Negotiating with Constitutionality: Retention of the Reverse Onus Clause in Sec. 35 of the NDPS Act

Nixon in 1968: drug abuse is “public enemy number one.” “In order to fight and defeat this enemy,” he continued, “it is necessary to wage a new, all-out offensive.” With that statement, the “war on drugs” began. John Ehrlichman, a top Nixon aide (1994): The Nixon campaign in 1968, and the Nixon White House after …

Capital Punishment: Mitigating Factors in Light of The Biopsychosocial Model

- This blog has been authored by Anmol Yadav. The author is 3rd year student of B.A. L.LB. (Hons.) at Faculty of Law, Banaras Hindu University, Varanasi.  In the complex discourse surrounding capital punishment, the consideration of mitigating factors becomes paramount, particularly when viewed through the lens of the Biopsychosocial Model. This interdisciplinary framework, encompassing biological, …

Can Companies Commit Homicide: Navigating Corporate Criminal Liability in Cases of Homicide

- This blog has been authored by Vansh Bhatnagar and Gunjan Sharma. The authors are 4th and 2nd year students of B.A. L.LB. (Hons.) at Rajiv Gandhi National University of Law, Punjab, respectively. Introduction The world today is governed by the centers of economic power. In the modern format of heavy reliance on private companies in …

Is the Liability of the Abettor Concomitant to that of the Principal Offender?

                                             ~ Diya Gaur Introduction Abetment is not direct commission of an offence but the facilitation of one. It is an expression of intentional support for the fulfilment of an act which would constitute an offence under the Indian Penal Code, 1860. Inclusion of abetment as an offence under the Indian Penal Code underpins the fact …

Assessing Enforcement Directorate’s Powers in Combating Money Laundering: Legal Analysis and Recent Judicial Developments

                                            -By Gurman Narula “Economic offences, need to be viewed seriously and considered as grave offences affecting the economy of the country and thereby posing serious threat to the financial health of the country”.  This article critically examines the Enforcement Directorate's (ED) exercise of authority under the Prevention of Money Laundering Act (PMLA), delving into …

The Section 187 Dilemma in the New CrPC

-Prasun Nabiyal Last week, the centre presented its revised version of the new CrPC Bill (also known as the “Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 ”) in the Parliament. The purpose of such revised editions is to incorporate changes suggested during the legislative process. These changes may arise out of any phase of the legislative …

Unconstitutionality of Premature Release: Examining the Abuse of Remission Policies

-Shruti Mishra Introduction Premature release entails a prisoner’s release before the completion of his judicially ordained sentence. States may grant premature release to convicts owing to several factors, as laid down in the case of Bir Singh v. State of Himachal Pradesh, which includes good conduct by the prisoner, no commission of jail offence, prisoner’s …

The 283rd Law Commission Report – Better If Not Implemented

- Vedant Choudhary The Law Commission of India in its 283rd report, titled, ‘Age of Consent under the Protection of Children from Sexual Offences Act, 2012’ has recommended against amending the age of consent under the POCSO Act. This negative recommendation comes in light of growing cases of romantic relationships between minors, where de facto …

SECTION 311A CRPC: UNEXPLORED ARENA OF POSSIBILITIES OF ARREST AND PRE-TRIAL DETENTION

~ By Khushi Neb On the suggestion of the court in the case of Ram Babu Mishra v. State of Uttar Pradesh, where the court extensively examined the need for enacting legislation along the lines of Section 5 of the Identification of Prisoners Act, Section 311A, CrPC, that focuses on the magisterial power of ordering …

SEDITION IN THE NEW PENAL CODE: A COMPARISON

This blog has been authored by Anshuman Jhala and Vatshal Raval. The authors are 3rd year BSc LLB students at Gujarat National Law University. Introduction The Indian Penal Code [“Code”] can trace its origins back to the British colonial era. The necessity for the establishment of a complete and standardised criminal law system in British India …

Right to Counsel During Police Interrogation: An Analysis

~By Paras Khetan The right to counsel of an accused has been constitutionally guaranteed under Article 22 of the Constitution of India. This right is available to the accused during the trial. However, the question arises whether the same is available to the accused at the time of police interrogation. There is ambiguity with regards to the …

Denial of Sanction under Prevention of Corruption Act: A case for Expansive Interpretation

~ By KV Kailash Ramanathan & Vasishta Ganapathi K Introduction Incurring the ire of stakeholders prejudiced by their actions is an inexorable professional hazard in the life of public servants. Whether these acts are rectitudinous or condemnable, someone is aggrieved in the oft zero-sum game of governance. Mercy, while being a quality worthy of Shakespearian …

NUTRITION BEHIND BARS: ELIMINATING FOOD AS A MEANS OF PUNISHMENT [Part II]

~By Jugaad Singh Part I of the Blog dealt with the historical context and the legal background pertaining to prison food in India. Part II of the blog will be tackling the introduction of the Modern Prison Manual of 2016 as well as providing a global perspective of the problem along with possible solutions.  THE …

NUTRITION BEHIND BARS: ELIMINATING FOOD AS A MEANS OF PUNISHMENT [Part I]

~By Jugaad Singh "No one can understand the reality of the prison experience until they've actually walked in the shoes of those who are incarcerated." - Bryan StevensonExecutive Director, Equal Justice Initiative INTRODUCTION Considerations about the quality, quantity and nutritional value of prison food are not something a person who has never been incarcerated loses sleep …

On POCSO and the Need for a Balancing Act to Navigate the Quandary Posed by Consensual Adolescent Relationships

~By Vasundhara Mehta Introduction  Recently, during my time at the chambers of the Hon’ble Mr Justice S. Ravindra Bhat, Judge, Supreme Court of India, I encountered the quagmire posed by consensual adolescent relationships in India. Almost every day at the Apex Court, I would hear the advocates state that the ‘victim’, a minor girl has …

Bail in Cases of Cyber-Crimes under the Information Technology Act, 2000: A Critical Re-Evaluation of the Penal Framework.

~By Parth Kantak INTRODUCTION This piece deals with the issue of bail in the cases of the cyber-crimes given in the Information Technology (IT) Act, 2000. It has been a relatively muted issue however a really pertinent one due to the impact that it has on the investigation of cyber-crimes, which is an extremely crucial stage …

Legal Moralism and the Case for Decriminalising Abortion in India

~By Niveditha K Prasad Introduction The recently introduced Bharatiya Nyaya Sanhita, 2023 (‘BNS’) has been touted for introducing wide-scale changes in the penal statute. Disappointingly, the Bill, under Section 86 and the corresponding Explanation, retains the criminalisation of abortion. As I argue in this piece, the Section ought to be revised as the criminalisation of abortion has …

Solidifying the Perspective of Obscenity: A Closer View to the Quandary

~By Mr. Parth Birla and Mr. Garv Arora INTRODUCTION “Nudity should not be tied to sex. The mere sight of the naked upper body of the woman should not be deemed to be sexual by default.”  The Kerala High Court in its judgment has made an aberration from the patriarchal view on the autonomy of women. The …

Right of the Dead: Analysing the Legal Framework for Necrophilia in India

~By Tanya Verma Necrophilia, characterized by the pursuit of sexual satisfaction through engaging in sexual acts with corpses, has undergone a significant transformation in societal perception. The recent acquittal by the Karnataka High Court (HC) of a man accused of sexually assaulting the lifeless body of a 21-year-old woman following her murder highlights the concern regarding the …

Unfettered power of police to conduct investigation: can police be obligated to seek magistrate’s permission while conducting further investigation

-Navjot Punia Section 173 (8) of the Criminal Procedure Code, 1973 (“1973 Code”) deals with the discretion of the police with respect to conducting further investigation even after a report has been forwarded to the magistrate under sub-section (2). Though no such specific requirement of taking prior permission of court while conducting further investigation is …

The Hidden Dagger: Unraveling Defamation by Innuendo

-Aparimita Tiwari An Introduction In the intricate tapestry of human society, our image and reputation hold immense value. It takes years of dedication to build a commendable reputation, yet its delicate existence can be shattered in an instant. This universal phenomenon is particularly evident in collectivist cultures, where individuals would go to extreme lengths, even …

Machine Culpabilis: Assessing the Viability of Holding AI Criminally Liable

-Vedant Saxena Introduction ‘M3gan’, short for ‘Model 3 Generative Android’, is the latest in the line of movies involving Artificial Intelligence (AI) models going rogue. ‘M3gan’, hailed as a ‘marvel of artificial intelligence’, is an AI humanoid doll created by a skilled roboticist, Gemma, to give her recently-orphaned niece, Cady, a human-like companion to fill …

The Conundrum of Women being Prosecuted for Gangrape

- Rushil Batra On 13.02.2023, a single judge bench of the Allahabad HC gave a rather interesting judgment in the case of Suneeta Pandey v State of UP wherein it held that women can be prosecuted for the offence of gang rape under Section 376D of the IPC. This conclusion is interesting since generally rape as an offence is seen …

Justice in Courts of Inquisition? The Delhi High Court on UAPA Remand Extensions

A person should not be condemned without knowing why. One would think that this precept is not a point of debate in the legal system of a constitutional, democratic, republic. After all what personifies the shift from a culture of impunity and subservience to one of justification than the ability of individual citizens to ask …

EXECUTION OF DEATH SENTENCE AFTER TREATING MENTAL ILLNESS

-Madhav Aggarwal INTRODUCTION The Supreme Court in its recent judgement in the case of Manoj v. State of MP laid down guidelines to be adhered to in cases pertaining to offences that can lead to a death sentence. It held that for sentencing, the jail authorities must produce a contemporaneous psychological and psychiatric report of …

Money Laundering and Predicate Offences – The Aftermath of Vijay Madanlal Chaudhary

-Rushil Batra Introduction In 2022, the Supreme Court gave its much-awaited pronouncement in the case of Vijay Madanlal Chaudhary v Union of India on various aspects of the Prevention of Money Laundering Act, 2002 (PMLA)– inter alia the constitutionality of PMLA, conditions for bail, and the role of the Enforcement Case Information Report (ECIR). The …

A Not So ‘Fair’ & Lovely Criminal System

-Sofia Dash & Ahan Gadkari Introduction The recent Criminal Procedure (Identification) Act, 2022 (“CP Act”) has spurred nationwide debates amongst human rights activists and the government officials. The CP Act, which aimed at replacing the archaic Identification of Prisoners Act, 1920,permits law enforcement officers to collect identifiable information of all convicts, arrested persons, and detainees, …

Section 167, ‘Default Bail’, and its Cancellation

- Abhinav Sekhri Recently, a Division Bench of the Supreme Court delivered its judgment in Central Bureau of Investigation v. T. Gangi Reddy [Crl. Appeal No. 337 of 2023, decided on 16.01.2023; "Gangi Reddy"]. The CBI had gone up to the Supreme Court against an order of the Andhra Pradesh High Court from March, 2022, and what it wanted was to …

‘SHOWN ARREST’: A PRACTICE TO BE NIPPED IN THE BUD

-Sakshi Komal Dubey Arrests are so fundamental to how we view law enforcement; we frequently assess the effectiveness of the police by the number of arrests they make. The Code of Criminal Procedure, 1973 (“Code”) does not define the term “Arrest”. Having no standard definition, however, it can be defined as, when an officer takes …

MISTAKE OF LAW DEFENSE: A TOOL FOR SAVING INNOCENTS FROM INCARCERATION

-Srinjoy Debnath INTRODUCTION             For an act to be criminal, a person should not only commit an offense but should also have mens rea or guilty mind; but what happens when someone commits an illegal act but did not have the knowledge that it was criminal or illegal? The maxim Ignorantia Juris Non Excusat which …

“Uncovering the Implications of Recording Information in Criminal Justice System: An Analysis of Section 154 of the Criminal Procedure Code “

-Himanshu Ranjan Introduction The recording of ‘information’ under Section 154 of the Criminal Procedure Code (hereinafter referred to as Cr.P.C) is one of the most important procedures, which  inter alia sets in motion the criminal justice system as and when a cognisable offence is committed. Section 154, Cr.P.C is the inaugural provision of Chapter XII- …

Judicial Quandary on ‘Police Officers’ Under Section 25 IEA and Special Statutes

-Aarushi Jain Recently, the apex court in Tofan singh v. State of Tamil Nadu held that the horizons of Section 25 of the Indian Evidence Act, 1872 (hereinafter 'IEA') extend to the statements recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter 'NDPS Act'). The definition of 'police officer' under …

Procedure in the Trial of Counter/Cross cases

-Nehaol Sri L V Two criminal cases with conflicting versions arising out of the same incident are called as counter or cross-cases[2]  These cases represent opposing views of the same incident happening at the same time and space, and are usually seen at the level of trial courts. There is no standard definition or procedure …

On the Bombay High Court granting bail to the Kochhars

-Abhinav Sekhri The Bombay High Court has re-affirmed the most elementary legal position — the mere power to do something does not act as a justification for doing it. That its order of 09.01.2023 directing the release of Deepak Kochhar and Chanda Kochhar by granting them interim bail on this very premise has generated such a buzz …

CHALLENGING THE LEGALITY OF REMISSION IN BILKIS BANO CASE

- Anushka Satya and Nishant Kumar In 2019, the Supreme Court judge bench of the then Chief Justice of India, Justice Ranjan Gogoi, and Justices Deepak Gupta and Sanjiv Khanna, has observed that “It is very apparent that what should not have happened has happened and the state has to give compensation”. This statement is remarkable because a …

A Cross-Country Caper and Constitutional Criminal Procedure

-Abhinav Sekhri "He was a humble man who shunned publicity and lived a quiet life. He was born in Cologne, Germany ... [and] came to America as an immigrant with a middle school education. ... He bought his first building in Los Angeles when he was 21, an endeavour that bloomed into a real estate …

Evaluating Externment: Does the Anachronistic ‘Exile’ Continue to be an Effective Practice?

-Avanti Deshpande Introduction In January 2022, a Division Bench of the Supreme Court set aside an order of externment against a man from Maharashtra who had been externed from the Jalna district for a period of two years, holding that, an order of externment was not an ordinary measure, but an extraordinary one, and it …

Circumstantial Evidence as a Mitigating Factor

- Nidhi Agrawal Sec. 354(3) of the Code of Criminal Procedure in 1973 introduced the requirement of courts to record “special reasons: for their choice of the death penalty or life imprisonment or imprisonment for a period of time if the offence provided for alternative offences. Rajendra Prasad v. State of Uttar Pradesh provided the first interpretation of “Special Reasons” …

Interpreting Sanction for Prosecution under UAPA in the light of GN Saibaba verdict

-Devvrat Singh and Nishita Gupta Introduction The Supreme Court recently stayed an order of the Bombay High Court discharging Professor G.N. Saibaba in an alleged Maoist links case under the UAPA (Unlawful Activities Prevention Act). The effect of the order was that professor Saibaba who happens to be wheelchair bound and suffering from 90% disability …

Restricting Anticipatory Bail under the Atrocities Act

-Saranya Ravindran Section 438 of the Code of Criminal Procedure [CrPC] empowers the Sessions Court and the High Court to grant anticipatory bail, i.e., the direction to release a person on bail in the event of an arrest on a non-bailable offense. Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities …

Addressing the Right of Female Prisoners (to Bleed): Menstrual Management Behind the Bars

-Ms. Lovleen Sharrma & Sakshi Komal Dubey Introduction As per the Prison Statistics India Report, 2021 the figure of prison inmates in women’s jails adds up to 3,808. The Women In Prison Report, 2018 which sought to study the condition of women prisoners highlighted that the prison population increased drastically, and had therefore created challenges …

The Mens Rea of Fraud: Lessons from the Great White North

-By Shreyas Sinha Introduction The Latin term ‘mens rea’ refers to the mental element of a criminal act, i.e., a legally-determined state of mind required to convict an individual of a criminal offence. A person can be said to possess the requisite mens rea vis-à-vis a criminal offence when – (1) they are aware that …

Taking a Closer Look at the Criminal Procedure Identification Act & Rules

~By Abhinav Sekhri The Criminal Procedure Identification Act, 2002 ["CPIA"] was passed this April amidst significant criticism [see, for instance, here, here and here]. The issues identified with this law were across a wide spectrum — the attack on the right to privacy, the uncertain status of the forensic 'science' at play, the lack of clarity in terms of implementation. Some …

Evaluating the Judicial Interpretation of Section 102(3) of Cr.P.C

~By Mansi Pandey Introduction Section 102 of the Criminal Procedure Code (hereinafter referred to as ‘Cr.P.C.’ or the ‘code’), deals with the power of the police officers to seize “any property” that is either stolen or creates a suspicion of commission of the offense. Further, the police shall report the seizure to the Magistrate forthwith. It …

Preserving the silence: Different spheres of Section 313 CrPC and Article 20(3) of the Indian Constitution

~By Pragun Goyal Introduction Section 313 of the Criminal Procedure Code, 1973 (“CrPC”) has a profane silhouette around it. After the prosecution has closed its evidence, the accused is given an opportunity to explain the incriminating matter in evidence against him or her. No matter how bleak or scanty the prosecution evidence is, the court has to provide an opportunity …

Bail under PMLA: Comprehending the SC’s Imprimatur in Vijay Madanlal Choudhary vs UOI

~By Devvrat Singh and Nishita Gupta Introduction  The Prevention of Money Laundering Act (hereinafter referred to as PMLA) was enacted in 2002 and since then it has undergone several amendments. The stated object of PMLA was to combat money-laundering activities and confiscate the properties involved in or connected to the act of money laundering. Several …

Time for a Seven-Judge Bench Reference to resolve the FIR conundrum?

~By Abhinav Sekhri On 12.08.2022, the Supreme Court in XYZ v. State of Madhya Pradesh & Ors. [Crl. Appeal No. 1184 of 2022] set aside an order of the Madhya Pradesh High Court, and directed that a First Information Report ["FIR"] ought to be registered under Section 154 of the Criminal Procedure Code, 1973 ["Cr.P.C.'] by the local police on the …

Old Wine in New Bottles? – The Judgement in Vijay Madanlal Choudhary (Part Two)

~By Abhinav Sekhri The previous post in this two-part series considered how the Supreme Court's judgment in Vijay Madanlal Choudhary & Ors. v. Union of India & Ors. [SLP Crl. No. 4364 of 2014; Judgment dated 27.07.2022 ("Vijay Madanlal Choudhary") dealt with the offence of money laundering under the Prevention of Money Laundering Act 2002 ["PMLA"]. This post turns its lens to how the judgment …

Reverse Burden of Proof and its Implications on Presumption of Innocence

~By Pragun Goyal The presumption of innocence of the accused is an esteemed 'golden thread’ in the criminal jurisprudence which is fundamentally tied to a reputation-related aspect of the accused in the criminal trial. The raisons d'être of this aspect is that no one can impute guilt to the accused before he is convicted beyond …

Of Old Wine in New Bottles – The Judgement in Vijay Madanlal Choudhary (Part One)

~By Abhinav Sekhri After marathon hearings, the Supreme Court finally pronounced its judgment on 27.07.2022 in a batch of over 200 petitions where the legality of various provisions under the Prevention of Money Laundering Act, 2002 ["PMLA"] had been challenged. This judgment — bearing the title Vijay Madanlal Choudhary & Ors. v. Union of India & Ors. [SLP Crl No. 4364 …

Prakash Industries and Interpreting the PMLA

~By Abhinav Sekhri The Delhi High Court has passed a detailed judgment in the matters of Hi-Tech Mercantile and Prakash Industries [Order dated 19.07.2022 in WP(C) No. 14999 of 2021 ("Prakash Industries"], touching on issues pertaining to the Prevention of Money Laundering Act 2002 [“PMLA”]. Holding in favour of the Petitioners and terminating the PMLA proceedings, the High Court …

The Most Recent Clarifications to the Supreme Court Bail Guidelines

~By Abhinav Sekhri On July 11, 2022, the most recent clarifications were issued by the Supreme Court in respect of the bail guidelines which it had first issued in October, 2021 [MA No. 1849 of 2021 in SLP (Crl) 5191 of 2021, titled 'Satender Kumar Antil v. CBI' (Order dated 11.07.2022)]. This blog had covered the guidelines in October, …

8 years since “Arnesh Kumar Guidelines” what has changed ?

- Prakhar Bajpai Arnesh Kumar serves to be the landmark judgement in the judicial history of India. The Supreme Court in this judgment made it clear that police must follow the “investigate first and then arrest” doctrine in the cases that are registered under section 498-A. The offence registered under Section 498-A of Indian Penal …

Predictive policing: A criminal justice tool that threatens human rights

-By Sahajveer Baweja Predictive policing is an application/tool that is supported by artificial intelligence technology. These tools are currently used by investigation wings and law and order agencies in many nations to curb the crime from taking place. Such applications work on the concept of using sets of data quantities which are processed by analytical …

Identity Hunt: The Criminal Procedure (Identification) Act Needed more debate

By Kartik Shrivastava Introduction On 18th April this year, the President of India gave his assent to the contentious Criminal Procedure (Identification) Act, 2022. The Act was passed in both the Houses of Parliament on 6th April by a voice vote. The Act seeks to replace the 102-year-old colonial law on collecting "measurements" of the …

Returning to Barendra Kumar Ghosh – Part 2

By Niharika Mukherjee Assessment of Common Intention under Section 34 In its previous part, this article traced the development of the law, following the Privy Council’s decision in Barendra Kumar Ghosh v King Emperor, on the nature of participation required to hold an individual liable under Section 34 of the Indian Penal Code 1860 [IPC]. …

Returning to Barendra Kumar Ghosh- The Group Liability Conundrum (Part 1)

By- Niharika Mukherjee (This article forms the first part of a two part series) Introduction This article shall review the case of Barendra Kumar Ghosh v King Emperor,  with a focus on its interpretation and application of Section 34 of the Indian Penal Code, 1860 [“IPC"]. In this part, the article shall, first, shall briefly …

Rethinking our Perspectives to Criminal Obscenity- From Moralism to Harm Principle

By Vidhi Srivastava Introduction Legal Moralism is a criminalisation theory that advocates employing criminal law to penalise immorality per se and ‘wrong’ conducts, irrespective of whether they adversely affect others.[1]  In India, ‘obscenity’ has been viewed from the lens of morality and decency. The law is embodied in s. 292 of the IPC. This provision …

Marital Rape through the lens of Judicial Activism in India

By Srushti S Kekre & Udisha Surana A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife” -Justice M. Nagaprasanna The prevalence of marital rape in India emanates from the archaic doctrine of coverture where a wife is considered as …

On Section 91 Notices and the Razorpay Furore

By: Abhinav Sekri Razorpay, a payments platform, got a request under Section 91 of the Criminal Procedure Code 1973 [Cr.P.C.] from Delhi Police asking it to furnish information in connection with an ongoing investigation in connection with the journalist Mohammad Zubair and the fact-checking platform Alt News. From news reports and public statements made by parties concerned, it appears …

Possession Offences: Of Strict Liability and The Indian Judiciary’s Take

By: Kajal Jamdare Introduction The recent flux of headlines about celebrities and star kids being found in possession of drugs prohibited by law has brought the issue of possession offences to limelight in India. Another, often ignored case of possession offences in India is the detention of individuals for possession of fire-arms and ammunitions. Many …

Comparing the Procedure of CrPC with PMLA

By: Aryaman Kapoor Introduction The Code of Criminal Procedure of 1973 [‘CrPC’] is applicable to the whole of India for investigation, inquiry and trial of every offence which is committed under the Indian Penal Code and most statutes which regulate offences that are criminal in nature. However, when it comes to the offence of money …

The “Presence of the Accused” Requirement under Section 34 of the IPC: An Analysis

By: Ria Goyal Introduction The Indian Penal Code (hereinafter referred to as “IPC” or “the Code”) contains several provisions imposing joint or constructing liability upon members of groups for criminal acts committed in furtherance of common intention. These sections do not create any distinctive offences – rather, they act as evidentiary principles rendering every person …

Why the Delhi High Court is Wrong to Deny Satyendar Jain his Right to Counsel

By Abhinav Sekhri It appears that by an interim order passed on 03.06.2022, the Delhi High Court has stayed operation of a portion of an order passed by the Trial Court whereby it had directed that Satyendar Kumar Jain, who has been arrested by officers of the Enforcement Directorate and remanded to their custody for ten …

Resolving corporate successor liability through substantial continuity

By: Shailendra Shukla Introduction The 21st century has seen a meteoric rise in the commission of white-collar crimes, which can be attributed to the rapid pace of technological advancement. Now, money can be transferred to any part of the world in seconds. Additionally, there is increased interconnectivity across the globe, which gives miscreants access to …

Extending Privileged Communication to Live-in Partners: Protecting Mutual Trust

By: Saumya Shankar & Pratik Rath Section 122 of The Indian Evidence Act states that spouses shall not be allowed to reveal any communication between them, except with the consent of the other. The bar is not just limited to communications of a confidential character rather, the provision is applicable to all communications between the …

Victims and Bail — The Judgment in Jagjeet Singh v. Ashish Mishra?

By Abhinav Sekhri In a much-publicised judgment, the Supreme Court set aside the order granting bail to the main accused in the Lakhimpur Kheri incident from October 2021 [Jagjeet Singh & Ors. v. Ashish Mishra & Anr., Crl. Appeal 632 of 2022 (decided on 18.04.2022) ("Ashish Mishra")]. At the outset, it would be necessary to clarify that the court …

Criminal Procedure (Identification) Bill 2022: A Necessary Evil?

By Nishant Kumar INTRODUCTION The Criminal Procedure (Identification) Bill, 2022 got the approval of the President on April 18, 2022. The bill replaces The Identification of Prisoners Act, 1920 which allows the collection of identifiable information like fingerprints, footprints from the convicts. The primary motive cited behind the introduction of the bill is to increase …

Plea Bargaining: A Comparison Between USA And India

By: Aditi Roy & Sanjana Gupta I.         Introduction Indian courts are bludgeoned under the growing number of criminal cases. The chronic delay in disposing of the cases has led to prisons filled with prisoners who are incarcerated without undergoing a trial. It was in response to this dismal status quo of the justice system that …

Indefinite Incarceration of Approvers — In Need of Necessary Amendments

-By Abhinav Sekhri Prologue: The Budget Leaks of 1956 Aschara Lal Mehra was, presumably, one of many Sales Managers in Bombay's Mercury Paints and Varnishes Ltd.; a pre-independence firm which continues to exist today. Perhaps Mehra was dissatisfied with the income Mercury Paints gave him, because when he was introduced to one Davinder Pal Chadha from …

Lalita Kumari, and Police Discretion at the Stage of Registering an FIR

By Abhinav Sekhri Six year old Lalita Kumari went missing from near her house on the night of May 5, 2008. When she did not come back, her father filed a missing persons report. A week later he was told that his daughter had been abducted, and so he filed a complaint with Police Station …

Errantry — Further thoughts on the new Criminal Procedure (Identification) Act

By: Abhinav Sekhri As expected (mostly), parliament passed the Criminal Procedure (Identification) Bill 2022 in double quick time without referring the bill to a committee. It is disheartening, given the obvious flaws that are present in the Bill, but in an environment where courts are unable to hear matters pertaining to important matters of constitutional law …

A Peculiar Problem Posed by the J&K Reorganisation?

By: Aman Saraf The legal framework regulating Jammu and Kashmir can in recent terms be adequately referred to as protean and erratic – and for good reason. Post the Constitutional Order 273 passed by the President declaring that Article 370 of the Constitution of India ceased to be operative (barring the applicability of the Constitutional provisions to …

Victims and Bail — The Judgment in Jagjeet Singh v. Ashish Mishra

By: Abhinav Sekhri In a much-publicised judgment, the Supreme Court set aside the order granting bail to the main accused in the Lakhimpur Kheri incident from October 2021 [Jagjeet Singh & Ors. v. Ashish Mishra & Anr., Crl. Appeal 632 of 2022 (decided on 18.04.2022) ("Ashish Mishra")]. At the outset, it would be necessary to clarify that the court …

THE SUDDEN FIGHT EXCEPTION: AN ANATHEMA TO CRIMINAL LAW?

By: Hritik Merchant (This article is a Part I of the submission.)                                                                                             I. Introduction Exception 4 to Section 300 of the Indian Penal Code, 1860 (“IPC”) posits that if a person dies in a sudden fight with the accused, the accused’s culpability will be reduced to culpable homicide not amounting to murder (“the sudden fight …

Setting the paper tiger free – Bail provisions and UAPA

-Sanjana Gupta & Aditi Roy Introduction Bail can be termed as the procurement of a person’s release from legal custody through an undertaking that one shall remain present at the designated time and place and submit himself to the Court. Bail can be denied only in exceptional circumstances and has to be given as a …

PRACTICE OF WITCH HUNT IN INDIA: FALLACIES IN STATUTES AND EXIGENCY FOR A CENTRAL LEGISLATION (GENDER-BASED VIOLENCE)

By: Aditi Pandey INTRODUCTION Women as individuals have been victimized in various manners including gender-based violence which is solely justified as culture. Whereas, it is nothing but the supremacy of men over women through established “patriarchy” in the society. As a result, there exists tremendous trauma to women both on physical and psychological levels. According …

Envisioning admissibility of wearable devices in Indian Courts

Rishabh Saumya and Gayatri Singh Introduction The leap of technology from our desk to our wrist is quite remarkable. From measuring our heartbeat to calculating our footsteps, wearable devices, gradually, are becoming an essential fitness accessory among health-conscious folks. These activity tracking devices are equipped with wearable technology and are marketed for their health tracking …

Prosecutorial fair disclosure – A concept conveniently swept under the carpet?

By: Chaitanya M. Hegde Introduction Recently, when the process of framing charges had begun in the Elgar Parishad case, the accused filed a plea before the Bombay High court seeking stay of the trial as certain vital materials relied by the NIA was not provided to them. This once again has shed the light on …

Whether Apprehension of death on account of COVID a valid ground for anticipatory bail?

By: Srishti Gupta Introduction Recently, the courts have been adapting to new set of circumstances and leaning towards bail to decongest prisons. Due to COVID-19 outbreaks in detention centers, courts are rethinking whether pre-trial custody is necessary to maintain public confidence in the criminal justice system. In a recent Allahabad High Court order, anticipatory bail …

Cyber-crime and Bulli Bai App:

Where do we draw the line? Priyanshi Jain & Preeti Bohra Introduction India’s internet user population is increasing tremendously. However, the gender imbalance on the internet is an ever-existing challenge. Patriarchy operates consistently when a woman often comes across as invading a man’s cyberspace, primarily when they express their views on politically sensitive issues. At …

RECONSIDERING THE CASE OF NEHA V. VIBHOR GARG

By Aayushi Swaroop Introduction In Neha v. Vibhor Garg, a divorce petition was filed pursuant to which the husband produced the telephonic conversation of the wife to establish the case of cruelty by the wife. To this, the High Court stated that the same is an infringement of the right to privacy of the wife …

TRANS RIGHTS AGAINST SEXUAL OFFENCES IN INDIA: IS PROTECTION FROM RAPE STILL A FAR CRY?

By: Aprajita Tyagi Though the existence and acceptance of transgender persons have long been recorded in ancient Indian texts, the recognition of their legal rights is a recent occurrence in the country. It was only in 2019 that the Indian Parliament enacted the nation’s first legislation, namely the Transgender Persons (Protection of Rights) Act, 2019 …

Zero FIR: purview, analysis and propositions

By: Ridhi Aggarwal and Vedant Bisht Although the term First Information Report (“FIR”) hasn’t been explicitly mentioned in the Code of Criminal Procedure, 1973 ("CrPC”), S.154 of CrPC provides for the process of registering the information relating to the commission of a cognizable offence. The concept of Zero FIR eliminates the barriers of territorial jurisdiction …

Stand-Up Comics & The Imbroglio of Criminal Complaints

By Arundhati Rajput Introduction Vir Das, an Indian Stand-up comic, has yet again become the center of vehement criticism as his monologue: ‘The Story of Two Indias’, has stirred opposing sentiments. In this monologue, the comic portrayed India in a sagacious manner having an undertone of satire. However, several lawyers and political leaders felt that …

The crime of possessing or viewing child pornography: Cannot always agree on who is harmed?

By: Martin Kwan John Stuart Mill’s harm principle is one of the most common justifications for the criminalization of a certain conduct. In simple terms, the principle provides that acts that cause harm to others should be criminalized. Naturally, the aim of the offences involving child pornography would be to prevent harm to children – …

Why we need to strengthen Child Welfare Committees

By: Ann Sarasa K R India’s devastating second wave has wreaked havoc on lakhs of people across the country, and the statistics are disheartening. In an affidavit submitted to the Supreme Court, the National Commission for Protection of Child Rights (NCPCR) showed that over 30,000 children lost either one or both parents or were abandoned …

TAKING BACK JUSTICE: A CRITICAL APPRAISAL OF SECTION 321 OF THE CRIMINAL PROCEDURE CODE

By: Milind Malhar Sharma INTRODUCTION Public Prosecutors play important roles like representing the state and are charged with proving the guilt of the accused in the criminal justice system.. This points us towards an interesting set of questions – should public prosecutors be allowed to withdraw criminal cases from prosecution leading to potential criminals not …

Major Bank Frauds: A Need For A Rethink Of ‘Offences Against Property’ In The Indian Penal Code

By: Meghana Senthil Introduction India has witnessed multiple major bank frauds over the course of the last decade. As per the Annual Report of the Reserve Bank of India (“RBI”), the reported bank fraud cases have increased by 159% in value during the fiscal year of 2019-2020. The increased complexity and costs involved in them …

An Analysis of Mitesh Ashokbhai Chunavala v. State of Gujrat – using Section 482 as a Backdoor for Reinforcing Patriarchal Norms in Rape Trials

By: Shivani Mody Introduction The Chief Justice of India, while hearing the case of Mohit Subhash Chavan v. State of Maharashtra, asked a rape accused to marry the victim in order to potentially reduce punishment for the offence, which resulted in widespread backlash and condemnation. However, the truth is that such deliberations are not new …

CCTVs Cameras in Police Stations: A Comprehensive Step to deter Custodial Violence?

By: Nishant Nagori ‘Panopticism’, one of Foucault’s most intriguing concepts on surveillance is premised upon the Panopticon, a prison where guards are positioned within a central tower to employ surveillance on all the inmates. This creates a conscious sense of ‘permanent visibility’ amongst the ones under surveillance, eventually leading to internalized authority and self-discipline. This …

Consent in Section 375 is Superior to Consent in Section 90

By: Manas Agarwal and Ritu Bhatiya Introductory Remarks The absence of consent is a sine qua non element of the offence of rape involving people above the age of 18. This paper focuses on one such category of consent, which is consent based on the promise of marriage. Two provisions of the Indian Penal Code …

Conspiracy: The Substantive Offence (Part I)

By: Abhinav Sekhri [This article is a second part of a conspiracy series.] Over the next two posts, we will discuss the substantive offence of conspiracy. We will first  try and identify what purpose is this offence of conspiracy designed to serve, its costs and benefits,  and only then turn to the Indian statutory provisions …

“The Unscrupulous”: Invariably and Unalterably Criminals? (Part II)

-By Akanksha Singh [The article is the 2nd part of a two-part series] Not all psychopaths are criminals/serial killers If we again consider the example of the above mentioned fictional characters of Sheldon Cooper and Villanelle, for anyone who has watched the shows, it is evident that Sheldon Cooper is far from engaging in any …

Conspiracy: Introducing the series

-By Abhinav Sekhri [The article is the first part of a conspiracy series] It would not be an overstatement to suggest that the idea of conspiracies has come to underpin almost all prosecutions where more than one person is accused of an offence, be it a blockbuster case (Elgar Parishad, Delhi Riots, Kerala Gold Smuggling, …

“The Unscrupulous”: Invariably and Unalterably Criminals?

-By Akanksha Singh [The article is the first part of a two part series] Theophrastus, one of Aristotle’s disciples, was probably the first person to ever write about psychopaths, calling them ‘the unscrupulous’, which precisely translates to ‘someone having or showing no moral principles; not honest or fair’. These people lack the ordinary connections that …

Violation of Principles of Fair Trial in Rape Cases – Part 2

By: Bipasha Kundu [This article is the second part of a two- part series.] II.                “Instant Justice” meted out in the Disha Rape Case is no Justice at all Another horrifying incident that shocked the nation was the Disha rape case. A 26year old veterinary doctor in Shamshabad, Telangana, was brutally raped by four men …

Violation of Principles of Fair Trial in Rape Cases – Part I

By: Bipasha Kundu [This article is a part one of the two part series] Abstract Rape is one of the most heinous offences; unfortunately, the principles of fair trial are violated in such cases due to various factors. The occurrence of such cases leads to enormous public outrage. Such outrage often finds its way into …

WHAT IS THE EXTENT OF PROSECUTORIAL IMMUNITY ACCORDED TO JUDGES & PUBLIC SERVANTS? ANALYSIS OF SECTION 197, CrPC.

-By Devansh Pandit INTRODUCTION: Complete or partial immunity from lawsuits accorded to the members of judiciary or those exercising powers on behalf of the state, is not a novel concept. For example, no civil or criminal cases lie against the British Crown, or those exercising powers on their behalf; The United States itself accords prosecutorial …

SIDDHARTH V. STATE OF U.P. – Doing away with unnecessary custody

By: Kapil Devnani and Ashutosh Kumar Introduction                      “I would like to be remembered as a person who wanted to be free and wanted other people to be also free.” This famous quote by Rosa Parks presents the true value of the Right to liberty, and it would not be wrong to say that the framers …