Saturday, May 6, 2017

Supreme Court Affirms Death Sentence for December 16 Incident - Some Thoughts

The Supreme Court yesterday affirmed the death sentence awarded by the Trial Court, and confirmed by the High Court, in the case resulting out of the gang-rape incident that occurred in New Delhi on December 16, 2012. The decision was lapped up by raucous applause we are told, as "justice had been done". Seeing the circus that followed on national television led to some thinking and this post follows. The comments are frankly unoriginal, and are merely confirming what many of us know and understand. 

Criminal Law in the Age of Consumerism
Perhaps history will remember the first decades of the 21st century as the apogee of the age of consumerism and service-oriented thinking. Consumerist ideology has affected all facets of life, most notably government and governance. Good governance manuals now emphasise that this is a service being offered to citizens, and citizens have grievance redressal mechanisms galore akin to making complaints at a shopping mall. 

How has this affected the traditional understanding of criminal law? Significantly. There are books (David Garland's The Culture of Control an excellent one) which discuss this phenomenon. One thing that the present incident puts in the spotlight is how the consumerist ideology has brought victims in the spotlight. Criminal law classes begin by telling us how here the state is the victim - which is why most cases are prosecuted by state agencies. Crime is about harm to society, and the victim was not really given much importance. Slowly, though, this changed. If security is a service offered by the state, of which the criminal law was a facet, then it made sense to accede to victims demands for greater inclusion in the decision-making process. This would increase satisfaction with the system. This, like most other things, accelerated drastically with 24 hour television cycles. It became obvious that crime sells, and so maniacal reporting with amazing graphic (more on that later), little insight, and opinion polls through SMS came here to stay. Obviously, all this is class-specific, so the security concerns of the rich and middle class naturally get more air-time and attention than those affecting the poor. 

The legislative changes are there to see - India has allowed for victims to appeal against acquittals for some time now. This was unimaginable around thirty years ago. The present incident and the media coverage surrounding it just shows how far we've come down the road. Here, there is little else but the victim's perspective that is commented upon everywhere. 

Justice seems to have become rather One-Sided
A very wise lawyer once told me that our statutes created courts of law and not courts of justice, and so I should not lament over seemingly bad decisions. But what really is justice? If I was to take a shot at it, justice best serves as an adjective, describing decisions by looking at the means and ends both. A just decision is not only one arrived at in terms with proper processes of law, but also one that takes into account the rights and interests of every party involved. Given how scholars since Aristotle have been taking a shot at this, I'm pretty certain that my crude understanding is rather inadequate. Still, the idea of justice being something wholesome is something that can be found across philosophers, and can serve as one of the markers.

That wholesomeness seems to have been entirely abandoned in the present case. Nearly every news outlet ran pieces titled Justice for Nirbhaya. These ran with images of the adult perpetrators being crossed out with Hanged (eerily similar to the montage in the first Death Race film which was based on a system of lawlessness). Possible arguments advanced by the defence, on both conviction and sentencing, were brushed aside summarily. The bloodlust was chilling, but hardly novel. In all such cases, wherever there is extensive media coverage and sympathy for the victim, it becomes anathema to raise arguments supporting the rights of an accused person. This is mots extreme in terrorism trials, where persons are routinely denied fundamental human rights but those issues are airbrushed because of the threats to national security. 

In this regard, the Supreme Court deserves to be lauded for the effort it took to hear arguments on sentencing. The Court accepted specific affidavits addressing mitigation factors to consider whether the case fell within the rarest of rare standard (something which was not done in either of the courts below).

Extreme Cases and Lessons to Learn
Make no mistake, this case was extreme in terms of its brutality and violence. Extreme cases often lead to extreme reactions, so it is said, and therefore must not be used as markers to gauge a system. There is much merit in this. It is also valid to argue that extreme cases bring out latent tendencies and show exactly what each of us expects from the criminal justice system. Reactions to the present case leave me with little doubt that debates on abolishing the death sentence in India are a tad redundant. This is saddening, for there is nothing as arbitrary as the infliction of the death sentence in India. Perhaps more disturbing is the perception that those arguing for the defence are somehow bogeymen, delaying the inevitable. Such a view distorts the crucial role that the defence plays in ensuring that justice is not only done but in fact seen to be done. Alas, it would seem that the idea of justice, itself, may no longer be the same.

Tuesday, April 18, 2017

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

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

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

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

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

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

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

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

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

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

Tuesday, April 11, 2017

Snippet: Increasing Penalties for Traffic-Rule Violations Makes Roads Safer?

The short answer to the titular question here is, no. The Motor Vehicles (Amendment) Bill, 2016 is soon going to become law and is being largely hailed across platforms as a gamechanger. It brings in a lot of new things which are necessary - revamping definitions, including aggregator services, reworking the insurance and compensation provisions. But, sadly, it simply treads the all-too-familiar path of hiking penal tariffs in a bid to curb bad road behaviour. 

I have argued on this blog (a long time ago here) that this routine understanding of deterrence is fraught with problems. A rational decision-maker will consider costs posed by breaking the law, and the likelihood of being caught at that moment. The lesser the likelihood of being caught, the lesser any possible sanction will impact my behaviour. Duh, right? The fact that nobody seems to be stating the obvious at this moment is pretty infuriating, forcing me to say it all over again. To assume that adding another zero to the quantum of fines is going to deter people from driving rashly, or taking the wheel when drunk, is daft. Anybody who travels by road can tell you that the problem isn't just the existence of sanctions, but it is their enforcement. 

How often do traffic cops cut challans (fines) after stopping vehicles suspected of violating traffic rules? A simple attempt to map the disparity between these two events (the stopping of a vehicle vs. issuing a fine) and then reducing the arrears would probably achieve far more towards making our roads safer than another increase in penalties. And it is simple - just add recorders on the motorcycles that the traffic police use. That technology is inexpensive and easily accessible, and would deter the corruption that is rife in this field. Maybe this solution is also too naive. In fact, I'm sure it is. But it is surely better than simply raising the sceptre of more stringent punishment, ignoring how this will also proportionately increase the corruption plaguing the system at present. 

Tuesday, March 28, 2017

The Shifting Sands of Adversarial and Inquisitorial Systems in India

In his Hamlyn Lecture titled The Common Law in India delivered in 1960, MC Setalvad argued that the Indian criminal process contained several similarities with the British system. For him, India had adopted the Adversary System of Trial (page 45-47), which was a core precept of the Common Law. He went ahead to observe: "Equally rigorous is the application in India of the rule of Common Law which is said to put justice before truth. The decision, whether in a civil or a criminal trial, has to be rendered solely on the evidence put forward by the tribunal." To recap, this Adversarial system is in contrast with the Inquisitorial system that was a hallmark of Continental Europe. There, the judge has a far more active role to play towards eliciting the truth rather than merely administer justice.

Contrast his observations with those in the Order dated 26.08.2016 in CC No. 01/2016 titled 'CBI v Gondwana Ispat Ltd & Ors' passed by the Court of the Special Judge appointed for the 'Coal-Block Allocation Scam Cases'. Throughout this 27 page order, the Court is at pains to remind us that "the ultimate quest of a trial is to ascertain truth and this journey of ascertaining the truth cannot be defeated merely on the whims and fancies of an accused." This rhetoric is in place to support logic relied upon by the Court to conclude that the fundamental right against self-incrimination under Article 20(3) of the Constitution is not available during the process of admission-denial in a criminal trial. Though the Special Judge does not invoke the term 'inquisitorial', the extract would snugly fit into the court orders from Continental Europe where countries adopt the inquisitorial method.

So, what is it to be for India, the adversarial or inquisitorial? The Criminal Procedure Code 1973 [Cr.P.C.] and the Indian Evidence Act 1872 [IEA] offer our criminal process a convenient shape-shifting ability. So the only answer is, well, either that India has a unique method that combines bits of both worlds. This intermixing is quite thorough and can be found in the investigation stage as well. When the police are investigating the courts are not supposed to interfere and decisions since the Privy Council verdict in Nazir Ahmed [AIR 1945 PC 18] offer support for this view. But together with this we have Section 156(3) in the Cr.P.C. which empowers a Magistrate to direct the police to investigate. This was extended to include a power to monitor investigations by the Supreme Court in Sakiri Vasu [(2008) 2 SCC 409] to further bump the shift away from an Adversarial System. One might argue that the views of Mr Setlavad were restricted to trials and so this is an unfair criticism. But even in trials, we have devices such as Section 165 IEA, which allow a court to ask any question from a witness or summon any document, regardless or relevance. Since this had always been on the statute-book, we can rightly question whether Sakiri Vasu is nothing but a restatement of inquisitorial tendencies that have always been around.

The Coal-Block Allocation Scam Cases
If an outside observer, akin to Professor Hart's companion throughout The Concept of Law, came to India and only looked at the trials before the Court of the Special Judge appointed for the Coal-Block Allocation Scam Cases then I am quite certain she would go home with a view that we are steeped in the inquisitorial tradition. The proceedings have explicitly and / or impliedly carried further the views of decisions such as Sakiri Vasu to bring about some very interesting consequences. As I have argued above, this is something that is bound to happen owing to the inherently ambiguous stance in our laws, and isn't a problem in itself. Ambiguity in law generally nourishes problems though, and it has so happened on a few occasions in these proceedings. I focus on two of these here, one from the realm of investigations and the other based on the trial.

First, is the device adopted by the Court of refusing to accept Chargesheets / Closure Reports filed by the CBI if it thinks certain areas have not been covered. Effectively, the Court tells the CBI to further investigate and then come back with a fresh report. In some cases, the Court has rejected multiple Closure Reports before it took cognizance once the CBI had filed a Chargesheet that it deemed acceptable (just search "coal closure reject cbi" in Google). Given that the same court is going to hear the case, issues of bias naturally arise. If the court thrice rejected the CBI view that certain persons had not committed any offences, would a trial before the same court not give rise to the appearance of a reasonable apprehension that the court is biased against the accused persons and they would be denied a fair hearing? In my opinion it would certainly give rise to a reasonable apprehension, warranting the case be tried by a different judge. In fact, this problem is also present when a Magistrate rejects a Closure Report to summons the accused persons for trial. These proceedings can perhaps be seen as nothing but the logical conclusion of that process in a world where Sakiri Vasu allows Magistrates to monitor investigations.

Second, is the use of Section 294 Cr.P.C. by the Court, which was referenced at the beginning of this post. This provision concerns the process of admission-denial of documents, and was the issue at hand in Gondwana Ispat. It was argued there that accused persons could not be forced to make any statement under Section 294 Cr.P.C. as it contravenes the guarantee against self-incrimination. The Court held otherwise and concluded that Section 294 Cr.P.C. consciously excluded a right to silence for accused persons. The Court reasoned that allowing an accused to remain silent would defeat the very purpose of Section 294 Cr.P.C., and the Legislature was aware of Article 20(3) but intended to exclude it from this area. This conclusion was largely driven by drawing an analogy with Section 313 Cr.P.C. (which deals with the statement of an accused, given without oath), which expressly speaks of an accused choosing to remain silent when faced with a question. This argument is incorrect for it holds a statute can be interpreted to exclude the application of Part III of the Constitution. This is contrary to the very idea of Part III. Whether or not there are specific allusions to a right to silence within the Cr.P.C., it nonetheless remains subservient to Article 20 of the Constitution.

The other logic employed by the Special Court is more interesting for this post - that allowing an accused to remain silent and possibly adopt different stands would not only "lead to an unending trial but it will rather cause impediment in the course of justice as it will be extremely difficult for the Court to render justice based on truth." I have read this a few times and yet, I cannot appreciate the genesis of this concern. When, if ever, would an accused willingly adopt multiple stands in a case in respect of evidence? But assuming such an example does exist, and the accused is happily changing stands as frequently as players change football clubs, from where is the Court deriving an obligation on the accused to help render its justice based on truth? Historically, an accused was not a competent witness till the late 19th, early 20th century. And even then, it is only if the accused chooses to come in the witness box. Given that answers under Section 294 Cr.P.C. are also made under oath, the Court has done indirectly what could not have been done directly.

What's in a Name?
A lot, clearly. MC Setalvad was not entirely accurate to state that India wholeheartedly adopted the Adversarial System. On a deeper scrutiny, it is clear that our criminal process has always had traces of both, the Adversarial and Inquisitorial Systems. Such an equivocal position is far from ideal, and the problems with having backdoors are being realised in the litigation that is currently taking place in the Coal-Block Allocation Scam cases, and to an extent occurred before in the 2G Scam as well. There is one common element between these settings, and that is the pervasive involvement of the political with the judicial branch of the State. Could it be that the court is more willing to resort to its inquisitorial powers because it is pressurised to deliver results? We may never know. What we do know is that in its efforts to deliver truth-based justice, the judiciary is clearly cutting far too many corners. The 2G Scam cases saw the rights of accused persons being traded for nebulous values of 'public interest' and 'speedy justice'. These have been further employed in the Coal-Block Allocation Scam hearings to achieve new results. As things stand, all of these issues are pending before the Supreme Court which means nothing is settled. But, with the speed at which cases are being heard before the Special Court in Patiala House, it may be that 'speedy justice' comes at a cost too dear.

(Disclaimer: The author has assisted in proceedings arising out of the Coal Block Allocation Scam cases, arguing for the accused)

Thursday, March 23, 2017

New Blog Update - Socio-Legal Review Forum / SLR Forum

The Socio-Legal Review is one of the flagship publications of the National Law School, Bangalore, and is currently in its twelfth volume. Readers would note that the Review has now launched the Socio-Legal Review Forum, or the SLR Forum. This blog will serve as a companion to the print edition while retaining the informality and immediacy that the blogosphere offers. 

I am sure that the SLR Forum is soon going to become a very useful resource for practitioners and academics alike. You can access it here. Those interested in submitting pieces can find the necessary information on the first post on the Forum itself.

Monday, March 13, 2017

Guest Post: Justifications, Excuses and General Exceptions

(This post has been co-authored by Kaustav Saha, who is currently a BCL candidate at Exeter College, University of Oxford)

This post considers two issues from the realm of defences in criminal law. The first part, co-authored with Kaustav, engages with the debate concerning treatment of justificatory and excusatory defences. In the second, unrelated, part, I focus on the Indian Penal Code 1860 [IPC] and examine a particular issue regarding the Indian statutory framework surrounding general defences. 

Justifications, Excuses and Wrongfulness
Justifications and excuses differ considerably in their normative implications as well as practical effects. A useful barometer [which may break down on severe scrutiny], is that justifications are attached to the circumstances of an offence, while excuses arise from the personality of defendants. But this does not consider a deeper question, which is whether persons invoking these defences should be viewed differently? Should claiming a justificatory defence as opposed to an excusatory defence attract different consequences?

To answer this, think of justifications and excuses differently. A standard view in the literature is that while justifications deny wrongdoing, excuses deny responsibility. In the former, a defendant is denying that she committed a wrong, while in the latter she asserts that she should not be held liable (be excused) despite the wrongful character of her actions. Professor Gardner argues this distinction is misleading, for by invoking a justification the defendant is not denying wrongdoing but is in fact conceding it. The innate wrongfulness of hurting a person does not change, whether done by a police officer chasing a suspect or a person killing for personal motives. For him, thus, a justificatory act cannot be considered as something that guides conduct. In this, his view is opposed by Professor Simester who argues justifications do indeed offer motivating reasons to engage in certain conduct. These acts, according to him, are not merely tolerated but are morally permissible and this takes away from the wrongfulness of the act. 

We find Professor Gardner's view more acceptable that defences cannot serve as positive reasons for acting. Most importantly, because it supports the desirable principle that accepting this reinforces a cynical view of the law and militates against the idea that people may aspire to standards of conduct that go above and beyond what the law may demand from them.

It may well be argued that this debate about 'wrong' is, well, purely academic. After all, most criminal law functions do not care about the innate wrongfulness and the successful pleading of both justificatory and excusatory defences completely takes away the label of criminality which matters most. The different consequences - insanity may lead to the defendant being admitted to a facility - is not concerned with the issue of 'wrong' either. But we argue that this debate is not without practical utility. For instance, consider this in context of the allegations of police brutalities in the USA. One could argue that maybe, in that setting, Professor Simester's view would resonate with officers often considering the ability to take violent action itself as reason to take that action. The existence of a duty-based justification served as reason to shoot suspects because the justification dissolved the wrongfulness of causing harm.

Could this view be extended to other scenarios? For instance, an over-exuberant exercise of detention powers by officials when dealing with anti-terrorism legislation? Or in India, the carrying out of search, seizure, and arrests when dealing with economic offences which are consistently labelled as 'threats of economic security of the nation' by the State. We are unaware of empirical studies specifically testing the arguments of Professors Gardner and Simester in such duty-contexts. It may offer fantastic insight into how analysis of justificatory conduct is highly context dependant.

The IPC and General Exceptions
This brings me to the second issue. Chapter IV groups Sections 76 to 106 of the Indian Penal Code 1860 [IPC] under the title of 'General Exceptions' (not General Defences, as is commonly assumed). These apply to offences under the IPC and beyond [See Section 40 IPC] and are basis upon which criminal liability can be negated. The IPC does not contain any distinction between how the different defences are treated, and also stays away from the debate of justifications and excuses. Exceptions normally fully absolve the defendant of criminal liability, and the Code expressly indicates where this is not so [Section 86 and voluntary intoxication, for instance]. During trial, the burden of proving the existence of facts to claim an exception is placed upon the defendant [Section 105, Indian Evidence Act 1872]. Is this fair? 

In this regard, the Indian system differs from how criminal trials operated (and continue to operate) in the UK [under common law, the burden was only placed on a defendant when claiming a defence of insanity]. A frequent argument justifying the reversing of burdens [quite prevalent across criminal law today], is how the defendant is best-placed to offer proof for facts especially within her knowledge. The Indian Evidence Act statutorily recognises this principle through Section 106. Does this logic of the defendant being 'best-placed' sufficiently explain away the rule of Section 105? I argue that it  is mostly acceptable, but for the position in Section 81 of the IPC, which is a mixture of both, subjective and objective, positions in the criminal law.

What are these subjective and objective positions? A subjective position in criminal law means that you view the existence / non-existence of facts from the eyes of the defendant. An objective view would view things from the standpoint of an outside observer. Naturally, fidelity to either position can attract very different consequences on issues of liability as it poses questions to the very existence of fault elements [as I explained in context of attempts once on the Blog]. If we look at the General Exceptions in the IPC, it becomes apparent how the Code adopts different positions for the different exceptions it provides. For instance, consider Section 79 which says "nothing is an offence which is done by any person who is justified by law, ow who by reason of a mistake of fact and not be reason of mistake of law in good faith, believes himself to be justified by law, in doing it." The text, together with the illustration, confirm the subjective position is adopted: it tells us that an officer is justified for arresting someone she believed had committed murder, though it may turn out that the person was acting in self-defence

But move to Section 81 which is India's version of a defence of duress: "nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property." This is followed by an important injunction: "it is a question of fact in such a case whether the harm to be prevented was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm." The initial subjective position is interposed with a clear objective caveat!

I argue that where, after claiming an exception, the Code adopts an objective position regarding the existence / non-existence of facts upon which a successful claim depends, it is unfair to place the burden upon a defendant to prove such facts. It is not a fact especially within the knowledge of the defendant. Rather, it is perhaps easier for the prosecution to furnish statistics. Even if we imagine the state of play, shifting the burden on the prosecution would appear more suitable. If the court is unconvinced with the initial plea itself, then the question would not arise. If the court thinks there is an arguable case, then have the prosecution show why the exception cannot be successfully claimed.

Friday, March 3, 2017

Remands to Custody and Bail

A long, long time ago, this blog ran a series on issues surrounding the grant of bail for non-bailable offences. The primary issue focused upon, was how several statutes placed the burden upon the accused to show that there were no reasonable grounds to believe that the alleged offences had been committed by her. In the last of those posts (available here), I covered a section on how the law placed this burden upon on the accused, without providing her any right to access documents prior to filing of the charge-sheet.  Section 207 Cr.P.C., concerning supply of copies for certain documents, only applies after the charge-sheet has been filed. Before that (and this is when bail applications are most commonly filed), no statutory right to copies of documents and statements exists. A brief insight into the case law was provided in that post, which showed courts occasionally had decided to supply a copy out of concerns for fair trials.

Recently, I was part of arguments before a trial court in Delhi where the investigating agency sought remand to police custody. Remand to custody, it may be recalled, stems from Section 167 Cr.P.C. When the police fail to complete investigation within 24 hours, this provision enables the police to make a request to the Magistrate, for detaining the accused person for a further duration in custody. This custody can be of two kinds, police custody or judicial custody. As it normally happens with the Cr.P.C., Section 167 does not explicitly state that an Application has to be filed. It does explicitly demand that Case Diaries (See Section 172, Cr.P.C.) are to be forwarded when the accused is produced. Normally though, for a judge to pass orders an application would be necessary, and so applications are always filed for seeking remand. These are, commonly, cyclostyled applications that merely recount the facts of the case with one or two paragraphs containing the reasons for seeking further custody of the accused. These, again, are usually (i) fear of the accused fleeing the course of justice, (ii) fear of tampering with evidence, and (iii) apprehension of coercing witnesses.  

In our case, when the remand application was filed, copies were specifically denied to the accused persons. The prosecution argued that there was no provision under the Cr.P.C. allowing for such copies to be filed. As I was given to understand, this stand is routinely adopted by prosecutors across courts. Remember, an Application seeking remand is different from the Case Diaries, for which access-restrictions are specifically crafted within the Code. While it could be argued that the Code does not specifically enable the accused to obtain copies of documents and statements before the charge-sheet is filed (an argument which in my opinion is contrary to all sense of fairness), can the same logic be extended to a mere remand application?  

I think it cannot, and in light of the possible merit the other argument has - that no materials can be supplied - it serves all the more reason to ensure a copy of the remand application is supplied to the accused. To make an argument through analogy let us look at preventive detention. While preventive detention laws come with deprivations of standard procedural rights (such as a right to counsel), even persons detained under these laws are constitutionally required to be supplied with the grounds seeking detention! Without having any knowledge of the reasons why the state seeks my custody, what is the point of the accused even contesting the point of custody in that event?

Most judges have a fine sense of balance and often inform the counsel for an accused the basis for the remand application. It is not as if the nitty-gritty of an investigation is being laid bare in the investigation. That remains the domain of a Case Diary which is rightly shielded from prying eyes. Moreover, there is no prohibition on the counsel for an accused inspecting the court record or applying for a certified copy of these records, which are public documents in the eyes of law. If this is the case, then why stick with the charade of non-cooperation? Such a position only worsens the imbalance in resources that the State has at its disposal as against those an accused person can summon. The Delhi High Court rules have a fine chapter on police and custody remands which could sorely do with an amendment addressing this anomalous situation.