BNSS and Pre-Cognizance Right of Hearing for an Accused — A Case of Perplexing 'Reform'

Going by publicity announcements surrounding the BNSS both inside and outside Parliament, one of the main reasons for ditching the 1973 procedural code was because it fostered delays in cases. With the incoming BNSS, the government boldly announced that cases will not take longer than two years to conclude. 

Not many criminal lawyers took that seriously upon reading the BNSS and seeing that it had retained the older model almost entirely. And, when it comes to cases instituted upon private complaints, lawyers had realised that the changes made to the old scheme by Section 223 of the BNSS would decidedly have the opposite effect. 

This post looks at what has been the effect of Section 223 on the ground in the year or so that has gone by since introduction of the BNSS in July 2024. My aim is to show two things here. First, explain the change made by BNSS to the older regime, and how the new scheme goes against the statute's professed reformist logic. Second, show how courts have dealt with the clause and how this engagement (so far) has only complicated the law further and made trials even slower.   

What did the BNSS Change in Private Complaint Cases

Even with introduction of the BNSS, Indian criminal procedure continues to follow a funnelling model for proceeding with a case. There are multiple stages of judicial scrutiny over the same matter, which increase in intensity with each successive stage that a case passes. The stages are: (1) Cognizance --> (2) Summoning --> (3) Charge and --> (4) Trial. In theory, this ensures that only the 'good' cases go ahead for trials, and winnows out the 'bad' cases without wasting more time on them.  

There was never a doubt about hearing the accused at the stages of charge and at trial. There was also no doubt about not hearing either complainant or the accused at the stage of cognizance. Doubts existed with respect to hearing an accused at the stage of summoning in private complaint cases, where the complainant had a clear right of audience. A decade of uncertainty around this issue was clarified by the Supreme Court decisively holding in 2002 that an accused had no right of audience at this stage and could prefer appellate remedies if so desired [see here for a longer discussion]. 

This scheme made some sense. Cognizance entailed no hearing as such and only required judicial scrutiny of the file to determine if something was totally amiss. Summoning came later, where a court would hear the complainant to determine if there were reasonable grounds to summon the proposed accused. Then you had a full-blown hearing at charge with both parties engaging with the court, and finally trial where the accused could even introduce evidence (not permitted earlier).

Now, the BNSS has upended this scheme, with Section 223(1) stating as follows:

A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard

Compare Section 223 with Section 200 of the old code, and you will see that the "provided that" part was not there earlier. 

Why do this? No answers can be found in the reports of the parliamentary committee or in parliament. No reports of the super secretive Criminal Law Reforms Committee have yet been published (maybe when the BNSS is repealed, perhaps) to know if that Committee had sponsored this amendment. If we were to go and assume reasons, then the only probable one is that this enables winnowing out the frivolous cases. This argument may seem ok if the cognizance stage is viewed in isolation, but makes no sense when we look at the system as a whole which provides ample opportunity to wean the bad cases out later. 

The need to ask for a reason behind this change comes only because this is so obviously contradictory to the entire point of making the process move faster. Earlier, cognizance was a non-affair. Now, it will take many more dates of hearing, as an accused will first have to be called to court and then heard as well. The resulting delay is precisely why the Supreme Court has now gone ahead and willy-nilly excluded an entire set of criminal cases relating to dishonour of cheques from this regime [discussed here]. 

A perplexing reform if there ever was one.   

Judicial Engagement with Section 223 and the Eternal Mystery of Cognizance

It is not uncommon to find mountains of paper being spent by thinkers about rather banal, or if not banal then seemingly inconsequential issues framed as life's eternal mysteries. Most people, other than those thinkers, would probably find the exercise a bit of a waste of time. The same could be said about how the idea of taking "cognizance" of an offence continues to occupy so much space in Indian criminal procedure. A lot of the blame for this lies with the Supreme Court which has complicated the issue giving chances for wealthy litigants to contest this non-event in the life of a case all the way up to the apex court, and win! [see here]

The already existing plethora of precedent on the issue can be divided across three issues: (i) when does the right of hearing accrue, (ii) what is the extent of the right, and (iii) in what kind of cases does it apply.

Lets look at each of these areas in turn. The first issue arises because Parliament did not bother to change the active voice ("while taking cognizance of an offence ...") in the phrasing of old Section 200 while inserting this new right of hearing through an addendum. This meant that the old metaphysical quandary of when did the court actually take cognizance remained unresolved in the statute, while giving a right of hearing to an accused before taking cognizance. 

This issue had already led to litigation in the past, creating two streams of case law that were never quite fully resolved. One view was that cognizance can be taken the first time a judge took up the case file, before examining the complainant and other witnesses, upon being satisfied that ingredients of the offence exist. Another view was that cognizance was taken at some stage during examination of the complainant or at its end, but not upon mere receipt of the case file. As you can see, both views entail different consequences for the pre-cognizance right of hearing — in the former, it takes place before the complainant is examined and the court only has the case file to go by, and in the latter it takes place after the witnesses have also been examined giving more material on record.

The two views also have a bearing on the second area identified above: what is the extent of the right of hearing for an accused. Is the accused simply to be asked questions without being given any document? Can the accused be meaningfully heard by a court without having examined the complainant? If the accused is to be heard with supplying documents, then can the accused ask for time to study the same and then make detailed submissions; even go so far as to seek (or supply) copies of additional documents that may be missing in the complaint? Does a court need to pass a detailed order dealing with all the submissions of an accused also at this stage?

All of these issues could have been dealt with if Parliament thought through the new right that it was conferring. Maybe debates in Parliament would have helped. But that ship has sailed, for now at least. This has led to courts answering the above questions, in a surprisingly consistent tone for the most part without dealing with the unresolved issues that their interpretive choices are creating:

• When does the right accrue? Almost all High Courts [Kar HC, Delhi HC, All HC, Ker HC, Gau HC] have so far held that before inviting the accused to be heard, the court should have examined the complainant and other any other witnesses. In doing so, they have clearly gone with the view that cognizance is not taken merely upon receipt of a private complaint case, but have changed the inherent fluidity of that view by fixing the stage of cognizance as necessarily after the examination of witnesses.
• To what extent does the right accrue? Again, High Courts have stressed on the innovation made by the BNSS and reasoned that Parliament could not have conferred a token right of hearing, and that the clause must be interpreted to confer a 'meaningful' right of hearing. This entails sharing papers with the accused and dealing with their objections before taking cognizance [most clearly mentioned by the All HC here]. At the same time, there is no discussion of why a court must pass a lengthy order at this nascent stage when such detailed orders need not be passed when summoning an accused and framing charges.
• As yet, issues of whether an accused can ask for copies of materials seemingly missing in the complaint or show documents seemingly suppressed by the complainant do not appear to have reached High Courts, but they are certainly being litigated at the trial courts. It may be noted that one of these issues was flagged before the Supreme Court (here) but it was not dealt with at the time.

The third area of what cases does this new pre-cognizance right extend to was interesting given the drafting of the clause, but has been made more interesting by developments in the Supreme Court. The BNSS retained the old 1973 code's approach of treating complaints lodged by public servants disclosing commission of crimes differently from complaints by ordinary citizens. While there is a need to examine the ordinary citizen complainant, this requirement is dispensed with if the public servant is filing a complaint as part of their official duty. You would think, then, that the need for any pre-cognizance hearing would also be eschewed for such scenarios, seeing as they are more similar to cases lodged by police than to cases lodged by private complainants.

The Supreme Court when presented this question in context of complaints by the Directorate of Enforcement filed under the Prevention of Money Laundering Act 2002 held otherwise and, surprisingly, without any real contest by the government. This has meant that the entire gamut of cases which are filed on a complaint by public servants — there really are several such statutes — now have an additional step in the trial process, elongated them further. Within this area, the Supreme Court is yet to address the additional issues that had been flagged at the outset by the government such as what happens when a supplementary complaint arraigning more people is filed, and what kind of material can be considered at this stage. The supplementary complaint issue has reached High Courts though, where orders have extended this pre-cognizance right of hearing to such scenarios as well.

Whether the Supreme Court will remain wedded to this approach of extending the general law as found in the BNSS to special laws where cases are instituted on private complaints is not a certainty anymore, though. As mentioned above, the Court recently excluded offences of cheque dishonour from this regime on the logic that these were under a special law which will not attract general law, without really any reasoning. Considering that the exclusion of cheque dishonour cases was more based in pragmatism than legal reasoning, it will not be surprising to see some refinement in the Court's approach if serious speed-bumps are perceived in other areas.

An interesting follow-on issue which the extension of pre-cognizance hearings for cases lodged on complaints by public servants is a constitutional one. If this right of hearing accrues to a case investigated by some law enforcement agencies, then why not all? In other words, why should the same right not be extended to police cases? Surely one cannot say that frivolous or even downright vexatious cases are not filed as a result of investigations by police. So if the idea was to ensure conferring a meaningful opportunity to an accused person to prevent them from being dragged into vexatious litigation, and now the Supreme Court has clarified that it extends to even cases investigated by law enforcement agencies, then do we not have an Article 14 problem on our hands?

Section 223 BNSS has thus ensured that cognizance does not pale into irrelevance as we carry on in the 21st Century but that it gives rise to much more litigation, reopening old questions and creating new ones. Nobody but the lawyers are rejoicing at the prospect.        

Guest Post: Dharam Pal - An Oddity in the Law on Cognizance

[This is a guest post by Aadi Belhe]

The Code of Criminal Procedure, 1973 (‘the Code’) provides for a hierarchy of courts with each kind of court in that hierarchy being empowered to try offences based on their severity (usually). Irrespective of the court which must try an offence, the prerequisite for initiation of judicial proceedings is the taking of cognizance of the alleged offences by a Judicial Magistrate under section 190 of the Code. After taking cognizance and then issuing process under section 204, the Magistrate must commit the case to the local Court of Session through section 209 if he is of the opinion that the case is exclusively triable by such a Court. Section 190 is not the only provision concerned with cognizance, since section 193 lays down that a Court of Session can take cognizance of offences triable by it only after committal happens.

The decision of a Constitution Bench (5 Judges) of the Supreme Court in Dharam Pal v. State of Haryana sought to alter the dynamic of the stage of cognizance in cases involving committal proceedings. This case held that it can be inferred from section 193 that a Magistrate cannot take cognizance when a case is exclusively triable by the Court of Session. My main argument in this piece is that Dharam Pal contorts the meaning of ‘cognizance’ for seemingly instrumental reasons due to which it is at odds with the text of the Code as well as precedent. It also has the effect of rendering the Code unworkable in certain situations. I further propose a solution which remedies this state of affairs without affecting the rest of Dharam Pal’s reasoning. My solution preserves the remainder since I am not carrying out a normative critique of any portion other than that concerned with cognizance.

A Short Summary of Dharam Pal

The appellant had been mentioned in a chargesheet but not as an accused person. Despite this, the Judicial Magistrate who took cognizance on the basis of the chargesheet also issued process against him. The Magistrate had acted on the basis of a grievance articulated by the complainant which he treated as a protest petition. This led to litigation which eventually culminated in a three judge bench of the Supreme Court referring the case to the Constitution Bench. Six questions were framed while referring the case, which also led the Court to consider whether a Court of Session could do the same thing (take cognizance and summon a person not named in the chargesheet) when a case came before it.

The end result of Dharam Pal was that the Supreme Court upheld the powers of Judicial Magistrates and Courts of Session to issue process against non-accused persons. It further laid down that a Magistrate cannot take cognizance whenever committal must occur. The Constitution Bench did not adjudicate upon the instant fact situation but instead sent the matter back to the smaller bench for a decision on merits.

Birthing a proxy rule through paradoxical procedure

The Supreme Court in Dharam Pal had held that a Judicial Magistrate must play a passive role whenever committal is to happen. This passive role was equated with not taking cognizance due to the insistence of the Court on the previously mentioned proposition that cognizance can only be taken once in any given case. According to the Court, only the Court of Session can take cognisance under section 193 in such cases. The position of law was clarified by a later Division Bench case of Balveer Singh v. State of Rajasthan in which it was stated that the ‘passive role’ contemplated by Dharam Pal is equivalent to not issuing process against non-accused persons.

In other words, while Dharam Pal had already equated the ‘passive role’ of the Magistrate and not taking cognizance, Balveer Singh had the effect of equating these two with not issuing process against non-accused persons. To illustrate, a Magistrate would be said to have played a passive role/not taken cognizance when he issues process only against X, Y, and Z because they alone were mentioned as the accused in a chargesheet. Essentially, the logic of these two cases leads to the conclusion that cognizance will be said to have been taken when process is issued against non-accused persons. The absurdity of such a state of affairs is immediately apparent. No small part of this absurdity stems from the blurring together of the act of taking cognizance and that of issuing process. This results in a paradox since it is only after process is issued that it will become clear whether cognizance has been taken even though the Code makes it apparent that process cannot be issued unless cognizance is taken.

It is clear that even this twisted understanding of cognizance does not necessarily lead to the conclusion that it must take place only once during the lifespan of a case. Nothing about this understanding prevents both the Magistrate and the Court of Session from taking cognizance and thereby issuing process against separate sets of non-accused persons. Questioning why the rule against double cognizance is necessary sheds light on why the Supreme Court carried out faulty reasoning in the first place. The distortion of cognizance in Dharam Pal, i.e. the erasure of the line between cognizance properly speaking and issuance of process, does nothing other than connect the concept of cognizance with the specific powers with which Dharam Pal is concerned. This allowed the Supreme Court to ensure that only the Court of Session can exercise such a power in cases involving committal by denying that the Judicial Magistrate can take cognizance in such cases. Thus, the main purpose behind the reasoning in Dharam Pal seems to have been to grant Courts of Session an exclusive power to issue process against non-accused persons in cases triable by them. The rule against double cognizance thus acts as a proxy for the rule that this power is vested only in Courts of Session in cases triable by them.

The counter argument could be made that the distortion and the rule against double cognizance were not brought into being in pursuit of any goal, or in other words, that the importance given to the power of Courts of Session was purely unintentional. This conclusion is supported by the blatant incorrectness of Dharam Pal’s reasoning as well as by the fact that the exclusive nature of the power of Courts of Session was not stated in so many words. If the Court consciously wanted to give an exclusive power, then it presumably would have wanted to base its decision on firmer reasoning and it would also have made fully explicit the point of law that it truly wanted to lay down. I concede that this is entirely plausible and might very well be true. However, this point is not of much importance since the binding value of the implied rule for which the rule against double cognizance acts as proxy is not affected by whether it was intentionally laid down or not. The implied rule of exclusivity is a part of the ratio through the proxy rule since they limit the situations in which the power of Judicial Magistrates, the existence or non-existence of which was central to Dharam Pal, can be exercised.

A reasoned rebuttal of Dharam Pal

Precedent and the text of the Code compellingly show why the peculiar understanding of cognizance in Dharam Pal and the rule against double cognizance respectively are bad in law. Coming first to precedent, the much cited case of R.R. Chari v. State of Uttar Pradesh held that a Magistrate takes cognizance of an offence whenever he applies his mind to the information presented before him for the purpose of initiating further proceedings. A Constitution Bench of the Supreme Court upheld this understanding of cognizance in Sarah Mathew v. Institute of Cardio-Vascular Diseases due to which there is a conflict amongst precedent on this point since Dharam Pal was also decided by a 5 Judge Bench.

It is fairly obvious that R.R. Chari has laid down the correct law since it does not ground section 190 in section 204. Further, it is right also for the reason that Dharam Pal leads to the conclusion that even when no committal can happen, cognizance will be said to have been taken only when process is issued against non-accused persons by the Judicial Magistrate. This is the case since there is no indication in Dharam Pal that it gives a special meaning to ‘cognizance’ in cases where committal has to be made. This means that in a sizeable chunk of cases the taking of cognizance even once will be rendered impossible since taking cognizance would require entangling more persons in the processes of the criminal justice system even though the Magistrate might be of the opinion that no non-accused person needs to be proceeded against.

Moving on to the text of the Code, it is clear that section 209 cannot be triggered before cognizance is taken by the Magistrate since section 190 is in Chapter XIV titled ‘Conditions Requisite for Initiation of Proceedings’ while section 209 is in Chapter XV which is titled ‘Commencement of Proceedings before Magistrates’. Hence, even though a Court of Session will have to take cognizance under section 193 after section 209 is complied with, this cognizance cannot take place unless and until the Judicial Magistrate himself takes cognizance. Thus, the rule against double cognizance is blatantly incorrect.

The Simple Way Out

Before coming to my proposed solution, the nature of the powers which Dharam Pal confers on Magistrates and Courts of Session needs to be understood. The genesis of these powers lies in the Supreme Court’s decision in Raghubans Dubey v. State of Bihar. While Dubey was only concerned with Judicial Magistrates, the power contemplated by it was extended to Courts of Session by Dharam Pal since it upheld the prior decision of Kishun Singh v. State of Bihar. Dubey essentially had the effect of giving a broad interpretation to the term ‘accused’ in section 204 (PDF) of the Code of Criminal Procedure Code, 1898, which is in pari materia with section 204 of the 1973 Code, even though it never referred to that section. However, under the Code no power to issue process equivalent to that under section 204 has been granted to Courts of Session due to which one must reach the conclusion that Dharam Pal has given a non-textual power to such courts.

Finally coming to the solution, the easy method of terminating this imbroglio consists of upholding the R.R. Chari understanding of cognizance while at the same time recognizing the precedent-based nature of the powers with which Dharam Pal is concerned and their concomitant mouldability. This path eliminates the link between cognizance and the powers while still upholding the dominance of the power of Courts of Session over that of Judicial Magistrates. While the Supreme Court used cognizance as a crutch to ensure the precedence to be given to the power of Courts of Session, this solution achieves that goal without involving cognizance by discarding the proxy rule of no double cognizance and the poor understanding of cognizance which accompanied it. The second prong of the solution makes this dominance an independent rule in and of itself.

The first prong of this solution entails recognizing that cognizance can take place twice in a case in which committal must take place due to R.R. Chari. The second prong is to prevent Magistrates from exercising powers under section 204 in the manner contemplated by Dubey when section 209 is to be triggered while not necessitating them to exercise it in such a manner when the latter section is not to be proceeded under. This ensures the dominance of the extra-textual power of the Courts of Session under section 193 while preventing Magistrates from needlessly exercising their broad power under section 204. Most importantly this solution disentangles sections 190 and 204 from each other.

A Harmless Decision – For Now

It is certain that the distortion of cognizance in Dharam Pal has not had an outsized effect on the criminal justice system as is evinced by the fact that Division Benches of the Supreme Court have continued to cite R.R. Chari in cases like Jayant v. State of Madhya Pradesh and Manju Surana v. Sunil Arora. However, this by itself is not sufficient reason for considering Dharam Pal to be a harmless decision. It can provide opportunities to judges and counsel in future cases to carry forth with bad argumentation which might actually have deleterious effects on the justice system. Hence, it is necessary to nip the logic of Dharam Pal in the bud while it has not strongly established itself in the stream of precedent.

The Curious Case of Pradeep Wodeyar: Cognizance, Confusion, and Delays

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.

Guest Post: A Deconstruction of the Bengaluru Crime Branch's Legal Status

(This is a guest post by Rahul Machaiah)

On 18 January, 2021, the Karnataka High Court held that the Central Crime Branch (CCB) of the Bengaluru City Police is not a 'police station' under the Code of Criminal Procedure, 1973 and hence courts cannot take cognizance of the police reports filed by the CCB. This judgment has exposed a long standing blunder of the state government and can have ramifications on a number of pending cases.

In this case (Dr M.G Gopal v. State), the petitioners were accused of cheating, criminal conspiracy and criminal breach of trust. An FIR was filed against them in the jurisdictional police station. Thereafter, the case was transferred to the CCB. The Inspector of the Fraud and Misappropriation Squad investigated the case and filed a police report against the accused. The Magistrate took cognizance of the offences under Section 190(1) (b) of the CrPC. The petitioners filed a revision petition against the order passed by the Magistrate while taking cognizance. One of the contentions of the petitioners was that a police report under Section 173 of the CrPC could be filed only by an officer-in- charge of a police station and since the CCB is not a police station, its Inspector could not file a police report. The petitioners relied on the fact that unlike the Criminal Investigation Department, the CCB had not been declared as a police station by the state government under Section 2(s) of the CrPC. Hence, the petitioners sought the quashing of the cognizance taken on the basis of the CCB's police report.

The State argued that while it is true that the CCB is not a police station, it has powers to file police reports as the investigation was entrusted to it by the senior officers under Section 36 of the CrPC. Section 36 empowers a senior officer to exercise the same powers as that of an officer- in- charge of a police station. The complainant argued that Section 173 empowers the investigating officer to file a police report after completing the investigation and that the investigating officer need not be an officer-in-charge of a police station.

The Court adopted the literal rule of interpretation and concluded that Section 173(2) of the CrPC empowers only an officer- in- charge of a police station to forward a police report to the Magistrate. Therefore, when the CCB had not been declared as a police station under Section 2(s) of the CrPC, it could not file police reports under Section 173. The literal rule was of interpretation was applied to Section 36 as well and the Court held that Section 36 had no application to an Inspector of the CCB as he was not superior in rank to an officer- in- charge of a police station. Hence, the Court set aside the impugned order of the Magistrate.

It is pertinent to note that in November, 2020 the Karnataka High Court had held that while the CCB is not a police station and cannot register FIRs, it has powers to investigate cases transferred to it by the Commissioner of Police. The Court did not express any opinion on the power to file a police report at the end of the investigation. The judgment in Dr M.G Gopal v. State is silent on whether the CCB can investigate cases despite not being a police station. Thus, the CCB's power to investigate cases has been upheld in one case while its power to file police reports has been extinguished in another. This is a peculiar position of law as despite being the investigating agency in a case, the CCB cannot file a police report before the Magistrate.

The State Government has clearly erred by not designating the CCB as a police station ever since it was established in 1971. The failure to designate it as a police station has forced the CCB to function in an intricate manner of questionable legality. For instance, the CCB often conducts raids despite not having the power to register FIRs. If illegal activities are detected during a raid, the CCB then files an FIR in the jurisdictional police station. Sometimes, the same case is then transferred to the CCB for investigation. Such rigmaroles could have been avoided if the State Government had designated the CCB as a police station like it did with the Criminal Investigation Department and the Anti Corruption Bureau.

The CCB investigates a lot of cases every year and if the accused in these cases begin seeking quashing of the Magistrates' orders taking cognizance, it would lead to glitches in the criminal justice system. If the police reports filed by the CCB are not valid, those cases will have to be reinvestigated by police stations or an agency that has been designated as a police station. The other option is for the CCB to submit the reports to the officers in charge of the police stations where the cases were originally registered who shall then forward them to the courts under Section 173 of the CrPC. However, this can raise questions of propriety as the submission of the police report is the culmination of the investigation and it would be absurd for an officer not involved in the investigation to file the police report. In case an investigating agency like the CCB wants to conduct further investigation under Section 173(8) after discovering new facts, it would have to depend on the officer-in- charge of the police station to approach the court. This can be cumbersome and impractical as despite being well acquainted with the case, the CCB will have to depend on an officer who was not in any way involved with the investigation.

Every district in Karnataka has a Crime Branch that functions on the lines of the CCB. As most of these units have not been designated as police stations, the problems discussed earlier could plague the other crime branches as well. The state government must designate crime branches as police stations at the earliest. The state government's error will prove to be costly if criminals get cases quashed by pointing out that the crime branches have no authority to file police reports under Section 173 of the CrPC.

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.

Birla v. Adventz: A Snapshot of the Supreme Court and Criminal Law & Procedure

I happened to be in the Supreme Court in February when arguments were being addressed by parties in Criminal Appeal No. 875 of 2019, Birla Corporation Ltd. v. Adventz Investments & Holdings Ltd. & Ors. (Connected with Crl. Appeal Nos. 876 of 2019 and 877 of 2019). It was a great experience as some of the country’s most famous lawyers were addressing the Court, Not on a nuanced issue of constitutional law, but on whether a High Court had erred in quashing summons issued on a criminal complaint. Remarkably, the Supreme Court concluded hearings in just a few dates, and also passed a judgment — not an interim order — a few months thereafter. 

The Facts 

Who was before the Court, and what was at stake? Both parties in the connected matters were rival factions of the M.P. Birla family, running several business and part of the eponymous “Birla” industrial house in India. For this post, I’ll focus on the lead appeal — Birla v. Adventz, as mentioned above. Here, the rival factions had been fighting with each other for some time before different courts / tribunals. In one such proceeding (an oppression and mismanagement suit), Adventz filed a representation with documents that Birla Corp. believed it had kept under lock and key (metaphorically speaking) by them. The only way that Adventz could have gotten the papers, they believed, was by stealing them. 

A complaint was filed, alleging theft from the offices of Birla Corp., claiming that some persons had entered the office premises and taken the documents. While some of the documents had been copied and kept back, some originals were still in the possession of Adventz. It was also alleged that this was a well-planned affair, involving higher-ups in Adventz, as well as those in-charge for security in the building where the Birla office was located. The complaint by Birla Corp. was filed against many accused persons, including Kumar Mangalam Birla, and alleged offences under Sections 379 (Theft), 403 (Misappropriation), 411 (Handling Stolen Property) read with 120-B (Conspiracy) of the Indian Penal Code [IPC]. 

A Magistrate issued summons to all accused persons in 2010, but this order was partly set aside by the High Court in 2015 — mainly because it thought that the documents copied and returned could not have been the “movable property”, which is the subject of the theft offence in the IPC. Both sides had a grievance against the High Court order: The Appellants argued that the summons should not be set aside at all, while the Respondents argued that it should have been set aside in full. These grievances were taken to the Supreme Court, where the Respondents ended up winning. The next parts discuss the legal issues on which the fate of the petitions turned.

Summoning Accused Persons — Illegalities versus Irregularities 

Summoning an accused person in any case is a nascent stage in the proceedings. In challenging a summoning order and filing appeals on such preliminary issues, the underlying proceedings naturally suffer delays, which is why courts are often livid at parties for running to appellate courts challenging criminal proceedings at their inception. This is more so, because the Criminal Procedure Code 1973 [Cr.P.C.] contains inbuilt remedies allowing for courts to end cases before they reach a trial: (i) A court can refuse to take cognizance of a case finding no offence is spelled out, (ii) refuse to summon persons finding allegations are not made out prima facie, and (iii) discharge the accused persons finding that the allegations are groundless.

To ensure that immense time is not spent upon judging the veracity of proceedings right at the outset, even before hearing the accused, courts operate upon a logic of incremental scrutiny. Each successive stage of the proceedings permits the court to look deeper into the facts. Thus, while deciding whether to take cognizance of a case or not, the court is literally expected to see whether the allegations make out an offence. At the stage of summoning, we move beyond merely looking at what the allegations are to also test their soundness to determine whether they make sense. The minimal scrutiny at these stages makes sense, for till now the accused is absent from proceedings. Permitting the court to go too deep into the facts creates possibilities of prejudice against the accused even before a word might be spoken by her in court. Once the accused does appear — at the stage of charge — the scope for testing the matters is naturally greater. But there are still some limits, as courts refuse to look beyond the prosecution case and thus don't consider the defence version of the facts. That, is reserved for trial.     

In cases filed on private complaints such as Birla-Adventz, as against cases instituted after police investigations, the scope for ending cases before trial is even broader. This is because unlike cases instituted by the police involving a thorough investigation (in theory) that gives allegations an air of genuineness, private complaints are instituted by parties who are naturally biased. The scope for frivolous cases is higher, and so courts actively engage in deciding (i) whether or not to summon persons, and (ii) whether to discharge those persons who have been summoned. In fact, the scope for discharging persons is notably broader than cases instituted by the police. Here, not only does the complainant have to lead evidence to convince a court that charges should be framed, the Cr.P.C. empowers a court to end the case even before such evidence can be concluded, if it thinks that the case is baseless.

Therefore, since the Cr.P.C. is operating on a logic of incremental scrutiny at the successive stages of a proceeding, then it is only appropriate that litigants should be discouraged from jumping the gun and running to an appellate court. But this perspective is met by a powerful rebuke from accused persons stemming from a perception that they are being prosecuted unjustly. Given how court cases are often a painful slog across India, if, as an accused person, I am convinced that the case against me is baseless, why  should I suffer court proceedings for even a single minute? This sense of "perceived injustice" is a common occurrence in almost all accused / defendants and leads to several thousands of petitions being filed each year which challenge criminal cases at their inception. In several hundred of these, like Birla-Adventz, appellate courts do end up being persuaded by this perceived injustice argument, and agree to end the criminal case at the inception itself.

If you think that courts have some great method figured out by which they can cherry-pick the really bad cases where they must necessarily intervene, from the average ones where regular procedure can run its course, you are horribly mistaken. The test to decide when trial courts should not have proceeded further with a case are extremely vague and end up inviting the judge to resort to an "I know it when I see it" approach. The same naturally goes for the appellate courts. In this situation, then, it frequently happens that pre-trial orders on cognizance / summoning aren't thrown out because they're horribly wrong orders, but because appellate courts can, and often do, ignore the incremental logic that the Cr.P.C. is built upon. Basically, while the statute tells the trial court to conduct a limited scrutiny of the facts at the stage of summoning, appellate courts go ahead and review this order by testing facts as if the court was hearing arguments on charge. In a situation like this, our two forums are now dealing apples and oranges.

I am not saying that the appellate court actively starts to overstep its brief. Rather, I am saying that tests with fuzzy lines encourage ignorance of the incremental logic; either by allowing courts to conduct a deeper scrutiny without actually saying so, or with different courts unknowingly ending up  testing facts to different levels because nobody knows how much scrutiny is enough. The fact that in an appellate challenge, the accused is present and making submissions, might actually be contributing to a subconscious bias encouraging greater scrutiny.  

Birla-Adventz is a case where this problem—of balancing delays with perceived injustice—is on full display. The delay was manifest: a 2010 order was challenged in the High Court which passed a judgment in 2015, during which time the trial did not progress, and then that High Court order was challenged in the Supreme Court which took another four years to decide. Thus, for nine years, the underlying complaint case remained in suspended animation. In the Supreme Court, the focus of arguments on behalf of the Respondents — who wanted the summons to go completely — was that the magistrate had not scrutinised the allegations sufficiently enough, and a thorough scrutiny showed that the allegations are baseless. In effect, they were asking that the Court use a magnifying glass to view the case at a stage when the law only allowed to look at it with the naked eye. Or, to bring it in context of the Cr.P.C., they were asking for arguments on charge at the stage of summoning itself.  

Pause for a second here. A case in which the legal system had invested almost a decade of time and public money is ultimately thrown out because two people (the Supreme Court) are convinced that in issuing summons, the magistrate did not do his job properly, and they disagree with two other people (the magistrate and the High Court Judge) who did think that (to different extents) the magistrate did do his job properly. And during all this time, all that is guiding decision-making at all these three levels of the legal system is a test that calls upon judges to intervene when they know it is a good or bad case. I am all for procedural rights, but frankly, this is a cruel joke. The setting does not resemble the rule of Law but resembles the very rule by authority that a legal system is designed to replace.

Are we doomed to forever remain in this land of hopeless arbitrariness where the Birlas of the world can hire the right lawyers and convince courts of their perceived injustice to end trials, while many other cases with equally serious kinds of injustice, are allowed to continue to trial? Of course not. There are many solutions that one can think of — and I have argued in favour of some elsewhere — but one solution exists within the Cr.P.C in Chapter 35 which discusses "Irregular Proceedings". Sections 460 to 464 explain the kinds of issues which can, and cannot, lead to termination of proceedings. And on top of this, there is Section 465 Cr.P.C., which says that no order by a competent court can be reversed unless the party challenging it can show that it occasioned a "failure of justice". Though this is also a vague notion, but at least it makes everyone aware that there must be something beyond a pure technical flaw that must subsist to throw out a case. Repeated use of this provision will also end up giving courts the chance to give "failure of justice" more definite contours as well. 

The Issue of Theft — Was it Better Left Alone?

In Birla-Adventz, there was really no reason whatsoever for the Supreme Court to say anything further after it had decided to set aside the summoning order because it found the magistrate had not inquired into the case properly. Yet, true to form, the Court went on to the other issue — whether or not documents copied and returned could be the subject of theft. Reading the passages beyond page forty-six of the judgment, one thinks it would have been best had the Court left this alone.

The Court gave an unequivocal ruling on the most obvious of the issues — that documents can be the subject of theft. But then, it floundered on the question of whether there was theft in this case. The offence, as defined under Section 378 IPC, requires very little in terms of actual conduct: A person must move some movable property without consent of the person in whose possession the property is. But this movement must be in order to take it, with an intent to dispossess that person dishonestly. "Dishonestly" is a technical term in Indian criminal law. It is defined in the IPC as conduct that either causes wrongful loss to someone, or wrongful gain to someone [Section 24 IPC].  

If a person takes my papers without my consent, and let us assume that there is no doubt over my right over the papers and the absence of my consent, then that naturally results in causing wrongful loss to me. The same conclusion makes sense in the facts of Birla-Adventz. But the Court did not reach this conclusion, because it found that the ultimate purpose of this taking of papers was to use them for defence in a litigation. In confusing the dishonest intention that guides a person's conduct with the larger motive for which that conduct was performed, the Court made an elementary error of confusing motive with intention. Remember, Jean Valjean stole the bread to feed his sister's starving children, and yet he was branded 24601, all because motive does not replace intent.     

Fortunately, this is obiter, and should not be relied upon in subsequent decisions. But given how the most irrelevant of utterances from up-high in New Delhi end up being used authoritatively in courts below, I really worry about the kinds of problems this little excursion into the law of theft causes on the ground. 

Conclusion

Birla-Adventz offers a snapshot view of many of the problems that affect Supreme Court litigation, especially on matters of Indian criminal law and procedure. It reminds us how the Court can get the most basic things wrong—conflating motive with intention in this case. But more importantly, the judgment focuses attention on the broad standards installed in criminal procedure to regulate judicial discretion at various stages. The vast space for argument afforded by the broad standards in criminal procedure, does not end up being filled up by legal principles that can be applied consistently across the board, but by hollow words that allow judges to do as they please by clothing it with sufficient legalese.

To put it bluntly, the vagueness of the standards often ends up getting concretely defined across class-lines, with the propertied, moneyed, politically correct persons getting a different kind of justice from minorities, persons without means, or persons who are politically, incorrect. The former class ends up getting summoning orders set aside to avoid trials and go home peacefully, while poor Muslims / anti-national intellectuals stay in jail while being accused of crimes that almost always end up in acquittals at trial. And in all of these cases, it is the people who are the victims in this entire scheme, as taxpayers bear the costs brought about by lengthy pre-trial delays and trials in cases that should have been thrown out much before.

Having better standards to regulate judicial discretion, and better remedies to decide what happens if there are errors, is therefore another critical component to consider while thinking about how to make our criminal justice system work better for the future.

The Lawlessness of Land Grabbing Laws? - Part II

The previous post started a discussion on issues with the Karnataka Land Grabbing Act (based on an earlier 1982 Andhra Pradesh statute). It discussed how the Karnataka statute created a crime of “Land Grabbing” and argued that the definition was criminally vague, and its classification of this offence as cognizable and non-bailable invited abuse by law enforcement agencies who could arrest and detain persons without warrants. It flagged the use of a reverse onus clause in the statute as another problem, suggesting it was potentially unlawful. Unfortunately, it is uncommon for such arguments to find favour before a court. In this post, I turn my attention to the kinds of technical arguments that might resonate louder. Like the previous post, the framework for discussion is the Karnataka Land Grabbing (Prohibition) Act, which is being challenged before the Karnataka High Court.

     
The Special "Land Grabbing" Court: Judge, Jury, and Executioner 
The primary body responsible for enforcement of the Land Grabbing Act is a "Special Court" created under the statute [Section 7]. Although it is called a "Court", it shares many features with the various statutory tribunals which exist in India today. Its members are both former judges and members of the revenue services appointed for fixed terms by the Government [A three-year tenure in this case]. All pending cases, of both a civil and criminal nature, relating to issues under the Land Grabbing Act stand transferred to this Special Court for areas in which it is created [Section 20], and this body of persons then decides how the cases shall proceed [Section 9(4)]. It must try to finish any case within six months of it being instituted [Section 9(6)].

Only once we move beyond the Special Court taking up pending cases do we encounter a striking set of procedures that have been installed. In Land Grabbing laws, a Special Court has been empowered to act as judge, jury, and executioner: it has the power to start a case on its own, conduct the trial, and also initiate any other legal action against persons it concludes are violating the Land Grabbing Act, whom it can then send to prison as well [Section 9(1)]. The power conferred on the Special Court to initiate cases is limited, technically: for taking cognizance it can "consider the location, or extent or value of the land ... or of the substantial nature of the evil involved or in the interest of justice required or any other relevant matter." Considering these highlighted terms are broad enough to mean anything, the purported limits are pointless.

I label these procedures striking because of history. The combination of executive and judicial powers in one office was often noted as a hallmark of the oppressive legal process in colonial India, often campaigned against by leaders of India's nationalist struggle. This system meant that the same officer could prosecute persons and then condemn them, naturally resulting in this power being used to selectively persecute those raising their voice against the Crown. Separating executive and judicial functions was a big part of the "transformative" agenda that the nationalist leaders sought to introduce with the Indian Constitution, becoming part of the Directive Principles as Article 50. Alarmingly, the state governments have chosen to revisit the dark days of India's colonial past, seemingly oblivious to this critical history. The problem of obvious persecution that can arise by empowering the same authority to file criminal cases and judge them is worsened by the fact that the Karnataka statute presumes guilt, as was discussed in the last post.

The sense of doom is capped when we look at what happens after the Special Court gets done with trial and consider the sentencing and appeals process. Recall that the Karnataka Act provides for mandatory minimum prison terms. This statutory harshness is combined with an amazing permission on the Court to order eviction with force if necessary, where it finds that land grabbing was done forcefully [Section 9(5)(c)]. What can a person aggrieved with decisions of a Special Court do about her grievance? Worryingly little. All decisions of the Special Court are final and not subject to appeal [Section 9(3)], and so the only possible legal remedy is by way of writ petitions. In this regard, the Karnataka law is even harsher then the Andhra Pradesh statute on which it is modelled upon, as the latter creates a two-tier system allowing for appeals.

An Unfairly, Arbitrarily, and Unconstitutionally Harsher Process? 

Directive Principles are not enough grounds for rendering any law unconstitutional, but looking at Article 50 one does get to know that this combination of powers is a harsh process that is not usually prescribed for conducting any cases. Other features which make the procedure under the Act a harsh one were discussed previously. The question, then, is whether these deviations from the standard set of rules is constitutional. For this, the state must show exactly what makes the land grabbing problem so bad that it justifies re-introducing colonial legal principles that were removed after some serious bloodshed. Could anything really be that bad for the state to revert to the colonial system? If the state cannot satisfy this burden it possibly renders the statute contrary to both Article 14 (protecting against unfair and arbitrary discrimination) and Article 21 (protecting against unfair and arbitrary deprivation of the right to life).   

I suspect it is going to be difficult to justify the problem as being so bad that the government needs (i) the power to arrest without warrant and detain persons pending trial, (ii) to presume guilt, and conclude this by a truncated trial process (iii) to have mandatory minimum sentences, (iv) to have all of these powers bundled up together in one body whose decisions are not subject to appeal. This task is potentially made even more difficult if we consider the fact that the many state laws concerned with land grabbing coexist with a Federal law on a similar subject: the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 [Public Premises Act]. This allows for the removal of persons occupying lands owned by the Indian Government. Like the state laws, the Public Premises Act also creates offences and designates them as cognizable. But this is where the similarities end, for unlike the state laws, the Public Premises Act does not allow for arrests without complaints by specified public servants based on the kind of property concerned [Section 11-A]. The Public Premises Act only criminalises illegal occupation of land and does not criminalise illegal construction etc. [Section 11]. Moreover, this is a crime which it punishes by possible jail-time of up to six months, (repeat offence being punishable up to a year) and possible fine of up to five thousand Rupees. It gets worse. The Public Premises Act does not begin with a criminal court deciding the fact of illegal occupation / construction. That issue is determined in hearings before an Estate Officer, who issues a show cause notice to the concerned individuals. If, after this process, the Estate Officer concludes that occupation was illegal, this leads to an Order of Eviction. This need not call for immediate eviction, and allows for giving up to fifteen days for clearing out of the land [Sections 4-5]. Finally, unlike state law which does not allow any appeal against the orders of a Special Court, all orders made by Estate Officers can be appealed [Section 9].

Conclusion: The New Normals
There are more possible grounds on which one could challenge the Karnataka statute, but I thought the Special Court presented the most obvious source of legal trouble and so focused on it here. With the litigation in the Karnataka High Court pending, one hopes that the issues receive a proper hearing. This is important not only from a "legal" perspective. The problems that have been flagged in these two posts are not mere legal issues: they are windows into seeing how government in India is willing to create oppressive legal regimes to force policy agendas, and has been doing so for some time. This eagerness to achieve results is slowly eroding whatever supposed transformations India's Constitution sought to bring. It is the responsibility of the people of India to stop this trend through the political process. But this arduous task will continue to verge on the impossible if the the courts, custodians of the constitutional agenda, turn a blind eye and let status quo persist. 

[Disclaimer: This post was written with inputs from Ms. Nayanatara B.G., a practising advocate who is part of the legal team challenging the legality of the Karnataka Land Grabbing (Prohibition) Act before the High Court of Karnataka, at Bengaluru]