By Mr. Abhinav Sekhri
I happened to be in the Supreme Court in February when arguments were being addressed by parties in Criminal Appeal No. 875 of 2019, Birla Corporation Ltd. v. Adventz Investments & Holdings Ltd. & Ors. (Connected with Crl. Appeal Nos. 876 of 2019 and 877 of 2019). It was a great experience as some of the country’s most famous lawyers were addressing the Court, Not on a nuanced issue of constitutional law, but on whether a High Court had erred in quashing summons issued on a criminal complaint. Remarkably, the Supreme Court concluded hearings in just a few dates, and also passed a judgment — not an interim order — a few months thereafter.
Who was before the Court, and what was at stake? Both parties in the connected matters were rival factions of the M.P. Birla family, running several business and part of the eponymous “Birla” industrial house in India. For this post, I’ll focus on the lead appeal — Birla v. Adventz, as mentioned above. Here, the rival factions had been fighting with each other for some time before different courts / tribunals. In one such proceeding (an oppression and mismanagement suit), Adventz filed a representation with documents that Birla Corp. believed it had kept under lock and key (metaphorically speaking) by them. The only way that Adventz could have gotten the papers, they believed, was by stealing them.
A complaint was filed, alleging theft from the offices of Birla Corp., claiming that some persons had entered the office premises and taken the documents. While some of the documents had been copied and kept back, some originals were still in the possession of Adventz. It was also alleged that this was a well-planned affair, involving higher-ups in Adventz, as well as those in-charge for security in the building where the Birla office was located. The complaint by Birla Corp. was filed against many accused persons, including Kumar Mangalam Birla, and alleged offences under Sections 379 (Theft), 403 (Misappropriation), 411 (Handling Stolen Property) read with 120-B (Conspiracy) of the Indian Penal Code [IPC].
A Magistrate issued summons to all accused persons in 2010, but this order was partly set aside by the High Court in 2015 — mainly because it thought that the documents copied and returned could not have been the “movable property”, which is the subject of the theft offence in the IPC. Both sides had a grievance against the High Court order: The Appellants argued that the summons should not be set aside at all, while the Respondents argued that it should have been set aside in full. These grievances were taken to the Supreme Court, where the Respondents ended up winning. The next parts discuss the legal issues on which the fate of the petitions turned.
Summoning Accused Persons — Illegalities versus Irregularities
Summoning an accused person in any case is a nascent stage in the proceedings. In challenging a summoning order and filing appeals on such preliminary issues, the underlying proceedings naturally suffer delays, which is why courts are often livid at parties for running to appellate courts challenging criminal proceedings at their inception. This is more so, because the Criminal Procedure Code 1973 [Cr.P.C.] contains inbuilt remedies allowing for courts to end cases before they reach a trial: (i) A court can refuse to take cognizance of a case finding no offence is spelled out, (ii) refuse to summon persons finding allegations are not made out prima facie, and (iii) discharge the accused persons finding that the allegations are groundless.
To ensure that immense time is not spent upon judging the veracity of proceedings right at the outset, even before hearing the accused, courts operate upon a logic of incremental scrutiny. Each successive stage of the proceedings permits the court to look deeper into the facts. Thus, while deciding whether to take cognizance of a case or not, the court is literally expected to see whether the allegations make out an offence. At the stage of summoning, we move beyond merely looking at what the allegations are to also test their soundness to determine whether they make sense. The minimal scrutiny at these stages makes sense, for till now the accused is absent from proceedings. Permitting the court to go too deep into the facts creates possibilities of prejudice against the accused even before a word might be spoken by her in court. Once the accused does appear — at the stage of charge — the scope for testing the matters is naturally greater. But there are still some limits, as courts refuse to look beyond the prosecution case and thus don’t consider the defence version of the facts. That, is reserved for trial.
In cases filed on private complaints such as Birla-Adventz, as against cases instituted after police investigations, the scope for ending cases before trial is even broader. This is because unlike cases instituted by the police involving a thorough investigation (in theory) that gives allegations an air of genuineness, private complaints are instituted by parties who are naturally biased. The scope for frivolous cases is higher, and so courts actively engage in deciding (i) whether or not to summon persons, and (ii) whether to discharge those persons who have been summoned. In fact, the scope for discharging persons is notably broader than cases instituted by the police. Here, not only does the complainant have to lead evidence to convince a court that charges should be framed, the Cr.P.C. empowers a court to end the case even before such evidence can be concluded, if it thinks that the case is baseless.
Therefore, since the Cr.P.C. is operating on a logic of incremental scrutiny at the successive stages of a proceeding, then it is only appropriate that litigants should be discouraged from jumping the gun and running to an appellate court. But this perspective is met by a powerful rebuke from accused persons stemming from a perception that they are being prosecuted unjustly. Given how court cases are often a painful slog across India, if, as an accused person, I am convinced that the case against me is baseless, why should I suffer court proceedings for even a single minute? This sense of “perceived injustice” is a common occurrence in almost all accused / defendants and leads to several thousands of petitions being filed each year which challenge criminal cases at their inception. In several hundred of these, like Birla-Adventz, appellate courts do end up being persuaded by this perceived injustice argument, and agree to end the criminal case at the inception itself.
If you think that courts have some great method figured out by which they can cherry-pick the really bad cases where they must necessarily intervene, from the average ones where regular procedure can run its course, you are horribly mistaken. The test to decide when trial courts should not have proceeded further with a case are extremely vague and end up inviting the judge to resort to an “I know it when I see it” approach. The same naturally goes for the appellate courts. In this situation, then, it frequently happens that pre-trial orders on cognizance / summoning aren’t thrown out because they’re horribly wrong orders, but because appellate courts can, and often do, ignore the incremental logic that the Cr.P.C. is built upon. Basically, while the statute tells the trial court to conduct a limited scrutiny of the facts at the stage of summoning, appellate courts go ahead and review this order by testing facts as if the court was hearing arguments on charge. In a situation like this, our two forums are now dealing apples and oranges.
I am not saying that the appellate court actively starts to overstep its brief. Rather, I am saying that tests with fuzzy lines encourage ignorance of the incremental logic; either by allowing courts to conduct a deeper scrutiny without actually saying so, or with different courts unknowingly ending up testing facts to different levels because nobody knows how much scrutiny is enough. The fact that in an appellate challenge, the accused is present and making submissions, might actually be contributing to a subconscious bias encouraging greater scrutiny.
Birla-Adventz is a case where this problem—of balancing delays with perceived injustice—is on full display. The delay was manifest: a 2010 order was challenged in the High Court which passed a judgment in 2015, during which time the trial did not progress, and then that High Court order was challenged in the Supreme Court which took another four years to decide. Thus, for nine years, the underlying complaint case remained in suspended animation. In the Supreme Court, the focus of arguments on behalf of the Respondents — who wanted the summons to go completely — was that the magistrate had not scrutinised the allegations sufficiently enough, and a thorough scrutiny showed that the allegations are baseless. In effect, they were asking that the Court use a magnifying glass to view the case at a stage when the law only allowed to look at it with the naked eye. Or, to bring it in context of the Cr.P.C., they were asking for arguments on charge at the stage of summoning itself.
Pause for a second here. A case in which the legal system had invested almost a decade of time and public money is ultimately thrown out because two people (the Supreme Court) are convinced that in issuing summons, the magistrate did not do his job properly, and they disagree with two other people (the magistrate and the High Court Judge) who did think that (to different extents) the magistrate did do his job properly. And during all this time, all that is guiding decision-making at all these three levels of the legal system is a test that calls upon judges to intervene when they know it is a good or bad case. I am all for procedural rights, but frankly, this is a cruel joke. The setting does not resemble the rule of Law but resembles the very rule by authority that a legal system is designed to replace.
Are we doomed to forever remain in this land of hopeless arbitrariness where the Birlas of the world can hire the right lawyers and convince courts of their perceived injustice to end trials, while many other cases with equally serious kinds of injustice, are allowed to continue to trial? Of course not. There are many solutions that one can think of — and I have argued in favour of some elsewhere — but one solution exists within the Cr.P.C in Chapter 35 which discusses “Irregular Proceedings”. Sections 460to 464 explain the kinds of issues which can, and cannot, lead to termination of proceedings. And on top of this, there is Section 465 Cr.P.C., which says that no order by a competent court can be reversed unless the party challenging it can show that it occasioned a “failure of justice”. Though this is also a vague notion, but at least it makes everyone aware that there must be something beyond a pure technical flaw that must subsist to throw out a case. Repeated use of this provision will also end up giving courts the chance to give “failure of justice” more definite contours as well.
The Issue of Theft — Was it Better Left Alone?
In Birla-Adventz, there was really no reason whatsoever for the Supreme Court to say anything further after it had decided to set aside the summoning order because it found the magistrate had not inquired into the case properly. Yet, true to form, the Court went on to the other issue — whether or not documents copied and returned could be the subject of theft. Reading the passages beyond page forty-six of the judgment, one thinks it would have been best had the Court left this alone.
The Court gave an unequivocal ruling on the most obvious of the issues — that documents can be the subject of theft. But then, it floundered on the question of whether there was theft in this case. The offence, as defined under Section 378 IPC, requires very little in terms of actual conduct: A person must move some movable property without consent of the person in whose possession the property is. But this movement must be in order to take it, with an intent to dispossess that person dishonestly. “Dishonestly” is a technical term in Indian criminal law. It is defined in the IPC as conduct that either causes wrongful loss to someone, or wrongful gain to someone [Section 24 IPC].
If a person takes my papers without my consent, and let us assume that there is no doubt over my right over the papers and the absence of my consent, then that naturally results in causing wrongful loss to me. The same conclusion makes sense in the facts of Birla-Adventz. But the Court did not reach this conclusion, because it found that the ultimate purpose of this taking of papers was to use them for defence in a litigation. In confusing the dishonest intention that guides a person’s conduct with the larger motive for which that conduct was performed, the Court made an elementary error of confusing motive with intention. Remember, Jean Valjean stole the bread to feed his sister’s starving children, and yet he was branded 24601, all because motive does not replace intent.
Fortunately, this is obiter, and should not be relied upon in subsequent decisions. But given how the most irrelevant of utterances from up-high in New Delhi end up being used authoritatively in courts below, I really worry about the kinds of problems this little excursion into the law of theft causes on the ground.
Birla-Adventz offers a snapshot view of many of the problems that affect Supreme Court litigation, especially on matters of Indian criminal law and procedure. It reminds us how the Court can get the most basic things wrong—conflating motive with intention in this case. But more importantly, the judgment focuses attention on the broad standards installed in criminal procedure to regulate judicial discretion at various stages. The vast space for argument afforded by the broad standards in criminal procedure, does not end up being filled up by legal principles that can be applied consistently across the board, but by hollow words that allow judges to do as they please by clothing it with sufficient legalese.
To put it bluntly, the vagueness of the standards often ends up getting concretely defined across class-lines, with the propertied, moneyed, politically correct persons getting a different kind of justice from minorities, persons without means, or persons who are politically, incorrect. The former class ends up getting summoning orders set aside to avoid trials and go home peacefully, while poor Muslims / anti-national intellectuals stay in jail while being accused of crimes that almost always end up in acquittals at trial. And in all of these cases, it is the people who are the victims in this entire scheme, as taxpayers bear the costs brought about by lengthy pre-trial delays and trials in cases that should have been thrown out much before.
Having better standards to regulate judicial discretion, and better remedies to decide what happens if there are errors, is therefore another critical component to consider while thinking about how to make our criminal justice system work better for the future.
[Mr Abhinav Sekhri is a criminal lawyer based out of Delhi. This blog-article was first posted on ‘The Proof of Guilt’ on May 24, 2019.]