down by the Courts. It was held not necessary to state the object of the conspiracy with the same degree of certainty as is required in the charge for the offence sought to be committed [Amrita Lal Hazra (1915)].

Further, it was held that it is unnecessary to specify the date of commencement of conspiracy. [Balmokand v. Emperor, 1915 SCC OnLine Lah 43], or to specify all the persons involved in a conspiracy. And though a conspiracy may be sought to be proved through overt acts committed in pursuance of it, setting them out in the charge was just “surplusage”. [Kishanchand v. Emperor, 1925 SCC OnLine Sind JC 49

Numerous charges, Numerous Accused, Numerous advantages
Allegations of conspiracy make it possible to try numerous accused for disparate offences only connected by the common link of conspiracy. The fundamental rule that each offence must be a separate charge and each charge must have a separate trial is laid down by Section 233 of CrPC. Sections 235 CrPC and 239 CrPC allow exceptions to this rule. Section 235 CrPC permits charging with every such offence which is so connected together to form the same transaction. Further, Section 239(1) CrPC allows persons accused of same or different offences forming the same transaction to be tried together or separately, as the court deems fit. 

This categorization of conspiracy as a “transaction” enabled the Court to try the offence of conspiracy and all the offences committed in pursuance of it together. The breadth of this stance is made apparent by this statement in Gopal Raghunath v. Emperor (1928):

it was the working, the fruits and the result of the alleged conspiracy and if so, the separate act done by any of the conspirators in pursuance of that conspiracy could be joined in the same trial.

The legality of this joinder of persons and charges depended on the accusations and not on the eventual result of the trial. Even an eventual failure to establish conspiracy could not vitiate the trial. The prosecution could easily invent theories of a conspiracy for their purpose.

Just at the turn of the century in Subrahmania Iyer v. King Emperor (1901), the Privy Council had disagreed with the similar reasoning advanced in respect of abetment by conspiracy that the conspiracy and all subsequent offences constituted a series of acts forming part of the same transaction. However, this case soon came to be distinguished on the basis that it pre-dated the introduction of the substantive offence of conspiracy by Calcutta High Court in Abdul Salim (1921) engaged in trying 37 charges together. Later, the Calcutta High Court in Giridhari Lal v. Emperor, 1936 SCC OnLine Cal 142, would express unease about distinguishing Subrahmania Iyer solely on this basis. It observed that a judicial committee may soon have to be asked to give an authoritative ruling to lay down the permissible procedure in framing charges with respect to Section 120B. Still, the position of law remained that all persons accused of a single conspiracy could be tried together for disparate acts done in the pursuance of a conspiracy. 

The Section 10 Concession
The old shibboleth goes — “direct proof can scarcely be afforded of a conspiracy”. Since direct proof of an agreement may be difficult to present, a conspiracy is often sought to be established by proof of other circumstances suggesting its existence. These circumstances are burnished by the ability to use evidence of out-of-court statements made by others which, in other cases, would have been inadmissible. 

The provision permitting this is Section 10 Indian Evidence Act 1872 (IEA), which provides that anything said, done or written by any conspirator in reference (not necessarily in furtherance) to their common intention since the intention of conspiracy was first entertained is relevant against each co-conspirator. It could be used for the purpose of proving the existence of a conspiracy as well as for the purpose of showing that any person was a party to it. 

In Amrita Lal Hazra (1915), the defence flagged the concern that the prosecution might indiscriminately charge persons to let their evidence in under Section 10 IEA. The Court dismissed the concern remarking that the defence may insist upon strict adherence to the provision.

Section 10 IEA is even wider than the English counterpart. Recourse to the illustration appended to this section will make its overreaching scope clear.

The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.

Unless the act of B in Europe bears some reference to A in Calcutta, how can it assist in proving A’s complicity? Finding it hard to rationalize the illustration, the Lahore High Court in Balmokand took a circumspect view. It remarked that the “technical relevancy” of a fact under Section 10 IEA wouldn’t amount to much if the fact is insufficient by itself for proving the complicity of the co-accused.

All that was required to open the floodgates of evidence under Section 10 IEA was “reasonable grounds” to believe that the conspiracy existed between such persons. What if the evidence received during the trial displaces this reasonable ground of belief in the existence of Conspiracy? The Privy Council in HHB Gill (1948) confirmed that the Court must later reject the evidence then. But can you really unring the bell?

It will be decades before some of these conflicting positions would be resolved. Some of these issues will even crop up before the Law Commission of (Independent) India. But this should at least explain what made the charge of Section 120B so expedient for the colonial law enforcement to use. Soon, Section 120B will enter the service of the Republic of India which will be covered in the next post.

Tuesday, April 19, 2022

Victims and Bail — The Judgment in Jagjeet Singh v. Ashish Mishra

In a much-publicised judgment, the Supreme Court set aside the order granting bail to the main accused in the Lakhimpur Kheri incident from October 2021 [Jagjeet Singh & Ors. v. Ashish Mishra & Anr., Crl. Appeal 632 of 2022 (decided on 18.04.2022) ("Ashish Mishra")]. At the outset, it would be necessary to clarify that the court has not cancelled bail, but set aside the order granting bail as it was found contrary to law (see, here, for the difference). As a result, the case has been sent back to the Allahabad High Court for reconsideration (with a relatively generous timeline to deliver a verdict within three months), and the accused has been directed to surrender within a week.

A primary reason for the Supreme Court to set aside the order was the High Court's failure to honour the victims' rights to participate in the hearing. The victims had been present for the online hearing before the High Court but could not participate due to technical woes. They had preferred an application seeking re-hearing, citing this reason, which was rejected by the High Court. Thus, it was argued before the Supreme Court that (i) victims had a legal right to be heard at the bail stage, and (ii) the impugned order was passed in contravention of this right. This contention was addressed cumulatively in favour of the appellants in "Section A" of the judgment in Ashish Mishra, and it is the primary focus of this post.

The Holding
The Court has held that a victim (as defined under the Criminal Procedure Code, 1973) "has a legally vested right to be heard at every step post the occurrence of the offence. Such a 'victim' has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision." (Para 24) 

The logic behind the holding is expressed in the next paragraph (Para 25), where the Court notes that, first, "Indian jurisprudence is constantly evolving, whereby, the right of victims to be heard, especially in cases involving heinous crimes, is increasingly being acknowledged". And, second, it was necessary to extend this to the stage of bail as it would result cause miscarriage of justice. 

Is it a good idea for Bail?
As mentioned above, the Court notes that denying victims a right to participate in the bail stage will result in a grave miscarriage of justice. Given that bail hearings in India are peculiar and do not compare well with, say, the USA or Canada or South Australia for that matter, it is necessary to think a little more about this claim. 

Traditionally, one of the key considerations for bail is the threat to a victim's safety. The foreign jurisdictions which the Ashish Mishra judgment relies upon welcomed victim participation at even the bail stage to allay all concerns about this specific issue regarding a threat to their safety. In some contexts, victims do not have a right to get a full hearing but to file affidavits to ensure that no relevant information is left out for the court.

The problem is that in India, bail hearings tend to focus a lot more on the merits of the case than anything else. Allowing for a third party to step in and address the court might end up repeating a lot of submissions and extend the already lengthy timelines that bail hearings suffer from. So while in the abstract victim participation is a good idea, a lot depends on how courts regulate the process to ensure that no side can hold the process hostage. 

How will this work in Practice?
The problem with the pronouncements of the highest court has often been that the view from the top often renders ground-level problems too mundane to notice and come in the way of grand statements. It's very nice to say that all victims have a right to participate, but what does it mean in reality? Will an accused person have to always implead victims in bail applications now? Will courts have to wait for bail even in bailable cases before getting the perspective of a victim? Will the victim be entitled to a copy of the chargesheet even when the police is not closing the case? These are only some of the very real problems of execution that follow from the Court's grand pronouncement in Ashish Mishra.

It is precisely because of this reason that extending participatory rights meaningfully within the criminal process ought to be a process which has active legislative cooperation. That the Court itself notes instances from India and also foreign jurisdictions where victims' rights have been recognised through statutes. If the Court felt it was necessary to recognise this principle, nothing stopped it from recommending the matter to the legislature for consideration. Or, on the other hand, if the Court was serious, then nothing also stopped it from taking the issue to its logical conclusion and charting out the specifics (as it has done in the sphere of witness protection). 

The Court did neither, which basically leaves this grand pronouncement subject to interpretation by the lower courts. Critical in this process might be one specific sentence in Paragraph 25 where the court notes that "where victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing" (Emphasis supplied). Practicing lawyers know that many courts already allow victims to be heard at the bail stage when they enter an appearance. Thus, the Court may well be seen as having gone little beyond affirming the status quo

Yet more rights without remedies?
Return to the manner in which the Court characterised the issue on victim participation at the bail stage — victims have a right to be heard at bail, and this right was violated by the High Court. There is an obvious follow-up question which is stark in its absence from the judgment — so what if this right was violated

The judgment in Ashish Mishra is, then, the latest chapter in the Supreme Court's remarkable tendency to create rights without remedies within the criminal procedure context (see, here, for a longer discussion on the theme). What makes a right meaningful is the remedy that ensues, but besides being "constrained to express our disappointment" with how the High Court dealt with the victim's right to participate, there is literally no discussion on what legal consequences shall result in such circumstances henceforth and thus no guidance to either litigants or courts on how shall such problems be dealt with in the future.

If anything, the observation in Paragraph 25 extracted above suggests that this so-called right is little more than a token for those having the wherewithal to participate in the process. By placing the onus on victims to seek participation and thereby get an audience, the Court offers a path which is, in fact, diametrically opposite to the statutory schemes referred to within the judgment, where the entire idea is to invite the victim to participate by giving adequate notice (such as the amendment to Section 439 of the Code giving victims of sexual offences adequate notice).  

The lesson perhaps is that if you are a victim who has the ability to participate in the process, the judgment in Ashish Mishra has rubber-stamped your ability to do so by calling it a right. If you are not so lucky, then perhaps it is best to not get your hopes up.

Friday, April 8, 2022

Errantry — Further thoughts on the new Criminal Procedure (Identification) Act

As expected (mostly), parliament passed the Criminal Procedure (Identification) Bill 2022 in double quick time without referring the bill to a committee. It is disheartening, given the obvious flaws that are present in the Bill, but in an environment where courts are unable to hear matters pertaining to important matters of constitutional law (Electoral bonds, anyone?), the threat of a potentially adverse court ruling is pretty low for any legislature to be incentivised to bring the statute in line with the law.

This development is likely to result in states taking steps to pass statutes and rules at their level, as was the case with the regime under the Identification of Prisoners Act 1920—either by way of separate statutes or by specific amendments to the central law. It will probably pan out over the next few months, and it is only then that a clearer picture will emerge. States will probably simply copy out the new central law and re-promulgate their old rules (or not do that and simply continue with the old ones). 

At the same time, there is still that slim chance that some states decide to take the road less travelled and pass laws and rules which offer more robust protection than what the central law has ordained (Yes, it is the hope that kills us). 

Keeping this in mind, I just wanted to plug links here to different state laws and rules for people to see and consider while thinking about the new regime. Some of these are:

  • Rajasthan passed a separate Act in 1956
  • Andhra Pradesh (and post bifurcation, Telangana)
  • Kerala passed a separate Act in 1963
  • Madhya Pradesh passed Rules in 1967
  • Maharashtra and Gujarat had made amendments to the central act which were favourably discussed in the 1980 Law Commission Report
  • Tamil Nadu amended the Identification of Prisoners Act in 2010. The scope was to expand the definition of measurements—a criticism of the old law which was also used to pass the new Act.
  • Special attention must be paid to the 2021 amendment by Karnataka to the Identification of Prisoners Act as it was applicable to that state. It is surprisingly similar in its terms — with some obvious differences — and it would be helpful to see how this new regime fared in the months prior to the 2022 Bill being rushed through parliament.

These are only for some states which I could find without too much effort, and I would urge others to contribute to help make this a more comprehensive list. This is in the sincere thought that considering what was in store before the 2022 Act might help to determine how best to face the challenges that this new piece of legislation has brought forward.

Saturday, March 19, 2022

Guest Post: A Peculiar Problem Posed by the J&K Reorganisation?

(This is a guest post by Aman Saraf)

The legal framework regulating Jammu and Kashmir can in recent terms be adequately referred to as protean and erratic – and for good reason. Post the Constitutional Order 273 passed by the President declaring that Article 370 of the Constitution of India ceased to be operative (barring the applicability of the Constitutional provisions to Jammu and Kashmir), most extant laws of India began to apply to Jammu and Kashmir. 

This was followed by the Jammu and Kashmir Reorganization Act, 2019 (“the Act”), converting the State of Jammu and Kashmir into two union territories – Union Territory of Jammu and Kashmir and the Union Territory of Ladakh. The entire body of law applying to these two territories was transformed by Section 95 of the Act read with the Fifth Schedule, that provided that “(1) All Central laws in Table-1 of the Fifth Schedule to this Act, on and from the appointed day, shall apply in the manner as provided therein, to the Union territory of Jammu and Kashmir and Union territory of Ladakh.

The Problem
Prior to the enactment of the Act, Jammu and Kashmir had its version of the Indian Penal Code (“IPC”), referred to as the ‘Ranbir Penal Code’. However, the Fifth Schedule repealed the Ranbir Penal Code and sought to apply the IPC by amending it to the extent of omitting the words “except the State of Jammu and Kashmir” in Section 1 of the IPC. Therefore, the amended Section 1 of the IPC now stands as “This Act shall be called the Indian Penal Code, and shall extend to the whole of India.” The Parliament deemed this omission to be appropriate to bring Jammu and Kashmir within the folds of the IPC.

Interestingly, though, the Act did not amend Section 18 of the IPC — whether by error, or design, is anyone’s guess. Section 18 defines ‘India’ and retains the definition prior to the 2019 changes — “India” means the territory of India excluding the State of Jammu and Kashmir. Thus, India as per IPC continues to exclude Jammu and Kashmir, irrespective of the amendment to Section 1.

In my opinion, the omission of amending this Section, while may be construed as hyper-technical, can have serious and far-reaching implications to the maintenance of law and order in Jammu and Kashmir. Of course, post the Act coming into force, ‘Jammu and Kashmir’ would now only mean the Union Territory of ‘Jammu and Kashmir’, as the State of Jammu and Kashmir no longer exists. Interpreting the provision in any other light would lead to an absurdity, as according to me, the intention of the legislature is not clear in the present scenario, as is set out below.

Repercussions and Consequences
Section 2 of the IPC states that every person would be liable for punishment under the IPC for every act for which he would be guilty within India. Keeping in mind the definition of India as displayed in Section 18, the territorial application of the IPC would continue to actively exclude Jammu and Kashmir from its intra-territorial jurisdiction. 

It has already been held by the Telangana High Court in KRK Vara Prasad v. Union of India [1980 SCC OnLine AP 141] that the words in Article 1 of the Constitution that India is a Union of States comprising the territories of States and Union Territories among others cannot be imported into the definition of India under Section 18 IPC, which is a standalone provision that is constitutional. Therefore, seeking recourse of the definition of India in the Constitution to interpret Section 18 of IPC is not an option.

The interplay between Section 18 and Sections 3 and 4 of the IPC – which refer to its extraterritorial application – also assumes significance. Section 3 provides that if any Indian law provides for punishment of any act outside India, a person committing such an act outside India would be dealt with by the IPC as if the act had been committed within India. This indicates that an act committed in Jammu and Kashmir, which lies outside India as per Section 18, is only liable for punishment under IPC if an Indian law expressly mandates that the particular act committed outside India is nevertheless liable for punishment. 

Most importantly, Section 4 provides that provisons of IPC would apply to commission of an “offence” by any citizen of India beyond India. Viewing this Section extremely technically, a “citizen of India” – while ordinarily obviously bringing those residing in Jammu and Kashmir within its ambit – is rendered ambiguous by the lack of amendment to Section 18. 

Further, even if this ambiguity were overlooked, Section 4 would only cover acts committed by Indian Citizens in Jammu and Kashmir, which may to some extent cure the deficiency that Section 18 caused in Section 2 as explained above. However, a close reading of Sections 2, 3 and 4 will show that due to the stagnant definition of India in Section 18, there is a gap as to regulating offences committed by a foreigner in Jammu and Kashmir. Therefore, from this lens, a foreign citizen who commits a crime in Jammu and Kashmir would not be punishable under IPC, which is a grave loophole if my interpretation, in fact, holds true.

The definition of India in Section 18 would also have other unintended consequences. Section 75, which provides for enhanced punishment, would apply to only those convicted by a Court in India, thus excluding those convicted by Courts in Jammu and Kashmir. Further, going by Section 108A read with Section 18, any person in Jammu and Kashmir would not be liable for abetting an act outside India which would otherwise be an offence within India.

Even provisions that refer to import of counterfeit coins or a girl from a foreign country into India would not apply to the import of the same into Jammu and Kashmir. The definition of “local law” in Section 42 would not cover laws that are only enacted to apply to Jammu and Kashmir. Moreover, Section 121 speaks about waging war against the Government of India, which may not being within its scope the waging of war against the Council of Ministers headed by the Chief Minister of Jammu and Kashmir as set up by the Act. 

However, per contra, it may be interpreted that Jammu and Kashmir being a Union Territory, the Government of Jammu and Kashmir would effectively translate to the Central Government. These are just a few examples of the huge repercussions that could ensue if the omission is not rectified.

Possible Solutions for the Gap
It may be argued that such an inadvertent omission by the Government cannot be read with a hyper-technical approach and can be adequately interpreted by Courts, especially since Section 97 of the 2019 Act provides Court with the power to construe laws in order to employ them in Jammu and Kashmir. 

Firstly, it must be recognized that the IPC has always been considered an extremely exhaustive and specific Code, which goes as far as to define words like “Section” in Section 50 as “one of those portions of a Chapter of this Code which are distinguished by prefixed numeral figures.” So, a Code that has always intended to define every single nuance cannot be interpreted by Courts to the extent of altering a definition. Furthermore, the consequence of the Courts disregarding the lack of amendment to Section 18 would be akin to rewriting the Code by adding an offence applicable to acts by foreign citizens in Jammu and Kashmir. 

Secondly, it must be noted that in the present scenario, there is no “gap” in the law. Section 18 clearly and unequivocally excludes Jammu and Kashmir. Courts cannot use their power of interpretation to alter an express definition, but can only strike it down should they conclude it violates constitutional provisions. It has been held by the Apex Court in Gurudevdatta Vksss Maryadit & Ors v. State Of Maharashtra [(2001) 4 SCC 534] that “It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences.” Section 18 is unambiguous in its exclusion of Jammu and Kashmir. 

Thirdly, the Supreme Court held in Alkem Laboratories Ltd. v. State of Madhya Pradesh and Another [2019 SCC OnLine SC 1536] that: “It is a settled principle of statutory interpretation that any ambiguity in a penal statute has to be interpreted in favour of the accused.” Therefore, the principle of leniency as reiterated by a catena of judgments of the Apex Court must apply as well.

Fourthly, the principle of “casus omissus” – the power of courts to supply an obvious deficiency or omission of a provision – would not apply, for there is no “deficiency” or “omission” in any provision. As stated before, the definition of India is unequivocally clear in Section 18. Courts cannot use “casus omissus” to alter the express meaning provided by Parliament. This principle only applies to an obvious void in the law, not to a contradiction in the law.

Fifthly, it may be contended that the General Clauses Act, 1897 may be referred to in the event that there exists such a crucial ambiguity. However, in my opinion, the Act would not be of much assistance in the present scenario. While the General Clauses Act is indeed considered when there exists an ambiguity in any Act, it cannot be assumed that the definition of 'India' as in the IPC is an ambiguity for which the aid of the General Clauses Act can be taken. 

In any case, when there is an express definition of India in the IPC that intentionally carries a rider by excluding Jammu and Kashmir, the definition of India in the General Clauses Act cannot be transposed and applied here. Applying the General Clauses Act to interpret the definition of “India” in the IPC would set a dangerous precedent of using the General Clauses Act to alter territorial jurisdiction of statutes. While the General Clauses Act has extensive provisions pertaining to the interpretation and procedures applicable to repealed enactments, it does not deal with the effect of an express shortcoming caused by a newly enacted law, especially when the legislative intent is extremely unclear.

Going one step further and purely for the sake of countering an argument that would in any case be shaky at best, even if it is considered that in the present case, there is a "substitution" (keeping in line with the Supreme Court judgment in Ramkanali Colliery of BCCL v. Workmen by Secy., Rashtriya Colliery Mazdoor Sangh that in such situations, the word "repeal" and "substitution" can be read together to have the same effect), Section 6 of the General Clauses Act clarifies that any such repeal cannot affect any rights or liabilities accrued. Therefore, an accused that fits the criteria mentioned in the Article can clearly argue that the omission by the legislature to exclude "except the State of Jammu and Kashmir" grants him a legal right of protection that cannot be deemed to be non-existent.

Lastly, Section 95 of the 2019 Act states that the Central Laws enlisted in the Fifth Schedule would only apply in the manner stated therein. The Legislature has made it abundantly clear that the only change they have sought to effect is the amendment of Section 1 of IPC and not Section 18. Certainly, Courts cannot substitute this express intention. Further, Section 96 of the 2019 Act actively gave the Central Government a chance to make any modifications or amendments within one year as was deemed fit to adapt the Central Laws to Jammu and Kashmir. Despite being given the express authority to do so, the Legislature has not amended Section 18 of IPC.

There is no doubt that the lack of amendment to Section 18 IPC is a technicality, but it is a technicality capable of causing unimagined consequences. It is the need of the hour that this contradiction is brought to the attention of the Legislature so as to exclude the words “excluding the State of Jammu and Kashmir”, along with other Sections in which these words exist. It is imperative that a mere technicality is not misused by any offender. Furthermore, in the absence of any amendment, there is an urgent need for at least the Judiciary to address the issue to provide clarity. In my opinion, erring on the side of caution would be the best possible approach to this conundrum. 

Sunday, March 13, 2022

Lalita Kumari, and Police Discretion at the Stage of Registering an FIR

Six year old Lalita Kumari went missing from near her house on the night of May 5, 2008. When she did not come back, her father filed a missing persons report. A week later he was told that his daughter had been abducted, and so he filed a complaint with Police Station Loni, Ghaziabad, Uttar Pradesh. The police did not even register a First Information Report under Section 154 of the Criminal Procedure Code of 1973, in turn compelling Bhola Kamat to write to the Senior Superintendent of Police, Ghaziabad. 

It was only on the direction of the Superintendent of Police, Ghaziabad, that FIR No. 484 was registered by Police Station Loni on 06.06.2008, under Sections 363, 366, 506, and 120-B of the Indian Penal Code. Things did not end here. The police refused to carry out a proper investigation, as per Kamat, unless he paid up. This led to Bhola Kamat invoking the extraordinary jurisdiction of the Supreme Court and file a habeas corpus petition to produce his missing child. This petition was registered as Lalita Kumari v. Government of Uttar Pradesh & Others [W.P. (Crl.) 68 of 2008]. 

The Five-Year Journey of Lalita Kumari

The records of this case do not clearly reflect what happened in respect of the main plea seeking production of Lalita Kumari. Instead, right from the outset, the focus of the proceedings appears to have become the purported inaction of the local police in registering the case. On the first date itself, the Bench of Justices G.S. Singhvi and B.N. Agrawal noted that: 

"[I]t is a matter of experience of one of us ... that in spite of law laid down by this Court, the police authorities concerned do not register FIRs unless some direction is given by the Chief Judicial Magistrate or the High Court or this Court. ... On the other hand, there are innumerable cases that where the complainant is a practical person, FIRs are registered immediately, copies thereof are made over to the complainant on the same day, investigation proceeds with supersonic jet speed ... "

This apparent class-divide prompting the workings of the criminal process compelled the Bench to observe that it was "high time to give directions" to the governments to make police accountable for not only registering FIRs but also handing over copies, and where it was not being done, then to hold the errant officials accountable.

While it took some time to get responses from all states and union territories, very early on it became clear to the bench that it had, unwittingly almost, touched upon an arena of several contradictory views expressed in earlier opinions. There certainly was a line of judgments which implored prompt registration of FIRs where information disclosed commission of cognizable offences and sought to exclude any discretion in this matter with the police. This, however, coexisted with judgments which called upon the police to tread cautiously and make sufficient inquiries because registering an FIR, as per this view, was a critical stage that ought not to be triggered lightly. 

As a result, Lalita Kumari's petition first went before a Bench of Three Justices and remained there for almost four years. On 27.02.2012, this bench of Three Justices concluded that the conflict of opinion on the issue was such (both, in terms of precedent as well as the views taken by all the States and Union Territories) that it would be best for a Constitution Bench to settle the matter once and for all. The outcome of this exercise the decision reported as (2014) 2 SCC 1, titled Lalita Kumari v. Government of Uttar Pradesh & Others ["Lalita Kumari"]. From a criminal process standpoint, it is arguably one of the most important decisions over the past decade, and it is credited with having held that a police officer must register an FIR when information discloses the commission of a cognizable offence.

Critiquing the Constitution Bench Judgment

That the issue of non-registration of FIRs is still very much a live one since Lalita Kumari was decided is a well-known fact. In no small measure is this attributable to the class divide that the Bench had taken note of in its very first order — it is usually the cases filed by the haves that are resolved at a supersonic jet speed, while those of the have-nots continue to be neglected. Given this institutional malaise, hardly any significant critical engagement has happened with what the judgment in Lalita Kumari itself did. It is unacceptably simplistic to conclude that Lalita Kumari has held that FIRs must be registered and that it does not happen is because of rogue elements in the force. 

Instead, I argue that Lalita Kumari actually failed to discharge its mandate of clarifying the law and, thus, has also contributed to the current state of affairs. While the Bench set out to resolve contradictory views, what it ended up doing was to place that contradiction at the very heart of the decision, and complicated things further. [Earlier posts on interpreting Section 154 are here, and here]

As a starting point, let us extract the complete paragraph from the Constitution Bench judgment which is supposed to lay down the law:

In view of the aforesaid discussion, we hold:

i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. 
iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. 
v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 
vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: 
a) Matrimonial disputes/ family disputes 
b) Commercial offences 
c) Medical negligence cases 
d) Corruption cases 
e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. 
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 
vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry [Note: this was clarified to read 21 days by a subsequent order in the matter]. 
viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

Reading this paragraph in full makes it clear that there is no unequivocal directive being issued that the police must register FIRs. The judgment only held that police must register where information discloses a cognizable offence, and this one word changes everything. In affirming that FIRs need only be lodged if police find that a cognizable offence is disclosed, what Lalita Kumari does is unequivocally accept that there is clear discretion and application of mind being exercised by the police at this stage. FIRs are, therefore, matters of moment and not mere administrative exercises of power. 

Having recognised, albeit indirectly, that registration of FIR is an exercise of police discretion, it fell to the Court to clarify the scope and extent of the same. This is what the subsequent paragraphs try to do. A preliminary inquiry may be conducted where the information does not disclose a cognizable offence, but this does not extend to verifying the veracity of the allegations, rather it is "only to ascertain whether the information reveals a cognizable offence" and must be done promptly. 

By saying the same thing through a slightly different combination of words, the Court does not manage to offer any clarity on the issue. How will the police conduct this inquiry all the while staying clear of going into the merits? Can they call for documents or summon persons to question them? Can potential accused persons be called to the station as well? Since there is no clear recognition of such preliminary inquiries within the Criminal Procedure Code, what legal status will any such requests for documents or oral clarifications carry? These are only some necessary questions which arose once the Court affirmed the practice of preliminary inquiries, which continue to pose troubling questions till today.

In a judgment focused upon police discretion in the context of registering FIRs, the Court paid hardly any attention to issues of discretion that went beyond the mere registration of the FIR and touched upon the contents of such documents. Specifically, on the offences themselves that are disclosed. 

Let me explain. There is a gap between information which a layperson brings to the police and the "First Information Report" which is born as a result of that interaction. This transformative exercise is, in many cases, not purely administrative because the informant will often not speak the language of the penal code. It will fall to the police to figure out which offences are made out, and view that information from the lens of mens rea and actus reus. Often, it will also fall to the police to decide which offences should be picked where the information discloses commission of both generic and special crimes. 

These are not academic issues but carry significant liberty-related consequences, for the same narrative may not only trigger both cognizable and non-cognizable offences, but also offences where bail is a matter of right and others where no such right exists. All these aspects are also an element of discretion vested with the police officer, and required discussion, if not regulation, by the Court in Lalita Kumari.  After all, the Court itself had framed the issue as requiring police to identify if cognizable offences are disclosed. Yet, these aspects of discretion wielded by police went entirely unnoticed.   


Lalita Kumari ultimately failed to deliver on its initial promise. Legally, it did not clarify much. What it did very well was to prolong the status quo and keep all stakeholders happy. Victims are told that police are duty-bound to register FIRs for cognizable offences, while police are told that they are duty-bound to register cases if the information they get discloses the commission of cognizable offences. For good measure, failure to register cases could attract action, which again only continued status quo. In having taken up the issue of police discretion while registering cases, the Court had the perfect opportunity to take a closer look at the role played by police in framing the case and invoking offences at this initial stage of the process. It did not even recognise the significance of this power wielded by police officers, let alone meaningfully engage with it. 

The exercise of discretion by police officers at Loni, which caused Bhola Kamat to run from pillar to post to get a case lodged for his abducted daughter, came out relatively untouched after the long journey that the Lalita Kumari petition had in the Supreme Court. It remains the principal reason why the police can refuse to register FIRs outright. What has changed, though, is that where victims and police would have earlier cited different precedent, today Lalita Kumari gives the answers for both sides in the room, by not really answering anything at all. 

Monday, February 14, 2022

Guest Post: A Three Pronged Analysis of Prema v State & Ors

(This is a guest post by Megan Sequeira)

Even though ours is not a pure Common Law setup, the diversity of facts presented with each case ensures that the judiciary develops with each adjudication. This piece intends to analyse one such case through its journey in the Trial Court and then the High Court of Madras: Prema v. State and Ors (Spl.S.C.No.21 of 2017).

Facts of the Case
The case is about a 2 years and 9 month old infant, who was sexually assaulted by a neighbour. The victim’s mother was on her way to buy food and the child was crying. The accused, who was sitting in his courtyard at the time, told the mother to leave the child with him, which she did. Upon returning home after half an hour, she could not find the child and on calling her name, the accused led her out by hand. 

Later that day, the child complained of pain in the private parts. On removing her garments, her mother noticed whitish liquid like semen present on her. The mother informed her husband, who was out of station at the time. She also informed the other neighbours about the happenings. 

The next day, the victim complained of pain again and was also running a fever, upon which her mother informed their relatives and rushed the child to the hospital. The doctor treating her stated that she had been sexually assaulted and the same was communicated to the Police, who recorded a statement. The victim, barely 3 years old, did not make any statement (and it is unclear if the police or court asked her to). It was her mother who acted as the first informant in the case. 

A case was filed for aggravated sexual assault under Section 10 of the Proection of Children from Sexual Offences Act 2012 (POCSO), and was heard before a Fast Track Special Court. The Judicial Officer, after hearing the arguments advanced on either side, acquitted the accused, stating that the prosecution had failed to prove the case beyond reasonable doubt. Consequently, the mother of the victim child filed an Appeal before the Madras High Court. 

The High Court overturned the acquittal and found the accused guilty, sentencing him to 5 years of rigorous imprisonment under Section 10 of the POCSO Act, along with a fine of Rs. 5000/-. The Court also directed payment of compensation of Rs. 1,00,000/- to the victim child. 


The Semen - Semman Contention
What stood out most in the Trial court verdict was the confusion between the English word Semen and the Tamil Word Semman, meaning red soil. 

The mother of the victim had her statement recorded to the police inspector, wherein she simply stated a “white colour liquid” (Para 13). The inspector recording the statement then wrote “Seman”, a minor misspelling of the word for which neither the victim nor her mother could be blamed. When evidence was presented at trial, the typist misinterpreted the word “Seman” and typed out “Semman”, which translates to laterite soil or red soil. Neither the prosecutor, nor the victim’s counsel, or the trial judge noticed this error at the time. And so during arguments the defence used this point to contend that the mother’s testimony only proved that there was red soil and not semen found on the private parts of the victim. 

This argument was, surprisingly, accepted by the judge, and was a major ground for the acquittal, in spite of what the victim’s mother had said and what the police report stated (seman). Fortunately, the High Court saw through this folly of the typist, and considering the victim’s mother’s statement as well as the medical evidence provided by the doctor, set the record straight. However, it leaves open a larger door, linguistically speaking. 

As per Article 348 of the Constitution, all Supreme Court and High Court proceedings are conducted in English. This is in spite of the fact that India has no official national language, and a wide range of over 19,500 mother tongues spoken across the country (although the 2001 Census categorises it into 122 Mother Tongue Categories). 

On the other hand, FIRs registered by the Police are not necessarily filed in English or Hindi, but often in the regional language, as stated in the Code of Criminal Procedure (Section 277). In Prema v State, the FIR was written in Tamil, using English words. This is what led to the misspelt “Seman”. A 2019 Delhi High Court Bench had in fact directed the Delhi Police Commissioner to use the same words used by the Complainant while filing an FIR, although this is still rarely ever (if at all) seen in practice.

Another confusion added to this issue is that regional and sessions courts conduct their proceedings in the regional languages, whereas the High Courts and Supreme Courts only conduct their proceedings in English. When a case travels in appeal to the High Court or Supreme Court, then translations become necessary. There used to be a set of official translators dedicated to serving this task, I am told, but today it is more common for translations to be done through non-official translators, or by lawyers’ or litigants themselves. It is understandable, then, that translations are often riddled with faults, and can lead to drastic consequences as in Prema v State. Faulty translations are a second-level problem though. Because what this masks is the possibly large number of litigants who cannot knock on the doors of constitutional courts, being unable to fund a litigation that requires an added expense of getting the record translated.

Then there is the problem posed by conducting proceedings chiefly in English, and how this renders justice inaccessible to those not conversant with the language. Firstly, the parties themselves, along with witnesses, are often not conversant in English. To ensure their adequate participation in the process, it would require hiring translators and even interpreters. This is a far-away dream given the stricken-state of judicial infrastructure at the district level. Further, legal representation in subordinate courts usually comprises non-English speaking lawyers, which renders them not very helpful for taking litigation to constitutional courts.

Under Article 21 of the Indian Constitution, every litigant has the right to justice. This implies that not only must he have the right to speak in the language he understands before the magistrate, but also the right to understand the whole proceedings and the judgment delivered. It is evident, then, that this right is far from being realised in how the judicial system currently functions.

A Three year old Respondent 
The Trial Court found that the evidence given by the mother of the victim child was not enough to substantiate the case and it was not trustworthy, considering the same to be hearsay. Based on this, the Trial Court found that the prosecution’s case was not proved beyond reasonable doubt and accordingly acquitted the accused. In doing so, the learned Judge implied that the non-examination and absence of testimony from the 2.75 year old victim could prove fatal to her case. 

As per the Indian Evidence Act (Section 118), all persons, including a child, are competent to be considered as a witness in the court of law if they are able to understand the questions put to them, or able to give rational answers to those questions. However, it is important to note that the evidentiary value given to a child witness differs from case to case and circumstances influence the trust and value of such evidence. The trial judge is responsible for conducting the Voir Dire Test and deciding whether such a witness is competent to give evidence, or is a tutored witness. 

If it can be understood legally that circumstances impact the validity and admissibility of such evidence, it should also be legally understood that circumstances impact the ability of a child victim to come forward as a witness. It is a reasonable stance to hold that the inability of a child witness to come forward in a trial cannot be considered fatal to a case, no matter what the circumstances. Furthermore, expecting the child in question, who has recently been sexually abused and is in pain, to speak openly in front of strangers or even understand the complexity of the situation, is beyond reasonableness. The requirement of such a child to be examined as a witness, and the non-believing treatment meted out to the mother of such a child, is a definite obstruction to justice. 

It is also important to note that although POCSO trials are conducted ‘in camera’, the child is nevertheless being placed in an unfamiliar and highly confrontational setting. The POCSO Act makes available various provisions for the recording of evidence of a child witness, that still seem to fall short of the necessity. Section 26 allows the Judicial Magistrate to take the assistance of an interpreter, translator or any other person familiar with the child’s manner of communication while recording a statement. The section does not make any provisions for victims or witnesses below the age of three years, at which age they can only formulate two to three word sentences. 

The consequent section states that presence of a special educator in cases of physical and mental disabilities is permitted. While commendable, the Act should go forward, considering the possible regression and trauma caused by an instance of sexual assault or harassment, and make the presence of such assistance the norm instead of the exception. In this case, the child was produced before a Judicial Magistrate who noted in his report that she stayed silent even when asked simple questions such as her name or age, and was clearly afraid to speak in front of a stranger (Para 38). The absence of an interpreter, or a special educator in the case certainly raises doubts as to the efficiency of the court's proceedings. 

Criticism of an Idealised Legal System
There exists a visibly stark contrast between the judgments of the High Court and Trial Court. This distinction is a sure-fire way to oppose the idealised legal system. The common belief that the facts of a case are objectively heard and the truth always comes out due to the evidentiary rules is proved wrong in most appealed cases where the previous verdict is overturned, as in this case. The facts of a case are never objectively heard. The Judge assigned to a case influences the judgment, be it for good or bad. For instance, the Trial Judge refused to consider the reasons behind the delay in filing the FIR, nor did the Judge accept the reason behind the absence of medical evidence. On the other hand, the High Court fully took into consideration the reasons behind the delayed FIR, attempted to understand the reluctance of the other neighbours to stand as witnesses, considered the absence of medical evidence due to the delay and so on. The positions taken by the two courts indicate that facts cannot be heard objectively. By attempting to ascertain which of the judges were correct in their stance, one’s own subjective biases get included in the process. 

Additionally, the portrayal of the same facts in two such opposing ways as in this case is another indicator of the idea that the truth being discovered through trial is patently flawed. The defence portrays the inimical terms between the appellant’s husband and the accused as a reason to throw suspicion on how she would leave her child in the custody of the accused. The prosecution on the other hand puts forth the community and neighbourly environment, where the accused was sitting in his courtyard and voluntarily offered to look after the child who was crying. The defence uses the flimsy evidence of reddish colour on the victim’s private part due to the “semman-seman” typography, which went unnoticed and uncorrected by the Judicial Officer, while the prosecution brings forth the evidence of the white liquid present on her body as well as her garments, as noticed by the mother of the victim and the doctor treating her for the fever and prolonged trauma. The defence portrays the reluctance of the neighbours to stand as witnesses as fatal to the case, while the prosecution brings forth the element of community and neighbourhood as a hindrance to stand in support of one party and against the other. 

The quality of legal representation for either side in an adversarial setting is one of the motivations behind the entry of biases into the judicial process. As per the POCSO Act, the State appoints one Special Public Prosecutor to every Special Court and to every Fast Track Court. This in itself seems strange, since it gives way for an opportunity to arise wherein the prosecutor and the Judicial Officer contracted for the term can develop either a favourable or an unfavourable working relationship, hence bringing in further biases. The criteria for appointment of a Public Prosecutor for a High Court has been laid down in Section 24 of the Code of Criminal Procedure, 1973, and appears to be both comprehensive as well as strict. However, the method of appointing Special Public Prosecutors in an FTSC is comparatively lax. 

In a report by the Centre for Law and Policy Research, it was found that the prosecutors in cases tried before Karnataka FTSCs are often laidback and lacking, with instances recorded such as the failure to produce medical evidence to the Court on the grounds of it being unnecessary, or not engaging the assistance of interpreters or translators when necessary due to the costs or time involved. Prosecutors and judges are not given any specialised training as to dealing with POSCO related cases.

Furthermore, many judges are not able to factor out their personal beliefs while they are considering court cases, even when they have the best possible intentions. The Trial Court stated that the Prosecution had failed to substantiate the case of the prosecution and prove the charge. However, Section 29 of the POCSO Act clearly states that the Special Court shall presume that such person has committed the offence, as the case may be unless the contrary is proved in cases of aggravated sexual assault. The burden of proof in the case was supposed to be on the accused, but the Trial Court Judge shifted this burden with no given reason on to the prosecution, and the Special Public Prosecutor failed to point the same out.

Another reason is the incidence of witnesses and victims turning hostile. This occurs due to a myriad of reasons, ranging from social positions and community belonging, to stigmas and stereotypes, to threats and bribes. For example, witness number 4 in the case, who was the neighbour of the victim, and was actually told the entire story by the victim child herself, was not produced before the Court, because she declined to appear. Her evidence was not recorded at all. The reason given as to why she refused to testify was her position in the neighbourhood, which made her reluctant to speak in support of one family and against the other.

Witnesses are generally not inclined to get involved with court proceedings. It could be due to their position in the society, or because of their inherent vulnerability, especially in cases of sexual offences such as this one, when the witness is female. There also exists a general fear of the police force, coupled with the fear of threat or intimidation from their own communities.

This case comment aimed to highlight the issues underlying the Trial Court’s overturned judgment while also seeking to understand the wider areas of concern faced in the judicial system. The analysis of how biases enter the adjudication system as the case proceeds makes it an interesting case study.

In addition to the above, there exists another important element to be considered. The long span of time taken to finally settle the case, as is the duration spent on most cases in the Indian Judiciary, is a matter of grave concern. The incident itself occurred in September 2017, and the FIR was filed 5 days later, in the same month. The fast-track court passed its judgment only in September 2018, a whole year later. The case was appealed in 2019 and was heard and finally decided on 2nd July 2021. 

The prolonged trauma of not only undergoing such a horrific experience but also living in an environment of suspicion, betrayal and shame without receiving the much-deserved justice, is a gruesome thought that should be wished on nobody. It is essential to analyse the shortcomings in the judicial system that causes cases like this to go on for such long durations.