Thursday, January 21, 2021
Tuesday, January 19, 2021
Guest Post: Navigating Double Jeopardy and Issue Estoppel through the Domestic Violence Act and 498-A IPC
(This is a guest post by Rajiv Kr. Chaudhary, Advocate)
First, the factual background:
A case was filed against Person A, a male, under Section 12 of the PWDV Act, by person B, a female. In this petition, a magistrate determined that the issue whether there was a marriage / marriage like relationship between the parties requires trial. The order was overturned by a sessions judge in appeal on grounds that neither there was a marriage between the parties, nor there was a marriage like relationship between them. A year later, B files a petition under Section 498A of the IPC against A and charges are framed against him.
In this post, we look at issues about issue estoppel and double jeopardy. At first blush, there seems to be no case of double jeopardy here as the requirements of the two provisions are entirely different, and one is quasi-civil (but not completely civil) and other is purely criminal. However, as this post argues, a closer look would suggest things are not so straightforward.
Nature of the PWDV Act
The Bombay High Court, in Nandkishor Pralhad Vyawahare v. Mangala [2018 (2) BomCR (Cri) 626] in a criminal reference answered the question, “Whether or not the proceedings under the Protection of Women from Domestic Violence Act, 2005 are in the nature of criminal proceedings?” in the negative and concluded:
“…[I]t appeared from provisions of Act that what they essentially create was plethora of civil rights breach of which results in basically providing civil remedies which were alien to criminal law. Therefore court was of considered view that proceedings under Act were predominantly of civil nature and it was only when there was breach of protection order as was contemplated under section 31 of Act and failure or refusal to discharge duty without any sufficient cause by protection officer as contemplated under section 33 of Act proceedings assume character of criminality.”
Now, it is one thing to state that proceedings under the PWDV Act are quasi-civil, but this statute provides for such "quasi-civil" matters to be tried first by a metropolitan magistrate followed by an appeal before a sessions judge. This is the usual procedure for a criminal trial not a quasi-civil one. The problems are compounded as a magistrate or a sessions judge is inclined to look at evidence for all of the cases under the beyond reasonable doubt standard (though not bound to do so). It is difficult to accept that a judge simply changes glasses to look at evidence from a balance of probabilities just for the PWDV case on the roster. Thus, while PWDV Act matters are "quasi-civil" in theory, they are an entirely different thing in practice.
Comparing PWDV Act and 498-A IPC
With this background, it will be helpful to compare the two provisions:
Section 2(a) PWDV Act
498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. …
“Aggrieved Person" as any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.
Section 498A IPC is specifically applicable to a husband and the victim must either be the wife or one in a marriage like relationship. Section 2(a) of the PWDV Act defines an Aggrieved Person as being a woman who is in a domestic relationship with the Respondent (husband). Critically, in both situations there needs to be a determination of whether the parties are (a) married, i.e. husband and wife or (b) in a marriage like relationship – i.e. lived together as husband and wife.
Considering Estoppel in the Purely Criminal Case
A perusal of Section 498A IPC shows that it is against “A Husband or relative of a woman subjecting her to cruelty”, and thus there is no question of framing charge where this relationship does not exist [See Mohit Gupta & Ors. v. State Govt. of NCT of Delhi & Anr., 135 (2006) DLT 390; Capt. Rajinder Tiwari v. The State (NCT of Delhi), I (2007) DLT (CRL.) 26]. In the factual background offered above, the ingredients to determine both the alleged offences under both statutes are the same, viz. to determine whether the parties are married or a marriage like relationship. The sessions court judgement specifically held “neither there was a marriage nor a marriage like relationship”. This determination is a finding of fact. Could it, or should it, have had a bearing on the 498-A case?
Section 11 of the Code of Civil Procedure 1908, provides, that “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” Section 300 of the Cr.P.C. provides that “a Person once convicted or acquitted not to be tried for same offence”, and Article 20 (2) of the Constitution of India also bars prosecution and punishment after an earlier punishment for same offence. The foundation of this rule is to prevent a multiplicity of findings on identical issues, besides the problems of exposing a person to criminal charges and the potential deprivation of liberty that appear in a criminal context [See, Sangeeta Mahendrabhai Patel v. State of Gujarat and Anr., AIR 2012 SC 2844]. The strict reading of Article 20(2) offered by the Supreme Court [See, e.g., Maqbool Hussain v. State of Bombay AIR 1953 SC 325] means that the two sets of proceedings must be wholly identical with same ingredients constituting the offence in both instances. While on the face of it, this might appear inapplicable in a PWDV Act and 498A context, but would not launching a 498A IPC proceeding where the PWDV court has found non-existence of marital relationship amount to the same?
Notwithstanding this issue, there is another way to approach the issue and treat findings PWDV Act case as having a bearing on the 498A proceeding. This is by way of the idea of "issue estoppel", which as the name suggests, requires honouring a finding of fact that is arrived at by a competent court in subsequent proceedings. The Supreme Court in Manipur Administration v. Thokchom Bira Singh [AIR 1965 SC 87] confirmed the narrow scope of application of this rule, which does not prohibit subsequent proceedings as under Double Jeopardy but only requires that the earlier findings of fact be honoured. In the given fact pattern, issue estoppel would arise in the 498A trial, as the issue of fact had already been tried by a competent court on an earlier occasion and a finding was recorded in favour of A.
Hence, charges could not be framed against person A in the 498A matter given that the PWDV case has already been decided in his favour.
[Postscript: Given that the Bombay High Court has held that a matter under PWDV Act is predominantly a civil matter; civil judges, not magistrates or session judges, should be hearing these cases. Otherwise, a real likelihood of parties suffering miscarriages of justice will persist as it is unfair to expect criminal courts to change their perspectives for appreciating these matters.]
Friday, January 1, 2021
"(1)That s. 144 of the Code of Criminal Procedure in so far as it relates to placing of restrictions on freedom of speech and freedom of assembly confers very wide powers on the District Magistrate and certain other magistrates and thus places unreasonable restrictions on the rights guaranteed under Art. 19(1)(a) and (b) of the Constitution.
(2) The District Magistrate constitutes the whole legal machinery and the only check for control on his powers is by way of a petition to him to modify or rescind the order, that thus the District Magistrate becomes "a judge in his own cause" - presumably, what learned counsel means is a judge with regard to his own decision-and so the remedy afforded by the section is illusory. Further the remedy by way of a revision application before the High Court against the order of the District Magistrate is also illusory and thus in effect there can be no judicial review of his order in the proper sense of that expression.
(3) Section 144 adopts "likelihood" or "tendency" as tests for judging criminality ; the test of determining the criminality in advance is unreasonable.
(4) Section 144 substitutes suppression of lawful activity or right for the duty of public authorities to maintain order."
"[T] key-note of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualises as permissible in the, interest of public order, or in the interest of the general public."
"Today's deplorable happenings underline the great danger from violence to the fabric of orderly society. It is clear that the grim situation has been brought about by sustained instigation to violence. We are taking steps to put down firmly this lawlessness and vandalism. Government have decided not to allow processions within a sizable distance of Parliament. I am thinking that this might well be up to two miles radius. ..." (Emphasis mine)
"Whereas the area known as Parliament House together with its surrounding localities are busy public places frequented with heavy vehicular and pedestrian traffic when Parliament is in session.
And whereas unrestricted holding of meetings, processions and demonstrations therein or in their close vicinity are likely to cause danger to human life or safety and a disturbance of the public tranquility;
And where it is necessary to take speedy measures in this behalf to prevent danger to human life or safety and a disturbance of the public tranquility;
Now, therefore, in exercise of the powers conferred upon me by section 144 of the Criminal Procedure Code, I, S. C. Vaish, additional district magistrate, Delhi do hereby make this written order prohibiting the holding of any public meeting, procession or demonstration in any public place within the areas specified in the schedule appended to this order without a written permission either from me or the sub-divisional magistrate concerned, which permission if accorded may be subject to such conditions as the said authority may deem fit to impose ..."
Friday, December 11, 2020
The National Crime Records Bureau [NCRB] runs the annual Crime in India reports as well as the Prison Statistics India reports. Both get their yearly moment in the sun when, around their publication, news stories with attractive pie charts get published with infographics to show that an unearthly number of cases are pending across the country, that Indian prisons are overcrowded, or that the overwhelming number of prisoners are not convicts but undertrials. The NCRB efforts at logging data came in the news this past week for a different reason — a litigation which resulted in future reports on prisons data carrying details about transgender prisoners as a specific category besides male and female prisoners.
It so happened that I had spent the past few months working on prisons and prisons data for a project. Reading about the litigation, it struck me that while the project will take some time to come out and is probably yet another lament, it might be useful to talk about the prisons data in some detail, and specifically, about some other areas which the NCRB could perhaps think about including in future editions of its reports besides data about transgender prisoners. I sincerely mean it, because after going through all the Prison Statistics reports over 1995 till 2019, it is a feature of the reports to try and improve upon the clarity with which data is presented (accuracy notwithstanding, of course).
What Kind of Data is Available?
Prison Statistics reports are sources which freeze on a particular frame — 31st December of each year — and then give us information about prisons and prisoners within them. On prisons, we are told about total prisons across the country with explanations behind any change in numbers and specifics about different kinds of prisons; the budgetary expenditure of states on prisons; and the kinds of rehabilitative services, if any, that prisons of different states might have. With respect to prisoners, there is data about the total prisoners at the end of each year, how many of these prisoners are convicts and how many undertrials, and how long is the average prisoner's time in custody. There are also lots of charts, tables, and graphs splicing this data set across various categories: gender, age, caste, religion, educational qualification, etc. All of this data is presented in terms of national figures as well as state-wise figures, which helps to discern the vast differences in the experience of different states.
Some Notable Macro-Level Trends from 1995 till 2019
Chandra and Medarametla provide some important macro-level trends for data between 2000-2015 in a 2018 study, and much of their findings for this 15 year period are observed even if the data set is extended for the full period from 1995 to 2019. So,
- Average national prison populations as at the end of each year have been on the rise, except for a curious seven year period between 2003 till 2010 where there were some years of a decline in the end-of-year numbers. This coincided with what were two big amendments to the procedural laws — introduction of plea bargaining (2005), and new restrictions on arrest powers (2008). The seven-year period and any linkages between the amendments and prison populations merits close scrutiny, and I would suggest that any such scrutiny will probably show some initial positive effect of the amendments in emptying out prisons. But, the bump brought by these amendments did not last possibly because of how the slow but steady decline in plea bargaining across India, and police simply going back to their old ways and finding work-arounds to new rules.
- The national year-end average for population of undertrial prisoners out of total prisoners has consistently been higher than 65% during 1995-2019, and while the seven-year period of 2003 to 2010 showed a decline of sorts, there has once again been a steady rise bringing us to an average of 69% undertrial prisoners at the end of the year. Of course some states and Union Territories had a horrible ratio for throughout this period — Delhi consistently had over 70% undertrials, with 2019 data reporting 82% prisoners were undertrials. But what worried me is that between 2010 to 2020, the gradual increase in undertrial prisoner populations was not attributable to a few states alone but because most states had gone down this path.
- Reports from 1995 till 2019 suggest that the average length of incarceration for at least 35% of undertrial prisoners is up to three months in jail, and over 60% of undertrial prisoners are in custody for up to six months. This would mean that by the end of the year, which is when the headcount is taken, almost three cycles of prisoners would have been completed. Slowly, but surely, these numbers have changed over the past fifteen years with a reduction in the share of undertrial prisoners in jail up to six months, and an increase in those who are detained for up to a year and above.
- The pie-chart indicating the different kinds of offences for which persons are incarcerated as undertrials also reflects broad similarities over twenty-five years — offences punishable under the Indian Penal Code constitute the major share, as opposed to offences punishable by various special and local laws. The reports suggest change and stability within these two sets over time. For instance, Offences against the Body (murder, rape, etc.) are still the main Penal Code offences for which people are jailed, but the share of undertrial prisoners arrested for property crimes such as theft, cheating and forgery has increased.
The Scope for Improvement
There are a lot of important trends that remain difficult to track in part because of the way data is presented in the reports and in part because the data is simply not presented at all. Towards this, some suggestions are flagged below:
- Crime in India reports have tracked arrest data on an annual basis for a number of years which gives an indication about how arrests without warrant are made. But at the same time, there is no clear data for police station or court bails to indicate how many of these were cases where persons had a right of bail — either because the offence was "bailable" or because the police did not complete investigation and statutory bail accrued. This makes it difficult to get an idea about how many cases are those where persons end up incarcerated despite having a pure right of bail.
- For some years from 1995 till 2019, primarily in reports after 2010, there is also about the total number of prisoners admitted to prisons each year with state-wise breakups. But little or nothing has been done with this information, and this is a problem. More details about this figure on total inmates can go a long way in providing a richer picture of incarceration trends. Today we have the National Prisons Information Portal which gives a daily update in broad-level prisons data with a seven-day history. If not the NCRB, then surely the online portal can be improved to not only give more clarity besides telling us how many admissions, releases, and visits take place daily, but also retain that data for longer than seven-day periods allowing researchers to plot trends.
- The statistics for average duration of custody for undertrials are useful, but we still do not have data linking duration of custody to types of offences. So while we do know that over 50% of undertrial prisoners spend up to six months in custody, we have no idea if certain kinds of offences are over-represented in this bracket. Such information is likely to prove critical for making targeted interventions to amend statutes by either decriminalising conduct or at least making it non-cognizable and / or bailable.
- The NCRB data on duration of incarceration creates brackets that begin with a range of "up to 3 months". This is pathetic, in my opinion, because it is a slap in the face of our rhetoric about how each day in fetters is critical. We need to blow up this detail to figure out (a) the length of police custody detention suffered by persons before they go to jail, (b) if the "up to" 3 months is showing greater concentrations around certain days in custody.
Monday, December 7, 2020
Saturday, November 21, 2020
Sunday, November 15, 2020
(This is a guest post by Anam Chowdhary)
“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused.(3) the circumstances should be of a conclusive nature and tendency.(4) they should exclude every possible hypothesis except the one to be proved, and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”
- The circumstances (facts) from which the guilt is to be drawn should be relevant to the fact in issue, under Chapter II of the IEA, 1872;
- Such facts must be proved using admissible evidence;
- The standard of proof of such facts should be as per Section 3 of the IEA, 1872;
- Depending upon the case in hand, the facts can make up links in the chain of circumstantial evidence or could act as strands in the final cable of circumstantial evidence, and;
- The inference derived from the cumulative effect of the above mentioned facts must be such that it only leads to the inference of the inference of the guilt of the accused and does not leave any reasonable ground for an alternative hypothesis of the innocence of the accused.