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Regulation of VC funding in India: A critical analysis

This blog post has been authored by Ms. Prerna Kashyap

INTRODUCTION

The venture capital industry evolved in the late 1980s in India. Back in 1973, a committee on Development of Small and Medium Enterprises highlighted the need to foster venture capital as a source of funding new entrepreneurs and technology. The Government of India took a policy initiative and announced guidelines for venture capital funds (VCFs) in 1988 on the basis of a study undertaken by the World Bank. Slowly and gradually various rules and regulations were made to deal with the venture capital funding in India.[1]

VENTURE CAPITAL  

Venture capital (VC) funds start-ups and early-stage emerging companies having significant potential for growth[2] but involves high risk.

Section 2(z) and 2(za) of the Securities and Exchange Board of India (Alternative Investment Funds) Regulations, 2012 (“AIF Regulations”) defines “venture capital fund” as an “Alternative Investment Fund which invests primarily in unlisted securities of start-ups, emerging or early-stage venture capital undertakings mainly involved in new products, new services, technology or intellectual property right based activities or a new business model and shall include an angel fund as defined under Chapter III-A” and “venture capital undertaking” as “a domestic company which is not listed on a recognised stock exchange at the time of making investments” respectively.

REGULATORY FRAMEWORK

Securities and Exchange Board of India (SEBI) is the nodal regulator for VCFs to provide a uniform, hassle free, single window regulatory framework. Various regulations such as the SEBI (Venture Capital Funds) Regulations, 1996 (“VCF Regulations”) and the SEBI (Foreign Venture Capital Investor) Regulations, 2000 have been issued on the recommendation of the Chandrasekhar committee fostering growth in the industry. As per the SEBI report relating to activities of VCFs until June this year, a total of Rs. 22,563.88 crores VCF has been raised.[3]

THE SECURITIES AND EXCHANGE BOARD OF INDIA (VENTURE CAPITAL FUNDS) REGULATIONS, 1996 AND SECURITIES AND EXCHANGE BOARD OF INDIA (ALTERNATIVE INVESTMENT FUNDS) REGULATIONS, 2012

AIF Regulations has been brought in order to replace the VCF Regulations and has been notified vide PR no. 62/2012[4] dated May 12, 2012. As per the AIF regulations, the funds registered as VCF under VCF Regulations shall continue to be regulated by the same till the existing fund or scheme managed by the fund is wound up and such funds shall not launch any new scheme after notification of these regulations. VCF may seek re-registration, subject to approval of their investors.[5]

Registration of Venture Capital Fund

VCFs are included in “Category I Alternative Investment Fund”[6]. No entity or person shall act as a VCF unless it has obtained a certificate of registration from the SEBI. Form ‘A’ lays down the instructions for the application for the grant of the certificate. Eligibility criteria are prescribed for the purpose of the grant of certificate to an applicant. Vide Explanation[7] of sub- clause (a) of sub- regulation (4) of regulation 3 of the Securities and Exchange Board of India (Alternative Investment Funds) Regulations, 2012, states that a VCF can be organized in the form of a trust or a company.

Investment Conditions and Restrictions

The AIF Regulations specify that VCFs shall state investment strategy and any material alteration to the fund strategy shall be made with the consent of unit holders; they shall raise funds through private placement by issue of placement memorandum and may launch schemes subject to filing of placement memorandum. The minimum tenure is prescribed as 3 years. Units of close- ended VCFs may be listed on the stock exchange.[8]

VCFs may invest in securities of companies incorporated outside India subject to conditions issued by the Reserve Bank of India and the SEBI. They shall invest not more than 25% of investable funds in an investee company whereas a large value fund for an accredited investor may invest up to 50% of investable funds in an investee company. They shall not offer their units to other VCFs if they are investing in units of other VCFs.

If a VCF is investing in associates/ units of VCFs managed by manager/ sponsor/by associates, approval of 75% of investors by value for investment is required. The terms of co-investment by a manager/ sponsor/ co-investor, shall not be more favourable than the terms of investment of the VCF. Un-invested portion of investable funds and divestment proceeds pending for distribution to investors shall be invested as prescribed in regulations.

Investment by VCFs in the shares of entities listed on institutional trading platforms shall be deemed to be investment in ‘unlisted securities’ for the purpose of these regulations. They shall invest in investee companies, venture capital undertaking (VCUs), special purpose vehicles, limited liability partnerships (LLPs) in units of other Category I AIFs of the same sub category or in units of Category II AIFs as specified in this regulation. They shall not borrow funds & shall not engage in leverage except for meeting temporary requirements. They shall invest at least 75% of the investable funds in unlisted equity shares or equity linked instruments of VCU or in companies listed or proposed to be listed on SME exchange and this shall be achieved by the VCFs by the end of its life cycle. For the purpose of market making, the VCF is required to enter an agreement with a merchant banker.[9]

Angel fund is a sub-category of VCF that raises funds from angel investors and invests in accordance with the prescribed provisions[10].

VCFs are exempted from certain provisions of Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 2015 in respect of companies listed or proposed to be listed on SME exchange.[11]

SECURITIES AND EXCHANGE BOARD OF INDIA (FOREIGN VENTURE CAPITAL INVESTORS) REGULATIONS, 2000
Registration of Foreign Venture Capital Investors

The applicant shall make an application to the Board in Form A along with the application fee.[12] The applicant should be granted the necessary permission by the RBI to make investments in India. Eligibility criteria are prescribed for the purpose of the grant of certificate to an applicant.[13]

Investment Conditions and Restrictions for a Foreign Venture Capital Investor

Investor shall disclose his investment strategy and it can invest all his funds in one VCF.

A Foreign Venture Capital Investor (FVCI) shall make investment in at least 66.67% of the investible funds in unlisted equity shares or equity linked instruments of VCUs or make an investment in not more than 33.33% of the investible funds by way of:

  • subscription to initial public offer of a VCU proposed to be listed;
  • debt instrument of a VCU in which the FVCI already has equity investment;
  • preferential allotment of equity shares of a listed company subject to 1 year lock-in period.[14]
Obligations of a Foreign Venture Capital Investor

FVCI shall maintain books of account and records for a period of 8 years. It shall appoint a custodian for custody of the securities who shall monitor the investment. It shall furnish periodic reports to the SEBI and information as required/ called for by the SEBI.  It shall appoint a branch of a bank approved as designated bank by the RBI for opening of the foreign currency denominated account.[15]

SEBI MASTER CIRCULAR AND CIRCULARS

The SEBI master circular and circulars ensure an effective regulatory framework for VCFs and the SEBI. The SEBI specified guidelines stating that AIFs may invest in securities of companies incorporated outside India subject to the condition that they may invest in equity and equity linked instruments only of off-shore VCUs, subject to overall limit of USD 1500 million and mandating benchmarking of the performance of the VCFs which will help investors in assessing the performance of the VCF industry.[16]

In regard to the validity period of approval granted by the SEBI to VCFs for overseas investment, on recommendation of the Alternative Investments Policy Advisory Committee, it has been decided to reduce the time limit from 6 months to 4 months.[17]

VCFs are required to file an application to SEBI for allocation of overseas investment limit. In relation to an overseas investee company a VCF shall:[18]

  • Invest in such a company, which is incorporated in a country whose securities market regulator is a signatory to the International Organization of Securities Commission’s Multilateral Memorandum of Understanding (MoU) or a signatory to the bilateral MoU with the SEBI.
  • Not invest in a company, which is incorporated in a country identified in the public statement of the Financial Action Task Force.

VCFs shall furnish the sale/divestment details of the overseas investments to the SEBI in the format prescribed and an undertaking for the proposed investment shall be submitted to the SEBI by the trustee/board/designated partners of the VCFs.[19]

SECURITIES AND EXCHANGE BOARD OF INDIA (ISSUE OF CAPITAL AND DISCLOSURE REQUIREMENTS) REGULATIONS 2018

The regulations provide that FVCIs may contribute to meet the shortfall in promoters’ minimum contribution, subject to a maximum of 10% of the post-issue capital without being identified as promoter(s)[20] and contributions made by FVCIs in specified securities shall be locked-in for a period of 18 months from the date of allotment of the further public offer.[21]

SECURITIES AND EXCHANGE BOARD OF INDIA (SUBSTANTIAL ACQUISITION OF SHARES AND TAKEOVERS) REGULATIONS, 2011
Exemption in case of substantial acquisition of shares or voting rights

A VCF or a FVCI registered with the SEBI, by promoters of the target company pursuant to an agreement between such VCF or FVCI and such promoters, who has acquired and holds shares or voting rights(VRs) and exercises 25% or more of the VRs in the target company but less than the maximum permissible non-public shareholding[22], shall be exempt from the obligation to make an open offer[23] to acquire within any financial year additional shares or VRs in the company and exercise more than 5% of the VRs.

A VCF established in the form of a trust/ company/ body corporate and registered under the VCF Regulations is not considered as an investment vehicle for the purpose of the Foreign Exchange Management (Non-debt Instruments) Rules, 2019.[24]

INCOME-TAX ACT, 1961
Applicability of Angel Tax

Recently, the Central Board of Direct Taxes has issued an amended Rule 11UA (2) of the Income Tax Rules and it provides that for Section 56(2)(viib) of the IT Act, where a taxpayer is a VCU who has received consideration from the issue of unquoted equity shares to a VCF, the price of such equity shares corresponding to such consideration be taken as the fair market value (FMV) of the equity shares for resident and non-resident investors provided that:

  • the consideration from such FMV does not exceed the aggregate consideration received from a VCF; and
  • the consideration received by the undertaking from a VCF, within 90 days before or after the date of share issuance.[25]
WINDING UP OF A VENTURE CAPITAL FUND

Intimation of the winding up of the VCF should be given to the SEBI. VCF can be wound up in the following circumstances:[26]

If the VCF is set up as a trust, it shall be wound up:

  • When the tenure of the VCF or the scheme launched by the VCF, as mentioned in the placement memorandum is over; or
  • If in the opinion of the trustees and in the interest of the investors the VCF should be wound up; or
  • If 75% of the investors in the VCF pass a resolution at a meeting that the VCF should be wound up.

If the VCF is set up as a LLP, it shall be wound up as per the Limited Liability Partnership Act, 2008. If the VCF is set up as a company, it shall be wound up in accordance with the provisions of the Companies Act, 1956. If the VCF is set up as a body corporate, it shall be wound up as per the statute under which it is constituted.

CONCLUSION

India has come a long way in the journey of venture capital. With the increase in the number of start-ups, more and more investment opportunities are coming up in the sectors such as biopharmaceuticals, software, financial institutions and investors and so on. This shows the significance of flexible and up-to-date regulations incorporating latest developments. The Securities and Exchange Board of India issues various circulars and directions supplementing the current regulations and this helps in regulating and facilitating the influx of venture capital investments made by residents and non- residents in India.

[1] Report of Advisory Committee on Venture Capital.PDF (sebi.gov.in)

[2] Rebecca Baldridge, Understanding Venture Capital, dated 8 June, 2023 https://www.forbes.com/advisor/investing/venture-capital/; accessed on 17 October, 2023.

[3] SEBI | Data relating to activities of Alternative Investment Funds (AIFs), accessed on 14 October, 2023.

[4] SEBI | SEBI notifies SEBI (Alternative Investment Funds) Regulations 2012, accessed on 14 October, 2023.

[5] Sub- regulation (2) of regulation 3 of the SEBI (Alternative Investment Funds) Regulations, 2012.

[6] Clause (a) of sub- regulation (4) of regulation 3 of the SEBI (Alternative Investment Funds) Regulations, 2012.

[7] Explanation.─” For the purpose of this clause, Alternative Investment Funds which are generally perceived to have positive spillover effects on economy and for which the Board or Government of India or other regulators in India might consider providing incentives or concessions shall be included and such funds which are formed as trusts or companies shall be construed as “venture capital company” or “venture capital fund” as specified under sub-section (23FB) of Section 10 of the Income Tax Act, 1961.”

[8] Chapter II, Registration of Alternative Investment Funds of the Securities and Exchange Board of India (Alternative Investment Funds) Regulations, 2012.

 

[9] Ibid.

[10] Sub- regulation (1) of Regulation 19A of the SEBI (Alternative Investment Funds) Regulations, 2012.

[11] Sub- clause (c) of sub- regulation (3) of regulation 16 of the SEBI (Alternative Investment Funds) Regulations, 2012.

[12] Regulation 3 of the SEBI (Foreign Venture Capital Investors) Regulations, 2000.

[13] Regulation 4 of the SEBI (Foreign Venture Capital Investors) Regulations, 2000.

[14] Regulation 11 of the SEBI (Foreign Venture Capital Investors) Regulations, 2000.

[15] Chapter IV of the General Obligations and Responsibilities of the SEBI (Foreign Venture Capital Investors) Regulations, 2000.

[16] SEBI Master Circular No. SEBI/HO/AFD/PoD1/P/CIR/2023/130 dated July 31, 2023, available at: https://www.sebi.gov.in/legal/master-circulars/jul-2023/master-circular-for-alternative-investment-funds-aifs-_74796.html, accessed on 13 October, 2023.

[17] SEBI Circular No. SEBI/HO/AFD/PoD/CIR/P/2023/137 dated August 04, 2023, available at: https://www.sebi.gov.in/legal/circulars/aug-2023/validity-period-of-approval-granted-by-sebi-to-alternative-investment-funds-aifs-and-venture-capital-funds-vcfs-for-overseas-investment_74979.html, accessed on 17 October, 2023.

[18] SEBI Circular No. SEBI/HO/AFD-1/PoD/CIR/P/2022/108 dated August 17, 2023, available at: SEBI | Guidelines for overseas investment by Alternative Investment Funds (AIFs) / Venture Capital Funds (VCFs), accessed on 14 October, 2023.

[19] Ibid.

[20] Sub-regulation (1) of regulation 14 of the SEBI (Issue of Capital and Disclosure Requirements) Regulations 2018.

[21] Clause (a) of regulation 115 of the SEBI (Issue of Capital and Disclosure Requirements) Regulations 2018.

[22] Sub- regulation (2) of regulation 3 of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.

[23] Sub- clause (f) of sub- regulation (4) of regulation 10 of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011.

 

[24] Reserve Bank of India – Master Directions (rbi.org.in)

[25] Alerts: Direct Tax Alert – CBDT notifies amended Valuation Rules in respect of Angel tax, available on Direct Tax Alert – CBDT notifies amended Valuation Rules in respect of Angel tax – BDO, accessed on 18 October, 2023.

[26] Regulation 29 of the SEBI (Alternative Investment Funds) Regulations, 2012.

 

Categories
Blog Criminal Law

How to file a Criminal Complaint in India

By:-Muskan Sharma

What is a Criminal Complaint?

A Criminal Complaint is a complaint consisting of such facts and circumstances forming part of the commission of an offence. In India, the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) is the penal law stating all the offences, except as provided under any other law. The Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) is the procedural law that governs the criminal regime from the stage of lodging a criminal complaint to convicting/acquitting the accused person.

Importance of a Criminal Complaint

A Criminal Complaint sets the criminal law regime into motion.

In Emperor v. Khwaja Nazir Ahmed[1], it was observed that an FIR provides early information as to the alleged offence, to record the facts of the case before they are forgotten or glorified, and to provide the same to the Court as evidence for the investigation of the case.

Though FIR is not considered as evidence and has almost nil evidentiary value, it can be used to corroborate the statements of the accused, witnesses, victim, and other persons involved in the offence.

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Therefore, a Criminal complaint serves the following purposes:

  1. Early Disclosure of information as to the commission of an offence.
  2. Prevent the accused from becoming a habitual offender.
  3. Justice to be served to the victim.
  4. Commencement of the investigation as to the commission of the alleged offence.

Information that constitutes an FIR

A Criminal Complaint or an FIR should contain the following information:

  1. Whether the complainant is an eye witness to the incident, heard about the incident, or is a victim himself/herself.
  2. Nature of the offence.
  • Name and other details of the victim (if aware).
  1. Name and other details of the accused (if aware).
  2. Date and time of the occurrence.
  3. Place of the occurrence.
  • Description of the incident as a step-by-step process along with the surrounding circumstances.
  • Name and other details of all the witnesses to the occurrence.
  1. Whether any traces were left behind by the accused.
  2. Any other material circumstances.

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Information does not constitute an FIR

It must be noted that not all information can be termed as a ‘criminal complaint’ or ‘FIR’. Only the information that is disclosed to the officer-in-charge of the concerned Police Station and reveals the commission of a cognizable offence can constitute an FIR. Also, only the earliest version of the case can constitute an FIR.

In case of multiple FIRs registered in a single case, the earliest report to the police officer will reach the officer-in-charge as the FIR.

Telephonic Information

If the telephonic information received by the concerned police officer discloses neither the name of the accused nor the offence committed, it will not amount to an FIR or Criminal Complaint. The same has been stated by the Supreme Court in Ravishwar Manjhi & Ors. v. State of Jharkhand[2].

In Soma Bhai v. State of Gujarat[3], a complaint was reported to the sub-inspector and before reducing the information to writing, the sub-inspector looked for instructions from the main police station at Surat via telephone message. It was observed that information written down by the sub-inspector was an FIR but the message received by the sub-inspector was too vague and cryptic to be called an FIR.

In T.T. Anthony v. State of Kerala[4], it was observed by the Supreme Court that apart from cryptic information received via telegram or telephone, the information recorded first in the station house diary by the officer-in-charge is the FIR.

In Thaman Kumar v. State of Union Territory of Chandigarh[5], it was held that telephonic message conveyed by the Constable on Night Patrol Duty does not constitute an FIR.

In Vikram & Ors. v. State of Maharashtra[6], PW2 informed the police officer on telephone and missed out on some of the details. The Supreme Court observed that a cryptic and anonymous message conveyed to a police officer via telephone, which does not disclose the commission of a cognizable offence, cannot be considered as an FIR. It was further observed that merely because the information was first in point of time, it cannot be called an FIR.

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In Animireddy Venkata Ramana and Ors. v. Public Prosecutor, High Court of Andhra Pradesh[7], it was held that information received by an officer-in-charge via telephone about the commission of a crime is not an FIR but merely a call to make the Police come to the crime scene merely. It is not expected of an officer-in-charge of a police station to go to the crime scene only after the registration of an FIR.

In Sidhartha Vashist @ Manu Sharma v. State of NCT of Delhi[8], it was again observed that a cryptic message received via telephone should not be treated as an FIR as the intent of such a communication is only to get the police to the crime scene. The intention can be culled out from a reading of Section 154 of the CrPC which provides that if the information is provided orally, should be reduced to writing.

Ways to file a Criminal Complaint

To set the criminal law into motion, the first step is to report the commission of a crime. There are two ways to report the commission of a crime, which are as follows:

  1. One may go to the nearest Police Station and provide all the information related to the commission of a crime to the concerned police officer. If the information disclosed reveals the commission of a cognizable offence, the concerned police officer will lodge an FIR (First Information Report) under Section 154 of the CrPC.
  2. If the information disclosed reveals the commission of a non-cognizable offence, the concerned police officer will lodge an NCR (Non-Cognizable Report) under Section 155 of the CrPC. The concerned police officer then forwards the NCR to the Magistrate and has no power to investigate such a case without the order of the Magistrate.
  3. Apart from this, in petty incidents like Lost and Found, Missing person, and similar incidents, one can go to the state police portal and file an e-FIR. The service of e-FIR has made it easy for the citizens to report their petty cases and not go to the police station every now and then. Surprisingly, there are no provisions that expressly regulate the procedure to be followed after the filing of an e-FIR. Hence, there is a dire need for some more provisions in the criminal law regime of India that can govern the procedure of registering e-FIR and the procedure to be followed afterward.

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Essentials of an FIR

The expression ‘FIR (First Information Report)’ is not used anywhere in the CrPC. However, Section 154 of the CrPC provides the essential conditions to be satisfied during disclosure of the commission of the alleged offence to the officer-in-charge of the police station, which are as follows:

  1. The offence alleged to have been committed must be a cognizable offence.
  2. The officer-in-charge of the police station must receive such information.
  3. The complainant must reduce all the information to writing and sign it. If the complainant provides the information to the officer-in-charge orally, then the officer-in-charge or his subordinate police officer may reduce it to writing.
  4. The information reduced in writing be read over to the complainant and provided to him for signing it.
  5. The information recorded should be entered into the Daily Diary, General Diary, Station Diary, or such other diary or register as prescribed by the appropriate Government.

After the filing of FIR, the officer-in-charge has to conduct a preliminary inquiry. In Lalita Kumari v. Govt. of Uttar Pradesh[9], the Supreme Court held that the purpose of preliminary inquiry is to determine whether the allegations in the criminal complaint make out a cognizable offence. It was further observed by the Supreme Court that action should be taken against the concerned police officer if no FIR is registered even after the disclosure of a cognizable offence.

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Remedies for non-registration of FIR

There is a dire need to expand the scope of e-FIR as the service is available only for petty crimes and also because the police officials often deny registering a criminal complaint. However, the expansion of the scope of the service of e-FIR is not in our hands. Therefore, if there is a refusal to register our police complaint, we may adopt any of the following remedies:

  1. One may reach out to police officers of higher ranks and let them know about the complaint.
  2. One may write a letter or application to the Superintendent of Police stating all the material facts and circumstances of the complaint under Section 154(3) of the CrPC. The Superintendent of Police may either investigate the case himself or order an investigation.
  3. One may file a private complaint to the Magistrate under Section 200 of the CrPC. The Magistrate is then, supposed to decide on the issue of cognizance.
  4. If the police do not co-operate in the investigation and one is not sure of the court procedures to be followed, one may take the aid of various bodies like SHRCs/NHRC, NCW, NCPCR, NCSC, etc.

What is Zero FIR?

Zero FIR is an FIR that can be filed at any police station regardless of the jurisdiction. A Zero FIR is ultimately transferred to another police station having jurisdiction to conclude the investigation. The purpose behind lodging a Zero FIR is to obtain evidence in cases involving sexual assault, murder, road rage, and so on. In such cases, it is pertinent to obtain evidence and conduct an investigation as the evidence is capable of being manipulated or corrupted.

Also, it doesn’t let the police officials avoid their duty to investigate an offence. Therefore, the officer-in-charge cannot refuse to register an FIR in such a case merely on the ground of lack of jurisdiction.

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Evidentiary Value of a Criminal Complaint

A complaint made to the police has no evidentiary value for the following reasons:

  1. It is not made during the trial.
  2. It is not given on oath.
  3. It is not tested by cross-examination.
  4. It is not a substantial piece of evidence and the only purpose of an FIR is to set the criminal law regime in motion.
  5. A statement made before a police officer is not admissible as evidence as stated in Sections 25 and 26 of the Indian Evidence Act, 1872.

Also, an unreasonable or undue delay in filing an FIR also gives rise to suspicion on the complainant.

However, FIR can be used to corroborate the statements made by the accused, victim, and witnesses during the trial and other types of evidence.

[1] (1945) 47 BOMLR 245

[2] AIR 2009 SC 1262

[3] AIR 1975 SC 1453

[4] AIR 2001 SC 2637

[5] AIR 2003 SC 3975

[6] AIR 2007 SC 1893

[7] AIR 2008 SC 1603

[8] AIR 2010 SC 2352

[9] (2014) 2 SCC 1

Categories
Blog Criminal Law

Insanity as a defense under Indian Penal Code

By: Soumya Verma

Chapter IV of Indian Penal Code

Insanity is one of the defenses available in the Indian Penal Code mentioned under General Exceptions Chapter IV. General exceptions are those exceptions which are mentioned separately under the Code which a person can take to defend his case. These exceptions acts as a shield to protect the defendant under certain circumstances given from S.76-S.106. An offence when fall under these circumstances becomes no offence. The word offence means anything punishable by Indian Penal Code or under any special or local law. A separate chapter has been dedicated to sum up all the exceptions that makes the defendant non guilty in a case, so that repetition is avoided in every section. All the sections of Indian Penal Code have to be read along with these general exceptions mentioned under Chapter IV.

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Therefore these exceptions form a part of every offence, but the burden of proof is on the defendant who claims that his case falls under any of these exceptions in the court of law. We can categorically divide the exceptions under seven heads:

  1. Judicial Acts (S.77, S.78)
  2. Mistake of fact (S.76, S.79)
  3. Accident (S.80)
  4. Absence of Criminal Intent (S.81-86, S.92-94)
  5. Consent (S.87, S.90)
  6. Trifling Acts (S.95)
  7. Private Defense (S.96-106)

Till the time accused does not comes up with any of these defenses that run from S.76-S.106, the court shall presume non existence of such circumstances. When the evidence produced by any of the parties, whether prosecution or defense suggests that facts of the case falls under any of these exceptions, then the presumption of not considering the case falling under any of the general exceptions will be removed and the Court shall consider and decide on the facts and circumstances of the case and evidences products that the general exceptions will apply or not. Investigating officer of a case has to investigate a case keeping in mind all the general exceptions and decide whether an offence has actually been committed or it amounts to a no offence. The burden of proving a case has to be beyond reasonable doubt.

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Introduction to Insanity as a Defense

An act or omission in order to be a crime must satisfy two conditions of being a guilty act done with a guilty mind. This is what we mean by the term “Actus Non Facit Reum Nisi Mens Sit Rea” which is, an act does not make a person liable till the time it is done with a guilty mind. Both gulity act and intention to do that guilty act has to be there. Insanity comes within the general exceptions because it is a mental state which makes a person unfit to be in his cognitive faculties or to understand the probable consequences and nature of the act which he/she is doing. To be benefitted by this exception on has to insure that insanity should be of such an extent that it makes the accused completely incapable of knowing the nature of the act. If a person acts insane sometimes and the other time he understands the nature of what he is doing, then in  that case the Court will decide on the facts and circumstances of the case whether he was capable of knowing the consequences and nature of the acts when he committed it or not. Or in words we can say whether he was insane or not at the time of commission of the offence.

(S.84) ” Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable, of knowing the nature of the act, or that he is doing what is wrongor contrary to law.”

McNaughten Rule

Defense of insanity was developed in England in a case of R v. Daniel Mc Naughten decided y the House of Lords. In this case Mc Naughten killed the secretary of the Prime Minister of England believing him to be the Prime Minister as he consider the Prime Minister responsible or all his problems. So while he went to kill the Prime Minister, his secretary was killed by mistake. When McNaughten was being tried by the court he showed records of his mental condition before the court and pleaded insanity to be the cause of his action. His plea was accepted and he was not found guilty. This issue was discussed in the House of the Lords and a set of rules was laid down famously known as the Mc Naughten Rules to decide the culpability of an insane person.

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From the rules laid down we can conclude that:  Law presumes every person to be reasonable and sane, to know the law of the land and the consequential result of his act. In case of insanity, human beings deviate from this ordinary presumption and therefore the burden to prove his extraordinary mental condition of insanity is on him. Loss of reason has to there at the time of commission of the offence and such loss should be of such an extent that made the accused fully unaware of the nature and quality of the act in question.

Following are main points of Mc Naughten Rules:

  • Every man is to be presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved.
  • An insane person is punishable “if he knows” at the time of crime. To establish the defense of insanity, the accused, by defect of reason or disease
  • Of mind, is not in a position to know the nature and consequence, the insane person must be considered in the same situation as to responsibility
  • As if the facts with respect to which the delusion exists were real
  • It was the jury’s role to decide whether the defendant was insane.

Types of Insanity

There are two kinds of insanity Legal and Medical. Legal insanity is the only focus of the court of law and attracts the defense of Section 84 while medical insanity is not to be taken in account by the court. Legal insanity means a state when a person does not understand the nature of the act his is doing. While medical insanity could be of many kinds like an odd behaviour because of not proper functioning of the brain, or a weak intellect etc. will be treated by a medical practitioner as insanity but the court will not consider these as a valid defense under S.84 till the time it satisfies the criteria of legal insanity.

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We do not use the word ‘insanity’ under the Indian Penal Code, but unsoundness of mind which is equivalent to insanity. During investigation, the investigating officer has to subject the accused to medical examination in cases where a previous history of unsoundness of mind of accused is there, so that his current mental position could be fairly judged. This will help the prosecution to strengthen his case. In cases where there is a medical history of insanity, there will be no exemption given to the defendant  from the burden of proof because he needs to specifically prove his claim that the act is question was committed under insanity, and just the fact that there is medical history of his insanity will not serve his claim.

Time of Commission of Offence Matters

Time of commission of offence becomes the most crucial point, as it is during this time that the accused person’s mental condition is to be judged. Not knowing the nature of the act or in cases where he knows the nature then not knowing whether it is wrong or contrary to law will be looked upon to apply S.84. behaviour of the accused immediately before and after the commission of the offence becomes important. In case the accused committed the murder over a trifling matter is not a ground to claim insanity.

In cases where a person becomes insane and sane at certain intervals, then the time of commission of the said offence becomes all the more important because he can commit the offences during the time he was sane and had full knowledge of his act.

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Unsoundness of Mind

Unsoundness of mind can be from the time of birth or arising out from a disease later. In case where a person killed his sleeping  friend by cutting off his head thinking that it would be fun to see when he will wake up and find his head back, we can say that such act was done under unsoundness of mind. But in case where a man sacrificed his son to the deity believing that it will bring good luck to his family, cannot be said to be done under unsoundness of mind because he had full knowledge of what he was doing and its nature because he was expecting good fortune in return of such act. Which means he was fully aware about the nature and consequences of the act. In case muder is done in a sudden impluse and no pre determined motive and intention to kill, will not treated as unsoundness of mind. Just because it was done in a sudden span of time and not by a proper motive and plan does not matter, it will not be the same as a fit of insanity.

Case Laws

Hari Kumar Gond v. State od Madhya Pradesh[1], In this case Supreme Court held that there is no exact definiton of unsoundness of mind given in IPC. We generally treat it to be equivalent to insanity, but even insanity is not defind in law. It could be said to widely cover various degrees of mental disorders. So every mentally ill person cannot be said be be legally insane. A distinction is necessary between mental insanity and legal insanity. Court is concerned only with mental insanity and not legal insanity.

In case of Ratan Lal v. State of Madhya Pradesh[2], Court established that the crucial point of time at which the unsound mind should be proved is the time when the offence was committed and whether the accused was in such a state of mind as to be entitled to benefit from Section 84 can only be decided from the circumstances that preceded, attendant and subsequent to the event that may be relevant in determining the mental condition of the accused ast the time of the commission of the offence but not those remote in time.

Conclusion

According to my view, the concept of insanity we follow in our country suits our needs. There are different concepts that we do not apply in India and it might be included in our laws as the time suggest. We should trust our Parliament and Law Commission to come up with what is better for us at the right point of time. Presently it would be better if we have a concrete defition of the term ‘insanity’ or ‘unsoundness of mind’ as it would highlight the diffrence of understanding that court and medical experts have over the same word. It would also reduce the misuse of this exception.

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[1] (2008) 16 SCC 109

[2] JT 2002 (7) SC 627

Categories
Blog Criminal Law

Death Penalty in USA

By: Muskan Sharma

Death Penalty/Death Sentence/Capital Punishment is a state-sanctioned method of homicide in response to the commission of an offence. Death Penalty owes its origin to the Code codified by King Hammurabi of Babylon. In this code, Death Penalty was a punishment for 25 crimes.

At this moment, different nations use the following methods to execute death penalty on convicted persons:

  1. Hanging
  2. Lethal Injection
  3. Shooting
  4. Electrocution
  5. Beheading
  6. Gas inhalation

Earlier, violent methods like burning alive, disembowelment, blood eagle, back-breaking, crushing by animals, brazen bull, poison, suffocation, slow slicing were used. However, the practice of executing death penalty evolved over the time and less violent methods dominated over such inhuman methods. But the practice of death penalty, no matter the method of execution, is an inhuman act in itself.

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Death Penalty v. Human Rights

There is a constant debate whether death penalty is violative of the concept of Human Rights? Some countries have abolished death penalty for being violative of the right to life and dignity whereas other countries do not abolish death penalty believing it has no connection with human rights.

However, in the USA, the concept of human rights is a little alien. In the USA, ‘Civil/Constitutional Rights’ have force, which focuses on securing equality to different groups. Hence, death penalty is not considered as violative of human rights within the territorial limits of the USA.

History of Death Penalty in USA

In England, Death Penalty was a punishment for numerous offences including petty offences like picking pockets or stealing bread. During the 1800s, around 270 offences were punishable with death penalty in England. Michigan abolished death penalty as a punishment in 1845. Later, Wisconsin also adopted the same approach in 1848. Therefore, both England and the USA reduced the number of capital offences and centred their focus on first-degree murders. Public executions also decreased gradually with time.

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Death Penalty for Murder

The USA started doing away with the death penalty as a punishment in the 1950s and 1960s due to public protests against the same. As a result, no execution took place between 1968 and 1976 in USA. One of the landmark cases in the history of death penalty in the USA is Furman v. Georgia[1].

Furman v. Georgia, 408 U.S. 238 (1972)

Facts: The resident woke up in the middle of the night and found Furman committing burglary in the house. During the trial, Furman said that while escaping, he tripped and the weapon fired accidentally which resulted in the death of the victim. Since the weapon was fired during the commission of a felony, Furman was guilty of murder and therefore, subject to death penalty under the then existing laws. Though he was sentenced to death penalty, the same was never executed.

Decision: The Court, with a ratio of 5:4 held that death penalty is a cruel and unusual punishment and violative of the Constitution.

US Supreme Court’s decision in Furman case motivated almost 35 states to modify their laws concerning death penalty. However, two different approaches were adopted to modify the laws while abiding by the suggestions provided in the Furman case.

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In the first approach, the state described which offences are punishable with death penalty along with mitigating and aggravating circumstances. A convicted person can only be sentenced to death penalty if the aggravating circumstances weighed more than the mitigating circumstances. This approach was adopted by Georgia, Texas, and Florida.

In the second approach, the state merely prescribed which offences are punishable with death penalty. Death penalty was mandatory in such prescribed offences and the Court did not need to consider mitigating or aggravating circumstances. This approach was favoured by North Carolina and Louisiana.

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However, another case named Gregg v. Georgia[2] again proved to be a landmark judgment in the jurisprudence of death penalty in USA.

Gregg v. Georgia, 428 U.S. 153 (1976)

Facts: The defendant committed two armed robberies and two murders. Based on the amended laws, the Court heard the matter using the bifurcated procedure. The Georgia Supreme Court came to the conclusion of conviction and awarded death penalty for murder but vacated death penalty for armed robbery. In this case as well, the issue before the Court was whether a law that enables the Court to award death penalty is violative of the Constitution.

Decision: The Supreme Court observed that death penalty does not violate the Constitution. Courts cannot completely do away with the punishment of death penalty and that the statutes ensure that while awarding death penalty, the Court considers the circumstances of the offence, character of the offender, procedure to be followed.

Therefore, in Gregg v. Georgia[3], the decision of Furman case was overruled. US Supreme Court, via the decision in Gregg v. Georgia[4] held that death penalty is not violative of the Constitution. In this case, the Supreme Court went further and observed that the mandatory death penalty approach adopted by North Carolina and Louisiana’s statutes is unconstitutional. Thereafter, legal executions started again but at a slow pace. Only 50 death sentences were executed between 1977 and 1985.

However, one issue pending for a ruling was whether the punishment of death penalty was applied equally. The same was answered in McCleskey v. Kemp[5].

McCleskey v. Kemp, 481 US 279 (1981)

Facts: Warren McCleskey was convicted for committing two robberies and one murder. He was an African-American and he murdered a White Police Officer during the course of one of the robberies. He was sentenced to death penalty due to two aggravating circumstances: first, he committed the murder during the course of a robbery, and second, the victim of murder was a Police Officer engaged in the performance of his duties.

McCleskey preferred an appeal to the Federal Court and based his claim on a study performed by David Baldus, Charles Pulaski, and George Woodworth. The study depicted that the process of awarding death penalty was discriminatory i.e. individuals who murdered whites were likely to be sentenced to death penalty.

Decision: The Court disregarded the statistical study on the ground that it contained no substantial evidence that may justify the reversal of his conviction. The Court concluded that the conviction was right and the lower court applied the Georgia Law properly.

Death Penalty to Juvenile Offenders

After McCleskey v. Kemp[6], another landmark decision was put forward by the US Supreme Court in Roper v. Simmons[7].

Roper v. Simmons, 543 US 551 (2005)

Facts: Simmons (17-year old boy), along with his two friends Benjamin and Tessmer, made a plan to murder Shirley Crook. He planned to break into the house of the victim, commit a burglary, and kill him. However, Tessmer withdrew from the plan at the last moment. Benjamin and Simmon tied her up, covered her eyes, drove her to a state park, and then threw her off from a bridge. Simmon himself confessed to the murder.

Simmon was, therefore, convicted under the charge of murder. He moved to the trial court for setting aside the conviction on grounds of his age, impulsiveness, and troubled background. The trial court rejected his contention. The appeal went to the Supreme Court of Missouri and it concluded the case by awarding life sentence to Simmon with no parole. The decision of the Supreme Court of Missouri was based on the ground that death penalty awarded to juvenile offenders is violative of the eighth amendment of the constitution.

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It was further appealed to the US Supreme Court.

Decision: The US Supreme Court held that awarding death penalty to an offender, who is below 18 years of age, is violative of the Constitution. This decision also overruled Stanford v. Kentucky[8] in which the court upheld the awarding of death penalty to offenders at 16 years of age or older than that.

Rape and Death Penalty

The US Supreme Court in Coker v. Georgia[9] held that death penalty awarded consequent to the rape of an adult woman is unconstitutional i.e. violative of the eighth amendment to the Constitution.

Coker v. Georgia, 433 US 584 (1977)

Facts: Ehrlich Coker escaped prison while he was serving multiple sentences for his conviction for rape, kidnapping, and murder. He broke into a house, raped the woman present in the house, and then stole the vehicle. He was convicted of rape, armed robbery, and other petty offences.

Decision: He was awarded death penalty for committing rape because of two aggravating circumstances, the first being prior conviction for capital offences, and the second being the commission of rape during an armed robbery. The Georgia Supreme Court upheld the death penalty.

But the US Supreme Court held that even though the rape was committed by a hardened offender during the course of another offence, it did not lead to the murder of the victim. It was observed that rape involves injury, physical and psychological, but the injury is not of serious nature. Therefore, the US Supreme Court overturned the death penalty awarded to Coker.

The question whether death penalty should be awarded for raping a child or not is answered in Kennedy v. Louisiana[10].

Kennedy v. Louisiana, 554 US 407 (2008)

Facts: Kennedy was convicted for the offence of raping his minor step-daughter causing serious injuries to her private parts. The Trial Court convicted him for the offence of rape and sodomizing a minor. Death penalty was awarded to him consequently.

On appeal, the Louisiana Supreme Court affirmed the conviction as Louisiana’s statute on Child Rape authorized death penalty.

Kennedy rested to appeal before the Supreme Court of the United States of America invoking the Eighth Amendment of the US Constitution. Eighth Amendment prohibits unusual and cruel punishments or excessive punishments through criminal sentences.

Decision: The US Supreme court reversed and remanded the case to the lower court for resentencing. The Court further observed that it is unconstitutional to impose death penalty for the crime of raping a child when the victim does not die and death was not intended.

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International Law on Death Penalty

The Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) was adopted by the UN General Assembly, with the aim to abolish death penalty. It has 89 State parties.

Article 1 of the Optional Protocol provides that no person shall be executed within the jurisdiction of any of the State parties to the Optional Protocol.

Article 2 is an exception to what is stated in Article 1 and provides that the State party, may, at the time of accession or ratification, communicate the need for reservation for application of death during wartime. A State party may communicate the need for such reservation only for serious offences of military nature and further, let the Secretary-General know about the provisions concerning warfare within its national legislation along with the beginning and end of a state of war.

Articles 3, 4, and 5 further provide for the wide ambit of powers of the Human Rights Committee with respect to the State parties’ obligations towards the Second Optional Protocol.

Why Death Penalty needs to be abolished?

Abolition of Death Penalty or Capital Punishment in the USA is the need of the hour for the following reasons:

  1. The scheme for awarding death penalty to a convict is used in a discriminatory manner. A black or a person of colour is more likely to get death penalty as compared to a white. Also, it depends a lot on the net worth of the party, the attorneys they are financially capable of hiring, and the place where the offence was committed.
  2. Death Penalty, in its entirety, failed to serve the purpose of its existence. Death Penalty existed as a method of punishment based on the deterrent theory of punishment. However, numerous surveys have proved that death penalty was not effective in reducing the number of crimes being committed. Therefore, the deterrent theory of punishment needs to be disregarded in totality. Instead, the Rehabilitative theory of punishment must be considered by Judges and Magistrates while awarding punishments to convicted persons.
  3. Death Penalty is in itself a cruel and inhuman act. It is violative of the Right to Life and Dignity available to every person in this world. Death Penalty is a relic of early criminal codes and has no place in a country that considers the security of human rights as its top priority.
  4. Death Penalty is the abuse of due process of law. A statute that prescribes death penalty as a punishment for any offence, enables Judges and Magistrates to take the life of a person in the name of due process of law.
  5. Death Penalty is further violative of the maxim ‘audi alteram partem’ to an extent as the person who is executed, did not get the fair opportunity to represent himself before the Court and justify the reversal of his conviction.
  6. The International Law regime also does not support death penalty. Death penalty, as a punishment in the national legislations, disregards the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). Though the USA is not a party to the Second Optional Protocol, it will be in the interest of its citizens and will display its commitment to secure human rights within its territorial jurisdiction.

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Conclusion

Death Penalty is nothing less than State-sponsored terrorism. Judges and Magistrates are the authorities responsible to ensure the smooth conduct of State-sponsored terrorism in the name of death penalty.

It’s high-time that all states in the world must become party to the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) and denounce the use of death penalty. Death Penalty deserves to be denounced also on the ground that it is cruel and inhuman.

Death Penalty, as a practice, is violative of the basic Right to Life and Dignity. Furthermore, it has served no useful purpose. Awarding death penalty did not work according to the deterrent theory of punishment. It did not aid in reducing the number of crimes being committed.

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[1] 408 U.S. 238 (1972)

[2] 428 U.S. 153 (1976)

[3] Ibid.

[4] Ibid.

[5] 481 US 279 (1981)

[6] Ibid.

[7] 543 US 551 (2005)

[8] 492 U.S. 361 (1989)

[9] 433 US 584 (1977)

[10] 554 US 407 (2008)

Categories
Blog Criminal Law

Stages in Criminal Proceedings in India

By: Muskan Sharma

The Criminal Law regime in India is regulated by the following statutes:

  1. The Indian Penal Code, 1860 (hereinafter referred to as “IPC”)
  2. The Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”)
  3. The Indian Evidence Act, 1872 (hereinafter referred to as “Evidence Act”)

The IPC provides for classification between different offences. It also provides the punishment to be awarded to a person convicted of any offence. The CrPC provides for the procedure to be followed during the proceedings to conclude the case. The Evidence Act provides what evidence is admissible and relevant during the trial.

However, studying the IPC, the CrPC, and the Evidence Act separately will not make one understand the gist of Criminal Law. It is pertinent to study these three legislations in their entirety to know about different stages in criminal proceedings in India.

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Following are the different stages in criminal proceedings in India:

  1. Commission of an Offence

Criminal proceedings take place only when an offence is committed. This stage is surely not a part of the trial. However, only the commission of an offence can lead to criminal proceedings.

  1. Information to the Police
  2. Information as to the Commission of a Cognizable Offence

After the commission of an offence, it is pertinent that the Police receive information about it. If the offence is a cognizable offence, then the Police have to act according to Section 154 of the CrPC. Section 154 (1) of the CrPC provides that information relating to the commission of a cognizable offence shall be reduced in writing by the officer-in-charge of the concerned Police Station and must be read over to the informant. The person, who provided such information, must sign on it.

Section 154 (2) provides that a copy of such FIR shall be given free of cost to the informant. In case the officer-in-charge of a Police Station refuses to record such information, the concerned person may then write the substance of such information and post it to the Superintendent of the Police. If the Superintendent of the Police is satisfied that such information discloses the commission of a cognizable offence, he shall either investigate the case himself or direct an officer in subordination to him, to investigate such a case.

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  1. Information as to the Commission of a Non-Cognizable Offence

If in case, an officer-in-charge of a Police station receives information about the commission of a non-cognizable offence, he must prepare NCR i.e. Non-Cognizable Report which contains all the information of such offence reduced into writing. In Non-cognizable offences, the Police cannot arrest a person without a warrant. However, if a person is accused of committing a cognizable offence, the police can arrest him even without a warrant.

If the information provided to the officer-in-charge of the Police station discloses that the act of the accused person is partly a cognizable offence and partly a non-cognizable offence, then it will be considered as a Cognizable Offence.

  1. Investigation by Police

Chapter XII of the CrPC provides for the investigation of an offence by the Police. Section 156 of the CrPC empowers a police officer to investigate a cognizable case without the order of a Magistrate. Further, Section 156 (2) provides that the no proceedings handled by a police officer in such a case cannot be called into question on the ground that the officer was not empowered to investigate the case under this section. A Magistrate may order the investigation of such a case under Section 190, CrPC.

Section 157 of the CrPC provides for the procedure to be followed for investigation. It states that when the officer-in-charge of a Police Station is empowered under Section 156, he must send a report to the Magistrate empowered to take cognizance of such offence on a report by the Police and either proceed in person or depute any of his subordinate officers to investigate the facts and circumstances of the case. However, provisos to Section 157 (1) provide that an officer-in-charge must refrain from investigating the case if the offence is not of a serious nature or if there is no sufficient ground for entering into the investigation. The concerned officer-in-charge must state reasons for not complying or not investigating the case in his report, as provided by Section 157 (2) of the CrPC.

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The purpose behind the conduct of the investigation by the Police is to obtain the following:

  1. Evidence
  2. Attendance of Witnesses
  3. Interrogation statement of the accused
  4. Statement of Witnesses
  5. Expert Opinion

However, the procedure to be followed in the course of the investigation may be different in special categories of cases or if the procedure cannot be completed in 24 hours.

  1. Anticipatory Bail

Anticipatory bail is a direction from the Court to release a person on bail even before the arrest. In Balachand Jain v. State of MP, the Court has described anticipatory bail as ‘bail in anticipation of arrest’.

In Gurbaksh Singh Sibbia v. State of Punjab, the Supreme Court observed that the court must be satisfied that the person invoking Section 438 (1) of the CrPC shall have reasons to believe that he will be arrested for non-bailable offence and his belief must be based on reasonable grounds.

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The Court must provide anticipatory bail after taking into consideration the following factors:

  1. The Gravity of the alleged offence.
  2. Antecedents of the person applying for anticipatory bail i.e. whether he has been previously convicted of a cognizable offence.
  3. If the accused person can flee from justice.
  4. Where the accusations are backed by the intention of causing injury or humiliation to the accused.

The Court may also impose the following conditions to be fulfilled by the accused when seeking an order of anticipatory bail:

  1. He must be available for interrogation by the police officer, as and when required.
  2. He must not, directly or indirectly, induce, give threats, or promise to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or to any police officer.
  3. He must not leave India without the permission of the Court.
  4. Arrest of the Accused

The Police officer may arrest the accused person without the warrant if the offence is of cognizable nature. However, the concerned police officer must obtain the approval of the Magistrate in the form of a warrant if the alleged offence is of non-cognizable nature.

  1. Production of the Accused to the Magistrate

After the accused person is arrested, the concerned police officer must produce the accused before the Magistrate within 24 hours of the arrest as stated in Article 22(2) of the Indian Constitution. Hence, an arrested person has a fundamental right to be produced before the Magistrate within 24 hours of arrest.

  1. Remand

If the accused person is arrested and the investigation cannot be completed within 24 hours, then such person is to be produced before a Magistrate for extension of Police or Magisterial Custody.

  1. Closure Report

A closure report is filed when upon the investigation, it is discovered that no offence can be made out. Also, the accused person must be released under Section 169 of the CrPC in such cases.

  1. Filing of Charge sheet

However, a Charge sheet must be filed according to Section 173 of the CrPC if, upon the investigation, it is discovered that an offence appears to have been committed. The Charge sheet must contain all the charges to be leveled against the accused person.

  1. Cognizance by Magistrate

After a charge sheet is filed under Section 173 of the CrPC, a Magistrate is empowered to take cognizance of such offence under Section 190 of the CrPC. Section 190 (2) further provides that a Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance of any such offence within his competence to try.

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  1. Service of Summon/Warrant

The Court then serves to summon or warrant to the accused person to present himself before the Court. A Summon or Warrant is issued with the aim to compel the appearance of accused persons under Chapter VI of the CrPC.

Section 61 of the CrPC provides that Summon issued by a Court shall be reduced to writing in duplicate signed by the presiding officer or any such officer prescribed by the High Court, and it must have the seal of the court.

Section 70 of the CrPC describes the form of a warrant of arrest. Every warrant issued shall be in writing, signed by the presiding officer of such Court and must bear the seal of the Court. Such warrant shall remain in force until cancelled by the Court or until executed.

  1. Bail Application

A Bail Application is filed before the Court under Form No. 45 of the Second Schedule to release the accused person from custody. The accused person can be granted bail only if he furnishes bond and sureties before the Court.

The procedure to obtain bail is different in bailable and non-bailable offences.

  1. Bail in Bailable offences

Section 436 of the CrPC provides for the procedure to obtain bail in bailable offences. Section 436 provides that in case of bailable offences, the accused person can be released on bail. However, such officer or Court may, if deem it reasonable to do so, instead of taking bail, discharge him by executing a bond without sureties for his appearance.

Section 436 (2) further provides that if a person does not comply with any of the provisions of the bail bond regarding the time and place of his attendance, the Court is empowered to refuse to release him on bail. Such refusal shall be considered without prejudice to the powers of the Court to call upon any person bound by the bond to pay penalty under Section 446.

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Further, Section 436A has been inserted in the CrPC in 2005 for the undertrial prisoners. It says that if a person has already completed half of the maximum sentence to be awarded for the alleged offence, then he must be released on personal bond with or without surety.

  1. Bail in Non-bailable offences

Where it is alleged that the accused person has committed a non-bailable offence, he may be released on bail.

The Court may refuse to grant the bail in the following cases:

  1. There are reasonable grounds to believe that he is guilty of an offence punishable with death or imprisonment for life.
  2. The alleged offence is cognizable and the accused person is previously convicted of an offence punishable with death, imprisonment for life, imprisonment for seven years or more, or has been convicted twice or thrice of a non-bailable and cognizable offence. However, the Court may release such an accused person on bail if it is just and proper to do so for any other reason. It has been further provided that identification by witnesses is no sufficient ground for refusal to grant bail if the accused person is otherwise entitled to be released on bail.

Also, the Court may not refuse bail to a person below sixteen years of age, a woman, sick or infirm person.

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Section 437(2) further provides that if there are no reasonable grounds to believe that the accused has committed a non-bailable offence but sufficient grounds for further inquiry into his guilt are there, the accused may be released on bail, subject to Section 446A, or execution of a bond by him without sureties for his appearance.

Section 437 (3) says that a person accused of an offence punishable with imprisonment which may extend to seven years or more in Chapter VI, Chapter XVI, or Chapter XVII of the IPC or abetment of, or conspiracy or attempt to commit such offence, the Court may impose any condition while releasing the person on bail.

  1. Plea of Guilty/Not Guilty

The Court, before commencing the trial, must ask the accused person whether he wishes to plead guilty or not guilty. The Court may convict the person on his plea of guilty under Section 253, CrPC. This provision has been inserted in the Criminal Law regime so the speedy delivery of justice can be made effective.

  1. Commencement of Trial

The Trial of a case is said to be commenced when it is posted for the examination of witnesses. A Trial may be classified into the following categories:

  1. Sessions Trial
  2. Warrant Trial
  3. Summons Trial
  4. Summary Trial
  5. Stages of Evidence of Prosecution

The prosecution is required to prove the guilt of the accused through the examination of witnesses and documentary evidence. It involves Examination of Chief, Cross-examination, and re-examination. This whole cycle is known as ‘examination-in-chief’.

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After this, the Court records the statement of the accused person under Section 313 of the CrPC. The accused is given the opportunity of being heard and explain the facts and circumstances of the case. The defence is then, asked to present any evidence before the Court that may support the acquittal of the accused person. Usually, the burden of proof is on the prosecution, the defence is rarely asked to present evidence before the Court.

  1. Final Arguments

After examining all the evidence and other relevant facts and circumstances, the court decides upon what questions are to be addressed during the final arguments of the case. The Public Prosecutor and the Defence Counsel both present their arguments to the Court on the disputed issues.

  1. Judgment

After hearing final arguments from both sides, the Court has to deliver judgment addressing if the accused is convicted or acquitted, the quantum of punishment if convicted, grounds of conviction/acquittal, etc.

The Judgment must be clear and precise. It should state the facts of the case, arguments presented by the Counsel from both sides, acquittal/conviction of the accused, and grounds for the same.

  1. Appeal

After the judgment is delivered by the Court, the aggrieved party may file for an appeal. Before the appellate court, arguments of both sides are placed. The Appellate Court, then decides if the judgment rendered by the subordinate court had any merits or not.

  1. Revision

The aggrieved party may alternatively file a Revision petition to prevent a faulty judgment from being enforced.

  1. Execution

The last stage is the execution of the orders of the Court. The stage of execution is when all the remedies of appeal, revision, etc. are exhausted and the decision is final.

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Categories
Criminal Law

Plea Bargaining in India and USA -A Comparative Study

By: Muskan Sharma

Concept of Plea Bargaining

Plea Bargaining is a process where the accused is asked to plead guilty in exchange of the judge acting lenient while awarding punishment or considering the seriousness of the offence. It is derived from the Latin phrase ‘Nolo Contendere’ which means ‘I do not wish to contend’ i.e. a plea of ‘No contest’. Plea Bargaining is a situation where the accused admits that the charges levelled against him are true and that he will not contend a query to the Court to decide over his guilt.

The concept of Plea Bargaining was not originally introduced into the Indian legal system but into USA. However, the Law Commission’s efforts promoted the insertion of the provisions concerning Plea Bargaining via its 142nd, 154th, and 177th reports. A new chapter on ‘Plea Bargaining’ was introduced into the Criminal Procedure Code based on the recommendations of the Law Commission for certain offences.

There are three types of Plea Bargaining namely, Sentence Bargaining, Charge Bargaining, and Fact Bargaining.

The concept of ‘Plea Bargaining’ is operative in both India and USA but the practice is not identical. However, it is pertinent to know about the concept of Plea Bargaining and landmark cases associated to it in both legal systems separately for a fruitful comparison between the two.

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Plea Bargaining in USA

In USA, the accused can put forward one of the three pleas i.e. Guilty, Not Guilty, and Nolo Contendere. Under the doctrine of Nolo Contendere, the plea is treated as an implied confession of guilt or that the Court will decide on the point of his guilt.

However, the Court is not bound to accept such a plea of the accused. It is the discretionary power of the Court to either accept or reject such plea, considering the facts and circumstances of each case presented to it. The Court is supposed to ensure that the plea should be put forward voluntarily by the accused and absence of duress and coercion. The accused must receive the protection of secrecy. Plea Bargaining gained momentum due to the overcrowding in prisons of USA.

Landmark Cases in USA

  • State exrel Clark Adams[1]

In the instant case, the Court explained the doctrine of ‘Nolo Contendere’. The Court held that the plea of ‘Nolo Contendere’ also known as ‘Plea of Nolvut’ means the accused does not wish to contend.

  • United States Risfield[2]

The Court observed that in a criminal action in which an application for Plea Bargaining has been made, the adjudication by the Court in relation to the plea of guilty is not necessary. However, the Court may impose sentence on the accused person immediately.

  • Lott United States[3]

The Court held that the plea being tantamount to an admission of guilt, is not conviction but merely a determination of guilt.

  • Bordenkircher Haynes[4]

In this case, the US Supreme Court upheld the constitutionality of Plea Bargaining while awarding life imprisonment to the accused person who rejected to plead guilty for imprisonment for a term of five years. The Supreme Court observed a slight possibility that the accused person may be coerced to choose among the lesser of the two punishments.

The Supreme Court further observed that there is no probability of coercion or duress if the accused person is free to either accept or reject the offer made by the prosecutor during the negotiation process for Plea Bargaining.

  • Brady United States[5]

In the instant case, the Supreme Court held that the consensus reached out of fear that the trial will result into death penalty will not make the process of Plea Bargaining illegitimate. If the process of Plea Bargaining has been properly conducted and controlled, it is legitimate.

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Plea Bargaining in India

Section 265A to 265L (Chapter XXI A) of the Criminal Procedure Code, 1973 (hereinafter referred to as “CrPC”) contain provisions concerning ‘Plea Bargaining’.

Section 265A of CrPC provides who is eligible to take benefit of Plea Bargaining. According to the provisions of Section 265A, any accused may take the course of Plea Bargaining except the accused charged with offences that are punishable with death or life imprisonment or imprisonment for a term more than seven years. Also, an accused charged with an offence against a woman or a child below fourteen years of age or affecting the socio-economic conditions of the country, is also not allowed to take the course of Plea Bargaining.

Section 265B provides for the procedure to file an application for Plea Bargaining. The application must contain all details of the case accompanied by a sworn affidavit. Afterwards, the Court may examine the accused to satisfy itself of the fact that the accused has filed such application voluntarily. If the accused satisfies the Court of the voluntariness, the Court provides some time for the mutual satisfactory disposition of the case. If in case, the accused fails to satisfy the Court that he has filed the application voluntarily or that he has been convicted with the same offence previously, the Court may proceed from the stage the application has been filed before it.

Section 265C contains guidelines for mutually satisfactory disposition of the case. It states that the Court shall issue notice to the public prosecutor, if the case instituted on a police report, the accused, and the victim to participate in a meeting to reach at a satisfactory disposition of the case. However, the Court must ensure that the process be completed voluntarily and the accused may participate with his pleader, if he desires so.

Section 265D to Section 265I contain provisions concerning the report of mutually satisfactory disposition, disposal of the case, judgment of the Court, finality of the judgment, power of the Court in plea bargaining, and period of detention already undergone by the accused be set off against the sentence of imprisonment.

Landmark Cases in India

  • Murlidhar Meghraj Loya State of Maharashtra[6]

In the instant case, J. Krishna Iyer criticized the practice of Plea Bargaining. He observed that the Trial Magistrate is burdened with cases and hence, approves the secret dealings of Plea Bargaining. He further observed, “The businessman culprit, confronted by a sure prospect of the agony and ignominy of tenancy of a prison cell, ‘trades out‘ of the situation, the bargain being a plea of guilt, coupled with a promise of ‘no jail‘. These advance arrangements please everyone except the distant victim, the silent society…”

  • Kachhia Patel Shantilal Koderlal State of Gujarat and Anr.[7]

In this case as well, the Supreme Court criticized the concept of Plea Bargaining. The Court held that Plea Bargaining is an unconstitutional process as it encourages corruption and pollutes the concept of justice.

  • State of Uttar Pradesh Chandrika[8]

The Supreme Court held that it is a settled law that a criminal case cannot be disposed off merely on the basis of Plea Bargaining. It was further observed that it is the constitutional duty of the Court to consider the merits of the case and award appropriate sentence despite the confession of the guilt by the accused person.  Mere confession of the guilt by the accused person cannot be a reason for awarding lesser punishment.

However, there has been a shift in the judicial thinking with the passage of time.

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  • State of Gujarat Natwar Harchandji Thakor[9]

In the instant case, the Gujarat High Court favoured the process of Plea Bargaining and held that the object is to provide easy, cheap, and expeditious resolution of disputes including the trial in criminal cases and that it prevents the pendency and delay in disposal of the administration of justice.

  • Vijay Moses Das CBI[10]

In the instant case, a person was accused of supplying of sub-standardized material to ONGC at a wrong port and thereby, causing ONGC to suffer huge losses. CBI completed the investigation and started prosecution against the accused person under Section 420, 468, and 471 of the Indian Penal Code, 1860. The accused person took the course of Plea Bargaining. But the Trial Court rejected the application of Plea Bargaining on the ground that it was not accompanied by an affidavit as stipulated under Section 265B and no compensation was fixed. However, the Uttarakhand High Court directed the Trial Court to accept the application of Plea Bargaining.

  • Thippaswamy State of Karnataka[11]

In the instant case, the Supreme Court held that inducing an accused person to plead guilty under any assurance or promise is unconstitutional for being violative of Article 21 of the Indian Constitution. It further observed that in such cases, the Court must set aside the conviction and direct the case to the Trial Court to give accused person the right to defend himself and if found guilty, the Trial Court may award appropriate punishment to him.

Plea Bargaining in India and USA: Comparative Analysis

Though the concept of ‘Plea Bargaining’ as adopted into the Indian legal system has been borrowed from USA, it is still distinguishable from the operation of ‘Plea Bargaining’ in USA. Following are some of the major differences that exist between the concept of ‘Plea Bargaining’ as operative in India and USA:

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  1. Nature of Offence

In USA, there is no provision as to the prohibition on plea bargaining in certain offences. An accused person charged with any offence may take the course of Plea Bargaining. However, in India, there are exceptions as contained in Section 265A. Following categories of accused persons cannot take the course of Plea Bargaining in India:

  1. Accused person charged with an offence punishable with death
  2. Accused person charged with an offence punishable with life imprisonment
  3. Accused person charged with an offence punishable with imprisonment of more than seven years
  4. Accused person charged with an offence against women
  5. Accused person charged with an offence against a child below fourteen years of age
  6. Accused person charged with an offence that affects socio-economic conditions of the country
  7. Role of Victim in Proceedings

In Indian Law, the victim has an important role in the proceedings of Plea Bargaining. The victim has the power to refuse or veto if unable to reach a mutually satisfactory disposition. However, in USA, the victim does not have an active role to play in the proceedings of Plea Bargaining.

  1. Mechanisms available for enforceability

In USA, an application for Plea Bargaining is filed only after the negotiation process between the accused person and the prosecutor is complete. However, in India, the negotiation process with the accused person does not even start before the filing of the application of the Plea Bargaining to ensure that the application of Plea Bargaining is filed voluntarily by the accused. Therefore, there is less chance of the accused being coerced or secret dealings for filing an application for Plea Bargaining.

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  1. Discretion of the Judge

In USA, the judge does not exercise discretionary power while accepting an application for Plea Bargaining. However, in Indian legal system, the judge has discretionary powers to either reject or accept an application for Plea Bargaining filed by the accused person.

  1. Finality

Under the Indian legal system, if the Court thinks the punishment awarded in any case of Plea Bargaining is insufficient or is guarded by unfair circumstances, it may be set aside either by an SLP under Article 136 or a writ petition under Articles 226 and 227 of the Indian Constitution. However, in USA, it reaches its finality.

 

Conclusion

The conviction rate via Plea Bargaining in the USA is as high as nearly 90% whereas in India, it is not even close to 10% of the criminal cases. This disparity exists due to the differences that exist between the concept of Plea Bargaining as practiced in USA and India.

Though the conviction rate in India is way too low as compared to the conviction rate in USA, it is effective in ensuring that the application of Plea Bargaining has been filed voluntarily. Justice may be delayed but must not be denied. In India, an accused person does not take the course of Plea Bargaining to choose the lesser among the punishments but is a voluntary action. Hence, it is high probability that an innocent person will not be awarded punishment in India by way of Plea Bargaining.

However, speedy disposal of cases is the need of the hour. Hence, the legislature must go for reforms and provide adequate infrastructure to the judiciary to reduce the number of undertrial prisoners.

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[1] 363 US 807

[2] 340 US 914

[3] 367 US 421

[4] 434 US 357 (1978)

[5] 397 US 742 (1970)

[6] AIR 1976 SC 1929

[7] 1980 Cr LJ 553

[8] 2000 Cr LJ 384

[9] (2005) Cr LJ 2957

[10] Crl. (Misc.) Application No. 1037/2006

[11] (1983) 1 SCC 194