lexology-social-media.png

Rights of Accused Before and After Arrest in India

As per Article 21 of the Constitution of India, “No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India”. It also covers a just and fair trial without any arbitrary procedure, which confers that arrest should not only be legal but also justified. In this context, this article consists of the procedural and constitutional rights of the accused before and after the arrest in India. Except when exceptions are created, the accused person, unless and until provided otherwise, is considered innocent until proven guilty before the court of law. 

Rights of an accused person 

Rights to know the grounds of arrest 

1. Article 22 of the Constitution of India deals with the protection against arrest and detention in certain cases-

  • No person who is arrested shall be detained in custody without being informed, as soon as possible, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice.

2. Section 50 of the Code of the Criminal procedure (Cr.P.C.) states that the person arrested has to be informed of the grounds of arrest and his right to bail- 

  • Every police officer or other person arresting any person without a warrant shall forthwith communicate to him full particulars of the offense for which he is arrested or other grounds for such arrest.
  • Where a police officer arrests without warrant any person other than a person accused of a non-bailable offense, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

3. Section 50-A of the Code of the Criminal procedure (Cr.P.C.) talks about the obligation of the police officer making the arrest to inform about the arrest to a nominated person –

  • Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person to give such information.

4. Section 55 of the Code of the Criminal procedure (Cr.P.C.) deals with arrests when a police officer deputes a subordinate to arrest the accused without a warrant.

  • When any officer in charge of a police station or any police officer making an investigation under Chapter XII requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest order in writing, specifying the person to be controlled and the offense or other cause for which the arrest is to be completed and the officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order. 

5. Section 75 of the Code of the Criminal procedure (Cr.P.C.) provides that the police officer or other person executing a warrant of arrest shall notify the substance thereof to the person to be arrested and, if so required, shall show him the warrant.

A landmark judgment of Joginder Kumar vs. state it was held that although the police had the absolute legal powers to arrest a person in a criminal case, every arrest had to be justified. Arrests could not be made routinely, merely on an allegation or a suspicion of their involvement in a crime.

Every arrest should be made after the police officer reached a reasonable satisfaction after the Investigation that the complaint was genuine and bona fide, the accused was complicit in the Crime, and the arrest was necessary and justified. 1 

Right to be produced before the Magistrate without unnecessary delay 

1. Article 22 (2) of the Constitution of India provides that every person who is arrested and detained in custody shall be produced before the nearest magistrate within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of detention to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

2. Section 55 of the Code of the Criminal procedure (Cr.P.C.) stipulates that the subject to the terms of the arrest, a police officer who arrests without a warrant should produce the arrested individual without undue delay before the Magistrate with jurisdiction or a police officer in charge of the police station. 

3. Section 76 of the Code of the Criminal procedure (Cr.P.C.) states that the person who is arrested is to be brought before Court without delay. 

  • The police officer or other person executing a warrant of arrest shall without unnecessary delay, bring the person arrested before the Court before which he is required by law to produce such person: 

Provided that such delay shall not, in any case, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court. 

Rights to be released on Bail 

Section 50 (2) of the Code of the Criminal procedure (Cr.P.C.) states that where a police officer arrests without warrant any person other than a person accused of a non-bailable offense, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf. 

Right to a fair and just trial 

Article 14 of the Constitution of India states that every person is equal before the law means that every person in the dispute shall have equal treatment. 

The Supreme Court has held in several judgments that a speedy trial is guaranteed by Article 21 of the Constitution. The right to a speedy trial is first mentioned in that landmark document of English law, the Magna Carta. In the case of Huissainara Khatoon vs. Home Secretary, State of Bihar, the Hon’ble court held that the State could not avoid its constitutional obligation to provide a speedy trial to the accused by pleading financial or administrative inability. The State is under a constitutional mandate to ensure a speedy trial, and whatever is necessary for this purpose must be done by the State. 2 

In Ashim vs. National investigation agency, Hon’ble Supreme Court held that the deprivation of personal liberty without ensuring a speedy trial is inconsistent with Article 21 of the Constitution of India. 3 

Right to consult a Lawyer 

1. Article 22 of the Constitution provides that no arrested person shall be denied the right to consult a legal practitioner of his choice. 

2. Section 41D of the Code of the Criminal procedure (Cr.P.C.) provides that when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation.

3. Section 303 of the Code of the Criminal procedure (Cr.P.C.) deals with the rights of the person against whom proceedings are instituted. Any person accused of an offense before a Criminal Court or against whom proceedings are created under this Code may be defended by a pleader of his choice.

4. Article 39 A of the Constitution of India states that the State shall secure that the operation of the legal system promotes justice based on equal opportunity and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen because of economic or other disabilities.

In the landmark case of Khatri v. the State of Bihar, Hon’ble Justice P.N. Bhagwati made it mandatory for Session Judges to inform the accused of their rights to free legal aid and to advise individuals if they are unable to retain a counsel to defend themselves caused by poverty or destitution. 4 

In Sheela Barse v. Union of India, the Hon’ble Court ruled that a person’s fundamental right to a speedy trial is contained in Article 21 of the Indian Constitution5 . 

Also, in the case of Suk Das v. Union Territory of Arunachal Pradesh, Hon’ble Justice P. N. Bhagwati stated that India has many illiterate people unaware of their rights. As a result, it is critical to developing legal literacy and awareness among the general public and is also an essential component of legal aid. 6 

5. Section 304 of the Code of the Criminal procedure (Cr.P.C.) provides that where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defense at the expense of the State.

Right to keep silence 

When a confession or statement is made in court, the magistrate must determine whether the announcement was made voluntarily or not. No one can be compelled to speak in court against their will. The right to remain silent is not recognized in any law, but it can be based on constitutional provisions or the Indian Evidence Act. The right to a fair trial is important because it helps ensure that people are treated fairly in court.

Article- 20(2) of the Constitution of India reiterates that no person, whether accused or not, cannot be compelled to be a witness against himself. This act of exposing oneself is the principle of selfincrimination.

In the Landmark judgment of Nandini Sathpathy vs. P.L. Dani & others, the Court noted that Article 20(3) existed in the form of general fundamental right protection and was available to every accused person in India. Still, its wording was not very specific about which situations it applied to. Also, no one can forcibly extract statements from the accused, and the accused has the right to keep silent during interrogation (investigation).

Right to be examined by a Doctor 

Section 54 of the Code of the Criminal procedure (Cr.P.C.) stipulates that when a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody, that the examination of his body will afford evidence which will disprove the commission by him of any offense or which will establish the commission by any other person of any crime against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for vexation or delay or for defeating the ends of justice.

Additional rights available to an arrested person 

1. Section 55A of the Code of the Criminal procedure (Cr.P.C.) deals with the health and safety of an arrested person- It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. 

2. Section 358 of the Code of the Criminal procedure (Cr.P.C.) deals with the compensation to persons who got arrested groundlessly- 

  • Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not exceeding [one thousand rupees], to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the Magistrate thinks fit.
  • In such cases, if more persons than one are arrested, the Magistrate may, in like manner, award to each of them such compensation, not exceeding [one thousand rupees], as such Magistrate thinks fit. 
  • All compensation awarded under this section may be recovered as if it were fine, and, if it cannot be so recovered, the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs unless such sum is sooner paid.

3. Section 41A of The Code of the Criminal procedure (Cr.P.C.) provides the notice of appearance of arrested person before a police officer. 

  • The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offense, to appear before him or at such other place as may be specified in the notice.
  • Where such a notice is issued to any person, it shall be that person’s duty to comply with the terms of the notice.
  • Where such person complies and continues to adhere to the notice, he shall not be arrested in respect of the offense referred to in the notice unless, for reasons to be recorded, the police officer believes that he should be arrested.
  • Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court on this behalf, arrest him for the offense mentioned in the notice. 

In Arnesh Kumar vs. State of Bihar &Anr, the Supreme Court had inter-alia directed that the notice of appearance in section 41A CrPC should be served on the accused before making the arrest. The Court had issued the direction to prevent unnecessary arrests, which, in the opinion of the Court, bring humiliation, curtail freedom and cast scars forever. The endeavor of the court was to ensure that police officer do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. The Supreme Court also gave the following directions:

  • All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C.;
  • All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); 
  • The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the magistrate for further detention;
  • The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
  • The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
  • Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; 
  • Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction. 
  • Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

The judgment of the Supreme Court in Munawar Vs. The State of M.P., since the police had failed to issue a notice under Section 41A Cr.P.C., as mandated by the Supreme Court in Arnesh Kumar Vs.the state of Bihar, the applicants ought to have been straightway admitted to interim bail .

4. Section- 46 of the Code of the Criminal procedure (Cr.P.C.) stipulates the mode of arresting an accused person, including submission to the custody by the accused, physically touching the body, or to a body.

Except when the person to be arrested is accused of an offense punishable by death or life imprisonment, when the accused person is attempting to resist his arrest by becoming violent and aggressive unnecessarily, or when the accused is trying to flee, the police officer must not cause the death of the accused person while attempting to arrest the person.

5. Section 49 of the Code of the Criminal procedure (Cr.P.C.) stipulates that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

In D.K. Basu vs. State of West Bengal Supreme Court held that under Section 49, the police are not permitted to use more restraint than is necessary to prevent the person’s escape. The court further stated that the police officer would be held in contempt of court and subject to a departmental inquiry if they could not carry out his duties correctly. Any High Court with jurisdiction over the case above may be approached for such a dispute. 

6. Section 41B of the Code of the Criminal procedure (Cr.P.C.) states the arrest procedure and duties of the officer making an arrest. Unless the memorandum is attested by a member of his family, inform the person arrested that he has a right to have a relative or a friend named by him be informed of his arrest.

7. 41D of the Code of the Criminal procedure (Cr.P.C.) stipulates that when any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation. 

Conclusion

Modern constitutional law has come a long way in terms of protecting and safeguarding the rights of persons guilty of crimes. Patrol officers are especially prone to making mistakes since they serve under public scrutiny and are expected to achieve speedy results. India has a significant problem with illegal arrests and custodial deaths, primarily caused by unlawful arrests. According to India’s legal system, which supports the concept of “Innocent until proven guilty,” an accused person has certain rights as an arrested person that are untouched whenever a police officer knocks on his door to make an arrest. The Supreme Court of India in D.K. Basu vs. West Bengal is not being effectively implemented. There should be proper execution of provisions and guidelines stated in this case to ultimately assist in decreasing the proportion of illegal arrests and resulting custodial deaths.

Gajendra-Singh-Shekhawat.jpg

Project Dolphin: Minister pulls up officials over slow pace of work

UNION JAL Shakti Minister Gajendra Singh Shekhawat expressed his displeasure over the slow pace of the approval process for Project Dolphin at a meeting of the Empowered Task Force (ETF) on Ganga on Tuesday, The Indian Express has learnt. According to sources, Shekhawat said that although Prime Minister Narendra Modi has mentioned the project in many of his speeches, the ground situation has remained unchanged, with work yet to begin.

The ETF on Ganga, which met under Shekhawat’s chairmanship on Tuesday, is the second highest decision-making body on Ganga, after the National Ganga Council (NGC) headed by the Prime Minister.

During the meeting, when an official of the Union Ministry of Environment, Forest & Climate Change gave a detailed progress report of the activities planned under Project Arth Ganga, Shekhawat is learnt to have asked him about Project Dolphin. According to sources, the official replied that a draft cabinet note had been prepared on Project Dolphin, and a detailed proposal would be ready soon. Shekhawat is then learnt to have remarked that the ministry needs to expedite the process of finalising Project Dolphin.

Project Dolphin is one of the activities planned under Arth Ganga, an ambitious inter-ministerial initiative of the government, which was approved at the first meeting of the NGC under the chairmanship of the PM on December 14, 2019. “Special conservation programme needs to be taken up for Gangetic Dolphin which is the national aquatic animal and also indicator species for the river Ganga spread over several states,” noted the minutes of the meeting, circulated on January 10, 2020.

Shekhawat is learnt to have told the official that they were still deliberating on the cost components of the project in March 2022, while the decision to start the programme was taken in December 2019. Sources said Shekhawat told the official that while India was talking about the bullet train, they were moving at the speed of a meter gauge train.

According to sources, the minister said that while the PM has mentioned the project in many of his speeches, the position on the ground is that work has not even begun.

The PM had even mentioned the project in his Independence Day speech in 2020. “We will focus on both types of dolphins living in the rivers and in the seas. This will also give a boost to biodiversity and also create employment opportunities,” he had said.

While phone calls and text messages to Shekhawat went unanswered, an official spokesperson of the Ministry of Jal Shakti said that Project Dolphin is being “handled” by the Ministry of Environment, Forest and Climate Change and they have “prepared” and “submitted” a Cabinet note.

Meanwhile, Shekhawat is also learnt to have expressed his unhappiness over senior officials of the Rural Development Ministry and Agriculture Ministry sending their subordinates for the meeting. He also asked about the progress of natural farming along the banks of Ganga.

lexology-social-media.png

Role of respondent in proceedings under section 34 of Arbitration and Conciliation Act 1996 – Commentary

Introduction
Role of respondent in proceedings under section 34 of 1996 Act

Comment

Introduction

With the advent of the pro-arbitration approach that has emerged from the Indian judicial narrative, reduced judicial intervention has been the key to promoting arbitration as an effective mode of dispute resolution. Since the enactment of the Arbitration and Conciliation Act 1996 (the 1996 Act) and its subsequent amendments in 2015 and 2019, the focus has been to minimise the courts’ interference at pre-reference stage, during the pendency of arbitration proceedings and post-award stage. Consequently, it is well known that courts today have a limited role to play in arbitral proceedings in general and the post-award challenge stage under the 1996 Act in particular. Keeping with this outlook, the limited grounds on which an applicant party may challenge an arbitral award have also been strictly interpreted in terms of section 34(2) of the 1996 Act. While this is common knowledge, an issue that has seldom been addressed by the existing literature on the subject is the role of a respondent party (a respondent) in proceedings under section 34 of the 1996 Act. This article attempts to understand the exact nature and extent of the rights of a respondent in such proceedings.

Briefly, post passing of an arbitral award, the parties to the arbitration may, within the mandatorily prescribed period of limitation:

  • accept the award in its entirety and subsequently execute it as it has been passed;
  • file an application under the provisions of section 33 of the 1996 Act to seek correction in case of any clerical, typographical or computational errors, or seek an interpretation of a specific point or part of the award (within 30 days of receipt of the award), subject to the specific conditions laid down in section 33 of the 1996 Act being satisfied; or
  • challenge part of the award or the award in its entirety under section 34 of the 1996 Act.

In certain circumstances, it may be the case that an award is equally favourable or unfavourable to all parties to the arbitration. In such an eventuality, while neither party may be fully satisfied with the award, keeping in mind a cost-benefit and risk analysis of pursuing a challenge under section 34 of the 1996 Act, a party may choose to refrain from pursuing such remedy immediately, with a view to gauging the stance of the other party. Given the strict limitation period prescribed by the 1996 Act (with no discretion provided to the courts to condone delay beyond the mandatory period), a party may lose their right to challenge the arbitral award in the process and still face the possibility of being put in the shoes of a respondent in challenge proceedings initiated by the other party.

Role of respondent in proceedings under section 34 of 1996 Act

The question that then arises is whether such a party, being a respondent in the proceedings, can raise any grievance or objection in addition to the points of contention raised by the applicant under section 34 of the 1996 Act.

In this context, it is imperative to understand the scheme of section 34 of the 1996 Act as follows:

  • Section 34(1) of the 1996 Act provides that “recourse to a Court against an arbitral award may be made ‘only’ by an application for setting aside such award in accordance with sub-section (2) and sub-section (3)”.
  • Further, section 34(2) of the 1996 Act provides that “[a]n arbitral award may be set aside by the Court only if — (a) the party making the application furnishes proof that . . . “.
  • Furthermore, section 34(3) of the 1996 Act provides that:

An application for setting aside may not be made after three months have elapsed from the date on which the party making that 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.

From a reading of section 34 of the 1996 Act, it is evident that an award or part of an award, if not challenged by a party within the statutory period, attains finality as per the provisions of section 35 of the 1996 Act and may be enforced by the parties under section 36 of the 1996 Act. The unambiguous language of the section also suggests that an award may be challenged only by filing a separate application objecting to an arbitral award or part of the arbitral award and on the limited grounds of challenge specified under section 34 of the 1996 Act.

In support of this, the Delhi High Court in its decision in the matter of NBCC v Lloyd Insulations India Ltd,(1) also observed and held as follows:

with regard to the enforceability of the award during the pendency of the objections under Section 34 of the Act is concerned, it may be noted at once that the award of the arbitrator in this case is not entirely in favour of one party but it is in favour of both the parties as it has allowed some claims as well as some counter-claims. The appellant M/s. National Buildings Construction Corporation Ltd. did not challenge any part of the award by filing objections within the stipulated period as provided under Section 34(3) of the Act and, therefore, the award so far as it has allowed certain claims of the claimant M/s. Lloyd Insulations (India) Ltd., has attained finality and has become capable of enforcement as a decree in accordance with the Code of Civil Procedure. However, the award of counter-claim in favour of M/s. National Buildings Construction Corporation Ltd. has not yet attained finality and it is not enforceable, it being the subject of challenge in the application under Section 34 of the Act. It is, therefore, not possible to hold that the entire award has not become final and is not enforceable unless the application under Section 34 of the Act is disposed of. We are clearly of the opinion that that part of the award which is not under challenge has become final and is enforceable under Section 36 of the Act irrespective of the pendency of the application under Section 34 of the Act challenging and seeking the setting aside of the other part of the award.

In view of the judgment cited above and the unambiguous language of section 34 of the 1996 Act, it may be concluded that any part of an arbitral award that remains unchallenged by a party within the statutory limitation period attains finality and is ripe for execution.

Comment

In other words, a party who has not exercised its rights under section 34 of the 1996 Act may only respond to the specific objections raised by the other party – that is, the applicant in their challenge under section 34 of the 1996 Act. Such a respondent may not raise additional grounds of challenge, claims or counterclaims on its own behalf, in addition to responding to the challenge filed by the applicant.

Therefore, the role of a respondent in a challenge under section 34 of the 1996 Act is limited to opposing or responding to the grounds of the challenge raised by an applicant and cannot be extended beyond this. So, a party who is aggrieved by an arbitral award or a part of such an award must file an application under section 34 of the 1996 Act independently, within the prescribed period. Needless to mention, one has to factor in the implication of the orders passed by the Supreme Court in Re Cognizance for extension of limitation,(2) on the extension of limitation as may be applicable.

For further information on this topic please contact Jeevan Ballav Panda, Shalini Sati Prasad or Meher Tandon at Khaitan & Co by telephone (+91 22 6636 5000) or email ([email protected], [email protected] or [email protected]). The Khaitan & Co website can be accessed at www.khaitanco.com.

Endnotes

(1) AIR 2004 Del 235.

(2) Suo-Moto Writ Petition (Civil) No. (s) 3 of 2020

Gajendra-Singh-Shekhawat.jpg

Project Dolphin: Minister pulls up officials over slow pace of work

UNION JAL Shakti Minister Gajendra Singh Shekhawat expressed his displeasure over the slow pace of the approval process for Project Dolphin at a meeting of the Empowered Task Force (ETF) on Ganga on Tuesday, The Indian Express has learnt. According to sources, Shekhawat said that although Prime Minister Narendra Modi has mentioned the project in many of his speeches, the ground situation has remained unchanged, with work yet to begin.

The ETF on Ganga, which met under Shekhawat’s chairmanship on Tuesday, is the second highest decision-making body on Ganga, after the National Ganga Council (NGC) headed by the Prime Minister.

During the meeting, when an official of the Union Ministry of Environment, Forest & Climate Change gave a detailed progress report of the activities planned under Project Arth Ganga, Shekhawat is learnt to have asked him about Project Dolphin. According to sources, the official replied that a draft cabinet note had been prepared on Project Dolphin, and a detailed proposal would be ready soon. Shekhawat is then learnt to have remarked that the ministry needs to expedite the process of finalising Project Dolphin.

Project Dolphin is one of the activities planned under Arth Ganga, an ambitious inter-ministerial initiative of the government, which was approved at the first meeting of the NGC under the chairmanship of the PM on December 14, 2019. “Special conservation programme needs to be taken up for Gangetic Dolphin which is the national aquatic animal and also indicator species for the river Ganga spread over several states,” noted the minutes of the meeting, circulated on January 10, 2020.

Shekhawat is learnt to have told the official that they were still deliberating on the cost components of the project in March 2022, while the decision to start the programme was taken in December 2019. Sources said Shekhawat told the official that while India was talking about the bullet train, they were moving at the speed of a meter gauge train.

According to sources, the minister said that while the PM has mentioned the project in many of his speeches, the position on the ground is that work has not even begun.

The PM had even mentioned the project in his Independence Day speech in 2020. “We will focus on both types of dolphins living in the rivers and in the seas. This will also give a boost to biodiversity and also create employment opportunities,” he had said.

While phone calls and text messages to Shekhawat went unanswered, an official spokesperson of the Ministry of Jal Shakti said that Project Dolphin is being “handled” by the Ministry of Environment, Forest and Climate Change and they have “prepared” and “submitted” a Cabinet note.

Meanwhile, Shekhawat is also learnt to have expressed his unhappiness over senior officials of the Rural Development Ministry and Agriculture Ministry sending their subordinates for the meeting. He also asked about the progress of natural farming along the banks of Ganga.

Gajendra-Singh-Shekhawat.jpg

Project Dolphin: Minister pulls up officials over slow pace of work

UNION JAL Shakti Minister Gajendra Singh Shekhawat expressed his displeasure over the slow pace of the approval process for Project Dolphin at a meeting of the Empowered Task Force (ETF) on Ganga on Tuesday, The Indian Express has learnt. According to sources, Shekhawat said that although Prime Minister Narendra Modi has mentioned the project in many of his speeches, the ground situation has remained unchanged, with work yet to begin.

The ETF on Ganga, which met under Shekhawat’s chairmanship on Tuesday, is the second highest decision-making body on Ganga, after the National Ganga Council (NGC) headed by the Prime Minister.

During the meeting, when an official of the Union Ministry of Environment, Forest & Climate Change gave a detailed progress report of the activities planned under Project Arth Ganga, Shekhawat is learnt to have asked him about Project Dolphin. According to sources, the official replied that a draft cabinet note had been prepared on Project Dolphin, and a detailed proposal would be ready soon. Shekhawat is then learnt to have remarked that the ministry needs to expedite the process of finalising Project Dolphin.

Project Dolphin is one of the activities planned under Arth Ganga, an ambitious inter-ministerial initiative of the government, which was approved at the first meeting of the NGC under the chairmanship of the PM on December 14, 2019. “Special conservation programme needs to be taken up for Gangetic Dolphin which is the national aquatic animal and also indicator species for the river Ganga spread over several states,” noted the minutes of the meeting, circulated on January 10, 2020.

Shekhawat is learnt to have told the official that they were still deliberating on the cost components of the project in March 2022, while the decision to start the programme was taken in December 2019. Sources said Shekhawat told the official that while India was talking about the bullet train, they were moving at the speed of a meter gauge train.

According to sources, the minister said that while the PM has mentioned the project in many of his speeches, the position on the ground is that work has not even begun.

The PM had even mentioned the project in his Independence Day speech in 2020. “We will focus on both types of dolphins living in the rivers and in the seas. This will also give a boost to biodiversity and also create employment opportunities,” he had said.

While phone calls and text messages to Shekhawat went unanswered, an official spokesperson of the Ministry of Jal Shakti said that Project Dolphin is being “handled” by the Ministry of Environment, Forest and Climate Change and they have “prepared” and “submitted” a Cabinet note.

Meanwhile, Shekhawat is also learnt to have expressed his unhappiness over senior officials of the Rural Development Ministry and Agriculture Ministry sending their subordinates for the meeting. He also asked about the progress of natural farming along the banks of Ganga.

IIOJK-dossier-31642785789-1.jpg

LFK issues dossier on extra-judicial killings in IIOJK


ISLAMABAD:

Lambasting Indian authorities for a staged encounter of a teenager in the Indian Illegally Occupied Jammu and Kashmir’s (IIOJK) Poonch sector, the Legal Forum for Kashmir (LFK) has launched a comprehensive dossier on Zia Mustafa’s extra-judicial execution.

To highlight the ongoing situation in IIOJK, the LFK on Friday organised a roundtable debate titled “Investigation War Crime Cases in IIOJK” at a local hotel.

According to the dossier, 15-year-old Zia Mustafa from AJK’s Rawalakot inadvertently crossed the Line of Control on January 13 in 2003 and was arrested by Indian occupying forces. The family members of Zia lodged a missing report at a local police station.

The army and IIOJK police led by the then Director General of Police A K Suri gave a joint press conference to the Indian media on April 11, 2003, projecting and presenting Zia as a foreign militant, allegedly involved in so-called terror incidents.

However, the dossier reports that Zia was a minor when he crossed the border unknowingly and later, was falsely implicated as a militant by the Indian forces and agencies.

Read UK law firm exposes India’s war crimes in IIOJK

The report further states that the trial court in Shopian, Kashmir framed charges against Zia under Sections 302, 120b, 450, 395, of IPC; 7/27 PACT; 2/3 IMCO. However, the state out of prosecution witnesses failed to produce a single piece of evidence against Zia.

Accordingly, the court closed the prosecution evidence. The State of IIOJK filed a criminal appeal before the IIOJK high court, which was termed meritless and dismissed by the court.

The state again approached the Supreme Court of India and filed a criminal appeal 39899/2018.

Zia’s lawyer Mubashir Gattoo while talking to local media said Zia, who had been under trial for 17 years was facing a case before the session’s court but there was no evidence for his conviction.

The dossier highlights the extra-judicial execution of an undertrial prisoner who was in judicial custody when the joint-counter insurgent group including the Indian army without following the mandate of law took Zia outside the jail and killed him in a staged encounter.

The dossier also reveals the important documents showing Zia as a minor boy at the date of his arrest. Moreover, the prisoners’ list exchanged by the foreign offices listed Zia as an undertrial prisoner. It highlights the 111 fake encounters and the alleged perpetrators involved in the war crimes committed by the Indian army.

The LFK held a roundtable debate inviting law experts and key stakeholders on the ‘universal jurisdiction case submitted before the metropolitan war crime unit in the United Kingdom.

The experts hailed the efforts of the Stoke White Investigation Unit for filing a suit against Indian Prime Minister Narendra Modi, Home Minister Amit Shah and other six Indian officials responsible for torture and extra-judicial killing of the duo.

Dr Muhammad Mushtaq, former Director-General of Sharia Academy eulogised the remarkable work of Stoke White and also pitched for the constitution of a war crime tribunal for the crime against humanity in IIOJK.

Hakan Camuz said he hoped that the request to British police seeking the arrest of Indian officials would be followed by other legal actions also focusing on Kashmir.

Also read Kashmiri leaders urge UN to fulfill its obligations on longstanding dispute

He added that Stoke White was sure that it was not going to be the last one as there would probably be many more applications.

Towards the end of the meeting, Executive Director Nasir Qadri said this is the beginning of lawfare against the occupier (India) and his organisation would further pursue the war crime cases to different available forums so that the perpetrators involved were apprehended for their crimes.

He further added that Kashmir had faced the worst human carnage for the last 74 years and the international community could no longer be silent spectators to India’s atrocity crimes and impunity.

lexology-social-media.png

Laws related to economic offences – A primer

Introduction:

In India, there is no legislation as such that defines an ‘economic offence’. Economic offences encompass all crimes which occur during the course of any economic or business activity.

In the beginning, such offences including corruption and criminal misconduct were dealt with under the provisions of the Indian Penal Code, 1860 (‘IPC’). However, with the steady increase in economic offences of many varieties, such as tax evasion, trafficking, smuggling etc., all of which are too specific to be brought under the purview of IPC alone, the Government of India felt the need for creating different legislations dealing with such offences.

The salient features of an economic offence were first discussed in the Report of the 47th Law Commission of India (1972), formulated on the topic of ‘Trial and Punishment of Social and Economic Offences’ (‘Report’). The Government of India, while formulating this Report, had recognized economic offences as a separate category of crimes that require special attention, to ensure swift disposal of cases and meting of punishment. Thereafter, special legislation such as the Prevention of Money Laundering Act, 2002 (‘PMLA’) was brought out to prescribe the procedures and penalties for economic offences.

It goes without saying that, due to such an ad-hoc arrangement, one set of facts expose an offender to prosecution under multiple legislations. Consequently, the gravity of the crime as well as the parameters for granting bails or deciding punishments for such crimes have not been very clear and there is an overlap of procedures. Therefore, in order to fully understand and organize how economic offences are being tackled today, we have examined the existing laws in relation to such offences, the amendments to the regime brought out by the Companies Act, 2013 (‘2013 Act’), the judicial history of granting of bails/ anticipatory bails with respect to economic offences, and scope for further changes.

We summarize the legislations related to economic offences as follows:

  • The IPC provides the punishment for certain economic offences such as criminal misappropriation, criminal breach of trust, receiving or dealing in stolen property, cheating, creating fraudulent deeds, concealment of property, forgery, falsification of accounts, sale of adulterated drugs etc.
  • The Central Excise Act, 1944 provides the punishment for evasion of excise duty.
  • The Income Tax Act, 1961 criminalizes tax evasion, income concealment etc. The Act also imposes a penalty on failure to furnish returns, comply with notices issued under the Act or concealment of particulars of income as well as any fringe benefits.
  • The Customs Act, 1962 regulates how the goods should be moved in or out of the country, confiscation for improperly imported goods, and for safeguards against smuggling.
  • The PMLA is a landmark legislation in India that lays down what acts constitute money laundering, punishment for money laundering, etc.
  1. Section 3 of the PMLA defines ‘Money laundering’ as the direct or indirect attempts to indulge or knowingly assist or knowingly be a party or be actually involved in any process or activity connected with the proceeds of crime and protecting it as untainted property.
  2. ‘Proceeds of crime’ has been defined under Section 2(u) as any property derived or obtained, by any person as a result of criminal activity being directly a Scheduled Offence or relating to a Scheduled Offence or the value of any such property.
  3. The Schedule mentioned in the PMLA classifies the various offences, referred to as ‘Scheduled Offences’, into 3 parts, basis which the penalty is prescribed. Even though the offences described under the Schedule have already been covered under existing legislations like the IPC, the PMLA has been created to cater particularly to the handling of the proceeds from such offences.
  4. The Bombay High Court, in the case of Hasan Ali Khan v. UOI , stated that an offence is committed under the PMLA when an attempt is made to demonstrate a legitimate source of earning with respect to a tainted property. The decision thus gave judicial support to the type of offences outlined under the PMLA.
  • Money laundering is not just tackled through the PMLA. The Reserve Bank of India (RBI), in exercise of its powers conferred under the Foreign Exchange Management Act, 1999, as well as PMLA, has come out with the Master Circular on Know-Your-Customer (KYC) norms/ Anti-Money Laundering Standards/ Combating of Financing of Terrorism (CFT)/ Obligations of banks under PMLA, in 2008, that has made it mandatory to identify customers through KYC, to prevent money laundering. This Circular has been revised periodically and the introduction of this Circular, along with additional guidelines dealing with anti-money laundering have been instrumental in the efforts to address serious economic offences.
  • The Insolvency and Bankruptcy Code, 2016 deals with fraudulent initiation of bankruptcy proceedings, by imposing penalty of not less than INR 1 lakh which may extend to INR 1 crore in such cases.
  • Other offences include land grabbing, for which many States have enacted legislations, including the P. Land Grabbing (Prohibition) Act, 1982; credit card fraud, dealt with in the IPC and the Information Technology Act, 2002; and stock market manipulations, regulated by the Securities and Exchange Board of India (SEBI) through the SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Markets) Regulations, 1995, and other such rules and regulations.
  • Various laws such as the Transplantation of Human Organs and Tissues Act, 1994, which punishes trafficking of human organs, the Arms Act, 1959 against trafficking of arms etc., have also been instituted to combat specialized instances of crime that affect the economy.
  • Keeping in mind the offenders that have crossed the Indian borders and are evading arrest, the Central Government had also passed the Fugitive Economic Offenders Act, 2018 (‘FEO Act’) which specifically caters to deter fugitive economic offenders from evading the process of law in India. While said Act does not define ‘economic offences’, the Schedule to the Act once again contains a list of offences for which, if any person has committed and has thereafter left India to avoid criminal prosecution, or being already abroad refuses to return to India, he is deemed a ‘fugitive economic offender’. The FEO Act borrows a lot of definitions from PMLA and empowers the Directors and Deputy Directors appointed under PMLA with additional rights to report/ declare fugitive economic offenders, details of their properties, etc., for attachment of the same.

Fraud under the Companies Act, 2013:

The list of legislations mentioned above show the many branched way in which economic offences are provided for in the country. While these legislations are structured in a ‘cure-based’ manner viz., post commission of the offences, certain types of fraud as falling under the 2013 Act are subject to a ‘prevention-based’ model i.e., as soon as any event of fraud is detected, various steps are mandated under the Act to tackle them quickly and efficiently.

To begin with, as economic crime has taken on new and larger forms, the definition of ‘fraud’ in Section 447 of the 2013 Act has also been expanded to include any act, omission, concealment of fact, or abuse of position that is intended to gain an unfair advantage over, or harm the interests of the company, its shareholders and creditors. This brings all forms of corruption, deception, conflicts of interest, and bribery under its purview.

As per the new legislation, as soon as fraud is detected, it is recommended to reopen account books, and go for voluntary amendment of financial statements or the Director’s Report, with the agreement of the jurisdictional National Company Law Tribunal (NCLT). Until now, auditors were only mandated to report serious fraud and were not required to evaluate whether fraud had occurred in any and every transaction. However, auditors now have an additional burden to pose as whistle-blowers by reporting immediately to the Central Government any fraud being perpetrated in the company’s affairs.

The Serious Fraud Investigation Office (SFIO), subsisting under the 2013 Act, is now a statutory entity with the authority to make arrests for fraud-related offences. The National Financial Reporting Authority (NFRA) is meant to regulate auditors and has extensive powers to investigate professional or other misconduct by chartered accountants. Shareholders can also initiate class action suits against the company, its officers and auditors for failing to protect their interests. Accordingly, the penalties under the revamped law are more severe and are not compoundable. With the introduction of the new Act, even offences such as not filing of balance sheet, non-distribution of dividends without legitimate reasons, etc., are also open to judicial action.

Law relating to grant of bail/ anticipatory bail:

With the nature of these offences being severe, the protection offered to the accused in such offences also needs to be held with the highest safeguards. That means the strictest standards are to be employed when it comes to granting bail/ anticipatory bail to the accused in such economic offences.

This has been observed by the Supreme Court in the case of Y.S. Jagan Mohan Reddy v. C.B.I., while considering a bail application, that:

‘The economic offence having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. While granting bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of public/State and other similar considerations.’

This stance has also been maintained by the Supreme Court in Chidambaram v. Directorate of Enforcement, where anticipatory bail was denied by the Apex Court stating that the powers of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 is an extraordinary power and that should be exercised sparingly, more so in cases of economic offences which affect the very fabric of the economy in our society.

In the recent cases of Ashwini Kumar Patra v. Republic of India and Pankaj Grover v. Directorate of Enforcement, the prayers for bail have been dismissed outright by the High Courts, citing the huge amount of proceeds of crime. The Court also observed that the economically sound position of the accused would make them a flight risk, as they could abscond to any other country avoiding arrest as well as judicial proceedings. In short, a common yardstick adopted by all Courts when granting bail, that comes out from all these cases, is the amount of proceeds of crime, the apprehension of witness tampering or the chance for the accused to abscond, etc.

Scope for amendments in the law for economic offences:

With the steep rise in economic offences in India, the existing judicial system is over-burdened with cases, in turn resulting in decrease of arrests and convictions. Such dire situations call for a special court/ body that is dedicated solely to dealing with economic offences, to ensure that there is speedy disposal of cases.

Various attempts have been made over the past few years to pave way for this. The Special Court (Trial of offences relating to transactions in securities) Act, 1992 recommends constitution of special courts for trying offences related to securities. The PMLA also provides for setting up of special courts in relation to dealing with proceeds of crimes specified under the Schedule of said Act. The Special Courts set up under PMLA are also to oversee cases under the FEO Act. Basis such legislations, various special courts have been set up in the country.

That being so, while the special courts under said legislations have thus been constituted, sadly, the number of such designated courts are very limited and the Government has been slow in implementing these legislations.

Further, not just a procedural gap with the dealing of economic offences, but when it comes to substantive laws, the Banking Regulation Act, 1949 which is charged with regulating banking companies does not deal explicitly with any cases of fraud. Accordingly, Section 403 of IPC (Criminal misappropriation) is to be relied upon heavily for cases of bank fraud. This lapse is evidenced by the frequent reporting of scams, such as the misappropriation of funds from the Punjab National Bank (PNB), the more recent Bike Bots scam case, amongst others. Even with respect to insurance frauds, the Insurance Act, 1938 does not define or provide effective legal remedies for such acts. One has to once again resort to action under the IPC. Therefore, there is much scope for change in the existing laws, on both the procedural and substantive front.

Conclusion:

The position of economic offences is one that is riddled with lacunae and is not yet on solid ground. With the statistics of economic offences showing a definite increase, the Government is now compelled to start coming up with ways to reduce the cases already piled in courts, by instituting separate special courts or tribunals, and by passing special legislations. It is clear that the Government is aware of the burgeoning economic offences in the country and is conducting research into improving the existing laws and streamlining them, to reduce confusion and overlaps.

However, looking at the slow evolution and execution of laws related to economic offences, it cannot be concluded that we are in a satisfactory regime for such offences at the moment. Developing more judicial or quasi-judicial fora to ensure speedier and more efficient disposal of cases has become the need of the hour.