A Closer Look at the 1976 Deletion of Section 438 CrPC in Uttar Pradesh

(Special thanks to Ashna D and Aniket Singh for their help with research on some aspects.)

In 2019, the State of Uttar Pradesh amended the Criminal Procedure Code of 1973 insofar as it applied to the state, to re-insert Section 438 (its at the end of the linked file) which provides for anticipatory bail. This came forty-three years after the original amendment passed in 1976 by which Section 438 had been deleted, by way of Section 9 of the Code of Criminal Procedure (Uttar Pradesh Amendment) Act of 1976 ["1976 Act"]. 

This came almost nine years after a government-appointed commission had recommended the move. The Commission observed that the objects accompanying the 1976 Act had claimed deletion of anticipatory bail was necessary because it was creating "practical difficulties"; which, the Commission reasoned, was a thinly-veiled justification provided to reduce the scope of personal liberty during the state of Emergency prevailing at the time (1975-77). Since the Emergency was long gone, it no longer made sense to continue without anticipatory bail in the state. 

The deletion of anticipatory bail in Uttar Pradesh had always piqued my curiosity. The justification offered and accepted in 2009 — that it was a reaction to the declaration of Emergency — neither seemed complete nor accurate. That the Supreme Court did not fully explore the issue while upholding the constitutional validity of the amendment in Kartar Singh [yes, the TADA judgment] was also unhelpful — all that the judgment carried was the submission of the state counsel that the 1976 amendment was passed to meet the "deteriorating situation". 

This set me off on a course of digging to try and get better answers. This post is the result of that exercise. 

Setting the Scene

After two decades of various courts coming at mostly the same conclusion—that anticipatory bail could not be granted under the Criminal Procedure Code of 1898—it was mildly surprising for anticipatory bail to be codified as a possible remedy under Section 438 of the new Criminal Procedure Code in 1973. When this relief was debated in Parliament, one general critique was its potential to upend criminal investigations by denying police the chance of arrest and interrogation. On top of which was the more vocal criticism about this relief being designed to only favour the rich litigants who would get word of potential cases and then rush with their lawyers to sessions courts and high courts. 

A combination of the two contributes to the kind of scandal standard left-leaning politics of the time loved (and still does), and this led anticipatory bail to earn mentions in parliament during question hour even before its codification — usually, in relation with alleged smugglers (For instance, during Question Hour in the Lok Sabha on 01.09.1972). The discontent, perceived or otherwise, with anticipatory bail was such that, within a year of the new Code codifying the relief, a Committee had been setup in 1974 at the central level to look into the question of its "misuse". On the basis of parliamentary questions in 1977 (see, Lok Sabha Debates of 14.12.1977), it appears that this Committee looked at data for all of 1974 and concluded that there were many cases in which investigations were delayed because of anticipatory bail, and that it was being taken "advantage" of by persons "concerned in criminal activities".

Most of the other changes brought about by the 1973 Code did not affect the existing scheme of rights but affected administration of criminal law by separating the functions between executive and judiciary — a pre-independence demand, and later a constitutional promise enshrined in the Directive Principles of State Policy. The new Criminal Procedure Code separated the police from the prosecutorial wing, took away judicial functions from executive magistrates, and reduced the ability of governments to handpick courts for dealing with specific classes of cases. Many states had already taken steps towards realising the separation between executive and judiciary prior to 1973, but very few states had gone to the lengths that the new Code asked them to travel. 

Uttar Pradesh was no exception. It did not take active steps to rectify inconsistent practices with the new regime, and so it only a matter of time before the existing practices were challenged in court. By two separate judgments passed in 1975, the Allahabad High Court set aside government circulars (i) placing prosecutors under control of the police [August 1975], and (ii) placing all cases prosecuted by the CBI within the state of U.P. before one single court [November 1975]. The result of the former would be to disrupt how trials took place across the state. The latter would potentially result in a transfer of thousands of cases, as well as the establishment of several new courts across the state to then handle them.

Such unplanned financial outlay usually triggers quick government response. The same happened here, and the government decided to take immediate action by promulgating an ordinance on November 28, 1975. It was this Ordinance which then became the 1976 Act, in which anticipatory bail met its demise. 

Legislative Debates

The previous section demonstrated that, it wasn't the Emergency which led the U.P. government to delete the provision on anticipatory bail — there were rumblings at a central level prior to 1975. Further, the events leading up to the 1976 Act suggest that the deletion of anticipatory bail was one small part in what was a broader set of changes which the government pushed through to circumvent a need to change the existing administration of justice in the state. This helps understand the contents of the 1976 Act better as well. 

It would have been great to have the 1975 Ordinance and then compare it with the 1976 amendment to see if there were new insertions proposed in the Bill from what was earlier pushed through hurriedly, but I was not able to get my hands on it. What I could get access to was the legislative debates of 30.03.1976 leading up to the 1976 Act replacing the ordinance, which are available on the government website (can also be seen here for convenience) in Hindi. The debates are fascinating and, at least going by the opposition, would have one think that the High Court's judgments of 1975 were nothing but a convenient excuse to usher in a set of regressive amendments to the criminal law. The real driving force was the Emergency. By way of these changes, the government wanted to halt the separation of the executive from the judiciary, and thus keep its vice-like grip on the administration of justice in the state. 

On the question of anticipatory bail, the opposition members asked what, if any, were the glaring instances of abuse which led the government to propose such a radical change? Anticipatory bail was new, yes, and perhaps viewed with suspicion by everyone — but that had not led any other state to delete it altogether. The reply brought up the classic, haunting image of the white-collar criminals — smugglers, hoarders and black-marketeers — all taking advantage of this new provision. It wasn't only such kinds of offenders, but all notorious criminals seemed to be taking advantage of the law as per the government. Ultimately, as the law minister Prabhu Narayan put it, as everyone agreed that the police had a right to investigate fully, and since it was evident that the provision for anticipatory bail was used to stymie investigations especially by white-collar criminals and notorious persons, deleting the provision was the only possible choice for the government.    

Parallel Developments at the Centre

The 1976 Act was published in the gazette on 01.05.1976. On 26.08.1976, a Bill had been taken up for discussion in the Rajya Sabha proposing amendments to the Criminal Procedure Code, which included a suggested amendment deleting Section 438 altogether. The Deputy Minister for Home Affairs remarked that "Unfortunately, experience shows that this provision has been availed of mostly by rich people, white-collar criminals and others. It has, therefore, been proposed in Clause 31 that this provision should be deleted." 

The proposal did not meet with wholesale opposition; rather, as one member put it, it felt as if "that experiment had not succeeded". The Code of Criminal Procedure (Amendment) Bill, 1976 was passed by the Rajya Sabha and sent to the Lok Sabha. It was only because Parliament was dissolved that the debates were not carried forward on the same. However, when on 14.12.1977, questions were put up to the new Janata Government on amendment of anticipatory bail, and the Deputy Minister for Home Affairs replied that the question of amending some provisions including anticipatory bail was being examined. 

A year later, on 28.11.1978 the new government introduced a bill in the Lok Sabha to amend the 1973 Code. It was based on the same Bill that was passed in the Rajya Sabha back in 1976, but deleted clauses which the government now thought were "unnecessary and detrimental to the interests of the parties". This included the clause deleting anticipatory bail, finally setting the controversy to rest. Of course, these developments at the centre did not compel any change of heart in the State of Uttar Pradesh. Even as the state passed further amendments tweaking the Code in 1977, anticipatory bail remained ousted.    

Connecting the Dots

The brief glimpse into the turbulence that accompanied the codification of anticipatory bail in the Code of Criminal Procedure 1973 gives us a window into the circumstances which led to the forty-three year long absence of Section 438 from the State of Uttar Pradesh (though not an absence of anticipatory bail, which remained alive as an extraordinary relief given by the High Court). Ascribing that move to the Emergency and the discomfort it generated towards personal liberty is a convenient, though ultimately inaccurate, tale. Those circumstances certainly would have played a role behind the 1976 Act, but history suggests that the discontent with Section 438 existed from before, and if anything, that sense of uneasiness has never gone away. It resurfaces each time anticipatory bail is granted in a media-friendly case, at which point talking-heads cry foul over criminals "taking advantage" of the law.   

This uneasiness with "criminals taking advantage" of what the law itself provides is an irrational, emotive outburst. But it has shaped the legal regime on bail and anticipatory bail over the years. Legislatures have excluded anticipatory bail outright in various contexts after Uttar Pradesh first did it, and have also placed much stricter regimes for granting bail for certain offences. These exceptional regimes have later been upheld by constitutional courts as well. All of which proceeded on the same fallacy — labelling persons accused of certain crimes as criminals, which justified lengthy pre-trial custody in spite of the prevailing presumption of innocence. The sentiment is evident in how Uttar Pradesh has reintroduced the provision. It did not simply adopt what the central law states, but modified Section 438 to exclude its application in what might seen as "serious crimes", i.e. offences punishable with death and, of course, those punishable under the UAPA.

If we manage to look past the hullabaloo, we come across a classic struggle at play here. Underneath all that hasty labelling of persons, I would argue, is the longstanding executive mistrust of unhindered judicial independence. It is that same struggle for separating judicial and executive functions within the criminal law, which has been going on since before India's independence. 

Think about it: what the law confers in respect of non-bailable offences is merely a right to apply for bail / anticipatory bail — whether or not you get relief depends on the court. Trusting judicial discretion on matters of bail and anticipatory bail is the defining, albeit problematic, feature of the legal regime in India. In a setting where arrests and custodial interrogation is still viewed as critical for criminal investigations, courts are trusted to make the right decision on matters of bail by ensuring these interests are considered without disregarding personal liberty altogether. It is for this reason that bail is not simply about securing the personal appearance of an accused, but involves courts looking at the allegations as well. 

By taking away anticipatory bail outright or by shackling the right to bail, in cases of certain crimes, what the legislature really does is strike a blow to this belief by sending a clear message that judicial discretion cannot be trusted to make the right decision. The already wide berth given to police interests in matters of bail is expanded even further, reducing the role of courts from independent arbiters to requiring that they defer to the executive's interests and consign a person to jail on the strength of allegations, not proof. The result is a legal system in which, somehow, the judiciary is further weakened in discharging its basic role of securing personal liberty. 

Thus, even as the State of Uttar Pradesh reintroduced Section 438, this is not a break with the past. Rather, it carries forward the legacy of the original deletion by the 1976 Act, a legacy which has been gradually, and almost unquestioningly, embraced across the country with the passage of time.

Guest Post: Modest Proposals for Initiating Reforms in some Pre-Trial aspects of the Criminal Justice System

(This is a guest post by Mr. Divyang Thakur. Views are personal. His earlier posts can be accessed here)

The Current System

Across India, a simplified explanation for how the criminal justice system works at the pre-trial stage is as follows: — The police register a First Information Report (FIR) alleging commission of offences under certain provisions of the Indian Penal Code or other penal laws based on the understanding and discretion of the officer(s). As an FIR is only registered for cognizable offences, its effect is to allow police to assume the powers to arrest persons under Section 41 of the Code of Criminal Procedure, 1973 (CrPC) Depending on whether the offence is bailable or non-bailable, the police or the Court have to mandatorily grant bail. If the offence is non bailable, the police will not release the accused on bail, rather it will be the Magistrate/Sessions Court (hereinafter referred to as the Court for convenience) which will acquire jurisdiction to either grant or refuse bail [More on the scheme of cognizable and non-cognizable here]. 

In non-bailable offences then, it will be the accused who has to move an application for bail. Once the bail application is moved, the Court will usually direct the concerned officer [Investigating Officer (“IO”)] to file a reply and appear before the court. In serious offences, it is also necessary for the Court to hear the Public Prosecutor or Assistant Public Prosecutor along with the IO. Once the reply of the IO is furnished to the accused, the Court will hear the accused, the Prosecutor, and the IO, and decide whether the accused should be released on bail. If the Court decides that he should be released from custody, the next step is to decide on the terms of release — most commonly requiring security for appearance i.e., the bond that the accused should be required to furnish which is forfeited if he fails to appear before the Court in the future. The Courts also have power to restrict the liberty of the accused by prescribing certain conditions – for example, restricting movement of the accused to a particular area, requiring the accused to submit his passport into judicial custody, requiring the accused to report to a Police Station every month etc.

A cognate pre-trial process is the request for custody remand made by police where it is considered that custody of an accused is required beyond the initial 24 hours of custody that are sanctioned by an arrest. For example, securing custody to recover possible weapons or other evidence connected to commission of the offence. This application requires the Magistrate to decide whether the accused should be sent to police custody or to judicial custody — or, be released in case no sufficient grounds exist. 

If the accused is not granted bail and kept in custody, then at the end of 60/90 days he gets the right to apply for default bail provided that the IO has not filed a charge sheet before the Court. In an application for default bail, the Court has to mandatorily release the accused on bail subject to the furnishing of the bond (as decided by the Court.) 

The Issues that a Bail / Arrest / Remand Reform Legislation Should Consider

The purpose of this brief post is not to jump to any concrete proposals regarding what reforms might be needed to this pre-trial setup, but to point out issues / approaches that should be considered before any reforms are considered in respect of the status quo. The following issues arise in my experience as a Prosecutor: — 

1. Allowing the IO to be the final arbiter of the provisions of law under which the FIR is registered significantly influences the subsequent decisions at the stage of remand and bail. This is also in light of the judgment of the Supreme Court in Prahlad Singh Bhati [(2001) 1 SCC 480] which requires Magistrates to refuse to exercise their discretion in cases triable by the Sessions Court. It is time to make this arbitrary power subject to prosecutorial supervision. This already happens on an ad-hoc basis in cases of white-collar crime in Delhi. 
2. The Courts and the Prosecutors are unable to provide any meaningful check and balance over the powers of arrest of the IO. In cognizable cases, once the accused is arrested (in a majority of cases) he will have to apply for bail because it is unlikely that he would be released on bail by the Court on its own motion or that the initial application of judicial remand by IO would be refused. In practice, the Arnesh Kumar [(2014) 8 SCC 273] judgment remains toothless. Moreover, there is no meaningful compensation or consequence for wrongful arrests. 
3. The police continue to get away with flimsy reasons for arrest. Vague assertions that the “accused is likely to tamper with the evidence” without citing any specific facts continue to be the norm. 
4. The Courts and Prosecutors are wholly dependent on the IO for all necessary details about the accused and investigation – his age, social conditions, family details, profession, past record, behaviour during custody, to only mention a few. Usually queries about such things are answered in a blatantly partisan manner with bland assertions in order to support the refusal of bail. It could be time to consider involving professionals, social workers/psychologists etc, even at the stage of arrest and remand. 
5. On the flip side, in many cases the defence counsels are unable to add value at the stage of the bail hearing which stems from the fact that the defence has no right to peruse the case diary, consequently they are completely unaware about the turn that the investigation has taken. The only thing that remains to them is to comment on the strength of the evidence disclosed by the IO during the bail hearing.  
6. The only documents usually available for perusal at the stage of the bail are the written reply of the IO, the application of the accused, the documents collected during investigation and the Case Diary. While there is a prosecutorial duty to disclose relevant material as held in Sidhartha Vashisht (Manu Sharma) [(2010) 6 SCC 1], which duty would also be present at the stage of bail (see here), there needs to be a formalized procedure of disclosure which does not necessitate an application u/s 91 CrPC by the accused. 
7. A major chunk of time is spent by Courts on arguments regarding whether the offences alleged are made out or not i.e., whether there is a reasonable prima facie case or not. It has to be considered whether this is the best use of judicial time at the stage of bail. This is in light of the changing goal posts – sometimes bail is refused because the conscience of the society is shocked, sometimes it is granted because there is no likelihood of the accused fleeing from justice. In my opinion, and as discussed in Part 3 of this post, the objective of pre-trial detention cannot be deterrence or punishment without trial or a method of moral condemnation. Whether a reasonable prima facie case is made out is not the first question that should be asked. This in turn requires a change in methodology of the inquiry at the stage of bail. 
8. In a majority of economic and white-collar offences the Courts insist that the victims be compensated or the “cheated amount” be returned in exchange for bail. Any other consideration recedes into the background.
9. Police remand is often demanded on grounds that are not clear. It is time that the grounds of police remand are identified and restricted to certain investigation processes. It is undesirable for the Investigating Agency to hide behind obscurities. 
10. The presence of reverse onus clauses in special and local penal laws which shift the burden of proof onto the accused have the tendency to prejudice the accused at the stage of bail. It is desirable that the discretion of the grant of bail is made immune to the influence of these reverse onus clauses. 
11. Bail Provisions that shift the burden onto the accused – at the stage of bail – to show that no reasonable prima facie case is made out as a condition precedent to secure bail are unconstitutional and should be repealed.    

A Systemic Change in the Approach to Pre-Trial Detention: The Process Cannot be the Punishment

It has been highlighted by the Supreme Court in countless cases that the law of bail / arrest / remand has Article 21 of the Constitution as its foundation. At its core, keeping in mind well established values of human dignity and liberty as well as the presumption of innocence, any criminal justice system in a modern democracy cannot use pre-trial detention as an instrument of deterrence or punishment. Secondly, the question of pre-trial detention must be approached by the judiciary from a different angle. Currently, as we have seen, the question in the judicial mind is, should the accused be released on bail? However, the question that should be asked is must the accused be remanded to custody? There is a wealth of difference between the two approaches. Even though “bail not jail” is a common legal aphorism, currently the judicial process leads to varying outcomes and therefore there is urgent need to have statutory guidelines for deciding bail which clearly formalise the above said approach to bail applications. 

In turn, the approach to the above question has to be based on a multi-faceted inquiry – of which the question of there being a reasonable prima facie case is just one aspect. Various vulnerabilities should be assessed even at the stage of bail and arrest – poverty, homelessness, alcoholism and drug addictions, youth, mental illnesses and other structural inequalities, seasonal employment etc. Though many of these issues are argued by defence lawyers at the stage of bail and remand, they are done so in a perfunctory manner and it is unclear as to how much such factors weigh with the Court while deciding bail applications or with the police while deciding to arrest. The methodology of such inquiry should be formalised and made a matter of routine. 

Conclusion

Victims often demand that the accused be kept in custody for as long as possible, possibly because a full-fledged criminal trial takes a long time (even before Covid-19) and also because they believe (in many cases) that arrest and detention is the only method to arm twist the accused into a settlement. Pre-trial detention is also sought to be justified on the basis of the gravity of the situation, public sentiments being hurt or that a certain religious community has been offended etc. Police officers treat pre trial detention as a way of pronouncing righteous judgment on the accused and feel that notwithstanding the final outcome of the trial, justice has been served. Consequently, the Investigating Agency is in most cases divorced from the success of the trial. 

The law of pre-trial detention cannot be captive to extraneous considerations or powered by moral indignation. It is high time that judicial decision making in pre-trial detention is consistent throughout the country and in tune with constitutional values.  

Criminal Law Reform — Many Misgivings, and the Long, Uncertain, Road Ahead

The Indian law school experience revolves around the idea of submitting "projects" or "assignments". At the start of the 5 year marathon, many of us used to be petrified about the idea of failing to submit the assignment beyond the "Last Last Day" — the last permissible date for handing in the project, after the stipulated deadline. I found it quite strange that the senior students displayed little or no trepidation at the thought of the impending deadline, while the rest of us rushed to print and submit. Why? Because the seniors knew that if many students asked for more time, for some reason or another, surely the University is not going to flunk them all. So the "Last Last Day" could easily be extended, and it was.  

True to form, citing the many requests for extension of time, the Committee for Reforms in Criminal Law (incidentally operating out of a Law School) just went ahead and extended a deadline for submissions, on the date of the deadline. Lest we forget, this is a Committee that has been tasked with possibly one of the most burdensome mandates ever — suggesting reforms to the entire landscape of India's criminal process, within the sweet time span of six months. 

This extension of time by the notice of July 17 is just the most recent chapter in what has thus far been an extremely turbulent start to the life of this committee and the consultations it has sought to initiate. Within the few weeks that have passed since the first announcement was made by the Committee about how the consultations will proceed, and from the release of its first Questionnaire on July 4, several representations have been issued expressing serious misgivings about the whole process. These representations (some of which I have been a part of) have, amongst other things, called for (i) abandoning this effort at least while India struggles with Covid-19; (ii) reconstituting the Committee which, in its current form with 5 men sitting in New Delhi, embodies the worst tendencies of prior "reform" efforts and appears akin to the same colonial mindset that the Committee explicitly has set out to remove.

But at least for me, what has been particularly galling and difficult to stomach, is the consultation process itself. And that is the focus of my ire.

From Moving the Goalposts, to Removing Them

The Committee presently has a sleek website which, unfortunately, does not manage to distract attention long enough for one to not see the big bundle of fluff that has been offered to us at present. There is no White Paper or Consultation Paper on offer telling us what are the specific areas that have been identified as needing reform and the specific issues that the Committee thinks require consideration. This is not to ask for the moon and the stars, but this is only to highlight what is standard practice for any efforts to carry out law reform in any functioning democracy.  

What we do have, is an "Aims and Guiding Principles" tab, and other separate tabs outlining "Objectives" for substantive law, procedural law, and the law of evidence. The former is nothing but a collection of the best homilies that one could give for any criminal justice system. The second at least outlines some issues (finally some specifics) but, alas, it does not tell us what is the problem in the first place. And of course, the few specific objectives are couched between wonderfully vague ones such as "Revising foundational definitions and classifications in order to bring the Cr.P.C. in line with modern legal developments". 

Basically, while the Committee has suggested that it is time to move some goalposts, what it has actually done is to temporarily remove the goalposts altogether. There are no positions held, no beliefs about what is good or bad about the law. Conveniently, the goalposts shall reappear one day when the Committee so chooses, and we can only hope that do not appear straightaway in the form of draft legislation itself.

The Questionnaire Process

The removing of goalposts is a problem that has paled into insignificance once we moved into the process of consultations itself. The "Expert Consultation" process was announced, in which there would be two questionnaires each on the three areas of the criminal process flagged above. Responses to each of these questionnaires were due in two weeks time, completing this part of the exercise in twelve weeks. As of July 17, the duration is now four weeks per questionnaire, completing the exercise in 24 weeks, i.e. around four months. Now, as before, all the questionnaires have not been released together. Instead, they will be released in tranches — first substantive law, then procedure, then evidence.

The breaking up of the criminal process into silos through these questionnaires is plainly inexplicable. If anything, what is required is a consolidated approach that considers, at the same time, what effects might be borne by the system by tweaking one of its components. So, for instance, how can we be entering into a conversation about defences without having a conversation how any of these defences might be proved in court? But since the former is substantive law and the latter get covered by procedural and evidence law, in this bizarre consultation process we will only ever look at the picture piecemeal and never as a whole.   

I will try and capture my anguish and frustration at this process with the following image. On July 4, when the first questionnaire was released, it was like the start of a long cycling tour (Tour de France kinds). The race was divided into stages, which came non-stop one after the other. But, here's the twist: Nobody in this tour knows what will happen at the end of each stage; I might go sideways, or up the mountains, or maybe do hardly anything except flat-track sprints. Nobody even knows where the race will eventually end (since there are no goalposts and they will conveniently appear). And every stage is compressed to make it seem like it is legal to now run the Tour de France on steroids. 

What made the nightmare particularly harrowing for me (yes, there is still room for things to get worse) is the questionnaire itself. It does not systematically proceed from laying a foundation on general issues to then move into specifics, it does not systematically go through the list of objectives outlines on the website for substantive law. There is not even indication of the broad themes to be covered within the two sets of questionnaires to be released. Instead, it is a scattershot mix of general queries of principle, with clearly loaded questions designed to favour certain answers, and some very pointed questions (the only ones I had the gumption to attempt to answer) such as should marital rape no longer be a defence to rape. 

All of which we must answer in tiny little boxes of space which keep-expanding. While the 200 word limit has been removed (again, after the questionnaire was released), it is still difficult to not be left feeling that the questionnaire and its overarching undefined consultation process had reduced the task of reforming criminal law to the banality of customer satisfaction forms asking for my opinion on the quality of service. Note, that the Committee has declared that an "Open Consultation" process will also be launched (not yet live), where people can write anything and do not need to feel bound by the questionnaires. The way I see it, the cat comes out of the bag with this one. Tell us, dear Expert, what is the problem with general defences and do our work for us. For a vast majority of the questions, and indeed with the open consults, one is not being asked to consult on a position that the Committee has identified, inasmuch as one is being asked to opine about the desirability of taking a position itself. Will the reform agenda now be determined based on which aspects of the law receive the most criticism in the questionnaire? Is that not the worst kind of majoritarianism on display? I simply do not understand.

The Long, Uncertain Road Ahead

This is not law reform, it is a nightmare that is going to continue for nobody knows how long. Considering the pathetic publicity that the activities of the Committee have thus far received in the national and local media, it is bound to be a nightmare that only the select few who are invested in the process will have to knowingly suffer through. What does one do? One could choose to participate in this process and salvage what can be salvaged, or fight the process tooth and nail to ensure it receives no legitimacy whatsoever, or do a mixture of both. There is, as always, no right answer. 

This blog has, and remains in favour of, the argument that the criminal process requires serious attention and consideration. But that consideration cannot be in the nature of an opinion survey asking whether X or Y aspect should go and A or B should come instead in one questionnaire, and later turning attention to the other parts, all of which happens without any clarity about the positions adopted by the Committee which is running the consultation process. A holistic approach which considers the criminal justice "system" will need integration and clarity, not these tranches of questionnaires. 

It is remarkable that the Committee thinks that it can deliver on its principles within 6 months when a look at India's history suggests that delivering on those principles, such as primacy of the constitution, is task that we still have not managed to fully achieve. I ask myself, if the country has supposedly suffered with this colonial baggage for over 150 years, why not we spend a few more to try and make sure we don't end up under a different kind of ideological baggage this time? The impetus for reforming the criminal law has not come very often. It gives a chance to improve the life of each and every citizen and secure the promise of liberty. It is a chance that cannot be squandered.

Attachment of Property, Freezing Orders, and PMLA Investigations: The Need for Reasonable Exclusions

In almost any prosecution, the property used to commit a crime becomes case property (a murder weapon). In some kinds of prosecutions, this extends to locking down the site of criminal acts (a brothel or a gaming house). There are also other prosecutions, such as those for money laundering, where a major focus is on identifying the property generated from criminal acts (flat bought by public servant from bribe money). 

Countries across the world take the view that for effective deterrence of crime, law enforcement must also have powers to take away the proceeds of crime besides prosecuting the criminal act itself. In India, this translates into empowering law enforcement agencies with ability to pass orders for attachment / freezing of assets, to restrain anyone from altering / transferring property that is identified as part of the proceeds of crime. The pre-eminent example of this attachment / freezing order regime in India is the Prevention of Money Laundering Act 2002 ["PMLA"]. 

Broad Powers 

Currently, Section 5 of the PMLA confers upon investigating officers a power to provisionally (for upto 6 months) attach property which is believed to be "proceeds of crime" [Or property that is "involved in money laundering", which may or may not be understood to mean a different thing]. To appreciate the breadth of this power, take a look at how Section 2(u) of the PMLA defines the phrase "proceeds of crime"

"Proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad;

Explanation. — For the removal of doubts, it is hereby clarified that "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;

[Emphasis mine] 

 

Keeping aside the fact that the exact scope of this definition is still uncertain even to courts and is almost infinitely broad, there are three key takeaways from the definition: (i) Proceeds of crime can either be the actual property obtained through criminal activity or its value; (ii) The criminal activity itself need only be relatable to a scheduled offence [the list of predicate offences which allow invoking the PMLA].

What we have, then, is a power conferred upon investigating officers to take away almost any asset or property that they can show as having links to the alleged acts of criminality in a case. For example, it means the agency can issue warrants of attachment of a house, as the accused would have invested some money in building / buying the house which will be shown to bear a link to the alleged acts of criminality that are connected to the scheduled offence. And where the property itself is not identifiable, then it would probably trigger an attachment order qua certain amounts lodged in bank accounts.  

 

Safeguards

The breadth of provisional attachment powers under the PMLA necessitates the existence of some legal safeguards to prevent undue hardship at the hands of executive officers. Enter, the three-step logic of the PMLA. The argument, essentially, is that the PMLA contains a multi-level system of safeguards to prevent abuse:*

1. First level — Provisional Attachment: Provisional attachment orders are time-barred and can only be issued if there are "reasons to believe" that property is the proceeds of crime / involved in money laundering. These reasons must be in writing. Further, such orders cannot interfere with enjoyment of immovable property;
2. Second level — Confirmation: Within thirty days of issuing a provisional attachment order, a complaint must be sent to the Adjudicating Authority which then decides whether or not to confirm the provisional order. This is an independent tribunal which operates totally separately from the criminal court. At this stage, everyone interested in the property has the chance to make their case to show why it shouldn't be attached, and a reasoned order must be passed by the Authority to justify its conclusions. This process is, again, time-bound.
3. Third level — Appeal: A right of statutory appeal before an Appellate Tribunal for Money Laundering exists for all persons aggrieved by the orders of the Adjudicating Authority.

In almost any writ petition challenging attachment orders, this is a standard response on behalf of the law enforcement agencies to argue that the matter should remain within the PMLA system and not be taken up by the court. 

The Need for Reasonable Exclusions

The three-step logic of the PMLA does offer some safeguards, in theory at least. But even so, this setup has critical design flaws. 

The broad attachment powers of the PMLA exist in a system where eventual confiscation of the proceeds of crime requires a prior criminal conviction for money laundering offences. Therefore, almost every attachment order will likely subsist for the several years that it takes for any prosecution to complete. It also means that once a person fails to secure any relief through the three-step PMLA process, she will not be entitled to any enjoyment of her own property.

While this might not be a problem for small, replaceable items, such as a watch or a laptop, it becomes an unimaginable problem where the property is a house. Or, far worse, is the situation where the property attached is money lying in bank accounts. Here, the three-step safeguards come to nought as all access to the property is gone the moment a provisional attachment order is passed. What this means, then, is that a person is rendered penniless, and crippled in her ability to sustain the long legal battle required to prove her case first before the tribunals and then later in the criminal trial. 

This is not the only drastic scenario that I can imagine. Consider, for instance, a case where money in bank accounts is attached as the actual proceeds of crime have since been sold. But now, these monies are held in the accounts of a company that has nothing to do with any money laundering allegation and offers gainful employment to hundreds of people. 

These routine examples from the world of PMLA prosecutions show just how unfair this legal regime is.  It is also squarely unconstitutional. This complete deprivation of property by passing attachment orders for the entire asset is by no means a reasonable or proportionate manner to secure state interests. If anything, it is a classic case of pursuing state interests by trampling upon the most basic rights of affected persons. 

A way to make this regime more palatable would be to start recognising reasonable exclusions from the scope of any attachment orders. For instance, allowing persons to remain in possession upon payment of rent; or allowing certain limited withdrawals to continue running a business and paying salaries; or paying lawyers' fees. These are not revolutionary ideas and are in fact already part of the law in other countries [See, e.g., Section 303Z5 of the U.K. Proceeds of Crime Act, 2002; Luis v. United States, 136 S. Ct. 1083]. By engrafting a process of recognising reasonable exclusions within the PMLA statutory framework — at the stage of provisional attachment orders for movable property and at the confirmation stage for immovable property — the core fairness and proportionality concerns would be answered to some extent. Moreover, it would also help save judicial time, as currently such reliefs are sought either through writ proceedings in High Courts or through interim orders before the Appellate Tribunal.  

Conclusions

The PMLA has not been a statute shy of legislative tinkering. Often, this has been a response to some or the other gaps being pointed out in the scheme of the Act. The absence of any reasonable exclusions from the attachment regime is as big a gap as there can be. It leads to a disproportionate deprivation of the basic rights (and needs) of innocent persons, and also wastes valuable judicial time and effort. Ergo, a happy ending? Remember, it is the hope that kills you. 

* The Three-level logic can also be used as a reference to the relief structure that exists besides the need under Section 5 for the officer to record reasons to believe. Here, the first step would be the Confirmation hearing, the second step the Appellate Tribunal, and the third would be the statutory right to move the High Court under Section 42 of the PMLA.

[This post was updated on 29.05.2020 to add a note on the three-step logic for reliefs within the PMLA]

Section 144 Cr.P.C. — Part III: Expansive Powers, in the Hands of Many Officers

(This is the third post in a multi-part series on the Blog on Section 144, Cr.P.C.)

The previous post traced a historical arc stretching from 1861 till the end of the 19th Century to show the gradual development of Section 144, Cr.P.C. It looked at the socio-political contexts in which the powers conferred by this provision were being applied, and legally resisted, and argued that the legal framework regulating the exercise of these wide powers still permitted for vast arbitrariness in how officers wielded their discretion. But on re-reading the post, I thought there was a need to develop these points further before we go ahead in engaging with Section 144 during the period from 1901 to 1950, as advertised at the end of the last post. My apologies for this detour.

Like the title suggests, in this post, I try to go beyond the expansive nature of powers under Section 144, Cr.P.C. and instead shed more light on the authorities empowered to use these powers (relying heavily on the analysis offered by Professors Singha and Hussain, which I referred to in the last post). Besides this aspect, I also take note of how from 1860 till 1900 (almost), similar powers came to be vested in police officers under various Police Acts. The result was a legal regime being birthed by the start of the 20th Century, in which a laundry-list of executive officers wielded immense discretionary powers under different laws, and could obstruct any aspect of public life in the name of maintaining "public order" or preventing "public nuisance". This multi-layered legal regime remains a feature of Indian law to this day — something lawyers have had to face over the past few months.

The "Responsible Officers" tasked with Maintaining Public Order

One of the hallmarks of the colonial model of governance was creating a nodal officer as the centre of power for a region. Thus, control over all aspects of revenue collection, policing, land regulation, and the dispensation of justice through courts, came to be vested with a single officer known as the District Commissioners or District Magistrates. These officers became the cornerstones of the colonial administration in India, imagined as having a steady grip on the pulse of all local affairs. For many persons in the District, these were the supreme manifestation of official power, and were often white Europeans.

It is not very difficult to imagine how this notion of a high-powered official could easily change from a force for dispensing justice to a local despot exercising immense power in an arbitrary manner to benefit select interests. These fears of despotism guided the creation of legal systems in which decisions are made on the basis of standard criteria which ensures a measure of consistency in how things are done and allows people the chance to order their affairs to avoid penalties for breaking rules. Thus, we see how the very idea of a codified system is destined to reduce the power of the high-powered District officer. But here comes the catch: What if the ruling authority actually supports the expediency that boundless discretion brings, and is therefore skeptical of a system of rules wherein decisions must be made by processes, after taking evidence and hearing all sides, and with written reasons allowing aggrieved persons the chance to appeal a decision? We find an answer in provisions such as Section 144 where, on the face of it, a procedure is prescribed and discretion is limited by law. But, on closer scrutiny, the scope of discretion is found to be almost limitless, with the law permitting decisions to be made without having any hearing or any evidence, and with no right of appeal.

The colonial rulers were under no misconceptions about such provisions — they knew how a vaguely worded law ensured that executive officers retained the broad discretion that they were accustomed to for getting work done in the colony. To justify this position, they offered an inherently fallacious argument, which painted the high-powered nature of the official as a blessing. Rather than it being a bad thing for these officers to wield vast powers, it was argued that the very nature of their position ensured that they would make good decisions. Thus, as Turner, C.J. of the Madras High Court observed in Sundram Chetti [ILR (1884) 6 Mad 203], "The law [s. 518 of the 1872 Cr.P.C.] in sanctioning this imperfectly controlled power is careful to provide it shall be committed only to Magistrates whose discretion is presumably guaranteed by their responsible position or by selection."   
 
With this in mind, let's take a look at the various iterations of Section 144 and how it conferred this "imperfectly controlled power" upon officers: 

• 1861: Section 62 prescribed that powers could be wielded by "Any Magistrate", where Section 16 defined Magistrate as persons "exercising all or any of the powers of a Magistrate". Thus, many officials empowered under various laws were given these powers, including senior police officers.
• 1872: Section 518 conferred powers upon "a Magistrate of the District, or a Magistrate of a Division of a District, or any Magistrate specifically empowered", which meant that the Local Government or the District Magistrate could vest even a Magistrate of the Third Class could with these vast powers [See, Sections 22 and 23].
• 1882: Section 144 conferred powers upon the same category of officials.
• 1898: Section 144 conferred powers upon the same categories, while also including a Chief Presidency Magistrate to that list of statutorily competent officers.    

While the law explicitly empowered senior officers such as a District Magistrate, it also allowed the Local Government (or the District Magistrate himself) to confer powers upon any other officer. There was no avenue to challenge this delegation of power, which was used quite liberally, as reflected in the legal commentaries and manuals of that time.

The idea that only senior officers must be conferred with wide discretion to prevent misuse is one that we routinely encounter, and have come to accept as a justifiable bulwark against arbitrary exercise of powers. It could certainly act as a check upon how the wide powers under Section 144 were used. But this could hardly be said of a situation where the law went beyond empowering only senior officers and actually allowed governments to confer powers upon other officials including lowly Third Class Magistrates. For such delegatees, it could hardly be argued that their position ensured responsible decisions would be made. And, unfortunately, the latter reflected the truth about Section 144, which became one of the vehicles through which many junior officials came to be vested with awesome powers with the potential to upend normal life. 

Co-existing Spheres of Power: The Police Acts and Public Order

As the Criminal Procedure Code witnessed various iterations over the years, changes were also being made to another key aspect of the legal regime governing public order in the colony: the laws regulating policing. The idea of police personnel having powers to regulate the minutae of daily life in the cities was almost entirely non-existent in the early versions of local police acts, as well as the first "Indian" Police Act of 1861. However, by the first decade of the 20th Century, almost all the local laws (as well as the overarching 1861 statute) had provisions empowering police officials to go ahead and regulate public activity in the streets.

Section 30 of the 1861 Police Act [Page 21 of the pdf] permitted the two highest police officials in a District to pass orders regulating conduct of processions, without conferring any powers to ban them. But if we look at the Madras City Police Act of 1888 (supplementing the Madras District Police Act of 1859), Section 41 of this law expanded the scope of the regulatory powers over assemblies, meetings or processions. Not only were these powers conferred upon Police Commissioners and any officer authorised by them in this regard, but they went beyond regulating assemblies to prohibiting them if police thought such activity was likely to cause a breach of peace. By 1895, Section 30 of the Police Act was also amended to widen the scope of regulation, with Section 30-A inserted permitting police to prohibit meetings or processions under this statute as well. Perhaps the widest encroachment upon daily life was made by the City Police Act of 1902 enacted in Bombay. Here, besides the strict regulation over carrying out processions or assemblies, the police control also extended to "keeping order" in all public places, which could mean almost anything. By 1910, similar provisions had been inserted by inserting Section 39-A in the 1866 Calcutta Suburban Police Act.

The gradual expansion of policing power across various provinces in colonial India definitely hints at a pattern. Unfortunately, I have been unable to locate much discussion on these amendments, besides an excellent piece by Prashant Kidambi on the introduction of the City Police Act, 1902 in Bombay. Kidambi argues that the rise in sectarian and labour violence witnessed in Bombay during the 1890s created a fear of the street and convinced the government of the need for enhanced police powers to regulate these spaces. It is possible that the governments of other provinces were driven by a similar logic. As Kidambi illustrates, the continued tensions in early 20th Century Bombay created a suitable atmosphere for the police to use their new powers to regulate how different sects carried out their business. But at the same time, the police also began to exercise their newfound discretionary powers to engage with the street, and these cases of "public nuisance" became the most reported crimes in the city. The zealousness being at times self-motivated by the officer's desire for more cases, and at times being a reaction to demands made by the elite to clean up the city.

What we find then is a picture of the city where the presence of police loomed large upon the lives of the people, and especially those who had anything to do in the streets. The police had powers to prohibit any acts in their bid to maintain "public order" and prevent potential breaches of the peace — powers remarkably similar to those conferred under Section 144. The statutory approval for delegating these wide powers was yet another aspect where the similarities between the Police Acts and Section 144 were apparent. And, furthermore, very often these powers co-existed in the same officers, as Police Commissioners were often recognised as having all powers of Magistrates by the 1861 Act (and other senior police officers were explicitly conferred with Section 144 powers by the local government).

But there were also differences between these two sets of powers which actually showed how the scope for arbitrariness was in fact wider in the Police Act powers than under Section 144. Unlike Section 144, there was no logic of emergency or expediency limiting the invocation of these powers by the police. Nor did the Police Acts permit for a possibility of hearing before decisions were made. And the decisions of the police were much more difficult to challenge in courts as they were not the outcomes of judicial proceedings. The consequence of all of this was that in the Police Act framework there was a lower level of justification before making decisions that denied exercise of civil rights.

Conclusion: The Subordination of Civil Rights to Public Order
The purpose of this post was to highlight just how large the shadow of executive authority looming over the exercise of any public-oriented activity in India was by the start of the 20th Century. The police had been given wide powers of interfering with public activities in the interests of "public order", and this was in addition to the extremely wide powers conferred upon Magistrates to order persons to abstain from doing any act which was likely to disturb public tranquility. Up till this point, these wide powers had been primarily used for balancing the interests of rival landholders and religious groups. But there was nothing stopping these powers from becoming convenient tools to muzzle the voice of public opinion critical of the government. More on that in the upcoming posts. 

Article Update: Rights or Benefits? The Indian Supreme Court and Criminal Procedure

A few months ago, I wrote on this blog about the Supreme Court's decision in Varinder Kumar v. State of H.P., through which a different bench of Three Justices limited the applicability of the ruling in Mohan Lal v. State of Punjab, which was delivered in early 2018. To quickly recap, the issue at hand was very specific: are investigations by the police officer who was responsible for the initial drug-bust (these were NDPS cases) liable to be set aside on apprehensions of bias? 

In Mohan Lal, the 2018 decision, the Supreme Court said yes and made a new rule that the same officer can't continue to investigate the case. Where the same officer did continue, it would render the entire investigate illegal and, naturally, also render the eventual trial to be set aside. By all accounts this was a pretty drastic set of remedies being judicially created, and back in 2018 itself there was a sense of palpable discontent with the ruling especially because it would potentially affect pending cases. Fast-forward to 2019, and the decision in Varinder Kumar came which explicitly made the ruling in Mohan Lal inapplicable to all pending cases. 

But rather than simply restrict the ruling because of the madness that would ensue in pending cases, the decision in Varinder Kumar engaged in a profound discussion about the need to balance rights of accused persons versus the rights of victims / society. The discussion, as I argued in the earlier post, was horribly misguided and based on unsubstantiated straw-man arguments that ultimately imperil the values of freedom, equality and fraternity sought to be secured through the Constitution by means of a criminal procedure code.  

In a short paper recently published in the Journal of NLU-D (SSRN version here), I engage with the idea that maybe the experience in Mohan Lal and Varinder Kumar is reflective of a deeper, more entrenched trend, of how the Supreme Court has historically dealt with the idea of "rights" in context of criminal procedure. To this end, I draw a parallel with the rights to free legal aid and a speedy trial, both of which were hallmarks of the Indian Supreme Court's Due Process revolution between the late 1970s to 1980s. 

While the Supreme Court certainly spoke a language of "Rights" while dealing with the issues, on closer examination it appears that this was only a tool to help redress the plight of poor and oppressed persons in dealing with the State, a task which the court took on through the vehicle of particular cases before it. The decision by which these "Rights" are created in fact show a surprising disregard for critical issues that would need some thought; for instance, what remedy should follow if the right stands violated? 

That the Court is fashioning the contours of this right as it goes along (or "winging it") becomes clear with each successive case. Until finally, matters reach a head and a petition is brought by a kind of litigant who the Court definitely didn't have in mind when it was fashioning these new rights. For instance, and this is from a Case, the right to legal aid is sought by someone implicated in a case about sexual assault or a socio-economic offence. 

What does the Court do? It doesn't stay true to the logic of "Rights" in these cases and treat all defendants equally, nor does it create rational limits based on economic status etc. Instead, it tells us that these defendants are not getting protections. Without saying it, the Court transforms these rights, into benefits, which it will confer upon classes of persons which it decides are deserving of them.

By no means am I claiming to have studied all the rights-creating exercises of the Court in my Paper. But the similarities in judicial approach in cases that are separated by decades is certainly striking. If nothing else, the paper encourages some reflection about the halo that gets drawn over the judicial excursions of the Post-Emergency era in Indian legal history by many quarters. More seriously, it also invites critical thinking about reform strategies that turn to the Court for help and should make all the stakeholders pay more attention to the means that are employed to achieve possibly desirable ends. 

Birla v. Adventz: A Snapshot of the Supreme Court and Criminal Law & Procedure

I happened to be in the Supreme Court in February when arguments were being addressed by parties in Criminal Appeal No. 875 of 2019, Birla Corporation Ltd. v. Adventz Investments & Holdings Ltd. & Ors. (Connected with Crl. Appeal Nos. 876 of 2019 and 877 of 2019). It was a great experience as some of the country’s most famous lawyers were addressing the Court, Not on a nuanced issue of constitutional law, but on whether a High Court had erred in quashing summons issued on a criminal complaint. Remarkably, the Supreme Court concluded hearings in just a few dates, and also passed a judgment — not an interim order — a few months thereafter. 

The Facts 

Who was before the Court, and what was at stake? Both parties in the connected matters were rival factions of the M.P. Birla family, running several business and part of the eponymous “Birla” industrial house in India. For this post, I’ll focus on the lead appeal — Birla v. Adventz, as mentioned above. Here, the rival factions had been fighting with each other for some time before different courts / tribunals. In one such proceeding (an oppression and mismanagement suit), Adventz filed a representation with documents that Birla Corp. believed it had kept under lock and key (metaphorically speaking) by them. The only way that Adventz could have gotten the papers, they believed, was by stealing them. 

A complaint was filed, alleging theft from the offices of Birla Corp., claiming that some persons had entered the office premises and taken the documents. While some of the documents had been copied and kept back, some originals were still in the possession of Adventz. It was also alleged that this was a well-planned affair, involving higher-ups in Adventz, as well as those in-charge for security in the building where the Birla office was located. The complaint by Birla Corp. was filed against many accused persons, including Kumar Mangalam Birla, and alleged offences under Sections 379 (Theft), 403 (Misappropriation), 411 (Handling Stolen Property) read with 120-B (Conspiracy) of the Indian Penal Code [IPC]. 

A Magistrate issued summons to all accused persons in 2010, but this order was partly set aside by the High Court in 2015 — mainly because it thought that the documents copied and returned could not have been the “movable property”, which is the subject of the theft offence in the IPC. Both sides had a grievance against the High Court order: The Appellants argued that the summons should not be set aside at all, while the Respondents argued that it should have been set aside in full. These grievances were taken to the Supreme Court, where the Respondents ended up winning. The next parts discuss the legal issues on which the fate of the petitions turned.

Summoning Accused Persons — Illegalities versus Irregularities 

Summoning an accused person in any case is a nascent stage in the proceedings. In challenging a summoning order and filing appeals on such preliminary issues, the underlying proceedings naturally suffer delays, which is why courts are often livid at parties for running to appellate courts challenging criminal proceedings at their inception. This is more so, because the Criminal Procedure Code 1973 [Cr.P.C.] contains inbuilt remedies allowing for courts to end cases before they reach a trial: (i) A court can refuse to take cognizance of a case finding no offence is spelled out, (ii) refuse to summon persons finding allegations are not made out prima facie, and (iii) discharge the accused persons finding that the allegations are groundless.

To ensure that immense time is not spent upon judging the veracity of proceedings right at the outset, even before hearing the accused, courts operate upon a logic of incremental scrutiny. Each successive stage of the proceedings permits the court to look deeper into the facts. Thus, while deciding whether to take cognizance of a case or not, the court is literally expected to see whether the allegations make out an offence. At the stage of summoning, we move beyond merely looking at what the allegations are to also test their soundness to determine whether they make sense. The minimal scrutiny at these stages makes sense, for till now the accused is absent from proceedings. Permitting the court to go too deep into the facts creates possibilities of prejudice against the accused even before a word might be spoken by her in court. Once the accused does appear — at the stage of charge — the scope for testing the matters is naturally greater. But there are still some limits, as courts refuse to look beyond the prosecution case and thus don't consider the defence version of the facts. That, is reserved for trial.     

In cases filed on private complaints such as Birla-Adventz, as against cases instituted after police investigations, the scope for ending cases before trial is even broader. This is because unlike cases instituted by the police involving a thorough investigation (in theory) that gives allegations an air of genuineness, private complaints are instituted by parties who are naturally biased. The scope for frivolous cases is higher, and so courts actively engage in deciding (i) whether or not to summon persons, and (ii) whether to discharge those persons who have been summoned. In fact, the scope for discharging persons is notably broader than cases instituted by the police. Here, not only does the complainant have to lead evidence to convince a court that charges should be framed, the Cr.P.C. empowers a court to end the case even before such evidence can be concluded, if it thinks that the case is baseless.

Therefore, since the Cr.P.C. is operating on a logic of incremental scrutiny at the successive stages of a proceeding, then it is only appropriate that litigants should be discouraged from jumping the gun and running to an appellate court. But this perspective is met by a powerful rebuke from accused persons stemming from a perception that they are being prosecuted unjustly. Given how court cases are often a painful slog across India, if, as an accused person, I am convinced that the case against me is baseless, why  should I suffer court proceedings for even a single minute? This sense of "perceived injustice" is a common occurrence in almost all accused / defendants and leads to several thousands of petitions being filed each year which challenge criminal cases at their inception. In several hundred of these, like Birla-Adventz, appellate courts do end up being persuaded by this perceived injustice argument, and agree to end the criminal case at the inception itself.

If you think that courts have some great method figured out by which they can cherry-pick the really bad cases where they must necessarily intervene, from the average ones where regular procedure can run its course, you are horribly mistaken. The test to decide when trial courts should not have proceeded further with a case are extremely vague and end up inviting the judge to resort to an "I know it when I see it" approach. The same naturally goes for the appellate courts. In this situation, then, it frequently happens that pre-trial orders on cognizance / summoning aren't thrown out because they're horribly wrong orders, but because appellate courts can, and often do, ignore the incremental logic that the Cr.P.C. is built upon. Basically, while the statute tells the trial court to conduct a limited scrutiny of the facts at the stage of summoning, appellate courts go ahead and review this order by testing facts as if the court was hearing arguments on charge. In a situation like this, our two forums are now dealing apples and oranges.

I am not saying that the appellate court actively starts to overstep its brief. Rather, I am saying that tests with fuzzy lines encourage ignorance of the incremental logic; either by allowing courts to conduct a deeper scrutiny without actually saying so, or with different courts unknowingly ending up  testing facts to different levels because nobody knows how much scrutiny is enough. The fact that in an appellate challenge, the accused is present and making submissions, might actually be contributing to a subconscious bias encouraging greater scrutiny.  

Birla-Adventz is a case where this problem—of balancing delays with perceived injustice—is on full display. The delay was manifest: a 2010 order was challenged in the High Court which passed a judgment in 2015, during which time the trial did not progress, and then that High Court order was challenged in the Supreme Court which took another four years to decide. Thus, for nine years, the underlying complaint case remained in suspended animation. In the Supreme Court, the focus of arguments on behalf of the Respondents — who wanted the summons to go completely — was that the magistrate had not scrutinised the allegations sufficiently enough, and a thorough scrutiny showed that the allegations are baseless. In effect, they were asking that the Court use a magnifying glass to view the case at a stage when the law only allowed to look at it with the naked eye. Or, to bring it in context of the Cr.P.C., they were asking for arguments on charge at the stage of summoning itself.  

Pause for a second here. A case in which the legal system had invested almost a decade of time and public money is ultimately thrown out because two people (the Supreme Court) are convinced that in issuing summons, the magistrate did not do his job properly, and they disagree with two other people (the magistrate and the High Court Judge) who did think that (to different extents) the magistrate did do his job properly. And during all this time, all that is guiding decision-making at all these three levels of the legal system is a test that calls upon judges to intervene when they know it is a good or bad case. I am all for procedural rights, but frankly, this is a cruel joke. The setting does not resemble the rule of Law but resembles the very rule by authority that a legal system is designed to replace.

Are we doomed to forever remain in this land of hopeless arbitrariness where the Birlas of the world can hire the right lawyers and convince courts of their perceived injustice to end trials, while many other cases with equally serious kinds of injustice, are allowed to continue to trial? Of course not. There are many solutions that one can think of — and I have argued in favour of some elsewhere — but one solution exists within the Cr.P.C in Chapter 35 which discusses "Irregular Proceedings". Sections 460 to 464 explain the kinds of issues which can, and cannot, lead to termination of proceedings. And on top of this, there is Section 465 Cr.P.C., which says that no order by a competent court can be reversed unless the party challenging it can show that it occasioned a "failure of justice". Though this is also a vague notion, but at least it makes everyone aware that there must be something beyond a pure technical flaw that must subsist to throw out a case. Repeated use of this provision will also end up giving courts the chance to give "failure of justice" more definite contours as well. 

The Issue of Theft — Was it Better Left Alone?

In Birla-Adventz, there was really no reason whatsoever for the Supreme Court to say anything further after it had decided to set aside the summoning order because it found the magistrate had not inquired into the case properly. Yet, true to form, the Court went on to the other issue — whether or not documents copied and returned could be the subject of theft. Reading the passages beyond page forty-six of the judgment, one thinks it would have been best had the Court left this alone.

The Court gave an unequivocal ruling on the most obvious of the issues — that documents can be the subject of theft. But then, it floundered on the question of whether there was theft in this case. The offence, as defined under Section 378 IPC, requires very little in terms of actual conduct: A person must move some movable property without consent of the person in whose possession the property is. But this movement must be in order to take it, with an intent to dispossess that person dishonestly. "Dishonestly" is a technical term in Indian criminal law. It is defined in the IPC as conduct that either causes wrongful loss to someone, or wrongful gain to someone [Section 24 IPC].  

If a person takes my papers without my consent, and let us assume that there is no doubt over my right over the papers and the absence of my consent, then that naturally results in causing wrongful loss to me. The same conclusion makes sense in the facts of Birla-Adventz. But the Court did not reach this conclusion, because it found that the ultimate purpose of this taking of papers was to use them for defence in a litigation. In confusing the dishonest intention that guides a person's conduct with the larger motive for which that conduct was performed, the Court made an elementary error of confusing motive with intention. Remember, Jean Valjean stole the bread to feed his sister's starving children, and yet he was branded 24601, all because motive does not replace intent.     

Fortunately, this is obiter, and should not be relied upon in subsequent decisions. But given how the most irrelevant of utterances from up-high in New Delhi end up being used authoritatively in courts below, I really worry about the kinds of problems this little excursion into the law of theft causes on the ground. 

Conclusion

Birla-Adventz offers a snapshot view of many of the problems that affect Supreme Court litigation, especially on matters of Indian criminal law and procedure. It reminds us how the Court can get the most basic things wrong—conflating motive with intention in this case. But more importantly, the judgment focuses attention on the broad standards installed in criminal procedure to regulate judicial discretion at various stages. The vast space for argument afforded by the broad standards in criminal procedure, does not end up being filled up by legal principles that can be applied consistently across the board, but by hollow words that allow judges to do as they please by clothing it with sufficient legalese.

To put it bluntly, the vagueness of the standards often ends up getting concretely defined across class-lines, with the propertied, moneyed, politically correct persons getting a different kind of justice from minorities, persons without means, or persons who are politically, incorrect. The former class ends up getting summoning orders set aside to avoid trials and go home peacefully, while poor Muslims / anti-national intellectuals stay in jail while being accused of crimes that almost always end up in acquittals at trial. And in all of these cases, it is the people who are the victims in this entire scheme, as taxpayers bear the costs brought about by lengthy pre-trial delays and trials in cases that should have been thrown out much before.

Having better standards to regulate judicial discretion, and better remedies to decide what happens if there are errors, is therefore another critical component to consider while thinking about how to make our criminal justice system work better for the future.

Guest Post: Understanding the Position of a Prosecutor in the Indian Criminal Justice System

(I am delighted to present what will hopefully be a series of posts by Mr. Divyang Thakur. Mr. Thakur has been working as a Public Prosecutor for three years in Delhi, and was practising law across trial courts in Delhi before that. The views expressed here are entirely personal.)

The Supreme Court of India has said that the Public Prosecutor is a “minister of justice” To say that such epithets are inadequate as guidance to a prosecutor who actually wishes to understand his place in our Criminal Justice System, is to understate it. This is an introduction to what I hope will become a series of entries exploring the Criminal Justice System from the viewpoint of a Public Prosecutor in India. 

A few disclaimers: I cannot claim to speak for all the prosecutors of this country, and do not claim to know the conditions of the Criminal Justice System in general and conditions of prosecutors outside of the National Capital Territory of Delhi. India is such a diverse country that there are variations in the manner of working within the various districts of Delhi itself. I can only hope to strike a chord with a prosecutor in, say, Kerala, and find some common ground with the judiciary, police, the Bar, and most importantly, the people of this country; for whom this system is purportedly in place. 

Some Common Misconceptions 

So, without further ado – what is the role of a Public Prosecutor? Or, who is a Public Prosecutor? Most citizens are unsure (including lawyers). The most common refrain I hear is that the prosecutor is a “Sarkari Vakil” (Government Lawyer). This definition, is not only inaccurate, it is wholly incorrect. 

A Public Prosecutor is, and I cannot stress enough how empathically I say this, not a Government Lawyer in any sense of that term. He is not a Standing Counsel, not an Additional Advocate General. He does not represent the Government of the State which employs him. A Prosecutor, who is selected in the permanent cadre, cannot be dismissed from his position on the changing of government. He is a public servant to whom the Central Civil Service Rules apply, in toto. He is subject to the Prevention of Corruption Act, 1988. 

One can also say even more empathically, that a Public Prosecutor is not a Police Lawyer. This is another common misconception among litigants, that the Prosecutor is representing the local Thana (Police Station). This misconception is entirely understandable. Before the 2005 amendment to the Code of Criminal Procedure (CrPC), there was no “Directorate of Prosecution”. The Prosecution Department was intertwined with the Police Department. I cannot comment on what the state of the prosecution was in those times, except to say that I find it difficult to imagine why it took so long for this development to occur. A Prosecutor working under the directions of a police officer would be unimaginable in most civilised countries which have some sort of a “due process” in place. In fact, in the USA, it is the direct opposite (Why that could be problematic is a topic for another day). From the stories I have heard from Public Prosecutors in the CBI and NIA, the Pre-2005 amendment position still stands true for those institutions, and hopefully I can come back to this in future posts. 

A Public Prosecutor, also, does not represent the victim nor the accused. Needless to add, but in the actual trial court environs, something that is forgotten by the judiciary and the Bar, is that, he is not there to provide support functions such as translation of the vernacular into English. He does not frame charges. He is not there to record statements under 313 CrPC (he can assist by suggesting questions to the Presiding Officer, of course). He is not there to dictate evidence to the stenographer. 

Understanding the Role of a Public Prosecutor – The Traditional View 

The traditional understanding (at least from where I stand) is that a Public Prosecutor is interested in ensuring that (i) no person is unlawfully detained, (ii) no person is kept in custody and deprived of his liberty longer than absolutely necessary before the judgment is pronounced, (iii) that the trial is completed as quickly as possible, and in a fair manner, (iv) that the best evidence is placed on record, (v) that witnesses are not intimidated or subject to an unfair cross examination; (vi) that victims are compensated by the State for being unable to protect them from crime (the supposed reason for the origin of the Leviathan, after all). All the above said aspects are also the values sought to be upheld by the judiciary. So, is the Public Prosecutor one more check and balance in the system – an additional layer of security to zealously guard Article 21, that cornerstone of a humane society? Yes, and an important one at that. 

A Public Prosecutor is a statutory authority under the CrPC. This much is certain. The Supreme Court says he is an officer of the Court. This is again, true, but inadequate, because so is every lawyer at the bar. Is not the defence counsel, an officer of the court, sworn to uphold the law? The truth, as is usual, is simple, but complicated. At various stages of the criminal justice system, a Public Prosecutor acts in the interests (as opposed to “represent”) of the (i) accused; (ii) the victim; (iii) the witness (because not all witnesses are necessarily victims of the crime as understood in law); and at all times he acts in the interest of (iv) fairness and justice. This last term is fraught with uncertainty and potholes, but they are unavoidable. 

Let us consider that last one, justice. What is justice? Or rather, what do I, as a Public Prosecutor, mean when I use that notoriously loose term? I would say there are three main aspects that I have focused on in my career as a Prosecutor:— (i) ensuring a fair trial to the accused; (ii) presenting the best admissible evidence in court; (iii) grievance redressal and compensation to victims of crime; (iv) ensuring that no charge sheet is filed which would result in invoking the criminal process against someone who would in all likelihood be acquitted after trial. Out of all, this last one is fraught with a great deal of controversy today. 

Prosecutorial Oversight — Taking the Best Cases to Court 

The present system (at least in the Govt of NCT of Delhi) amounts to a policy of "have your cake and eat it too". Judgments delivered by the Supreme Court and Delhi High Court have only muddled the issue of prosecutorial oversight before the filing of the charge sheet. No one can seem to agree upon the extent of the prosecutors' power of oversight over the police at the stage of investigation and more importantly, over the decision to file a charge sheet in Court. I argue in favour of a clearer stance that manifests a greater role for prosecutions in the stages leading to the decision to prosecute or not.

A prosecutor should be able to ensure that no one is prosecuted who, in his wide-ranging experience, would in all likelihood be acquitted for want of sufficient evidence i.e. inability to meet the “beyond reasonable doubt” standard. This stems from my firm belief that avoiding a trial which results in acquittal is preferable to charging someone with a crime and dragging him through trial. It might seem novel in India, but in jurisdictions like the USA, prosecutors have always had control over who they wish to prosecute. And if a prosecutor thinks that there is a good chance that he might not be successful at trial then more often than not, such cases don’t go to trial. 

I would argue that such a system has advantages over our present system, where any charge sheet with a pulse finds it way to our over stuffed court system. Sticking to a system where criminal cases are a matter of course and not exceptions also diminishes the importance of the presumption of innocence. And since weak / frivolous charge sheets ultimately end up in acquittals, it leaves victims disheartened and accused persons disgruntled. Ultimately, such a system of prosecutions erodes the faith of the common man in democracy and the Constitution.    

What role am I imagining for the prosecutor? A much more involved one. A Prosecutor should have the power to point out the direction in which an investigation should take, and be aware of the ways in which an investigation can be mismanaged or wilfully obfuscated. The Prosecutor is not there merely to support a case against a particular person or to ensure that the charge sheet meets the required standards of proof, but also to ensure that no frivolous case is filed. He must understand the importance of conserving scant public resources against crime. A Public Prosecutor must establish strict standards that a charge sheet must meet before he signs off on it. And, this is crucial, he should be the one who must sign off on it. Thus, Prosecutors should be able to decide which cases to prosecute (developing on the discretion under Section 321 CrPC).  

Conclusion 

A Public Prosecutor is entrusted with the task of preserving the sanctity of the rule of law in the criminal process. To do this, the Prosecutor is expected to be an independent voice unaffected by the interests of the victims, the accused, the police, any considerations of expediency on part of the judiciary, and of course societal expectations. This is not to say that he does not or is not supposed to act to secure the interests of the various stakeholders, but that he decides the significance and extent of such interests and tries to realise his commitment to fairness and justice while keeping in mind the same. 

In this post, I focused on one aspect of how this dynamic — the decision to prosecute. I argued that a system which ives primacy to the Prosecutor’s decision over a charge sheet and sufficient oversight at the stage of investigation would help secure the disappearing presumption of innocence. This is because the police, in my view, seems to be filing as many charge sheets as possible against as many people as possible and in that process seeks to keep an accused in custody as long as possible. Such a perspective might have been apt for colonial India, but is starkly out of place under our constitutional regime.

There are tremendous structural obstacles of various kinds to achieve this vision of an independent Public Prosecutor. In this series, by picking up some of the aspects I have touched upon, I will seek to delineate the practical problems faced by Public Prosecutors and outline some solutions that I think can be useful. Before picking up specific issues, it is important to note the reality in which Public Prosecutors function: What is the structure? What infrastructure has been provided? What is the reality of the trial court? This will be the subject of the next post in the series.