The Order itself and the law on Section 43-D(2) are bound to receive close attention in the coming days. But what caught my attention upon reading the order was a specific observation passed by the Court at Para 51:
"Having heard the learned counsel for the parties and perused the record, at the outset I may state that the petitioner has not challenged the addition of Section 13 of UAPA to the list of offences, he is accused of. ..." [Emphasis mine]
This observation seems to be in response to a submission made by the Additional Solicitor General, which is recorded at Para 24 ["Mr. Lekhi submitted that Ms. John did not challenge the addition of Section 13 of the UAPA to the list of offences of which the petitioner is accused of ..."]. In turn, this entire exchange seems to have been a result of submissions made on behalf of Imam, where Senior Counsel argued that the invocation of UAPA offences on the 88th day of the investigation displayed the bad faith of the police.
This exchange is interesting because, seemingly inadvertently, it reveals a very serious problem within the Indian criminal justice system. This is the near-absolute discretion vested with police for adding offences to an ongoing investigation and the limitations upon aggrieved persons to challenge these decisions.
To appreciate this, let's take a step back. Normally the criminal process begins with lodging a "First Information Report". This not only summarises the initial allegations, but also notes the various kinds of offences made out by the allegations. As an investigation proceeds and more material is gathered, it is not uncommon for police to add more offences to the case.
All this seems pretty tolerable. But things get a little tricky when we consider that the same set of factual allegations can make out many different kinds of offences. For instance, someone raising slogans against the unity of India can seemingly fit the definition of Sedition (Section 124-A IPC), and at the same time it can fit the crime of engaging in "Unlawful Activities"(Section 13 UAPA).
The kind of offence that is invoked by police during an investigation is a choice which carries serious substantive issues. Continuing with the above example, Section 124-A IPC and Section 13 of UAPA have different possible punishments upon conviction and, arguably, a prosecution for "Sedition" carries greater stigma. At the same time, this choice also carries serious consequences from a procedural standpoint. Not only is the procedure for trial of offences different, depending on the maximum possible punishments, but this is a factor which also affects valuable procedural rights of persons who are being accused of crimes. There are some offences for which police can arrest without warrant (cognizable) and where the person so accused does not have a right to bail (non-bailable).
The core issue in Imam's case was also a procedural one — a UAPA case carries a possibility for extending time-limits on custody during investigation by ninety days, in addition to the regular ninety days that police get for serious crimes such as Sedition. Here, on the 88th day of the initial ninety, police had chosen to add UAPA offences in the case and immediately sought an extension for his custody while they completed their investigation. The Senior Counsel for Imam argued that this belated addition of the UAPA offence was a clear indication of bad faith. But, as pointed out by the State, Imam had not challenged this decision.
Which brings me to the issue — how do accused persons challenge this decision of police to add offences to an ongoing investigation? Some thoughts are below:
- There is enough and more judicial rhetoric which has held that the domain of investigations is solely that of the police and courts mustn't interfere with that process. At the same time, there are very recent decisions (the most recent being from 2019) which blur these lines and actively invite trial courts to "monitor" investigations. Should one take the High Court's observations in Sharjeel Imam as an indirect suggestion to accused persons, that they should explore this option in respect of the decision of police to add offences in a case, by asking the trial court to examine the basis for adding offences during an investigation?
- The more conventional route for challenging any aspects of investigations has been to move a High Court under its extraordinary jurisdiction (the alacrity with which this was happening, in fact, had prompted one Supreme Court judgment to suggest monitoring by trial courts). Normally though, the High Court is invited to quash the investigation altogether (quash the FIR as it is called). So should we read the observations in Sharjeel Imam as a suggestion that accused persons could perhaps move the High Court against the invocation of specific offences?
- The observations in Sharjeel Imam are made in the nature of an aside (thankfully). Still, it makes one think about how should courts test arguments of bad faith in this context. I say this because the Court in Sharjeel Imam did not say that a bad faith argument was misplaced. If that is the case, then we certainly need some clarity to help adjudicate such pleas. Will my claim appear more genuine if I have pursued independent remedies? Should it matter?
- If either of these avenues does exist, then what does this mean for the general way in which criminal law works in India? I say this because, normally, an accused person is not really an active "subject" in an investigation. Instead, the accused is an "object" to whom things may happen as the police go about their job of unearthing the truth. Are we witnessing a change in judicial attitudes where courts are themselves encouraging more participation from the side of the accused, perhaps recognising this is necessary towards securing the promise of an adversarial system of justice like India's claims to be?
It will be interesting to see whether this innovation happens in the near future or do these observations in Sharjeel Imam get lost to the pages of history.
[This post was updated at 5:30 PM on July 11, to add the point about adjudicating bad faith pleas]