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Condonation of Delay under The Limitation Act, 1963

By: Chinmay Mehta

INTRODUCTION:

The Limitation Act, 1963, of which the concept of Condonation of Delay is a component, was enacted on 5th October, 1963, which came into force on, 1st January, 1964. The essence behind the statutes of Limitation has been well expressed by Lord Plunkett in the following words,

“Time holds in one hand a scythe; in the other hand an hour-glass. The scythe mows down the evidence of our rights, the hour glass measures the period which renders that evidence superfluous.”

The Object behind the Act is not to create or define causes of action, but simply to prescribe the period within which existing rights can be enforced in Courts of Law.1 The Act is based on the well-known Latin maxim: vigilantibus, nor dormientibus jura subveniunt. This means that the law assists the vigilant, not those who sleep over their rights. The Act in its many Sections and Articles, attempts to put down a comprehensive guide for litigants in matters of Limitation, laying down the many circumstances and periods within which a Suit must be brought the Court of Law, or otherwise, stand to be rejected at the very threshold.

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The Law of Limitation does not create or extinguish rights, except in case of acquisition of title to immovable property by prescription under Section 27 of the Limitation Act.

However, what if a litigant has, in fact been vigilant, but there were certain circumstances which hindered him in filing his Suit on time? He cannot be deprived of his Right to Sue without any fault on his part, where there were other forces at play preventing him in doing so. This is where the component of Condonation of Delay comes into play.

OVERVEW:

What does Condonation mean, in context of the Limitation Act? In simple terms, Condonation is a discretionary remedy exercised by the Courts of Law wherein on an Application made before it by the party who wishes to have an Appeal/Application admitted after the prescribed period, pleads before the Court “a sufficient cause”, which hindered it to file the Appeal/Application on time.

If satisfied, the Court would then condone the delay, i.e., disregard it and have the Appeal/Application admitted as if no delay has occurred and then proceed to hear it.

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However, it must be noted, that since the remedy is discretionary in nature, the Court is not bound to condone the delay just because an Application was filed, making out a sufficient cause for the delay. The Court may very well be justified in rejecting the Application, if not satisfied with what’s been averred.

A study of Section 5 of the Act:

The Limitation Act enunciates the principle of Condonation, quite early on, in Section 5 of the Act, which reads as under:

Extension of prescribed period in certain cases—Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or application within such period.

Explanation—The fact the appellant or applicant was missed by any order, practise or judgement of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

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The Supreme Court has held that the words “sufficient cause” in Sec. 5 should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of the Appellant.2

The following can be said to constitute sufficient cause in the context of the Act:

  1. There have been some significant changes in the law of the land.
  2. The Applicant was suffering from a serious illness.
  3. The Applicant was undergoing imprisonment.
  4. The Applicant is a pardanashin
  5. Delay in procuring copies from officials. Here, it must be shown that the attempt to procure the copy, on the part of the Applicant was vigilantly initiated, but it was because of a delay on the part of the concerned officials, which hindered the Applicant in obtaining it and in filing his Appeal/Application on time.
  6. The delay was caused on account of any action or inaction on the part of the lawyer and not the litigant.

(The list is by no means, exhaustive. There are several situations which may constitute sufficient cause depending on the facts and circumstances of each case. Since the term has not been defined by the Act itself, the Courts enjoy vast discretion here.)

Also, it must be noted that the Section only governs Appeals and Applications. Thus, if a Suit is filed after the prescribed period, it is liable to be rejected on threshold and no Application seeking Condonation of Delay will be entertained by the Courts. A Suit must always be filed within the Limitation period and not beyond it.

What if a person, in good faith, initiates proceedings in a Court which does not possess the requisite jurisdiction to entertain it? If this is done as a bonafide mistake, the time so consumed in litigating before the wrong Court may be condoned by the Courts at their discretion.

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Also, if a person, as a bonafide mistake, takes the wrong course of action i.e., files a Writ Petition, when, the right course of action would be to file an Appeal, the time consumed in such Writ Petition may be condoned.3

Applicability under Special Law/Statutes:

A question would arise as to whether the law laid down in Section 5 of the Limitation Act affects the working of the Arbitration and Conciliation Act, 1996. Let’s take Section 34 of the said Act, for instance which speaks about setting aside an Arbitral Award. Clause 3 of the Section states that,

An Application for setting aside may not be made after three months have elapsed from the date on which the party making the Application had received the Arbitral Award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the Arbitral Tribunal. Provided that if the Court is satisfied that the Applicant was prevented by sufficient cause from making the Application within the said period of three months it may entertain the Application within a period of thirty days but not thereafter.

The Himachal Pradesh High Court has, in a case, held that this provision in the Arbitration Act is evidently a substitute for the provisions of Section of the Limitation Act and by necessary implication, it excludes the applicability of Section 5 to Applications under Section 34 of the 1996 Act. The expression ‘but not thereafter’ as used in the proviso expressly debars a court from entertaining an Application for setting aside an award thereafter. Section 5 has no application to a case falling under Section 34(3) of the 1996 Act.4

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Also, Section 29(2) of the Limitation Act lays down that it would be the governing law as far as Limitation is concerned, unless its working is expressly excluded by the Special Law in question.

The Supreme Court has also held that the crucial words in the language used in Section 34 of the 1996 Act are ‘but not thereafter’, this amounts to express exclusion within the meaning of Section 29(2) of the Limitation Act and would therefore bar the application of that Act, hold otherwise is would render the above phrase wholly otiose. Apart from the language, express exclusion may also follow from the scheme and object of the special or local law.5

Relevant Judgements:

  • Collector Land Acquisition v. Mst. Katiji & Ors 6:

The Supreme Court laid down certain guidelines which need to be followed while administering the doctrine of Condonation of Delay:

  1. Ordinarily, the litigant does not stand to benefit by instituting an appeal late.
  2. If the Court is refusing to condone the delay, it can result in a meritorious matter being discarded and the roots of justice being defeated, However, when a delay is condoned, the highest that can happen is that the case will be decided on merits i.e., a decision based on evidence rather than on technical and procedural grounds.
  3. “Every day’s delay must be explained”, does not mean the doctrine is to be applied in an irrational manner. It must be applied in a sensible manner and not literally.
  4. Between substantial justice and technical considerations, the former deserves to be preferred for the other. Other side cannot claim that injustice is done because of a bonafide delay.
  5. There is no presumption that the delay is caused deliberately. The litigant has nothing to gain by resorting to delays and to run a serious risk.
  • New India Insurance Co. Ltd. v. Smt. Shanti Misra 7:

It was enunciated by the Supreme Court here, that the discretion conferred by Section 5 cannot be interpreted in a way that it converts a discretionary remedy into a rigid rule. Also, it was held that the term “sufficient cause” is something which cannot be defined by hard and fast rules.

  • Vedabai alias Vaijayantabai Baburao Patil v. Shantaram Baburao Patil and others 8:

The Supreme Court held, inter alia, that: in exercising discretion under sec. 5 of the Limitation Act, the Courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case the considerations of prejudice to the other side will be a relevant factor so that the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise the discretion on the facts of each case keeping mind that in construing the expression “sufficient cause” the principle of advancing substantial justice is of prime importance.

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  • Ramlal v. Rewa Coalfields Ltd.9:

It was held that want of diligence till the last date of limitation would not disqualify a person from applying for condonation of delay. Therefore, the delay that requires to be explained is from the date the time was running out till the date of filing appeal or the application, as the case may be.

Conclusion:

Thus, it can be said that the Limitation Act does take care of and looks into all the exigencies and circumstances which go about in filing a case on time. A delay does not mean you are deprived of your Right to Litigate. On the other hand, it also takes care of circumstances where it would not actually be in the interests of justice to condone a delay, by giving ample discretion to the Courts in that regard. A study of the judgements as compiled above, also reflects that this discretion is more or less applied with care and caution and in keeping in view, the fair principles of justice. Having said that, we as litigants must take note of the fact, that there are sound reasons behind filing a case on time and it would not only be in the interests of justice but also in our collective interests to be vigilant in recognizing our rights and making sure we do not make use of these broad parameters and leeway given by the law for unlawful gains and benefits but, in fact, (and law) use them judiciously.

1 Liv v. Ramji, 3 Bom. 207

2 Perumon Bhagvathy Devasom v. Bhargavi Amma (2008) 8 SCC 321

3 Bhansali v. State of Madras, A.I.R. 1968, Mad. 373

4 State of Himachal Pradesh v. M/s Kataria Builders, 2003(1) CCC 169 (H.P)

5 Bhansali v. State of Madras, A.I.R. 1968, Mad. 373

6 1987 A.I.R. 1353, 1987 S.C.R. (2) 387

7 1976 A.I.R. 237, 1976 SCR (2) 266

8 A.I.R. 2001 SC 2582: 2001 (5) Supreme 266: 2001 (5) JT 608

9 A.I.R. 1962 SC 361

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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 China

Civil Courts System in China and their Jurisdiction

By: Siddharth Sutaria

INTRODUCTION TO CHINA’S LEGAL SYSTEM

The government defines the People’s Republic of China (PRC) as a “socialist legal system.” Despite the official definition, however, China’s legal system is based primarily on the Civil Law model. The Constitution of the People’s Republic of China is the highest law within China. People’s Republic of China (PRC) adopted the current version in 1982 with further revisions in 1988, 1993, 1999, and 2004. There are four levels of the court system in China: the grassroots, intermediate, higher and supreme people’s courts, and special courts such as the military, maritime, railway and forestry courts.

CIVIL PROCEDURAL LAW

When the People’s Republic of China was established on October 1, 1949, to establish a clear boundary between the new socialist state and the old capitalist society, it abolished everything under the Kuomintang government, including the Republican legal system, which oriented from civil law system but not fully integrated into the general law or official Chinese customs. Before 1954, when the Constitution and Organic Law of Courts were drafted, China’s judicial system had long been used as a tool to fight the enemies of the new government, including political and criminal forces. In civil disputes where no “enemies” were prominent, they could be resolved mainly by the neighboring community (an independent organization led by the Chinese Communist Party), prominent dignitaries nearby or party leaders in the area. Even those civil cases that went to Court, involving mainly property disputes from the Agrarian Reform, divorce disputes and personal injury claims, would also be handled rather than dismissed by a judge. Formal trials were rare, and judges ignored judgments as a matter of procedure. The situation of “civil unrest” became worse during the Cultural Revolution when legal leadership prevailed.

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The rise of civil reconciliation continued until 1982 when the Civil Procedure Law of the People’s Republic of China (Trial Implementation) (“1982 Civil Procedural Law”) was finally enacted. Although the Act still emphasized reconciliation, it required a judge to enter a judgment in time if the parties failed to reach an arbitration agreement (Art. 6). In 1991, a new Civil Procedure Law was issued as the first and, to this day, the end of the Chinese code of conduct (“1991 Civil Procedural Law “), replacing the 1982 code. The new regulation has enormously strengthened the protection of the parties’ rights and the court authorities’ limitations. Given the nature of the party’s status (Art. 13), the parties have been given the right to appeal against the Court’s decision to arbitrarily dismiss and abuse the power (Art. 140), and to limit the abuse power’s appeal within the parties’ request (Art. 151). The 1991 Civil Procedural Law also reduced the importance of reconciliation by emphasizing the commitment and legitimacy of reconciliation (Art 9). Along with the Civil Procedural Law beating in 1991, there was a legal reversal by the Supreme Court of the People (“SPC”) and was widely involved by experts. Starting with the transformation of the trial process, introducing western policy concepts to Chinese legal justice, such as party submissions, party status, the enemy system and the burden of proof.

SCOPE OF CIVIL PROCEDURAL LAW

According to the Civil Procedural Law, civil disputes in China have been defined as disputes over rights and obligations arising from property, personal injury or family matters between equal parties (Art. 3). The limitation of the extent of conflicts and the emphasis on party equality are used to distinguish disputes “in administrative disputes.” Such segregation is due to the dual nature of public and private law and administrative law’s existence.

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COURT STRUCTURE IN CHINA

According to the Constitution of the People’s Republic of China of 1982 and the Organic Law of the People’s Courts that came into force on January 1, 1980, the courts in China are divided into a four-level court system (Supreme, High, Intermediate and Basic):
• At the top-most level is the Supreme People’s Court (SPC) in Beijing, the premier appellate forum of the land and Court of last resort, that supervises the administration of justice by all subordinate “local” and “special” people’s courts. It has also set up six circuit courts seat outside of the state capital, which act in the same capacity, to hear cross-provincial cases within respective jurisdiction.
• Local people’s courts—the courts of the first instance—handle criminal and civil cases. These courts make up the remaining three levels of the court system and consist of “high people’s courts” at the level of the provinces, autonomous regions, and special municipalities; “intermediate people’s courts” at the level of prefectures, autonomous prefectures, and cities; and “basic people’s courts” at the level of autonomous counties, towns, and municipal districts.
• Courts of Special Jurisdiction (special courts)- These courts comprise of Military Courts (military), Railway Transport Court of China (railroad transportation) and Maritime Courts (water transportation), Internet Courts, Intellectual Property Courts and Financial Court (Shanghai), Except for the Military Courts, all other courts of particular jurisdiction fall under the general jurisdiction of its respective high Court.

In China, judges at different court levels are regulated separately by various election, examination, and removal doctrines. According to the Judge’s Law, except for military courts, their judges will be determined by the National People’s Congress and Standing Committee of National People’s Congress, the presidents of other courts are all determined by the general assembly at the same administrative district, and the other judges are appointed according to the committee There are no rules on who has the right to nominate candidates and how to nominate them. Qualifications for a judge of all courts are the same: a Chinese nation, for more than 23 years, compliance with the Chinese Constitution, promising political and professional quality, good morals, and good health (Art. 9). Examination and evaluation of a judge is taken up by the Court in which the judge is present (Art. 21). The Court will establish a commission of inquiry and evaluation of judges (Art. 48), chaired by a Court’s presiding judge (Art. 49).

BASIC PRINCIPLES OF CIVIL PROCEDURE

The basic principles of the civil procedure are all regulated in the Civil Procedural Law. They are the principle of equal litigation rights (Art. 8), the principle of full argument (Art. 12), the principle of party disposition (Art. 13, para. 2), the principle of court’s conciliation (Art. 9), the principle of good faith (Art. 13), the principle of receiving supervision from the Supreme People’s Procuratorate (Art. 14), and the principle of direct hearing.

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The principle of equal litigation rights is considered as an embodiment of Art. 33 of the Constitution, which provides that “citizens are all equal in front of the law.” Art. 8 of the Civil Procedural Law claims that “all parties of the civil litigation shall have equal litigation rights. The people’s courts shall, when adjudicating civil cases, guarantee and facilitate all parties to exercise their litigation rights, and apply the law equally to all parties.”

The principle of full argument in China is different from the doctrine of adversary trial. It only ensures the parties’ right to make argument in trial (Art. 12), but does not request the court’s fact finding to be bound by the parties’ claims and evidence presented during the argument.

The principle of party disposition is controlled by category. 2, Art. 13 allows entities to relinquish their civil rights and court rights within a statutory jurisdiction. The principle of court reconciliation is a separate principle of the Chinese civil process. It shows the important role of reconciliation in the courts. Art. 9 asks the court to make amends in accordance with the voluntary principles and legitimacy. To avoid endless conciliation and delays in litigation, the document requires that the court make a decision as soon as possible if mediation agreements are not reached. Under this system, conciliation is carried out throughout the public process from the prosecution to the enforcement stage, from the initial proceedings to the sentencing proceedings.

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The principle of good faith is a new framework introduced by the 2012 amendment to the 1991 Civil Procedural Law to prevent the over-growth of false statements, fabrication of evidence, prosecution of consolidation and serious misconduct. The concrete use of this system, however, still needs to be studied and tested in practice.

The principle of receiving supervision from the Supreme People’s Procuratorate emphasizes the role of the Supreme People’s Procuratorate as the judiciary. Prior to the 2012 amendment, the CIVIL PROCEDURAL LAW’s provision of this policy was that “the human rights authority has the authority to administer justice in the judiciary,” limiting sentencing during sentencing. The 2012 amendment transformed it into a “public administrator with the mandate to administer the law in relation to law enforcement,” with the aim of imposing enforcement on Supreme People’s Procuratorate administration.

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The principle of direct hearing is not explicitly regulated in Civil Procedural Law. However, it was presented with concrete provision at the trial. For example, Art. 68 provides that the evidence shall be presented and examined by the parties to the court; Art.72 provides that any business or person who knows something about a case has a duty to testify in court; Art. 139, paragraph. 2 provides that with the consent of the court, parties may cross-examine witnesses, expert witnesses, and inspectors in court. In practice, however, the principle of direct hearing is not very effective. In China, each court has a judicial committee.

JURISDICTION OF CIVIL COURTS

The jurisdiction of the courts in China mainly concerns the jurisdiction by level courts and the jurisdiction of the territories. “Jurisdiction at the level of the courts,” meaning that a certain level of court has jurisdiction over a particular case, depending on the value of the case and the influence of the case. According to the CPL, the basic human court will have jurisdiction over cases that are not within the jurisdiction of the human courts at other levels (Art. 17); the middle court shall have jurisdiction over serious cases involving foreign affairs, cases with a substantial impact on the jurisdiction of the jurisdiction, and cases under jurisdiction of the internal courts as determined by the Supreme Court of the People (Art. 18); high courts will have jurisdiction over cases that have a significant impact on their jurisdiction (Art. 19); The People’s High Court will have jurisdiction over cases that have far-reaching consequences, and cases that the Supreme Court of the People’s Court considers to be a separate matter (Art. 20).

Location does not appear to be a problem in the legal case in China and is not addressed under the CPL. However, when a power dispute arises between two courts, one of which could be a fair hearing, the opposing courts must first try to resolve the dispute.[1] If the consultation fails, it will be necessary to summon a higher court with jurisdiction over both contestants to elect this forum.[2]

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In China, unlike in the United States, there is no federal-state distinction, but there is only one court system. As a result, there is no problem with the top authorities in China. Each of China’s major cities,[3] except for Beijing, Shanghai, and Tianjing, which are state-of-the-art metropolitan cities, have with two levels of court: the basic level court and the intermediate level court. The provincial high court presides over both the lower courts.[4] As in the United States, above the provincial high court, the one Supreme Court in Beijing presides over all Chinese courts.

Generally, a foreign action must be filed in a basic level court.[5] The action may also be instituted in the intermediate court if it is considered “essential,” where it may have a significant impact on the region of the intermediate court, or where the Supreme Court authorizes the central court to exercise original jurisdiction.[6] Each provincial or municipal court can also exercise its jurisdiction if the case has a significant impact on the province or its municipality.[7]

The Supreme Court has exercised its first and only authority in Chinese history, the trial of the so-called “Gang of Four and Lin Biao CounterRevolutionary Clique” in 1980. A major influence in the whole country, or where the Court believes that the conditions were otherwise appropriate in order to exercise original jurisdiction.[8]

In China, a court that has accepted the case may refer a case sua sponte to other courts if it finds that the case is beyond its control. It will refer the case to a public court that has jurisdiction over the case. Such transfers, however, can be used only once. The People’s Court where the case is being heard will accept the case and will not refer the case to a third party without permission even if it considers that the appeal is not within its jurisdiction. It will report to the high court of the wrong place and wait for the high court to appoint the appropriate lower court to exercise the power. Appointment of jurisdiction in a high court may also occur when a jurisdictional court is unable to exercise jurisdiction for a specific reason, or when a dispute over jurisdiction over civil jurisdiction is not resolved through consultation.

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Territorial jurisdiction refers to jurisdiction over cases arising in or involving persons residing within a defined territory. In China, the establishment of territorial jurisdiction is based on the defendant’s domicile, subject to certain exceptions. According to the CPL, the doctrine of jurisdiction may change from the defendant’s domicile to the plaintiff’s domicile when the defendant is in custody; the defendant of a personal status case is not in China or missing; the defendant’s household registration is cancelled;8 or the defendant’s domicile is not as clear as the plaintiff’s domicile in maintenance cases and divorce cases (Arts. 6, 22). In tort and contract cases, parties are given more jurisdiction choices. Besides courts that are located where the defendants have their domiciles, courts that are located where facts of the case occur have the authority to hear the case as well (Arts. 23, 28). In addition, the jurisdiction over certain types of disputes is specially regulated in law to exclude the domicile doctrine. Such disputes include real estate disputes, port operation disputes and inheritance disputes. The jurisdiction of these disputes is exclusive and cannot be changed by jurisdiction clauses. For real estate disputes, they shall be under the jurisdiction of the court located in the place where the real estate is located (Art. 33 (1)); for disputes concerning harbor operations, they shall be under the jurisdiction of the court located in the place where the harbor is located (Art. 33 (2)); for inheritance disputes, they shall be under the jurisdiction of the court located in the place where the decedent had his domicile upon his death, or where the principal portion of his estate is located (Art. 33 (3)).

Defendant, on or before the last day of his or her appeal, may lodge an appeal against the dismissal of the case against him or her due to lack of court authority on his or her behalf. Power opposition can only focus on power in the first court. The jurisdiction of the appellate court is determined by which court becomes the first court, and the parties have no right to challenge the appellate authority. A power objection will be determined by the decision and may usually be appealed unless it is a small claim procedure.

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CONCLUSION

Keeping its own modem of the legal process is a major undertaking in China where li traditionally overcoming fa and “law” was considered a reference only to criminal law. Indeed, according to China’s official guarantee, since the announcement of the CPL, China’s legal system has been in place. With detailed guidance on various civil laws, their use rules and many local regulations, an outsider or business appears to have better guidance on how to do and do business in China. The civil procedure law of China is undoubtedly still in its initial stage of development. The government and the society are gradually accepting the modern concepts of procedure law, and the Chinese legislation keeps learning from western institutions.

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[1] Art. 37

[2] Id.

[3] In China, a city administratively governs the surrounding counties.

[4] Again, Beijing, Shanghai, and Tianjing, each being equivalent to a province, all have high courts

[5] CPL art. 18.

[6] Art. 19

[7] Art. 20

[8] CPL art. 78 also see arts. 77, 79-84 (detailing the requirements for service of process)

 

 

Categories
Blog

New MCA Rules make Cryptocurrencies, Benami, and Loan Disclosures mandatory

By: Muskan Sharma

 

The Central Government amended Schedule III of the Companies Act, 2013 (hereinafter referred to as “Act”), which shall be applicable from April 1, 2021. The Amendment was a result of the powers conferred on the Central Government under Section 467 of the Act.

The Amendment provided that the disclosures of the loans or advances granted to the promoters, directors, KMP (Key Managerial Personnel), and related parties shall be made. The Amendment puts more emphasis on widening the scope of audit reporting. It provides that the company must use accounting software for maintaining its books, that facilitates the recording of audit trail of every transaction.

The MCA (Ministry of Corporate Affairs) via the Amendment in the rules, further provided that in respect of proceedings pending or initiated against the company for any Benami property under the Benami Transactions (Prohibition) Act, 1988, the company must make the following disclosures:

  1. Details of such properties.
  2. Beneficiaries and their details.
  3. If the property is mentioned in the books of the firm, then reference to concerned item no. in the Balance Sheet.
  4. If there is no reference of such property in the books of the firm, then facts along with reasons.
  5. When the company is an abetter or a transferor in the proceedings, then concerned details.
  6. Nature of Proceedings, Status (Pending/Completed) of Proceedings, etc.
  7. Company’s view on such proceedings.

Apart from these, the MCA (Ministry of Corporate Affairs) further provided that if the company has traded in cryptocurrency (Bitcoin) or any virtual currency, then it must disclose:

  1. Profit or loss on the transaction involving cryptocurrency or virtual currency.
  2. The total amount of currency held by the company, as on the reporting date.
  3. Deposits or Advances to/from any person for trading in cryptocurrency or virtual currency.

The RBI has also announced that it will soon launch its cryptocurrency in the financial market. Apart from this, a bill titled ‘The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021’ will be introduced soon by the Government. Therefore, it can be interpreted that after the Supreme Court’s decision in Internet and Mobile Associaton of India v. Reserve Bank of India[1], the Central Government is making efforts to recognize the digital currency market and boost the performance of India in the global financial market.

The Amendment will consequently make the corporate governance more transparent by ensuring fair procedural compliances to be followed by the companies.

 

[1] Writ Petition (Civil) No. 528 of 2018

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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Role of Technology in Law Enforcement

By: Himali Sylvester

Technological development has secured a merry place in the world today. Its development has seeped into various domains of human life and the legal discipline is no exception to this common phenomena. It can then conveniently be said that technology has now become the edifice of democratic polity. As the unprecedented Covid-19 pandemic meddled with the everyday lives of billions of people across the world, the globe turned into a remote world which could only be run by technology. In this aftermath, the utility of technology has become all the more palpable. It is now important for us to examine as to how technology has been impactful in the process of law enforcement.

Evidence Law

It is pertinent to be reminded right at the outset, that the arena of law is also largely governed by data and information. So, to begin with, electronic records serve largely in enforcing laws. With the introduction of computers, electronic writing and messaging have become common. A small benefit from technology was reaped when the definition of a ‘document’ was expanded to also include ‘electronic documents’ as under Section 3(2) of the Indian Evidence Act. This makes the enforcement of evidence law more efficacious as e-documents are easier to obtain, collect and produce before the Court. Collection of physical evidence is a time-consuming process and requires person to person contact. Understandably so, in a world shunned by an uninvited virus, avoiding physical contact is a prime concern which has been achieved by technology that allows for the procurement of electronic proof and documents. Additionally, e-documents are easier to be stored, they reduce physical space and are often more portable in comparison to physical documents. Such documents can easily be exchanged in courts as well as by lawyers and enforcement agencies in a very short span of time.

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It should be noted that the question about the admissibility of e-documents had been challenged before the hon’ble Supreme Court of India, as under Section 65-B of the Indian Evidence Act. It was then affirmed that any e-evidence or e-document produced before the Court must be accompanied by a certificate of authenticity issued by a reliable authority. It was at this juncture that Senior Advocate Jayant Bhushan said that section 65B of the Evidence Act was a “procedural provision” intended to “supplement the law” by declaring that any information in an electronic record, “is admissible in any proceedings without further proof of the original“[1]. The aforementioned statement is testimony to the fact that technology has been accepted as an essential component for the enforcement of evidence law in India.

Contract Law

The other important technological development that has helped in law enforcement is the acceptance or recognition of e-signatures as valid signatures under the Information Technology Act, 2000 (hereinafter IT Act). Signature is an imperative component for any legal work and lot of time that was invested in obtaining physical signatures has been minimized after the legalization of e-signatures[2]. It has become much more easier to enter into contracts, the process of availing attestation has become more convenient, thus, implying that the development of e-signatures as a result of technological advancement has helped in enforcing agreements.

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In the case of Tamilnadu Organic Private Ltd. & Ors. v. State of Bank of India[3], the Madras High Court observed that contractual liabilities could arise by way of electronic means and such contracts could be enforced through law. The High Court further observed that Section 10A of the IT Act enables the use of electronic records and electronic means for the conclusion of agreements, contracts and other purposes. Succinctly put, the contract jurisprudence has benefited immensely from technological progress.

A contract entered through email is valid with a second factor authentication such as PIN or Password provided that the requirements of the IT Act are satisfied. The same was held in the case of Trimex International Fze Limited, Dubai v. Vedanata Aluminium Limited[4] wherein the hon’ble Supreme Court held that unconditional offer and acceptance through emails constituted a valid contract under the Indian Contract Act, 1872. Implied contracts are also equally relevant in e-contracts. To illustrate, if an employee acts upon an e-employment contract and shows up to work and carries out her duties according to the contract, she cannot dispute the existence of a contract merely because the contract was entered into by email or other e-communication platforms. In a nutshell, it can also be said that entering into contracts has become more expedient with the emergence of advanced e-communication systems, thus, having a positive impact on the enforcement of contract law.

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Technological development however, does obscure the conventional contract law. According to contract law, an offer is considered complete when the offeree is made aware of the offer and the acceptance is considered complete as against the offeror when it is put into transmission so as to be outside the control of the acceptor and it is considered complete as against the acceptor, when it comes to the knowledge of the offeror. It must be borne in mind that such provisions were laid down at a time when sending letters and posting them, was the most common form of communication. In a world overwhelmed by emails and other social media platforms, it is often difficult to determine as to when the offer has actually reached the offeree. For instance, when an offer is made via email, when should it be considered that the offer is complete? When the mail gets delivered or when the mail is actually read by the offeree? These are confusing questions that emerge while interpreting and seeking to enforce a contract and the present contract law in most countries has not accommodated these provisions. Understandably so, the enforcement of contract law has been hindered by technological evolution as law does not change and adapt itself at the same pace as technology does.

Intellectual Property Law

Another apposite legal discipline that has been largely hit by technological advancement, is the intellectual property regime. The need for a stringent copyright law has become imperative with the advent of technology. But the question remains as to whether traditional copyright laws can be enforced to protect copyrights in a world reigned largely by technology? Scholars suggest that the growing use of computers to handle and store information could make it even harder for copyright holders to enforce their rights. This is because, copying digital information can be done at a fraction of the cost and in a fraction of the time that it takes with photocopying or analog audio or video taping[5]. Secondly, the digital nature of computer-sourced information suggests that an infinite number of copies of material can be made. Such a distinctive nature of computers makes it difficult for copyright holders to control any infringement of copyrights. Besides by appealing to consumer ethics, it is often impossible to determine, at what point can an act be considered as a violation/infringement of copyrights, while the user is still in possession of the copyrighted material.

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A rapidly growing amount of material is being made available through on-line databases. But this is  changing with other technological advances that simplify the conversion of printed text and graphics into machine-readable, digital format. Optical character readers for text input are becoming popular in offices as they are cheap and more efficient. If the costs of converting printed and written texts and graphics into computer-readable forms become cheap and it is proven that is it more efficient, such a practise will become a routine. The digital optical disk, uses lasers to record and read information off a disk and rotates at a high rate of speed, offers great potential for storing very large volumes of digitized information. Geosynchronous communication relay satellites affect the enforcement of copyright law because an increasing amount of copyrighted material is being transmitted by these systems. As of now, anyone who has a proper antenna‘dish’ and a down converter can receive the material.

Manifestly so, traditional meaning cannot be applied to the nuanced circumstances that surround copyrights, currently. The legal premise of ‘rights’ itself have changed with the technological bloom. The meaning of ‘fair use’ of those rights obviously change as duplication of copyrights is not the same with computer-mediated storage provisions. Consequently, various attributes of infringement have also changed. The legal recourse bequeathed upon the copyright holders have changed with technological progress, thus, affecting the enforcement of copyright law.

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Criminal Law

The year 2018 saw 32,700 cases of culpable homicide and murders in India and sadly, the trajectory of such cases has only been leaning upwards ever since[6]. A prudent understanding of the above statistics would suggest that criminal law enforcement needs to be expedited in order to promote security and prevent public disorder. Technology will certainly play a crucial role in enforcing criminal laws. The invention of CCTV cameras for monitoring and surveillance of public places as well as police stations has been pivotal in fending off offenses. Certain states have enacted laws to allow for video surveillance. The Karnataka Public Safety (Measures) Enforcement Act, 2017 and Andhra Pradesh Public Safety Act, 2013 make it mandatory for crowded places to provide for public safety measures which primarily includes Closed Circuit Television Surveillance (CCTV Surveillance)[7]. Both the Acts are premised upon the objective of tracking and detecting crimes and other criminal activities, indicating the role that CCTV cameras and video surveillance have in enforcing criminal laws in India.

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Video surveillance also has role in the process of investigation. In the case of Shafhi Mohammad v. State of Himachal Pradesh[8] the Apex of India directed to set up Central Oversight Body (COB) to implement plan of action for using videography in the  crime  scene during investigation. Earlier in the case of D.K. Basu v. State of West Bengal and Ors.[9], a need was also directed to have in every State an oversight mechanism whereby an independent committee can study the CCTV camera footage and periodically publish a report of its observations thereon. CCTV cameras can certainly be considered the boon of technology for the immense help that it continuous to render in curbing crime rates in India.

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Law enforcement agencies are using drones for a variety of functions providing cost-effective solutions. They can provide real-time information to police and crime investigators about crimes in progress and dangerous situations, as they unfold. It helps the police force to be prepared to face situations. The Global Positioning System (GPS) has also helped in rescuing victims as well tracking criminal suspects. Unsurprisingly so, enforcement of criminal laws has become prompt and there has been a frequent application of these laws after the invention of CCTVs, GPS systems and drone technology. These technologies sometimes do pose privacy challenges, most of which remain unaddressed even in the Justice Puttuswamy judgement. The extent to which movements and actions can be monitored and surveilled is yet to ascertained legally. Until then, the privacy discourse will continue to be debated.

Conclusion

It would be an understatement to assert that technology has a role to play in law enforcement. Technology and technological progress are pivotal for the efficacious enforcement of law. To the Indian context, e-documents, e-signatures and e-contracts are certainly developments that have aided in enforcing laws. The intellectual property regime has also begun to respond to technological advancements. But above all, if there is one domain that has benefited the most from technology, it is the domain of criminal law enforcement. Advance videography and audiography being used to monitor criminals and the same being admissible as evidence is a leap-forward in efficiently fostering the application of evidence law and criminal law.

[1] THE ECONOMIC TIMES,

https://economictimes.indiatimes.com/news/politics-and-nation/courts-can-rely-on-electronic-records-without-certificate-supreme-court/articleshow/62777759.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (last visited Feb. 27, 2021).

 

[2] Trilegal, Electronic signatures in India, ADOBE SIGNS (Feb 27, 2021, 21:46 PM IST), https://www.adobe.com/content/dam/dx-dc/pdf/uk/electronic-signatures-in-india-uk.pdf.

[3] Tamilnadu Organic Private Ltd. & Ors. v. State of Bank of India AIR 2014 Mad 103.

[4] (2010) 3 SCC 1.

[5] PRINCETON EDU, https://www.princeton.edu/~ota/disk2/1986/8610/861007.PDF (last visited Feb. 27, 2021). .

[6] TNN, Crime rates drop but not for women, kids, THE TIMES OF INDIA (Jan. 13, 2020, 16:57 IST), https://timesofindia.indiatimes.com/india/crime-rate-drops-but-not-for-women-kids/articleshow/73187216.cms.

[7] Priti Singh and Gaurav Kumar, Why am I under CCTV surveillance?, WORDPRESS (May 16, 2020), https://jilsblognujs.wordpress.com/2020/05/16/why-am-i-under-cctv-surveillance/#_ftn1.

[8] MANU/SC/0331/2018.

[9] (1997) 1 SCC 41.

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