Section 188 Cr.P.C. and Extra-Territorial Jurisdiction - Part I

The laws of any State usually apply with full force within its borders. But in some cases, statutes are found applicable to events that occur even beyond a State's borders. Such extra-territorial extensions of the prescriptive/legislative jurisdiction vested in States is recognised under International Law [see, Cydric Ryngaert, Jurisdiction in International Law pp. 86-133 (Oxford University Press, 2008)]. Take the IPC for example: Section 4 extends its application beyond the territory of India with respect to Indian citizens. Thus, if I (an Indian citizen) kill someone in Singapore, that may be an offence under Section 302, for which I can be prosecuted in India if I am produced before courts here. 

But to which Court must that be? To put it another way, which Court would have jurisdiction to try such an offence? Section 188 of the Cr.P.C 1973 is the corresponding provision in Chapter XIII on Jurisdiction. Thus, "when an offence is committed outside India" by a citizen, "he may be dealt with in respect of such offence as if it had been committed at any place place within India at which he may be found". The erstwhile Cr.P.C. of 1898 also provided for extra-territorial jurisdiction through its Section 188, which also contained the highlighted phrase to decide the issue of jurisdiction. The obvious question which follows is how do we determine the interpretation of the emphasised phrase, at which he may be found. 

Om Hemrajani and "at which he may be found"

This question was answered in Om Hemrajani v State of Uttar Pradesh [(2005) 1 SCC 617], which continues to hold the field. The facts in Hemrajani were simple. The accused had allegedly obtained loans from a Dubai Bank but absconded to India without discharging his liability. The Bank filed a complaint in Ghaziabad, Uttar Pradesh, where the Magistrate took cognizance of the offence and issued non-bailable warrants against the Accused. A quashing petition was filed, questioning the jurisdiction of the Ghaziabad Magistrate to take cognizance and issue process. This was rejected, and the Petitioner then moved the Supreme Court, which upheld the High Court decision and dismissed the matter. 

To arrive at this conclusion, the Court rejected the stand taken by the Accused that Section 188 must be understood as referring to the place where the offender is "likely to be found". Instead, the Court held that the concerned phrase conferred jurisdiction to any court before which the complainant chooses to file a complaint. It acknowledged and accepted the fact that the decision made it possible "for a complainant to file a complaint against an accused in any Court in the country." The only justification offered for this interpretation, was that it sought to remove any jurisdictional fetters for victims to proceed against fugitive criminals. The victim could approach whichever Court that was most convenient to her.

Criminal Procedure and 'Convenience'

In Hemrajani, jurisdiction could very well have been limited to the place where warrants are served, technically the real place of 'finding' an accused. But the Court chose not do so, because it sought to ensure a victim was not inconvenienced by procedure. It does try to veil this logic of convenience behind its observations about the accused being 'found' by the Court, and therefore jurisdiction would be conferred to whichever court the Accused is brought after service of summons. But, this only begs the question of why should the complaint be filed at a particular court to begin with which precedes the question of issuing warrants. 

Criminal procedure was never about the convenience of either side, yet this is the standard applied by the Division Bench to decide Hemrajani. The most recent approval of this argument came in Dasrath Rupsingh Rathod v State of Maharashtra [subject of the previous post], where Sen J. observed "while the convenience of the Defendant in a civil action may be relevant, the convenience of the so called complainant/victim has little or no role to play in criminal prosecution". In fact, the approach in Dashrath of reducing multiple avenues for jurisdiction as it creates opportunities for abusing the process of law should cause some difficulty for the conclusions in Hemrajani.

Conclusion

Feebly, the Court acknowledged the absurd conclusion reached: nation-wide jurisdiction to prosecute any offence being conferred under Section 188 Cr.P.C. Ten years hence, this unhappy state of affairs is where we still find the law. But perhaps, as I argue, the disdain for multiple jurisdictional forums may foster change.

Section 138, Jurisdiction, and Dashrath Rupsingh Rathod

In August this year, three judges handed down the decision in Dashrath Rupsingh Rathod v State of Maharashtra [(2014) 9 SCC 129], restricting jurisdiction over the offence under Section 138 Negotiable Instruments Act. Trial courts across the country have been returning complaints ever since, as the decision retrospectively applies to a certain class of pending cases. Here, I discuss this landmark case, looking at Justice Sen's approach to understanding the Section 138 offence for jurisdictional purposes.

Prelude

Lets not place the cart before the horse, and get a hand of Section 138 - the infamous cheque bouncing offence. The bouncing of cheques as unpaid is not sufficient: a proviso adumbrates several steps that must be fulfilled to enable one to file a complaint. These are:

• The drawer issues a negotiable instrument towards discharge of a legally enforceable debt;
• The instrument is subsequently presented by the /payee within six months of issue, and is dishonoured by the drawee bank;
• The payee issues a notice within thirty days of dishonour to the drawer regarding dishonour;
• The drawer fails to pay the amount fifteen days after receipt of notice.

The question before the Supreme Court in Dashrath was very specific: would courts at the place from where where statutory notice was sent have jurisdiction to entertain complaints? Conflicting decisions had been rendered by co-ordinate benches of the Supreme Court on the point, to resolve which a three judge bench had been constituted. But the leading judgment of Justice Sen answered a different question: were complaints complaints filed at places other than where the drawee bank is located maintainable? Overturning more than a decade of settled precedent, the Court answered this question in the negative. 

The Court's Approach to Jurisdiction

To understand this aspect better, we need to revisit the structuring of Section 138. A person is "deemed to have committed an offence" when the cheque issued is dishonoured upon presentment. But this is followed by a proviso, which states "nothing contained in this section shall apply unless" the steps discussed above are complied with in full.

Courts before Dashrath considered these conditions an integral part of the offence, and held them relevant for determining the jurisdiction of courts. Naturally, it meant a complaint could be filed at multiple places. All this changed with Dashrath, for the Court viewed the "offence" under Section 138 as separate from the "proviso", which only created conditions for maintainability of a complaint. Viewing this to be the 'offence' under Section 138, the Court turned to jurisdiction in Chapter XVII of the Cr.P.C. The common element therein was of jurisdiction being determined by the location of the 'offence', nothing else. Thus, as the offence itself was complete whenever the drawee bank returned the cheque as unpaid, jurisdiction would be restricted to that court alone.

Statutory Interpretation 2.0
If we accept this interpretation of Section 138, limiting jurisdiction seems the only correct conclusion possible. The Court goes to great lengths to remind us how the simple solution it offers would remedy the 'mischief' created by allowing for multiple avenues to file complaints. How simple the solution remained after ordering retrospective application of the judgment remains a controversial point, but that doesn't concern us here. A deeper look is warranted at the interpretation of Section 138 itself. There are two problems which emerge, one based on a holistic reading of the Negotiable Instruments Act, and another specific to the structure of Section 138 therein.

One: Reading the Act Holistically
The separate, concurring opinions of Thakur and Sen JJ. elaborate the point of construing the 'offence' of Section 138 shorn of its proviso, observing the latter imposed additional conditions on taking cognizance. To quote Sen J. "the cognizance of the crime ... can be taken only when the concomitants or constituents contemplated by the Section concatenate with each other". But when Section 142 of the Act specifically addresses the question of cognizance, is such interpretation not akin to re-writing the text of the statute? After all, the Legislature was open to place these conditions within Section 142, as opposed to Section 138. In ignoring the text, the Court re-wrote the statute, without due regard to established canons of judicial restraint.

Two: The Structure of Section 138
Are Provisos in the section creating an offence anomalous? No. These may be present in slightly different forms though. For instance, Section 300 IPC (defining culpable homicide amounting to murder) and Section 499 IPC (defining defamation), contain Exceptions, which carve out and protect conditions/situations from the broad definition of the offence. These have a direct bearing on the offence itself, for facts which fall within an exception make conduct a 'non-offence'. Cognizance is a step much ahead: it is the application of the judicial mind for determining whether or not proceedings should commence. The difference in stages is important: for instance, if its not an offence, the police may refuse to conduct an investigation; a quashing petition would be against the complaint and not a judicial order and so on.

The proviso to Section 138 tells us that mere bouncing of a cheque is not an offence, similar to how the exceptions to Section 300 tell us that simply killing another person is not murder. Admittedly, it so happens that the stage of taking cognizance is very close to the filing of a complaint in the case of Section 138. But the approach of separating provisos from the section may be transplanted to other statutes, with more onerous consequences.

Right End, Wrong Means
That is my take on the decision. Limiting avenues for filing complaints does indeed simplify the law and prevent its abuse by either party. This was undoubtedly needed in context of Section 138. But these desirable conclusions have been reached through troublesome paths. Petitions are currently pending in the Supreme Court which may result in re-assessing Dashrath [SLP (Cri) 8073/2014]. It would be interesting to see how the Court develops a fascinating, and hugely important area of law.

And an FIR is registered against Uber + Addendum

I just read news items suggesting that an FIR under Section 420 IPC has been registered by the Delhi Police against Uber, for its role in the recent alleged rape incident in Delhi. Some murmurs are also being heard about possible criminal liability for its negligence, and possible abetment of the crime by the driver. 

Abetting the Driver?

The latter can be dismissed earlier, partly for reasons already discussed in the last post. With respect to abetment, a reference to Section 107 IPC would settle the dust. Abetment, by definition, requires one to do something. This may be anything from goading someone on towards commission of an offence, to staying silent when they offence is being committed. The crucial part is my intention/knowledge at that time must reveal that I helped the offence occur. If, at that time I do not know about the offence, it is impossible to say that I am abetting its commission.

Think about it this way. A sells a gun, which is subsequently used to commit murder. This does not mean A abetted murder, even though it occurred mainly because of the sale. If it were otherwise, a lot of local shopkeepers may be in jail for no other reason than for doing their business. Such imposition of criminal liability offends the idea that there must some culpable mental state accompanying the act/illegal omission [see, on this point, A.P. Simester, 'The Mental Element in Complicity' 122 Law Quarterly Review 578-601 (2006)]. This is recognised in Section 107 as well, where crucially the Section says that a person may abet by intentionally aiding, by way of an act or illegal omission.

Cheating the Customers?

Uber has allegedly been cheating customers in representing that they were providing safe commutes with verified drivers, while they failed to conduct the necessary background checks under law. The cheating charges shouldn't stick at all though. Uber in its terms of service never guarantees third-party (driver) suitability. They don't offer you the safe ride. The Police earlier this week admitted to not knowing at all about Uber, and its clear they need to do their homework thoroughly. 

Assume, though that the charge for cheating can stick. Two questions then arise: (1) can a company be liable for cheating and other crimes requiring intent? (2) would the requirements of cheating be satisfied? Both are rather premature, but important nonetheless.

On (1), the question was settled by the Supreme Court in Iridum India Telecom v. Motorola Inc. A company can be guilty of cheating, and the mental element necessary can be derived by turning to the directing mind and will of the company, those who are responsible for its control. So, if the directors at Uber can be pinned with the intent, so can the company.

(2), is a harder question, simply because there is so little information currently available. Ex facie though, I think a cheating case is difficult to sustain. The mental element required for cheating is intention, not negligence. To say that the company intentionally didn't conduct background checks seems to go against the current case, where there is agreement on this being corporate negligence.

Addendum

This helps me to go back to some points I made in the previous post, with respect to the law on these background checks. The news is repeatedly referring to alleged failures by Uber and other app-based cab companies in conducting background checks as the clinching proof of their criminal negligence. There are two leading allegations here: (1) absence of a PSV Badge, and (2) not fitting vehicles with GPS. 

(1) PSV Badge: Allegedly the driver didn't have a PSV (Public Service Vehicle) Badge and Uber didn't care to check and constituted a breach of Rule 6 of the Delhi Motor Vehicle Rules 1993. I read the Rules, and guess what, there is no criminal liability created therein and a breach of Rule 6 does not even carry a penalty. 

(2): Vehicles without GPS: The Uber cabs supposedly didn't have a GPS, which enabled the driver to switch off his phone and disappear. This non-fitting of GPS was improper. With what? The Terms and Conditions of the "Radio Taxi Scheme 2006"  issued by the Transport Department of Delhi. The validity of this statutory instrument notwithstanding, it does not create any liability whatsoever for breach of terms. The license granted to Uber may be revoked, and that's it.

My point stands. A thorough reassessment of the legislative scheme behind taxi operators is needed, and fast.

Banning Uber: Responsibily, Negligence and Criminal Liability

Another night, another ghastly incident of violence against women in India's capital. A lady hailed a cab using the Uber App to take her home at night. She had dozed off on the way, only to be woken up by the driver who allegedly raped her and threatened her with death if she screamed or resisted in any manner. An FIR was immediately filed at P.S. Sarai Rohilla in Delhi and investigation is underway following which a man has been arrested and is in police custody at the moment. 

But what about Uber, the app-service using which the cab was hired. Is there any criminal liability for its apparent negligence? 

Understanding Uber and Responsibility

"Responsibility" can mean a variety of things, a point well argued by HLA Hart in his collection of essays entitled Punishment and Responsibility [2nd edition available here]. He presented four distinct classes of responsibility: (1) role-responsibility, (2) causal-responsibility, (3) liability-responsibility, and (4) capacity-responsibility [pages 211-212]. 

Uber is an app which "connects riders with drivers". It does not own taxis or hires drivers as employees. Rather, it invite drivers to sign up and in this manner Uber provides a network of vehicles in every city where it operates. Such a model reduces initial investment and helps earn greater profits. So, as a customer, Uber is how I get access to a particular car and driver. I assume that the service (cab provided) is safe, and this is not by looking at the cab itself but by having used Uber to hire it. The responsibility to provide a safe vehicle flows from its role. 

An important analogy, I think, can be offered. Think of Uber as another Buyer-Seller platform like eBay. The platform invites sellers to become part of its network, and subsequently is able to offer customers a wide range of products for sale. Customers, then, assume some guarantee of quality because the product is on eBay. 

From Responsibility to Liability 

A liability for failing to discharge this responsibility arises due to the contractual relationships created between parties. Uber would offer compensation if the cab doesn't arrive, or is a faulty vehicle. eBay, similarly, offers compensation where the product sold is broken etc. This liability flows from the role-responsibility that we first established for the service provider. What if the driver assaults you, or as in this case, (allegedly) rapes you, or obscene/illegal products are being sold online. To prevent these situations, the service provider is required to conduct background checks. For Uber, this entails maintaining driver profiles to ensure quality. eBay, similarly, maintains filters to block listings of illegal/obscene products.

But even though there are such checks, negligence may often creep in. You might have guessed what I'm leading up to. Famously now, in 2004 eBay - then Baazee.com - suffered such a case of negligence with respect to listing for sale allegedly obscene material (an MMS video of minors engaging in sexual activity) [The trial is ongoing in Delhi at present. For more facts, read the Delhi High Court judgment quashing charges against one of the Accused]. What this incident did reveal, was the absence of any regulatory framework creating duties and liabilities upon intermediaries in those situations. 

There was no legal requirement at the time for eBay to immediately remove the listing. Today, if an intermediary fails to act within 36 hours it can be liable under the 2011 Intermediary Guidelines. Currently, a similar lacuna is present with respect to the liability of such intermediaries in the private taxi market. The driver checks run by Uber are not a legal mandate, but internal company policy. The liability to enforce such a policy is vastly different from the idea of liability attracted by breaking a legal rule.

Criminal Liability for Uber?

Can there be criminal liability for negligence, or recklessness? Absolutely. Criminal liability ordinarily depends upon existence a culpable mental state. This mental state was denoted as mens rea at the common law and determined by judges. But in India it is determined by how an offence is defined by statute. Uber, and other service providers, can certainly be held liable for being negligent and failing to discharge their duty of care where the law so provides. Currently though, these opportunities are limited [see, Section 304-A, IPC].

Could Uber be made liable for the acts of drivers? Such vicarious liability in criminal law was uncommon. It also offends principle: the culpable mental state of an actor is imputed to a third party. However, such an imposition of liability today is fairly common in socio-economic offences. Statutes contain "offences by companies", where for an offence committed by the company, specific officers are made vicariously liable owing to their position of responsibility [see, Section 138 & 141, Negotiable Instruments Act].

In the case currently being reported, Uber cannot be held criminally liable for their alleged failure to conduct sufficient background checks on the concerned driver. As already mentioned, there are no legal rules requiring such checks in the first place. With respect to the specific offence, rape, again no case is possible. Vicarious liability for rape is not provided for, nor is negligence a culpable mental state to fulfil the conditions Section 375 IPC which defines rape. 

It will be highly interesting to see if a criminal case is filed against the company. In the meanwhile, let us hope the legislators plug the gap this horrendous incident has brought to the nation's attention.

Aarushi-Hemraj Murder Case and the Last Seen Theory

The events that took place at the Talwar household on 15-16 May, 2008 will probably remain a mystery forever. Four persons entered the house on 15th night, and presumably went to sleep in the house; in the morning 14 year old Aarushi Talwar was found murdered in her room. The parents said they were asleep and initially suspected the servant Hemraj, who was later also found murdered on the terrace that same day. It was the classic whodunit. The police, many believed, botched their investigation which led to several delays. Ultimately, though, we had a decision: the parents were found guilty of having murdered their only daughter. The court believed the prosecution case, that Mr Talwar found his daughter in a "compromising position" with the servant and killed them both and was aided by his wife. 

There are, sadly, many holes left in the lengthy decision of the Sessions Judge which will hopefully receive greater consideration at the appeal. Here, I am only concerned with the prosecution (and Court) placing great reliance upon the "last seen theory". The idea is simple: the victims were last seen alive by the accused person within closed bounds, so what happened to them is something they must explain. It doesn't require much thought to argue that such a theory can put the accused in a fix. Will the Court believe me if I say I don't know what happened?

The Last Seen Theory

Section 106 of the Evidence Act 1872 places a burden upon an accused to prove facts especially within his knowledge. Also look at the definitions of proved, disproved and not proved before you proceed. So, suppose you were seen going inside a room alone with your friend, who was murdered minutes later by an assassin who fled. The police don't believe you and charge you for murder. At trial, how the death occurred is a fact, within your special knowledge. The burden to prove that the death occurred in the way you allege rests upon you, but not to the standard of beyond reasonable doubt [Sawal Das v. State of Bihar, AIR 1974 SC 2276]. What if you fail to do so? If the Court believes the prosecution, then your fact is disproved. If neither party convinced the judge, the fact remains not proved.

This is at the heart of the last seen theory, a tool relied upon the the prosecution to shore up a case based on circumstantial evidence. The Prosecution must leave no other possibility open, to make "what happened" a fact "especially" within the knowledge of the accused, which must be explained by him. Only if the fact is proved or disproved can it become relevant to judgment, so mere failure to discharge the burden should statutorily be not enough to merit adverse inference. How does the Prosecution put forth the last seen theory? It must establish (a) the time when the accused was last seen with the deceased, (b) the time of death, and (c) strong link between the two to rule out possibility of any intervention from outside [See, Bodhraj v. State of Jammu & Kashmir, (2002) 8 SCC 45; Mohd. Azad v. State of West Bengal, (2008) 15 SCC 449; Shyamal Ghosh v. State of West Bengal, (2012) 7 SCC 646]. 

Applying it to the Facts

The prosecution case sought to establish a chain of circumstances so concrete, that it pointed to only one conclusion: the accused's guilt. A large hole was sought to be plugged by the last seen theory. Nobody else was in the house that night, so the accused must explain what happened.

Were initial requirements fulfilled though, for the last seen theory to be pressed? Everyone was last seen together at about 9.30 PM on 15 May 2008. There was a possible 3 hour gap between this and Aarushi's death. For Hemraj, an ambiguous time of death creates a possible 4-5 hour gap. This is huge, especially because the house had no security guard to check if anyone entered stealthily at night (nothing could show a break-in, but the possibility of entering by invitation was not considered). 

Even if this was sufficient, what about the explanation by the accused? They said they were asleep, and any noise was drowned out by the AC. The court chose to disbelieve this, perhaps because it made too much sense. Instead, it bought the story that a 14 year old had willingly opened her room to invite her 45 year old servant for intercourse, only to have been caught by her father in the act who killed them both. 

Mistaken as to Law?

The decision is overburdened by citing and discussing case law. In a rare insight into its approach, the Court explains at page 86: 

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would, undoubtedly, be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation [emphasis supplied].

I believe the Judge gives himself away here. He wrongly holds the prosecution to a lesser burden, simply because there were no witnesses barring the accused, Further, he confuses the persuasive burden to prove the charge and the burden under Section 106 to prove facts. If the accused proved the deaths occurred as per their story, its an acquittal. But, is a failure to prove your case always the end? No. The fact may remain not proved by either side. What that means here is that while the facts show the deceased persons were murdered, how this occurred remained not proven by either side. Such a conclusion would logically mean, that the accused persons could not be found guilty of murder.

Only time will tell how these issues are framed and decided in the pending appeal. 

Once a witness, never an Accused?

The Question.

Picture this for a moment. The police send you a notice under Section 91 Criminal Procedure Code [Cr.P.C.] 1973, asking you to furnish some documents in relation to your business. You provide detailed information as provided by your chartered accountant, and move on with life. Three weeks later, the police arrest you for having embezzled money from public funds. The information you gave under Section 91 is now the most incriminating material the police has against you. Can they do so?  

Tricks of the Trade.

Why did I specifically mention Section 91? There is, after all, the more usual method of gathering information by recording statements of witnesses as under Sections 161-62 Cr.P.C. Take a closer look at Section 162(1): not only does it specifically require statements should not be signed, it also restricts them from being used for any purpose other than contradicting the witness. The police are not so blithe and incompetent as to ignore this, which throws Section 161 statements out the window. 

On the other hand, Section 91 Cr.P.C. offers the police brilliant leeway to do as they please. The police can ask you to produce anything really without there being any bar on how the information may be utilised. Have a look:

          91(1) :Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of investigation, inquiry, trial or other proceeding under this Code ... such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons

Contrary to the Right against Self-Incrimination?

Traditionally, the right against self-incrimination prevents any individual from being a witness against himself. Would the example I raised above be hit by this prohibition? Certainly, until one looks at Article 20(3) of the Constitution of India which guarantees this fundamental right. Unlike the Fifth Amendment to the Constitution of the USA, Article 20(3) does not protect an individual from being a witness against himself. The individual must be accused of an offence to be protected.

This distinction is crucial and meaningful. The Supreme Court has relied on this text to restrict the ambit of Article 20(3), holding that it applies only after there is a formal accusation against an individual [see, Romesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940]. However attractive (and perhaps principally sound) the argument on self-incrimination appears, there is just no escaping the unambiguous restriction that has been placed by the Constitution. The police aren't prohibited because you aren't an accused, when it mattered.

How to Prove these Documents?

Well, the material can certainly be brought to trial, but what now? The question is very interesting. Documents do not become evidence by merely being exhibited in Court; these have to then be proved by bringing a witness as per Sections 67-73 of the Indian Evidence Act [IEA] 1872. The now-accused person cannot be made a prosecution witness, so how will these documents be proved? Many lawyers who I have met recently believe that this is a most pertinent issue, that settles the matter in favour of not using these documents at trial. I disagree.

I would argue that the documents I provided are an admission I made. Section 17, IEA defines an admission as "a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact". Admissions by a party to proceedings are also considered as admissions [Section 18, IEA.] The documents I submit under Section 91 are certainly suggestive of inferences as to the fact in issue and/or relevant facts, for otherwise I would not be facing trial. Section 21. IEA leaves no doubt that admissions "can be used against person who makes them".

Plugging the Gaps

Intuitively, few would claim using evidence I gave as a witness against me later is fair in a liberal system. I demonstrated how our particular liberal system this is clearly permissible. The rather large Section 91 shaped hole in the law of self-incrimination in India is disturbing, as it allows the police to do indirectly what they could not do directly. Unless the scope of Article 20(3) is broadened to cover any individual, the possibility of such abuse looms writ large.