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Puja Jakhar

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DECODING THE JURISPRUDENCE ON CANCELLATION OF BAIL UNDER SECTION 439(2) OF THE CRPC

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INTRODUCTION

The concept of bail has been the citadel of attention for criminal law practitioners and scholars. It is one of those law topics that has succeeded in becoming the center of attention for lawyers as well as theorists (jurists). And righty so! The dichotomy of jail and bail touches upon the most cherished and celebrated right of personal liberty of an individual. Also, the impact of arrest on the reputation and self-esteem of an individual is an important consideration [Joginder Kumar v. State of U.P, 1994 AIR 1349: 1994 SCC (4) 260], thus making “bail jurisprudence” a vital component of the overall criminal law jurisprudence.

The quality of a nation’s civilisation can be largely measured by the methods it uses in the enforcement of criminal law [Joginder Kumar (supra)]. While the criminal law proceeds on the basic presumption of innocence of an accused until proven guilty, arrest during investigation is considered to be a crucial tool in the hands of the investigating agency for securing ends of justice by ensuring a fair and uninfluenced investigation. However, it is this presumption of innocence, coupled with the importance attributed to liberty of an individual, that forms the building block of the established principle around which the whole bail jurisprudence has been knitted so far – bail is the rule, jail is the exception.

On this point, the observations of the Hon’ble Supreme Court in Sanjay Chandra v. CBI, (2012) 1 SCC 40 may be reverted to:

“In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, ‘necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.”

As vast as the subject of bail is, the present article is confined to a particular aspect i.e. “cancellation of bail” – a mere drop in the ocean. The present article proceeds with the assumption that the reader is familiar with the basic concept and principles surrounding bail. To put very succinctly, Chapter XXXIII  of the Code of Criminal Procedure, 1973 (Sections 436 to 450) deals with the provisions concerning bail and bonds. The most important sections of the said Chapter are referred hereinunder:

  • Sections 437 provides for the granting of regular bail by the Magistrate;
  • Section 439 provides for granting of regular bail by the Sessions and the High Court. Clause (2) confers upon the said Courts (i.e. the Sessions and the High Court) with the power of cancellation of bail;
  • Section 438 deals with provisions relating to the granting of anticipatory bail by the Sessions Court and the High Court.

The present article is particularly aimed at discussing the aspect of “cancellation of bail”. The present discussion becomes relevant once bail has been granted to the accused by the Court.

BAIL : REJECTION v. CANCELLATION

At the very outset, it needs to be noted that rejection of bail, and, cancellation of bail already granted to an accused, are two separate issues governed by distinct principles. While the former is governed by the principles concerning grant of bail, the latter stands on a different footing altogether. The Hon’ble Supreme Court in State (Delhi Administration) v. Sanjay Gandhi, 1978 (2) SCC 411 has made the following elemental distinction in defining the nature of exercise while cancelling bail:

“Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail already granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.”

The burden of fair and judicial exercise of discretion is comparatively higher in cases where the Courts are called upon to cancel bail already granted as compared to cases where the Courts are called upon to grant or reject the bail. In the landmark case of Dolat Ram v. State of Haryana, (1995) 1 SCC 349 Hon’ble Supreme Court on the question of cancellation of bail already granted observed:

“Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner… However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non bailable case in the first instance and the cancellation of bail already granted.”

The observations of the Court in Bhagirathsinh v. State of Gujarat, (1984) 1 SCC 284 : 1984 SCC (Cri) 63 may also be noted in this regard:

“In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court.”

Similar observations were made by the Court in X v. State of Telangana, (2018) 16 SCC 511:

“…Above all, the Court must bear in mind that it is a settled principle of law that bail once granted should not be cancelled unless a cogent case, based on a supervening event has been made out. We find that to be absent in the present case.”

The issue of cancellation of bail once granted requires considerations that go beyond the grounds for grant of bail on account of the fact that the said exercise concerns appreciation of either of the two issues:

  1. Supervening circumstances including breach of conditions imposed at the time of grant of bail;
  2. Illegality or perversity in the Order granting bail.

While ground (a) has been the governing criteria for cancellation of bail under section 439(2) of the CrPC for a long time now, the second ground i.e. ground (b) has recently been at the heart of several Special Leave Petitions preferred by the State or the Complainant/Victim against the orders of the High Courts enlarging an accused on bail.

CANCELLATION OF BAIL

SUPERVENING CIRCUMSTANCES:

Given the established bail jurisprudence, the Courts are required to consider inter alia the following factors while granting bail:

  1. Nature and gravity of the charge;
  2. Severity of punishment in case of conviction;
  3. Nature of supporting evidence;
  4. Prima facie satisfaction of the Court in support of the charge;
  5. Reasonable ground for believing that the applicant has committed the offence alleged against him;
  6. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
  7. Reasonable apprehension of tampering of the evidence or interference in the ongoing investigation;
  8. Likelihood of the applicant absconding, if released on bail (flight risk);
  9. Standing and status of the applicant including past conduct and prior convictions;
  10. Likelihood of the offence being continued or repeated;
  11. Opportunity to the applicant for preparing his defense on merits;
  12. Period of detention;
  13. Health, age and sex of the accused;
  14. Undue delay in the trial of the case;
  15. Objection of the prosecuting authorities; etc.

[State of Maharashtra v. Sitaram Popat Vital, AIR 2004 SC 4258; Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC1475; Prahlad Singh Bhati v. N.C.T. Delhi, AIR 2001 SC 1444]

Given the fact that at the time of granting bail, the Courts are primarily indulged in prima facie “risk evaluation” and weighing of the possibilities of abuse of liberty if granted, it is only logical that any circumstances subsequent to the grant of bail that alters/modifies the considerations forming the basis of the order granting bail, be considered for its cancellation. To put it simply, if an accused has been enlarged on bail on account of the consideration that there is no likelihood of him tampering the witnesses/evidence and subsequently, upon grant of bail, it is brought to the notice of the Court that the accused threatened any witness/tampered any evidence, the said circumstance would warrant the cancellation of bail granted to the accused.

There might be a situation wherein some new facts are uncovered during the course of the investigation post the grant of bail to the accused, say, new evidence is uncovered/brought on record to strengthen a prima facie case of commission of an offence of greater severity by the accused, in such circumstances, cancellation of bail becomes imperative. The Courts in Puran v. Rambilas, 2001 (6) SCC 338 relied and reiterated the observations made by the Court in Gurcharan Singh v. State (Delhi Admn.), 1978 AIR 179 and observed:

“Further, it is to be kept in mind that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of cancelling the ball on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.). In that case the Court observed as under

“If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody.”

Another scenario where cancellation of bail may be sought is where the Court granting bail to the accused had imposed certain conditions on the accused and he had breached the same. For example, the Court granting bail directs the accused to appear before the Investigating agency every week and co-operate in the investigation, however, the accused does not appear before the Investigating agency and attempts to leave the State. This would be a case of breach of the conditions of bail warranting cancellation.

ILLEGALITY OR PERVERSITY IN THE ORDER GRANTING BAIL

The second, and comparatively more intriguing (forgive the author’s bias towards the degree of interest reflected under this head) is the one of “perversity”. Under this head, the attack is on the Order granting bail to the accused. The contention of the challenger (usually the Complainant or State) herein would be the illegality and perversity of the order vide which the accused was enlarged on bail rather than the subsequent developments. Essentially, the Applicant/Petitioner under this head makes a case that the Court that enlarged the accused on bail overlooked material considerations and passed a perverse, unreasonable, and arbitrary order. It may be loosely considered as an Application/Petition challenging the Order granting bail. Indicative heads for cancellation of bail under the said head primarily center around the improper exercise of discretion inter alia includes cases of:

  1. Non-application of mind by the Court granting bail;
  2. Overlooking of material considerations or taking into account irrelevant considerations;
  3. Arbitrary or unreasoned order; etc.

Herein, there may not be any supervening circumstances warranting cancellation, but the illegality of the order granting bail is sufficient for warranting cancellation. Hence, thanks to the recent judgments of the Hon`ble Supreme Court (as mentioned below), bail granted illegally and/or improperly by wrong and arbitrary exercise of judicial discretion can be cancelled by the High Court under Section 439(2) of the Code, even if there is no supervening circumstance against an accused (like tampering of witnesses of going incognito) appearing in the record after grant of bail [State of Orissa v. Jagannath Patel, 1992 Cri. LJ 1818].

The Hon’ble Supreme Court in Padmakar Tukaram Bhavnagare v. State of Maharashtra, (2012) 13 SCC 720 observed and held “perversity” as a ground for cancellation of bail:

“It is true that this Court has held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of justice or abuse of the concession granted to the accused in any manner. This Court has clarified that these instances are illustrative and bail can be cancelled where the order of bail is perverse because it is passed ignoring evidence on record or taking into consideration irrelevant material. Such vulnerable bail order must be quashed in the interest of justice. [See Dolat Ram v. State of Haryana, (1995) 1 SCC 349 : 1995 SCC (Cri) 237 and Dinesh M.N. (S.P.) v. State of Gujarat [(2008) 5 SCC 66].”

The Hon’ble Supreme Court in Omar Usman Chamadia v. Abdul (JT 2004 (2) SC 176) desisted the practice of High Courts in passing unreasoned orders in criminal matters thus directing the High Courts to indicate reasons especially in cases where the Order of the lower Court is overturned:

“However, before concluding, we must advert to another aspect of this case which has caused some concern to us. In the recent past, we had several occasions to notice that the High Courts by recording the concessions shown by the counsel in the criminal proceedings refrain from assigning any reason even in orders by which it reverses the orders of the lower courts. In our opinion, this is not proper if such orders are appealable, be it on the ground of concession shown by the learned counsel appearing for the parties or on the ground that assigning of elaborate reasons might prejudice the future trial before the lower courts. The High Court should not, unless for very good reasons desist from indicating the grounds on which their orders are based because when the matters are brought up in appeal, the court of appeal has every reason to know the basis on which the impugned order has been made. It may be that while concurring with the lower courts’ order, it may not be necessary for the said appellate court to assign reasons but that is not so while reversing such orders of the lower courts. It may be convenient for the said court to pass orders without indicating the grounds or basis but it certainly is not convenient for the court of appeal while considering the correctness of such impugned orders. The reasons need not be very detailed or elaborate, lest it may cause prejudice to the case of the parties, but must be sufficiently indicative of the process of reasoning leading to the passing of the impugned order…

…Whereas in the instant case it is a final order reversing the order of the learned Sessions Judge wherein the High Court thought it not necessary to give the reasons on the ground that the counsel appearing for the parties did not press for a reasoned order. Consequently, when the matter was taken up for hearing, we had no benefit of the reasons which persuaded the High Court to pass the impugned order…..

…But we do record our disapproval of the practice followed by the High Court reflected in the impugned order and hope the same will not be repeated…”

The principle applies to bail matters as well. The High Court cannot, in a mechanical manner, grant or reject the bail of the accused nor can the same be cancelled without assigning any reasons. In cases where no reasons are assigned for granting bail to an accused, the same is cancelled on account of the arbitrary and perverse nature of the Order.

The Hon’ble Supreme Court in Ram Govind Upadhyay v. Sudarshan Singh, 2002 Cri LJ 1849 at 1852 : AIR 2002 SC 1475 was dealing with an Order wherein the High Court had granted bail to the accused by overturning the Order of the Sessions Court. The Hon’ble Supreme Court observed that the basic criteria for cancellation of bail is interference or attempt to interfere with the administration of justice and/or abuse of privilege granted to the accused. The Court noted that undoubtedly, the considerations applicable to the grant of bail vis-à-vis considerations for cancellation of an order granting bail are independent and do not overlap each other. However, in the event of non-consideration of relevant considerations for the purpose of grant of bail, especially when an earlier order of rejection is available on the records, it is a duty incumbent on the High Court to explicitly state the reasons as to why there was a sudden departure in the order of grant as against the earlier rejection.

In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, the Hon’ble Supreme Court discussed the issue of the perversity of the order passed by the High Court granting bail to the accused and held:

“The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime…”

CONCLUSION

While the considerations for rejection of bail and cancellation of bail once granted have been held to be separate and distinct, cancellation of bail on the ground of perversity and illegality of the order granting bail does require a variety of factors to be considered for cancellation of bail. It is in cases where these factors are improperly weighed that a higher Court may cancel the bail thus, essentially, treating an application for cancellation of bail as an appeal simpliciter against the order granting bail. The procedural distinction being that an application for cancellation of bail may be moved before the same Court in a case concerning supervening circumstances, while in case of “perversity” it is always for the higher Court to determine the legality of the order. The issue of bail is one where the Courts are required to balance the individual right of the accused against the right of the society. In the end, the balance needs to be maintained by way of judicious exercise of judicial discretion conferred upon the Courts.

Such exercise of jurisdiction might become redundant in light of subsequent circumstances, or in cases where the Courts fail to exercise the discretion in a prudent manner by granting bail to undeserving accused persons in a mechanical manner, thus necessitating the provisions for cancellation of bail. Taking into consideration the jurisprudence and the scheme of bail in the criminal justice administration system, grant/rejection as well as cancellation of bail forms the bedrock for securing a fair and proper investigation enabling the Courts to secure the ends of justice by way of a judicious exercise of judicial discretion.

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THE PRINCIPLE OF AGENCY IN CRIMINAL CONSPIRACY: HOW WOULD CO – CONSPIRATORS BE PUNISHED & SENTENCED?

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“What makes the joint action of a group of ‘n’ persons more fearsome than the individual actions of those ‘n’ persons is the division of labour and the mutual psychological support that collaboration affords.”

 -Bad Acts and Guilty Minds: Conundrums of the Criminal Law

Conspiracy is an ‘inchoate’ offence. It is an independent offence and can be charged even if the intended offence is not committed or attempted. If two people, for example, plan the joint robbery of a store, they can be liable for conspiracy despite not carrying out the robbery. While the substantive crime is robbery, the conspiracy to commit robbery is inchoate as it has not been accomplished.

In India, conspiracy was initially considered as only a civil wrong, but later on it was brought under the ambit of Indian Criminal Law. Conspiracy was not an offence under the Indian Penal Code, 1860 (hereinafter referred to as the IPC) until the Criminal Law Amendment Act of 1913 was passed which incorporated, Sections 120A and 120B in the IPC.

Section 120A IPC as contained in Chapter V-A defines the offence of criminal conspiracy. It states that when two or more persons agree to do or cause to be done an illegal act, or, an act, which is legal by illegal means, such an agreement is designated as “criminal conspiracy”. It then provides an exception to the effect that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is committed by one or more parties to such agreement in pursuance thereof. The explanation appended to the Section clarifies that it is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object.

Section 120-B, IPC provides punishment for committing the offence of criminal conspiracy. It provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life, or rigorous imprisonment for a term of two years or upwards shall be punished in the same manner as if he had abetted such offence provided there is no express provision made in the Code for punishment of such conspiracy. Sub-section (2) of Section 120-B, IPC, however, provides that a person who is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with an imprisonment of either for a term not exceeding six months or with fine or both.

Reading of Section 120-A and Section 120-B, IPC conjointly elucidates that an offence of “criminal conspiracy” is a separate and distinct offence. Therefore, in order to constitute a criminal conspiracy and to attract its rigour, two factors must be present in the case on facts:

Firstly, an agreement between two or more persons, and

Secondly, agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is legal in itself but is done by illegal means.

However, if the agreement is not an agreement to commit an offence, it does not amount to criminal conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of such agreement. The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to do that illegal act, or legal act by illegal means. It is undoubted that the general conspiracy is distinct from number of separate offences committed while executing the offence of conspiracy. Each act constitutes separate offence punishable, independent of the conspiracy.

“A conspiracy is seldom born of ‘open covenants openly arrived at.” It may therefore be difficult to adduce direct evidence of the same. Keeping that in mind, the Courts in India have given the prosecution a broad discretion in offering its case.

For an offence under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication. The offence can be only proved largely from the inference drawn from acts or illegal omissions committed by the conspirators in pursuance of a common design. The prosecution will also more often rely upon circumstantial evidence. It is not necessary to prove actual meeting of conspirators. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design is sufficient. Surrounding circumstances and antecedent and subsequent conduct of accused persons constitute relevant material to prove charge of conspiracy [See Shivnarayan Laxminarayan Joshi v. State of Maharashtra, AIR 1980 SC 439; Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra, AIR 1981 SC 1062; and Kehar Singh v. State, AIR 1988 SC 1883].

In Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra [(2008) 6 SCALE 469], the Hon’ble Apex Court held that:

“The existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement.”

In the case of Hanumant Govind Nargundkar v. State of M.P [1953 CRI.L.J. 129], the Apex Court has held that while appreciating the circumstantial evidence the following needs to be ascertained by the Court:

(1) whether the circumstances are fully established;

(2) the circumstances should be conclusive in nature and it should exclude every other hypothesis than the hypothesis which is to be proved; and

(3) the chain of circumstances should be so complete that it does not leave reasonable ground for conclusion consistent with innocence of the accused.

Thus, an agreement may be shown by wholly circumstantial evidence, and the individual’s intent to join the agreement can be demonstrated by “circumstances altogether inconclusive which may, by their number and joint operation be sufficient to constitute conclusive proof.”

The traditional view of conspiracy law has always been that the added group danger justifying this crime was based upon an agreement linking two or more willing criminal partners together. In many situations, however, only one party may be a willing participant while the other is simply one who feigns agreement. In such a situation, the question arises as to whether only the “true” conspirator should be guilty for the offence of conspiracy.

To address the said question, Section 10 of Indian Evidence Act, 1872 may be examined, which states that:

“Things said or done by conspirator in reference to common design where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”

In other words, anything said/done/written by a conspirator related to the “common intention” of all conspirators, after such ‘intention’ (to commit the conspiracy) was first entertained by them, is a relevant fact against each of the co-conspirators. This principle is based on to the ‘principle of agency’ where each conspirator is held liable for anything said/done/or written by his fellow co-conspirators in furtherance of their common intention to commit the conspiracy.

Section 120B and conviction of a single accused: “A person cannot conspire with himself”

As per the definition of Criminal Conspiracy as provided in Section 120-A of IPC, one person cannot be held guilty for criminal conspiracy and there must exist an involvement of at least two or more person.

The said principle was laid down in the landmark case of Topan Das v. State of Bombay, [AIR 1956 SC 33], wherein it was held that under section 120B IPC for criminal conspiracy when all except one of the accused are acquitted, conviction of remaining accused is illegal. Herein, the Appellant along with the other three named accused (acquitted) were charged under section 120B read with sections 471 and 420, IPC, 1860 for conspiring to use forged documents and thereby induced the Controller of Imports to grant import licenses. The magistrate acquitted all the accused. But the High Court, on State appeal, reversed the order of acquittal of the appellant and convicted him for the substantive offence as well as conspiracy to commit such offences under section 120B, IPC but maintained acquittal of others. The Hon’ble Supreme Court concluded that, the Appellant could not be convicted of the offence under section 120B, IPC when his alleged co-conspirators were acquitted of the offence. When all the accused, except one, are acquitted of the charge, the remaining one cannot be convicted, unless the charge against him has been that he conspired to commit an offence not only with the acquitted co-accused but also with some other persons who have not been tried because the offender happens to be absconding or is insane or is a minor below seven years of age, or because of any other reason and such a charge is proved. The appeal was allowed and the conviction was set aside.

In Bimbadhar Pradhan v. State of Orissa [MANU/SC/0024/1956], the Court distinguished the case from Topandas (supra) and other similar rulings observing that in those cases the only persons alleged to have been guilty of the offence of criminal conspiracy were the persons placed on trial. However, in the instant case, besides the other accused persons who were acquitted, there was one Approver who led the evidence for establishing the case u/s 120B against the Appellant. Thus, despite the acquittal of the other accused persons, the Appellant’s conviction was not set aside.

In Vinayak v. State of Maharashtra [MANU/SC/0136/1984], argument on lines of Bimbadhar (supra) judgment was not raised by the State and hence Topandas was followed.

In Brathi v. State of Punjab [MANU/SC/0071/1991], the Court discussed the principles governing conviction of a single accused in cases concerning offences under section 34, 149 and 120-B of the IPC. The Court reiterated that the essence of these offences is not in conviction of a requisite number of persons, but in proof of fact beyond reasonable doubt that the requisite number of persons were involved.

Hence, for setting aside a conviction under section 120-B on the ground that all other co-accused persons have been acquitted, it needs to be shown that the offence of conspiracy was not committed by the Appellant/Petitioner/accused before the Court, in agreement with others like Approver, unknown accused/suspects, etc. Once it is shown that the charge of conspiracy against such accused is based on the same evidences as the other co-accused who have been acquitted and that the facts do not disclose commission of conspiracy (with others), the conviction under section 120-B is liable to be set aside as a person cannot conspire with himself.

Participation and Punishment: Acts/Omissions of the Co-conspirators

Coming to the principle of agency in criminal conspiracy, it is well established that the co-conspirators can be punished for the actions/omissions of one or more of them despite the fact that the said act/omission was not committed by all of them personally. In the State of H.P. v. Krishna Lal Pradhan [1987 AIR (SC) 773], it was observed that if pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences, even if some of them had not actively participated in the commission of the offences. It can be understood that principle of agency as introduced by Indian Evidence Act, 1872 makes it evident that the act done by one conspirator is admissible against the co-conspirators.

In Ram Narayan Popli v. CBI [(2003) 3 SCC 641], while dealing with the conspiracy the majority opinion laid down that:

“The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. Thus, the conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design.”

Further in the case of State v. Nalini [1999 (5) SCC 253], Hon’ble Justice S.S.M. Quardri, after a survey of existing case laws, made the following pertinent observation:

“It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.”

Let us understand this principle through an illustration. Let’s assume that a criminal conspiracy was hatched between A, B and C to eliminate X and to give effect to the plan, B employed D a contract killer to execute the murder of X. Pursuant to the above plan, A, B and C drove D to X’s house where D caused the murder of X by shooting him at point blank range. Even though A, B and C have not committed the overt act of murder the following charges would be framed against:

A – 1st Charge under Section 302 read with Section 120B of IPC

B – 1st Charge under Section 302 read with Section 120B of IPC

C – 1st Charge under Section 302 read with Section 120B of IPC

D –  1st Charge under Section 302 + 2nd Charge under Section 302 read with Section 120B of IPC

In a scenario if the murder does not occur, they may still be guilty of conspiracy to commit murder and be charged under Section 120B, IPC as conspiracy in itself is a substantive offence, if the evidence shows that they deliberated and committed an overt act in furtherance of their agreement.  Herein the charges will be framed as under:

A – 1st Charge under Section 307 read with Section 120B of IPC

B – 1st Charge under Section 307 read with Section 120B of IPC

C – 1st Charge under Section 307 read with Section 120B of IPC

D –  1st Charge under Section 307 + 2nd Charge under Section 307 read with Section 120B of IPC

Conversely, if their attempt was a spur-of-the-moment decision and not a product of prior deliberation, and if X survives the assault, they would be guilty of attempted murder but not conspiracy to commit murder. If their attempt succeeds in the latter scenario, they would be guilty of murder and charged under Section 302, IPC alone.

According to the Principle of agency, pursuant to the criminal conspiracy if the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences. The essence of this principle is that it deters crime by increasing penalties for those who join conspiracies. If potential criminals have adequate advance knowledge of the penal provisions, they assume the risk that they will be held criminally liable for the actions of their co-conspirators, even when those actions fall outside the scope of the criminal agreement. Thus, this extended liability serves a cautionary role meant to deter criminal behaviour.

Advocate Puja Jakhar and Advocate Suruchi Jaiswal are Junior Counsels at BlackRobe Chambers.

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In Criminal Procedure

THE DISCRETION TO ARREST WITH POLICE – A PERSPECTIVE FROM THE EXPERIENCES OF A PRACTISING LAWYER

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The discretion to arrest and put an accused behind bars in an offence which is cognizable and non – bailable, is possibly the most powerful right which the Code of Criminal Procedure, 1973 gives to police officers. The rationale behind giving such power to a police officer is that during the course of investigation, the accused should not interfere with the process of a fair and independent investigation. The custody of the accused with the police also aids the police in reconstructing the crime scene and make recoveries of the material which may have been involved in committing the offence. Furthermore, by way of arrest, the accused is incapacitated from committing any other offence during the period of investigation. However, the question remains as to whether “arrest” is the only way in which the above-mentioned objectives can be attained during the pendency of an investigation, or, should the police trust the alleged accused persons that they shall themselves co – operate in aiding the investigation and not disturb the investigation process by influencing potential witnesses etc.

The reporting of a crime can be done by any person who may or may not be a victim of that crime. If the local police station finds prima facie truth in the allegations of the complainant, an FIR (First Information Report) is lodged. The SHO (Station House Officer) deputes an IO (Investigating Officer) to every FIR who then goes on to investigate the alleged offence under the said FIR. It is this IO who has the power and discretion to arrest the accused who has been alleged of committing the crime. The jurisprudence on the powers and discretion of the IO to arrest the accused has evolved over a period of time.

The experience of the courts, more particularly the Hon`ble Supreme Court has not been very pleasant in so far as the use of this power to arrest by the IOs is concerned. The Hon`ble Supreme Court has time and again deprecated the practice adopted by the police where they make arrests in cases where the offence is either not very heinous or prima facie not made out from the allegations made in the criminal complaint. It cannot be denied that the enormous discretion given to the police officers has also led to massive corruption and abuse of this discretion by the police officers. It is common knowledge that a lot of investigating officers demand bribe / other favors from the accused to not arrest them post the lodging of the FIR. Interestingly, it is again known to everyone that many investigating officers also demand bribe/other favors from the complainant to make an arrest of the alleged accused. This is especially common in white collar crimes like cheating, forgery, criminal breach of trust etc. wherein the complainant is confident that an arrest of the accused will lead to a settlement of the matter between the parties thereby providing the complainant with the money/articles/goods which has been alleged to have been cheated or siphoned off by the accused.

COGNIZABLE OFFENCES CARRYING SEVEN OR LESS THAN SEVEN YEARS OF IMPRISONMENT

Section 41 of the Code of Criminal Procedure, 1973 is the principal section which governs the powers of the police officer to make an arrest of an accused person wherein the allegation is that a cognizable has been committed by the accused person. Section 41(1)(a) as amended in 2009 provides that any police officer may make an arrest without a warrant if the accused has committed a cognizable offence in the presence of a police officer. Whether or not an offence is cognizable or non – cognizable can be easily discerned by any person from Schedule I annexed to the Code of Criminal Procedure, 1973. Section 41(1)(b) is bifurcated into two parts i.e. arrests made in cases where the alleged cognizable offence carries seven or less than seven years of imprisonment and arrests made in cases where the alleged cognizable offence carries more than seven years of imprisonment. Through the 2009 amendment, the legislature has circumscribed the discretion of the investigating officers to make arrests in cases where the alleged cognizable offence carries seven or less than seven years of imprisonment. Section 41(1)(b) clearly provides that in such cases where the cognizable offence carries seven or less than seven years of imprisonment, a police officer can make an arrest without warrant only if the following conditions are satisfied:

(i) the police officer has “reason to believe” on the basis of such complaint/information that such person has committed the said offence

(ii) the police officer is satisfied that such arrest is necessary—

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured.

The police officer is also mandated under law to write his reasons in the case diary as to why he/she feels that the above-mentioned criterions are being fulfilled in the case and hence arrest is being effected. Furthermore, Section 41A provides that in all cases where the police officer has after applying the criterions prescribed under Section 41(1)(b) decided that the arrest is not required, he/ she shall issue notice of appearance under Section 41A to the accused so that the accused can join the investigation and provide answers to the questions raised by the police officer.

My experience in handling criminal investigations on behalf of the accused in the past nine years tells me that rarely are the above-mentioned criterions prescribed under Section 41(1)(b) are followed in cases where the alleged offence carries a punishment of less than seven years. It is important to be noted that Section 41(1)(b) merely circumscribes the discretion of the police officer in arresting the accused for alleged cognizable offences which carry a punishment of seven or less than seven years. The discretion while circumscribed and guided through this provision does not completely take away the powers of the police officer to arrest an accused under this category of cases. The Supreme Court and other High Courts of our country have time and again reminded the investigating officers and police force of our country to apply their mind before making arrests in offences which carry a sentence of seven or less than seven years [See Arnesh Kumar v. State of Bihar, Criminal Appeal No. 1277 of 2014 (Supreme Court); Rajesh Sharma v. State of UP, AIR 2007 SC 3869]. But, from a more practical perspective, any practicing criminal lawyer of our country would confirm that the investigating officer rarely follows the mandate of Section 41(1)(b) in a meticulous manner.

The power/discretion to arrest or not to arrest as provided by the Code of Criminal Procedure, 1973 has often resulted in its abuse by the police officer. Arrest in India or for that matter any society across the world carries with it extremely strong prejudice and stigma. Even a single day of arrest can potentially demoralize and stigmatize a respectable individual of our society for his / her entire life. Hence, this power which lies with the investigating officers is expected to be used with utmost caution and by following the mandate of the law in the strictest sense. The criminal justice system in India is far from being ideal today in the present situation as it exists in 2021. Time and again it is seen by the stakeholders of the criminal justice system that the police officers abuse this discretion by taking bribe/favors from the complainant or the accused. The higher the stakes involved under the lodged FIR, the higher would be the involved corruption. The alleged accused also wants to indulge in the act of corruption because he / she feels that if they get arrested then they will be going through the ordeal of being in prison and also would have to eventually pay up to the defence lawyers for securing a bail for them. Hence, simply bribing the police officer and preventing any possible arrest may end up being a more feasible option. It will be important for me to caveat here that while abuse of arrest powers by police officers is common, there are independent and honest police officers who conduct absolutely neutral and impartial investigation on the basis of the merits of the case.

COGNIZABLE OFFENCES CARRYING MORE THAN SEVEN YEARS OF IMPRISONMENT

Section 41(ba) of the Code of Criminal Procedure, 1973 applies to all cases where the alleged offence carries more than seven years of imprisonment. This provision is much less complicated and fairly straightforward as it provides relatively less discretion to the investigating officer while making arrests in cognizable offences which carry more than seven years of imprisonment. The provision does not provide too many yardsticks on the basis of which an investigating officer can evaluate whether or not to make an arrest.

This provision simply says that any police officer may make an arrest where the police officer has received credible information that the accused has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years and the police officer has reason to believe on the basis of that information that such person has committed the said offence. Hence, a bare perusal of the provision shall highlight that once the police officer is convinced on a prima facie basis that the accused has committed the offence, the police officer will be well within his/her rights to make an arrest of the accused. Having said this, it is most definitely not a matter of practice that in

all cases where the alleged cognizable offence carries more than seven years of sentence would the police officer arrest the accused. The police officer in a lot of cases refuses to exercise its power to arrest (and rightfully so) when he / she feels that the criminal complaint on the basis of which the FIR is lodged is false and devoid of merits. Furthermore, in cases like recovery of money, alleged forgery, alleged cheating etc. where the dispute has a civil flavor, the police officers are careful before making any arrests even while the offences may carry a sentence of more than seven years. Needless to mention, that since this provision also provides discretion to the police officers, it has been time and again misused for securing illegal favors / bribe by the police officers.

The law regulating arrests is still in developing stages in India. There is a lot more that needs to be done in order to ensure that no wrongful arrests may take place or no alleged accused may go without being arrested simply because of the whims and fancies of the police officers. The situation can improve in 2 ways. Firstly, the police officers should start applying the mandate of law in a stricter manner wherein they actually adhere to the check list provided under Section 41(1)(b) before making an arrest in all cases where the offence carries a sentence of seven or less than seven years. Secondly, the legislature or the Hon`ble Supreme Court may prescribe certain cases (of less heinous nature) where the discretion is completely removed thereby giving certainty to citizens of our country and reducing the powers of police officers. Any change made in the law would have to examined while keeping in mind the delicate balance between providing right of personal liberty to individuals and right of life in a peaceful and crime free society of the public at large.

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