Snippet: A Constitution Bench Overrules The Mohan Lal Verdict

Just over two years ago, a Three Justices' Bench of the Supreme Court delivered a unanimous verdict in Mohan Lal [AIR 2018 SC 3853]. The judgment endorsed a significant proposition: An officer who was the informant in a case (the facts there had a narcotics investigation) could not continue as the investigating officer for the same case. Wherever the officer was the same, it cast an indelible doubt over the impartiality of the investigation, which rendered all subsequent proceedings illegal in the case. The Court had noted that its observations were not limited to only narcotics cases but also applied to investigations generally (though this was not very clear from reading the judgment as a whole).

This Blog had in its analysis been critical of this view of presumptive bias, arguing instead in favour of an approach which considered the facts to find out if there was a reasonable likelihood bias in the specific case. Not only was this approach unappealing in law, I also argued that the approach would result in several practical impediments given (i) the consequences it would have  on pending cases, and (ii) understaffed nature of police forces, and it would not be unlikely that the pronouncements are revisited. 

It did not take long for a Two Justices' Bench of the Supreme Court to raise some of these doubts in Mukesh Singh and it was requested that the matter be placed before a Bench of appropriate strength to consider the problems. In the meanwhile, a different Three Justices' Bench of the Court delivered Varinder Kumar [(2019) SCC OnLine SC 170] whereby it agreed with Mohan Lal on the issue of bias but rendered the judgment applicable only prospectively, in a bid to insulate ongoing trials and prevent convicted persons from taking this ground for challenge in pending appeals. That decision was deeply problematic for its treatment of the issue, where the bench seemingly likened the procedural rights of accused persons as benefits.

It has been reported that Constitution Bench has decided a batch of matters today, i.e. on 31.08.2020 (including the reference in Mukesh Singh) and reversed the view taken in Mohan Lal, and has held that the facts of the case must be considered before arriving at a finding on the issue of bias. While the judgment is still awaited, on first blush at least this seems like a sensible course to adopt. A more detailed post will follow.  

P.S.: What the judgment will hopefully not disturb, though, are the observations made by the Court in Mohan Lal regarding the right to a fair investigation. The reason for vitiating proceedings as per the Mohan Lal court was the "infraction of the constitutional guarantee of fair investigation".  There can be no qualms with the proposition that there is a guarantee of fair investigations, and I hope that the baby does not get thrown out with the bathwater.  

Guest Post: Exploring The Failure of Restorative Thought in the Indian Criminal Justice System

(This is a guest post by Hrishika Jain)

The recent execution of Akshay Singh, Mukesh Singh, Pawan Gupta and Vinay Sharma for the 2012 Delhi rape marks a significant step away from India’s 1980s’ de-facto abolitionist jurisprudence. The death penalty, having no basis in deterrence or reformation, serves no goal other than retribution. In this sense, every deployment of death as punishment, strengthens the hold of the retributive model on a justice system, and weakens any restorative and reformative pretenses. This is particularly true of the state response to the 2012 rape. The 17 year-old juvenile involved in the 2012 case was sent to a correction home for 3 years, triggering backlash against the ‘leniency’ of Juvenile Justice Act’s [‘JJ Act’] rehabilitative frameworks. Consequently, the state responded, not only by executing the 4 convicts, but also by substantively destroying the JJ Act, 2000 – it was repealed, and replaced by a new Act in 2015 which allows minors between ages 16-18 to be tried as adults for heinous crimes.

To me, this series of events poses a larger, more abstract question – about the consistent failure of non-retributive, rehabilitative thinking about justice in India. This failure manifests variously. The 2000 Act, however crucial, was one facet of non-retributive justice which was hastily abandoned. Other examples are: scaling back of the anti-death penalty jurisprudence; public support for ‘encounter’-killings of 4 alleged rape accused in Hyderabad; cases of lynchings of suspected child-kidnappers; inadequate focus on reformative schemes in prison; and a general rise of ‘tough on crime’ legislations with compromised procedures, that extend criminal penalties to pre-criminal or ‘anti-social’ conduct.

In this post, I address one potential cause for this failure. Our current criminal justice policy aims at carving out rehabilitative niches (like the JJ Act 2000, or sporadic rehabilitative programs run at the discretion of jail administrations), within a dominantly retributive framework. I argue that the failure of restorative models is guaranteed because of the sheer impossibility of a truly ‘integrated’ criminal justice system that can reconcile retribution and restoration within itself. I further argue that these efforts for integration in turn are driven by a misunderstanding of what restoration means.

Essentials of Restoration

Any inquiry into the reconcilability of retributive and restorative models first requires clarity about what a restorative model entails. Armstrong argues that the lack of consensus around the core elements and philosophical goals of restoration, renders any claim about the (im)possibility of reconciling restorative with retributive goals, suspect. Thus, according to Armstrong, the debate over reconciliation will remain inconclusive, unless the theoretical uncertainties are resolved. Without this certain agreement over the essentials of restorative models, he argues, the various policy proposals incorporating restoration in an otherwise retributive system run into one of two problems.

First, they may commodify individual practices seen in restorative models, and incorporate them within a retributive paradigm without importing its underlying philosophy. What passes as ‘restoration’ in retributive systems that centre around punishment, are often ‘alternative punishments’, and not ‘alternatives to punishment’. For example, community service under the JJ Act, in a model that does not import its underlying purpose of offenders’ reintegration and moral reform, is effectively only an alternative punishment. Similarly, juvenile special homes—though required to be places of reform, skill-development, re-education and psychosocial care—focus their budgets on security and surveillance instead. This causes tangible lack of reformative care in these supposedly reformative niches, and is in line with the suspicion of the “Otherised” criminal encouraged by retributive paradigms these homes operate in.

Alternatively, second, the policies may discard retributive frameworks, but adopt goals that stretch ‘restoration’ beyond any identity with its original philosophy. An example of this is the community-led justice systems like Nyaya Panchayats. Promoting these systems as inherently ‘restorative’ assumes a Gandhian-utopian idea of village communities, and ignores their casteist and patriarchal outcomes. Such systems may involve non-retributive responses to the offender, like in cases where Panchayat resolves rape cases by marrying the victim and the offender. However, equating such non-retributive systems to ‘restoration’ negates the essentials of restorative justice, as I argue below.

I agree with Armstrong’s thesis that policy proposals that mix-and-match restoration and retribution in India have run into the above two problems. However, Armstrong argues that these problems are a result of theoretical uncertainty over what ‘restoration’ even means, and that, given this uncertainty, the question of whether integrating restoration with retribution is possible is fundamentally inconclusive. Here, I disagree, and argue that retribution and restoration are conclusively incompatible frameworks. I further propose that this inherent incompatibility, and not academic uncertainty over meanings of restoration, is the cause of the two problems outlined above.

I believe Armstrong’s conclusion that the reconcilability cannot be determined, stems from his particular formulation of the minimal elements of restoration as that, per him, relative consensus exists on. He relies on Marshall’s understanding of restoration as “a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future”. (p. 363) It is notable that this formulation has no objective metric for assessing a successful outcome, beyond the participatory nature of the process itself. Basically, the outcome is assumed to be restorative, if the process involved collective deliberation by stakeholders. I argue that, while disagreements exist on a full definition, Armstrong’s adopted formulation does not fully encapsulate even those minimal essentials of restorative justice that relative consensus exists for. By neglecting an outcome-based element, as proposed by Walgrave (p.622), the formulation neglects the distinct philosophical goals that form the very essence of restoration - healing social bonds and renewing consensus around the violated social/legal norm (Wenzel et al., p.381, 383). Incorporating these goals in understanding the minimal elements of restoration achieves two purposes. It exposes the incompatibility of restorative and retributive practices even without exhaustively defining the former, and further demonstrates how understanding restoration devoid of its philosophical goals has led to the two problems identified above.

Consider an example where all stakeholders voluntarily resolve that the best recourse after a rape, is to wed the victim and the offender. Victim’s consent in such situations is superficial. Family honour and modesty, reduced self-worth due to victim-blaming, financial dependence, even the guilt of sending a member of the community to prison - coax, without necessarily forcing, consent. A process-based understanding of ‘restoration’ would be compelled to accept this as ‘restorative’. However, introducing goals of healing social bonds, and renewing consensus around the violated norm, changes this analysis. This resolution, while being voluntary, would not renew consensus around the norm against non-consensual sex. Instead, such resolutions would further dilute this consensus each time. This is because, when marriage is understood as resolving the harm caused by rape, it indicates that it is not the victim’s right to bodily autonomy/consent, but her unmarried status or the damage to her ‘modesty’, which makes rape immoral.

Ignoring the philosophical goals of restoration changes its essence, like in the case above. It also risks partial integration of individual restorative practices into a retributive model without importing the philosophy of healing that underlies that practice, such as with community service.

Now that I have established that incorporating an outcome-based element would resolve the problems highlighted by Armstrong and is thus desirable - I will argue why restoration, as understood with its philosophical goals, is necessarily incompatible with retribution.

Incompatibility of Retributive and Restorative Goals

Societal ideas of justice and morality are strongly informed by and inform legal institutions - with different forms of institutions encouraging different social norms, and vice versa. Retributive legal institutions, thus, feed off and feed a retributive society, resting on a clear dichotomy between both the victim and the criminal-Other, and society and the criminal-Other (p.704). This Otherisation of criminality and the criminal can be best explained through Nussbaum’s notion of ‘projective disgust’– disgust projected onto a particular class of people, in order to externalise insecurities about one’s own impurities and moral failings. Ultimately, here lies the appeal of a retributive society that Otherises criminals and paints them like monsters or deviants from (as opposed to products of) human norms. Painting the Delhi rape convicts as the Other, essentially different from the Self, allows everybody else upholding patriarchal structures that justify violence against women, to externalise their own moral failings onto specific particularly egregious acts done by the Other. The Other then becomes the monster-deviant deserving of the worst forms of retribution including the death penalty, in over-compensation for the impunity granted to the Self. Retribution, in other words, becomes a mode of projecting disgust onto the Other - externalising one’s impurities, rendering oneself morally ‘pure’ in the process. Punitive prison systems, for example, help the un-imprisoned to draw a clear moral difference between the incarcerated criminals, and their free selves. So does the death penalty.

This dominant retributive sentiment, and the baggage it comes with, is inherently incompatible with restorative institutions and the kind of society they would arise in and engender. Implicitly, forgiveness is a central moral feature of a restorative society, given its goal of healing social bonds (Wenzel et al., p.377). Theoretically, forgiveness and punishment may perhaps co-exist as compatible notions of justice. However, reconciling these two in a society already deeply invested in retribution and drawing clear boundaries between society and the criminal-Other, will create distortions. Forgiveness is necessarily tied to a wholly different system of social mores – mores that recognise and seek to heal the offenders’ own victimisation at the hands of, inter alia, psychological, socio-economic, and life-history factors, while encouraging the offender to take moral responsibility for his conduct (p.7). This necessitates rejection of the idea of the criminal as an ‘Other’ – instead, it would understand crime as the combined product of a broken society, and individual agency operating within it. The development of these fundamentally different social mores, that is required for any restorative practice to succeed, would remain suppressed under the stronger tendencies to Otherise of the better-established retributive frameworks that restorative practices are embedded in.

This necessary link between retribution and the idea of the criminal-Other also risks creating some distortive consequences when restorative and retributive systems are integrated. Imagine an integrated model that allows victims a choice between penal and restorative remedies. Given the general tendency to construct the criminal as an ‘Other’, what would determine the victim’s choice between restoration or retribution in an integrated model? Wenzel et al. argue that social-psychological factors like the victim’s and the community’s ability to construct a sense of identity with the offender, play an important role in choice of remedy (p.383). This ability to identify with the offender will be particularly critical where restorative options are integrated within a retributive society. This is because, whether an offender faces retributive or restorative remedies, will often be determined by whether the general Otherisation that all offenders face in retributive systems is negated by other factors that allow a sense of identity with the offender. This was reflected during the #MeToo movement in college campuses, where social reactions ranged from ostracisation to forgiveness, and seemed to partly depend on the perception of belongingness of the offender in a largely elite, upper class/caste community. This fallout of integrating retributive and restorative justice is often unaccounted for - the co-existence of the two senses of justice is likely to exacerbate the current discriminatory penal outcomes. While a sympathisable-offender may be humanised and reintegrated, the punitive tendencies will continue to disproportionately further Otherise the offender with whom the victim/the community cannot already identify with. The latter will disproportionately be persons who are already-victimised by structural prejudice - widening the current class/caste/race gap in our criminal justice institutions. This is because the non-marginalised victim is more likely to be able to access justice effectively, as was observed in the #MeToo movement. This means, overwhelmingly, it will be the non-marginalised offenders benefiting from the sense of identity with the victim that allows restoration to succeed – while marginalised offenders are more likely to face retributive remedies. For restorative practices to not exacerbate inequities of the penal system, they must be embedded in a restorative framework that generally allows space for recognition of the victimhood of offenders and their identity with the larger society, regardless of socio-economic factors.

There is another concern with such an integrative paradigm. While victim satisfaction surveys indicate positive results for restorative options, they leave another question unanswered - whether restorative practices installed in retributive societies will satisfy the society. The purpose of criminal law is not only to remedy the harm to the victim, but also to reinstate society’s sense of security. Thus, arguably, state-reaction to crimes must also ensure that the criminal justice system, in general, nurtures society’s sense of security. This is not to say that judges validly account for public opinion during sentencing in specific instances. Rather, the criminal justice machinery as a whole must inspire faith in the community – and thus, has to match the community’s notion of justice. Why is it important that the community feels secure, and has faith in the criminal justice system? Where legal system’s attitude to crime is seen as inadequate, crime can lead to more violent crime as a mode of privately dispensing justice. Further, a society that is insecure about its safety, is also likely to generate unsafe conditions for its Otherised/marginalised sub-sections. For example, the discourse of ‘security’ around terrorism, has been politically used to engender insecurity – this, in turn, has led to a rise in tolerance for Islamophobia and violence against Muslims. None of this is to say that retributive societal norms justify a retributive legal system. However, given the importance of criminal justice systems nurturing this sense of security, restorative practices will remain ineffective, without changing surrounding retributive mores.

Thus, finally, the question is whether the shift from punishment to healing as our idea of justice, first need us to be a fundamentally different society? I answer this in the affirmative. Naturally, however, this is a chicken-and-egg question – should reform in legal institutions drive the change in social mores, or the other way around? This is a common dilemma in questions about law and society and the way they influence each other. To me, the most pragmatic answer is that reform in both must go hand-in-hand.

Conclusion

The question remains, what does this inherent incompatibility between restorative and retributive justice mean? It certainly does not mean that we give up on reform, in face of the retributive mores that pervade our society and law. What this incompatibility does mean, however, is that all facets of our interaction with crime needs to forego retribution as even one aspect of their goals, and focus on reform, rehabilitation, and restoration. These facets range from social education about crime, to prevention policies, to policing institutions, to criminal courts, and finally, post-conviction legal responses.

I will begin with post-conviction legal responses. While restorative models will incorporate alternatives to incarceration, they are not, I believe, theoretically inconsistent with the institution of prison. Practically, however, things change. Prisons in India are governed by the arcane Prisons Act, 1894 and respective state Prison Manuals. The 1894 Act contains no provisions for mandatory rehabilitative/reformative programmes – making prisons tools for inflicting punishment, not facilitating reform. Similarly, there are no uniform provisions made that encourage linkages with the community outside – despite such linkages being integral to restoration by healing social bonds. In the absence of provisions in the 1894 Act, attempts towards offenders’ restoration are isolated and discretionary – such as the gala bhet initiative started by Maharashtra that allows prisoners to meet their families without a dividing barrier. This is again a mere commodification of a restorative-like practice, in a prison system that is otherwise harshly punitive. The only way to systematically transform prisons into institutions of development, reform, and restoration, not punishment, is by shifting to open prisons, allowing prisoners to maintain their social and economic ties with the least hindrance on their liberty. Further, any idea of prisons as restorative spaces must also adequately provide post-release counselling and aid – check-ins to help the offender integrate back into society, financial assistance, career-counselling to enable the offender to economically support himself and forge a new life.

However, it is clear that any shift towards restorative justice in post-conviction legal responses will suffer from the problems pointed out in this paper, unless there is a parallel shift in all other spheres of criminal discourse and regulation. For example, media-reporting on crimes is sensationalised and deeply emotive – often evoking the imagery of ‘monsters’ and ‘evil’ while talking about crime and criminals. Negating the Otherisation that fuels retribution will necessitate media sensitivity guidelines and suitable changes to graduate curriculum in media courses – given the critical role of mass media in social education about crime. Further, media-reporting that attempts to humanise the perpetrator, highlighting his own victimhood, his life before the crime, while still not simply denying his agency in his conduct - will actively help in a shift towards a restorative society. Similarly, incorporating sociological understandings of the causes of crime and criminality, in police/judge manuals and training will initiate a shift towards kinder policing/judicial institutions.

The hope is that we move away from the isolated islands of restoration within retributive paradigms that characterise current criminal justice reform. Instead, we must aim for a holistically restorative system that detaches itself from retributive goals, and shifts to frameworks based on healing and forgiveness.

Guest Post: Analysing 156(3) Cr.P.C. in Context of Vinubhai Haribhai Malviya

(This is a guest post by Jaiyesh Bhoosreddy)

Introduction

Section 156(3) of the Code of Criminal Procedure, 1973 [Cr.P.C.] confers powers upon a magistrate empowered under Section 190 of Cr.P.C. to order a police officer in charge of a police station to investigate any cognizable offence. The scope of Section 156(3) was always considered as pre-cognizance, which is evident from the numerous judicial precedents stating that the power of the magistrate to order investigation under Section 156(3) is always pre-cognizance. The rationale, for considering Section 156(3) as pre-cognizance only, was that the expression ‘taking cognizance’ was judicially interpreted by the courts to mean the ‘judicial application of mind’ by the magistrate with the purpose of proceeding under Section 200 and the succeeding sections of Chapter XV of Cr.P.C., and any other action in his judicial discretion such as ordering investigation under Section 156(3) of Cr.P.C. would be pre-cognizance only [To understand the different stages of a criminal case such as cognizance etc., see here]. 

However, a Three Justices' Bench of the Supreme Court in Vinubhai Haribhai Malviya & Ors. v. State of Gujarat [Criminal Appeal Nos. 478-479 of 2017, decided on 16.10.2019 (“Vinubhai”)], held that a magistrate can order further investigation under Section 156(3) of the Cr.P.C. in the post-cognizance stage. The judgment has, albeit not surprisingly, caused wide-spread confusion among criminal law practitioners with respect to the scope of Section 156(3), and it has also been criticised by some practitioners on grounds that it is contrary to statutory provisions and established judicial precedent.

The present discussion regarding the scope of Section 156(3) is to be viewed in the context of the said judgment. At the very outset, the preliminary issue that bears into mind is regarding the question of propriety of the said judgment, in view of a number of opposing judgments from various courts including the Apex Court itself, which have already laid down the point of law very clearly on the subject matter. The author intends to highlight the problematic issue of noncompliance of a celebrated judicial principle, which should be kept under consideration while pronouncing a judgment. The author will argue that the said judgment is contrary to the very structure of our judicial system which follows the common law tradition, where the previous judicial decisions of the Supreme Court of India under Article 141 and also of High Courts, as Courts of Records, constitutes the “law of the land” in the form of precedents which has binding effect over all lower courts, and also on the coordinate benches of the Apex Court and the High Courts.

Erroneous Interpretation of Section 156(3): Section 156(1) overrides Section 2(h) with respect to interpretation of the scope of application of Section 156(3) of Cr.P.C.

Vinubhai has created adverse ripples in criminal jurisprudence, which is the result of the Bench erroneously observing that the magistrate’s power to order investigation under Section 156(3) is post-cognizance, and in doing so, the Bench has overruled an earlier judgment of the Apex Court in Devarapally Lakshminarayana Reddy v. V. Narayana Reddy [1976 AIR 1672 (“Devrapally”)] and a plethora of other judgments, which had cemented the proposition that the power under Section 156(3) of Cr.P.C. can be invoked only at a pre-cognizance stage.

The plain reading of the provision also clearly reads that it is pre-cognizance and not post-cognizance. The first and primary rule of construction of statues clearly states that if the plain reading of the statute is unambiguous, then the courts should go by the plain reading and not read beyond the text of the statute. The interpretation provided in Malviya is contrary to the legislative intent, which is evident from the language employed in Section 156(3). Section 156(3) employs the language, “such an investigation as mentioned above” to draw reference to the scope of application of the term ‘investigation’, which is provided in Section 156(1) of Cr.P.C.

The Court was erroneous in holding the rationale of Devarapally as incorrect simply because the Bench in Devarapally did not ‘notice’ Section 2(h) of Cr.P.C., as the proviso attached to the title of Section 2 states that the ‘definitions’ provided in Section 2 are subject to exceptions which is evident from the phrase, “In this Code, unless the context otherwise requires”. The author stresses upon the usage of the phrase, “unless the context otherwise requires” in support of the scope of application of investigation to be done only in the manner prescribed under Section 156(1) of Cr.P.C., where the ‘context’ mandates that the power of magistrate with respect to ordering of investigation under Section 156(3) to be limited only to the pre-cognizance stage. This was consciously provided by the legislature for situations where the police would fail to take cognizance of a cognizable offence under its jurisdiction, and so the victim or any other person could approach the magistrate for legal remedy to ensure dispensation of justice. Therefore, Section 2(h) of Cr.P.C. is irrelevant for the purpose of determining the scope of application of Section 156(3) because it triggers an investigation as provided under Section 156(1).

Noncompliance of the Principle of Stare Decisis in reference to the expression ‘taking cognizance of an offence’

The Bench in Vinubhai could have avoided the erroneous interpretation with respect to the scope of Section 156(3) of Cr.P.C., if it would have exhaustively considered the judicial precedents, including Devrapally, deliberating upon the expression ‘taking cognizance’, then it would have realised that the earlier decisions on the subject matter are cemented as courts have always expressly construed the power of the magistrate to order investigation under Section 156(3) to be pre-cognizance only. This is because a magistrate ‘takes cognizance’ of an offence when he applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of Cr.P.C., and only then can he be said to have taken cognizance of the offence within the meaning of Section 190(1)(a). However, if the magistrate takes any other action in his judicial discretion, instead of proceeding under Chapter XV of Cr.P.C., then he cannot be said to have taken cognizance.

Additionally, the above stated judicial explanation of the expression ‘taking cognizance’ was reiterated by the Apex Court, in R.R Chari v. State of Uttar Pradesh [1951 AIR 207 (“R.R Chari”) (Three Justices' Bench)], while considering the phrase ‘taking cognizance’, approved the decision of Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee [AIR 1950 Cal. 437], wherein the Court observed that taking an action of the nature of ordering an investigation under Section 156(3) will be pre-cognizance only. The same view was reiterated by the Apex Court in Nirmaljit Singh Hoon v. State of West Bengal and Anr. [AIR 1972 SC 2639] and Jamuna Singh and Ors. v. Bhadai Sah [AIR 1964 SC 1541].

Thus, R.R. Chari is another judgment pronounced by a three-judge bench, apart from Devarapally, where the Court has affirmed that Section 156(3) is pre-cognizance only. In view of this, the Bench in Vinubhai should have refrained from overruling Devrapally as it is a recognised principle that the views by one Bench is binding upon another coordinate Bench. In Union of India v. Godfrey Phillips India Ltd. [AIR 1986 SC 806] and Union of India v. Raghubir Singh [AIR 1989 SC 1933], the Courts have held that when one Bench thinks differently from another Bench of equal strength, then it should refer the matter to a larger Bench for decision rather than deciding upon the correctness of the view of the earlier coordinate Bench. Therefore, even if the Bench in Vinubhai was possessed by a very strong inclination that the interpretation in Devrapally was flawed, it should have referred the matter to a larger bench for resolution, however the Bench proceeded, on the basis of a flawed reasoning, to overrule established judicial precedents which has caused confusion in the field of criminal law.

Practical Benefits of the Judgment: Positive Impact for Bona Fide Applicants

In Vinubhai, the question of law that the Court had to decide upon was, “whether a magistrate has the power to order further investigation after a charge sheet is filed by the police”. The Court held that the magistrate had power under Section 173(8) of Cr.P.C. to direct further investigation up to the stage of framing of charges, and simultaneously overruled those decisions of the Apex Court, which interpreted the powers under Section 173(8) in a restrictive manner and thereby providing support to a latest decision of the Court, which construed the power under Section 173(8) to allow the magistrate to order further investigation after a police report was filed and cognizance was taken upon the said police report.

This was a positive step taken by the Bench in the development of law through judicial interpretation, as it resolved conflicting views given by the Court in the past to promote certainty of law, and furthered the interest of justice as a result of liberal interpretation. The judgment enables bona fide applicants to request for further investigation, and this would also lead to a reduction in multiple First Information Reports (FIRs) being filed. However, it should also be noted that the judgment also enables the accused persons and other parties in a criminal proceeding, with the ability to delay and derail the proceedings by filing applications requesting for further investigation to occur, and these orders under Section 173(8) will be subject to appeals which will invariably result in delays of the criminal proceedings causing irreparable loss either to the accused or to the victim.

Conclusion

The author submits that Vinubhai has eroded the principle of ‘Stare Decisis’, which is the foundation upon which the common law tradition exists. The Bench in Vinubhai overruled the plethora of judgments which followed Devarapally. Now, one could argue that the Bench was not improper in overruling the plethora of judgments as the bench strength was higher in Vinubhai, however that logic stands correct only if the Malviya judgment overruled Devarapally judgment which is not the case as the former is a per incuriam judgment with respect to the question of scope of Section 156(3) of Cr.P.C., and Devarapally also enjoys support from R.R. Chari which is another three-judge bench judgment, which held that Section 156(3) is pre-cognizance only.

The lower courts can still adhere to the decision in Devarapally despite Vinubhai being a more recent judgment on the ground that the latter is per incuriam as it did not analyse the scope of Section 156(3) in the context of judicial precedents pertaining to the expression ‘taking cognizance’, which is of crucial importance when determining whether the scope of Section 156(3) is pre-cognizance or post-cognizance. This question was resolved by the various High Courts themselves in Amar Singh Yadav v. Shanti Devi [AIR 1987 Pat. 191] and Ganga Saran v. Civil Judge, Hapur [AIR 1991 All. 114], wherein the Courts have held that in the case of conflicting views rendered by different coordinate benches of the Supreme Court of India, then the decision which states the law more elaborately and accurately should be followed, by the High Courts, rather than the view that has been expressed at a later date. It would be prudent to conclude the present discussion on the point that the cardinal principle of the law of precedents is that the superior courts, especially the Apex Court and the High Courts, should settle questions of law in a consistent manner so that the law of precedents attains some degree of certainty, and observance of law is ensured.

The Tofan Singh Reference — Part 4: Summing Up

(This the fourth part of a multi-part series. Previous posts discussing Tofan Singh can be accessed here)

The 2013 judgment by Two Justices' in Tofan Singh v. State of Tamil Nadu [(2013) 16 SCC 31 ("Tofan Singh")] had referred two interlinked issues arising under the Narcotic Drugs & Psychotropic Substances Act 1985 ("NDPS") to a bench of three Justices. No matter the importance of the issues — which, interestingly, even prompted a sitting Justice to plea for a speedy consideration of the reference at one point — the Tofan Singh reference lay in cold storage. Till January 2019, that is, which is when arguments appeared to have been concluded, but no judgment ever came. Fast-forward to August 2020, and a different Three Justices' Bench appears poised to consider — and hopefully decide — the issues in Tofan Singh.

To recap, the issues are:

• Whether an officer of the central / state government investigating a case under the NDPS Act is a "police officer"?
• Whether statements recorded under Section 67(c) of the NDPS Act can be treated as confessional statements, regardless of whether the officer is a police officer?   

Let's take up both of them, in turn, to flesh out what is at stake and what might be the key points to consider. 

Who is a "Police Officer"

Section 53 of the NDPS Act makes it possible to invest officers / classes of officers from the central or state government, "with the powers of an officer-in-charge of a police station" as laid out under the Criminal Procedure Code 1973 ["Cr.P.C."]. Does this make these officers "police officers"? The Court has taken a look at this issue many times in the past, and different benches have ended up at different conclusions. Hence, the reference in Tofan Singh.    

Why does it matter whether these officers are treated as "police officers" formally? It is due to Section 25 of the Indian Evidence Act 1872 ("IEA") which states that no confessions made to a "police officer" shall be proved against an accused. So, if these officers are police officers, then a confession recorded by them would be hit by the Section 25 prohibition and rendered useless as evidence. 

Provisions similar to Section 53 of the NDPS Act, and the issue of whether such empowered officers are "police officers", is something that the Supreme Court has considered in the past. Besides taking a hard look at all the previous instances where the Supreme Court specifically took up the Section 53 issue, it is likely that the arguments in Tofan Singh might turn to these more general decisions as well to help cull out the legal position. In this regard, the decisions in Raja Ram Jaiswal [AIR 1964 SC 828 (Three Justices' Bench)] and in Badku Joti Savant [AIR 1966 SC 1746 (Five Justices' Bench)] are likely to be critical. 

The so-called "Chargesheet Test" in Badku Joti Savant has proven critical on many a prior occasion when this issue of who is a police officer has come up. According to this view, an officer who is conferred with a power to file a Police Report (commonly referred to as a Chargesheet) is one who qualifies as a police officer for purposes of Section 25 IEA. A plain reading of Section 53 does not show that any express conferral of this power has been done. Rather, Section 36A(1)(d) of the NDPS Act suggests that the investigations by such officers should end with a Complaint and not a Police Report.   

In my opinion this approach is certainly plausible, but not desirable, as it ends up privileging form over substance both in terms of how we read precedent and the text of the NDPS Act itself. Let's start with precedent first. Badku Joti Savant did say that a police officer is one who can file a police report. But it did not advocate an approach that shuts its eyes to the specific statutory text in question. Rather, in Badku Joti Savant the Court paid very close attention to the specific text (Section 21 of the Central Excise and Salt Act 1944) to come to the unanimous verdict. Section 21(2) certainly said that the Excise Officer "may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station". But it began with a "For this purpose", thus indicating that the conferral of power was not absolute. For the Constitution Bench, this limitation proved critical (Notwithstanding that this purpose was to "inquire into the charge" against a person). For the Court, this made Section 21 obviously different from the provision in question before the bench in Raja Ram Jaiswal (Section 78 of the Bihar and Orissa Central Excise Act 1915), which did not have any such express limitations and thus correctly arrived at the conclusion that those officers under the Bihar and Orissa Act should be police officers. It bears mention that Section 78 of the Bihar and Orissa Act 1915 created a specific deeming fiction that the document filed at the end of an inquiry must be seen as a "Police Report". However, this was not the basis for deciding the issue in either Raja Ram Jaiswal, or noted at all by the Court in Badku Joti Savant 

Section 53 does not contain any such express deeming fiction which says that the document filed by the empowered officer is deemed to be a police report. At the same time, it also does not contain any limitation on the investiture of power of the kinds that troubled the Court in Badku Joti Savant. To consider such a limitation being implied by Section 36A(1)(d) is certainly possible, but arguably incorrect and unconstitutional. If Section 53 has invested certain officers / classes of officers with all powers of a regular police officer for investigating a case, without any qualifiers, then that deeming fiction should be taken to its logical conclusion and treat the two sets of officers as equal in substance. Using Section 36A(1)(d) to treat the two sets of officers as different, by allowing statements to one as being admissible but not the other, would ridicule the notion of equality and arbitrarily prejudice the set of defendants whose cases are investigated by Section 53 officers. Lastly, it is not at all necessary to read Section 36A(1)(d) as demanding complaints by empowered officers. Instead, this clause could be read as applying to all the other central / state government officers who are not empowered under Section 53.     

Section 67 Statements as Substantive Evidence

Section 67(c) of the NDPS Act is a specific provision that permits empowered officers to examine any person acquainted with the facts of a case. The second issue posed in Tofan Singh is whether such statements can be treated as substantive evidence at trial. This issue was seen as interlinked with the first one because, if the officer recording the statement is treated as a "police officer", then the prohibition of Section 25 IEA would apply to render such statements inadmissible. 

Well, not quite. This is because of Section 53-A of the NDPS Act, which is a special rule of relevancy for NDPS cases crafted for signed statements given to empowered officers. This clause leaves it open for the trial judge to accept such statements in evidence for the truth of their contents if the judge thinks it is necessary to do so in the interests of justice (where foundational requirements of the clause are met). In such cases, I would think that the issue of whether or not we treat the concerned officer as a "police officer" is rendered redundant, as the prohibition of Section 25 IEA is being lifted by this special law.

If this reading of the NDPS Act is correct, then the second issue in the Tofan Singh reference is largely reduced to an issue of unsigned statements under Section 67. If the officer recording the statement is treated as a police officer then, naturally, the general prohibition of Section 25 IEA would apply. But even if this is not the finding on the first issue, the Court in Tofan Singh might yet have something to say about using such statements as substantive evidence. This is because of how Section 67 of the NDPS Act is worded. Compared with what are touted as similar provisions in other laws permitting statements to come in as substantive evidence — say, Section 108 of the Customs Act, Section 50 of the PMLA, or even Section 164 of the Cr.P.C. — the statement under Section 67 is (i) not given on oath, and (ii) is given without any warning / caution administered to the accused of the consequences. As a result, statements under Section 67 NDPS Act are arguably bereft of safeguards to ensure their reliability as well as voluntariness. Especially if one takes a moment to think about the fact that a lot of these statements are tendered by persons under arrest and in police custody. 

In light of this, should trial courts be permitted to consider such statements as substantive evidence and proof of guilt? If the Supreme Court does think that this is a problem, then there are a few options available to address it. Let's flesh out two of these: First, the Court could treat unsigned Section 67 statements the same as those given under Section 161 of the Cr.P.C., and only allow them to be used for purposes of contradicting a witness during trial. Or, Second, it could perhaps push for a rule of prudence (similar to that governing accomplice evidence) which requires that trial courts may consider the Section 67 statements only where the prosecution can offer corroboration of material particulars. 

Conclusions

Until the text of Section 25 IEA is changed, the issue of who is a "police officer" will remain a critical one in all contexts. The reference in Tofan Singh should, hopefully, put to bed the confusion that has reigned on this point in the context of the NDPS Act — a confusion that was identified way back in 2013. However, the very specific contours of Tofan Singh and the NDPS Act would suggest that any conclusions that the Supreme Court arrives at are not going to affect the broader landscape, and the "Chargesheet Test" of Badku Joti Savant will probably remain the general statement of law. Unless, of course, the Court clarifies this position of law in a way that has a wider impact. One such way could be to perhaps set the record straight upon just what kind of statutory deeming fiction is required to treat other empowered officers as police officers. Whichever way the Court decides on this issue in Tofan Singh is bound to have an effect on the second issue placed before it—the scope of which is arguably limited by Section 53-A of the NDPS Act itself. However, it would be wrong to think that there is nothing more to be said on the evidentiary status of Section 67 NDPS Act statements. These statements leave a lot wanting on the twin prongs of reliability and voluntariness that Indian evidence law insists upon when dealing with witness testimony. The Court hopefully engages with these limitations while arriving at whatever conclusions it considers appropriate. 

The Tofan Singh Reference — Part 3: Statements under Section 67 NDPS Act

(This is part three of a multi-part series. Previous parts can be accessed here, and here)

The previous two posts in this series have discussed the facts in Tofan Singh, the relevant statutory provisions of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS] and the Criminal Procedure Code 1973 [Cr.P.C.], and also the first proper issue posed in the reference: Whether officers of the central and / or state government investigating cases under the NDPS Act ought to be seen as "police officers" for purposes of the prohibition under Section 25 of the Indian Evidence Act, 1872 [IEA].

This post takes up the second proper issue posed in the reference: Whether the statement recorded under Section 67(c) of the NDPS Act by the central / state government officer "can be treated as a confessional statement or not, even if the officer is not treated as a police officer". 

The Arguments Before the Division Bench in Tofan Singh

The 2013 judgment acknowledges that the two questions are interlinked, but even so, it referred the second question because there were extensive arguments raised at the bar, and its summation (as captured in the judgment) is extracted below:

"Pitching this argument to the next level, it was submitted that the power under Section 67(c) of the Act is merely a power to examine any person acquainted with the facts and circumstances of the case. Such statements are not required in law to be truthful as provided under Section 161(2) of the Criminal Procedure Code, which required the person making statement to a police officer under Section 161 Cr.P.C. to make a true statement. Even such a statement made under Section 161 Cr. P.C. is not a substantive evidence on which a conviction can be based. Statements under Section 67 are not required in law to be given truthfully and hence cannot in any case be treated to be a substantive evidence. Further statement under Section 67 are not recorded after administration of oath as is required under Section 164(5) of the Criminal Procedure Code, the officers are not competent to administer oaths and, therefore, the statements under Section 67 cannot be substantive evidence for recording conviction."

And later on, while framing the reference questions, the Court noted that: 

"As far as this second related issue is concerned we would also like to point out that Mr. Jain argued that provisions of Section 67 of the Act cannot be interpreted in the manner in which the provisions of Section 108 of the Customs Act or Section 14 of the Excise Act had been interpreted by number of judgments and there is a qualitative difference between the two sets of provisions. In so far as Section 108 of the Customs Act is concerned, it gives power to the custom officer to summon persons “to give evidence” and produce documents. Identical power is conferred upon the Central Excise Officer under Section 14 of the Act. However, the wording to Section 67 of the NDPS Act is altogether different. This difference has been pointed out by Andhra Pradesh High Court in the case of Shahid Khan vs. Director of Revenue Intelligence; 2001 (Criminal Law Journal) 3183."

Making Sense of the Reference Question 

Reading the argument, it seems that it was pitched slightly differently than how it was framed by the Court. Rather than consider whether a Section 67(c) statement can be "confessional statement", the argument seems to have been that a Section 67(c) statement cannot be considered as substantive evidence. 

The framing of the Court is a bit problematic, largely since there is nothing defined as a "confessional statement" in Indian law, and determining whether a statement is a confession is a very fact specific exercise guided by legal tests. Therefore, I do not follow that framing, and instead engage with the argument that a statement made / recorded under Section 67(c), NDPS Act cannot carry weight as substantive evidence. At best, it must be treated just like a regular statement before a police officer given under Section 161 Cr.P.C., which cannot be used as proof at trial and can only be used for contradicting a witness who takes the stand.

The primary basis for the argument lies in the relative absence of safeguards under Section 67 as a process — both to ensure reliability of the statement as well as to ensure voluntariness. For example, the only kind of statements recorded during an investigation under the Cr.P.C. which can be treated as substantive evidence are those made on oath before magistrates, who are duty-bound to caution the person giving a statement that it could be used against her. Section 67(c), on the other hand, simply says that the officer may "examine any person acquainted with the facts and circumstances of the case" without prescribing any procedure to ensure the reliability and voluntariness of the resulting statement.

Signed v. Unsigned Statements, Section 53-A of the NDPS Act, and an Additional Question

The core logic of this argument might well be sound (I, frankly, agree with it). But a look at the NDPS Act suggests that the argument cannot be taken to its logical conclusion. Rather, I think we land up is a midway point: not all statements that are recorded under Section 67(c) ought to be considered as substantive evidence, but in some cases the statute itself suggests that this is possible and that there is no clear prohibition.

I say this because (as was raised in Part I) of Section 53-A of the NDPS Act, which was curiously missing in the 2013 judgment. Effectively, this provision has created a special rule of evidence for NDPS cases, overriding the general prohibitions under the Evidence Act, according to which any signed statement made to an empowered officer under Section 53 NDPS Act, becomes "relevant for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains". Note that unsigned statements made to such officers stand excluded from Section 53-A and their relevancy and admissibility will be subject to the rigours of general provisions such as Section 25 of the Evidence Act, and a finding on the first issue in the reference (whether the officer is a police officer or not).

Even when we have a signed statement — which, naturally, cannot be under any clause but Section 67 NDPS Act as there is an express bar on taking signed statements under Section 162 Cr.P.C. — Section 53-A cannot kick-in arbitrarily, but only if: (a) The maker of the statement is dead / kept away from the trial / cannot be found, or; (b) The maker of the statement is a witness and the trial judge thinks that, "having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice." 

Thus, the NDPS Act itself denies any total prohibition on treating statements under Section 67 as substantive evidence. Where such statements are signed, Section 53-A, and the maker of the statement is a witness, then Section 53-A kicks in. Under this provision, it is the trial judge who has been made the final arbiter of whether it is necessary to consider the initial statement, for its truth, and arguably the counsel for an accused would have the opportunity to advance arguments to persuade a judge against doing so in any given case. It is not unimaginable that a judge gets persuaded by the concerns over reliability and  / or voluntariness that were ascribed to statements made under Section 67, NDPS Act.   

What about the unsigned statements? Whatever might be the finding on issue one, the reference in Tofan Singh could very well hold that such statements ought not to be treated as substantive evidence as a rule of prudence. Such rules of prudence are not uncommon in evidence law, and it is not at all impossible for the Court to hold that the inherent problems in the Section 67 statement — of reliability and voluntariness — require that it must be corroborated. Should the Court go ahead and do so, I would think that it would not affect the playing field beyond the limited confines of the NDPS Act. Unless, of course, the Court thinks that statements to any government officer, notwithstanding the existence of statutory safeguards, is a piece of evidence that must be treated with a degree suspicion considering the natural imbalance of power between the parties, and therefore requires necessary corroboration of material particulars.  

Conclusion

Unless the Supreme Court strikes down Section 53-A of the NDPS Act on grounds of unconstitutionality — which, at least under the terms of reference, is an option not on the table — then the second issue of Tofan Singh must be understood as having been qualified by the terms of the NDPS Act itself. 

The issue of whether statements given under Section 67, NDPS Act can be treated as substantive evidence (such as confessions) in NDPS Act cases is one that the statute has already addressed, telling us that it is possible to do so if the trial judge considers that the statement must be read for the truth of its contents in the interests of justice (assuming all the foundational requirements were met). 

However, for the statements which fall outside of this bracket — such as unsigned statements, or statements made to officers but not being used in the NDPS Act case itself — the special evidentiary rule would not apply, and we end up back with the uncertainty about whether or not the officer in question is a "police officer". Even if the Court does not conclude that these officers are police officers, it still leaves the possibility of creating rules of prudence requiring that unsigned statements must be corroborated in material particulars and not be considered as substantive evidence on their own merit. Whether the Court ends up arriving at these conclusions only for statements under Section 67, or more generally, will be something to wait and see. 

The next, and final, post in the series rounds up the discussion. 

The Tofan Singh Reference — Part 2: NDPS Investigating Officers are Police Officers?

(This post has been co-authored with Shashwat Bhutani and Rishabh Narain Singh)

This blog has introduced the scope of the reference in Tofan Singh and the statutory context of the NDPS Act. Which means that we can straightaway jump in to discuss the first question: Whether an officer who investigates a case under the NDPS Act is a "police officer", for purposes of Section 25 of the Indian Evidence Act, 1872. This provision, readers may recall, is the statutory prohibition upon using confessions against accused persons at trial. Essentially, then, if the officer investigating an NDPS case is a "police officer", then any confessions / statements made to her would be rendered useless from a trial perspective. 

 

This post will tease out the legal position that led to the Tofan Singh reference, and then argue for what the authors think is the correct approach to follow. 

Revisiting the Classics and "Officer in-Charge of a Police Station".

It might come as a surprise that there is no controlling definition of the phrase "police officer" in Indian law, especially considering the significance of the evidentiary bar mentioned above. But, alas, such is the case. However, courts have filled in this gap, and today it would seem that there is a fairly settled test to decide who can be called a "police officer".

Rather than adopt a "functional" approach, of the kinds on display in, say, the Three Justices' Bench decision in State of Punjab v. Barkat Ram [AIR 1962 SC 276] [whether Customs Officers under the Sea Customs Act, 1878 and / or Land Customs Act 1924, are “police officers” within the meaning of Section 25, and finding that they are not], and Raja Ram Jaiswal v. State of Bihar [AIR 1964 SC 828] [Officer under the Bihar and Orissa Excise Act 1915 is a "police officer"] both of which looked at the purpose for investing officers with coercive powers, the Supreme Court quickly turned towards endorsing a more formulaic approach. A Constitution Bench of the Supreme Court in Badku Joti Savant v. State of Mysore [AIR 1966 SC 1746], was concerned with whether an officer under the Central Excises and Salt Act 1944 would be a "police officer". The Court proferred a simple test to resolve the matter: a police officer is one who can file a police report / chargesheet; if not, then you aren't dealing with a police officer. This decision by Five Justices continues to control the field, and has been followed by subsequent benches (including Constitution Benches), in cases such as Romesh Chandra Mehta v. State of West Bengal [AIR 1970 SC 940] and Illias v. Collector of Customs, Madras [AIR 1970 SC 1065]. 

Rather than belabouring the point about this "Chargesheet Test", let us instead turn our gaze upon what lay behind those conclusions arrived at in Badku Joti Savant. In that case, provisions of the Central Excises and Salt Act were in issue, and the investigative / coercive powers of a Central Excise Officer were being considered. Section 19 dictated that any person arrested under the Act had to be forwarded forthwith to a Magistrate or an officer in-charge of the nearest police station. Together with this went Section 21, which said that:

"(1) When any person is forwarded under section 19 to a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him. 

(2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police-station may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898), when investigating a cognizable case: ..." [Emphasis Supplied]

For a limited purpose, then, a Central Excise Officer was conferred the same powers as the officer in-charge of a police station. This deeming fiction was used as the prong to argue that the Officer had to be treated as a police officer. And, as we know, the Court in Badku Joti Savant disagreed with this claim. It held that the power under Section 21 was limited [21(2) starts with "For this purpose"], and did not confer all powers of a police officer upon the Excise Officer, and in this context made its observations about the Act not conferring powers of filing the report under Section 173, Cr.P.C. 

Towards this end, the Court also repeatedly distinguished these facts from those before it in Raja Ram Jaiswal, which was referred to above. The Court noted in Badku Joti Savant, that "In any case unlike the provisions of s.78(3) of the Bihar and Orissa Excise Act, 1915, s. 21(2) of the [1944 Act] does not say that the Central Excise Officer shall be deemed to be an officer-in-charge of a police station and the area under his charge shall be deemed to be a police station. All that s.21 does is to give him certain powers to aid him in his enquiry. [Emphasis supplied]" Thus, the Court implied that the findings in Raja Ram Jaiswal were correct, due to that statutory context. Let's therefore take a look at the kind of clause which the Supreme Court held could deem other officers to be police officers, even for purposes of Section 25 of the Evidence Act. 

"(1) Any Collector, or any Excise Officer empowered under section 77, sub-section (2), may after recording in writing his reason for suspecting the commission of an offence which he is empowered to investigate, exercise — 

(a) any of the powers conferred upon a Police Officer making an investigation, or upon an officer in charge of a police-station, by sections 160 to 171 of the Code of Criminal Procedure, 1898 (5 of 1898), and 

... 

(3) For the purposes of section 156 of the Code of Criminal Procedure, 1898 (5 of 1898) the area to which an Excise Officer empowered under section 77, sub-section (2), is appointed shall be deemed to be a police-station, and such officer shall be deemed to be the officer in charge of such station. 

(4) As soon as an investigation by a Collector or by an Excise Officer empowered under section 77, sub-section (2), has been completed, if it appears that there is sufficient evidence to justify the forwarding of the accused to a Magistrate, the investigating officer, unless he proceeds under sub-section (2) of this section or under section 68 of this Act, shall submit a report which shall, for the purposes of section 190 of the Code of Criminal Procedure, 1898 (5 of 1898) be deemed to be a Police-report to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offences on Police-reports." [Emphasis supplied]

The Court in Badku Joti Savant referred explicitly to Section 78(3) to distinguish this statute from the 1944 Act, to suggest that there were no limits placed upon the deeming fiction created under Section 78. At the same time, the Court surprisingly did not refer to Section 78(4) and its very specific terms about deeming the report to be a police report, which is what it seemingly took inspiration from in its ultimate holding. 

The NDPS Act Cases

The NDPS Act came in 1985, many years after the Chargesheet test in Badku Joti Savant. We have seen the statutory context of the NDPS Act in detail in the previous post — powers to investigate offences may also be conferred upon special officers under Section 53, and these officers may be conferred with powers equivalent to that of an officer-in-charge of a police station to hold the investigation. 

The question of whether an Investigating officer empowered under Section 53, is a police officer or not came before the Supreme Court for the first time in the case of Raj Kumar Karwal v. Union of India [AIR 1991 SC 45] [Case investigated by an officer of the Directorate of Revenue Intelligence empowered under Section 25]. The Court held that the legislature has drawn a distinction in the manner of initiating a case by a police officer and by an officer of central or state government, by virtue of Section 36-A (1)(d) of the Act. According to the Court, Section 36-A (1)(d), allows officers of the central or state government to only file a complaint. On the other hand, a police officer would file a charge-sheet to initiate such proceeding. Thus, these empowered officers of central or state government were not police officers as they do not fulfil the criteria laid down in Badku Joti Savant. 

Raj Kumar Karwal was also followed by the Court in the case of Kanhaiyalal v. Union of India [(2008) 4 SCC 668]. However, in Noor Aga v. State of Punjab [2008 (9) SCALE 681] a Division Bench of the Supreme Court digressed from these earlier decisions. It stated that Section 53 of the Act empowers the customs officers with the powers of the Station House Officers and officers invested with these powers by reason of a special statute in terms of sub-section (2) of Section 53, should be considered as police officers. However, soon after this, in Ram Singh v. Central Bureau of Narcotics [(2011) 11 SCC 347] the Court went back to the position in Raj Kumar Karwal and stated that Section 53 alone would not be sufficient to hold such officers as police officers as it does not confer the power of filing a charge sheet. However, the pendulum swung back again, when in Nirmal Singh Pehlwan v. Inspector, Customs [(2011) 12 SCC 298] as the bench in this case doubted the correctness of the holding in Kanhaiyalal and that line of judgments.

The result of all this confusion? A reference in Tofan Singh.

Why S. 53 Officers Must be Treated as "Police Officers"

The dichotomy within Section 36-A(1)(d), where it refers to both complaints and police reports, is what has led previous decisions to conclude that the officers of the central / state government which might be empowered under Section 53 are those who can only file a complaint. This, in our view, is an incorrect conclusion to draw.

The officers appointed under Section 53 fall within a larger subset of officers, as mentioned under Sections 5 & 7 of the Act. Section 5 defines the “officers of Central Government” and empowers the Central Government to appoint the Narcotics Commissioner as well as other officers for the purposes of this Act. Similarly, Section 7 defines the “officers of State Government” and empowers the state governments to appoint officers to carry out the purposes of the Act. The definitions given under both the sections are general and inclusive as they do not define which officers and of what designation will be appointed. 

Basically, the sensible way to read Section 36-A(1)(d) is this: while officers who are not empowered under Section 53 end up filing complaints, the report filed by empowered officers — who have been conferred with powers of an officer in-charge of a police station — should be seen as as a Police Report to give full effect to the deeming fiction created under Section 53. Not only does this degree of nuance help maintain the dichotomy under Section 36-A(1)(d), it also keeps the law in line with the tests laid out in the earlier Supreme Court decisions that we discussed above. If we look at the language of Section 53, it is not at all like that found in Section 21 of the Central Excises and Salt Act of 1944 inasmuch as there is no express limitation conferred upon the conferral of powers. Instead, Section 53 looks a lot more like Section 78 of the Bihar and Orissa Act of 1955. 

Such a reading also saves the relevant provisions of the NDPS Act from being assailed on an arbitrariness challenge. After all, if Section 53 makes empowered officers coequal in terms of their powers with regular police officers for all intents and purposes, and this was the legislative intent behind the provision, it is clearly arbitrary to render these officers exempt from the limitations on their powers that exist in law. If that were the purpose, the NDPS Act would very well have created clear deviations, as it has on so many other aspects by say enhancing powers of search and seizure under Section 42. More importantly, the NDPS Act already has created a statutory mechanism to override Section 25, and it does not rely upon an interpretation of the phrase "police officer" but instead involves a judicial determination about the interests served by admitting statements made to empowered officers. If the legislature had sought to simply remove the so-called shackles of Section 25, it would not have gone through all this trouble.

Conclusion

After thoroughly conducting an investigation, there are only two possible routes to initiate a case under an NDPS Act: upon the perusal of a “police report” or upon filing a “complaint”. Therefore at present, only a police officer can initiate a case by following the chargesheet-route, as other investigating officers do not have this power. If other officers have to initiate a case, they have no other alternative, but to follow the “complaint case route” because they cannot file a chargesheet. This conundrum can be easily be solved by reading Sections 36-A (1) (d) and 53 together. These two provisions will prove to be the decisive arrows in the statutory quiver if they are given a conjoint reading, as it will pave the way for the empowered officers to adopt the chargesheet route in order to initiate a case. 

Whatever might be our views about the "Chargesheet Test" laid down in Badku Joti Savant, a close reading of that decision shows how the Supreme Court did not advocate an entirely simplistic approach but still implored a careful reading of the statutory context involved in each case. In the case of the NDPS Act, Section 53 shows that the conferral of police powers upon other government officers is not limited by a specific purpose, and therefore the deeming fiction demands being given fullest effect to. We have also argued that such a reading is harmonious with the legislative intent behind the NDPS Act, and that any other reading would arguably be unconstitutional on arbitrariness grounds.

The Tofan Singh Reference — Part 1: Some Key Questions of Fact, and the Scheme of the NDPS Act

(This is the third post on the Blog discussing the reference in Tofan Singh, and the second one in an on-going series) 

The previous post introduced this issues in the Tofan Singh reference, that has been fixed for hearing this month by the Supreme Court. In this first substantive post, the focus is on getting the facts straight. The legal issues that are bound to be raised turn on some very specific facts, and so it is critical to be sure of just what had happened in Tofan Singh. After having set out the facts, the post will then tease the legal issues out in connection with these facts, to help in getting a better sense of the same. 

Sorting out the Facts

Tofan Singh was a criminal appeal in a narcotics case that reached the Supreme Court after two rounds of litigation, in both of which the appellant and other accused persons had lost. The prosecution had sought to prove that Tofan Singh and his associates had conspired to engage in drug trafficking (heroin, the choice of substance). 

The Supreme Court judgment extracts the facts at length. But, here's the thing: it does not extract the same facts as done by other courts which have heard the matter. The factual narration in the High Court judgment (reported as Badrilal Sharma v. State), differs from the Supreme Court version on some very important aspects. I've extracted these below: 

• An intelligence officer in the NCB, South Zone Unit (L.S. Aruldoss, PW-7) had received a tip-off about the trafficking activity, and he was in-charge of a team that intercepted the Ambassador car in which the appellant and some other accused persons were found. From this vehicle, the contraband was recovered, and the appellant and other accused persons were arrested by the raiding party. Note though, that the High Court judgment suggests that the arrests happened later, after the statements had been recorded.
• Statements of the accused persons were recorded under Section 67 of the NDPS Act by another Intelligence Officer who was part of the raiding party, and in his statement it was claimed that the appellant had confessed to the crime. Note, again, that the High Court judgment suggests that the statements of each accused were recorded by different officers]
• The case was then transferred to another officer, R. Murugan, for investigation, who filed a report under Section 173 of the Criminal Procedure Code 1973 [“Chargesheet”] upon completing the investigation. Critically, note that High Court judgment suggests that it was not R. Murugan, but instead one Sridhar (also an NCB Intelligence Officer), who conducted the investigation, and he eventually filed a Complaint and not a Chargesheet.

Despite the discrepancies, one can still ascertain that (i) Regular police cadre did not investigate the case and this was done by Intelligence Officers in the Narcotics Control Bureau [NCB], and; (ii) Statements of accused persons recorded were also not recorded by regular police officers but by these NCB officials. But it is imperative to have certainty about the third issue — whether the officers filed a Chargesheet, or a Complaint? In the current legal scheme governing the question of who is a police officer, one that has been constructed by judgments of the Supreme Court going back to the 1960s, it is this singular fact upon which the entire story turns, as the next post in the series will discuss.

The NDPS Act Structure — Taking Cognizance

The Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS Act] has a slightly peculiar statutory scheme which also contributes to the complications at hand. Take a look at Section 36(1)(d), which describes how the court can take cognizance of an offence:

"a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial." [Emphasis supplied]

 

This provision largely mirrors the scheme of Section 190, Cr.P.C., which lays down the general law and states that cognizance can be taken upon (a) "a complaint of facts which constitute the offence", or (b) "a police report of such facts". Note, that a police report refers to the report that is filed under Section 173, Cr.P.C. It is colloquially called a "Chargesheet" when the police recommends that a case be sent for trial. Whenever police officers investigate a case, the only instance in which this leads to filing a "Complaint" is where the offences alleged are "non-cognizable" in nature. In all other cases, the document that the police files at the end of an investigation is a "Police Report" as under Section 173 of the Code.

Through this scheme, the Supreme Court has concluded thus: A police officer is one who files a police report at the end of an investigation, and not a complaint. We will come back to this rule of thumb in detail later, but just keep it in mind for now, as this is crucial for the first issue posed in the Tofan Singh reference.

The NDPS Act Structure — Who Investigates

Section 36(1)(d) suggests that courts can take cognizance on either a police report, or a complaint filed by an officer so authorised. This prompts another question: Who can investigate a case under the NDPS Act, and ultimately file it before the court?

Chapter V of the NDPS Act, titled "Procedure", sets out the bulk of the investigative powers vested upon officers under this Act. In this regard, take a look at Section 53 of the Act:

53. Power to invest officers of certain departments with powers of an officer-in-charge of a police station.— 

(1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act. 

(2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.

The "officer in charge of a police station" is a technical term defined in the Cr.P.C., but reading the definition alone doesn't help understanding its import and the power that it confers, for which one must go through the Cr.P.C. as a whole. Basically, this is the officer upon substantive powers of arrest, search, etc. are vested through the Code. And, under Section 156 of the Cr.P.C., it is this officer who is empowered to investigate into a cognizable case. 

Section 53 is a tool of convenience. Rather than selectively choose powers to confer upon these other officers, through this clause the entire gamut of police powers gets vested upon the specific officers / classes of officers who are so notified in the official gazette. On top of which, one finds that Chapter V of the NDPS Act modifies some of these powers — such as search and seizure — from their generic form as found within the Cr.P.C.    

What we have then is three potential classes of persons who can investigate a case under the NDPS Act: (i) Ordinary police officers, whose powers are in no way taken away under the Act; (ii) Officers empowered under Section 53 of the NDPS Act; (iii) Other government officials, who are not notified under Section 53. For the first class of persons, there is no doubt that they will file a police report in court upon concluding  their investigation. Similarly, for the last category of officers, there is no doubt that they will file a Complaint, as a police report can only be filed by a police officer.

Which then leaves us with the middle category. Will an officer invested with powers of an officer in-charge of a police station, file a "Police Report" upon concluding the investigation, or a "Complaint"? Filing a police report would be to take the deeming fiction under Section 53 of the NDPS Act to its logical conclusion, perhaps. But then again, can filing a "Police Report" be called a power for it to be invested through Section 53? 

The NDPS Act Structure — Statements during Investigation

We now know that Section 53 of the NDPS Act confers the entire gamut of police powers detailed under the Cr.P.C. upon specific officers / classes of officers, and it is the status of these officers — whether they are "police officers" — which is the focus of the first issue in the Tofan Singh reference. 

At the same time, the NDPS Act also contains provisions which modify these police powers to a certain extent. In this regard, consider the power to record statements, which is provided under Section 161 of the Cr.P.C., which would be conferred upon the empowered officer. These general powers coexist with Section 67 of the NDPS Act, which is at the heart of the second issue in the Tofan Singh reference.

67. Power to call for information, etc.— Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act,— (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case.

Note that: (i) Section 67 does not confer any power to record statements on oath; (ii) It does not render the questioning to be a "judicial proceeding"; (iii) It does not contain any clause requiring that the person giving the statement is to be warned about its consequences, and (iv) Section 67 is not complemented by a clause like Section 163 of the Cr.P.C., which prohibits officers from coercing / inducing persons to give statements. 

On my reading of the NDPS Act, this "officer referred to in Section 42" referred to in Section 67, will often be one who is empowered under Section 53 of the NDPS Act, in which case Section 67 might seem rather superfluous as these officers already have the power under Section 161 Cr.P.C.

Or, maybe not. Take a look at Section 53-A of the NDPS Act:

53A. Relevancy of statements under certain circumstances.— 

(1) A statement made and signed by a person before any officer empowered under section 53 for the investigation of offences, during the course of any inquiry or proceedings by such officer, shall be relevant for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains,— 

.... 

(b) when the person who made the statement is examined as a witness in the case before the court and the court is of the opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice. ...

This clause brings about two big changes to the ordinary powers of a police officer to record statements: 

• First, the powers of a police officer do not extend to taking signed statements — this is explicitly barred by Section 162(1) of the Cr.P.C. However, Section 53-A(1) refers to a statement "made and signed" before the officer empowered under Section 53, which clearly lifts that bar, and indirectly tells us that these signed statements will end up being recorded under Section 67 instead. 
• Second, the use of statements recorded under Section 161, Cr.P.C. is severely limited by Section 162, which prohibits statements given to police officers from being admitted in evidence for anything other than contradicting a witness. But Section 53-A(1)(b) throws this out the window, and permits statements made to be treated as substantive evidence if the court deems it necessary "in the interests of justice". 

I'll return to Section 53-A when discussing the issue of whether or not Section 67 can be the source of recording confessions, which is the second issue posed in the Tofan Singh reference (Curiously, the 2013 judgment does not mention Section 53-A anywhere).

Conclusion and Next Post

This post sought to give some context for the reference in Tofan Singh. It showed that the NDPS Act framework is complex, and the ultimate issues before the Bench are very specific to this statutory context. At the same time, the post also flagged certain factual inconsistencies that are material in nature as those findings of fact will determine the application of the legal principles in question. It is to these legal principles that the next two posts will turn. First, the first issue of whether Section 53 officers are "police officers" will be considered, and then we will look at a related issue of whether Section 67 can be the source of confessions. Finally, there will be some concluding critical thoughts.