Three Judges of the Supreme Court on Sections 156(3) and 202 Cr.P.C.

A three judge bench decision of the Supreme Court in Ramdev Food Products Pvt Ltd v. State of Gujarat [Criminal Appeal 600 of 2007] was published on 16.03.2015. Seldom do we get decisions on the Cr.P.C. from a bench of more than two judges, making it important to consider this one. Having read the case, I think the judges wrongly construed the idea behind Sections 156(3) and 202 Cr.P.C. thus potentially causing a great deal of confusion owing to their superior bench strength. 

The Facts

The Appellants had filed a criminal complaint under Sections 409, 420, 467, 468 and 471 IPC and with an Application under Section 156(3) Cr.P.C. praying for directions to the police to conduct an investigation. The Magistrate disagreed, (presumably) took cognizance and ordered an investigation under Section 202 Cr.P.C. directing a report from the Police within 30 days. The Appellants moved the High Court against this order which rejected their challenge, resulting in this appeal.

The Issue and its Treatment

There are several issues of importance considered by the Court including the scope and ambit of Sections 156(3) and 202 Cr.P.C.; powers of the police while conducting an investigation under Section 202 Cr.P.C. Here, I am only concerned with the first of these, which is discussed Paragraph 13 onward. At Paragraph 22, the Court concludes:

"Thus, we answer the first question by holding that the direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued. Cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine “existence of sufficient ground to proceed”. Category of cases falling under Para 120.6 in Lalita Kumari (supra) may fall under Section 202. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case."

Does the Court get it wrong?

Reconsider the quoted extract above: the Court holds that where the Magistrate finds a case made out to proceed forthwith due to credibility of information available it is appropriate to straightaway direct investigation, a Section 156(3) direction is issued. As against this, Section 202 seems to involve cases where such a clear case is not made out for the court, thus requiring postponement of issuing process.

The Court seems to have turned the logic behind these sections on its head, unfortunately. When the Magistrate directs an investigation under Section 156(3), he does so before considering whether there is a case made out to proceed forthwith. This is obvious, because such a consideration is the basic definition of taking cognizance, and it is nobody's case that Section 156(3) directions can be given post-cognizance. Directions under Section 156(3) to for investigation by the Police depend upon the kind of evidence the Applicant discloses might be relevant in the present case, and that such evidence could only be gathered through the powers of the police [Union of India v. Prakash Hinduja, (2003) 6 SCC 195; Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 SCC 409]. 

As against this, Section 202 investigations occur after the Magistrate has taken cognizance, and examination of the Complainant and any witnesses led is complete. This investigation has a very limited scope, and helps to finally determine whether there is a case made out to proceed forthwith, and thus issue process under Section 204. Where the investigation reveals no case is made out, the Magistrate exercises powers under Section 203 to dismiss the Complaint [Nagawwa v. Veeranna Shivalingappa, (1976) 3 SCC 376].

Conclusion

The test in Ramdev Foods goes contrary to the text of the Code and requires a Magistrate take de-facto cognizance before deciding upon a Section 156(3) Application. Given this is a three judge bench decision, it may result in restricting possibility of relief under Section 156(3) and impact how litigants strategise and approach court. More will become clear as the case proceeds to trickle down through the rungs.

Guest Post: In Search of a Policy for Judicially Inflicted Death

[I am pleased to present a guest post by Mr Dhruva  Gandhi, currently a second year student of the B.A. LL.B. (Hons.) Programme at NLSIU, Bangalore. The author can be contacted at dhruvamurarigandhi@nls.ac.in]

The ‘Rarest of Rare’ doctrine laid down by the Supreme Court in Bachan Singh v. State of Punjab [1982 (1) SCALE 713] has become synonymous with the death penalty jurisprudence in India. According to this concept, circumstances relevant to both the crime (eg: brutality of the offence) and the criminal (eg: age/socio-economic background of the accused), must be considered to decide whether the sentence of death would be appropriate. Unfortunately, though, the vast discretion inherent in this doctrine led to some chaos and inconsistency. This was noted by the Supreme Court recently in Sangeet v. State of Haryana, [(2013) 2 SCC 452], where the Court called for urgent need to formulate a comprehensive Death Penalty policy. Some thoughts follow.

A New Policy

Perhaps taking up this mantle, a Division Bench of the Supreme Court in Shankar Kisanrao Khade v. State of Maharashtra [(2013) 5 SCC 546] made certain observations on a new policy: 

“In my considered view that the tests that we have to apply, while awarding death sentence, are 'crime test', 'criminal test' and the R-R Test and not 'balancing test'. To award death sentence, the "crime test" has to be fully satisfied, that is 100% and "criminal test" 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record etc., the "criminal test" may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the Rarest of Rare Case test (R-R Test). R-R Test depends upon the perception of the society that is "society centric" and not 'Judge centric' that is, whether the society will approve the awarding of death sentence to certain types of crimes or not.”

In my opinion, this new policy is highly problematic, for it is per incuriam [i], perpetrates inequality [ii], and gives undue credence to public opinion [iii]. 

Per Incuriam?

In Bachan Singh, ‘Rarest of Rare’ was an overall analysis of the facts and circumstances (relevant to both the crime and the criminal) of the case at hand. On the other hand, in Shankar, ‘rarest of rare’ becomes a composite of factors (society’s abhorrence, indignation to certain crimes) to be considered in addition to the circumstances relevant to the crime and the criminal. It is because of this I think this decision falls foul of the Constitution Bench decision in Bachan Singh. 

Moreover, in Bachan Singh, the Court never held that the Death Penalty may be awarded only when a case involves no mitigating circumstances and when the society considers the crime to be abhorrent in nature. The effect of a postulation of this nature may, then, be that imposition of the Death Penalty may come to rest on the prevalence of a single mitigating circumstance irrespective of the nature of the aggravating circumstances. 

Inequality

Consider the new policy in Shankar from this perspective: while someone convicted under Bachan Singh guidelines could avert Death after a cumulative assessment of all relevant circumstances, now the convict may escape Death based on a single factor as the young age of the accused or the possibility of reform. Moreover, I think it is important to note that disadvantage flows in the reverse direction as well. A convict sentenced as per Shankar may be awarded a Death Sentence on the basis of public opinion. Public Opinion, however, is of no relevance when a convict is sentenced as per Bachan Singh [more below]. Evidently, then, the application of more than one policy on Death Penalty concurrently leads to a perpetration of inequality.

Public Opinion

Perhaps the worst part is how the decision under Shankar depends greatly on popular notions of justice. Such a decision violates the constitutional mandate and the very notions of the Rule of Law. Gruesome and abhorrent crimes that attract the death penalty pose the toughest challenge to the tenacity of the Legal System. But the law cannot succumb to public opinion, denying to someone their fair bargain in a constitutional society simply because society wants blood. This, however, seems to have been sidelined in Shankar given that a “society-centric” ‘Rarest of Rare’ test allows for an influx of public opinion in the imposition of the Death Penalty. Therefore, we may say that the new policy is regressive in this aspect as well.

Course Correction?

In view of the above, then, I conclude that the pertinent question, namely, “Whether the Supreme Court has moved towards the creation of a comprehensive policy on the Death Penalty in India?” must be answered in the negative. To this extent, I believe that the decision of the Supreme Court last year in Mahesh Shinde v. State of Maharashtra [2014 (3) SCALE 96] must be welcomed. This decision, though has been questioned here, for implicitly over-ruling the observations in Shankar, Swamy Shraddhanda [(2008) 13 SCC 767] and Santosh Kumar Bariyar [(2009) 6 SCC 498] wherein the instances of departure by the Judiciary on earlier occasions from the law laid down by Bachan Singh are noted. Nonetheless, it is evident that a uniform and comprehensive policy on the death penalty receives fresh thought from both the Judiciary and the Legislature.

304B IPC and Judicially Created Punishments

I recently came across two decisions of the Supreme Court in the context of Section 304-B IPC - Rajbir & Ors v. State of Haryana [the relevant interim order being reported as AIR 2011 SC 568] and Jasvinder Saini v. State [AIR 2014 SC 841]. Not only do these decisions present an interesting and important question of law, but also raise important questions of how the Supreme Court chooses to exercise its vast powers in our hierarchical judicial system. 

The Cases

In Rajbir, Petitioner No. 1 was convicted inter alia under Section 304-B, and High Court had reduced a sentence of life imprisonment to rigorous imprisonment for ten years. While issuing notice to the First Petitioner for why his sentence ought not to be enhanced to life imprisonment, a Division Bench of the Supreme Court passed some very interesting observations in the interim order: "We further direct all trial courts in India to ordinarily add Section 302 to the charge of Section 304B [IPC], so that death sentences can be imposed in such heinous and barbaric crimes against women".

Not surprisingly, trial courts adhered to these observations and begun to add charges under Section 302 IPC when faced with cases under Section 304B. It was against one such order of additional charges that the Petitioner moved the Supreme Court in Jasvinder Saini. The Supreme Court clarified that there could be no mechanical application of the observations in Rajbir. The observations merely warranted trial courts to investigate the material carefully to discern whether charges under Section 302 could be framed. 

The Legal Issue

The dictum in Rajbir brought forth a difficult situation because of the different ingredients required for proving an offence under Section 302 and Section 304-B IPC. The latter significantly reduces the burden on the prosecution to prove its case; shifting the burden on an accused when the prosecution establishes the facts made relevant by the provision. No such reverse burden is placed by Section 302. But following Rajbir, the prosecution can establish a case under Section 304-B, to actually secure a conviction for both Section 304-B and 302 IPC and possibly merit a death sentence. 

Thankfully, the Court in Jasvinder Saini was aware of this problem and specifically addressed it:

"If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 Indian Penal Code the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 Indian Penal Code, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B is established".

Thus, the Prosecution was disabled from taking undue advantage of the reverse burden imposed purely to serve the peculiar cases of dowry deaths.

The Policy Conundrum

A larger issue came to the fore in this exchange: the Supreme Court's displeasure at the supposedly lenient penalties carried by Section 304-B. This was not the first occasion where the Court expressed its hesitation, nor will it be the last. Unlike most of us, the Apex Court can do something when it doesn't like the law through Article 141. It doesn't require much argument to convince someone that criminal law and possible deprivation of liberty should not be open to judicial legislation. But history points to the contrary for India, with the Court having to step in to cover legislative lethargy far too often. Elected representatives took 15 years to replace the judicial laws of Vishaka, and have never bothered to incorporate the amendments initially sought by the bench in Velliappa Textiles [its later overruling notwithstanding]. 

With the boundaries of criminal law ever-expanding, one can only wait and see how active a mantle the legislature assumes in settling the disputes raised before the courts. 

Article Update

The SCC Editorial Board has been kind enough to publish my essay in their journal component, cited as (2015) 3 SCC Jour 24. 

Readers may find the issues discussed there of interest. I'd love some comments.

Where to Prosecute under the Companies Act 2013?

The Companies Act 2013 is in the process of overhauling the erstwhile Companies Act 1956, with particular provisions of the 2013 Act having been notified already. The piecemeal manner in which the notification of provisions is proceeding has led to an interesting conundrum in the prosecution of offences created under the 2013 Act, which forms the subject of this post. 

Offences by under the Companies Acts

Similar to the 1956 Act, the 2013 Act contains a variety of provisions which impose penal sanctions including imprisonment. The primary difference is that the 2013 Act seems to add more bite to the bark by introducing newer offences and tougher sanctions, at least on paper. The maximum sentence possible for an offence under the 1956 Act was of seven years as provided under Sections 539 [falsification of books] and 629 [tendering false evidence]. Under the 2013 Act, Section 447 allows imprisonment up to ten years for "Fraud", which covers a wide variety of situations, that were not criminal acts/omissions under the previous regime.

The 2013 Act follows the old Act in restricting the manner in which a court may take cognizance of offences by companies or their officers. Section 439(2) of the new Act, identical to Section 621 of the old Act, permits cognizance to be taken only on the complaint of the Registrar of Companies, a Shareholder or a person authorised by the Central Government. There are some changes in the classification of offences however. Under the 1956 Act, all offences were deemed non-cognizable through Section 624. The position has been modified by the 2013 Act, wherein some offences have been expressly made cognizable under Section 212(6). That particular provision also restricts the rights of an accused person to bail. These aside, every other offence is deemed non-cognizable under Section 439(1) of the Act. 

Special Courts

The jurisdiction of courts to try offences was restricted under the 1956 Act. Section 622 barred courts inferior to those of Presidency Magistrates or Magistrates of the First Class from trying any offence under the Act. The 2013 Act diverges from this position and creates "Special Courts" as found under ; Chapter 28. Unlike the old Act which conferred jurisdiction upon Magistrates and those above, "Special Courts" under the 2013 Act can only presided over by a Additional Sessions/Sessions Judge, or someone of higher rank. 

This is an important change, necessitated by the insertion of a ten year imprisonment. According to Section 29 of the Cr.P.C., such a punishment is beyond the jurisdiction of Magistrates and can only be imposed by a Additional Sessions/Sessions Judge. Whereas punishment up to seven years [the maximum for the 1956 Act] can be imposed by Magistrates, making permissible the previous regime of Magisterial level courts. 

However, there is an obvious cost involved here: offences with prison terms up to three years far outnumber those carrying more serious sentences. Perhaps cognizant of this, a Bill has been tabled in Parliament titled the Companies (Amendment) Bill 2014 [passed by Lok Sabha on 17.12.2014]. This seeks to amend Section 435 whereby offences with imprisonment of two years or more would only be tried by the Sessions level courts, while Metropolitan Magistrates or other Judicial Officers having jurisdiction to try offences under any previous company law could try all other offences. Though the execution may be questionable, I believe the intention is correct and would help prevent an overloading of dockets.

The Catch - Where do you go?

Now that we are familiar with the rather complex workings of the criminal aspects of the Companies Act 2013 [no pun intended], I can proceed to the crux of the matter. Today, the Government has by notifications brought into force several offences under the 2013 Act [see, Notification dated 06.06.2014 bringing into force Section 74(3) which carries an offence punishable with up to seven years imprisonment]. It has also brought in force Section 439, which restricts the manner of taking cognizance for offences under the Act [see, Commencement Notification dated 12.09.2013]. But, conspicuously, Section 435 creating Special Courts has not been notified till date. Thus, we find ourselves in the curious position of having rights but no forum for enforcement.

This problem is very real, and is being faced across courts in India when litigants file complaints to prosecute offences under the 2013 Act. What are the possible courses of action open to litigants?

1. Proceed before the Magistrate having local territorial jurisdiction over the offence .

2. Proceed before the Sessions Judge citing that Section 435, though not notified, warrants so.

3. Proceed before the Special Court of Magisterial rank under the 1956 Act.

There are obvious pitfalls under each of these, rendering it highly possible for the Complaint to be dismissed for want of jurisdiction. But surely it cannot be that the Legislature intended for the offence to be non-prosecutable till the notification of Special Courts? It would be a first, if indeed that is the correct interpretation of the situation.

It may be that I have completely missed the bus and wrongly created a problem where none exists. Or, the solution may have emerged without my knowledge. If so, please comment!