Celestium Financial and the Inconsistent Fabric of Our Criminal Law

In April, a Division Bench of the Supreme Court handed down the judgment in Celestium Financial [2025 INSC 804]. It did not generate much publicity at the time given its rather dry subject-matter — the right to appeal of complainants in cheque bounce cases — but in the months since April, the judgment has caused much upheaval across criminal courts. 

Prior to Celestium Financial, a complainant aggrieved by an acquittal in a cheque bounce case under the Negotiable Instruments Act 1881 could only challenge it under Section 378 of the 1973 Code [Section 419 of the BNSS]. This provision [378 / 419] detailed the process for a 'complainant' in a case instituted upon a complaint to challenge an acquittal before a High Court. You sought leave to appeal before the High Court. If the High Court declined leave, the matter ends; if it grants leave, then the appeal get registered and the acquitted-accused is summoned as party respondent. This procedure for complainants was different, and arguably more onerous, than the procedure for accused parties, who could file an appeal against convictions as a matter of right before the sessions court (a level below the High Court in the judicial hierarchy).

Celestium Financial upended this scheme by refusing to look at Section 378 Cr.P.C. / 419 BNSS in isolation, but as part of the chapter on appeals in the relevant statutes. This approach required the Court to harmonise the text of Section 378 / 419 which stipulate a specific process for appeal by aggrieved complainants, with the text of Section 372 Cr.P.C. / 413 BNSS which by a proviso inserted in 2009 conferred a right of appeal upon all victims against any order of acquittal and stated that such appeals go to the court which ordinarily heard appeals against conviction. As a complainant in a cheque bounce case was also a 'victim', the Court felt there was a contradiction in terms because Section 378 worsened this vested right of victims by creating stipulations and conditions on its exercise. The Court has harmonised the conflict by declaring that the right of complainants in cheque bounce cases to appeal against acquittals also flows through Section 372 / 413, and so they can file appeals before a sessions court and need not pursue matters in the High Court.

The ambiguity in the Court's expressions of how complainants / victims may avail their right to appeal — hinting that they still have an option to choose the court — as well as the result of Celestium Financial now opening an additional forum for litigation has created some confusion which will take time to resolve. That is not what I want to discuss here and will hopefully be able to discuss when the eventual resolution does take place through our courts. Instead, this post touches upon two separate aspects of the decision, which are united in how they speak to a larger issue of inconsistency within the fabric of our criminal law.                

The Nature of Cheque Bounce Offence

In 1988, Parliament amended the Negotiable Instruments Act, 1881 to make dishonour of cheques an offence punishable with jail time. The goal was to deter persons from dishonouring cheques by making it a crime and prosecuting it by a speedy process. While the jury may still be out on whether the amendment reduced dishonour of cheques, there is absolutely no doubt that trying to achieve this goal through criminal prosecution has not worked out. Cases do not end speedily, are not prosecuted properly, and have created an insurmountable burden of arrears in courts. 

The fact that the offence was added only to enhance civil contractual rights, and the chequered history of such prosecutions, meant that there slowly emerged a view across the board which acknowledges that the offence of dishonouring a cheque is not really a crime. Sure, it is made punishable by statute, but that is about it. The offence does not come with trappings of what makes conduct truly criminal. In recent time, the most forceful exposition of this view came in P. Mohanraj v. Shah Brothers Ispat [AIR 2021 SC 1308]. A Three Justices' Bench of the Supreme Court labelled the prosecution as a 'quasi-criminal' proceeding, and the offence a "civil sheep" in a "criminal wolf's" clothing. Why did it matter? In P. Mohanraj, this view that a cheque bounce offence was not really a crime led the Court to conclude that such cases ought to be included within the ambit of beneficial provisions placing moratorium on civil litigation against a corporate debtor. In other words, there were consequences flowing from a proper criminal case which the Court felt was not appropriate to extend it to the cheque bounce prosecution. Adopting this prism would mean raise questions on other consequences as well, such as what would happen to the right to avail a passport, the right to stand for election, to vote, and so on.

P. Mohanraj was on shaky footing in this regard, though. While it made sense to the Court (and to many observers) to not view the cheque bounce case as a crime proper, unfortunately the law itself does not contain the kind of middle ground which the court had envisioned. Wherever the legislature did want to create a remedy not properly criminal but more than a pure civil dispute between parties, it had done so by stipulating levy of penalty through a government agency. An example of this procedure was the Customs Act 1962 or the Foreign Exchange Management Act 1999. However, once a statute declared that something was an offence, punishable with the kind of punishments specified in the Indian Penal Code (now Bharatiya Nyaya Sanhita), prosecutable in a court, it was a crime proper and that was that. There was no 'quasi-criminal' category of the kind the Court sought to create. 

This issue of how do we view a cheque bounce case is part of the judicial inquiry in Celestium Financial too. The right of appeal to a victim conferred under Section 372 Cr.P.C. / 413 BNSS is linked to there being an 'offence' which caused any 'loss or injury' to the person. A worldview which sees cheque bounce cases as 'civil sheep in criminal wolf's clothing' cannot accommodate aggrieved parties as 'victims' of crimes. Yet, this is precisely what the Division Bench has held in Celestium Financial. How did it square its view with what the larger bench had held in P. Mohanraj? By simply not looking at P. Mohanraj at all. Rather, all the Court did was to look at the text of the provisions, and hold that the ingredients were made out to view these complainants as victims.

The Right of Victims to Appeal and the BNSS Problem    

In Mallikarjun Kodagali [AIR 2018 SC 5206], a Three Justices' Bench of the Supreme Court had grappled with the scope and ambit of the proviso to Section 372 Cr.P.C. that was inserted in 2009 which recognised the right of a victim to appeal against an acquittal. This was hailed as a salutary move, advancing the rights of victims who otherwise were at the mercy of the state, and the Supreme Court gave due emphasis to this purpose in interpreting the proviso broadly. What was the issue there? Not a substantive one of whether there should be such a right of appeal conferred upon victims. Rather, the problems came almost entirely from the manner in which the legislature had gone about crafting this right. 

If you see the relevant provisions in the Cr.P.C. / BNSS grouped under the Chapter of 'Appeals', it starts with Section 372 / 413 which declared that there is no right of appeal except as provided in the statute. In other words, this provision states that (1) there is a right of appeal, (2) it is fashioned in generic times and not specifically to verdicts of conviction or acquittal, and (3) the scope and ambit of this right of appeal would be defined in the law. This generic, declaratory clause, is followed by provisions which elaborated how the right of appeal could be exercised in different contexts. One context was identified in Section 378: appealing against an acquittal. Only in cases instituted upon a complaint did the law confer a right upon the private aggrieved party to challenge the acquittal directly; in all other cases, the right of appeal remained vested with the state without any parallel rights to a victim. Unfortunately, for reasons best known to the legislature itself, there was absolutely no change made to the text of Section 378 when it decided to grant victims a broader right to appeal. Instead, a proviso to Section 372 was inserted as I have mentioned above. 

From 2009 till the judgment in Mallikarjun Kodagali in 2018, the result of this peculiar drafting strategy was that courts insisted upon all victims to adhere to the process of Section 378 and first get leave for filing appeals. Mallikarjun Kodagali declared that this was the wrong way to read the clauses. But, again, it did not clarify what happened to victims who were complainants as well; clarity which has now come with Celestium Financial to some extent. 

To simply jump from Mallikarjun Kodagali in 2018 to Celestium Financial in 2025 ignores the fact that in the middle of all this, Parliament took up the matter of repealing the 1973 Cr.P.C. and replacing it with a new code. In any genuine effort to improve the system of laws, issues like the pending confusion on how to treat victims and victim-complainants for the purpose of appeals would be considered; or so I would imagine. However, precisely zero changes were made to the scheme on victims' rights of appeal, even as the government trumpeted the new statute as having enhanced the rights of victims. My point is not to attack the BNSS or the other codes, but about the legislature's role in resolving inconsistencies that come in the fabric of law. Since 2009 till 2023, it is amply clear that there is confusion in how the text of the law is being read. Different benches have come at different answers, and the view which controls the field is not without its limitations and came with a dissenting opinion. In such circumstances, the legislature alone can meaningfully iron out the creases to restore some consistency and predictability to the scene. Yet we find the legislature quite content to let things run as they are, bringing us two more years till yet another court verdict moves the needle and opens the door for further conflict.  

Repairing the Fabric?

The two decisions in Celestium Financial and P. Mohanraj are quite different in terms of the subject area and scope. But at the same time, there is some conflict here, because the same offence cannot be properly penal as well as a civil sheep simply depending upon its context. It has to be either one of the two. The call in Celestium Financial to not cite or engage with the earlier view in P. Mohanraj reflects a problematic aspect of the inconsistent fabric of our criminal law. There is simply too much volume, too many past judgments, which creates enormous scope for treading a path that has already been travelled before in some context or another without realising it and rupturing the consistency of law's fabric. It is perhaps ironic that a mere three months after Celestium Financial, a different Division Bench of the Court has also dealt with the issue of construing the rights of victim-complainants to appeal, but this has not cited Celestium Financial anywhere! 

On the face of it, the Indian criminal process is governed by its comprehensive codes. For that statement to actually have any meaning, though, it needs an active legislature which is alive to the kinds of conflicts of opinion that we have seen in context of victims' rights to appeal and takes steps to resolve them one way or another. It does not need an inert one which wakes up once in fifty years only to apply cosmetic flourishes to the legal framework. An inert legislature means that a system supposedly working on statutory law will slowly return to classical common law, where what matters is how successive judicial opinions read the text of a law and craft solutions to problems presented to courts. This is not a new problem nor an insurmountable one. It is a classic issue that has come up across legal systems with the merging of old common law practices and representative legislatures passing statutes to govern peoples' affairs. Where are we on that spectrum needs and honest and urgent reckoning, to begin a consideration of how can we begin repairing what is a fast-fraying legal fabric.

Victims and Bail — The Judgment in Jagjeet Singh v. Ashish Mishra

In a much-publicised judgment, the Supreme Court set aside the order granting bail to the main accused in the Lakhimpur Kheri incident from October 2021 [Jagjeet Singh & Ors. v. Ashish Mishra & Anr., Crl. Appeal 632 of 2022 (decided on 18.04.2022) ("Ashish Mishra")]. At the outset, it would be necessary to clarify that the court has not cancelled bail, but set aside the order granting bail as it was found contrary to law (see, here, for the difference). As a result, the case has been sent back to the Allahabad High Court for reconsideration (with a relatively generous timeline to deliver a verdict within three months), and the accused has been directed to surrender within a week.

A primary reason for the Supreme Court to set aside the order was the High Court's failure to honour the victims' rights to participate in the hearing. The victims had been present for the online hearing before the High Court but could not participate due to technical woes. They had preferred an application seeking re-hearing, citing this reason, which was rejected by the High Court. Thus, it was argued before the Supreme Court that (i) victims had a legal right to be heard at the bail stage, and (ii) the impugned order was passed in contravention of this right. This contention was addressed cumulatively in favour of the appellants in "Section A" of the judgment in Ashish Mishra, and it is the primary focus of this post.

The Holding

The Court has held that a victim (as defined under the Criminal Procedure Code, 1973) "has a legally vested right to be heard at every step post the occurrence of the offence. Such a 'victim' has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision." (Para 24) 

The logic behind the holding is expressed in the next paragraph (Para 25), where the Court notes that, first, "Indian jurisprudence is constantly evolving, whereby, the right of victims to be heard, especially in cases involving heinous crimes, is increasingly being acknowledged". And, second, it was necessary to extend this to the stage of bail as it would result cause miscarriage of justice. 

Is it a good idea for Bail?

As mentioned above, the Court notes that denying victims a right to participate in the bail stage will result in a grave miscarriage of justice. Given that bail hearings in India are peculiar and do not compare well with, say, the USA or Canada or South Australia for that matter, it is necessary to think a little more about this claim. 

Traditionally, one of the key considerations for bail is the threat to a victim's safety. The foreign jurisdictions which the Ashish Mishra judgment relies upon welcomed victim participation at even the bail stage to allay all concerns about this specific issue regarding a threat to their safety. In some contexts, victims do not have a right to get a full hearing but to file affidavits to ensure that no relevant information is left out for the court.

The problem is that in India, bail hearings tend to focus a lot more on the merits of the case than anything else. Allowing for a third party to step in and address the court might end up repeating a lot of submissions and extend the already lengthy timelines that bail hearings suffer from. So while in the abstract victim participation is a good idea, a lot depends on how courts regulate the process to ensure that no side can hold the process hostage. 

How will this work in Practice?

The problem with the pronouncements of the highest court has often been that the view from the top often renders ground-level problems too mundane to notice and come in the way of grand statements. It's very nice to say that all victims have a right to participate, but what does it mean in reality? Will an accused person have to always implead victims in bail applications now? Will courts have to wait for bail even in bailable cases before getting the perspective of a victim? Will the victim be entitled to a copy of the chargesheet even when the police is not closing the case? These are only some of the very real problems of execution that follow from the Court's grand pronouncement in Ashish Mishra.

It is precisely because of this reason that extending participatory rights meaningfully within the criminal process ought to be a process which has active legislative cooperation. That the Court itself notes instances from India and also foreign jurisdictions where victims' rights have been recognised through statutes. If the Court felt it was necessary to recognise this principle, nothing stopped it from recommending the matter to the legislature for consideration. Or, on the other hand, if the Court was serious, then nothing also stopped it from taking the issue to its logical conclusion and charting out the specifics (as it has done in the sphere of witness protection). 

The Court did neither, which basically leaves this grand pronouncement subject to interpretation by the lower courts. Critical in this process might be one specific sentence in Paragraph 25 where the court notes that "where victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing" (Emphasis supplied). Practicing lawyers know that many courts already allow victims to be heard at the bail stage when they enter an appearance. Thus, the Court may well be seen as having gone little beyond affirming the status quo. 

Yet more rights without remedies?

Return to the manner in which the Court characterised the issue on victim participation at the bail stage — victims have a right to be heard at bail, and this right was violated by the High Court. There is an obvious follow-up question which is stark in its absence from the judgment — so what if this right was violated? 

The judgment in Ashish Mishra is, then, the latest chapter in the Supreme Court's remarkable tendency to create rights without remedies within the criminal procedure context (see, here, for a longer discussion on the theme). What makes a right meaningful is the remedy that ensues, but besides being "constrained to express our disappointment" with how the High Court dealt with the victim's right to participate, there is literally no discussion on what legal consequences shall result in such circumstances henceforth and thus no guidance to either litigants or courts on how shall such problems be dealt with in the future.

If anything, the observation in Paragraph 25 extracted above suggests that this so-called right is little more than a token for those having the wherewithal to participate in the process. By placing the onus on victims to seek participation and thereby get an audience, the Court offers a path which is, in fact, diametrically opposite to the statutory schemes referred to within the judgment, where the entire idea is to invite the victim to participate by giving adequate notice (such as the amendment to Section 439 of the Code giving victims of sexual offences adequate notice).  

The lesson perhaps is that if you are a victim who has the ability to participate in the process, the judgment in Ashish Mishra has rubber-stamped your ability to do so by calling it a right. If you are not so lucky, then perhaps it is best to not get your hopes up.

Guest Post: Universalising the Application of 164(5A), Cr.P.C.?

(This is a Guest Post by Nandini Garg)

On 23 December 2012, a three member Committee headed by Justice (retd.) J.S. Verma was constituted which recommended amendments to criminal laws for quicker trial and more severe punishment for those convicted of committing sexual assault against women. Following these recommendations, sweeping changes were introduced in the Code of Criminal Procedure, 1973 (hereinafter as the “CrPC”). Section 164 (5A) was added to the CrPC as part of these changes as well, which concerned recording the statement of a victim of a sexual offence by a judicial magistrate. Section 164(5A) provided that, if such victim is physically or mentally disabled, her statement can be treated as the statement made in lieu of the examination-in-chief done later on at trial.

On 31 March 2021, while hearing an appeal, a division bench of the Bombay High Court noted that Section 164(5A) ought to be amended immediately to allow statements of victims of sexual offences to be treated as statements in lieu of their examination-in-chief, notwithstanding whether victims were differently abled or not. The appeal itself involved allegations of sexual abuse and capturing of nude photographs by the accused of his daughter. The court felt itself constrained to direct an acquittal on the rape charges largely due to its inability to treat the victim’s earlier statement as being her examination-in-chief. Thus, mindful of the victim’s plight, the Court urged for an immediate consideration of its suggestions and also directed its judgment be shared with the relevant authorities.

In this post, I look into the significance and evidentiary value of the statements recorded under Section 164, and the need to universalise the application of Section 164(5A) and the limitations of the same.

Role of Section 164, CrPC statements in Sexual Offences

Prosecutions for sexual offences often do not consist of independent witnesses to the heinous deed itself; the victim’s testimony, besides forensic evidence, is the bedrock of the case. At the same time, victims in such cases suffer immense physical, mental, emotional and social trauma, and are often not in a position to fearlessly and immediately report the crime let alone testify at multiple stages of the process about the trauma suffered by them. These universal problems are compounded by the unique societal pressures faced by victims in sexual offences; in India, the victim suffers great humiliation on account of a taint of ‘impurity’ which lends to poor rates of reporting sexual offences as well as of continuing with the prosecution. Keeping this in mind, various protections like recording of FIR by women officers and recording of the victim's statement by the magistrate etc. are currently provided under the CrPC, all to bolster the ability of a victim to give her version at the initial stages of the case.

As soon as a sexual offence is reported to the police, the statements of victims are ordinarily recorded by a magistrate under Section 164(5A) today. This statement has to be recorded like a statement recorded from a witness in the court and an oath has to be administered. As a result of an oath being administered, these statements are qualitatively more reliable than statements ordinarily made to police officers during investigations, which are unsigned and statutorily inadmissible in evidence. 

Although statements under Section 164 are recorded by a magistrate on oath, they are recorded at the stage of investigation and not at the stage of trial. The defence has no opportunity to cross-examine the witness on such statements. Hence, they cannot be used as substantive evidence. It is settled law that the statements recorded under Section 164 can be used only for the purpose of contradicting or corroborating the witness during the trial under Sections 145 and 157 of the Indian Evidence Act, 1872 (hereinafter as the “IEA”), respectively. They are merely considered as ʻformer/previous statementʼ which can be used to either support or refute a witness's testimony. If the witness completely upends her Section 164 statement at trial and there is no other evidence against the accused, the accused cannot be convicted on the basis of Section 164 statement.

The testimony of the prosecutrix (i.e. the victim in a sexual offence) is of immense significance in cases of sexual offences. If credible, the court may convict the accused on the sole testimony of prosecutrix and it requires no corroboration. Statements made under Section 164(5A) CrPC add weight to testimony given by the prosecutrix in her examination-in-chief at trial; and, as was mentioned above, can also undercut the value of this testimony.

This gives rise to a peculiar difficulty in sexual offence prosecutions. In many cases where victim blows the whistle at first instance, the victim faces pressure subsequently to either withdraw the case or renege from her initial statement at trial. It is more visible where a victim's own relatives are accused (the majority of cases), and due to which the thrust is on saving and preserving the false notion of family ʻhonour and shameʼ. In other words, the victim's initial statement before a magistrate might have been recorded free of pressure, but this version may be upended at later stages due to  factors beyond the victim's control, and she is forced to change her story which leaves a prosecution in tatters.

Need for Universalising Section 164(5A), CrPC and its Limitations

Section 164(5A), under clause (b), creates an exception to the general rule which does not allow for treating statements made during the investigation as substantive evidence by permitting such statements to be treated as statements in lieu of examination-in-chief if the victim is physically or mentally disabled, either on temporary or permanent basis. The victim can directly be cross-examined on the statement recorded under Section 164(5A)(a), doing away with the need of her examination-in-chief altogether. 

But, as we already know, all victims of sexual offences often suffer various pressures outside of court, compromising their ability to give free and correct testimony. The Justice Verma Committee noted that -

“In our tradition bound society, structured on the basis of conservative values, when a woman is subjected to sexual assault in any form, it translates into a multiple crime. She is raped at home (literally and figuratively) and in public, followed by demeaning medical examination, examination and cross-examination by the police and in court, in salacious media reports, and in the insensitive response of society, including family and acquaintances. In sum, the victim suffers intermittent rape in full public glare.”

Keeping this in mind, if the victim's statement under Section 164(5A) is considered as statement in lieu of examination-in-chief in all cases, it will certainly prove advantageous and prevent the harassment of victims. Underlining the need for evolving a fast track procedure for prosecution of rape cases, the Supreme Court has also observed that –

“5. What we wished to emphasise is that the recording of evidence of the victim and other witnesses multiple times ought to be put to an end which is the primary reason for delay of the trial. We are of the view that if the evidence is recorded for the first time itself before the Judicial Magistrate under section 164 Cr.P.C. and the same be kept in sealed cover to be produced and treated as deposition of the witnesses and hence admissible at the stage of trial with liberty to the defence to cross examine them with further liberty to the accused to lead his defence witness and other evidence with a right to cross examination by the prosecution, it can surely cut short and curtail the protracted trial if it is introduced at least for trial of rape cases which is bound to reduce the duration of trial ...”

Universalising the application of Section 164(5A) CrPC to all victims of sexual offences will go a long way in strengthening the prosecution's case and minimising the harassment of victims. However, this cannot come at the cost of denuding accused persons of their opportunity to cross-examine the witness. This is, by no means, contrary to the spirit of making the trial environment more conducive to victims for enabling cross-examination only goes to ensure that the testimony of the victim is well-founded. It would, therefore, be a mistake to think that enabling 164(5A) to substitute the examination-in-chief will automatically result in convictions. The prosecution case must still be credible and reliable, supported by other evidence where available. 

Conclusion

Considering the harsh and unsympathetic attitude of the system and society towards the victims of sexual offences the Bombay High Court has urged for, what this author thinks, is a much-needed amendment of Section 164(5A), CrPC. If the statement of a victim recorded under section 164 is kept in sealed cover and is directly produced in the Court as her deposition, it will help to ensure the authenticity of her statement, save her from being coerced to change her story, and will potentially serve as reliable evidence for trial. However, the ordinary rules of trial cannot be ignored altogether, such as permitting cross-examination of the victim and considering her overall testimony in light of other available evidence and material.

From Complainants to Consumers — A Perversion of the Criminal Process

(This is a long post, the title of which was changed on May 4, 2019)

Consider a scenario. Geetha loaned her friend Swati a sizeable sum. A year on, Geetha starts asking her friend to repay the loan. She sends many texts, but Swati doesn't reply to a single one. Frustrated, Geetha comes to you, her friendly neighbourhood lawyer, for some advice on how to proceed and says she wants to take this to court. What do you do? It is possible to think of many responses, but that's not the point. The point, is, that there is no clear answer on how a dispute is presented in law. This process, and the ultimate result, is a function of the client's means, demands, and a lawyer's imagination. This post explores the process of going to court through the lens of a hypothetical client, Geetha, with modest means and a lawyer's assistance. 

The Realities Facing Consumers of the Legal Process

What is Geetha's trouble? She wants her money back. One way to do this is by filing a civil suit for recovery. This requires that Geetha go to court with a written plea (plaint) explaining what happened, disclosing all the material she can muster to support her claim, and then call upon the court to decide whether or not it should be granted. If the court agrees with Geetha, she gets her money back, probably with interest. How would this scenario play out in real life? Every different step that I flagged above — filing a plaint, getting your evidence, going through trial, and arguing the case — will take at least a few months to complete because of the high pendency plaguing our courts. This means that even a basic suit for recovery drags on for at least a couple of years. Because of this, the probability of having to repay the principal loan amount with interest some years down the line creates very little pressure for Swati to try and resolve the dispute with Geetha.  

There is another way to present Geetha's case: Allege that Swati had never intended to repay the loan, and Swati dishonestly induced Geetha into giving her the money. Now the issue is no longer a simple recovery, but a case of cheating which is a crime, where the consequences go beyond money and threaten to take away Swati's liberty. How might Geetha start a criminal case? Either by going straight to court, like her civil suit, or by asking the police to look into the matter. As we now know, going to court for the recovery suit is a long and painstaking process. The same is true for a criminal complaint, and so the threat of imprisonment becomes too remote for anyone to care about. But, if Geetha can convince the police to look into her case, then we get a drastically different scenario. For starters, it is the State that becomes in-charge of pursuing the case against Swati — Geetha is only a witness now. More importantly, the threat of coercive action — a decree or a guilty verdict — which seemed like a distant dream in a court case, becomes very imminent when the police is involved. This is because the police officer can arrest persons suspected of committing crimes. The recalcitrant Swati might begin to have doubts about her stance knowing that there is a likelihood of her being arrested, and might take the steps needed to resolve the dispute.   

Systemic Incentives to Pursue Criminal Proceedings

The previous section explained why, when presented with a choice, consumers like Geetha might be inclined to portray their problems as criminal cases for police to investigate: The relative advantages of this kind of setup are substantial when compared to a situation where someone goes to court directly. Given the relative advantage, it is not impossible to imagine some consumers will be motivated to paint all their disputes as criminal cases. Equally, it is quite possible that police might go ahead and arrest people for flimsy reasons — something hinted at in the glaring disproportion between the rates of arrest and the rates of conviction. 

How do we curb this? I can think of three ways. First, reduce the scope of what all can be called a "crime". In doing so, you reduce the scope for persons to try and contort their disputes into criminal cases. Second, and far more useful, is to restrict the powers of arrest for police. This power is the game-changer when we consider the relative attractiveness of the criminal process today, as the police can arrest without conclusive proof and only based on suspicions. So, it would make sense to regulate this power tightly, making sure that the bludgeon of arrest cannot be wielded arbitrarily. Third, and linked to the second, is to make police decision-making more transparent. Make guidelines that the police have to consider before deciding to take up a case, and render it necessary to justify every departure from the mandate.

Unfortunately, the Indian criminal process incorporates none of the above. The routine manner in which every statute today seems to carry an "offence" provision, and the damning refusal by successive governments to reconsider the archaic Indian Penal Code of 1860, ensures that a whole lot of seemingly ordinary conduct can be labelled as "criminal" to trigger the process. Nor is there any transparency over police decision-making. There are many internal circulars etc. which regulate how cases are to be taken up — something I saw in the recent 66-A litigation — but none of these are voluntarily published online or elsewhere. What makes the over-criminalisation and non-transparency much worse, though, is the daft manner in which the criminal process confers, and regulates, the powers of arrest vested with police. There are three different systems of regulation on arrest powers in place today, and as I demonstrate below, all three are in pretty bad shape.  

The first regulation is by way of the cognizable / non-cognizable divide — certain offences have been labelled "cognizable" in the Criminal Procedure Code 1973, and for only those can the police arrest persons without needing prior judicial permission. However, nothing in the law offers any guidance on how to decide which offences should be called cognizable. There is no provision in statutes, nor any judicial test, that governs this critical restraint on police power. What results is manifest arbitrariness. For instance, consider the current sets of offences dealing with sexual assault. While "outraging the modesty" of a woman is a cognizable offence, "sexual harassment" conduct is not. How to distinguish between the two is anyone's guess, and thus the theoretical "restraint" of calling some offences non-cognizable becomes redundant.          

The second regulation on arrest powers is the level of suspicion that police officers must have before deciding to arrest. This is found in Section 41 Cr.P.C., which unhelpfully tells us that a police officer can arrest if she has reason to believe a cognizable offence has been committed. Allowing the police to arrest on an "I know it when I see it" approach is pointless, and perhaps this is why the judiciary has stepped in to construct an additional test of "necessity" to regulate arrests. Basically, courts tell police not to arrest persons unless there is a need to. The most prominent example from the Supreme Court was the decision in Arnesh Kumar [(2014) 8 SCC 273], which created strict rules of necessity to restrict arrests in cases where the suspected crime was punishable up to 7 years. However, the overlapping scope of different offences where similar kinds of conduct are punished differently — as seen in the sexual assault example above — has also undercut this reform measure. It is becoming increasingly common to lump in an allegation regarding an offence punishable with 10 years only with a view to avoid the rigours of Arnesh Kumar.          

The third regulation on arrest powers, more indirect than the others, is the law on bail. By subjecting the police to strict scrutiny during bail hearings, courts send a clear signal that flimsy arrests won't be tolerated. Pop-culture wants us to believe this is true — with all that verbiage about "bail is the rule and jail is the exception". A hard look at India's prison statistics is all you need to see through this deception. In a system where undertrial prisoners populate over 65% of prisons, bail is the exception, and jail the rule. Because bail is granted at a premium, normally ensuring that the person remains in jail for at least some weeks and also with stringent conditions upon release, consumer demand for the criminal process and arrests remains high.  

Perhaps because they are aware that none of these regulations working very well, courts in India have also proved willing to judicially terminate pending cases or investigations where a "purely civil case" is masquerading as a criminal one, by calling such proceedings an "abuse of process". This purported solution is a non-starter, sadly. To ask a court, or any reasonable person, to decide if a dispute is a "purely civil case" when the matter is still being investigated / inquired into, is to put the cart before the horse. Naturally, this renders the entire setting arbitrary, where what is sauce for the goose might not prove to be sauce for the gander.  

The Consequences of Commodification

This commodification of our criminal process, with its long delays and lack of effective regulation on what kinds of cases can be called "criminal", is not without consequences. In the zone of consumer choice that this post identified and discussed, this commodification is slowly coming to define how the criminal process is considered by all stakeholders.  

The most visible example of this is, again, the law on bail. I mentioned before that this has proved to be an ineffectual regulation on excessive arrests. But to think that this is because our courts love to keep people behind bars is a bit of a stretch. Instead, as has been argued elsewhere, courts have come to attach a premium to granting bail largely because they also acknowledge the need for some kind of pre-trial justice. Aware of the high pendency, courts view the issue of pre-trial custody not merely as one of preventing an accused from tampering with evidence or absconding, but as a matter of doing justice by the victim of a crime. Because of this, today it is part of standard practice to consider the "gravity" of offences while deciding the issue of bail. At the same time, courts are encouraged not to dwell too much on the probity of these allegations at the pre-trial stage. Ultimately then, we are back to square one, with police arrests sanctified on allegations and little else.

Not only this, but in financial fraud matters, it has become increasingly common for courts to require that the accused deposit a chunk of the alleged criminal gains in order to be released on bail. In their quest to do justice by the consumers, it somehow stops mattering to courts that they are effectively decimating the presumption of innocence by demanding a pound of flesh from the accused on the strength of unproven allegations. In this manner, even the courts end up reinforcing the motivation that consumers might have to portray their disputes as criminal cases. All the while decrying other such instances as an "abuse of process". The absurdity is, indeed, remarkable.

Besides eroding the presumption of innocence theoretically guaranteed to all persons, the unabated commodification of the criminal process also promotes corruption. Basically, the system is holding out the promise of a fast-tracked dispute resolution model through the police. But there are just not that many police officers out there, to cater to the demand for their services. This is not only the case for India but anywhere in the world. This demand-supply mismatch means that persons are willing to give a higher price for such services, and the police have to exercise some discretion on what cases they choose to investigate. Since there is minimal transparency in this context, how do we know that the police are picking the cases where they are needed most, and not based on some arbitrary factors? Such an environment fosters corruption and gravely damages this valuable public service.   

Conclusion: An Identity Crisis

Most often, this blog adopts the perspective of a defendant, or that of an outside observer critiquing the law. In adopting such a consumer-centric lens, my objective was to present the criminal process — comprising both the police and courts — from another perspective. In this context, the law is a service for people to make use of. Looking at the criminal process through this lens, its many facets appear in a different light. The reviling over-breadth of the criminal law becomes a welcome feature, because it gives litigants more choice in how to frame their disputes in law. Similarly, in this context, the wide powers of arrest with police officers are not only abhorrent but also desirable, as they help exert pressure to get persons at the negotiating table and resolve disputes quicker. 

This perspective helps to understand the disappearing presumption of innocence, as today even courts seem to be on board with a notion of using the pre-trial stage to dispense generous dollops of justice without having proof of guilt or innocence. But, since our system is not designed to sponsor this "pre-trial justice" and remains committed, at least in theory, to ideas like the presumption of innocence, this commodification of the criminal process creates serious contradictions. Today, it is justifiable to keep someone in custody for "not-cooperating" with investigation. It is legally proper to keep persons in jail for refusing to simply bend over and accept the allegations against them, and remedy whatever alleged wrongs have been suffered by a complainant. But all of this is in the shade of a fundamental right against compelled self-incrimination. 

Solving this identity crisis in the criminal process is a task beyond our fractious legislatures. What they can do, is take steps to limit the existing systemic incentives for consumers to file police cases and trigger the criminal process only to exert pressure on the other side. Hopefully, tighter and more transparent regulation can help restore some clarity on the larger values that our criminal process subscribes to as well.

Two Wrongs Don't Make a Right: The Supreme Court's Reading Down of Mohan Lal

A few weeks ago, I had mentioned the possibility of the Supreme Court changing the rule it had laid down in Mohan Lal v. State of Punjab [AIR 2018 SC 3853] [Discussed here]. That possibility became a reality when a Three Justices' Bench handed down its decision in Varinder Kumar v. State of Himachal Pradesh [Crl. Appeal No. 2450 of 2010, decided on 11.02.2019], and specifically "read down" the Mohan Lal decision as not applicable to cases pending at the time of that judgment.

Recap: Mohan Lal, and Impartiality in Investigations

The issue decided in Mohan Lal was a very precise one: can the same police officer who served as an informer for a case continue as the investigating officer? Take the following example: Officer X is working undercover and raids a room with five people. All of them flee, and only one is caught. Who should investigate the incident? There are reasons to suggest Officer X should continue: she was at the scene and knows the case the best, presumably, and there are not many police officers out there anyway. But, there are also strong reasons for Officer X to not continue as the investigating officer. Being there at the scene, not only is she a part of the story, but also has her own version of the story. Can she be trusted to disregard her recollection of events when it conflicts with other information revealed through the investigation? Unfortunately, there will continue to remain lingering doubts over the fairness of any investigation Officer X conducts in the case.

This conflict between realities of investigations and the lingering problem of fairness is what the Three Justices' Bench of the Supreme Court sought to address in Mohan Lal. It rightly identified a conflict between earlier decisions of the Court on the point: some benches had held that an investigation conducted by the same officer would be unfair and illegal, but others had held that there was no grounds for complaint unless there was some perceptible bias shown in the conduct of the officer. Mohan Lal decided this issue by agreeing that the fairness issue was paramount, and held that there was no need to show any perceptible bias. Not only this, it held that any investigation done by the same officer was unconstitutional, and could vitiate the entire trial that follows. As the decision did not specify otherwise, this rule would apply to all pending cases and appeals as well, and threw them all into doubt.

The Problems with Mohan Lal: Too Bitter a Pill 

A decision that says fair investigations are a constitutional right sounds amazing, and few would have any qualms about this aspect of Mohan Lal. The problems with the case — as discussed at length in an earlier post — were in the remedies it prescribed for violations of this right. The case held that an unfair investigation vitiated any subsequent proceedings, including a trial. Problematically, there was no clarity on (i) the kinds of unfairness that can lead to throwing out subsequent proceedings, and (ii) when can the individual seek these remedies (i.e., could this be done during a pending trial or only at the appellate stage).

The problem with remedies such as the one prescribed in Mohan Lal is that they encourage what has been called "remedial deterrence". The criticism that fundamentally good prosecutions are being thrown out on technical grounds stings, and deters courts from finding breaches of the right to avoid using these awesome remedies. In the past few weeks, this was amply on display in, first, the decision in Mukesh Singh (17.01.2019), and now Varinder Kumar (11.02.2019). In fact, the latter invokes this issue expressly, where Sinha, J. expressly suggests that a fundamentally good prosecution against a notorious offender will be thrown out because of a technicality unless the Mohan Lal rule is watered down. This is what it did, only, it did not do so with much grace. 

Varinder Kumar and the perils of a Balancing Approach

The Bench in Varinder Kumar thought a solution to the bitterness of Mohan Lal was to limit it as a rule that did not apply to pending cases. All that was needed to achieve this is a line saying "Mohan Lal does not have retrospective effect". But the decision goes further and explains why this needs to be done, and in that process, undoes whatever credit it deserved.

The analysis of this issue begins from Paragraph 9. At Paragraph 11, Sinha, J. very fairly notes that in Mohan Lal the Court did not go ahead and fully develop the remedial tool it had crafted because the need for such an exercise was obviated by the facts. Through Paragraphs 12 till 18, the opinion takes up that mantle and begins crafting the remedy. In this effort, the decision roots itself in the logic of "balancing" the rights of an accused with other stakeholders in the system. The broad argument is straightforward: Mohan Lal disturbed the ideal balance and allowed the system to "veer exclusively to the benefit of the offender", and "societal interest therefore mandates that [the rule] cannot be allowed to become a springboard ... for acquittal ... irrespective of all other considerations". 

The notion of balancing rights has frequently come to the fore when the Supreme Court has discussed victims' rights — most recently in Mallikarjun where it expanded the contours of a victim's right to appeal. Here, the active victim is replaced by the passive society, whose interests are jeopardised by the release of persons like Varinder Kumar on supposed technical flaws in the prosecution. But if you chase this argument, aren't persons like Varinder Kumar also part of that same society, and is it not in society's interests to prevent flawed and unfair investigations? Undoubtedly so. Adherence to proper procedure is not a matter of "benefit" to an offender, or creating a "springboard" for acquittals. It is a commitment of a law-abiding society, that the State's power will be wielded in a particular manner, without looking at who is the target, and is the only real guarantee of personal liberty that exists. 

Thus, while a balancing logic might — and I stress on might — be appropriate in context of a victim's right of appeal, it is thoroughly out of place when at issue is the procedure for wielding state power. In a similar vein, Mathew, J. in Prabhu Dayal Deorah v. District Magistrate [AIR 1974 SC 183] lamented the tendency to sacrifice procedural law while prosecuting "anti-social activities". The observations really do deserve being quoted in full:

The facts of the cases might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measure to secure the maintenance of supplies and services essential to the community has been frustrated by what is popularly called a technical error. We say, and we think it is necessary to repeat. that the gravity of the evil to the community resulting from anti- social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. ... The need today for maintenance of supplies and services essential to the community cannot be over-emphasised. There will be no social security without maintenance of adequate supplies and services essential to the community. But social security is not the only goal of a good society. There are other values in a society. Our country is taking singular pride in the democratic ideals enshrined in its Constitution and the most cherished of these ideals is personal liberty. It would indeed be ironic if, in. the name of social security, we would sanction the subversion of this liberty. We do not pause to consider whether social security is more precious than personal liberty in the scale of values, for, any judgment as regards that would be but a value judgment on which opinions might differ. But whatever be its impact on the maintenance of supplies and services essential to the community,'when a certain procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it our duty to see that that procedure is rigorously observed, however strange this might sound to some ears. [Emphasis mine]

Conclusion: Saving Criminal Procedure from the Courts

Most observers would have said that the absoluteness of Mohan Lal will be tempered to make way for a more practical remedy, and Varinder Kumar takes some steps in that direction. Whether this is the last step is something only time will tell, though I would suggest otherwise — remember that the reference made in the earlier case of Mukesh Singh is pending. In this respect, then, Varinder Kumar is frankly unremarkable.

Perhaps the balancing approach of the opinion is also unsurprising. It relies upon observations made by a different Bench of the Supreme Court in Sonu v. State of Haryana [(2017) 8 SCC 570], where the issue was limiting retrospective operation of another procedural rule arising a judicial decision: The necessity of Section 65-B Certificates for admitting electronic evidence as held in P.V. Anvar v. P.K. Basheer [(2014) 10 SCC 473] [For discussions, see here]. On that occasion as well, the Bench lamented about the fear of letting criminals go on technicalities, and posing procedure as an honour among thieves. 

While it may be unsurprising, this repeated invocation of a balancing act is alarming. By subscribing to this argument of fear, where adherence to procedural law in establishing guilt is belittled as a mere "technicality", and nebulous societal interests are used to balance away what are perceived as "benefits" to an accused, the Supreme Court is not only betraying the Constitution but unknowingly setting a body of precedent that might return to come back and haunt all of us one day. 

Guest Post: The Contours of a Victim's Right to Appeal

(I am happy to present a Guest Post by Prashasthi Bhat and Arshdeep Singh, both fourth year students in the B.A. LL.B. (Hons.) program at National Law University, Delhi)

The statutory framework of the Indian criminal process did not always cater well to victims of crime. Originally, the Criminal Procedure Code 1973 [Cr.P.C.] provided that victims (i) could ask for initiation of police investigations [Section 156(3), Cr.P.C]; (ii) could file appeals in cases instituted on private complaints if they were the complainants, if leave to do so was granted by the court [Section 378(4), Cr.P.C.]; (iii) could challenge orders through revision petitions or by invoking the inherent powers of High Courts [Sections 397, 482, Cr.P.C.]. This narrow perspective changed dramatically with amendments in 2008 that inserted a slew of victims rights. One of these - the right of victims to file appeals - is the subject of this post. We discuss the recent decision by a Three Justices’ Bench of the Supreme Court in Mallikarjun Kodagali v. State of Karnataka [(2018) SCC OnLine SC 1914, ‘Mallikarjun’] and argue that the majority opinion fails to strike the correct balance between interests of victims and defendants in the criminal process.

The New Victims' Right to Appeal

As mentioned above, before 2008 victims could pursue appeals only in complaint cases, and where they were the complainants. But as the 2008 amendments gave a much broader definition for victim [Section 2(wa), Cr.P.C.], this original right became quite limited. How did the law cater to the victims who were not complainants? A new proviso was inserted in Section 372, Cr.P.C. to confer upon a victim the right to prefer an appeal against acquittal, conviction for a lesser offence and/or awarding inadequate compensation. 

However, it was unclear whether the victim’s right to appeal was dependent on the date of judgment of the trial court or the date of commission of the alleged offence. In other words, should the alleged offence have taken place after 31.12.2009 (the date when the amendment came into effect), or should the judgment of the trial court have been passed after 31.12.2009? Another uncertainty was whether the requirement of obtaining leave to appeal from the High Court - imposed on the State for all appeals against acquittals under Section 378(3), Cr.P.C. and also on complainants as mentioned above - was dispensed with for victims. The question had in fact been already addressed by a Two Justices’ Bench of the Supreme Court in Satya Pal Singh v. State of Madhya Pradesh & Ors [(2015) 15 SCC 613, ‘Satya Pal’] where the Court held that a victim would require prior leave from the High Court for an appeal against acquittal, but uncertainty had crept in owing to differing interpretations by High Courts. These two issues were at the heart of Mallikarjun, which we turn to next. 

The Ruling in Mallikarjun

In Mallikarjun, the High Court of Karnataka had dismissed the appellant’s appeal as not maintainable because the date of commission of the alleged offence was prior to 31.12.2009 (the acquittal was dated 28.10.2013). The majority judgment authored by Lokur J., on behalf of himself and Nazeer J. sought to confer "realistic, liberal, progressive" interpretation to Section 372 and fruitfully recognise the victim's right to appeal. In doing so, the majority opinion laid down two important points. First, that the relevant date for determining the maintainability of appeal was the date of the trial court judgment as opposed to any other date such as the date of commission of the offence or the date of registration of the FIR. Second, that there is no procedural fetter placed on the victim’s right under the proviso to Section 372, Cr.P.C., thus marking a shift from the Court’s earlier position in Satya Pal to hold that victims did not need to seek prior leave of the High Court before filing an appeal. 

Gupta J., agreed with the first conclusion, but filed a dissent on the second issue of victims requiring prior leave to appeal. He held that an appeal against acquittal by the victim would require leave from the High Court. This was because the presumption of innocence of an accused is further strengthened by an order of acquittal, and requiring prior leave to appeal adequately respected this principle by allowing High Courts to prima facie satisfy themselves that only if arguable points are involved should the presumption of innocence be disturbed. In this, he relied on Supreme Court precedent, and also plain logic: there was a reason why every other kind of appeal against acquittal had required prior leave. Gupta, J. thus supported a combined reading of Sections 378(3), 378(4) and 372, Cr.P.C. which for him unambiguously warranted for a similar requirement to apply in cases of victims filing appeals against acquittals.

The Balancing Act

We argue that, on the issue of requiring prior leave to appeal, the majority opinion in Mallikarjun is based on an incorrect and incoherent reading of the decision in Satya Pal and is contrary to the settled principles of criminal law jurisprudence. The Court in Satya Pal had held that the full bench decision of the Delhi High Court in Ram Phal v. State [(2015) SCC OnLine Del 9802] was incorrect in holding that there was no need to seek leave of the High Court when preferring an appeal under the proviso to Section 372, Cr.P.C. Rather than solely focus on the proviso, the Court turned to the clear text of Section 372 that no appeal could be filed “except as provided for by this Code”. This meant that the procedure under Section 378, Cr.P.C. - the provision governing appeals against acquittals - would also have to be followed when victims filed such appeals. The majority suggests that it is differentiating and not overruling Satya Pal, but it is unclear how this has been done.

Further, what the majority opinion overlooks and the dissenting opinion addresses, is that offences are considered to be harms against the State, and it is still the State that nominally represents crime victims. Therefore, the procedure to appeal against an acquittal should not be different for the State and the victim. As articulated in the dissenting opinion, the concept of leave to appeal ensures that the High Courts can filter appeals to safeguard to presumption of innocence by ensuring that persons acquitted at trial are not dragged to face rigours of an appeal as a matter of course. By taking away this requirement for all appeals against acquittals where preferred by victims of crime, the majority opinion disturbs the delicate balance. 

Conclusion

The Court in Mallikarjun correctly settled the conflicting positions of various High Courts as to the relevant date for the victim’s right to appeal to accrue. However, in deciding the issue of requiring leave to appeal, we argue that the Court did not reach the correct outcome. Although there is a need for more participation by victims in the criminal process, the majority opinion is incorrect to the extent that prior leave to appeal is not required for appeals against acquittals filed by victims under the proviso to Section 372, Cr.P.C. The dissenting opinion offers a more holistic appreciation of the problem, and offers what we think was the correct solution to the problem of maintaining that delicate balance between the interests of a victim and the accused in the criminal process.