Shajreel Imam Default Bail: Legal Angle

Reading time: 8-10 minutes.

Amid the scourge of the raging pandemic wrecking the lives and livelihood indiscriminately comes the news of issuing notice in Imam’s plea for default bail. Time was given to police beyond 90 days given in the statute, to complete the probe in the matter. Due to the pandemic, the situation was worsened and the investigation in the matter was hampered.  Imam was alleged to have passed incendiary harangue in the protest of Anti- Citizenship (Amendment) Act, 2019 (hereinafter referred to as “CAA”) and Anti-National Register of Citizens (hereinafter referred to as “NRC”).

Facts of the Issue

Shahjreel Imama, a former student of JNU was arrested on 28th January 2019 for the violent protest against Citizenship (Amendment) Act, 2019, held near Jamia Millia Islamia University in December 2019. He was booked by the police for his allegedly seditious speeches during the protest against CAA and NRC. The FIR was under Sections 124-A (Sedition); 153-A (Promoting enmity between classes) and 505 (statement conducing of public mischief) of the Indian Penal Code. The case was registered at New Delhi Police Station relating to the alleged inflammatory speeches given by Imam and allegedly provoking a specific religion to distort access to North Eastern region of India from the rest of India.

Afterwards, it was alleged that Imam was involved in organizing the protest at Shaheen Bagh, which later into the glare of publicity after a video demonstrating him making controversial comments before a gathering at Aligarh Muslim University surfaced on the internet. He wasl arrested soon after for the same, under sedition. Another case was also filed against him in Assam under the rigid Anti-Terror law for his statement in relation to Citizenship (Amendment) Act in Assam. Later, he was arrested in Jehanabad district in Bihar.

Imam approached the Delhi High Court, against the order of the Trial Court giving more time to police for concluding the investigation. On April 25 the trial court passed the order to grant three more months beyond the statutory 90 days for the completion of the investigation under Unlawful Activities (Prevention) Act, 1967. The same was challenged by the accused in the Delhi High Court. Imam also requested for bail on the very ground that the investigation was not completed within the statutory period of 90 days and no notice was given to him when the police filed request for the more time to conclude the investigation. The Court dismissed this plea.

Legal Provisions Involved

The Trial Court, along with setting aside the order also allowed the Delhi Police to thoroughly investigate the alleged commission under Unlawful Activities (Prevention) Act, 1967. Section 43D (2) of UAPA Act was invoked which makes it discretionary upon the Court to allow the Police an extended period of time for completion of the investigation upon being satisfied by the reasons of the Police.

Section 13 of UAPA Act provides for the punishment for unlawful activities, to be imprisonment for a term which may extend to seven years, alongwith imposition of fine.

Besides the UAPA, other provisions of the IPC were also invoked. These were:

  • Section 124-A of IPC for sedition;
  • Section 153 A of IPC (promoting enmity between classes); and
  • Section 505 of IPC (statements conducing to public mischief).

Critical Analysis

This matter took an entirely different turn when the Delhi High Court issued notice to Imam’s plea seeking bail under section Section 167(2) of the CrPC, 1973. The petition led the order of the trial court to be set aside and allowed the Delhi Police to probe the petitioner for alleged commission of offence under the UAP Act.  This Act allows investigation for 180 days only. Petitioner had contended that the invocation of UAP Act on 88th day of the custody was with the sole intention to curb his liberty by depriving him of right to the statutory bail after custody of 90 days in terms of section 167(2) of CrPC.

It was also pointed out in the order that by giving time to Delhi Police to carry out probe under the Act was devoid of the essential requirement under Section 43D(2) of the Act. It was also alleged that neither was the Petitioner given any notice under the respective section nor any report was given by the Public Prosecutor. It was further contended that the application for extension of time was devoid of the genuine “compelling reason” that are required to be disclosed for extension of probe time beyond 90 days.

Conclusion

This case is one case of sedition which has played a critical role in establishing the procedure for investigation to the followed under the UAPA.  Student of Jawaharlal Nehru University, Sharjeel Imam arrested under Unlawful Activities (Prevention) Act for arousing a specific religious community to muss the imperium of the country. Speeches given by the petitioner were allegedly seditious in nature, which caused serious community strife and promoted animosity between various religious groups. By way of his alleged harangue, he burgeoned falsity of genocide in Assam. Petitioner became the eye of the storm for his “inflammatory” speech in Delhi over Citizenship Amendment Act and National Register of Citizens and subsequently at Aligarh University where he threatened to “cut off” Assam and other parts of Northeast India from the country.

Author: Bhavyanshi from Symbiosis Law School, Noida.

Editor: Astha Garg, Junior Editor, Lexlife India

Explained: What is a Charge-Sheet?

Reading time: 8-10 minutes.

Recently the Crime Branch of Delhi Police has filed the charge sheet against in the cases related to the recent Delhi Riots which had pushed the city into turmoil. The charge sheet names Sharukh Pathan as the main accused along with 5 others. In this context it becomes particularly pertinent for us to know what a charge sheet is and what are the relevant legal provisions related to it.

What is a Charge-Sheet?

Under Section 173 of CrPC, the police officer is obligated to file a report after the completion of the necessary investigation of an offence. The report is to consist of the of the materials regarding investigation which are collected under Chapter XII of CrPC along with assemblage of evidence and submission as envisaged under Section 173 of CrPC. This report is called the Charge Sheet in common parlance. In simpler words, a charge sheet is the final investigation report submitted by the investigating agencies to the magistrate for proving an offence in the criminal court of law. The charge sheet, also acts as report that informs the magistrate that on investigating the offence sufficient evidence was found for the court to go further in the case and inquire into the offence.

The charge sheet, however, is different from the FIR. The FIR is the document which describes the main offence that took place, the charge sheet on the other hand is the formal police record showing the names of the people brought in the custody, the charges they are brought in for and the identity of the accusers. Thus, the charge sheet marks the beginning of the prosecution proceedings against the accused in the Indian judicial system. The next part mainly deals with some of the relevant parts of Section 173 of the CrPC which as discussed earlier describes the charge sheet.

Legal Provisions Regarding Charge-Sheets

In the case of RP Kapur v. State of Punjab, the court held that the charge sheet should be sent to the magistrate, as soon as the investigation is complete, and there should be no unnecessary delays. In case the investigating officer finds that there is absence of sufficient evidence or the officer finds the offence the accused was complained of committing to be based on false facts, then in such a case the accused is not bound to file the charge sheet. Further, under section 173(2)(ii) of the CrPC, the officer-in-charge of the police station is also bound to inform the informant about action taken by him, in pursuance of the information given by the informant.

On filing of the charge sheet, the magistrate may release the accused on bond under section 173(4), however it must be kept in mind that such release should not be considered as discharge. Section 173(5) describes the situation where if the charge sheet falls under section 170 of CrPC then in such a case the prosecution must send all the relevant documents along with the witness testimony to the magistrate. Section 173(7) further asks the investigating authorities to send the documents mentioned above to the accused as well.

Landmark Cases

In the case of Bhagwat Singh vs Commissioner of Police and Anr. the Supreme Court held that if on the basis of the report advanced by the investigating authority the magistrate decides to drop the case owing to absence of evidence or ground for holding proceeding against the accused on the basis of the F.I.R, then the informant should be given a chance to be heard at the time. But this chance to be heard is more of discretionary nature and the magistrate is not obligated to do so.

In the cases of V.C. Shukla vs. C.B.I., and Jarnail Singh vs State, we can see that the court realizes the importance of charge-sheet. It basically is the last notice sent to the accused in the pre-trial stage, informing him of the offences he is charged with and the penalties that would follow in case of conviction after the trial, thus warning the accused that there is no chance of discharge after this stage.

Critical Analysis

We have seen in the above few paragraphs how the charge sheet forms a really important part of the criminal justice system. The Supreme Court judgements also consider the charge sheet as the point from where the pre-trial stage ends and the initiation of the judicial criminal proceeding which results in either the conviction or the acquittal of the accused. We also looked at the provision of section 173 of CrPC which form the finer details of the legal process behind filling the charge sheets.

Conclusion

The Delhi police filling the charge sheet marks the initiation of the formal judicial proceedings against those involved in the Delhi riots that shook the capital and is one of the shameful instances that should never be forgotten for the lessons they behold.

Author: Eashaan Agrawal from National Law University, Delhi.

Editor: Silky Mittal, Junior Editor, Lexlife India

Law regarding contempt of court

Reading time: 8-10 minutes.

The Courts are the ultimate pedestal upon which justice is delivered through the beacon of due process. It is where ideally, inherent respect and acquiescence should arise regardless of the logistics involved in the justice delivery. But as we all know, idealism is just another perspective often confused by reality. While it is believed that justice served must be accepted as it is, that is often not the case, is it? People often have varied opinions that don’t agree with that of the judgment or even the judge. Since the ones who deliver it, become the face of the judgment’s existence, they also often become the subject of both dissent and appreciation. When dissent becomes the fore-runner, it often yields consequences that take the shape of contempt. It might be passive or assertive but is often directed towards the one presiding in the Court of law or certain cases at the Court of law itself. We will further look into various aspects of the prevalent expressions of contempt in court as well as the measures to curb it.

What is contempt of court?

The concept of contempt of court originated from the phrase “Contemptus Curiae” that has been recognized under English law ever since the 12th century. Lord Diplock in the case of Attorney-General v Times Newspapers Ltd [(1973) 3 W.L.R. 298] defined the term contempt of court as:

“Contempt of Court is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or inhibit citizens from availing themselves of it for the settlement of their disputes.”

Contempt of Court is the act of being defiant or disrespectful towards the Court of law including its officers. Such conduct that amounts to contempt must be such that opposes the authority, justice, and dignity of the court. Thus, anything that curbs or impairs the freedom of judicial proceedings hampers the administration of law and subsequently intervenes with the due course of justice, it would be contempt of Court. In India, the concept of contempt of courts had its origin from the then British administration.

The Indian legal system is very much influenced by English law. The roots of this concept can thus, be traced from J Wilmot’s undelivered judgment of 1765. In this judgment, he stated that “the power of contempt was necessary to maintain the dignity of judges and vindicate their authority.”

Relevant legal provisions 

The legal provisions for contempt of court in India are an offspring of the British regime. In 1926, the first Contempt of Court Act was passed to bring about transparency and punishment for contempt. But, this Act did not provide any provisions regarding contempt of courts that were lower to the Chief Courts and Judicial Commissioner’s Court. So, it was later replaced by the Contempt of Courts Act, 1952. This Act, however, did not satisfy people either. It was a prevalent opinion that the existing law on contempt of courts was ambiguous, undefined, and not properly demarcated. Thus, to negate the prevailing doubts a committee was set up in 1961 under H. N. Sanyal, the then Additional Solicitor.

This committee made an all-inclusive examination of the law on contempt and its subsequent problems in the then legal set-up. These recommendations involved the need for protecting the status and dignity of courts as well as an uninhibited process of administration of justice. These recommendations got incorporated in the Contempt of Courts Act, 1971.

Even though there is no explicit definition of contempt of Court but section 2(a) of this Act defines contempt of Court to mean civil contempt or criminal contempt.

  • Civil contempt: Section 2(b) defines civil contempt as willful disobedience to any judgment, decree, direction, order, writ, or any other process of a court or willful breach of an undertaking given to a Court.
  • Criminal Contempt: According to section 2(c), criminal contempt means the publication of any matter or the doing of any other act which:
  • scandalizes or tends to scandalize, or lowers or tends to lower the authority of any court, or
  • prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
  • interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

The publication can be by spoken or written words, or by signs, or by visible representation or through any other such manner.

Section 3 states that innocent publication and distribution of matter is not contempt. Section 4 provides that fair and accurate report of a judicial proceeding is not contempt. Section 5 states that a fair criticism of a judicial act is not contempt.

Section 10 empowers every High Court to punish for the contempt of its subordinate courts. Punishment for contempt is enshrined under section 12.

Section 14 states that procedure in case the contempt is in the face of the Supreme Court or a High Court.

Section 15 empowers the Supreme Court and the High Courts to take cognizance of criminal contempt.

Article 129 and 215 of the Indian Constitution confer upon the Supreme Court and the various High Courts, respectively, the status of a court of record. With this status comes the power to punish for contempt of itself.  Article empowers the Supreme Court and High Court respectively to punish people for contempt. It is pertinent to note here that powers to punish for contempt under Art. 129 and 215 are not subject to Article 19(1)(a).

Landmark judgments

The legal boundaries as to how contempt of court was to be treated were devised by the various judgments surrounding it as well. Some of them are:

  • Surendra Nath Banerjee v The Chief Justice and Judges of High Court at Fort William (P.C. 1888)

 In this case, the Privy Council observed that “a High Court derives its power to punish for contempt from its own existence or creation. It is not a power, conferred upon it by law.”

  • Legal Remembrancer v Matilal Ghose [ILR 41 Cal 173]

In this case, the Calcutta High Court explained the distinction between civil and criminal contempt and their fundamental character. Criminal contempt offends the public and consists of conduct that offends the majesty of law and undermines the dignity of the court. Civil contempt consists of a failure to obey the order, decree, direction, judgment, writ, or process issued by courts for the benefit of the opposing party.

  • State v Padma Kant Malviya and Anr., AIR 1954 ALL 52

This was one of the earliest landmark cases in which it was opined that the legislation had no power to define contempt of court. Only a court of record could do so. Only such courts had the exclusive power to define and determine what would constitute its contempt. It was also held that the Parliament could legislate concerning substantive law of contempt of the Supreme Court and High Courts subject to the following three limitations:

  • Contempt cannot be abrogated, nullified, or transferred to another body, except by constitutional amendment.
  • It cannot stultify the status and dignity of the court.
  • It cannot impose unreasonable restrictions on the right of a citizen’s freedom of speech and expression.

This had an influence on subsequent cases including Supreme Court Bar Association v Union of India & Anr [(1998) 4 SCC 409] and T. Sudhakar Prasad v Govt. of A.P. and Ors [(2001) 1 SCC 516]. These cases spoke about the court’s constitutional power to punish for its contempt.

  • P. N. Duda v V. P. Shiv Shankar & Others, 1988 AIR 1208

In this case, the Hon’ble Supreme Court observed that the judges cannot use the contempt jurisdiction for upholding their own dignity. Our country is a free marketplace of ideas and there can be no restriction in criticizing the judiciary unless this criticism hampers the ‘administration of justice’.

  • In Re Arundhati Roy, 2002 AIR (SCW) 1210

In this case, the Apex Court observed that fair criticism on the conduct of a Judge or the institution of Judiciary and its function may not amount to contempt if it is made in good faith and public interest.

Critical analysis

Critically analyzing the legal aspects of contempt of court involves an overlook of how both the legislation and judiciary have influenced the means and modes of treating contempt of court. There can be no doubt that the impetus of contempt jurisdiction is to uphold the dominion and dignity of the Courts of law. It is to ensure that the image of the courts in the minds of the public is in no way simmered down. If by obstinate words or writings, the common man is led to losing his respect for the judge or the Court of law, then the credibility of courts is tumultuously shaken.

It is pertinent to understand the difference that the very essence of law governing contempt protects the seat of justice more than the person sitting on it. The jurisdiction to punish for the contempt of court also borders on two fundamental rights namely, the right to personal liberty and the right to freedom of expression. It is safe to say that the provisions of the Contempt of Court Act, 1971 are intra-vires the Constitution. This is because Article 19(2) provides for reasonable restrictions on freedom of speech. It explicitly states contempt of court as one of the restrictions. But this aspect is still debatable as balancing freedom of speech and expression and distinguishing it from contempt is not an easy line to tread upon. There is no strict jacket test to determine the same. This is because every case has a different set of facts and circumstances and thus cannot be judged based on a strict uniform formula.

It is important to keep in mind that apart from the statutory provisions, the Hon’ble Supreme Court has over the years through its various judgments has established what would form as contempt of court. However, this does not exempt the current legislative framework of its lacunas. More than often, the absolute discretion vested in the courts to determine contempt has been met with criticism. The loopholes regarding discretion need to be attended to.

The judiciary must be efficient enough to distinguish between contempt of court and contempt of judge. The provision for punishments in the legislative enactments should be a last resort and not the priority. The requirement of second opinions of committees or judicial authorities should be encouraged.

It is extremely pertinent for us to understand that the law of contempt is not to provide a cloak for judicial authorities to cover up their inefficiency nor is it to stifle criticism made in good faith against them. This is why it is essential to undertake due diligence while addressing an issue of contempt. Administration of justice cannot be efficacious unless reverence for it is fostered and maintained.

Conclusion

Any action of disregard which impedes the justice delivery system from working constructively must be sanctioned. The object behind such a sanction must be to prevent further indulgence in such activities. The requirement of such law was inevitable and has proved beneficial in the establishment of an independent and impartial judiciary. The existence of such courts must be supplemented with the trust and confidence of the public.

For if the common people lose their faith in the courts, then the courts also lose their meaning. One cannot also ignore the fact that there remains a conflict between contempt of court and the freedom of speech and expression. The borderline between these two concepts often gets blurred and needs to be trodden carefully. Hence, it is at the hands of the judiciary along with the prompt aid of the legislature to maneuver through such obstacles and ensure they uphold the dignity of courts immaculately and ceaselessly.

Author: M. Karnikka from Tamilnadu Dr. Ambedkar law university, School of Excellence in Law, Chennai.

Editor: Shalu Bhati  from Campus Law Centre, Faculty of Law, University of Delhi.

Explained: Zero FIR

Reading time: 8-10 minutes.

Recently, the death of an Odia migrant worker made it to the news as a zero FIR was filed at Bhanjanagar police station in Odisha. Satyaban Swain died due to an alleged assault at the hands of Amroli police personnel in Surat, Gujarat. It was Santosh Swain, the brother of the deceased who had lodged this FIR. According to Santosh’s account, his brother was lathi-charged along with two others when they went to collect their train tickets. Satyaban was later beaten up by a police team who had reached his room. Thus beating sent him to the hospital where he was declared dead. Now, this FIR would be sent to Amroli police station under whose jurisdiction the offense took place.

What is Zero FIR?

Any person who has information as regards the commission of an offense may give such a piece of information to the police. This information being communicated is the First Information Report or FIR. The person communicating such information is the informant. The term “FIR” has not been defined anywhere in the statutes. But, sections 154 and 155 of the Code of Criminal Procedure, 1973 bear the ethos of the concept of FIR for both cognizable and non-cognizable offenses respectively. An FIR kickstarts the criminal justice system. It sets the proceedings into motion. FIR holds a far greater evidentiary value as compared to any other statement. And yet, it is not treated as a substantive piece of evidence. It can only be used for corroboration.

The concept of zero FIR is fairly new. It refers to such an FIR that is registered irrespective of the area where the offense has been committed. The police can no longer claim that they have no jurisdiction. With the introduction of the concept of zero FIR, they would have no other choice but to lodge that FIR. Such an FIR is then later transferred to the police station that has the actual jurisdiction so that the investigation can begin.

Why was it introduced?

The notion of Zero FIR has led to the establishment of a jurisdiction free FIR. It was on the recommendations of the Justice Verma Committee of 2013 that such a concept was brought forth. It was in the aftermath of the brutal Delhi gang rape case of December 2012. The brutality of this offense shook the nation to its core. The nationwide protests forced legislators to rethink the situation of the then-existing criminal justice system. It was the Justice Verma Committee’s recommendations that led to the criminal Amendment Act, 2013. This amendment brought several noteworthy changes in the system. One such concept was that of zero FIR.

The police can no longer claim ‘lack of jurisdiction’ when approached by an informant. The Supreme Court’s mandate in Lalita Kumari v Government of Uttar Pradesh [2008 (11) SCALE 154] clarified that the registration of FIR is mandatory. This position was further strengthened with the introduction of zero FIR.

The concept of zero FIR was introduced to ensure that the evidence in certain cases such as those that involve sexual offenses or road accidents is collected without losing precious time. It is extremely important to maintain the sanctity of the evidence collected. It has to be protected against manipulation and corruption. Zero FIR becomes beneficial in cases where immediate action is necessary. It allows the police to begin a timely investigation.

In the case of Kirti Vashisht v State & Others (2019), the Delhi High Court made the following observation:

“As per section 154 CrPC, if any information relating to the commission of a cognizable offense is received by any police station, the said police station is duty-bound to register the FIR. However, if the crime has not occurred in the jurisdiction of the said police station, then after registering the zero FIR, the same has to be transferred to the concerned police station for investigation, where the offense has been committed […] A zero FIR can be filed in any police station by the victim, irrespective of their residence or the place of occurrence of crime.”

Therefore, now no police officer can refuse to register an FIR even if the commission of the offense was outside that police station’s jurisdiction. The officer-in-charge of that police station is bound to register that FIR.

In the general scheme of things, FIR is registered alongside a serial number. But a zero FIR does not bear a serial number. Instead, it assigned the numeral “0”. This is how this FIR received its name.

Salient features

  • A zero FIR can be filed at any police station irrespective of jurisdiction.
  • Filing of such FIR is mandatory and no one can deny its registration.
  • It is lodged under the serial number “0” and hence, its name.
  • Such an FIR is later transferred to the police station that has the actual jurisdiction.
  • If the officer-in-charge of the police station refuses to record the information, then that person can take his case to the Superintendent of Police (SP). He can either direct the lodging of the FIR or register it himself and initiate the investigations.
  • The jurisdiction is not disturbed. The police station within whose borders the offense was committed will have sole jurisdiction. The police station where zero FIR is filed is responsible only for its filing and its transfer.
  • It must not be confused with the multiple jurisdictions. In such a case, parts of crime are committed in different areas and all the police stations involved have jurisdiction. They can file the FIR anywhere amongst themselves without worrying about its transfer.
  • It was introduced to protect the informant and the victim against technicalities. Zero FIR takes away the concept of jurisdiction to allow for smooth initiation of proceedings.
  • It ensures that justice is neither delayed nor denied.

Legal provisions regarding it

FIR has not been expressly dealt with in CrPC. However, section 154 directly deals with it. It lays down provisions regarding information in cognizable cases. In other words, it deals with the registration of FIR in cognizable cases. Similarly, section 155 deals with the registration of FIR in non-cognizable cases.

There is no direct or indirect provision in the CrPC regarding zero FIR. However, its legal basis can be found in section 460 and section 190.

Section 460 of the Code talks about irregularities which do not vitiate proceedings. Clause (e) of this section states that if any Magistrate who is not empowered by law to take cognizance of an offense under clause (a) or clause (b) of subsection (1) of section 190 but takes cognizance erroneously and in good faith, such proceedings shall not be set aside merely because he lacked such power.

Section 190 talks of cognizance of offenses by Magistrate. Apart from these sections, sub-section (c) of section 166A of the Indian Penal Code, 1860 lays down punishment for a public servant who refuses to record any information given to him under sub-section (1) of section 154 of CrPC.

Critical analysis

Zero FIR becomes particularly important in sensitive cases where the reporting of the crime must be done as soon as possible. This ensures a timely action and a swift delivery of justice. For instance, in cases of rape and sexual assault, the collection of evidence through physical examination is a top priority. Such a collection can be only done after the filing of FIR. This is because these pieces of evidence are crucial in these types of cases and it becomes necessary to protect them from corruption or deterioration. Further, in homicide cases, especially the heinous ones, the perpetrator must be caught quickly to prevent him from absconding. Again, to catch him and to initiate proceedings into the matter, an FIR has to be lodged first.

Investigation and evidence collection can only happen once the FIR is duly registered. Zero FIR prevents the waste of time of the informant by providing a short cut. The informant no longer needs to worry about the jurisdiction of the police station. No one can send him away for a lack of jurisdiction. Zero FIR makes it possible for any police station across India to register an FIR irrespective of the place of commission of the offense.

It also becomes an important tool when an offense committed during traveling. The victim, in such a situation, can reach out to the nearest police station on route their journey and lodge a Zero FIR. It would become the responsibility of that police station to send the zero FIR in question to the appropriate police station.

As good as the reform sounds on paper, its execution in the field remains dicey. Firstly, the police itself is not aware of the reforms despite the amendments in the CrPC and the issuance of multiple guidelines. There have been countless instances where the police officers out of ignorance have turned the victim away, citing lack of territorial jurisdiction. The most recent example of police officers refusing to file an FIR is that of the Hyderabad rape case. The victim’s parents were turned away from their nearest police station when they went to file an F.I.R against the perpetrators citing lack of territorial jurisdiction as the reason.

Secondly, the citizens themselves are not aware of their legal rights. They are not aware that now they can lodge a zero FIR across any police station in India. Even six years after the 2013 Amendment that made lodging of a zero FIR to be a statutory duty, the police across the county, both the police and the police officials and the citizens are struggling to get a grasp of this concept. Not only this, despite several strict guidelines of the Ministry of Home Affairs, mandating the concerned departments to compulsorily register zero FIRs, but ignorance also prevails at large especially at the grassroots levels.

Conclusion

The legal right of lodging a Zero F.I.R is a very noble one. It inspires confidence in the minds of the general public that upon any wrongdoing, their voices will be heard and not muffled by procedural technicalities of law. However, due to certain maladies like the ignorance of the law as well as intentional abuse, the confidence and trust in the legal system are at stake. For law and order to exist, the maintenance of public confidence and trust in the country’s justice system is a must. Where landmark judgments, amendment acts, and even the strict guidelines by the Ministry of Home Affairs have remained inefficient, steps should be taken by the government to compulsorily ensure that the citizens, as well as the functionaries of the justice system, are aware of the concept of zero FIR.

Though there have been cases of abuse of the reform, it cannot be used as an excuse to dissolve it. Instead, the need of the hour is to fix responsibility right from the lower rungs of the criminal justice administration. The criminal justice system remains riddled with many problems. As appreciable as these reforms are, without proper implementation measures in place, they remain of no use to the victim or the perpetrator.

Author: Viola Rodrigues  from School of Law, Christ (Deemed to be University), Bengaluru.

Editor: Shalu Bhati  from Campus Law Centre, Faculty of Law, University of Delhi.

Explained: Section 199(2) of CrPC

Reading time: 8-10 minutes.

India is one of the few countries in the world which have both civil and criminal defamation proceedings and punishments which stretch up to two years in prison or a fine or both. But this British-era law is often misused by influential people and politicians to crack down on objection.

A person or group of persons cannot be prosecuted for defamation for calling a government corrupt or unfit.

 Recently Madras High Court had given a landmark judgement in Thiru N Ram, Editor-In-Chief, “The Hindu” v. Union of India and connected cases. In this landmark judgement court quashed the criminal complaints against a group of journalists and editors. The High Courts have the constitutional power to quash government orders sanctioning prosecution under Section 199(2), if the competent authority, without any material as to how the state is defamed, has sanctioned prosecution. The complaints were lodged in 2012 which alleged criminal defamation against state over few reports against J Jayalalitha, the then chief minister of Tamil Nadu. There were 28 cases which were filed by the AIADMK government when it was headed by Chief Minister J. Jayalalithaa. Criminal complaints were filed by the Public Prosecutor before the Sessions Court under Section 199(2) of the CrPC.

Then writ petitions were filled challenging the validity of government orders granting sanctions to public prosecutor to file complaints under section 199(2) of CrPC regarding the reports and articles.

In this case, the Court observed that the criminal defamation law is not meant for misuse by state. It should be used in real cases of necessity. A public servant and constitutional machinery must be able to face criticism. The state should not be impulsive as an ordinary citizen in defamation matters just to throttle democracy. The Court also observed that Section 199(2) CrPC should only be invoked when there are foolproof materials, evidences and when launching of prosecution is inevitable. State is like a parent for its citizens, so it is normal for parents to face censorious insults from the children.

The Supreme Court also pulled up the Jayalalitha government for filing several such cases against political opponents, editors and journalists in Tamil Nadu & said a person cannot be prosecuted for defamation for calling a government corrupt or unfit.

What is defamation?

Defamation is a wide term which includes attacking another’s reputation by a false publication tending to bring the person into disrepute, which harms a person’s reputation, decreases the respect, regard, or confidence in which a person is held or disagreeable opinions or feelings against a person, entity, group, government etc. Written defamation is called “libel,” while spoken defamation is called “slander.”

In India defamation is both a civil as well as a criminal offence. The person who is defamed is offered a remedy both as in civil law for damages and in criminal law for punishment. Section 499 of the IPC provides for defamation and Section 500 of the IPC for punishment in respect of the above said offence.

Section 199(2) of CrPC in brief:

Section 199 talks about Prosecution for defamation. Its clause 1 says that no court shall take cognizance of all offence punishable under Chapter XXI of the Indian Penal Code except upon a complaint made by some aggrieved person by the offence.

Clause 2 of section 199 provides for a special procedure with regard to initiation of a prosecution for offence of defamation committed against the constitutional functionaries and public servants mentioned therein. However, the offence alleged to have been committed must be in respect of acts/conduct in the discharge of public functions of the concerned functionary or public servant, as may be. The prosecution Under Section 199 (2) Code of Criminal Procedure is required to be initiated by the Public Prosecutor

Clause 3, 4 and 5 of this section is connected to sub-section 2.

Clause 3 talks about that the nature of such offence and such other particulars should be reasonably sufficient to give notice to the cause of the offence alleged to have been committed by him/her.

Clause 4 says that no complaint under sub- section (2) shall be made by the Public Prosecutor except with the previous sanction-

  1. of the State Government, in the case of a person who is or has been the Governor of that State or a Minister of that Government,
  2. of the State Government, in the case of any other public servant employed in connection with the affairs of the State,
  3. of the Central Government, in any other case.

Clause 5 lays that no Court of Session shall take cognizance of an offence under sub- section (2) unless the complaint is made within six months from the date on which the offence is alleged to have been committed.

Landmark judgements

The courts in India have seen a variety of cases on section 199(2) of CrPC. The following are some of the landmark and different cases which have interesting facts or an important court ruling:

  1. K.K. Mishra v. State of Madhya Pradesh and Ors. –  In this case the defamation was confined to the 3 statements made in a press conference by the defendant and the public prosecutor filed the case against defendant after the government granted permission to file complaint considering the three statements as defaming against chief minister of MP. The appeal was allowed and the defendant were punished under section 500 of IPC.
  2. Udayam Telugu Daily v. State of Andhra Pradesh– In this case the petition was quashed because the appellant, who was a Minister in state, thought that the news printed in Udayam Telugu newspaper was directly defaming him and so there was a misconception and the government used their excessive power and granted the permission to file complaint, so here we can see the wrong use of this section by the govt.
  3. Mrs. Shobhana Bhartia and ors. v. State of Maharashtra and Shri Ajay Ganesh Ubale – This is a landmark judgment as it clarifies the difference between old code of criminal procedure, 1898 and that under new code of criminal procedure, 1973. According to the defendant, a private complaint by the public servant person was possible under old code of criminal procedure, 1898 but in the new code of criminal procedure, 1973 the public servant needs to take permission from government to approach the court under this section. The court held this interpretation right and said that by previous provision there is a factor where the public officers may utilize their authority and influence to curb the right to freedom of speech.
  4. Shamurailatpam Gopal Sharma v. Public Prosecutor (Districts), Manipur and anr. – In this case a newspaper wrote something defaming about the Minister of State in regard to his personal function. The court here held that the allegations relatable to personal life of a public functionary like that of a private citizen which does not revolve around his public function, this section won’t be operative and the cases are to be decided on the factual matrix of case.

Why was it invoked?

Section 199(2) CrPC. provides for a special procedure with regard to initiation of a prosecution for offence of defamation committed against the constitutional functionaries and public servants mentioned there in the section.

However, the offence alleged to have been committed must be in respect of acts/conduct in the discharge of public functions of the concerned functionary or public servant, as may be. In these cases, it can be invoked not otherwise.

Recently, the Madras High Court stated in the judgment of the 28 cases filed by AIADMK party headed by Jaylitha that time, that until there is a foolproof material and when launching of prosecution under section 199(2) is inevitable than only the said procedure can be invoked.

The court also said that criminal defamation law is meant for a laudable object in real cases of necessity and cannot be misused by using the state as a tool to settle score of a public servant/ public functionary over his adversary.

In the case of K.K. Mishra v. state of MP,  it was said that the core reason which this Court held to be the rationale for the special procedure engrafted by Section 199(2) Code of Criminal Procedure is that the offence of defamation committed against the functionaries mentioned therein is really an offence committed against the State as the same relate to the discharge of public functions by such functionaries.

And in the case of Subramaniam Swamy v. Union of India the court came to the conclusion that the criminal defamation under section 199 is not a violation of Art. 19(1) as the article involved public interest and not that of individual so the provision of invoked in this case.

The cases filed by AIADMK, the section 199(2) was invoked by them as it was solely against the then chief minister of Tamil Nadu and it was believed that the defamation is against the state, but the Tamil Nadu high court rejected the plea and explained it as merely criticism.

Critical analysis

As it is always said that reputation is an asset to each and every person, the same goes for state and public officers but they must be able to face reasonable criticism.

Section 199(2) provides for a special procedure with regard to initiation of a prosecution for offence of defamation committed against the constitutional functionaries and public servants mentioned therein. However, the offence alleged to have been committed must be in respect of acts/conduct in the discharge of public functions of the concerned functionary or public servant, as may be.  The prosecution Under Section 199 (2) Code of Criminal Procedure is required to be initiated by the Public Prosecutor.

The Criminal defamation law is not a tool for using as a matter of solving of personal vengeance by government & government officers nor it can be used as a political counter-weapon against anybody.

In the recent verdict of Madaras High Court in the case of Thiru N Ram, Editor-In-Chief, “The Hindu” v. Union of India and connected cases, it had clearly said that state should maintain higher tolerance with respect to criticism and it should not be impulsive like an ordinary citizen in defamation matters and it should not invoke section 199(2) of Cr.P.C. without any foolproof material & when it is inevitable for the state for launching prosecution under this section through a public prosecutor.

In defamation cases filed under Section 199(2) C.r.P.C. the public prosecutor has a very vital role as it plays two roles here – one as a representative of public servant or constitutional functionary as well as a public prosecutor.

In the case of Udayam Telugu Daily v. State of Andhra Pradesh, the petition was quashed because the appellant thought that the news printed in Udayam Telugu newspaper who was a Minister in state thought that was directly defaming him and so there was a misconception and the government used their excessive power and granted the permission to file complaint, so here we can see the wrong use of this section by the government.

This section is an important one and it is only invoked for protection of state and government from unnecessary defamation, a reasonable criticism is not defamation. Neither the government nor the government servants should misuse this section.

Conclusion

Defamation laws in India have been enacted to prevent person maliciously using their right to freedom of speech and expression.

In this particular case, Madras High court noted that in all 28 cases the core ingredient of Section 199(2) of C.r.P.C. for requiring prosecution through public prosecutor, that is, defamation of state, was missing.  The sanctioned orders of government were totally silent as to whether the state has been defamed on the account of alleged defamation of the public servant or constitutional functionary while discharging his/her public functions. So, complaints for criminal defamation under section 199(2) failed.

Thus, for invoking section 199(2) of C.r.P.C. it is necessary that the offence alleged to have been committed must be in respect of acts/conduct in the discharge of public functions of the concerned functionary or public servant, as may be. 

This section enables a public servant to file a complaint through the public prosecutor in respect of his conduct in discharge of public functions. Public functions stand on a different footing. This section gives them protection only for their official acts not otherwise. There cannot be defamatory attacks on them because of discharge of their due functions but it is important that they should be able face reasonable criticism and for invoking this section the ingredients of this section must be fulfilled.

Author: Shristi Gupta from Chanakya National Law University.

Editor: Avani Laad from Symbiosis Law School, Pune.

Right to default bail

Reading time: 8-10 minutes.

Recently the Madras High Court clarified an order of the Supreme Court given in the backdrop of the COVID-19 pandemic. The Madras HC in Settu v The State [Crl OP(MD) NO. 5291/2020], held that the Apex Court’s March 23 order granting an extension of the limitation period for various laws would not apply to the right to default bail as granted under section 167 of the Code of Criminal Procedure (CrPC), 1973.

Justice G R Swaminathan observed that a denial of the right to default bail would imply a denial of the right to liberty granted by Article 21 of the Indian Constitution. He observed:

Personal liberty is too valuable a fundamental right. Article 21 states that no person shall be deprived of his personal liberty except in accordance with the procedure established by law. So long as the language of Section 167 (2) of CrPC remains as it is, I have to necessarily hold that the denial of compulsive bail to the petitioner herein will definitely amount to a violation of his fundamental right under Article 21 of the Indian Constitution.”

The Court further clarified that the intention of the Supreme Court in its order is not to deprive the rights of a person. Such an interpretation would render the rights provided by Article 21 as nullified. Instead, it was to ease the difficulties faced by litigants due to the spread of coronavirus. The order was to ensure that neither the litigants nor their lawyers have to be physically present while filing cases. Thus, as long as the language of section 167 (2) of the CrPC remains as it is, it must be necessarily held that the denial of default bail amounts to a violation of his fundamental rights.

The Madras HC also observed that the Apex Court had not specified that the extension of limitation would apply to police investigations as well. The failure of the State Police to complete investigation on time cannot be hidden by invoking Supreme Court’s order.

What is default bail?

It was Supreme Court’s view in Rakesh Kumar Paul v State of Assam, (2017) 15 SCC 67, that in matters of personal freedom, the courts cannot and should not be too technical and must lean in favor of personal liberty. The generic principle of criminal law is that “a person is innocent until proven guilty.” From even before the registration of an FIR till the completion of the trial, the law provides for many provisions of bail. In countless cases, the Supreme Court has held that bail is a person’s absolute right (in bailable offenses). Granting of bail is the rule while sending to jail is the exception. Very often, we hear about anticipatory bail or regular bail. But, there is one more type of bail that is relatively less known. This is called default bail.

The right to default bail is also an absolute and indefeasible right of the accused. Section 167(2) lays down the provisions regarding this right. This section provides a specified period beyond which the accused cannot be kept in custody. On the expiry of such a period, if the police have not completed their investigation and filed the charge-sheet, the accused can seek default bail. This right accrues from the failure of the police. It acts as an incentive for the police to do timely investigations while also protecting the right to liberty of the accused.

Salient features

Following are the salient features of the right to default bail:

  • Right to default bail is provided under Section 167(2) of the Code of Criminal Procedure, 1973
  • It is an indefeasible right of the accused
  • It gets invoked when the police fail to complete the investigation within the prescribed period
  • The failure to file a charge sheet within 90 days or 60 days, as the case may be, gives birth to this right
  • Such a failure divests a power to the concerned Magistrate to grant default bail to the accused if he “is prepared to and does furnish bail”
  • It is only on the failure to file a charge-sheet that the right to default bail arises. Such a right is lost if the charge-sheet is filed within 90 days or 60 days, as the case may be
  • The accused must make an application, written or oral for the grant of default bail
  • In case the accused fails to furnish bail, this right would be extinguished

Legal provisions regarding it

Following are the relevant provisions w.r.t. to the right to default bail:

  • Section 57, CrPC: This section states that a person who is arrested without a warrant cannot be detained in custody beyond a period of 24 hours. Such a person has to be produced before the concerned Magistrate. The period of custody can go beyond 24 hours if specified so by a special order granted under section 167.
  • Section 167(2), CrPC: Section 167 of CrPC lays down provisions for cases when investigation cannot be completed within 24 hours. Subsection 2 of this section empowers the Magistrate to send the accused in the custody of 15 days at a time. It further states that the total period of such detention shall not exceed beyond:
  • 90 days, where the offense is punishable with death, life imprisonment, or imprisonment of 10 years,
  • 60 days, where the investigation relates to an offense other than those specified above.

If the police are unable to complete investigation and file a charge-sheet within 90 days or 60 days, as the case may be, then the accused has the right to be released on bail. This is his right to default bail. As per this section, the accused shall be released on bail if he “is prepared to and does furnish bail”.

Explanation I clarifies that the accused will continue to be custody until he furnishes bail.

  • Chapter XXXIII, CrPC: Chapter XXXIII of CrPC contains sections 436 to 450. It deals with provisions w.r.t. bail and bonds. A person released on bail under section 167(2) is deemed to be released under the provisions of this chapter.
  • Article 21, Constitution of India: Article 21 states that no person can be deprived of life or liberty except according to the procedure established by law.

Following are some landmark cases on right to default bail:

  • Rakesh Kumar Paul v State of Assam, (2017) 15 SCC 67

In this case, the accused was charged with an offense under Section 13(1) of the Prevention of Corruption Act. The said offense was punishable by “imprisonment for a period of not less than four years, but that can be extended to ten years”. The State thus argued that since the accused might end up with imprisonment of up to 10 years, the date on which the accused can request a default bond would begin after completion of 90 days. However, the Apex Court was of the view that the accused in this case had fulfilled all the requirements to seek default bail under section 167(2) of CrPC.

  • The Court held that the 90-days criterion is only for offenses punishable with death, life imprisonment, or imprisonment of a minimum of 10 years. For offenses that are punishable with minimum imprisonment that is less than 10 years and where the maximum punishment is not death or life imprisonment, then the accused becomes entitled to the right to default bail after the expiry of 60 days on the failure of filing of charge-sheet.
  • Sanjay Dutt v State through CBI, Bombay, (1994) 5 SCC 410

The Hon’ble Supreme Court has laid down several guidelines in case w.r.t. section 167, CrPC. These guidelines specified that the completion of 90 days or 60 days, as the case may be, accrues an indefeasible right in favor of the accused for grant of bail. This right arises from the failure of the investigative agencies to complete investigations and file the charge sheet within the prescribed time. He becomes entitled for a release on bail if he is prepared to and furnishes bail. If he is unable to furnish bail and investigation is complete, then such a right would extinguish.

  • Aslam Babalal Desai v State of Maharashtra, (1992) 4 SCC 272

In this case, the Supreme Court pointed towards the “legislative anxiety” found in sections 57 and 167 of CrPC. These sections express the urgency with which the investigation must be completed within the prescribed period once a person is deprived of his liberty. Proviso (a) to section 167(2) provides a maximum period of 90 days or 60 days, as the case may be. It was introduced to allow the investigative agencies to complete the investigation within the maximum stipulated time. The Court further held that if the investigation is not completed within this maximum period, the accused is entitled to be the right to default bail. It was also held that section 167 does not give any power to cancel bails. Such power is only available under section 437 or 439 of CrPC.

Critical analysis

On perusal of various Supreme Court judgments, it can be observed that the right to default bail under section 167(2) of the Code proceeds under the premise that the accused must either “make use of” or “enforce his right to be released on bail”. The Court has to ascertain whether the accused is prepared to furnish bail. In other words, the Magistrate’s exercise of power depends on the application by the accused. If the magistrate receives no such application, he has no power to release the accused. The application can either be written or oral.

The right to bail under section 167(2) is absolute and indefeasible. It is a legislative mandate and not the discretion of the court. If the investigating agency fails to file a charge sheet before the 90/60 days expiration, as the case may be, the accused in custody should be released on bond. At this stage, the merits of the case are not to be examined. This absolute right, however, depends upon the ability of the accused to furnish bail. If he is unable to do so even after the Court’s direction, his absolute right is extinguished. Thus, this right does not take into account the financial condition of an accused.

Conclusion

There exists an indefeasible right to default bail under section 167(2) of CrPC. The Magistrate is empowered to release the accused after the stipulated time and on the failure of the investigative agencies to file a charge sheet. The 90/60 days period as specified in section 167(2) begins to run from the date the magistrate hands the accused into custody. This may not necessarily be the date of arrest. In cases where the defendant has submitted a request for bail, he is deemed to have “validated” his right. In such cases, the magistrate must approve a bond order upon the expiration of the stipulated period. The provisions of section 167 of the Code would apply to all offenses unless specified otherwise. The right to default bail is a statutory right and cannot be taken away. The recent extension of limitation by the Supreme Court would not apply to this right.

Author: Sanjana seth from School of Law, University of Petroleum and Energy Studies (UPES) Dehradun.

Editor: Shalu Bhati  from Campus Law Centre, Faculty of Law, University of Delhi.

Concept of anticipatory bail

Reading time: 8-10 minutes.

In recent news, the Chairman of the Delhi Minorities Commission, Mr Zafarul Islam Khan moved the Hon’ble High Court of Delhi on 8 May 2020 seeking an anticipatory bail under section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Code) and quashing of the FIR against him under Section 482 of the Code. In his petition, he has sought the said remedy by claiming that the case registered against him is frivolous and bad in law and his arrest is untenable. He has further prayed that the Hon’ble Court ensures that his mobile phone and laptop are not seized, and no coercive action is taken against him. He is being represented by Ms Vrinda Grover, Ms Ratna Appnender and Mr Soutik Banerjee. The next date of hearing finalised by the Hon’ble Court is 12 May 2020.

Mr Khan was booked under sedition after he uploaded a post on social media thanking Kuwait after the country had highlighted the issues of Muslims in India. It also stated that Kuwait’s gesture of solidarity is appreciated however Indian Muslims do not require external help. A week later, on May 6, the Delhi police arrested him from his residence.

Significance of the development

Mr Khan has claimed in his petition that the post was made in pursuance of his capacity as the Chairperson of the Delhi Minorities Commission to address rampant incidences of communalisation of the Covid-19 pandemic. He has submitted that the arrest is in violation of his freedom of speech as guaranteed by Article 19 of the Constitution and the media coverage was distorted to the point where the petitioner had to bear the brunt of public hatred. He has further claimed that he received no notice for interrogation. The police paid a visit to his residence and orally asked him to accompany them for interrogation, instead which is against Section 41A of the Code. which mandates that a written notice of interrogation needs to be given.

This development of application of anticipatory bail and quashing of FIR is significant as the petitioner is a 72 years old public servant who suffers from hypertension and heart disease. Moreover, the pandemic conditions in the country are an added worry for Mr Khan who, in his aged and already ailing state, is highly susceptible to the virus. In addition to this, the petition states that he needs to be granted protection from this allegedly coercive action to protect his liberty and right to life as guaranteed by Article 21 of the Constitution.

What is anticipatory bail?

Bail is the conditional or provisional release of a person who was held under legal custody in matters that are awaiting judicial pronouncement on the promise that they appear in Court as and when required. They also deposit security or collateral before the Court.

Anticipatory Bail is enshrined in Section 438(1) of the Code. This provision allows any person to seek bail in anticipation of an arrest after he is accused of committing a non-bailable offence. This direction to release on bail can be issued even before the arrest is made

Objectives and purposes

The object of arrest while under trial is to ensure the presence of the accused at all court hearings. If this presence can be reasonably ensured without detaining a said person, it would be unfair to deprive such person of his liberty while the criminal proceedings are ongoing. It relies on the principle of innocent until proven guilty. Anticipatory bail is a way to safeguard the right to personal liberty of a person to protect them from arbitrary arrests. This was held in the case of Gurbaksh Singh Sibbia vs State of Punjab (1980 AIR 1632) wherein the Hon’ble Supreme Court of India held that  Section 438(1) should be interpreted in the light of Article 21.

The Law Commission of India, in its 41st Report, reiterated the importance of the provision of anticipatory. It states that sometimes influential persons implicate their rivals in frivolous cases and with such cases rising, it is imperative for the Code to have a provision for anticipatory bail. It is only after this report that the provision was added to the Code. This was also held by the court in K. Gajendra Baidu Vs State of (A.P 1992 (3) ALT 27)

Legal provisions

 Simply put, Section 438 of the Code is the provision that talks about anticipatory bail. This term, however, is nowhere described in the Code. It can only be invoked when a person has been accused of committing a non-bailable offence. Anticipatory Bail can be granted by either the Court of Sessions or the High Court as per Section 438(1). No period for the limit of the order of anticipatory bail has been specified in said section. This also been reiterated in S Mhetre vs State of Maharashtra & Ors. ((2011) 1 SCC 694) wherein it was held that the duration of an order granting bail cannot be limited by time. The bail shall be in effect till the conclusion of the trial unless it is cancelled by the court as under Section 437(5) or Section 439(2) of the Code on grounds known to law. It is not mandatory that to apply for anticipatory bail, FIR must have been filed.

In Section 438 of Cr.P.C,

  1. The first part of the section sets out the conditions under which a person can make an application for anticipatory bail.
  2. The second part confers jurisdiction on the High Court or the Court of Session.

Anticipatory bail cannot be claimed as a matter of right, it is essentially a statutory right conferred long after the coming into force of the Constitution. The Court would grant or refuse anticipatory bail after taking into considering the following factors, namely

  1. The nature and gravity of the accusation.
  2. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence.
  3. The possibility of the applicant to flee from justice; and
  4. Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.

Section 438(2) enshrines the conditions that courts can impose while granting anticipatory bail. These are the conditions: –

  1. The person must ensure his availability for interrogation as and when required.
  2. The person must not try to influence witnesses.
  3. The person shall not leave India without obtaining permission from the Court.
  4. Any other conditions that can be imposed on a person who has been let out by way of regular bail.

Section 438(1-A) mandates that a notice be given to the Public Prosecutor, not less than 7 days, to allow them to present their case before the final order of anticipatory bail is issued.

Who can apply for anticipatory bail? – A person apprehending arrest by Magistrate for remanding him to custody under S. 209 can apply for anticipatory bail under Section 438. The expression of anticipatory bail is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest.

This is an exceptional power and should be exercised only in exceptional cases and not in general cases. The consideration governing the exercise of discretion for granting anticipatory bail are materially different from those of an application for bail. Anticipatory is not to be granted as a matter of rule, should be granted only when a special case is made out and the Court is convinced that the person is of such a status that he would not misuse his liberty.

When the Court grants anticipatory bail, what it does is to make an order that in the event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless a person is arrested and, therefore, it is only on arrest that the order granting anticipatory bail becomes operative.

Critical analysis

A court needs to keep the following in mind before granting anticipatory bail

  1. The gravity of the accusations made and their nature.
  2. The previous history of the conduct of the accused person, if they have been convicted for some cognizable offence before etc.
  3. The possibility of the accused of fleeing.
  4. The role of the person in the commission of a said offence
  5. Chances of the said person influencing the investigation, tampering the evidence or intimidating the witnesses in any way.

It has been called an extraordinary power in various judicial pronouncements. This, however, does not mean that it must be permitted in extraordinary circumstances only. Any discretion granted to any authority needs to be carried out with care and circumspection dependent upon the facts and circumstances of the case and in the interest of justice. It must be granted cautiously and to safeguard the legitimate rights of the applicant. The power of the Court to grant anticipatory bail seems to be unguided. However, it needs to be exercised per limits enshrined in Section 438 of the Code that pertain to the power of granting bail.

A blanket order of anticipatory bail cannot be passed i.e. order of anticipatory bail cannot be of the effect that the applicant, whenever arrested, for any offence whatsoever shall be released upon such arrest. The applicant must disclose specific details and facts so that the court can judge the reasonableness of the apprehension of the arrest of the applicant. Mere fear cannot be a factor to grant anticipatory bail. The applicant, while making his case to obtain anticipatory bail, has to necessarily establish that he has reason to believe that he may be arrested.

This provision, however, is not devoid of controversy. It invites a lot of criticism for eating up precious judicial time with powerful persons accused of heinous crimes flooding courts with their anticipatory bail applications. Moreover, popular criticism calls it a facility only available to the rich and powerful, who can engage in hiring counsels. Even though there exists a fundamental right to gain legal counsel, it is available only after a person has been charged. In cases of applying for anticipatory bail, it is done before a person has been charged. The courts are largely silent on this. The Hon’ble High Court of Kerala ruled in Sreedharan T. and Ors. v. Sub Inspector of Police and Anr. (2009CriLJ1249) that anticipatory bail may be sought by seeking legal aid.

Conclusion

Anticipatory bail is one of the most hotly debated subjects in the Indian criminal system. While, on one hand, it is said to be the custodian of the fundamental right of life and liberty of an individual, it is also seen as a way to waste judicial time. In a country that already battles extreme pendency of cases, the stakes do seem high.

Arbitrary and motivated arrests are an unfortunate reality in India and are only rising. Therefore, it would not be wise to strike down the provision of anticipatory bail as doing so would be detrimental to the guaranteed right of liberty. What is essential is that a balance always is maintained between the personal liberty of an individual and the need to maintain law and order in society. The courts should exercise their discretion wisely and in ways that are just and fair, keeping in mind the principles of natural justice.

Author: Mannat Marwah from Symbiosis Law School, NOIDA.

Editor: Harinie.S from Symbiosis Law School Hyderabad.

Analysis: Quarantine v. Personal liberty

Reading time: 6-8 minutes.

“Life without liberty is like a body without spirit.” – Kahlil Gibran

The right to life and personal liberty is most fundamental of all our rights and gives meaning to our very existence.  Everyone comes into the world with a right to his person which includes the liberty of moving and using it at his own will. This Fundamental Right is guaranteed under Article 21 of the Constitution, which states “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

According to A.V.Dicey, “Personal liberty, as understood in English law, means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification”

 Bhagwati, J., said Article 21 “embodies a constitutional value of supreme importance in a democratic society.”

Being the most progressive provision of our Constitution, this right has been held to be the heart of the Constitution.  It is the only Article that has received the widest possible interpretation to include various rights like Right to Dignity of Life, Right to Travel, Right to Privacy, etc. The Constitution has made the judicial process as the protector of personal liberties. 

Maneka Gandhi v. Union of India: The right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Personal liberty makes for the worth of the human being and travel makes liberty worthwhile. 

A.K.Gopalan v. State of Madras:  The ‘personal liberty’ in Art.21 primarily means the freedom from any kind of physical restraint or coercion, including arrest and detention, which essentially consists in the freedom of movement and locomotion. It also includes a bundle of several other positive rights, such as the right to eat, drink, sleep, work, etc., which would go to make up a man’s liberty.

Kharak Singh v. the State of U.P.: The term “life” means more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.

D.B.M. Patnaik v. A.P.: Even a convict is entitled to the precious right guaranteed by Article 21, he shall not be deprived of his life or personal liberty except according to the procedure established by law.

COVID-19 quarantine

In December 2019, a novel Coronavirus known as SARS-CoV-2 was first detected in Wuhan, People’s Republic of China. It caused an outbreak of the Coronavirus disease (COVID-19) which has now spread globally.

The World Health Organization determined that the outbreak of COVID-19 constitutes a Public Health Emergency of International Concern in January and on March 11, 2020, it announced the COVID-19 as a Pandemic.

To prevent the introduction of the disease to new areas and to reduce human-to-human transmission, many countries have taken multiple public health measures such as Quarantine and total Lockdown.  By the United Nations Charter and International law principles, Member states have the sovereign right to implement their health policies, even if this involves the restriction of movement of individuals. Article 3 of the International Health Regulations, 2005 specifies rules for implementation of quarantine, ensuring it to be respectful of the dignity, human rights and fundamental freedoms of persons.

Quarantine involves the restriction of movement, or separation from the rest of the population, of healthy persons who may have been exposed to the virus, with the objective of monitoring their symptoms and ensuring early detection of cases. Persons who are quarantined need to be provided with health care; financial, social and psychosocial support; and basic needs, including food, water, and other essentials.

The global containment strategy includes the rapid identification of laboratory-confirmed cases and their isolation and management either in a medical facility or at home. WHO recommends that contacts of a COVID-19 positive patient be quarantined for 14 days. 

Constitutional validity of Quarantine

All citizens of India have a Fundamental Right  “to assemble peaceably” and “to move freely throughout the territory of India”, guaranteed under Article 19(1) (b) and 19(1) (d), respectively.

Quarantine being a limitation on free movement and assembly prima facie violates this fundamental right. However, Article 19 (3) says “Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order”. Similarly, Article 19(5) gives the state power to make such laws in the interest of the general public.

Moreover, Public Health and sanitation, hospital and dispensaries are items under List II of the Constitution and hence, States are empowered to make laws on these subjects.

Epidemic Diseases Act, 1897:  This is the main legal weapon the government possesses today. The objective of this Act is to provide for better prevention of the spread of dangerous epidemic diseases. Any state government, when satisfied that any part of its territory is threatened with an outbreak, may authorize all measures, including quarantine, to prevent it.

Section 2 empowers a state to inspect people and segregate suspected patients. Measures and regulations for the inspection, vaccination, and inoculation of persons, including their segregation in a hospital, temporary accommodation, or otherwise can also be taken.

The government of India declared the Coronavirus disease as a ‘notified disaster’ under the National Disaster Management Act, 2005. This Act’s purpose is to coordinate the response to natural or man-made disasters and capacity-building in disaster resiliency and crisis response. 

Sanctions against violation of Quarantine

While dealing with an emergency caused by the outbreak of a dangerous disease, the state may seek the cooperation of the public. If the desired cooperation is not forthcoming, a regulation may be imposed. For example, Section 144 (Cr.P.C.) empowers the administration to impose restrictions on the personal liberties of individuals to prevent injury or danger to human life, health, and safety or disturbance of public tranquility.

Failure to obey or comply with such restrictions constitutes a punishable violation under the following sections of the Indian Penal Code, 1860.

Section 188: Whoever disobeys a direction promulgated by a public servant, if such disobedience causes or tends to cause danger to human life, health or safety, shall be punished with imprisonment for a term up to six months, or with fine or both.  Any person who disobeys any order or regulation under the 1897 EPD Act may be charged under this section.

Section 269: Whoever unlawfully or negligently does any act likely to spread the infection of any disease dangerous to life, shall be punished with a term up to six months, or fine, or both.

Section 270: Whoever malignantly does any act which is, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment for a term up to two years, or fine, or both.

Conclusion

“Desperate times breed desperate measures.” Quarantine, across the globe, is proving to be the best bet in the containment of Coronavirus disease. It might be interfering with our liberty but such a reasonable restriction is even permissible under our Constitution. In the interest of general public and order, it is also our duty as a citizen to cooperate with the government and help stop this outbreak.

Author: Sweksha from Law Centre-II, Faculty of Law, University of Delhi.

Editor: Tamanna Gupta from RGNUL, Patiala.

Law Regarding Consensual Intercourse with Minors in India

Reading time: 6-8 minutes.

Law is a mere reflection of the interest of its society. In a modern society, any change with time is certain. With ever evolving contemporary ideas and perceptions from different groups of people, it is common for the law making bodies to face hardship to take quick decision when it comes to conflict of interests.

Such is the condition of every country, struggling to answer the irresolvable question, ‘At which age is it right for a minor to consent to indulge oneself in a sexual intercourse and is it ethical to allow a minor to have a consensual intercourse?’.

The Court is under immense pressure while dealing with the current issue, because every decision made regarding the same reflects the tradition, culture and history of the country.

The word “consent”, is the manifestation one’s actual will to do any act. “Will”, on the other hand is the mere desire to do an act. Therefore, any person who engages in a sexual intercourse with another person with will and no consent becomes liable and held guilty for committing sexual offence.

Until 2017, the IPC did not recognize marital rape, when the SC brought down the exception to Sec. 375, vesting men the right to consummate marriages with their wives under the age of 15-18, in its judgment of the case Independent Thought v. Union of India.

This law curbs the right of consent to all women who are legally married i.e. wife, who is below the age of 18 is restricted from a sexual relation and after attaining majority she has no power to reject due to presumption of matrimonial consent.

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What is the concept of ‘statutory rape’ among minors?

Any form of sexual relationship between two minors, irrespective of their consent is known as statutory rape, which is unlawful because either parties of such act is below the legal age to get involved sexually, further making them incapable of giving their consent to the said act. Hence, the consent is irrelevant.

Statutory rape falls under Section 375 and 376 of Indian Penal Code. The Convention of Elimination of Discrimination against Women (CEDAW) supports the view of withdrawing the legal effect on child marriage. Due to this, after 1980, India treats child marriage as voidable.

The other 3 major reforms in the sexual intercourse laws of India:

1. Protection of Children from Sexual Offences Act, 2012

  • CHAPTER II of the Act:

In order to protect the children from any form of sexual assault, sexual harassment to which they are incapable of giving their consent, such as

  1. Penetrative Sexual Assault
  2. Aggravated Penetrative Sexual Assault
  3. Sexual Assault
  4. Aggravated Sexual Assault
  5. Sexual Harassment
  6. Chapter III of the Act

Under this chapter using child for pornographic purposes and about the respective punishments are defined.

  • Section 2(d) of the POCSO Act defines a ‘child’ as to any person below the age of 18. This act provides justice without any gender discrimination as every person under the age of 18 who are incompetent to give their consent. Hence, any person, involved with any sexual act covered under this act and the victim involved is under the age of 18, the offence is punishable as it is considered to be violation of this Act.
  • Section 34(1) states on offence committed by the offender, who is a child himself, shall be tried under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000.
  • Sec. 19 of the Act encourages and make it obligatory to report such crime to the Special Juvenile Police Unit or the local police enshrined in POCSO, failure of which is punishable with imprisonment of either description which may extend to six months or with fine or with both.

2. Criminal Law (Amendment) Act, 2013: Sexual Offences

a) Protection of Children from Sexual Offences Act, 2012.

  • The age of a “child”, was reduced from 18 years to 16 years under Section 2(d).
  • Punishment for rape under the act was increased from 7 years imprisonment to 10 years imprisonment and fine.
  • Section 42: An act or omission constitutes an offence punishable under this Act and also under sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376C, 376D, 376E, 509, 376AB, 376DA, and 376DB  of IPC, where the offender shall be liable to punishment under this Act or under the Indian Penal Code.

b) Code of Criminal Procedure (CrPC), 1973

  • Section 161: An alleged woman against whom, any such offence has been committed shall be recorded, by a woman police officer or any woman officer under.
  • Section 273: states that while recording the evidence of a victim woman below the age of 18, the court will ensure that such woman is not confronted by the accused.

2. Criminal Law (Amendment) Ordinance, 2018

A law initiated primarily to amend certain laws related to rape of minors.

  1. Indian Penal Code (IPC), 1860
  2. Enhanced the punishment for rape under IPC, where the minimum imprisonment has been increased from seven years to ten years rigorous imprisonment.
  3. Then
Age GroupOffencePunishment
Below 12 yearsRapeRigorous imprisonment from 20 years extendable to life imprisonment, and fine
Gang RapeLife imprisonment and fine.
Below 16 yearsRapeMinimum rigorous imprisonment of 20 years that can be extendable to life imprisonment and fine.
Gang RapeLife imprisonment, along with fine.

b) Code of Criminal Procedure (CrPC), 1973

  • The maximum time limit to complete investigation was decreased from three to two months.
  • An appeal in any rape case has to necessarily be disposed off within six months.
  • No anticipatory bail to be granted to the alleged accused of sexual assault against minor girls below the age of 12 and 16.

c) Indian Evidence Act, 1872

To determine the consent of the victim, his past sexual experiences are disregarded. This provision was extended to include girls below 12 and 16 years of age as victims.

LAWS GOVERINIG OTHER COUNTRIES AROUNG THE GLOBE:

COUNTRYLAWAGE OF CONSENT
JAPANThe Penal Code of Japan.Juvenile Obscene Act.The Civil Codes.13 years     15-18   20 years
GERMANYPenal CodeCriminal Code14 years14 – 16 years
MEXICO 16 – 18 years
FRANCEPenal Code15 years
RUSSIACriminal Code16 years

What is the reasoning for criminalizing consensual intercourse?

The British Jurist of the 18th century, Sir Matthew Hale defined rape as, “An accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent.”

After sheer struggle, some feminists have favored these laws, as it is the yardstick to combat the sexual abuse of young girls. A statutory rape charged, would not require proof of force or coercion, therefore young and vulnerable girls are, guarded against such crimes committed by the adults and actual rapists via deterrence and real possibility of retribution.

It is legally required to have a right and a set age for the same, without any moral obligation. Specifically, in a country where the age of consent for a married woman is lower than an unmarried woman and where marriage is taken as a license to rape, this must be reformed.

The law relating to Statutory rape must be stringent as this section of society seeks to protect minors who are mentally- incapacitated as well. As stated earlier, minors are incapable to understand the dire consequences of their actions and desires, it is the duty of law to protect the innocence of the youth.

In conclusion

Maybe, the laws of consent must be flexible and realistic just to ensure and minimize the victim rate. Similarly one must be, appreciated for attaining sexual maturity quicker, enabling them to make choices about their own bodies. 

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To give up one’s “virtue” to a person who is unworthy and most importantly unwilling to pay with his hand in marriage is gimmick and speaks about the poor judgment of the youths of today.

The forbidden fruit is always more lucrative and severe restrictions fuels curiosity. By criminalizing consensual sexual activity, we deny them access to protective and safe medical procedures. This becomes one of the reasons for the increase in abortions.

A law fixing the age of consent must be, understood in a manner that protects our children against abuse as well as prosecution. These laws should serve an educative purpose and provide reformative punishments.


Author: R. Danyuktaa Shruti from VIT University, Chennai.

Editor: Tamanna Gupta from RGNUL, Patiala


Circumstantial evidence

Reading time: 6-8 minutes.

In a recent judgement in the case of Md. Younus Ali Tarafdar v/s The State of West Bengal, the accused was acquitted by the Apex Court after a long trial in different courts which lasted 36 years. The appellant had been held liable on the basis of a signature, which was for the slip for repair of an Anglo-Swiss watch, apparently belonging to the deceased’s brother and last worn by the deceased.

The testimony by 3 people only pointed that the last person the deceased met was the appellant and on basis of those testimonies and the fact that he was in possession of that watch, the appellant was sentenced of rigorous life imprisonment under Section 302 with Section 34 and under Section 102 of Indian Penal Code. Later the appeal was dismissed by High Court and the decision of trial court was affirmed.

However, acquitting the accused, the Supreme Court noted in its judgement: “There is no direct evidence regarding the involvement of the appellant in the crime. The case of the prosecution is on the basis of the circumstantial evidence… A close scrutiny of the material on record would disclose that the circumstances relied upon by the prosecution to prove the guilt of the appellant were not complete and do not lead to the conclusion that in all human probability the murder must have been committed by the appellant”. It was held that if there is any conviction on basis of circumstantial evidence, it should be so when there is no room left for the doubt and the hypothesis is proven right beyond any reasonable doubt.

Meaning of circumstantial evidence

What is evidence? Evidence is the documents and materials presented by prosecution and defence for the court to reach a decision or verdict. That evidence can be oral, documental, Real, Primary, Secondary, Hearsay, Direct and Circumstantial evidence. The evidence gives base to the argument of someone’s fate; as they decide a person’s guilt or innocence.

Circumstantial evidence is defined by Peter Murphy as “evidence from which the desired conclusion may be drawn but which requires the tribunal of fact not only to accept the evidence presented but also draw an inference from it.”  Circumstantial evidence is referred to as indirect evidence. Direct evidence is given more preference than circumstantial evidence as it does not require any type of inference and it is a direct proof of an illegal act committed. But in the cases of serious offence such as murder for which the punishment is death penalty, conclusion cannot be drawn solely on the basis of circumstantial evidence as it needs the help of inference to prove it.

Legal provisions involved

Section 106 of Indian Evidence Act 1872 states that – “Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him”

For instance, if the wallet of the deceased person was found in house of accused after his murder, the burden of proof is on accused to show how he came to be in possession of the deceased person’s wallet and that he has not committed murder. This is an example of “Last seen doctrine” where it can be implied that it is the accused who has committed a crime, just because he was last seen with the victim. Even then, conviction cannot be based on this said assertion solely, but in such cases the burden of proof is on the accused person.

Conduct of the accused also plays an important role in corroborating circumstantial evidence. If the accused has behaved in an abnormal and unnatural way such as absconding, inability to prove his alibi or contamination of crime scene etc., which can establish the mala fide intention of the accused or can destroy his innocence; this can be a relevant factor in building the chains of events which can lead to him being liable for the said crime.

Can circumstantial evidence be considered conclusive?

Judiciary has not concluded whether the circumstantial evidence can be considered as the evidence solely for the conviction or innocence of a person; however in such cases the judges and prosecution are expected to take higher precautions because it varies from case to case how much emphasis should be given to such evidences. It is also essential that the circumstantial evidence should be in corroboration with other indirect evidences including DNA test, finger print, and witness, and handwriting, discovery of an object in possession of accused which can connect the accused to the crime and set his guilt beyond any reasonable doubt or can prove his innocence without any question.

In cases where the prosecution has solely based the case on circumstantial evidence, then the courts have to satisfy that various circumstances building a chain of events rule out any possibility of the innocence of accused. If in case the chain of events has any loophole or a break in between, then in such cases the consequent circumstances cannot be considered to establish the guilt of the accused.

There are various cases where circumstantial evidence plays an important role like adultery and dowry cases. But as circumstantial evidence is indirect evidence, it cannot be taken into consideration without proper examination. There are certain cases where circumstantial is not considered to be strong evidence. For instance, if Mr. A saw Mr. X lying dead on the floor and Mr. Y was holding a wooden stick which was covered with blood, the question which arises in one’s mind is regarding intention to kill. The main reason behind the death of Mr. X cannot be determined without proper examination. 

Case laws

In Shah Guman Mal v. A.P. [AIR 1980 SC 793], a person was found in possession of gold with foreign markings and the Supreme Court held that burden lay upon him to account for his possession.

In State of Tamil Nadu v. Arunachalam [1992 Cr Lj 3930 (Mad)], the sample of flour was taken from a grocery store which was not good in quality and the person who was accused took the plea that it was kept not for human consumption but for pasting purpose. It was held that it was a special knowledge of the accused and it was for him to prove such knowledge and having not done so, it could not be said that the burden cast on him had been successfully discharged.

In Provincial Government, Central Provinces and Berar v. Champalal [(1946) Nag 504] and in Gullegar Setty v. State of Mysore [(1953) Mys 298], it was held that non-appearance as a witness would be the strongest possible circumstance to discredit the truth of the case.

In Sucha Singh v. State of Punjab [AIR 2001 Sc 1436], the court said that depending upon the circumstantial facts of the case, it could be presumed that all the abductors were responsible for the murder. If not, it was held that it was for the abductors to explain what they had done to the victim.

Conclusion

From the following facts and circumstances, we can figure out that circumstantial evidence plays a vital role during the investigation process as well as during the examination of the facts. It also helps to find out the motive behind the act or crime. But it does not mean that circumstantial evidence provides relevant fact of the case all the time. Therefore, we can conclude by stating that circumstantial evidence gives us a general idea and fact of the case and if it is properly analysed and examined, then it can lead to a definite conclusion.

Authors: Uttara Roy from NEF Law college and Antish Rathore from Alliance University of law, Bangalore.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.