The Criminal Codes are Dead; Long Live the Criminal Codes

[This is a long post]

Prologue

For over a century, the foundations of the Indian criminal process have been identified by its three codes: the Indian Penal Code of 1860 [IPC], the Criminal Procedure Code of 1973 [Cr.P.C.], and the Indian Evidence Act of 1872 [IEA]. Not anymore. Henceforth, unless some last minute surprise is sprung upon us, the three codes are to be replaced by the Bharatiya Nyaya Sanhita [BNS], the Bharatiya Nagarik Suraksha Sanhita [BNSS] and the Bharatiya Sakshya Adhiniyam [BSA] of 2023.

There are many questions that come to mind when considering this development. Perhaps many of them combine into a single, big, question: Why? Was the existing set of laws problematic, and if so, then in what way was it problematic? Were the Codes failing to strike a just, fair, and reasonable approach to questions on defining and punishing crime? Were the structures proving to be outmoded given the fast technological pace of society? Or, all of the above?

None of these questions have uniform answers, or objective positions. One can only speak for oneself. In that regard, I would unhesitatingly state that the 19th Century Colonial Codes (or their 20th century avatar in case of the Cr.P.C.] were deeply problematic and required a brutal re-examination. A comprehensive study of how courts had interpreted the clauses across these Codes was required to update the statutory position. The archaic language of the IPC required revisiting, its punishments needed streamlining, and the general law of crime required to be harmonised with the burgeoning field of laws defining specific crimes. Far more important was the need to tear down the Cr.P.C. and IEA and rebuild again to solve what the most pressing concerns of the criminal process, which have been rotting it from the core since independence (and even before): delays, significant pre-trial incarceration rates, and a complete surrender of personal liberty and privacy to batons and lathis wielded by the police.

The fainthearted would be pleased to note that none of this has come to pass. The Codes are dead, but they gloriously live on in the BNS, BNSS, and BSA. What we have just witnessed is a grand sequence where the villain sheds an exoskeleton to assume a more monstrous form appropriate with the times. In other words, the new Sanhitas do not offer a new perspective on administering the weighty notion of 'criminal justice' for an independent, democratic, republic as we were promised, but merely offer a shiny new vessel to sustain the beating heart of colonial ideas that the Codes represented. 

With that sombre prologue out of the way, it is time to look at what appears to be in store for us.

Repeal and Savings

Now that the new laws are almost here, arguably most important is the question is what happens to all that was done under the old laws? When it comes to offences themselves, the constitutional prohibition of any criminal liability retrospectively allows us to assume that the new BNS offences (deceitful sexual acts; terrorism; organised crime, etc.) will not apply to acts done on a date prior to the date when the BNS is brought into force (whenever that is). However, at the same time experience has taught us that things are never straightforward when it comes to interpreting law. The iron-clad prohibition of Article 20(1) may be done away where offences are continuous, and so we may still be presented with situations where prosecutions are brought under the BNS for acts which began prior to the date of its enactment but continued subsequently to create an unbroken chain of conduct. In respect of acts that were offences under the IPC but are not covered by the BNS, even as the BNS repeals the IPC, nothing in the BNS overrides application of Section 6 of the colonial General Clauses Act 1897 which ensures that such prosecutions do not automatically lapse. So while there is no Section 124-A IPC prosecuting sedition, or Section 377 IPC prosecuting unnatural sexual acts, existing cases would not die a natural death. Similarly, till such time as other laws are amended to erase all presence of the colonial IPC from the statute books, we would have to keep referring to Sections 6 and 6A of the General Clauses Act to make sense of how will such references to the IPC be read [think the PMLA schedule, for instance].

When it comes to the Cr.P.C. and IEA, the general rule being created with repeal is that the entry of the BNSS / BSA will not disturb pending investigations, inquiries, trials, or appeals. However there will certainly be cracks which lawyers will explore to try and make use of. For instance, what happens to a case where the police filed a closure report and it has been accepted, or a case where proceedings have been terminated prior to the enforcement of the BNSS, and the aggrieved party now wishes to revive the litigation. What about cases where the police registers a fresh FIR invoking slightly different offences to now make use of the broader remit of police custody? Would these count as 'pending' cases? Or, what happens for a case that is closed for non-appearance of a person who was declared a proclaimed offender - would it be possible to revive such a case using the new BNSS clauses allowing for trials in absentia? These are only the easy examples, and I am sure more tricky ones will come up in the next few years. Courts will want to turn to the years after the 1973 Code was introduced in 1974 to see how some of these issues were dealt with back then (although many of those dealt with retrospective application of the new Cr.P.C. clauses that enhanced the sphere of liberty, rather than truncate it further).    

Even though the BNSS declares that pending cases / investigations / inquiries will be governed by the Cr.P.C., this is not going to prevent serious changes to their working because the BNSS carries out serious changes to the administrative structures of our courts. I refer to the abolition of the cadre of metropolitan magistrates altogether in the BNSS, without any provisions accounting for how areas where this system is in vogue (Delhi, for instance) will carry out the transition to now erect a new system with Chief Judicial Magistrates, First Class Magistrates, and Second Class Magistrates. One wonders how this transformation will be carried out, and whether it will give rise to service law related issues if metropolitan magistrates — who are at par with First Class Magistrates under Cr.P.C. — will be divided up into the two categories. 

Changes to the Criminal Process

For most practising lawyers, what really matters is whether, and how, the rules of the criminal process are being altered by the introduction of the new laws. This post looks at some important changes in this regard that have been introduced. Note, however, that it does not look at specific issues that are going to arise because of, say, the introduction of offences in the BNS that are at present criminalised through special statutes with special procedural regimes. Nor does it look at specific issues arising within the realm of preventive powers of police and magistrates.  

Arrest, Custody, and Bail

There are small tweaks in the arrest provisions of the BNSS from the Cr.P.C. regime, besides the sorry re-introduction of handcuffing. There is hardly any change when it comes to the issue of granting bail in non-bailable cases — either in terms of the guiding judicial discretion in this process, or by reducing the number of non-bailable and cognizable offences. There is rather slight confusion introduced because of the tweaks between the first and final versions of the BNSS. The key changes here are, firstly, to the legal regime on custody post arrest during an investigation, and secondly to granting default bail where a person has spent a significant time in prison as an undertrial.

On the former, the BNSS appears to have done away with the limits on police custody being restricted to the first fifteen days after arrest to allow it within a period of the first forty or first sixty days after arrest. What is more uncertain is whether the BNSS has also done away with the maximum limit on police custody being fifteen days. If so, then it would signal a significant shift in the legal position which has had the duration of police custody capped on fifteen days since even prior to the 1973 Code. The wording of the BNSS clauses would make it seem that the absence of 'police' custody in Section 187(2) of the BNSS is not deliberate but an inadvertent omission. It would, nevertheless, be clarified only after some person suffers the consequences, and courts rule on the issue. Unless parliament acts proactively - which as the passage of the BNSS shows us, it certainly can.  

Why restrict police custody, and what is the consequence of removing the shackles so to speak? A colonial and post-colonial learning about the administration of criminal law in India has been that the police resort to unfair practices to solve a case. This involves extracting pressure on people in their custody to make a false statement. Enhancing the period to take police custody proportionately raises this risk, especially as this enhancement is being conceived of without any increase in the rights of the detained person. Placing a limit on police custody as being available only in the first fifteen days furthers a separate goal of ensuring that the police work with promptitude. Removing this limit takes away any incentive for the police to try and solve cases quickly. This would mean that more and more investigations only end when nearing the upper limit of 60 or 90 days — cementing the perverted turn over the last fifty years (and manifesting the fears of legislators) where ceilings that had been installed by the 1973 Code became default periods for the investigation to complete.        

The extension of police custody also has an impact on bail. In practice, courts are reluctant to grant bail if it appears that custodial detention is required to secure some investigative purpose. Most lawyers thus do advise clients to wait till the first fifteen days expire, or police say that they do not require further custody. Now, police will have a card up their sleeve to invoke custodial detention at any stage during the period of investigation, creating a practical difficulty for courts who had become used to working a certain way. It would require re-programming how courts view these claims if we are to ensure that two / three months without bail do not become default periods of incarceration in all cases.  

In respect of bail, one must mention the lip-service paid to the Supreme Court's endeavours in Satender Antil. The BNSS changes provisions that were being interpreted in some states as mandatorily requiring an arrest before the chargesheet was filed in court, which was what started the litigation in Antil. However, as we know, Antil went far and beyond that to suggest policies on guiding judicial discretion for bail. None of that has made its way into the statute. What the BNSS does do is bring in significant changes in respect of the provisions on default bail. Currently, Section 436A of the Cr.P.C. carried a rule where a person was entitled to bail if she had spent a time in custody that was equivalent to half the maximum possible punishment for a crime. Lets be clear — 436A was not a ringing endorsement to liberty, but a damning hang-your-head-in-shame indictment of the legal process. Section 479, BNSS reduces this period undergone to one-third of the maximum imprisonment but only for 'first-time offenders' [not 'offenders' for undertrials]. But what one hand giveth, the other taketh far more. Section 479 carries a new explanation which excludes persons against whom there is an "investigation, inquiry, or trial in more than one offence or in multiple cases". Make no mistake, this is the overwhelming majority of persons who are ensnared by the system. Practically every FIR has more than offence invoked if you add conspiracy to the mix. Thus, in other words, the BNSS renders 436-A practically redundant, and replaces it with a rule that such undertrials can be released if they have already served out the maximum possible term of imprisonment.   

Investigations and Inquiries

The big-ticket declamations on the floor of the House and outside were the introduction of technology in how police conduct investigations and inquiries. A close look at the BNSS reveals the hollowness of the claim. The bogey is made apparent by the extension for police custody remands and confirms that what the BNSS does is continue how investigations have been (and arguably makes them poorer by encouraging police to rely on custodial interrogations more) whilst using technological means to smooth things over at times. For instance, allowing statements to be recorded over video by police during investigations, or by recording the conduct of a search. Again, this shows that the BNSS does not change how investigations are being done. If anything, this can add to troubles later, because there will be doubts during trial as to reliability of what has been recorded as standardised practices will not easily emerge given vast disparities of funding for police stations across India. A real commitment to introducing technology would mean the introduction of provisions in the BNSS that regulate the practice of agencies when it comes to seizing our personal devices and rummaging through them on the pretext of an investigation to safeguard privacy, but of course the BNSS is silent on all that while simply expanding the scope of what material can agencies demand persons to give and include electronic devices / electronic communications [Section 94, BNSS].   

Another noteworthy addition is a set of provisions allowing for seizure of property. This is Sections 115 to 122 of the BNSS. This introduces new powers for police officers to effect seizures and even provisional attachments of property [Section 117] and allows for forfeitures of property where a court concludes that these are proceeds of crime even though the trial has not concluded, without specifying any rights for the aggrieved to challenge orders or specify what happens if the trial results in an acquittal. In this fashion, the BNSS may have impliedly repealed the Criminal Law (Amendment) Ordinance of 1944 and replaced it with the broadest civil forfeiture regime ever seen in Indian law, that is modelled on provisions tried by certain states in context of corruption crimes. Provisions which, though deeply problematic, were blessed by the Supreme Court in 2015 [Both the 1944 Ordinance and the 2015 judgment have been discussed on the Blog and elsewhere]. 

There are some crucial new provisions on registration of cases. Practices that had been in vogue for years i.e. the registration of FIRs online and the registration of 'Zero FIRs', are now given statutory force with Section 173 of the BNSS. At the same time, the BNSS dilutes and further muddles the legal position on the very concept of registering an FIR. It gives statutory backing to the police conducting preliminary inquiries for a category of cases (punishable for three years but less than seven years) and determining if a 'prima facie' case exists. If it does exist, then they proceed to investigate. But if not, then what? Logically, they do not investigate. Which then begs the question, what about all other cases — would they be lodged on the basis of some non-statutory inquiry showing existence of a prima facie case? What does that mean for the idea that the police must register FIRs? Again, it is not that the BNSS drafters were helped by the Supreme Court's take on these issues in Lalita Kumari either [critiqued on the Blog]. But what they have done is only make things worse.

There are even more innovations when it comes to registration of cases against certain persons — public servants. The final version of the BNSS does away with some provisions in the earlier draft published in August, but it retains a mighty set of new protections in Section 175 insulating public servants from police investigations being directed by magistrates on the basis of private complaints. This is reiterated when it comes to private complaints filed against public servants directly in court [Section 223] Here, the BNSS has taken a step on an issue which was pending before the Supreme Court after its M.K. Aiyappa decision which had sought to introduce such a protection was referred to a larger bench. It has gone above and beyond even what M.K. Aiyappa envisaged by giving the prospective accused a right to be heard before start of a case. In a setup where prior sanction was already required to instituting prosecutions, introducing this rule only blunts the idea of holding those in power accountable to the public even further. 

Lastly, in respect of completing investigations, a notable addition has been the introduction of some time limit within which further investigation must be completed unless extended by courts [Section 193(9)]. This is a useful addition, which at the same time makes one wonder why not introduce such a clause for completing investigations generally. The answer, as most lawyers know, is because that time limit has long since been seen in Section 167 Cr.P.C. [now 187 BNSS] which directs release on bail unless investigations conclude within 60 / 90 days, making 60 / 90 days the usual time for investigations to conclude. Again, this was, and is a gross misreading of what the law required — 60 / 90 days was the upper limit, which has become the usual course of time for investigations to conclude only because police know they must file something to avoid release on bail. Furthermore, Section 193 requires some communication to victims about the progress of investigations, which is hailed as some revolutionary step since this was absent in the old Section 173 Cr.P.C. In reality, it is a cop-out, and a failure to incorporate mandates of the Supreme Court which require copies of the Chargesheet (or Closure Report) filed by police with victims so that they can pursue their remedies. Adding the requirement to share copies at a post cognizance stage, as the BNSS does, worsens the position of victims by only entitling them to copies where chargesheets are filed but not allowing them to clearly contest the failure of police to do proper investigations by filing protest petitions. 

Trials and Appeals

A case will end in three years under the BNSS was the battle-cry. Well, so what is the response? NCRB data shows that many cases already end within three years. It would be quite something if all cases will end within three years was the claim on the floor of the House. Which, obviously, it was not. And cannot be either, because like all other parts of the BNSS, its parts on governing trials and appeals also retain the beating heart of the Cr.P.C. process while tweaking a few things here and there.

The sales-pitch changes here were time limits and introducing provisions for conducting trial even when an accused obstructs the progress of a trial by refusing to show up, where currently such cases would have to be kept in cold storage as there is nobody to condemn. Let's take both of these in turn. The only time limits are on conducting arguments on charge—for sessions triable and warrant triable cases instituted on police reports, but not warrant triable cases on complaint or summons triable cases—and on pronouncing judgment. There are no time limits on conducting evidence. This begs the question "Was argument on charge or pronouncement of judgment a stage which took so much time that placing time limits on it will solve delay?" The answer, obviously, is no. Arguments on charge in most cases do not take long. Similarly, judgments are pronounced with promptitude and where they cannot be so pronounced the Cr.P.C. allows for a court to release an accused on bail. Where it does take time for courts to hear such arguments or write judgments is where state agencies register FIRs against 40 people based across the country on some amorphous notions of them being involved in a 'larger conspiracy' and file Chargesheets with documents that run into ten thousand pages. And, make no mistake, since the BNSS does not change how such cases are investigated, arguments on charge in 'larger conspiracy' cases that the agencies love will continue to take much longer to finish than the few months that the BNSS has in mind, as will writing judgments at the end of such trials. 

In short, the marginal gains by introducing these time limits are imaginary at best. Especially if we take a look beyond cases instituted on police reports to cases instituted upon complaints. Here, fresh avenues for delay have been created by giving accused persons a right to be heard where previously none existed. Section 223 prohibits taking cognizance on any complaint without giving such an opportunity, and Section 274 provides a fresh right of hearing before framing notice / charge in summons triable cases. Of course, what seems a provision for delay to the victim will be heralded as a boon by defence lawyers to nip false cases in the bud. But, ultimately, it is unquestionable that such cases will take longer under the BNSS. 

Studies conducted by the government and judiciary itself have shown that the real stage which takes time in a case is recording evidence. Time limits or schedules to finish this process are not introduced. What the BNSS does is introduce a peculiar provision [Section 336] which allows for recording evidence of 'successors in office' when the original government officer who prepared a report is unavailable. This even includes police officers. The provision has been retained in the final version despite criticism by the Select Committee; and, naturally, the ceremonial debate on the floor of the house did not explain why this is the case. It pains me to say this, but in a bid to rush reform, the government appears to have sponsored a move that would encourage acquittals by asking that prosecution leads incompetent evidence of witnesses who are not the authors of documents to sustain its charge. 

Which brings us to the second major reform under Section 356 of the BNSS. Conducting trials against a person who has absconded is, thankfully, not a bludgeon. It appears to create a procedure that needs some application of mind before a court proceeds on that path, and allows for the decision to be revisited once an accused does show up either voluntarily or after being apprehended. I say 'appear' because it is unclear exactly how the procedure will operate. What is meant by giving the accused an opportunity to 'examine' evidence? What impact will conducting trials on mobile phones have on the reliability of what has been recorded? What will be a constitutionally compliant reading of sub-clause (8) which allows extending the clause to any absconder by notification? A well-drafted code would not leave all this up for grabs. 

Execution of Sentences

Despite the Select Committee recommending some more clarity on community service as punishment, no such clarity came in the final version of the BNS or BNSS that have now been passed except for helpfully telling us that community service is punishment that benefits the community [Section 23, BNSS]. So much for a new dawn.

There are two other important developments in respect of the execution of sentences which I would want to mention here. First, we have legislative sanction for imposing solitary confinement [Sections 11, 12, BNS], allowing it to be granted in any case where rigorous imprisonment is imposed for a sentence of six months or more in prison. In other words, practically any convict may be subject to solitary confinement. One wonders if this is in consonance with Article 21 and its reformative ideals. 

Second, we have a procedure outlined for filing mercy petitions [Section 472 Cr.P.C.]. In theory it is not a bad idea as it now allows every convict to know that such a right exists and how it is to be availed. The devil, as always, lies in the details. There are unnecessary restrictions on who may file such a plea on behalf of the convict. More potentially problematic is the idea that there is a time limit of thirty days on filing such plea based on when the convict is informed by jail authorities of the rejection / dismissal of her petition by court. That the statute does not clarify that the intimation must be clearly recorded in writing and must be communicated separately to family members / counsel is startling, considering what is at stake and knowing that there will be precious time lost in the convict informing the persons on the outside who will study the order and frame the plea. Or, perhaps it is not so startling, given that the statute allows for practically all convicts to be subjected to solitary confinement for up to a week if not more.

Summing Up: Little Reform Amidst much Posturing?

Many commentators found it difficult to describe a system comprising of the existing trifecta of the IPC, Cr.P.C., and IEA as a system of 'criminal justice'. It is quite unlikely that they will find it any easier to do so with the BNS, BNSS and BSA triumvirate that will soon be upon us. There is little reform in these pages amidst the posturing, if we stick to the classical notion of reform as a measure which seeks to improve the lot of the individual. Rather, in sync with the communitarian ideologies in vogue today, the emphasis of these laws is to strengthen the already powerful state by enhancing police powers while reducing the scope for liberty. 

Such an approach is expected from a government which places duties before rights, demands that citizens do not question but obey, and treats all those who do question as potential threats to the stability of society and thus wants as much power as possible to adequately deal with the threats to restore stability. To use a now infamous analogy from another era in India's past here, these are laws to ensure that the trains run on time.    

Worryingly enough, once the dust settles, I wonder if the very fact that the BNS, BNSS, and BSA do not attempt any meaningful reform will ensure that they manage to embed themselves within the system without evoking fervent protests from various quarters. The baseline for acceptable incursions by the state into a citizen's life and personal liberty having been lowered even further will probably stop mattering after a while, since it was not very high to start with.

Guest Post: Section 160, Arrest, and the Calcutta High Court Order in Sutapa Adhikari

(This is guest post by Archit Sinha)

The Calcutta High Court, on June 8, 2023, restrained the state police from issuing notices to the accused in connection with Contai Police Station Case No. 46 of 2022, dated 31.01.2022. The order was passed in the case of Sutapa Adhikari and Ors. v. The State of West Bengal & Anr. The impugned notices were issued under section 160 of the Code of Criminal Procedure, 1973 (“The Code”).

The High Court went on to quash these. In an unprecedented move, it went on to add two incongruous conditions for subsequent notices and arrests. It provided that the notices under 160 may be issued but if actual presence is required, a 72-hour notice was a must. Secondly, it provided that if such persons were to be investigated, they will receive a show cause notice and will not be arrested for 10 days. Furthermore, it frowned on the practice of issuing 160 notices followed by arrests and considered it to be a misuse of the section. It held that “the investigation agency cannot use section 160 of the Cr.P.C as an oppressive measure against anyone.”

This order overlooks a Supreme Court judgement on the scope of sections 160, 161, and 162:  Nandini Satpathy v. Dani (P.L.) And Anr. This post aims to highlight the holding from Nandini Satpathy on Sections 160-162 of the Code and point out that the Calcutta High Court order is per incuriam to the extent that an accused may be issued a notice under Sections 160, 161. And any arrests which may follow, if compliant with Sections 41 and 46 of The Code, are legal.

Scope of Sections 160, 161, and 162: Nandini Satpathy & the Accused/Witness

In Nandini Satpathy, the Supreme Court delineated the scope of Sections 160 and 161 of the Code. The question framed by the Court was the following:

“[W]hether the police have power under Sections 160 and 161 of the Cr. P.C. to question a person who, then was or, in the future may incarnate as, an accused person”

The Court answered in the affirmative while citing a Privy Council decision in Pakala Narayana Swami v. Emperor. The reasoning behind the order was the purported legislative intent behind the sections read with a plain interpretation of the words. “Free disclosure of words” and “protect persons from making such disclosures” were notable in the Privy Council decision in construing Sections 160 and 161. It held that the scope of 161 was broad enough to be issued to an accused.

In Mahabir Mandal v. State of Bihar, the Supreme Court affirmed that “any person” includes an accused under Section 160 of the Code. By necessary implication, it held, that an accused will be “acquainted with the facts” of the crime. Such understanding may or may not come out to be true but it doesn’t vitiate the application of Sections 160-161. Regarding the marginal note of Section 160 to the extent that it mentions “witness”, it was said that “the marginal note [merely] clears ambiguity but does not control meaning.”

As mentioned, in Pakala Narayana Swami, such an interpretation of 160-161 is backed by the purported legislative intent gathered from a plain reading of the sections. These sections are intended to serve as a guarantee for free disclosure of information and to protect the person making such disclosure from the supposed unreliability of such testimony. This protection is provided for in the form of a bar on its use as evidence in trial as given in Section 162 of the Code. This implies 2 things – (a) and accused may be “a witness” and “acquainted with the facts of the case”, and (b) such statements by virtue of 162 cannot be the basis of conviction of the person making them. Though arrest is covered by neither of the 2 propositions, there is no express or implied bar on it either. The decision to arrest is a prerogative of the investigating officer, who, given the circumstances, is in the best position to make this decision. There obviously are possibilities of misuse but this does not mean taking this power away from the IO.

The effect of calling an accused under 160 can lead to a legal arrest in law. This does not mean that such an exercise is an abuse of process. In the present case, the petitioners had argued that such notices were meant to ensure the presence of the concerned persons to take them into custody and deny them the opportunity to apply for anticipatory bail under Section 438 of the Code. The High Court agreed with the petitioners and set aside these notices and laid guidelines for subsequent notices to the same persons. It also noted that the practice of calling someone for arrest through a 160 notice “cannot be encouraged.”

On closer scrutiny, the argument of notices undermining the right to seek anticipatory bail holds little water, since it has long been held that the test for anticipatory bail is whether a genuine apprehension of arrest exists, and this may exist even before registration of an FIR in some cases. Thus, it is argued that in Sutapa Adhikari there was no denial of anticipatory bail rights because, as argued by petitioners, they feared arrests because of the prior conduct of the police. In fact, paragraph four of the order notes that the “apprehension of arrest” on the part of the petitioners was well-founded due to the prior conduct of the agency. Therefore, nothing prevented petitioners from availing anticipatory bail. In fact, there is nothing on record to show that they even applied for it despite this apprehension. This signals a voluntary waiver of that right and not abuse of process.

Scope & Use of 160: Where Sutapa Adhikari Gets it Wrong

It was submitted by the petitioners that in recent cases, namely CRR 3047 of 2022 and GR Case No. 1357 of 2022 arising out of Contai police station Case No. 265 of 2022, the investigating agency has been using this section to arrest innocent persons. In the present case, the petitioners had alleged that the family members and acquaintances of the accused in Case No. 46 of 2022 – Suvendu Adhikari, were being harassed via notices under section 160 of The Code as arrests were happening post appearances by such people. 

The High Court set aside these notices while observing that such practice of calling someone not named in the FIR by a notice under section 160 of The Code and the IO, in the name of interrogation, implicating them as an accused and arresting them directly, amounts to abuse of Section 160. It is argued that these observations by the High Court are erroneous in law. 

Looking at the text of Section 160 in line with Nandini Satpathy, it becomes clear that an accused can be called under 160 to record a statement under 161 of The Code. But by virtue of 162 and Article 20(3), read with Aghnoo Nagesia all such statements cannot be used as evidence. As per section 25 of the Indian Evidence Act, confessional statements to the police are not admissible in a trial as evidence. Thus, there are inbuilt safeguards for such arrests by having a limited evidentiary value of such statements. Such statements cannot be used as evidence, they may or may not be the basis of an arrest because there is no express bar on such an arrest. This does not violate any procedural rights of the accused. Moreover, the domain of investigation is the sole prerogative of the executive and cannot be interfered with as a routine practice by the Courts. So, the order of the Court which not only discourages Section 160 notices on erroneous premises but also invents the two preconditions before initiation of investigation and arrest, is not only bad in law but also lacks legal precedent.

So, then, what remains to be analysed is the larger concern underlying this High Court order. This concern is of wide discretionary powers of arrest vested with the investigating agencies. On the ground, there may be the potential to misuse Section 160 notices. For example, in the very first issuance of a notice to a ‘witness’, there is little apprehension of an arrest. So, it is unlikely that such a ‘witness’ to whom such notice is issued, will apply for anticipatory bail. This is a valid concern and can raise questions about a fair procedure. As a general principle, allowing Section 160 notices to accused persons can certainly lead to an arrest, and this power can be misused can be misused. But does it mean that the scope of Section 160 needs to be reconsidered or that Nandini Satpathy needs to be overturned?

Per Nandini Satpathy, Pakala Narayana Swami, and Mahabir Mandal, it is known that the purpose behind 160, 161 is two-fold – (a) free disclosure of information, and (b) protection of the persons making such disclosures. In line with these purposes, there is perhaps a need to look at Nandini Satpathy on the presence of a lawyer during the questioning of a witness/accused, i.e., at the pre-trial stages. The Supreme Court had held that the right to consult a lawyer includes the right to have the lawyer present during interrogation. But this does not entail that “the police must secure the services of a lawyer.” 

In Nandini Satapathy, the court noted that “a lawyer’s presence is a constitutional claim in our country, and, in the context of Article 20(3), is an assurance of awareness and observance of the right to silence. Article 20(3) and Article 22(1) may in a way be telescoped by making it prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined.” However, subsequent judgments, notably, Md. Ajmal Md. Amir Kasab v State of Maharashtra, Shri D.K. Basu, Ashok K. Johri v State Of West Bengal, and State Of U.P, Poolpandi Etc. Etc vs Superintendent, Central Excise, and State (N.C.T. Of Delhi) v Navjot Sandhu, it was held that the lawyer can be present during interrogation, but they will need to maintain a certain distance or a partition of glass will be there while interrogation as such is going on. Thus, the Indian position on the presence of a lawyer is that the lawyer should be allowed to be present during interrogation, but at a visual and not aural distance. Since Nandini Satapathy, subsequent case laws have curtailed the right of the accused to have their lawyer present and involved during the interrogation and other pretrial stages. Thus, there is a need to revisit the question and scope of the presence of a lawyer during the pretrial stages. Such may not be the panacea for allaying all concerns regarding the wide arrest powers of the police but it is a starting point. It can serve, at least, as a check on the procedure during an arrest or interrogation of a witness/accused under 160 while also reinforcing the protection against self-incrimination.

The Sutapa Adhikari order, speaks of violation of “natural justice” in arrests following a notice. While the presence of a lawyer in pretrial stages may or may not affirm “natural justice”, it may very well provide for some checks during arrests, and the procedure of interrogation and is also relevant for the right against self-incrimination. From, existing case law, it is clear that arresting via notices under Section 160 is a valid legal option. Undoubtedly, there is potential for misuse but there exist ways in law to check such misuse. But, what is clearly not a valid way to check such misuse is the invention of a new procedure, as the Court did in the current order.

Conclusion

The Calcutta High Court order on Section 160 of the Code is flawed and may prompt police to complain that it has made it more difficult for to investigate crime. The order also sets a dangerous precedent by inventing new procedures that are not supported by the law. It is per incuriam Nandini Satpathy, which is clear on the scope of “any person” under 160-161. The order also wrongly assumes that the accused has no right to avail anticipatory bail under section 438 of the Code. Concerns of wide discretionary powers of the police/investigating agency to arrest persons may perhaps be checked or at least held up to scrutiny by the involvement of a lawyer at pretrial stages. This would provide an additional safeguard against the misuse of Section 160 notices and would help to ensure that the accused’s statement is accurate and reliable. Clearly, it would not serve as a panacea for this issue of powers of arrest, but it is a starting point.

Justice in Courts of Inquisition? The Delhi High Court on UAPA Remand Extensions

A person should not be condemned without knowing why. One would think that this precept is not a point of debate in the legal system of a constitutional, democratic, republic. After all what personifies the shift from a culture of impunity and subservience to one of justification than the ability of individual citizens to ask questions and demand answers from those in power. This does not stop at the ballot box, but pervades deep into the fabric of how things are done, and ought to be the unshakeable cornerstone of how criminal law with its censure and punitive sanctions is administered. 

Yet, time and again, we are politely reminded to not take anything for granted. Slotting in nicely within this bucket is the recent decision of the Delhi High Court in a batch of appeals concerning the application and interpretation of Section 43D(2)(b) of the Unlawful Activities Prevention Act 1967 [UAPA] [Zeeshan Qamar v. State of NCT Delhi, Crl. Appeal No. 405 / 2021 and other connected petitions, decided on 24.02.2023 ("Zeeshan Qamar")]. 

Time Limits on Investigations and their Consequences

What was the issue? Let's read the provision:

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2), -- 

(a) the reference to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and

(b) after the proviso, the following provisos shall be inserted, namely:--

"provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days."

[Emphasis mine] 

In a previous post on the blog, we discussed Section 167 of the Criminal Procedure Code 1973 [Cr.P.C.] and its time limits for investigation. The logic behind having these limits was an implicit recognition by Parliament that custodial detention was an integral part of investigations and the status quo allowed for persons to be detained for prolonged periods during an investigation, and bail in non-bailable cases was not easy to get. The time limits were supposed to act as a means to speed up investigations, by sending a message that failure to complete investigations on time would entitle a person to release. The move came with a clear-eyed recognition that giving these time limits may send the wrong signal and suggest that the law treated pre-trial detention of up to sixty (and later also ninety days) as acceptable, and a hope that the police and courts would not get the wrong idea.   

Section 167 was possibly one of the most radical interventions made in the administration of criminal law yet. It was only natural for it to have its detractors. In 1975, the Supreme Court in Natabar Parida [AIR 1975 SC 1465] made its displeasure apparent when it observed that such a law "may be a 'paradise for criminals', but surely it would not be so, as sometimes it is supposed to be, because of the courts. I would be so under the command of the Legislature." Hardly a year later the Gujarat state government had taken steps to increase the time limits, and a few years after that we had Parliament itself amend Section 167 to provide for the ninety day limit for certain crimes. It was no longer obvious as to whether the idea of sixty / ninety days being an acceptable pre-trial detention was a wrong one or not.

The introduction of Section 167 Cr.P.C. and its swift amendment suggests the sense of unease within the state machinery which naturally accompanied such a radical departure from the norm. It was unsurprising for further, and significant departures to be made to Section 167 when Parliament sought to confront armed separatist movements in the 1980s, and suggest to the world that it took its international obligations on enforcing drug laws seriously. Detention up to a year became permissible if it could be shown that the investigation could not be concluded within the time period, and unsurprisingly, it also became the norm as these special laws made getting bail even harder than what was possible in ordinary circumstances. 

The issues and conclusions in Zeeshan Qamar

In this context is how we must view introduction of safeguards for how this extension of the permissible maximum period of pre-trial detention could occur. The law introduced a requirement for a report to be filed by the public prosecutor indicating the progress of the investigation and giving clear reasons why the further custodial detention of an accused was required. 

What was in issue before the Court in Zeeshan Qamar — and not for the first time as such — was whether this report by the public prosecutor ought to be shared with the accused at the time when a court is hearing the request for extending the period of maximum permissible pre-trial detention under Section 43D(2)(b) of the UAPA. The batch of appeals were all filed at separate points of time challenging the extension, and in most of them the accused were denied a copy of the prosecutor's report. This led to them being clubbed together for hearing, and the High Court framing and deciding issues on the process of Section 43D(2)(b) extensions besides deciding on the validity of the extensions in these specific appeals. 

These issues which the High Court framed were as follows (Para 4):

• Whether the prosecutor's report should be shared with the accused at the time of extension of time for a further period beyond 90 days?
• Whether the court "should satisfy three requirements" at the time of extension of remand i.e. (i) what is the progress of investigation, (ii) whether further investigation is required, and (iii) whether continued detention is required for this further investigation?
• Whether the court can extend remand for ninety days in one go, or should it be in a truncated manner to oversee the progress of investigation.

The conclusions that it returned (in serial order) were as follows (Para 13):

• The report is not required to be provided at the stage of extending remand, but the accused should be "informed" about the same to ensure she is not a "silent spectator" and the court must consider the submissions on behalf of the accused. 
• The "essential requirements" to be considered are: (i) reasons for the prosecutor's satisfaction about progress of investigation, (ii) reasons why 90 days are not enough, and (iii) details of what further investigation is required for which further time is sought. These three considerations must be part of the prosecutor's report.
• The court must consider the report carefully and can grant 90 days in one stretch, and if it does not then the agency can re-agitate its demand for the remaining period if need be. 

I will turn to the first conclusion, which is the focus of this post, in the next section. But before that, a word on the other two answers offered. The discussion on issue (ii) suggests that the court did find that the prosecutor's report must also indicate why continued detention is necessary, although the conclusion itself is somehow silent about that aspect. What is perhaps unsurprising is that the High Court offers a rather low threshold of just what must be shown to satisfy a court that the completing the investigation was not possible. On issue (iii), the High Court in its discussion encourages courts to carefully peruse the facts and determine just how long an extension is necessary and not grant blanket extensions for a further 90 day period. This is not captured fully in the conclusion, which merely focuses on it being legally permissible for a court to indeed grant 90 days in one stretch if it feels this is necessary. 

The 'Silent Spectator' Paradox

Which now brings us to the first issue, on sharing a copy of the report. To its credit, the High Court did not try and avoid a discussion but gave its own independent reasoning for why the report ought not to be shared (Paras 6.11 to 6.14). 

This logic is straightforward — the report must necessarily have details about the investigation which if shared with the accused could prejudice the ongoing probe and, in any event, this material would be inextricably linked to material in case diaries that the accused has no right to see in the first place. The main plank for the court's reasoning, therefore, was that an accused "has no right to know the progress in an investigation." 

With due respect, this is deeply flawed at multiple levels. At the most fundamental level, if we assume that India is a constitutional republic recognising and guaranteeing the right to personal liberty (arguably an acceptable assumption) then while a person may not have any independent right to know the progress of an investigation, she certainly has a right to know about it if this investigation is the basis for keeping her in pre-trial custody when she is presumed to be innocent. 

It would be different if my custody was independent of the merits of an investigation. But the very nature of Section 43D(2)(b), UAPA makes it clear that it is only because of the merits that my further custody is being sought. Pre-trial detention is the most obvious and glaring deprivation of personal liberty, and my right to contest it is meaningless if I do not know on what grounds am I being kept behind bars. Being able to question deprivations of liberty and demand justifications cannot be de-linked from being a constitutional republic. Its non-negotiable.  

It is equally flawed at one level removed from this most basic argument. Accused persons are regularly given some kind of update as to the investigation every time police oppose bail applications by way of filing a response during the pendency of the investigation. Similarly, the accused is also given update on the investigation when police seek custodial remands (and not judicial custody). It is nobody's case that the contents of these replies and applications are not derived from case diaries, but this linkage only means that it is incumbent upon the agency to walk that tightrope between securing its sources and giving enough of a clear answer to the accused whose fundamental rights are being deprived with each day in custody. 

If we accept the logic in Zeeshan Qamar, then the nature of remand and bail hearings (where bail is filed during investigation) stands irrevocably and disastrously transformed by taking out the most affected party — the accused in custody — from the equation by which we expect the court to make a fair decision on whether or not custodial detention should be extended further. Remand becomes a fiefdom of the State — one arm (executive) talks to the other (judiciary) to decide what's best and the citizen should sit back and accept her fate as a collateral consequence. 

One senses that the High Court recognised this was a problem when it agreed that an accused cannot become a 'silent spectator' to the process by which her liberty is being decided. But the court answers this problem by tying itself in knots rather than offering any meaningful safeguard, for the only real safeguard had already been denied.  

Facing the Facts

We can view Zeeshan Qamar as an aberration and continue preaching the gospel of India's transformative constitution and its dharma of fairness. Or we can face the facts, that criminal justice was and continues to be deeply entrenched in a feudal mindset where the perceived brightness of the constitution is yet to shine all too brightly. An accused has a qualified right to get a copy of the first information report, does not have the right to a lawyer during questioning, does not have the right to a lawyer even during custody for some kinds of cases (PMLA), and now does not have the right to know the basis upon which the state wants to extend the permissible period for his custodial detention. 

Transformative indeed. 

The New Supreme Court "Guidelines" on Bail

It is fairly well known that under the Criminal Procedure Code 1973 [Cr.P.C.], the investigating agency files a Report before court upon completing an investigation, sharing the finding of its investigation [Section 173]. What is not so well known is that, at this stage, if police concludes that there is sufficient evidence to prosecute a case, then under Section 170 the officer "shall forward the accused under custody" to the court empowered to try the case. Only where the offence is bailable, and, the accused can furnish some security to the effect that she shall appear before court when required, can the police choose not to forward the accused in custody. 

This clause is not problematic when persons are arrested during investigation as the "custody" requirement is met. But Section 170 creates a perplexing situation where no such arrest takes place, for it seemingly demands that all accused persons should be taken into custody when the investigation is complete and the case is sent to court, without elaborating more about the nature or duration of such custody. 

In August of 2021, a Two Justices' Bench of the Supreme Court in Siddharth v. State of U.P. [Crl. 838 of 2021, decided on 16.08.2021] was presented a chance to interpret Section 170 in a case where an accused person was served with warrants for his arrest upon completion of the investigation by the police so that it could present the 173 Report in court. Troubled by the mandate of this clause and the prospect of routine arrests it entailed, the Supreme Court blessed the line of High Court cases which had interpreted Section 170 to contain a measure of discretion, so that in cases where the police officer had no reason to suspect an accused will abscond, then there was no cause to arrest the person upon completing the investigation. The Court used the opportunity to reiterate what has become the settled legal position on the issue of arrests:

We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made.

The story did not end here, though, because in parallel proceedings based on seemingly similar facts [Satender Kumar Antil v. CBI & Anr., SLP (Crl). 5191/2021], the same bench of the Court on an earlier date had expressed its displeasure at the prospect of routine arrests and also felt that it was appropriate to "lay down some principles in this behalf". Once the judgment in Siddharth was pronounced, the Court on 18.08.2021 suggested that counsels take note of the same to "assist" them in this case. On 14.09.2021, the agenda moved from principles (which, frankly, Siddharth provided) to "Guidelines", as the Addl. Solicitor General submitted to the Court that he would want to provide suggested guidelines after consulting other counsel. That exercise culminated in the order dated 07.10.2021 in Satender Kumar Antil, where the Court blessed the Guidelines so proposed by the counsel. 

Understanding the Guidelines 

If you have had a chance to read the order of 07.10.2021, then you may as well skip this section which looks at what are the Guidelines. At the outset, it must be stated clearly that these are guidelines and do not override judicial discretion available to judges to decide cases on their facts. But, as anything that comes from the Supreme Court, it will probably be given great deference by the lower courts. 

The Guidelines in Satender Kumar Antil are meant to be relevant only if two conditions coexist: (1) A person is not arrested during an investigation, and (2) She cooperated during the investigation including appearing before the police when required. The Guidelines state that for such persons, there is no need to arrest such persons and send them to court when filing the 173 Report, and then suggest how courts should decide the issue of bail for sucsuggest how a court should decide on the issue presented by Section 170 Cr.P.C. in respect of such persons, and does so by adopting an offence-specific approach. 

Offences have been divided across four Categories: (A) Those punishable with a term of seven years or less, but not falling either in categories B or D; (B) Offences punishable with death, life imprisonment, or a term of more than seven years; (C) Offences punishable with special acts which contain restrictive bail clauses, such as Section 37 NDPS, Section 45 PMLA, etc.; (D) Economic offences, not covered by the said special acts, and where emphasis ought to be given to the seriousness of the charge and associated punishment in each specific case. 

While for all such cases, persons ought not to be arrested and sent in custody while filing a 173 Report where the two conditions outlined above are met, the Guidelines suggest different future courses of action depending upon the kind of offences involved:

• Category (A) cases are the most benign from a custody perspective, where resort to coercive process (warrants, as opposed to summons)  to secure appearance of accused persons is discouraged and bail applications may be decided without taking an accused in custody or releasing her on bail during pendency of a bail application.
• For Category (B), (C) and (D) cases, courts are simply told that upon appearance of accused persons pursuant to issuing process (with no suggestion to first resort to summons and not coercive process), their bail applications ought to be decided on merits. For Category (C), courts must also consider the bail clauses contained in special acts while deciding cases. There is no bar on granting interim bail, but at the same time, it is not expressly commended in such cases either. 

Problems Ahead?

There are general issues, and some very specific ones, that I wish to place under the spotlight.

General Issues — Understanding "Cooperation", "Merits", and the Pitfalls of Categories

The preconditions set out by the Court require cooperation during an investigation besides the fact of the accused person not being arrested. The meaning of cooperation is not clarified by the Court, but it seems reasonable to assume that the Court meant the word means something more than appearing before police as and when required, for the court refers to this as being but one facet of cooperation. I agree that pegging cooperation simply to appearance might be counterproductive to investigative needs and, even contrary to law in some cases. But then again, the problem with a qualitative understanding of cooperation is one that has already been seen in context of bail, where police do not shy away from taking a stand that till an accused parrots whatever line the agency wants, she is not cooperating with the probe. By making cooperation a precondition, it confers just the kind of discretion at the stage of 170 Cr.P.C. which the Court might have wanted to do away with. If the Court was making the effort to give guidelines, a little extra effort to spell things out could have helped.

The other general issue is that of deciding bail applications on "merits". The Court does not use this kind of language for Category (A) cases but the other more serious kinds of cases, either punishable with imprisonment for more than seven years and / or for offences under statutes with restrictive bail clauses. There is a fair bit to unpack here. If not merits, then on what basis are courts to decide bail applications in Category (A) Cases? Unless, of course, the Court meant that merits excludes the three keystones of bail i.e., that the accused is not a flight risk, will not threaten witnesses, or tamper with evidence; and instead a court ought to be concerned only with the merits of the allegation. It is no secret that the allegations play, arguably, the most important role even at the stage of bail in the Indian criminal process. But never has the Supreme Court recognised its position of first among equals. The Guidelines can be seen as doing exactly that, which in my opinion is contrary to law.     

Finally, there is the broad issue of the adoption of yet another set of categories for aiding in the exercise of bail discretion. This is an issue about which I have written about elsewhere, suffice to state that in creating categories where the court expressly discourages use of coercive powers for some offences, it ends up creating perverse incentives for the police to try and mischievously paint cases as involving more serious offences simply to keep a hold on the coercive powers that make ordinary people so fearful of the police setup in the first place. For it is police who retain almost exclusive control on how to frame the narrative in the language of criminal law — a victim might bring a story in the form of a complaint, but the police decides which offences are made out in a case. This levelling-up already happens with the cognizable / non-cognizable category, and began to happen post 2014 in respect of offences punishable with up to seven years being painted as more serious, when the Supreme Court limited the scope of arrest powers in Arnesh Kumar [(2014) 8 SCC 273]. In this scenario, while invoking the more serious offence will not give police automatic arrest powers in a Section 170 Cr.P.C. context, it can make bail a lot harder by taking a Category (A) case into Category (B), and encourage misuse and corruption as people would be willing to go to great lengths to remain out of custody.       

Specific Issues — Category (C) and the Economic Offences 

In noting Section 45 of the PMLA under Category (C) as an example of clauses prescribing restrictive bail clauses, the Court set alarm bells ringing in some quarters. Recall that the restrictive bail clause of Section 45, PMLA had been struck down as unconstitutional by the Supreme Court in 2018. Since then, the state and the Enforcement Directorate have tried a great deal to resurrect the clause, with the issue now pending consideration with the Supreme Court. For some lawyers, this reference to Section 45 is being seen as a blessing in disguise, which they fear might be used by the Enforcement Directorate to support its claim that the restrictive bail clauses of Section 45 are active. The Court would have done well to simply avoid reference to Section 45 given the contentious nature of the clause, and it cannot be seen as resurrecting the conditions at a time when the issue is pending before a different bench of the Court. Nevertheless, it will be interesting to see if the Enforcement Directorate tries to make use of this reference in Category (C) the next time it is opposing a bail under the PMLA.

Lastly, I come to Category (D), which covers "economic offences not covered by special acts". This fetish with placing economic crime on the same pedestal as crimes punishable with death has been around since 1950 — back then, death was suggested for hoarders and black-marketeers — and is a sentiment that the courts have never let go of in the seven decades since the Constitution came to be. The scrutiny required to interrogate this moral equivalence is far too much for a blog post to contend with. While I disagree with this position strongly, I will assume its validity for now but instead ask why was the court required to paint its canvas with such a broad brush — economic offences will range from measly theft till robbery, but all were lumped together in Category (D). Thankfully the Court paid heed to the suggestion given by counsel and mentioned that factors such as the seriousness of charge and severity of punishment will matter when we step into the vortex of Category (D). But even then, the Court could not help emphasise the "different nature" of these offences, and so one can only wonder just what kind of warped alternate reality might the issue of bails for economic offences be pushed into following the Guidelines.        

Conclusion

Of course, we will know more about the Guidelines and the benefits / problems they bring only when the dust settles and they are implemented. At this preliminary stage, one can only flag concerns down the road, and the concerns are aplenty. Honestly, it is difficult to understand the need for the Guidelines after the Court had already laid down principles in Siddharth. Even though they are not meant to circumscribe judicial discretion and are "guidelines", they are likely to be implemented with the force of law and throw up some difficult situations. One such will probably be the limited issue of Section 45 PMLA, and that one will be visible. The other issue will be the behind-the-scenes manipulation of case files that the Guidelines will prompt, where offences will be levelled-up or levelled-down by the police keeping the Guidelines in mind; all of which will be invisible, and will further erode the credibility of the criminal process.   

The Supreme Court and Delays in Cheque Bouncing Cases

This April, a Constitution Bench of the Indian Supreme Court took up the issue of delays in cheque bouncing cases — i.e., complaints instituted under Section 138 of the Negotiable Instruments Act 1881 — and passed some important directions on how such cases should be run [Order dated 16.04.2021 in Suo Motu Writ Petition (Crl.) 2 of 2020]. It has also constituted a Committee to look at issues beyond these criminal procedure aspects which will take time in formulating its recommendations. On June 21, the Delhi High Court has taken the lead and made efforts (as recommended by the Supreme Court itself) to help secure implementation of the Supreme Court's order by issuing "Practice Directions". 

Given that judges, especially at the Supreme Court, have to budget the very limited time available to them and pick what they think are serious issues, it is great that the issue of delays in cheque bouncing cases caught their attention to this extent. At the same time, I remain extremely skeptical of the directions itself that the Supreme Court has proposed. I've extracted the directions below for completeness: 

1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial.

2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court.

3) For the conduct of inquiry under Section 202 of the Code, evidence of witnesses on behalf of the complainant shall be permitted to be taken on affidavit. In suitable cases, the Magistrate can restrict the inquiry to examination of documents without insisting for examination of witnesses.

4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code.

5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction.

6) Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court’s notice that it lacks jurisdiction to try the complaint.

7) Section 258 of the Code is not applicable to complaints under Section 138 of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021.

8) All other points, which have been raised by the Amici Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee.

The Court concluded that these directions would help speed up disposal of cheque bouncing cases — only time will tell if that will be the case. What I am perturbed by is how the Court seems to have paid insufficient attention to detail while arriving at these conclusions, and failed to fully think through the kinds of unintended consequences which may ensue due to the proposed interventions in the process.

• Insufficient Data: The Constitution Bench order refers to the absolute number of pending cases (at around 35 Lakh), to remind us about how serious the problem is. But it is unclear whether there was any attempt to probe deeper behind the numbers. At another point in the order, some specific aspects  of the trial process are flagged as contributing to delays, such as the stage of issuing summons. But, these numbers don't tell us anything if we don't ask why are delays happening — is it because there are accused persons evading summons, or because courts are taking too long, or because accused persons choose to challenge the issuance of summons in the High Court which causes the trial to be stuck? All of these are different problems and require different solutions. This is just one example to show the kind of in-depth analysis that was needed to try and tailor solutions for this problem of delays in cheque bouncing cases — and it seems to be wholly absent from the order. It is not that what I am suggesting here is unthinkable; in fact, just recently a pilot study for identifying delays was commissioned by the Delhi High Court where this kind of a granular approach was adopted. The Supreme Court could have also taken the help of experts in the field — organisations such as Daksh have done wonderfully informative work on delays — but instead adopting something close to armchair problem-solving. 
• Unintended Consequences: Armchair problem-solving led the Court to propose three broad changes to how the existing system works to help reduce delays — directions (1) and (5). I fear that all of these directions might prove counterproductive and increase delays rather than curb them. First, we have the summary trial being converted to summons trial issue. Magistrates are now required to be more strict in converting cheque bouncing cases to summons trial cases, the thought being that more summary trials will obviously speed up disposal — great right? Maybe not. What this creates is yet another significant stage in the criminal process, which will be contested with arguments on both sides, and whichever side looses might well challenge the order before appellate courts which will only contribute to more delays. The same objection applies to Direction (5) which now allows for "deemed service" of summons where complaints are in respect of the same transaction — a court will need convincing of it being the same trial, which will take time, and accused persons will go and challenge that order issuing summons, as they already do. On top of which, I fear that this kind of "deemed service" might well be contrary to law — the Supreme Court has supplanted a judicial determination which occurs at the stage of charge to a prior stage. The key difference between these two is that while at that later stage the accused is present in court to contest the joinder of cases, at the stage of issuing summons we are asking the court to make that determination without giving the accused a right to be heard. 
• The Inherent Powers Issue: For the number of cheque bouncing trials that are pending, there are a fairly high number of 482 petitions / revision petitions pending before appellate courts where orders issuing summons are challenged — and often are successfully set aside. This is because it is quite common for totally unrelated persons to be summoned in such cases especially when companies are involved — complainants aren't expected to know internal management affairs, and usually arraign all known management personnel, some of whom may have had nothing to do with the cheque. In many of these cases, it is possible to prevent the irrelevant persons being summoned by asking the magistrates to be more careful. But in others, it is simply impossible to secure this outcome without letting the accused bring forth the relevant facts. Since the Supreme Court evidently agrees that the trial process can witness unbelievable delays and cause great hardship to parties, one would think that it would try and sponsor solutions which help curtail that process where possible. Instead, what the Court has done by Directions (6) and (7) is exactly the opposite — render it impossible for magistrates to try and do justice by curbing frivolous prosecutions. The Court could have looked at Section 251 and located therein a power to help magistrates achieve this objective [this issue has been discussed at length on the Blog] and create an environment which would have had beneficial consequences for all summons cases, going beyond the cheque bouncing offence alone. Instead, it chose to double-down on the logic which says magistrates cannot stop summons cases instituted on a complaint at any stage prior to judgment once an accused has been summoned. Not only does this worsen delays for trial courts, but also contributes to more 482 petitions in High Courts, which is where the aggrieved accused persons are likely to go seek reliefs.

Again, it might be that the Committee constituted by the Supreme Court suggests that the directions issued by the Constitution Bench might be reconsidered. It might also be that the directions end up dramatically reducing pendency for cheque bouncing cases and make this post look foolish. Even if that happens, I still think that the process of armchair problem-solving adopted by the Supreme Court in this instance is bound to create more problems than solutions, especially if the exercise is the product of a Constitution Bench.    

The Constitution Bench Judgment in Mukesh Singh — A Sensible Retreat from Automatic Bias

On 31.08.2020, a Constitution Bench of the Supreme Court delivered its unanimous verdict in Mukesh Singh v. State (Narcotic Branch of Delhi) [SLP (Crl.) Diary No. 39528/2018 decided on 31.08.2020, along with other batch matters]. The Constitution Bench had been assembled to decide on the correctness of a Three Justices' Bench decision of 2018, Mohan Lal [AIR 2018 SC 3853]. 

Mohan Lal had taken up a very specific issue upon which conflicting decisions had been rendered by the different benches of the Supreme Court in the past. This issue was what is the effect upon the validity of a criminal investigation where the investigating officer is the same person who is the first informant. This is not an uncommon instance, mind you. For example, in narcotics cases, it is quite ordinary for the crime to be reported as a result of officers conducting a raid. Can the officer who conducted the raid continue as the investigating officer? And if so, does that have any effect on the validity of the ensuing investigation? The conclusions in Mohan Lal were that (a) the same officer reporting the offence must not continue as the investigating officer of the case, and (b) where this happens, then it vitiates subsequent proceedings, due to a presumption of bias being established. While the facts in Mohan Lal were specific to the NDPS Act, the observations made in the decision were broad and applicable to the context of criminal investigations more generally. 

This author had expressed his reservations about these conclusions in Mohan Lal. The doubts were loudly expressed within the year by a Bench of Two Justices in Mukesh Singh (which ultimately found its way to the Constitution Bench). Then, in Varinder Kumar [2019 SCC OnLine SC 190], a different Three Justices' Bench (Two members of which were part of the Bench in Mohan Lal) supported the conclusions that had been arrived at earlier but with many reservations (and some problematic language on procedural rights of accused persons), and expressly declared that the 2018 ruling would only apply with prospective effect.

It appears that now, finally, the confusion has been put to rest.

The Arguments  

The 62 page long judgment details the submissions of the Appellants from Paragraphs 3 to 4, then narrates the submissions by the Solicitor General [Para 5] and the Additional Solicitor General [Para 6], and finally rounds this up with Rejoinder submissions [Para 7]. 

The Appellants, naturally, argued in support of Mohan Lal and its logic of automatic bias. The thrust of argument was focused around the NDPS Act and a key point was the interplay between Sections 42 and 52 of the Act. Section 52(3) states that an officer who conducts an arrest / search / seizure under Section 42, must turn over the person / items over to an officer empowered to investigate the case. For the appellants, this added statutory gloss to the point of principle that the observations in Mohan Lal were based upon. Surely, the text of Section 52(3) suggested that Parliament was also uncomfortable with the same officer continuing as the investigating officer in a case.    

On the other hand, the Respondents approached the issue from a generalist perspective and delved into the scheme of the Criminal Procedure Code 1973 to argue that there was, in fact, clear support for the same officer to continue as the investigating officer on a case in Section 157. The Code was also cited to argue that the categories of issues which render proceedings vitiated for "illegality" is clearly set out, and having the same officer continue on the case is not one of the specified grounds. On the scheme of the NDPS Act itself, it was argued that Section 52 did not demand that the officers must be different. 

Reading the judgment, it seems a bit surprising that the central focus of arguments was not the universalist approach of Mohan Lal. The Appellants recorded submissions do not suggest why that specific position is the desirable one. If anything, only the Respondents seem to have tried to explain what are the problems in that approach and why a case by case approach ought to be favoured. The argument in this regard seems to have been purely consequentialist — so many cases with good evidence will be thrown out on a technicality — and not about where this specific issue fits in the larger legal fabric of the doctrine on bias.

The Judgment 

The judicial consideration of the argument begins from Para 8 onwards. The dissatisfaction with Mohan Lal is evident in Para 8.1: 

"On considering the entire decision of this Court in the case of Mohan Lal (supra), it appears that in this case also the Court did not consider in detail the relevant provisions of the Cr.P.C. under which the investigation can be undertaken by the investigating officer, more particularly Sections 154, 156 and 157 and the other provisions, namely, Section 465 Cr.P.C. and Section 114 of the Indian Evidence Act. Even in the said decision, this Court did not consider the aspect of prejudice to be established and proved by the accused in case the investigation has been carried out by the informant/complainant, who will be 35 one of the witnesses to be examined on behalf of the prosecution to prove the case against the accused. This Court also did not consider in detail and/or misconstrued both the scheme of the NDPS Act and the principle of reverse burden."

It is quite evident by this point which way the judgment is going to go, and there are no surprises from here till the conclusions in Para 12. After a detailed discussion of the 1973 Code [Para 9], the judgment turns to the NDPS Scheme. How is the point about Section 42 / 52 dealt with? At Para 9.3.8 and 9.5, the judgment notes that it is nowhere stated that the officers empowered under 53 have to be different / shall be different from those empowered for 42. Thus, to require otherwise would be overstepping the judicial function by inserting words in the statute which do not exist. 

For the Court, the NDPS being a law which casts a reverse burden and carries heavy punishments is not something which warrants a rule of automatic bias in cases where the informant continues as investigating officer. As the judgment notes [Para 10], the accused would have the opportunity to cross-examine that officer and burnish her claim about bias. The judgment also referred to the presumption of regularity that is attached to official acts under Section 114, illustration (e) of the Evidence Act and observed that a rule of automatic bias would run contrary to this presumption. Thus, "the matter has to be left to be decided on a case to case basis without any universal generalisation." [Para 10.1]

Some Thoughts

On the whole, Mukesh Singh is the kind of dour, sensible decision, that we need more of (perhaps without the copious extracts of statutory provisions — Sections 41 to 57 of the NDPS Act are extracted almost entirely!). For this author, the conclusions arrived at mark a sensible retreat from the rule of automatic bias that Mohan Lal had supported. It is impractical for a legal system where law enforcement is understaffed and it did not sit comfortably in a procedural setup where standards always trump rules when it comes to issues about weighing the impact of procedural safeguards. On top of which, I still think that a rule such as this would only have prompted law enforcement to find loopholes to work-around what they saw as a bad rule rather than the rule actually furthering the promise of fairer investigations. Lastly, and the speed with which the issue got resolved by a Constitution Bench is proof of this, the truly awesome nature of reliefs offered for the breach of a procedural rule were bound to make courts have second-thoughts about going ahead and fully implementing Mohan Lal.    

Coming back to a position where accused persons have to demonstrate bias is a sensible retreat. But, what next? How is this task to be carried out by accused persons and the plea determined by courts? And what about reliefs beyond acquittals? It is quite surprising that, much like Mohan Lal which it overruled, the judgment in Mukesh Singh has not offered us any clarity on these important practical aspects. There has been a tendency on part of the Supreme Court to not fully explore the remedial aspect of rights cases, and Mukesh Singh fits the bill. In being concerned with limiting the scope for acquittals on pleas of bias, the Court ended up missing a chance to explore other reliefs that accused persons might be entitled to when a plea of bias is raised at the end of trial or, as is much more common, in an appeal context.  

Let us take the bias point next. The Constitution Bench brackets prior decisions into two buckets — those for an automatic bias rule and those against — and in doing so ignores that there is a fair bit of subtlety involved in the task of determining a plea of bias [For more on the Indian law on bias, see here]. For instance, consider the judgment in Mohan Lal. A key reason for the Three Justices' Bench choosing the automatic bias rule was its mistaken finding that the existing legal position required accused persons to "demonstrate prejudice" and "bias [to] be actually proved". A closer look at the older case law would reveal that none of the decisions had gone ahead and actually dealt with how accused persons were to go and establish pleas of bias. The only real exception being the 2004 decision in V. Jayapaul [(2004) 5 SCC 223], which required that an accused must establish the existence of a "real likelihood of bias" and not existence of "actual bias". 

The only reference we get to this practical side of things is Para 11 of the judgment in Mukesh Singh, where it is observed that: 

... Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum investigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record. Therefore, as rightly observed by this Court in the case of Bhaskar Ramappa Madar (supra), the matter has to be decided on a case to case basis without any universal generalisation. As rightly held by this Court in the case of V. Jayapaul (supra), there is no bar against the informant police officer to investigate the case. As rightly observed, if at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer the question of bias would depend on the facts and circumstances of each case and therefore it is not proper to lay down a broad and unqualified proposition that in every case where the police officer who registered the case by lodging the first information, conducts the investigation that itself had caused prejudice to the accused and thereby it vitiates the entire prosecution case and the accused is entitled to acquittal. (Emphasis supplied)

What we see is that the Court has gone ahead and supported Jayapaul, but observed that the accused may establish bias or its real likelihood, which is a tad confusing to say the least. Furthermore, the observations in the first half of Para 11 are loosely worded and can lend themselves to a view that the judgment goes to limit the significance of biased investigations only where the case lacked independent evidence. This, in my view, is an incorrect reading of the paragraph. Rather what the Court seemed to have been at pains to do here, and throughout the judgment, is to narrow down the cases where acquittals might be warranted on grounds of bias / real likelihood of bias on part of the investigating officer. 

With Mukesh Singh, it would seem that this issue of what happens to a prosecution where the same officer who was the first informant continues as the investigating officer has been settled. There is no vitiating of the case on grounds of presumptive bias. But that is the limited extent of clarity on offer, and the practical aspects of raising a plea of bias remain under-explored.