Section 251 CrPC and Discharge in Summons Cases: Part IV

By Abhinav Sekhri [This is Part IV in a multi-part series. The previous posts can be accessed here, here and here] The issue being discussed in this series has been given a sense of urgency, because a trial court in Delhi was pressed to make a reference under Section 305 of the Criminal Procedure Code 1973 [Cr.P.C.] to…

Absence of bodily injury implies consent(?) in rape cases…

By Deeksha Sahni The High Court of Punjab and Haryana in a recent decision in Union Territory, Chandigarh v. Amit Kumar @Rachu & Others passed a very absurd statement to refuse to grant Leave to Appeal against the judgment of acquittal in a rape case. The Court opined that since there were no injuries on…

Section 251 CrPC and Discharge in Summons Cases: Part III

By Abhinav Sekhri [This is Part III in a multi-part series. The previous posts can be accessed, here and here] The previous post in this series traced how the statutory text pertaining to the procedure for trial in Summons Cases developed from 1861 till the late 1960s. This historical arc was traced to identify how, at different points…

Attempt to Suicide : A Comparative Study of Indian Laws vis-a-vis Singaporean and Sri Lankan Laws

By Sneha Sanyal Introduction Suicide is a non-fatal self-directed potentially injurious behavior with an intention to die. This intention can be triggered due to numerous factors such as Psychiatric illness, Depression, Other mental disorders, Sexual/physical abuse (inclusive of childhood adversities), Abuse of alcohol/drugs, Stressful life events such as loss of loved one, imminent criminal prosecution,…

Section 251 CrPC and Discharge in Summons Cases: Part II

By Abhinav Sekhri [This is Part II of a multi-part series. The previous post in this series is here.] The previous post teased the issue of whether magistrates have the power to end criminal proceedings in Summons Cases at a stage prior to acquittal / conviction, after the magistrate has gone ahead and summoned the accused…

Decoding the UAPA Amendment Act: A Death of the Rule of Law?

By Mansi Gupta Introduction On August 2, 2019 the Parliament passed Unlawful Activities (Prevention) Amendment Bill, 2019 seeking amendment in the Unlawful Activities Prevention Act (UAPA), 1967. This bill allows the government to declare ‘individuals as terrorists’ as opposed to the previous law which allowed only organizations to be labelled as ‘terrorist organizations’ but not…

The Problematic Case of Sanctions Under Section 188, CrPC: Filling the Void

By Tanishk Goyal Introduction The extraterritorial application of Indian statutes abroad is something which has been the subject matter of debate for quite some time. To this effect, Section 4 of the Indian Penal Code (‘IPC’), and Section 188 of the Code of Criminal Procedure (‘The Code’), provide for the extra territorial application of Indian…

Section 251 CrPC and Discharge in Summons Cases: Part I

By Abhinav Sekhri Very recently, the Delhi High Court received a reference under Section 395 of the Criminal Procedure Code, 1973 [Cr.P.C.] to clarity certain issues of law. The matter has been registered as Crl. Reference No. 4 of 2019. The issues presented to the High Court are detailed in the order of 11.10.2019, and are extracted below: Does…

Analysis of the Supreme Court Judgment in CBI v. M. Sivamani

By Aastha Gangwal Introduction The prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence has been discussed under Section 195 [“Section”] of the Code of Criminal Code, 1973 [“CrPC”].  It can be broadly categorized into three parts. Section 195(1)(a) deals with…

P. Chidambaram v. Directorate of Enforcement: A Lost Opportunity?

By Udayan Tandan and R. Harikrishnan Recently, the Supreme Court in P. Chidambaram v. Directorate of Enforcement (hereinafter ‘Chidambaram’), had the occasion to consider the scope of Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (hereinafter ‘PML Act’). To give a brief background of the case – In 2007, INX Media…

Rape as a Hate Crime

By Vedangini Bisht Some researchers prefer to call hate crime a misnomer. Because going solely by the literal meaning of the term, it would refer to a crime which is motivated by hate, when actually there is not hate, but prejudice involved, although there is no saying that there cannot be an overlap in them….

Law of Sedition and the Kedarnath Singh Test: A Confusing Paradox

By Ritwik Sharma On 19th September 2019, the Supreme Court issued a notice in the backdrop of the Jharkhand High Court’s refusal to quash the FIR registered under the sedition law against four Adivasi activists for allegedly inciting violence through Facebook by supporting the ‘Pathalgadi’ movement of the Munda tribal community. In August 2019, an…

The Conundrum of Certification of the Electronic Evidence

By Ayush Mishra Introduction The Supreme Court recently referred the question of ‘requirement of certificate under §65B(4) of the Indian Evidence Act,1872 being mandatory for production of electronic evidence’ to a larger bench.[1] The issue at hand is that the Supreme Court in Shafhi Mohammad vs. State of Himachal Pradesh (2018), held that the “requirement of…

Science in Policing: The New Old Thing

By Abhinav Sekhri Recently, the Home Minister made an interesting public speech where he reportedly lamented the poor conviction rates. An official report of his comments also notes that the Minister suggested that wholesale changes to the Indian Penal Code of 1860, and Criminal Procedure Code of 1973 were on the cards to help make things better on the conviction…

The Supreme Court Order in P. Chidambaram v. ED: Some Thoughts.

By Abhinav Sekhri A Two Justices’ Bench of the Supreme Court has decided the appeal filed by P. Chidambaram against an order of the Delhi High Court dismissing his plea for Anticipatory Bail in an ongoing investigation being conducted into what is being labelled as the “INX Media Scam” [Crl. Appeal 1340 of 2019, decided…

Human Trafficking: The Wound that has Failed to Heal

By Ritika Goyal “Imagine having all of your freedoms taken away, being forced to work against your will, and constantly living under the threat of violence.” This is the plight of around 40.3 million victims of human trafficking worldwide who are compelled for prostitution, pornography, sex tourism, drug peddling, organ removal, adoption, armed conflicts, coerced…

The Delhi High Court Order in P. Chidambaram v. ED: Three Thoughts

By Mr. Abhinav Sekhri  This week saw the arrest of a former Union Minister, P. Chidambaram, in connection with allegations of corruption and money laundering in what has popularly been called the “INX Media” case. In this post, I’m not interested in the arrest itself — the pageantry of which has already attracted much discussion…

The Question of Justice: Fair Trial, Approver Witnesses and Accused’s Rights

By Bhaskar Kumar and Prannv Dhawan   The legal and political commentariat has been buzzing with the controversy over the reasons and methods regarding the arrest of former Finance Minister, Mr. P. Chidambaram. While many have been critical of the unusual haste in the arrest of Mr. Chidambaram, several analysts have suspected that this could…

Is the 2019 Amendment to the PMLA “Retrospective” in its Operation?

By Sameer Sharma I had written a short article recently on the amendments to the Prevention of Money-Laundering Act, 2002, and as to how these amendments clarify the conception of what money-laundering constitutes. Now, with the INX Media case involving money-laundering allegations against former Union Finance Minister Mr. P. Chidambaram pending before the Supreme Court,…

Compensation to Rape Victims- A Critical Analysis.

By Sandhya Gupta The criminal law of any country is the basis to punish the public wrongs done by an individual as well as to act as a deterrent for the society. The criminal law deals with various categories of crimes and their respective punishments/penalties. In India, one such category is the sexual offenses against…

Is PMLA Being Retrospectively Applied in the INX Media Case?

By Bhaskar Kumar   Introduction The provisions of the Prevention of Money Laundering Act, 2002 [“PMLA” or “the Act”] have again caught attention when Dr. A.M. Singhvi argued that the Act is being retrospectively applied in ongoing INX Media case involving Mr. P. Chidambaram. Dr. Singhvi asserted that Mr. Chidambaram could not be tried for an…

Brazil: Discrimination Against the LGBTQ Community is a Penal Offence.

By Raj Krishna and Snehil I. INTRODUCTION AND BACKGROUND  On 13th June 2019, Brazil’s Supreme Federal Court by a majority of 8 to 3 declared discrimination based upon sexual orientation and gender identity a criminal offence under the Brazilian hate crime law of 1989 (Law 7716 of 1989). Initially, the Brazilian law recognized discrimination only…

Under-reported Interpretation of Rape via Prism of Criminology.

By Amreen Tapadar and Deeksha Sharma As loathsome and obnoxious the concept of inflicting pain on non-consenting parties to derive sadistic pleasure appears to one, the actuality in cases of rape is the application of sexual sadism. Unfortunately, the justice system prevailing in our nation has opted for discounting the criminology behind rape and has…

Identifying the Juvenile: Is Age the Correct Criterion?

By Khushboo Agrawal The significance of the Juvenile Justice system comes to surface because of the incapability of the juveniles to understand the nature and consequences of their acts. Subjecting these juveniles to the normative criminal justice system may be deleterious. For bringing these juveniles under the justice system, they must first be identified. Various…

The Public Prosecutor & the Child Victim

By Vrinda Aggarwal Justice has been viewed as a triangulation of three interests – the interest of the accused, represented by the defence attorney, the interest of the society to punish a crime, represented by the public prosecution (PP) and the interest of the victim, which often remains unrepresented.[i] This article aims to discuss this…

Stealthing as Post-Penetration Rape

By Bhaskar Kumar In a recent Canadian case, the Ontario Superior Court of Justice held that non-use of a condom against a participant’s wishes would amount to rape as it robs a partner of his or her liberty to engage in sexual relationship as per the agreed terms and conditions. In this case, the woman…

Anticipatory Bail and Jurisdiction

By Mr. Abhinav Sekhri Suppose you are ordinarily a resident of Delhi, but come to know that a case has been filed (or is about to be filed) against you in Mumbai, alleging you committed non-bailable and cognizable offences such as “Cheating”, punishable under Section 420 of the Indian Penal Code 1860 [IPC]. Your law-savvy friends tell…

Conducting Trials ‘In Absentia’

By Sanjana Hooda INTRODUCTION TO THE CONCEPT The core objective of a criminal trial is to strive towards the attainment of justice and to ensure that the rule of law is maintained. The presence of the accused, in order to be submitted to trial, is indispensable to the foundation of any judicial system and is…

Dimple Happy Dhakad and Normalising Preventive Detention

By Mr. Abhinav Sekhri “Preventive Detention” is a phrase that is inextricably bound with the history of the Indian Constitution. The Constituent Assembly affirmed the power for future governments to pass such laws, and only later got around to debating the restraints surrounding them. As a result, despite Article 22 having been inserted to serve…

Dear Politicians, Kindly Halt the Hate!

By Muskaan Joshi “In cases of xenophobic and communal lynching, one person’s body becomes a site of history.” -Prof. Upendra Baxi Current day politics in India is showmanship that revolves around balderdash ideologies of caste and religious identities [1]. Complementing the same are the legislative and political measures which have in a way created bias…

Constitutionality of Reverse Onus Clauses Under POCSO Act

             By Kavya Lalchandani Reverse onus clauses are usually found in criminal statutes where the burden of proving innocence is shifted on to the defendant or the accused after certain foundational facts have been proven by the prosecution. Under the POCSO Act, Section 29 and 30 deal with reverse onus…

Crime as a Choice: Crime and Economic Conditions

By Ratakshi Sarvaria In early societies, when resources were limited, the law of nature was based on survival of the fittest. The early exponents found crime in the conflicts of behavioural norms and saw crime as being rooted in “poverty, misery and depravity.”[1] As societies developed and money gained importance, it is safe to say…

The Necessity of Mandatory Audio-Video Recording under S.161 of CrPC

By Vani Kaushik S.161 of the Code of Criminal Procedure (“CrPC”) lays down the rule of examination of witness by the police. It states (relevant portion): “a police officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case”.[1] S.161(2) provides that persons being examined are required to…

Kanojia Gets Bail: A Strange Kind of Justice

By Mr. Abhinav Sekhri Prashant Kanojia was arrested for posting a tweet about a political personage. He did not abuse, use names, or anything of that sort. He posted a link to another story that was carried in the news about the claims of another person, about having an affair with the said personage. People were not up in…

Restrictive Bail Conditions in Indian Criminal Procedure: Lessons From History

By Mr. Abhinav Sekhri The law on bail in India has often been discussed on [The Proof of Guilt]. Most recently, we analysed the Indian Supreme Court’s decision in Zahoor Watali, which revolved around Section 43-D of the Unlawful Activities Prevention Act 1967 [UAPA]; the provision which imposes conditions upon grant of bail in UAPA cases that go beyond…

The Criminal Justice System of England & Wales: A Critical Analysis of the Requirements of Disclosure & Burden of Proof

By Ankur Jhunjhunwala   The Disclosure Regime Post the 1990’s, the disclosure regime has been described as the ‘battleground of the justice system.[1]It is fundamental to the aspect of a fair trial and prevention of wrongful convictions, and non-disclosure has historically often lead to miscarriages of justice.[2] There was a large amount of academic commentary…

Constitutional Validity of Section 376-E of the Indian Penal Code

By Vishwa Patel Introduction Recently, the Bombay High Court, while dismissing the appeal from the convicts of Shakti Mill gang-rape case, ruled on the constitutional validity of the Section 376-E of the Indian Penal Code (hereinafter referred to as IPC) in Mohd. Salim Mohd. Kudus Ansari v. State of Maharashtra & Anr. The said provision…

Analysis of Female Offending in India

By Sahil Malhotra Abstract Male and female offenders are not treated equally in India. Judges often go beyond the law and apply social and cultural biases in determining whether a female suspect is liable, and in sentencing her if convicted. This article discusses various such biases and the consequences of their application in the judicial…

Intertwining Poverty and Crime: The Indian Bail System

By Arvind Pennathur Being kept in jail is a traumatic experience that has the potential to cast a shadow over an individual’s identity, and change them for worse. However, the law has created a solution to this: the bail system. It enables prisoners to be free upon furnishing security to ensure their presence during legal…

A Case on Silence: Dissecting the Right to Silence of an Accused

By Akash Mukherjee Introduction The right to silence is a vital right of the accused recognized by the law around the globe. It germinates from the right to protection against self-incrimination embodied in the Indian Constitution under Article 20(3). It is buttressed by the cardinal principle of criminal law that it is the duty of…

From Complainants to Consumers – A Perversion of the Criminal Process

By Mr Abhinav Sekhri Consider a scenario. Geetha loaned her friend Swati a sizeable sum. A year on, Geetha starts asking her friend to repay the loan. She sends many texts, but Swati doesn’t reply to a single one. Frustrated, Geetha comes to you, her friendly neighbourhood lawyer, for some advice on how to proceed…

Examining the Constitutional Safeguards Against ‘Surveillance State’

By B.V.S. Aditya Santosh and Siddhant Tomar INTRODUCTION The Union Ministry of Home Affairs’ terse Statutory Order dated December 20, 2018 (SO) garnered sharp reactions from the political community, cyber security experts and advocates of internet freedom, against what they perceived was an attempt at mass surveillance. The SO cemented the ideology that it provides…

Deporting Rohingyas: Questioning the Correctness of the Decision

By Raj Krishna INTRODUCTION On 4th of October, 2018, a three judge bench of the Supreme Court of India refused to stop the deportation of seven Rohingya refugees to Myanmar. These men had entered the Indian territory in 2012 without valid documentation. As a result, they were prosecuted under The Foreigners Act, 1946 for illegal…

Digitalizing the Procedural Law

By Shubhalakshmi Introduction The justice system in India has only very recently begun undergoing certain changes in order to incorporate the rapid change which has occurred due to the increasing use of technology and internet transactions. This paper will look at some of the changes that have taken place through judicial decisions, as well as…

When Rape Charges are Dropped: A Victim’s Dilemma and a Rapist’s Escape

By Jennifer Maria Dsilva Background According to the National Crime Records Bureau of India, the crime rate against women is 55.2%.[1] As seen in many judgments, including Mukesh and Another v. State (NTC) of Delhi & Ors.,[2] the rapist was given the death penalty seeing the brutality of the crime. Despite various laws and mechanisms…

Plea Bargaining: The Panacea for Indian Criminal Justice System

By Shantanu Parmar “The law is a cudgel when necessary and a balm where appropriate” – Stewart Stafford Introduction The legal system of any state warrants evolution as newer concepts are formulated to ensure the swift implementation of justice. This attains paramount importance as the inevitable development of society increases recourse to the courts, which…

Arrested for Playing PUBG!

By Nitesh Mishra “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.” – Charles-Louis de Secondat, ‘The Spirit of the Laws’ Introduction Recently, the Gujarat Police has arrested some students found playing Player Unknown’s Battleground, popularly known as ‘PUBG’ in Rajkot. It…

An Appeal for Victim Impact Assessment

By Sanyukta Biswas As is the case with most jurisdictions around the globe, victims of crime were lost in judicial oblivion for a really long time in India as well. The framers of the Constitution dedicated two long well drafted articles for the well-being of the accused, namely, Article 20 and 22, whereas their victims…

Tracing the Development of Plea Bargaining in India [Part II]

By Varsha Gulaya Note: This work has been divided into two parts. The first part discussed the initial response of Indian courts to the applicability of plea bargaining, till the time it was finally given acceptance. The second part discusses various Law Commission reports in this regard along with the incorporation of this concept into…

Tracing the Development of Plea Bargaining in India [Part I]

By Varsha Gulaya   Note: This work is divided into two parts. The first part discusses the initial response of Indian courts to the applicability of plea bargaining, till the time it was finally given acceptance. The second part will go on to discuss various Law Commission reports in this regard along with the incorporation…

The Eyewitness Enigma: A Paradox in the Law of Evidence

By Riya Sharma In criminal law cases, convictions in India take place on the basis of whether the prosecution is able to establish the facts beyond reasonable doubt. The aim of the prosecution is to reconstruct facts of a past event through direct, indirect and corroborating evidences. Eyewitness testimonies are an account of the events…

The Supreme Court of India: An Uncertain Hangman

By Vivek Punia   Introduction The Constitution of India guarantees multiple rights to its citizens. All other fundamental rights are secondary to the ‘Right to Life and Liberty’ as all such rights cease to exist once the life extinguishes. Therefore, the fact that death penalty is an irreversible form of punishment demands that the standards…

Time for ‘Sedition Go Back’!

By Sumeysh Srivastava In “Gadar: Ek Prem Katha”, there is a nationalism packed scene where Sunny Deol’s character, Tara Singh, is being asked to convert to Islam so that his iniquitous Pakistani Father-in-Law (Amrish Puri) can accept him and allow him to be with his wife and kid. In this legendary scene, Tara Singh approves…

Passion Crimes and the Gender Perspective

[Divya Kumar is a third-year law student at National Law University, Jodhpur] “Human behaviour flows from three main sources: desire, emotion and knowledge”       – Plato   Human beings are distinct from all other species of life due to the distinct features of emotion and reason they possess. A Chinese proverb states, “control your…

Bail: An Enigma in Uttar Pradesh

[Gaurav Pathak is associated with VAS Global and practices law at New Delhi.] The Allahabad High Court in September 2018 amended its 10-days bail notice period rule and changed it to 2 days. This notice period means that no bail application will be placed before the High Court until two days have elapsed from the date of…

Legality of Internet Shutdown Under Section 144

[Radhika Malpani is a third year law student at National Law University, Jodhpur.] Introduction With the increase in the reliance on internet for every single detail, its significance in today’s world is not less than a necessity. It helps in imparting information and knowledge to masses and has become an indispensable way of communicating opinions…

Mandatory Minimum Sentences: Over Criminalization?

[Jayesh Karnawat is a third-year law student at National Law, University, Jodhpur.] “Is justice best served by having legislatures assigning fixed penalties to each crime? Or should legislatures leave judges more or less free to tailor sentences to the aggravating and mitigating facts of each criminal case?[1]” Indian scenario Currently in India, there are no structured…

Is Money Laundering an Independent Offence?

[Udayan Tandan was formerly a legal consultant at the Enforcement Directorate and currently practices law at New Delhi. R. Harikrishnan was formerly a law clerk to Hon’ble Justice A. K. Patnaik, Supreme Court of India and currently practices law at the High Court of Kerela. The authors also wish to extend gratitude to Ms Chayanika Saxena…

What Ails the Criminal Justice System of India?

[Vishavjeet Chaudhary is an Assistant Professor at the O. P. Jindal Global University, Sonipat.] (The Times of India) For any liberal democracy, it is imperative that the justice system works well. It is one of the defining traits of any mature democracy and hallmark of a free country. We have much to celebrate. Being a…

Penal Populism: The Deadly Power of Their Opinion

[Preeti Gurnani is a law student at the National Law University, Jodhpur] ‘Democracy which began by liberating men politically has developed a dangerous tendency to enslave him through the tyranny of majorities and the deadly power of their opinion.’ – Ludwig Lewisohn, The Modern Drama, p. 17 In very simple words, penal populism refers to…

Unconditional Wait for Yamraj…

[Kritika Parakh is a third-year law student at National Law University, Jodhpur.] Suicide is perceived as a crime since long, perhaps even before the development of the legal systems in the world. The most prominent reason is the religious belief that suicide is a sin. Since the fundamental structure of the legal systems worldwide was…

The Death Penalty – An Investigator’s Point of View

[Mr. Bruce Sackman is a private investigator specializing in healthcare-related matters in New York City. Currently, he is President of the Society of Professional Investigators Inc., and has recently co-authored a book titled Behind the Murder Curtain] “We hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased…

Is Cassation Limited by Law a Bar to Effective Justice?

[Evangelos Stasinopoulos is currently a Judge at the Athens Court of First Instance, Greece] The present article provides an analysis of the provisions regarding the right to appeal to the Supreme Court of Greece (called ‘Areios Pagos’), which have been deemed as a bar to the effective justice delivery system by the European Court of…

Decriminalizing Adultery: The Sole Itinerary with the Supreme Court

[Preeti Joseph is currently a Teaching Assistant at National Law University, Jodhpur (India)] A five-judge constitutional bench of the Supreme Court of India, on 27th September 2018, gave its decision in the case of Joseph Shine v. Union of India[1] and declared Section 497 of the Indian Penal Code [“IPC”] that criminalized adultery as unconstitutional….

Sports E-betting: Legal!

[Achal Mittal is a third year law student at National Law University, Jodhpur] Gambling primarily refers to gambling activities taking place in physical premises, defined as “gaming or common gaming houses”.[1] Gambling activities have enjoyed an enormous popularity amongst Indians. A 2011 report by KPMG has estimated India’s overall gaming market to be worth Rs….

Mr. Criminal Defamation: Ain’t you unconstitutional?

[Anmol Jain is a third-year law student at National Law University, Jodhpur.] This work concerns the case of Subramanian Swamy v. Union of India,[1] wherein the Supreme Court of India upheld the constitutionality of criminal defamation.[2] The crux of the dispute, in this case, was whether imposing criminal liability on a private individual for defaming…