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

(This is a guest post by Jaiyesh Bhoosreddy)

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

The Asthana Judgment and the Puzzle of Section 17-A, PC Act

A few weeks ago, a Single Judge Bench of the Delhi High Court dismissed the petitions filed by Mr. Rakesh Asthana and others, seeking to quash the criminal investigations initiated against them by registration of a First Information Report [FIR] under provisions of the Indian Penal Code 1860 [IPC] and the Prevention of Corruption Act 1988 [PC Act] [See, Devender Kumar v. CBI, WP (Crl.) 3247 of 2018, decided on 11.01.2019]. The allegations, briefly, were that the concerned officers were extorting the complainant into paying them huge sums of money to close investigations being run by the CBI. It took the complainant almost a year after the first alleged incident of extortion to register a complaint with the CBI, which then lodged an FIR against the concerned CBI officers. 

The Section 17-A Issue

The High Court judgment dismissing the petitions discusses several arguments, but the focal point of attack for the CBI officers was a lack of sanction under the new Section 17-A of the PC Act, that was inserted in 2018. This Blog has discussed Section 17-A in depth earlier, and for convenience the text of the provision is copied below (the judgment copies the incorrect provision, amazingly):

(1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval [relevant authorities mentioned] 

... 

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person: 

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month. [Emphasis supplied]

Briefly, the point to be noted is that Section 17-A applies to investigations. This is different from the existing provisions in Indian law that require police to obtain sanction before prosecuting public servants.

The High Court's View on Section 17-A
In dismissing the petitions, the High Court naturally held that there was no need for prior sanction to register the FIR. How did it come this conclusion? The analysis is distilled in Paragraph 36 onwards, and I have shortened them to two broad points:

• One, Section 17-A is only designed to protect bona fide decisions. If the act is "ex-facie criminal or constitutes an offence" prior approval is unnecessary. The alleged acts — extortion and threatening persons — cannot be in "discharge of official functions or duties of the public servant" and so no sanction is needed. 
• Section 17-A is not attracted as this case involves "no recommendation or decision on record by a public servant in the discharge of his official functions" [Emphasis mine].

There is other rhetoric as well, on the lines of speedy investigations being in the best interests of all and that the law does not defer to personalities, but these are the broad legal reasons for the High Court's view. The first point is an old one and sourced from the existing law on sanction to prosecute, where the Supreme Court has restricted sought to eliminate any need for sanction where acts are per se a crime, such as entering into a conspiracy. The second point, though, is new, and an ingenious take on the text of Section 17-A PC Act. While the section mentions nothing about decisions "on record", the Court has introduced that to exclude this case from the need for sanction.

A Critique of the High Court View

The thrust of the Delhi High Court decision is to interpret Section 17-A as a safeguard for the good officer. In the words of the Court, the purpose of sanction "can be read to be only to provide protection to officers who discharge their official functions and / or duties with diligence, fairly, in an unbiased manner and to the best of their ability and judgment, without any motive for their personal advantage or favour." 

This approach has held the judiciary in good stead in cases involving sanction to prosecute officers for several decades, but is not without faults. The most natural one being that this involves placing the cart before the horse: the judiciary ends up judging whether the act was bona fide or not at the outset, whereas that job is for the sanctioning authority. 

This logical problem is greatly accentuated in the case of Section 17-A of the PC Act, which triggers at the stage of investigation itself. After all, this is the first step in the case, and it is impossible for the allegations to be concrete as the FIR is not the outcome of a thorough investigation. Moreover, the language of Section 17-A is very loose — it seeks to not only protect the decision, but also acts that are relatable to it. 

In focusing on a bona fide decision, is the judgment not giving a simple way out of Section 17-A sanction by telling us that complaints should be framed so as to avoid any mention of official decisions? It is impossible to apply the bona fide decision test with any sense of objectivity. If we keep going down this road, what Section 17-A will be reduced to is the judiciary vetting every FIR, in addition to the vetting by the executive branch that the provision originally contemplated.

This then brings me to the second point, of requiring decisions on be "on record" for Section 17-A to apply. As ingenious as the solution may be, the fact is that these words are not there in Section 17-A and thus amount to the court re-writing the statute. This re-writing is usually impermissible unless the law has a gap or a clear and obvious error. Both seem to not apply here, which make this ground a rather weak one.

Conclusion: The Puzzle of Section 17-A 

The Delhi High Court's decision in Devender Kumar offers one of the few judicial engagements of Section 17-A currently available and deserves to be discussed widely. At its heart, the Delhi High Court is driven by the idea that Section 17-A is driven to protect bona fide decisions in the same way as the existing law did. But in extending the protection of sanction from prosecution to investigation, it becomes very difficult for courts to actually figure out when decisions are good or bad. This makes it equally difficult to accept the High Court's view of the purpose behind Section 17-A. Rather, one would argue that the purpose is exactly to confer a blanket protection to public servants, except if they are caught red-handed. This is perhaps why the expedited sanction of three months is provided for as well. This blanket view will also take away the need for courts to review each case to decide if sanction is needed or not. It will be fascinating to see how different courts perceive the issue going forward, and also to see how many courts engage with the other ground of Devender Kumar of only applying Section 17-A to recorded decisions. 

India Needs to Rethink how we Prosecute Crime

In December 2017, the special court appointed to hear the 2-G Spectrum cases delivered a verdict - each of the defendants was acquitted. Not because of some arcane technicality, but because the court examined the evidence, and at the end of a nearly 1600 page long decision said that where the world was being asked to see a huge scandal, there was none. Little has been said about the verdicts: I doubt many people except criminal lawyers are ever going to actually finish 1600 pages, and then, the entire episode seems like it happened so long ago making it not very newsworthy. In the few days immediately after the verdict though some websites were carrying excerpts out of the decision which contained a stinging rebuke to the manner in which the prosecution was conducted (I am referring to paragraphs 1810-1812 for those interested). The court lamented the disjointed stand put up by those in the government's corner; the Special Public Prosecutor appointed by the Supreme Court, the Senior Public Prosecutor who normally works in court, and the CBI Inspector who had handled the case.

This raises an important question, albeit indirectly: how do the prosecutors and investigators work together in the Indian criminal justice system and whether this is the best way to run things? Speaking to those outside the court system, I found it interesting that not many people knew how things worked to begin with, which gave this post some purpose.

Prosecutors and investigators do not normally work together. Investigations are usually entirely in the hands of the police and once a chargesheet is filed in court, the prosecutor comes in the picture and functions as the voice of the government's case. The police takes a backseat and moves on to the next case while the prosecutor takes charge, and the investigating police officer comes whenever possible to give help. Who are these prosecutors? They have been described as a' limb of the judicial process' and are appointed by government either from a cadre of officers (like most of Indian bureaucracies) or in consultation with the local judiciary, with different states having their own rules for selection etc. Most of this procedure came in with the 2006 amendments to the Cr.P.C. Since the average lifespan of most criminal cases is beyond two years, it is rare for prosecutors to continue with the case from start to finish because administrative transfers happen much more frequently. For instance, while I am personally unaware of the 2-G scam cases, I do know that the prosecutor changed in the ongoing Commonwealth Games cases. This means they have relatively little skin in the game. If we are thinking about comparative examples then Indian prosecutors would seem much closer to prosecutors in civil law systems as against those in common law countries. And extremely far from American prosecutors: to call them apples and oranges would be understating the differences.

Was this strict separation between police and prosecutor always the case? No. In fact, at the time of independence, prosecutors fell under the control of the police rather than the local government or judiciary. While I am unaware of qualitative contributions made by prosecutors during investigations, it is likely that there was still greater synergy in how cases were investigated and prosecuted. But the problems seem to have outweighed the benefits. The Law Commission since the 14th Report onwards is considered to have consistently argued that the police and prosecutor should be separate, and the current legal regime reflects how the Law Commission's ideas have been accepted by successive governments (I say considered, because there is some variance between what the 14th Report says and what the 197th Report thinks it says). Has this helped the Indian criminal process? I would argue that it hasn't and, in fact, is bad for the system. Time and again we get high-profile examples like the 2-G scam which show us that if the police had a keener eye for what might be evidence in a case then the outcome might have been different. Or if the prosecutor knew the facts then she could have presented them better. But we don't need high-profile examples like the 2-G scam to tell us that the system is messed up: the data is right there. Since the 1990s, the police have been filing cases far more regularly than the system can handle them. This reflects that the incentives of police do not include what happens to cases once they reach court. Should that be so? Not at all. Enough studies have shown that if persons know their cases will languish in courts for years, the deterrent effect of sending anyone to prison takes a bit hit. So, one of the key goals of having criminal prosecutions gets defeated.

Indian politicians bemoan low conviction rates (hovering around 50% for IPC offences), and cases like the Arushi murder trial help whipping up sentiment against the supposedly primitive ways of the police. But as the numbers show, blame should also be apportioned to how cases are prosecuted in courts. Prosecutors in the district courts often function on extremely meagre resources, having no office but only a space reserved inside the courtroom they are appointed to serve, and ordinarily handle a complex docket that has upwards of thirty matters, consisting of bail hearings, arguments for arraignments, recording evidence, and final arguments on guilt or innocence. They are often not paid on time as well. The previous lines are describing New Delhi, the capital, so one can only imagine the situation in non-metro cities. Where prosecutors are able to compete effectively in cases where clients cannot afford to put up a good case, the mismatch in cases like the 2-G scam becomes painful to watch. While those defendants may win, there are still casualties in the system, because then we find judges try and make up the handicap by diluting the presumption of innocence and ask defendants to do more than they need to for establishing reasonable doubt. Or they want more from the defence lawyers simply because they get used to the low standards of contribution from prosecutors because of the systemic problems I described. Whatever be the case, the process suffers.

For years India has been gaining infamy for a tediously slow judicial system. If anything, data suggests that things won't change by simply having more judges and more courts as we might be led to believe. This is a complex problem, and has many parts that need to be addressed. Reforming how we prosecute crime needs to become one of these parts, and urgently.

(This post was amended on January 28, 2018 to correct references to the 14th Report of the LCI)

Coercive Investigations - New Limits?

This Blog has been on its annual vacation hiatus, and in that time precious little seems to have been going on in the realm of criminal law and evidence in India. One proposed change that was floated in this time was the Fugitive Economic Offenders Bill 2017. The Finance Ministry released a draft for comments in May and it is likely that some version of the Bill will be presented for consideration in the upcoming session of the Indian parliament. If passed, the law would empower authorities to seize and confiscate the properties of persons involved in financial crimes of large value (this is pegged in the Draft Bill at 100 Crore Rupees or above). 

This forfeiture of properties will trigger if one does not appear before investigative authorities within a specified time period after warrants / summons have been issued seeking her cooperation. So, effectively, it authorises an additional method of coercing the persons who will potentially become 'Accused' to cooperate with investigations. This post covers some ground on exploring the limits of this strategy. Like most issues having a policy element, I am afraid the contours of the post and the argument will remain hazy, and request the reader to bear with this constraint.

Criminal Law, Coercion, and the Accused

Historically, it was not unnatural for criminal justice to follow a policy of "punish now, prove later". Confessions carried an unrivalled evidentiary quality, and also signified spiritual repentance, and thus it was quite regular to subject the Accused to physical pain to this end. Foucault does not discuss coercion by forfeiture of property in  Discipline and Punish, but considering the historical analysis by Professor Levy in License to Steal, it seems forfeiture through Deodands was not used for this aim.

The 19th Century reformation of penal systems across Europe resulted in redrawing the ideas of the acceptable limits of coercion that persons could be subjected to in the criminal process. In large measure, this was because from the Accused became a subject and participant in the process from merely being the object upon which responsibility for an incident was fastened. Physical pain did not magically disappear, of course, but it became possible to question the validity of evidence secured through these means since an Accused also had rights and some legal representation (although it would take more time for an Accused to be allowed to depose as a witness). 

Through the 19th Century, then, we find different jurisdictions draw several limits at the involvement of an Accused person based on the idea of the Accused as a willing participant in the process (but, as Foucault suggests, the wrongfulness of using pain to prove guilt was not eliminated but regulated through the codification exercises). History then lends us fresh perspective for reading the criminal procedure and evidence codes of today. Think of the Accused as being at the heart of a process, as an individual with full-bodied rights in society. The criminal process then regulates how those rights are chipped off to serve the interests of law enforcement. Perusing the Indian codes, one basic conclusion would seem that the law does not wish to support the logic that lets punishment precede guilt. Indeed, the codes make it prohibitive to force the Accused to prove anything beyond un-contestable evidence of a comparable nature such as bodily samples. 

I argue that this shift in focus, from the Accused being an object to a subject and participant affirming the legality of the criminal process, is what explains the law continuing to invest maximum coercive power for ensuring the presence of an Accused. While the law can pass judgment on fugitives and find them guilty, the absence of a subject naturally places the legitimacy of the process under doubt. It denies society the chance to express opprobrium and subject an individual to sanction, which remains (theoretically at least) the most important feature of the criminal process. Ensuring that an accused is present, therefore, is of paramount importance. This is why the law authorises pre-trial detention in such cases, a measure of the highest severity reserved for those found guilty at the end of trial. Which is why it also authorises forfeiture of property, which is what we move to next.

The Fugitive Economic Offenders Bill - A Step Too Far?

All of what I have argued above supports the logic behind the draft Fugitive Economic Offenders Bill 2017 that was circulated. The current system in the Criminal Procedure Code 1973 ups the ante against persons wilfully avoiding the course of law by anointing them 'Proclaimed Offenders' and attaching their property [Sections 82, 83 Cr.P.C.]. Property serves as a substitute for the person, and the inability to deal in property is sought to coerce fugitives from participating in the criminal process. Unfortunately, the Proclaimed Offender process is far too time-consuming to be of any material benefit, where proclamations tend to take at least a year and then there is the added difficulty of enforcing the attachment order. Therefore, a Bill seeking to hasten this process for ensuring the presence of persons would certainly have rule of law benefits.

But at what cost? This is where the cracks appear in the Government proposals. The Draft Bill does not stop at attaching properties - i.e. preventing persons from dealing with them till they appear. It authorises confiscation - not appearing means your property can and will be sold - which will happen at the end of six weeks. And confiscation not only of properties that one allegedly acquired from fraudulent activities, but any property located in India. Can the Government utilise the rule of law logic to justify these drastic means? There are no simple answers, of course. Especially given what we are told about the role of certain individuals and companies in the current banking crisis that has gripped the country. My position is that this Bill is, nonetheless, beyond the acceptable limits of coercion in criminal investigations. The link drawn between the allegations and nature of properties seized and confiscated certainly suggests a harking back to "punish now, prove later" regime that had been condemned. Remember that this is the investigation stage - the judge has little basis to second-guess what the police represent as their case and nor are judges expected to second-guess too much at this stage. Moreover, placing such importance on the Accused during investigations seems to ignore the movement of law in the direction of decreasing this importance for proving guilt. After all, even if a person was to be apprehended using this process, the law clothes her with enough protection to remain silent throughout custody placing the value addition to the government case at nearly nothing.

Conclusions

It is not that there are no alternatives. The Government could perhaps initiate civil in rem actions the properties themselves and then forfeit them, a common (and controversial) practice in the US. It could also, perhaps, speed up the trial itself and then forfeit the assets if it secures a conviction. Or it could do nothing and resort to the very broad (and hyper-active) PMLA regime which could cover most of these situations already. Each of these alternatives would, in fact, be more effective than the current proposal which would achieve little more than good publicity and public catharsis at seeing the big-bad affluent person being in the clutches of law. 

The Law Commission of India Report on Bail - Some Concerns

The Law Commission of India [Commission] has released its 268th Report titled "Amendments to the Criminal Procedure Code, 1973 - Provisions Relating to Bail". The Report has been in the pipeline for over a year and has provided a draft Criminal Law (Amendment) Bill 2017 focusing on making changes to the provisions on arrest and bail throughout the Criminal Procedure Code, 1973 [Cr.P.C.]. However, the minutes of meetings and consultations between the contributors are not available. Chapter Eleven contains recommendations covering thirteen broad areas. I briefly summarise these below:

1. Arrest: Amend Section 50 Cr.P.C. to require police officers inform arrested persons of the reasons for arrest in a language she understands.

2. Statutory Bail and Remand: Courts should not authorise remand to custody routinely and examine the case diary [Section 172 Cr.P.C.] thoroughly. Judges must not accept blanket statements that remand is necessary as "accused may be able to give further information". They must enforce the rule that Supplementary Chargesheets [Section 173(8) Cr.P.C.] are filed only to add information subsequently available, to prevent delays. Specific suggestions are made in respect of Sections 167 and 309 Cr.P.C. [the two provisions authorising remand as per the Commission, which is, in fact, incorrect as it ignores Section 209 Cr.P.C.]. For Section 309, amendments are suggested to require judges ascribing reasons for denying bail during trial. Section 167 is sought to be amended for excluding the period an accused spends outside the actual custody of the police from calculations.

3. Conditions for Bail: Bail conditions must consider the socio-economic position of the person and must not be unduly onerous. Courts are encouraged to look beyond financial considerations to enforce appearance. The Report says "bail must be granted subject to the least restrictive conditions to ensure the appearance of the person accused of an offence and the safety of the community", and emphasises that pre-trial detention is exceptional.

4. Modifying Classifications of Bailable and Non-Bailable Offences: Recommendations that there should be correlation between the term of imprisonment and classification of offence [see here for a discussion on the Blog about this issue].

5. Anticipatory Bail: Recommends the proviso to Section 438 Cr.P.C. be retained [contrary to Report No. 203 of the Commission]. Suggests a more careful approach towards granting anticipatory bail, and that it must be made available for a limited period of time, with every order of grant or rejection being accompanied by reasons.

6. Bail in Economic Offences: Economic offences are "crimes which imperil the nation's security and governance" and a stricter approach is recommended while deciding the issue of custody here. The Report says "all forms of economic offences which include tax evasion, customs offences or bank fraud" should be dealt with strictly and amendments are suggested to make bail harder.

7. Special Laws: The Commission suggests that courts must prevent release of persons on bail in special laws on 'technicalities' - with the NDPS and terrorism related offences highlighted. 

8. Modification of Sections 436 and 436-A Cr.P.C.: Recommends amendments to unambiguously reflect that bail is a matter of right which must be communicated to arrested persons. A fresh scheme is suggested for Section 436-A to decide release of persons suffering lengthy pre-trial detention.

9. Centralised Database and Electronic Tagging: Considers the database necessary to confirm criminal antecedents but posits caution about the introduction of Electronically Monitored Bail. 

10. Public Prosecutor and Victims: Victims must be given an opportunity of being heard at the stage of bail itself and be informed when release on bail is imminent. 'Treatment of Victims' should be a principle governing bail decisions, and a 'Victim Impact Assessment Report' may be called for where offences are of a particularly grave of heinous nature. The Commission also recommends adopting the check-list model of the UK Crown Prosecution Service.

11. Risk Assessment: Risk-assessment is a technique to help determine the least intrusive method of policing and investigating offences, maintaining a balance between individual liberty and and community safety. Principles governing these decisions are suggested by the Commission.

12. Exceptions: Absolute restrictions on grant of bail are uncalled for, suggesting grant of bail where grave circumstances exist - for instance, the arrested person suffering from life-threatening disease for which custodial treatment is impossible.

13. Prison Infrastructure: Recommendation to overhaul the "crumbling prison infrastructure and system". One suggestion is to release the under-trials that currently crowd these prisons, subject, of course, to a proper evaluation of relevant factors.

Comments

The Report is a curious creature reflecting a myriad set of concerns, and ultimately does little more than scratch the surface of an extremely problematic area in the Indian criminal process. I make two sets of comments, then; first addressing the Report and what it says, moving on to all that it misses. 

The Report and Amendment Bill

The dissonance between recommendations in Chapter Eleven of the Report and the draft Amendment Bill annexed is striking. A paragraph is spent recommending amendments to Section 309 Cr.P.C. and yet no provisions reflect this in the annexed Bill. The recommended amendments to Section 50 Cr.P.C. do not find a mention anywhere, nor do the suggestions about allowing a victim to contest grant of bail and incorporating a requirement for 'Victim Impact Assessment' Reports. The Bill suggests heightened scrutiny for granting bail in 'economic offences' without ever explaining the term. It would seem as if the Bill was never discussed between the members and consultants. Having access to the minutes of the Commission would have helped ascertain this better.

Airbrushing Issues

The recommendations do not reflect an eye on how issues of arrest and custody are being decided in the district courts, which are the sites of these battles. For instance, recommending 'reasons' of arrest be communicated under Section 50 Cr.P.C. doesn't tell us how that happens. Does it entail handing over a copy of the FIR? Must a formal application be filed for securing these reasons? [In Delhi at least, I have seen applications being required for supplying a copy of the FIR under Section 50 Cr.P.C.]. In situations of arrest and detention, the balance must tilt in favour of bright line rules over vague standards which can be clearly enforced without debate, and the Commission does not follow this principle with any consistency. 

Similarly, when it comes to statutory bail and Section 167 Cr.P.C., the Commission tells us about the problem of detaining undertrials and yet the only amendment is towards strengthening the rigours of custody. Having noted the lack of quality legal assistance [or any legal assistance], the Commission does not touch upon the problems caused by requiring detained persons file an application to secure statutory bail. Considering the increased scrutiny the Commission demands of courts, this would have been an obvious method to help enforce compliance with the provision. Instead, the focus remains on monetary requirements and other conditions.

Finally, a word on the 'economic offences' ghost that continues to haunt the present government. The suggestions are in line with the consistent rhetoric that tells us that 'economic offences' are akin to the plague in terms of their ability to harness devastation for the security of the Indian republic. While that rhetoric helps hammer propaganda, it does not work with the law, especially when it comes to depriving persons of their liberty. 'Economic Offences' is a horribly vague term, spanning potentially the entire gamut of offences having anything to do with a wrongful deprivation of property. Surely trespass on house property doesn't threaten our borders the same way financing terrorism does? 

Missing the Forest?

The Report not only misses small, technical issues, that are currently affecting the process of bail, but it also misses huge problem areas that one would consider a body like the Commission to be uniquely able to address. One technical issue was discussed in great detail on this blog before through a series of posts - that of reversing burdens during bail hearings (see here, for the first post in this series). This is a problem endemic to 'Special Laws', where all the Report has to offer is a rebuke to courts for releasing persons on technicalities. Similarly, no mention is made about the issue of an accused having a right to access materials upon which a remand request is made before courts. while the CBI continues to deny even copies of applications seeking a remand to custody. Another technical issue is that of remands to custody between stages of completed investigations and taking cognizance - where the latter is contingent on grant of sanction for instance. With the continuous din of criticism on delays in securing prosecutorial sanction for public servants, and the general opprobrium that the government projects towards corruption, one would have thought this issue merited some debate.

The big issue which I think the Commission fails to discuss was how pre-trial detention is actually seen as punishment in a system where eventual convictions are secured only after enormous delays. Vrinda Bhandari had written about this once (see her paper here). Her comments about pre-trial detention being punitive are quite accurate and one can visit district courts anywhere for a while to experience it. Prosecutors press for custody arguing retributive logic rather than the possibility of a person being a flight-risk. Victims cite their plight as reasons for denying bail. Judges encourage detention to be used as a bargaining chip to force an accused into plea-bargaining or extra-judicial agreements for quashing prosecutions. These are serious issues, and depending on where you stand are either huge problems or ingenious solutions that the criminal process has developed to address the burgeoning backlog. Yet, lamentably, there is not a whisper of this anywhere in the Report.

Conclusions - No Reform in Sight?

News coverage for the Report has hardly been forensic till now, but displays a degree of optimism. In the true spirit of this blog, I conclude this optimism is definitely misplaced. It would be misleading to label this Report as batting for 'reform'. It is, frankly, conservative, and only shifts to the front foot while facing run-of-the-mill deliveries. It would be unfortunate if the annexed Amendment Bill is tabled in the upcoming session of parliament without changes. It would be a tragedy if it becomes part of the statute books in its current form. 

A Heretic's Guide to Section 154 CrPC and Registration of FIR (Part II)

A while back, this blog begun a discussion on Section 154 Criminal Procedure Code 1973 [Cr.P.C.], the provision considered as the basis for perhaps the First Information Report [FIR]. The previous post had covered important history and ran through the previous incarnations of the procedural code. This exercise laid bare the various little tweaks that eventually resulted in the current Section 154 Cr.P.C. We left the post with one pointed observation: till the 1882 Code, the relevant provisions merely spoke of every information or complaint given to the police. From 1882 onwards, though, the statute now referred to situations where the public gave information relating to the commission of a cognizable offence. The issue, then, was this: who decided whether the information provided to the police relates to a cognizable offence?

Revisiting Lalita Kumari 

This question lay at the heart of the reference made to a Constitution Bench of the Supreme Court in Lalita Kumari v. State of Uttar Pradesh [(2014) 2 SCC 1]. The Court was called on to decide whether it was mandatory for the police to register an FIR in each and every case. If Section 154 Cr.P.C. privileged the viewpoint of the police, then discretion was inbuilt into the provision to allow police to not register cases where it thought information did not relate to commission of a cognizable offence even where the complaint stated otherwise. But, if the viewpoint of the informant was seen as driving Section 154, then every complaint stating a cognizable offence is committed must result in an FIR.

Before this, an overwhelming majority of decisions had held no discretion ought to be present with the police, barring some very particular cases. For instance, Jacob Mathew [(2005) 6 SCC 1] held  an FIR ought not to be immediately registered on a complaint alleging medical negligence against doctors. At the same time, the Supreme Court was not ignorant of how one's liberty could potentially be curtailed if an FIR was registered naming her. This possibility of abuse had led various states (led by Maharashtra) to argue for a discretionary model. The fallacy of the argument was that possibility of improper enforcement does not make the law bad, and it was not surprising to see the Supreme Court reaffirm the line of authority which held an FIR had to be registered. 

This meant the Court thought the perspective of a complainant / informant is what guides the phrase "information relating to the commission of a cognizable offence" found in Section 154 Cr.P.C. Before concluding, though, the Court gave a set of 'conclusions / directions' [In Paragraph 120 of the SCC version]. These allowed for the police to conduct a 'preliminary inquiry' in cases where "the information received does not disclose a cognizable offence". This preliminary inquiry can last for 21 days [the initial time-limit of 7 days was changed in March 2015] and if the officer concludes no cognizable offence is made out then the informant must be notified. The court indicated that "as to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case" but went ahead and specified five areas as illustrations where an inquiry may be conducted: (i) matrimonial cases, (ii) commercial offences, (iii) medical negligence cases, (iv) corruption cases, (v) cases with abnormal delays on reporting (over 3 months). 

Effectively, the Court bought the abuse argument and undid all the previous 119 paragraphs telling us that registration of an FIR is mandatory and how immediate registration brings various benefits. Not only this, but as subsequent practice across courts would reveal, the case has perversely given birth to an argument that preliminary inquiry must be conducted in the cases that find specific mention in the concluding paragraph. So, not only did the Supreme Court permit 21 day delays on the registration of an FIR, it also compounded delays by giving rise to petitions challenging the registration of FIRs where no inquiry was done. On a more theoretical level, we see how the Court never really answered the reference. In fact, the concluding paragraph leaves the basic question in limbo. If anything, it tells us that at the end of the day, it is the police whose word decides whether or not information is relating to commission of a cognizable offence in Section 154 Cr.P.C.

A Heretic's Guide to Section 154 Cr.P.C.

Since this part of the post offers proposals that are never going to see the light of day, we can call it my purely academic pursuit and proceed further. Reading Sections 154, 155 and 157 together, I argue that Section 154 was never meant to deal with something like the FIR as it exists today across most police rules. In this reading, I am buttressed by history and the evolution of these provisions over the various re-drafts of the code. The FIR is a historical oddity, for which the correct statutory basis, if any, is Section 157.

Take a moment and go back to the 1861 and 1872 versions of the Code. The evolution seems focused on (i) record-keeping through entry into a diary, and (ii) ensuring the genuineness information by making informants sign on it. Nothing in these provisions, and even in Section 154, spoke about the investigative powers of the police. That, always, had been the prerogative of Section 157 and its predecessors. 154 talks about information, 157 says that "from information or otherwise" the police can investigate. Before 1882, this scheme neatly refused to comment upon the kind of offences disclosed in the information sections which, at the cost of repetition I state, was unfortunately blurred in 1882 by Section 154 and Section 155.

Even so, what is clear is that Section 154 neither speaks of reports nor does it speak of investigations. Section 157 speaks of both. Section 157 says that if the police officer "has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate ..." If the officer thinks there is insufficient grounds to investigate, then the officer is required to explain this in the report and notify the informant. If you look at an FIR [I have not been able to find one blank FIR online] you will find all these requirements etched out in various columns. This, together with everything before, confirms my suspicions that the big header that reads "First Information Report under Section 154 Cr.P.C." on an FIR is certainly legally incorrect. It should have always been Section 157. If we do that now, then all this confusion is taken care of as well. Just insert the time-limit of 21 days into Section 157 and the entire Lalita Kumari architecture is rendered superfluous.

To conclude, I offer my alternate reality. In my world, Section 154 would simply mean registering the information received by the police in a diary / register / notebook / computer. Section 155 would operate if the police thought that the information disclosed a non-cognizable offence. The informant would be referred to the Magistrate, who may yet be convinced that the information disclosed a cognizable offence and then Section 156 allows necessary directions to be passed. Section 157 talks about cases where the police thinks a cognizable offence is disclosed / is told that such an offence is disclosed [Section 156(3)] and decides what to do next. This creates a report, which would be called a First Information Report, since this is the first information the Magistrate receives of the possible offence. Lalita Kumari would never have happened, and the docket might have been a shade lighter.

Guest Post: Understanding the CBI

I am pleased to present a guest post by Ms. Deekshitha Ganesan, a Fourth Year student in the B.A. LL.B. (Hons.) Programme at NLSIU, Bangalore 

The Central Bureau of Investigation is commonly seen as India's premier investigation agency, tasked with solving the most challenging cases. This, naturally, has lead to an intense level of scrutiny of its every move - best seen through the constant media updates surrounding the allegations against the former Director. However, the actual workings of the Bureau: its statutory basis, funding, operational methods etc. are relatively unknown to most of us. Through this post, I wish to explain these rather lesser known aspects of the CBI, and highlight some major issues plaguing the functioning of the Bureau. 

History

In 1943, the Special Police Establishment ["SPE"] was established by Ordinance (No. XXII of 1943) to deal with those individuals taking wrongful advantage of the emergency conditions during WWII and enriching themselves at the cost of the Central Government. Soon there was a challenge to its validity, which led to passing of the Delhi Special Police Establishment Act, 1946 [“DSPE Act”]. The Act was in exercise of powers conferred upon the Central Legislature through Entry 39 of List I of the Seventh Schedule to the Government of India Act 1935. Subsequent to the statute, the SPE was transferred under the Ministry of Home Affairs and its functions were expanded to cover all Central Government departments. Investigations into matters of the state government needed their consent. In 1963, the Ministry of Home Affairs passed Resolution No. 4/31/61-T creating a Central Bureau of Investigation, and the functions of the SPE were transferred to the newly created Bureau. Today, the CBI falls under the purview of the Department of Personnel and Training [“DoPT”] of the Government of India. It has six branches/wings, one of which absorbed the erstwhile SPE.

Resources

With the CBI under the DoPT, until 2013 its budgetary allocations were subsumed under the allocation for the DoPT. In 2013, in response to an affidavit of the Central Government rejecting the CBI’s demand for greater autonomy, the Bureau pointed out the many layers of scrutiny within the DoPT to requisition money spent on basic facilities such as laptops for investigators on the field. Since then, the interim budget of 2014 and the 2015 budget have both included separate, specific budget allocations for the CBI. However, there is no clarity as to whether this was a result of a Supreme Court order.

Despite the limited financial autonomy, the CBI deals with a huge variety and volume of cases. This necessitated establishment of a Central Forensics Science Laboratory [“CFSL”] in New Delhi with 11 divisions, under administrative control of the CBI. The CFSL also has a Digital Imaging Centre to assist in the analysis of electronic evidence. In a controversial move, the Government Examiner for Questioned Documents [“GEQD”] was merged with the CBI to assist in the investigation of white collar crimes. GEQDs across the country argued they were pioneering organisations in the field of forensic sciences and that their documentation divisions and those of the CFSL function differently, which will make coordination difficult. Nevertheless, the Government went through with the decision in 2012. More recently, in May 2015, a new CBI Academy was inaugurated at Ghaziabad to decode information contained in Apple and Linux devices to aid in the investigation of bank frauds, cyber crimes, complex financial crimes, among other conventional crimes.

Expertise and Commencing Investigations

The history of the organisation makes it evident that its expertise lay in economic crimes, and this forms the bulk of cases handled by the Bureau today as well. However, being the sole investigative agency beyond the powers of the State Government contributed to a perception of the CBI as an "independent" organisation. Consequently, several sensitive cases regardless of their nature continue to be transferred to the Bureau owing to allegations of bias in investigations by the local State Police. How does the CBI operate? The division of labour between Union and State Legislatures means there is a need for specific consent from the concerned state before the CBI begins investigating in its territory [Section 6]. Even otherwise, the Union must specify by notification the offences/classes of offences which are to be investigated by the CBI [Section 3]. Therefore, the preliminary challenge to any investigation is the issue of consent. Recently, a Constitution Bench clarified that the requirement of consent does not affect the powers of the Constitutional Courts to order the Bureau to conduct an investigation in spite of any consent from the concerned government [See, State of West Bengal v. Committee for Protection of Democratic Rights, AIR 2010 SC 1476].

Another preliminary issue is that of obtaining sanction. Prosecuting public servants in India involves taking a prior sanction. In the case of the CBI, Section 6A of the DSPE Act was inserted in 2003 making it necessary to obtain a sanction even before beginning an investigation on allegations against certain officers. Apart from it being an unreasonable fetter on the CBI's investigative power, it was also argued that placing certain officers behind such a protection was unconstitutional under Article 14. The issue was referred to a Constitution Bench of the Supreme Court, and in Dr. Subramanian Swamy v. Director, CBI [(2014) 8 SCC 682] Section 6-A was struck down as unconstitutional. 

Conducting an Investigation

Investigation is required to be conducted as per the provisions of the Code of Criminal Procedure, 1973 and the Crime Manuals merely act as guidelines However, the CBI does not investigate all offences falling under a notification under Section 3. As per Chapter 1 of the CBI Crime Manual, there exists an arrangement between the State Police Force and the CBI on division of cases to ensure coordination and avoid duplication. This is to be seen in light of the fact that ‘Police’ is a State subject and Section 6 of the DSPE Act which requires permission to be taken for exercise of powers by the CBI in a State.

The CBI is empowered to conduct investigations based on complaints received from any person, including members of the general public. Upon receipt, the complaint is forwarded to the appropriate branch of the CBI. However, the most common way by which the CBI begins investigation in a case is upon complaints from the Central Government Departments, State Governments, Ministries and Public Sector Undertakings etc. In these cases, the procedure for registration and verification of the complaint is required to be followed. However, where the complaint itself mentions specific allegations and reveals a criminal offence that is fit to be registered as a Regular Case, the permission of the Competent Authority is required to be taken. 

Conclusion

The most important issue surrounding the CBI today is the debate surrounding whether a separate statute should be enacted to recognise its independence. At the moment, right from its constitution to the list of offences which it can investigate, everything is determined by the Central Government. Until very recently, the CBI needed the sanction of the Central Government to prosecute certain classes of bureaucrats. Many officers of the CBI have suggested that the Bureau's powers and autonomy should be along the lines of those granted to the Election Commission. Without a statute clearly defining the extent of the Bureau's powers, without removing the curbs on its powers laid down in DSPE and without amending the extent of the Central Government’s superintendence over the CBI, decisions like that of the Gauhati High Court in Navendra Kumar v. Union of India & Anr. [Writ Appeal No.199/2008, decided on 06.11.2013], will continue to be a reality.