The pendency of cases in criminal courts across India is nothing short of scandalous: More than 2 crore cases in total as per government data furnished for the year 2020, with the rate of pendency at over 90%. This means that out of every 100 cases in the system, 90 remain pending at the end of the year; and since the next year does not restart at zero, the total number of pending cases never stops increasing.
Since 2015, Special CC No. 599 / 2015 registered against Canara Overseas Ltd. and its Managing Director Pradeep S. Wodeyar, among others, for allegedly committing offences under Sections 409, 420 read with 120-B of the Indian Penal Code 1860 [“IPC”] and under Sections 21, 23 read with 4(1), 4(1)(a) of the Mines and Minerals (Development and Regulation) Act of 1957 [“MMDR Act”] has been part of this statistic of pending criminal cases. It is very likely that it remains part of this statistic for some years hence. Why? Because a year into the proceedings before the trial court, after arguments on the point of charge had begun, the accused persons moved the High Court of Karnataka in a petition under Section 482 of the Criminal Procedure Code 1973 [“Cr.P.C.”]. They claimed that due to a legal error — cognizance taken in a manner contrary to law — the case ought to be quashed. The High Court appears to have ordered a stay on the trial court proceedings in 2017, which remained in effect till November 2020, which is when the High Court dismissed the petitions. The litigants promptly moved the Supreme Court, in a Special Leave Petition [“SLP”] under Article 136 of the Constitution, where that Court also granted a stay in February of 2021. On 29.11.2021 the Supreme Court has delivered its verdict in Pradeep S. Wodeyar v. State of Karnataka [Crl. Appeal 1288 of 2021; “Wodeyar”], dismissing the petitions and paving the way for the trial court to proceed.
I do not mean to pick on any one single case, but Wodeyar is so symptomatic of the various design-flaws in our criminal process that foster repeated occurrence of mind-numbing delays in the disposal of criminal cases — flaws that are inherent in the statutory framework which are made worse by the interpretations courts offer while working within that framework — that it offers a useful entry-point to explain these issues.
Challenging orders up the Judicial Ladder
The idea of a right of appeal is a basic tenet of fairness in any legal system. A court can get things wrong, and the aggrieved person must be allowed to raise this plea before a superior forum. But how far should this “right” extend — what kinds of orders should be open to challenge, and how far up the ladder should a person be allowed to travel? A line-drawing exercise becomes necessary for if we go allow everything to be subject to challenge, all the way to the highest court, it deals a critical blow to securing a sense of finality in cases.
The Indian criminal process under the Cr.P.C. confers a clear right of appeal only against final judgments of conviction or acquittal — a court must hear an appeal against such orders where one is filed. At the same time, the criminal process confers a variety of remedies upon litigants which enables challenges to all sorts of orders or proceedings. What kinds of orders or proceedings? Almost anything short of the final judgment, really. Most common are petitions challenging the very registration of a police case, a judicial order summoning an accused, an order framing charges, and the kind of order that was impugned in Wodeyar, viz. an order taking cognizance. Such orders are, literally, the very opposite of a final judgment and indicate the first stage at which a court is seized of a case (more on that in the subsequent section). These challenges to interlocutory orders can travel all the way up to the Supreme Court, but none confer a right to be heard and a court may dismiss such claims at the outset. These remedies include the approach taken by the litigants in Wodeyar — file a 482 petition before the High Court and then an SLP under Article 136 of the Constitution before the Supreme Court — and include other approaches such as filing revision petitions or writ petitions.
Challenging all sorts of orders all the way up to the Supreme Court does not make sense from a cost-perspective, or a finality perspective. But since most persons embroiled in the system only have limited means, it engenders some unseen balance where only a fistful of cases out of the total number end up being taken up the judicial ladder at interlocutory stages. Because where one can afford to file petitions, the pay-off in the form of securing a relatively quick closure of the case is simply too good to pass up when the alternative is a long-drawn trial, which may be followed by an even-longer appeal.
Challenges in superior courts to interlocutory orders are also the kinds of cases where stay orders become critical, for otherwise the petition itself might be rendered redundant if the trial is allowed to proceed. The Supreme Court admirably took note of the delays caused due to such litigation in Wodeyar (Para 40), both as a general phenomenon and the delays caused in that specific litigation before it. Towards this, it sought to locate challenges to interlocutory orders within the context of Chapter 35 of the Cr.P.C., which speaks of the course of action for courts to adopt when faced with irregularities in proceedings. For petitions which raise the kinds of illegalities and irregularities not mentioned in the specific clauses of Sections 460 to 464, the Court has suggested that such petitions flagging miscellaneous irregularities ought to be considered through the test of “failure of justice” prescribed under Section 465 Cr.P.C. Thus, the Court concludes that “Section 465 would also be applicable to challenges to interlocutory orders such as a cognizance order or summons order on the ground of irregularity of procedure” (Para 41). It then proceeded to examine whether the order in question occasioned a “failure of justice” in the case before it and found that no such failure of justice had been caused (Para 44).
Wodeyar is frankly not a game-changer in this regard, because while courts might not have been using the statutory language, they were already engaging in such an analysis in almost all cases that involve challenges to interlocutory orders by inquiring about the prejudice caused. A good example is the practice of SLP hearings where most of the petitions never cross the first stage of notice being issued because the court is not satisfied about the prejudice aspect. Nevertheless, locating the exercise within the language of the statute is an interesting step in the process and make the whole thing more systematic. Of course, this could only have happened if Wodeyar spent some time explaining how courts ought to engage in this exercise of determining a “failure of justice” beyond merely locating the statutory provisions. The judgment does not suggest any benchmarks that might satisfy this standard except the general point about the petition being delayed. Nor does the Court specify whether this issue must be considered at the outset, like a preliminary issue, or is it part of the overall conspectus of issues which a court must consider.
Compounding Confusion through Judicial Interpretation
If the judgment in Wodeyar took at least one step forward by engaging with systemic delays and hinting at a way to contain this design-flaw, it took two steps back by needlessly confusing a step as basic as cognizance and inevitably assuring us more litigation on this aspect in the future.
I had discussed taking cognizance under Section 190 Cr.P.C. as a step in the criminal process in some detail earlier in the context of another confusing decision of the Supreme Court, S.R. Sukumar (2015). The upshot of this discussion is that the stage of cognizance involves little more than having the court confirm that a document has come to it which discloses commission of an offence — be it a private complaint [190(1)(a)] or a police report [190(1)(b)], or information that the court itself records [190(1)(c)]. The court is required to do practically nothing at this stage besides confirming (1) whether all sanction related issues are clear, and (2) does the complaint / chargesheet contain facts which make out the basic ingredients of an allegation (If the person alleges murder, does the complaint speak of a person dying due to the acts of another — that basic an exercise).
No part of Section 190 discloses a requirement for any application of mind beyond this bare minimum requirement. Despite this, the Supreme Court still ends up reading much more into the stage of taking cognizance all too often. In Sukumar, for instance, the Court went ahead and sought to differentiate the “mere” taking of cognizance from “actual cognizance” — whatever that meant. Now, in Wodeyar, the Court has suggested that in cases instituted on a police report, it is “not obligatory for the [court] to issue a fully reasoned order if it otherwise appears that the [court] has applied his mind to the material.” Implying, thus, that in cases other than those instituted on a police report, the cognizance order must contain fully fleshed out reasons.
Why, then, does the Supreme Court confuse us (and itself) on the point of cognizance? At the heart of this issue lies, what appears to me, a conflation of the stage of taking cognizance and the stage of issuing summons to an accused person to face trial. The former falls under section 190 Cr.P.C., the latter under Section 204 Cr.P.C., and the text of these provisions makes apparent that there is a different legal inquiry underlying both stages. Cognizance, as was mentioned above, is a minimal threshold for the case to cross, but the stage of summoning requires a court to form an opinion whether “sufficient” grounds exist to proceed further in the case and summon a proposed accused.
When dealing with police cases, courts almost always deal with both stages together in one order which contains bare reasons, if any — if a court takes cognizance, it is presumed that the police investigation would have furnished sufficient grounds to proceed further and summon the accused, so courts do exactly that. A similar exercise ends up taking place where complaints are filed by public servants, in respect of which there is no requirement for courts to record pre-summoning evidence before considering whether an accused ought to be summoned. The only situations where trial courts end up clearly delineating the cognizance and summoning stages end up being those cases which are instituted upon private complaints, because the journey from cognizance to the summoning order involves a necessary stop for recording pre-summoning evidence.
Both cognizance and summoning are stages that take place without the accused in the room — it is either the police / prosecutor, or the complainant’s counsel, who are present to assist the court in forming an opinion. Which explains why accused persons often end up challenging these orders before superior courts, and why superior courts insist upon judges to properly apply their mind to the issue at hand. However, this cannot result in superior courts demanding trial courts to do more than the statute itself asks, only to be satisfied about the propriety of proceedings below.
Unfortunately, this is exactly what has happened in Wodeyar. Here, the Petitioner contended that the order taking cognizance was vitiated as it suffered from a non-application of mind by the judge. Since the case was instituted on a police report, the court had done the usual thing of taking cognizance and issuing summons by the same order. This appears to have affected the nature of arguments at both the High Court and the Supreme Court levels as the Petitioner raised a generic plea that the order suffered from non-application of mind [Note: there were also separate grounds assailing the cognizance order claiming it was contrary to the statutory provisions, which I do not discuss here].
While the High Court managed to retain the distinction between the two stages in its reasoning, the Supreme Court lost the plot. Prior precedent which explained the kind of application of judicial mind required for issuing summons — Pepsi Foods, Mehmood Ul Rehman, Sunil Bharti Mittal etc. — has resultingly been imported into the domain of taking cognizance, requiring trial courts to do much more than the letter of the law seems to require. By creating this mess about requiring detailed reasons or not depending on the kind of case, the Court has not only created confusion for trial courts, but also opened avenues for more litigation on preliminary issues. Where on the one hand the Court appeared to close doors for such litigation which inevitably delays the trial process, it has simultaneously opened new doors for curious (and well-heeled) litigants to explore.
Conclusion
Nothing in this post ought to be taken as an aspersion on the litigants in this case, or in any other case where parties challenge orders at a pre-trial stage in the hope of getting the case closed. Filing such challenges before a High Court under Section 482 and then taking them up to the Supreme Court in an SLP, albeit at the cost of often causing serious delays in the process, are legal remedies available to all of us — it is not the litigant’s fault that the costs involved are such that only a select few can end up exercising these options. Which is why I argued elsewhere that pendency in the Indian criminal process is not because of the system malfunctioning due to a lack of resources alone, as some argue, but a feature of its very design.
Take Wodeyar for instance. The case remains stuck at the same stage since 2016 because the accused persons raised a belated plea on a hyper-technical issue. Now, four years after the arguments on charge had been heard by the trial court, the case will head back there. But since the judge who was hearing the case is likely to have been transferred, it will probably take some more months and years for the trial court to conclude arguments on charge. Then that order will be challenged before the High Court or Supreme Court. Maybe, by the time some of the Justices of the Supreme Court who authored the opinion of November 2021 have retired, Special CC No. 599 / 2015 will have reached the stage of judgment before the trial court. And then, after several years (because there is a huge backlog in hearing appeals), the case will reach the Supreme Court again.
In the meanwhile, who knows how many more petitions challenging cognizance orders end up in the Supreme Court, claiming that such orders ought to be set aside for not being “fully reasoned”, when all that such orders are supposed to indicate is that the court is seized of a matter which is disclosing commission of an offence.
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