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Institutional arbitration: Spreading wings?

MUNEEB RASHID MALIK

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 “Arbitration is now the principal method of resolving international disputes involving states, individuals, and corporations. This is one of the consequences of the increased globalisation of world trade and investment. It has resulted in increasingly harmonised arbitration practices by specialised international arbitration practitioners who speak a common procedural language.’

—Redfern and Hunter on International Arbitration, USA.

The Arbitration and Conciliation Act, 1996, has brought a watershed movement to streamline the Indian Arbitration Law and to permeate it with unrivalled global modus operandi. For the last ten years, a chain of judicial pronouncements and a number of amendments, have given a whirl to metamorphose our country into a robust hub for international as well as domestic arbitration. Our country has observed some productive legal reforms in the landscape of arbitration in the recent years. The amendments have tried to orient the arbitration regime of India with the significant arbitration regimes of other realms. The Supreme Court and legislature of our country have put their best foot forward to make India an arbitration hub. With the pronouncements of reasoned judgments and the introduction of amendments to the arbitration legislation in India, the arbitration jurisprudence in India is blooming perfectly and profitably. Justice Sabyasachi Mukharji in the case of F.C.I. V. Joginderpal Mohinderpal, aptly enunciated that we should make the law of arbitration simple, less technical and more responsible to the actual realities of the situation, but must be responsive to the canons of justice and fair play and make the arbitrator adhere to such process and norms which will create confidence, not only by doing justice between the parties, but by creating a sense that justice appears to have been done.

To make our country an arbitration hub, has been on the agenda of Indian lawmakers for quite some time now. India is making strides towards enhancing the global understanding of doing business in India. With the efflux of time, the lawmakers have amended the law as per the circumstances for the survival and well-being of the society, socially as well as economically. The importance of dispute resolution through Institutional Arbitration has gained immense significance due to the overwhelming economic growth and international trade. In this regard, Indian parties to the arbitration conjointly have started showing interest in institutional arbitration. By selecting this sort of arbitration, the responsibility of the parties is somewhat lesser as compared to the ad-hoc arbitration and because of the inclination of the parties towards the institutional arbitration in our country, the focus has raised and want of arbitration institutions has awakened.

According to Redfern and Hunter on International Arbitration, an institutional arbitration is one that is administered by a specialist arbitral institution under its own rules of arbitration. There are many such institutions, some better established than others. Amongst the most well-known are the ICC, ICSID, the LCIA, and the International Centre for Dispute Resolution (ICDR). There are also regional arbitral institutions and there are chambers of commerce with a well-established reputation. Primarily, the parties provide that the conflict will be resolved by institutional arbitration in the event of any dispute occurring during the contract duration. This kind of arbitration provides the parties with a range of services, such as the provision of a formal arbitration protocol, an experienced panel of arbitrators, and expertise to provide a swift and efficient dispute resolution mechanism. In Nandan Biomatrix Ltd. v/s D 1 Oils Ltd, it was stipulated in the contract to settle the conflict by institutional arbitration. It was established that the parties decided unanimously to resolve disputes by institutional arbitration and not through ad hoc arbitration. Therefore, a condition precedent related to a valid arbitration arrangement between the parties is an essential ingredient for the institution of the arbitration proceedings.

FEATURES AND ADVANTAGES OF INSTITUTIONAL ARBITRATION

Ad hoc and institutional arbitrations are different from each other. There are numerous advantages that institutional arbitration provides for parties as well as arbitrators. In institutional arbitration, the rules are pre-established and the parties do not have to look into such matters. The rules also undergo periodic revision in consultation with experienced practitioners. Parties are assured that their matters will get disposed of, in a precise manner. Administrative assistance is also provided through a Secretariat which helps in removing all the doubts that may arise during the proceedings or after the award has been pronounced.

In institutional arbitration, it is not necessary for the parties to choose their own arbitrators, the institutions have a list of arbitrators who are well qualified and richly experienced. The arbitrators are appointed according to the matters in issue and this helps the parties in choosing such experts who are vastly experienced in the subject matter, as their arbitrators. A plethora of important services are also provided to the parties such as providing established formats, maintaining privacy in the cases wherever required by the parties, etc. In a few cases, issues may arise in relation to the fees of arbitrators but in institutional arbitration, fees of arbitrators are fixed which means that there remains no chance for any deception or dishonesty. The specific rules and regulations provided by the institutions work to create a formal way of dealing with all the cases effectively and cogently.

DIFFERENCE BETWEEN AD HOC AND INSTITUTIONAL ARBITRATIONS

An ad-hoc arbitration has its own set of pros and cons. Despite being the most popular method of dealing with issues, there are several cases, where the results do not find it as fruitful as desired by the parties because the ad-hoc arbitration largely depends on the total effectiveness and co-operation of the parties and if parties do not adhere to an equivalent zeal throughout the proceedings, then, they could find themselves in despair. A responsibility is placed on them to appoint arbitrators who are skillful and knowledgeable. Lack of experience is one of the weighty drawbacks of an ad-hoc arbitration. Unlike an ad hoc arbitration, the timelines in the institutional arbitration are rigid and no flexibility is provided. Along with the presence of arbitrators, specialized members are also present in arbitral institutions while in an ad hoc arbitration, only arbitrators are present. Both the systems are different and it depends on the parties as to what kind of arbitration they are willing to opt for, according to their preferences.

INSTITUTIONAL ARBITRATION IN OUR COUNTRY

In the year 2019, the Arbitration and Conciliation (Amendment) 2019 was passed. It was brought into force with the view of introducing institutional arbitration in the country. It is well known that in India, ad hoc arbitration prevails. However, it was noticed that the institutional arbitration is needed to keep the working of arbitration fluent. The Amendment proposed various changes that were the need of the hour. One of the major steps was the formation of the Arbitration Council of India which shall take all such measures to promote and encourage arbitration, mediation, conciliation or other alternative dispute resolution mechanism and for that purpose to frame policy and guidelines for the establishment, operation and maintenance of uniform professional standards in respect of all matters relating to arbitration. It shall also frame policies governing the grading of arbitral institutions; recognize professional institutes providing accreditation of arbitrators; review the grading of arbitral institutions and arbitrators; hold training, workshops and courses in the area of arbitration in collaboration of law firms, law universities and arbitral institutes; frame, review and update norms to ensure satisfactory level of arbitration and conciliation; act as a forum for exchange of views and techniques to be adopted for creating a platform to make India a robust centre for domestic and international arbitration and conciliation; make recommendations to the Central Government on various measures to be adopted to make provision for easy resolution of commercial disputes; promote institutional arbitration by strengthening arbitral institutions; conduct examination and training on various subjects relating to arbitration and conciliation, establish and maintain depository of arbitral awards made in India; make recommendations regarding personnel, training and infrastructure of arbitral institutions, etc. The arbitral institutions stand as a robust preference for the business communities because of the various productive services they provide. However, our country has not fully accommodated the institutional method but it will surely evolve in the near future.

CONCLUSION

Some of the arbitral institutions even provide rules for scrutiny of the draft award before the final award is issued. An aggrieved party could then appeal to an arbitral tribunal of the second instance which might be ready to confirm, vary, amend or put aside the draft award. There are some issues and challenges that are being faced with institutional arbitration like the fee becoming excessive for the parties and in such cases, the parties may not be able to take advantage of the features available in institutional arbitration. Such issues need to be redressed so that arbitral institutions can bloom in our country effectually. The report by the High-Level Committee to Review the Institutionalisation of Arbitration Mechanism in India, headed by Justice B.N. Srikrishna, Retired Judge, Supreme Court of India, had identified a number of factors for the limited success of institutional arbitration in India, which are – lack of credible arbitral institutions, misconceptions relating to institutional arbitration, lack of governmental support for institutional arbitration, lack of legislative support for institutional arbitration, and judicial attitudes towards arbitration in general. Therefore, concerted steps need to be taken by all stakeholders for ballooning the institutional arbitration mechanism in our country. We need an arbitration bar having detailed knowledge and training of the arbitration jurisprudence who can work in perfect coordination with proficient institutions of arbitration for the burgeoning of institutional arbitration in our country, by remembering the words of Justice Ajit Prakash Shah—the need of the hour is institutionalisation of arbitration in India to ensure the delivery of speedy and effective justice.

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Legally Speaking

What and why of reservation

The current reservation system in India is vertical for SC, ST, OBC, and EWS, but horizontal for women. In the country, all reservation systems operate together, and reservation in itself means that everything must be fixed. Many Indians claim that the Indian judiciary is biased because there are no judges from the lower castes in the Supreme Court, despite the fact that a number of religious minorities are represented in the top court, such as Parsis and Muslims, but no one from the SC and ST groups.

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INTRODUCTION
Reservation is an affirmative action programme in India that ensures traditionally marginalized groups have representation in education, jobs, and politics. It enables the Indian government to set reserved quotas or seats based on provisions in the Indian Constitution, which lower the qualifications required in examinations, work openings, and other situations for socially and economically backward people. In India, reservation refers to the practice of denying certain groups of people access to seats in educational institutions, government employment, and even legislatures. Affirmative action is another name for it, and the reservation can be seen as constructive discrimination. Reservation is a government policy in India, and it is backed by the Indian constitution

WHY IS THE DEBATE SO ACUTE?
RESOURCES AT STAKE: Reservations favor schooling, housing, and legislative positions, among other things. Where a country’s resources are limited, poverty and malnutrition are common, and unemployment is high, there is bound to be conflict when a policy on resource allocation is implemented. Resources are linked to humans’ basic needs, and when they have to make compromises for them, they will work in any circumstances to reap the benefits.

RADICALLY OPPOSING VIEWS: If you prefer reservations, it means you’ve been taught about the benefits of reservations since you were born as well as the fact that this is a facility that people want to take away from us. They have ruled over us for thousands of years, and now that we have a chance, they want to take it away from us. As a result, the entire community is on high alert, fearful that if anyone opposes, they will strike without even learning the reason for the protest. People who did not receive a reservation, on the other hand, believe that those who did receive a reservation are adequate and are taking our children’s place. Apart from that, they believe there is a massive plot against our culture, caste, and faith

HOW TO DEVELOP AN APPROPRIATE UNDERSTANDING ON THIS ISSUE
It’s best to think about something as neutral when trying to comprehend it. All of the disagreements in this universe arise because we are aware of our advantages and disadvantages. If we consider ourselves to be impartial, we will note that we have benefited illegally from other situations.

IS RESERVATION IS AGAINST EQUALITY?
The NEGATIVE CONCEPT OF EQUILITY; states that there will be no discrimination and that all will be treated fairly. A fair law for all, on the other hand, would not result in an equal outcome since those who have already benefited from the rule gain additional benefits, while those in lower social groups do not have the ability to change their situation.
POSITIVE CONCEPT OF EQUALITY; A positive concept of equality does not imply that rules should be made equal for all; rather, it implies that the distance between poor class people Equality entails taking steps in the direction of disadvantaged groups in order to help them uplift themselves.

POSITIVE DISCRIMINATION IS A CONSTITUTIONAL PROVISION
Article 17: Abolition of “untouchability” and criminalization of its practice in any form. Article 45: Promotion of education and economic interests. Article 330 and 332: Seats in the Lok Sabha and State Assemblies are reserved. Article 16(4): Article 16 guarantees equal opportunity for all citizens in matters relating to employment or appointment to any state office. However, “Nothing in this Article shall preclude the state from making any provision for the reservation of appointment or posts in favor of any backward class of citizens which, in the opinion of the state, is not adequately represented.” (Specific reservation rules for members of Scheduled Castes and Schedule Tribes. In Mohan Kumar Singhania v. Union of India, the Supreme Court explained that Article 16(4) is an enabling provision that gives the state discretion to make any provision or reservation for any backward class of people that, in the state’s view, is not adequately represented in the service of the state. For claiming reservation, Article 16(4) imposes no constitutional obligation or confers any Fundamental Right on anyone. The state government calculates the total population of the backwards class and their inclusion in state facilities, then makes reservations and offers the percentage of reservations. Trilok Nath v. State of J&K
held that state decisions must be justiciable and can be questioned if they are based on irrelevant factors. “Backwardness is not a static phenomenon,” the Court said in Jagdish Negi v. State of Uttar Pradesh. It can’t go on forever, and the government has the right to revisit the situation at any time.”

EXAMPLES OF SOCIAL DISCRIMINATION TRAVANCORE KINGDOM; Travancore is an example of the degree to which castes can be treated unfairly when travelling. You could be shocked to learn that in Travancore, a statute was repealed entirely in 1924. And the legislation stated that women from the lower social classes had no right to cover their breasts in public areas, and if they do, they must pay a breast tax. NA DA R CA S T E O F TAMILNADU: The controversy occurs over whether or not women of the backwards class have the right to wear fabric to cover their bodies, and the tension of this dispute skyrockets in 1859 when two women are hanged to death for wearing cloth on their upper bodies. Following this event, the king orders that the women of this group can cover their upper body parts.
Dr B.R. AMBEDIKAR: Dr Ambedkar has done more for Indian women than anyone else. He was the last and 14th child of his family; his father, belonging to the Scheduled Caste community, was a soldier in the British army. As his father was a soldier, Ambedkar got the chance to study in a school. He has written in his biography that he “was the only student in that school who belonged to the Scheduled Caste community, and that when the school’s peon was absent, he was denied water to drink”.
When he passed fourth grade, the entire community rejoiced because for the first time in that society, a small class part had passed. After that, this child had completed a double doctorate from England.

MEANS OF SOCIAL JUSTICE: AFFIRMATIVE ACTION
When a welfare state exists, some action can be taken for the poor group of the main section that gives them a special benefit for all policies. This is known as affirmative action. HORIZONTAL RESERVATION; Women and physically handicapped people can currently take advantage of horizontal reservation. VERTICAL RESERVATION: Vertical reservation occurs when an individual jumps from his reserved seat to a general seat based on his qualifications. The current reservation system in our country is vertical for SC, ST, OBC, and EWS, but horizontal for women. In our country, all reservation systems operate together, and reservation in itself means that everything must be fixed. Many Indians claim that the Indian judiciary is biased because there are no judges from the lower castes in the Supreme Court, despite the fact that a number of religious minorities are represented in the Supreme Court, such as Parses and Muslims, but no people from the SC and ST groups.

RESERVATION AND AFFIRMATIVE ACTION IN INDIA
Articles 332- 334 of the Indian constitution address reserved seats in the Lok Sabha and Rajya Sabha, respectively, and article 243 addresses reserved seats in Panchayati Raj. Article 16 deals with racial discrimination in government jobs. Whenever there is a reservation in every school or college, it is made under Article 15 or, whether it is a minority institution, under Article 30. Extra hostels and fellowships must be given for students from low-income families. There are many laws that protect the rights of SC/ST people and women. There are numerous commissions, such as the SC/ST Commission and the OBC Commission, whose aim is to investigate the growth of their respective communities.


CONCLUSION
Society develops beyond any of these things: you must combine the two or you will not be long enough. The physical need for both merit and social justification in balance We will not be able to progress as a nation unless we have merit. Merit should be followed by merit, but it is also important to follow the mechanism of social justice, so that those who are left behind in the country are those who are left behind in the country, so who are you going to develop together in any way? As a result, it is important to ensure that the balance is accompanied by fairness, justice, and justice. Our reservation system is working well, but it could be better: if reservations satisfy people who need to meet them, I’m not angry at the fact that the reservation is not so angry, so I need to speak with the creamy layer. As a result, the reservationists must discuss the creamy layer. Can leave the reservation facility so that the reservation reaches the individual who is actually needed.

Articles 332-334 of the Constitution address reserved seats in the Lok Sabha and Rajya Sabha, respectively, and article 243 addresses reserved seats in Panchayati Raj. Article 16 deals with racial discrimination in government jobs. Whenever there is a reservation in every school or college, it is made under Article 15 or, whether it is a minority institution, under Article 30. Extra hostels and fellowships must be given for students from low-income families. There are many laws that protect the rights of SC/ST people and women. There are numerous commissions, such as the SC/ST Commission and the OBC Commission, whose aim is to investigate the growth of their respective communities.

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Legally Speaking

Examining the various shades of women in crime: Pink-collar criminality

A study had found that men tend to have higher levels of expertise and legitimate power than women do, specifically in the United States. Even though it has been more than two decades since this study was conducted, there are several factors proving that this phenomenon still remains the force. One of the reasons for this would be that people tend to perceive men as more authoritative and more in control than they perceive women.

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White collar crimes were officially discussed by Edwin H Sutherland, who pointed out that besides the traditional crimes such as assault, robbery, murder, rape and other violent acts, there were certain anti-social activities that were carried out by people belonging to the upper socio-economic strata. They usually carried on these activities during the course of their occupation or business. In the earlier days, these were considered as an usual part of business tactics, carried out by shrewd professionals in order to succeed in their profession or business. Hence, any complaints against such activities usually went unpunished.

Sutherland further categorized crimes into “White Collar Crimes” and “Blue Collar Crimes”. He deemed “White Collar Crimes” as those committed by an individual who belongs to the upper economic class and who violates the terms and conditions of their occupation. A white collar criminal generally violated the criminal law while conducting their professional duties. It includes activities like misrepresentation through fraudulent advertisements, infringement of patents, copyrights and trademarks, etc.

“Blue Collar Crimes” referred to the violent acts that were carried out by people belonging to the lower socio-economic classes, such as robbery, dacoity, theft, murder, etc.

Now, white collar crimes are of a special kind and belong to a special category because they tend to be more harmful to the society and cause greater financial loss than blue collar crimes do. Apart from that, the society used to lack effective enforcement of criminal laws against people who committed such crimes. The people involved in such crimes were also usually influential people, and were able to resist the enforcement of law against them, by means such as bribery.

An important aspect of white-collar crimes that we need to focus upon would be the way Sutherland had mentioned “respectability” and “high status” as the factors that were necessary for a crime committed by a person to be considered as a white collar crime. Back in 1941, only two decades after universal suffrage was granted to women in the US, the status of women in the country was not at an equal footing with men. Unfortunately, the trend has continued till date, wherein we see gender differences regarding opportunities in all walks of life.

On the other hand, we have seen the gendered notion of crime acting like a bane for men as well. The understanding of the feminine qualities to be one where faultlessness and evil deeds is seen to be rare and almost masculine not only ends up wrongly profiling a number of unreported fraudsters, but also lets go of female corporate criminals scot-free. The gendered nature of viewing fraudsters is stereotyped in a way that views the crime as the ‘con man’ preying on the ‘gullible little old lady’ (Croall, 2003).

Even if these female corporate criminals are found to be guilty, they might be dealt with outside of court, which makes it seem like their offences are less serious (Croall, 2003).

In fact, in popular press, white-collar crimes committed by women are termed as “Pink-Collar Crimes,” and female white-collar criminals are called Gucci-criminals or Louis Vuitto-criminals.

A Norwegian study of 255 convicts presented in newspaper articles found that only 20 were female. However, the researchers Gottschalk and Glasø found it difficult to believe that such an egalitarian society would have such a huge discrepancy between the two sexes when it came to white-collar crimes being committed by them (Gottschalk and Glasø, 2013).

A research conducted by the Financial Services Authority in the UK in 2001 had found that men were willing to take more financial risks as compared to women. This suggests that women generally tend to think about the consequences of their actions more thoroughly and are less impulsive than men (Gottschalk and Glasø, 2013).

A study conducted in 2013 involving 83 corporate frauds showed that out of the four hundred thirty-six defendants, only thirty seven were female (Steffensmeier, Schwartz, and Rochea, 2013). It was also found that none of the groups of conspirators consisted of all female members, and they lacked an initiative to form their own groups.

This study is extremely important in the understanding of this essay, since it revealed a number of characteristics that were associated with white collar crimes and the involvement of women in it.

For starters, it revealed that female conspirators received a lesser amount of personal gain or profit as compared to their male counterparts, irrespective of their role in the crime. In fact, a few females did not even get any financial benefit out of their involvement, and instead did it for the job security. Some of these women were at equal footing in the professional sphere with their male counterparts.

Only a few women had major roles to play in the crime, and most of the times, they shared that position with a spouse or someone else with whom they had a close relationship (Gottschalk and Glasø, 2013).

Two main factors that had contributed to the involvement of females in the crimes were relationships and utility. Either they had a close personal relationship with one or more of the men involved in the crimes, or held a strategic position that allowed them access to and knowledge of specific confidential information.

Now, we cannot directly assume that women are more ethical than men in any way. Involvement in white collar crimes is affected by various factors other than just one’s gender.

A study had found that men tend to have higher levels of expertise and legitimate power than women do, specifically in the United States (Carli, 1999). Even though it has been more than two decades since this study was conducted, there are several factors proving that this factor still remains the same. One of the grave reasons for this phenomenon would be that people tend to perceive men as more authoritative and more in control than they perceive women. In fact, one of the main reasons why some women had conducted these white collar crimes was so that they could attain the “masculine” position and assert themselves as someone in control. This ensured their job security. Lombroso’s Masculinization theory supports this specific claim by stating that female crime is a result of the masculinization of female behaviour and that female criminals are biologically, psychologically and socially more “masculine” than non-criminal females (Islam, Banarjee, & Khatun, 2014).

A study was conducted in 1953 where incarcerated male embezzlers were questioned regarding their motive to commit these crimes. The most common reply was that they were borrowing money with the intention of repaying the employers. They also mentioned personal financial problems such as gambling debts.

On the other hand, another similar study conducted in the year 1981 using a sample of females incarcerated for financial crimes showed that they mostly had necessities relating to family members, such as medical bills that needed to be paid (Holtfreter, 2015).

This again highlights the issue that men may involve in financial crimes for reasons that can be deemed to be of a less serio0us nature than women who take part in these crimes.

Expanding on the issue of the seriousness of crimes committed by men and women, a study in which five thousand four hundred and fourty one fraudulent cases were investigated, from ninety three different nations, between the years 2002 and 2011, it was found that women were three rimes more likely to involve in white collar crimes that involved lesser financial damages. This does not necessarily point towards any socio-psychological differences between the sexes, but show that even to this day, men tend to hold more senior positions and tend to have greater opportunities at causing higher damage than women do.

One of the most burning issues at this point of time would be the way a lot of women’s involvement in white collar crimes are overlooked. In most cases, businessmen may register their assets under their spouse’s name to avoid legal consequences of the crime or conduct tax fraud. Since a spouse cannot be compelled to give evidence against their partner, this allows a lot of financial criminals to go scot free.

A 2019 survey conducted by the Indian National Bar Association (INBA) was rolled out to law firms, media houses and corporate houses in the form of objective questions and answers. It was found that 57% people believed that both males and females committed white collar crimes equally. However, a disparity was found wherein 42% people believed that only men committed white-collar crimes, while only a fleeting 1% believed that primarily women were involved in the same. This shows the disproportionate belief that men are involved in white-collar crimes at a higher rate than women, even in the twenty first century.

A lot of white-collar crimes committed by family businesses and small and medium sized enterprises are very commonly overlooked. A handful of women in these fields do tend to achieve positions of power and authority and achieve autonomy (Gottschalk and Glasø, 2013).

Sometimes, the registered owners’ businesses are actually fake fronts for the real work that is done by them. This may also hide the identity of a lot of female white-collar criminals (Gottschalk and Glasø, 2013).

During the mid-1900s surge in female independence, it was theorized that the increased socio-economic freedom being allowed to women is heightening the crime rates among them. Women had followed men into the workplace, and now they were following them into prisons. Irrespective of their gender, white collar criminals should be held equally responsible, since they cause a greater amount of harm to the society at large and they should face serious consequences for the same.

These issues can be looked into by making changes in the policies that deal with them. The government should indulge more criminologists and take their advice regarding the specific policy changes that can help make this situation better. Gendered policies in understanding and managing white-collar crimes can go a long way in reducing the sufferings of a large number of people.

REFERENCES

Croall, H. (2003). ‘Men’s business’? Some gender questions about while-collar crime. Centre for Crime and Justice Studies no. 53 Autumn.

Gottschalk, P., & Glasø, L. (2013). Gender in White-Collar Crime: An Empirical Study of Pink-Collar Criminals. International Letters of Social and Humanistic Sciences, 14.

Islam, M. J., Banarjee, S., & Khatun, N. (2014). Theories of Female Criminality: A criminological analysis. International Journal of Criminology and Sociological Theory, Vol. 7, No. 1, 8.

Malerba, A. (2021). Gender Difference in White-Collar Crime and the Importance of Gender Diversity. Academic Event Festival, Sacred Heart University, 16.

Singh, K., Kadan, V., Sharma, B., & Gandhi, B. (2019). White Collar Crime Survey. Indian National Bar Association (INBA).

A lot of white-collar crimes committed by family businesses and small and medium-sized enterprises are very commonly overlooked. A handful of women in these fields do tend to achieve positions of power and authority and achieve autonomy. Sometimes, the registered owners’ businesses are actually fake fronts for the real work that is done by them. This may also hide the identity of a lot of female white-collar criminals.

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Legally Speaking

Nortel Network’s case: Need to further amend Section 11 of the Arbitration Act

Section 11 of the Arbitration Act is an important provision which provides for intervention of the court before commencement of the arbitration proceedings. It empowers the court to examine the existence of an arbitration agreement while deciding the application for appointment of an arbitrator.

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The Arbitration and Conciliation Act, 1996 (“the Arbitration Act”) provides for minimal judicial intervention. Perusal of various provisions like Sections 8, 9, 13, 16, 34, etc. would show that it provides a time period within which certain things are to be done. In other words, it deals with what can be called as the ‘effect doctrine’. For instance, when, despite the fact that a valid arbitration agreement exists between parties and a party files a civil suit for recovery of an amount, the other party/Defendant can move an application under Section 8 of the Arbitration Act before filing its first statement on defence and seek reference to arbitration. Therefore, the effect of such an application filed under the said provision is to refer the parties to arbitration if existence of arbitration agreement is not dispute. Therefore, the purpose of providing a definite time period is to kick start the arbitration proceedings at the earliest.

Though, the aforementioned provisions provided for a definite time period but, Section 11 of the Arbitration Act, which deals with appointment of arbitrator by court, does not mention any time period within which a party has to file an application for getting an arbitrator appointed. It only mentions that after sending a notice invoking arbitration under Section 21 thereof, a party has to wait for 30 days and in case, of refusal to nominate an arbitrator, a party can file an application before a court. Therefore, the issue is what is the time period within which a party is required to file an application before a court for appointing an arbitrator once the other party has refused to appoint an arbitrator or has not responded to the notice invoking arbitration and 30 days’ time period is over.

SCOPE OF SECTION 11:

Section 11 of the Arbitration Act is an important provision which provides for intervention of the Court before commencement of the arbitration proceedings. It empowers the Court to examine the existence of an arbitration agreement while deciding the application for appointment of an arbitrator.

After implementation of the Arbitration Act, an issue had arisen as to what is the nature of the power exercised by the Chief Justice or his designate under Section 11 – whether it is an administrative order or a judicial order, and also, what enquiry does the Court has to conduct before proceeding to appoint an arbitrator. Initially, the Supreme Court in Konkan Railway Corpn. Ltd. v. Mehul Construction Co., AIR 2000 SC 2821 had held that the powers of the Chief Justice under Section 11(6) of the Act of 1996 are administrative in nature and that the Chief Justice or his designate does not act as a judicial authority while appointing an arbitrator. The same view was later reiterated in Konkan Railway Corpn. Ltd. v. Rani Construction (P) Ltd., AIR 2002 SC 778. However, in the year 2005, the Constitution Bench of the Supreme Court in SBP and Co. v. Patel Engg. Ltd., AIR 2006 SC 450 (7J) over-ruled those judgments and specifically held that the order passed by the Chief Justice is not administrative but judicial in nature and hence, the same is subject to appeal under Article 136 of the Constitution of India. This judgment was, thereafter, further clarified in National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., AIR 2009 SC 170 wherein, the Court listed out certain issues which can be considered in an application filed under Section 11 that is, (i) issues which the Chief Justice or his designate is bound to decide; (ii) issues which he can also decide, that is, issues which he may choose to decide; and (iii) issues which should be left to the Arbitral Tribunal to decide.

AMENDMENT MADE TO SECTION 11 & INSERTION OF SECTION 11(6-A)

As a result of these judgments, the door was wide open for the Chief Justice or his designate to decide a large number of preliminary aspects which could otherwise have been left to be decided by the arbitrator under Section 16 of the Arbitration Act. This position was in sharp contrast to the judgment of the Supreme Court in Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd., AIR 2005 SC 3766, where (in the context of Section 45 of the Act of 1996), it had ruled in favour of looking at the issues/controversy only prima facie.

The above position continued till the amendment was brought on 23.10.2015 in the Arbitration Act. Vide the amendment, the words “the Chief Justice or any person or institution designated by him” wherever it occurred in Section 11 was substituted by “Supreme Court or as the case may be the High Court or any person or institution designated by such Court”. Further, Section 11(6-A) was inserted by which, the power of the Court was restricted only to see whether there exists an arbitration agreement. The amended provision in sub-section (7) of Section 11 provided that the order passed under Section 11(6) shall not be appealable and thus, finality is attached to the order passed under this section. Also, sub-section (8) was inserted in Section 11 which required the prospective arbitrator to make disclosure in terms of Section 12(1) of the Act of 1996. It is important to note that sub-section (13) was also inserted in Section 11 and it casts a statutory obligation on the Court to dispose of the application filed under this provision within a period of 60 (sixty) days from the date of service of notice on respondent. Hence, after the amendment, the Court is required to only see whether an arbitration agreement exists – nothing more, nothing less. Hence, by virtue these amendments, the judgments rendered in  SBP & Co.’s case and Boghara Polyfab’s case were legislatively overruled.

NO CONCEPT OF ‘IMPLIED CONSENT’ IN APPOINTING ARBITRATOR

Further, the remedy under Section 11 of the Arbitration Act can be invoked only when the procedure prescribed under the arbitration agreement has not been complied with. For instance, if the other party upon receipt of the request to appoint an arbitrator as per the agreed procedure, does not appoint an arbitrator within 30 (thirty) days of receiving notice invoking arbitration, then a party can approach a Court by filing an application under Section 11 seeking appointment of arbitrator. There is no concept of ‘implied consent’ in appointing an arbitrator. Also, a right of the party to appoint an arbitrator does not cease immediately upon the expiry of 30 (thirty) days. It ceases or the party forfeits or waives its right to appoint an arbitrator only when the other party files an application under Section 11 before a Court. No appointment can thereafter be made by a party placing reliance on the arbitration agreement. Therefore, if a party appoints an arbitration after a period of 30 (thirty) days but, before the other party files an application under Section 11 before a Court, such appointment is valid.

NECESSITY OF FURTHER AMENDMENT IN SECTION 11

It is important to point out here that after the Insolvency and Bankruptcy Code 2016, it is the Arbitration Act which being amended very frequently by the Legislature. The Arbitration Act or the new Act was implemented to resolve issues which were being faced in the old Act that is, Arbitration Act, 1940. But, as can be seen, some problems still were left unresolved by the new Act. For instance, the Arbitration Act, 1940 did not provide a time period within which the arbitral proceedings were required to be concluded. Though, Arbitration Act, 1996 was implemented and it repealed the old Act however, the new Act also did not provide any time period to conclude arbitral proceedings. The time period to conclude arbitration was provided by Section 29-A, which was inserted by the 2015 Amendment. If the Legislature would have had the vision, it would have rectified this at the time of implementing the new Act and not by making amendment after almost 20 years.

Another instance is Section 11 of the Arbitration Act. Perusal of Section 11 would show that it does not mention any time period within which a party is supposed to file an application under Section 11 once a notice under Section 21 of the Act of 1996 has been received by the other party and no step has been taken to appoint an arbitrator within 30 days. This is in stark contrast to the other provisions like Sections 8, 9, 13, 16, 34, etc. of the Arbitration Act as well as the object and purpose of said Act.

The question, therefore, arises is what will be the maximum time period within which a party has to file an application under Section 11 after issuance of a notice under Section 21 of the Act of 1996? It is pertinent to mention that though, the provisions of the Limitation Act, 1963 (“Limitation Act”) are applicable to arbitration proceedings however, it also does not specify the time period within which an application seeking appointment of an arbitrator is to be filed before a Court. Also, there is a difference between the period of limitation for filing an application seeking appointment of an arbitrator and period of limitation applicable to the substantive claims made in the underlying contract. For recovery of any amount, the period of limitation is 3 years from the date when the right to sue accrues. Since, none of the Articles in the Schedule to the Limitation Act provides a time period for filing an application under Section 11, therefore, it would be covered by the residual provision Article 137 of the Limitation Act which provides a period of limitation of 3 years from the date when the right to apply accures. Therefore, what flows from the above is that an application under Section 11 can be filed within a period of 3 years from the date of refusal to appoint an arbitrator after receiving notice under Section 21 thereof or, on expiry of 30 days after issuance of notice under Section 21, whichever is earlier.

NORTEL NETWORK’S JUDGEMENT

Recently, the Supreme Court in Bharat Sanchar Nigam Ltd. v. Nortel Networks India Pvt. Ltd, [2021 SCC Online SC 207, C.A. No. 843-844 of 2021 judgment dated 10.03.2021] had the occasion to dwell into this issue. In this case, a contract was awarded by the Appellant to the Respondent for planning, engineering, supply, insulation, testing and commissioning of GSM based cellular mobile network in the southern region covering Kerala, Karnataka, Tamil Nadu, Andhra Pradesh circles and Chennai telephone district. Some disputes arose under the contract and the Appellant withheld an amount of Rs. 99 crores (approx.) of Respondent towards liquidated damages and other levies. Vide letter dated 13.05.2014, the Respondent raised a claim for payment of the said amounts and in response, vide letter dated 04.08.2014, the Appellant rejected the claim. After a period of 5 ½ years, the Respondent issued a notice invoking arbitration under Section 21 of the Arbitration Act and requested appointment of an arbitrator. The Appellant responded to this letter on 09.06.2020 and stated that the claims are ex facie time barred. Thereafter, Respondent filed an application under Section 11 and the High Court referred to the disputes to arbitration. Hence, the appeal was filed by the Appellant before the Supreme Court. The Supreme Court after taking note of Sections 8, 9, 13, 16, 34, etc. of the Act of 1996 and Article 137 of the Limitation Act observed that a period of 3 years for filing an application under Section 11 would run contrary to the scheme of the Arbitration Act. However, since, there was no express provision to regulate this, it thus relied upon Article 137 of the Limitation Act and held that the application filed by Respondent under Section 11 was within limitation but, at the same time, directed the Legislature to make amendment and prescribe a specific period of limitation within which a party may move the court for making an application for appointment of the arbitrator. Further, though, the Court held that the application filed under Section 11 was maintainable but, it also held that the claims of Respondent were ex facie time barred. Hence, it allowed the appeal and set aside the order of the High Court.

CONCLUSION

Hence, the recommendation made by the Supreme Court to make amendment to Section 11 will help in speedy commencement of arbitral proceedings as sub-section (13) already casts a statutory obligation on the Court to dispose of the application filed under this provision within a period of 60 days from the date of service of notice on Respondent. In my personal opinion, an application under Section 11 should be filed within a period of 60 days from (a) the date of refusal to appoint an arbitrator after receiving the notice under Section 21 or, (b) on expiry of 30 days statutory waiting period whichever is earlier. Further, a provision should also be made for condoning delay in filing the application beyond 60 days provided sufficient cause exist. Such period should not exceed a further time of 30 days.

It is important to point out here that after the Insolvency and Bankruptcy Code 2016, it is the Arbitration Act which being amended very frequently by the legislature. The new Act was implemented to resolve issues which were being faced in the Arbitration Act, 1940. But, as can be seen, some problems still were left unresolved by the new Act.

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Pre-trial role of the police: Exhaustive or insufficient?

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From the data and statistics collected from, United Nations Office on Drugs and Crime, latest available till 2013, says there are 138 police personnel per lakh of the population in India. This has been substantiated by the Indian Parliament in 2014, that there was shortage of 5.6 lakh police personnel against the sanctioned strength of 22.8 lakh, which clearly takes the figures to 25% vacancy. State police has 24% vacancies in January 2016, as the strength sanctioned is 181 police personnel per lakh people. These statistics serve for two crucial purposes, firstly in questioning the qualitative work function of the police, secondly in analysing the work function of the police, in all the domains. Our Police force, is legally regulated by Police Act, 1861 and Modern Police Act,2015, primarily for executing its functions. But there are certain duties and functions which police is bound to perform in the light of Cr.P.C, which is again in consonance to their primary source of regulation. In this paper, the author has tried to analyse the duties and role of police, primarily pertaining to the Judicial functions, which will also ensure the exhaustive analysis of the checks and control, which serves as the threshold for the police personnel in the exercise of their duty. This paper, is an attempt to link the work function of police, pertaining to the police acts and Cr.P.C by taking into account various factors like modernisation, training prospects, pre-trail functions in a coherent way.

CHAPTER- 1

DUTIES OF POLICE IN THE POLICE ACTS

“ Independent India must choose, whether we will have a people’s police or a ruler appointed police, or in other words whether the people should rule or the parties shall rule. The Constitution has laid down that the people should rule, so the police must also be the people’s police”

– Khosla Commission in 1968

Under our highest organic law of the land, police is kept under the domain to State list, so it is the duty of the state to provide efficient and coherent police force, for proper policing. All the state polices are regulated by Indian Police Act,1861. The duties of the police enshrined under the Act, basically finds itself within the clutches of the test of time, with respect to colonialism vs democracy.

Section 23 of the Indian Police Act, clearly defines the general role and duty of the police officer and section 20 of the act, provides for the restriction which acts as a check and balance on the unfettered discretion of the police when exercising their duty. The changing times, drew great attention of the esteemed law makers of our country and for maintaining and preserving the social order and tranquillity of our state, so a new act was passed, Model Police Act of 2006, which exhaustively discusses the roles and duties of the police, in all the fronts.

The general duties of the police has been incorporated under section 57 of the Model Police Act, 2006, which brings out the general essence and theme of the concept policing, enshrined in our laws. In the present research, it is important to pay much heed to section 57(e), 57(f) and 57(g) of the Model Police Act, which basically deals with the role of Police in the trial procedures. Section 57(e), deals with the dynamic role of the police, which is really necessary for curbing the commissioning of the crimes and any other opportunity associated with such commission of the crime. Section 57(f) deals with the duty of the police, to accurately register all the complaints brought to their notice, by any form, right from in-person representation to the digital media information. In this regard it is pertinent to note, how the Hon’ble Rajasthan High Court, interpreted the idea, on telephonic FIRs, in the case of Tehal Singh v State of Rajasthan, by virtue of which the main essence of section 154 Cr.P.C has been maintained. Section 57(g) of the act, it deals with the duty of the police with regards to registration and investigation of the cognizable offences. This also furnishes, that free copy of the FIR to be given to the complainant. This provision of Cr.P.C is in full consonance with the spirit of section 154(1), 154(2) and section 156(1) of the Cr.P.C. All these changes were brought in the initial police act, in accordance to the guidelines and remarks made by Hon’ble Supreme Court in the case of Prakash Singh v Union of India.

(The essential functions of the police pertaining to the trial, which has been given in the police acts, has been discussed in the next chapter)

CHAPTER-2DUTIES OF THE POLICE UNDER CRPC

1) ARREST AND DETENTION IN THE CUSTODY

For prevention and detection of crimes, a police officer has the power and duty to arrest the accused on the reasonable grounds or reasonable suspicion or with appropriate orders(warrant of arrest). This has been enshrined under section 41 of the Cr.P.C, also the distinct power given to police under section 42 of the act is necessary for the further investigation and trial procedures. In case of the cognisable offence, a police can arrest the alleged culprit, without warrant and can investigate into the case, without any directions from the magistrate. In the case of non-cognizable offence there is an exception to the rule, as enshrined by section 42 of the act. The duties and procedure for the arrest should be made in consonance to section 41-B, 41-C and 41-D. Section 41-D, empowers the arrested to meet the advocate of his choice, during the process of interrogation and in regards to this Supreme Court has given some guidelines for arresting a judicial officer, which are not too exhaustive, in the case of Delhi Judicial Service Assn. v State of Gujarat. Also, section 57 empowers the police for the search of the place, who is sought to be arrested, which is further fabricated by section 51 which gives the police, power to search for the arrested person and if found something police officer can seize them under section 102 for producing it in the court and further under section 52, gives power to seize offensive weapons. According to section 53, it is the duty of the police to get the medical examination of the accused by the medical practitioner and Supreme Court held in the case of State of Bombay v Kathi Kalu Oghad, held that section 53 is not violative of article 20(3). It is further extended by section 54, where the arrested is examined by a registered medical practitioner.

By virtue of section 50(1), it is the duty of the police officer to inform the arrested person, his ground for arrest, which is in true consonance with the article 22(1) of the Constitution, which is a precious right as held in the case of Udaybhan Shuki v State of U.P. By virtue of section 50(2), it is again the duty of the police to inform whether the person arrested has right to bail, if arrested for non-bailable offence. In the case, Joginder Kumar v State of U.P and D. K Basu v State of W.B made it obligatory on the part of the police, to inform the relatives or friends of the arrested person and also to make an entry in a register maintained by the police, this has been incorporated with a view to maintain the dignity of the rights provided under article 21 and 22 of the Constitution. Under section 56 and 76 of the act, it is the duty of the police to take the arrested to the magistrate without any delay, which has been specified and formulated well in the section 57, which provides for the time threshold of 24 hours, with an exception as explained under section 167. The purpose for not detaining the arrested for more than 24 hours has been explained in the case of Mohd. Suleman v King Emperor and the Hon’ble Supreme Court portrayed this provision to keep a check on the healthy investigation by the police, and directed to be observed positively. Apart from this, as per the requirements of section 62, the procedure for the serving of the summons has to be done by a police officer in general, otherwise specified by the Courts. By virtue of section 79, the police officer has the power to arrest outside the jurisdiction, with the warrant of arrest.

2) PRE-TRIAL: INVESTIGATION BY POLICE

After the FIR is lodged, as per the ingredients of section 154, it is the duty of police under 154(1) to register the FIR, as held in the case of Lalita Kumari v Govt. of U.P, pertaining to any cognizable offence and such information must be definite and not vague. Further as per the mandatory provision of the section 154(2), it is the duty of the police to furnish the copy of FIR to the complainant, whose exception has been explained categorically in the case of State v Gnaneswaran. In the case of non-cognizable offences, complying with the provisions of section 155(1), a police officer cannot proceed to investigate without the orders of the magistrate and its non-compliance may be a material cause in vitiating the ultimate proceedings, as well as it may be violative of Article 21. When the police officers gets an order from the magistrate for investigating a non-cognizable offence, the police officers, save as powers to arrest gets the power to arrest as in the case of cognizable offence. The police officer, by virtue of section 156, gets power to investigate the cognizable offences, where under 156(3) a magistrate has the power to order investigation, only at the pre-cognizance stage. The right of the police officer for investigation under section 156 is unfettered and cannot be controlled by Judiciary. Another important procedural aspect is the prompt lodging of the FIR is necessary for recording the spontaneous version of the case, hence it is the duty of the police to do the same. While analysing the section 156, we find the concept of cognizance by magistrate under section 190. The police in complaints sent to them under section 156(3) may make the investigation of the offence and send a report to the Magistrate under section 173. It will deemed to have been taken on the police report not on the original complaint. A magistrate may take cognizance of the offence under section 190, and instead of ordering investigation under section 156(3) can examine the complainant under section 200, and if the magistrate finds the matter fit, can postpone the issue of process against the accused and can either inquire into the case himself, or direct an investigation by the police officer, as to whether there is sufficient ground for proceeding. When police officer receives the complaint under section 202 for investigation and report, he has all the powers which is required for the investigation, similar to his power in case of an offence invoked via section 154. Further by virtue of section 158, the duty of the police officer pertaining to the submission of report, for which the state government appoint the senior police officer for the same.

In case of the cognizable offence, after the lodging of the FIR, the police officer shall proceed to the spot, to investigate and after necessary discovery, may make arrest, as per section 157(1). Moving ahead with the procedural aspect, there is the power of police under section 160(1), to require the attendance of the witness maintaining the conditions specified therein. There is a proviso attached to the section pertaining to person below 15 years or age and person above 65 years of along with woman or a man who is physically disabled. In Queen Empress v Jogindra Nath Mukerjee, it was held magistrate cannot issue any process compelling a person to attend before a police magistrate. Further section 161 and 162 gives the power to the police, for examination of the witness. According to section 161(1), oral examination of the person acquainted with the facts and circumstances of the case. As per the provision, it is the legal duty of the person to attend the investigating officer, if required, as intentional omission is an offence under section 174 IPC. In Pushma Investment (P) Ltd. v State of Meghalaya, Gauhati High Court has held, police can require witness to attend the police station, if they reside within the limits of the station or the adjoining police station. Section 161(1) lays down certain prescriptions, to be followed pertaining to the rank of the police officer, which must be specified by the State Government, must be duly followed. Analysing the flavour of the section, we can understand that the person, who is being examined must answer all the question correctly, but this would not bound him as such, which can invoke criminal liability against himself. Furthermore, in the case of Gian Singh v State(Delhi Admn.), it was held that police can question the accused even on his right to silence, with due permission of the magistrate, in the judicial custody. While interrogation, if a person furnishes voluntary false information to the police, or gives false evidence can draw penal action under section 193 and 177 of IPC respectively. In this context, Nandini Satpathy v P.L Dani, case is extremely important, which says area covered by section 161(2) and Article 20(3) is substantially the same and the 161(2) of Cr.P.C is a parliamentary gloss on the constitutional clause. The Supreme Court held that, a person is bound to answer where there is no clear tendency to criminate. The concept of “Compelled Testimony” was brought into the picture, and in the case, some guidelines were framed which were to be followed. The most important one was that the accused must be allowed to meet his lawyer, during the interrogation, which was also held in the D.K Basu v State of W.B. In one of the guidelines of the Satpathy’s case, it was held, police has the duty to invariably warn and record the fact, about the right to silence against self-incrimination and after the examination of the accused, the police officer must take him to the magistrate or any responsible person(in case of absence of his lawyer).

Finally, all these guidelines were not binding in nature, but were necessary for bringing out the prudent police policy. The section 161(3) gives wide power to the police to record or not to record any statement during the investigation. Now section 162 and 163, broadly talk about the validity and admissibility of the nature of statements recorded by the police under section 161. Section 162, prohibits signing of any statement obtained by the police, during the course of investigation, supports that it protects the accused from zealous police officers and untruthful witnesses. This provision is time specific and is applicable only during the time of investigation, with an exception to the dying declaration which is admissible under section 32 of the Indian Evidence Act. Therefore, the statements not reduced in writing by the police cannot be used as contradiction, under section 145 of the Evidence Act. The Court cannot rely on the confessions of the accused and case diary statements of the witnesses to come to a conclusion, as statements of witness under section 161 are admissible to the limited extent permitted under section 162(1) proviso and 162(2). Finally, the pivotal provision to test the aforesaid examination comes into picture, section 163, by virtue of which statements cannot be recorded by the police by any kind of pressure or inducement. This section derives its aroma in the presence of section 24 of Indian Evidence Act and 163(1) is not only applicable to the police but to any person in authority. Finally, when the investigation is complete, there are certain procedures to be followed upon. When the evidence is deficient, the accused is to be released by the police, with a bond, with or without security, for the procedure, to be taken after cognizance and during the trial(Section 169). When the evidence is sufficient, the case has to be taken by the police to the magistrate, for the trial and if the offence is bailable he has to be released on bail, with a bail bond with or without securities(Section 170(1)). Secondly, as per provision 170(2), the police officer has to forward any weapon or article, or any security to the magistrate, in order to give evidence for the charge framed against the accused.

On the completion of investigation, a mandatory report is submitted by the Investigating Officer, which is commonly called, ‘Charge-sheet’, and it is given without delay (173(1)). It includes all the necessary details of as prescribed under section 173(2)(i) and submission of this report is a part of the investigation. In this regard it is pertinent to note that, the magistrate under section 156(3) has the power to further direct the investigation even after submission of the report by the police. This means it would not affect the power of the investigating officer to further investigate the case even after the submission of the report. Finally as per the section 174 the police has the power to investigate and report the cases in cases of unnatural and suspicious deaths and under section 175 the police has the power to summon at inquest, in order to investigate the case registered under section 174 and their statements are again governed by the section 162.

CONCLUSION

The role of police, their duties in the light of various police acts and under the Cr.P.C is undoubtedly exhaustive and coherent. The Pre-trial role of the police, right from arrest to the investigation is in full consonance to the spirit of the fair trial, an original form of natural justice. This has been elucidated in the above research, which deals with the role of the police which is to be expected right from arresting a person, by allowing the arrested certain basic human rights is really commendable.

The latent jurisprudence of all these rights clearly furnish that, our highest organic laws of the land, grants us certain Fundamental Rights, which is not jeopardised throughout the pre-trail role performed by the dynamic police. The investigation procedure, requires that magistrate and the judicial bodies are kept informed about the procedures adopted by the police, which keeps a check on the process.

The recording of statements by the police, has been always subjected to the evidence and its value, which again doesn’t give the draconian power to the police authorities, making the whole actions and procedures adopted by them smooth, justifiable and in the interest of the fair trial for the accused. Therefore, from the above discussion and research I am of the view that the role of police, is the pre-trial is exhaustive enough to make the process coherent.

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Phone tapping: The saga of right to privacy and the Telegraph Act

The right to privacy was conceived around the home, and unauthorised intrusions into homes were seen as interference with the right to personal liberty. The court recognised ‘the right to the people to be secure in their persons, houses, papers, and effects’ and declared that their right against unreasonable searches and seizures was not to be violated.

Manjunath Kakkalameli

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In the Era of Digital Communication, Telephone – Tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to sold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of sub-rosa operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by, she authorities of the day. Although Phone Tapping is a debatable issue in India, as it directly infringes one’s Right to Privacy, which is a fundamental right of every Indian.

However, meanwhile in Maharashtra, As Smt. Rashmi Shukla, IPS Officer alleged to be leaked the confidential data of intercepts, which create a whirl in Maharashtra Politics. In this background let’s travel to revisit the issue of Phone Tapping.

PHONE TAPPING

The term “phone tapping” means interception of the contents of communication through a secret connection to the telephone line of one whose conversations are to be monitored usually without the consent of the person whose communication is monitored. Here, the question arises about the violation of the right of privacy of individuals. Every act without the consent of the person termed as an illegal act by a private person or public officer but in the case of public emergency or in the interest of public safety does not need any consent.

While it is moral and ethical not to peep in some one’s privacy but when it comes to sovereignty and Internal security of the state, the state has every Legal right to do so.

Life and liberty are not empty words; they include all those necessary ingredients which give meaning to them. Privacy of a person is a part of his life and liberty under our Constitution. Any invasion of this right, which is fundamental in nature, can be done only according to the constitutional limitations.

The act of telephone tapping affects right to privacy as well as right to freedom of speech and expression, both are Fundamental Rights under the Constitution. Art 21 of the Constitution.

Therefore, not only substantive law but even the procedure should satisfy the constitutional test. The power of interception of communication can be resorted to, when it is necessary or expedient so to do in the interest of the sovereignty and integrity of India, security of the state, friendly relations with foreign state, public order or for preventing incitement to the commission of an offence.

PHONE TAPPING, RIGHT TO PRIVACY AND THE JUDICIARY

The Judiciary of India, have time to time uphold the right to privacy, Courts in its order/judgments have observed that any private conversations of any individual have to be protected unless it is disturbing the National Security and Sovereignty.

However, The process related to the right to privacy began in Kharak Singh v. State of U.P., where the court discussed the relationship between surveillance and personal and found that unauthorized intrusion into a person’s home would interfere with his/her right to personal liberty.

The right to privacy here was conceived around the home, and unauthorized intrusions into homes were seen as interference with the right to personal liberty. The court recognized “the right to the people to be secure in their persons, houses, papers, and effects” and declared that their right against unreasonable searches and seizures was not to be violated.

Further, in People`S Union vs The Union of India And Another, the court ruled that telephone tapping would violate Article21 of the Indian Constitution unless it was permitted by the procedure established by law and that it would also violate the right to freedom of speech and expression under Article 19 unless it came within the restrictions permitted by Article19(2) & has issued certain guidelines-

1. An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department the Government of India and the State Governments not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned with one week of the passing of the order-.

2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the order.

3. The matters to be taken into account in considering whether an order is necessary under Section list of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means.

4. The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses specified in the order belong an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular set of premises described in the order.

5. The order under Section 5(9) of the Act shall, unless renewed, case to have effect at the end of the period of two month from the date of issue. The authority which issued the order may, at any time before the end of two-month period renew the order if it by the State Government.

(a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act.

(b) If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material.

(c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months.

6. The authority which issued the order shall maintain the following records:

(a) the intercepted communications,

(b) the extent to which the material is disclosed,

(c) the number of persons and their identity to whom any of the material is disclosed.

(d) the extent to which the material is copied and

(e) the number of copies made of any of the material.

7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.

8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.

9. There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed 5(2) of the Act, it shall record the finding to that effect.

Further, in the case of K.L.D Nagasree v. Government of India (2006), while referring the ruling of the Court in the P.U.C.L case, it was held that “For the reason of making an order for interception of messages in the exercise of powers under Section 5(1) and (2) of the Telegraph Act, 1885 the happening of any public emergency or the existence of a public safety interest is the sine qua non (mandatory).”

PHONE TAPPING: ONLY IN CASE OF NATIONAL SECURITY AND THREAT TO SOVEREIGNTY

In 2019, The Bombay High Court in Vinit Kumar vs State of Maharashtra held that tapping of telephones was only allowed in cases of public emergency or public safety. Observing that illegal phone tapping was an infringement of the fundamental right to privacy, the court quashed three orders passed by the Union Home Ministry allowing investigating agencies to intercept the calls of a businessman involved in a bribery case.

CONCLUSION

In light of the above, it can be said that there is no legal impediment in recording the telephonic conversation with prior written consent of all the parties to the telephonic conversation and the same is not in violation of right to privacy enshrined under Article 21 of the Constitution and shall also be outside the ambit of interception.

Interception in the general sense means monitoring of such information by means of a monitoring device or viewing, examination or inspection of the contents of any direct or indirect information and diversion of any direct or indirect information from its intended destination to any other destination. Remedies that are available to aggrieved persons can be that in cases where unlawful interception infringes the right to privacy then the aggrieved person can file a complaint in the Human Rights Commission.

For now, the Indian public has gradually become aware of possible privacy violations that could be caused by technology and they know for prevention and investigation of crimes or in maintaining the sovereignty, integrity, and security of the state or if such information discloses clues and evidence of a crime or scandal, they have to be pursued.

An FIR can be lodged under the IT Act & telegraph act, when illicit phone interception comes into the knowledge of the person. Moreover, the aggrieved person can move to the Court against the person or company doing the Act. Therefore, in India, phone tapping has to be approved by a designated authority and it is illegal otherwise.

The Author is Executive Member of Maharashtra BJP Executive Committee – Legal Cell.

The term ‘phone tapping’ means interception of the contents of communication through a secret connection to the telephone line of one whose conversations are to be monitored usually without the consent of the person whose communication is monitored. Here, the question arises about the violation of the right of privacy of individuals. Every act without the consent of the person is termed illegal by a private person or public officer but in the case of public emergency or in the interest of public safety does not need any consent.

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COGNISANCE BY MAGISTRATE: AN OVERVIEW

Shivanshu Goswami

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The primary step in any criminal case is taking cognisance of the offence. By taking cognisance it is meant to take judicial note of an offence. Only after taking the cognisance of offences, the judiciary comes into picture. If we apply the dictionary meaning it simply refers to becoming aware or getting the knowledge of any such offences. This was also enunciated by the apex court, in the case of R.R.Chari v. State of U.P were it defined it as the application of judicial mind. Section 190- 199 of the Code of Criminal Procedure, 1973 describe the methods by which, and the limitations subject to which, various criminal courts are entitled to take cognizance of offences. Section 190 (1) states about the powers and conditions under which any magistrate of first and second class specifically empowered in this behalf can take cognizance

The word cognizance has nowhere been defined in the Code. The definition of cognizance has been derived from the case laws. According to the legal dictionary the meaning of cognizance is as under-

The power, authority, and ability of a judge to determine a particular legal matter. A judge’s decision to take note of or deal with a cause. In simple words, the word cognizance can be defined as cognizance means exercise of a judicial discretion to proceed with the case.

As per black law dictionary “Cognizance” –

1) A court’s right and power to try and to determine cases; JURISDICTION.

2) The taking of judicial or authoritative notice.

3) Acknowledgment or admission of an alleged fact; esp. (hist), acknowledgment of fine

(Bryan A. Garner (Editor in chief) BLACK’S LAW DICTIONARY 10th edition)

The word “cognizance” has no esoteric or mystic significance in criminal law or procedure. It merely means “become aware of” and when used with reference to a court or judge, “to take notice judicially” [Ajit Kumar Palit v. State of W.B., (AIR 1963 SC 765).

Taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence for the purpose of proceeding to take subsequent steps (under Section 200 or Section

202, or Section 204) towards inquiry and trial [Darshan Singh Ram Kishan v. State of Maharashtra, (1971) 2 SCC 654]. However, when a Magistrate applies his mind not for the purpose of proceeding as mentioned above, but for taking action of some other kind, for example, ordering investigation under Section 156(3), or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of the offence [Tula Ram v. Kishore Singh, (1977) 4 SCC 459]. The word “cognizance” has been used in the Code to indicate the point when the Magistrate or a judge first takes judicial notice of an offence [Gopal Marwari V. Emperor, (1944) 45 Cri LJ 177].

TAKING OF COGNISANCE

Meaning of what is “taking cognizance” has not been defined in the Criminal Procedure Code. However, it can be said that any Magistrate who has taken cognizance under Sec. 190 (1) (a), Cr. P.C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provision i.e., proceedings under Section 200, and thereafter sending it for inquiry and report under Section 202. It can be said that before a Magistrate takes cognizance of an offence, he must have applied his mind for the purpose of proceeding in a particular way as indicated in the subsequent provision. When a Magistrate applies his mind not for the purpose of proceeding under the subsequent sections but for taking action of some other kind, e.g., ordering an investigation under Section 156 (3) or issuing a search warrant for purposes of investigation, he cannot be said to have taken cognizance of. As to when a cognizance is taken will depend upon the facts and circumstances of each case and it is not possible to define what is meant by it. It is only when a Magistrate applies his mind for purposes of proceeding under Section 200 and subsequent sections of Chapter XV (XVI old) or under Sec. 204 of Chapter XVI (XVII old) of the Code that it can be positively stated that he has applied his mind and, therefore, he has taken cognizance [Narayan Das Bhagwan Das v. State of West Bengal, AIR1959 SC 1118]

MAGISTRATE NOT BOUND BY OPINION OF INVESTIGATING OFFICER

One of the courses open to the Magistrate is that instead of exercising his discretion and taking cognizance of a cognizable offence and following the procedure laid down under Section 200 or Section 202 of the Code, he may order an investigation to be made by the police under Section 156(3) of the Code, which the learned Magistrate did in the instant case. When such an order is made, the police is obliged to investigate the case and submit a report under Section 173 (2) of the Code. On receiving the police report, if the Magistrate is satisfied that on the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence, he may take cognizance of the offence under Section 190 (l)(b) of the Code and issue process straightway to the accused. However, Section 190 (l) (b) of the Code does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation makes out a case against

Under section 190(1) (a), a Magistrate can take cognizance upon receiving a complaint. But the question as to whether the Magistrate has taken cognizance of the offence depends upon the steps taken afterwards. If he applies his mind to proceed with the complaint under sections

200 to 203, he must be said to have taken cognizance; whereas if he applies his mind to the complaint and proceed under section 156(3) or section 93, he cannot be said to have taken cognizance of the offence (K.N.C. Pillai, R. V. Kelkar’s Criminal Procedure, Sixth Edition, Eastern Book Company, 2015)

The reference can be drawn from the cases below-

(1)- Superintendent & Remembrancer of Legal Affairs vs. Abani Kumar Banerjee, AIR1950 Calcutta 437

(2)- Narayandas Bhagwandas Madhavdas v. State of West Bengal, (1960) 1 SCR 93

(3)- Ajit Kumar Palit v. State of W.B. & Anr., (1963) Supp (1) SCR 953;

(4)-Hareram Satpathy v. Tikaram Agarwala & Anr., (1978) 4 SCC 58

(5)- Bhushan Kumar vs. State (N.C.T. of Delhi), (2012)2 SCC(Cri.)872

When a written complaint disclosing an offence is filed before a Magistrate or Court, as the case may be, under chapter XV of the code, as soon as the Magistrate registers that complaint for recording the statements of the complainant and the witnesses present, if any, under section 200 of the Code, the Magistrate is deemed to have taken cognizance.

The important judgment of Hon ‘ble Supreme Court on this topic is

S.K. Sinha, Chief Enforcement officer vs Videocon International Ltd. & Ors, 2008 (61) ACC 371 SC.

Since the Hon’ble Apex Court has discussed various case laws in the aforesaid judgment, hence, it will be appropriate to reproduce the relevant part of the judgment, herein below

“…12. The expression cognizance has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means become aware of and when used with reference to a Court or a Judge, it connotes to take notice of judicially. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. Taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance. Chapter XIV (Sections190-199) of the Code deals with Conditions requisite for initiation of proceedings. Section 190 empowers a Magistrate to take cognizance of an offence in certain circumstances. Sub-section(1) thereof is material and may be quoted in extenso.

1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence

(a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

13. Chapter XV (Sections 200-203) relates to Complaints to Magistrates and covers cases before actual commencement of proceedings in a Court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course. It enables him before the issue of process either to inquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether there is sufficient ground for proceeding further. The underlying object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused. It thus allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under Section 202 is, no doubt, extremely limited. At that stage, what a Magistrate is called upon to see is whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused.

14. Then comes Chapter XVI (Commencement of proceedings before Magistrates). This Chapter will apply only after cognizance of an offence has been taken by a Magistrate under Chapter XIV. Section 204, where under process can be issued, is another material provision which reads as under:

204. Issue of process.- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub- section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub- section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of section 87.

15. From the above scheme of the Code, in our judgment, it is clear that Initiation of Proceedings, dealt with in Chapter XIV, is different from Commencement of Proceedings covered by Chapter XVI. For commencement of proceedings, there must be initiation of proceedings. In other words, initiation of proceedings must precede commencement of proceedings. Without initiation of proceedings under Chapter XIV, there cannot be commencement of proceedings before a Magistrate under Chapter XVI. The High Court, in our considered view, was not right in equating initiation of proceedings under Chapter XIV with commencement of proceedings under Chapter XVI.”

In Devarapalli Lakshminarayana Reddy & Ors. v. V. Narayana Reddy & Ors., (1976)

3 SCC 252, Court Observed

“It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words “may take cognizance” which in the context in which they occur cannot be equated with must take cognizance”. The word “may” gives discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from, being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.

This raises the incidental question: What is meant by “taking cognizance of an offence” by a Magistrate within the contemplation of Section 190?. This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section190(1)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence. [see also M.L. Sethi v. R.P. Kapur & Anr., (1967) 1 SCR

COGNISANCE TAKEN BY A MAGISTRATE NOT EMPOWERED

If any magistrate not empowered to take cognizance of an offense under S. 190(1)(a) and 190(1)(b), does erroneously in good faith take cognizance of an offense, his proceeding shall not be set aside merely on the ground of his not being empowered.

Purshottam Jethanand v. State of Kutch [9]: If a magistrate takes cognizance of an offense and proceeds with a trial though he is not empowered in that behalf and convicts the accused, the accused cannot avail himself of the defect and cannot demand that his conviction be set aside merely on the ground of such irregularity, unless there is something on the record to show that the magistrate had assumed the power, not erroneously and in good faith, but purposely having knowledge that he did not have any such power. On the other hand, if a magistrate who is not empowered to take cognizance of an offense takes cognizance upon information received or upon his own knowledge under. 190(1)(c) his proceeding shall be void and of no effect. In such a case it is immaterial whether he was acting erroneously in good faith or otherwise.

COGNISANCE OF OFFENCES BY COURT OF SESSION

No court of session shall take cognizance of any offense as a court of original jurisdiction unless the case has been committed to it by a magistrate under S. 193 of the Code. When an offense is exclusively triable by a court of session according to S.26 read with the First Schedule the Magistrate taking cognizance of such offence is required to commit the case for trial to the Court of Session after completing certain preliminary formality. Sometimes the posts of CJM and ADJ are held by one individual. In such a case the CJM was required to take cognizance and try economic offenses. It was ruled that S. 193did not apply to that case. For proper distribution of the work in the court of session and for administrative convenience, it has been provided that an Additional Session Judge or Assistant Session Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try under S.194 of the Code.

But it is very important to point out at this juncture that once the case is committed to the Sessions Court under Section 209 Cr.P.C, the embargo engrafted in Section 193 Cr.P.C is lifted and the Sessions Court assumes all jurisdictions which are vested with the court of Original jurisdiction including the power to summon such other co-accused persons who have not been charge-sheeted by the investigating officer. Reliance in this regard is placed upon the judgment of the Hon’ble Supreme Court in Kishun Singh v. State of Punjab, (1993) 2 SCC 16, the relevant extract of which is reproduced herein below for the kind consideration of this Hon’ble Court:

16. We have already indicated earlier from the ratio of this Court’s decisions in the cases of Raghubans Dubey [(1967) 2 SCR 423 : AIR 1967 SC 1167 : 1967 Cri LJ 1081] and Hareram [(1978) 4 SCC 58 : 1978 SCC (Cri) 496 : (1979) 1 SCR 349 : AIR 1978 SC 1568] that once the court takes cognizance of the offence (not the offender) it becomes the court’s duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the court’s duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance. We have also pointed out the difference in the language of Section 193 of the two Codes; under the old Code the Court of Session was precluded from taking cognizance of any offence as a court of original jurisdiction unless the accused was committed to it whereas under the present Code the embargo is diluted by the replacement of the words the accused by the words the case. Thus, on a plain reading of Section 193, as it presently stands once the case is committed to the Court of Session by a Magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted. On the Magistrate committing the case under Section 209 to the Court of Session the bar of Section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record.

The Hon’ble Supreme Court in in Dharam Pal v. State of Haryana, (2014) 3 SCC 306 has authoritatively held that the language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and the Sessions Judge has jurisdiction to summon those persons shown in column 2 of the police report to stand trial along with those already named therein and it is absolutely fallacious to contend that the Sessions Court would have no alternative, but to wait till the stage under Section 319 Cr.P.C was reached. Thus, it becomes evident that upon committal of the case to the Sessions Court, the Court under Section 193 Cr.P.C has sufficient power to proceed to summon the accused not charge-sheeted against whom a prima facie case is made out.

CONCLUSION

The expression “to take cognizance” has not been defined in the code, nor does the code prescribed any special form of taking cognizance. The word “cognizance” is however, used in the code to indicate the point when the magistrate or judge takes judicial notice of an offence. It is a word of infinite import and is perhaps not always used in exactly the same sense. The expression ‘cognizance’ merely means ‘become aware of’ and when used with the reverence to a court or judge, it connotes ‘to take notice judicially’. It indicates the point when the court or a magistrate takes judicial notice of an offence with a view to point initiate proceeding in respect of such offence said to have been committed by someone. Taking cognizance” means cognizance of an offence and not of an offender. Once the magistrate takes cognizance of an offence. it is the duty to find who the offender really is and once he comes to the conclusion that apart from the person sent up by the police some other person is involved, it is his duty to proceed against those people. Thus, it is unfortunate to say that, the Magistrates, who have been repeatedly advised and guided by the Hon’ble Supreme Court to exercise great caution in taking cognizance, have abruptly failed in adhering to such guidance, as a result of which, the immersion of civil disputes with criminal charges is immensely growing with each passing day as reflected in the statistics furnished before the subordinate courts of India. Day in and day out, hundreds of such complaints have been entertained by some of the Magistrates and cognizance is taken. Humanly, it is impossible if there is proper application of mind. To conclude, as remarked by the Supreme Court, there is no special charm or any magical formula in the expression ‘taking cognizance’ which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to take further judicial action.

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