Wednesday, April 14, 2021

The Supreme Court and Anticipatory Bail — A Troubled Courtship

This post is not prompted by a recent case or statutory development, but instead the desire to take a step back and look at "bigger picture" concerns in an area of law, navigating which is akin to fortune-telling on the best of days and charting a hidden minefield on most others. This is Anticipatory Bail, that great and peculiar legal tool that lawyers in South Asia are familiar with [yes, it is not only India which has this remedy folks]. For the uninitiated, Anticipatory Bail is a legal remedy which enables a person to approach a court asking for bail "in the event of an arrest". In India, this is statutorily provided under Section 438 of the Criminal Procedure Code 1973 [Cr.P.C.], and requires that an accused show reasons to believe that she is likely to be arrested on accusation of having committed a non-bailable offence. If a court is satisfied in respect of the same, then it can pass an order directing the police to release the individual on bail in the event that it decides to arrest her, where this Anticipatory Bail will come with certain conditions such as ensuring cooperation with investigation and not coercing witnesses, etc. 

The Issue

The primary cause for confusion in respect of the legal position on Anticipatory Bail is, as one would expect, the manifold judicial decisions which have expounded on its scope and ambit. After all, merely reading the text of the provision might lead one to think that Anticipatory Bail is there for the asking if a person can show reasons to believe she will be arrested for accusations of committing a non-bailable offence. This is hardly so, as a court "may" grant the relief, and this question of determining the proper exercise of judicial discretion which has been the subject of controversy in all these decisions. The point being made here is not simply to complain about this confusion or berate courts for it. Instead, what I want to focus upon is a choice that the Supreme Court of India made in 1980 in respect of the judicial discretion afforded in matters of Anticipatory Bail in India, when a Constitution Bench of that Court considered the then-recently-added provision in a batch of petitions which was reported as Gurbaksh Singh Sibbia v. State of Punjab & Ors. [AIR 1980 SC 1632 ("Sibbia")]. 

This was a choice to remain faithful to the perceived framers' intent behind adding Anticipatory Bail, or to go beyond these confines by adopting a more purposive interpretive bent. The Constitution Bench opted for the latter, and the consequences have been bittersweet. On the one hand, Anticipatory Bail became an option to secure personal liberty more generally and it also added teeth to the fundamental right secured under Article 21 of the Constitution. On the other hand, this approach militated against what one might imagine as the DNA of the criminal process by denying arrest and thus allowing police investigations and / or the public interest to be "frustrated" as a result. Which is why, in spite of it being backed by a Constitution Bench decision of the Supreme Court, the liberal approach to Anticipatory Bail continues to raise many eyebrows and often meets with disapproval from that very Court till date.

The Interpretive Question in Anticipatory Bail

The framers approach, I argue, was to keep Anticipatory Bail as a remedy against baseless accusations — as a defence against being arrested in a malicious prosecution. This was the context in which such orders had been sought for before various High Courts in the two decades prior to the Cr.P.C. 1973, albeit with limited success. It was this context which led to the question being presented before the Commission. 

However, the 41st Law Commission Report (1969) sponsoring insertion of a provision for Anticipatory Bail did not stipulate this malicious prosecution context as the only purpose for which such a relief of an Anticipatory Bail order may be needed. The Commission noted in Para 39.9 that:   


The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. ... The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. [Emphasis mine]

Anticipatory Bail was therefore not only as a relief against malicious prosecution but also as a potential remedy against unjust incarceration caused because of the slow pace at which the legal system worked as people who otherwise be released on bail would have to "remain in prison for some days" and then apply for bail. It would be a stretch to consider this as a general expansion as "some days" come in almost every case. The only sensible way would be to treat this suggestion as offering a remedy in the exceptional case, and not more; doing so would render the distinctions between bail and Anticipatory Bail redundant which was certainly not what the Law Commission wanted to do. This view of treating Anticipatory Bail as the exceptional remedy is only buttressed if one considers the 48th Report which followed the introduction of the Criminal Procedure Code Bill of 1970 — the basis of the Cr.P.C. 1973 — wherein at Para 31 the Law Commission did retain its support for the measure but suggested it be an option only in "very exceptional cases".       

When, in 1976, the Supreme Court took up the limited issue of the exclusion of Anticipatory Bail in the statutory context of the the Defence of India Act 1971 in Balchand Jain [AIR 1977 SC 366], the separate opinions of Justices Bhagwati and Fazal Ali echoed this view of Anticipatory Bail being fit only for the exceptional case. The Punjab & Haryana High Court followed this view in its decision dismissing the petitions filed by Gurbaksh Singh Sibbia and others [1978 Cri LJ 20]. In a bid to settle the confusion that it had seen arise, in some measure due to the Law Commission's views and also due to the charged political context into which Anticipatory Bail was inserted, the High Court went ahead and offered strict guidelines regulating the scope of judicial discretion on the point of Anticipatory Bail. One of the guidelines was to permit Anticipatory Bail as an option only where an issue of mala fides was being alleged in respect of the accusations levelled against the individual seeking relief. The High Court considered limiting the scope of discretion as advisable also because it seriously bought into the argument that an expansive approach to Anticipatory Bail would stymie investigations. It agreed with the government counsel that speed was of the essence in investigations where the initial period of police custody was often critical to solving the case. Liberal pre-arrest bails would thwart investigations and hurt the public interest.    

The strict guidelines authored by the Punjab & Haryana High Court seemed to extinguish the remedy of Anticipatory Bail altogether and met with stern disapproval from the Supreme Court in Sibbia, observing that it did not see "why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care imaginable." The worries about thwarting investigations by depriving police of custody during the initial period were played down by the Supreme Court which was of the view that all investigative needs could be met with placing conditions requiring that a person cooperate with police. There was little discussion about the value of custodial interrogation to an investigation. Rather than see value in police custody, it is fair to say that in this post-Emergency, post-ADM JabalpurManeka Gandhi era of the Supreme Court what weighed more heavily with the Bench was the threat posed by arbitrary arrests to personal liberty. One could see the stark difference in approach when, rather than talk about the importance of custodial interrogation, the Supreme Court spoke about a need to respect the presumption of innocence of the person applying for Anticipatory Bail. As a result, the only acceptable approach was an expansive one and not one which insisted on mala fides to be established for granting Anticipatory Bail. The Court acknowledged that there could be problems caused to investigations by Anticipatory Bail, but it noted that "a wise exercise of judicial power invariably takes care of the evil consequences which are likely to flow out of its intemperate use."   

The Fallout: Between a Rock and a Hard Place

In 2020, Sibbia was endorsed as being the correct and authoritative position of law on Anticipatory Bail by another Constitution Bench of the Court in Sushila Agarwal [2020 SCC OnLine SC 98] where, if anything, the Supreme Court went even further than Sibbia in endorsing an expansive and liberal approach to Anticipatory Bail. However, the journey from 1980 to 2020 is miles away from being imagined as a linear progression in the legal position affirming greater protection for personal liberty. Beneath these lofty pronouncements of the Supreme Court about Anticipatory Bail lies a great degree of reservation around this remedy. Just as an example, how can one square the law as laid down in Sibbia with the judgment in P. Chidambaram v. Enforcement Directorate [2019 SCC OnLine SC 1143] rendered by the Supreme Court in September, 2019, denying Anticipatory Bail to the petitioner. 

Yes, arrests can be unnecessary and arbitrary, but at the same time they are critical to ensure the criminal process "works" in the eyes of stakeholders. Arrests and the police custody which may follow within the first fourteen days thereafter are still accepted as being the most important part of any investigation. This is a feature of the system which the Supreme Court itself recognises time and again [see, as an example, CBI v. Anil Sharma, (1997) 7 SCC 187], and in doing so goes against the logic of Sibbia that the interests of an investigation can be sufficiently secured even without police custody. In addition to this, the criminal process endorses a logic that pre-trial arrests and custody, for at least some duration, are justified in cases of serious crime. Bail has never been only about ensuring that a person faces trial, but its desirability has historically been linked to the gravity of accusations. This bent of mind has, naturally, accompanied the exercise of judicial discretion on the point of Anticipatory Bail. A good example of this is the 2019 judgment in P. Chidambaram which reflects the consistent hesitation of courts to allow Anticipatory Bail for economic fraud. If anything, the reservations in granting Anticipatory Bail in serious crime appear to be even more pronounced than those associated with the grant of regular bail in this regard, as is evident from the complete exclusion of Anticipatory Bail as a remedy in certain statutory contexts — for example, anti-terrorism laws.   


In expanding the idea of Anticipatory Bail back in 1980, the intention of the Supreme Court in Sibbia was to make sure that this new tool is not jettisoned due to perceived fears of certain sections. However, the manner in which the Court sought to realise this was to leave everything to judicial discretion. The result is a branch of law that is pockmarked by inconsistency and uncertainty, which are perhaps the two worst things that an accused or potential accused person has to contend with. Anticipatory Bail became exactly like the concept of bail in respect of non-bailable offences — a concession, not a right.

It would be surprising to see Anticipatory Bail being scaled back to a pre-Sibbia position as a remedy only in cases of malicious prosecutions, even though this might be the most desirable way to make sense of the legal position. This perspective still continues to inform the law, in my opinion, and in practice it might still be the most common category of cases in which Anticipatory Bail is granted. It could well be argued that this perspective neatly explains why courts remain hesitant to accept Anticipatory Bail in contexts where the accusation comes not from private parties, but from government officials who are presumed to do their job correctly. However, the recognition of other residual categories of deserving cases for the grant of Anticipatory Bail is seen as too important to give up, and Sushila Aggarwal underscored that the Court still sees Anticipatory Bail as being a potential tool to help reduce arbitrary arrest and detention. Of course, just not a very good tool. As a result, it is fair to imagine Anticipatory Bail continuing to seem like going to play slots in a casino and hoping to get lucky till the system somehow moves past its preference for arrests and pre-trial custody of accused persons.       

Thursday, March 25, 2021

Mobile Phones and Criminal Investigations: The Karnataka HC Judgment in Virendra Khanna

(This post connects to a primer available on SSRN which deals with these issues, which is available here)

Earlier this month, a Single Judge Bench of the Karnataka High Court delivered the judgment in Virendra Khanna v. State of Karnataka and Anr. [W.P. No. 11759/2020 (Decided on 12.03.2021)]. The decision is likely to prove the first in a series of cases in the near future, in which courts grapple with issues posed to criminal investigations by mobile phones and similar digital devices. These issues require courts to not only consider the scope of constitutional protections but also interpret existing provisions of the Criminal Procedure Code 1973 ["Cr.P.C."] and Information Technology Act 2000 ["IT Act"]. 

In this post, I argue that the conclusions arrived at in Virendra Khanna — in respect of the applicability of the fundamental right against self-incrimination, of the Cr.P.C. search and seizure provisions, and of the fundamental right to privacy, all in context of accessing digital devices — are incorrect. The interpretation that is endorsed by the High Court is also deeply problematic, as in the face of advancing technology, it seeks to restrict rather than enhance the contours of our constitutional rights to equip individuals with the means to protect themselves against unlawful incursions into enjoyment of one's personal liberty by state agencies. The post does not engage with the guidelines provided by the Court, or its reiteration of the law laid down in Selvi [(2010) 7 SCC 263] that compelled administration of a polygraph test was is illegal.

The Facts and Issues Before the Court

The Petitioner was a person caught in the crosshairs of law enforcement agencies, and his mobile phone was allegedly important to advance the investigation into offences. In September 2020, the police went before the trial court asking for court orders to direct the Petitioner to unlock his mobile phone and grant access to email accounts, as the Petitioner had refused to cooperate. The court duly passed this direction and it appears the Petitioner complied. Then, the police moved another application before the trial court, this time asking for directions that the Petitioner be subjected to a polygraph test to confirm the mobile / email passwords, as it appeared that the Petitioner had been lying about the same during investigation. The court allowed this application as well and directed the polygraph tests be conducted — orders which, according to the Petitioner, were passed without ever giving him an opportunity to be heard and without considering if he had indeed consented to undergoing such tests. The Petitioner challenged this order and the consequent direction to undergo a polygraph test.

Following the judgment in Selvi, no court can direct any accused person to undergo polygraph tests unless such person consented to the same, and if seen from that perspective Virendra Khanna was an open-and-shut case requiring that the order be set aside. But the High Court was more indulgent with the legal issues placed before it and considered questions that lay beneath the surface as well. Out of these, I focus on the following three points taken up in the judgment:

  • What is the specific legal regime under which police can seek access to a digital device for pursuing its investigation?
  • What is the interplay between Article 20(3) and directions issued to an accused person for unlocking a digital device? 
  • What are the legal limits, if any, upon law enforcement agencies while they "explore" the contents of a digital device for investigation purposes?
Issue 1: The Relevant Legal Regime 

The High Court first considered whether there was any legal basis to root the actions of police officers in accessing a digital device for purposes of investigation. It observed that an officer could always ask an accused to open the device, but to direct compliance required some basis in law. This legal basis was found in the existing search and seizure regime of the Cr.P.C., concluding that the regime — which it admitted only applied to a "place" — was also applicable for accessing a digital device. Accordingly, the police would have to apply for search warrants to access a phone under Sections 93 / 94 of the Cr.P.C., and in emergent circumstances they could dispense with this requirement and act under Section 165 Cr.P.C. The obligations of the accused would be the same in both scenarios, i.e. assist in providing access to any locked space as provided by Section 100 Cr.P.C. 

Extending the existing search and seizure regimes from the realm of physical space to that of electronic / digital space is a path that many countries are taking. Erecting a need for judicial supervision by requiring search warrants to be sought before digital devices can be accessed helps redress the imbalance of power in such situations and also helps to keep law enforcement activity tailored to the needs of investigation and avoid roving inquiries into personal data. Viewed in the abstract, then, the choice of the Court does not seem problematic at all but a pragmatic solution. 

The problems only arise when we move beyond the realm of abstraction into practice. The Indian search and seizure regime does not mandatorily require search warrants; instead, police liberally use their powers under the "emergent circumstances" exception to conduct searches. The result is a situation where privacy is at the mercy of police. This is not to say that the search warrant regime itself, when invoked, supplies the necessary bulwark. The Cr.P.C. 1973 adopted wholesale the search regime that was present in the old British codes, the avowed purpose of which was to maximise scope of interference with personal liberty and not to safeguard it. Under this antiquated regime, general warrants allowing a roving search at a place are the rule, and a court may "if it thinks fit" restrict the scope of this search expedition.  

As noted above, this regime was designed to maximise state interests. Importing this regime in 1973 was a dubious decision. Applying it in 2021 to digital devices which are nothing short of portable vaults full of sensitive personal data, is a disastrous one. 

Issue 2: The Right against Self-Incrimination and Unlocking Mobile Phones

The High Court held that compelling a person to give up a password and / or biometrics to unlock a digital device did not attract the fundamental right against compelled self-incrimination as it was not the kind of evidence protected by the prohibition: providing a password did not disclose anything incriminating, and it was not the "testimonial compulsion" which Article 20(3) sought to protect. As a result, adverse inferences could be drawn if a person refused to comply with court orders. This analysis was coupled with portraying disaster if the view was taken to its logical consequence, which according to court: 

"would result in a chaotic situation: no blood sample could be taken; no sample for DNA analysis could be taken; no handwriting samples can be taken; no other body sample for the purpose of DNA analysis could be taken; no search of a house or office could be undertaken; the data of a laptop or computer or server cannot be accessed by the investigating officer; offences like cyber crime could never be investigated; offences like pornography, child pornography which are more often than not, on the internet, could not be investigated."

Both these conclusions of the High Court are, unfortunately, incorrect. The legal position is misstated, and the approach on the factual aspects is deeply misguided and troubling.

The High Court called upon the "testimonial compulsion" concept in its reasoning and concluded that the furnishing of a password / biometrics was not of this nature, but was akin to "physical evidence". This binary logic was engrafted upon Article 20(3) by the Supreme Court in Kathi Kalu Oghad [AIR 1961 SC 1808], according to which there is a kind of material called "physical evidence" which falls outside the scope of the protection and persons can be compelled to furnish it. This includes blood samples, hair samples, or even asking an accused to wear specific clothing. Then, there is "testimonial compulsion" which is the material Article 20(3) covers, which traditionally makes one think of confessions. What is the basis behind this distinction? "Physical evidence" is only relevant for purposes of comparison and so by itself it is not incriminating — police take the sample to compare it with other material. "Testimonial compulsion" is incriminating by itself, and conveys to the police information that is the direct product of testimony. The key then is whether the testimonial act — be it speaking, or making gestures — conveys information that can help furnish a link in the chain of evidence, by its own merit.

Is giving the password / biometrics really not conveying any information? Is it of no value as testimony by itself? Surely, the answer is no. At its most basic formulation, the testimonial value in having an accused person unlock the phone lies in the many inferences that can be drawn from this act. Not only does it lend support to the inference that the accused owns the phone, but also to the inference that the accused was in control of its contents. And where the contents of this device are what are potentially incriminatory, surely this is as obvious a link in the chain of evidence as any. 

On a more specific point, while the Court relied upon Kathi Kalu Oghad, it seemingly ignored the decision in Shyamlal Mohanlal Choksi [AIR 1965 SC 1251]. Otherwise, the High Court could not have observed that giving a password is not testimonial compulsion because "it is only in the nature of a direction to produce a document." After all, Shyamlal specifically held that a direction of this nature could not be issued to an accused person as it would run contrary to Article 20(3).    

Since the High Court was incorrect in comparing the giving of a password with giving of bodily samples and the like, it is already obvious that the "heavens will fall" approach to the consequences of concluding an Article 20(3) violation are an exaggeration unfounded in the law. But let's ignore that for a minute, and take up the assertion on its face value. What it reveals is a troubling state of affairs where the High Court assumes that cooperation by an accused is necessary to secure any or all of these obviously legitimate investigative aims. This cannot be further from the truth and, in fact, the Court itself alludes to this when at a later point in the decision it recommends that police proceed to "hack" a device to gain access where the accused refuses to cooperate. What is troubling here is that this kind of piggybacking upon an accused to secure investigations is what a protection against self-incrimination, in its myriad forms, was designed to reduce. Technological advances have made it more possible for police to do their job independently and have helped to usher in a situation where investigations are not subject to the sweet will of an accused, and at the same time are free of any potential taints of accused persons being assaulted to secure information. It is unfortunate that the High Court endorsed a view which still sought to place the accused as the focal point of a police investigation, without appreciating the well-established perils of this approach.  

Issue 3: The Right to Privacy

The High Court in Virendra Khanna was keenly aware of the potential invasion of one's privacy at stake considering how much data is found on our digital devices. It acknowledged that once police gain access to a device, even if for a specific reason, that often enables full-blown access to all aspects to a person's life. After heading in this direction, the High Court simply noted that the use of any such data during the course of investigations would not amount to a violation of the right to privacy, as it was protected under the exceptions carved out. At the same time, the High Court observed that unlawful disclosures of this material with third parties could certainly amount to an actionable wrong.

With all due respect, the High Court's analysis of the privacy issues barely scratched the surface and, in effect, simply placed the cart before the horse. Yes, a criminal investigation can certainly require invasions of the right to privacy that are otherwise prohibited, but to confer a blanket protection over all all kinds of activities that may be done under the pretext of an investigation effectively extinguishes the fundamental right altogether. Let's take an example. The police allege that an accused spoke to other conspirators over email and this correspondence is evidence to show the existence of an agreement to commit a crime. This is as genuine a law enforcement need as can be justifying going inside an email account and one's private chats. 

According to Virendra Khanna, when faced with this situation a court should support untrammelled access for police agencies to the email account. Such an approach is hardly the only way out and actually asks courts to forsake their responsibility of crafting a proportionate intrusion to best safeguard law enforcement interests without sacrificing one's privacy altogether. Rather than confer a carte blanche upon the police, an approach which took privacy seriously — the respect a fundamental right deserves — would have a court consider if the police could demonstrate with reasonable particularity what they hoped to find or if it was just a hunch and, importantly, create a time-limit so that the individual is not forever beholden to police snooping through her inbox. 

The seemingly benign way in which the High Court viewed potential breaches of the right to privacy can be seen not only from how it viewed state interests as an unquestionable concept, but also in how it failed to address what remedies may lie in the event of a breach. As mentioned above, the High Court did note that disclosures to third parties were possible and could constitute a breach, but it neither offered nor suggested a remedy to the aggrieved accused in this regard. What's worse, the High Court in its support for getting search warrants endorsed the regular position that the fruits of an illegal search could still be admissible as evidence. It failed to engage with the small but significant line of recent cases where another High Court took strong exception to searches being conducted without following procedures, noted that this amounted to a breach of the right to privacy, and excluded material gathered pursuant to search from being considered as evidence. 

Conclusion: Setting Back the Clock, by Some Measure

On its face, the petition in Virendra Khanna offered a straightforward issue — administering polygraph test without consent. The High Court looked past this simplicity to address the underlying legal questions which are becoming critical in their relevance to law enforcement needs and ordinary life. That it chose to do so and contributed to the discourse by offering clear answers to some questions was a welcome move. The problem is that the answers themselves are severely wanting, either proceeding on an incorrect legal basis or drawing exaggerated hypothetical conclusions. 

How this judgment is treated by the other benches in the Karnataka High Court, the state police, as well as other courts, will be interesting to see. 

Friday, March 19, 2021

Guest Post: Analysing of 3(2)(v) SCST Act in light of Danish Khan v. State

(This is a guest post by Jaiyesh Bhoosreddy)

The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (“SC/ST Act”) is a special legislation enacted for preventing and deterring commission of offences and atrocities against members of the Scheduled Castes and the Scheduled Tribes (“SC/ST”). In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., (1995) 3 SCC 221, the Supreme Court held that offences enumerated under the SC/ST Act falls into a special and separate class of offences. The Constitution of India, under Article 17, expressly deals with abolition of ‘untouchability’ and forbids its practice in any form. It also provides that the enforcement of any disability arising out of ‘untouchability’ shall be an offence punishable in accordance with law. Therefore, offences enumerated under the SC/ST Act, specifically Section 3(1), arise out of the practice of ‘untouchability’.

At the outset, the author would like to clarify that criticism of the judgment under discussion is to be viewed isolated from its particular factual matrix; rather, it should be viewed in context of the precedent that it sets juxtaposed with the social conditions which ail the SC/ST communities in India, and the deeply ingrained disdain of the Indian society that is directed towards the members of the SC/ST.

Offence must be ‘impelled on the consideration that the victim is a member of a SC/ST’
In a recent judgment by the Delhi High Court in the matter of Danish Khan @ Saahil v. State (Govt. of NCT of Delhi) (“Danish Khan”) [Bail Application 3497/2020 (2021)], a Single Judge Bench granted anticipatory bail to the applicant who was accused of commission of an offence under Section 3(2)(v) of the SC/ST Act. The Court held that the offence was only made out when an offence under the Indian Penal Code, 1860 (“IPC”) should have been committed on a member of a SC/ST ‘particularly for the reason’ that such person is a member of a SC/ST. It is not the purpose of Section 3(2)(v) that ‘every offence’ under the IPC attracting imprisonment of 10 years or more would come within the SC/ST Act merely because the IPC offence is committed against a person who 'happens’ to be a member of a SC/ST. The enhanced punishment provided under Section 3(2)(v) is attracted when the ‘reason for the commission of the offence’ under the IPC is the fact that the victim is a member of a SC/ST. It is a necessary element that the "offender’s action is impelled by the consideration that the victim is a member of a Scheduled Caste or a Scheduled Tribe". The Court explained that this rationale conforms with the Preamble of the SC/ST Act and the legislative intent behind the statute, which it viewed as creating a stringent regime to penalise targeting persons by reason of their caste identity. 

A similar view was taken in the matter of Dinesh @ Buddha v. State of Rajasthan [(2006) 3 SCC 771], wherein the Supreme Court held that — in connection with Section 3(2)(v) — the offence committed against a person must be ‘on the ground’ that such a person is a member of a SC/ST. This view was also held by the Supreme Court in Khuman Singh v. The State of Madhya Pradesh [(2019) SCC Online SC 1104] wherein the Court held that unless an offence is committed ‘only on the ground’ that the victim was a member of a Scheduled Caste, the offence under Section 3(2)(v) would not be made out.

Critical Analysis of Section 3(2)(v) of the SC/ST Act
The author would argue against the interpretation applied in Danish Khan as erroneous in a three-fold manner. 

Firstly, it is against the legislative intent which is clear from a reading of the provision and the preamble, which the court incorrectly read, through a beneficial interpretation of the provision, in favour of the narrowed scope of Section 3(2)(v). Secondly, it would be pertinent to mention that the rationale of the impugned judgment is also in conflict with the earlier decisions of the Supreme Court vis-à-vis the application of Sections 18 and 18A of the SC/ST Act, and the fact that the said provisions impose a bar on the grant of anticipatory bail once a prima facie case for applicability of the provisions of the SC/ST Act has been made out. Lastly, the rationale of Danish Khan, that it is not the purpose of Section 3(2)(v) of the SC/ST Act to punish ‘every offence’ under the IPC attracting imprisonment of 10 years or more with an enhanced punishment simply because the offender committed the offence against a person ‘who happens’ to be a member of a SC/ST and that an offender’s action must be impelled by the consideration that the victim is a member of a SC/ST to invoke the provision of Section 3(2)(v) of the SC/ST Act, does not hold strength in context of Indian society and the social conditioning of the populace vis-à-vis the caste system.

[A] Contrary to the Legislative Intent

The interpretation in Danish Khan with respect to application of Section 3(2)(v) is disjointed from the legislative intent evident from reading the provision and the preamble, and therefore, it is misconceived. It would be apposite to reproduce the wordings of Section 3(2)(v) for the sake of reference:

“3. Punishments for offences of atrocities.— …

(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,— …

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;” (Emphasis added)

It is evident that the legislature intended to cover commission of any offence under the IPC, with punishment for a term of ten or more years, to be brought within the scope of Section 3(2)(v) of the SC/ST Act, as long as the offender satisfied the minimum threshold requirement of knowledge that the victim belonged to a SC/ST. This interpretation flows naturally from the reading of the following phrases in the provision, “commits any offence under the Indian Penal Code” and “knowing that such a person is a member of a Scheduled Caste or a Scheduled Tribe”, and it would also be pertinent to note that the latter phrase was specifically inserted by the legislature at a later point of time in order to substitute the original phrase which is as follows, “on the ground that such a person is a member of a Scheduled Caste or a Scheduled Tribe”. The interpretation in Danish Khan is undoubtedly contrary to the legislative intent, as it substitutes “knowing” with “impelled by the consideration”, thereby meaning that there must be a direct nexus between the alleged offence and caste status. A Court while interpreting a law can import/supply meaning to a legislation when the same has not been provided by the legislature and the provision is vague or unclear from a plain reading of the text, as per the standard English dictionary, according to the rule of literal interpretation of statues. However, it cannot interpret a provision contrary to the legislative intent so as to change the meaning of the provision, which was never intended by the legislature in the first place.

It would be apposite to reproduce the preamble of the SC/ST Act at this junction, considering as Danish Khan suggests that its logic is in conformity with the text:

An Act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for [Special Courts and the Exclusive Special Courts] for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.” (Emphasis added)

The SC/ST Act is a special legislation that intends on deterring all forms of crimes committed against the members of the SC/ST by ensuring prevention of the commission of offences and / or atrocities against such persons. This would include eligible offences under the IPC which could be attracted within Section 3(2)(v) to provide a harsher punishment for deterring all form of offences against members of the SC/ST provided that  an accused knew that such person was a member of a SC/ST. This approach is arguably in greater harmony with the preamble of the SC/ST Act as well as the legislative intent than the rationale provided in Danish Khan.

[B] Interpretation in Danish Khan of Section 3(2)(v) is in conflict with Section 18 of SC/ST Act and Prathvi Raj Chauhan

The rationale of Danish Khan is conflicting with earlier decisions of the Supreme Court of India. In the matter of Prathvi Raj Chauhan v. Union of India & Ors. (“Prathvi Raj Chauhan”) [(2020) 4 SCC 727] a three judge Bench of the Supreme Court upheld the constitutionality of the SC/ST Act denying anticipatory bail for certain offences by crafting an approach that requires a court to test whether allegations of offences under the SC/ST Act are prima facie made out. Determining whether the offence was “impelled on the consideration” of one’s caste status would require an inquiry of a kind that travels much beyond the prima facie test which Prathvi Raj Chauhan endorsed. This argument is further buttressed by the decision of the Supreme Court in Vilas Pandurang Pawar & Anr. v. State of Maharashtra and Ors. [(2012) 8 SCC 795] where it was held that, while at the stage of considering an application for anticipatory bail, the scope for appreciation of evidence and other material on record is limited and could not involve an elaborate discussion on evidence. Additionally, in Manju Devi v. Onkarjit Singh Ahluwalia & Ors. [(2017) 13 SCC 439] the Supreme Court observed that a plea that a complaint is false and malicious cannot be looked into at the stage of taking cognizance and issuance of process and can only be taken into consideration at the time of the trial. Thus, the question of whether an eligible offence under the IPC was impelled on the consideration of caste status or not cannot be examined at the stage of considering an application for grant of anticipatory bail.

[C] Misconceived Approach disjointed from the realities of the Indian Society

The approach in Danish Khan is misconceived and flawed in the context of Indian society. It suffers from the infirmity of being disjointed from the realities of the Indian society, which reflects a deeply ingrained disdain towards members of the SC/ST by virtue of a long history of social conditioning through the structures of the caste system. It proceeds on the flawed assumption that an offender’s motive for committing an offence against a member of a SC/ST can easily be ‘identified’ and ‘pinpointed’ on the basis of direct nexus of the ‘motive for the crime’ which is to be for the explicit ‘reason of caste status’ only, and the same can be distinguished from the aspect of ‘mere knowledge’ to segregate the eligible offences into two categories. In the first category of eligible offences, which would be applicable within the meaning of Section 3(2)(v) of the SC/ST Act, the offence must have occurred for the clear motive of hatred or disdain specifically against a member of a SC/ST. The second category of eligible offences, which would be excluded from Section 3(2)(v) of the SC/ST Act, the offence has been committed against a person coupled with the knowledge that such a person is a member of a SC/ST.

It is not possible or feasible, as a method of approach, to segregate each eligible offence on the criteria that it had occurred for the ‘purpose of targeting’ a person by ‘reason of their caste status’ distinguished from an offence that occurred against a person ‘who happened’ to be a member of a SC/ST. The correct approach to dealing with this situation has already been provided by the legislature, that is, if an offender commits any eligible offence under the IPC against a person knowing that such a person is a member of a SC/ST, then it would be trite to say that such an offence has been committed in a wilfully callous and criminally negligent manner against a member of an extremely vulnerable and marginalised section of Indian society, and the same should be prevented at all costs through all possible means of deterrence which is appropriately dealt with by the SC/ST Act. Therefore, the second category of eligible offences under the IPC should also be attracted within the meaning of Section 3(2)(v) of the SC/ST Act.

In light of the above discussion, the author strongly contends that the rationale of the single judge Bench in Danish Khan is patently flawed as it is contrary to the legislative intent evident from the plain reading of the bare provision and the preamble of the SC/ST Act. Additionally, the rationale in Danish Khan is conflicting with the earlier decisions of the Supreme Court of India vis-à-vis the applicability of Sections 18 and 18A of the SC/ST Act. Furthermore, the rationale in Danish Khan is a misconceived approach disjointed from the realities of the Indian society in light of the deep social conditioning that has occurred by virtue of passage of time accompanied with the internalisation of the negative notions propagated by the caste system for generations. The rationale, as a matter of precedent, in Danish Khan would be counter-productive to the intent and purpose of enacting the SC/ST Act in the first place and it would also erode the fine balance of maintaining the peace and tranquillity in the society, especially in the minds of the members of the SC/ST, which the legislature intended to provide by enacting the special legislation.

Thursday, March 11, 2021

Crafting Accessible Remedies to deal with Multiple FIRs and Complaints

2020 (and January 2021) witnessed a series of high-profile cases where the potential accused persons were sought to be prosecuted across the country for their conduct. Arnab Goswami, Amish Devgn, the makers of Tandav; in all these cases, specific speech acts of the accused persons attracted the ire of people across states and led to the filing of multiple cases. All these accused persons had to go to the Supreme Court for reliefs, asking for quashing the multiple cases or at least clubbing all cases to one place. As an interim measure, the Supreme Court agreed to the transfer request (except, in Tandav).

These kinds of cases are quite common, and before TV news and OTT it used to be newspaper / magazine articles that prompted such a flurry of litigation. This does not mean, however, that there is no problem here. Multiple cases for the same underlying offence potentially expose a person to double jeopardy — not only in the limited sense of double punishment, but the hazards of facing the threat of arrest from different police forces as well during an investigation. Further, in a legal system crushed under the weight of its pending cases such litigation is sheer wastage of what are scarce resources of judicial time and money. 

The problems, therefore, are really quite serious. This post discusses with the remedies that are in place to address them, and argues that these are inadequate and ineffective. The primary remedy — arguing that a second FIR cannot be registered for the same offence — is found wanting not only because it cannot offer preemptive help and requires intervention either by the Supreme Court or a High Court, but also because of how (justifiably) the Supreme Court has narrowly read this test to prevent frustration of legitimate investigations. Building on the logic of the second FIR line of cases, I argue that it is possible in 2021 to try and invent remedies at the magistracy level, focusing on the twin problems identified above of the harassment faced by an accused as well as wastage of judicial time and money.

The "Second FIR" Law
Since at least 2001, when the Supreme Court decided T.T. Antony [(2001) 6 SCC 181], no doubts remained that a second FIR could not be registered for the same incident. As a result the prosecutions launched against Antony and the others in 1997 (by a new government) for a police firing incident of 1993 were set aside, as these persons had already been prosecuted for the same incident in 1994. The judgment went into the logical problems of having two "first" information reports to back its conclusion, but thankfully it also made more substantive arguments touching issues of the jeopardy such multiple prosecutions would bring:
"However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report"

Notice the use of "same incident" here, and note that within Antony, the phrase "same offence" finds no mention at all. The potential width of same incident versus same offence is worth pointing out, as while an incident can contain many potential offences, the offence itself is a much narrower formulation. This is evidently a double-edged sword which could frustrate more serious investigations from taking place where a lousy first FIR gets registered for an incident. Over time, the law on this position has been repeatedly clarified to prevent such situations. Thus, within Antony itself, an exception was carved out for what are called "cross-cases" arising from this same incident, i.e. cases depicting the conflicting versions of two sides to a dispute. Then in Upkar Singh [(2004) 13 SCC 292] it was clarified that a second FIR for other offences in the same transaction is not always barred when new facts come to light. A decade later in Anju Chaudhary [(2013) 6 SCC 384] and Amitbhai Shah [(2013) 6 SCC 348], different benches of the Court re-iterated the narrowness of the Second FIR logic, and in Anju Chaudhary it was stated that:

"It will, thus, be appropriate to follow the settled principle that there cannot be two FIRs registered for the same offence. However, where the incident is separate; offences are similar or different, or even where the subsequent crime is of such magnitude that it does not fall within the ambit and scope of the FIR recorded first, then a second FIR could be registered."
The Court did not refer to either Amitbhai Shah or Anju Chaudhary while passing orders dated 19 May 2020 in Arnab Ranjan Goswami [WP (Crl.) 130 of 2020], but its analysis of the issue was telling. The Court looked at the several complaints that were filed and was persuaded of their similarity not only because they pertained to the same incident, but also their content was in near-identical terms, leading to the irresistible conclusion that there was an "identity of cause of action".

What is the upshot of this? The Court has consistently held that a multiplicity of criminal proceedings for the same cause of action is impermissible. At the same time, the remedy it has crafted is necessarily post-facto and requires in-depth examination of the multiple cases to determine their purported similarity. As it is probable that the cases may fall across state boundaries, it also means that the only court unequivocally competent to hear such cases is the Supreme Court itself. All of which creates a fairly long period of time in which there is no protection for accused persons from various state police forces; police forces which spend taxpayer money investigating into the same underlying acts.

Crafting Remedies 
Is there really no better way to solve this problem apart from taking a gamble and going to court hoping to convince a court that the many different complaints against a person all stem from the same incident, to an extent where the court is agreeable to grant urgent reliefs? Note, that the focus here is on police cases (not complaints) and on the stage before a case comes formally to a court after an investigation is over. For complaints, it is possible to also explore proceedings under Section 186 Cr.P.C. which would be filed before a High Court and become open once cognizance is taken, i.e. at the outset of a complaint case. Similarly, transfer applications are yet another remedy, but they also limited to cases where cognizance has been taken in normal course. For our specific problem, there is no ready solution on the statute book. 

The history of "Second FIR" cases makes obvious the limitations in this remedy: (i) its costs, as going to the Supreme Court and getting a relief is not cheap and something only the rich and powerful can afford; (ii) the risk in doing a top-down litigation, as any observation from the Supreme Court can sway the course of the litigation before lower courts; (iii) the necessarily standards-based nature of the evaluation of facts, and; (iv) the lack of any preventive aspect. It is far from true that the problem itself is limited to those who might be rich and powerful. With the spawning of complaints based on social media utterances, it is fair to state that this is an issue to which any person can face today. As a result, it is all the more imperative that an accessible remedy exists to help deal with this problem. One that begins at the level of the magistracy or sessions court judges, rather than works in a precarious top-down manner starting with the Supreme Court first.  

Could Section 156(3) Cr.P.C. provide an answer? Since the decision in Sakiri Vasu [(2008) 2 SCC 409], a renewed emphasis has come to be placed on the role played by the concerned magistrate in ensuring a fair investigation takes place. Accused persons have also been given locus to assist the court in securing this objective through this interpretation of the clause. Could an accused person, or the magistrate herself, not insist on a report from the police on the status of other cases that might have been filed? With the advent of the CCTNS system in which details for accused persons named in FIRs have been rendered accessible to police and courts across the country, it is not that hard to execute such a task. But the problem is, what can a trial court do with this? At best, the trial court could pass an order saying the multiple investigations seem bogus and the accused can use this in the High Court. Even this exercise, to remain fair, must carry the kind of subjectiveness in review that is on display in Arnab Goswami and other cases however.

In addition to this, one other remedy can be the crafting of a new kind of temporary anticipatory bail order in such cases, coupled with the time that it takes for a court to decide the plea of closing the multiple FIRs, that could be granted. This would not only ensure that a potential accused is not harassed while a court is in seisin of the legal challenge, but also indirectly spur the court to dispose of this matters urgently so as to ensure that the interests of ongoing investigations are not forsaken in the process. Instead of clubbing this as an interim prayer only available before the Court in which the main petition is filed, however, I suggest it remain an option available even for the sessions court. This could work in the way that a convicting court can grant bail for thirty days, allowing a convict to prefer an appeal against conviction. Here, that time would be significantly shorter, but at least would ensure that a person cannot be picked up while she attempts to pursue her legal remedies.

Lastly, perhaps courts or government could craft certain rules or procedures to help stem the tide when it comes to prosecutions for online speech or even speech on TV channels. The recent Intermediaries Rules 2021 provide for a grievance-redressal mechanism that focuses on the complainant but it does not account for the potential harassment faced by content creators and users. While the Supreme Court has now asked the government to go back to the drawing board with the Rules as in its eyes it lacked "teeth", perhaps the government could use this opportunity to add this kind of a safeguard to streamline potential prosecutions in this arena.   

The problem identified in this post is an obvious one that has been a part of the system, and one which is only becoming more prolific over time — multiple complaints for the same alleged acts which not only expose a person to double jeopardy but also waste judicial time and taxpayer monies. It was identified two decades ago by the Supreme Court as well, but unfortunately, the remedies crafted by the Court have failed to keep up with the times and offer little succour to those hounded by multiple law enforcement agencies and criminal complaints, all of which show an "identity of cause of action". A more effective solution is urgently necessary to ensure that personal liberty is not reduced to a pipe-dream.

Thursday, March 4, 2021

Guest Post: "Skin to Skin" — Situating Justice for Victims of Child Sexual Abuse

(This is a guest post by Shruti Avinash)

Title – ‘Skin to skin’. Subtitle – Situating justice for victims of child sexual abuse.

The POCSO Act in itself is one of the most stringent laws functioning in India at this time. The norms of prosecution under this Act are very different from that prescribed in the Indian Penal Code (IPC), and the final outcome of the case is usually secure. The law has been lauded on paper, but has been dubious in its implementation due to those loose ends created by the interpretative discretion exercised by our courts.

The recent judgments of the Bombay High Court’s Nagpur Bench, handing out three consecutive acquittals of accused under the POCSO Act on objectionable grounds is an eye-opener on the realities of the rights of an Indian child. In this Article, we examine the judgments in question, attempt to determine the nature of deficiency in the present interpretation of the law, and analyse whether the (recently amended) law is serving its purpose.

At the very heart of every single one of these verdicts lies a single, very evident narrative of indifference. The rationale of the High Court Judge, in making these verdicts does not see child sexual abuse as any different from non-consensual sexual contact with an adult, and resultantly does not account for the deep psychological trauma experienced by any such child victim. The interpretations made by the Courts, on several occasions, sadly, have not been in line with the intention of the legislation, or the purpose that those specific provisions may have been meant to serve.

That ‘skin to skin’ contact is necessary to constitute sexual assault.

The Bombay High Court here, decided to categorically exclude a certain class of sexual contact from within the ambit of Section 7 of the POCSO Act. The Court held that:

‘The act of pressing of breast of the child aged 12 years, in the absence of any specific detail as to whether the top was removed or whether he inserted his hand inside top and pressed her breast, would not fall in the definition of ‘sexual assault’’

What the court has essentially done here, is argue on behalf of the accused on grounds of technicalities. It has failed to account for the trauma experienced by the victim on being subjected to unwanted sexual contact at the age of 12 and has instead, taken a much more idealist view of justice, by anchoring its argument on the suitability of variables such as the ‘stringent nature of punishment provided for the offence’ and by asking for ‘stricter proof and serious allegations’.

That the act of holding a minor girl's hands and opening the zip of pants will not come under the definition of "sexual assault" under the POCSO Act

The case in question here is one of a precarious nature, as it involves a five-year-old girl child being invited to the bed for ‘sleeping’ by the accused, who with his pant zip open was fondling himself explicitly. This act was interrupted by the mother of the victim, and the sessions court held the accused liable for aggravated sexual assault under Section 9 of the POCSO Act. Ironically, the Bombay High Court while applying the principle of Ejusdem generis pronounced that the offences in question do not fall under the definition of ‘aggravated sexual assault’ and would be more suited under Section 354 of the IPC.

The Court, unfortunately failed to make any considerations for where or how this offence might have culminated if the accused person had gotten the opportunity to bring it to its logical end. It did not contemplate on whether in the case of a five-year-old child being victimised it had a duty to hold the accused responsible for his acts under the POCSO Act independent of its own regressive interpretations.

For some reason, the Court has repeatedly hinted toward the proportionality aspect of the sentence, without addressing the anguish felt by the victim:

"Considering the nature of the offence and the sentence prescribed, the aforesaid acts are not sufficient for fixing criminal Liability."

Here, the Court has decided the viability of the sentence, not by the offence or the act of the accused, but by a disagreeable form of reverse engineering of the penalty. It decided of its own volition by some abstract calculation that the prescribed sentence under Section 9 of the POCSO Act was in too great a quantum to warrant the fixing of liability. This utterly reprehensible approach may be good for bargaining for the purchase groceries, but is wholly inappropriate for the purposes of meeting the ends of justice when the affected life in question is as fragile and young as five years old.

While the former verdict has been stayed by the Supreme Court on grounds of its dangerous precedential value, the Court has failed to address the general trajectory that the prosecution and trial under the POCSO Act has been taking. The very purpose of the POCSO Act has been to ensure a greater level of deterrence and a higher standard of prosecution in the event of sexual crime against children. The acts of the Bombay High Court in qualifying certain provisions and definitions so as to benefit the accused defeats the very purpose of this legislation. The effect of such a (commutative) switch in the penal statute for prosecution is wholly disadvantageous to the victim, such that the accused may even escape scot-free. This includes the prejudicial shifting of the burden of proof, the lessening of sentence, and the lax approach to prosecution under the IPC as opposed to prosecution under the POCSO Act.

At the outset, it appears that the pandemic has resulted in the permanent abrogation of the quality of the justice system, with the idea of child rights taking a backseat. It has largely remained outside of public knowledge that there had been a huge fall in active prosecution under the POCSO Act post the lockdown being implemented. This essentially means that, there was an inadvertent suspension of all trials and prosecutorial activities under the POCSO Act, and verdicts granting bail made in favour of the accused, which in times of normalcy would have been met with great disfavour.

In such circumstances the evidentiary value of the victim’s statements may not meet the ‘sterling quality’ as demanded by the courts, and such high thresholds resultantly benefit the accused. The interruption of procedures for child counselling, evidence collection, medical examination, and the recording of the statements, even for a brief period of time during the national lockdown was permanently detrimental to the victims of all those cases of child sexual abuse that arose during the given period of time. The delay until the case is brought to trial is understood as having considerably dampened the willingness of the courts to hold the accused responsible for their actions.

Sex-education as a rider, social settings as a catalyst

The recent judgment of the Himachal Pradesh High Court granting bail to a 24-year-old ‘boy’ charged with having sexual intercourse with a 16-year-old minor girl on the grounds that she was ‘bold enough to declare her love for the accused’ is appalling. The full-grown man was let off on bail despite having sexual intercourse with the minor girl, which the court justified by stating that:

"Undoubtedly, due to the lack of an appropriate curriculum on sex education in schools, people do not know what is legally prohibited."

Unfortunately, the court has brought up sex education as though it would be a tool to help predators and sex-offenders groom their victims combined with requisite knowledge of the law so as to escape culpability. What is more abhorring is that the court has refused to contemplate the existence of a power dynamic and stated that the social setting acts as a ‘catalyst’ for a ‘girl to fall in love with a more senior boy’.

The question of legal propriety, the age of minority and the legitimacy of consent given to a person over eight years elder to the minor are questions the court did not delve into. It is now pertinent to ask the court with what qualifiers it is admissible for a child to profess ‘love’ for a much older adult man and consent to sexual intercourse without the consent having been vitiated by a skewed power dynamic.

The plausible exceptions to incapacity of consent

Numerous courts across the country, and most notably the Madras High Court have reiterated the presence of consensual relations among adolescents and frivolous registration of FIRs under the POCSO Act by the parents of the minor girls. The Madras High Court has gone so far as to recommend that consensual sex be allowed after 16 years of age. This would be a question of law that merits some deliberation and examination by a body of legal experts and those specializing in child rights. The claim that there is a possibility of a consensual sexual relationship between a 16–18-year-old and an 18–20-year-old is not completely unfounded. On the other hand, the courts making this same exception for the sexual interaction between a 16-year-old and a 25-year-old is arbitrary and not in the interest of children. A judicial doctrine to determine the legal tenability of free consent given by an adolescent minor to another adolescent (minor or not) is the need of the hour to rid the Statute of this grey area.

The intent of the Legislation

The Ministry for Women and Child development had in September 2013, in its overview of the POCSO Act 2012 stated the following:

‘The said Act recognises almost every known form of sexual abuse against children as punishable offences, and makes the different agencies of the State, such as the police, judiciary and child protection machinery, collaborators in securing justice for a sexually abused child."

This premise that the Act recognises almost every known form of sexual abuse against children is prima facie sufficient to contend that the legislation did not intend to discriminate between ‘skin to skin contact’ and the absence of it. Despite there being a provision which by a welfare-oriented interpretation may have safeguarded the interest of the child, the mode of interpretation adopted by the court is not even remotely acceptable as being in the interest of children.

What is most unsettling in these decisions of the Bombay High Court is the tender age of the victims, which should ideally have ruled out any apprehensions of the court in proceeding on a presumption of guilt of the accused. If the victim were substantially deep into adulthood, then the court may have been marginally justified in demanding a coherent deposition that ‘inspires the confidence’ of the court. However, in cases where the age of the victim is as young as 12, the Court owes a duty to the victim to proceed on her statement, on circumstantial evidence, and to give the benefit of the doubt (in the event that there is any) to the victim and not to the accused. It appears as though the courts sympathise with the plight of the accused on incurring such heavy liability and thereafter proceed to adjudicate the issue as though they seek to rescue the accused from unjust prosecution under this law.

The pattern of considering the near-adulthood of the victim while acquitting the accused is a common phenomenon across Indian courts, which is nothing but a slippery slope. The attempt to exclude victims on the threshold of adulthood is some kind of deliberate and unnecessary deviation from the intention of the legislation.

This is disheartening on the ground that the development of children across the social spectrum in India varies largely, bringing more suffering to some class of children than others. In other words, a 17-year-old girl in the heart of urban India may approximate an adult in her behaviour more than a 17-year-old underprivileged/malnourished girl child in rural India, with both being unfortunate victims of the arbitrary and indifferent whims and fancies of the courts.

Admissible Statements and the expectations from the child

The Courts, on that account have been extremely indifferent to the limitations of the child victims in recounting their experiences and testifying in statements, as they repeatedly acquit those accused of these heinous crimes. In December 2020, the Bombay High Court acquitted a man accused of raping a 7-year-old girl child with the argumentation that the statements of the child were ‘inconsistent’, and the court was unable to proceed on the testimony of the child alone. In this very case, the special POCSO court had previously convicted the accused based on the statement of the child.

When appeals are made to the verdicts of the special POCSO courts, the outcome of the case is then in the hands of other courts of appeal and High Courts thereof. Notably, it is conjectured that this is deleterious for the rights of a child victim, as High Courts are rarely sensitised and specialised enough to provide justice to the victim without prejudicing his/her rights in some manner. It is very improbable that a special POCSO court would acquit the accused with the reasons that the Bombay, Madras and Himachal Pradesh High Courts have placed on record. One among several issues here being that the High Courts assume that children are coherent, informed and are capable of recollecting and describing the incidents that took place in their paradigm just as an adult would. Evidently, the adjudication of child sexual abuse cases outside of the jurisdiction of POCSO courts appears injurious to the object of this law.


The High Court verdicts in their observations have taken a detour in favour of the accused for reasons which we cannot easily isolate, yet are grave enough to merit condemnation and examination. We cannot sweep the rationale behind such verdicts under the carpet even if we manage to do so with the verdict itself. For this reason, it is the imperative of the legal fraternity and civil society to be intolerant of all and any forms of child sexual assault whether with ‘skin to skin’ contact or otherwise.

In conclusion, the POCSO Act will remain yet another ineffective welfare legislation unless it is implemented keeping in mind the essence of its purpose. The purpose of the POCSO Act is to be more stringent toward and less accommodative of (suspected if not convicted) pedophiles than the IPC. The shifting of burdens and the standard of prosecution is at the outset intended to be relatively less forgiving of any forms of child sexual abuse or sexual assaults of minors. It is not sufficient that the State legislates a stringent statute for the protection of children. The State must also ensure that these children are not harmed by the apparatus envisaged in this law meant for their protection. For the purposes of providing justice to children, one must empathise with the plight of innocent children having their childhood tarnished and taken away from them. The lack of this aforementioned empathy has resulted in the regrettable and erroneous acquittals and bails that we have had to witness.

Tuesday, February 16, 2021

Guest Post: Admissibility of Evidence and Validity of Trial vis-a-vis Illegal Search

(This is a guest post by Chaaru Gupta)

Search and seizure is a significant part of an investigation for gathering evidence and is outlined in the Criminal Procedure Code, 1973 (hereinafter “the Code”). The power given to the investigating agencies is a double-edged sword that can be used to infringe upon the Fundamental Rights of the citizens guaranteed by the Part III of the Constitution. However, time and again the search procedure has been interpreted to be ‘directory’ instead of ‘mandatory’ except under the Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act). This post attempts to discuss the effect of illegal search on the admissibility of evidence and validity of the trial, and a need to rethink the effects.

Some Procedural Requirements for Searches
Given the extensive nature of the search procedure, there are numerous steps at which errors or omissions can be made. There are different legal consequences for every error or omission. I discuss two of these provisions: search conducted without proper authority and a search conducted in absence of independent witnesses.

Although not necessary, the Code does provide for a warrants-based approach for carrying out a search. However, search warrants cannot be issued by every Magistrate. Section 94 of the Code empowers only certain Magistrates to issue a search warrant and these are District Magistrates, Sub-divisional Magistrates, and Magistrates of the first class. Where the search is made in pursuance of a warrant issued by a Magistrate and the concerned Magistrate was not empowered to issue such a warrant, it shall be considered an irregularity and it will not vitiate proceedings.

Section 100 of the Code requires the presence of at least two independent and respectable witnesses during the search. The provision uses a ‘shall’ which usually means mandatory instead of discretionary. However, in the case of Mohan Singh v. International Airport Authority of India, the Supreme Court (hereinafter “the SC”) held that interpretation should be done in light of the intention of the legislature, and therefore, the word ‘shall’ can be construed to be directory or mandatory depending on the provision and its interpretation. Courts in India have construed the presence of independent witnesses to be directory instead of mandatory, which doesn’t seem to reflect the intention of the legislature while drafting the provision.

It has been held that the absence of independent witnesses during the search does not affect the prosecution case and merely requires a court to adopt greater care while scrutinising evidence. In case the evidence submitted is found acceptable, it would be an erroneous proposition to find the arguments of the prosecution unacceptable solely on this ground. This implies that the obligation to take witnesses is not absolute and it does not vitiate the seizure.
Admissibility of Evidence and Illegal Search

The position of law in India with respect to the effect of illegal search on the admissibility of evidence is very similar to the position of law in India concerning the effect of illegal search on the validity of the trial. In cases under the NDPS Act, the exclusionary rule is applied and in cases under the Code, the inclusionary rule is applied.

However, this position is worrisome on many levels as illegal search and seizure vis-a-vis admissibility of evidence under the Code poses a number of problems including its being antithetical to the spirit of the Constitution (1), its leading to miscarriage of justice (2) and its having at stake the integrity and honour of the judicial system (3).

Antithetical to the Spirit of the Constitution
The current position of law leads to a breach of the right to privacy of the suspect. In K.S. Puttaswamy v. Union of India (hereinafter “Puttuswamy”) the SC recognised the right to privacy as a fundamental right. It forms an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution and as a part of the freedom guaranteed by Part-III of the Constitution. The right to privacy is an inalienable right that includes freedom from interference. An illegal search violates the right to personal liberty of a person and is thus unconstitutional. In fact, Dr. Ambedkar considered the right to be secured against illegal and unreasonable searches “very important so far as personal liberty is concerned” but due to political reasons, the same was not incorporated in the Constitution. A similar argument was presented before a Constitution Bench in Pooran Mal v. Director of Inspection (Investigation). It was argued that admitting evidence obtained by illegal search and seizure was antithetical to the “spirit of the Constitution”. The SC held that the criterion for admissibility is relevance and there was no express or implied prohibition in the Constitution against admitting evidence obtained by an illegal search.

However, there are two issues with this decision that need to be discussed. Firstly, the SC was misled to believe that there needed to be a specific prohibition against the inclusionary rule in the Constitution. It needs to be noted that the exclusionary rule is distinct from the rights guaranteed under the Constitution. The rule operates as “judicially created remedy to safeguard the constitutional rights.” Therefore, there is neither an express right to exclusionary rule, nor a specific prohibition against inclusionary. Secondly, the SC relied on State v. Navjot Sandhu which, while referencing RM Malkani v. State of Maharashtra, upheld the admissible-if-relevant test. However, it needs to be noted that Puttaswamy overrules, directly or indirectly, each of these cases as far as these aspects are concerned.

Miscarriage of Justice
The inclusionary rule can lead to a miscarriage of justice. Section 465 of the Code provides that there shall be no direct bearing of an irregularity or illegality in the investigation unless it leads to failure of justice. However, a search by an officer not empowered to conduct the search or a search in absence of independent witnesses is far from being a “mere irregularity” and consequently, should be considered a miscarriage of justice and thus be quashed. As pointed out earlier, it comes at the cost of the fundamental rights of the citizens and thus, cannot be just. The ends do not justify the means and injustice cannot lead to justice. The absence of witnesses has the potential to allow the search team to be arbitrary which is inconsistent with the rule of law. It may provide a faster way to conduct the procedure but at the cost of the liberty of the citizens.

Integrity and Honour of the Judicial System
The choice between exclusionary and inclusionary rule has the integrity and honour of the judicial system at stake. The judicial system will be brought to disrepute in case of condonation of the arbitrary and illegal conduct of the investigating authorities. At the same time, excluding important and concrete evidence due to a minor irregularity in the procedure can also jeopardise the reputation of the judicial system. This implies that there is a need to strike a balance between the two rules as both can lead to extremely inflexible situations.

One aspect to be considered under fair trial can be the legality of search and seizure conducted during the investigation. The position with respect to the effect of illegal search on the validity of trial is similar to the effect of illegal search on the admissibility of evidence. Non-compliance with the provisions like the presence of independent witnesses is a mere irregularity and does not vitiate the trial. This position may vary from case to case, for instance, if an irregularity affects the trial to the prejudice of the accused, the accused would be entitled to acquittal as this affects an aspect of fair trial which is the presumption of innocence. Irregularities in general merely act as a direction to the court to adopt greater caution while examining the evidence during the trial. However, the same is not the case with search in violation of the NDPS Act.

NDPS Specific Searches and Vitiating Trials as a Remedy
The courts in India are divided on the effect of illegal search on the validity of trial under the NDPS Act. Though the SC through a landmark decision in the case of Balbir Singh v. State of Punjab (hereinafter “Balbir”) cleared the position of law by holding that illegal search and seizure or illegal arrest under the NDPS Act vitiates the trial, the position is still not settled.

In Balbir, the SC did not take into consideration any precedent which held that illegal search does not vitiate the trial altogether. The circumstance which can lead to the vitiation of the trial is the procedural lapse which vitally affects the trial to the prejudice of the accused and is irreversible. In this case, the accused would be entitled to be acquitted. This position has been followed by the courts for a long time and rightfully so. The following factors need to be considered while deciding the same.

Opportunity Cost
Vitiation of the trial itself in case of illegal search under the Code or the NDPS Act comes at a huge opportunity cost. In case the trial is vitiated because of an illegal search, the opportunity cost is the benefit that would have been driven by its continuation by a number of beneficiaries. The beneficiaries would include all the stakeholders in that particular case such as the victim, the police, the counsels, and most importantly, the criminal justice system. The benefits which are forgone by vitiating a trial are far more than the benefits which are driven by vitiating it due to violation of search procedure. It needs to be understood that our judicial system, with its increasing number of pending cases, does not afford this high an opportunity cost. The interest of the stakeholders needs to be kept into consideration while deciding the case. Furthermore, vitiation of a trial should be the last resort in case of an illegal search.

In case of an illegal search, the Magistrate has other alternatives before the Court vitiates the trial. The first is that the Magistrate in case of illegal investigation can order further investigation or re-investigation. In Kishan Lal v. Dharmendra Bafna, the Court held “An order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence.” However, in case of reinvestigation or de novo investigation, the SC in Vinay Tyagi v. Irshad Ali held that neither the investigating agency nor the Magistrate has any power to order or conduct fresh or de novo investigation since their jurisdiction and powers are limited within the Code. However, the Code doesn’t place any limitation to the exercise of power by the High Courts under Section 482 of the Code and the SC under Article 142 of the Constitution of India. In addition to this, the writ jurisdiction of the SC and High Court under Article 32 and 226 of the Constitution respectively makes it competent to direct reinvestigation to ensure justice or to prevent the abuse of any process of the Court.

Conclusion: Need to Strike Balance
The criteria for striking a balance between the two rules can be (1) the nature of the crime, (2) the degree of necessity to compromise the rights of the suspect, (3) the reputation of the judicial system, and (4) whether the violation of rights was ‘wilful’. Sufficient judicial discretion should be granted to the Magistrate, coupled with proper and strict guidelines for the investigating authorities. There should be no endorsement of unfair conduct of the investigating authorities. At the same time, flexibility should be provided to the methods adopted by the investigating authorities considering the nature of the crime and surrounding circumstances.

It can be said that the position of law, with respect to the effect of non-compliance with the rules of search procedure, needs to be settled for the better. The fundamental rights of citizens are inalienable and cannot be compromised under any circumstances. With respect to the effect on the validity of the trial, the decision in Balbir is unreasonable and fails to acknowledge the various other means to which the court can resort in order to right the wrong, before vitiating the trial itself. The interests of various stakeholders of the judicial system need to be acknowledged, accepted, and balanced.