Supreme Court Grants Bail in the P. Chidambaram Cases — Some Thoughts

[This is a long post discussing both the CBI and the ED Bail Orders]

Readers may recall that at the end of August 2019, the Delhi High Court dismissed the petitions of P. Chidambaram for anticipatory bail in connection with what has become popularly known as the "INX Media Scam", which was the subject matter of investigations being conducted by the Central Bureau of Investigation ["CBI"] as well as the Enforcement Directorate ["ED"]. Mr. Chidambaram was arrested by the CBI almost immediately after this order, and so he moved the Supreme Court for anticipatory bail in the ED case. The petition in the ED case was also dismissed on 05.09.2019, since the Supreme Court agreed that necessary custodial interrogation would suffer if bail were granted.

Mr. Chidambaram's bail pleas in the CBI case made their way to the Supreme Court, and around two months after his initial arrest, the Supreme Court held in his favour, directing that he be released on bail in the CBI Case [Crl. Appeal No. 1603/2019, decided on 22.10.2019]. However this did not lead to his release since, around a week before the order, the ED had sought, and was granted, permission to arrest Mr. Chidambaram [Note that the ED had not made any efforts to secure his custody, let alone arrest Mr. Chidambaram, till 11.10.2019]. This triggered another set of bail petitions, which resulted in the order passed today in P. Chidambaram v. Enforcement Directorate granting him bail in the ED case [Crl. Appeal 1831 of 2019, decided on 04.12.2019].

The slew of orders passed by courts in Mr. Chidambaram's petitions has made distinct contributions to the law in this field — some desirable, others not so. Having discussed previous orders at the stage of anticipatory bail, this post discusses the two orders of October [Crl. A. 1603/2019] and December [Crl. A. 1831/2019]. I first discuss their contributions to the law, and then make some observations on the proceedings at large to highlight the seriousness of certain issues that are given criminally negligible attention by courts while considering the grant or refusal of bail.

P. Chidambaram v. CBI — Focusing on the Particulars       

The posture of proceedings before the Supreme Court in this case was slightly peculiar: The High Court had held that there was no basis to apprehend that Mr. Chidambaram would tamper with evidence, or that he was a "flight risk". Nevertheless, it rejected his bail plea, considering the probability that he could influence other witnesses. Both parties filed cross-appeals in the Supreme Court where the accused sought bail, and the CBI sought to challenge the High Court's observations that Mr. Chidambaram was not a flight risk.

In a pleasantly short order, the Supreme Court held that bail ought to be granted. Besides helpfully culling out five relevant principles for considering bail pleas for future courts [(i) Gravity, (ii) Threat of Tampering with Evidence, (iii) Threat of Absconding, (iv) Status / Personal factors of the Accused, and (v) Public / State interest (See Paragraph 22)], the Court also repeatedly insisted that the specifics of each case be looked at and, in doing so, chided the State for asking the Court to treat the "flight risk of economic offenders [as] a national phenomenon".

How is a Court to consider the above factors, then? The Supreme Court did not approve of a full-blown analysis of the merits of the prosecution. Instead, it advocated an approach that focused on the identified factors primarily, along with a minimal consideration of the prosecution's case itself. Judicial analysis of these bail factors had to be rigorous — something apparent in how the CBI submissions were rejected for being vague, generic, and totally unsupported by the actual facts of the case [Paragraphs 27 ("Flight Risk"); Paragraphs 28—31 ("Tampering")]. Thus, as the Court points out: 

Mere averments that the appellant approached the witnesses and the assertion that the appellant would further pressurize the witnesses, without any material basis cannot be the reason to deny regular bail to the appellant; more so, when the appellant has been in custody for nearly two months, co-operated with the investigating agency and the charge sheet is also filed. [Paragraph 31. Emphasis supplied]

I suspect that the Paragraph extracted above might end up being cited in subsequent bail petitions and judicial orders. But the real takeaway is the judicial approach on display here: The Court's refusal to be cowed by rhetoric and hyperbole while remaining keenly focused on an appreciation of the facts as they are relevant to the issue of bail. This is something that merits emulation, especially in cases where public glare is the harshest.

P. Chidambaram v. ED — Of Triple Tripods and Gravity of Offences

The Delhi High Court had denied bail in the ED case primarily due to the seriousness of allegations while holding that there was no threat of Mr. Chidambaram either absconding or tampering with evidence. Its order had attracted a stream of press coverage for reportedly copying portions of the State's submissions as part of its "findings", as well as discussing the facts of an entirely unrelated case as being related to the case against Mr. Chidambaram [Paragraph 11].

The Court relied upon its own earlier orders from October in Crl. Appeal No. 1603/2019 to outline the factors relevant for deciding a bail petition. But, curiously, the Court completely failed to mention that this was a case where, besides Section 439 of the Criminal Procedure Code 1973 ["Cr.P.C."], the provisions of Section 45 of the Prevention of Money Laundering Act 2002 ["PMLA"] would also have to be considered. 

That provision itself had been struck down as unconstitutional in 2017. But since then, there was an amendment to the PMLA in 2018, which sought to cure the defects in the provision and render it constitutional. In fact, the legal effect of the changes to Section 45 through the 2018 amendments has been the subject of judicial scrutiny before some High Courts but it is an issue that hasn't yet been considered by the Supreme Court. Given this position, I find it extremely peculiar that the judgment completely fails to mention Section 45, and wonder if this fact may form a valid ground for review.

After the Supreme Court simply assumed that the legal considerations for bail in a PMLA case would be the same as in any other case [Paragraphs 15—17], it also impliedly rejected the submission made by Dr. Singhvi, appearing for the appellant, that the gravity of an offence needn't be a factor for consideration at the stage of bail and the only relevant factor was the "Triple Test" of evasion, tampering, and influencing witnesses (or "Triple Tripod" as the order notes at one place) [Paragraphs 15—17, 21]. 

Having said so, the Apex Court disapproved of the manner in which the High Court had gone about considering the merits of the prosecution case for assessing the gravity of allegations. This criticism was of a threefold, and partly contradictory, nature: (i) the extensive nature of scrutiny, (ii) the apparently uncritical assessment of facts (by copying the State's submissions), and (iii) relying upon the material supplied in sealed covers to arrive at a conclusion [Paragraphs 23—24]. Considering the ubiquity of sealed covers in the practice of law today, it was refreshing to read the Court refraining from opening the sealed cover [Paragraph 24] and observing that: 

In that circumstance though it is held that it would be open for the Court to peruse the documents, it would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail. [Paragraph 23. Emphasis supplied]

The Supreme Court did not agree with the finding that the seriousness of allegations was a sufficient reason to deny Mr. Chidambaram bail. In arriving at this conclusion it also strongly rejected the State's claim that his custody was required to confront him with witnesses, recalling that the ED had  had several months to do so since the rejection of Anticipatory Bail on 05.09.2019, and that Mr. Chidambaram's cooperation with the investigation could be secured through appropriate bail conditions. One of these, which is bound to attract some controversy in the coming days, is a condition prohibiting him from speaking publicly in "connection with this case" [which may or may not extend to the CBI case].   

The Chidambaram Cases, Arrests, and Custody — Unexplored Issues

The legal aspects of the Chidambaram cases have thus been explored. But it would be naive to think that these cases were all about the law — far from it. This is why it becomes important to consider some of the other issues that remain unexplored in these orders. Foremost among these issues is the need for greater scrutiny while evaluating the State's perceived need for a person's custody and alleged non-cooperation by an accused person with the investigation.

While discussing the 05.09.2019 order rejecting Mr. Chidambaram's plea for anticipatory bail in the ED case, this Blog had criticised the "hands-off" approach of the Supreme Court in engaging with the arguments about the lack of cooperation by the accused. The order reflected a complete refusal to test the claims by ED of the need for Mr. Chidambaram's custodial interrogation, uncritically accepting the submission about there being a "qualitative" difference in the kind of questioning that might be conducted with a person on bail. The bail order of 04.12.2019 does narrate the failure of the ED in conducting any significant interrogation or confrontation with witnesses, but it sorely missed an opportunity to revisit this critical issue which crops up in almost every other bail hearing. 

In fact, the Chidambaram cases confirm how agencies often seek custody without ever having any intent to conduct thorough questioning, and repeatedly seek further extensions of custody by promising that a very important phase of questioning is on the horizon. Thus, while the Supreme Court did well to call out the ED on its bluff of future questioning in the 04.12.2019 order, it still remains possible for state agencies to merely claim that an accused person is not cooperating with the probe without ever having to substantiate this allegation to a reasonable degree of scrutiny. Surely this cannot be the position of law in a constitutional republic that claims to be very protective of a person's right to life and personal liberty. 

The unrelated, and more thorny issue, is the role played by the "gravity" of an offence. This was one of the main grounds for critiquing the Delhi High Court's initial orders of August 2019. Again, it is unfortunate that the Supreme Court did not make some attempts at clarifying the legal position through the multiple orders it passed in the Chidambaram cases. 

To recap, the problems with considering the gravity of the offence as a factor for deciding bail petitions are twofold. The first problem is a lack of nuance while considering the issue: Simply looking at the maximum possible sentence and the best case of the police is too uncritical an approach, especially in offences where criminality is inferred from neutral facts [fraud, corruption] and is not apparent as in cases of bodily harm [murder, dacoity]. 

But there is also a second, related problem with treating gravity as a factor for deciding bail petitions. Considering the fact that a case is at its infancy when a bail petition is being heard, courts have consistently held that there mustn't be an in-depth examination of the merits, which is something reserved for the trial. At the same time, there must be some examination of the merits to determine the gravity of allegations, since a court cannot blindly accept every averment that the police makes. Drawing this fine line between what is too little and what is too much scrutiny of the facts is the problem, and we saw how the High Court's approach was criticised in both the CBI and ED cases as having gone too far in its analysis. But this criticism was hardly scientific, and the arbitrariness of this line-drawing is apparent upon a random sampling of bail orders and on reading the submissions made before courts. 

Considering that the Supreme Court specifically rejected Dr. Singhvi's submissions on the factors for deciding bail, and unequivocally held that "gravity" must be seen as a factor for determining the bail petition [Paragraph 21 of the 04.12.2019 order], it is singularly unfortunate that while it criticised the Delhi High Court's analysis, it did so without offering any guidance for courts which undertake this difficult line-drawing exercise on a daily basis. Greater certainty in this realm would not only help reduce the arbitrariness that plagues bail hearings at present, but would also arguably make them proceed faster, with everyone having a clearer picture of what is relevant and what isn't.      

Dear Minister, There Are No Silver Bullets — Of Speedy Trials and the Criminal Process

The 47th All India Police Science Congress recently concluded in Lucknow, Uttar Pradesh, and it has been reported that the Union Minister for Home Affairs has once again spoken of this Government's desire to carry out amendments to the Indian Penal Code 1860 [IPC] and the Criminal Procedure Code 1973 [CrPC]. This, according to me, is the second such public statement made by this Government. While this may not itself be of any significance, I would argue it assumes immense significance considering that this is the second such statement to have come within the first six months of this Government's tenure. 

It is highly probable, then, to expect these proposed amendments to be released for public discussion within the next year. In the build-up, the Minister has made fairly moderated remarks about the process of legislative reform, as well as about the objectives that the proposed reforms will seek to pursue. One of these objectives is the idea of a speedy trial for criminal cases. That delayed disposals of cases is a problem plaguing the Indian legal process is a fact nobody can dispute — in fact, some might argue it is the problem of our legal process. 

Given this enormity of the problem, and the public statements of moderation and deliberation made by the Union Minister, it was quite surprising to read the Minister of State for Home Affairs to have reportedly stated that the proposed amendments might include provisions that restrict the right of an accused person to appeal against a conviction, in case of offences such as rape. As per the report, the proposed amendment will only permit an appeal to the Supreme Court, and in doing so ensure that an accused undergoes his sentence rather than remains at large by prolonging an appeal.

With the greatest respect, it is exactly this tendency of enacting horribly myopic changes to the law displayed by successive governments, that not only worsens the problem of case delays, but also compounds various other problems with the criminal process. Consider this proposal seriously for a minute: Sure, in theory, taking away one stage of appeals may speed up the ultimate disposal of a case. But stop here and think about what will happen to all those appeals that currently end up before the High Court. Sure, not everyone will chase the appeal to the Supreme Court, but in light of the stakes involved (the shame of conviction and the lengthy sentence) it is fair to assume a lot of people will still want to go to Court. So, then, what ends up happening is that there are worse delays at the level of the Supreme Court. Delays which will take valuable time away from the judges to decide matters of constitutional importance. 

Thus, such myopic "reform" to the law to get "speedy trials" end up worsening the very problem it set out to resolve. Besides which, it compounds the many other problems that are a part of the criminal process. I mentioned above that many persons may choose to not pursue appeals if the only option is to go to the Supreme Court. Only a fool would argue that this is the result of a fair choice presented to the accused person. Rather, considering the profile of an ordinary convict as per the government data, far more likely is the probability that the convict just cannot afford to fight that litigation. The legal process can't be made to run so fast that it crushes the very persons it is meant to serve.

There is no doubt that the criminal process has many problems in its current state. There is, again, no doubt that the causes of these problems are manifold, the outcomes of complex interactions between different parts of the process, that have been going on for decades (even centuries). The need for slow and careful deliberation in the process of attempting a resolution of these knotted problems cannot be overstated. It will do us well if our Ministers abandon the search for silver bullets. 

P.S. — While I appreciate the criticism mounted by the Union Minister against the "colonial" nature of the criminal law statutes, we mustn't forget that some of them, such as the Cr.P.C., are not colonial but the product of extensive deliberations made by legislators of an independent India. 

Guest Post: Mental Health of Indian Prisoners — An Analysis of Key Provisions, Guidelines and Judicial Decisions

(I am pleased to present this post by Ms. Ananya Narain Tyagi and Mr. Mohak Thukral, both are students currently pursuing their undergraduate law degree at Jindal Global Law School, Haryana) 

“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”- Nelson Mandela.

"In December 2017, I visited the Ludhiana Central Jail as a part of my internship with the National Legal Services Authority. While I was discussing the prison conditions with the nominated Para-Legal Volunteer and the accompanying Panel Lawyer, loud shouts by a guy started being heard. “I want to go to my mother”, he shouted in Punjabi. The guards and the Para-Legal Volunteer told me about this mentally ill inmate and narrated a few stories of his violent acts. Within a few minutes, he came inside the office. Naturally, I was both shocked and afraid. On being called by a guard, around 5 other inmates gathered and dragged him out of the office. A week later, I visited the newly inaugurated Mandoli Complex of the Tihar Jail in New Delhi. To my utter surprise, this place was beautifully constructed. The guards gave us a tour of the place showing us the beautiful paintings made by the inmates on the walls and in the Art room. The guards showed us the dorms, the garden and the shops inside the complex. However, we weren’t allowed to visit the Music Room. On asking the reason, I received a shocking reply from the guard who hesitantly said, “A few days back, an inmate committed suicide inside the Music Room.” I was short of words. These two incidents made me realise the poor mental health conditions in Indian Prison Systems.” — Mohak Thukral

Among the many issues that India is currently facing, recognition and providing for an adequate response to the deploring mental health of the population is one of the most worrying concerns. Prisoners are yet another part of this vulnerable population whose mental health is usually neglected. In fact, general research has shown that there is a significantly higher rate of mental health problems with prisoners in India. 

The purpose behind this essay is to highlight the effect of incarceration on a prisoner’s mental health and the system’s failure to recognise the same. We begin by highlighting components of the current prison system which are possible reasons for an inmate developing mental health issues during the course of imprisonment. Picking up from there, we will identify the provisions of the Criminal Procedure Code 1973 [Cr.P.C.], and other statutes, model guidelines, and reports to understand how mental health issues stem out during the arrest of a person. 

Incarceration and Mental Health 

Mental Health issues can arise due to lack of personal liberty and deprivation of basic necessities in prisons. The World Health Organization (WHO) has identified overcrowding, violence inside the prisons, lack of privacy, isolation from social networks, insecurities about future, along with the lack of effective mental healthcare in prisons as major reasons for rising mental illness issues in prisons. 

Rabiya and Raghavan have further outlined that deploring mental health of prisoners can lead to lack of control by the administration, increase in the number of cases of self-harm, suicide, damage to property and the well-being of other inmates and the staff of the prisons being threatened. A prisoner with mental health problems is vulnerable to other issues like suffering from poor physical health, drug abuse, and inability to maintain relations inside the prison. 

While discussing the situation in India, it would be interesting to note the struggle of Indian prisons with these factors, especially with overcrowding. Suicide was found out to be the leading cause of unnatural deaths in Indian Prisons, giving an insight into the instances of self-inflicted harm in India. Further, the Supreme Court through a commission identified the poor status of mental healthcare facilities in the prisons in the landmark case of Sheela Barse. 

The Indian Legal Regime 

The Mental Healthcare Act of 2017 is an exhaustive piece of legislation containing important provisions such as under section 31(2) it provides for mandatory training of all medical officers in prisons to provide basic and emergency mental healthcare. Additionally, under section 103(6) of the act, it mandates each state governments to set up mental health establishment in the medical wing of at least one prison in the state. While the act points out important concerns regarding mental health, we believe it is inconsistent with the ground realities as there is a lack of adequate infrastructure and qualified staff in the country. In fact, as per recent news reports, the implementation of the act has failed miserably. 

To get a better understanding of the situation in prisons, we shall now briefly discuss the Model Prison Manual issued by the Ministry of Home Affairs in the year 2016. While management of prisons is a matter to be legislated upon by states (being entry number 2 in the State List), the Government of India releases suggestive guidelines and such model manuals time to time for states to emulate them. If we look at the Model Prison Manual itself, in a chapter towards medical care, it suggests for a minimum of one psychiatric counsellor in each type of prison. However, unlike for other positions mentioned, it does not deal with their appointment. 

While the Manual deals extensively with aspects like mental health and rehabilitation, most states of the country till now have not successfully followed this model. In fact, the Supreme Court has observed that most of the states have even failed to model their rules on the basis of the earlier 2003 Model. In Jan Adalat v. State of Maharashtra, Raju Jagdish Paswan v. State of Maharashtra and in few other cases, the court has also commented on the inadequacies of different state models, expressing discontent on the poor emulation of reformative measures outlined in Model Prison Rules. To illustrate, the Chhattisgarh Jail Department’s “Prisoner’s welfare and Rehabilitation Policy”, consists of a single point directly regarding mental health. This policy is inadequate as the only proposed action is to keep the minds of prisoners busy and impart ethics and values to them . 

The Indian Prison System has also failed to adopt the progressive rehabilitation techniques which are being followed by the EU/US Prison System which focus on peer support training and segregation of the mentally unfit from the general prison population in order to narrow down their scope for treatment. 

The Criminal Process and Mental Health 

According to the latest National Crime Records Bureau data on prisons, over six thousand of the total prisoners are suffering from some form of mental illness. And what is more shocking is that out of this number, around 52% are undertrials and detainees. The Cr.P.C. has a dedicated chapter with provisions dealing with instances where the accused is of an unsound mind. The important provisions of the chapter entail, providing bail to the accused even in the case of a non-bailable offence if identified as lunatic during the time of inquiry or trial (Sections 328 and 329). It also gives the Magistrate or the Court the right to order detainment of the accused in safe custody and resume the trial when the concerned person ceases to be of an unsound mind (Sections 330 and 331). Other provisions deal with procedures related to appearance in front of the Magistrate or court, and how a “lunatic” person is to be released when fit. 

Our concerns with provisions of the Cr.P.C. are of 3 forms: lack of proper standards, inadequacy, and possibility of abuse. 

Lack of Standards 

The procedure outlined in the chapter uses different and varying expressions of qualification for the Magistrate or the court to take any action. For example, Section 330(2) of the Cr.P.C. which deals with cases when bail must not be given, the qualifying words used are “Opinion of the Magistrate or Court.” Similarly, Section 330(3) of Cr.P.C. uses terms like, “Sufficient Security” and “Opinion of the Magistrate” while dealing with discharge of the mentally ill accused. 

We find usage of such terms to be problematic because an issue like bail to someone who is mentally ill may have varied and far-reaching consequences. Further, a Magistrate or a court cannot be expected to be the best judge of the accused’s mental condition. Therefore, we endorse the phrase “reason to believe” to replace “Opinion” and adding the term “Reasonable” before securities. Such qualifying words are endorsed because, under their application, the decision of the court and the magistrate can only be justified when there is a sufficient cause to believe it and not when there is a subjective satisfaction alone. For example, in the case of Amit Kumar Dey v. State of Tripura, it was observed that the Additional Sessions Judge, contrary to what was suggested in the reports submitted by medical experts, denied bail on his opinion of the mental condition of the accused. The High Court while adjudicating on the matter held that the conclusion of the trial judge must be based on sound evidence, thereby, ensuring a free and fair trial to the accused. We believe that this principle must be embodied in the provisions of Cr.P.C. itself to avoid any confusions or ambiguity. 

Inadequacy 

We are of the opinion that the provisions of Cr.P.C. are inadequate while dealing with mental health. For example, Section 54 of the Act, provides for mandatory examination of the arrested person by a medical officer. While such medical officer is required to record marks of violence or injuries, the officer is not required to examine the mental condition or prepare a report on the mental health of the accused. 

The mental health of an individual can be severely impacted while in the custody of the police. To account for the same, we believe this provision must be modified mandating the report of the mental health of each arrested person to be prepared. This would also give a better insight into the mental condition of the accused while committing the crime. Also, the Cr.P.C., in Section 330(2) makes reference to the Mental Health Act of 1987 which as of now stands repealed and is replaced by the Mental Healthcare Act of 2017. If we go according to the rules of the interpretation of a statute, it is implied that the Magistrate or the Court, must read the latest act but still we believe to avoid ambiguities especially in the lower judiciary, this rectification should be made as soon as possible. 

Possibility of Abuse 

The Indian Exclusion Report categorically highlights instances where individuals with poor mental health are arrested and detained without any cause owing to requests or bribes paid to the police. The problem is further fuelled as according to the same report, it becomes difficult for the the mentally ill population to access means of justice. While Section 304 of the Cr.P.C. provides for free legal aid to the accused, it has not been effective while dealing with the accused who are mentally ill. Even the National Legal Services Authority has acknowledged this and is currently working on its schemes for the welfare of the mentally ill. This again brings us to the persistent problem of quality of legal aid offered in India. 

Conclusion 

Hon’ble Justice Rajiv Sharma of the Uttarakhand High Court remarked “A prisoner may emerge from the prison not only without job skills, but also incapacitated for future work because of severe and lasting physical and mental health issues.” The far-reaching consequences of poor mental healthcare facilities in prisons have time and again been emphasised, guidelines have been issued, instructions have been given, and acts have been passed. However, there has been no significant change in the ground realities. 

We believe that the main reasons behind this is a lack of acknowledgement and recognition of Mental Health as a serious issue. Before any change in the policies, it is this lack of concern towards mental health must be addressed. 

Section 251 CrPC and Discharge in Summons Cases: Part IV

[This is the fourth and final post in a series. The earlier posts can be accessed here, here, and here.]

The issue being discussed in this series has been given a sense of urgency, because a trial court in Delhi was pressed to make a reference under Section 305 of the Criminal Procedure Code 1973 [Cr.P.C.] to the Delhi High Court, raising the following questions which I've paraphrased below from the High Court's order: 

Q.1 Can a court discharge the accused after appearance in in a summons triable case based upon a complaint in general, and in a case under Section 138 NI Act in particular? 

Q.2 If so, under which Section of Cr.P.C. does such a power lie? 

Q.3 Further, at what stage can an application for discharge be entertained i.e. before framing of notice under Section 251 Cr.P.C., or before / at the time of framing of notice, or even after the framing of notice? 

Q.4 Finally, if the answer to Question 1 is yes, what shall be the scope of such a power of discharge? Will it be similar to discharge proceedings in Sessions / Warrant Cases? Can documents produced by the accused be considered at this stage? 

Q.5 On the other hand, if the answer to Question 1 is in the negative, does the accused have no remedy at the trial court, which must begin a trial after process has been issued and accused has been summoned under Section 204 Cr.P.C.? 

Summing Up the Legal Position

The previous three posts have sought to sum up the legal position on this issue of whether Summons Cases — prosecutions for offences punishable with up to two years in prison, as defined under the Cr.P.C. — can be ended prior to the stage of an acquittal / conviction by a court if the case appears to be groundless. This review could be seen as supporting the following broad conclusions:

• There is clear statutory basis to end proceedings in Summons Cases instituted upon complaints by private persons if they are baseless, before issuing process to an accused to come to court and answer the allegations [Section 203, Cr.P.C.].
• There is clear statutory basis to end proceedings in Summons Cases instituted otherwise than on a complaint, even after an accused person has been called to court. This may or may not be because the prosecution is baseless — something we can't know because the statute does not require a court to give reasons [Section 258, Cr.P.C.].
• The Supreme Court has expressly held that in Summons Cases instituted upon complaints, the trial court cannot recall the process issued to an accused, in the event of being convinced by the accused that the proceedings were baseless [Adalat Prasad, (2004) 7 SCC 338]. 
• Further, in Subramanian Sethuraman [(2004) 3 SCC 324], the Supreme Court refused to permit a discharge in a case where the request was made after notice was framed and the accused had entered a plea of not guilty.
• At the same time, the Supreme Court has not expressly considered whether a trial court could end proceedings under Section 251, Cr.P.C., by permitting the accused to address arguments on whether the proceedings are baseless. While the opportunity arose to consider the issue in Amit Sibal v. Arvind Kejriwal, that petition was ultimately decided by consent of both parties.  

Thus, the legal position as I understood it helps to partially answer some of these questions. But the materials that I examined left the essential question unanswered, i.e., whether or not a trial court has the power to end Summons Cases instituted upon complaints without conducting a full trial, even after the court has considered the Complaint for purposes of issuing process to an accused and calling her to court. 

Making the Case for Permitting Discharge in Summons Cases

But must the absence of clear statutory authority and / or judicial precedent lead to a conclusion that trial courts cannot pass an order of discharge in Summons Cases? If we consider this as purely being a point of law, then I think that the weight of authority in favour of granting trial courts the power to end Summons Cases instituted upon Complaints by discharging an accused person is quite weak. 

Strictly Legal Approach 

It is no accident that the Cr.P.C. does not contain any express provisions for discharge in Summons Cases instituted upon complaints. After all, the Cr.P.C. is designed to achieve a balance between two interests — expeditious disposal of cases, and ensuring that persons are not unnecessarily dragged to face the punishing procedure of a criminal case. 

Thus, while this sense of balance led Parliament to create multiple critical stages before judgment in Sessions Cases and Warrant Cases, where prosecutions could be terminated if found groundless, the same was not chosen for Summons Cases. The 14th and the 41st Law Commission Reports had also earmarked the procedure in Summons Cases for its ability to get quick verdicts, mainly because this procedure was not designed to have all the trappings of a full trial. This promise of speedy trials is what propelled Parliament to enhance the jurisdiction of Summons Cases from only catering to offences punishable with imprisonment for up to six months, to the position today where prosecutions for offences punishable with up to two years in prison are tried as Summons Cases. By creating an additional critical stage, we would end up dragging Summons Cases on for too long and slowly erode the very purpose behind having procedural distinctions between a Summons Case and a Warrant Case which led to expanding the ambit of the former class of cases.

Criminal Process Approach

Unfortunately, the criminal process does not always work as it is imagined in statutes or in opinions of the Supreme Court. The same goes for the gap between the ideals guiding the Cr.P.C., and how far these are realised on the ground. 

Thus, while the Cr.P.C. was modified in 1973 to help speed up the trials of various cases, NCRB data shows that delays have only gotten worse in the decades since 1973. Furthermore, very often the discretion vested in trial courts to weed out groundless cases at different critical stages is not properly exercised. This is often compounded by delays plaguing the system, requiring superhuman capacity of judges to separate the grain from the chaff. This ultimately forces aggrieved persons to move an appellate court in the judicial ladder for seeking justice by way of immediate remedy against what is perceived as an unfair prosecution that will take years to resolve. All of which, in turn, clogs appellate courts by burdening them with such matters and taking away time to finally decide pending appeals. 

It is for these reasons that incorporating a critical stage akin to discharge for Summons Cases, even if they are instituted upon a complaint, becomes necessary to help maintain that balance between the ideas of efficiency and justice in the criminal process. The same logic is what propelled the Supreme Court to gradually enhance the powers of magistrates during criminal investigations, first in Sakiri Vasu [(2008) 2 SCC 409] and more recently in Vinubhai [Crl. Appeal Nos. 478-479 of 2017, decided on 16.10.2019]. 

Considering the Reference Issues

Once we agree that having a stage akin to discharge is necessary, the answers to the remaining issues are easier. The decision in Adalat Prasad confirms that a court cannot recall a summons, and the decision in Subramanian Sethuraman similarly tells us that there is no going back on a trial once the accused has entered a plea. Which leaves a small window open for a court to consider a discharge plea — after an accused appears in court, but before the notice is framed under Section 251, Cr.P.C. 

The power to end cases must be implied as existing in the same provision, by empowering a court to not frame notice, if no basis for accusations is made out. And the scope of these discharge hearings must be more progressive than those under Section 239, Cr.P.C. for Warrant Cases. Thus, while an accused will not have carte blanche to bring in materials, there must be scope for a court to consider materials of sterling quality, the provenance of which cannot be doubted. For instance, a government document like a Form 32, confirming that an accused person arraigned in a cheque bouncing case for being the director of a company, was in fact not a director of the concerned company at the relevant point in time.

Conclusion

Criminal trials are long processes that involve serious costs for the litigants and the courts, in terms of time and money. The lengthy nature of criminal trials can often be the tradeoff society must give to prevent wrongful convictions by allowing courts to take their time. The same breath carries the idea that since not all cases will be merit-worthy, perhaps a trial could be avoided to decide patently bogus cases. Allowing courts this power goes a long to way to ensure that the process does not become the punishment for innocent persons.

In Summons Cases instituted upon complaints, statutory provisions today expressly require courts to consider whether the case has sufficient basis to proceed before calling an accused to court. The sheer number of Summons Cases and their pendency rate, when compared with the rate of conviction, suggests that courts are perhaps not able to perform the task of weeding out the bad cases from the good in the most optimal way possible. 

This is hardly surprising given the burden that every court must shoulder. So, one wonders, given that a court cannot be expected today to provide each case with the time it requires, would it not help the process if the court can secure the benefit of a proper adversarial hearing to help make its decision? Would it not help the court carry out its judicial function of securing justice without sacrificing all concerns of efficiency, if two parties committed to their position make their case and guide the court to consider all relevant facets for making a decision? It certainly would, and therefore, it is necessary that the criminal process legitimises such proceedings in Summons Cases instituted upon complaints. 

Of course, there would be no need for lengthy and dense essays on the subject if the statute could just be drafted with more clarity. Considering how these gaps in the statutory framework have been the topic of comment in judicial decisions at least since the 1980s, it cannot be said that Parliament has not had enough time to consider the issue. It is inconceivable that Parliament has chosen to stand by and not iron out the creases even after the discussions in K.M. Mathew and Adalat Prasad. Even now, any solution that the Delhi High Court offers by answering the Reference, would only help to solve these issues in one part of the vast Indian legal system. It will not, and cannot, supplant the persisting need for legislative consideration of the problem.

Section 251 CrPC and Discharge in Summons Cases: Part III

[This is Part III in a multi-part series. The previous posts can be accessed, here and here]

The previous post in this series traced how the statutory text pertaining to the procedure for trial in Summons Cases developed from 1861 till the late 1960s. This historical arc was traced to identify how, at different points of time, Summons Cases had provisions for ending a case before the final stage of judgment. In other words, to examine whether the critical stage of discharge was present for these cases, in any shape or form. 

Recap

The historical review confirmed that explicit provisions for discharge have never been part of the trial procedure for Summons Cases. But, the gradual development of statutory text definitely suggested that legislators intended to provide for a critical stage permitting that a Summons Case may be ended without having to go through the rigmarole of a full-length trial. This evolution was seen in how, after the 1861 Code, successive Codes permitted magistrates to undertake a more detailed inquiry before issuing process to an accused, calling upon her to answer the allegations in the complaint. Further, it was also seen through provisions that permitted magistrates to end the case before judgment after an accused had come to court, by dismissing complaints that were frivolous or vexatious. 

However, by 1898, the power to dismiss frivolous cases after an accused had entered appearance was taken away, to be replaced by a power to end only those cases that were not instituted upon a complaint. One way to read this development would be to argue that since in complaint cases the law now provided for an inquiry before issuing process, it made sure that only genuine cases were going to trial. And since this setup was not available for the cases not instituted upon a complaint, it made sense to empower magistrates to end only those cases not instituted upon complaints after process had been issued to compel an accused to appear in court. 

Judicial engagement with these provisions, especially after 1950, suggested that even though there was no exact substitute of the discharge stage in Summons Cases, magistrates were taking steps that had similar effect. Further, in some cases, accused persons were indeed appearing at the inquiry stage to assist the court, before they were formally summoned to appear and answer the allegations against them. This judicial engagement meant that even in the Summons Case, a critical stage was very much present, which permitted a court to terminate proceedings without having to conclude a full trial.

The 1973 Code

The 1973 Code [Cr.P.C.] retained most of the scheme as present in the erstwhile 1898 Code. This was by design, as made clear by Chapter 20 of the 41st Law Commission Report [The Chapter starts at page 12 of the PDF]. However, it did go ahead and refine some parts of the process. Some notable revisions were:

• Summons Cases were no longer those punishable up to six months. This limit had been extended to one year by an amending act of 1955, and was now extended to a maximum of two years imprisonment, with or without fine [Sections 2(w) & 2(x), Cr.P.C.]. While this is not discussed in the 41st Report, a reading of the 14th Report [Page 723 of the PDF] and the 37th Report [Page 44 of the PDF] suggest this was done to expand the number of offences triable as Summons Cases, and reduce the arbitrariness within the Code which permitted largely similar offences to be tried differently;
• The provision for guilty pleas was refined to exclude language which required that an accused answer "if he has any cause to show why he should not be convicted", as this language was found to be confusing by the Law Commission [Sections 251 & 252, Cr.P.C.];
• The provision for awarding compensation to accused persons for frivolous or vexatious cases, was shifted out of the procedure for Summons Cases into the procedure for Warrant Cases [Section 250, Cr.P.C.]. This resolved the incongruity, of this provision referring to "discharge" in the 1898 Code, even though a Summons Case did not involve the framing of charges.

A reading of the 41st Law Commission Report that led to the 1973 Code reveals no mention of our issue, i.e. whether or not magistrates have a power akin to discharge in Summons Cases. However, this is perhaps understandable. The Law Commission Report was published in September 1969, only a month after the decision in Municipal Corporation, Raipur, where the Supreme Court upheld orders of a magistrate discharging a person in a Summons Case instituted upon a complaint. Perhaps the Report was already finalised before this judgment, and thus, the issue couldn't be considered.

Judicial Engagement — The Journey till Adalat Prasad  

A survey of reported decisions on online databases, of cases after the enactment of the Cr.P.C., 1973, did not lead me to a flood of citations cropping up where the issue of discharge was argued in the months after the new Code came into force. Rather, my most relevant search result was the decision in Raj Kumar Aggarwal [1987 (12) DRJ 62], which suggested that in Delhi at least, accused persons were appearing before magistrates to address legal arguments when the case was at the stage of framing notice under Section 251, Cr.P.C. [the High Court did not mention whether or not this was proper]. The lack of results in the databases could mean many things, of course. One such inference is that this is not because accused persons were happily facing trial in all Summons Cases, but rather that accused persons were engaging in attempts at pre-trial dismissal of cases at a stage other than framing of notice under Section 251, Cr.P.C. And what makes this inference credible is the Supreme Court's decision in K.M Mathew [AIR 1992 SC 2206]. 

K.M. Mathew involved a Summons Case where the Petitioner — the Chief Editor of Malayala Manorma — challenged proceedings in a defamation case instituted upon a complaint, after having been summoned to face trial. All accused persons appeared before the court after summons, and convinced the magistrate to drop proceedings, having argued that no case was made out. But the High Court overturned this order. It is worthwhile to extract the Supreme Court's discussion on the same:    

The High Court did not examine whether the complainant has or has not made out a case against the Chief Editor. The High Court rested its conclusion solely on the procedural requirements of the trial of a summons-case. It has been pointed out that in any private complaint triable as a summons-case the Magistrate, after taking cognizance of the offence and issuing process, has no jurisdiction to drop proceedings against the accused. He is bound to proceed under Chapter XX of the Code of Criminal Procedure when the accused enters appearance. He will have to state the particulars of the offence and record the plea of the accused. When the accused pleads not guilty, he will have to hear the prosecution and take all such evidence produced in support of the prosecution. Then he will have to hear the accused and take all such evidence produced in support of the defence. The High Court went on to state that the question of conviction or acquittal will arise only after recording evidence of the parties. There is no question of discharging the accused at an intermediate stage. There is no provision in the Code for dropping the proceedings against any accused. So stating the High Court has directed the Magistrate to proceed with the trial of all the accused. [Emphasis supplied]

This approach did not find favour with the Supreme Court at all, for it considered this was "too technical". Instead, the Supreme Court restored the original order setting aside the prosecution, and justified this decision as follows:  

If one reads carefully the provisions relating to trial of summons-cases, the power to drop proceedings against the accused cannot be denied to the Magistrate. Section 204 of the Code indicates the proceedings before the Magistrate commences upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the Magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the Magistrate has no jurisdiction to proceed against the accused. It is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop file proceedings if the complaint on the very face of it does not disclose any offence against the accused. [Emphasis supplied] 

K.M Mathew suggested that since the need for trial only arose if there was an allegation that the accused had committed the crime, where no such allegation was found to be made on a complaint, then a court was without jurisdiction to continue on its basis. The decision also offered a route to give effect to this reasoning: It told courts to treat the order issuing process under Section 204, Cr.P.C. as an interim order, which could be recalled if an accused person was able to satisfy the court that no case was made out. Thus, a critical stage of discharge was acknowledged as existing for a Summons Case. But this was not located exclusively at the point of framing notice under Section 251 Cr.P.C. alone. While an accused person would logically make arguments when the case had reached this stage in its life, courts were not to pass an order on this stage, and instead go ahead and revisit the earlier stage at which the court had decided to summon an accused upon being satisfied that there was sufficient grounds to proceed on a complaint.

It will not be unfair to say that even though the outcome might have been a fair one, the path adopted by K.M. Mathew to reach this outcome was convoluted to say the least. Unwittingly, this strained approach also opened doors for litigants to effect even more drastic changes to how complaint cases would proceed through the system by creating an all new critical stage. After all, the Court in K.M. Mathew did not limit its findings on Section 204, Cr.P.C. being an interim order as only applying to Summons Cases. Thus, it meant that accused persons could go ahead and argue for a recall of process even in Warrant Cases or Sessions Cases instituted upon complaints, in addition to already existing stages of judicial consideration of the complaint, and of framing charge. Moreover, it also encouraged courts to simply invite an accused person to argue at the stage of issuing process, to save time.

The K.M. Mathew logic was indeed put to use in a Warrant Case in Adalat Prasad [(2004) 7 SCC 338], and successfully so to convince a magistrate to recall summons in a cheating case. When the matter reached the Supreme Court, it was posted before a bench of Three Justices, specifically to consider the correctness of the view taken in K.M. Mathew. The Court unanimously held that K.M. Mathew was wrong. But since there are two parts to K.M. Mathew — the means and the ends — it is important to note what exactly did Adalat Prasad declare was wrong. This was the means adopted by K.M. Mathew to enable magistrates to terminate Summons Cases. The Three Justices held that there was no basis for recalling the process issued by a court, which happens after due consideration even if it was an interim order, and the only basis for challenging this order was by moving the High Court under Section 482, Cr.P.C. Critically, there was no discussion about the idea of needing a discharge-like critical stage for Summons Cases, and whether or not this could be implemented through Section 251, Cr.P.C.

Judicial Engagement — The Fifteen Years Since Adalat Prasad 

Considering it was dealing with a Warrant Case, and that it did not mention anything about the idea of using Section 251, Cr.P.C. as a critical stage for terminating Summons Case prior to judgment, a fair point could be made for limiting the scope of Adalat Prasad. This attempt was made before the Supreme Court in Subramanium Sethuraman [(2004) 13 SCC 324], a prosecution under Section 138 of the Negotiable Instruments Act, 1881 ["NI Act"]. Crucially, as per the reported decision, the appellant's plea of not guilty had already been recorded and a request for discharge was made thereafter. Another Three Justices' Bench of the Supreme Court found no reason to disagree with the conclusions in Adalat Prasad here, and reiterated the position that the only remedy for an aggrieved accused person was to move the High Court seeking that the summoning order be quashed under Section 482, Cr.P.C. 

With due respect, the refusal in Sethuraman to limit Adalat Prasad to its facts was improper. And, in any event, the Court in Sethuraman could have simply decided the case on the strength of the fact, that the plea of not guilty had already been recorded and thus the accused had elected to stand trial. In any case, even though the Supreme Court did not draw these distinctions, the High Courts were much more vigilant in their reading of the law and restricted Adalat Prasad to its facts. Thus, the Kerala High Court in Kamala Rajaram [2006 Cri LJ 1447] and the Delhi High Court in SK Bhalla [180 (2011) DLT 219] both read Adalat Prasad as not being authority on the scope of Section 251, Cr.P.C., and held that magistrates were well entitled to discharge accused persons in Summons Cases under this provision. Importantly, though, both these cases were not instituted upon a complaint, and thus one could argue that the power to end such cases already existed under Section 258, Cr.P.C. Indeed, in Kamala Rajaram, Justice Basant specifically left the question open of whether or not Section 251, Cr.P.C. conferred powers of discharge that also covered cases instituted upon complaints.

On our specific point about discharge in Summons Cases instituted upon complaints, one finds that the Karnataka High Court in Zulekha v. Mahadev Bharmaji [Crl. Petition No. 11193/2012, decided on 26.09.2012] specifically held that a prosecution under Section 138 of the NI Act did not entail any discharge. But a bench of the Patna High Court in Awdesh Singh [Crl. Misc. No. 9432/2012 decided on 14.05.2012] referred to its own Division Bench directing that Section 251, Cr.P.C. also required the court to confirm whether an offence was made out or not. It did not help that the Supreme Court in Bhushan Kumar [(2012) 5 SCC 424] went ahead and copied the language of SK Bhalla, even though it was dealing with a Warrant Case where Section 251, Cr.P.C. was irrelevant.  

One of the only reasoned decisions relevant for this discussion came as late as 2014, when the Delhi High Court discussed the issue in Arvind Kejriwal & Ors. v. Amit Sibal [Crl. MC No. 5245/2013, decided on 16.01.2014]. Here, a defamation case was instituted upon a complaint, and the Petitioner had challenged a summoning order. The Court directed that rather than approach the High Court for setting aside the summoning order (the approach advocated for in Adalat Prasad and Sethuraman), the Petitioner should urge these pleas before the magistrate at the stage of framing notice under Section 251, Cr.P.C. The logic for the Court was simple: If this course was not adopted in Summons Cases, then "the whole proceedings at the stage of framing of notice u/s 251 CrPC shall be reduced to a mere formality and the accused would be compelled to approach the High Court to challenge the notice which would lead to multiplicity of litigation." Besides this decision in Arvind Kejriwal, if one peruses orders of different benches of the Delhi High Court around this time on this issue, one finds many other judges also encouraging parties to raise these pleas before the trial court rather than file a petition under Section 482, Cr.P.C. before the High Court. Even in a case under Section 138 of the NI Act, which was at the heart of Sethuraman [For instance, see, Yashveer Anand v. RL Anand (Crl MC 4213/2014, decided on 11.05.2015)].

Conclusion — Setting the Stage for Crl. Reference No. 4 of 2019

The Delhi High Court's order in Arvind Kejriwal was set aside by the Supreme Court by way of an order passed by the consent of both parties [Order dated 17.11.2016 in SLP (Crl) 1306/2014]. In the aftermath of this peculiar order of the Supreme Court, the law had continued to remain in a flux [See here, for a shorter discussion on the judicial engagement up till this point]. In spite of this, different benches of the Delhi High Court have continued to remand petitions under Section 482, Cr.P.C. that challenge summoning orders, urging petitioners to argue their cases at the stage of framing notice. However, none of these orders affirmatively discussed whether or not a right to argue a case at the framing of notice stage existed in the first place. 

The next post returns to where this series started: Criminal Reference No. 4 of 2019, where the Delhi High Court has been invited to clarify the legal position. Besides considering this development of statutory text, and the concerns expressed through judicial decisions, the post will also consider the data made available on Summons Cases through NCRB reports in a bid to offer realistic and practical solutions to a pressing concern in the criminal process.