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

(This is a guest post by Rahul Machaiah)

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

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

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

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

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

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

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

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

The Tofan Singh Reference — Part 4: Summing Up

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

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

To recap, the issues are:

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

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

Who is a "Police Officer"

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

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

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

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

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

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

Section 67 Statements as Substantive Evidence

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

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

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

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

Conclusions

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

... 

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

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

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

The NDPS Act Cases

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

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

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

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

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

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

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

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

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

Conclusion

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

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

Criminal Procedure and Clogged Dockets - Reverse Engineering Solutions?

The delay and docket logjams in the Indian criminal justice system have been so abysmal for so long that, at some level, they've lost their shock value. Year on year, local and international reports will be dutifully published highlighting the plight of the system. The government has done its bit too, with the Indian Law Commission having reviewed the issue of delays on multiple occasions (the reports can be accessed on its website). Beyond losing their shock value, while reading most of these reports I also saw that the pervasive nature of the problem has also rendered discussions on solutions stale, with the same drum being beaten incessantly (for exceptions, see this piece by Vrinda Bhandari).

The solutions (give or take a few) range from (i) increasing courts, (ii) increasing fast-track courts, (iii) increasing alternate dispute mechanisms like Lok Adalats, (iv) make judges work more, (v) introduce time-limits for cases, (v) reinvigorate the dormant plea-bargaining system, (vi) enhance quality of investigations. If the criminal justice system were to be viewed as a funnel (to borrow an old and often-repeated imagery) with the persons who don't commit crimes at the broad top of the funnel and those who go to court at the narrow tip, then we see that these solutions are all focused at the tip. Everyone is talking about what happens when we reach the end of the funnel - why not look at what happens at the start itself?

If you think that there are no steps from the top of the funnel till its tip, you're quite mistaken. There are various steps, and each involves an exercise in discretion. Take speeding on the road as an example. First, not everyone who breaks the law gets apprehended - so the first filter is how many people get caught. Out of those who get caught, the second filter is how many of those are arrested and proceeded against at all (a talking to is all that you get). Next, out of those proceeded against, how many are actually made accused persons with a charge-sheet against them. After which, there is the possibility of discharge / dropping proceedings / settlement. Only after this do we get to cases that stay in courts.* So, what I am suggesting is that the current debates are (at best) only looking at when the courts get involved. But there is so much that happens before that needs to be looked at as well.   

At this stage you might have two conjoint objections arguing basically that everyone who gets caught in the web of law enforcement should be prosecuted and taken to court. Should they, really? The view is based on a gross assumption that the criminal justice system is capable of handling so many cases, which it is not. And in our already bloated criminal justice system, the capability to add fresh cases each year is especially reduced. Do the police know this? Of course they do. Are they encouraged to exercise greater restraint in taking cases forward? I don't think so. Should they be the ones making the decision to take the case forward? That is the big question that I think is not being asked often enough in our system. Most reports on police reform that I saw did not discuss this either and were more focused on improving administrative structures and the quality of investigations, rather than discuss the exercise of discretion (see, Model Police Bill 2015, PRS Report on Police Reforms 2017, Model Police Act 2006, Human Rights Initiative Report) 

If I am a police officer who invested months in an investigation, and then another few months in preparing the file of the case (all thanks to our cumbersome processes), will I ever think that the case should not be tried and justice not be done? If my track record rests on how many charge-sheets I file, am I not incentivised to add cases to the courts? The case is different from the crime and since the police are experts at dealing with the latter, they often make bad decisions about the former. This why the Criminal Procedure Code 1973 [Cr.P.C] stipulations in Section 169 requiring police officers to not take cases forward when there is deficiency of evidence are rarely applied in practice. Cases may not get taken ahead for many reasons when a crime is certainly committed - lack of evidence is obvious, but equally important are cost-benefit considerations since each trial imposes sever costs on the exchequer (as a judge constantly reminded me in the District Courts at Saket in New Delhi, you lawyers make citizens pay for each adjournment you take).  

Should, then, we have greater discretion being invested in prosecutors to take the decisions of what cases reach the court? This is common practice across the globe. Owing to certain issues with political interference in prosecution office across states with several posts in the Directorate of Public Prosecutions lying vacant without court intervention, I don't know how useful will it prove to have prosecutors make those calls. But I don't merely proceed on an abuse basis to make a claim - there are legal objections towards such a re-orientation. This comes from the primarily inquisitorial model that the Cr.P.C. contains in which judges have supervisory powers over the investigations being conducted by the police. The Supreme Court has already construed this to include a pro-active duty to monitor investigations in Sakiri Vasu and so I argue that this duty requires courts to throw bad cases away as well. This opportunity will not only present itself at the start when a police officer has to report to a magistrate upon beginning an investigation under Section 157, but will come periodically if a person is in custody due to the limits placed upon pre-trial detention under Section 167. Moreover, if the case is sent to the Magistrate after completion of investigation then the Magistrate can only recommend cases be sent for trial after considering various factors such as evidentiary satisfaction, costs, docket control etc. This would, naturally, mandate that the trial not proceed before the magistrates.     

This is a germ of an idea which is riddled with problems that I hope get exposed in the comments. But I do think that in reversing the focus and looking at the top of the funnel rather than the end, we might be able to come up with better solutions for our ailing criminal justice system. 

* The funnel analogy and this discussion are not my own ideas and were exposed to me as part of a class that I am currently enrolled in for my LLM at Harvard Law School. 

Protest Petitions in Criminal Trial

The Criminal Procedure Code 1973 [Cr.P.C.] was amended in 2009 to introduce certain statutory rights for victims of crime. This included the introduction of a Victim's Compensation Scheme [Section 357-A Cr.P.C.] and conferring a right upon victims to appeal against judgments [By way of inserting a Proviso to Section 372 Cr.P.C.]. During my first few months of practising, though, I found that the judiciary had played an equally important role towards increasing the role of the victim. For instance, although the Cr.P.C. does not strictly envisage hearing victims while considering grant of bail, many courts allowed them an opportunity to be heard at this stage. This post focuses on another such judicial creation - the Protest Petition.

What is a Protest Petition
Simply put, a Protest Petition is a representation made by the victim/informant to the court during or after completion of investigation by the police. Today it is most commonly filed after the police file a Closure Report or B-Report under Section 173 Cr.P.C. (what was earlier commonly understood as the Final Report) wherein the police concludes the allegations are not made out against an accused. The Protest Petition, then, is an opportunity granted to the victim/complainant to raise objections against these conclusions, before the Magistrate decides to apply her judicial mind to the Final Report.

The Protest Petition through History
It was extremely fascinating to trace the development of this concept through time. I daresay I have completed this task though, and am still trudging through the decisions. For instance, while the High Courts of Patna and Calcutta had extensively dealt with the legal niceties surrounding Protest Petitions before independence, the first reported judgment from Delhi does not come before 1990 in most databases! Unfortunately, I have not yet come across any discussion of how this was a unique method by judges to ensure some measure of ensuring victims-rights, at a time when such concepts were alien to the criminal process across most parts of the world.

Another interesting facet was how the High Courts seem to have considered Protest Petitions as any representations protesting against police investigations. The term predominantly used in Calcutta was Naraji, which loosely translates to dissatisfaction. Naturally this extended to petitions filed by both accused persons and complainants/victims, although the latter far outnumber the former. Further, the Protest Petition by an accused seems to have only been filed during the investigation, whereas those by complainants were filed during as well as after conclusion of investigations.

Lastly, the consideration of Protest Petitions and acceptance of Final Reports by the police also raised important issues concerning the nature of this exercise: whether it was an executive or a judicial function. If the task was considered an executive function, this meant there was limited scope for review of such an order in revision proceedings. This is purely of historical interest now, since the present Cr.P.C. makes a clear separation between the executive and judicial functions of the magistracy. It was not always so, and there were several reports before 1973 which considered how this separation could take place (the 37th Law Commission Report discusses this to some extent).

Filing a Protest Petition
Many interesting procedural issues arose by allowing this intervention by complainants. I list some below:

• If the Magistrate has a Closure Report and a Protest Petition, can the latter be considered only if the Final Report is accepted?
• Does the Protest Petition have to be a 'Complaint' to take cognizance? 
• Must the Complainant be examined on oath under Section 200 Cr.P.C. after taking cognizance on a Protest Petition?
• If the Magistrate takes cognizance on a Protest Petition when there is a Closure Report, would the case be tried as a complaint case or one based on a police report?
• If the Magistrate has a Protest Petition and Closure Report, can the Magistrate send the police back for further investigation to file a fresh report?
• If the Magistrate is rejecting the Closure Report and accepting the Protest Petition, should the case be transferred before another Magistrate for trial?

Some of these questions can be answered with a degree of certainty. On the first question, there is no prohibition on considering the Protest Petition before accepting the Closure Report. The magistrate may well look at the protest petition beforehand and take cognizance on the Closure Report itself. The magistrate is also empowered to direct a further investigation under Section 156(3) Cr.P.C. after receiving a protest petition. Similarly, it is settled that if the magistrate does decide to take cognizance on the Protest Petition, it must satisfy ingredients of a 'Complaint' under Section 2(d) of the Cr.P.C., and then the complainant must be examined on oath before issuing summons.  

For the others, there remains some doubt though, and this comes with a cost since these questions have important consequences. For example, a complaint case allows for arguing discharge after cross-examining witnesses and such cases can be dismissed for non-appearance of the complainant. This is not so when cases are proceeded on the police report. Furthermore, if the magistrate rejects the findings in the Closure Report and takes cognizance, or direct further investigation only to take cognizance thereafter, would it not affect the appearance of justice if the trial proceeded before the same court? After all, it is not entirely unreasonable to suppose that the court has already arrived at some conclusions about the case in such situations despite the limited application of mind required at this initial stage of the criminal process. The latter is becoming increasingly pressing, though, with it becoming routine for certain courts to re-send closure reports for further investigation to gather more material and play the role of a prosecutor.

Conclusion

The Protest Petition is a crucial piece of judicial innovation much ahead of the times in giving victims a say in the criminal process. Its existence, and development, across the country over the last century directly questions notions that the role of the victim was negligible in India. Its presence today raises important questions regarding the separation between the spheres of investigation and trial. It would be insightful to compare this with other colonial jurisdictions to discern exactly how unique this practice was to India. Today, this predominantly area-specific judicial practice has attained national status. It would certainly help if the federal legislature codified the Protest Petition and made it a part of the Cr.P.C. to address the lingering ambiguities that have arisen during this transformative process. 

Judicial Appreciation at Different Stages of Trial

Criminal trials require the prosecution to prove its case beyond reasonable doubt (well, most trials at least). This is a satisfaction that the judge arrives at. But this is not the only determination that a judge has to make during the trial, that has material bearings on the life of the trial itself. The same judge is required to do this at three other instances - (i) while taking cognizance, (ii) while summoning the accused, and (iii) upon framing charge. The text of the Cr.P.C. indicates different levels of satisfaction are required to proceed further at each stage, as the stakes keep increasing. But since cases are decided by human judges and not robots, subjectivity creeps in, and so does confusion. Here, I argue a lot of confusion has crept in regarding the satisfaction required at each stage. A lot of noise has developed due to judicial dictum, obscuring what the text might have meant. Besides making the law confusing, it has also contributed to increased delays.  

Understanding the Three Stages

1. Cognizance

Cognizance is the first time a Magistrate is presented with the facts, in the form of either a Police Report [Section 190(1)(b)], or a Complaint disclosing the commission of an offence [Section 190(1)(a)], or due to facts in the knowledge of the Magistrate herself [Section 190(1)(c)]. Must a Court take cognizance upon any of these occurring? Section 190 using 'may' and not 'shall' suggests not. The Supreme Court agrees [for instance, Abhinandan Jha v. Dinesh Mishra, (1967) 3 SCR 668]. In suggesting there exists discretion, the Supreme Court did little to suggest how such discretion should be exercised though. Here, no support could be had from the text. Unlike other stages, Section 190 contained no test explaining the satisfaction required for taking cognizance and moving ahead. Nevertheless, the Court went ahead and created a right for aggrieved complainants to be heard at this stage as well [Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285],

Could it be though, that the Code was not intend for Magistrates to evaluate merits at this stage in any way, but only consider whether mandatory requirements were fulfilled? By mandatory requirements, I refer to the various other provisions between Section 190 and 200, that restrict the taking of cognizance. For instance, suppose a complaint under Section 497 IPC [Adultery] is filed before a Magistrate. Section 198 Cr.P.C. does not allow everyone to file complaints for this offence. So maybe, all that the Magistrate is required to do was determine whether the complaint was filed by a proper person, and then proceed? The 'may' in Section 190 Cr.P.C. continues to make sense, and we don't have any subjective discretion creeping in. The interpretation adopted by the Supreme Court opened the doors for challenges to orders on cognizance before appellate courts, causing delays at the very inception of litigation.

2. Summoning

Once the Magistrate takes cognizance of offences, the next step is summoning the proposed accused for trial. Here the Cr.P.C. clearly requires some application of mind, evident from Section 203 which allows dismissal of complaints, and the language of Section 204 which pertains to summoning. It says that there must be 'sufficient ground for proceeding' . Is this determined through argument? And, is there any objective marker to determine whether there exist such sufficient grounds? Although we haven't reached trial, the importance of this stage must not be lost. This decides whether an accused must enter appearance. Where criminal litigation was pursued to mount pressure, this may well be the most important step for litigants. Lets keep answering these questions in abeyance for now, as it is important to first briefly explain what is framing charge

3. Framing Charge
Charges are what determine a trial - this is what the accused must plead to. The Cr.P.C. envisages different trial procedures for different kinds of offences - the more serious offences get a more rigorous trial, so to speak. Framing charge is therefore not found across all trials - Sessions and Warrant cases only, as Summons cases have what is called "Framing of Notice". The Code allows the court to conclude that no charge should be framed, allowing that an accused be discharged. These provisions on discharge vary in style across the different kinds of trial, as seen on a comparison of Sections 227, 239 and 245 of the Code.

Conflating Summoning with Framing Charge

Do we Need to Argue?
Now, lets run back to those questions on summoning. Would the sufficient grounds for proceeding be determined through argument? Section 204, which talks about issue of process, comes right after provisions explaining procedure of complaints before Magistrates. A Magistrate upon reading a complaint examines the complainant on oath. He can also order a police inquiry to determine "whether or not there is sufficient ground for proceeding". If this is a Police Report, there is no such requirement as we already had a lengthy investigation. Summoning is also followed by charge in most trials, and the possibility of discharge for the accused. The Cr.P.C. requires the court to examine the record, and hear both sides, before deciding whether charges should be framed. Both these requirements are conspicuously absent at the time of summoning. To kill the suspense, the answer is that arguments on summoning are always heard when cognizance of offences is taken on a complaint case. Summons are always issued when cognizance is taken on a police report.

Amazingly, earlier the court heard both sides at this stage as well, making differences between the stages quite limited. If arguments were being advanced, naturally the complainant would rely upon the record of the case. The accused couldn't, as documents are supplied post summoning, but would secure some material to have an effective hearing. All of this obviously compounded the problem of delays. Thankfully, today an accused does not have a right of hearing at this stage [Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338]. The reason was increasing delays and too many re-adjudications. Delays persist in another form, as the order remains open to scrutiny. Revision proceedings are possible despite the seemingly interim nature of the order [owing to another decision, Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551]. If the trial court dismissed the complaint and didn't issue summons, any challenge to that order must make the accused a party [Manharibhai Mujlibhai Kakadia v. Shaileshbhai Mohanbhai Patel, (2012) 10 SCC 517].

Levels of Satisfaction
Where summoning requires 'sufficient grounds', the discharge provisions are differently worded for the different trials. Section 227 says that the judge may discharge if there is "not sufficient ground for proceeding". Section 239 discharges where the Magistrate considers the "charge against the accused to be groundless", and Section 245 adopts this where no evidence is recorded. How do we differentiate summoning from charge? Moreover, how do we distinguish between all these tests for charge itself?

If we imagine summoning to be a stage where there is no argument, then the difference is perceptible. The former is a basic inquiry to determine whether or not one should proceed. The supporting material is not looked at, only the basic allegations in the complaint are considered. Later we have consideration of the record, and both sides being heard, making for a deeper inquiry. This also makes little of an interesting dilemma that arises when we place 204 with 227 - the court first finds sufficient grounds to proceed, only to later conclude there is not sufficient ground! But in our argumentative setup, differences become difficult to identify. When the Court hears arguments on summoning, it implicitly allows reliance on the record. Today, the materials are made exhibits during pre-summoning and considered to the extent of their admissibility and reliability. This problem is very real, and I think is visible in the three judge bench decision of Sunil Bharti Mittal [(2015) 4 SCC 609. See the observations in Pepsi Foods v. Special Judicial Magistrate, 1998 Cri LJ 1 as well]. The reasons behind this are obvious - summoning means the accused must appear in Court, and sometimes the stakes are just too high to make sure that doesn't happen,*

So what about framing charge? This is the first stage at which the accused gets to argue, and at that level there is undoubtedly a difference between this and every earlier stage. But now we have a different problem. The Complainant is, potentially, addressing the Court for the third time (and at least the second time). Although the accused is arguing, the rules of the game are already set and she cannot introduce any material now for the court's consideration [another decision, Debendra Nath Padhi v. State of Orissa, (2005) 1 SCC 568]. The accused might have some material that wipes out the allegations against him, but will not be able to rely upon it before the trial court, or even a court in revision. Only the High Court can make a difference, exercising its extraordinary jurisdiction under Section 482, Cr.P.C.

As for the levels of satisfaction required, a bare reading of the Code may lead one to think that getting discharge gets more difficult depending on how serious the offence is. But the Supreme Court disagreed and said that the different words mean nothing. All that framing charge requires is establishing a prima facie case [R.S. Nayak v. A.R. Antulay, AIR 1986 SC 2045]. What is a prima facie case? Again the Court does not help much while inserting standards for the existing text. A multiplicity of decisions express the same thing differently only to confuse further, and introduce other standards not faithful to the text - requiring grave suspicion, for instance [Niranjan Singh v. Jitendra Bhimraj, AIR 1990 SC 1962]. The text enables a court to consider the record but how far can that analysis go without it becoming a mini-trial? Hearings at this stage, and judgments, often end up relying upon decisions rendered on merits in appeals to advance an argument on fact. Is it proper, though, to rely upon such decisions for conclusions on facts, while considering the life of a case pre-trial? The routine way in which courts accept this suggests that fine lines are long gone.

Conclusion
Codification, and here I draw from the formation of the Indian Evidence Act, was an exercise where the legislature intended to divorce the law from the effects of judicial law-making. The text was to guide decision-making. A reading of the text as contained in the Cr.P.C. offers clear guidance. That guidance, or sound, appears to have been lost through the noise generated over decades of verbose dicta. Cutting through the noise to the sound is perhaps inconceivable today, but the exercise is eye-opening. I admit that the arguments in this post have an underlying fallacy - it carries an implicit faith in the judiciary. Perhaps the extra intervention by the parties remains necessary because judges are overburdened and require additional assistance. The problems created by the noise run deeper though, and I argue this has resulted in draining any clarity that might have existed in the exercise of judicial discretion through these stages of taking cognizance, summoning the accused, and framing charge.

* An interesting thought. Given that the decision in Adalat Prasad took away an accused's right to be heard at the stage of summoning, is it legal to rely upon decisions before Adalat Prasad to explain the degree of  satisfaction to determine whether sufficient grounds exist for framing charge? Would there not be a difference in the level to which a court requires to be satisfied when the accused is not there to present his case, in whatever manner and form? This would make reliance on Pepsi Foods illegal.

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.