Wednesday, February 5, 2025

Registration of FIR and the 'necessity' test for Section 156(3) CrPC / 175(3) BNSS

A judgment delivered on 16.01.2025 by a Division Bench of the Supreme Court in Om Prakash Ambadkar [2025 IINSC 139] has garnered attention as it appears to be the first judgment to cursorily look at the set of provisions under the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS] dealing with powers of courts to direct registration of First Information Reports [FIR].

For the uninitiated, the FIR is the genesis of police investigations in India. It is a formal document created at the start of a case, which is supported to reflect the 'first information' of the commission of a crime that is received by police. Not all crime, mind you, but 'cognizable' crime — that category of crimes which the law empowers the police to start investigating without need of any prior judicial permission. For a list of such crimes, please turn to the Schedules in the Criminal Procedure Code 1973 [Cr.P.C.] or BNSS.

In the silly belief that legal procedures are automatons which just automatically spring into life when the need arises, we think that commission of a crime will automatically result in registration of the FIR. Much like every other legal procedure, registration of an FIR is also a site of exercising power. What amplifies this dynamic is the seismic significance the FIR can have on the life of a person arraigned as an accused in the document. 

For starters, police now has the power to arrest this person. Since many cognizable crimes are also non-bailable, arrest may be accompanied by prolonged detention. Then there are the collateral consequences, such as difficulties in applying for, let alone getting, government jobs or identification. In other words, having an FIR registered against a person can dramatically alter their life for the worse, which places the police officer in a highly sought-after position as the official who wields the power to cause such a transformative change for the worse.    

This is just one perspective. There is the other, equally important perspective, of how the registration of an FIR alters the life of the police officials as well. There is a mountain of work which follows. There are far too few police officials and far too many cases. Adding one more mountain to your existing range is not an enviable choice. Many disputes genuinely do not require the full weight of the state to be brought for the purpose of finding a resolution, which is what a lot of investigations can reduce themselves to anyway. All in all, registration of an FIR is far from an automatic process. 

The problem, however, is that the law on paper refuses to recognise this lived reality. A key contributor to this problem has been the Janus-faced judgment of a Constitution Bench of the Supreme Court in Lalita Kumari (2013) (discussed on the Blog on multiple occasions). This precise issue — whether an FIR must be registered whenever police receive information of a cognizable crime, or do police officials have some discretion in the matter — was heard by the Court, and it gave a lengthy and horribly equivocal judgment. So much so that today, lawyers who argue for mandatory registration of FIRs as well as against mandatory registration of FIRs both turn to Lalita Kumari in support of their positions!  

This schism causes downstream effects. Law recognises that failure to register FIRs can cause prejudice to a victim, and so we had Section 156(3) CrPC, and now Section 175(3) BNSS, which confer powers upon magistrates to direct registration of FIR if the police has failed to act. If the law on paper says that every case where information received suggests a cognizable crime is committed must lead to registration of FIR, it means that the law on paper also says that where the magistrate finds that the police have failed to act upon receiving such information, the magistrate must direct registration of FIR. 

The judgment in Om Prakash hints at such an outcome being quite unpalatable as a judicial approach, and possibly illegal in the wake of the slight modifications to this area of law brought about by the BNSS. In asking magistrates to not pass mechanical orders and apply their mind to the matter, the Supreme Court did not say anything new in Om Prakash. Where it added a little bit of spark is its express invocation of an idea which I would label as the 'necessity' test for ordering police investigations. While it is not a new idea as such [for example, see here], it has been expressed with remarkable clarity this time. Take a look at Paragraph 25:

In fact, the Magistrate ought to direct investigation by the police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the police. The Magistrate is not expected to mechanically direct investigation by the police without first examining whether in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightaway proceed to conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the Police under Section 156(3) of the Cr.P.C. Ofcourse, if the allegations made in the complaint require complex and complicated investigation which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct investigation by the police authorities. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police ['Emphasis Supplied'].

The phrase 'apply judicial mind' is thus transformed into at least one specific concept for magistrates: look at whether a police investigation is really necessary. The thought process of the Court driven by the facts of this case where it felt that an entirely frivolous case had been lodged and the magistrate simply did not apply their mind to the matter and directed police investigation.

But have bad facts made for bad law here? There are at least three serious problems in the Supreme Court advocating for this 'necessity' test. 

  • First, the Court seems to have added requirements to the text of both Section 156(3) CrPC and 175(3) BNSS which are otherwise not there. Both laws may require reasoned orders, but to insist upon an inquiry into the necessity of an investigation by police into a case is nowhere required by either statute. 
  • Second, in suggesting that FIRs need not be directed by magistrates where it is felt that there is no need for police investigation, the natural consequence is that this is now a ground which the police can itself take to refuse registration of an FIR and tell persons to prosecute their cases on their own. Such a course of action goes against at least the traditional reading of Lalita Kumari which was delivered by a Constitution Bench. It had held that there is no discretion for registering FIRs where a cognizable offence is made out, and identified a limited set of scenarios where police could conduct preliminary inquiries before lodging FIRs, but did not suggest that one test in deciding to proceed or not was that of necessity. Even with the BNSS, which has given statutory backing to this preliminary inquiry concept for a sliver of cases in Section 173(3) — punishable with more than three years but less than seven years — no necessity test has been clearly earmarked. 
  • Third, and connected to the second, are the practical problems which arise because of the necessity test which are amplified when it comes to prosecuting private complaints under the BNSS. There is a far more cumbersome legal procedure for prosecuting private complaints, than prosecuting police cases. The Supreme Court conveniently glides over these differences and makes it seem that the two sets of procedures are comparable, which they are evidently not. To force upon a victim one process on the basis of how the police or magistrates consider the complexity of the facts or other factors is, still, arbitrary and allowing for unreasonable classifications to be drawn given no two cases are ever alike.
I must stress upon the second point a bit more before closing this post. The Constitution Bench judgment in Lalita Kumari shows us just how difficult it is to decide the issue of curtailing discretion in registration of FIRs in the style of absolutes. The text of law may require one thing, but the socio-political realities of the country make it evident that registering every information as an FIR will be downright absurd and cast an insurmountable burden upon an already overworked, understaffed, and underpaid system. At the same time, a signal had to be sent to the system that discretion in registering FIRs was the exception given how frequently it was being abused at all levels. The legislature has simply aped the ungainly bargain struck by the Court in Lalita Kumari without trying to improve the legal position in any meaningful way through the BNSS, passing the buck as it were back to Courts to continue struggling with this problem. The batting in favour of a 'necessity' test is reflective of exactly this phenomenon. It will probably be modified by Courts over time, crafted into a more chiseled approach which leaves less room for abuse, and till then all of the litigants will remain guinea pigs. 

Saturday, February 1, 2025

Restoration of Properties under PMLA pending Trial - Quite the Quagmire

Efforts to 'restore' monies to victims of large-scale frauds using the Prevention of Money Laundering Act 2002 [PMLA] have received some attention in 2024. Simply put, the scheme works as follows (at least in most cases). Usually at the start of PMLA cases, properties allegedly involved in money laundering are frozen or attached by the authorities to prevent their dissipation. This is called a 'provisional attachment' that subsists for the duration of the trial for the alleged crime of money laundering if an Adjudicating Authority agrees with this decision in parallel proceedings (which, it almost always does). These assets are then sold off by the government, and the sale proceeds are distributed amongst victims on a pro-rata basis. Everyone goes home happy, and the law delivers justice for a change. Well, at least that is what you are supposed to be left thinking after reading about these exercises in the news.

At first, this news appeared a little strange to me. This is because I was labouring under a misconception about what the PMLA regime allowed in respect of properties attached by authorities. Till 2019, the law under Section 8 of the PMLA said that while attachments would subsist the life of the criminal trial, confiscation i.e., the actual transfer of title in the property to the government, happened only after the trial resulted in a conviction for offences of money laundering involving the assets in question. And Section 8(8) said that where the property stood confiscated, a court could consider a claim for restoration of property to a claimant who suffered a loss due to the offence. 

In this 2019 framework, then, no sales and pro-rata distributions could happen without convictions. This is not an ideal scenario in a legal system where trials take an eternity to conclude. What made it even more problematic, was that the global body responsible for reviewing anti-money-laundering compliance — the FATF — had consistently viewed this conviction-based confiscation framework as suboptimal.   

Enter amendments to the relevant regulatory regime in 2019. Section 8(8) of the PMLA was amended in 2018 and the following proviso—the legalese for a condition or exception to the norm—was inserted: "Provided further that the Special Court may, if it thinks fit, consider the claim of the claimant for the purposes of restoration of such properties during the trial of the case in such manner as may be prescribed." In other words, the restoration to claimants could happen even before conviction. The power was operationalised in 2019, through an amendment to the Prevention of Money Laundering (Restoration of Confiscated Property) Rules 2016, with insertion of Rule 3A. It lays out the procedure by which a court can exercise these powers of considering claims, and in addition to procedural compliances requires that (i) the case should have progressed to the framing of charges, and (ii) owners of the properties in question be heard before passing any orders. 

Here is the catch. The law, by which I mean Section 8 of the PMLA, still only provides for confiscation in the event of conviction at trial. And Section 9 of the PMLA further specifies that "all the rights and title" in such property shall vest in the government only after confiscation. Section 8(8) itself says that the idea of restoration flows after confiscation. So, of confiscation and transfer of title itself remains glued to the end of trials, how on earth is Section 8 conferring powers on the court to direct sale of assets for some kind of restoration to claimants pending trial? 

There are many questions which may spring to mind making this seem problematic. Let me run through a few. First, charge is meant to be a sieve through which 90% of the cases percolate onwards to trials, since the sieve is made entirely from the story crafted by the prosecution. So, in effect, there is no filter to make sure that only cases which may genuinely result in convictions are being opened up for pre-conviction sale of assets. Second, in line with this first issue, what about the very likely outcome of a case ending in an acquittal or it being quashed? Third, what about the pendency of an appeal against the attachment and its effect on any claim by the claimant? All of these questions beget no real answers from within the statute itself. 

Beyond these problems of logic and implementation, the justice-delivery proviso to Section 8(8) also brings us face to face with an old legal maxim, that the scope of an exception to the rule cannot be broader than the rule itself. In this case, it would seem that this principle is clearly violated. The rule here is the text of Section 8 PMLA, which links transfer of title to confiscation. The exception to this rule, in the form of this 2018 proviso to Section 8(8), permits transfer without confiscation. Probably this is why High Courts (here, and here) have expressed doubts about the legal soundness of the proviso in passing already. If anything, the legally proper course of action may have been to amend Section 8(7), which caters to a few situations where a trial cannot conclude due to death or the accused absconding and permits passing an order for confiscation in such cases also, to allow for a wider set of scenarios.  

Who cares, though? 

(While this post is restricted to the restoration to claimants pending a trial for money laundering, and by no means should one assume that the regime post confiscation is ideal either)

Sunday, January 5, 2025

Collapsing Boundaries and Anti-Terror Laws

Anti-terror laws lend themselves to a peculiar kind of jurisprudence. Legislatures, presumably in a bid to show commitment to the rule of law (or, compliance with some international obligation), draft laws that have a variety of offences designed to curb a variety of evils. All these offences are drafted in a similarly broad fashion covering all kinds of physical acts. The difference between them is only in the nature of the alleged 'mental element' which is supposedly accompanying the physical act. 

These boundaries between offences within an anti-terror law are what one is forced to reckon with after reading the Delhi High Court's recent decision in Mohd. Abdul Rehman v. State [2024 DHC 9945 DB]. The High Court rejected the appeal against conviction for offences under Sections 18 and 18-B of the Unlawful Activities Prevention Act 1967 ['UAPA']. Section 18 punishes conspiring to commit a terrorist act or acts preparatory to commission of a terrorist act, and Section 18B punishes recruiting others for the commission of a terrorist act.

An Object-Less Conspiracy 

Dismissing an appeal is hardly novel. What makes Mohd. Abdul Rehman a decision warranting comment and discussion are its facts. Here, there were a series of circumstances implicating the appellant [see Paragraph 46 of the judgment]. They consisted of travelling to Pakistan without reason, consorting with members of terrorist organisations, giving radical speeches, and recruiting young persons for the cause of terrorism. But the prosecution was unable to point to any conspiratorial object that was being pursued by the appellant and his co-accused persons. 

Instead, the object of this alleged conspiracy was to pursue objectives antithetical to national interests. The set of circumstances gave a "cumulative effect of existence of some common design or object to achieve something which is not in the interest of the country" [Paragraph 25]. At another place in the judgment, the case is described thus: "Although, there is nothing on record to show that any particular act or object was in contemplation, however, it is the case of the prosecution that these circumstances if taken cumulatively would demonstrate that the Appellant was preparing to commit an act, which would otherwise disturb the unity, integrity, peace and tranquility of India."

The High Court's Reasoning

The reasoning of the High Court in upholding the conviction, which begins its analysis from Paragraph 47, is fairly straightforward. Essentially, it does not matter if there is no clear object being alleged to the conspiracy. The definition of 'terrorist act' is not merely limited to acts which threaten the unity etc. of the country, but also to acts which are likely to cause such an outcome. By extension, criminal conspiracies are not only those where the object is to engage in acts threatening the unity of the country, but acts likely to do so. Add to this mix the UAPA's conspiracy clause, which punishes persons for acts preparatory to the commission of terrorist acts, and you reach a place where there is no need for the prosecution to prove any clear object of a conspiracy, as long as it can show that persons are acting in concert and doing acts preparatory to acts which can threaten the country's unity — whatever that means. Thus, "indulging in conspiracy with terrorist organisations and associated with persons who are rendering support to terrorist organisations (sic)" comes within its grasp. The conclusion is elsewhere stated as "in conspiracies of this nature specific cover acts would not be required but secretive and clandestine support to declared terrorist organisations would also be sufficient." [See paragraphs 57 to 52]. 

Mohd. Abdul Rehman demonstrates the snowballing effect of the anti-terror law's multiple crimes into one broad crime. The concluding paragraphs of the High Court judgment show that the main allegation against the appellant was his consorting with a terrorist organisation. Now, the UAPA does carry a very broad conspiracy clause, Section 18, but it also carries a different set of crimes which punish supporting terrorist organisations under Section 39. For punishing a person under Section 39, you need not show that there is any concern with committing terrorist acts, but only show that a person knew that he was dealing with a terrorist organisation, and did something which he knew would offer encouragement or support to the said organisation. 

A much better fit, right? So why did Section 39 not figure at all? This is because of the sheer overbreadth of the conspiracy clause, which has the potential to easily subsume the kinds of acts which may more appropriately be criminalised through Section 39. Prosecutors thus have a choice in how to frame the case, and since Section 18 carries far more stringent punishments compared to Section 39, it is natural for them to invoke the conspiracy offence. Section 18 carries a life sentence, while Section 39 a maximum sentence of up to ten years in prison. 

Conclusion

Many hope, and some even dare to expect, courts to perform some anti-majoritarian dance of democracy. The peculiar setting of anti-terror laws reminds us just how forlorn that hope and expectation is. Faced with an existential threat to the sovereign, even object-less associations of persons assume the nature of a conspiracy, on a reductionist logic that it is only a matter of time that these associations find an object, and the law can't afford to wait. We can decry the lack of analysis on display in Mohd. Abdul Rehman, and there is certainly something to be said about how scanty the reasoning is. But when the offence itself is so broad — "whoever conspires or attempts to commit or advocates or abets or incites directly or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act" — then do you really need any reasoning? Law reduces itself to punishing suspicious conduct, fermented with some vague allegations of criminal intent which nobody can disprove.  


Wednesday, December 25, 2024

Sanction to Prosecute - The Judgment in Om Prakash Yadav

Public servants engaging in corrupt activities and using the law for punishing them for such conduct, are a serious matter in India. Since the start of the Republic, public servants abusing their official position has been a priority issue. Many commissions have come and gone, statutes have been replaced and updated, and if one was to read the news of any period over the last seventy-five years, all of this appears to have as big an effect as the ripples cast by dropping a stone in the ocean. 

Hyperbole aside, the inability of legal remedies to curb corruption has become infamous. Commentators correctly point to general inefficiencies of the legal framework as contributing to the mess, a framework where trials take an eternity to conclude. This inefficacy is compounded by certain special features which are triggered whenever "public servants" are sought to be prosecuted. One such special feature is the need to secure prior sanction from the concerned administrative authority of the public servant before launching a prosecution against them.  

Section 197 of the erstwhile Criminal Procedure Code 1973 [Cr.P.C.], or Section 218 of its indigenous doppleganger the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS], provide this rule. The relevant part of it states that whenever a certain category of public servant is "accused of any offence to have been committed by him while acting or purporting to act in the discharge of his official duty (emphasis mine)" a prosecution can only be launched with the prior sanction from the administrative authority competent to remove such public servant from office. 

The Judgment in Om Prakash Yadav

How do you draw this line to decide whether the accused public servant was acting or purporting to act in discharge of duty when they committed the offence? The words are acting or purporting to act, lending themselves to the idea that the line ought to be drawn conferring a broad protection to ensure that public servants are not troubled by frivolous litigation. But construe it true to this idea, and you run the risk of transforming public office into a carte blanche, which is unreasonable, and when squared with the political history of corruption in independent India becomes an absolute no-go. The result? A Sisyphean exercise for the Indian Supreme Court to try and confer upon the clause a reading which is fair to all interests. 

The most recent and venerable example of this exercise is a decision in Om Prakash Yadav v. Niranjan Upadhyay & Ors. [2024 INSC 779]. The public servants here were police officials, and they were accused of having filed a false case with a motive not to corruptly ensnare an innocent soul, but to corruptly save a guilty one from being prosecuted. This soul, one Ashok Yadav, was accused of being party to a murder and was named as an accused in one case, but he was also named as an accused in a case of bootlegging having occurred barely an hour later but more than 150 km away. The victims in the murder case alleged foul-play by the police, arguing that there was no bootlegging case and it was only a ruse to give him a cast-iron alibi. The allegations of foul-play were found believable by the sessions court holding the murder trial, which refused to accept the alibi after considering the record. 

The police officers were prosecuted for their illegal acts, but they challenged the proceedings against as being invalid because no prior sanction had been obtained. Despite the findings of the murder trial, the Allahabad High Court agreed with the public servants and closed the cases, prompting a challenge by the victims to the Supreme Court. 

In Om Prakash Yadav the Court takes great pains to take one through the twists and turns of the judicial history on drawing the boundaries of the requirement of prior sanction (an exercise lasting nearly 25 pages!). This journey leads it to distilling its understanding of the legal position at Paragraph 65, with some additional principles at Paragraph 74. This attempt to simplify the past decisions by reducing it to a set of principles for future courts to tread the path with ease, reveals the Sisyphean nature of the task. There is not one real test, as we see, but many legal aspects for a court to consider while deciding whether sanction is truly required or not for prosecuting a public servant. Furthermore, the consideration of these aspects is so fact-dependent, that there in the vast majority of cases every side will pursue litigation to secure their positions. Which, in turn, will lead many of them back to the Supreme Court, for future judges to deal with the issue.  

The Cart Before Horse Syndrome

An additional problem which Om Prakash Yadav throws up in sharp relief is what I would term the 'cart before horse' issue that has afflicted much legal wrangling over sanction. The argument is simple: can entering into conspiracies and committing offences ever be an act in the discharge of official duties? Of course not, and so insisting upon prior sanction for such acts is preposterous. This argument is placing the cart before the horse, because at the stage of seeking sanction, it is only alleged that the public servant had committed a crime. If this was to become the standard, then there would be no case where sanction should be sought, rendering it entirely redundant. 

In distilling the set of principles at Paragraph 65, the Supreme Court is acutely aware of this fallacy, and cautions against it. But this is where the facts in Om Prakash Yadav enter the fray. Given that it already had a detailed analysis of the probable illegality of what the police owing to its treatment by the sessions court, Om Prakash Yadav was a bad case to apply this law by the Court. The idea of sanction is to serve as a prior safeguard at the start of a prosecution, when courts and administrative agencies do not have evidence from trials before them. Here, that basic concept stood inverted, giving courts evidence recorded during a trial which suggested that whatever the public servants had done was grossly illegal. Not only this, but it turned out that one of the police officers was not even posted at the police station where the case was lodged, suggesting that he was not acting in discharge of his official duties at all. To nevertheless turn around and protect these public servants from being prosecuted for harbouring a murder accused would be a startling outcome.

Perhaps owing to these facts, the Supreme Court could not refrain from lathering the 'cart before horse' analysis with a veneer of principle. Through Paragraphs 65 to 67, it states that if a public servant abuses or misuses office, then it disentitles them from any protection of sanction. More specifically evoking the facts of this case, it states that "when a police official is said to have lodged a false case, he cannot claim that sanction for prosecution under Section 197 CrPC was required since it can be no pat of the official duty of a public official to lodge a bogus case and fabricate evidence or documents in connection with the same." It is easy to arrive at such conclusions when a trial has been held concluding that the official lodged a false case, but in almost all other cases it would be an extremely contentious issue. Deciding whether public servants are entitled to sanction on whether they misused or abused office would cause many courts to commit that very error of giving too much importance to allegations to render sanction redundant.

Conclusion

The peculiar phrasing of the law provision, the conflicting interests at hand, and the highly fact-specific and particularised application of the legal rules in question ensure that litigation around issues of sanction will not end unless the law itself changes. Parties will keep travelling to court to secure their positions,  and at different points of time in the trial as well, making sanction an issue which never loses relevance. 

It may well be that the other parties in Om Prakash Yadav itself go back to the Supreme Court in the future. Because in its final analysis the Court has held that the on the basis of material before it, there was absolutely no need for sanction to prosecute one police officer. But for the other three officers, it held that the trial could yet result in evidence showing that their acts were in discharge of duties, and in that event the trial court could revisit its decision and hold that a sanction to prosecute them would be necessary. Like Sisyphus, then, the courts remain pitted against this rock, until the legislative gods intervene.   

Wednesday, December 11, 2024

Guest Post: Anticipatory Bail, Disclosure Statements, and the 'Samarth Kumar' Jurisprudence

(This is guest post by Pratyay Amrit and Rohan Gajendra Pratap Singh)

The Narcotic Drugs and Psychotropic Substances Act, 1985 ("the Act") was enacted to tackle illicit drug peddling and consumption in Indian society – not without the oft repeated criticism of aligning with the United States’ ‘War on Drugs’ and consequently, international and intra-national illicit drug trade. Until the judicial pronouncement mentioned in the following paragraph, Indian High Courts were of the opinion that a person may be entitled to anticipatory bail under the Act if the only evidence against them is a disclosure statement made by a co-accused to an investigating officer under the Act. This was in line with the decision in Tofan Singh v. State of Tamil Nadu (“Tofan Singh”) wherein the Supreme Court held that officers falling within the ambit of Section 53 of the Act have powers akin to that of an office-in-charge of a police station, meaning that confessions made to them – specifically officers enumerated under Section 42 of the Act – under Section 67 of the Act would be akin to statements made to the police under Section 161 of the Code of Criminal Procedure, 1973 (“CrPC”). The corresponding section is Section 180 in the Bharatiya Nagrik Suraksha Samhita (“BNSS”). Consequently, such statements would be inadmissible as evidence as per Section 25 of the Indian Evidence Act (“IEA”) and correspondingly, Section 23(1) of the Bharatiya Sakshya Adhiniyam.

However, a series of judgments post Tofan Singh have followed a different route. It can be traced back to a 2022 decision in State of Haryana v. Samarth Kumar (“Samarth Kumar”) which seemingly shut the door for such accused persons to rely on Tofan Singh while seeking pre-arrest bail even when there had been no recovery from them. The only circumstance implicating them in the case was a disclosure statement under Section 67 of the Act. This effectively means that people will be arrested under the Act even absent any material recovery and thus, will be forced to seek regular bail under stringent twin conditions. We argue that such a development has rendered the Act, widely regarded as draconian, stricter and created room for its weaponisation. This analysis is based on the judicial practice followed in cases which sprung up post Samarth Kumar which we argue, is a corruption of the rationale in Tofan Singh. We argue that the grant or refusal of anticipatory bail must depend on multifaceted considerations as has been enumerated in Indian jurisprudence.

The Tofan Singh Ratio
The 2020 judgment in Tofan Singh was the result of a reference made by a Division Bench in 2013 where that bench first gave the conclusion that statements under Section 67 of the Act could not be used, which was later affirmed by a majority in 2020. For almost a decade thereafter, the dominant jurisprudence was that when a person is implicated merely on the basis of a disclosure statement of a co-accused made under Section 67, they are entitled to anticipatory bail if there is no other evidence to corroborate the disclosure statement including lack of recovery of contraband. 

While the reasonability of factors indicating a bail applicant’s innocence may be varied, a scenario that merits careful consideration considering the Tofan Singh verdict arises when a person is implicated solely on the basis of a statement made by an accused under Section 67 of the Act. The said section empowers an officer under Section 42 of the Act to examine any person acquainted with the case and even to call for information from any person to determine whether any provision of the Act has been contravened.

Understandably, this dichotomy creates confusion as to whether Tofan Singh ought to be applied in a way that would allow for the grant of anticipatory bail when the bail applicant’s involvement is not hinged on any factor other than the disclosure statement of a co-accused. While the ratio in Samarth Kumar suffered by reason of the order being non-speaking, perhaps the observations of the Supreme Court in a 2001 judgment in Murleedharan v. State of Kerala lend some strength to its ruling. The Apex Court while dealing with the bail provision of the Kerala Abkari Act had held that the same was in pari materia with Section 37 of the Act. Denying anticipatory bail, the Supreme Court chastised the Sessions Court for granting pre-arrest bail on the ground that only the confessional statement of the accused connected the applicant with the offence. It was observed that it could not be concluded at such an early stage that the investigating agency would not collect further evidence to establish the nexus between the applicant and the offence and that custodial interrogation was crucial to unearth all necessary evidence. However, it is important to note that this decision was rendered much before the verdict in Tofan Singh and that it is open to the court granting anticipatory bail to direct the accused to join the investigation, failing which the anticipatory bail may be cancelled (reading Sections 437(5) and 439 CrPC).

The Backdrop Of Samarth Kumar & The Jurisprudence After
In its order dated 16.07.2021 in Daljit Singh v. State of Haryana, the Punjab and Haryana High Court granted anticipatory bail relying on the ratio in Tofan Singh (by now affirmed by the Three Judges' Bench). It was observed that the petitioner was incriminated based on the disclosure statements of the co-accused. Since such confessional statements cannot be relied upon in a trial for an offence under the Act as per the ratio in Tofan Singh, the court allowed anticipatory bail. The same view was upheld in a host of other orders including in Kamal Chand v. State of Himachal Pradesh wherein the High Court of Himachal Pradesh by order dated 22.11.2022 held that the disclosure statement of a co-accused would not be sufficient to deny anticipatory bail, even when call detail records between the petitioner and co-accused are available since such call records are matters to be examined at the stage of trial. The bench used the provision of bail bond to grant the necessary relief to the accused. Importantly, this verdict came after Samarth Kumar highlighting the beginning of the inconsistency in jurisprudence with a binary choice between Samarth Kumar and Tofan Singh. 

The Supreme Court in Samarth Kumar effectively foreclosed reliance on this line of reasoning to allow pre-arrest bail. While doing so, it observed without further elucidation that reliance on Tofan Singh may be placed at the stage of regular bail or final hearing. In effect, Samarth Kumar had excluded reliance on Tofan Singh in considering anticipatory bail applications without providing sufficient justification for negativing this oft-adopted argument. In light of Samarth Kumar, courts have displayed refusal – inconsistently – in granting pre-arrest bail when a person having no criminal antecedents is implicated solely on account of a disclosure statement, even when there has been no recovery of contraband from them.

The Law & The Trouble
Section 37 of the Act affirms the cognizable and non-bailable nature of offences under the Act. It further outlines the procedure for grant of bail to a person accused of an offence under the Act. The section further lays out the twin conditions for offences involving commercial quantity or if they are amongst 3 offences under the Act (namely Sections 19, 24 and 27A). Samarth Kumar dealt with – among others – Section 27A of the Act which deals with financing illicit drug trafficking and harbouring offenders. Thus, the twin conditions would apply to this case. There is a clear and rational nexus in being more stringent with commercial quantity offences. Interestingly, Table 1A.5 of the National Crime Records Bureau data for Special and Local Laws for 2022 divides the incidents under the Act on two broad parameters – either concerning personal or commercial usage in roughly a 3:1 ratio with a total of ~1.11 lakh incidents in 2022. Given the causality implicit in incidents concerning commercial quantities, an argument could be made to justify imposition of twin conditions in commercial quantity cases in a blanket manner. However, the Supreme Court verdict in Sanjay Chandra v. CBI (“Sanjay Chandra”) had held that bail – while itself a fact-based discretionary power in non-bailable offences concerning the twin condition – still must adhere to certain foundational principles of objectivity. One would be the test of ‘necessity’. 

In this regard, the recent division bench verdict in Tarsem Lal v. Directorate of Enforcement is helpful. When the accused complies with summons issued by court, there is no need for him to seek anticipatory bail. While this flows from Section 88 of the CrPC – and correspondingly, Section 91 of the BNSS – the underlying idea is that of ‘necessity’. Section 88 CrPC or Section 91 BNSS alleviates the issue elucidated in Sanjay Chandra. Notably, the judgment in Sanjay Chandra had emphasised on considering criminal antecedents and the absence of it in determining the grant of anticipatory bail. This is observed in numerous cases including in order dated 21.02.2023 in Aniket v. State of Punjab and order dated 23.09.2022 in Gurpreet Singh v. State of Punjab wherein the Punjab and Haryana High Court refused to rely on Tofan Singh while considering anticipatory bail applications as per the ratio in Samarth Kumar. The Special Leave Petitions filed against these orders were also dismissed by the Supreme Court by orders dated 28.04.2023 and 07.11.2022 respectively. At the same time, another bench of the Supreme Court found force in the very argument that High Courts countenanced before the order in Samarth Kumar was pronounced. In Vijay Singh v. State of Haryana, a division bench of the Supreme Court by its order dated 17.05.2023 allowed anticipatory bail to the applicant on the ground that he was implicated by the disclosure statement of the other co-accused, even though he was already enlarged on bail in a separate matter under the Act. This is in contradiction with Samarth Kumar. Ironically, this verdict also does not provide any reasoning for its conclusion.

Further, in Union of India v. Shiv Shankar Kesari, the Supreme Court had clarified that a court was not required to determine whether the applicant under Section 37 is guilty or innocent but is merely “called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.” This is standard for any interpretation concerning twin conditions in any criminal statute. However, this has led to the courts rendering varying interpretations of the threshold required to be met to be allowed the relief of bail under the Act, and even more so for anticipatory bail. This threatens to fortify an already stringent bar to getting relief under Section 37 into an unassailable impediment for persons implicated on flimsy grounds.

Balancing the Scales
Rather than a blanket rejection of the ratio in Tofan Singh at the stage of anticipatory bail, courts must collectively look for substantive material corroborating the confessional statements and consider other factors such as the applicant’s antecedents, possibility of fleeing justice or committing further offences, and the motive behind accusations. This also affirms the Supreme Court verdict in Siddharam Satlingappa Mhetre v. State of Maharashtra which had further emphasised on the cooperation of the accused as a dominant factor in grant of anticipatory bail and bail in general. It held that the power to grant anticipatory bail is not restricted to exceptional cases but based on the particulars of each case. Accepting the ratio in Samarth Kumar would imply that it might be impossible to obtain anticipatory bail for any offence under the Act in any case, because the prosecution would need only to rely on a disclosure statement to have the application rejected. Courts must require a greater nexus between the applicant and the offence, such as their involvement in other offences under the Act, availability of transcripts or recordings of communications with the accused indicating that the applicant is guilty, a suspicious money trail, ownership of apprehended vehicle etc. In fact, the Punjab-Haryana High Court, in Vikrant Singh v. State of Punjab, had acknowledged Samarth Kumar and yet, relied on the audio transcripts to reject the application for denial of bail as meritless. Thus, the issue boils down to the Janus of judicial application here – either follow Tofan Singh and the rationale therein or follow Samarth Kumar which does not provide any reason whatsoever. The problem greater than Samarth Kumar is the way the courts have dealt with similar cases as has been shown in the judgments mentioned above.

Crucially, Section 37 of the Act read with Section 438 of the CrPC empowers courts to grant anticipatory bail when there are “reasonable” grounds indicating that the accused is not guilty. When there is no material incriminating an individual except a confessional statement under Section 67 – which of itself carries little evidentiary value – it might be reasonable to believe that the bail applicant is not guilty for the purposes of bail. The State cannot produce any lesser evidence than the implication in a confessional disclosure statement to seek denial of anticipatory bail. At the same time, the applicant cannot lead any stronger evidence or plead on any other ground apart from referring to a lack of evidence corroborating the disclosure statement. The same ought to suffice as a “reasonable ground” to believe that the applicant is not guilty.

Conclusion
While it is true that custodial interrogation of an accused may be expedient to unearth evidence of offences under the Act, an outright denial of anticipatory bail in cases where the applicant is implicated solely by a disclosure statement of an accused would risk opening individuals – who are falsely being named to be framed, to derail the investigation, or to protect the actual perpetrator – up to humiliation and harassment. A court should not defer applying its mind regarding the freedom of an individual until after he is arrested when the Act itself does not make a distinction between pre and post-arrest bail. The creation of a two-tier system where Tofan Singh does not apply at one stage but applies at a later stage is without reason – as is clear from the language in Samarth Kumar. Preventing reliance on Tofan Singh at the anticipatory bail stage appears to serve no purpose when the court might accept the same argument at a regular bail hearing post-arrest without any change in circumstance in the meanwhile.

Monday, December 2, 2024

The Karnataka High Court and the Curious Cases of John Moses

On 28 November 2024, it appears that two different benches of single judges of the Karnataka High Court (Bengaluru Bench) passed judgments concerning the same petitioner—John D. Moses—who assailed his arrest by way of a writ petition [WP 22042 of 2024 decided on 28.11.2024] and his continued detention in a bail petition [Crl. Petition 9537 of 2024 decided on 28.11.2024]. John Moses did not have a good day in the High Court, alas, as he lost in both courtrooms.   

The allegations against Moses were grave. Alleged to be the 'leader' of gang involved in land grabbing by making fake documents, the stringent Karnataka Control of Organised Crimes Act 2000 [KCOCA] had been invoked against him in July. Even as Moses was in jail after his earlier arrests, the police now moved to secure his custody in July 2024 in the KCOCA case. How the police effected this arrest became a focal point for both the litigations which Moses subsequently filed before the High Court. 

Relying upon the recent judgments of the Supreme Court in Pankaj Bansal, Prabir Purkayastha, and also Arvind Kejriwal, Moses contended that the grounds of arrest had not been furnished to him. Failure to do so not only rendered his arrest illegal, but also vitiated his subsequent custodial detention. In both courts, the government contended that this requirement to furnish written grounds of arrest was not applicable to the case at hand, and in any case the facts suggested there had been sufficient compliance with the law as laid down by the Supreme Court.

This is where things become interesting. While Justice Shetty has held in the bail petition that furnishing of the written grounds of arrest was a requirement applicable to all cognizable cases (and found substantial compliance on the facts), Justice Nagaprasanna in the writ petition has held that the Supreme Court's judgment was not applicable to all cases. 

The basis to restrict the applicability of the written grounds of arrest requirement appears twofold. Justice Nagaprasanna looks at precedent to hold that there are older Supreme Court judgments offering a different view, and secondly he argues from the point of what one may call administrative discomfort, to conclude that only serious crimes should have such serious rules. 

With respect, the opinion's invocation of precedent is difficult to follow. Decisions on preventive detention are cited to conclude that "What would unmistakably emerge from the elucidation qua Article 22 by the Apex Court is that under the preventive detention laws of any kind, be it COFEPOSA, MISA or any other provision which permits prevention detention, grounds of such detention should be made known to the detenue. The Apex Court has thus interpreted Articles 22(1) and (2) of the Constitution of India to become applicable and restrictable to preventive detention cases." This is plainly incorrect, as it ignores Article 22(3) of the Constitution which states that Articles 22(1) and (2) do not apply to the preventive detention regime. 

This unsustainable finding becomes the segue to the media-grabbing section of the opinion, which looks at the impracticality of what the Supreme Court has done by enforcing such a strict rule upon ordinary police stations, which would open a "pandora's box". Which is why the strict rules should be confined to strict cases. Why a KCOCA case is not strict enough, one can only wonder, but that is not the point. 

Justice Nagaprasanna's opinion has echoed a concern that many courts have voiced since May 2024, when the Supreme Court broke new ground by mandating that written grounds of arrest be furnished to accused persons. Surely, though, the Supreme Court was not unaware that it was taking a step which would inconvenience law enforcement agencies. If anything, the period between Pankaj Bansal and Prabir Purkayastha shows that the Supreme Court clearly knew that it was taking such a step now. Recall that after Pankaj Bansal it was precisely this argument of inconvenience which led courts to prevaricate on the extent of its ruling in the months thereafter, and in fact led the Delhi High Court to dismiss Purkayastha's petition in the first place by holding that the rule applied only to PMLA cases but not UAPA ones. 

That the Supreme Court did not wish confine its written grounds for arrest requirement to the UAPA, but all cases, was unequivocally expressed through Prabir Purkayastha where it had held that a person has a "fundamental and a statutory right to be informed about the grounds of arrest in writing" whether they are "arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s). [Emphasis mine]". The paragraph is as clear a peroration as one can get. It is a different matter that some law enforcement agencies, and courts, may choose to close their ears in response to it.

The circumstances of the Moses petitions make it likely that the Supreme Court will be re-entering the fray sooner rather than later on this issue of grounds for arrest.* In a sense, the present situation after Prabir Purkayastha seems like the experience of the Supreme Court of the United States in the years of Chief Justice Warren when it cast constitutional criminal procedure remedies in stricter terms, prompting a flurry of outrage at the law enforcement level which was echoed by many state courts. 

One hopes that the Indian Supreme Court remains firmly wedded to its view in Prabir Purkayastha, which is a nod to the adage that for fundamental rights on personal liberty to be meaningful, they should be inconveniencing the law enforcement agencies.


*A bench of the Delhi High Court had also recently held that the requirement applies to all cases, creating a dissension amidst High Courts as well.

Friday, November 22, 2024

Sanction and PMLA

In Bhibu Prasad Acharya [Crl. Appeal Nos. 3414-16 of 2024, decided on 06.11.2024], the Supreme Court held that the provisions of Section 197 of the Criminal Procedure Code 1973 [Cr.P.C.], and by extension of Section 218 of the Bharatiya Nagarik Suraksha Sanhita 2023 [BNSS] apply to the Prevention of Money Laundering Act 2002 [PMLA]. 

The basis for this view was Sections 65 and 71 of PMLA — the first applies Cr.P.C. provisions to PMLA proceedings so long as they are not inconsistent, and the latter rules that in case of any inconsistency, the PMLA overrides. Nothing within the PMLA excluded application of sanction provisions, and so necessary effect had to be given to Section 197. It made sense as well, according to the Court, considering the object of Section 197 which was to ensure that public servants are afforded a measure of protection against legal proceedings of a vexatious character [Paras 6, 17-18]. In the facts of Bhibu Prasad Acharya, the Court held that prior sanction was required, and absence of such sanction rendered proceedings unsustainable.

Since then, there has been quite a buzz around this decision and its purported harm to the PMLA regime's enforcement as obtaining sanction is now made mandatory. News reports also suggest that the government may be mooting a challenge to a position which renders sanction mandatory.

Only, obtaining sanction is not made mandatory by Bhibu Prasad Acharya.

The decision holds that the clause regarding need for prior sanction applies with equal force to PMLA as it does to other laws. It does not, by any stretch, hold that obtaining sanction itself is necessary for all PMLA cases, because Section 197 Cr.P.C. and Section 218 BNSS do not say so. These provisions are not like other clauses which by their very text make the need for sanction mandatory in all cases, such as Section 19 of the Prevention of Corruption Act 1988.

What Section 197 Cr.P.C. / 218 BNSS do is pose a question — was the alleged offence committed by the public servant while acting in the discharge or purporting to act in the discharge of official duty. If yes, it needs prior sanction. But if not, there is no need for sanction. Each case turns on its own facts. 

The case-by-case determination involved in Section 197 naturally meant that in cases where sanction was not taken, aggrieved persons challenged the move, and required courts to consider the scope of the clause. It has led to a large, complicated, and often inconsistent body of law on what acts are within the scope of an official's public duty, when sanction can be challenged, what happens if governments sit pretty and do not pass sanction orders, and how deep the scrutiny while granting sanction should be. But at no point has that body of law held that sanction under Section 197 is a must.

All that Bhibu Prasad Acharya does, and it does so absolutely correctly, is to give natural effect to the text of the PMLA which does not contain any clause ousting the issue of sanction. Its result is not to render the need for sanction mandatory, but to open up a new avenue for litigation in these cases. The ball will be in the agency's court. Where it does not seek sanction, quite often public servants will challenge the move, as they do in other kinds of cases.