The Lawlessness of Land Grabbing Laws? - Part I

In 1982, the government of what was then undivided Andhra Pradesh passed the A.P. Land Grabbing (Prohibition) Act to "curb the unlawful activity of grabbing Government land, a local authority, a religious or Charitable Institution or Endowment including Wakf or any other private property". A central means of achieving this was to create a new offence of "land grabbing" and to create "Special Courts" for dealing with land grabbing cases that would finish them within six months. Inspired by the A.P. model, similar Land Grabbing laws have been introduced in the states of Assam (2010), Odisha (2015 ordinance), and Karnataka (2016). In 2011, in a much-politicised incident the Madras government relied on similar ideas for "better" enforcement of existing laws but chose not bring a new legislation into effect.

This two-part series discusses some problems with the Karnataka version of the Land Grabbing Act. The problems are not restricted to issues with the constitutional validity of the law, but cover more ground that touches broader policy issues. Before proceeding further though, a caveat. Surprisingly, it seems that the constitutional validity of these statutes has rarely come up for scrutiny before the state High Courts. Searching for cases, I only came across constitutional challenges to how the Special Court is constituted under the A.P. law. I couldn't find anything from Odisha or Assam. Thus, whatever I argue here is based on an assumption that the issues have not directly come up before a court yet. If they have, please share the judgment! 

What is "Land Grabbing"? How Serious is it?

Land Grabbers [defined under Section 2(e) of the Act] are persons who engage in Land Grabbing, or abets others in doing so. Land here means land belonging to the government, essentially [Section 2(d)]. As defined under Section 2(f), "Land Grabbing" means:

... every activity of grabbing of any land, without lawful entitlement and with a view to illegally taking possession of such land, or enter into or create illegal tenancies or lease and licences agreements, construct unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and license basis for construction, or use and occupation, of unauthorised structures ... 

The definition is not very helpful. It contains a clear "physical conduct" requirement: there must be "grabbing of any land without lawful entitlement". But there must be an associated mental state with this conduct that makes it criminal. Here, this is grabbing land to which you have no title, with a view to (i) take illegal possession, (ii) create illegal tenancies / lease / license deals, (iii) build structures for sale / hire, (iv) hand over the land to someone else to do all of these things. Since you would rarely end up "grabbing" any land which you don't own without wanting to take illegal possession over it, one would think that it isn't too difficult to prove this crime. But more on that later.

This is not the only offence under the statute. Section 5 lists "Penalty for other offences in connection with land grabbing" and criminalises other acts, such as (i) selling grabbed land / advertising about it, (ii) instigating or inciting someone to grab land, (iii) uses grabbed land for any purpose, or knowingly permits it to be used, (iv) enters into deals about constructing on grabbed land, (v) "causes or procures or attempts to procure any person" to do any of the above. Again, one wonders why this was needed given the massive overlap between the two provisions.  

Land Grabbing and all other offences in connection with it, are punishable with at least 1 year and potentially up to 3 years in prison, along with a fine which could go up to Rs. 25,000 [Sections 4, 5]. If that doesn't sound serious enough, note that all offences are cognizable [Section 13]: which means that law enforcement can arrest persons without warrant on suspicion that an offence was committed.  Moreover, since the statute does not provide whether the offence is bailable or not, the Cr.P.C. makes it non-bailable by virtue of it being punishable up to three years in prison. Why would such broad powers be given to states? The definition of "Land Grabber" gives a hint. It is not only talking about persons who take illegal possession. Rather, it focuses on the idea of organised activity geared towards land grabbing. It speaks of "a group of persons or a society" engaging in this, or giving "financial aid" to another for grabbing land or illegally constructing upon it. The definition even speaks of persons "collecting or attempting to collect" money from occupiers of grabbed land by "criminal intimidation", again hinting at organised crime.* It is quite common for organised crime to not be limited to just one activity, which is why allowing police powers of arrest for these things may help them get dangerous persons off the streets. 

That is the logic behind having these powers, but as we know, it is quite common for such powers to be misused. That is a serious concern given how loosely the definition is crafted, and how widely the net is cast. Take a hypothetical: someone tells the police that X is illegally occupying some land. Since illegal occupation would rarely mean that it is not done with a view toward illegal possession, that is enough for police to arrest. Someone needn't even tell the police that actually, as they can do it themselves. The problem goes further: the act penalises a person who "causes or procures or attempts to procure" anyone to engage in land grabbing. This is not a regular law that penalises attempting to commit a crime. It penalises attempting to get someone to attempt the crime - "attempts to procure any person to do any of the above". That theoretically means anyone can be arrested and sent to jail, and practically means that the police have a tool to arrest and jail persons on the pretext of allegedly committing this offence. [See here, and here, for earlier posts that discuss this issue].       

Proving "Land Grabbing" in Court - More Reverse Burdens

Section 11 of the Karnataka Act provides that in any proceedings under the Act, if the government can prima facie prove that the land in question was government owned, then the Special Court shall presume that the person is a Land Grabber, and the burden to prove she is not guilty of the crime lies on the person accused. Using reverse onus clauses - where the state does not have to prove guilt - to make it easy for the government to get convictions is now very common. It is a practice blessed by the Supreme Court, which has held them legal as long as the government proves initial facts to shift the burden on to the accused. Here, the government is asked to prove something: that the land was government owned. Does this justify the shifting of burdens? I am not so sure.       

First, the provision here applies to all proceedings under the Act: which means that at every stage such as bail, initial remand, and the start of the trial, the accused will be contesting innocence. This, at the stage of bail where the accused may not yet have the means to assemble a defence, make the bargain particularly unfair. Second, the state needs to prima facie prove something. But what does it mean to prima facie "prove" anything? The Evidence Act in Section 113-B asks the state to "show" facts, and usually the law asks it to "prove" facts. But prima facie proof suggests a lower standard. If the state already doesn't need to prove guilt, is it legal for the burden to prove initial facts to be even lower than proper proof beyond reasonable doubt? Third, Section 11 asks the government to prima facie prove that the land in question was government owned. Is this enough? Logically, one imagines that the state will also need to prove that the land was being occupied by the accused. Assuming this condition is incorporated into the provision, we come to the remainder of the offence-requirement. The accused would then have to prove that her occupation of the land was not illegal. That seems fine - property documents etc. should be with the accused and this would simply require her to bring them to court. But poor persons often don't have property documents, despite paying good money for being able to live on land which may not even be government land. Eventually then, they are the ones who stand to suffer.      

Summing Up and Next Post 

This post took up two issues with the Karnataka Land Grabbing Act - how it defines the crime of "Land Grabbing" and how it provides for enforcement of the law by the police and by judges. A common theme that emerged was that while the purely legal objections to the statute might be easy to deal with, the real-world problems that the law brings remain unaddressed. Since there is no legal basis to challenge the classification of offences as cognizable and bailable, it means courts cannot act as a check on police powers of arrest and detention. When the legislature confers these powers on the police for the enforcement of vague crimes, which cover not only attempts to commit the crime but attempts to attempt, it invites rather than merely allows misuse. Similarly, reverse burden clauses are now something we can justify as fair when it seems that the accused is not being asked to prove too much. But in imagining this idea of what is "too much", we are assuming a kind of accused person who might be prosecuted: someone who can offer that proof. In context of land grabbing, and many other offences that rely on documentation, the truth is that several people cannot offer those papers. Not because they are violating the law, but because they are poor and vulnerable to oppression by the state machinery which denies them their rights. Does this render a law bad? Unfortunately not.            

The next post will take up issues with the "Special Court" created under the Land Grabbing Act and how it prosecutes and tries offences.

*The definition of Land Grabber is curious. It speaks of collecting rent by "criminal intimidation" as a problem, but does that mean collecting rent without this is not a problem? Going by the definition of Land Grabbing, and associated offences under Section 5, one suspects that the statute is not going to be limited this way.

[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]

Bail Provisions of Section 45 PMLA Struck Down - Some Hits and Misses

Two days ago, a Two Judges' Bench of the Indian Supreme Court decided a batch of writ petitions led by Writ Petition (Crl) No. 67 of 2017 titled Nikesh Tarachand Shah v. Union of India & Anr. [Nikesh Shah] in which it struck down the parts of Section 45 of the Prevention of Money Laundering Act 2002 [PMLA] which concerned the grant of bail. The Court held that these parts violated Articles 14 and 21 of the Constitution - guaranteeing a right to equality, and protection against deprivation of the right to life and personal liberty by a procedure not established by law. The effect of this judgment is that bail petitions earlier subject to a stringent standard under Section 45 PMLA will now be tested on the less taxing standards of Sections 439 and 437 of the Criminal Procedure Code 1973 [Cr.P.C.]. This post has four parts - (i) explaining how money laundering and the PMLA work (which I'd urge you to skim through even if you're a lawyer, because at times the judgment reflects some lack of knowledge on the Court's part), (ii) charting out how the Court did what it did, (iii) showing where the Court goes wrong, and finally (iv) what this judgment might mean for the many other statutes with similar clauses that have not been examined by the Court yet. 

What is the PMLA, What are the Schedules, and What does Section 45 do?

The PMLA is India's answer to its global commitment to tackle money laundering, which (at the cost of oversimplification) means representing assets obtained through illegal acts as untainted. In line with global standards, the PMLA covers all kinds of conduct connected with this process of representing black as white (doing, aiding, abetting, attempting etc), as long as one knowingly did so [Sections 3 and 4]. The PMLA not only makes this is an offence but also triggers connected civil actions of attaching and confiscating the tainted assets themselves [Sections 5-8]. 

Notice how the entire idea of money laundering is linked to some underlying illegal act which results in generating some proceeds - cash or kind. While some countries don't require that illegal act to be a crime, India does, and the PMLA calls it a 'Scheduled Offence' [Section 2(y)] i.e. offences that are part of the Schedules to the PMLA. There are three Schedules - A, B, and C - and Schedule A contains the bulk of offences and Schedule C is basically the same thing applied in a transnational context. Schedule B contains only one offence - Section 132 of the Customs Act 1962 which criminalises making false declarations before customs officers. Importantly, when the underlying offence is one from Schedule B, the PMLA will only apply if the allegations involve a value of at least one crore rupees. There is no such minimum monetary limit for cases with Schedule A offences. It wasn't always like this, and the history behind these Schedules became quite important in Nikesh Shah which requires me to discuss it here.

When the PMLA came into force in 2005, Schedule A only had two paragraphs carrying offences punishable under the Indian Penal Code 1860 [IPC] for waging war against India and nine offences from the Narcotics, Drugs and Psychotropic Substances Act 1985 [NDPS Act]. Schedule B contained the bulk of offences, along with a lower minimum threshold of thirty lakhs for the value of allegations. Then around 2010 India wanted to join the Financial Action Task Force [FATF] as a member. The FATF is a global body created by the G-8 for money laundering and membership is a big deal [India is the only South Asian member state till today]. When the FATF conducted its evaluation of Indian money laundering laws, it heavily criticised the monetary limit for the cases in Schedule B [paragraph 167 of the linked report]. The logic was that the limit would allow money laundering to escape under the radar as people would just deal in smaller tranches over a slightly elongated period of time. So the FATF recommended the limit be abolished [paragraph 175]. The government sought to do this by simply moving all Schedule B offences to Schedule A, which was done through the 2013 Amendment, leaving Schedule B empty for the time being.

In all this moving around offences, nobody thought fit to look at what impact it would have on the rest of the PMLA - specifically, on Section 45 which spoke about bail. Since the money laundering offence was tied to the Scheduled Offence, Section 45(1) looked at that underlying offence and this decided how difficult it would be to get bail. If it was a Schedule A offence with a sentence of more than three years, the law placed two additional conditions for getting bail: (i) the public prosecutor had to be given a chance to oppose bail, and if the prosecutor chose to oppose bail, then (ii) the court had to satisfy itself that the defendant was "not guilty of such offence" and was not likely to commit any offence on bail, and the burden fell on the defendant to satisfy the court. For all other Schedule A offences, and all Schedule B offences, the regular bail clauses from the Cr.P.C. continued to apply. You can see how the 2013 amendments to the Schedules completely changed the look of Section 45 - the exceptional process became the norm. This new normal was under challenge before the Supreme Court in Nikesh Shah.

SC on Section 45 - Violates Articles 14 and 21
Petitioners argued that the constitutional protections of Articles 14 and 21 were violated by Section 45 PMLA, and the Court agreed to both contentions. Rather than address arguments first and then move to the Court's appreciation, I discuss both together for brevity.

Article 14
The Petitioners argued that linking the stringent bail clauses to offences in Schedule A that carried at least a three year maximum sentence was creating several irrational and arbitrary classifications which the Court encapsulated through examples [Paragraphs 24-27, and 35]. The Court found no basis to differentiate the harsh treatment meted out under Section 45 from the following hypothetical cases which according to the Court did not attract Section 45:

• When there is only the PMLA charge as the trial for the Scheduled offence was complete;
• When the PMLA allegation is based on a Schedule B offence;
• When the PMLA allegation is based on a Schedule A offence carrying a maximum sentence below three years;
• When a person is tried for a Part A offence with at least a three year term (versus a joint trial where the same person is tried together with the person with PMLA charges);
• When the person is released on Anticipatory Bail under Section 438 Cr.P.C. for allegations of the Scheduled Offence, before the PMLA charge was brought in. 

The Court was of the view that the seriousness of money laundering cases depended on the amount of money involved [Paragraphs 29-30]. Since Schedule A had no monetary limits, the Court concluded that the likelihood of being granted bail was being significantly affected under Section 45 by factors that had nothing to do with allegations of money laundering [Paragraphs 26-27]. When the Attorney General attempted to defend the scheme by painting the classification as a punishment-based one, the Court easily rebuffed his argument. First, the Court suggested there was no such scheme, but noted that even then, the idea should have something to do with the object of the PMLA. The Court showed how Schedule A had many offences that didn't seem related to money laundering [taking particular objection in Paragraph 34 to offences under the National Biodiversity Act being there], leaving out others that might have more rational connections to money laundering such as counterfeiting currency [Paragraphs 29-30]. The Court also adversely commented on how Schedule A had lumped different NDPS offences together, at the cost of ignoring how the parent Act treated those offences differently [Paragraph 32-33].

The Court noted also that Section 45 of the PMLA was different from other laws that carried similar requirements such as Section 20(8) of the Terrorism and Disruptive Activities (Prevention) Act 1987 [TADA]. The 'such offence' in TADA required a court to be satisfied that the defendant was not guilty of the TADA offence in question before granting bail. But in the PMLA, 'such' offence referred to the Scheduled Offence instead of the PMLA offence. So, the restrictions imposed by Section 45 PMLA were held to have no connection to the objects of the PMLA itself and thus the rational classification, if any, violated Article 14 [Paragraph 28].

Article 21
The Petitioners argued that requiring defendants to satisfy the court that they were not guilty of 'such' offence violated Article 21 by reversing the presumption of innocence and required the defendant to disclose her defence at the outset of the case. In the judgment the Court doesn't really address Article 21 independently - instead the Court suggest that because the provision violates Article 14 it cannot be 'procedure established by law' and therefore violated Article 21. Towards the end of the decision the Court begins discussing the argument though. It labels Section 45 a "drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence." [Paragraph 38]. In the same paragraph it goes on to observe that "before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling state interest for tackling serious crime. Absent any such compelling state interest, the indiscriminate application of section 45 will certainly violate Article 21 of the Constitution. Provisions akin to section 45 have only been upheld on the ground that there is a compelling state interest in tackling crimes of an extremely heinous nature."  

Hits and Misses
There are two questions that were at stake here: (i) did any part of Section 45 offend the Constitution, and if so, (ii) did the Court have no other option but to strike down the provision. Reading the decision, it seems like the Court felt there was so much wrong in the PMLA scheme it decided to throw the kitchen sink at one point rather than explain the issues. The Court answered both affirmatively but never explained to us whether any argument dispositive, or does every case need this sort of broad argumentation to succeed.

Classification and Article 14 first. After reading the legislative history behind the 2013 amendments and the FATF argument, do you think that the Court is right in concluding that higher the monetary allegations, more serious the PMLA case? I'm not so sure. Nor do I think there is much to be gained by placing emphasis (like the Court does) on how Schedule B today has a higher limit than the initial thirty lakhs to suggest that this is in fact the case. It is far more plausible that the one crore limit was placed keeping in mind the underlying offence (false declarations to customs officials in an enquiry) and the concerns of the export industry, which is already subject to Schedule A through Section 135 of the Customs Act 1962 (evading customs duty). Rather than attempt at answering what might be the basis for such a classification for the PMLA (and indirectly giving hints to the government on what might pass muster), the Court would have done well by restricting itself to answering whether the present classification between (i) PMLA allegations based on a type of Schedule A offences versus (ii) all other PMLA cases was intelligible and connected to the objects of the PMLA. As there was enough to show that the original intent (if any) behind Section 45 had not kept apace with the subsequent amendments to the Schedules in 2013, the Court could strike down this classification. But did that require striking down the whole clause?

This brings us to the other part of what did that classification achieve. If it sought to serve as a filter for PMLA cases when it came to administering a strict bail clause, we are left with no filter. Does that mean no PMLA case is serious enough to warrant an application of the clause, or will the clause apply to every PMLA case? Deciding this would need the Court to decide whether clauses such as Section 45 that required a court to find defendants 'not guilty' at the bail stage were constitutional. Rather than directly address this, the Court turned to how the text of Section 45 was flawed, as it referred back to the Scheduled Offence on deciding bail petitions. Since the scheduled classification had been struck down, there was nothing to refer to, and so the clause had to go. While there is little to fault this approach, I remain unconvinced that the Court had no option but to strike down the clause because of the text. The Court has performed far greater feats of legislative reconstruction than being asked to read 'such offence' in Section 45 PMLA as referring to the PMLA allegations rather than only the Scheduled Offence. After all, it stands to reason that a bail provision in the PMLA would want a PMLA special court to consider the PMLA allegations. In fact, many High Court decisions show this is how they were doing it. Heck, this is how the Court itself was doing it in Rohit Tandon at the start of November [Paragraphs 21-23 of the link]. I think this course was adopted as it helped secure two objectives. Not only did this take care of the PMLA clause which this bench of the Court clearly did not like much, it also helped to protect other statutes with similar clauses which the Court held met a 'compelling state interest' test.

This brings me to one last bit about Article 21 and the Eighth Amendment of the U.S. Constitution. The Court cites a previous decision in Rajesh Kumar v. State (NCT) of Delhi [(2011) 13 SCC 706] for the proposition that Article 21 of the Indian Constitution has incorporated the Eighth Amendment and its protection against excessive bail [Paragraphs 13, 19 of Nikesh Shah]. The Court also cites two American decisions [Paragraph 37] on bail for good measure. This is, unfortunately, wrong. Rajesh Kumar cited previous precedent in Sunil Batra to suggest that even though India did not have the Eighth Amendment or the 'Due Process' clause, the consequences were the same to prevent cruel and unusual punishment. Not only did both those decisions not mention the excessive bail clause, the references to the cruel and unusual punishment clause itself are highly contentious as an earlier bench of the Supreme Court had held it couldn't be pressed in India, and that decision continues to be cited. 

Conclusion
The slapdash manner in which the PMLA Schedules were amended in 2013 to appease the FATF had already caused some High Courts to address this issue of Section 45. The closest it came to striking down the clause was the Punjab & Haryana High Court's decision in Gorav Kathuria v. Union of India & Anr. where it held the bail provisions would not apply retrospectively to offences previously in Schedule B [Paragraphs 43-45 of Nikesh Shah]. When the Court declined to hear an appeal against the High Court order in Kathuria I thought that it had indirectly affirmed the validity of Section 45. The judgment in Nikesh Shah comes as a surprise, and marks the first occasion when the Court has looked at any part of the PMLA through a constitutional lens. There are other parts that are equally problematic - the asset forfeiture scheme and the compulsion on witnesses to make truthful declarations, for instance - that litigants may take to the Court being encouraged by this judgment.

As for the future impact of Nikesh Shah on other statutes that carry the same 'drastic provision', the stage is set for some litigation on that front as well. The Supreme Court has only approved of the TADA and the MCOCA provisions in the past, leaving the many others open to scrutiny on this new test of whether the provision furthers a 'compelling state interest'. The Court never answered that for the PMLA context while deciding the petitions in Nikesh Shah. Do you think it might conclude that the PMLA does not meet the test? What about the other statutes? I've re-pasted my list of statutes containing the clauses below after accounting for the ones that are not relevant anymore. Comments, as always, are welcome.

1. Section 437(1), Cr.P.C. (in cases of death and life imprisonment).
2. Section 12AA (inserted in 1981), of the Essential Commodities Act, 1955.
3. States of Punjab and Tripura inserted this provision as Section 439-A to the Cr.P.C. so applicable within their territory, in 1983 and 1993 respectively. This restricted bail to persons accused of certain offences, inter alia Section 121, 124-A IPC.
4. Section 37 (amended in 1989) of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS].
5. Section 7A (inserted in 1994) of the Anti-Hijacking Act, 1982. 
6. Section 6A (inserted in 1994) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982. 
7. Section 8 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002.
8. Section 51A (inserted in 2002) of the Wildlife Protection Act, 1972.
9. Section 43D (inserted in 2008) of the Unlawful Activities Prevention Act, 1967 [UAPA] (nearly identical).
10. Section 36AC (inserted in 2008) of the Drugs and Cosmetics Act, 1940.

Supreme Court Clarifies Default Bail and Section 167 Cr.P.C. - Or Not?

If criminal procedure is an exercise of the law regulating how power (the State) can take away an individual's liberty to compel her to participate in the criminal process (as Foucault suggests), then Section 167 perhaps is the most important provision in the Indian Criminal Procedure Code of 1973 [Cr.P.C.]. In a country rampant for high rates of pre-trial detention, this provision limits how long such detention can (ordinarily) last during an investigation after arrest. The primary limit of 24 hours is honoured only in breach, and from there we move to steep cliffs: limits are placed at sixty days and ninety days depending on the kind of allegations initially levelled. If the police do not complete an investigation within this time by filing a Final Report / Chargesheet, then the accused is entitled to bail. This is popularly called 'default bail'. 

The Questions

Here, the devil is in the detail, and I've fleshed it out below to highlight the interpretation issue that arises:

• Detention can last up to ninety days for offences punishable with death, imprisonment for life, or imprisonment for a term not less than ten years; 
• Detention can last up to sixty days for any other offence.

Now, how do we construe the phrase "imprisonment for a term not less than ten years"? Does it include offences punishable with a term from zero to a maximum of ten years as well, or does it only cover offences with at least a ten year prison term? I have briefly discussed this issue on the Blog, and very recently it was taken up by a three judges bench of the Supreme Court in Rakesh Kumar Paul v. State of Assam [SLP (Crl.) 2009 of 2017, hereafter Rakesh Kumar Paul]. A two judge majority held that only offences punishable with at least a term of ten years imprisonment could lead to detention for up to ninety days. The majority also held that it is not really necessary to file a specific application under Section 167 Cr.P.C. for being released on default bail, oral arguments could cover it too without specific written averments. In fact, the majority suggested that a court was required to assess the circumstances and apprise an accused if she was entitled to default bail and grant bail if an accused could furnish sureties. In this post, we focus on the first of these issues in detail.

Procedural History 

Why was a bench of three judges hearing the issue? Because two different division benches had come to seemingly different conclusions in Rajeev Chaudhary v. State [AIR 2001 SC 2369] and Bhupinder Singh v. Jarnail Singh [(2006) 6 SCC 277]. In Rajeev Chaudhary, it appears that the Court held that offences must have at least a ten year term (I say 'appears' as the procedural history is dodgy and the majority and minority in Rakesh Kumar Paul fence over what the decision actually held; the majority found it prescribed a mandatory minimum while Pant, J. suggested the holding was ambiguous). As against this, in Bhupinder Singh the bench made obiter remarks implying that a mandatory minimum was the incorrect interpretation (Obiter, since the offence there was punishable under Section 304-B IPC with punishments ranging from a mandatory minimum of seven years to life imprisonment, thus placing it squarely within the ninety days column).

In Rakesh Kumar Paul, the allegations were under Section 13(1)(c) of the Prevention of Corruption Act 1988 which carries punishments ranging from a mandatory minimum of four years to a maximum of ten years. The Petitioner had filed a bail application after completing over sixty days in custody, which was dismissed. No Final Report / Chargesheet had been filed yet, but one was filed before expiry of the ninety day period. The High Court also dismissed the plea for bail. No specific averments were initially made in the bail application on 'default bail' but the plea was purportedly raised during oral argument, and addressed by the courts which held that an offence punishable up to ten years imprisonment was part of the ninety days category. Since the police filed a Final Report / Chargesheet within ninety days, there was no merit in the default bail claims.*

Majority v. Minority in Rakesh Kumar Paul

Lokur, J. has written the main majority opinion with which Gupta, J. concurs, while Pant, J. penned a dissent. Their conclusions have been mentioned above, but how did they arrive at these? The majority bases the holding on two prongs: (i) tracing the statutory history of Section 167, and (ii) locating this within a larger argument that personal liberty is prized under the Constitution and the Cr.P.C. The development of Section 167 Cr.P.C. unarguably shows how the provision came in 1973 to remedy a problem caused by the tight limits of a fifteen day detention period under the 1898 Code which were never honoured. The sixty - ninety day distinction came in through subsequent amendments in 1978, and Lokur, J. considered the text of the Amendment Bill (ultimately not fully incorporated) which read "imprisonment for not less than ten years or more" to conclude that the legislative intent was to only have offences with a clear sentence of at least ten years. He then grounds his argument in the idea that the Constitution and Cr.P.C. stress on preserving individual liberty, and a broader reading of Section 167 Cr.P.C. would defeat this larger objective. Both judges suggest that their interpretation honours the idea that only serious offences get the possibility of lengthy detention. 

Before moving on to the minority opinion, a word about the concurrence by Gupta, J. According to him there is no ambiguity in the text of Section 167 Cr.P.C. which bars resorting to external aids to interpret the provision (for some reason the opinion keeps referring to the 1898 Cr.P.C. in this context and how 117 years have passed since the enactment without appreciating that Section 167 never existed in the erstwhile Code). However, he expressed concurrence with the reasoning of Lokur, J. which did not think so. This makes it difficult to understand the place of the concurrence itself.

The minority opinion does not think that the text is clear and again revisits the legislative history to draw legislative intent. But now Pant, J. turns to the speeches of the particular member of Parliament who moved the Amendment Bill in both houses of Parliament. He emphasises a count given by S.D. Patil that specifies to which offences would the ninety days clause apply - which lists out thirty-six offences as punishable under the category of "imprisonment for not less than ten years". Scanning the Indian Penal Code 1860 [IPC], Pant. J. demonstrates how this could only be if we include offences that also have a maximum of ten years imprisonment. Therefore, he disagrees with Lokur, J. that the legislative intent pointed to the opposite conclusion and finds that the plea for default bail ought to be dismissed in the present case.

Evaluating the Decision

The majority decision in Rakesh Kumar Paul is, unfortunately, rather problematic when one goes beyond the rhetoric of individual liberty that it offers. For this comes at the expense of engaging with the legal issue at hand. A broader problem is that while Gupta, J. agrees with the conclusions of Lokur, J., his reasoning on this issue differs materially but this remains unacknowledged and thus makes his concurrence carry a different weight. I highlighted one conflict above. The other comes when the judges compare the views in Rajeev Chaudhary and Bhupinder Singh. Lokur, J. suggests there is a conflict and specifically agrees with the view in Rajeev Chaudhary while Gupta, J. (correctly) finds there was no conflict, as the remarks in Bhupinder Singh were at best obiter. 

The deeper problem with the majority opinion is the lack of intellectual rigour on display.  Any law student will tell you that Pant, J. did not uphold the canon of statutory interpretation which says that the views of a large legislature cannot be attributed to the voice of a single participant in the house. Further, the minority opinion does not offer an explanations on why the words were dropped either. But the mere presence of those speeches in the minority opinion severely lessens the credit of the majority opinion. Not only does it convincingly show there is an ambiguity, but also shows us that Lokur J. did not fully engage with the legislative history before speculating on legislative intent. That doubt is damaging and one then can't stop wondering what else was missed out by the majority.

While I firmly believe that the possibility of pre-trial detention must be narrowly construed, the sad truth is that currently Section 167 Cr.P.C. does not allow this. The majority does not engage with the most important point made by the minority - that no offences in the IPC ever prescribed a minimum of ten years imprisonment. Which begs the question that why would the legislature use a language to describe the kind of offences that our penal code has never seen. Following the majority logic leaves out some serious offences - Attempt to Murder punishable under Section 307 IPC for instance - and therefore betrays the logic of the sixty - ninety day distinction being tied to the gravity of the offence which both majority opinions adopt.

Conclusion

Given that there was no prevailing conflict between the views of the Supreme Court in Rajeev Chaudhary and Bhupinder Singh, we can say that the Court has simply upheld the view in Rajeev Chaudhary by a 2-1 split in the present case. Sadly for us, the majority opinions lack conviction on the issue that was under discussion. Both Lokur, J. and Pant, J. hinted at the language of Section 167 Cr.P.C. being problematic, and it is apparent that the problems will persist without clear legislative intervention. Given how this opinion has simply upheld status quo - for Rajeev Chaudhary had already curbed the powers of investigative agencies on this front, it is unlikely that this will happen. Teleologically, perhaps that is for the best after all.

On another note, the majority opinion does warrant applause for liberalising the regime of default bail by placing a greater onus on the courts. It has long been acknowledged how accused persons continue to languish in custody despite being entitled to default bail, only because of poor legal assistance. While I have often seen trial courts apprising accused person's of their rights, a strict honouring of the Court's observations in Rakesh Kumar Paul can certainly further the cause. 

*The Petitioner had also made an argument trying to construe the maximum period of punishment as seven years using the Lokpal and Lokayuktas Act 2013, which was roundly rejected by all courts hearing the case. 

Reversing the Presumption of Innocence - Part III

Over the last two posts, I described the various provisions restricting grant of bail requiring the court to determine, to some degree, the guilt or innocence of an accused person. Here, such provisions are subjected to a more critical eye. Warning: this is a long post.

Constitutionally Correct

I remain baffled by how Section 437(1) of the Criminal Procedure Code 1973 [Cr.P.C.] was never challenged as violating the Constitution. The Supreme Court used this as a circumstance in Kartar Singh v. State of Punjab [(1994) 3 SCC 569] to justify the validity of Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act 1987 [TADA], where according to the Court a "galaxy of senior lawyers [names omitted] made the most virulent fusillade against the constitutional validity of all the Acts in general and the various provisions of those Acts in particular ..." The Court also gave a moral lesson to Prosecutors hoping for a proper enforcement of the TADA, which seems to not have been always considered.

The Court in Kartar Singh provided little basis for its decision on holding Section 20(8) as constitutionally valid: the existence of Section 437(1) Cr.P.C., along with standard rhetoric on balancing individual liberty with state security is what we get. But it beggars belief that a possibly discriminatory can be considered valid merely because it also exists across across other laws at that time. There was no discussion of what "reasonable grounds" might be, or how the other condition of offences committed on bail would be interpreted, 

Reasonable Grounds with Unreasonable Consequences 

The first of these issues got a better treatment in cases involving Section 37 of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS Act]. The Court consistently held that reasonable grounds mean "substantial probable causes for believing that the accused is not guilty of the offence he is charged with ... [which] in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty." [See e.g., Narcotics Control Bureau v. Dilip Pralhad Namade, (2004) 3 SCC 619; Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798; Union of India v. Rattan Malik, (2009) 2 SCC 624]. But how are these arrived at? For every determination, the court needs some material before it. This is determined by the stage at which a bail application is filed Basically, if I file for bail after filing of the charge-sheet the court would have all the materials relied upon by the police to consider the weight of allegations [as Section 173(5) Cr.P.C. requires these to be supplied to Court]. But if I file for bail immediately after arrest than all the court has is the FIR and an affidavit filed by the Station House Officer for the concerned Police Station.

Aware that a full-dress rehearsal of the trial to decide bail would spell the end of the presumption of innocence, the Court consistently held that such an inquiry is to be avoided. At this stage its not about determining guilt or innocence, but only whether there appears guilt or innocence to deny or grant bail [E.g., Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798]. This foolproof rhetoric has actually had rather oppressive consequences. How? In their refusal to have a mini-trial, courts exclude arguments on validity of materials collected during investigation [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528]. As a result, material which would be entirely inadmissible as evidence becomes useful to deny the grant of bail because the court refuses to consider potential inadmissibility to discard the material. So the prosecution relies upon confessions before police officers and co-accused persons (the former completely barred under Section 25 of the Evidence Act 1872 and the latter carrying little probative value under Section 30 of the same) to successfully get bail applications rejected. So while the police actually have nothing to prove my guilt, its enough to establish reasonable grounds of my guilt.

Look Ma, No Hands

This potential problem of using inadmissible materials arises if a bail application is filed later when materials have been collected. So why not file it earlier? After all, the Court would have lesser material before it to potentially prejudice the case giving bail a better chance right? Well, the court is not the only one with lesser material: the Cr.P.C. does not have any legal requirement for the accused to be given materials before filing of the charge-sheet during a pending investigation. Documents are supplied after taking cognizance as under Section 207 Cr.P.C [209-210 for a Sessions Trial]. Aside from being aware of the grounds for arrest [under Section 50 of the Cr.P.C.], the accused cannot see the materials used by the prosecution to rebut those claims. So those who get bail can say "Look Ma, no hands and I still got bail!"

There is an interesting thread of case law from the Gujarat High Court on this point. In 1976 the High Court considered the issue and accepted the argument that it would be unfair to not provide the accused with copies of materials relied upon by prosecution to oppose bail, and ordered for copies to be supplied [Kottam Raju v. State of Gujarat, (1977) 18 GLR 107]. In 1980, the High Court declined to supply copies noting this would start a mini-trial during a pending investigation thereby crippling it [Narsingh Revaji Ayachi v. State of Gujarat, (1981) 22 GLR 234]. Finally in 1992 the Court observed documents will not be present with the accused in a bail application before filing of the charge-sheet, so in the interests of justice the accused should have the liberty to file a fresh bail application after all materials have been supplied [Jitubhai Shanabhai Bhatt v. State of Gujarat, (19992) 2 GLR 832]. The inconsistency of opinion has meant most bail requests (unless for some urgency) are made after filing of the charge-sheet, which entails 2 months in custody are usually spent by persons accused of non-bailable offences, even for potentially bogus charges. And this is only for the seeking of bail; getting it is another question altogether as we saw above.

Guaranteeing a Completely Clean Future?

This is perhaps the only count where the Supreme Court interpreted the law in a manner protecting the accused. In Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra [(2005) 5 SCC 294] the Court considered bail under Section 21(4) of the Maharashtra Control of Organised Crimes Act 1999 [MCOCA] which in clause (ii) requires the court to have reasonable grounds that an accused is unlikely to commit any offence will on bail. In the last post I discussed how this could not only be potentially invasive of privacy but also allow a technical easy route for rejecting bail applications. The Supreme Court however interpreted this requirement of any offence to mean any offence under that Act, making the arguments on the issue more pertinent but also realistic to address for the accused. 

Conclusion: Reversing the Presumption of Innocence?

Why do I use this phrase for this series of posts? Because I think that if my trial takes place before the court which decided to reject my bail because it harboured reasonable beliefs of my guilt, I'm fighting my case with one hand tied behind my back. This is after having fought my bail with both hands behind my back, or potentially with no hands at all. The suspension of sentence awarded to Mr Salman Khan within a hours has attracted a lot of attention over the seemingly anti-underprivileged bias in the criminal justice system. Given how difficult it is to secure bail in the conditions these posts have discussed, maybe its not so surprising that those accused of serious crimes are often members of the underprivileged class. Of course, individual liberty can and must have limits. But there is much that needs to be done to ensure that the bail-process is at least a balanced fight between the accused and the State, and not an account of David versus Goliath. 

Reversing the Presumption of Innocence: Part II

This series of posts is centered about provisions restricting the possibility of an accused being released on bail which use tests resulting in a reversal of the presumption of innocence. The long and unbroken history of these provisions in the various Codes of Criminal Procedure for India was traced in the last post. Over the last three decades such provisions have found their way into many special statutes, at which we will take a closer look here.

The Standard Text

The standard clause follows the spirit of Section 437(1) of the Cr.P.C., and makes certain additions:

(1) Notwithstanding anything in the Code of Criminal Procedure, 1973, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond unless

              (a) the Public Prosecutor has been given an opportunity to oppose the application for such                  release; and

              (b) where the Public Prosecutor opposes the application, the Court is satisfied that there are               reasonable grounds for believing that he is not guilty of such offence and that he is not likely               to commit any offence while on bail.

(2) The limitations on granting of bail is specified in sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973, or any other law for the time being in force on granting of bail.

After going through the statute book, I found this provision was present in the following statutes:

1. Rule 184 of the erstwhile Defence of India Rules supplementing the Defence of India Act 1971. 
2. Section 12AA (inserted in 1981), of the Essential Commodities Act, 1955.
3. States of Punjab and Tripura inserted this provision as Section 439-A to the Cr.P.C. so applicable within their territory, in 1983 and 1993 respectively. This restricted bail to persons accused of certain offences, inter alia Section 121, 124-A IPC.
4. Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 [TADA].
5. Section 37 (amended in 1989) of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS]
6. Section 7A (inserted in 1994) of the Anti-Hijacking Act, 1982. 
7. Section 6A (inserted in 1994) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982. 
8. Section 21(4) of the Maharashtra Control of Organised Crime Act, 1999.
9. Section 8 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002.
10. Section 45 of the Prevention of Money Laundering Act, 2002.
11. Section 51A (inserted in 2002) of the Wildlife Protection Act, 1972.
12. Section 49(7) of the Prevention of Terrorism Act, 2002 (nearly identical) 
13. Section 43D (inserted in 2008) of the Unlawful Activities Prevention Act, 1967 [UAPA] (nearly identical).
14. Section 36AC (inserted in 2008) of the Drugs and Cosmetics Act, 1940.

There is a trend here: offences potentially canvassing anti-national elements are usually carrying these stringent clauses (this is further supported by the fact that nearly all these statutes are provided on the website of the National Investigative Agency). Further, most of these statutes are the product of India's international obligations through treaties it has signed (e.g: the NDPS Act is the product of the 1961 Single Convention on Narcotic Drugs, 1971 Convention on Psychotropic Substances). In these cases, the State can argue that the balance between individual liberty and state security should be tilted in favour of the latter. This was in fact expressly approved by five judges of the Supreme Court in Kartar Singh v. Union of India [(1994) 3 SCC 569].

The requirement to show "reasonable grounds for believing that he is not guilty of such offence" of Section 437 has been supplemented by a second condition: the accused must be "not likely to commit any offence while on bail". These twin conditions in turn bring unique problems. The first condition, not guilty of the offence, requires the accused to rebut specific allegations for that case. But these allegations might change from the initial FIR to the 173 Report, as often happens in UAPA cases. So would that require/mandate a re-hearing on bail as well? I haven't heard of this being followed, though a literal reading of the text does lead to this conclusion. The second condition in requiring the establishment of a belief that the accused is unlikely to commit any offence on bail can give the prosecution immense leverage to level allegations deeply invasive of one's privacy having no bearing to the present facts. The any offence part makes it extremely easy and legally sustainable for the judge to reject bail applications. It also results in the entrenchment of a criminal stereotype already well-established across the country, and all but erodes the presumption of their innocence.

Conclusion: Getting Bail Becomes Harder

Therefore, we find that these clauses have made getting bail harder than what was the position under Section 437. Further, these limitations have been clarified as notwithstanding anything in the Cr.P.C., i.e. that any benefits under the Cr.P.C. shall not accrue to the Accused. These are expressly stated as being in addition to whatever limitations the Cr.P.C. or other laws have. In the next post, the clauses restricting grant of bail will be considered more critically challenging their validity.

Reversing the Presumption of Innocence: Part I

It was one of those monikers we grew up with: one is innocent until proven guilty at trial. In coffee-table conversations I've found this principle frustrates as much as it reassures. "Why do we have to put those terrorists on trial when they've confessed to have done it" is a common refrain to the point that "Should the state be able to take away anyone's liberty at the drop of a hat?". If an outside observer was to look at the developments in our criminal law over the previous two decades, which one of these arguments do you think she'd find has more sway? 

Professor Ashworth wrote about four "threats" to this presumption in European Law some time ago. A similar study would not be untimely for India. Here, proceeding with that line of though and supplementing the previous post, I consider provisions restricting the grant of bail for particular offences. Part I looks at the provision under the Cr.P.C. and its ancestry. 

The Cr.P.C. and Non-Bailable Offences 

Offences in India are distinguished as being bailable or non-bailable. A person accused of the former has a right to be released on bail, while no such right exists where one is accused of the latter and it becomes a matter of discretion. Section 437 of the Cr.P.C. 1973 explains how this discretion is to be exercised, and 437(1) mandates no person "shall not be admitted to bail, if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life". The court is required to pre-judge the guilt or innocence of an accused at the initial stage itself. At least my counter-intuitive response to this phrase was that it is a reflection of the legislature taking away personal liberty in the name of social good. But I was surprised to find how similar clauses have existed for more than a century in the various Criminal Procedure Codes of India.

Section 156 of the Cr.P.C. 1861 stated that any person accused of a non-bailable offence "shall not be admitted to bail, if there appear reasonable grounds for believing that he has been guilty of the offence imputed to him." This Code was replaced in 1898, and Section 497 therein stated that one accused of a non-bailable offence "shall not be so released if there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused." Section 497 of the 1898 Code was amended in 1923 to restrict the class of cases where bail was to be denied: from all non-bailable cases it was limited to those punishable with "death or transportation for life." The sentence of transportation for life was abolished, resulting in this part being replaced with "imprisonment for life", which is how the 1973 Code inherited the provision.

Conclusions
Context is key here. When the 1861 and 1898 Codes were drafted, the presumption of innocence did not carry any great importance. In fact, Section 212 of the 1861 Code, concerning bail in committal cases, required Magistrates to consider whether the evidence adduced at that stage either strengthened or weakened the "presumption of the guilt" of the accused. Though the presumption of innocence was identified as the golden thread running through English criminal law by the House of Lords Woolmington [1935 AC 462], commentators have shown how this was more rhetoric rather than a statement of fact [Lord Cooke, Turning Points of the Common Law, pp. 28-48].

Between that time and the drafting of our current Code, the presumption of innocence certainly became one of the hallmarks of common law criminal justice systems. But the retention of this clause seems to have ruffled no feathers at any time, considering the lack of any discussion on the point in the Law Commission's 36th and 41st Report [the latter led to the 1973 Cr.P.C.] and no constitutional challenges thereafter. This silent acceptance was used by the Supreme Court in Kartar Singh v. State of Punjab [(1994) 3 SCC 569] to justify the constitutional validity of Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 which carried the identical clause restricting grant of bail [Paragraph 349]. These special statutes carrying identical provisions shall be the focus of Part II of this Post.

Where to Prosecute under the Companies Act 2013?

The Companies Act 2013 is in the process of overhauling the erstwhile Companies Act 1956, with particular provisions of the 2013 Act having been notified already. The piecemeal manner in which the notification of provisions is proceeding has led to an interesting conundrum in the prosecution of offences created under the 2013 Act, which forms the subject of this post. 

Offences by under the Companies Acts

Similar to the 1956 Act, the 2013 Act contains a variety of provisions which impose penal sanctions including imprisonment. The primary difference is that the 2013 Act seems to add more bite to the bark by introducing newer offences and tougher sanctions, at least on paper. The maximum sentence possible for an offence under the 1956 Act was of seven years as provided under Sections 539 [falsification of books] and 629 [tendering false evidence]. Under the 2013 Act, Section 447 allows imprisonment up to ten years for "Fraud", which covers a wide variety of situations, that were not criminal acts/omissions under the previous regime.

The 2013 Act follows the old Act in restricting the manner in which a court may take cognizance of offences by companies or their officers. Section 439(2) of the new Act, identical to Section 621 of the old Act, permits cognizance to be taken only on the complaint of the Registrar of Companies, a Shareholder or a person authorised by the Central Government. There are some changes in the classification of offences however. Under the 1956 Act, all offences were deemed non-cognizable through Section 624. The position has been modified by the 2013 Act, wherein some offences have been expressly made cognizable under Section 212(6). That particular provision also restricts the rights of an accused person to bail. These aside, every other offence is deemed non-cognizable under Section 439(1) of the Act. 

Special Courts

The jurisdiction of courts to try offences was restricted under the 1956 Act. Section 622 barred courts inferior to those of Presidency Magistrates or Magistrates of the First Class from trying any offence under the Act. The 2013 Act diverges from this position and creates "Special Courts" as found under ; Chapter 28. Unlike the old Act which conferred jurisdiction upon Magistrates and those above, "Special Courts" under the 2013 Act can only presided over by a Additional Sessions/Sessions Judge, or someone of higher rank. 

This is an important change, necessitated by the insertion of a ten year imprisonment. According to Section 29 of the Cr.P.C., such a punishment is beyond the jurisdiction of Magistrates and can only be imposed by a Additional Sessions/Sessions Judge. Whereas punishment up to seven years [the maximum for the 1956 Act] can be imposed by Magistrates, making permissible the previous regime of Magisterial level courts. 

However, there is an obvious cost involved here: offences with prison terms up to three years far outnumber those carrying more serious sentences. Perhaps cognizant of this, a Bill has been tabled in Parliament titled the Companies (Amendment) Bill 2014 [passed by Lok Sabha on 17.12.2014]. This seeks to amend Section 435 whereby offences with imprisonment of two years or more would only be tried by the Sessions level courts, while Metropolitan Magistrates or other Judicial Officers having jurisdiction to try offences under any previous company law could try all other offences. Though the execution may be questionable, I believe the intention is correct and would help prevent an overloading of dockets.

The Catch - Where do you go?

Now that we are familiar with the rather complex workings of the criminal aspects of the Companies Act 2013 [no pun intended], I can proceed to the crux of the matter. Today, the Government has by notifications brought into force several offences under the 2013 Act [see, Notification dated 06.06.2014 bringing into force Section 74(3) which carries an offence punishable with up to seven years imprisonment]. It has also brought in force Section 439, which restricts the manner of taking cognizance for offences under the Act [see, Commencement Notification dated 12.09.2013]. But, conspicuously, Section 435 creating Special Courts has not been notified till date. Thus, we find ourselves in the curious position of having rights but no forum for enforcement.

This problem is very real, and is being faced across courts in India when litigants file complaints to prosecute offences under the 2013 Act. What are the possible courses of action open to litigants?

1. Proceed before the Magistrate having local territorial jurisdiction over the offence .

2. Proceed before the Sessions Judge citing that Section 435, though not notified, warrants so.

3. Proceed before the Special Court of Magisterial rank under the 1956 Act.

There are obvious pitfalls under each of these, rendering it highly possible for the Complaint to be dismissed for want of jurisdiction. But surely it cannot be that the Legislature intended for the offence to be non-prosecutable till the notification of Special Courts? It would be a first, if indeed that is the correct interpretation of the situation.

It may be that I have completely missed the bus and wrongly created a problem where none exists. Or, the solution may have emerged without my knowledge. If so, please comment!

Complaints, Chargesheets, and Taking Cognizance

Section 190(1) of the Cr.P.C. 1973 outlines three ways in which a Magistrate may take cognizance of offences: (a) on the basis of a Complaint of facts disclosing an offence, (b) on the basis of a Police Report of such facts, and (c) on information from any other person or his own knowledge, that such an offence has been committed. In some cases however, a Special Act may restrict the manner in which cognizance of offences may be taken by the Magistrate. Consider, for instance, Section 13(3) of the Official Secrets Act, 1923 says: no court shall take cognizance of any offence under this Act except upon complaint made by order of, or under authority from, the appropriate government or some officer duly empowered by the appropriate government in this behalf [emphasis supplied].

While these provisions were anomalous earlier, today with a host of special criminal statutes we find such provisions quite common. It is, therefore, not only interesting but also important to discuss some problems surrounding this area. 

How to Treat Special Complaints 

Ordinarily, one imagines the Complaint as being filed by a private person, who does not have the abundant investigative resources of the State to support him. The Police Report, on the other hand, is the product of these resources at the State's disposal. So where a statute requires an authorised officer to file a complaint, we cannot be blamed for thinking that this is more akin to a Police Report than a Complaint. But these are technical terms: 'Complaint' and 'Police Report' are defined under Section 2(d) and 2(r) of the Code respectively. Therefore the canons of statutory interpretation demand that we interpret the text literally rather than second-guess the meaning behind the text.

How we treat Special Complaints of the kind mentioned in Section 13(3) of the Official Secrets Act is not a mere academic inquiry. There are several consequences unique to cases instituted upon a Complaint and Police Report. For instance:

• Filing of a Police Report under Section 173, Cr.P.C. allows for further investigation under Section 173(8), which is not present for Complaints. Nor can there be supplementary charge-sheets.
• Only in cases instituted upon a Police Report does an Accused have the judicially protected right to supply of documents under Section 207, Cr.P.C.
• The procedure for trial in Warrant Cases instituted upon a Police Report differs from those instituted upon a Complaint.
• The Maharashtra Control of Organised Crimes Act 1999 [MCOCA] punishes 'continuing unlawful activity' which is defined as any activity prohibited by law in respect of which one or more charge-sheets have been filed.

Therefore, the treatment of Special Complaints as falling within the definition of a 'Complaint' or 'Police Report' has potentially significant consequences. Beyond the issues highlighted above, another issue involves taking cognizance. What provision would be invoked while taking cognizance of Special Complaints: Section 190(1)(a) or (b)? Or would Section 190 be invoked at all? 

Judicial Interpretation

The judiciary's treatment of these issues makes my academic excitement feel like dead rubber. With due regard to the canon of literal interpretation, courts have held that a Special Complaint is exactly that, a Complaint. Lets revisit the issues highlighted above before we move to cognizance.

• In S. Nagrajan v. State [Crl. Rev. Petition No. 321/2004, decided on 15.03.2013] the Delhi High Court held that no further investigation akin to Section 173(8) was possible for a Special Complaint under the erstwhile Prevention of Food Adulteration Act, 1954. 
• Similarly, in Ajit Narain Haksar v. State of Karnataka [ILR 2002 Kar 2175], the Karnataka High Court held there could be no supplementary complaints under the Central Excise & Salt Act 1944 akin to supplementary charge-sheets. [Importantly though, the Jharkhand High Court arrived at the opposite conclusion for the Prevention of Money Laundering Act. See, Narendra Mohan Singh v. Directorate of Encforcement, Crl. M.P. No. 2863/13, decided on 22.03.2014]. 
• In State of Maharashtra v. Ajay Jagdish Pande [Crl. Appeal No. 722/12, decided on 25.0.2014], the Bombay High Court held that a Special Complaint for offences under the Environment Protection Act 1988 could not be a 'Charge-sheet' for the definition of 'continuing unlawful activity' under the MCOCA.

Problems with cognizance came in a rather more direct fashion. Courts were provided with a Police Report where the statute specifically provided for cognizance to be taken on a Complaint by an authorised officer. Two problems emerged: (a) would such taking of cognizance be illegal, and (b) would it vitiate proceedings. 

Unsurprisingly, the Delhi High Court in Aniruddha Bahal v. CBI [210 (2014) DLT 292], relying upon the decision of the Supreme Court in Jeewan Kumar Raut v. CBI [AIR 2009 SC 2763], held that cognizance of offences on a Police Report is illegal where the statute expressly mandated it to be on a complaint. The Court was specifically concerned with offences under the Official Secrets Act. Interestingly though, the Court seems to go further and answer point (b) in the affirmative. 

Is this proper? Sections 460 and 461 of the Cr.P.C. detail circumstances which are irregularities and illegalities. Erroneous taking of cognizance under Section 190 is covered by Section 460 clause (d), thus preventing proceedings from being set aside merely on this ground. However, cognizance is not being taken under Section 190 for any of those Special Complaints. It is being taken under the particular provisions of the concerned special statute, and that procedure should override the general procedure in accordance with Section 4(2) of the Cr.P.C.

Conclusion

In 1967, the Law Commission of India in its 37th Report on the Code of Criminal Procedure 1898 [the official cover page has a typo] observed there was confusion regarding the definition of complaints and taking cognizance. It suggested an amendments may be made to Section 190(1)(b) of the Old Code to "cover specifically reports under other sections of the Code or under other laws". Section 190(1)(b) of the Old Code is identical to the current Section, which means the Commission considered including reports under other laws closer to a Police Report than a Complaint. 

A concrete suggestion for an amendment never emerged as the project was abandoned, but this gives some insight into the confusion prevailing in the area. Forty years later we see the Supreme Court come to the opposite conclusion in Jeewan Kumar Raut. Though most decisions indicate the term Complaint' must exclude a 'Police Report', contrary voices do exist and may yet lead to another intervention by the Apex Court. However, what may prove more important is the consequence of a finding that cognizance was illegally taken. The decision in Aniruddha Bahal does not discuss the aspect of Section 460, which leaves it open for the law to head in a different course. Expect more clarity over the course of this year, as that decision gets exposed across different settings.

Arrests, Bail, and the Criminal Procedure Code

A quick run--through basic Indian criminal procedure. The Criminal Procedure Code 1973 [Cr.P.C.] creates two parameters for understanding an offence: (i) whether it is cognizable/non-cognizable, and (ii) whether it is bailable/non-bailable. These are defined in Section 2. Bailable offences are those made bailable [Section 2(a)], cognizable offences are those where police can arrest without warrant [Section 2(c)]. Vice-versa in case of non-cognizable offences [Section 2(l)]. 

The First Schedule to the Cr.P.C. 1973 lays out whether offences are cognizable/non-cognizable and bailable/non-bailable [Found at the fag-end of the statute]. Every offence under the Indian Penal Code 1860 [IPC] is covered in Part A/Part I, whereas "Classification of Offences Against Other Laws" is the subject of Part B/Part II. The classification in Part B/II is obviously overridden where a special statute deems an offence to be either cognizable and/or non-bailable [see, Section 37(1)(a), NDPS Act 1988].

Searching for a Rationale

Now, it should be clear that this classification of offences is quite important. Powers of arrest are severely curtailed in respect of non-cognizable offences, where police require a warrant from the Magistrate. Similarly, the right of an individual to bail is severely limited in non-bailable offences, as can be seen from the stricter standard employed while deciding bail for these cases under Section 437, Cr.P.C. This prompts the question: how does the Legislature decide upon the classification? 

Look again at the Cr.P.C. with this question in mind. Those definitions will now appear particularly unhelpful. In fact,nothing in the Code provides any rationale behind how offences are classified in the manner that they are. The 41st Law Commission Report, which paved the way for the 1973 Code, again does not provide any explanation.  What about cases, you ask: little luck there as well. No Supreme Court decision has provided any logic behind the classification exercise yet. 

Everyone seems to Forget about Part B

I did come across High Court cases, and one may read Subbulakshmi v. State [(1993) 1 MWN (Cri) 268]. The Madras High Court believed the distinction between cognizable and non-cognizable offences was based on gravity of offences. Thus, serious offences like murder [Section 302 IPC] are cognizable, while others like "Making atmosphere noxious to health" [Section 278 IPC] are not. This, however, is squarely contradicted by the 177th Report on Law Relating to Arrests. The Commission spends nearly half a page (!) to give us the logic behind classifications:

• The cognizable/non-cognizable distinction is not based on gravity of the crime or quantum of punishment, but upon the need to arrest the person immediately [Page 23, last paragraph onwards]
• The bailable/non-bailable distinction is by and large based on the "gravity of the offence (which necessarily means the quantum of punishment prescribed thereof)" and the need to keep offenders in jail pending investigation [Page 24].

The Law Commission gave this explanation responding to claims that the classification is bogus [for instance, see, KG Balakrishnan, "Criminal Justice System-Growing Responsibility in Light of Contemporary Challenges" (2010) 7 SCC J-3]. I, for one, remain unconvinced. All the Law Commission achieved was explaining classification of IPC offences under Part A. The same logic cannot extend to Part B, for the very basis for classifying offences into cognizable/non-cognizable under Part B is the quantum of punishment! Have a look:

• Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years are made cognizable and non-bailable;
• Offences punishable with imprisonment for 3 years, and upwards but not more than 7 years are made cognizable and non-bailable;
• Offences punishable with imprisonment for less than 3 years or with fine only are made non-cognizable and bailable.

Does this Matter? Yes, it does

Well, not everybody has forgotten Part B. Legislatures (state and central) have certainly kept in mind that offences punishable with 3 years are cognizable and non-bailable. This has led to a host of laws carrying offences with a maximum term of 3 years imprisonment. For instance, the following are cognizable and non-bailable offences, which means you can be arrested without warrant, and denied bail:

• Making unauthorised constructions, repairs, modifications to your house. Section 43, Maharashtra Regional and Town Planning Act 1966;
• Posting, inter alia, offensive [nobody knows what it means] messages online. Section 66-A Information Technology Act 2000;
• Obstructing the doors of a closing Metro train. Section 67, Delhi Metro (Operation and Maintenance) Act 2002;
• Disturbing a gathering while they sing the national anthem. Section 3, Prevention of Insults to National Honour Act 1971;
• Failing to comply with any provisions of the Environment Protection Act, Rules or Govt. Orders [more than a 100]. Section 15, Environment Protection Act 1986;
• Offences [including unconscious possession of drugs] under the NDPS Act, 1988.

Some of these are undoubtedly cases where intuitively the need for immediate arrest is apparent: e.g. NDPS Act. But, the same cannot be said for them all. Conferring powers of easy arrest also carries the possibility of easy misuse. This was highlighted in context of Section 498-A by the Supreme Court recently in Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273]. It also indicates the token regard for individual liberty held by the Legislature.

Some courts have tried innovative approaches to exclude offences punishable with a maximum of 3 years imprisonment from being cognizable and non-bailable [see, Subhash Chaudhary v. Deepak Jyala, 2005 Cr.L.J. 1034 (Bom HC)]. But that is not the solution. There is an urgent need to either provide some over-arching basis for the classification of offences, or perhaps delete Part B of Schedule I altogether.